author: EDWIN H. SMITH, Presiding Judge.

text:
    Gale Ann TESTERMAN, Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Appellant.
    No. WD 58036.
    Missouri Court of Appeals, Western District.
    Nov. 7, 2000.

      James O. Kjar, Warsaw, for respondent.
    Jeremiah W. (Jay) Nixon, Atty. Gen., James A. Chenault, III, Sp. Asst. Atty. Gen., Jefferson City, for appellant.
    Before EDWIN H. SMITH, P.J., and ULRICH and ELLIS, JJ.
   EDWIN H. SMITH, Presiding Judge.

The Director of Revenue (Director) appeals from the judgment of the circuit court reinstating the driver’s license of the respondent, Gale Ann Testerman, after it had been administratively suspended by the Director for the respondent’s driving with a blood alcohol concentration (BAC) of .10% or more, pursuant to § 302.505.1 ,

In his sole point on appeal, the Director claims that the trial court erred in reinstating the respondent’s driver’s license because he made a prima, facie case for suspension under § 302.505.1, which was not rebutted by the respondent.

We reverse and remand.

Facts

On February 21, 1999, Officer Rodney Bonner of the Warsaw Police Department observed the respondent drive her truck across the center line of an outer road in Warsaw, Missouri. In response, he activated his patrol lights and stopped the respondent’s vehicle. After approaching the vehicle to issue a citation, the officer smelled the odor of intoxicants coming from the vehicle. Under questioning by Officer Bonner, the respondent admitted that she had been drinking. As a result, Officer Bonner administered three field sobriety tests which, in his opinion, the respondent failed. Officer Bonner placed the respondent under arrest for DWI, put her in his patrol car, and transported her to the Benton County Sheriffs Department. At the Sheriffs Department, the respondent was given a breathalyzer test by Officer James Cihy of the Warsaw Police Department. The test indicated that the respondent had a BAC of .204.

After her arrest, the Director notified the respondent that her driver’s license was suspended pursuant to § 302.505. Pursuant to § 302.530, the respondent requested administrative review of her suspension, which was upheld. Subsequently, on May 28, 1999, pursuant to § 302.535.1, the respondent filed a petition for trial de novo in the Circuit Court of Benton County. The Honorable Larry M. Burditt heard the petition on August 5, 1999. At the close of all of the evidence, the trial court took the respondent’s case under advisement.

On November 12, 1999, the trial court entered its judgment reinstating the respondent’s license, finding that the respondent “did place [an] object in her mouth during the period fifteen minutes immediately prior to taking the test.”

This appeal follows.

Standard of Review

Our review of the trial court’s judgment reinstating the license of the respondent, after it had been suspended under § 302.505.1 for driving with a BAC of .10% or more, is the same as in any other judge-tried case and is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Endsley v. Dir. of Revenue, 6 S.W.3d 153, 157 (Mo.App.1999). “As such, we must affirm the judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.” Id.

I.

In his sole point on appeal, the Director claims that the trial court erred in reinstating the respondent’s driver’s license because he made a prima facie case for suspension under § 302.505.1, which was not rebutted by the respondent. We agree.

Section 302.505.1 provides, in pertinent part:

The department shall suspend or revoke the license of any person upon its determination that the person was arrested upon probable cause to believe such person was driving a motor vehicle while the alcohol concentration in the person’s blood, breath, or urine was ten-hundredths of one percent or more by weight, based on the definition of alcohol concentration in section 302.500....

Accordingly, under this statute, the Director makes a prima facie case for suspending or revoking a driver’s license by establishing by a preponderance of the evidence that: “(1) there was probable cause to arrest the driver for DWI, and (2) at the time of the arrest, the driver’s BAC was at least ten-hundredths of one percent or more by weight.” Endsley, 6 S.W.3d at 158 (citing Barrett v. Dir. of Revenue, 963 S.W.2d 717, 719 (Mo.App.1998)). Once the Director has made aprima facie case, the burden then shifts to the driver to present evidence to rebut it by a preponderance of the evidence. Id. (citing Hurley v. Dir. of Revenue, 982 S.W.2d 694, 696 (Mo.App.1998)). Thus, in deciding this appeal, we must first determine whether the evidence was sufficient for the Director to have made a prima facie case for suspension; and, if it was, whether the respondent rebutted the same.

A. Sufficiency of Evidence to Establish Prima Facie Case to Suspend

1. Probable Cause to Arrest

As stated, supra, to make a prima facie case for suspension, the Director first had to show by a preponderance of the evidence that there was probable cause to arrest the respondent for DWI. Probable cause to arrest for DWI for purposes of § 302.505 “exists when the facts and circumstances would warrant a person of reasonable caution to believe that an offense has been or is being committed.” Smith v. Dir. of Revenue, 13 S.W.3d 700, 705 (Mo.App.2000) (citations omitted). “Thus, whether probable cause existed to arrest the respondent is determined ‘in relation to the circumstances as they would have appeared to a prudent, cautious, and trained police officer.’ ” Id. (citations omitted).

At the suspension hearing, the respondent did not dispute that there was probable cause to arrest her for DWI. The record reflects that she was stopped by Officer Bonner for driving her truck across the center line. While talking with her after the stop, he smelled the odor of alcohol coming from her vehicle. Upon inquiry by the officer, the respondent admitted that she had been drinking that evening. As a consequence, Officer Bonner administered three field sobriety tests which, in his opinion, she failed. “This court has previously held that probable cause for arrest for driving while intoxicated exists where an officer stops a vehicle for a traffic violation, ... detects the odor of alcohol on the driver’s breath, the driver admits to drinking, and fails one or more field sobriety tests.” Terry v. Dir. of Revenue, 14 S.W.3d 722, 724 (Mo.App.2000) (citations omitted). Thus, we find that the evidence was sufficient to establish probable cause for the arrest of the respondent for DWI, satisfying the first element of the Director’s prima facie case for suspension under § 302.505.1. Smith, 13 S.W.3d at 705 (citation omitted).

Having determined that the Director met his burden to establish probable cause for the respondent’s arrest for DWI, we turn to the issue of whether he met his burden of establishing that she was driving with a BAC of .10% or more.

2. BAC of .10% or More

In order to satisfy the second element of his prima facie case for suspending the respondent’s driver’s license, that she was driving with a BAC of .10% or more, the Director sought to introduce the result of her Breathalyzer test (BTR). See § 577.037 (authorizing admission of a BTR in proceedings for license suspension or revocation “pursuant to the provisions of chapter 302, RSMo”). At trial, the respondent objected to its introduction on the basis that the Director had not laid a proper foundation for its admission in that he was required, but failed, to show that a maintenance check had been conducted in accordance with applicable Missouri Department of Health (MDH) regulations regarding the DataMaster used to determine the respondent’s BAC. Specifically, the respondent asserted that the required maintenance check was deficient in that the maintenance officer was required, but failed, to indicate on the maintenance report the exact simulator temperature. The record reflects that the trial court initially overruled the respondent’s improper foundation objection and allowed Officer Cihy to testify as to the respondent’s BTR. However, when, at the close of his case, the Director offered for admission the maintenance report, certificate of analysis, operational checklist, and BAC printout, the respondent renewed her objection, which the court stated for the record it was taking “with the case.” After the Director had concluded his case, the respondent testified in her case, inter alia, that it was possible she had a peppermint in her mouth during the fifteen minutes immediately prior to her taking the Breathalyzer test.

In his closing argument, respondent’s counsel made two arguments as to why the respondent’s driver’s license should be reinstated. First, counsel argued that the respondent’s BTR was inadmissible because the Director failed to show that a proper maintenance check had been conducted on the DataMaster used in that the exact simulator temperature had not been determined by and noted by the maintenance officer on the maintenance report. Second, counsel argued that, even if the respondent’s BTR was admissible such that the Director made a prima facie case for suspension, the same was rebutted in that the respondent’s evidence established that she had a peppermint in her mouth during the fifteen minutes immediately preceding her breathalyzer test such that her BTR was rendered inadmissible.

The trial court entered its judgment on November 12, 1999, ordering the Director to reinstate the respondent’s license, which read:

Court again considers matter finds that the defendant did place on [sic ] object in her mouth during the period fifteen minutes immediately prior to taking the test. So ordered to remove suspension from the petitioners [sic ] operating pri-valege [sic ] based on events of 2/22/99.

From the trial court s judgment entry it is apparent that its reinstatement of the respondent’s driver’s license was based on its finding and conclusion that the respondent had rebutted the Director’s prima facie case for suspension. Specifically, the court found and concluded that the respondent had rebutted the requisite BAC element of the Director’s prima facie case in that the court believed her testimony that during the required fifteen-minute observation period, she had a peppermint in her mouth such that the Director had failed to lay a proper foundation for the admission of her BTR.

