author: PATRICIA BRECKENRIDGE, Judge.

text:
    Richard CARMACK, d/b/a Carmack Elk Farm, et al., Appellant, v. MISSOURI DEPARTMENT OF AGRICULTURE, et al., Respondent.
    No. WD 57199.
    Missouri Court of Appeals, Western District.
    Aug. 8, 2000.
    Motion For Rehearing and/or Transfer to Supreme Court Denied Oct. 3, 2000.
    Application for Transfer Denied Dec. 5, 2000.

      Gwendolyn S. Froeschner, Columbia, for appellant.
    Christie A. Kincannon, Jefferson City, for respondent.
    Before BRECKENRIDGE, P.J., LOWENSTEIN and ELLIS, JJ.
   PATRICIA BRECKENRIDGE, Judge.

Richard Carmack, part owner and operator-agent for all owners of Carmack Elk Farm, appeals the trial court’s refusal to grant his petition for writ of mandamus and the court’s judgment in which it declared, pursuant to § 267.610, RSMo 1986, the actual value of Mr. Carmack’s slaughtered elk for indemnification purposes. This court finds that (1) the trial court correctly concluded that an appraisal of the elk’s actual value pursuant to § 267.610 must take into consideration the fact that the elk were exposed to or infected with tuberculosis; (2) the trial court misapplied the law in when it adjudicated the actual value of the slaughtered elk, since Mr. Carmack was entitled to the appraisal procedure in § 267.610 to establish the actual value of the elk; and (3) Mr. Carmack’s claim that the trial court erred in refusing to grant his request for writ of mandamus need not be addressed. The judgment of the trial court is affirmed, in part, and reversed, in part, and the cause is remanded.

Factual and Procedural History

Carmack Elk Farm is an alternative agriculture elk farm located in Howard County. The operation started in 1990, when Mr. Carmack and his partners first imported thirty-four elk from Canada. At that time, the elk were tested and certified to be free of disease. In November of 1991, however, Mr. Carmack and the Department of Agriculture (the Department) learned that the Canadian herd from which Mr. Carmack had purchased his elk might be infected with tuberculosis.

The Department began testing Mr. Car-mack’s entire herd, which by then consisted of fifty-two elk, for bovine tuberculosis. Eleven of the elk tested responded positively to tuberculosis on the initial test, a Single Cervical Test (SCT). The Department quarantined Mr. Carmack’s herd, and decided to perform another test, the Comparative Cervical Test (CCT), on the eleven elk which were responders on the SCT. Six of the eleven elk responded positively to tuberculosis on the CCT. Although more accurate than the SCT, the CCT is not conclusive that an elk does, in fact, have tuberculosis. The only way to conclusively determine that an elk has tuberculosis is to sacrifice the animal and conduct a post-mortem examination. The state veterinarian, who is part of the Department, determined that the six elk that were responders on the CCT should be sacrificed so that a post-mortem examination could be performed.

After the state veterinarian determined that six of the Carmack elk needed to be slaughtered, the Department and Mr. Car-mack began discussing the proper indemnification from the State for the six elk. Section 267.610.1 provides that once the state veterinarian determines that livestock, animals, or birds must be slaughtered, in order to control and eradicate “a highly contagious or communicable or infectious disease” and notifies the owner of that fact, the livestock, birds or animals shall then be appraised and slaughtered. The appraisal is to be made jointly by the owner and a representative of the Department; however, if the owner and the Department disagree, a “disinterested third party shall be called in and a majority decision as to the appraisal of such livestock shall be fixed:” Section 267.610.2. The statute provides that the livestock, animals, or birds “shall be appraised at their actual value giving due consideration to breeding value as well as to dairy or meat value.” Section 267.610.4.

The Department and Mr. Carmack disagreed as to the actual value of the six elk. The Department proposed setting three different values based upon where the six elk fell within these categories: (1) non-exposed to tuberculosis and non-infected; (2) exposed but non-infected; and (3) infected. Mr. Carmack, however, believed the actual value of the six elk was their market value, without considering whether the animals had been exposed to or infected with tuberculosis.

Because the Department and Mr. Car-mack could not agree on an appraisal of the six elk, a third-party independent appraiser, who was selected by the Department and ultimately accepted by Mr. Car-mack, was asked to provide an appraisal. Dr. James E. Knight, a wildlife specialist, valued the six elk at $7,650.58 each, and valued male calves in útero at $1,000 and female calves in útero at $3,000. In his appraisal, Dr. Knight assumed the elk were healthy.

The Department disagreed with Dr. Knight’s appraisal, and asked Dr. Knight to clarify what the actual value of an elk exposed to or infected with tuberculosis would be. Dr. Knight stated that he assumed the elk were healthy, because the value of an elk exposed to tuberculosis is zero. In Dr. Knight’s opinion, no breeder would purchase elk from a herd in which any of the elk had tested positive for tuberculosis until the herd tested free of tuberculosis. Because there would be no market for the elk until that time, Dr. Knight concluded that the elk would have no value. Dr. Knight also stated that elk which test positive for tuberculosis have no meat value. The Department then furnished Dr. Knight with a definition of “actual value” from State v. Lindley, 232 Mo.App. 831, 113 S.W.2d 132, 137 (1938), which the Department believed supported its definition of actual value. Nevertheless, Dr. Knight stated that he still believed the actual value of the six elk to be $7,650.58 each.

Mr. Carmack filed a petition for writ of mandamus in April of 1993. In his petition, Mr. Carmack sought payment pursuant to Dr. Knight’s appraisal for the six elk identified by the state veterinarian to be destroyed, and for any future elk that the Department might destroy. After the filing, the parties agreed that the Department would pay Mr. Carmack $7,650.58 for each of seven elk — the six identified by the Department to be slaughtered plus one that the Department slaughtered by mistake. All issues pertaining to those seven elk were dismissed from the action.

While the petition for writ of mandamus was pending in the trial court, the legislature amended § 267.610 in June of 1993 to change the rate of indemnification. Pursuant to § 267.610.1, RSMo Cum.Supp.1993, the livestock, animals or birds were to be “indemnified within the limits of appropriation, at a rate fixed by rule or regulation promulgated by the director of the department of agriculture!.]” The amended statute stated that its provisions applied “to all cases to which the provisions of the section would otherwise apply which are settled after January 1, 1993.” Section 267.610.2, RSMo Cum.Supp.1993.

In September of 1993, the trial court entered a judgment granting Mr. Car-mack’s petition for writ of mandamus. In its judgment, the trial court determined, inter alia, that the Department had to apply the terms of the 1986 version of § 267.610, rather than the 1993 version, because the 1986 version was in existence on July 21, 1992, the date the Department quarantined the Carmack herd. Additionally, the court ordered the Department to discontinue the use of the three-tiered valuation system for indemnification pursuant to § 267.610, RSMo 1986. Both parties appealed the decision to this court. In Carmack v. Saunders, 884 S.W.2d 394, 398 (Mo.App.1994), this court found that Mr. Carmack was not entitled to a writ of mandamus concerning the indemnification method for any future slaughters, as a writ of mandamus cannot be used to establish a right to future relief. This court reversed the trial court’s judgment ordering the Department to apply the indemnification provisions of § 267.610, RSMo 1986, to all future slaughters and to discontinue the use of the three-tiered valuation system on all future slaughters.

Following the resolution of that appeal, Mr. Carmack filed a petition for declaratory relief in which he asked the court to declare unconstitutional House Bill 566, which contained the 1993 amendments to § 267.610. After the trial court found the bill constitutional, Mr. Carmack appealed to this court. The appeal was transferred to the Supreme Court. In Carmack v. Director, Missouri Dept. of Agriculture, 945 S.W.2d 956, 961 (Mo. banc 1997), the Supreme Court held that the 1993 amendment to § 267.610 addressed a different subject than the primary core subject of House Bill 566 and, therefore, violated the Missouri Constitution.

By the time the Supreme Court issued its opinion declaring the bill containing the 1993 amendment to § 267.610 unconstitutional, however, the state veterinarian had determined that it was necessary to slaughter forty-five more of the Carmack elk. Because the state veterinarian had obtained a definitive diagnosis of tuberculosis from the post-mortem examination of one of the initial seven elk slaughtered, the state veterinarian determined that it was necessary to administer the SCT on the remainder of Mr. Carmack’s elk herd. Forty-five elk from the Carmack herd reacted positively to the SCT, and the Department proceeded with slaughtering those elk. Prior to the slaughter of those forty-five elk, Mr. Carmack contacted Dr. Knight and asked him to appraise his entire herd, which at that time, consisted of sixty-two elk. Dr. Knight appraised the total value of the sixty-two elk at $330,-482.62.

The Department did not agree to hire Dr. Knight to be a disinterested third party to appraise the forty-five elk it slaughtered or agree to pay Mr. Carmack the appraised value of those elk that Dr. Knight set forth in his appraisal of the entire herd. Instead, the Department paid Mr. Carmack $750 per head for the forty-five elk, as that was the rate of indemnification fixed by the Department pursuant to the 199$ amendment to § 267.610. The Department used the $750 figure because it was consistent with the amount the Department had paid for cattle infected with bovine tuberculosis, the same strain of tuberculosis to which the elk had been exposed or with which they had become infected. Mr. Carmack accepted the $750 per slaughtered elk under protest. By the time the last fourteen of the forty-five elk were slaughtered, the United States Department of Agriculture had implemented an indemnification program. Pursuant to the federal program, Mr. Car-mack received an additional $750 per elk from the USDA on the last fourteen of the forty-five elk slaughtered.

In addition to receiving monetary compensation for the slaughtered elk, the Department also allowed Mr. Carmack to keep the meat of the slaughtered elk. Mr. Carmack entered into an arrangement with the Department in which he agreed to cover the expense of taking the elk to slaughter, which is usually borne by the Department pursuant to § 267.610.3, in exchange for the right to keep and use the meat. The Department agreed that no salvage value of the meat would be deducted from the indemnity payment Mr. Car-mack received from the Department.

Mr. Carmack was able to use the meat of all slaughtered elk that did not have gross lesions. Mr. Carmack had the meat processed into sausage, and attempted to sell the sausage out of his home. In all, Mr. Carmack realized a total of 3,000 pounds of elk sausage, and he priced the sausage at $3 to $5 per pound. While Mr. Carmack was able to sell some of the sausage, he consumed a lot of it.

