author: JOHN HILL, Justice (Assigned).

text:
    Lance SLOAN, M.D., Appellant, v. Lisa MOLANDES, et al., Appellees.
    No. 09-99-396 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted June 1, 2000.
    Decided Nov. 30, 2000.

      Elizabeth M. Fraley, Fraley & Fraley, Dallas, Kevin H. Dubose, Richard P. Hogan, Jr., Hogan Dubose & Townsend, L.L.P., Houston, for appellant.
    Jon L. Anderson, Lufkin, for appellee.
    Before BURGESS, STOVER and HILL, JJ.

      . The Honorable John Hill, silting by assignment pursuant to Tex. Gov’t Code Ann. § 74.003(b) (Vernon 1998).

   OPINION

JOHN HILL, Justice (Assigned).

Lance Sloan, M.D. appeals from a judgment resulting from a jury verdict in favor of his patient, Lisa Molandes, and the other appellees in this medical malpractice case. In a single issue, he contends that there is no evidence to support the jury’s finding that any negligence on his part was a proximate cause of any injury to Lisa Molandes. Appellees present three cross-points in which they contend that: (1) the amount of Molandes’ past medical expenses was established as a matter of law; (2) there is no evidence of negligence on the part of Lisa Molandes; and (3) Dr. Sloan should be sanctioned for presenting a frivolous appeal.

We affirm the trial court’s ruling and find: (1) the evidence is both legally and factually sufficient to support the jury’s finding that Dr. Sloan’s negligence was a proximate cause of injury to Molandes; (2) Molandes did not establish the amount of her past medical expenses as a matter of law; (3) the evidence supports the jury’s finding that Molandes’ negligence was a proximate cause of her injury; and (4) Dr. Sloan’s appeal is not a frivolous appeal.

Dr. Sloan contends in a single issue that there is no evidence, or, alternatively, factually insufficient evidence, to support the jury’s finding that his negligence was a proximate cause of damage to Lisa Mo-landes. In reviewing a “no evidence” or legal insufficiency issue, we must consider only the evidence and inferences, when viewed in then- most favorable light, that tend to support the jury’s finding and disregard all evidence and inferences to the contrary. See Sherman v. First Nat’l Bank, 760 S.W.2d 240, 242 (Tex.1988). We must uphold the finding if there is any evidence of probative force to support the finding. Id.

Lisa Molandes testified that she saw Dr. Sloan in 1993 for gestational diabetes and that he later became her primary treating physician. She indicated that Dr. Sloan prescribed the steroid drug Prednisone for her for a condition called minimal change disease or focal segmental glumerulosclerosis. Molandes stated that she began experiencing various side effects, and that she expressed to Dr. Sloan her concern about them, but that he did not taper off the Prednisone. According to Lisa, she and her husband sought a second opinion, but could not get an appointment until March 20, 1996, when she saw Dr. Thomas Lowery, a Tyler nephrol-ogist. She testified that Dr. Lowery told her that she needed to taper off Predni-sone immediately. She stated that the next day her husband took her to the hospital emergency room with severe abdominal pains. According to Michael, her husband, Dr. Sloan admitted her for acute necrotizing pancreatitis. Michael said that Dr. Sloan told the family that she was dying. Lisa testified that after transferring to a Houston hospital, she left the hospital in a wheel chair and leg braces. Neither Dr. Sloan, nor Dr. Larry Melton, an expert called to testify by Dr. Sloan, indicated that Lisa’s lower extremity neu-ropathy, a condition that she contracted as a result of her bout with pancreatitis, was likely to improve.

Dr. Peter Howard Jones, a physician practicing internal medicine and working in the area of atherosclerosis and lipid disorders, testified that Dr. Sloan violated the standard of care by continuing steroid therapy beyond December 1995. One reason for the doctor’s opinion was the increase in Molandes’ triglycerides. He said it was that elevation of triglycerides that ultimately gave her pancreatitis. He indicated that there is a known medical association between elevated triglycerides and pancreatitis, an inflammation of the pancreas. He indicated that in his opinion the continued use of steroids with its effects on glucose control in a woman with underlying genetic predisposition to hypertrigly-ceridemia contributed to a severe elevation in her triglycerides, which ultimately gave her pancreatitis. He indicated that Dr. Sloan did not check Molandes’ triglycerides from the time he began steroid therapy, in June, 1995, to January 15, 1996.

Dr. Tom Petty, a physician board certified in internal medicine, testified that he believed Dr. Sloan was negligent in not appreciating or responding to the side effects that came from his use of corticosteroids. He stated that by starting them and continuing them in spite of continued weight gain and the development of severe hyperlipidemia, he created serious steroid toxicity in Molandes. He indicated that the steroid Prednisone worsened her diabetes, worsened her triglyceride level, worsened her blood cholesterol level, and that the level of triglycerides, level of cholesterol, diabetes, and weight gain were all major reasons behind Molandes’ development of pancreatitis. He stated that in his opinion the way Dr. Sloan used Prednisone with Molandes was a proximate cause of damages to Molandes. He stated that the damages from her total care, which included the high dose of corticosteroids for nearly nine months, resulted in hypertri-glyceridemia, pancreatitis, acute respiratory distress syndrome, the development of a pancreatic pseudocyst, the subsequent development of relapsing pancreatitis, and the development of critical illness neuropa-thy.

We hold that the evidence is legally sufficient to support the jury’s finding that Dr. Sloan’s negligence was a proximate cause of damages to Molandes. We believe that, contrary to Dr. Sloan’s assertions, a reasonable jury could have concluded from this evidence that Dr. Sloan continued Molandes on a high dose of steroids for too long a period and that was a proximate cause of her injuries.

Dr. Sloan argues that the evidence is insufficient because the evidence did not establish that Dr. Sloan’s treatment was the more likely cause of Mo-landes’ injury, nor did it rule out other possible causes. In a medical malpractice case, in order to establish proximate cause, a plaintiff must prove: (1) foreseeability, that the defendant should have anticipated the danger that resulted from his or her negligence; and (2) that the defendant’s negligence was a substantial factor in bringing about the injury and without which no harm would have occurred. See Bradley, et al. v. Rogers, et al., 879 S.W.2d 947, 958 (Tex.App.—Houston [14th Dist.] 1994, writ denied); Arlington Memorial Hospital Foundation, Inc. v. Baird, 991 S.W.2d 918, 922 (Tex.App.—Fort Worth 1999, writ denied). Therefore, Molandes was not required to establish that Dr. Sloan’s treatment was a more likely cause of Molandes’ injuries or to rule out all other causes; rather, she merely had the burden to show that Dr. Sloan’s negligence was a substantial factor in causing her injuries. We believe she sustained that burden.

In arguing that Molandes was required to show that Dr. Sloan’s negligence was the most likely cause or that she was required to rule out other causes, Dr. Sloan relies upon three medical malpractice cases, Hart v. Van Zandt, 399 S.W.2d 791, 792 (Tex.1965); Lenger v. Physician’s General Hospital, Inc., 455 S.W.2d 703, 707-08 (Tex.1970); and Duff v. Yelin, 751 S.W.2d 175 (Tex.1988). In Duff, the court upheld the granting of an instructed verdict in a medical malpractice case where the only evidence of proximate cause was a doctor’s testimony as to two possible causes of the plaintiffs injury, and where the doctor refused to state that either of the events could have caused the injury within a reasonable medical probability. Duff, 751 S.W.2d at 176. In Lenger, the Texas Supreme Court based its holding that the evidence was insufficient to support a finding of causation upon the rule that expert testimony that an event is a possible cause of a condition cannot ordinarily be treated as evidence of reasonable medical probability except when, in the absence of other reasonable causal explanations, it becomes more likely than not that the condition did result from the event. Lenger, 455 S.W.2d at 707. The court noted that the testifying witness said nothing that could be taken as an indication that he regarded the particular cause urged by the plaintiff as the more likely of the several possible causes. Id. We find both of these cases distinguishable because in both of those cases there was no expert testimony that the cause relied upon by plaintiff was, in reasonable medical probability, a cause of the plaintiffs injuries. In this case, as previously noted, there is such testimony. In Hart, the Supreme Court held:

[T]hat proof of causation must be beyond a showing of a possibility that the injuries arose from the defendant’s negligence or lack of skill, since the jury will not be permitted to speculate as to the cause of the injury. Thus where the evidence most favorably [sic] to the plaintiff develops more than one equally probable cause, for one or more of which defendant is not responsible, the plaintiff has failed to sustain his burden of proof.