Because this was a judge-tried case in which neither party requested findings of fact and conclusions of law pursuant to Rule 73.01(a)(3), the court’s stated finding and conclusion for its judgment were gratuitous only. M.F.M. v. J.O.M., 889 S.W.2d 944, 954 (Mo.App.1995). In a judge-tried case, our review is not limited to determining whether the trial court’s judgment was correct based solely on its gratuitous findings and conclusions. Id. Rather, because we are primarily concerned with whether the result reached by the trial court was correct, not necessarily the course taken to reach it, we will not only affirm the judgment of the court if it was correct on. the basis or theory gratuitously found by the court, but on any reasonable theory supported by substantial evidence. Id.; see also Graves v. Stewart, 642 S.W.2d 649, 651 (Mo. banc 1982); Farmer’s Mut. Fire Ins. Co. v.. Farmer, 795 S.W.2d 104, 105 (Mo.App.1990). In conducting such a review, “[a]ll fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached.” Rule 73.01(a)(3).

In our case, although the trial court’s judgment was obviously based on only one theory of the case, it conceivably could be argued that there existed two bases on which the trial court would have been justified in ordering the reinstatement of the respondent’s driver’s license, which were asserted by her at her suspension hearing: (1) that the Director failed to make a prima facie case for suspension because he failed to show that the respondent had a BAC of .10% or more in that her BTR was rendered inadmissible due to the maintenance officer’s failure to determine and specify in his report the exact simulator temperature of the DataMaster; and (2) if the Director did make a prima facie case, the same was rebutted in that the respondent’s evidence, if believed, established that she had a peppermint in her mouth during the fifteen-minute observation period, such that her BTR was rendered inadmissible and thus the Director failed to establish that she had a BAC of .10% or more. Logically, before addressing the second issue of whether the Director’s pri-ma facie case was rebutted, we must first address whether the Director did, in fact, make a prima facie case for suspension by laying a proper foundation for the admission of the respondent’s BTR.

In order to establish a proper foundation for the admission of the result of a breathalyzer test to satisfy the BAC requirement of § 302.505, the Director must show that: (1) the test was performed by following the techniques and methods approved by the MDH, (2) by licensed medical personnel or by a person possessing a valid permit, and (3) using equipment and devices approved by the MDH. §§ 577.020.3^4; 577.026, RSMo 1994; Endsley, 6 S.W.3d at 159. The MDH regulations governing the administration of breath tests are found in 19 C.S.R. 25-30.011—25-30.080. As to the third requirement, if a timely objection is made to the admission of the BTR, the Director must show that a maintenance check of the breathalyzer machine used had been conducted by a Type II permit holder within 35 days of the date on which the test was administered, as required by 19 C.S.R. 25-30.031(3). Endsley, 6 S.W.3d at 159 (citing Lasley v. Dir. of Revenue, 954 S.W.2d 327, 331 (Mo. banc 1997)). “The regulations regarding the maintenance checks dictate that compliance is mandatory.” Endsley, 6 S.W.3d at 159 (citing Turcotte v. Dir. of Revenue, 829 S.W.2d 494, 496 (Mo.App.1992)); see 19 C.S.R. 25-30.031(3).

Here, to establish the requisite foundation for the admission of the respondent’s BTR, the Director relied on the testimony of Officer Cihy, who administered the breathalyzer test, and on the testimony of Corporal Frisbie, who conducted the maintenance check on the DataMaster used by Officer Cihy. Officer Cihy testified to the requisite foundational elements for admission of the respondent’s BTR, including that the respondent did not have anything in her mouth during the observation period. However, the respondent objected to the admission of her BTR, claiming that the required maintenance check was not properly performed. See 19 C.S.R. 25-30.031(7)(e) (directing that the required maintenance check of the DataMaster be done in accordance with “Report No. 6,” entitled the “DataMaster Maintenance Report” (DMR)). In objecting to the admission of her BTR, the respondent asserted that the required maintenance check was deficient in that, although the maintenance officer checked the box provided on the prescribed “DataMaster Maintenance Report” form, indicating that he had checked the simulator temperature and found it to be 'within the allowed range, he did not indicate the specific simulator temperature as the respondent argued was required by the express instructional language of the form. In contending that the maintenance check was deficient so as to render her BTR inadmissible, the respondent argued that the maintenance report form required the maintenance officer, as part of his maintenance check, to determine and specify on the report the exact simulator temperature, but that he failed to do so. From this, she essentially argued at the hearing that the trial court should conclude that the maintenance officer did not check the simulator temperature as required, such that the requisite foundation was not laid for the admission of her BTR.

In Endsley v. Dir. of Revenue, supra, this court held that the trial court, in ordering the reinstatement of the appellant’s driver’s license, could, despite the maintenance officer’s testimony to the contrary, reasonably infer and believe from his failure to check the box provided on the maintenance report form, indicating that the simulator temperature was within the allowed limits, that he had failed to do this maintenance step as required, such that the court was justified in finding that the driver’s BTR was inadmissible to establish the BAC element of the Director’s prima facie case for suspension. 6 S.W.3d at 166. The rationale for our decision in Endsley was that, because the maintenance report form instructed the maintenance officer to check the boxes provided to indicate that the mandatory maintenance steps had been performed, it was reasonable to infer from his failure to check a required box that he had failed to perform the corresponding step, despite the officer’s testimony to the contrary, which the trial court was free to believe or disbelieve. In our case, however, the box as to whether the simulator temperature was within the allowed range was checked, indicating that this step was performed. Nonetheless, the rationale of Endsley would still apply, but only if the respondent was correct in her assertion that the maintenance officer was not only required to determine that the simulator temperature was within the allowed limits and check the corresponding box, but was also required to determine and indicate on the maintenance report the exact simulator temperature.

We can find no authority requiring the maintenance officer to indicate on the “DataMaster Maintenance Report” form the specific simulator temperature, as argued by the respondent below. At trial, the record reflects that the sole basis for the respondent’s argument was the checklist instructions of the maintenance report form, which read:

CHECKLIST: Place a check (/) to the left of each item if found to be satisfactory or if operating within established limits. (Write in observed values where determined.) Unchecked items must be corrected before using instrument.

DMR (emphasis added). In reading in isolation the general instructional language requiring the maintenance officer to “[w]rite in observed values where determined,” we would agree that an argument could be made that he was required to indicate the exact simulator temperature on the form. However, the applicable MDH regulations do not require the maintenance officer to indicate a specific simulator temperature; rather, they only require that the simulator temperature be within the allowed limits as indicated on the report form. 19 C.S.R. 25-30.031. Moreover, in looking at the specific maintenance steps on the form, it becomes readily apparent which steps require a specific value to be written in and which do not. For example, the maintenance form requires the maintenance officer to determine the temperature of the “Heaters Sample Chamber.” A corresponding box is provided which the officer is to check to indicate that this step has been performed. In addition, as to this step, the form provides a blank for the officer to indicate the exact temperature: “Heaters Sample Chamber_°C.” DMR. No such blank is provided on the form, however, for the officer’s determination of the simulator temperature: “Simulator Temperature (34°C ± .2C),” indicating that all that is required of the officer with respect to this maintenance step is that the officer determine that the simulator temperature is within the allowed range. DMR.

Because we find that the maintenance officer in this case was not required to indicate the exact simulator temperature in his maintenance report, but only that it was within the allowed range, in keeping with the rationale of Endsley, it would be unreasonable to allow the trial court to infer from the officer’s failure to gratuitously include this information that he had failed to perform a “required” maintenance step, such that the respondent’s BTR was rendered inadmissible. Hence, the Director’s evidence, viewed alone, supported the admissibility of the respondent’s BTR and the conclusion that the Director made a prima facie case for suspension. The question remains, however, whether the evidence was sufficient for the court to find that the same was rebutted in that the respondent had a peppermint in her mouth during the required observation period.

B. Sufficiency of Evidence to Rebut Director’s Prima Facie Case

Once the Director made a prima facie case for suspension, the burden shifted to the respondent to rebut the same by a preponderance of the evidence. Hurley, 982 S.W.2d at 696. To rebut a prima facie case for suspension or revocation under § 302.505, the driver is required to present specific evidence; merely pointing out inconsistencies in the Director’s case is not sufficient. Id. at 696-97; Anderson v. Dir. of Revenue, 969 S.W.2d 899, 903 (Mo.App.1998).

As discussed, supra, to rebut the Director’s prima facie case, specifically the BAC element, the respondent presented evidence at trial from which her counsel argued that the trial court could reasonably infer that she had a peppermint in her mouth during the required observation period such that her BTR should not have been admitted for a lack of foundation. Based on the trial court’s judgment entry, it is clear that the court accepted the respondent’s argument. The Director, however, contends that the evidence was insufficient for the trial court to find that she had anything in her mouth during this critical time. We agree.

Pursuant to 19 C.S.R. 25-30.060(3), (7) and MDH Form # 7, a driver submitting to a breathalyzer test must be observed for fifteen minutes prior to taking the test to ensure that he or she does not smoke, vomit, or place anything into her mouth. Hill v. Dir. of Revenue, 985 S.W.2d 824, 828 (Mo.App.1998). One purpose of “the observation period is to give any alcohol or substance that might be in the person’s mouth time to dissipate thereby ensuring an accurate lung sample as opposed to an inaccurate mouth sample.” Hill, 985 S.W.2d at 828. Compliance with the observation period is one of the foundational requirements for the introduction of a BTR into evidence. Id. at 829.