The Department released Mr. Car-mack’s elk herd from quarantine in April of 1997, after they no longer tested positive as responders for tuberculosis. Following the release of the quarantine, Mr. Carmack sold the remainder of his elk at auction for amounts ranging from $1,000 to $11,600 per animal.

In October of 1998, Mr. Carmack filed a petition for writ of mandamus and declaratory judgment. In his writ of mandamus count, Mr. Carmack asked the court to order the Department, among other things, to comply with the requirements of § 267.610 with regard to compensating him for the forty-five elk slaughtered for which he was compensated only $750, pay him statutory interest on the indemnification amount ordered for each elk from the date of slaughter, and pay his attorney’s fees and court costs. In his declaratory judgment count, Mr. Carmack asked the court to order the Department to compensate him for the actual value of the forty-five elk slaughtered, giving due consideration to breeding value as well as dairy and meat value, in accordance with the provisions of § 267.610.

Following a trial, the trial court entered its judgment on Mr. Carmack’s petition in March of 1999. In its judgment, the court concluded that § 267.610, RSMo 1986, is the applicable statute, and the term “actual value,” as used in that statute, requires the appraisal to take into account the condition of the animal at the túne of the appraisal, including any exposure to, or infection with, a disease. Pursuant to this interpretation of actual value, the court determined that after the Department had a definitive diagnosis of tuberculosis from the initial seven elk destroyed, any further appraisals should have considered the fact that the elk tested positively as responders to tuberculosis on the SCT and were part of a herd which had been exposed to tuberculosis. The court specifically stated that it rejected Mr. Carmack’s assertion that the appraisal of a diseased animal which is zero would make § 267.610 meaningless. The court stated that the statute “was intended to apply to any number of situations, and the fact that an animal owner may receive no indemnification in one limited situation does not render the statute meaningless.”

The court determined that the actual value of elk that test positive as reactors to tuberculosis on the SCT and have been exposed to tuberculosis is the value of their cooked meat. Using Mr. Carmack’s testimony that he realized 3,000 pounds of meat from the forty-five elk destroyed and attempted to sell the meat at $5 per pound, the trial court concluded that Mr. Carmack appraised the actual value of the forty-five elk destroyed at $15,000 total. Based upon this figure, the court concluded that, by paying Mr. Carmack $750 per head, for a total of $33,750, the Department actually paid Mr. Carmack more than double Mr. Carmack’s own appraisal of the elk’s actual value.

The court also stated in its judgment that the Department could not be faulted for setting an indemnity amount for the forty-five elk destroyed pursuant to § 267.610, RSMo Cum.Supp.1993, because that was the version in effect at the time the indemnity amount was set and paid. Mr. Carmack filed this appeal. The disposition of Mr. Carmack’s points is more logical if the points are addressed out of order.

Standard of Review of Declaratory Judgment

Mr. Carmack’s second, third, and fourth points allege error in the court’s declaratory judgment. This court reviews a declaratory judgment under the standard applicable to other court-tried cases. Vocational Services, Inc. v. Developmental Disabilities Resource Board, 5 S.W.3d 625, 629 (Mo.App.1999). This court will affirm the trial court’s judgment regarding issues of fact unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). This court reviews questions of law de novo. Id.

Trial Court Correctly Interpreted “Actual Value” Under § 267.610

In Mr. Carmack’s third point, he alleges error in the trial court’s interpretation of the term “actual value” in § 267.610. The trial court concluded that § 267.610 requires that the appraisal of the actual value of the elk take into consideration “the condition of the animal at the time of the appraisal, which includes any response to disease test, exposure to, or infection with disease.” Mr. Carmack argues that the appraisal of the animal’s “actual value,” as it is used in § 267.610.4, should not take into account the animal’s diseased status.

Resolution of the parties’ disagreement over the interpretation of the term “actual value” requires this court to construe § 267.610. Statutory interpretation is an issue of law which this court reviews de novo. Snyder v. Department of Elementary and Secondary Education, 952 S.W.2d 764, 767 (Mo.App.1997). When construing a statute, courts must “ascertain the intent of the legislature from the language used and give effect to that intent, if possible, and to consider the words used in their plain and ordinary meaning.” Butler v. Mitchell-Hugeback, Inc., 895 S.W.2d 15, 19 (Mo. banc 1995). Only when language is ambiguous, or when it leads to an illogical result, may courts look past the plain and ordinary meaning of a statute. State ex rel. Md. Heights v. Campbell, 736 S.W.2d 383, 387 (Mo. banc 1987). The plain and ordinary meaning is generally derived from the dictionary. Akers v. Warson Garden Apartments, 961 S.W.2d 50, 53 (Mo. banc 1998).

Section 267.610.4 provides that the livestock “shall be appraised at their actual value giving due consideration to breeding value as well as to dairy or meat value.” The dictionary definition of “actual” is “existing in fact or reality” and “in existence or taking place at the time.” Webster’s Third New International Dictionary 22 (1971). Applying this definition, the actual value of the livestock, animals or birds is their value as it exists in fact or reality at the time of the appraisal, giving due consideration to breeding, dairy or meat value. The timing of the appraisal is set forth in § 267.610.1. This section provides that when the state veterinarian determines that the slaughter method is necessary to control or eradicate a highly contagious or communicable or infectious disease among livestock, animals, or birds, the Department shall provide notice to the owner of the livestock, animals, or birds exposed to or infected with the disease, then an appraisal shall be made and the animals shall be destroyed. Thus, under the statute, at the time of the appraisal, the animals, livestock, or birds to be slaughtered have already been identified as having been either exposed to or infected with a highly contagious, communicable, or infectious disease.

Looking at the timing in this case, the state veterinarian made his determination that it was necessary to slaughter the forty-five elk after the initial seven elk were slaughtered and a conclusive diagnosis of tuberculosis in one of those initial seven was made. The forty-five elk identified for slaughter were part of the same herd from which the conclusive diagnosis of tuberculosis had been made. Thus, the forty-five elk, as they existed in fact or reality at the time an appraisal should have been performed, had been exposed to tuberculosis.

Additionally, all of the forty-five elk slaughtered were, at the time of the state veterinarian’s determination that their slaughter was necessary, “infected” with the disease as that term is defined in § 267.565(8). Although no conclusive diagnosis of tuberculosis can be made until after the animal is slaughtered and a postmortem examination is performed, the statutory definition of “infected animal” requires only that an animal have “a positive reaction to any recognized serological test” or that the clinical symptoms and history simply justify designating the animal as being infected. Section 267.565(8). As all forty-five elk tested positive as reactors to the SCT, the elk were infected with tuberculosis at the time an appraisal should have been performed.

The plain and ordinary meaning of § 267.610 requires such a result. Because the appraisal occurs after the state veterinarian has identified those animals, livestock or birds exposed to or infected with a highly contagious, communicable or infectious disease, the animals, as they exist in reality at the time of the appraisal, are, in fact, exposed to or infected with the disease. Mr. Carmack argues that this interpretation leads to an absurd or illogical result because diseased animals have no market value. Without a market value, Mr. Carmack contends that the animals have no actual value and, therefore, § 267.610 is rendered meaningless. Section 267.610 does not require that actual value be based upon market value. Rather, the section requires that an appraisal of actual value give due consideration to breeding, dairy and meat value.

Mr. Carmack complains, however, that even if the appraisal considers the breeding, dairy and meat value, some of the elk may have an actual value of zero if the diseased status of the animal is taken into account. That such a result could occur in one of the many situations covered by the statute does not render the statute meaningless. If the legislature had intended to guarantee that owners receive compensation in every situation for the slaughter of livestock, animals, or birds exposed to or infected with a disease, the legislature would have provided for a set amount of reimbursement, rather than reimbursement based upon the appraised actual value. The trial court did not err in concluding that § 267.610 requires that the appraisal of the actual value consider the fact that the livestock, animals or birds are exposed to or infected with a highly contagious, communicable or infectious disease.

Actual Value Must Be Set in Accordance with Appraisal Procedure in § 267.610

In his fourth point, Mr. Carmack claims that the trial court erred in concluding that the actual value of the forty-five elk slaughtered was the value of their cooked meat. Mr. Carmack also claims in this point that the trial court erred in concluding that his testimony as to the value of the meat he received from the forty-five elk made an additional appraisal unnecessary, because the value of the meat was less than the amount the Department paid him. Mr. Carmack argues that the trial court’s holding ignores the statutory appraisal procedure which the Department was required to follow in compensating him for the slaughtered elk.

Mr. Carmack received $750 per head for the forty-five elk slaughtered. This amount was set and paid while § 267.610, RSMo Cum.Supp.1993, was in effect. Section 267.610.1, RSMo Cum.Supp.1993, provided, in pertinent part, that the Department indemnify the animals, livestock or birds in an amount “within the limits of appropriation, at a rate fixed by rule or regulation promulgated by the director of the department of agriculture[.]” The state veterinarian testified that the Department determined that $750 per elk was appropriate in this case because that was the maximum amount ever paid for cattle infected with bovine tuberculosis, the same strain of tuberculosis to which the Carmack elk had become exposed,

The Supreme Court found the bill which included the 1993 amendments to § 267.610, RSMo Supp.1993, unconstitutional, however. Carmack, 945 S.W.2d at 961. Generally, an unconstitutional statute is void ab initio, except in situations in which injustice occurs as a result of a party’s good faith compliance with the unconstitutional statute. State ex rel. Public Defender Comm’n v. County Court of Greene County, 667 S.W.2d 409, 413 (Mo. banc 1984). The parties do not contend, and this court does not discern, that the exception applies to this case. Therefore, the 1986 version of § 267.610 applies to the indemnification of the Carmack elk. Section 267.610.2 sets forth, in pertinent part, the following appraisal procedure:

The appraisal of such livestock, animals or birds shall be made jointly by the owner and a representative of the director of agriculture or by the owner and a representative of the United States Department of Agriculture when the federal government shall elect to participate. In the case of any disagreement a disinterested third party shall be called in and a majority decision as to the appraisal of such livestock shall be fixed.
⅜ ⅜ !'.■

This procedure was not followed with regard to the forty-five elk slaughtered which are the subject of this appeal. While the state veterinarian did testify at trial that it was his opinion that the actúal value of the forty-five elk, taking into consideration the fact that the elk were exposed to or infected with tuberculosis, would be their meat value, Mr. Car-mack did not offer an appraisal of the actual value of the forty-five elk which considered their diseased status. Mr. Carmack’s testimony at trial that he received $3 to $5 per pound for the portion he sold of the 3,000 pounds of meat from the slaughtered elk cannot be taken as a judicial admission of his appraisal of the diseased elk’s actual value under § 267.610.2, in light of the fact that Mr. Carmack’s position throughout the trial was that the actual value of the elk should not take into consideration the elk’s diseased status. See May v. May, 294 S.W.2d 627, 633-34 (Mo.App.1956). In addition, the trial court’s valuation did not consider evidence that seven of the elk slaughtered had calves in útero, which might have value. Mr. Carmack testified that if the four female and three male calves were separated from their mothers at birth and bottle-fed, they would not be considered exposed to tuberculosis. It is apparent from the record that the parties have not jointly appraised the actual value of the elk as exposed to or infected with the disease, giving due consideration to the elk’s breeding, dairy or meat value, as required by the statute. While the $33,750 the Department paid Mr. Carmack for the elk may be in excess of their actual value, Mr. Carmack has a right to require the Department to follow the appraisal procedure of the statute.

