author: MONTGOMERY, Judge.

text:
    Bonnie BENOIT, Amelia Lewis, Melanie Hartland, Terrilyn Halford, Kimberly Young, Rebecca Statesel, and Craig Hartland, Individually, and as Next Friend of Travis Hartland and Sarah Hartland, Respondents/Cross-Appellants, v. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Appellant/Respondent, and Shawn Baker, Defendant.
    Nos. 23088, 23103.
    Missouri Court of Appeals, Southern District, Division One.
    Nov. 21, 2000.
    Motion for Rehearing or Transfer Denied Dec. 13, 2000.
    Application for Transfer Denied Jan. 23, 2001.

      Zachary T. Cartwright, Senior Litigation Counsel, John W. Koenig, Jr., Dist. Counsel, Rich Tiemeyer, Chief Counsel, Jefferson City, for Appellant/Respondent.
    Steve Garner, Neil Chanter, The Strong Law Firm, P.C., Springfield, for Respondents/Cross Appellants.
   MONTGOMERY, Judge.

These appeals arise from a case where two vehicles collided on September 7, 1995, on U.S. Highway 60 two miles east of the Shannon/Carter County line. The plaintiffs are the surviving spouse and children of Abney Benoit and the parents and next friend of Travis Hartland, a minor. The defendants are the Missouri Highway and Transportation Commission (MHTC) and Shawn Baker.

The accident occurred when Baker’s eastbound 1991 Ford Ranger pickup collided with the westbound 1986 Dodge Diplomat operated by Abney Benoit. After Baker lost control of his vehicle rounding a curve on wet pavement, his vehicle slid across the centerline into the path of the Benoit vehicle. Baker told the investigating trooper at the scene that he was traveling 55 miles per hour, the speed limit, when he began to slide. His trial testimony mirrored his statement to the trooper. MHTC attributes no fault to Benoit in causing the accident. Benoit died as a result of the accident, and Travis Hartland suffered serious injuries.

After a lengthy trial, the jury returned a verdict of $500,000 for the wrongful death of Benoit and $300,000 for the personal injuries of Hartland. The jury assessed MHTC with 75 percent fault and Baker with 25 percent fault. Judgment was entered on May 4, 1999, in accordance with the jury verdict. Thereafter, MHTC moved to limit each judgment award to $100,000 as provided in § 537.610.2. Plaintiffs also moved to add postjudgment interest to the judgment. The trial court granted the motion of MHTC but denied Plaintiffs’ motion.

MHTC and Plaintiffs appeal. Plaintiffs only seek review of the trial court’s ruling on the issue of postjudgment interest. We consolidated the appeals.

MHTC’s Appeal No. 23088

MHTC’s first of four points relied on alleges the trial court erred in denying its motions for directed verdict and for judgment notwithstanding the verdict. MHTC claims that Plaintiffs failed to prove a breach of duty and failed to make a sub-missible case under § 587.600 because Plaintiffs’ proof did not show a dangerous condition of the highway or that the accident directly resulted from such condition.

Our review of the denial of a defendant’s request for a directed verdict is limited to a determination of whether plaintiff presented substantial evidence to prove the facts essential to the claim. Emerson Elec. Co. v. Crawford & Co., 963 S.W.2d 268, 272 (Mo.App.1997). The facts are viewed in the light most favorable to plaintiff. Id. If reasonable minds could differ on the facts, the issue is for the jury to decide, and a directed verdict is improper. Id.

“The standard of review of a trial court’s denial of a motion for judgment notwithstanding the verdict is whether the plaintiff made a submissible case.” Brown v. Hamilton Ins. Co., 956 S.W.2d 417, 419 (Mo.App.1997). “To make a submissible case, a plaintiff must present substantial evidence to support each element of [the] claim and we must view the evidence in the light most favorable to the party who obtained the verdict.” Id. In deciding whether a submissible case is made, a plaintiff is entitled to all reasonable favorable inferences from the evidence, and we must disregard defendant’s evidence except as it may aid the plaintiffs case. Klugesherz v. American Honda Motor Co., 929 S.W.2d 811, 813 (Mo.App.1996).

