author: PATRICIA BRECKENRIDGE, Judge. MICHAEL A. WOLFF, Judge,

text:
    In re The Honorable Timothy J. FINNEGAN, Petitioner.
    No. SC 90937.
    Supreme Court of Missouri, En Banc.
    Dec. 21, 2010.
    James M. Smith, Commission’s Offices, St. Louis; Finnegan, St. Louis City Circuit Court, joins on the brief, for Commission.
    State Solicitor James R. Layton, Attorney General’s Office, Jefferson City, for Attorney General, who filed a brief as a friend of the Court; Jake McMahon, Jefferson City, for Missouri State Employees’ Retirement System joining on the brief.
   PATRICIA BRECKENRIDGE, Judge.

Introduction

Timothy J. Finnegan, family court commissioner for the Circuit Court of St. Louis City, requested that the Commission on Retirement, Removal and Discipline' (the commission) recommend to this Court that he be retired due to disability. After consideration of his request, the commission issued its findings of fact, conclusions of law, and recommendation that this Court retire Commissioner Finnegan for disability and award him retirement benefits as provided by law. Because the commission lacks authority over a family court commissioner, its recommendation that Commissioner Finnegan be approved for disability retirement is rejected.

Factual and Procedural Background

In April 2010, Commissioner Finnegan filed a request with the commission, pursuant to Rule 12.05, that he be retired for disability because of permanent sickness or physical or mental infirmity. In response to his request, the commission issued findings of fact and conclusions of law that Commissioner Finnegan was unable to discharge the duties of his office with efficiency due to permanent physical and mental disability. In its findings, the commission concluded that it has authority over a family court commissioner under article V, section 24 of the Missouri Constitution and section 487.020.3.

The commission recommends that this Court accept its recommendation to retire Commissioner Finnegan based on permanent disability and award him retirement benefits as provided by law. This Court has final authority, on the commission’s recommendation, to retire any judge or member of a judicial commission who is unable to discharge his or her duties because of permanent physical or mental disability. Mo. Const, art. V, sec. 24.2.

The Commission Has No Authority Over Retirement of Family Court Commissioners

Before considering the • merits of his request for retirement, it is necessary to determine whether Commissioner Finnegan, a court-appointed family court commissioner, is subject to the authority of the commission. Article V, section 24 of the Missouri Constitution defines the scope of the commission’s authority as extending to three categories of individuals: judges, members of judicial commissions, and members of the commission. The constitutional provision states, in pertinent part, that “[t]he commission shall receive and investigate all requests and suggestions for retirement for disability, and all complaints concerning misconduct of all judges, members of the judicial commissions, and of this commission.” Mo. Const, art. V, sec. 24.1 (emphasis added). As Commissioner Finnegan clearly is not a member of the commission, this Court must determine only whether his position as family court commissioner makes him a judge or member of a judicial commission.

Commissioner Finnegan is not a judge. This Court first decided the issue of whether a family court commissioner is a judge in Slay v. Slay, 965 S.W.2d 845, 845 (Mo. banc 1998). In that case, the Court held that a document purporting to be a “judgment” signed by a family court commissioner was not a true judgment because the document was not signed by a judge. Id. In so holding, the Court found that the term “judge” only refers to those judicial officers who are selected in accordance with and authorized to exercise judicial power pursuant to article V of the Missouri Constitution. The Court noted that article V vests judicial power in only this Court, the court of appeals, and the circuit courts. Id. The Court has followed its holding in Slay in subsequent cases. See, e.g., Fowler v. Fowler, 984 S.W.2d 508, 511-12 (Mo. banc 1999); State ex rel. York v. Daugherty, 969 S.W.2d 228, 224-25 (Mo. banc 1998).

In accordance with Slay and its progeny, the Court finds that Commissioner Finnegan is not a “judge” within the meaning of article V, section 24 of the Missouri Constitution because he was not selected in accordance with or authorized to exercise judicial power pursuant to article V of the Constitution. As such, the commission lacks authority over Commissioner Finnegan’s request for disability retirement on the basis that he is a judge. The commission’s arguments to the contrary are without merit.

Having found that Commissioner Finnegan is not a judge, it is necessary to determine if he is a member of a judicial commission as that term is used in article V, section 24 of the Constitution. When interpreting a constitutional provision, the Court must consider the words used in their plain and ordinary meaning. StopAquila.org v. City of Peculiar, 208 S.W.3d 895, 902 (Mo. banc 2006). If a word used is not defined, the Court determines the plain and ordinary meaning of the word as found in the dictionary. Id. The dictionary defines “commission” as a “group of persons directed to perform some duty or execute some trust.” Webster’s Third New International Dictionary 457 (Philip Babcock Gove, et al., eds., Unabridged 1998). “Commission” also is defined as a “body of persons acting under lawful authority to perform certain public services.” Black’s Law Dictionary 306 (Bryan A. Garner, 9th ed.2009).

From the definitions above and the legislature’s use of the phrase “member of the judicial commission,” it is clear that the term “commission” refers to a group or body that performs some delegated public function. Family court commissioners do not conduct their tasks as a group or body. Consequently, family court commissioners are not members of a “commission” based on the plain and ordinary meaning of that word. The mere fact that a family court commissioner is given the title “commissioner” is of no consequence because the language of article V, section 24 gives the commission authority over members of a judicial commission, not a commissioner. The language in article V, section 24 is unambiguous, and this Court lacks authority to read words into the provision that are not there. Independence-Nat. Educ. Ass’n v. Independence School Dist., 223 S.W.3d 131, 137 (Mo. banc 2007). Because Commissioner Finnegan is not a member of a judicial commission, the commission does not have authority to consider his request for disability retirement on that basis.

Because Commissioner Finnegan is neither a judge nor a member of a judicial commission, his request for disability retirement falls outside the scope of the commission’s authority. However, that does not mean he is ineligible for retirement or disability benefits. Under section 487.020.3, a commissioner is entitled to the same retirement benefits as an associate circuit judge. Moreover, section 104.518.1 authorizes the Missouri State Employees’ Retirement System (MOSERS) to provide disability benefits to employees covered by section 476.515.1(4). That section covers “any person who has served ... as commissioner or deputy commissioner of the circuit court-” Section 476.515.1(4). Therefore, Commissioner Finnegan can apply to MOSERS for long-term disability benefits.

Conclusion

Because Commissioner Finnegan is neither a judge nor a member of a judicial commission, the commission lacks authority to recommend his disability retirement. Therefore, the commission’s recommendation that Commissioner Finnegan be retired due to disability is rejected.

PRICE, C.J., TEITELMAN, RUSSELL, FISCHER and STITH, JJ., concur; WOLFF, J., concurs in separate opinion filed.

MICHAEL A. WOLFF, Judge,

concurring.

Introduction

I concur in the principal opinion. I write separately to point out that there is no constitutional authority for the current officers called “commissioners.” The assignment of judicial powers in the Missouri Constitution solely to judges is unambiguous and mandatory. The Court has a duty to respect the constitutional assignment of judicial powers, and, as gently as possible, to phase out these positions as these officers end their service and to seek their replacement with judges as needed.

Commissioner Finnegan is one of 37 persons whose commissioner positions have been created by legislation since 1976 — when the voters adopted the modern judicial framework in article V of the Missouri Constitution. These commissioners perform important functions for the people of the state. Some conduct “family court” proceedings, some handle probate matters and others conduct “drug court” or similar dockets. Commissioners preside over some innovative and important judicial proceedings. They all appear to be highly qualified and capable of doing the work the legislation assigns to them. They function, in nearly all respects, as judges.

But they are not judges.

Article V is clear. It defines who is in the judiciary, and it establishes clear rules for the judiciary. Mo. Const, art. V, secs. 14-23 (amended in 1976). There is nothing wrong with calling someone a “commissioner.” Nor is there anything wrong with assigning special duties to those called “commissioners.” But, under the Missouri Constitution, to exercise judicial functions, they first must be judges selected in accordance with our constitution.

No Elections, No Nonpartisan Plan Appointments

Commissioners are not elected by the voters of their counties or circuits, as provided in article V, section 26(b), nor are they selected in accordance with article V, section 25 for those counties included in the nonpartisan court plan.

The Missouri Constitution does not vest any judicial power in commissioners; therefore, commissioners are not judges. Article V, section 1 of the Missouri Constitution creates and defines courts. This article vests the judicial power of the state in: “a Supreme Court, a court of appeals consisting of districts as prescribed by law, and circuit courts.” Mo. Const, art. V, sec. 1. Nothing in the language of the Missouri Constitution includes commissioners among those authorized to exercise judicial power. See Mo. Const, art. V. To consider commissioners as members of the judiciary would be contrary to the voters’ intent in approving article V.

The 1976 amendments drastically changed Missouri’s judiciary to create a unified court system to modernize the judicial branch and equalize the load of judicial business throughout the state instead of limiting it to a smaller geographic area. First, the 1976 amendments to the Missouri Constitution refined the nonpartisan court plan. Mo. Const, art V, sec. 25. Second, language was inserted clarifying that the two constitutional methods of selecting members of the judiciary are: the nonpartisan court plan and judicial election. Third, the amendments phased out all commissioners in the Supreme Court and appellate court as vacancies occurred. Mo. Const, art. V, sec. 27.11. Fourth, the amendments transferred jurisdiction of magistrate courts, probate courts, courts of criminal correction, courts of common pleas and municipal courts to the circuit court in their geographic area and authorized the transfer of judicial personnel from one circuit to another. Mo. Const. art. V, secs. 28, 27.

The effect of these changes was to define the scope of the judiciary’s authority and to ensure that all members of the judiciary either were elected or were retained pursuant to the nonpartisan court plan. The only exception is municipal judges, appointed and paid by their municipal governments — but their courts are divisions of the circuit courts. In the absence of a municipal division, matters usually handled in municipal divisions are assigned to associate circuit judges. Mo. Const, art. V, sec. 23.