Because the procedure as set forth in § 267.610 for appraising the actual value of the elk exposed to or infected with tuberculosis was not followed, the trial court erred in declaring an actual value. The judgment of the trial court is, therefore, reversed, and the cause is remanded to the trial court. On remand, the trial court is directed to enter a judgment declaring that the parties are to appraise the actual value of the forty-five elk exposed to or infected with tuberculosis, giving due consideration to the elk’s breeding, dairy or meat value. If the parties disagree, a disinterested third party should be called in and a majority decision as to the appraisal of the actual value of the elk should be fixed.

Unnecessary to Decide Appeal of Refusal to Grant Writ of Mandamus

Finally, in his first point, Mr. Carmack appeals the trial court’s refusal to grant his request for a writ of mandamus. In his request for a writ of mandamus, Mr. Carmack asked the court to order the Department to follow the appraisal procedure set forth in § 267.610. Since this relief was granted when this court reversed the trial court’s judgment and remanded the cause, we need not address this point.

The judgment of the trial court is affirmed, in part, and reversed, in part, and the cause is remanded.

All concur.

      . All statutory references are to the Revised Statutes of Missouri 1986, unless otherwise indicated.

      . Mr. Carmack's appeal concerned the discretion of the state veterinarian to identify which animals were to be slaughtered. Because the resolution of this issue is not relevant to the present appeal, this court will not recite it.

      . In his second point, Mr. Carmack alleges error in the trial court’s conclusion of law which states: "The Department cannot be faulted for setting an indemnity amount for Carmack's elk under § 267.610, RSMo [Cum.] Supp.1993, because that was the version in effect at the time the indemnity was set and paid.” Whether the Department can be "faulted” for following a statute later declared unconstitutional is irrelevant. Because a finding of "fault” is immaterial to this court's decision, Mr. Carmack’s point on this issue will not be addressed.

      . This court notes that following the Supreme Court’s holding that the bill which included the 1993 amendments to § 267.610 was unconstitutional, § 267.610 was repealed, and a new statute was enacted in 1999. The current statute governing compensation for the slaughter of animals, birds, and livestock exposed to or infected with a highly contagious, communicable or infectious disease, § 267.611, RSMo Cum.Supp.1999, provides for indemnification in an amount "within the limits of appropriation, at a rate fixed by the director of the department of agriculture!.] ” This new statute does not apply to this case, as it was enacted well after the slaughter of the forty-five elk.


source: Caselaw Access Project

license: Public Domain

text:
    UNITED DISTRIBUTORS, Respondent, v. DEPARTMENT OF PUBLIC SAFETY, DIVISION OF LIQUOR CONTROL, Appellant.
    No. WD 57320.
    Missouri Court of Appeals, Western District.
    Aug. 8, 2000.
    Motion For Rehearing and/or Transfer to Supreme Court Denied Oct. 3, 2000.
    Application for Transfer Denied Dec. 5, 2000.

      Marvin O. Teer, Jr., Jefferson City, for appellant.
    Gary Morris, Clayton, for respondent.
    Before BRECKENRIDGE, P.J., LOWENSTEIN and ELLIS, JJ.
   PATRICIA BRECKENRIDGE, Judge.

The Department of Public Safety, Division of Liquor Control appeals from a judgment ordering it to return a “Top the Score” machine owned by United Distributors that it seized from the Fraternal Order of Eagles (Eagles), and enjoining it from seizing four other “Top the Score” machines located at the Eagles. Because this court finds that Liquor Control has no authority to seize gambling devices and Liquor Control based its seizure of the “Top the Score” machines on its assertion that they are gambling devices, the judgment of the trial court is affirmed.

Factual and Procedural History

On December 17, 1998, Liquor Control Special Agents Keith Hendrickson and Steve Shimmens inspected the Eagles, a licensed liquor establishment located in Jefferson City. Upon entering the Eagles, the agents discovered several “Top the Score” machines. The agents determined that the machines were illegal gambling devices and seized one of the machines. The agents informed an employee at the Eagles that the remaining “Top the Score” machines would be seized if they were not removed from the premises before December 21, 1998. The machines, owned by United Distributors, are leased to the Eagles under an oral profit-sharing arrangement, in which United agreed to install, service and maintain the machines, and share half the revenue taken in by them.

The day after the seizure of the one machine, United Distributors filed a petition for a temporary restraining order and preliminary and permanent injunction against Liquor Control. In its petition, United Distributors sought the return of the “Top the Score” machine that was seized and the entry of an injunction preventing Liquor Control from seizing the other four “Top the Score” machines from the Eagles. In its answer, Liquor Control admitted that its seizure was based upon 11 C.S.R. 70-2.140(10) which provides, in pertinent part, that, “No licensee shall have any gambling devices upon his/her licensed premises where money, trade checks, prizes, merchandise or property or any other consideration whatsoever may be won or lost.” At a brief hearing before the trial court, the parties stipulated that no further action would take place pending an evidentiary hearing.

In January of 1999, an evidentiary hearing was held. At the hearing, a “Top the Score” machine was brought into the courtroom and both parties demonstrated how the machine operates. At the end of the hearing, the trial court ordered that all further action be held in abeyance until the parties filed briefs and the court rendered its decision. In May of 1999, the trial court granted United Distributor’s petition for preliminary and permanent injunctions, finding that the “Top the Score” machines ai'e “gaming devices,” but that there was no evidence that the machines were being used “in the furtherance of gaming or gambling activities at the Fraternal Order of Eagles.” The judgment enjoined Liquor Control from seizing the remaining “Top the Score” machines from the Eagles and ordered the return of the machine that Liquor Control had already seized. Liquor Control appeals.

Standard of Review

Appellate review of judgments granting injunctive relief is the same as in any court-tried case. Home Shopping Club, Inc. v. Roberts Broadcasting Co., 989 S.W.2d 174, 177 (Mo.App.1998). The trial court’s judgment will be sustained unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Trial Court Did Not Enjoin Enforcement of a Criminal Law

Liquor Control argues that the trial court erred in granting equitable relief because it did not have jurisdiction to enjoin the enforcement of criminal laws. Liquor Control is responsible for enforcing Missouri’s liquor control laws set out in Chapters 311 and 312 and the regulations promulgated thereunder. Cocktail Fortune, Inc. v. Supervisor of Liquor Control, 994 S.W.2d 955, 956 (Mo. banc 1999). Liquor Control argues that the enforcement of its regulations amounts to the enforcement of criminal law, and that, generally, a court of equity is without jurisdiction to interfere with the enforcement of the criminal law. We do not agree. The proceedings in this case that were based upon a violation of 11 C.S.R. 70-2.140(10) were not criminal in nature as Liquor Control suggests.

As stated supra, 11 C.S.R. 70-2.140(10) provides, in pertinent part, that, “No licensee shall have any gambling devices upon his/her licensed premises where money, trade checks, prizes, merchandise or property or any other consideration whatsoever may be won or lost.” In State ex rel. Glendinning Companies of Con necticut Inc. v. Letz, 591 S.W.2d 92, 96 (Mo.App.1979), this court determined that 11 C.S.R. 70-2.140(12) is not “aimed at gambling, per se,” but rather “at the control of the licensed alcoholic beverage-selling business.” Id. This court stated:

It does not purport to make the activity defined in the regulation either lawful or unlawful nor to attach any penalty thereto. The regulation is aimed rather at the control of the licensed alcoholic beverage-selling business. The privilege of selling alcoholic beverage is conditional, and one of those conditions is that a certain activity, which has a demonstrated attraction to draw people into the licensed premises where they are likely to purchase the merchandise offered therein, shall not be allowed by the licensee upon the licensed premises.... That the activity may be gambling, or may resemble gambling, whether lawful or unlawful, is merely incidental. The activity which is described in the regulation may be conducted without interdiction by the Supervisor’s regulation but the business of alcoholic beverage sales cannot be conducted on the same premises. It was not the legislature’s intent by the Criminal Code to reduce the Supervisor’s regulatory powers over the licensed business of alcoholic beverage sales.

Id. (citations and footnote omitted).

This analysis makes clear that the purpose of Liquor Control’s enforcement of 11 C.S.R. 70-2.140(10) is to control licensed alcoholic beverage-selling businesses, not to determine whether gambling activities are unlawful and assess criminal punishment. Therefore, this court finds that the proceedings in this case were not criminal in nature and, as such, the trial court did not enjoin the enforcement of a criminal law.