As to the observation period requirement, the record reflects that the Director introduced the following testimony from the arresting officer, Officer Bonner, on direct examination:

A. I placed her in the patrol car and transported her to the police station, and—
Q. Was that for the purpose of giving a breath test?
A. Yes, it was.
Q. And what happened when you got to the Benton County Sheriffs Department?
A. We went to the back room, and I — Corporal Cihy come [sic ] to the police station to do the BA machine because I’m not certified on that, and I asked her the questions.
Q. Okay. Did you observe Ms. Test-erman up until the moment she took a breath test?
A. Yes, I did.
Q. Had she smoked, vomited, or had any kind of oral intake while you were observing her?
A. Not that I could see.
Q. Okay. And did you observe — have the opportunity to observe her for the period of at least the 15 minutes—
A. Yes, I did.

Under cross-examination by the respondent, Officer Bonner further testified on this issue:

Q. Officer Bonner, Ms. Testerman, was she in your custody and control from the time of this traffic stop—
A. Yes.
Q. —until she performed the breath alcohol test?
A. Yes. Yes, she was.
Q. During any of that time was she ever out of your line of sight?
A. No, not that I can remember.
Q. When you were — Was she placed in your patrol car?
A. Yes, she was.
Q. Was she handcuffed?
A. No, she was not.
Q. Did she have her purse with her?
A. I don’t recall.
Q. As she was placed into your patrol car, did you go around the rear of your patrol car, then, to get in it?
A. No. I went to the front of my patrol car to get in it.
Q. Were you looking inside the front of your patrol car while you were walking around the front of it?
A. I don’t recall.
Q. Did Ms. Testerman ever make any statements to you about placing anything in her mouth, to your recollection?
A. No, she did not.
Q. Did you have Ms. Testerman open her mouth, and did you physically observe if there was anything in her mouth?
A. No, I did not.
Q. Is there a possibility there was something in her mouth?
A. No, not that I’m — not that I’m aware of. I guess there’s always a possibility.

On redirect, Officer Bonner testified:

Q. Did you make any — Did you observe her at any time to be chewing or swallowing or anything that would make you think she had put something in her mouth?
A. No.

If believed, this evidence of the Director was sufficient for the trial court to find that the respondent did not have any oral intake within the fifteen minutes immediately preceding her breathalyzer test. However, in determining whether the respondent rebutted the Director’s prima facie case, the trial court was free to disregard this evidence and believe the respondent’s evidence on this issue, Endsley, 6 S.W.3d at 161, which it obviously did, given its judgment. As such, the issue in question does not turn on credibility, but whether the evidence was such that the trial court could have reasonably inferred, as it did, that the respondent had a peppermint in her mouth during the fifteen-minute observation period, which rendered her BTR inadmissible.

As to the respondent’s evidence on the issue of whether she had a peppermint in her mouth during the observation period, she testified on direct examination by her attorney:

Q. Okay. After he said he was going to place you under arrest, what did you — what did he do?
A. I — What I remember is I took my purse and my keys from my vehicle.
Q. Okay. And where did you go from that point?
A. Into a police car.
Q. Okay. What, if anything, did you do after you took a seat in that police car to the best of your recollection?
A. I don’t remember anything specific, just—
Q. At any point subsequent to the time you were stopped with Mr. Bonner, did you take into your mouth any sort of objects of any sort?
A. Yes, a peppermint.
Q. Okay. When did you place this into your mouth?
A. I don’t recall exactly when. I do it often, so I don’t recall exactly when I did that.
Q. When you were stopped by Officer Bonner, did you have something in your mouth?
A. No, I don’t remember having anything. It had to have been after I took my purse out of my vehicle.
Q. Okay. So you placed this into your mouth. What — When you say a peppermint, what exactly are you referring to?
A. Peppermint candy.
Q. Okay. Did you ever spit this out of your mouth?
A. No, I don’t remember spitting it out. I usually chew it up and swallow it.
Q. Okay. When you were transported to the police station, was this still in your mouth at that time?
A. I don’t recall exactly when. I just know I did. So—
Q. Do you remember still having this candy in your mouth when you were being questioned by Officer Bonner?
A. I don’t remember if I had it in my mouth when I was talking or not. I don’t remember exactly when I had it in my mouth. I just know I told him that I had a peppermint when he asked me— or told me that I was going to have to take the breathalyzer test.
Q. Okay. Did you tell him — What did you tell him at that time?
A. I told him I had had a piece of peppermint in my mouth.
Q. Okay. Did he seem concerned by that whatsoever?
A. No. I don’t remember any comment being made.
Q. Okay. Did 15 minutes pass from the time you had completed eating this candy until such time as you blew into the breath machine?
A. I have no idea. I don’t wear a watch. I didn’t pay attention at the time.
MR. KJAR: Okay. No further questions, Your Honor.
THE COURT: Mr. Crosby?
MR. CROSBY: Thank you, Your Honor.

On cross-examination by the Director, the respondent testified:

Q. Now, when you put the — this peppermint in your mouth, was that just— you said it was kind of like a habit?
A. I do it often from — I have stomach problems, and it seems to relieve the problems that I have.
Q. Did you have — Did you feel like nausea or something like'—
A. No. I have stomach — severe stomach pains since I’ve had a surgery, and that peppermint seems to relieve some of the pressure or the pain.
Q. Okay. But you seem — But you seem to think you did it — -you put this in your mouth at some point in the police car?
A. I don’t remember. I know it had to have been after I removed my purse from my vehicle and before I took the testing. Because I remember telling him specifically.
Q. And you did it — You did this for — just because you had stomach pains?
A. Yes. I take peppermint for that reason, yes.
Q. Okay. You weren’t — So there would have been no reason for you to try and hide the fact that you had a peppermint from the police officer?
A. No.
Q. Okay. So if the officer was looking at you and doesn’t see you chewing or anything like that, probably at that point you would have swallowed it?
A. That or I’d just suck on it. So—
Q. You did testify that you usually chew them?
A. Well, towards the end I will, you know. Not always.
Q. And you’re not sure at what point you were — You’re not sure at what point this peppermint had been completely eaten?
A. No, sir.

As to the respondent’s testimony, the Director contends that, even if believed, the trial court could not reasonably infer therefrom that the respondent did, in fact, have a peppermint in her mouth during the observation period. We agree.

A careful review of the respondent’s testimony discloses that she did not testify as to the specific time when she placed the peppermint in her mouth or how long it remained there. As such, to determine that she had a peppermint in her mouth during the observation period, the court would have had to rely on the reasonable inferences from the evidence presented. Although the trial court in a civil case is free to rely on inferences from the evidence in determining whether a party has met its burden of proof, they must be reasonable in nature, and the trial court cannot rely on guesswork, conjecture and speculation. Herberholt v. dePaul Cmty. Health Center, 625 S.W.2d 617, 623 (Mo. banc 1981). In a civil case:

the shown circumstances must be such that the facts necessary to support the finding may be inferred and reasonably must follow, that the existence of such facts may not depend upon guesswork, conjecture and speculation, and that the evidence should have a tendency to exclude every reasonable conclusion other than the one desired. Although an inference need not be justified beyond all doubt and is not precluded by a mere possibility that the contrary may be true, the law does not contenance [sic ] the drawing of forced and violent inferences which do not arise from a reasonable interpretation of the facts actually shown....

Id. (citations omitted). In this regard, the record favorable to the trial court’s judgment would indicate that the respondent was stopped at 1:36 a.m., arrested at 1:46 a.m., asked for her consent to submit to a breathalyzer test at 1:58 a.m., and given the breathalyzer test at 2:17 a.m. At best, when viewed in a light most favorable to the respondent, the evidence would support the fact that sometime between 1:46 and 1:58 a.m. the respondent placed a peppermint in her mouth and that it was still there at 1:58 a.m., when Officer Bonner asked her whether she would consent to taking a breathalyzer test. However, without engaging in pure speculation, there is no way to determine whether the mint was still in her mouth during the observation period, 2:02 a.m. to 2:17 a.m. The respondent did not testify that the mint was still in her mouth during this time nor did she testify as to basic underlying facts which would have allowed the trial court to reasonably infer that it was still there, such as how big the mint was or the average time it took her to finish one. Thus, in concluding that the Director’s pri-ma facie case for suspension under § 302.505.1 had been rebutted by the fact that the respondent had a peppermint in her mouth during the observation period, the trial court clearly had to resort to an inference that was unreasonable in that it relied on speculation, which it could not do. Riley v. Riley, 847 S.W.2d 86, 88 (Mo.App.1992); Boatmen’s Bank of Butler v. Berwald, 752 S.W.2d 829, 833 (Mo.App.1988). Hence, the trial court’s judgment reinstating the respondent’s driver’s license based on the respondent’s rebutting of the Director’s prima facie case was in error.

Conclusion

The judgment of the circuit court reinstating the respondent’s driver’s license is reversed and the case remanded for the court to enter its judgment affirming the Director’s suspension of the respondent’s license, pursuant to § 302.505.1.

ULRICH and ELLIS, JJ., concur.

      . All statutory references are to RSMo Supp. 1997, unless otherwise indicated.

      . The respondent did not file a brief on appeal.

      .The record reflects that the trial court en-; tered an "order” on August 17, 1999, reinstating the respondent’s license. Because the court’s entry was not designated a judgment, as required by Rule 74.01(a) (1999) for a valid, appealable judgment, the Director moved to amend. Accordingly, on November 12, 1999, the court amended its entry, denominating its order reinstating the respondent’s license as a "judgment.”