By phasing out the positions of Supreme Court and appellate commissioner as well as by subsuming numerous positions into the circuit courts, article V clearly defined what courts and positions could exercise judicial functions. Mo. Const. art. V, secs. 27.11, 27.2, 27.3, 27.4, 27.9. By specifically affirming that all judges either are elected or retained, the voters approving article V ensured that judicial functions would be performed only by those who had been selected as judges under the constitution and approved by the voters, either in partisan elections or in retention elections under the nonpartisan court plan. Mo. Const. art. V, secs. 27.8, 27.9 (stating that all circuit judges can either be elected or retained under the nonpartisan court plan); Mo. Const. art. V, secs. 25(c)(2), 25(d).

Little by little, beginning in 1979, the Missouri legislature allowed judges in many circuits to appoint commissioners in probate, family, traffic and drug “courts.” Pursuant to these statutes, Missouri currently has 37 commissioners: nine drug commissioners, 19 family commissioners, seven probate commissioners and two traffic commissioners, according to the state courts administrator’s office. With the exception of traffic commissioners, each of these commissioners is paid at least the salary of an associate circuit court judge (some are paid the same as a circuit court judge) from the same source of funds as article V judges. A table setting forth the statutes authorizing appointment of commissioners is included in the appendix to this opinion.

For nearly two decades, commissioners, as authorized by statute, executed nearly the same functions as judges. But in the late 1990s, two of this Court’s cases reaffirmed that commissioners are not article V judges and, therefore, may not sign “judgments.” See Fowler v. Fowler, 984 S.W.2d 508 (Mo. banc 1999); Slay v. Slay, 965 S.W.2d 845 (Mo. banc 1998) (holding that commissioners are “not person[s] selected for office in accordance with and authorized to exercise judicial power by article V of the state constitution”).

Now, these commissioners exercise all other judicial functions except authorizing a final judgment. Section 478.003 (“The commissioner shall have all the powers and duties of a circuit judge, except that any order, judgment, or decree of the commissioner shall be confirmed or rejected by an associate circuit or circuit judge .... ”); section 478.265 (“The commissioner will have all the powers and duties of such judge; but the judge shall by order of record reject or confirm all orders, judgments and decrees.”); section 479.500 (“These traffic judges also may be authorized to act as commissioners to hear in the first instance petitions .... ”); section 487.020 (appointing commissioners to hear family cases and to make findings when adopted and confirmed by the order of a circuit or an associate circuit judge); section 487.030 (stating that the findings and recommendations of the commissioner shall become the judgment of the court only when confirmed by a judge).

The cases define the exclusive realm of the judiciary as “judicial review and the power of courts to decide issues and pronounce and enforce judgments.” See, e.g., Dabin v. Director of Revenue, 9 S.W.3d 610, 614 (Mo. banc 2000); Chastain v. Chastain, 932 S.W.2d 396, 399 (Mo. banc 1996); Percy Kent Bag Co. v. Mo. Comm’n on Human Rights, 632 S.W.2d 480, 484 (Mo. banc 1982). “The entry of a judgment remains ‘the quintessential function of a court.’ ” Hilburn v. Staeden, 91 S.W.3d 607, 610 (Mo. banc 2002) (quoting Carr v. North Kansas City Beverage Co., 49 S.W.3d 205, 207 (Mo.App.2001)); see also Div. of Classification and Treatment v. Wheat, 829 S.W.2d 581, 583 (Mo.App.1992).

Though the entry of a judgment is the “quintessential function” of a judge, it is not the only function. Commissioners hear evidence and make rulings about legal issues that may arise in hearings and otherwise — in short, they are exercising nearly co-extensive authority with members of the judiciary, except for the entry of final judgments. See, e.g., Slay, 965 S.W.2d at 846 (finding that commissioners sit in the place of the judge and issue “recommendations and findings.”). A practical look at commissioners’ authority illustrates that they are exercising most of the powers and functions given to the judiciary by the Missouri Constitution. For the commissioners’ use of judicial power to be permissible, however, the constitution must vest judicial power in them as part of the judiciary or otherwise.

In vetoing a bill creating commissioners 12 years ago, then-Governor Mel Carna-han pointed out the constitutional flaw:

This state has seen a proliferation of the creation of “commissioners.” They have been created to relieve the circuit courts of the heavy caseload in specific areas of the state. This bill now makes it clear that these commissioners have the power of a judge, as well as the pay and other compensation of a judge. However, they are not selected like judges. Pursuant to Article V of the Missouri Constitution, judges are either elected by the people or nominated and appointed pursuant to the non-partisan court plan known around the country as the “Missouri plan.” Our state has been complimented and imitated in the way it selects our judges. Under this bill, however, commissioners are appointed by the presiding judge after a majority vote of the court en banc....

S. 89, 2nd Sess., at 2 (Mo.1998).

In the following legislative session, Chief Justice Duane Benton, in his state of the judiciary address to the General Assembly, reiterated Carnahan’s point:

The 1979 constitutional amendment simply does not anticipate commissioners acting as judges. Serious questions have been presented to the Supreme Court regarding the authority of circuit court commissioners to sign final court judgments, to issue warrants and to take other judicial action, ... I am pleased to stand with the Governor and call for the conversion of circuit court commissioners to judges.

Duane Benton, State of the Judiciary Address, 55 J. MO. B. 1, 10 (1999). While a governor may veto a bill on occasion — such as the governor’s veto of the 1998 bill — the creation of commissioners can be included in judiciary bills passed by the legislature that may have more provisions a governor favors than provisions he may find objectionable. So a governor’s veto really does not put an end to the creation of commissioners, which, as with many matters that come before the legislature, are the results of the expressions of local interests — also known as politics.

Fixing the Problem, Gently

Although the governor and the chief justice in 1998 and 1999 called on the legislature to fix the problem by converting commissioners to judges, those calls did not prompt legislative action. Competing interests may well play a part in the failure to act.

But the courts’ interest is different. This Court’s interest should be in protecting the constitution. And, I believe, it is our constitutional duty to do so.

In recent years, the Missouri courts have developed a “weighted workload study” as a tool for ascertaining whether the judicial needs of citizens in the various circuits in the state are being met. The study, which is updated periodically, is useful for determining what circuits need additional help and which have help to share.

There is a way for this Court to take the lead in resolving the constitutional problem posed by the creation of commissioner positions and to use the weighted workload study to help with the transition.

First, we should recognize the dedicated service that these individual commissioners perform and frankly acknowledge that the commissioners themselves did not create this constitutional problem by accepting their appointments in good faith. So those in office should remain in office until they leave by retirement, resignation or death.

Second, in the absence of legislation within a reasonable time converting commissioner positions to judgeships, when a commissioner position becomes vacant, this Court should use its constitutional “superintending” and “supervisory” authority under article V, section 4.1 and order the appointing authorities within the court system not to fill the position. If the weighted workload study supports the addition of a judge to fill the role, this Court should ask the General Assembly to meet this need by creating an article V judge position. If the weighted workload study does not support the need for an additional judge, the position should remain unfilled until the .General Assembly decides to create a judge position with or without reference to the weighted workload study. In either event, the specialized dockets may continue, but with judges presiding — who are authorized by the constitution to do so. This solution is the same mechanism that the 1976 article V amendments used to phase out Supreme Court and appellate court commissioners — allowing commissioners to retain their positions until retirement, and when a commissioner retired, not filling the vacancy.

The creation of the new group of “commissioners” since 1979 may have seemed appropriate (even if not authorized constitutionally) to meet certain local needs in the 20th century when the state’s financial resources were flush, relatively speaking, and we could afford to have judicial officers permitted to perform only one specialized set of tasks in a particular county. But finances in the early 21st century are tight, and a modern judiciary — as contemplated in the revision of article V some 34 years ago — must be able to adapt to society’s changing needs and demands for judicial services. For example, a drug court commissioner, whose time is not fully occupied by that docket, cannot volunteer for or be assigned to other dockets that may be crowded and in need of relief. By contrast, neither circuit judges nor associate circuit judges are so constrained and, as such, their assignments can be — and routinely are — changed to meet the changing needs of their counties and circuits.

Conclusion

When the people approved article V in 1976, they adopted a constitutional frame-' work for an integrated, modern judiciary empowered to manage its resources and workload statewide. The least that we can do is to do our duty — that is, to respect the boundaries that the constitutional framework establishes, even though it may be convenient or comfortable to do otherwise. Purely and simply, that means no more commissioners.

That said, I concur in the principal opinion.

APPENDIX

Authorizing Effective Current No. No. of Comm’rs Comm’r Type_Statute_Date_of Comm’rs_Authorized

Family § 487.020 1993 19 3/circuit (amended in 1995,1999)__

Probate § 478.265 § 478.266 1979 4 Comm’r 7

§ 478.267 1979 3 Deputy Comm’r

1996 § 478.268 (amended in 1997)_

Traffic § 479.500 1992 (amended in _1996)_ 2 2

Drug § 478.001 § 478.003 1998 (amended in 1999, 2010) 9 Unlimited

      . Unless otherwise noted, all statutory references are to RSMo 2000.

      . Article V, section 15.4 of the Constitution authorizes "[p]ersonnel to aid in the business of the circuit court” to be selected as provided by law. By statute, the legislature has created various commissionerships to aid the business of the circuit courts. See, e.g., section 487.020 (creating family court commissioners); section 478.265 (creating probate court commissioners); section 478.003 (creating drug court commissioners); section 211.023 (creating juvenile court commissioners).