Liquor Control Has No Authority Under Chapter 311 To Seize Gambling Devices

Liquor Control also argues that United Distributors did not demonstrate that it lacked an adequate remedy at law so it was not entitled to injunctive relief. Liquor Control claims that § 311.840, RSMo 1994, provided an adequate remedy at law for United Distributors to litigate its right to recover the “Top the Score” machine that had been seized. Section 311.840 provides, in pertinent part:

1. Whenever any intoxicating liquor or other property having a value of more than fifty dollars is seized as contraband under any section of the liquor control law, the officer seizing such property, or the supervisor of liquor control, if the seizure is made by one of his agents, shall commence an action in the circuit court of the county in which such property is seized by filing a petition -... in the name of the state of Missouri as plaintiff against the person from whom the property was seized as defendant!)]
3. Any person claiming an interest in said property may intervene in said action within thirty days after the publication of said notice, setting forth any claim he may have to said property.

Liquor Control argues that once it filed a petition, § 311.840.3 would allow United Distributors to intervene and claim an interest in the seized property. On its face, this is a reasonable assertion. However, upon analyzing § 811.840 and its interplay with the other statutes in Chapter 311, this court finds that Chapter 311 does not give Liquor Control authority to seize gambling devices. Thus, the trial court was correct in ordering the return of the one machine and in enjoining Liquor Control from seizing the other four machines, even though its decision was based upon different reasoning. Firefighters Local No. 77 v. City of St. Joseph, Missouri, 822 S.W.2d 866, 870 (Mo.App.1991) (“In a court-tried case, if the trial court reached a correct result, the decision will be affirmed. The decision will not be disturbed because the trial court gave a wrong or insufficient reason therefor.”).

Analyzing the pertinent statutory provisions, this court first notes that as an agency of the state, the Division of Liquor Control only has such power and authority as granted to it by the legislature in Chapters 311 and 312, RSMo. See Director, Missouri Dept. of Public Safety v. Murr, 11 S.W.3d 91, 96 (Mo.App.2000). Chapter 311 is entitled the “Liquor Control Law.” § 311.010. All of the provisions in Chapter 311 relate to the subject of alcoholic beverages. Since Liquor Control’s authority is pronounced in Chapter 311, this court will undertake to examine the statutes pertinent to this case and construe them accordingly. Statutes that relate to the same subject or matter are considered in pari materia and are construed together as though constituting one act. State ex rel. Rothermich v. Gallagher, 816 S.W.2d 194, 200 (Mo. banc 1991). Statutes that are in pari materia are intended to be read consistently and harmoniously in their several parts and provisions. Id.

It must first be determined what authority Liquor Control was granted by the legislature in Chapter 311. Chapter 311 provides that certain employees of the division are peace officers who have the authority to enforce the liquor control laws. Specifically, the Supervisor of Liquor Control and other employees of Liquor Control who have been selected and designated by the Supervisor are peace officers of the state of Missouri with the “full power and authority to make arrests for violations of the provisions of Chapters 311 and 312, RSMo, relating to intoxicating liquors and nonintoxicating beer, and to make searches and seizures thereunder, and to serve any process connected with the enforcement of such laws.” Section 311.630.1, RSMo Cum.Supp.1999.

While Liquor Control agents have the authority to make searches and seizures, their authority is limited by the terms of the statutes of Chapters 311 and 312. Section 311.810.2 authorizes Liquor Control agents to apply for search warrants and to seize:

[A]ny intoxicating liquor, malt, mash and all grain, grain products, fruit or fruit products found ... [in] such a stage of fermentation as to be unfit for any use save in the unlawful manufacture of intoxicating liquor; and to seize and remove therefrom any intoxicating liquor, still, doubler, worm, worm tub, mash, mash tub, fermenting tub, vessel, fixture or equipment, or any part or parts thereof, used or fit for use in the unlawful manufacture of intoxicating liquor. ...

It further provides that “[a]ll intoxicating liquor unlawfully manufactured, stored, kept, sold, transported or otherwise disposed of, and the containers thereof and all equipment used or fit for use in the manufacture or production of the same, including all grain or other material used, in the unlawful manufacture of intoxicating liquor ... are hereby declared contraband” and shall be sold upon order of the court and the manner provided in the chapter. Section 311.810.2. There is no authority in § 311.810.2 for the seizure of items other than liquor or items used in the unlawful manufacture of liquor. Further, § 311.810.2 lists liquor and other items used in the manufacture of liquor and declares such items to be considered contraband. There is no mention of any non-alcohol related items.

There is also no mention of any non-alcohol related items in §§ 311.840 and 311.850, which establish the procedure for the sale of the seized contraband. Under § 311.840, when intoxicating liquor or other property having a value of greater than fifty dollars is seized as contraband, Liquor Control must commence an action in the circuit court of the county where the property was seized. The petition initiating that action shall “describe the property seized and the circumstances of the seizure and shall pray the court to make an order, declaring said liquor or other property to be contraband and directing said seizing officer or the supervisor of liquor control ... to sell said property at public or private sale,” subject to the court’s approval. Under § 311.850, an individual may file a suit in replevin to recover “any intoxicating liquor or other property of the value of fifty dollars or less which has been seized as contraband.” Read together, it is clear that the contraband which is subject to the proceedings in §§ 311.840 and 311.850 is limited to contraband seized pursuant to Chapter 311. Nowhere in Chapter 311 do the statutes authorize the seizure of gambling devices, nor authorize the initiation of an action to request their disposal.

The authority granted to peace officers in §§ 311.630, 311.810, 311.840 and 311.850 is expressly limited to the enforcement of liquor control laws. This limitation on the authority of Liquor Control is recognized by Liquor Control in its regulations. 11 C.S.R. 70-1.010(4) provides:

The supervisor of liquor control, agents of the Division of Liquor Control, prosecuting attorneys, sheriffs, their deputies and police officers are charged with the duty of enforcing the Intoxicating Liquor Law and Nonintoxicating Beer Law. The Division of Liquor Control has no authority to punish or discipline persons not licensed. However, the division works closely with other law enforcement agencies and personnel in an effort to insure compliance with the liquor control laws.

(Emphasis added.)

In this instance, the provisions of Chapter 311 authorized Liquor Control to discipline the Eagles regarding their liquor license, if necessary, or to report the information to other law enforcement officials or the prosecuting attorney so that those officials could act to seize the machines if such seizure is authorized by the criminal statutes in Chapter 572. Chapter 311 did not authorize the agents to seize the machines. Since Liquor Control did not have the authority to seize the machines, it is not necessary to reach the issue of whether the “Top the Score” machines are illegal gambling devices per se under Thole v. Westfall, 682 S.W.2d 33, 36 (Mo.App.1984).

Accordingly, the seizure of the “Top the Score” machine by Liquor Control was unlawful and United Distributors was entitled to a judgment ordering the return of the machine and enjoining Liquor Control from seizing the remaining machines.

All concur.

      . This subsection has been renumbered and is now (10) instead of (12). The language relied on here in (10) is substantially similar to that in (12).

      . All statutory references are to the 1994 Revised Statutes of Missouri, unless otherwise indicated.

      . Liquor Control asserts that § 311.850 provides a legal remedy for a person claiming title to "any intoxicating liquor or other property of the value of fifty dollars or less [which has been] seized as contraband under any provision of the liquor control law.” Under § 311.850, the person may file a suit in re-plevin to request return of the contraband. As Liquor Control notes, however, it is undisputed that each "Top the Score” machine is worth more than $1,000, so our discussion will focus on § 311.840.

      . Chapter 312 is entitled ‘‘Nonintoxicating Beer” and contains provisions governing the manufacture, sale and transportation of beer "having an alcoholic content of not less than one-half of one percent by volume nor exceeding three and two-tenths percent by weight.” Section 312.020.1. Chapter 312 does not contain any provisions expanding the authority of Liquor Control peace officers or their right to search for or seize contraband beyond what is authorized in Chapter 311, so the provisions of Chapter 312 are not pertinent to the issues in this case.


author: JAMES R. DOWD, Judge.

text:
    Lavonda MOREHOUSE, Plaintiff/Appellant, v. BEHLMANN PONTIAC-GMC TRUCK SERVICE, INC. and Universal Underwriters Service Corporation, Defendant/Respondent.
    No. ED 76556.
    Missouri Court of Appeals, Eastern District, Division One.
    Aug. 8, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 4, 2000.
    Application for Transfer Denied Dec. 5, 2000.

      John R. Birkby, St. Louis, for appellant.
    Lawrence J. Permuter, Ellen K. Siegel, Thomas B. Weaver, Armstrong, Teasdale LLP, Cynthia A." Sciuto, St. Louis, for respondent.
   OPINION

JAMES R. DOWD, Judge.

LaVonda Morehouse (hereinafter “Morehouse”) appeals from a judgment direefing verdicts in favor of Behlmann Pontiac-GMC Truck Service, Inc. (hereinafter “Behlmann”) and Universal Underwriters Service Corporation (hereinafter “Universal”). We reverse in part, affirm in part, and remand.

Standard of Review

In reviewing a directed verdict granted in favor of a defendant, the appellate court views the evidence and permissible inferences most favorably to the plaintiff, disregards contrary evidence and inferences, and determines whether plaintiff made a submissible case. Head v. National Super Markets, 902 S.W.2d 305, 306 (Mo.App. E.D.1995). Directing a verdict is a drastic remedy. Id. We will reverse the trial court’s grant of a directed verdict unless the facts and any inferences therefrom are so strongly against the plaintiff as to leave no room for reasonable minds to differ as to a result. Id.

Facts

The evidence viewed most favorable to Morehouse is as follows. On September 3, 1994, Morehouse and her mother, Dorothy Williams, went to the Behlmann dealership to look at used cars. Ed Bogosian (hereinafter “Bogosian”), a Behlmann salesperson with forty-two years of experience selling vehicles, offered to help Morehouse. Morehouse told him that she was looking for a reliable and lasting van priced around ten or twelve thousand dollars. Bogosian told her that he had years of experience selling vehicles and that he knew what was good.

After looking at several vehicles, More-house focused on a Cheverolet Astro minivan because it had less than 100,000 miles and the color appealed to her. Bogosian told her that the minivan was in excellent condition, had been well maintained, and that it would be reliable.

Following this conversation, Morehouse and her mother test drove the minivan. Morehouse noticed a “jerking of the engine” and the brake pedal pressing almost to the floor. Her mother thought that the engine felt sluggish. After the test drive, Morehouse advised Bogosian of these complaints. Bogosian replied that the vehicle was in good condition but agreed to go with Morehouse on a second test drive. Bogosian said that he could not feel or hear anything, wrong with the engine and that the roughness was standard. He also said that since a minivan drives more like a truck than a car and she was not used to driving a truck, she should not be concerned about the roughness of the engine.