      . All rule references are to Missouri Rules of Civil Procedure (1999), unless otherwise indicated.

      . Although denominated "gratuitous” from a legal standpoint, we encourage and appreciate such findings and conclusions by the trial court. Many times they are invaluable to our discussion and disposition.

      . The record reflects that the Director actually called Corporal Frisbie as his first witness to testify regarding the maintenance check that was performed. At the time, the respondent’s breathalyzer test result had not yet been offered or objected to, such that it was unknown whether the introduction of evidence concerning the maintenance check was even necessary for the introduction of the respondent's test result. In any event, the respondent ultimately did object, triggering the necessity of such evidence in order for the Director to lay a proper foundation for its introduction.


source: Caselaw Access Project

author: PAUL M. SPINDEN, Chief Judge.

license: Public Domain

text:
    Elmonia BETTS-LUCAS, Appellant, v. Richard A. HANSON, Commissioner of the Office of Administration, and Robert Holden, State Treasurer, Respondents.
    No. WD 58034.
    Missouri Court of Appeals, Western District.
    Nov. 7, 2000.

      Andrew H. McCue, Kansas City, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for respondent.
   PAUL M. SPINDEN, Chief Judge.

Elmonia Betts-Lucas’ brother died while confined at a Department of Health facility. An employee of the facility, Rick Hartgrave, pleaded guilty to involuntary manslaughter for recklessly causing the death. Betts-Lucas sued Hartgrave for the wrongful death of her brother and obtained a judgment against Hartgrave. Betts-Lucas later filed a declaratory judgment action against Richard A. Hanson, commissioner of the Office of Administration, and Robert Holden, state treasurer, seeking the circuit court’s determination that the State Legal Expense Fund, § 105.711, et seq., RSMo 1994 and Supp .1999, should pay the amount of the wrongful death judgment.

When Betts-Lucas filed a motion for summary judgment in the declaratory action, the circuit court denied Betts-Lucas’ motion for summary judgment and entered summary judgment for Hanson and Holden. The court held that Hanson and Holden were not bound by the judgment entered against Hartgrave in the wrongful death action. The court decided that a conflict of interest existed between Hart-grave and the State of Missouri regarding the nature of Hartgrave’s conduct and whether he would be covered by the State Legal Expense Fund. The court concluded that Hanson, Holden and the state did not have a full and fair opportunity to litigate that issue in the wrongful death action. The circuit court also concluded:

Hartgrave was not entitled to representation or coverage in the wrongful death action against him because his striking and choking Walter Betts, thereby causing Betts’ death, was not, as a matter of law, conduct “arising out of and performed in connection with his ... official duties on behalf of the State, or any agency of the State.” § 105.711.2(2) RSMo 1994. The fact that Hartgrave’s conduct might be characterized in a lesser manner, as the wrongful death judgment does[, i.e. Hartgrave’s failure to summon medical aid for Betts,] cannot obviate the fact that the nature of Hartgrave’s conduct had already been adjudicated when he pleaded guilty and judgment was entered thereon.

Alternatively, the circuit court found that, even if the record did not conclusively establish that Hartgrave’s conduct was beyond the scope of the State Legal Expense Fund, a genuine issue of material fact existed regarding the nature of Hart-grave’s conduct and whether it fell within the scope of the State Legal Expense Fund. The circuit court also found that Betts-Lucas did not demonstrate that Hanson’s and Holden’s affirmative defenses were without merit as a matter of law. Betts-Lucas appeals.

The denial of a summary judgment motion is not an appealable order. Parker v. Wallace, 431 S.W.2d 136, 137 (Mo.1968). To the extent that Betts-Lu-cas appeals the denial of her motion for summary judgment, we will not review this claim. The problem in this case, however, is that the circuit court entered summary judgment for Hanson and Holden even though Hanson and Holden did not file a cross-motion for summary judgment. We are unaware of any authority granting the circuit court the power to enter summary judgment for a non-moving party when the non-moving party does not file a cross-motion for summary judgment. As this court’s Eastern District held, in Williams v. Mercantile Bank of St. Louis, 845 S.W.2d 78, 82 (Mo.App.1993) (footnote omitted):

[F]or a trial court to grant summary judgment, it must normally have a motion for summary judgment before it and notice of a hearing must be made. Rules 55.26(a) and 44.01(d). It is incumbent upon the parties seeking relief to initiate action through a motion because courts should not act on their own accord.

Moreover, Rule 74.04(c)(3) provides:

After the response [to the motion for summary judgment] has been filed or the time for filing the response has expired, whichever is earlier, the judgment sought shall be entered forthwith if a motion for summary judgment and response thereto show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Rule 74.04 emphasizes that a judgment should be entered if the moving party is entitled to a judgment as a matter of law. The rule, before it was amended in 1988, formerly provided that a judgment should be entered if any party was entitled to a judgment as a matter of law. The former rule also said, “Summary judgment, when appropriate, may be rendered against the moving party.” Because the circuit court did not have before it a cross-motion for summary judgment from Hanson and Holden, it could not enter summary judgment in their favor. We, therefore, reverse the circuit court’s granting of summary judgment in favor of Hanson and Holden and remand for further proceedings.

HOWARD, Judge, and HOLLIGER, Judge, concur.


author: PER CURIAM:

text:
    In the Interest of S.S., Respondent, v. L.M.Y. (Natural Mother), Appellant.
    No. WD 58176.
    Missouri Court of Appeals, Western District.
    Nov. 7, 2000.
    Marilyn B. Keller, Kansas City, for appellant.
    Michael R. Fogal, Kimberly A. Carring-ton, Katherine J. Rodgers, Kansas City, for respondent.
    Before BRECKENRIDGE, P.J., ULRICH and HOWARD, JJ.
   ORDER

PER CURIAM:

L.M.Y. (Mother) appeals the termination of her parental rights to her daughter, S.S., pursuant to § 211.447.4(2), and 211.447.4(3), RSMo Cum.Supp.1999. Mother claims that there was insufficient evidence that S.S. had been abused or neglected or that conditions of a potentially harmful nature continue to exist and there is little likelihood that those conditions will be remedied at an early date. The evidence supports the court’s finding that Mother has a chemical dependency which prevents her from consistently providing the necessary care, custody, and control over S.S., and Mother’s chemical dependency cannot be treated to enable Mother to consistently provide such care, custody and control. Since a published opinion would have no precedential value, a memorandum has been provided to the parties.

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


author: HAROLD L. LOWENSTEIN, Judge.

text:
    In the Interest of M.G., Plaintiff, Juvenile Officer, Respondent, v. T.H. (Mother) Defendant, M.G. (Father), Appellant.
    Nos. WD 57986, WD 58023.
    Missouri Court of Appeals, Western District.
    Nov. 7, 2000.
    Anita D. Conboy, Nevada, MO, Atty. and Guardian for M.G.
    Belinda K. Elliston, Lamar, for Respondent Juvenile Officer.
    James L. Guthrie, Nevada, MO, for Appellant M.G.
    Eric M. Landoll, Nevada, MO, for Defendant T.H.
    Before HOLLIGER, P.J., LOWENSTEIN and NEWTON, JJ.
   HAROLD L. LOWENSTEIN, Judge.

This termination of parental rights case was filed in February of 1994 by the Juvenile Officer of Vernon County. The child is M.G., a girl who was born in January of 1984. The petition sought to terminate the rights of her mother and father. Only the father, M.G. (hereinafter Father), appeals the trial court’s judgment, which terminated his rights under § 211.447.4(3), RSMo Cum.Supp.1999. This subsection generally allows the filing and granting of a termination petition when it is in the child’s best interest, when the child has been under the jurisdiction of the court for a year, when the conditions which led to the assumption of jurisdiction or other potentially harmful conditions still exist, and when there is little likelihood that those conditions can be remedied at an early date, or when continuing the parental relationship greatly diminishes any prospect for the child’s early integration into a stable and permanent home. Section 211.447.4(3) also specifically directs the trial court to consider and make findings on four subdivisions located in (a) through (d). As particularly pertinent here, subdivision (a) relates to the plan entered into between the parent and the Division of Family Services (hereinafter Division) and the extent of compliance by the parties, and (b) the success or failure of the Division to aid the parent to adjust the circumstances or to provide a proper home.

The record shows the child was taken into custody and care of the Division on July 30, 1996. Mother and Father were no longer married at that time. The child was living with the mother until a hotline call that reported sexual abuse by the stepfather was substantiated. Father did not make contact with the Division until February, 1997. He called and visited his daughter through December of that year, but a home study found him unsuitable for custody. Father’s mental condition led to his being denied custody. He then made only sporadic visits and told the Division it was not in his daughter’s best interests to live with him. The foster parents and the child requested an adoption.

The dispositive matter on this appeal is the failure of the court’s judgment to reflect any of the findings mandated in § 211.447.4(3)(a)-(d). The judgment tracks the statutory language, but makes no mention of any findings regarding the Father. There were no findings as to: (a) the terms of the plan, (b) the success or failure of the efforts of the juvenile officer, the division or other agency to aid Father on a continuing basis in adjusting his circumstances or conduct to provide a proper home for his daughter, (c) whether the mental condition of the Father was such as to present no reasonable likelihood such condition could not be reversed, or (d) any evidence of chemical dependency.