Hart, 399 S.W.2d at 792-93 (citing 13 A.L.R.2d 22). The court went on to say, however, that expert testimony showing that the defendant’s actions would, in reasonable medical probability, cause damage such as that suffered by the plaintiff was sufficient to support a submission of the issue of probable cause to the jury. Id. at 796. We do not interpret this case or either of the other cases cited by Dr. Sloan to support the concept that expert testimony based upon reasonable medical probability to the effect that the doctor’s negligence caused the plaintiffs injuries is insufficient evidence to support a jury finding of proximate cause merely because the evidence also reflects that there are other things that possibly could have caused those injuries. See Bender v. Dingwerth, 425 F.2d 378, 381-82 (5th Cir. 1970).

Dr. Sloan urges that the evidence is insufficient to show that Molandes’ development of critical illness neuropathy was foreseeable. However, Dr. Petty testified that critical illness neuropathy is an injury to nerves that commonly follows a life-threatening illness, and that it is common when high-dosage corticosteroids and other drags are given. Because the condition is common in a situation such as was present in this case, we believe that it would be reasonable to conclude that Mo-landes’ development of that condition was foreseeable.

In reviewing a factual insufficiency issue, we consider and weigh all of the evidence and set aside the verdict only if the evidence is so weak or the finding so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

Both Dr. Petty and Dr. Jones indicated that Dr. Sloan’s starting Molandes on steroids was within the standard of care, while Dr. Jones testified that Dr. Sloan’s use of steroids from June, 1995, to January, 1996, was within the standard of care. Dr. Sloan argues that Dr. Petty stated that the continued use of steroids did not violate the standard of care until January, but Dr. Petty’s testimony was that in his opinion Dr. Sloan breached the standard of care by keeping Molandes on steroids from June 1995 through January 1996. Dr. Sloan testified that in December, 1995, or January, 1996, he gave Molandes the option of tapering off Prednisone, but that she declined to do so until she received a second opinion. According to Dr. Sloan, she pi’eferred to make her own appointment. Dr. Sloan said that he did not feel that staying on the Prednisone a little longer would be of any harm to her, so he went along with what Molandes wished to do. As previously noted, Molandes testified that Dr. Sloan did not taper off the Prednisone, despite her complaints to him about the side effects.

Dr. Jones did not answer a question as to what harm was caused by the one-month delay in tapering Molandes’ Predni-sone, saying that there was no measurement of her triglycerides at that point. Dr. Sloan suggests that Dr. Jones admitted that no other harm resulted from continuing the steroid therapy during the month from January to February, 1996. Actually, Dr. Jones was asked if there were any other problems in that month that he could attribute to Dr. Sloan’s keeping her on steroids during that period. He replied, “No, other than keeping the triglycerides very high certainly keeps her at ... a risk of developing pancreatitis at any time.” Dr. Jones did acknowledge that Molandes did not develop pancreatitis during that month.

Dr. Jones, in his medical records, listed multiple factors that he indicated probably caused Molandes’ condition: (1) Hy-pertriglyceridemia per se, uncontrolled; (2) Accutane treatment that increased triglycerides; (3) Glucose, uncontrolled; (4) Possibly uncontrolled hypothyroidism; (5) Nephritic syndrome which increases both triglycerides and LDL; and (6) Steroids increases glucose and increases triglycerides.

Dr. Petty also indicated that Molandes’ pancreatitis was caused by multiple factors. He testified that triglycerides, diabetes, cholesterol, and weight gain were all major reasons behind her development of pancreatitis. He indicated that in his opinion the Prednisone worsened Mo-landes’ diabetes, worsened her triglycerides, and worsened her cholesterol. He acknowledged that Molandes, prior to any treatment by Dr. Sloan, was a diabetic, was obese, was hypertensive, had Type V hyperlipidemia, and had some features of the nephritic syndrome. He stated that it is not possible, with any accuracy, to assign an amount that each of the factors played in worsening Molandes’ triglycerides. . He indicated that while pancreatitis usually has an identifiable cause, it can occur just out of the blue. He estimated that close to 50% of cases occur naturally. He acknowledged that there was no scientific way to rule out or provide a cause that is twice as likely a cause as any other. He specifically testified that he could not rule out Molandes’ nephritic syndrome, Accu-tane, or Bactrim as a contributing cause of Molandes’ condition.

Dr. Antonio Gotto testified that in Dr. Jones’ medical records, a double arrow by Accutane, as opposed to a single arrow by steroids, indicated that he considered Ac-cutane to be a stronger cause than steroids.

Dr. Sloan testified that he had never seen anyone continue to have symptoms of critical illness neuropathy for more than a few months, and that literature he had read indicated that in almost all cases the condition resolves within a year.

Dr. Mario Rubin, a board-certified ne-phrologist, testified that critical illness neuropathy is rare as to him, but that a question as to whether it was a relatively rare occurrence should be answered by a neurologist. He said that although he sees from ten to twelve patients daily in an intensive care unit of a hospital, only two of his patients ever had the disease. He expressed his opinion that critical illness neuropathy was not a foreseeable result of Dr. Sloan’s treatment of Molandes with steroids for the dosage and duration that he prescribed.

Dr. Jones indicated that Molandes had not yet developed pancreatitis on March 11, 1996, the day she received a prescription for Bactrim, a sulfa drug. He noted that this date was within ten days of the day she developed pancreatitis. While acknowledging that sulfonamide drugs, or sulfa drugs, are more associated with a direct effect on pancreatitis than corticosteroids, so that the Bactrim could not be eliminated as a possible cause of Molandes’ condition, he expressed his opinion that the Bactrim was not a likely cause of her pancreatitis because it has a much rarer association with the disease than hypertri-glyceridemia. He said that there was nothing in any of his medical records indicating that steroids, more than any other factor, caused Molandes’ pancreatitis. He expressed his opinion that steroids did not, more than any other factor, cause her pancreatitis.

Dr. Petty testified that he was aware that sulfa drugs, such as Bactrim, are believed to have a pretty direct association with pancreatitis. He agreed that a textbook to which he had earlier referred states that there is a definite association between sulfa drugs and pancreatitis, but only a probable association between steroids and pancreatitis. He stated that while that might be true in the general population, it was probably not correct in an individual. He also testified that if Molandes were taking sulfa drugs in a time temporally close to her developing acute pancreatitis, he could not exclude them as a cause.

Molandes acknowledged that she had problems with her thyroid prior to seeing Dr. Sloan, but she was unsure if it was hypothyroid or hyperthyroid. The evidence showed that a dermatologist prescribed Accutane and Bactrim for Mo-landes after she started taking the steroids that Dr. Sloan prescribed.

We hold that the evidence is factually sufficient because we do not find the evidence so weak or so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. We overrule Dr. Sloan’s sole issue on appeal.

