author: MARY K. HOFF, Judge.

text:
    Richard R. WELCH, Petitioner/Respondent, v. Lynda C. WATTS, f/k/a Lynda C. Welch, Respondent/Appellant.
    No. ED 92136.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 22, 2009.
    Lynda C. Watts, Frankford, MO, pro se.
    Richard R. Welch, Frankford, MO, pro se.
   OPINION

MARY K. HOFF, Judge.

Lynda Cleek Watts, formerly known as Welch, (Wife) appeals from the trial court’s order denying Wife’s motion to set aside judgment of dissolution entered in favor of Richard Welch (Husband). We dismiss the appeal without prejudice for lack of jurisdiction because the trial court’s order is not denominated a judgment and, thus, is not a final, appealable judgment.

Factual and Procedural History

Although we need not engage in a detailed recitation of the facts, the record reveals the following procedural background relevant to our disposition of the case.

Husband and Wife were married on May 21, 2005. No children were born of the marriage. The parties separated in September 2006, and Husband filed his Petition for Dissolution of Marriage on December 26, 2007. Wife filed her responsive pleading and counter petition on March 27, 2008. After subsequent pleadings were filed, the trial court scheduled a date for the pre-trial conference and a date for the hearing on the petitions for dissolution.

Prior to the pre-trial conference, Wife filed a motion for attorney fees alleging that she was without sufficient income and resources to retain an attorney and that Husband should be ordered to pay the preliminary costs to allow Wife to either maintain or defend the proceeding. Wife filed a notice of hearing on her motion for attorney fees for June 30, 2008. However, on June 27, 2008, Wife requested a continuance of the hearing on the motion for attorney fees due to a sudden death in her family. Wife, who was an attorney but was not represented by counsel, discussed the matter with Husband’s attorney over the telephone. Husband’s attorney agreed to the continuance of the hearing on the motion for attorney fees. No requests for a continuance of the hearing on the petitions for dissolution were filed.

On September 4, 2008, the trial court called and heard the parties’ petitions for dissolution. Husband appeared in person and by his attorney of record, but Wife, although duly summoned, did not appear. The trial court thereafter reviewed the pleadings and received evidence. Husband made recommendations regarding the awards of separate property, the division of marital assets, and the allocation of marital debt. The trial court found Husband’s recommendations to be fair, reasonable, and not unconscionable under the circumstances. The trial court found no reasonable likelihood that the marriage of the parties could be preserved and, therefore, found the marriage to be irretrievably broken. On September 5, 2008, the trial court entered judgment dissolving the parties’ marriage, awarding each party his or her separate property, dividing the marital property, allocating the marital debts, restoring Wife’s former name, and taxing costs of the action to Husband.

Wife later filed a Motion to Set Aside Judgment. After a hearing on her motion in which evidence was adduced, the trial court took the matter under submission and subsequently entered its order denying Wife’s motion. This appeal follows.

Discussion

Wife asserts five points on appeal. All five points allege various reasons the trial court erred in denying Wife’s Motion to Set Aside the dissolution judgment. However, before addressing the merits of any appeal, this Court must determine whether it has jurisdiction to entertain the appeal. Guy v. Thomas, 157 S.W.3d 328, 329 (Mo.App. E.D.2005). If we lack jurisdiction, we will dismiss the appeal. Id. “To invoke this Court’s jurisdiction, parties must appeal a written decree or order which has been signed by the trial judge and denominated a ‘judgment.’” Id., quoting Jon E. Fuhrer Co. v. Gerhardt, 955 S.W.2d 212, 213 (Mo.App. E.D.1997); Rule 74.01(a). In so designating the writing, it must be clear to us from the writing that the trial court called the document or docket sheet entry a judgment. Guy, 157 S.W.3d at 329, citing City of St. Louis v. Hughes, 950 S.W.2d 850, 853 (Mo. banc 1997).

Here, the trial court’s order denying Wife’s Motion to Set Aside Judgment was not denominated a “judgment.” The trial court’s docket entry of the order is likewise not denominated a “judgment.” Moreover, the record contains no other document or any reference to another document that may be denominated a “judgment.” Thus, this Court lacks jurisdiction to review the appeal. Guy, 157 S.W.3d at 329.

Conclusion

The appeal is dismissed without prejudice for lack of a final, appealable judgment.

GLENN A. NORTON, Presiding Judge, and LAWRENCE E. MOONEY, Judge, concur.

      . The record indicates that the motion to set aside judgment was initially entitled "Motion to Set Aside Default Judgment of Dissolution of Marriage.” However, at the hearing on the motion, the trial court allowed Wife to amend the motion by interlineation to "Motion to Set Aside Judgment,” pursuant to Rule 74.06, to reflect the fact that no default judgment had been entered against her.

      . This Court granted Wife’s motion for late notice of appeal.


source: Caselaw Access Project

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

license: Public Domain

text:
    Diane HACKMANN, Appellant, v. MISSOURI AMERICAN WATER COMPANY, Respondent.
    No. ED 92806.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 8, 2009.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 21, 2010.

      Jane C. Hogan, St. Louis, MO, for Appellant.
    Kurt A. Hentz, St. Louis, MO, for Respondent.
   ROBERT G. DOWD, JR., Judge.

Dianne Hackmann (“Mrs. Hackmann”) appeals from the trial court’s grant of summary judgment in favor of Missouri American Water Company (“Water Company”) on her claim of negligence against Water Company for personal injuries sustained by Mrs. Hackmann. Mrs. Hackmann contends the trial court erred in granting summary judgment on her claim for negligence. We reverse and remand.

On December 19, 2000, a water main located on Meppen Court broke causing water to flow onto the property of Mrs. Hackmann and her husband, Donald Hack-mann (“Mr. Hackmann”) (collectively referred to as “the Hackmanns”), located at 21 Meppen Court. The Hackmanns informed Water Company of the water leak. Water Company did not immediately shut off the water flow after being informed of the leak. The water eventually froze on their driveway, approximately two inches deep. The following day, on December 20, 2000, Water Company repaired the broken water main.

Approximately one week after the water main break, after the Hackmanns had removed the ice, they noticed the concrete slabs of the driveway had heaved and shifted. Mrs. Hackmann estimated that the concrete slabs were raised approximately two-and-a-half to three inches at the point they met the garage and one inch on their sides.

On January 11, 2001, a slight amount of precipitation occurred causing snow or ice to accumulate on the driveway. Mrs. Hackmann walked down the driveway to retrieve the mail. On her way back to the house, Mrs. Hackmann slipped on a portion of the driveway that was alleged to have heaved or shifted, sustaining injuries.

On February 15, 2008, the Hackmanns filed their action against Water Company seeking to recover for damage caused to their property in Count I and for Mrs. Hackmann’s personal injuries in Count II. Water Company subsequently filed a motion for partial summary judgment as to Mrs. Hackmann’s claim for personal injuries in Count II. In its motion for summary judgment, Water Company asserted that it had no duty to protect Mrs. Hack-mann from her injuries. Thereafter, the trial court granted Water Company’s motion for pai’tial summary judgment as to Count II. After agreement by the parties, Count I of the Hackmanns’ petition was dismissed with prejudice. This appeal follows.

In her sole point, Mrs. Haekmann contends the trial court erred in granting summary judgment on her claim for negligence because Water Company owed Mrs. Haekmann a duty and there are genuine issues of material fact remaining in the case. We agree.

Our review of the grant of summary judgment is essentially de novo. ITT Commercial Finance Corp. v. Mid-America. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). When considering appeals from summary judgments, we review the record in the light most favorable to the party against whom judgment was entered and we accord the non-movant the benefit of all reasonable inferences from the record. Id. We will uphold the grant of summary judgment if the movant is entitled to judgment as a matter of law and if no genuine issues of material fact exist. Id. Summary judgment is frequently inappropriate in a negligence case particularly where the issue is whether there are facts upon which the trier of fact could find a breach of an admitted or otherwise established duty. Lumbermens Mut. Cas. Co. v. Thornton, 92 S.W.3d 259, 263 (Mo.App. W.D.2002)(citing O.L v. R.L., 62 S.W.3d 469, 473 (Mo.App. W.D.2001)).

In any action for negligence, the plaintiff must establish that the defendant had a duty to protect the plaintiff from injury, the defendant failed to perform that duty, and the defendant’s failure proximately caused injury to the plaintiff. L.A.C. ex rel. D.C. v. Ward Parkway Shopping Center Co., L.P., 75 S.W.3d 247, 257 (Mo. banc 2002). Whether a duty exists is purely a question of law. Id. A legal duty owed by one to another may arise from at least three sources: (1) it may be prescribed by the legislative branch; (2) it may arise because the law imposes a duty based on the relationship between the parties or because under a particular set of circumstances an actor must exercise due care to avoid foreseeable injury; or (3) it may arise because a party has assumed a duty by contract or agreement whether written or oral. Cupp v. National R.R. Passenger Corp., 138 S.W.3d 766, 771 (Mo.App. E.D.2004)(citing Lumbermens Mut. Cas. Co., 92 S.W.3d at 263). While the issue of whether a duty exists is a question for the court, conclusions about the particular facts of the case are an issue for the jury. Lumbermens Mut. Cas. Co., 92 S.W.3d at 267.