Missouri cases have held that strict and literal compliance with the statutory requirements for a termination of parental rights under § 211.447 is necessary. In Interest of F.M., 979 S.W.2d 944, 946 (Mo.App.1998). In a determination of a termination under this section, which allows termination where there has been a failure to correct after a year, “the trial court must make findings as to the four specified conditions or acts of the parent. ...” In Interest of F.N.M., 951 S.W.2d 702, 705-6 (Mo.App.1997). This court in In Interest of H.R.R., 945 S.W.2d 85, 89 (Mo.App.1997)(emphasis in original) said “the court is required to make specific findings on each of these four factors”, and if a factor is not relevant then the court should state why it is not relevant. In H.R.R. there were only minimal efforts to address three of the factors and a failure to address the fourth. This court reversed and remanded to allow the court to make all the factual findings required by § 211.447. Id. at 90; See also In Interest of K.E., 947 S.W.2d 468 (Mo.App.1997). In the case at bar, none of the four factors was addressed even minimally.

It appears there was sufficient evidence to support a termination, but without any findings as to the Father, this case must be reversed and remanded to allow the court to make the necessary findings consistent with the statute. In Interest of T.S., 925 S.W.2d 486, 489 (Mo.App.1996).

All concur.

      . (3) The child has been under the jurisdiction of the juvenile court for a period of one year, and the court finds that the conditions which led to the assumption of jurisdiction still persist, or conditions of a potentially harmful nature continue to exist, that there is little likelihood that those conditions will be remedied at an early date so that the child can be returned to the parent in the near future, or the continuation of the parent-child relationship greatly diminishes the child's prospects for early integration into a stable and permanent home. In determining whether to terminate parental rights under this subdivision, the court shall consider and make findings on the following:
      (a)The terms of a social service plan entered into by the parent and the division and the extent to which the parties have made progress in complying with those terms;
      (b) The success or failure of the efforts of the juvenile officer, the division or other agency to aid the parent on a continuing basis in adjusting his circumstances or conduct to provide a proper home for the child.
      (c) A mental condition which is shown by competent evidence either to be permanent or such that there is no reasonable likelihood that the condition can be reversed and which renders the parent unable to knowingly provide the child the necessary care, custody and control;
      (d) Chemical dependency which prevents the parent from consistently providing the necessary care, custody and control over the child and which cannot be treated so as to enable the parent to consistently provide such care, custody and controI[.]


text:
    John and Carol EVANS, Respondents, v. Kenneth WERLE, Appellant.
    No. WD 57828.
    Missouri Court of Appeals, Western District.
    Nov. 14, 2000.

      James Thompson, Richmond, for Appellant.
    John and Carol Evans, Richmond, pro se.
    Before LOWENSTEIN, P.J., LAURA DENVIR STITH and NEWTON, JJ.
   HAROLD L. LOWENSTEIN, Judge.

In November- of 1992, plaintiffs John and Carol Evans entered into a construction contract with defendant Ken Werle (Werle) in which Werle agreed to reconstruct their home, which had sustained fire damage, and to build a room addition. Soon after the Evanses’ roof work was completed, shingles started blowing off the roof of their home causing it to leak. On approximately three separate occasions, Werle and or his crew came out and replaced or reattached shingles to the roof. After the third repair, a worker for Werle told the Evanses that they would probably not come out and repair the roof again in the future. The Evanses did not contact Werle concerning subsequent leaks and loose shingles. Mr. Evans then patched the roof several times and in November of 1997 filed a petition for breach of contract and breach of warranty, alleging that Werle refused to make the necessary repairs to the roof, and asked for damages in the amount of $5,500.00 and reasonable attorney’s fees. After a bench trial, judgment was entered in favor of the Evanses awarding them $5,500.00 in damages and $1,000.00 in attorney’s fees. Werle appeals the judgment.

Standard of Review

The standard of review of this bench-tried case is set out in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Higgins v. Olson, 991 S.W.2d 216, 218 (Mo.App.1999). The judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy, 536 S.W.2d at 32. As a court-tried matter we accept as true the evidence and reasonable inferences therefrom in favor of the prevailing party and disregard the contrary evidence. Gilmartin Bros., Inc. v. Kern, 916 S.W.2d 324, 331 (Mo.App.1995). This court will set aside the trial court’s decision only when firmly convinced that the judgment is wrong. Waldroup v. Dravenstott, 972 S.W.2d 364, 368 (Mo.App.1998).

I.

Werle argues in his first point that the trial court erred in awarding the Evanses $5,500.00 on their claim for breach of warranty in that they failed to submit any evidence to sustain their burden of proof that he failed to complete the work in a substantial workmanlike manner or that he failed to make necessary repairs.

Here, the contract contained an express warranty that Werle “agree[d] to construct and complete in good workmanlike and substantial manner” the work that was done at the Evans’ house. ‘Workmanlike performance has been defined as ‘work which is completed in a skillful manner and is non-defective.’ ” Waldroup, 972 S.W.2d at 368.

Mr. Evans testified that soon after the roof work was completed pursuant to the contract with Werle, wind blew half of the shingles off the roof. Werle came out and patched the roof. Shingles continued to blow off the roof causing it to leak. Mr. Evans testified that Werle was called out to repair the roof on at least another three occasions to repair the roof. A worker for Werle told Mr. Evans that after the third repair, they would not come out again to do any more repairs. Mr. Evans also offered photographic exhibits of the roof and the patch work that has been done over a period of time to repair the roof and to keep it from leaking. Pictures were also offered of the interior of the house that has been damaged by the leaks in the roof, requiring buckets to be set out to gather the water coming from the roof into the house.

Mrs. Evans testified that after Werle’s worker told her they would not come out and do any more repairs, Mr. Evans and a friend, Bob Lathrop, started repairing the roof when it leaked. Mrs. Evans stated that shingles blew off whenever the wind blew hard, especially during storms.

The trial court was free to believe none, part or all of the testimony presented at trial. Milligan v. Helmstetter, 15 S.W.3d 15, 21 (Mo.App.2000). Credibility of witnesses and the weight to be given their testimony are matters for the trial court. Id. Here, there was ample evidence presented for the trial court to find that the roof was defective. The evidence shows that shingles have blown off the roof on a regular basis, that leaks have developed because of the shingle problem, that these problems still existed after Werle or a worker sent by him attempted to fix the problem on at least three occasions, and that Werle refused .to do any further repairs, requiring the Evanses to continually patch the roof and place buckets under the leaks inside their house. Thus, the trial court was correct in finding that Werle breached the contract by not constructing the roof in a workmanlike manner.

II.

Werle’s second and third points will be taken up together. Werle argues that the trial court erred in allowing Mrs. Evans to testify about the cost of repairs from averaging the bids of contractors. Werle also argues that the testimony was hearsay and thus the trial court erred in awarding the Evanses $5,500.00 in damages and $1,000.00 in attorney’s fees in that the Evanses did not submit any evidence to sustain their burden of proof on either damages or attorney’s fees.

During Mrs. Evans’ direct examination, she was shown plaintiff’s exhibit 3 which consisted of estimates prepared by contractors for repair of the roof. An objection to this exhibit had been sustained by the trial court when it was offered during Mr. Evans’ testimony. Mrs. Evans testified that she had obtained the estimates and that the suit was filed for $5,500.00 because that was the average amount of the estimates for repairing the roof. Werle objected to this testimony arguing that it was a “backwards way of trying to get [the] hearsay documents into the record through Mrs. Evans’ testimony.” The trial judge overruled Werle’s objection, stating that “I think she’s testifying on why they chose a certain amount to sue for.” This court agrees that Mrs. Evans’ testimony was hearsay.

Testimony is hearsay when a witness offers out-of-court statements of another to prove the truth of the matter asserted in the statement. IMR Corp. v. Hemphill, 926 S.W.2d 542, 545 (Mo.App.1996). The principal objection to hearsay is the inability of the other party to cross-examine the person to whom the hearsay statement is attributed. McKenna v. McKenna, 928 S.W.2d 910, 912 (Mo.App.1996).

Here, Mrs. Evans testified that based upon the estimates provided to her by roofing contractors, $5,500.00 was the average cost of repair for the damage to the roof. Mrs. Evans did not have personal knowledge of the cost of the roof repair. Further, her testimony was based off of the estimates and offered to prove the cost of repairing the roof. This testimony was hearsay and should not have been allowed by the trial court. No other testimony was offered by the Evanses to prove the cost of repair that was not either directly or indirectly linked to the roof repair estimates. Even if Mrs. Evans’ testimony was not hearsay, it would have been necessary for the Evanses 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, the Evanses 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.