      . In fact, the full text of the Constitution emphasizes, by repetition, the limit on the scope of the commission's authority as extending to only judges, members of judicial commissions, and members of the commission:
      1. ... The commission shall receive and investigate all requests and suggestions for retirement for disability, and all complaints concerning misconduct of all judges, members of the judicial commissions, and of this commission ....
      2. Upon recommendation by an affirmative vote of at least four members of the commission, the supreme court en banc shall retire from office any judge or any member of any judicial commission or any member of this commission who is found to be unable to discharge the duties of his office with efficiency because of permanent sickness or physical or mental infirmity. A judge, except a municipal judge so retired shall receive one-half of his regular compensation during the remainder of his term of office. Where a judge subject to retirement under other provisions of law, has been retired under the provisions of this section, the time during which he was retired for disability under this section shall count as time served for purposes of retirement under other provisions of this constitution or of law.

        3. Upon recommendation by an affirmative vote of at least four members of the commission, the supreme court en banc, upon concurring with such recommendation, shall remove, suspend, discipline or reprimand any judge of any court or any member of any judicial commission or of this commission, for the commission of a crime, or for misconduct, habitual drunkenness, willful neglect of duty, corruption in office, incompetency or any offense involving moral turpitude, or oppression in office ....

      8. Additional duties shall not be imposed by law or supreme court rule upon the commission on retirement, removal and discipline.
      Mo. Const, art. V, sec. 24 (emphasis added).

      . The actual language of article V, section 24.1 of the Constitution gives the commission authority over "members of the judicial commissions.” (Emphasis added.) The word "the” indicates that article V, section 24.1 references specific judicial commissions created under the Constitution. The nonpartisan judicial commissions established by article V, section 25(d) to nominate candidates to fill judicial vacancies clearly falls within the definition of "judicial commissions.” The Court need not determine whether any other "judicial commission” is included in such definition because family court commissioners are not members of any commission.

      . There are 34 full-time commissioners and three deputy commissioners. Practically, there is no real difference in the job duties between the two.

      . It is important to note that commissioners are authorized by statute for a particular county. This means that commissioners are unable to respond to demand increases in counties other than where they are authorized. This inflexibility counters the purpose of the article V amendments — namely, to create a unified court system responsive to geographic needs with judges who can be assigned wherever they are needed.

      . “Whenever a vacancy shall occur in the office of judge of any of the following courts of this state, to wit: The supreme court, the court of appeals, or in the office of circuit or associate circuit judge within the city of St. Louis and Jackson County, the governor shall fill such vacancy by appointing one of three person possessing the qualifications for such office....” Mo. Const. art. V, sec. 25(a).

      . "At any general election the qualified voters of any judicial circuit outside of the city of St. Louis and Jackson County, may by a majority of those voting on the question elect to have the circuit and associate circuit judges appointed by the governor in the manner provided for by the appointment of judges to the courts designated in section 25(a), or, outside the city of St. Louis and Jackson County, to discontinue any such plan....” Mo. Const. art. V, sec. 25(b).

      . The commissioners serving in the appellate courts at -the time of the 1976 article were analogous to the commissioners whose status is at issue today. The appellate commissioners heard arguments and drafted opinions. The opinions issued by the court were approved by the judges of the court, just as today’s commissioners hear cases and present proposed judgments to judges to be signed.

      . I use the word "retained” to refer to those judges appointed under Mo. Const. art. V, sec. 25 who are subject to periodic retention elections.

      . In 1976, article V of the Missouri Constitution was amended to subsume specialty courts — such as probate, common pleas and family courts — into the circuit courts. Mo. Const., art. V, secs. 27.11, 27.2, 27.3, 27.4, 27.9. Two years after the amendment of the Missouri Constitution, the Missouri legislature authorized the appointment of specialty probate commissioners, section 478.265, seemingly in direct contravention of the voters' action in enacting the new article V.

      . For some "family courts,” the commissioners are paid from a "Family Services and Justice Fund” fed from various "family court” fees. Section 488.2300. I simply note this fact; it is beyond the scope of this opinion to include a full discussion of how inappropriate it seems to fund public judicial positions with money extracted from litigants.

        . All references to the Missouri statutes are to RSMo 2000 unless otherwise stated.

      . Judge Benton referred to these amendments as the 1979 amendments. January 1, 1979 is the date that the amendments were effective. Mo. Const. art. V. The 1979 amendments referenced by Judge Benton, therefore, are same amendments as those referenced as the 1976 amendments through out this opinion. 1976 was the year that the voters passed the amendments to article V.

      . The legislature apparently recognized the problem that the inflexibility of commissioner positions has created; last session, it enacted section 478.001.2, which authorizes the transfer of a drug court commissioner to counties other than the one in which the commissioner resides and authorized drug court commissioners to serve in DWI and other treatment or "problem solving” courts. House Bill Nos. 1742 and 1674, Session Laws of 2010, p. 429.

      . The statutes listed in this table are statutes that authorize the appointment of commissioners. These statutes do not encompass all legislation addressing commissioners.

      . Juvenile commissioners, who were converted to family court commissioners when the statute was enacted, are not included in the total number of commissioners authorized. Section 487.020.

      . See Section 478.266 ("... Subject to the approval or rejection by the judge of the probate court, the deputy commissioner shall have all the powers and duties of the clerk of the probate division and such judge.”), compare section 478.265 ("Subject to approval or rejection by the judge of the probate division, the commissioner shall have all the powers and duties of such judge.... ”).


source: Caselaw Access Project

author: DON E. BURRELL, Judge.

license: Public Domain

text:
    In the Interest of: N.J.B., Minor W.N.W., Natural Mother, Appellant, v. Greene County Juvenile Office, Respondent.
    No. SD 30480.
    Missouri Court of Appeals, Southern District, Division One.
    Oct. 27, 2010.

      M. Elise Branyan Barker, Springfield, MO, for Appellant.
    Bill Prince, Springfield, MO, for Respondent.
   DON E. BURRELL, Judge.

On January 14, 2010, N.J.B. (“Juvenile”), the twelve-year-old son of W.N.W. (“Mother”), was taken into protective custody by a deputy juvenile officer (“DJO”). The next day, the DJO filed a petition in the Juvenile Division of the Circuit Court of Greene County (“Juvenile Division”), alleging that

[Mother] is unwilling and/or unable to provide the level of supervision that the juvenile requires. [Juvenile]’s eight-year-old sibling disclosed that [Juvenile] licked the sibling’s vagina, anus, and chest. The sibling had to be hospitalized for suicidal ideations resulting from the sexual contact. A delinquency petition has been filed against [Juvenile].[]

After Mother filed a motion for more definite statement, the DJO filed an amended petition that alleged the sexual contact between Juvenile and his sibling (“Sister”) occurred on or between December 18-22, 2009, and added the claim that “[Mother] does not believe [Sister][,] thereby placing her at risk of further abuse.”

Following an evidentiary hearing, the Juvenile Division entered an “order and judgment” that found the allegations of the amended petition “with the exception of the allegation that [Sister] threatened to kill herself due to the abuse, filed by the Juvenile Office are true and that [Juvenile] comes and/or continues to come within the provisions of § 211.031.1(l)RSMo.” The Juvenile Division further found that “[r]e-moval of [Juvenile] from [Juvenile]’s home was necessary to protect [Juvenile] and further efforts could not have prevented or shortened the separation of the family because: [c]oncerns regarding willingness of Mother to believe [Sister’s] sexual abuse allegations.”

Mother now timely appeals the Juvenile Division’s order taking “jurisdiction” over Juvenile, asserting it was not supported by substantial evidence.

Facts

The facts, and the reasonable inferences from the facts, are viewed in the light most favorable to the decision of the trial court. In re M.R.F., 907 S.W.2d 787, 789 (Mo.App. S.D.1995). An investigator for the Children’s Division, Dana Kluesner, testified that on December 21, 2009, she investigated a hotline report that alleged one sibling had perpetrated abuse against another sibling at Mother’s home. Another investigator, Renae Wehmeier, testified that at some point Sister told Mother that Juvenile “licked her boobs and her butt.” Kluesner went to Mother’s home and implemented a safety plan that temporarily placed Sister and another sibling in a safe house away from Juvenile until the Children’s Division investigation could be completed. Mother was emotional upon hearing the nature of the investigation and indicated to Kluesner that she did not believe Juvenile had abused Sister. Nonetheless, Mother cooperated and permitted Kluesner to speak with the children individually.

Juvenile first told Kluesner that Sister made him do it. Juvenile later stated that he did not do it and Sister was lying. He further stated that the only time he had touched Sister was when they had previously lived with their father (“Father”). Sister told Kluesner that [Juvenile] had touched her after he came home from Boys and Girls Town. Juvenile had been in residential treatment at Boys and Girls Town for approximately six months for “defiance or problems with following rules.”

Before closing her investigation at the end of December, Kluesner drafted a second safety plan that was intended to allow Juvenile to again reside with Sister and his other sibling in Mother’s home. That safety plan “just stated when they’re home, [Mother] is to keep them at least supervised and to keep them separated especially at bedtime they’re not to be in the same room.” When Kluesner recommended that Mother put alarms on the door, Mother told Kluesner “she didn’t have doors on the bedrooms at that time because of some prior hotlines, I guess. She had informed me [of] some problems that she had so she decided just to take the doors off of the bedrooms.” It does not appear that this second safety plan was ever implemented as the investigation continued and Juvenile did not actually return to Mother’s home.

The investigation was continued by Wehmeier when the Children’s Division received a second hotline report involving the same incident. The first hotline report had apparently focused on whether Juvenile had abused Sister, while the second focused on whether Mother had failed to provide adequate supervision by permitting the abuse to occur. Mother voluntarily placed Juvenile in the home of a nurse who worked at Boys and Girls Town (“Nurse”). The DJO then placed Juvenile into protective custody when Nurse could no longer care for Juvenile in her home and “there were concerns about [Mother] believing that anything had occurred[.]” Father was out of state and was subject to a court order that prohibited his having any contact with the children.