Finally, only the jury may judge the credibility of witnesses and the weight and value of their testimony. Fields v. Mitch Crawford’s Holiday Motors, 947 S.W.2d 818, 821 (Mo.App.1997). A jury can believe or disbelieve any part of a witness’s testimony. Id.

Under § 537.600.1(2), sovereign immunity is waived for injuries caused by the dangerous condition of a public entity’s property. Kanagawa v. State ex rel. Freeman, 685 S.W.2d 831, 834 (Mo. banc 1985). A plaintiff seeking to state a claim under the aforesaid provision must show: “(1) a dangerous condition of the property; (2) that the plaintiffs injuries directly resulted from the dangerous condition; (3) that the dangerous condition created a reasonably foreseeable risk of harm of the kind the plaintiff incurred; and (4) that a public employee negligently created the condition or that the public entity had actual or constructive notice of the dangerous condition.” Id. at 835.

A “dangerous condition” refers to defects in the physical condition of a public entity’s property. State ex rel. City of Marston v. Mann, 921 S.W.2d 100, 102 (Mo.App.1996). Plaintiffs submitted on a theory that the road surface in the accident curve failed to provide adequate skid resistance when wet for vehicles traveling through the curve at reasonably anticipated speeds.

MHTC first discusses the duty it owes to travelers on Missouri highways. We agree that MHTC and other public entities have a duty to exercise ordinary care in maintaining public roads in a reasonably safe condition for travelers using the roads in the proper manner and with due care. See Ashlock v. City of Herculaneum, 670 S.W.2d 131, 132 (Mo.App.1984); Williams v. City of Independence, 931 S.W.2d 894, 896 (Mo.App.1996). Certainly we agree that a public entity does not have “a duty to protect against all possible injuries, just those that are reasonably foreseeable.” Id.

Whether a duty exists is a question of law. Rothwell v. West Central Elec. Coop., 845 S.W.2d 42, 43 (Mo.App. 1992). In determining whether a “duty exists in a particular case, a court must weigh the foreseeability of the injury, the likelihood of the injury, the magnitude of the burden of guarding against it and the consequences of placing that burden on the defendant.” Id.

MHTC seems to argue that it has no duty to make Highway 60 safe for unsafe drivers like Shawn Baker. This argument is based on MHTC’s evidence which contradicts Baker’s testimony that he was not exceeding the speed limit of 55 miles per hour. MHTC points to the testimony of William Burris, an eyewitness to the accident, who stated that Baker was “driving fast” and “exceeding the speed limit.” Also, MHTC’s accident reconstruction expert witness, James Lock, testified that Baker was traveling 73 miles per hour when he entered the curve.

Under our standard of review, we must disregard MHTC’s evidence that Baker was speeding. Therefore, we must conclude that MHTC had a duty to safely maintain the roadway curve with proper skid resistance when wet for vehicles traveling at reasonably anticipated speeds. MHTC does not argue that the speed limit of 55 miles an hour is not a reasonably anticipated speed.

MHTC’s “dangerous condition” argument varies little from its “no duty” argument. MHTC summarizes its position by stating that “[Plaintiffs] will likely point out that the speed limit on Route 60 was 55 mph and Shawn Baker claimed that he was not exceeding that speed. Thus, if we accept that testimony as true and disregard all of the other evidence, the case was arguably submissible. However, this Court is not required to accept as true that which is entirely unreasonable.” MHTC cites no authority for the “entirely unreasonable” exception to our standard of review.

In Foster v. Farmers Ins. Co., Inc., 775 S.W.2d 143 (Mo. banc 1989), the Supreme Court said that “evidence, however improbable, must not be withdrawn from the jury unless it appears to be so clearly and irrefutably impossible that reasonable minds cannot entertain any other conclusion.” Id. at 145. Therefore, we must determine if Plaintiffs’ evidence in this case is so “irrefutably impossible” that reasonable minds could not reach any other conclusion. We do not attempt to judge whether Plaintiffs’ evidence was “entirely unreasonable.”