“In order to make a submissible case on a claim of breach of contract, the party alleging a breach must prove: (1) the existence of a valid contract; (2) the rights and obligations of each party; (3) a breach; and (4) damages.” Wetherbee, Ltd. v. Allred, 969 S.W.2d 756, 758 (Mo.App.1998). Here, the Evanses have proven the existence of a contract and its breach but have failed to provide submissi-ble evidence of their damages. However, proof of a contract and its breach gives rise to nominal damages. Wasson v. Schubert, 964 S.W.2d 520, 526 (Mo.App.1998). Because this court finds that the Evanses have proven the existence of a contract and a breach of that contract due to the defective roof installed by Werle, the Evanses are entitled to nominal damages. This determination also means that the trial court was correct in awarding the Evanses $1,000.00 in attorney’s fees.

If a contract or statute provides that attorney’s fees are recoverable, counsel is entitled to reasonable fees. Next Day Motor Freight, Inc. v. Hirst, 950 S.W.2d 676, 679 (Mo.App.1997). Generally, a trial judge is considered an expert on the reasonableness of attorney’s fees, and his or her decision on whether to award fees will not be disturbed unless an abuse of discretion has been found. Prosser v. Rethorn, 928 S.W.2d 364, 365 (Mo.App.1996). Here, the contract between the Evanses and Werle stated in paragraph 16 that “Should either party hereto bring suit in court to enforce the terms hereof any judgment awarded shall include court costs and reasonable attorney’s fees to the successful party.” Since the Evanses were the successful parties and Werle has not shown how the trial court has abused its discretion in awarding the Evanses $1,000.00 in attorney’s fees plus interest on the judgment, the award of attorney’s fees is affirmed. Ken Cucchi Const., Inc. v. O’Keefe, 973 S.W.2d 520, 528 (Mo.App.1998).

Pursuant to our Rule 84.14 authority to give such judgment as the trial court ought to give and to finally dispose of the case, this court reverses the trial court’s award of $5,500.00 in damages to the Evanses and awards them $1.00 in nominal damages and pursuant to the contract between the Evanses and Werle, awards them $1,000.00 in attorney’s fees and costs.

All concur.


text:
    STATE of Missouri, Respondent, v. John Henry WRIGHT, Appellant.
    No. WD 57999.
    Missouri Court of Appeals, Western District.
    Nov. 14, 2000.

      Emmett D. Queener, Asst. Public Defender, Columbia, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Linda Lemke, Asst. Atty. Gen., Jefferson City, for Respondent.
    Before HOLLIGER, P.J., LOWENSTEIN and NEWTON.
   HAROLD L. LOWENSTEIN, Judge.

FACTUAL AND PROCEDURAL HISTORY

Appellant John Wright was convicted of two counts of first-degree child molestation under § 566.067 RSMo.1994 and sentenced to consecutive two-year terms. The facts from his trial are set out in full in State v. Wright, 998 S.W.2d 78 (Mo.App.1999). In that 1999 appeal, this court affirmed the conviction but found that Wright’s right to a jury trial was violated because of the trial judge’s comments at his sentencing hearing. Specifically, the appellate court considered the following remarks by the sentencing judge:

In this case, I am going to sentence you in accordance with the jury’s assessment and verdict. I am not going to order the sentences to ran concurrent. There are two separate victims in this case. You have not accepted responsibility for your crime. And, in this case, your victimization of these two young girls was magnified or aggravated by the fact that they were required to come in and testify.
And it was obvious to the Court that it was a traumatic event for them to come in here to testify in front of you, as well as the 12 jurors and the Court, as to your activities last July.
And so with those factors and consideration, Mr. Wright, I am going to sentence you under Count I to a term of two years in the Department of Corrections; and under Count II for another two-year term of imprisonment. Count II is to run consecutive to Count I.

(Emphasis added in 1999 case.) Id. at 82-83.

This court concluded that there was evidence that the trial judge sentenced Wright to consecutive terms instead of concurrent terms because the judge “specifically stated on the record that his decision to order consecutive sentences was influenced by the Defendant’s decision to go to trial and so to ‘require’ the victims to testify.” Id. at 84. As such, the court remanded the case solely for resentencing.

ANALYSIS

Wright’s sole point in this appeal is premised again on the trial court’s statements at his second sentencing hearing. Specifically, Wright argues that in the second sentencing hearing, the trial court again erred by factoring into his sentence Wright’s decision to exercise his right to trial. The comments by the judge from the second sentencing hearing are set forth below:

THE COURT: Okay. Mr. Wright, I just — the only brief comment I would make is, it’s unfortunate that the Court of Appeals interpreted my comments at sentencing to determine that I was punishing you for going to trial on these cases. I think if you read my context in total, I was basically referring to the total of the two victims and also talking about the impact on the victims by being the victim of your crime or crimes, as well as the fact that the impact on them by having to come in and testify of being molested in open court. But my comments were not intended to reflect the belief that I was punishing you or the defendant for exercising his right to trial. Rather, as I stated, my comments were intended to point out the impact of the crime on the victims, which included the fact that they had to testify in open court regarding being molested by the defendant.
As I also stated at the original sentencing, the defendant in this case has committed two separate crimes against two separate identifiable victims. These are crimes against persons. These are crimes that have vast impacts usually on victims because of being molested as children, and, under those circumstances, I do not believe it would be appropriate to order the sentences to run concurrent under circumstances where we have two separate identifiable victims for serious charges such as what you were found guilty of. Therefore, the Court, because there are two identifiable victims and a crime that has often serious and negative impacts that carry on much longer as time goes on, the Court is going to sentence you in accordance with the jury’s verdict to two years in the Missouri Department of Corrections on Count I, and to a sentence of two years in the Department of Corrections on Count II; Count II to run consecutive to Count I. A judgment for the crime victims’ compensation fund has already been entered against you and the court costs have already been assessed against you.
Mr. Wright, do you have any questions about the Court’s judgment and sentence entered this morning?
MR. WRIGHT: Yes, sir, I do. You say that they were forced to come in here and testify, but they had entered a number of motions, 491.075—
THE COURT: 491.075.
MR. WRIGHT: — to admit out of court statements as evidence in lieu of their testimony, Your Honor, and I was not forcing them to come in here and testify. The prosecution'—
THE COURT: No, I understand. I’m not talking about you forcing them to testify. My reference is to the fact that they did have to testify. My comments were the fact that that was an impact on the victims, the fact that they did come in and testify in this proceeding. But I’m not punishing you for your right to exercise or your right to exercise the right to go to jury trial. That’s fine with the Court, but it’s clear that there is an impact on the victims when they come in and testify in a proceeding. I was making a general comment about the fact of the impact of your crimes on the victims, but the fact is that you were assessed a punishment of two years on two separate crimes by the jury.
The Court is sentencing you based on the jury’s recommendation of two years. I’m not going to run two separate crimes against two separate identifiable victims concurrent with each other, that’s just not going to happen. I think that would be inappropriate and unjust, Mr. Wright. And so my sentence is based on the fact that there are two identifiable victims and two separate crimes, and the jury has recommended punishment for each of those two separate crimes. I’m not going to order them concurrent. I don’t think that would be appropriate. Anything else, Mr. Wright?
MR. WRIGHT: Yes, sir. The fact that it was (sic) a continuing course of conduct, that it happened all at one time, that I was not in the right frame of mind at that time, which is verifiable by Fulton State Hospital, I think it all should have had some impact on the Court’s decision.
THE COURT: Well, you may believe that. I suppose there’s maybe some factors that the jury took into account when they assessed punishment.
MR. WRIGHT: The jury was never informed of culpable mental state, nor were they ever (sic) any intent of the conduct proven, but the intent was used in the summation to the jury that there was never any intent proven, nor any culpable mental state sent to the jury, even though it was brought to the Court.
THE COURT: I understand. All right. Mr. Wright, my position is, and I’m just trying to explain it to you, there are two identifiable victims. You understand that part?
MR. WRIGHT: Yes.
THE COURT: I don’t think — your argument to me that it was the same course of conduct, well, that could mean if you have three or four victims that I should just run them all concurrent; that if you commit one crime against a person, that you could get a bunch of other crimes against the person because they all happen at the same time. I don’t follow that logic, especially under crimes such a serious nature as this. This is a crime against a person. This is a crime, as I stated earlier, often times has a vast impact on the victim much later in life to them because of the fact of being victimized for the crime of child molestation. So based on those factors, I do not believe that concurrent sentences would be appropriate, even understanding your argument to me this morning. Okay?
MR. WRIGHT: Yes, sir.

Wright’s argument hinges primarily on his 1999 appeal, where this court held that “to state that the court can properly enhance the Defendant’s sentence in part based on Defendant’s decision to have atrial by jury, such a reading would violate principles underlying [State v. Brewster, 836 S.W.2d 9 (Mo.App.1992) and State v. Martin, 852 S.W.2d 844 (Mo.App.1992) ] that the exercise by a defendant of his constitutional right to a jury trial can have no bearing on his sentence.” Wright, 998 S.W.2d at 84.

Although some language of the trial court in the second sentencing hearing appears to be'an attempt to explain statements at the first hearing, the judge’s statements in the more recent hearing do indeed reflect that his process in arriving at a sentence was within the parameters of criminal law. And although the displeasure the trial court expressed about Wright’s crimes still stands, the statements of the judge on record here do indicate that the defendant’s exercise of his right to trial did not result in any increase in severity of punishment. The judge’s decision to run the sentences consecutively to each other since there were two separate victims does not call for a reversal. The judgment and sentence of the trial court are affirmed.