Where there is a general duty to exercise some type of care the next question is whether the defendant should or should not have acted in a particular way or refrained from acting. Lumbermens Mut. Cas. Co., 92 S.W.3d at 267. This analysis is evaluated based on the facts of the case and this determination is an issue for the jury. Id.

Here, Water Company has a duty to control the water flowing through and from its water main. See Long v. Spanish Lake Service, Inc., 507 S.W.2d 935 (Mo.App. E.D.1974); Adam Hat Stores v. Kansas City, 316 S.W.2d 594 (Mo.1958). The other issues raised in this case do not deal with the question of duty as a matter of law, but instead go to breach of that duty. “[Wjhether the duty that exists has been breached is a question of fact for exclusive resolution for the jury.” Id. at 266.

The trial court erred in granting summary judgment in favor of Water Company on the grounds that there was no duty on the part of Water Company as a matter of law. Mrs. Hackmann’s point is granted.

The judgment is reversed and the cause is remanded.

SHERRI B. SULLIVAN, P.J., and PATRICIA L. COHEN, J, concur.

      . The Hackmanns filed their original lawsuit against Water Company on November 23, 2005 in which they sought to recover damages caused to their property as well as for Mrs. Hackmann's personal injuries. Thereafter, Water Company filed a motion for partial summary judgment as to Mrs. Hackmann's personal injury claim. The Hackmanns subsequently voluntarily dismissed their lawsuit on February 20, 2007.

      . Water Company filed a motion to strike portions of the legal file that was taken with the case. Any portions of the legal file that were not properly before the trial court prior to his ruling on Water Company's motion for summary judgment are stricken. Water Company’s motion is granted.

      . Water Company essentially concedes this duty and stated in its brief that it "does not dispute that such a duty may exist.”


author: PER CURIAM.

text:
    Derrill PORTELL, Employee/Appellant, v. GKN AEROSPACE, Employer/Respondent, and Treasurer of Missouri, As Custodian of Second Injury Fund, Respondent/Additional Party.
    No. ED 93454.
    Missouri Court of Appeals, Eastern District, Division Five.
    Feb. 23, 2010.
    Christopher A. Wagner, St. Louis, MO, for Appellant.
    Kenneth D. Alexander, Matthew D. Leonard, St. Louis, MO, for Respondent.
    Before KENNETH M. ROMINES, C.J., ROY L. RICHTER, J., and GARY M. GAERTNER, JR., J.
   ORDER

PER CURIAM.

Derril Portell (“Portell”) appeals the Labor and Industrial Relations Commission’s (“the Commission”) decision which awarded Portell permanent partial disability benefits for only 6% binaural hearing loss, and denied Portell’s claim for permanent total disability benefits against the Second Injury Fund (“SIF”).

We have reviewed the briefs of the parties and the record on appeal and find no error of law.

The judgment is affirmed pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Antonio Lamont WEBB, Appellant.
    No. WD 69746.
    Missouri Court of Appeals, Western District.
    March 16, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 27, 2010.
    S. Kate Webber, Esq., Kansas City, MO, for appellant.

      Shaun J. Mackelprang, Esq., and Richard Starnes, Esq., Jefferson City, MO, for respondent.
    BEFORE DIVISION ONE: LISA WHITE HARDWICK, Presiding Judge, JAMES M. SMART, JR. and ALOK AHUJA, Judges.
   Order

PER CURIAM.

Antonio Webb was convicted by jury of second-degree murder and armed criminal action. On appeal, Webb contends the circuit court erred in overruling his Batson challenges to the State’s peremptory strikes to remove three venirepersons and in overruling his motion to strike another venireperson from the jury panel. For reasons explained in a Memorandum provided to the parties, we find no error and affirm the judgment of convictions.

AFFIRMED. Rule 30.25(b).


author: PER CURIAM:

text:
    Edna BACKER, Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondent.
    No. WD 70890.
    Missouri Court of Appeals, Western District.
    March 23, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 27, 2010.
    Edna Backer, Fulton, MO, Appellant, pro se.
    Ninion S. Riley, Jefferson City, MO, Attorney for Respondent.
    Before Division III: JAMES EDWARD WELSH, Presiding Judge, and MARK D. PFEIFFER and KAREN KING MITCHELL, Judges.
   Order

PER CURIAM:

Edna Backer appeals the Labor and Industrial Relations Commission’s (“Commission”) order affirming the denial of her claim for unemployment benefits. Backer contends that the Commission erred in affirming the denial of her benefits, essentially because she disagrees that her actions constituted insubordination to her supervisor. We affirm. Rule 84.16(b).


author: GARY M. GAERTNER, JR., Judge. KURT S. ODENWALD, Judge,

text:
    Susana SULLINS, Appellant, v. John R. KNIERIM, Respondent.
    No. ED 92849.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 23, 2010.

      Aaron S. Dubin, Michael J. Payne, Clayton, MO, for appellant.

      Mary Ann Weems, Clayton, MO, for respondent.
   GARY M. GAERTNER, JR., Judge.

Introduction

Appellant Susana Sullins (Mother) appeals from the trial court’s Findings of Fact, Conclusions of Law and Judgment (Judgment), which declared the parties’ daughter (Daughter) emancipated, determined that John Knierim (Father) was not obligated to contribute to certain past expenses for Daughter, and denied Mother’s request for attorney’s fees. Mother asserts five points on appeal: (1) the trial court erred in finding Daughter emancipated because substantial uncontroverted evidence demonstrated that Daughter was “mentally and vocationally incapacitated” from supporting herself under Section 452.340.4, RSMo, entitling Mother to continued child support; (2) the court erred, abused its discretion, and misapplied Section 452.340.5, because the uncontroverted evidence demonstrated that Daughter had been diagnosed with a developmental disability, as defined in Section 630.005, or had a diagnosed health problem that limited her ability to carry the requisite number of credit hours per semester; (3) the court improperly relied on excluded evidence and misapplied Section 452.340.5 in that failure to comply with notice requirements does not emancipate a minor child; (4) the court erred in denying Mother’s request for retroactive modification of the child support amount; and (5) the court erred in denying Mother’s request for attorney’s fees. We affirm in part and reverse in part, and we remand for further proceedings in accordance with this opinion.

Background

The parties’ marriage was dissolved in 1996. The dissolution judgment awarded Mother primary legal and physical custody and ordered Father to pay $571.96 per month for support of the two children born of the marriage: a son (Son), born in 1984 and emancipated in 2003, and Daughter, born on April 6, 1988. The dissolution judgment ordered that the parties “shall confer” with each other on decisions affecting the children’s education, including special tutoring; and that the parties would be bound by the recommendations of the children’s school regarding the need for, inter alia, special tutoring. The judgment did not provide for payment of college expenses. The judgment also failed to provide for reduced payments for one child upon Son’s emancipation; and in 2004, Father filed an amended motion to modify the child support amount in light of Son’s emancipation. In 2005, Mother filed a counter-motion to determine Father’s liability for, inter alia, tutoring expenses incurred for Daughter through Sylvan Learning Center (Sylvan).

In 2006, Mother filed a counter-motion to modify the judgment of modification requesting the court (1) to extend Father’s child support obligation after Daughter reached the statutory age of majority, because she was physically or mentally incapacitated from supporting herself, unmarried, and insolvent; (2) to increase the child support amount in accordance with the Guidelines, retroactive to the date of filing; and (3) to order Father to contribute to post-secondary or vocational training expenses. In June 2008, Father filed a second amended motion to modify seeking to declare Daughter emancipated, because although she had been enrolled in Jefferson College beginning in the Fall of 2007, she had not been taking the required number of credit hours. Both parties sought reasonable attorneys’ fees from the other.

At a November 2008 hearing, the following evidence was adduced. Kevan Rzeppa (Rzeppa), a licensed professional counselor employed by the Missouri Department of Elementary and Secondary Education, Department of Vocational Rehabilitation (MDVR), testified that in 2007, Daughter applied for and was granted vocational services at the Priority II level, which is the category assigned to “eligible individuals] with a significant disability.” MDVR defines a significant disability as one that seriously limits one or more functional capabilities in terms of an employment outcome, and that can be expected to require multiple vocational rehabilitative services over an extended period of time. Rzeppa determined from Daughter’s records that Daughter had borderline intellectual functioning with maladaptive behaviors, which seriously limited her functional capabilities in the category of work skills, specifically in the areas of reading, writing, and comprehending new materials. Rzeppa testified that Daughter’s vocational goal was to be a teacher’s assistant or daycare teacher, and Rzeppa estimated that it would take Daughter until approximately May 2011 to achieve her vocational goals. On cross-examination, Rzeppa stated that she knew of no limitations that would prevent Daughter from working full time.