Molandes presents three cross-points on appeal. In her first cross-point, she contends that the trial court erred by not awarding her the full amount of the medical expenses that she proved by affidavit in accordance with Tex. Civ. PRAC. & Rem.Code Ann. § 18.001, because she established those expenses as a matter of law. Her affidavit of medical expenses showed expenses in the amount of $107,-543.25, while the jury found expenses in the amount of $21,600.

Section 18.001 of the Texas Civil Practice and Remedies Code provides that an affidavit indicating that the amount a person charged for a service was reasonable at the time and place that the service was provided and that the service was necessary is sufficient evidence to support a finding of fact by a judge or jury that the amount charged was reasonable or that the service was necessary. If no controverting affidavit is filed, the other party may not controvert the claim. Compliance with the statute does not establish that the amount of the damages shown to be reasonable and necessary was caused by the defendant’s negligence and therefore does not establish the plaintiffs entitlement to those damages as a matter of law. See Beauchamp v. Hambrick, 901 S.W.2d 747, 749 (Tex.App.—Eastland 1995, no writ). Molandes principally relies upon the case of Castillo v. American Garment Finishers Corporation, 965 S.W.2d 646 (Tex.App.—El Paso 1998, no writ). This case merely holds that a non-expert witness may not be used at trial to establish the reasonableness and necessity of medical expenses simply because such a non-expert may establish the reasonableness and necessity of such expenses by affidavit in accordance with the provisions of Tex. Crv. PRAC. & Rem.Code. Castillo, 965 S.W.2d at 654. It does not hold that filing such an affidavit that is uncontroverted establishes that one is entitled to be awarded that amount of damages as a matter of law. We overrule Molandes’ cross-point one.

In her second cross-point, Mo-landes contends that there is no evidence to support the jury’s finding that she was 49% negligent. Lisa Molandes testified that while she was on steroid therapy her weight was going up. Doctor Peter Jones indicated that lifestyle changes play a role in glucose control and may play a role in elevating triglycerides in people who have a propensity for that genetically. He indicated that if Molandes were not following her diabetic diet and, instead, eating a high-fat diet it would worsen her diabetes control, her triglycerides, and her cholesterol. He said that a patient who follows his or her diet and gets exercise can have a very significant positive effect on cholesterol, weight, and triglyceride levels. He indicated that although steroids increase appetite, that does not require that the patient eat high-fat foods or stop exercising. He suggested that if Molandes had followed Dr. Sloan’s instructions to eat a low-fat diet, exercise, and lose weight, it would have resulted in lowering her triglycerides, her cholesterol, an improvement in her obesity, and an overall improvement in her medical condition. According to Dr. Jones, if Molandes had walked 30 minutes per day in her neighborhood and had followed her prescribed diet, she would have shown measurable improvements in diabetes control, triglyceride control, obesity, and hypertension.

Dr. Tom Petty testified that high triglyceride levels, diabetes, high cholesterol levels, and weight gain were all major reasons behind Molandes’ development of pancreatitis. He mentioned that she gained more weight while off the steroids than she did while on steroids, gaining 34 ⅜ pounds from September 1994 until starting steroids and gaining 31 pounds in the nine months while she was on steroids. He said that it would have been better if she had adhered to a diet and exercise and could have lost weight. He said he was not aware of any other physical limitation than her obesity that would have kept her from exercising. He said he was not aware of any physical limitation that would have kept her from eating low-fat foods. He said that diet can be effective in reducing triglyceride levels and cholesterol levels, and that diet and exercise together can be effective in lessening the effects of diabetes. He expressed an opinion that diet and exercise could have reduced to some degree the extent to which Molandes suffered the side effects of Prednisone.

Dr. Antonio Gotto testified that a diet with fat restrictions can reduce triglyceride levels, even while a person is on high doses of steroids. He indicated that it is possible through diet to control the effects of steroids on weight gain and on glucose levels. He said that he thought that it is a reasonable assumption that Molandes’ weight gain reflected what her diet was.

We hold that the evidence is sufficient to support the jury’s finding that Molandes’ negligence was a proximate cause of her injuries. Molandes characterizes testimony by Dr. Sloan that he was not telling the jury that her problems were Molandes’ fault as a judicial admission. We believe that Dr. Sloan’s testimony could be reasonably interpreted as not expressing an opinion one way or the other as to whether Molandes was negligent, not an expression of his opinion that she was not negligent. Consequently, his testimony was not a judicial admission. We overrule cross-point two.

In her third cross-point, Molandes contends that we should sanction Dr. Sloan for presenting us with a frivolous appeal. Because we find that this appeal is not frivolous, we overrule cross-point three.

The judgment is AFFIRMED.


source: Caselaw Access Project

author: /s/ Joseph E. Lambert Chief Justice

license: Public Domain

text:
    KENTUCKY BAR ASSOCIATION, Movant, v. Cynthia Ann MANDELLO, Respondent.
    No. 2000-SC-0857-KB.
    Supreme Court of Kentucky.
    Dec. 21, 2000.
   OPINION AND ORDER

The Inquiry Tribunal charged Respondent, Cynthia Ann Mandello, with eight counts of misconduct. Two of these counts have been settled or resolved in separate proceedings. The Board of Governors of the Kentucky Bar Association held a hearing on the remaining charges. The Board found Mandello guilty of two of these counts and not guilty of the other four. The Board recommended a suspension of six (6) months to run consecutively with a previous eighteen months of suspension. See Kentucky Bar Association v. Mandello, Ky., 986 S.W.2d 897 (1999). We adopt the Board’s findings and recommendation as our own.

These charges stem from Mandello’s representation of Carolyn Williams in connection with the death of her husband, George Williams, at the University of Kentucky Medical Center. Mandello became aware of George Williams’ death and some of the surrounding circumstances during a social encounter with nurses from the University of Kentucky Medical Center. These nurses allegedly described the events leading to Mr. Williams’ death in such a way that Mandello became convinced that he died as the result of gross negligence. Based on this knowledge and belief, Mandello sent Mrs. Williams the following letter:

October 27,1989
Dear Ms. Williams,
I sincerely regret the necessity for this letter and it is only due to my strong feelings of fairness that I would write to you at this time. Over the past weekend, through Mends, I learned of the circumstances surrounding your husbands (sic) death and I feel a moral responsibility to suggest that you retain an attorney to investigate it.
I realize that your first thought will be that I am an ambulance chaser. I assure you that I am not, nor have I ever had a need to solicite (sic) business in such a manner. This knowledge that I have concerning your husbands (sic) death has preyed on my mind since learning of it, and in order to alleviate any doubts that you may have concerning my intentions, I can only say that I will cooperate fully with any attorney that you may already have or that you ultimately retain. 'While I would like to represent you and feel that my background provides me with a strong basis of knowledge with which to protect your interests, I must say that in this particular situation, it is not who you choose to represent you, but that you choose someone. It was purely coincidental that I learned of this occurance (sic). My being an attorney had nothing to do with how I discovered it.
Carolyn, I am a strong Christian. I believe that God has reasons for everything and if it is in his perfect plan that I represent you, then he will provide the means. If someone else is to represent you, then he will insure that my information reaches that person. I truely (sic) believe this and will willingly speak to anyone you choose.
I do not know how to adequately discuss what I learned without causing you additional pain. Please ask someone you trust to call me and I will relate the information, how I learned of it, and what I feel you should legally do.
I know that this is a difficult time for you and again, I regret any additional pain that I may have unwittingly caused. I remain,
Sincerely,
Cynthia A. Mandello
Attorney at Law

Mrs. Williams was not a current or former client of Mandello’s, nor had the two ever met prior to this letter being sent. After dismissing the first attorney she hired to represent her, Mrs. Williams hired Mandello to represent her in a medical malpractice action against the University of Kentucky Medical Center in connection with her husband’s death.