After speaking with a service mechanic, Bogosian reiterated to Morehouse that everything was fine. Morehouse responded that she wanted the minivan in excellent condition so that she would not have to keep bringing it back for repairs. Bogo-sian sent the mechanic for a test drive, and the mechanic also said that he did not feel anything wrong.

That day, Morehouse signed a contract to buy the minivan for $10,300, including a $500 down payment. She paid the $500 and promised to pay the remaining $9,800 in cash by September 16th. Because Morehouse did not receive the money she anticipated by that date, she and Bogosian agreed over the telephone on a new purchase date of November 4,1994.

On October 12, 1994, Behlmann sent the minivan to Tony’s Auto Repair to fix an overheating problem. On August 18,1994, Tony’s Auto Repair had also changed the minivan’s oil and filter, replaced the front brakes and the gas cap, and cleaned the fuel system.

When Morehouse arrived with her mother on November 4, 1994 to pick up the vehicle, Bogosian told her that she had almost lost the minivan to another customer. The second customer, however, had refused to purchase the vehicle because the radiator exploded when he turned the ignition. Bogosian also informed More-house that because of the cost of repairs, the purchase price of the car had been increased by $400. Bogosian and More-house settled on an increase of $100.

On Bogosian’s suggestion, Morehouse then spoke with Jane Harlow (hereinafter “Harlow”), Behlmann’s finance manager. Harlow sold Morehouse a two-year, 24,000 mile comprehensive warranty issued by Universal for $1,456. The warranty obligated Universal to “repair or replace any part necessary to remedy a[m]echanical [breakdown and cover the cost of related labor, or pay an authorized repair facility customary and reasonable charges to do so, less the deductible displayed in the declarations section” (emphasis omitted).

Over the time that she possessed the minivan, Morehouse returned it to Behl-mann a total of five times with a multitude of complaints each time. One recurring complaint was that the engine was overheating. Behlmann made or attempted to make repairs to address some of More-house’s complaints but did not attempt to repair problems that it could not replicate in the shop. Although Universal covered the bulk of the repair costs, on two occasions, Morehouse paid the deductible called for in the warranty.

On April 18, 1996, while Morehouse was driving the minivan on the highway, the engine shut down and would not restart. Morehouse had the vehicle towed to Behl-mann that same day. Behlmann and Universal eventually informed Morehouse that the minivan would not be repaired because she had not changed the oil and filter. On May 20, 1996, Morehouse returned the rental car she had been driving and paid the $349.14 balance for the use of the vehicle beyond the eleven days covered by the warranty. On July 9, 1997, fifteen months after Morehouse had the minivan towed to Behlmann, the insurance adjuster for Behlmann and Universal informed Morehouse that it was denying any voluntary payment of her claim.

Numerous witnesses testified at trial that the minivan’s oil and filter had been changed eight times while in Morehouse’s possession: in January, March, May, July, August and October of 1995 and in January of 1996. Morehouse also presented invoices from New Age Car Care for two of these oil changes.

Morehouse sued Behlmann for common law fraud and unfair merchandising practices, alleging that Behlmann induced her to buy the minivan through unlawful merchandising practices and fraudulent representations. She sued Behlmann and Universal for breach of contract, alleging that Universal breached its service contract by refusing to pay for the van’s repairs. At the conclusion of Morehouse’s evidence, Behlmann and Universal moved for directed verdicts. The trial court sustained these motions. Morehouse appeals.

Analysis

Morehouse presents several points of error on appeal. First, she claims that the trial court erred in finding that Bogosian’s statements that the minivan was in excellent condition was a matter of opinion and not a specific representation of fact. Second, Morehouse contends that the trial court erred in sustaining Behlmann’s objection to the admission of the title history of the vehicle. Third, she claims that the trial court erred in finding that she failed to submit evidence on damages on all three claims. Fourth, Morehouse claims that the trial court erred in finding that she failed to make a submissible case on her claim that the warranty covered the minivan’s engine failure.

I. Bogosian’s Statements

Morehouse’s suit against Behlmann raised claims of common law fraud and violations of the Merchandising Practices Act. The trial court directed a verdict in favor of Behlmann on both counts because it found that Bogosian’s statements were merely expressions of opinion and not material representations of fact. Bogosian told Morehouse several times that the minivan was in excellent condition, was in tiptop shape, had been well-maintained, and that there was nothing wrong with it.

A seller may puff his wares or express his opinion as to the quality and value of his goods even to the point of exaggeration without incurring a warranty obligation. Guess v. Lorenz, 612 S.W.2d 881, 883 (Mo.App. E.D.1981). Conversely, if the representation is a statement of fact, a petition alleging such a representation may sufficiently state a claim for breach of express warranty or fraudulent misrepresentation. Carpenter v. Chrysler, 853 S.W.2d 346, 358 (Mo.App. E.D.1993). A given representation can be an expression of opinion or a statement of fact depending upon the circumstances surrounding the representation. Clark v. Olson, 726 S.W.2d 718, 720 (Mo.banc 1987).

In Carpenter v. Chrysler Corp., a salesman told a customer that a car was “a good car, reliable, brand new. This might be what you’re looking for. This is the kind of car to have.” Carpenter, 853 S.W.2d at 358. In fact, the dealer had repaired a leak in the power steering system and the car had been subject to a recall. We held that the salesman’s statements to the customer were statements of fact. Id.

Similarly, here Bogosian represented to Morehouse that the minivan was “in excellent condition,” “in good condition,” “in tip-top shape” and would be “rehable.” Also as in Chrysler, the salesperson here referred specifically to the minivan in attesting to its soundness and reliability. Id. As we held in Chrysler, these statements conveyed sufficient definite information about the quality of the vehicle for that representation to be considered material. They are not merely statements of opinion.

Behlmann argues that the present case is distinguishable because of the power steering system repair and the recall in Chrysler. However, those facts are irrelevant in determining if the statement to the customer is one of opinion or a representation of fact. Instead, they tend to prove the actual condition of the car and the dealer’s knowledge of that condition. In our case, by directing the verdict on the grounds that Bogosian did not make a representation of fact, the trial court prevented the jury from reaching those questions. The power system steering repair and the recall in Chrysler do not distinguish that case from the present one. In Chrysler, the evidence established that the dealer knew about the actual condition of the vehicle. Here, the evidence established that Bogosian assured Morehouse that the vehicle was in excellent condition when he, at best, had no knowledge as to whether his statements were true or false.

In Grabinski v. Blue Springs Ford Sales, Inc., an automobile dealership employee told a customer that a car was “very nice,” was “driving fine” and “only needed a clean-up and standard service.” Grabinski v. Blue Springs Ford Sales, Inc., 136 F.3d 565, 567 (8th Cir.1998). The Eighth Circuit held that these statements likewise were representations of fact. Id. at 569. Behlmann attempts to distinguish Grabinski from the present case because the Eighth Circuit held that the dealership knew or should have known that the car had been in a wreck and had power problems. Id. Again, what the dealership knew or should have known has no bearing on whether a statement to a customer is an opinion or a representation of fact.

Behlmann also contends that the present case is distinguishable because the dealership employee in Grabinski stated that the car only needed a clean-up and standard service. We fail to understand how that additional sentence renders the Grabinski statement a representation of fact. It merely reiterates the representation that the car was “very nice” and “driving fine.” The Grabinski statements are virtually identical in character to the statements in the present case. Both convey sufficient definite information about the quality of the vehicle.

Conversely, in Guess v. Lorenz, we held that an automobile seller’s statements that the car was “in good shape” and that a noise in the rear end of the vehicle “was just something the car does” were expressions of opinion. Guess v. Lorenz, 612 S.W.2d at 833. An integral part of that holding, however, was that the buyer and the seller were on equal footing in terms of knowledge of car mechanics and the seller gave no impression of knowledge about cars. Id. In the present case, Morehouse told Bogosian several times that she was an inexperienced car buyer and that she had no idea what to look for in a car. Bogosian responded that he had years of experience selling cars and knew what was good. Given Bogosian’s advantage in experience and his representation thereof, his statements to Morehouse about the condition of the car conveyed sufficient information to be representations of fact, and not merely statements of opinion. We hold that Bogosian’s statements to More-house were actionable representations of fact. Point granted.

II. The Title History of the Minivan

Morehouse next argues that the trial court erred in sustaining Behlmann’s objection to the introduction into evidence of the minivan’s title history. We accord decisions of the trial court as to the admissibility of evidence substantial deference and do not disturb these decisions absent a showing of abuse of discretion. Oldaker v. Peters, 817 S.W.2d 245, 250 (Mo.banc 1991). The test for relevancy is whether an offered fact tends to prove or disprove a fact in issue or corroborates other relevant evidence. Id.

At trial, Morehouse attempted to introduce the title history to show that despite Bogosian’s statement that the minivan had only one prior owner, the vehicle actually had multiple prior owners. The trial court excluded this evidence because it found that it was outside the scope of More-house’s petition. In explaining its ruling, the court stated:

The material representation that you plead, however, is that it was in excellent condition.
.. .The fact that it’s been previously owned a certain number of times does not prove or disprove that it was in excellent condition.
I think the fact that it was owned, or how many people owned it, doesn’t necessarily prove or disprove anything.

The trial court abused its discretion in refusing to admit the title history of the minivan. The test of relevancy of evidence is not whether the evidence necessarily proves or disproves a fact in issue, but whether it tends to prove or disprove such a fact. Oldaker, supra. In that pursuit, the trial court must give weight to the inference most favorable to the party offering the evidence.

Here, Morehouse attempted to prove, among other things, that Bogosian represented to her that the minivan was in excellent condition, that the minivan was not in excellent condition, and that Bogo-sian knew or should have known the minivan was not in excellent condition. The title history of the vehicle would tend to prove the actual condition of the vehicle. According to our standard of review, we must view the evidence and permissible inferences most favorably to the plaintiff and disregard contrary evidence and inferences. Head v. National Super Markets, 902 S.W.2d at 306. Had this evidence been admitted, the jury could have inferred that the car was sold numerous times because its various owners continued to find problems with it. A jury could have used that inference to conclude that a car with multiple prior owners is less likely to be in excellent condition than a car with only one prior owner. Just because this inference is not the only inference possible is not a sufficient reason to exclude it from evidence.