Wehmeier met with Mother on January 6, 2010, and Mother told Wehmeier that she was not sure if the incident actually happened because she wondered if Sister was confusing nightmares with reality. Mother again cooperated with the Children’s Division investigator, providing her with information about the children’s counselors and doctors. Wehmeier felt that Sister needed additional help with issues she faced and that it would be difficult for her to make progress with Juvenile in the home.

Sister was interviewed at the Child Advocacy Center in Springfield by forensic interviewer Kim Lowery-Grimm. A video recording of the interview was admitted into evidence at the hearing. Mother did not include that exhibit in the record on appeal. As a result, we will infer that it would not be favorable to her and instead supports the ruling of trial court. Shadow Lake of Noel, Inc. v. Supervisor of Liquor Control, 893 S.W.2d 835, 839 (Mo.App. S.D.1995). The trial court stated that the videotaped interview demonstrated

that [Sister] had fairly good recall, not only as to what she claims [Juvenile] did, but also such things as quoting which is something that [sic] teach us to look for in these interviews. Children who make up things oftentimes aren’t able to specify specific clothing, things such as that.
Based on that, I do find that there is sufficient evidence to want [sic] the Court taking jurisdiction in this matter over [Juvenile] except I do not find in my review of the hospital reports — and certainly [name of the attorney for the DJO] if something in there might be [sic] to point it out to me, but I do not see anything to support the allegation that [Sister] was hospitalized — she was hospitalized for suicidal ideations, but I don’t have anything before me that it was a[sic] resulting from the sexual contact.

Sister’s records from Burrell Behavioral Health and Lakeland Hospital were also admitted into evidence, and the trial court took judicial notice of other court files involving the family. A psychological report on Sister prepared by “Dr. Bradford” was offered by Mother’s counsel and received into evidence without objection.

Mother presented the testimony of a therapist, Joe Martin, who worked with Juvenile at Boys and Girls Town when Juvenile resided there. Martin testified that he never saw Juvenile act out sexually or say sexual things. Martin did not feel that Juvenile would present a danger to anyone when he was transitioned home in June 2009. He thought Mother was consistent with the other children and “was really doing well with [Juvenile].”

A family counselor, Dr. Robert Gladden, testified that he worked with Mother and her children in 2008 and up to September 2009. He never saw Juvenile say or do anything of a sexual nature to Sister. While he questioned Sister’s veracity in some respects, he believed that Father had done horrible things to the children and was concerned that Father had made Juvenile do inappropriate things to Sister. Dr. Gladden testified that Mother would probably be able to manage the children and protect them from each other.

Analysis

In cases involving the abuse or neglect of children, the standard of appellate review is the same as that applied in other court-tried civil cases. In re L.W., 830 S.W.2d 885, 886 (Mo.App. S.D.1992). The judgment must be sustained unless it lacks substantial evidence, is against the weight of the evidence, erroneously declares the law, or erroneously applies the law. Id. The allegations must be established to the trial court by clear and convincing evidence. In re D.K.S., 106 S.W.3d 616, 619 n. 1 (Mo.App. W.D.2003). “Evidence is clear, cogent and convincing when it instantly tilts the scales in the affirmative when weighed against the evidence in opposition and the fact finder’s mind is left with an abiding conviction that the evidence is true.” In re A.M.C., 983 S.W.2d 635, 637 (Mo.App. S.D.1999).

“The reviewing court defers to the trial court on issues of fact and the credibility of witnesses.” In re T.B., 936 S.W.2d 913, 914 (Mo.App. W.D.1997). “In our review, we are mindful that the [juvenile division] was in a superior position to judge the credibility of the witnesses and that it was free to believe all, part, or none of the witnesses’ testimony.” In re B.C.K., 103 S.W.3d 319, 322 (Mo.App. S.D.2003). Conflicting evidence is viewed in the light most favorable to the trial court’s determination. In re C.F.C., 156 S.W.3d 422, 426 (Mo.App. E.D.2005).

Mother’s point relied on states:

The trial court erred to the prejudice of [Mother] when it determined that the allegations contained in the first amended petition were true and that [Juvenile] came within the provisions of section 211.031.1(1) in that there was insufficient evidence for the court to find that the evidence presented clearly, cogently, and convincingly demonstrated that [Mother] was unwilling or unable to provide the level of supervision that [Juvenile] requires or had otherwise neglected or refused to .provide the child with the proper support, education, medical, surgical or other care necessary for his well-being, or that the minor child was without proper care, custody or support and control in that testimony clearly indicated that [Mother] had continued to access mental health services even after the juvenile case was closed, had cooperated fully -with the Children’s Division investigation, had met with juvenile officers and had followed safety plans as set forth by the Children’s Division and [Juvenile Division].

The trial court’s determination was that the DJO presented sufficient evidence to allow the Juvenile Division to assume “jurisdiction” of Juvenile pursuant to section 211.031.1(1). The pertinent portion of that statute provides:

1. Except as otherwise provided in this chapter, the juvenile court or the family court in circuits that have a family court as provided in sections 487.010 to 487.190, RSMo, shall have exclusive original jurisdiction in proceedings:
(1) Involving any child or person seventeen years of age who may be a resident of or found within the county and who is alleged to be in need of care and treatment because:
(a) The parents, or other persons legally responsible for the care and support of the child or person seventeen years of age, neglect or refuse to provide proper support, education which is required by law, medical, surgical or other care necessary for his or her well-being; except that reliance by a parent, guardian or custodian upon remedial treatment other than medical or surgical treatment for a child or person seventeen years of age shall not be construed as neglect when the treatment is recognized or permitted pursuant to the laws of this state;
(b) The child or person seventeen years of age is otherwise without proper care, custody or support; or
(d) The child or person seventeen years of age is a child in need of mental health services and the parent, guardian or custodian is unable to afford or access appropriate mental health treatment or care for the child[.]

Section 211.031.1(1). The trial court’s order does not specify which subsection(s) of section 211.031.1(1) was/were applicable in this case, and Mother does not specifically appeal the order on the grounds that it failed to do so. She also has not alleged that she received inadequate notice of the statutory grounds being asserted by the DJO or that the allegations in the petition were insufficient to warrant a hearing. Instead, Mother alleges, presumably in reference to the neglect provisions set forth in section 211.031.1(l)(a), that there was insufficient proof that she “was unwilling or unable to provide the level of supervision that [Juvenile] requires or had otherwise neglected or refused to provide [Juvenile] with the proper support,” and, presumably in reference to section 211.031.1(l)(b), that there was insufficient proof “that [Juvenile] was without proper care, custody, or support and control[.]” Mother’s evidentiary challenge focuses on two areas: 1) Sister’s credibility and the evidence contrary to her account; and 2) Mother’s cooperation with the Children’s Division and compliance with its safety plans.

Credibility determinations are the province of the trial court, which found that Sister “had fairly good recall, not only as to what she claims [Juvenile] did, but also such things as quoting which is something that [sic] teach us to look for in these interviews.” The trial court found that Sister “was not making it up.” We defer to those credibility assessments. In re T.B., 936 S.W.2d at 914. In assessing the sufficiency of the evidence to support the trial court’s assumption of “jurisdiction” over Juvenile, we do not disturb its determination that the sexual contact incident described by Sister did in fact occur. See In re C.F.C., 156 S.W.3d at 426.

As to Mother’s cooperation with the Children’s Division and Juvenile Division, Mother points out that “[although [Mother] may have expressed disbelief at the allegations of inappropriate touching by [Juvenile], there is nothing in the record that indicates that she failed to take measures to protect [Sister] upon learning of the allegations or took adverse action against [Sister] for making the allegations.” Respondent argues that Mother’s “refusal [to believe Sister] placed both [Juvenile] and the victim in the position for future abuse and the criminal consequences thereof for committing that abuse[]” and that this constituted neglect under Section 211.031.1. Sufficient evidence supported the trial court’s conclusion that Mother doubted whether Juvenile sexually touched Sister. Neither party presents case law addressing whether a parent’s doubt that sexual abuse has occurred constitutes neglect, per se, and we make no such holding here as Mother’s disbelief is not the only fact supporting the trial court’s neglect finding.

Respondent relies on the definition of “neglect” set forth in section 210.110(12)— the “failure to provide, by those responsible for the care, custody, and control of the child, the proper or necessary support, education as required by law, nutrition or medical, surgical, or any other care necessary for the child’s well-being[.]” Respondent also cites the definition of neglect applied in In re C—F—B, 497 S.W.2d 831, 837 (Mo.App.K.C.D.1973) — “a failure by the parents to supply the minimum quality of care which the community will tolerate.”

The DJO’s amended petition alleged Mother was “unwilling and/or unable to provide the level of supervision that [Juvenile] requires. [Juvenile]’s eight-year-old sibling disclosed that on or between December 18, 2009[,] and December 22, 2009, [Juvenile] licked the sibling’s vagina, anus, and chest.... ” The trial court found that these allegations were true and that “[s]afety in [the] home cannot be assured.” The DJO did not allege that Mother refused to cooperate with Children’s Division, and both investigators testified that Mother was generally cooperative and was candid about the limitations of her home. While cooperation with Children’s Division is a good thing, a parent’s inability to provide the necessary care and support demanded by a particular situation may constitute neglect even if that inability is unintended.

In the context of an action to terminate parental rights, the Western District addressed an instance of “unintended” neglect as follows:

Most basically, intent and neglect are mutually exclusive, in that intent refers to a willful act, while “[n]eglect has been described in the context of a termination of parental rights proceeding as ‘a general and a negative proposition meaning simply the failure to perform the duty with which a parent is charged by the law and by conscience.’ ” In re S.L.N., 8 S.W.Sd 916, 928 n. 5 (Mo.App. S.D.2000), quoting, In Interest of S.K.L., 480 S.W.2d 119, 124 (Mo.App.1972) (emphasis added). As one does not intend neglect, the fact that Mother may not have intended to neglect her children cannot preclude a finding that she did neglect them and did allow conditions to develop through neglect that could lead to abuse. No-doubt for this reason, the issues in a termination proceeding under [s]ection 211.447.4(3) for continuation of conditions of neglect do not primarily involve the parent’s intent, but rather whether the conditions that led to the assumption of jurisdiction still exist or whether conditions of a potentially harmful nature continue to exist. In other words, it is the continued existence of an unreme-died, neglectful situation that is the ultimate issue.