Mandello was found not guilty on Counts II, IV, VI and VII. Further, Counts V and VII have either been settled or resolved. The remaining two counts— those upon which Mandello was found guilty — are discussed immediately below.

COUNT I

The Inquiry Tribunal charged Mandello with violation of former rule SCR 3.135(6)(a), which was in effect at the time Mandello sent the above letter. That rule provided in pertinent part, “that a fair and accurate representation of any advertisement that does not qualify under Rule 3.135(6)(a) shall be delivered to the Attorneys Advertising Commission in care of the Director no fewer than 30 days before such advertisement is used.” The basis of this charge is: (1) Mandello failed to deliver a copy of the above letter to the Attorneys Advertising Commission thirty (30) days before she sent it to Mrs. Williams; and (2) Williams was not a current or former client at the time the letter was sent. The Board of Governors found Mandello guilty of this charge by a unanimous vote. Implicit in this conclusion is the finding that Mandello’s letter to Mrs. Williams dated October 27,1989, constituted a letter soliciting business. We agree with this finding and specifically hold that the letter was and is an advertisement within the meaning of the applicable Supreme Court Rules.

COUNT III

The Inquiry Tribunal charged Mandello with violation of former rule SCR 3.135(4), which was in effect at the time Mandello sent the above letter. That rule provided that an attorney could not “use or participate in the use of any form of advertising containing a statement or claim which is false or tends to be misleading, deceptive or unfair or which is self-laudatory.” The Board of Governors gives no written basis for finding Mandello guilty of this rule. Nonetheless, it found her guilty by a vote of 15 to 1.

We note the following: Mandello acknowledges in her response to the Trial Commissioner’s Findings of Fact that the following statement from the letter is self-laudatory: “... I would like to represent you and feel that my background provides me with a strong basis of knowledge with which to protect your interests_” (Emphasis added). Further, the statement is at the very least misleading in light of the following facts: (1) Mandello only had been engaged in the practice of law for two years prior to sending the letter; and (2) Mandello had never before handled a medical malpractice case. Therefore, we adopt the recommendation of the Board of Governors.

Upon the foregoing facts and charges, it is ordered that:

1. Respondent, Cynthia Ann Man-dello, is hereby suspended from the practice of law in the Commonwealth of Kentucky for a period of six (6) months, to run consecutively with any and all current suspensions. The period of suspension shall continue until such time as Mandello is reinstated to the practice of law pursuant to SCR 3.510, or any controlling amendment to SCR 3.510.

2. In accordance with SCR 3.450 and SCR 3.480(3), Mandello is directed to pay all costs associated with this disciplinary proceeding against her, said sum being $2,516.55. Upon the finality of this opinion, an order of execution may issue from this Court for said costs.

All concur.

Entered: December 21,2000.

/s/ Joseph E. Lambert Chief Justice

      . The Supreme Court Rules concerning attorney advertising are currently located at SCR 7.1 et seq.


text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. Angela Griffin ALLEN, Respondent.
    No. 2000-SC-0941-KB.
    Supreme Court of Kentucky.
    Dec. 21, 2000.
   OPINION AND ORDER

Respondent, Angela Griffin Allen, whose last known address was 4621 Thornwood Circle, Lexington, Kentucky, 40515, was admitted to the practice of law in the Commonwealth of Kentucky on October 16, 1992. The instant action consolidates for consideration two separate complaints against Allen — KBA Files 7881 and 7934. Based on these complaints, the Inquiry Commission charged Allen with violations of SCR 3.130 — 8.3(b) & (c), which prohibit attorneys from “commit[ting] a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects,” and from “en-gag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation;” and SCR 3.130(8.1)(b), which prohibits attorneys from “knowingly fail[ing] to respond to a lawful demand for information from an admissions or disciplinary authority.”

Allen filed no response to any of the charges, and the Inquiry Commission submitted the matter to the Board of Governors as a default case pursuant to SCR 3.210(1). After a de novo review of the charges, the Board of Governors found Allen guilty of each violation alleged by the Inquiry Commission.

According to the findings of fact of the Board of Governors in KBA File 7881, Allen, while employed by American Title Group, Inc., engaged in a pattern of dishonest conduct characterized by her forging an attorney’s signature on legal documents and misappropriations of company funds:

1. Melvin K. Drury is President of American Title Group, Inc., a company organized to facilitate the title and closing needs of American Lending Group and other lenders. According to Mr. Drury’s Affidavit, American Title Group, Inc., employed Angela G. Allen, the Respondent, to handle the operations of the company.
2. On or about the first week of October of 1999, after attempting to reconcile the escrow account of American Title Group, Inc., Mr. Drury inquired of Ms. Allen about the outstanding deposit of $39,900.00. Ms. Allen represented to Mr. Drury that it was from a cash closing she had performed in her home town of Maysville, and that the buyer was an old family friend and good for the money. As proof, the Respondent presented to Mr. Drury a check from Grace M. Park for $39,900.00, and said the lady was going to wire the money instead of depositing the check.
3. In December of 1999, Melvin Drury noticed that the funds were still outstanding. He inquired with Ms. Allen, and Ms. Allen indicated that she would take care of it. On further inquiry, Ms. Allen assured Mr. Drury that it had been taken care of, and the funds were in the account.
4. When Mr. Drury called the Bank, no funds had been received, and he demanded the file from Ms. Allen.
5. Mr. Drury attempted to call Grace M. Park, but the number in the file did not belong to Ms. Park.
6. He called the Bank upon which the check had been drawn on Ms. Park’s account, and no account existed.
7. Mr. Drury further investigated and finally contacted Grace Park’s daughter-in-law, and discovered that Grace Park had died three years earlier, and that Attorney Allen was the attorney who handled the estate.
8. Mr. Drury confronted Attorney Allen on February 3, 2000 with this information, and Respondent Allen confessed to him the following:
[A.] She had distributed $39,914.00 out of American Title Group, Inc.’s escrow account to pay off a personal law suit to Marcus Hargis.
[B.] She admitted that she had lied, and there had been no cash closing. [C]. She admitted writing the check on Ms. Park’s account, which she then presented to Mr. Drury to show good faith funds.
Mr. Drury terminated Ms. Allen immediately.
9. The file also reflects that on March 9. 2000, Mr. Drury faxed to J. Garrett at the Kentucky Bar Association Check No. 413 dated December 8, 1999, drawn on American Title Group, Inc., which was made payable to “PAA.” The back of the check reflects that it was deposited into the account of “Pediatric & Adolescent Associates, P.S.C.” Mr. Drury asserted, in his fax, that Attorney Allen paid these funds out of American Title Group, Inc.’s escrow account for her own benefit.
10. After Ms. Allen’s termination, Mr. Drury reviewed the files, current and old, and apparently noticed something wrong with Attorney Leslie Dean’s signature. Ms. Dean works as an attorney for the firm of Dean, Dean, & Dean. She was contacted by American Title Group, Inc., to review files, prepare and sign Deeds, etc. On further review, Mr. Drury opines in his affidavit that approximately 41 purchases and 21 refinances (that’s 62 files) contained a forged signature for Leslie Dean, apparently executed by Ms. Allen.
11. These forgeries are confirmed by a sworn statement from Leslie Dean addressed to J. Garrett at the Kentucky Bar Association.

As a result of Allen’s conduct while employed by American Title Group, Inc., the Board of Governors found her guilty of violating SCR 3.130-8.3(b) & (c). The Board of Governors further found Allen guilty of violating SCR 3.130-8.1(b) because of her failure to respond to the disciplinary proceedings against her.