According to MHTC, the laws of physics dictate that if poor pavement friction caused Baker to lose control at 55 miles per hour, then every other driver negotiating the curve at that speed and under the same conditions would also lose control of their vehicle. MHTC points out that between August 20,1994, and the accident on September 5, 1995, no other accidents occurred on this curve even though 700,000 eastbound vehicles successfully traversed the curve in sometimes worse conditions than just wet pavement.

At first glance, this argument seems plausible. However, the argument fails after a careful reading of Foster. The plaintiff in Foster was the only witness at trial. 775 S.W.2d at 144. She testified that she was walking north on the west shoulder of a street in Blue Springs, Missouri. The street was paved, two lanes wide, with two-way traffic and gravel shoulders five to seven feet wide. Plaintiff could see 200 yards in front of her. The tailgate of a southbound pickup truck struck and injured plaintiffs shoulder as she was walking approximately one foot from the pavement. Plaintiff testified that she did not step onto the pavement, that she did not see the pickup truck move off the pavement, that nothing protruded from the truck, and that when the front of the truck passed her, it was only six inches off her right shoulder.

On appeal, defendant argued that the accident was an impossibility under the facts related by plaintiff. Id. at 145. In answering this contention, the Supreme Court said:

[Plaintiff’s evidence indicates that for the accident to have occurred as she related it, the rear of the truck need only have moved over six inches in the time it took to pass her. Such an occurrence may seem unlikely, but it is not clearly opposed to physical law.

Id. Although plaintiffs testimony appeared improbable, the Court said that her credibility was for the jury since she testified to facts not “impossible.” Id.

Here, Baker testified he slid on wet pavement across the centerline of the curve while traveling the speed limit. MHTC has not demonstrated to us that those facts are impossible. Certainly, Baker’s testimony does not “seem unlikely” to the same extent as plaintiffs testimony in Foster. Therefore, according to Foster, Baker’s credibility was a jury matter as to whether his testimony was improbable or not. Having reached this conclusion, our standard of review requires that we accept Plaintiffs’ evidence as true and disregard MHTC’s contradictory evidence. Under these circumstances, MHTC concedes that Plaintiffs’ case was “arguably submissible.” If reasonable minds could differ on the facts, the case is “arguably submissible,” and the issue becomes a jury decision. Therefore, we conclude that Plaintiffs made a submissible case.

The trial court did not err in denying MHTC’s motions for directed verdict and judgment notwithstanding the verdict. Point I lacks merit.

MHTC’s second point claims the trial court erred in allowing the introduction of evidence of 26 other accidents which had occurred up to one mile east of the curve in question because those accidents did not bear sufficient similarity to the subject accident. MHTC contends the probative value of such evidence was outweighed by its prejudice.

We review a trial court’s decision to admit evidence of prior accidents for an abuse of discretion. Dillman v. Missouri Highway and Transp. Comm’n, 973 S.W.2d 510, 512 (Mo.App.1998). The trial court has broad discretion in admitting evidence of this nature. Id. “[I]f reasonable persons can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” Anglim v. Missouri Pacific R.R. Co., 832 S.W.2d 298, 303 (Mo. banc 1992).

A trial court may admit evidence of prior accidents if the evidence is of an accident of like character that occurred under substantially the same circumstances and resulted from the same cause. Hess v. Chicago, Rock Island & Pacific R.R. Co., 479 S.W.2d 425, 431 (Mo.1972). However, “the degree of similarity required for evidence that constitutes notice to defendant of prior similar accidents is less demanding than the similarity required for a series of prior accidents offered to show that the same accident occurred on the occasion in issue.” Stacy v. Truman Medical Center, 836 S.W.2d 911, 926 (Mo. banc 1992).