All concur.


author: PATRICIA BRECKENRIDGE, Judge.

text:
    WEST PUBLISHING CORPORATION, Respondent, v. Daniel D. PHILLIPS, Appellant.
    No. WD 58006.
    Missouri Court of Appeals, Western District.
    Nov. 14, 2000.

      Ronald K. Barker, Kansas City, for appellant.
    Linda S. Tarpley, Kansas City, for respondent.
    Before BRECKENRIDGE, P.J., ULRICH and HOWARD, JJ.
   PATRICIA BRECKENRIDGE, Judge.

Daniel Phillips appeals the default judgment against him and in favor of West Publishing Corporation on West Publishing’s petition on account. The trial court awarded West Publishing $40,376.15 plus costs. Mr. Phillips claims that the trial court erred in entering judgment against him because the court did not have personal jurisdiction. Specifically, Mr. Phillips argues that he was never properly served because the summons and petition were left at his former residence with a non-family member who was under the age of 15 at the time, contrary to the requirements of Rule 54.13(b)(1). Mr. Phillips raised his claim of defective service in a motion to quash summons and personal service, which the court denied prior to entering the default judgment against him.

“ ‘When the requirements for manner of service are not met, a court lacks power to adjudicate.’ ” Worley v. Worley, 19 S.W.3d 127, 129 (Mo. banc 2000) (quoting State ex rel. Plaster v. Pinnell, 831 S.W.2d 949, 951 (Mo.App.1992)). Without personal jurisdiction over the defendant, a personal judgment rendered against the defendant is void. Worley, 19 S.W.3d at 130. West Publishing did not file a respondent’s brief in this case. Instead, West Publishing sent a letter to this court in which it conceded that proper service was never obtained upon Mr. Phillips, and that the entry of the default judgment was improper.

Accordingly, the judgment of the trial court is reversed and remanded, and the trial court is directed to quash the purported service of process and set aside its November 3, 1999, default judgment against Mr. Phillips.

All concur.


author: RONALD R. HOLLINGER, Presiding Judge.

text:
    Della E. COOPER, Appellant, v. HY-VEE, INC., Division of Employment Security, Respondents.
    No. WD 58076.
    Missouri Court of Appeals, Western District.
    Nov. 14, 2000.

      Kelly McClelland, Liberty, for Appellant.
    Sharon Ann Willis, Kansas City, for Respondent.
   RONALD R. HOLLINGER, Presiding Judge.

Della E. Cooper appeals the decision of the Labor and Industrial Relations Commission denying unemployment compensation benefits to her. She claims the Commission erred in deciding that she was ineligible for unemployment benefits on a finding that she quit her job voluntarily without good cause attributable to her work or to her employer. Because we find that Ms. Cooper quit voluntarily with good cause attributable to her employer, we reverse the decision and remand the case to the Commission.

BACKGROUND

Ms. Cooper, age 71, began employment with Hy-Vee, Inc. on August 10, 1996, to work in the meat and cheese department. On January 18, 1999, upon her request, Ms. Cooper was transferred to work in the salad bar area. After working approximately two months in that department, on March 15, 1999, her employer transferred her to work in the kitchen, and her hours were reduced from approximately 30 hours per week to 15 hours per week. The parties are not in agreement as to the reason for Ms. Cooper’s transfer from the salad bar to the kitchen. The employer claims she was transferred because she complained of the cold and could not keep up with the other workers, and because she had a cold and her nose was dripping, which made it inconvenient for her to work in that position because of her physical condition. Ms. Cooper, on the other hand, claims she was transferred out of the salad bar area because it was the employer’s intent to force her to quit. Because of the transfer to the kitchen, Ms. Cooper’s hours were reduced. She requested additional hours but was told there were no more hours available for her to work. Because of the reduction in her hours, on March 10, 1999, Ms. Cooper filed for and began receiving partial unemployment benefits. Shortly thereafter, when she began receiving partial unemployment benefits, Mr. Michael Basch, the Assistant Store Director for Hy-Vee, asked her what it would take for her to abandon her claim for such benefits. She advised him she wanted 32 hours per week, and he advised her that she could obtain additional hours by working as a courtesy clerk for the store. This position, which commenced on April 19, 1999, involved sacking groceries, loading groceries into and out of carts for customers, and retrieving shopping carts from outside. Ms. Cooper continued in this position for approximately one month. She testified that the work was “too much” for her; she sometimes received help from a younger male co-worker when bringing in the shopping carts. Ms. Cooper did not complain to her employer about her difficulties with the courtesy job. On May 28, 1999, she terminated her employment with Hy-Vee.

On June 13, 1999, Ms. Cooper applied for full unemployment benefits with the Division of Employment Security. On July 12, 1999, a deputy with the Division issued a determination that Ms. Cooper was disqualified for benefits because she left her work voluntarily without good cause attributable to her work or employer. Ms. Cooper filed her appeal and a hearing was held before an Appeals Referee on August 12, 1999. The Referee concluded that Ms. Cooper was not disqualified because the employer had substantially changed her working conditions. Hy-Vee appealed to the Labor and Industrial Relations Commission, who reversed the decision of the Referee.

Ms. Cooper now appeals the decision of the Commission. She contends the Commission erred in finding that she quit her job without good cause attributable to her work or to her employer. She also claims that the findings of the Commission were not supported by competent and substantial evidence.

STANDARD OF REVIEW

Our review of the Commission’s decision denying unemployment compensation benefits is governed by Article 5, Section 18, of the Missouri Constitution, which states in relevant part:

All final decisions, findings, rules and orders on any administrative officer or body existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights, shall be subject to direct review by the courts as provided by law; and such review shall include the determination whether the same are authorized by law, and in cases in which a hearing is required by law, whether the same are supported by competent and substantial evidence upon the whole record. Unless otherwise provided by law, administrative decisions, findings, rules and orders subject to review under this section or which are otherwise subject to direct judicial review, shall be reviewed in such manner and by such court as the supreme court by rule shall direct and the court so designated shall, in addition to its other jurisdiction, have jurisdiction to hear and determine any such review proceeding.

This is the minimum standard for judicial review of administrative decisions. Jarvis v. Director of Revenue, 804 S.W.2d 22, 25 (Mo. banc 1991). Where, as here, the Commission has reversed the findings and award entered by the Referee, we engage in a two-step process. Davis v. Research Medical Center, 903 S.W.2d 557, 570-71 (Mo.App.1995). In the first step, we examine the whole record, viewing the evidence and all reasonable inferences in the light most favorable to the award, to determine if it is supported by competent and substantial evidence. Id. At this stage, the court may disregard the credibility findings of the Referee because it is viewing the evidence in the light most favorable to the Commission’s award. Id.

If there is competent and substantial evidence, in the second step, we determine whether the award is against the overwhelming weight of the evidence. Id. At this stage, the court still views the evidence in the light most favorable to the award, but considers also the evidence that opposes or is unfavorable to the award. Id. At this second stage, the credibility determinations of both the Referee and the Commission are considered. Id. Where the credibility determinations of the Commission differ from those of the Referee who heard live testimony, the evidence supporting the Commission’s conclusion may be less substantial. Id. We are not, however, bound by the Commission’s conclusions of law nor the Commission’s application of law to the facts. Bunch v. Div. of Employment Sec., 965 S.W.2d 874, 877 (Mo.App.1998); Div. of Employment Sec. v. Taney County Dist. R-III, 922 S.W.2d 391, 393 (Mo. banc 1996).

The Commission’s determination of whether an employee voluntarily left her employment or was discharged is a factual determination, and we will defer to the Commission as to its finding that the claimant left her employment voluntarily. Sokol v. Labor & Indus. Relations Comm’n, 946 S.W.2d 20, 24 (Mo.App.1997). There is no issue herein as to whether Ms. Cooper left her employment voluntarily. The issue, instead, is whether she had good cause to leave her employment. Once the determination has been made by the Commission that the claimant left work voluntarily, then the question is whether the claimant had good cause to leave her employment; this is a question of law and we do not defer to the Commission’s determination on the matter. Id. at 26; Allen v. Green Ridge R-VIII School Dist. 892 S.W.2d 635, 637-38 (Mo.App.1994). Therefore, we accept the factual findings of the Commission only if they are supported by competent and substantial evidence, and we review only whether the employee voluntarily left her employment for good cause. Allen, 892 S.W.2d at 637.

A claimant is not entitled to unemployment benefits if she voluntarily quits her job absent good cause attributable to her work or to her employer. Wingo v. Pediatric and Adolescent Med. Consultants, Inc., 932 S.W.2d 898, 899 (Mo.App.1996). It is the claimant who bears the burden of proving that her voluntary termination resulted from good cause attributable to her work or employer. Hessler v. Labor & Indus. Relations Comm’n, 851 S.W.2d 516, 518 (Mo. banc 1993); O’Dell v. Div. of Employment Sec., 376 S.W.2d 137, 142 (Mo.1964). In determining whether Ms. Cooper has met this burden, we are guided by Section 288.020, RSMo 1994, which directs that the unemployment security law be liberally construed so as to further Missouri’s public policy of “promoting economic security,” in setting aside unemployment reserves to benefit persons unemployed through no fault of their own. Sokol, 946 S.W.2d at 23. It does not end there, however. We look also to Section 288.050.1(1), RSMo Cum.Supp.1999, which disqualifies an employee from receiving unemployment compensation when she voluntarily quits her job without good cause attributable to her work or employer. While Section 288.050 serves to disqualify some employees from receiving benefits, its disqualifying provisions are strictly and narrowly construed in favor of finding that an employee is entitled to compensation. Sokol, supra. The legislative objective is to encourage persons who are employed to remain employed by withholding benefits from those who quit their job without good cause. Hessler, 851 S.W.2d at 518.