The Board of Governors also found violations of the Kentucky Rules of Professional Conduct by Allen in KBA File 7934 when Allen compounded potentially criminal misappropriations of funds when she converted funds from her employer to repay a client whose power of attorney she had abused to convert property for her own purposes:

1. On February 14, 1997, the Respondent, Angela Allen, obtained a Limited Power of Attorney from Marcus P. Har-gis, the Guardian for Margaret Louise Block, his grandmother.
2. On or about August 14, 1997, without notice to either Margaret Block or Marcus P. Hargis, the Respondent, Angela Griffin Allen, utilized the Power of Attorney to convey real property owned by Margaret Block to Steve Stone and Ann Stone for the sum of $40,000.00 (Deed Book 1931, Page 134, Filed August 25, 1997, Fayette County Court Clerk’s Office).
3. A Complaint was filed in the Fayette Circuit Court on August 19, 1999, by Marcus P. Hargis as Guardian for Margaret L. Block (Civil Action No. 99-CI-2918 styled “Margaret L. Block, by and through Marcus P. Hargis, Guardian, Plaintiff, v. Angela Griffin Allen, Defendant”) alleging the unauthorized sale of the real estate, and the conversion of $40,000.00.
4. According to the Affidavit of Respondent Allen’s employer, Melvin K. Drury, President of American Title Group, Inc., Respondent Allen admitted to him on February 3, 2000, that, in August of 1999, she used $39,914.00 out of American Title Group, Inc.’s escrow account to pay off “a personal law suit to Marcus P. Hargis.”

On the basis of Allen’s conduct and her subsequent failure to respond to the charges against her, the Board of Governors found her guilty of violating SCR 3.130^8.3(b) & (c) and SCR 3.130-8.1(b).

After considering Allen’s three (3) previous suspensions, including her current two (2) year suspension which began on March 23, 2000, the Board of Governors recommended that Allen be permanently disbarred from the practice of law in the Commonwealth of Kentucky. Allen made no request pursuant to SCR 3.370(8) that this Court review the Board’s recommendation, and, pursuant to SCR 3 .370(10), this Court therefore adopts the recommendation of the Board of Governors.

ACCORDINGLY, IT IS HEREBY ORDERED:

(1) Respondent, Angela Griffin Allen, is hereby permanently disbarred from the practice of law in the Commonwealth of Kentucky and shall not be permitted to apply for reinstatement of her license to practice law. The period of disbarment shall commence on the date of entry of this Order.

(2) In accordance with SCR 3.450 and SCR 3.480(3), Allen is ordered to pay all costs associated with these disciplinary proceedings against her, said sum being one hundred fifty-three dollars and sixty-four cents ($153.64), and for which execution may issue from his Court upon finality of this Opinion and Order.

(3) Pursuant to SCR 3.390, Allen shall, within ten (10) days from the entry of this Opinion and Order, notify in writing all courts in which she may have matters pending and all clients, of her inability to provide further legal services, and furnish the Director of the Kentucky Bar Association with a copy of all such letters.

All concur.

Entered: December 21, 2000.

/s/ Joseph E. Lambert Chief Justice

      . SCR 3.130-8.3(b).

      . SCR 3.130-8.3(c).

      .SCR 3.130-8.1(b).

      . See Allen v. Kentucky Bar Ass’n, Ky., 985 S.W.2d 347 (1999); Kentucky Bar Ass’n v. Allen, Ky., 13 S.W.3d 927 (2000).


author: ROBERT S. BARNEY, Chief Judge.

text:
    Ricky L. HENDERSON, Appellant, v. STATE of Missouri, Respondent.
    No. 23082.
    Missouri Court of Appeals, Southern District, Division Two.
    Nov. 21, 2000.

      Jacqueline K. McGreevy, Louisiana, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Linda Lemke, Asst. Atty. Gen., Jefferson City, for respondent.
   ROBERT S. BARNEY, Chief Judge.

Appellant, Ricky L. Henderson, (“Mov-ant”) appeals the denial of his Rule 24.035 motion for post-conviction relief after an evidentiary hearing. Movant sought to vacate the judgment and sentence of the Circuit Court of Jasper County, finding him guilty of statutory rape in the first degree, § 566.032, RSMo 1994, of his daughter aged 13, following his guilty plea made after opening statements at trial. He was sentenced to serve a term of eight years imprisonment. Movant raises two points of motion court error, discussed below. We affirm.

“Appellate review of a denial of a Rule 24.035 motion for post-conviction relief is limited to a determination of whether the motion court’s findings of fact and conclusions of law are clearly erroneous.” Jenkins v. State, 9 S.W.3d 705, 707 (Mo.App.1999); see also Rule 24.035(k). “Findings and conclusions are clearly erroneous only if, after a review of the entire record, we are left with the definite and firm impression that a mistake has been made.” Id.‘The motion court is not required to believe the testimony of a mov-ant, and we must defer to the motion court’s determination of credibility.’ ” /¿(quoting Rice v. State, 988 S.W.2d 556, 558 (Mo.App.1999)). “Movant has the burden of proving the grounds asserted for post-conviction relief by a preponderance of the evidence.” Id.

Movant’s amended 24.035 motion alleged, inter alia, that his trial counsel was ineffective and that his guilty plea was not “voluntarily, intelligently, nor knowingly made” because Movant was never informed the victim “had informed [his trial counsel] and the prosecution that the statutory rape never occurred” and that “[although there were other witnesses who could have testified that the victim had denied being raped, trial counsel continued to urge and coerce [Mjovant to plead guilty....”

Movant now asks us to remand the cause for a new trial on the basis on the basis of “newly discovered evidence.” This “newly discovered evidence” consists of an undated affidavit of one John William Cain claiming that the victim had recanted her statement to him in December of 1998, and that he was “not put on the stand and able to testify to [Movant’s] good moral character [at the 24.035 hearing] or anything else because [Movant’s post-conviction attorney] said that he had enough evidence to overturn the sentencing.” Movant’s brief states that this affidavit was received “[o]n or after October 12, 1999,” but also states “[t]he Affidavit came to be known to Appellant through counsel herein some eleven (11) months after the [February 6, 1998,] disposition of his case” which would, according to our calculations, have been January 1999. Movant asks this Court to remand the case for a new trial pursuant to our “inherent power to remand ... on the basis of newly discovered evidence to prevent a miscarriage of justice.”

However, we are precluded from according Movant this form of relief. “Missouri’s post-conviction relief rales are not a proper vehicle for the examination of claims of newly discovered evidence.” Wilson v. State, 813 S.W.2d 838, 834 (Mo. banc 1991) (concerning a Rule 24.035 motion); see also State v. Ferguson, 20 S.W.3d 485, 505 (Mo. banc 2000) (a claim of newly discovered evidence “is not cognizable in a Rule 29.15 motion, even where properly pleaded and preserved”). Point One is denied.

In his very sketchy second point on appeal, Movant complains of ineffective assistance of his trial counsel. Movant contends that his counsel failed to advise him regarding “possible defenses” and failed to advise him of a “conflict of interest in representing him.”

In his arguments under Point Two, Mov-ant generally complains that his trial counsel did not discuss the “exculpatory impact” that the “complaining witnesses [sic] recent recantation would have had on the jury.” He also complains that his trial counsel was “deficient in not advocating on behalf of the [Movant]” and generally not “preparing [him] for trial.” Movant also complains of the “conflict of interest” arising from his trial counsel having represented his ex-wife relating to certain domestic relations proceedings. Hence, Movant argues, these cumulative errors prejudiced Movant and forced him to plead guilty. These claims have no merit.