Behlmann contends that the refusal to admit the title history into evidence does not constitute reversible error because it would not have changed the result reached. It cites Green v. Stanfill, 641 S.W.2d 490, 492 (Mo.App. S.D.1982), and argues that because the trial court directed the verdict in favor of Behlmann, the admission of the title history could not have changed the result. The Green rule is logically inapplicable here, however, because we are reversing the directed verdict in favor of Behlmann. The inability of the evidence to affect the outcome is irrelevant when the case is to be retried on other grounds.

In excluding the minivan’s title history from evidence, the trial court abused its discretion as set forth in Oldaker, supra. Point granted.

III. Morehouse’s Failure to Prove Damages

In fraud cases, the courts of this state are committed to the benefit of the bargain rale as a method of arriving at damages. Heberer v. Shell Oil Co., 744 S.W.2d 441, 443 (Mo.banc 1988). Applied to a transaction involving the sale of an automobile, it allows the defrauded party to be awarded the difference between the actual value of the property and what its value,would have been if it had been as represented. Auffenberg v. Hafley, 457 S.W.2d 929, 937 (Mo.App.1970). Applying that rule to the present case, Morehouse, if successful in her claim, would be entitled to the difference in the value of the van as represented by Behlmann and the actual value of the van when she purchased it.

The value of the minivan as represented on the date of sale was its sale price of $10,400. Morehouse, however, failed to present evidence of the actual value of the minivan on the date of purchase even though Morehouse or David Dyer, her expert witness, could have testified to that. See Auffenberg, 457 S.W.2d at 937 and Grabinski, 136 F.3d at 570. Neither did so.

Morehouse, however, did present evidence of damages that is not dependent on the value of the minivan. Morehouse presented several repair invoices into evidence. These invoices showed that she paid a $75 deductible on two different occasions and the rental car cost of $349.14. Had the minivan been as Behlmann represented it, Morehouse would not have had to incur those costs. Morehouse’s oversight in failing to prove the vehicle’s actual value does not eliminate this evidence of actual damages caused by Behlmann’s alleged misrepresentation.

Morehouse proved sufficient damages to submit to the jury the common law fraud and Merchandising Practices Act claims. Point granted.

IV. The Breach of Contract Claim

Morehouse contends that the trial court erred in finding for Universal because she failed to make a submissible case that the engine failure was covered by the warranty. The warranty obligated Universal to “repair or replace any part necessary to remedy a mechanical breakdown and cover the cost of related labor” (emphasis omitted). “Mechanical breakdown” is defined in the policy as the “failure of a covered part because of a mechanical defect or faulty workmanship by the manufacturer which renders the covered part incapable of performing the function for which it was designed” (emphasis omitted).

Mr. Dyer testified that the failure of the engine was caused by oil turning into sludge and thereby becoming incapable of lubricating the engine. When asked what can cause the oil to turn to sludge, he stated “[n]ot changing [the oil] is about the only way you can get sludge in [the engine], Or extreme heat.”-

Morehouse thereby submitted evidence that the engine failure was caused by oil sludge, which in turn was caused by either a failure to change the oil or extreme heat. Morehouse also submitted evidence that she had the oil and filter changed seven times in the seventeen months in which the minivan had been driven 23,000 miles. Viewing the evidence and inferences most favorable to Morehouse, as our standard of review compels us, Morehouse submitted evidence eliminating the failure to change the oil as a cause for the oil sludge and leaving extreme heat as a possible cause for the engine’s breakdown. This evidence is bolstered by Morehouse’s continuing complaint to Behlmann that the engine was running hot. It is also supported by the evidence that Tony’s Auto Repair worked on the vehicle to fix an overheating problem before Morehouse took possession of it.

Had the jury been permitted to do so, it could have reasonably concluded that the oil sludge was caused by extreme heat which in turn could have been caused by a failure of a covered part because of a mechanical defect or faulty workmanship. Morehouse submitted sufficient evidence that the engine’s failure was covered by the warranty. The trial court erred in finding otherwise. Point granted.

Morehouse also argues that the trial court erred in finding that she failed to submit evidence of damages on the breach of contract claim. Damages for breach of contract are also measured by the benefit of the bargain rule. Dierkes v. Blue Cross and Blue Shield of Missouri, 991 S.W.2d 662, 669 (Mo.1999). In the breach of contract setting, damages are the amount which will compensate the injured person for the loss which a fulfillment of the contract would have prevented. Boten v. Brecklein, 452 S.W.2d 86, 93 (Mo.1970). Compensation is the value of the performance of the contract. The person injured is to be placed in the position she would have been in had the contract been performed. Id. In our case, More-house is claiming that Universal and Behl-mann breached the warranty contract by failing to repair the vehicle once the engine seized. Consequently, to establish damages under the benefit of the bargain rule, a plaintiff should present evidence showing the difference between the value of the vehicle with the damaged part and the cost of replacing that part. More-house failed to present any evidence of this land.

Morehouse, however, did submit evidence that she incurred losses as a direct result of Universal’s breach of contract. After the minivan’s engine seized, Morehouse rented a car from Behlmann. Pursuant to the warranty, Universal covered the cost of the rental car for eleven days. Morehouse paid $349.14 for the use of the car beyond the eleven days covered by the warranty. It can be inferred that if Universal had paid for the minivan’s repair, Morehouse would not have needed to rent the vehicle beyond those eleven days. The value of performance of the warranty contract, therefore, includes Morehouse’s incurred rental car costs. Therefore, Morehouse submitted evidence of actual damages caused by Universal’s alleged breach of contract, and the trial court erred in finding otherwise.

Ordinarily, in contract cases, proof of the contract and its breach gives rise to nominal damages and, thus, a submissible case is made regardless of the failure to prove actual damages. Gee v. Payne, 939 S.W.2d 383, 387 (Mo.App. W.D.1997). Morehouse, however, failed to raise this issue on appeal, so we decline to reach it.

The trial court erred in finding that Morehouse failed to make a submissible case against Universal on the breach of contract claim. Point granted.

V. The Breach of Contract Claim Against Behlmann

Morehouse contends that the trial court erred in sustaining Behlmann’s motion for a directed verdict with regard to the breach of contract claim. Rule 78.07 requires that all allegations of trial error must be raised in a motion for new trial to be preserved for appellate review. Rule 78.07; Webb v. Missouri Highway and Transp. Co., 947 S.W.2d 490, 491 (Mo.App. E.D.1997). Rule 78.07 is applicable when directed verdicts are entered in jury-tried cases. Brouk v. Brueggeate, 849 S.W.2d 699, 702 (Mo.App. E.D.1993). An erroneously directed verdict is an error which must be raised in a motion for new trial to be preserved for appellate review. Id.

In this case, the trial court sustained both Universal’s and Behlmann’s motion for a directed verdict on the breach of contract claim. In her motion for new trial, however, Morehouse alleged that the trial court erred in sustaining Universal’s motion for a directed verdict on the breach of contract claim but did not allege that the trial court erred in sustaining Behl-mann’s motion for a directed verdict on the breach of contract claim. Therefore, this issue is not preserved for appellate review.

Conclusion

The portion of the trial court’s order sustaining Behlmann’s motion for directed verdict on the common law fraud claim and the Merchandising Practices Act claim is reversed. The portion of the order sustaining Universal’s motions for directed verdict on the breach of contract claim is also reversed. The portion of the order sustaining Behlmann’s motion for a directed verdict on the breach of contract claim is affirmed. This case is remanded for further proceedings consistent with this opinion.

GARY M. GAERTNER, P.J. and PAUL J. SIMON, J., concur.


author: PER CURIAM.

text:
    Carl ANDERSON, Appellant, v. STATE of Missouri, Respondent.
    No. ED 76043.
    Missouri Court of Appeals, Eastern District, Division One.
    Aug. 15, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 25, 2000.
    Application for Transfer Denied Dec. 5, 2000.
    Dave Hemingway, Asst. Sp. Public Defender, St. Louis, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Asst. Atty. Gen., Jefferson City, for Respondent.
    Before GARY M. GAERTNER, P.J. and PAUL J. SIMON and JAMES R. DOWD, JJ.
   ORDER

PER CURIAM.

Carl Anderson, defendant, appeals the judgment denying his Rule 29.15 motion for post-eonviction relief after a hearing. We have reviewed the briefs of the parties and the record on appeal and conclude the trial court’s determination is not clearly erroneous. Rule 29.15(k). An extended opinion would have no precedential value. We have, however, provided a memorandum for the use of the parties only setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


author: PAUL J. SIMON, Judge.

text:
    In the Interest of D.L.M., a minor child.
    No. ED 76545.
    Missouri Court of Appeals, Eastern District, Division One.
    Aug. 15, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 25, 2000.
    Application for Transfer Denied Dec. 5, 2000.

      Leigh Joy Carson, Clayton, for Appellant.
    Cynthia Harcourt-Hearring, Margaret Donnelly, Guardian ad Litem, Clayton, for Respondent.
   PAUL J. SIMON, Judge.

Mother appeals the judgment of the trial court terminating her parental rights to D.L.M., her minor child. On appeal, mother essentially contends that the trial court erred in: 1) that its judgment was against the weight of the evidence because insufficient evidence was presented to support a finding by clear, cogent and convincing evidence that grounds for termination existed under either Section 211.447.4(2) RSMo 1994 (all further references herein shall be to RSMo 1994, unless otherwise noted) or Section 211.447.4(3); 2) its determination that it was in the best interests of D.L.M. for mother’s parental rights to be terminated pursuant to Section 211.447.6; and 8) failing to allow evidence concerning an alleged alteration of Division of Family Services Records by case manager John Carthan. Father did not respond and did not appeal the termination of his parental rights. We reverse judgment as to mother only and affirm the judgment in all other respects.