Where the theory of recovery is negligence, any knowledge or warning that defendant had of the type of accident in which plaintiff was injured clearly aids the jury in determining whether a reasonably careful defendant would have taken further precautions under all the facts and circumstances, which include the knowledge of defendant of prior accidents.

Id. On the notice issue, the Supreme Court relied on the following quote from McCormick:

The proponent probably will want to show directly that the defendant had knowledge of the prior accidents, but the nature, frequency or notoriety of the incidents may well reveal that defendant knew of them or should have discovered the danger by due inspection. Since all that is required is that the previous injury or injuries be such as to call defendant’s attention to the dangerous situation that resulted in the litigated accident, the similarity in the circumstances of the accidents can be considerably less than that which is demanded when the same evidence is used for one of the other valid purposes.

Id. (quoting McCormick on Evidence, § 200 at 848 (4th ed.1992) (footnotes omitted)).

Here, the trial court allowed Plaintiffs to introduce evidence of 26 prior accidents (during wet or rainy conditions) which occurred on a 1.1 mile stretch of Highway 60 east of and including the subject curve. After this curve, the highway to the east is generally downhill for the next mile. This stretch of highway is winding and contains two 10°curves. These curves contrast with the 7°subject curve.

MHTC argued that these accidents were not substantially similar to Plaintiffs’ accident and were therefore irrelevant. The trial court ruled the proffered evidence would be admitted for the “limited” purpose of showing notice.

We agree with the trial court that these accidents were admissible to show that MHTC had notice of a potential slick pavement problem on a 1.2 mile stretch of highway which included the subject curve. Certainly, Plaintiffs had the burden of proving that MHTC had actual or constructive notice of a dangerous condition. See Kanagawa, 685 S.W.2d at 834. We reach this conclusion based on the Supreme Court’s decision in Stacy.

In that wrongful death case, a fire occurred in a room without a smoke detector at Truman Medical Center which resulted in the death of a patient who had been smoking in the room. 836 S.W.2d at 914-15. The Supreme Court rejected defendant’s claim that evidence of a prior smoking incident was irrelevant because it was not “substantially similar.” Id. at 926. The prior incident occurred in a room without a smoke detector as a result of a patient smoking in his room and occurred on the same floor of the hospital as the incident in question. Id. The Court said that the prior “incident was admissible to show the notice that defendant had of a potential smoking/flre problem.” Id. In reaching this conclusion, the Court heavily relied on McCormick as earlier quoted in this opinion. Clearly, the Court did not demand “substantial similarity” in admitting the prior fire incident to show notice to defendant.

MHTC argues that “the dissimilarities in the sharpness of the curves, combinations of curve and grade, weather conditions and/or circumstances of the other incidents made them irrelevant” to the accident in question. This argument is based on a test of substantial similarity. Since Plaintiffs’ evidence was admitted for the limited purpose of notice, the degree of similarity between the accident in question and the prior accidents is less demanding. The only requirement under the less demanding standard is that the previous accident “be such as to call defendant’s attention to the dangerous situation that resulted in the litigated accident.” Stacy, 836 S.W.2d at 926 (quoting McCormick on Evidence, § 200 at 848 (4th ed.1992)).

The curves and terrain one mile from the accident curve are akin to the two different rooms in Stacy where no evidence showed the fires originated in the same way. The evidence only showed that two fires took place, two weeks apart, and that patients had been smoking in rooms without smoke detectors. The dangerous condition in this case was a curve in which the pavement became slick when wet. The previous accidents called MHTC’s attention to this “potential” slick pavement “problem” on a 1.1 mile stretch of highway on which the accident in question occurred.