In re J.K., 38 S.W.3d 495, 500 (Mo.App. W.D.2001).

The evidence regarding a lack of bedroom doors demonstrated that Mother’s home was not equipped to effectively keep her children from having unsupervised contact with one another while mother was asleep. Mother’s limited ability to otherwise control Juvenile was demonstrated by his recent return from a residential facility for “defiance or problems with following rules.” Despite Mother’s efforts and her cooperation with Children’s Division, Juvenile’s voluntary placement with Nurse was unable to continue. The trial court concluded that Mother’s own witness, Dr. Bradford, recommended that, at a minimum, the children be separated for a long period of time. The trial court agreed with Respondent’s counsel’s statement, based on Dr. Bradford’s report, that Sister needed “an extraordinary amount of attention to prevent sexual play or events from happening.” While Wehmeier expressed concern that Mother doubted whether, the sexual touching had occurred, a more basic concern was that Mother would have been unable to prevent Juvenile from having access to Sister even if Mother had been absolutely convinced that such a separation was necessary.

Although Mother correctly asserts that she accessed available mental health services and cooperated with the Children’s Division by following its safety plans, substantial evidence supported the trial court’s determination that: 1) Juvenile sexually touched his younger sister; and 2) Mother could not (at the time of the evi-dentiary hearing) properly provide Juvenile with the necessary care and support.

Mother’s point is denied, and the trial court’s March 2, 2010, order is affirmed.

BARNEY, P.J. and LYNCH, J., Concur.

      . The petition also alleged that Juvenile's father was not a suitable custodian for the child. Juvenile’s father is not a party to this appeal. At the time of the evidentiary hearing, Juvenile's father resided in Indiana, and allegations had surfaced that he had sexually abused the children.

      . All statutory references are to RSMo Cum. Supp.2006. A determination that a particular juvenile's circumstances meet the criteria set forth in section 211.031.1 has commonly been referred to as a finding that the juvenile is within the "jurisdiction” of the juvenile division of the circuit court. Our placement of the term "jurisdiction” within quotation marks in this opinion is used as a means of indicating that the term is being used in this customary manner and not in reference to either subject-matter or personal jurisdiction.

      . These court files were also not included in the record on appeal. As with the video recording, we likewise assume that the contents of these files would support the trial court’s order.

      . The trial court's order found that the allegations stated in the amended petition, with one exception, were true, but made no specific references to any subsections of Section 211.031.1(1). Likewise, the DJO's amended petition relied on the general provision of section 211.031.1 and did not refer to any particular subsections of section 211.031.1(1).

      . After the trial court announced it was taking "jurisdiction” over Juvenile, Respondent's counsel stated,

        You know, this is a hard case, Judge, in terms of the disposition in this case.... I'm beginning to wonder if we — we got the right kid in care. I mean, I’m a little concerned about [Sister]. You know, because all I’ve heard is that she's, you know, inferentially she’s — she can’t tell the truth. She can’t differentiate, you know, fiction from reality and we’re worried about her. But again, this case is about [Juvenile]. So that’s — that's kind of where we're at.
      Counsel’s opinion as to Sister’s veracity was not binding on the trial court, which did not reconsider its announced decision after this statement by Respondent’s counsel was made.

      . In cases involving the abuse of one child by another, when both children reside in the home, a failure to support or properly care could presumably apply to both the victim and the perpetrator of the abuse.

      . We should also point out that if Sister's allegations had been false, proper care for Juvenile would include an ability by Mother to keep Juvenile and Sister separated in order to prevent any additional false accusations by Sister that could subject Juvenile to additional delinquency charges.

      . The dispositional provisions of the trial court’s order have not been challenged on appeal.


author: PER CURIAM.

text:
    STATE OF MISSOURI ex rel. S.W., Relator, v. Honorable Judge Mark E. FITZSIMMONS and Honorable Commissioner John P. Lukachick, Respondents.
    No. SD 30873.
    Missouri Court of Appeals, Southern District, Division Two.
    Nov. 15, 2010.
    Daniel Eugene Sakaguchi, St. Louis, MO, for Relator.
    Jason William Johnson, Jefferson City, MO, for Respondents.
    Before BATES, J., SCOTT, C.J., and FRANCIS, J.
   PER CURIAM.

Relator, S.W., seeks a writ of prohibition to prohibit Respondents, the Honorable Mark E. Fitzsimmons, Associate Circuit Judge, and the Honorable John P. Luka-chick, Commissioner, from ordering her to pay the costs of a psychological evaluation in a civil paternity action. She contends' that she cannot be required to pay such costs because she is represented in the case by a legal services organization that has filed with the clerk of the circuit court a certificate containing its determination that Relator is unable to pay costs, fees and expenses in compliance with § 514.040.3. Having reviewed and considered Relator’s petition and exhibits, as well as Respondents’ suggestions in opposition, we find that the facts and law are clear. Accordingly, in the interest of justice, we hereby dispense with all further procedure in this matter and issue a peremptory writ in prohibition. Rule 84.24(j) and (l ).

The facts are undisputed. Relator is a respondent in a paternity action in the Circuit Court of Greene County, Missouri (the trial court). On or around April 29, 2010, the petitioner in the paternity action filed a motion asking the trial court to order Relator to submit to a psychological evaluation and to order Relator to pay the costs of such evaluation. On May 11, 2010, Respondent Lukachick entered an order granting the petitioner’s motion and directing Relator to present herself for a psychological evaluation. The order further directed Relator to pay the costs of the evaluation. Relator filed two motions for relief from the May 11th order, both arguing that the trial court could not order her to pay the costs of the psychological evaluation by reason of § 514.040.3. Respondents denied her motions. Relator then filed her petition for writ of prohibition in this court.

Section 514.040.3 provides:

Where a party is represented in a civil action by a legal aid society or a legal services or other nonprofit organization funded in whole or substantial part by moneys appropriated by the general assembly of the state of Missouri, which has as its primary purpose the furnishing of legal services to indigent persons, or by private counsel working on behalf of or under the auspices of such society, all costs and expenses related to the prosecution of the suit may be waived without the necessity of a motion and court approval, provided that a determination has been made by such society or organization that such party is unable to pay the costs, fees and expenses necessary to prosecute or defend the action, and that a certification that such determination has been made is filed with the clerk of the court.

Relator is represented in the underlying case by an attorney working under the auspices of Legal Services of Southern Missouri (LSSM). On November 4, 2009, the managing attorney for LSSM filed with the clerk of the trial court a “Certificate of Inability to Pay Costs, Fees, and Expenses” on behalf of Relator. The certificate reflects that LSSM is a nonprofit organization that provides legal services to the poor and is funded in substantial part by appropriations from the general assembly of the state of Missouri. Additionally, the certificate includes LSSM’s determination that Relator “is unable to pay the costs, fees and expenses necessary to prosecute or defend this action.”

This Court has held that once the certificate required by § 514.040.3 has been filed, “the trial court does not have discretion to assess fees, costs, and expenses.” Bober v. Bober, 277 S.W.3d 294, 297 (Mo.App.2009); see State ex rel. Holterman v. Patterson, 24 S.W.3d 784, 786 (Mo.App.2000). Respondents’ suggestions concede that “[t]here’s no question that [Relator] meets the requirements of eligibility” for the waiver of costs under § 514.040.3. They assert, however, that the “psychological evaluation ordered by Commissioner Lukachick does not fall within the definition of ‘costs’ ” waived by § 514.040.3. Because it is undisputed that Relator has met the qualifications for waiver of costs under § 514.040.3, the only issue to be resolved by this Court is whether a court-ordered psychological evaluation constitutes a cost or expense “related to the prosecution of the suit” within the meaning of the statute. This appears to be a matter of first impression.

This Court has previously held that guardian ad litem (GAL) fees are waived by operation of § 514.040.3. Holterman, 24 S.W.3d at 786 (issuing a peremptory writ in prohibition directing the trial court to set aside an order that required a party who had met the conditions of § 514.040.3 to pay a portion of the GAL fees); see Bober, 277 S.W.3d at 297 (reversing a trial court judgment that ordered a party who had met the conditions of § 514.040.3 to pay a portion of GAL fees); Carpenter v. Carpenter, 159 S.W.3d 880, 883 (Mo.App.2005) (same holding). Similarly, in Versey v. Jirak, 219 S.W.3d 774, 777 (Mo.App.2007), the court reversed a judgment that ordered a party who had met the conditions of § 514.040.3 to pay a portion of the other party’s attorney fees and that held her jointly and severally liable for GAL fees.

By its terms, § 514.040.3 broadly waives “all costs and expenses related to the prosecution of the suit.” Given this language, we find no reasonable basis for treating the costs of a court-ordered psychological evaluation differently than GAL fees. This is particularly true where, as here, the psychological evaluation is ordered at the request of a party-opponent, who is also the petitioner in the trial court. Such costs clearly relate to the prosecution of the suit by the petitioner.

For these reasons, we hereby enter a peremptory writ in prohibition by which we prohibit Respondents from requiring Relator to pay the costs of the court-ordered psychological evaluation in the underlying case. We further direct Respondents to set aside all prior orders requiring Relator to pay such costs.

      . With few exceptions, § 210.846 RSMo (2000) limits access to the "papers and records” in a paternity action. In an effort to preserve the confidentiality of the records in the underlying case, we refer to Relator by her initials.

      . All references to § 514.040.3 are to RSMo (2000).