Daughter’s MDVR file, admitted at trial, included her 2007 Individualized Education Plan (IEP), which noted a 2000 diagnosis of “unspecified disorder of the nervous system” that affected her abilities to read, write, and comprehend material presented in class. The IEP noted that her 2007 Full Scale IQ score of 75 placed Daughter in the borderline range of intelligence, and that she was enrolled in a mix of special education and regular classes. Daughter’s high school Senior Evaluation Report stated her classification as “other health impaired” (OHI), noting her weaknesses in mathematics, written language and reading; but further stated that her deficits did not appear to be caused by, inter alia, “auditory or visual acuity deficits, motor deficits, mental retardation, [or] behavioral/emotional disturbance.”

Daughter’s MDVR file also included a 2008 report entitled “psychoeducational test results and analysis,” noting that the results of her multidisciplinary evaluations were “consistent with one who has borderline intellectual functioning as both [her] FSIQ [was] in the borderline range [and] her WIAT Composite score [was] in the extremely low range.” The report further stated Daughter’s test results supported a diagnosis of language impairment, her language deficits “significantly impacted] her school performance,” and her academic behaviors were “of such frequency, duration, and intensity that they are markedly atypical and a function of [Daughter’s learning disability.”

Sundaye Harrison (Harrison), the disability services coordinator at Jefferson College, testified that Daughter provided documentation of her OHI disability, and was given accommodations in the form of extended time, alternate testing locations, peer tutoring, and reduced course load. She specified that Daughter would only have to maintain one credit hour to be eligible for enrollment.

Harrison further testified that Daughter entered Jefferson College on a scholarship through the A+ Program in 2007. In the 2007 fall semester, Daughter completed five credit hours; she completed twelve credit hours in the 2008 spring semester; and was, at the time of the trial, enrolled in nine credit hours in the 2008 fall semester. Daughter remained in good standing, but because she dropped a class in the 2008 spring semester, she lost her scholarship through the A+ Program.

Father testified that he had not received documentation regarding Daughter’s enrollment in Jefferson College, including transcripts, her class schedule, grades, or costs; except that, upon his request, she twice sent him grades, and Mother sent him two bills, once for books and once for tuition after Daughter lost her A 4- status. He agreed that he had not paid any money towards Daughter’s college expenses. Upon objection by Mother’s counsel, the trial court determined Father could not use this evidence of Daughter’s failure to comply with the statutory notification requirements as a basis for emancipation, because Father had not included this basis for emancipation in his pleadings. Father made an offer of proof.

Regarding child support, Father testified that he was no longer requesting that his child support obligation be reduced, and that he would voluntarily pay child support for Daughter until her twenty-first birthday in April 2009 in the amount ordered by the dissolution judgment. Regarding Sylvan fees, he testified that Mother did not notify him that she had enrolled Daughter in Sylvan until she requested he contribute to the fees. On cross-examination, Father agreed that he attended a 2004 IEP meeting at Daughter’s school, and that he did not make any requests from Jefferson College for information.

Mother testified that she believed Daughter was mentally incapacitated and unable to support herself. Although Daughter had worked part-time since high school, Mother testified that she controlled Daughter’s finances because Daughter had difficulty doing simple mathematics, bounced checks, and incurred very large cell-phone bills. She had not, however, set up a guardianship for Daughter or sought to have her declared incapacitated; nor was Daughter eligible to receive social security or disability benefits. Further, in May 2008, Daughter was admitted for three weeks in an outpatient program at St. Anthony’s for depression and suicidal tendencies.

Regarding Sylvan, Mother agreed that she told Father about Sylvan after Daughter enrolled, but asserted that Father knew of her intention to enroll Daughter before the fact because he attended an IEP meeting in 2004 where a representative from Sylvan was also present, Mother acknowledged, however, that at the 2004 IEP meeting the school did not recommend Daughter get tutoring through Sylvan; rather, Daughter’s teacher stated that free tutoring was available through the school. Mother requested that Father be ordered to pay one-half of (1) the bills from Sylvan, (2) a June 2008 doctor’s bill, (3) co-payments and bills for Daughter’s May 2008 treatment at St. Anthony’s, (4) medication co-payments incurred in 2008, and (5) college expenses from Jefferson College, including books, fees, meal plan, transportation, and tuition incurred after Daughter lost her scholarship.

The trial court instructed the parties to submit Proposed Findings and Conclusions of Law and Judgment. The court adopted Father’s proposed judgment, which determined the following, as relevant. Daughter had been diagnosed with a learning disability for which she received academic accommodations, but she had not been diagnosed with a physical or mental disability. There was insufficient evidence to establish that Daughter qualified for extended support under Section 452.340.4, in that she was not mentally incapacitated from supporting herself. Daughter emancipated on January 31, 2008, because, although attending an institute of higher education, she was not enrolled in nine credit hours per semester and not working 15 hours per week, and she was not diagnosed with a developmental disability as defined in Section 630.005, which would have allowed her to continue receiving support under Section 452.340.5 despite taking fewer than the required number of credit hours. Further, because Daughter did not comply with the notification requirements under Section 452.340.5 by providing Father with official transcripts at the beginning of each semester, Daughter failed to qualify for continued support. Thus, Father’s child support obligations were satisfied. The court noted, however, that Father had agreed to pay the current child support amount until Daughter’s twenty-first birthday. The trial court calculated — pursuant to its own Form 14— Father’s child support obligation to be $561 per month, and denied Mother’s request for a retroactive award.

As to Father’s liability for certain expenses, the court determined (1) Father was not obligated to contribute to Daughter’s accrued college expenses, because the dissolution judgment did not provide for payment of college expenses and Daughter had not complied with the notice requirements of Section 452.340.5; (2) Father was not obligated to contribute to Daughter’s Sylvan costs, because the dissolution judgment required the parties confer with each other on decisions involving special tutoring unless recommended by the school, but Mother did not confer with Father prior to Daughter’s enrollment and the school did not recommend Sylvan; and (3) Father was not obligated to contribute to uncovered, unreimbursed medical expenses incurred after Daughter’s January 2008 emancipation. Last, the court made no award of attorneys’ fees, determining that each party was capable of paying his or her own attorney’s fees.

Mother moved for a new trial, or in the alternative, to amend the judgment. The court denied her motion, but amended the judgment, nunc pro tunc, to eliminate the word “proposed” from the title.

Standard of Review

Our review of a trial court’s order granting a motion for emancipation and termination of child support is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), under which we must affirm the trial court’s judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Kerr v. Kerr, 100 S.W.3d 912, 914 (Mo.App. W.D.2003). Further, we view the evidence in a manner favorable to the judgment and disregard contrary evidence, and we defer to the trial court even if the evidence could support a different conclusion. Wynn v. Wynn, 738 S.W.2d 915, 918 (Mo.App. E.D.1987).

We review for abuse of discretion a trial court’s decision regarding the retroactivity of an award of child support, and a trial court’s decision to award attorneys’ fees. Downard v. Downard, 292 S.W.3d 345, 349-50 (Mo.App. E.D.2009).

Discussion

Point I

In her first point on appeal, Mother contends that the trial court erred in finding Daughter emancipated because substantial uncontroverted evidence demonstrated that Daughter was “mentally and vocationally incapacitated” under Section 452.340.4. Generally, the obligation of a parent to support a child ends at the age of 18. Section 452.340.3(5); Locke v. Locke, 901 S.W.2d 912, 915 (Mo.App. E.D. 1995). Section 452.340.4, however, extends the child support obligation if the child is mentally incapacitated from supporting himself, insolvent, and unmarried. In the present case, there is no dispute that Daughter is unmarried and insolvent, and the only issue is whether Daughter is mentally incapacitated from supporting herself. We conclude that she is not. The evidence of Daughter’s learning disability presented at trial was insufficient to meet the stringent requirements of Section 452.340.4.

The evidence needed to support a finding of mental incapacity is “substantial.” King v. King, 969 S.W.2d 903, 905 (Mo.App. WD.1998). Evidence merely that an adult child has trouble learning does not support a determination of mental incapacity. Harris v. Rattini, 855 S.W.2d 410, 412 (Mo.App. E.D.1993). Mild mental retardation can support a finding of mental incapacity. King, 969 S.W.2d at 906. The facts here, however, show that Daughter’s most recent Full Scale IQ scores indicate that she has “borderline intellectual functioning” rather than mild mental retardation.