We believe reasonable minds could differ on the admissibility of the prior accidents for the purpose of showing notice in this case. Under these circumstances, we cannot convict the trial court of an abuse of discretion. Our conclusion is fortified by the knowledge that MHTC was entitled to a limiting instruction if a concern existed that the jury would consider the prior accidents for the wrong purpose. “If the evidence is admissible for one purpose but improper for other purposes, it should be received, subject to a limiting instruction, if requested.” Martin v. Durham, 933 S.W.2d 921, 924 (Mo.App. 1996). Upon failing to seek an instruction limiting the purposes for which the evidence may be considered, a party cannot later complain that the jury considered such evidence for the wrong purpose. Id. MHTC’s failure to seek a limiting instruction does not enhance their claim that the jury considered the prior accidents as proof that a dangerous condition existed on the subject curve. Finding no abuse of discretion, this point lacks merit. MHTC’s Point III alleges the trial court erred in allowing Plaintiffs’ expert, Dr. John Glennon, to give his opinion that the curve was unsafe when wet because his “opinion lacked foundation in facts and adequate data.” Plaintiffs claim this alleged error is unpreserved because MHTC did not object to the question which asked Dr. Glennon for his opinion.

The record reveals the following exchange:

Q. Do you have an opinion that on the date of this wreck, opinion on whether on the day of this wreck this curve was reasonably safe?
MR. CARTWRIGHT: Your Honor, object to lack of foundation.
THE COURT: Overruled.
A. I do, yes.
Q. What’s your opinion.
A. That it was unsafe during wet weather.

A party who fails to object to testimony at trial fails to preserve the issue for appellate review. Williams v. Enochs, 742 S.W.2d 165, 168 (Mo. banc 1987). A party is not permitted to advance on appeal an objection different from that stated at trial. Wilson v. Shanks, 785 S.W.2d 282, 285 (Mo. banc 1990). Clearly, MHTC did not raise an objection to Glennon’s opinion. In the reply brief, MHTC answers Plaintiffs’ claim of unpreserved error by saying, “If MHTC did not object often enough, or at the right time, or otherwise failed to preserve its claim of error, then this Court should say so.” Willingly, we accept the invitation and say that MHTC failed to preserve this claim of error.

MHTC does not request plain error review. Seldom do we resort to such review in civil cases. Coats v. Hickman, 11 S.W.3d 798, 805 (Mo.App.1999). Therefore, we exercise our discretion under Rule 84.13(c) and decline plain error review of this issue. Point denied.

The last point of MHTC asserts that the trial court erred in giving Plaintiffs’ verdict-directing instructions numbered 9 and 15 because the failure to warn claims submitted in both instructions were not supported by substantial evidence.

Plaintiffs submitted their claims against MHTC on the theory of failure to warn or failure to remedy. MHTC objected to both verdict directors on the grounds that they were not supported by the evidence. Here, MHTC only alleges error in submitting on the failure to warn theory.

“The submission of an instruction with more than one assignment of negligence in the disjunctive is erroneous unless each assignment is supported by the evidence.” Elliot v. Carbo, 928 S.W.2d 11, 13 (Mo.App.1996). Substantial evidence must be introduced to support both assignments of negligence. Id. Furthermore, this Court must view the evidence and inferences therefrom in the light most favorable to the submission of the instruction, and we disregard all contrary evidence and inferences. Id.

Considering the evidence in that light, we find the evidence was sufficient to support submission of the failure to warn claim. MHTC argues that the failure to warn submission was erroneous based on Baker’s testimony that he believed the “slippery when wet” sign meant “curvy road ahead.” Therefore, MHTC argues that placement of a slippery when wet sign just prior to the subject curve would not have altered Baker’s driving.

Plaintiffs’ evidence showed that MHTC adheres to the provisions of the Manual for Uniform Traffic Control Devices (MUTCD). Section 2C-30 of the MUTCD states:

The Slippery When Wet sign is intended for use to warn of a condition where the highway surface is extraordinarily slippery when wet. It should be located in advance of the beginning of the slippery section and at appropriate intervals on long sections of such pavement.

The only slippery when wet sign for eastbound motorists on this section of Highway 60 appeared two miles west of the subject curve. Dr. Glennon testified that the sign two miles away from the curve did not comply with the MUTCD because such a sign is required to be placed at “appropriate intervals.” The witness said, “[y]ou don’t just put one sign out there but you put multiple signs,” to remind the drivers of the slippery conditions.