      . All rule references are to Missouri Court Rules (2010).

      . In their suggestions, Respondents rely exclusively on State ex rel. Taylor v. Clymer, 503 S.W.2d 53, 55 (Mo.App.1973), to argue that § 514.040 waives only costs that are “necessary to ensure ... ‘access to the court.' " We note that Taylor did not involve or consider the language of § 514.040.3, which was not added to the statute until 1999. See 1999 Mo. Laws 863-64; § 514.040 RSMo Cum.Supp. (1999). Thus, Respondents' reliance on Taylor is misplaced, at best. Respondents’ suggestions do not specifically address whether the court-ordered psychological evaluation is a cost or expense "related to the prosecution of the suit” within the meaning of § 514.040.3.


text:
    Larry and Paula CASON, and Donnie and Kelly Hatton, Plaintiffs-Respondents, v. James KING, Defendant-Appellant.
    No. SD 30183.
    Missouri Court of Appeals, Southern District, Division One.
    Nov. 18, 2010.

      David Simpson, St. James, MO, for Appellant.
    Shelley L. Woodward, Cuba, MO, for Respondents.
   DON E. BURRELL, Judge.

James King (“Defendant”) timely appeals a civil judgment for monetary damages entered against him in favor of plaintiffs Larry and Paula Cason (“the Casons”) and Donnie and Kelly Hatton (“the Hat-tons”) (collectively, “Plaintiffs”) after a bench trial. The suit arose out of work Defendant performed on two septic systems. The judgment awarded the Casons $3,500, representing the cost to repair their defective septic system, plus $5,000 for the loss of the full use of their property. The judgment awarded the Hattons $4,900 for the cost to repair their septic system.

Defendant presents one point on appeal, asserting the trial court erred in awarding damages “because the evidence was insufficient to prove damages in that neither [set of] Plaintiffs] produced any evidence regarding diminution in land value and the court therefore had no basis for awarding repair costs[.]” In the same point, Defendant also asserts that Mr. Cason failed to “produce any evidence supporting the $5,000 amount that the court awarded him for loss of use of his lake, and [ ] that the proper measure for damages resulting from the loss of use of his lake is either the diminution in value or repair costs.”

Finding merit in Defendant’s claim that the evidence was insufficient to support the amount of the trial court’s loss of use award to the Casons, we reverse that portion of its judgment, affirm the balance, and remand the matter for a new trial on the limited issue of damages suffered by the Casons as a result of their lake being contaminated by the defective septic system installed by Defendant.

Facts

In a court-tried case, “[a]ll evidence and permissible inferences therefrom are considered in the light most favorable to the trial court’s decision, and all contrary-evidence and inferences are disregarded.” Pruitt v. Pruitt, 94 S.W.3d 429, 431 (Mo.App. E.D.2003). To his credit, Defendant agrees that “[t]he evidence in this case viewed in a light most favorable to [Plaintiffs] supported the trial court’s finding of contract and breach, but there was insufficient evidence of damages.” We summarize the facts of this case with that standard and Defendant’s concession in mind.

The Casons lived on a 100-acre cattle farm in Owensville. The Hattons, who were the Casons’ daughter and son-in-law, owned a house on neighboring land. In July 2000, Mr. Cason was adding a seven-acre lake to his property and hired Defendant to add a new ground field to his existing septic system. Mr. Cason told Defendant “that [he] was installing the septic field because [he] was building a new lake and [he] didn’t want the raw sewage draining into the lake.” Defendant installed approximately 220 feet of pipe to create the new ground field, and Mr. Ca-son paid Defendant $1,500 for this work. “A few weeks after the installation^] after [Defendant] had left, [the system] started leaking sewage to the surface and smelling.”

Mr. Cason contacted Defendant, who attempted repairs. Over the next several years, problems with sewage seeping to the surface of the ground continued. Defendant’s additional attempts to fix the problems were unsuccessful, and the instant lawsuit was filed in May 2005. In June 2006, Mr. Cason had the septic system replaced by a new contractor for $3,500. The replacement system was rerouted to a new field, additional pipe was used, and the system was “slightly larger” than the prior system. After the new system was installed, no more leaks occurred.

Mr. Cason planned on using his new lake for recreation and to water his cattle. The lake was not finished until after the septic system started leaking. Sewage seeped into the lake from a cesspool that resulted from the leaking system. Additional sewage ran into the lake whenever Defendant would open the system in furtherance of his attempts to repair it. The odor from the leaking sewage on the Ca-sons’ property was so bad during these times that the family and their guests could not remain outside. The water in the lake also began to emit a foul odor, and Mr. Cason could not use it to water his cattle. Children did swim in the lake, although they had to bathe afterwards, and the Casons generally did not keep “very many” fish caught in the lake.

The lake remained malodorous after the replacement system was installed. The lake was not drained after the sewage leaks had occurred, and Mr. Cason did not attempt to purify the water or otherwise clean the lake. Mr. Cason testified that “[t]he lake cost well over $10,000 to build[.]” Mr. Cason requested “maybe $5,000” as damages for the Casons’ loss of use of the lake. No evidence, other than the original cost to build the lake, was offered as support for the amount requested.

Defendant installed a new septic system for the Hattons’ home shortly before he installed the ground field for the Casons. Mr. Hatton paid Defendant $3,000 for the septic system. Approximately four-to-six months after the system was installed, Mr. Hatton began to notice sewage leaching up in his yard. Mr. Hatton called Defendant about it. Defendant came out to look at it, but did not make any repairs. Defendant suggested that perhaps Mr. Hatton had run over the system and broken a pipe.

Mr. Hatton then had another contractor inspect the system. That contractor did not find a broken pipe. He repaired the Hattons’ septic system by installing both a pump station and a new ground field using additional pipe. The cost of the replacement system was $4,900.00.

Standard of Review

The judgment of the trial court must be affirmed “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). “Substantial evidence is competent evidence which, if believed, would have probative force upon the issues.” State ex rel. Gannett Outdoor Co. of Kansas City v. City of Lee’s Summit, 957 S.W.2d 416, 419 (Mo.App. W.D.1997) (citing Citizens for Rural Preservation, Inc. v. Robinett, 648 S.W.2d 117, 124 (Mo.App. W.D.1982)). In reviewing the evidence presented at trial, we “give due regard to the opportunity of the trial court to have judged the credibility of witnesses])]” Rule 84.13(d)(2).

Analysis

Defendant claims the trial court misapplied the law and that its judgment is not supported by substantial evidence. At the outset, we note that Defendant’s point relied on improperly asserts more than one claim of error. It states:

The trial court erred in awarding the amount of damages to both [the Casons and the Hattons] because the evidence was insufficient to prove damages in that neither [the Casons nor the Hat-tons] produced any evidence regarding diminution in land value and the court therefore had no basis for awarding repair costs, in that [Mr. Cason] did not produce any evidence supporting the $5,000 amount that the court awarded him for loss of use of his lake, and that the proper measure for damages resulting from the loss of use of his lake is either the diminution in value or repair costs.

A point relied on must identify a single trial court ruling that is challenged, state concisely the applicable legal principle(s) supporting that challenge, then summarize how the legal reason(s) stated apply to the facts of the case. Rule 84.04(d). Defendant’s single point attempts to challenge the trial court’s ruling on cost of repair damages as to both the Casons and the Hattons as well as its loss of use award to the Casons. A point that groups together multiple contentions of error does not satisfy Rule 84.04. Martin v. Reed, 147 S.W.3d 860, 863 (Mo.App. S.D.2004).

From the argument section of Defendant’s brief, we discern that his primary complaints are: 1) evidence of diminution in value must always be produced before evidence of cost of repair can be received and Plaintiffs presented no such evidence; and 2) insufficient evidence was presented as to the damages suffered by the Casons due to the loss of use of their lake. Because there is a preference that appeals be resolved on the merits whenever possible, and the deficiency of Defendant’s point does not substantially impede appellate review, we will address his claims of error ex gratia. See Comp & Soft, Inc. v. AT & T Corp., 252 S.W.3d 189, 194 (Mo.App. E.D.2008) (noting the policy preference and granting ex gratia review when the “gist” of the appellant’s arguments could be discerned).

Actual Damages Based on Cost of Repair

Defendant argues the trial court misapplied the law by awarding cost of repair damages without first determining that the cost of repair was less than any diminution to the value of the properties caused by his breach of contract. The trial court’s judgment stated:

The court, having taken the matter under advisement, now finds the issues contained in Counts I [the Casons’ breach of contract claim] and V [the Hattons’ breach of contract claim] in favor of the Plaintiffs and against the Defendant. The [c]ourt finds that there are due to Plaintiffs from the Defendant the following amounts:
To [the Casons]:
Cost of Repair in the amount of Three Thousand Five Hundred Dollars ($3500.00) and for Loss of Use of the property and pond the amount of Five Thousand Dollars ($5000.00) for a total amount of Eight Thousand Five Hundred Dollars ($8500.00).
To [the Hattons]:
Cost of Repair in the amount of Four Thousand Nine Hundred Dollars ($4900.00).

“A plaintiff claiming a breach of contract has available and need not choose between three types of damages — actual, consequential, and benefit-of-the-bargain— as such damages are not necessarily inconsistent with one another; a plaintiff may not, however, be made whole more than once.” Catroppa v. Metal Bldg. Supply, Inc., 267 S.W.3d 812, 817 (Mo.App. S.D.2008). Actual damages are intended to compensate for the loss sustained and are the reasonable cost of conforming the subject of the contract to the specifications of the contract. Id. at 818. For instance, in Catroppa, plaintiff contracted with defendant to build an outdoor stage with a roof, but the roof leaked because it was not built as designed. Id. at 815. Plaintiffs damages were held to be “the reasonable cost of conforming the stage roof to the contract specifications.” Id. at 818. Here, the Casons and Hattons presented evidence that it cost them $8,500 and $4,900, respectively, to have new contractors replace their faulty septic systems with ones that did not allow sewage to leach to the surface.