Further, a parent’s duty to provide continuing child support may be triggered by the helplessness of the child, such as when the child is unable to earn a living in any type of job. Mason v. Mason, 873 S.W.2d 631, 637 (Mo.App. E.D.1994). Here, there was no evidence presented that Daughter was unable to earn a living in any type of job. Rather, the evidence showed that Daughter had been engaged in part-time employment for several years while in high school and college; the witnesses knew of no limitation that would prevent Daughter from working full time if she were not in school; and she intended to work full time as a teacher’s assistant or daycare teacher after finishing her schooling. We find there was sufficient evidence to support the trial court’s finding that Daughter was not mentally incapacitated.

Point denied.

Point II

In her second point on appeal, Mother argues that the court erred, abused its discretion, and misapplied Section 452.340.5, because the uncontroverted evidence demonstrated that Daughter had been diagnosed with a developmental disability, as defined in Section 630.005, or had a diagnosed health problem that limited her ability to carry the requisite number of credit hours per semester.

Section 452.340.5 extends the child support obligation to age twenty-one if the child is enrolled in and attending an institution of vocational or higher education; taking at least twelve credit hours per semester (or nine credit hours and working fifteen hours per week); and complies with all other requirements of the statute, including the requirement that at the beginning of each semester the child “shall submit” to both parents a transcript or official document listing the courses the child is enrolled in and has completed for each term, the grades and credits received, and the courses which the child is enrolled in for the upcoming term. If the noncustodial parent requests grades, the child “shall” produce the required documents within 30 days of their receipt. Section 452.340.5 also provides, however, that if the child has been diagnosed with a developmental disability, as defined in Section 630.005, or has a diagnosed health problem that limits the child’s ability to carry the number of credit hours prescribed in this subsection, the child “shall remain eligible for child support so long as such child is enrolled in and attending an institute of. higher education, and the child continues to meet the other requirements of this subsection.” Section 452.340.5.

It was established at trial that Daughter did not continuously enroll in and complete the required number of credits per semester: in the 2007 fall semester at Jefferson College, she only completed five credit hours. Accordingly, the trial court found Daughter to be emancipated as of January 2008. The issue is whether Daughter had a developmental disability or a diagnosed health problem that prevented her from carrying the number of credit hours prescribed in this subsection. The trial court determined that she did not have a developmental disability, and failed to address whether she had a diagnosed health problem.

The uncontroverted evidence adduced at trial was that Daughter had a learning disability that significantly affected her ability to read, write, and comprehend materials presented in class. Rzeppa, a licensed counselor, diagnosed Daughter as having borderline intellectual functioning ■with maladaptive behaviors, which seriously limited her functional capabilities in the category of work skills. Further, Daughter had been diagnosed in 2000 with an “unspecified disorder of the nervous system” that affected her reading, writing, and comprehension abilities. Both the State of Missouri and Jefferson College recognized Daughter’s disability and provided her with ongoing services and accommodation.

We find the trial court’s determination that Daughter did not have a developmental disability was against the weight of the evidence and misapplied the law. At a minimum, Daughter had a mental impairment that manifested before the age of 22; was likely to continue indefinitely; resulted in substantial limitations in the areas of receptive and expressive language development and use, and learning; and for which she received individually planned services of extended duration. Section 630.005(9); Brown v. Dir. of Revenue, 164 S.W.3d 121, 125 (Mo.App. E.D.2005) (“If the evidence is uncontroverted or admitted so that the real issue is a legal one as to the legal effect of the evidence, then there is no need to defer to the trial court’s judgment.”) (internal quotation and citation omitted).

Further, we find that Daughter’s developmental disability or a diagnosed health problem prevented her from carrying the number of credit hours prescribed in this subsection. The legislature intended for the courts to apply Section 452.340.5 broadly. Thompson v. Dalton, 914 S.W.2d 811, 813 (Mo.App. W.D.1995). Where the evidence demonstrates that the child intends and has taken the necessary steps to complete his education but is unable to complete some classes due to a learning disability or medical condition, then emancipation is not appropriate. Id.-, see also Pickens v. Brown, 147 S.W.3d 89, 92-93 (Mo.App. W.D.2004) (extending parent’s child support obligation where child was unable to complete classes due to attention deficit hyperactivity disorder). Here, the evidence demonstrated that Daughter was actively pursuing her education and was in good standing at Jefferson College, but that her learning disability prevented her from completing all of her courses. Thus, the court erred in determining that Daughter emancipated because she failed to take the required number of credits.

Having established that Daughter’s learning disability extended Father’s child support obligation while she was still enrolled in an institute of vocational or higher education, we next consider how long this extension must last. Section 452.340.3 provides that the obligation of a parent to make child support payments shall terminate when the child reaches the age of twenty-one, unless subsection four (mental or physical incapacity from supporting himself) applies. Section 452.340.3(6). Because we have already determined that Daughter is not mentally incapacitated from supporting herself, we find that Father’s child support obligation ended with her twenty-first birthday, and not before.

There are two potential errors stemming from the trial court’s order of emancipation. First, the court’s determination that Father had satisfied all child support obligations as of January 31, 2008 is in error, because Father was obligated to pay $561 per month for Daughter’s support until her twenty-first birthday. The parties agreed at oral arguments that Father voluntarily paid child support for Daughter until her twenty-first birthday; therefore, we can grant no relief on appeal and the error is moot. See Promotional Consultants., Inc. v. Logsdon, 25 S.W.3d 501, 506 (Mo.App. E.D.2000). Second, because Daughter did not emancipate until her twenty-first birthday, Father would be obligated to pay for qualifying medical expenses incurred between the trial court’s stated emancipation date of January 31, 2008 and April 6, 2009, such as the June 2008 doctor’s bill, co-payments and bills for Daughter’s May 2008 treatment at St. Anthony’s, and medication co-payments incurred in 2008. Thus we remand for the trial court to determine Father’s obligation for amounts owing in accordance with the dissolution judgment.

Point granted.

Point III

In her third point on appeal, Mother asserts that the court improperly relied on excluded evidence and misapplied Section 452.340.5 in that the failure to comply with notice requirements does not emancipate a minor child. We need not address these assertions, because our earlier determination of error likewise disposes of this point.

Point denied.

Point TV

In her fourth point on appeal, Mother contends that the court erred in denying her request for a retroactive modification of the child support amount. The court has significant discretion in making an award of child support retroactive to the date of filing. “We will not disturb that judgment absent an abuse of discretion such that the choice of effective date is clearly against the logic of the circumstances and is so arbitrary and capricious as to shock the sense of justice and indicate a lack of careful consideration.” Downard, 292 S.W.3d at 349. Here, the court found that Father had been paying child support for both children until the date of the 2008 trial, despite Son’s emancipation in 2003; and that the presumed child support amount calculated pursuant to the Guidelines was less than what Father had been paying since the original dissolution judgment. Under the circumstances, the court’s choice was not against the logic of the circumstances, and was well within its discretion.

Mother has not asserted error in the trial court’s calculation of the child support amount; thus, we will not address the issue. Similarly, Mother’s assertion — first raised in the argument section and not included in her points relied on — that the trial court erred in denying her request for reimbursement for Sylvan costs is not properly before this court. Day ex rel. Finnern v. Day, 256 S.W.3d 600, 602 (Mo.App. E.D.2008) (issues first raised in argument portion of brief and that are not encompassed by point relied on are not preserved for review on appeal).

Point denied.

Point V

In her fifth point on appeal, Mother challenges the trial court’s decision to deny her request for attorney’s fees. The trial court has broad discretion in the award of attorney’s fees and is considered an expert in the area; we will not disturb the court’s decision absent an abuse of discretion. Downard, 292 S.W.3d at 350. We find no abuse of discretion here.

Point denied.

Conclusion

The judgment is affirmed in part and reversed in part.

KURT S. ODENWALD, P.J. concurs in separate opinion.

GEORGE W. DRAPER III, J. concurs.

KURT S. ODENWALD, Judge,

Concurring.

I concur with the findings and holdings of this opinion. I write this separate concurrence to address the consequences of Section 452.340.5 on children who need additional help in their education due to a developmental disability or diagnosed health problem, and the dilemma presented by requiring the termination of child support at age twenty-one for such children.

Although the parental obligation for child support generally terminates at age eighteen, Section 452.340.5 extends the parental support obligation to age twenty-one if the child is em'olled in and attending an institution of vocational or higher education and taking at least twelve credit hours per semester (or nine credit hours and working fifteen hours per week). The legislature has recognized the need to address the educational circumstances of children with special educational requirements. Children diagnosed with a developmental disability, as defined in Section 630.005, or who have a diagnosed health problem that limits their ability to carry the number of credit hours prescribed in this subsection, remain “eligible for child support so long as such child is enrolled in and attending an institute of ... higher education, and the child continues to meet the other requirements of this subsection.” Section 452.340.5. The minimum credit hour requirement per semester may be waived for children having a developmental disability or diagnosed health problem.