Furthermore, the slippery when wet sign two miles away from the subject curve did not contain words indicating that condition. Rather, the sign only portrayed a symbol of a car with two curving lines extending out from the rear of the car. Baker believed this sign warned only of a “curvy” road ahead. MHTC does not dispute that it could have supplemented the symbol sign with actual words stating “slippery when wet” and does not dispute that it has a duty to warn of slippery road conditions. The jury could have found the symbol sign, without any words, failed to give motorists like Baker sufficient warning of slippery conditions ahead and could have found that Baker would have heeded a warning he understood. Placement of symbol signs is akin to the placement of signs in a language not understood by every motorist.

Plaintiffs’ evidence was sufficient to support a finding of failure to warn. Point IV lacks merit.

Plaintiffs’ Appeal No. 23103

Plaintiffs raise one allegation of trial court error on cross-appeal. They maintain the trial court erred in failing to attach postjudgment interest to the jury award based upon a misapplication of the damage cap established by § 537.610. Plaintiffs contend that § 537.610 does not operate as a limit on postjudgment interest in excess of the cap because such interest is not an element of damages, but instead serves solely to compensate for the loss of the money owed from the time of the judgment until payment. The parties acknowledge that this issue is one of first impression in Missouri.

The doctrine of sovereign immunity provides public entities, such as MHTC, with protection from liability for negligent acts. Williams v. Missouri Highway and Transp. Comm’n, 16 S.W.3d 605, 609 (Mo.App.2000). Section 537.600.1(2) establishes a waiver of this immunity for injuries resulting from the operation of a motor vehicle and the condition of an entity’s property. Casey v. Chung, 989 S.W.2d 592, 593 (Mo.App. 1998). Although the legislature waived sovereign immunity in these situations, it limited the State’s exposure to damages by enacting § 537.610 which provides in pertinent part:

2. The liability of the state and its public entities on claims within the scope of sections 537.600 to 537.650, shall not exceed ... one hundred thousand dollars for any one person in a single accident or occurrence....

Because the statute is silent as to whether or not postjudgment interest applies to such awards, the issue is one of statutory construction. Sovereign immunity is the rule rather than the exception. Browning v. White, 940 S.W.2d 914, 919 (Mo.App. 1997). Accordingly, we must strictly construe statutory provisions that waive sovereign immunity. Id.

In the instant case, the jury awards exceeded the $100,000 cap imposed by § 536.610.2. Thereafter, the trial court granted MHTC’s Alternative Motion to Amend Judgment to reduce the judgment against MHTC to $100,000 for the personal injury claim and $100,000 for the wrongful death claim based upon the liability cap imposed by § 537.610. At the same time, the court denied Plaintiffs’ request to attach prejudgment interest and post-judgment interest to the amended amounts.

The parties agree that the trial court properly reduced the amount of the judgment in excess of the statutory cap. Plaintiffs also concede that they are not entitled to prejudgment interest because such interest is awarded on the theory that it is necessary to give full compensation for the loss sustained and is considered a part of the judgment for damages. See Greene County v. State, 926 S.W.2d 701, 704 (Mo. App.1996); Green Acres Enterprises., Inc. v. Freeman, 876 S.W.2d 636, 641 (Mo.App. 1994). Because the damage awards meet the statutory maximum, there is no question that the § 537.610 cap applied to prohibit Plaintiffs from collecting prejudgment interest. Schumann v. Missouri Highway and Transp. Comm’n, 912 S.W.2d 548, 552 (Mo.App.1995).