D.L.M., a female child born out of wedlock on October 1, 1991, has been under the jurisdiction of the Family Court since March 22, 1993. On February 17, 1993, Juvenile Officer Raymond J. Grush filed a petition in the Circuit Court of St. Charles County Missouri, alleging:

Pursuant to Section 211.031 RSMo, [D.L.M.] is in need of the care and treatment of this Court in that on or about January 25, 1993 in Saint Charles County, Missouri the juvenile was otherwise without proper care, custody or support in that the natural mother legally responsible for the care, custody and support of said juvenile was taken into protective custody due to her mental state and admitted into Malcolm Bliss State Hospital and the natural mother was otherwise unable to provide proper care, custody or support for said juvenile and could not recommend a suitable custodian for the juvenile in violation of Section 211.031.1(l)(b) RSMo, which is contrary to and in violation of the Juvenile Code.

Following a transfer of jurisdiction to the Family Court of St. Louis County, the judge entered Judgment on March 20, 1993, finding the allegations alleged in the petition to be true. On June 22, 1993, a dispositional hearing was held and custody of D.L.M. was placed with the Division of Family Services (“DFS”). Mother was given visitation rights subject to arrangement and approval by DFS and until January 3, 1997, D.L.M. resided with foster parents.

In July of 1995, mother commenced litigation against John Carthan, a case manager at Larson & Associates. Mother alleged that Mr. Carthan had blackmailed her into performing sexual acts for him and following orders from him by threatening to take away mother’s housing and her daughter, D.L.M. She alleged that, in order to fulfill this threat, Mr. Carthan “hotlined” her several times. She filed an action against Mr. Carthan and it was settled prior to jury deliberations for $1,000,000.00. Mother also filed an action against her therapist for the therapist’s alleged failure to believe mother’s reports of Mr. Carthan’s mistreatment. That case was settled for $165,000.00.

On March 3, 1996, the judge ruled that the allegations filed in prior petition to terminate the parental rights of mother were not proven by clear, cogent and convincing evidence and dismissed the petition. Following a review hearing, the Court continued its jurisdiction over D.L.M. and she remained in foster care.

On January 3, 1997, mother was granted physical custody of D.L.M. as a result of her substantial compliance with a DFS service plan. Mother was ordered to continue to receive psychiatric care and to take her medication as prescribed.

On March 6, 1997, mother had to be hospitalized for her mental illness, schizophrenia, as a result of her failure to take her medications. Mother had been delusional and hallucinating.. D.L.M. was placed briefly in the custody of her maternal grandmother and then returned to mother.

On February 20, 1998, D.L.M. was removed from mother’s home following mother’s admission of using cocaine on several occasions between November 27, 1997 and February 15, 1998, her failure to take her psychiatric medications, and an assault at her residence in both January and February of 1998. D.L.M. stayed with her maternal grandmother. On April 20, 1998, the family court placed D.L.M. in the physical custody of D.L.M.’s foster parents, with whom she remained through the 1999 trial which is the subject of this appeal.

Mother entered into another service plan on August 20, 1998. On September 16, 1998, mother was ordered to pay support and maintenance for D.L.M. in the amount of $300.00 per month and she complied.

From December 8 through December 18, 1998, mother was hospitalized once more. Once again, she had failed to take her medication and was delusional and hallucinating. She notified her caseworker, and checked herself into the hospital.

A petition to terminate mother’s parental rights was filed on December 17, 1998. At that time, D.L.M. was under the jurisdiction of the family court pursuant to a series of orders originating in 1993. The allegations of the petition were that (a) D.L.M. had been adjudicated abused or neglected by the family court on June 22, 1993; (b) D.L.M. had been under the jurisdiction of the family court on a continuous basis for more than a year, the conditions that led to the assumption of jurisdiction still existed, and conditions of a potentially harmful nature existed such that there was little likelihood that the conditions could be remedied at an early date so that D.L.M. could be returned to the mother in the near future; and (c) the continuation of the parent-child relationship greatly diminished D.L.M.’s prospects for early integration into a stable and permanent home.

Based on the evidence adduced at the hearing, the trial court entered a judgment terminating mother’s and father’s parental rights pursuant to Section 211.447. The trial court made extensive findings of fact and conclusions of law finding that there was clear, cogent and convincing evidence that: mother suffered from an irreversible mental condition which, during periods of “decompensation,” rendered her unable to knowingly provide D.L.M. with necessary care, custody and control; mother suffered from a chemical dependency but that said dependency did not prevent her from providing D.L.M. with necessary care, custody, and control; there was no evidence of any severe or recurrent acts of physical, emotional or sexual abuse toward the child; and mother repeatedly and continuously failed, although physically and financially able, to provide D.L.M. with adequate food, clothing, shelter or other care and control necessary for D.L.M.’s physical, mental or emotional health and development with the exception of the period of time that D.L.M. was placed in the custody of mother and the period of time following the entry of the financial order on September 16,1998. The court further found that D.L.M. had been continuously under the jurisdiction of the family court since March 22,1993, for a period of over one year, and that the continuation of the parent/child relationship greatly diminished the child’s prospects of early integration into a stable and permanent home. Finally, the trial court determined that: D.L.M. had significant emotional ties to mother, but continuation of said ties would deprive the child of the permanency she deserved; mother maintained regular visits or other contacts with D.L.M., but that said visitation and contact failed to result in permanent reunification between mother and D.L.M.; mother contributed to the costs of care and maintenance for the child following the entry of the financial order on September 16, 1998 and during the period the child was in mother's custody, but mother failed to otherwise contribute to said costs; there was reasonable cause to believe that additional services were unlikely to bring a lasting adjustment by mother so as to return the child to her within an ascertainable period of time; mother, although interested in the child, lacked the ability to adequately commit to the child such that reunification on a permanent basis could be achieved; and, finally, it was in the best interests and welfare of D.L.M. that the parental rights of mother be terminated. D.L.M.’s father failed to appear and/or to file a responsive pleading. Mother’s Motion to Alter and for Stay of Termination of Parental Rights was denied.

In a termination of parental rights proceeding, the judgment of the trial court shall be affirmed unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. In the Interest of F.N.M., 951 S.W.2d 702, 703 (Mo.App. E.D.1997). We defer to the trial court’s assessment of the credibility of the witnesses and examine all facts in the light most favorable to the trial court’s judgment. Id.

Prior to terminating the rights of a parent, there must be clear, cogent, and convincing evidence that one or more of the grounds set forth in Sections 211.447.2, 211.447.3, or 211.447.4, exists. Section 211.447.5. Id at 705. Although reunification of the family is the desired outcome of DPS involvement, the primary concern in any termination ease is the best interest of the child. Id. at 706. Such clear, cogent, and convincing evidence must instantly tilt the scale in the affirmative when weighed against the evidence in opposition and leave the fact finder’s mind -with an abiding conviction that the evidence is true. In Re Adoption of W.B.L., 681 S.W.2d, 452, 454 (Mo. banc 1984). The statutes are to be strictly construed in favor of the natural parents. Id. at 455.

In her first point on appeal, mother contends the trial court erred because its judgment was against the weight of the evidence and contrary to existing law in that pursuant to Section 211.447.4(2) or Section 211.447.4(3); that there was not clear, cogent and convincing evidence to establish that: 1) D.L.M. had been abused or neglected; 2) the conditions that led to the assumption of jurisdiction over D.L.M. or conditions of a potentially harmful nature continued to exist and there was little likelihood that those conditions would be remedied at an early date so that D.L.M. could be returned to mother; or that continuation of the mother-child relationship would greatly diminish D.L.M.’s prospects of integration into a stable and permanent home.

Section 211.447.4(2) provides that a juvenile officer may file a petition to terminate parental rights when it appears that the child has been abused or neglected. Further, it provides that in determining whether to terminate parental rights under this section, the court must consider and make findings on four factors, namely: (a) a mental condition shown to be either permanent or such that there is no reasonable likelihood of its reversal and which renders the parent unable to knowingly provide necessary care, custody and control of the child; (b) a chemical dependency preventing the parent from consistently providing necessary care, custody and control of the child and which cannot be treated to enable such care, custody, and control; (c) a severe act or recurrent acts of physical, emotional or sexual abuse toward the child under circumstances indicating that the parent knew or should have known of such acts; and (d) a repeated or continuous failure by the parent, although able, to provide the child with adequate food, clothing, shelter, or education as defined by law, or other care and control “...necessary for the child’s physical, mental, or emotional health and development.” Section 211.447.4(2)(a), (b), (c) and (d).

As to the first factor, the trial court found that mother suffered from a mental condition which could not be reversed and which rendered her unable to knowingly provide necessary care to her child. In support of this conclusion, the trial court asserted that mother suffered from Schizophrenia, Schizo-Affective Type, and was taking six different medications to control the mental condition. The court stated that the evidence further showed that mother was hospitalized from December 8, 1998, through December 18, 1998, due to a destabilization of her mental condition and a failure to take her medications. The court concluded that, when mother’s mental condition “decompensates,” she is unable to adequately care for her child.

It is not disputed that mother suffers from Schizophrenia, Schizo-Affective type. The psychiatrist testified that schizophrenia is a permanent condition that cannot be eliminated, saying “It can be controlled or - managed or controlled but you cannot get rid of it. There’s no cure.”

Both the doctor and Pamela Leeper, a social worker, testified that mother was on the medications Loxitane and Risperdal, which are antipsychotics; Cogentin, to minimize side affects; Valium, for chronic anxiety; Paxil, for depression and Ambien, a hypnotic or sleeping pill. The trial court’s determination that mother was taking these six medications to control her schizophrenia, as was implied in the judgment, is not entirely accurate. In addition to suffering from schizophrenia, mother suffers from depression. Some of the medications taken by mother are for depression. The evidence indicates that mother’s depression stemmed from stress caused by the litigation process. Kathleen Williams, a social worker, testified: “Every time I have dealt with [mother] around the times she’s been depressed the theme and issues have been around the possibility of losing her daughter.” The doctor, when asked why mother was depressed and needed to be placed on antidepressants, stated: “I believe the pressure of the legal problem[s] that were going on besides custody, and there were some other cases that she was fighting, you know, in the courts and depositions, and...the pressure related to [all, I think, has gotten] her depressed.”