Waiving the minimum hour requirement for children with special educational needs is necessary and just, but may require additional time for such students to complete the course work for their degree. This delay reasonably may require students with developmental disabilities or diagnosed health problems to continue their education beyond the age of twenty-one. However, Section 452.340.5 does not mandate a continuation of the parental support obligation beyond the age of twenty-one for children who are legitimately pursuing their education under the credit hour waiver provision of this statute. While Section 452.340.5 accommodates children with special educational needs by allowing them to schedule classes based upon individual ability and needs, a child who is unable to accomplish his or her educational goals by the age of twenty-one is seemingly penalized because that same statute does not consider or accommodate the additional time needed beyond the age of twenty-one for such children to complete their education.

I agree with the majority that the trial court’s finding that Daughter did not have a developmental disability was against the weight of the evidence and misapplied the law. However, reversing the trial court’s finding does nothing to require the continuation of the parental support obligation for Daughter as she attempts to complete her education because Daughter already has reached the age of twenty-one. Hence, we are presented with a practical dilemma not addressed by Section 452.340.5. Under the law, Daughter is entitled to carry a reduced workload each semester. But, doing so will necessarily extend the time required for Daughter to complete her education. The evidence is undisputed that Daughter was enrolled in a community college program with a vocational goal of working as a teacher’s assistant or daycare teacher. The disability services coordinator at the community college confirmed Daughter’s need for accommodations due to her disability. Testimony from a professional counselor employed by the Missouri Department of Elementary and Secondary Education, Department of Vocational Rehabilitation confirmed that Daughter needed until approximately May 2011, to achieve her vocational goals, long past Daughter’s twenty-first birthday.

Because Father’s parental support obligation terminated with Daughter’s twenty-first birthday and Father is unwilling to voluntarily provide Daughter with financial support, Daughter may be forced to abandon her reasonable and legitimate educational and vocational goals in order to provide for her basic living needs. 1 question whether the legislature intended this consequence. Just as Section 452.340.4 allows a court to extend the parental support obligation under certain circumstances, the legislature may deem it appropriate to consider under what conditions, if any, a court may order the parent support obligation to continue beyond the age of twenty-one under Section 452.340.5.

      . All statutory references are to RSMo Stipp. 2008, unless otherwise indicated.

      . Mental retardation was the diagnostic term used in the record below and in prior case law.

      . A developmental disability is defined as a disability:
      (a)Which is attributable to:
      a. Mental retardation, ... or a learning disability related to a brain dysfunction; or
      b. Any other mental or physical impairment ...; and
      (b) Is manifested before the person attains age twenty-two; and
      (c) Is likely to continue indefinitely; and

        (d) Results in substantial functional limitations in two or more of the following areas of major life activities:
      a. Self-care;
      b. Receptive and expressive language development and use;
      c. Learning;
      d. Self-direction;
      e. Capacity for independent living or economic self-sufficiency;
      f.Mobility; and
      (e) Reflects the person's need for a combination and sequence of special, interdisciplinary, or generic care, habilitation or other services which may be of lifelong or extended duration and are individually planned and coordinated!.]
      Section 630.005(9).


text:
    STATE of Missouri, Respondent, v. Larry MARTIN, Appellant.
    No. WD 69521.
    Missouri Court of Appeals, Western District.
    April 6, 2010.
    S. Kate Webber, Kansas City, MO, for appellant.
    Shaun J. Mackelprang and John M. Reeves, Jefferson City, MO, for respondent.

      Before LISA WHITE HARDWICK, P.J., JAMES M. SMART, JR., and ALOK AHUJA, JJ.
   Order

PER CURIAM:

Larry Martin appeals his convictions for forcible rape, first-degree statutory rape, forcible sodomy, three counts of first-degree statutory sodomy, first-degree child molestation, and incest. Affirmed. Rule 80.25(b).


text:
    JOPLIN WORKSHOPS, INC., Plaintiff-Appellant, v. JASPER COUNTY SHELTERED FACILITIES BOARD, Defendant-Respondent, and Jasper County Sheltered Facilities Association, et al., Third-Party Defendants.
    No. SD 29753.
    Missouri Court of Appeals, Southern District, Division Two.
    April 12, 2010.
    Bruce A. Copeland and Jeremy K. Brown, Copeland & Brown, Joplin, MO, for Appellant.
    Chuck D. Brown, Warten, Fisher, Lee & Brown, L.L.C., Joplin, MO, for Respondent.
    Plaintiff Joplin Workshops, Inc. (“Workshop”) appeals the trial court’s summary judgment in favor of Defendant Jasper County Sheltered Facilities Board (“Board”) on Workshop’s petition seeking declaratory, injunctive, and extraordinary writ relief. We reverse.
   Factual and Procedural Background

Workshop filed a three-count petition against Board seeking a declaratory judgment “determining that all tax revenues collected” by Board “shall be distributed, spent and/or allocated solely as the voters of Jasper County have authorized,” an injunction “enjoining [ Board ] from distributing, spending and/or allocating any of the tax revenues ... in any manner other than as the voters of Jasper County have authorized,” and the issuance of “a writ of prohibition commanding [ Board ] from distributing, spending and/or allocating any of the tax revenues ... in any manner other than as the voters of Jasper County have authorized.” Workshop alleged that, when the Jasper County voters established Board and an accompanying tax levy in 1976, the ballot language approved by the voters and the then-authorizing statutes, sections 205.968 to 205.972, RSMo Cum. Supp.1975, allowed Board to expend such tax funds only for the purpose of establishing and maintaining a sheltered workshop or residence facility. Workshop further alleged that Board had “budgeted for and distributed and continues to budget for and distribute such Jasper County tax funds to non-qualifying organizations, entities, individuals and/or programs which are and/or were not sheltered workshops and/or residence facilities.” Admitting that section 205.968 had been subsequently amended to expand the purpose to include “related services,” Workshop further alleged that, nevertheless, such expanded purpose did not apply to Board because the voters of Jasper County had never voted to grant such expanded authority to Board as statutorily required.

Board filed a motion for summary judgment. The uncontroverted material facts before the trial court in deciding this motion were: Workshop is a sheltered workshop as defined by section 178.900; Board is a political subdivision; on November 2, 1976, the voters of Jasper County approved the question, “Shall Jasper County establish and maintain a sheltered workshop and residence facility for handicapped persons for which the County shall levy a tax of 10<c per each $100.00 assessed valuation therefore?”; Board was created with the adoption and passage of this ballot question; and since December 28, 1999, Board “has expended tax revenue ... by funding group homes, residential facilities, and related services for the benefits of the developmental^ disabled citizens of Jasper County.”

The trial court sustained Board’s motion for summary judgment finding that “[tjhis Court is of [the] opinion that the law for this type of situation is governed by the case of Vocational Services v. The [Developmental ] Disability Board, 5 S.W.3d 625 (Mo.App. W.D.1999).” Accordingly, the trial court entered judgment that Board “may expend funds for ‘related services’ as defined in the Vocational Services case as well as for sheltered workshops and residential facilities.” Workshop’s timely appeal followed.

Standard of Review
Appellate review of the grant of summary judgment is de novo. The Court reviews the record in the light most favorable to the party against whom summary judgment was entered. The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially. Summary judgment will be upheld on appeal if: (1) there is no genuine dispute of material fact, and (2) the mov-ant is entitled to judgment as a matter of law.

Kinnaman-Carson v. Westport Ins. Corp., 283 S.W.3d 761, 764-65 (Mo. banc 2009) (internal citations and quotations omitted).

Discussion

Workshop asserts four points on appeal, but we find that its first point is disposi-tive. In that point, Workshop contends the trial court erred in granting summary judgment in favor of Board based upon Vocational Servs., Inc. v. The Developmental Disabilities Res. Bd., 5 S.W.3d 625 (Mo.App.1999), because

the [Vocational Sens., Inc.] opinion did not address nor decide the issue presented to the trial court in that the [Vocational Sens., Inc.] opinion merely defined the term “related services” as such term is used in the SB40 [] legislation without ever considering, questioning or rendering an opinion as to whether expenditures for “related services” were authorized without a corresponding vote of the people.

We agree.

The plaintiff in Vocational Sens., Inc., referred to therein as “VSI,” brought an action for declaratory judgment and in-junctive relief against the Clay County SB40 board, referred to therein as “DDRB.” Id. at 628. VSI requested

the court to declare public tax funds collected pursuant to Section 205.968-205.968[sic] can be spent, granted or contracted solely for the benefit of sheltered workshops or residential facilities, or for services directly related to the running of sheltered workshops and residential facilities. It also requested the court to declare that, of those receiving funds from the DDRB, only it and GCI meet this definition of a sheltered workshop, residence facility, or related service provider, and to enter an order enjoining all other expenditures of tax funds by the DDRB as unlawful.