“ A claim of ineffective assistance of counsel requires that a defendant show that counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and that the defendant was prejudiced thereby.’ ” Jenkins, 9 S.W.3d at 707 (quoting Rice, 988 S.W.2d at 558); see Strickland v. Washington, 466 U.S. 668, 694-95, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984).

To prevail on a claim of ineffective assistance of counsel, the claimant must show' by a preponderance of the evidence that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would have exhibited under similar circumstances and that the claimant was thereby prejudiced.

Jenkins, 9 S.W.3d at 707 (quoting Bishop v. State, 969 S.W.2d 366, 368 (Mo.App.1998)). “To satisfy the ‘prejudice’ requirement, a prisoner who has pled guilty must demonstrate there is a reasonable probability that, but for counsel’s errors, he would not have pled guilty and would have insisted on going to trial.” Id. at 708. “Therefore, once a plea of guilty has been entered, the effectiveness of counsel is relevant only to the extent that it affects the voluntariness of the plea.” Id. “Absent an abuse of discretion, this Court defers to the trial court’s determination as to whether a prisoner’s guilty plea was voluntary.” Id.

As previously set out, the motion court found that Movant’s trial counsel had, in fact, discussed the victim’s recantation of testimony with Movant prior to trial. His trial counsel stated he discussed the recantation with Movant “well before [Movant] determined he was going to plead guilty.”

Movant’s trial counsel also testified that he talked with Movant about the case “[m]any times, yes,” and that “[\v]e discussed the evidence.” Trial counsel testified at the motion hearing that he conducted an investigation into the allegations and had “many office visits,” and that “[f]orty-five minutes would not be an unusual amount of time for me to spend with a client.” He related that he “disclosed to him everything that I got in discovery, which were police reports and medical stuff.” He also related that he discussed with Movant two, separate, pre-trial plea offers involving ten years then five years. Trial counsel also testified that “I wrote him letters about all the plea discussions, plea deals, plea offers,” and acknowledged discussing the “implications of a plea of guilty....” Trial counsel testified that all these pre-trial plea offers were turned down by Movant.

Movant’s trial counsel also stated that on the day of trial he asked the prosecutor if there was “any possibility of deals or was the three-year deal off. The three-year deal was off and the offer was ten years at that time.... I brought that up, told [Movant] about it, so we proceeded with voir dire.” Trial counsel testified that:

[A]fter opening [Movant] took my sleeve, I suppose, or got my attention somehow and ... said that he wanted to plead because they had offered an eight year cap, somewhere in there they’d offered an eight year cap. So he took an eight year cap after opening statements.

Furthermore, with regard to allegations of conflict of interest, trial counsel testified that in his “initial meetings” with Movant that he made Movant aware that he had previously represented his ex-wife in proceedings. Trial counsel related that Mov-ant “said he couldn’t afford Scott Watson, would I be interested, so.” Trial counsel testified:

[I]t was absolutely known to [Movant] who I was, who I represented, prior to the time he ever came to see me in the case, prior to the time he signed a contract. He knew I represented his wife, he knew I’d represented his wife in two cases and that was known. Nothing was concealed from him regarding that whatsoever.

Based on the foregoing, the motion court concluded that trial counsel had not concealed his relationship with Movant’s ex-wife. The motion court also concluded that it did “not accept Movant’s version of the information related to him by trial counsel” and that trial counsel was “zealous in his representation” and that Mov-ant’s “plea was intelligently and voluntarily made” and hence there was “no deprivation of any constitutional right.” “The motion court is not required to believe the testimony of a movant, and we must defer to the motion court’s determination of credibility.” Rice, 988 S.W.2d at 558.

In our review of the record, we are not convinced that Movant met his burden of showing that his trial counsel had been ineffective. “Movant has the burden of proving the grounds asserted for post-conviction relief by a preponderance of the evidence.” Jenkins, 9 S.W.3d at 707. “Absent a showing to the contrary, counsel is presumed to have provided effective assistance.” State v. Wright, 941 S.W.2d 877, 888 (Mo.App.1997). Furthermore, it is clear that Movant’s alleged conflict of interest is premised upon speculation and conjecture. Movant has not demonstrated that an actual conflict of interest existed, nor do we believe that any such conflict led his counsel to do anything detrimental to Movant’s interests. See Smith v. State, 972 S.W.2d 551, 556 (Mo.App.1998); see also Amrine, 785 S.W.2d at 585. Point denied.

The judgment of the motion court is affirmed.

CROW and GARRISON, JJ., concur.

      . Rule references are to Missouri Court Rules (2000).

      . Movant’s trial counsel testified at the motion hearing that Movant "had told me that [the victim] had recanted and that’s why I called her [by telephone] ... well before [Movant] determined he was going to plead guilty." In its findings of facts and conclusions of law, the motion court clearly did not believe Movant’s claims and found that Mov-ant's trial counsel had "talked with the victim by telephone and she recanted her claim of rape” and that "[t]he Movant was aware the victim recanted prior to his plea.” See Royal v. State, 868 S.W.2d 552, 555 (Mo.App.1994)(“The motion court is the arbiter as to credibility of witnesses”).


author: EDWIN H. SMITH, Presiding Judge.

text:
    Paula K. CALDWELL and Marjorie L. Roberts, Appellants, v. HERITAGE HOUSE REALTY, INC., et al., Defendants, Bobby E. Rogers and Patricia Rogers, Respondents.
    No. WD 58011.
    Missouri Court of Appeals, Western District.
    Dec. 5, 2000.

      Brian J. Niceswanger, Overland Park, KS, for Appellants.
    William J. Gotfredson and Theresa She-an Hall, Kansas City, for Respondents.
    Before EDWIN H. SMITH, P.J., and ULRICH and ELLIS, JJ.
   EDWIN H. SMITH, Presiding Judge.

Paula K. Caldwell and Marjorie L. Roberts appeal from the judgment of the Circuit Court of Adair County denying their application for attorney’s fees and supplemental application for court costs arising out of a dispute between the appellants and the respondents, Bobby E. and Patricia A. Rogers, over the sale of the respondents’ house to the appellants.

The appellants raise two points on appeal. In Point I, they claim that the circuit court erred in denying their application for attorney’s fees, after they had purportedly accepted the respondents’ Rule 77.04 offer of judgment for $70,000 and costs, “because Missouri courts must enforce a contractual provision providing for attorney fees as written and [appellants] satisfied all contractual requirements for the award of attorney fees.” In Point II, they make the identical claim only as to their supplemental application for court costs.

We dismiss for a lack of jurisdiction.

Facts

On or about August 29, 1995, the appellants entered into a real estate contract with the respondents to purchase the respondents’ house located in Adair County, Missouri. The contract contained an express provision for the recovery of attorney’s fees and court costs by the prevailing party in any dispute arising out of the contract.

After purchasing the house, the appellants discovered that it was infested with termites. Consequently, on May 9, 1997, they filed suit in the Circuit Court of Adair County, Missouri, against the respondents and Heritage House Realty, Inc., the realtor who helped the respondents sell the house; Vicki Benson, Anita James, and Kenneth Read, the real estate agents involved in the sale; Charles Hayes, the owner of ABAN Pest Control Co., and Robert Tilinski, both of whom inspected the home for termites prior to the appellants’ purchase. The appellants sought to recover actual damages in excess of $225,-000, as well as punitive damages, attorney’s fees, and costs on several theories. On June 4, 1997, the respondents filed their answer to the appellants’ petition. The appellants dismissed with prejudice their claims against ABAN and Tilinski on March 22, 1999. On October 8, 1999, after extensive discovery, the respondents made an offer of judgment for “$70,000, along with costs thus far accrued,” pursuant to Rule 77.04. The appellants’ claims against Heritage House, Benson, James, and Read were dismissed with prejudice on November 19, 1999. The appellants filed a notice of acceptance on October 18,1999.