For purposes of determining eligibility for unemployment benefits, “good cause” has no fixed or precise meaning, and is judged by the facts of each case. Sokol, 946 S.W.2d at 26. “Good cause” has been interpreted to mean “cause that would motivate the average able-bodied and qualified worker in a similar situation to terminate his or her employment.” Hessler, 851 S.W.2d at 518 (quoting Belle State Bank v. Indus. Comm’n, 547 S.W.2d 841, 846 (Mo.App.1977)).

The good cause necessary to support an award of unemployment benefits where an employee voluntarily quits must be cause attributable to her work or her employment. Quik N’ Tasty Foods, Inc. v. Division of Employment Security, 17 S.W.3d 620, 625-26 (Mo.App.2000). An employee who voluntarily terminates may avoid the immediate benefit disqualification of Section 288.050 if the cause is attributable to her employer. O’Dell, 376 S.W.2d at 142. Whether the cause is so attributable involves the application of the law to the facts, which is a question of law we review independently of the Commission’s determination. Travelers Equities Sales, Inc. v. Div. of Employment Sec., 927 S.W.2d 912 (Mo.App.1996). The phrase “attributable to his work or to his employer” means “that it must be the work or employer himself that creates the condition making it unreasonable to expect this employee to continue work.” Quik ‘N Tasty, 17 S.W.3d at 626; Hessler, 851 S.W.2d at 518. Conditions that motivate the employee to voluntarily leave “must be real, not imaginary, substantial, not trifling, and reasonable, not whimsical, and good faith is an essential element.” Id. The determination of good cause is a question of law, and there are two elements of good cause-reasonableness and good faith. Id.; Bunch, 965 S.W.2d at 878.

In support of its ruling, the Commission argues that the employer’s actions in making changes in the job assignments of Ms. Cooper were reasonable, that the changes it made were a result of sound business, and that such changes do not constitute good cause for an employee to voluntarily leave work. The Commission also argues there was substantial evidence to support its decision: that Ms. Cooper sought the transfers, from the meat and cheese department to the salad bar area and then to the kitchen, because those areas were colder areas of the store; and she then agreed to work as a courtesy clerk to gain more hours of work without mentioning to her supervisors that she had difficulty getting the shopping carts into the store from the parking lot. The Commission contends that Ms. Qooper quit rather than work as a courtesy clerk because she had difficulty physically getting the shopping carts in from the parking lot, and that she would have been retained in her employment with Hy-Vee had she not resigned. The Commission asserts further that it was incumbent upon Ms. Cooper to inform her employer that she was displeased with its handling of her concerns or that she was having difficulties or was unable to perform her duties, rather than to resign; and that her dissatisfaction with her duties and the variance in her hours does not constitute good cause to voluntarily relinquish her employment. Finally, the Commission argues that Ms. Cooper was not forced to resign but did so of her own volition, because she wanted to, and that her reasons for leaving did not constitute good cause attributable to her employer.

Ms. Cooper argues, on the other hand, that the evidence supports that she did in fact raise her concerns with her employer prior to leaving her job and thereby acted in good faith. She claims that the evidence fails to show that she was unable to keep up with her duties in the salad bar; that she acted in good faith by discussing her complaints with her employer; and that the Commission’s findings otherwise were against the weight of the evidence because even her supervisor, Mr. Basch, testified that he was aware of her concerns. She contends that the evidence shows she was indeed able to perform her job; that her hours were reduced not because of an inability to work or poor performance, but because it was “inconvenient to work the position she was in because of the physical condition”; and that her reason for terminating her employment was the alteration of employment conditions from those for which she had been hired, constituting a constructive discharge. Finally, Ms. Cooper complains that the Commission incorrectly substituted its judgment for that of the Referee, who heard the testimony and was in the best position to weigh the credibility of the witnesses.

First, we consider Ms. Cooper’s assertion that we should defer to the factual findings of the Referee because the Referee heard the testimony and was in the best position to weigh the credibility of the witnesses. We need not address that issue, however, because neither the referee nor the Commission made any findings concerning witness credibility.

The crux of the matter is whether Ms. Cooper left her employment for cause attributable to her employer. In addressing this same issue, we recently held that, absent discriminatory or unfair or arbitrary treatment, mere dissatisfaction with working conditions does not constitute good cause for quitting employment unless the dissatisfaction is based upon a substantial change in wages or working conditions from those in force at the time the claimant’s employment commenced. VanDrie v. Performance Contr., 992 S.W.2d 369, 373 (Mo.App.1999); Mitchell v. Division of Employment Security, 922 S.W.2d 425, 428 (Mo.App.1996). The Referee found that the job duties of a courtesy clerk were substantially different from Ms. Cooper’s original work in the meat and cheese department or salad bar area. The Commission, on the other hand, found there was no substantial difference on the same facts.

Whether there was a substantial difference is a question of law. The Commission emphasized that Ms. Cooper accepted and agreed to work as a courtesy clerk. We do not believe much weight can be given to that acceptance, considering the potential consequences of loss of her partial unemployment benefits if she declined the offer. Section 288.050. That section provides that an employee is disqualified from receiving benefits if the deputy finds that he failed to “accept suitable work when offered.” Ms. Cooper was hired to work in the meat and cheese department. She was not hired to work as a courtesy clerk, involving physically demanding work such as sacking groceries and lifting them into and out of shopping carts and into customers’ vehicles, as well as bringing in carts from the parking lot. The work Ms. Cooper performed in the meat and cheese department, the salad bar, and the kitchen were sufficiently similar to each other and required a similar physical capability. It is clear to us that the physical requirements for those positions are vastly different from the physical requirements of the courtesy clerk position. The employer’s transferring Ms. Cooper to the courtesy clerk position constituted a substantial change in working conditions from those for which she was hired. Moreover, “[t]he treatment of an employee by his employer or supervisor may be so arbitrary and unacceptable to a person of ordinary reasonable sensitivity as to afford justification for the employee to quit the employment or to refuse any new employment by that employer.” Smith v. Labor and Indus. Relations Comm’n, 656 S.W.2d 812, 817 (Mo.App.1983). We find that it was not unreasonable for Ms. Cooper to quit because a reasonable 71 year old woman under the same or similar circumstances, and of small stature like Ms. Cooper, would have done the same. Sokol, 946 S.W.2d at 26.

The Commission found that, although Ms. Cooper had asked about other openings “on a couple of occasions,” she did not act in good faith in resigning her employment because she did not voice her concerns to her employer or bring to management’s attention the problems she had with her new working conditions. Good cause, and necessarily good faith, is a legal issue, and varies depending upon the facts of each case. In many cases, good faith will require a communication to the employer of the employee’s problems or concerns. This is intended to provide the employer with an opportunity to correct or ameliorate conditions that the employer did not know about or did not know were a cause of concern to the employee. But we are not persuaded that good faith always requires a complaint by the employee. Where, as here, the change in working conditions results in a substantial change in the nature of the work for which the employee was hired, a determination of good faith involves an inquiry into whether the employer has acted sincerely in assigning the new job duties. Hy-Vee did not dispute the evidence that there were no additional hours for Cooper before she filed a partial unemployment claim and suddenly hours were available once she did. A Hy-Vee representative admitted that Cooper had expressed that she felt she was being forced out. At a time when her hours were reduced, a new employee was hired in one of the areas in which she had worked. She had problems with her paycheck. Management seemed to her unresponsive about her earlier expressions of concerns about hours and duties. She said one manager smirked or commented about her runny nose. Here, the employer advised Ms. Cooper it could give her more hours only as courtesy clerk. Not only was the employer aware of Ms. Cooper’s complaints, but the situation was obvious to the employer. Ms. Cooper quit her employment in response to her employer’s unreasonable action of placing her in a physically demanding position for which she was not hired. There was substantial evidence that Ms. Cooper acted in good faith. The Commission’s finding that she did not quit with good cause erroneously applied the law.

For the reasons stated, we reverse the Commission’s decision that Della E. Cooper left her job voluntarily without good cause attributable to her work or to her employer. We remand to the Commission to enter an order consistent with this opinion.

BRECKENRIDGE, Judge, and SMART, Judge, concur.

      .The record contains no description of the work Ms. Cooper performed in the meat and cheese department.

      .As with the meat department, there is no description in the record as to her job duties in the salad bar.

      .Section 288.060.3, RSMo 1994.

      . Section 288.040, RSMo Cum.Supp.1999.

      . Section 288.050, RSMo Cum.Supp.1999 provides, in part, for disqualification from benefits until wages have been earned equaling ten times the weekly benefit if the claimant “has left work voluntarily without good cause attributable to such work or to the claimant’s employer.”