Id. Various other entities were joined in the litigation, and they, along with VSI and DDRB, asserted competing positions on the interpretation of “related services” and the extent of DDRB’s authority to fund them. Id. The trial court

rejected both VSI’s claim that only a sheltered workshop or residential facility qualify for the funds, and the DDRB and Lighthouse’s claim that any services related to the care or employment of the handicapped qualify for the funds. The court concluded that sheltered workshops, residential facilities, and related services for the care or employment of the handicapped include, “acts or commodities which are connected or associated with vocational training, vocational teaching, vocational activities, vocational workshop and/or residential facilities.”

Id.

Both DDRB and VSI appealed the trial court’s judgment to the Western District of this Court, the former asserting that the trial court too narrowly interpreted the meaning of the phrase “related services,” and the latter claiming that the trial court’s interpretation of that phrase was too broad. Id. at 629-30. Finding that the term was not defined in any Missouri statute, the Western District spent the entire analytical portion of its opinion defining it, ultimately agreeing with the trial court’s definition and affirming its judgment. Id. at 629-32.

Nowhere in Vocational Servs., Inc., did the Western District address or discuss the interplay between the ballot language approved by the voters in Clay County and the provisions of section 205.968 as related to DDRB’s authority in the first instance to expend tax levy funds for related services. This is because VSI never challenged DDRB’s authority to pay for related services, but rather, implicitly conceding such authority, only challenged some of DDRB’s expenditures as being beyond the scope of related services as that term was used in the statute.

Here, Workshop is challenging Board’s authority to expend any tax levy funds for related services because such authority was not granted by the voters of Jasper County, an action which Workshop claims is required by the statute. Because this issue was not addressed in any manner in Vocational Servs., Inc., it is not authoritative or dispositive in this case, and the trial court erred in granting summary judgment based upon it. Board’s arguments that Vocational Servs., Inc., “goes beyond merely defining ‘related services’ ” are contradicted by the opinion in that case and are without any merit. Workshop’s first point is granted.

Decision

The trial court’s judgment is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

RAHMEYER, J., and BATES, J., concur.

      . Rule 74.04(c)(1) provides, in relevant part, that "[a] motion for summary judgment shall summarily state the legal basis for the motion.” Board’s motion for summary judgment did not state any legal basis, summarily or otherwise. "Generally, failure to comply with Rule 74.04(c)(1) warrants a trial court's denial of a summary judgment motion and warrants an appellate court’s reversal of the grant of summary judgment.” Premier Golf Missouri, LLC v. Staley Land Co., LLC, 282 S.W.3d 866, 872 (Mo.App.2009) (quoting Gillespie v. Estate of McPherson, 159 S.W.3d 466, 470 (Mo.App.2005)). Non-compliance is not a matter subject to waiver by a party and may be raised sua sponte by an appellate court. Hanna v. Darr, 154 S.W.3d 2, 5 (Mo.App.2004) (citing Miller v. Ernst & Young, 892 S.W.2d 387, 389 (Mo.App.1995)). Nevertheless, ”[i]f the issues and the documents in support of those motions are clear to the litigants, the trial court, and the appellate court, the failure to comply with Rule 74.04 does not per se preclude the granting of summary judgment nor the affirming of such a judgment. In short, the trial court and the appellate court are vested with discretion.” Sotirescu v. Sotirescu, 52 S.W.3d 1, 7 (Mo.App.2001) (internal citations omitted). As demonstrated by its judgment, the only issue clear to the trial court was the application of Vocational Servs., Inc. Thus, we exercise our discretion to review that legal basis for the trial court's granL of summary judgment, but no other.
      All references to rules in this opinion are to Missouri Court Rules (2009).

      . In 1969, the Missouri Legislature enacted Senate Bill 40, which was codified into sections 205.968-205.972, RSMo.1969. Thereafter, these sections, even though amended from time to time by other bills, have been commonly referred to as "SB40 legislation,” and the boards established in accordance with the provisions in these sections have been commonly referred to as "SB40 boards.”


author: THOMAS H. NEWTON, Chief Judge.

text:
    TOM’S AGSPRAY, LLC., Respondent, v. Kerry COLE, Appellant.
    No. WD 71477.
    Missouri Court of Appeals, Western District.
    April 13, 2010.

      John L. Young, Princeton, MO, for Appellant.
    Allan D. Seidel, Trenton, MO, for Respondent.
    Before: THOMAS H. NEWTON, C.J., KAREN K. MITCHELL, and CYNTHIA L. MARTIN, JJ.
   THOMAS H. NEWTON, Chief Judge.

Mr. Kerry Cole appeals the trial court’s judgment awarding Tom’s Agspray, LLC (Agspray) $5,457.99 for unpaid services and denying Mr. Cole’s counterclaim for damages. Agspray sued Mr. Cole after he refused to pay Agspray for all of its expenses in seeding Mr. Cole’s land. Mr. Cole admitted that he owed a fee of $6.00 per acre for the seeding but denied owing for the cost of a fertilizer. Mr. Cole counterclaimed for damages allegedly caused by Agspray negligent use of a fertilizer containing nitrogen. We affirm in part, reverse in part, and remand.

Factual and Procedural Background

Mr. Cole entered a contract with the federal government to grow certain vegetation for a quail habitat on 177.1 acres of his land for a designated conservation reserve program (CRP). He visited Ag-spray and inquired about the costs to purchase the special seeds and to spread them. Agspray employees told him that Agspray could only spread seeds with a carrier, specifically a fertilizer, and that Mr. Cole would have to speak with the owner, Mr. Tom Meinecke, to obtain the price. Subsequently, Mr. Cole returned and informed Mr. Meinecke that he needed to spread special seeds, CP-33 (quail habitat), on CRP land. Mr. Meinecke stated that Agspray had previously spread seeds on thousands of CRP acres.

After speaking with a seed dealer, Mr. Meinecke and Mr. Cole discussed the cost per acre for the seeds. Mr. Meinecke informed Mr. Cole that potash was the fertilizer normally used to spread seeds; that potash costs twenty cents per pound; and that spreading the fertilizer would cost from “$3.50 to $4.00 per acre.” Mr. Cole stated that the use of a carrier was not a problem. Mr. Meinecke explained to Mr. Cole that he could not provide him with a total price for spreading the seeds because, without knowing the form of the seeds, he could not determine how many pounds of fertilizer would be needed to spread them. At some point, Mr. Cole stated that the fertilizer needed to be “inert”; Mr. Meinecke did not hear him. Mr. Cole asked Mr. Meinecke if Agspray would spread the seeds even if he purchased them from another agribusiness. Mr. Meinecke agreed to do the job.

Two weeks later, Agspray received the seeds from a seed company. Thereafter, Mr. Cole called Agspray to inform the shop of an approaching deadline and asked what the spreading of the seed costs. Mr. Meinecke told him, “Well, the application is $6.00.” He did not mention using a fertilizer at the time, and Mr. Cole did not tell him not to use one. Mr. Cole told Agspray to do the job. Thereafter, Mr. Meinecke opened the bags of seeds and mixed them with the fertilizer potash and added the fertilizer DAP (diammonium phosphate) for growth. Mr. Meinecke and an employee arrived on Mr. Cole’s land to spread the seed mixture. The employee noticed that weeds and grass were growing on the land but spread the seeds as directed. Mr. Meinecke was also concerned with spreading the seeds because he had observed thick vegetation growing and noticed remnants of a soybean crop. He did not tell Mr. Cole his concerns, and Mr. Cole did not provide a soil test. The employee was not able to spread the seeds on nine of the 177.1 acres because of a difficult crossing.

Subsequently, Mr. Cole received a bill from Agspray in the amount of $5,457.99 for spreading seed across 168 acres at $6.00 per acre, using 11,544 pounds of DAP at 24.44 cents per pound, and using 11,421 pounds of white potash at 14.26 cents per pound. Mr. Cole disputed the fertilizer charge and claimed that he did not order fertilizer. Mr. Cole sent Ag-spray payment for spreading the seeds at $6.00 per acre; Mr. Meinecke refused this payment. Agspray sued Mr. Cole on the account. Mr. Cole filed a counterclaim alleging that Agspray negligently applied DAP containing nitrogen to the land, which caused substantial growth to existing vegetation and would require him to replant the CP-33 seeds in compliance with his CRP contract.