On October 22, 1999, the appellants filed an “Application and/or Motion for Attorneys’ Fees as Prevailing Party.” In their application, they alleged that the offer of judgment for $70,000 and costs was silent as to the award of attorney’s fees to a prevailing party as provided in the parties’ contract, and, thus, under general principles of contract law, requiring the court to construe the offer of judgment against the respondents who drafted it, they were entitled to an award of attorney’s fees in addition to the $70,000. On November 4, 1999, the respondents filed their “Suggestions in Opposition to Plaintiffs’ Application and/or Motion for Attorneys’ Fees as Prevailing Party,” arguing that the offer of judgment for $70,000 was in satisfaction of all claims, including attorney’s fees. The circuit court heard the appellants’ application for attorney’s fees on November 12, 1999. On November 15, 1999, the circuit court overruled the appellants’ application for attorney’s fees.

On November 30, 1999, the appellants filed a “Supplemental Application for Court Costs as Prevailing Party,” asking the court to make a determination as to the allowable costs under the offer of judgment. The application included an itemization of costs in the amount of $5,470.67, which amount appeared to be solely for costs incurred in connection with moving from the infested home. On December 3, 1999, the respondents filed their “Suggestions in Opposition” to this motion. On December 10, 1999, the circuit court overruled the appellants’ application for court costs and entered judgment in favor of the appellants and against the respondents pursuant to the offer of judgment in the amount of $70,000 plus costs accrued in the action to October 18,1999.

This appeal follows.

Standard of Review

“Rule 77.04 was designed simply to permit a defendant to avoid court costs by making an offer of judgment which, if accepted, would result in a consent judgment.” Katz Drag Co. v. Commercial Standard Ins., 647 S.W.2d 831, 840 (Mo.App.1983) (citing Miller v. United Sec. Ins., 496 S.W.2d 871, 876 (Mo.App.1973); Fritzsche v. E. Tex. Motor Freight Lines, 405 S.W.2d 541, 544 (Mo.App.1966)). A consent judgment is contractual in nature; thus, to the extent that a consent judgment requires interpretation, rules governing the interpretation of contracts apply. Boillot v. Conyer, 887 S.W.2d 761, 763 (Mo.App.1994). Questions of contract interpretation are questions of law, Legg v. Certain Underwriters at Lloyd’s of London, 18 S.W.3d 379, 383 (Mo.App.1999), and are reviewed de novo by this court. Wildflower Cmty. Ass’n v. Rinderknecht, 25 S.W.Sd 530, 534 (Mo.App.2000). Hence, given the fact that the instant appeal raises a question of interpretation of the Rule 77.04 judgment entered by the circuit court, our review is de novo.

I.

In Point I, the appellants claim that the circuit court erred in overruling their application for attorney’s fees, after they had purportedly accepted the respondents’ Rule 77.04 offer of judgment, “because courts must enforce contractual provisions relating to an award of attorney’s fees as written, and they had satisfied all of the contractual requirements for such an award.” Specifically, the appellants contend that they were entitled to an amount, in addition to the $70,000, for attorney’s fees in that:

(1) the contract between [appellants] and [respondents] mandated an award'of attorneys’ fees to the party prevailing in litigation; (2) [appellants] were the prevailing parties in the litigation; and (3) [respondents’] offer of judgment did not address or eliminate [their] obligation to pay attorney fees pursuant to the express terms of the contract between [the parties].

There is no dispute on appeal that the parties’ real estate contract provided for an award of attorney’s fees to the prevailing party, and that the appellants prevailed under the Rule 77.04 judgment entered by the circuit court. However, there is a dispute as to whether the respondents’ offer of judgment for $70,000 included an amount in payment of attorney’s fees and as such satisfied the appellants’ claim for the same. As to this dispute, the appellants argue that the offer of judgment for $70,000 and costs was silent as to the award of attorney’s fees, as provided in the parties’ contract; thus, under general principles of contract law, requiring the court to construe the offer of judgment against the respondents who drafted it, they were entitled to an award of attorney’s fees in addition to the $70,000. Accordingly, the issue raised by the appellants in their first point is whether the respondents’ offer of judgment should have been interpreted by the circuit court as requiring a payment in excess of the $70,000 for attorney’s fees.

The appellants’ claim in this point necessarily assumes that there was an offer of judgment by the respondents and an acceptance by the appellants, all in accordance with Rule 77.04. Rule 77.04 reads:

At any time more than thirty days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. If within ten days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon judgment shall be entered. If the offer is not accepted within ten days it shall be deemed withdrawn and evidence thereof is not admissible. If the adverse party fails to obtain a judgment more favorable than that offered, that party shall not recover costs in the circuit court from the time of the offer but shall pay costs from that time.

If an offer of judgment is made and accepted in accordance with Rule 77.04, the circuit court must enter a judgment thereon. State ex rel. Riggs v. Clark, 14 S.W.3d 719, 721 (Mo.App.2000). Conversely, logic would dictate that if the offer is not made and accepted in accordance with Rule 77.04, the trial court would lack authority to enter judgment pursuant to the rule. As such, in our case, if the respondents’ offer of judgment and the appellants’ acceptance of the same were not done in accordance with Rule 77.04, then the circuit court would not have been authorized to enter its Rule 77.04 judgment. Thus the judgment, unless otherwise valid as a consent judgment outside the rule, which we discuss, infra, would have been void ab initio rendering it a nullity, see Williams v. Williams, 950 S.W.2d 919, 924 (Mo.App.1997) (stating that a judgment which is void from its inception is a nullity), depriving us of jurisdiction as to the merits of the claims on appeal. Sumnicht v. Sackman, 968 S.W.2d 171, 174 (Mo.App.1998). Accordingly, because we are to determine sua sponte our own jurisdiction, id. at 174, before addressing the merits of the appellants’ claim, we must first determine whether there was a valid offer of judgment and acceptance in accordance with Rule 77.04.

A review of the record indicates that, in accordance with Rule 77.04, the respondents made their offer of judgment more than thirty days prior to trial. It read:

Pursuant to Rule 77.04 of the Missouri Rules of Civil Procedure, Separate Defendants Bob and Patty Rogers offer entry of judgment against them for all claims alleged against them [sic ] Plaintiffs’ Petition, and as thereafter amended, in the amount of $70,000.00, along with costs thus far accrued and request that Plaintiffs accept said offer of judgment within the time and in the manner specified by Rule 77.04.

(Emphasis added.) Thereafter, the appellants purportedly accepted this offer within ten days after its service, as required by Rule 77.04. The appellants’ notice of acceptance stated:

Come now the plaintiffs, pursuant to Mo.R.Civ.P. 77.04, and hereby serve notice of theft acceptance of the offer of judgment in the amount of $70,000, together with costs accrued in the action to the date of judgment.

(Emphasis added.) A careful reading of the appellants’ acceptance indicates that they were not accepting all the terms of the respondents’ offer. Rather, they sought to vary the terms thereof by stating that they would accept an offer of judgment which included “costs accrued in the action to the date of judgment,” rather than the respondents’ offer which included “costs thus far accrued.” As we discuss, infra, this deprived the trial court of the authority to enter its Rule 77.04 judgment.