The record shows that mother was hospitalized not only from December 8 through December 18, 1998, but also on March 6, 1997. Both hospitalizations resulted from the failure of mother to take her medications and her subsequent destabilization. The doctor testified that at the times mother was hospitalized, her condition was such that she would not have been able to take care of her children. However, the evidence shows that mother voluntarily hospitalized herself on both of these occasions, and that on at least one of these occasions, mother dropped her children off at D.L.M.’s maternal grandmother’s house prior to hospitalizing herself.

Furthermore, the evidence shows that mother has a history of calling for help when facing her mental illness related problems. Barbara Taylor, a social worker, testified that mother voluntarily admitted herself to the hospital on March 6, 1997. Ms. Taylor stated that “...on the phone when she had called she had said something about needing some help, that she didn’t have some of her medications, that they had disappeared from her apartment.” She further stated: “[Mother] called us. [Mother] initiated the phone call to say that she needed some help.”

Pamela Leeper testified that: “Usually if [mother] is having a hard day or a hard time or is feeling an increase - you know, just stress can also increase a person’s symptoms even if they are on medication, so if she was feeling really stressed and her symptoms were going up she has a long history of making that call. She’ll call me, she’ll call my supervisor, she’ll call the therapist, she’ll call family members. She’ll seek help.”

A psychiatrist testified that prior to the March 1997 hospitalization, mother left her children, D.L.M. and T.M., at D.L.M.’s maternal grandmother’s house and then voluntarily hospitalized herself.

The psychiatrist, when asked about mother’s general ability to take care of herself, testified: “If she’s very compliant with the medications she can take good care of herself.”

Mother’s failure to take medication and subsequent hospitalizations occurred two times in six years and, on both of these occasions, mother voluntarily hospitalized herself. “Unlike neglect, abandonment, abuse, or nonsupport, the mental illness of a parent is not per se harmful to a child.” In the Interest of C.P.B., 641 S.W.2d 456, 460 (Mo.App.1982). Termination of parental rights should not be granted on account of mental illness unless it is shown by clear, cogent and convincing evidence that D.L.M. is harmed or is likely to be harmed in the future. Id. The focus should be on the ability of mother to care for D.L.M. and her ability to maintain a parental relationship with D.L.M. which would not be harmful to her. ° The periods during which mother was hospitalized were the periods during which she was unable to care for her children. On at least one occasion, her child was safe with her maternal grandmother. There is no evidence that D.L.M. has been harmed or is likely to be harmed. Section 211.447.2(2)(h) as found in In the Interest of C.P.B. has been amended to provide “mental condition.. .which renders the parent unable to knowingly provide the child the necessary care, custody and control;” See Section 211.447.2(2)(a). Although the wording has been changed the basic purpose and intent of the section is essentially the same as it was formerly written and focuses on the primary concern of our juvenile code, the best interests of the child. We conclude that the trial court’s finding as to the first factor was not supported by clear, cogent, and convincing evidence.

The trial court found that mother suffered from a chemical dependency, but that she successfully completed a substance abuse treatment program in August of 1998 and had participated in and completed one or more substance abuse treatment programs, but that she later relapsed and used cocaine following such treatment. The trial court concluded that: “Said chemical dependency does not presently prevent her from consistently providing the necessary care, custody and control for the child.” As this conclusion is supported by substantial evidence, we agree with the trial court’s determination that mother’s past drug use is presently a non-issue.

Further, we do not disagree with the trial court’s finding that there was no evidence of the commission of any severe or recurrent act of physical, emotional or sexual abuse of D.L.M.

Finally, the trial court determined that mother repeatedly and continuously failed, although physically or financially able, to provide the child with adequate food, clothing, shelter or other care and control necessary for the child’s development, with the exception of the time D.L.M. spent in the physical custody of her mother and following the September 16, 1998 financial order. The trial court further found that the evidence showed that mother provided some clothing and toys for the child.

There is no dispute that mother provided adequate care for D.L.M. when the child resided with her and following the September 16, 1998 financial order, nor that mother purchased some clothing and toys for the child. Mother argues that there is no evidence of her failing to provide food, clothing, or shelter for D.L.M. The record lacks clear, cogent, and convincing evidence to show that the mother failed to pay support for the child. When asked if she knew of the mother’s payment of child support, Julie Fakes responded, in reference to 1998: “To my knowledge she has paid November’s payment through February.” This statement does not clearly indicate that mother failed to support the child at other times.

Section 211.447.4(3) provides that a juvenile officer may file a petition to terminate parental rights when “the child has been under the jurisdiction of the juvenile court for a period of one year, and the court finds that the conditions which led to the assumption of jurisdiction still persist, or conditions of a potentially harmful nature continue to exist, that there is little likelihood that those conditions will be remedied at an early date so that the child can be returned to the parent in the near future, or the continuation of the parent-child relationship greatly diminishes the child’s prospects for early integration into a stable and permanent home.” In making its determination, the trial court is to consider and make findings on four factors, namely: (a) the extent to which the parent has complied with any service plan or plans entered into; (b) the success or failure of the efforts of any agency, division, or officer, to aid the parent on a continuing basis in adjusting his or her circumstances or conduct in order to provide a proper home for the child; (c) a mental condition shown to be permanent or such that there is no reasonable likelihood of its reversal and which renders the parent unable to knowingly provide the child with necessary care; and (d) any chemical dependency preventing the parent from consistently providing the child with necessary care, custody and control and which cannot be treated to enable the parent to consistently provide such care, custody and control.

Since D.L.M. has been continuously under the jurisdiction of the Family Court since March 22, 1993, a period of more than one year, the trial court found that the continuation of the pareni/child relationship greatly diminished D.L.M.’s prospects for early integration into a stable and permanent home.

The trial court concluded that the evidence indicated that between July 25, 1996 and January 3,1997, mother complied with the service plan then in effect to a sufficient degree, which resulted in the return of physical custody of D.L.M. to mother on February 20, 1998. The trial court then stated:

[Mother] relapsed and used cocaine during the time that the child was in her physical custody which resulted in the removal of [D.L.M.] on or about February 20, 1998. The court further finds that between August 18, 1998 through April 28, 1999, [mother] substantially complied with the terms of the service agreement in effect, but that her efforts and those of the [DFS] have proved unsuccessful in providing a continuing relationship between [mother] and [D.L.M.], despite reasonable, continuing and diligent efforts by the [DFS]. The representatives of the [DFS] made reasonable efforts to fulfill their responsibilities under the plan.

The trial court’s determination that mother’s efforts and those of the DFS have proven unsuccessful in providing a continuing relationship between mother and D.L.M. is not supported by substantial evidence. Susan Porter, a self-employed therapist, testified: “I think [D.L.M.] loves her mother and I think [mother] loves her daughter.” Ms. Porter, as well as Kathleen Williams, a social worker, testified that mother was not disinterested in D.L.M. and did not lack commitment to D.L.M. DFS worker Julie Anich testified that mother was interested in D.L.M. Pamela Leeper answered affirmatively when asked if mother had significant emotional ties to D.L.M. D.L.M.’s foster mother, when asked if D.L.M. expressed good feelings about visits with mother, responded: “I think she looked forward to her visits with [mother].” CASA representative, Roxanne Putney, testified: . .the interaction between [D.L.M.] and [mother] is very good.” When asked if the two were bonded to each other, Ms. Putney responded: “Absolutely.” When asked if D.L.M. would be best served by remaining with mother, Dr. Wolfgram, a psychiatrist, responded: “I’m of that opinion.” The foregoing testimony, coupled with the trial court’s finding that mother complied with the terms of the service plans, support the conclusion that there has, in fact, been a continuing and close relationship between mother and D.L.M.

Mother has made repeated efforts to regain custody of her daughter, has complied with the DFS service plans, and has a strong bond with her daughter. The trial court’s decision to terminate mother’s parental rights is not supported by clear, cogent and convincing evidence. As a result of our disposition of point one, we need not address points two and three.

Judgment reversed as to mother only and judgment affirmed in all other respects.

GARY M. GAERTNER, P.J. and JAMES R. DOWD, J., concur.


text:
    STATE of Missouri, Respondent, v. Jerome OWENS, Appellant.
    No. ED 76528.
    Missouri Court of Appeals, Eastern District, Division Two.
    Aug. 15, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 2, 2000.
    Application for Transfer Denied Dec. 5, 2000.
    S. Paige Canfield, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Andrea L. Mazza, Asst. Atty. Gen., Jefferson City, for respondent.
    Before CLIFFORD H. AHRENS, P.J., WILLIAM H. CRANDALL, Jr., J., and JAMES R. DOWD, J.
   ORDER

PER CURIAM.

Defendant, Jerome Owens, appeals from the judgment of conviction, after a jury trial, for murder in the first degree, assault in the first degree, and two counts of armed criminal action. He was sentenced to life without parole on the murder conviction, thirty years on the first count of armed criminal action to be served concurrent with the sentence imposed on the murder conviction, fifteen years on the first degree assault conviction to be served consecutive to the sentences imposed for the murder in the first degree and first aimed criminal action convictions, and fifteen years on the second count of armed criminal action to be served concurrent with the sentences imposed on all other counts.

We have reviewed the record on appeal. An extended opinion would serve no jurisprudential purpose. We affirm. Rule 30.25(b).


text:
    Jeffrey Scott NEW, Appellant, v. STATE of Missouri, Respondent.
    No. ED 76629.
    Missouri Court of Appeals, Eastern District, Division Two.
    Aug. 15, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 2, 2000.
    Application for Transfer Denied Dec. 5, 2000.
    Dave Hemingway, Asst. Sp. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Susan K. Glass, Asst. Atty. Gen., Jefferson City, for respondent.
    Before: CLIFFORD H. AHRENS, P.J., WILLIAM H. CRANDALL Jr., J., and JAMES R. DOWD, J.
   ORDER

PER CURIAM.

Appellant Jeffrey Scott New appeals from the denial of appellant’s motion to vacate, set aside or correct judgment and sentence filed pursuant to Rule 29.15. Appellant was convicted and sentenced to thirty years imprisonment for burglary, life imprisonment for assault, and five years imprisonment for armed criminal action. We have examined the briefs and the record on appeal and find no error of law. An extended opinion reciting the detailed facts and restating the principles of law would serve no precedential or jurisprudential value. The judgment is affirmed in accordance with Rule 84.16(b).