After a bench trial, the trial court found that Mr. Cole told Agspray to spread the seeds on his land. It further found that Mr. Cole understood that the seeding application was charged per acre, that a fertilizer was needed to spread the seed, but thought the fertilizer would be inert and would cost little or nothing. The trial court ordered Mr. Cole to pay Agspray the total balance due. Finally, it found that Mr. Cole must solely bear the adverse consequences of spreading fertilizer to the land and denied the counterclaim. Mr. Cole appeals, raising three points.

Standard of Review

We review the judgment under the standard set forth in Murphy v. Carron. Dyna Flex Ltd. v. Charleville, 890 S.W.2d 413, 414 (Mo.App. E.D.1995) (affirming judgment because the contested charges were reasonable). Therefore, we will affirm unless the decision is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Id.

Legal Analysis

In the first point, Mr. Cole argues that the trial court’s decision to award Agspray the balance due erroneously applies the law because there was no “meeting of the minds” about the carriers used and the costs charged for spreading the seeds. “An action on an account is based in contract; it requires proof of an offer, acceptance, consideration, the correctness of the account, and the reasonableness of the charges.” Heritage Roofing, LLC v. Fischer, 164 S.W.3d 128, 133 (Mo.App. E.D.2005). To prevail in a suit on account, Agspray had to show the following: (1) Mr. Cole requested goods or services from Agspray; (2) Agspray furnished such goods or services to Mr. Cole; and (3) the charges were reasonable. See Taylor’s Auto Parts v. Mayo, 807 S.W.2d 215, 216 (Mo.App. W.D.1991). A plaintiff is only required to show a “meeting of the minds” or mutuality of assent to prevail in its suit on account when a defendant contests contractual terms or the validity of the contract. See Heritage Roofing, LLC, 164 S.W.3d at 133.

At trial, Mr. Cole agreed that there was an oral contract but challenged the terms of the agreement. He argued that he agreed to a flat fee of $6.00 per acre and did not agree to an additional cost for the fertilizer. He also agreed that a carrier would be used but did not agree to the use of a fertilizer unless it was “inert.” Accordingly, Agspray had to show “a meeting of the minds” to prevail. To show “a meeting of the minds,” the plaintiff must show that the terms of the contract were certain or capable of being made certain. Massac Envtl. Techs., Inc. v. Futura Coatings, Inc., 929 S.W.2d 318, 321 (Mo.App. E.D.1996). We look at the parties’ actions and words to determine if there was mutual assent to the terms. Heritage Roofing, LLC, 164 S.W.3d at 134; see also Silver Dollar City, Inc. v. Kitsmiller Constr. Co., 931 S.W.2d 909, 914 (Mo.App. S.D.1996) (“[W]hat a person may have intended subjectively is not controlling. The standard is what a reasonably prudent person would be led to believe from the actions and words of the parties .... ”). Whether there was “a meeting of the minds” is a question of fact for the fact finder- — -in this case, the trial court. See Silver Dollar City, Inc., 931 S.W.2d at 914.

Mr. Cole argues there was no meeting of the minds because he did not receive the goods or the services he requested, nor did Agspray perform the work at the agreed price. Mr. Cole asserts that he requested a bid price per acre from Mr. Meinecke for spreading certain seeds in a cost-share government program. He was told via the telephone that it would cost $6.00 per acre to spread the seeds and was not at that time informed of additional costs. To show the absence of mutuality of assent about the use of DAP as a carrier, he cites his statement to Mr. Meinecke that any fertilizer needed to be inert. He also quotes Mr. Meinecke’s trial testimony stating, “Well, I’m not saying it would have been a requirement that I had to use DAP. I could have used more potash.” He also asserts that Mr. Meinecke and his employee admitted that the use of DAP rather than potash would cause the existing vegetation to grow because of the nitrogen in DAP. Finally, he asserts that Mr. Meinecke knew that he was seeding for a CRP and should have discovered that nitrogen should not have been applied to the ground.

The evidence shows that Mr. Mei-necke and Mr. Cole agreed to several terms. The trial court found that the terms of the agreement were that Agspray would spread the special seeds across Mr. Cole’s land mixed with a fertilizer and that Mr. Cole would pay an application fee plus the cost of the fertilizer. The trial court has the freedom to believe or disbelieve all, part, or none of the witnesses’ testimonies. Bland v. Schubert, 941 S.W.2d 24, 27 (Mo.App. S.D.1997). Thus, the trial court was free to believe Mr. Meinecke and free to disbelieve Mr. Cole. We must defer to this credibility determination. Id. Because there was evidence from which the trial court could ascertain terms of an agreement, the trial court did not err in finding a meeting of the minds. Thus, Mr. Cole’s first point is denied.

In the second point, Mr. Cole argues that the trial court erred in determining that the amount charged was reasonable because it was above the bid price ($6.00 per acre). He also asserts that Agspray used a higher priced fertilizer, DAP, which contained chemicals to cause plants to grow, and should have only used the lower priced fertilizer, potash, which would not have caused the existing vegetation to grow. Mr. Cole states that the price charged was unreasonable because the expensive fertilize, DAP, was used rather than the cheaper fertilizer, potash; and the use of potash would not have caused damage to the land. As an element of its action on account, Agspray had the burden to show that the charges were reasonable. See Jerry Ward Constr. Co. v. Executive Hills Home Builders, Inc., 777 S.W.2d 629, 630 (Mo.App. W.D.1989) (stating a plaintiff in an account action has the burden to prove reasonableness of labor similar to a plaintiff bringing a quantum meruit action). A plaintiff proves the reasonableness of a charge by adducing the reasonableness as to price breakdown or as to the lump sum amount. See Massac Envtl. Techs., Inc., 929 S.W.2d at 320. In doing so, “[a] party may place value upon his own services.” Id.

Mr. Meinecke presented the following evidence concerning the charges. He introduced the bill into evidence and reiterated the charges. Mr. Meinecke then stated that several pounds of fertilizer were used to give the seeds bulk because they were so light, similar to “ground hay.” He testified that the estimated application cost of $4.00 per acre became $6.00 per acre because double spreading of seeds and fertilizer always cost $6.00. This evidence was insufficient to show reasonableness of charges.

“Reasonableness” is an objective showing; merely presenting the bill is not sufficient evidence of reasonableness. Miller v. Horn, 254 S.W.3d 920, 925 (Mo.App. W.D.2008). Nor is the testimony that the application charge for seeds and fertilizer is “always $6.00.” See id. (finding a statement that the price is standard for such service is insufficient). Although Mr. Meinecke provided evidence as to the reasonableness of the quantity of fertilizer used, he did not adduce evidence about the reasonableness of the costs for the carriers. Evidence concerning the reasonableness for both price of materials and quantity used are needed to show reasonableness of charges. See Jerry Ward Constr. Co., 777 S.W.2d at 630 (finding reasonableness of charges for labor not shown because plaintiff only showed reasonableness of an hourly rate but did not present evidence showing reasonableness of hours expended). Also, Mr. Meinecke testified that the use of the more expensive fertilizer was not necessary, which refutes the reasonableness of that charge. Consequently, Agspray failed to show the reasonableness for its charges. The trial court erred in finding the damages reasonable. Mr. Cole’s second point is granted.

In the third point, Mr. Cole argues that the trial court erred in denying the counterclaim of negligence because he relied on Agspray representation that it was familiar with government and CRP programs; Agspray breached its duty when it used a DAP fertilizer to spread the seeds rather than a different fertilizer without nitrogen that would not have caused the existing vegetation to grow; and the adding of nitrogen caused damage because the existing vegetation grew rather than the special program seeds.

To prevail on a negligence claim, Mr. Cole was required to establish that: (1) Agspray had a legal duty to conform to a standard of conduct; (2) a breach of that duty; (3) a proximate cause between the conduct and the resulting injury; and (4) actual damages to Mr. Cole’s property. See Hoover’s Dairy, Inc. v. Mid-Am. Dairymen, Inc., 700 S.W.2d 426, 431 (Mo. banc 1985). The judgment is unclear as to which element or elements the trial court decided that Mr. Cole failed to satisfy in his negligence action against Agspray. We thus apply Rule 73.01, which states that where the trial court fails to render findings or conclusions on a issue, “we consider all facts as having been found in accordance with the result reached.” Eversole v. Woods Acquisition, Inc., 135 S.W.3d 425, 427 (Mo.App. W.D.2004).

Mr. Cole argues that Agspray owed him a duty because Agspray is an agri-business that spreads seeds and fertilizers, it knew about federal conservation programs, and it was hired to provide seed application for his CP-33 program knowing that any spreading had to be inert.

A legal duty owed by one to another may arise from at least three sources: (1) it may be [prescribed] by the legislative branch; (2) it may arise because the law imposes a duty based on the relationship between the parties or because under a particular set of circumstances an actor must exercise due care to avoid foreseeable injury; or (3) it may arise because a party has assumed a duty by contract or agreement whether written or oral.