The question remains whether § 537.610 operates to bar an award of postjudgment interest where the money judgment entered against the State already reaches the permissible amount allowed by the statute. The primary rule of statutory interpretation requires this Court to ascertain the intent of the legislature by considering the language used while giving the words used in the statute their plain and ordinary meaning. Ham-rick v. Affton School Dist. Bd. of Educ., 13 S.W.3d 678, 680 (Mo.App.2000). “We must construe the statute in light of the purposes the legislature intended to accomplish and the evils it intended to cure.” Id. This Court must avoid interpretations that are unjust, absurd, or unreasonable. Id. Accordingly, we consider the statute in the context of the entire statutory scheme on the same subject in order to discern legislative intent. Jackson County Bd. of Election Comm’rs v. Paluka, 13 S.W.3d 684, 690 (Mo.App.2000).

MHTC emphasizes Missouri’s rule of strict statutory construction for statutes waiving sovereign immunity. Wellner v. Director of Revenue, 16 S.W.3d 352, 354 (Mo.App.2000). MHTC then argues that because the statute does not expressly exempt postjudgment interest from the cap, the legislature intended to limit it in such cases. Several states have applied strict construction to their sovereign immunity statutes and have reached this result.

Massachusetts, North Carolina, and Oklahoma have interpreted their sovereign immunity statutes to prohibit an award of postjudgment interest above the statutory cap. See Onofrio v. Department of Mental Health, 411 Mass. 657, 584 N.E.2d 619, 620 (1992); McGee v. North Carolina Dept, of Revenue, 135 N.C.App. 319, 520 S.E.2d 84, 88 (1999); Belletini v. State ex rel. Dept, of Transp., 920 P.2d 1067, 1071 (Okl.App. 1996). Each of these states strictly construed its sovereign immunity statute and concluded that a plaintiff could not collect postjudgment interest in an amount above the statutory cap without the express permission of the legislature.

The sovereign immunity statute at issue in Massachusetts specifically barred prejudgment interest but was silent as to postjudgment interest. Onofrio, 584 N.E.2d at 620. The Supreme Court of Massachusetts noted that “waivers of sovereign immunity must be expressed by the terms of the statute or appear by necessary implication from them....” Id. Based upon the State’s strict rules of statutory construction and the statute’s silence on the matter, the Court concluded there can be no imposition of postjudgment interest on any judgment against the State, even in cases where the judgment amount fell below the statutory limit. Id.

The Court of Appeals of North Carolina also used rules of strict construction and found no indication that the legislature intended to allow the imposition of either prejudgment or postjudgment interest against the state where the sovereign immunity statute was silent on the subject. McGee, 520 S.E.2d at 88. With limited discussion on the subject, the Court of Appeals of Oklahoma concluded that the sovereign immunity statute did not allow the imposition of postjudgment interest in excess of the cap. Belletini, 920 P.2d at 1071.

In each of these cases, the court interpreted the sovereign immunity statute’s silence as to the effect of the cap on post-judgment interest as evidence of the legislature’s intent to deny such recovery. We are not persuaded that is the case in Missouri.

Although § 537.610 is silent as to postjudgment interest, § 408.040.1 provides for interest at the rate of nine per cent per annum “on all money due upon any judgment or order of any court.” The rationale behind the enactment of § 408.040.1 is to provide an incentive “for prompt payment of money obligations and to compensate the [judgment] creditor when the [judgment] debtor fails to do so.” Wulfing v. Kansas City Southern Indus., Inc., 842 S.W.2d 133, 160 (Mo.App.1992). In other words, unlike prejudgment interest, postjudgment interest is awarded as a penalty for delayed payment of the judgment rather than as compensation for damages. Green Acres, 876 S.W.2d at 641; Boatmen’s First Nat’l Bank v. Bogina Petroleum, 794 S.W.2d 703, 705 (Mo.App.1990).