Damages resulting from a faulty septic system were considered in the context of a real estate contract in Kelsey v. Nathey, 869 S.W.2d 213 (Mo.App. W.D.1993). In Kelsey, defendant argued that plaintiff failed to make a sufficient case as to damages because plaintiff proved the cost of repair but offered no proof as to the property’s diminution in value. Id. at 218. On review, the Western District rejected this argument, and upheld the damage award for breach of contract in the amount necessary to fix the septic system. Id.

Defendant asserts here the same argument that failed in Kelsey, but cites other cases, Plunk v. Hedrick Concrete Prod. Corp., 870 S.W.2d 942, 944 (Mo.App. S.D.1994); Sheridan v. Sunset Pools of St. Louis, Inc., 750 S.W.2d 639, 641-42 (Mo.App. E.D.1988); Lewis v. Lawless Homes, Inc., 984 S.W.2d 583, 586 (Mo.App. E.D.1999); and King v. City of Independence, 64 S.W.3d 335, 342 (Mo.App. W.D.2002), overruled on other grounds by George Ward Builders, Inc. v. City of Lee’s Summit, 157 S.W.3d 644, 650 (Mo.App. W.D.2004), as supporting a general rule that damages are determined by the diminution of value test except when the cost to restore the property is less than the diminution in value.

In another case cited by Defendant, Evans v. Werle, 31 S.W.3d 489 (Mo.App. W.D.2000), a case decided after Kelsey, the Western District stated that “[a] court [ ] cannot apply cost of repair damages until after it hears evidence of value.” Id. at 492. Based on the cases he cites, Defendant asserts it is reversible error for a trial court to award cost of repair damages when no evidence of diminution in value has been presented.

Just what rule of law the trial court should have applied has not been consistently expressed in the existing case law. Of the cases cited by Defendant, Evans is perhaps the most challenging to reconcile with other breach of contract cases. In Evans, the plaintiffs proved that the roof installed by the defendant leaked and regularly lost shingles during storms. 31 S.W.3d at 490-91. The plaintiffs sued based on an express warranty contained in the contract. Id. at 491. The proof of damages offered by one of the plaintiffs consisted of her hearsay statements regarding an average cost to repair the roof based upon various estimates she had obtained. Id. at 492. The defendant objected to the testimony at trial, and the reviewing court found that the statements should not have been received into evidence. Id. Without plaintiffs’ hearsay evidence, there was no proof of any type of damages. Id. The defendant had asserted diminution in value as the proper method of determining damages, and the court stated:

Even if-[one of the plaintiffl’s testimony was not hearsay, it would have been necessary for [plaintiffs] to first provide evidence of the diminution in value of their home due to the roof damage. “In real property cases, courts generally utilize the ‘diminution in value’ test, turning only to the ‘cost of repair’ test when it constitutes a lower amount of recovery.” Business Men’s Assur. Co. of America v. Graham, 891 S.W.2d 438, 450 (Mo.App.1994), affirmed after remand and transfer 984 S.W.2d 501 (Mo. banc 1999). “In defective construction cases, on the other hand, the ‘cost of repair’ test is favored, so that courts normally determine the damages by assessing the cost of correcting the defects or supplying the omissions.” Id. A court, however, cannot apply cost of repair damages until after it hears evidence of value. Flora v. Amega Mobile Home Sales, Inc., 958 S.W.2d 322, 324 (Mo.App.1998). Without evidence of the cost of repair of the roof or the diminution in value of their home, [plaintiffs] did not provide sufficient evidence of damages, and in turn, did not make a submissible case for breach of contract. Their claim, however, does give rise to nominal damages.

Id. at 492-93.

In Plunk, a case involving damages resulting from a breach of an implied warranty of merchantability regarding bricks installed on a house, the homeowner’s testimony as to diminution in value was held sufficient. 870 S.W.2d at 943-44. The court stated that “[i]n cases involving a breach of implied warranty, the general measure of damages is the lower of the cost of repair or diminution in value unless the facts require a different standard.” Id. at 944 (emphasis added).

In Sheridan, the court reversed and remanded a judgment based on the cost to replace an in-ground swimming pool after the defendant negligently drained it because “no evidence of diminution in value was presented to the trial court.” 750 S.W.2d at 642.

In Lewis, a backhoe was negligently damaged, but “there was no evidence of the monetary diminution in value of the backhoe to compare with the cost of repairs.” 984 S.W.2d at 586. The case was reversed and remanded on the issue of damages. Id. at 587.

In King, a house was damaged by sewage that backed up from a city’s sanitation system, and the owner was awarded damages caused by the nuisance. 64 S.W.3d at 340. The defendant objected when the owner was asked to testify as to what loss in value her home had suffered as a result of the backup. Id. at 341. The objection was overruled, and no other evidence as to loss of value was received. Id. at 342. In discussing the necessity of presenting evidence on diminution in value, the court acknowledged that an exception to the rule applies if the loss is small when compared to the total size and value of the real estate involved such that the injury may easily be repaired. Id. at 340. In such situations, the cost of repair alone may properly be used as a measure of damages. Id.

Plaintiffs assert it is also permissible to rely on the cost of repair alone when the defendant does not inject the issue of economic waste, citing Trident Group, LLC v. Mississippi Valley Roofing, Inc., 279 S.W.3d 192, 200 (Mo.App. E.D.2009).

In Trident, damages were awarded against defendant based on breach of contract. Id. at 197. The defendant complained that the trial court should not have excluded evidence obtained on the eve of trial with a subpoena duces tecum. The excluded evidence would have established that there was no diminution in value to two buildings that had leaky roofs installed by defendant. Id. at 200. The court rejected this argument, stating:

Even assuming the evidence sought by the subpoena would have shown a lack of diminution in value to the real estate, Defendant failed to present the requisite evidence of economic waste in order to make diminution in value the proper measure of damages. Unless Defendant presented evidence that the cost of repair or replacement would constitute economic waste, the proper measure of damages could not have been the diminished value of the property due to the defective work. Dubinsky v. United States Elevator Carp., 22 S.W.3d 747, 751-52 (Mo.App. E.D.2000) (proper measure of damages in a breach of construction contract is cost of repair); see also McLane v. Wal-Mart Stores, Inc., 10 S.W.3d 602, 605 (Mo.App. E.D.2000).

Id.

In Dubinsky v. United States Elevator Corp., 22 S.W.3d 747 (Mo.App. E.D.2000), plaintiffs had a contract with defendant to maintain, repair and replace elevators in plaintiffs’ historic building. Id. at 749. A dispute developed over defendant’s responsibility to repair or replace certain parts in the elevators; the contract was terminated; plaintiffs had repairs made to one, but not all of its elevators; and the subsequent lawsuit resulted in a jury verdict in favor of plaintiffs. Id. at 750-51. Defendant appealed, asserting “plaintiffs failed to establish damages in that they admittedly suffered no diminution of value.” Id. at 751. The court acknowledged the general rule regarding diminution in value for cases involving damage to real property, along with the exception that applies when the damage is small in comparison to the overall value of the property, then stated:

However, the general rule in calculating damages for a breach of contract is that the non-breaching party is entitled to the cost of repairing or replacing the defective work. Ken Cucchi Construction, Inc., v. O’Keefe, 973 S.W.2d 520, 527 (Mo.App. E.D.1998).[] However, if the cost of repair or replacement would constitute an economic waste, then the proper measure of damages is the diminished value of the property because of the defective work.

Id. at 751-52. The court further noted that it is the responsibility of the defendant to inject the issue of economic waste.

Once the landowner presents evidence on the cost of repair or replacement, the contractor has the burden of presenting evidence that the cost of repairing or replacing the property is disproportionate to the diminution in value of the property and if the contractor fails to present any evidence on the diminution of value of the property it fails to meet its burden of production. The rationale for the general rule in favor of cost of repairs recovery is based on the purpose of damages in a contract action, which is to restore a plaintiff to the position plaintiff would have been in if the contract had not been breached, rather than to place plaintiff in a better position.

Id. at 752 (internal citation omitted).

In another case cited by Plaintiffs, homeowners sued for damages for breach of contract when windows in a sunroom installed by defendant leaked during storms. Stom, 153 S.W.3d at 362. The trial court found in favor of the homeowners on liability but awarded no damages because “no evidence was introduced re[garding] diminished value[ — ]only cost of repair.” Id. We reversed, stating:

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

Id. at 364. We concluded that “the trial court erred in applying the law by improperly placing the burden of production of evidence as to diminished value on [plaintiffs] and not [defendant] after [plaintiffs] produced evidence of cost of repair or replacement” ánd remanded the case on the issue of damages. Id. at 365.

In the instant case, the trial court found in favor of the Casons and Hattons on the counts that alleged breach of contract. With the exception of Evans, the cases cited by Defendant and those cited by Plaintiffs may be distinguished based on the cause of action asserted by the plaintiff. Despite the language in Evans requiring evidence of value as a prerequisite to any consideration of cost of repair in a breach of contract case, we do not believe it governs the case at bar for two reasons. First, the statement is dicta as no proper proof of any type of damages was presented. 31 S.W.3d at 492. Second, even if it had been the basis for the court’s decision, it would be in conflict with the better reasoned and more workable approach set forth in Trident, Stom, Erney, Dubinsky, Ken Cucchi Constr., Inc., and Kelsey. Applying the rule as announced in those cases, Plaintiffs were not obligated to present any evidence of diminution in value unless and until Defendant presented “evidence that the cost of repairing or replacing the property [was] disproportionate to the diminution in value of the property[.]” Dubinsky, 22 S.W.3d at 752. Defendant presented no such evidence. As a result, the trial court did not misapply the law in determining Plaintiffs’ actual damages based solely on their evidence of the costs of repair or replacement. To the extent that Defendant’s point challenges the trial court’s actual damages awards to Plaintiffs based on the cost of repair, it is denied.