Although Rule 77.04 does not define acceptance, because a judgment entered pursuant thereto is contractual in nature, Boillot, 887 S.W.2d at 763, an acceptance under the rule, as in the creation of any binding contract, must logically mirror the material terms of the offer; otherwise it would be a counteroffer, rather than an acceptance. Beck v. Shrum, 18 S.W.3d 8, 10 (Mo.App.2000); L.B. v. State Comm. of Psychologists, 912 S.W.2d 611, 617 (Mo.App.1995). “Acceptance of an offer which introduces new or variant terms amounts to a eounterproposition and rejection of the initial offer.” Stephens v. Brekke, 977 S.W.2d 87, 93 (Mo.App.1998). Because the very purpose of Rule 77.04 is to allow a defending party to limit its liability for costs, Katz, 647 S.W.2d at 840, it cannot be said that the variance of the appellants’ acceptance with respect to what costs were to be included in the judgment was not material such that the variance did not work to invalidate the appellants’ acceptance. See Howard Constr. Co. v. Jeff-Cole Quarries, Inc., 669 S.W.2d 221, 229 (Mo.App.1983) (holding that a purported acceptance altering material terms of an offer is a counteroffer).

Inasmuch as there was not a valid acceptance of the respondents’ offer of judgment within the ten days after the service thereof pursuant to Rule 77.04, the respondents’ offer was “deemed withdrawn,” and the circuit court was not authorized to enter a judgment based on the rule. Therefore, the judgment entered by the court was a nullity as a Rule 77.04 judgment, Williams, 950 S.W.2d at 924, such that we would have no jurisdiction to review the merits of the appellants’ appeal in that there would be no final and appeal-able judgment, unless the trial court’s judgment was otherwise proper as a consent judgment outside the rule. Sumnicht, 968 S.W.2d at 174.

It is well settled that we are to affirm the trial court’s decision on any reasonable theory supported by substantial evidence in the record. M.F.M. v. J.O.M., 889 S.W.2d 944, 954 (Mo.App.1995). In that regard, an argument conceivably could be made that, even though the circuit court’s judgment was not authorized under Rule 77.04, it was otherwise authorized as a consent judgment. Such an argument would be premised on a contention that, although the respondents’ offer of judgment was deemed withdrawn for purposes of Rule 77.04, at the time of the hearing on the appellants’ application for attorney’s fees, the respondents were still offering to consent to judgment for $70,000 and costs accrued to date; which offer the appellants, in effect, accepted by their acquiescence to the court’s entering judgment against them, which we discuss, infra. However, the record clearly reflects that the only judgment to which the appellants consented was a Rule 77.04 judgment based on their belief that the issue of whether or not the judgment for $70,000 included an amount for attorney’s fees was subject to appeal.

For there to have been a consent judgment outside Rule 77.04, there must have been an agreement between the parties on the precise terms of the judgment to be entered. St. Louis Police Officers’ Ass’n v. Bd. of Police Comm’rs, 846 S.W.2d 732, 739 (Mo.App.1992) (citing Firefighters v. Cleveland, 478 U.S. 501, 522, 106 S.Ct. 3063, 3075, 92 L.Ed.2d 405, 423 (1986)). “Mutuality of agreement does not exist unless there is a mutuality of assent by the parties to the proposed terms for a contract.” Stephens, 977 S.W.2d at 93 (citation omitted). “Indeed, it is the parties’ agreement that serves as the source of the court’s authority to enter any judgment at all.” Firefighters, 478 U.S. at 522, 106 S.Ct. at 3075, 92 L.Ed.2d at 423. The record indicates that there was no such agreement.

At the hearing on the appellants’ application for attorney’s fees, which was conducted prior to the circuit court’s entering its Rule 77.04 judgment, the court advised counsel for the parties on the record that, despite the purported Rule 77.04 offer and acceptance of the parties, it was obvious to the court that there was no agreement between them as to whether the respondents’ Rule 77.04 offer of $70,000 included payment of attorney’s fees. As such, the court offered the appellants two choices: (1) withdraw their acceptance and proceed to trial, or (2) “accept the judgment and live with my ruling that it ... does include the attorney’s fees.” The court further advised that if the appellants chose the latter option, accepting the Rule 77.04 judgment, it was the court’s opinion that they would be precluded from attacking the judgment on appeal as to the issue of whether it included an amount in satisfaction of the appellants’ claim for attorney’s fees.

The appellants’ counsel, having requested of and received from the court an opportunity to discuss the court’s forced options with his clients who were not at the hearing, sent a letter, post-hearing, advising the court of his clients’ decision and the basis for the same. Despite having been forewarned that, in accepting or acquiescing to the court’s entry of a Rule 77.04 judgment, the court would deny then-application for attorney’s fees, appellants’ counsel nonetheless advised that the appellants were refusing to withdraw their acceptance in that they believed that the parties were bound by their Rule 77.04 offer and acceptance, and thus, the court, as a matter of law, was required to enter a Rule 77.04 judgment thereon. At first blush this might seem contrary to the appellants’ interests given the court’s warning that in entering its judgment it would overrule their application for a determination of attorney’s fees. However, it was the appellants’ belief that, under the parties’ Rule 77.04 offer and acceptance, and the judgment entered thereon, they were due an amount in excess of $70,000 to satisfy their claim for attorney’s fees and that, as a matter of law, the court, in ruling on the appellants’ application for the same, was required to interpret the offer and acceptance, and judgment thereon in that fashion. Based on this belief and the belief that the denial by the court of the appellants’ application for attorney’s fees would be subject to a successful attack on appeal and that they were in no way agreeing that they were not entitled to an additional amount for attorney’s fees, the appellants determined that insisting on the court’s entry of a Rule 77.04 judgment best served their interests. The appellants’ acquiescence in the court’s entering its Rule 77.04 judgment, however, could in no way be interpreted as the appellants consenting to a judgment outside the requirements of Rule 77.04 in that to do so would mean that they were agreeing with the respondents’ and the court’s then position that the respondents’ offer of $70,000 was in payment of all claims, including the appellants’ claim for attorney’s fees, a position with which the appellants vehemently disagreed.

From the record, it is obvious that at the time of the hearing on the appellants’ application for attorney’s fees, after the Rule 77.04 offer was deemed to have been withdrawn, the parties were not in agreement on the total amount to be paid to the appellants to satisfy their claims, including their claim for attorney’s fees. As such, at the time the court entered its judgment, there was not an agreement between the parties with respect to the terms of a consent judgment not governed by Rule 77.04, such that the circuit court lacked any authority to enter a consent judgment. Firefighters, 478 U.S. at 522, 106 S.Ct. at 3075, 92 L.Ed.2d at 423. The respondents never made an offer which was acceptable to the appellants to form the basis for a consent judgment outside Rule 77.04 in that the record reflects a disagreement over whether the $70,000 was in payment of attorney’s fees. As a matter of legal strategy, the only consent to judgment given by the appellants was for the trial court to enter a Rule 77.04 judgment premised on their belief that it would be ultimately interpreted on appeal as providing for an amount in excess of $70,000 to satisfy their claim for attorney’s fees. Hence, an argument that even if the court lacked authority to enter its Rule 77.04 judgment, rendering it a nullity, as we determined, supra, consent judgment was authorized, is without merit.

For the reasons stated, we find that the circuit court lacked authority to enter judgment pursuant to Rule 77.04 or pursuant to the consent of the parties, requiring us to dismiss for lack of a final appealable judgment.

Given our disposition of the appellants’ claim in Point I, we necessarily do not address their claim in Point II.

Conclusion

The appeal from the circuit court’s denial of the appellants’ application for attorney’s fees and supplemental application for court costs is dismissed for a lack of jurisdiction.

ULRICH and ELLIS, JJ., concur.

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

      . The record would indicate that the respondents were not agreeing to allow the appellants to withdraw their Rule 77.04 acceptance. To the contrary, it appears that the respondents were insisting, as were the appellants, that the parties were bound by their Rule 77.04 offer and acceptance, and that the court was obligated to enter a judgment thereon. The disagreement was over how such a judgment should be interpreted with respect to the appellants’ claim for attorney’s fees.