Hackmann v. Mo. Am. Water Co., 308 S.W.3d 237, 239 (Mo.App. E.D.2009). The law imposes upon a person who provides services the duty to render those services with “some degree of care and skill.” Hoover’s Dairy, Inc., 700 S.W.2d at 432 (internal quotation marks and citation omitted). Whether a duty exists is a question of law, but conclusions about the facts of the case are questions for the fact-finder. Hackmann, 308 S.W.3d at 239-40.

Even if we determine a duty in the law existed and there was a breach of that duty, the trial court’s decision must still be affirmed because the evidence supports a finding against causation. See Eversole, 135 S.W.3d at 427-28 (stating we will affirm the judgment if it is correct under any theory). Whether the breach of that duty caused damages to the plaintiff is a question of fact. Wright v. Barr, 62 S.W.3d 509, 524 (Mo.App. W.D.2001). A plaintiff establishes causation by showing that defendant’s breach was the cause in fact for the injury and the proximate cause of the injury. Id. To determine if a plaintiff has shown the defendant’s breach was the cause in fact, the following question is asked: But for the defendant’s conduct, would the plaintiff have been injured? Id.

Mr. Cole claims Agspray breached the duty by using DAP fertilizer that contained nitrogen which caused the existing vegetation to grow. Mr. Meinecke testified that a previous crop left some nitrogen in the soil. Both Mr. Meinecke and his employee testified that Mr. Cole’s existing vegetation was thick and already growing before they spread the mixture of seeds, DAP, and potash. Mr. Cole admitted that he had not taken samples of the soil to measure the amount of nitrogen present in the soil. After hearing the evidence, the trial court found that “the responsibility for any adverse consequences ... rest with [Mr. Cole]” and “those [damages] must be borne by him alone.” The trial court also found that Mr. Cole did not take soil samples before Agspray spread the seeds and DAP. It was imperative that Mr. Cole supply the trial court with a soil test to show that the added nitrogen caused the additional growth. The trial court could have determined that, absent a soil test, Mr. Cole could not establish that but for the added nitrogen, the existing vegetation would not have grown. It can be inferred from these findings that the trial court determined that Mr. Cole did not meet his burden to show causation. Based on this evidence and the fact that we must infer findings in favor of the trial court’s decision, Mr. Cole did not satisfy the burden of proof for his counterclaim of negligence. See Eversole, 135 S.W.3d at 428. Mr. Cole’s third point is denied.

Conclusion

Therefore, we affirm the trial court’s ruling that there was an agreement for services and goods. We also affirm the trial court’s denial of Mr. Cole’s counterclaim. However, we reverse the award of damages and remand the case to the trial court for an evidentiary hearing if the trial court deems it necessary.

MITCHELL and MARTIN, JJ. concur.

      . According to Mr. Cole, “inert” meant that the fertilizer would not cause growth to the existing vegetation.

      . Mr. Meinecke did not charge an application fee for the nine acres that did not receive seeds but charged him for the seed mixture.

      . It appears that the trial court believed Mr. Cole sustained damages based on its finding that "damages as calculated by Defendant may well reflect his costs for undoing what was done and then doing it a second time.”


text:
    Alfred A. JOHNSON, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 93106.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 13, 2010.

      Maleaner Harvey, Assistant Public Defender, St. Louis, MO, for Appellant.
    Chris Koster, Attorney General, John W. Grantham, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before GLENN A. NORTON, P.J., MARY K. HOFF, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Alfred A. Johnson (Movant) appeals from the denial of his Rule 24.035 motion for postconviction relief (PCR Motion) without an evidentiary hearing. Movant pleaded guilty to three counts of first-degree robbery, in violation of Section 569.020; four counts of armed criminal action, in violation of Section 571.015, one of count attempted robbery, in violation of Sections 569.020 and 564.011, and one of count misdemeanor theft, in violation of Section 570.030, RSMo 2003 Cum.Supp.

We have reviewed the briefs of the parties, the legal file, and the record on appeal, and find the claims of error to be without merit. The motion court’s denial of the PCR Motion is based on findings of fact that are not clearly erroneous. Rule 84.16(b)(2); Rule 29.1600. No error of law appears. An extended opinion would have no precedential value. We affirm the judgment pursuant to Rule 84.16(b). The parties have been furnished a memorandum for them information only, setting forth the reasons for the order affirming the judgment pursuant to Rule 84.16(b).

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


text:
    STATE of Missouri, Respondent, v. Christopher CONDON, Appellant.
    No. ED 93096.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 13, 2010.
    Rosalynn Koch, Office of the Missouri Public Defender, Columbia, MO, for Appellant.
    Chris Koster, Attorney General, John W. Grantham, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before: KURT S. ODENWALD, P.J., GEORGE W. DRAPER, III, J., and GARY M. GAERTNER, JR., J.
   ORDER

PER CURIAM.

Christopher Condon (Defendant) appeals from the trial court’s judgment, following a jury trial, convicting him of felony stealing, in violation of Section 570.030, RSMo 2000. Finding Defendant to be a prior and persistent offender, as defined in Section 558.016, the trial court sentenced Defendant to ten years of imprisonment. We affirm.

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would serve no jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 30.25(b).


text:
    Bill D. MEADOR, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93059.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 13, 2010.
    Ellen H. Flottman, Columbia, MO, for Appellant.
    Chris Koster, Attorney General, Karen L. Kramer, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before GLENN A. NORTON, P.J., MARY K. HOFF, J. and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Bill D. Meador appeals the judgment denying his Rule 29.15 motion for post-conviction relief following an evidentiary hearing. We find that the motion court’s findings of fact and conclusions of law are not clearly erroneous. An extended opinion would-have no precedential value. We have, however, provided the parties a memorandum setting forth the reasons for our decision. We affirm the judgment under Rule 84.16(b).


text:
    Cedric RICE, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93054.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 13, 2010.
    Maleaner R. Harvey, St. Louis, MO, for Appellant.
    Chris Koster, Attorney General, Shaun J. Mackelprang, Asst. Attorney General, Jefferson City, MO, for Respondent.
    Before SHERRI B. SULLIVAN, P.J. and ROBERT G. DOWD, JR. and PATRICIA L. COHEN, JJ.
   ORDER

PER CURIAM.

Cedric Rice (“Movant”) appeals from the judgment of the motion court denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. Movant argues the motion court clearly erred in denying his 29.15 motion for post-conviction relief without an evidentia-ry hearing because: (1) his trial counsel was ineffective for not filing a motion for new trial asserting the claim that the trial court erred in denying his motion to suppress his statement on the grounds that it was not voluntarily, knowingly, and intelligently made; (2) his trial counsel was ineffective for failing to obtain all discoverable DNA material available to her, including but not limited to, copies of bench notes and DNA raw data; (3) his trial counsel was ineffective for failing to secure independent DNA testing of the evidence taken from the victim’s residence and evidence taken to attain Movant’s DNA sample; and (4) his appellate counsel was ineffective for failing to assert on his direct appeal that the trial court erred in overruling his motion for judgment of acquittal at the close of all evidence as to Count VIII, attempted robbery in the first degree.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. The motion court’s findings of fact and conclusions of law are not clearly erroneous. Rule 29.15(k). An opinion reciting the detailed facts and restating principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Robert L. CAVE, Appellant.
    No. ED 93016.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 13, 2010.
    Craig A. Johnston, Columbia, MO, for Appellant.
    Chris Koster, Shaun Maekelprang, Jefferson City, MO, for Respondent.
    Before: KURT S. ODENWALD, P.J., GEORGE W. DRAPER III., J„ and GARY M. GAERTNER, JR., J.
   ORDER

PER CURIAM.

Robert L. Cave appeals from the trial court’s judgment entered upon a jury verdict convicting him of statutory sodomy in the first degree in violation of Section 566.062 RSMo 2000. We have reviewed the briefs of the parties and the record on appeal and conclude that no reversible error occurred. An extended opinion would have no jurisprudential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Criminal Procedure 30.25(b) (2009).


text:
    Marco FRANKLIN, Appellant, v. STATE of Missouri, Respondent.
    No. ED 92946.
    Missouri Court of Appeals, Eastern District. Division Three
    April 13, 2010.
    Lisa M. Stroup, Saint Louis, MO, for Appellant.
    Chris Koster, Attorney General, Karen L. Kramer, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before GLENN A. NORTON, P.J., MARY K. HOFF, J. and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Marco Franklin appeals the judgment denying his Rule 29.15 motion for post-conviction relief after an evidentiary hearing. Franklin argues he was denied his right to effective assistance of counsel. The motion court’s findings and conclusions are not clearly erroneous.

An extended opinion would have no precedential value. We have, however, provided the parties a memorandum setting forth the reasons for our decision. The judgment of the motion court is affirmed under Rule 84.16(b).