Consequential Damages for Loss of Use

Defendant further argues that because there was no evidence of diminution in value, “the trial court also committed error by awarding [Mr. Cason] $5,000 in damages for the ‘loss of use’ of his lake.” Defendant concedes that damages for lost profits could theoretically be recovered in a case where a business was affected by a period of repair, but he points out that there was no evidence of lost income here. He also argues that while “[Mr. Cason] may have been entitled to recover damages for the problems caused to his lake by the sewage run-off, [ ] he is not entitled to any amount he asks for.”

The Casons respond that “[a] loss of use award in addition to other damages is not unprecedented” and offer Children Int’l v. Ammon Painting Co., 215 S.W.3d 194 (Mo.App. W.D.2006), as an example. This case involved a breach of contract claim resulting from defendant’s “imprudent performance” in painting plaintiffs printing room floor. Id. at 197. “While preparing the floor of the printing room, [defendant] failed to protect the printing press. The press was severely damaged, by small pieces of shot used to abrade the floor, and later determined to be beyond repair.” Id. As a result, plaintiff suffered the destruction of the printing equipment and additional expenses in hiring someone else to perform printing services. Id. at 197-98. While the reviewing court affirmed the trial court’s remitted amount of loss-of-use damages, the ability to recover damages for loss of use regardless of amount was not at issue. Id.

Damages for loss of use have been regarded as consequential damages. See World Enters., Inc. v. Midcoast Aviation Servs., Inc., 713 S.W.2d 606, 610 (Mo.App. E.D.1986) (holding that a contract provision excluding consequential damages applied to loss-of-use damages). “Consequential damages ‘are those damages naturally and proximately caused by the commission of the breach and those damages that reasonably could have been contemplated by the defendant at the time of the parties’ agreement.’ ” Catroppa, 267 S.W.3d at 818 (quoting Ullrich v. CADCO, Inc., 244 S.W.3d 772, 779 (Mo.App. E.D.2008)). Thus, for the Casons to recover damages for the loss of the use of their lake, those consequential damages must have been reasonably foreseeable to Defendant at the time the contract was made. See Gill Constr. Inc. v. 18th & Vine Auth., 157 S.W.3d 699, 717 (Mo.App. W.D.2004). As long as consequential damages are not duplicative of actual damages, they may be recovered in a claim for breach of contract upon proper proof. Catroppa, 267 S.W.3d at 817-18.

The parties did not request findings of fact and conclusions of law from the trial court, and specific facts supporting its judgment are not stated. As a result, “all issues of fact on which no specific findings were made are considered to have been found in accordance with the judgment.” Ankrom v. Roberts, 126 S.W.3d 798, 800 (Mo.App. S.D.2004); Rule 73.01(c).

In the case at bar, the trial court heard evidence that Mr. Cason contracted with Defendant to enlarge the septic system on the Casons’ property because Mr. Cason was building a lake and did not want sewage to leak into it. Further, Mr. Cason expressly told Defendant that he wanted to prevent sewage from leaking into the lake. Defendant’s friend testified that there was no fence around the septic system’s ground field and that there should have been one “from day one” to keep the cows off of it. The trial court could have inferred that Defendant would also have seen the Casons’ cows, that those cows would have access to the lake, and knew, or should have known, that they would be able to drink from the lake if the water in it was potable. Under these circumstances, the trial court did not err in finding that consequential damages in the form of loss of use of the lake were reasonably foreseeable to Defendant at the time of the parties’ contracting.

We must next consider whether the trial court erred in determining the proper amount of damages to award for that loss of use. Defendant asserts in his point relied on that Mr. Cason “did not produce any evidence supporting the $5,000 amount that the court awarded him for loss of use of his lake[.]”

The trial court heard evidence that the purpose of the lake was to water cattle on the 100-acre farm and provide recreation. The evidence was that the watering function was lost as a result of Defendant’s breach of contract, and the recreation function was restricted. But no evidence was presented as to what it cost the Ca-sons to supply their cattle with water by other means or whether it was feasible to clean the lake and, if so, what such an undertaking would cost. Mr. Cason testified that “[t]he lake cost well over $10,000 to build[.]” He then asked the court to award $5,000 for the Casons’ loss of use of their lake.

An owner is generally entitled to testify as to the value of his property, but “when [the] property owner’s opinion is based on improper elements or an improper foundation his opinion loses its probative value.” Cohen v. Bushmeyer, 251 S.W.3d 345, 349 (Mo.App. E.D.2008) (holding the homeowner’s opinion as to value of his property was insufficient proof of value in an assessment case where the basis for his opinion was speculative). Even if we assume the trial court accepted Mr. Ca-son’s conclusion that the contaminated condition of the lake was wholly attributable to the faulty septic system installed by Defendant, no evidence was presented to establish that the contaminated condition of the lake was permanent. Any such finding would be based on pure speculation.

While one-half of the cost to install the lake might arguably constitute substantial evidence of the value of a permanent loss of one of two intended uses for a private lake, we are not prepared to say that it constitutes substantial evidence of such a loss when the duration of the loss is unknown. As a result, we reverse the trial court’s $5,000 judgment in favor of the Casons for loss of use as not supported by substantial evidence and remand the matter for a new trial on the issue of the Casons’ loss of use damages only. In all other respects, the judgment of the trial court is affirmed.

BARNEY, P.J., and LYNCH, J., Concur.

      . Judgment was granted in favor of the Ca-sons and Hattons as to counts one and five of the amended petition. Counts one and five stated claims for breach of contract. A directed verdict in favor of Defendant was granted at the close of Plaintiffs’ evidence as to the remaining counts alleging breach of warranty of merchantability, breach of warranty as to fitness for a particular use, and fraudulent concealment.

      . Unless otherwise noted, all rule references are to Missouri Court Rules (2010).

      . The plaintiff in Catroppa failed to prove actual damages because he only offered proof of what it originally cost to build the stage. Id. at 818.

      . A claim against a public entity with condemning authority based on a theory of nuisance (distinguished from an inverse-condemnation action) is no longer viable. George Ward Builders, Inc. v. City of Lee’s Summit, 157 S.W.3d 644, 650 and n. 3 (Mo.App. W.D.2004).

      . The loss may also have been based on permanent, not temporary damages. The case was remanded for a new trial on the issue of damages. Id. at 342.

      . Ken Cucchi Constr. involved a claim and cross-claim between a homeowner and a contractor based on a contract to rebuild a house after the original was destroyed by fire. 973 S.W.2d at 522. As to the defective roof installed by the contractor, the homeowner proved the cost to replace the roof, and the contractor insisted that diminution in value should have been used to determine the homeowner’s damages. Id. at 527.

      . In Erney, homeowners sued a contractor for breach of contract involving a botched basement remodel. 84 S.W.3d at 531. The court held that the contractor had the "burden to present evidence that the cost of repair method is disproportionate to the diminution in value, and he presented no such evidence.” Id. at 536.

      . As indicated earlier in the discussion of these cases, the damages were based on: breach of implied warranty of merchantability in Plunk v. Hedrick Concrete Prod. Corp., 870 S.W.2d 942, 944 (Mo.App. S.D.1994); negligence in Sheridan v. Sunset Pools of St. Louis, Inc., 750 S.W.2d 639, 642 (Mo.App. E.D.1988); negligence in Lewis v. Lawless Homes, Inc., 984 S.W.2d 583, 586 (Mo.App. E.D.1999); and, nuisance in King v. City of Independence, 64 S.W.3d 335, 340 (Mo.App. W.D.2002).

      . Defendant does not argue that the amount calculated as repair or replacement damages was not supported by substantial evidence nor that the amount was against the weight of the evidence, see Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), and so we do not review those issues here. The facts suggest that the replacement septic systems cost more than the amounts originally charged by Defendant, and they were in some respects larger than the systems installed by Defendant, but the evidence and reasonable inferences from it supported that the additions were necessary in order to accomplish the same purpose of the original contracts made by Defendant. In Stom v. St. Clair Corp., 153 S.W.3d 360 (Mo.App. S.D.2005), the “repaired" sunroom contained additional windows. Id. at 362. The parties’ evidence as to the cost to repair the sunroom presented "wildly different sums of $7,895.27 [paid by plaintiff to the new contractor] and approximately 20 cents per window [estimated by defendant to replace window screws].” Id. at 365. As the award of zero damages due to lack of evidence of diminution was reversed, the Court declined to "invade the trial court's province, as the trier of fact, to determine the weight and credibility of the evidence as to damages.” Id. The trial court's calculation of cost of repair damages in this case is not disturbed based upon the review sought by Defendant.

      . Defendant cited Southern Missouri Dist. Council of the Assemblies of God v. Hendricks, 807 S.W.2d 141, 147 (Mo.App. S.D.1991) as supporting this theory. This is another case where diminution in value and costs to restore were at issue, but the cause of action in the relevant count was not breach of contract, but trespass. Id. at 147-48. The court contemplated the possibility of damages for loss of rent while the property was held by the trespassers, but found that no evidence of the rental value had been presented. Id.

      . The trial court may have simply concluded that the Casons were entitled to compensation for half of the minimum it cost them to build the lake because they were unable to use the lake for half of its intended purpose — watering cattle.

      . Reversal and remand is the preferred outcome unless it is clear that the Casons would be unable to present any proper proof of their loss of use damages on remand. Cf. Glenstone Block Co. v. Pebworth, 264 S.W.3d 703, 716 n. 10 (Mo.App. S.D.2008) (preference for reversal and remand instead of just reversal permitted remand for further evidence regarding characterization of deed of trust where proof was likely available). See also King, 64 S.W.3d at 343 (the characterization of permanent nuisance was reversed and the case was remanded for a retrial on the issue of temporary damages).