Based upon the distinctions between prejudgment interest and postjudgment interest, and the rationale behind the enactment of § 408.040.1, Plaintiffs urge this Court to determine that postjudgment interest may attach to damage awards even where the total would exceed the $100,000 limit established by § 537.610. Although no Missouri court has addressed this issue, courts in Kansas, Maryland, Minnesota, and Texas, other jurisdictions with similar

sovereign immunity caps, have concluded the limits do not apply to postjudgment interest on damage awards against the State. See Wilmer v. Board of County Comm’rs, 916 F.Supp. 1079, 1080-81 (D.Kan.1996); State Highway Admin, v. Kim, 358 Md. 313, 726 A.2d 238, 246 (1999); Lienhard v. State, 431 N.W.2d 861, 866 (Minn.1988); University of Texas Med. Branch at Galveston v. York, 808 S.W.2d 106, 112 (Tex.App.1991) (reversed on other grounds at 871 S.W.2d 175 (Tex.1994)). We find these decisions persuasive.

The Court of Appeals of Maryland presents the most comprehensive discussion of the issue in Kim. 726 A.2d at 240. The plaintiff in Kim received a personal injury verdict for $650,000 against the Maryland State Highway Administration. Id. The Maryland sovereign immunity statute imposes a $50,000 cap on personal injury claims. Id. at 240 n. 3. The trial court reduced the plaintiffs damage award to match the cap, but also imposed post-judgment interest. Id. at 240. On appeal, the Court held that although the sovereign immunity statute does not specifically provide for postjudgment interest above the cap, the State may be held hable for such interest. Id. at 245.

In reaching its decision, the Court of Appeals of Maryland looked at the difference between prejudgment and postjudgment interest. The Court acknowledged that prejudgment interest constitutes a part of the damages while postjudgment interest compensates the successful plaintiff for the loss of income on money owed him. Id. at 246. The Court then noted that the legislature did not choose to “exclude expressly the payment of postjudgment interest from the waiver of sovereign immunity....” Id. at 249. The Court emphasized that “[h]ad the State paid the judgment on the date the verdict was rendered, its responsibility for the payment of interest would not have arisen.” Id. at 246. Relying heavily upon authority from other states, the Court concluded that the State must be accountable for postjudgment interest in order to prevent treating it differently than other judgment debtors. Id. at 247.

Similarly, in Lienhard, the Minnesota Supreme Court noted that prejudgment interest is considered a part of a damage award. 431 N.W.2d at 866. The Court distinguished postjudgment interest, emphasizing that it is not a part of the tort claim, and concluded that the State is ha-ble to the same extent as any private judgment debtor without benefit of the sovereign immunity cap. Id. The Court reasoned that requiring the State to pay interest on a damage award “imposes on the State the same financial pressure which encourages private persons to avoid litigation and to pay judgments promptly.” Id.

In Wilmer, the federal court charged with interpreting the Kansas sovereign immunity statute reached the same conclusion. 916 F.Supp. at 1081. The court cited Lienhard in support of its conclusion that an award of postjudgment interest encourages governmental entities to promptly pay judgments against them. Id. The court then stated:

In our judgment the loss of the use of money, whether occasioned by the delay or default of an ordinary citizen or of the state ... ought to be compensated.... We see no justice in a rule which permits the state to retain for its use without interest money which it was legally obligated to pay.

Id. (quoting Shapiro v. Kansas Public Employees Retirement System, 216 Kan. 353, 532 P.2d 1081 (1975)).

The Court of Appeal of Texas has also concluded that its sovereign immunity cap does not apply to postjudgment interest based upon the differences between prejudgment interest and postjudgment interest. York, 808 S.W.2d at 112. The court noted that unlike prejudgment interest, postjudgment interest is not an element of damages in a personal injury case, but instead compensation for the use or detention of money owed from the time of judgment. Id. The court then stated that the State’s obligation to pay is the same as that of any other judgment debtor and the sovereign immunity statute does not permit the State to withhold payment after the judgment is established. Id. The court concluded that to deny postjudgment interest would provide the State and its entities with no incentive to pay the money owed. Id.

In each of the foregoing cases, the conclusion that the sovereign immunity statute did not preclude the imposition of post-judgment interest above the cap turned upon the characterization of postjudgment interest as compensation for the use of money owed rather than as part of the underlying tort claim. Each of the cases also emphasized that the incentive to pay judgments promptly provided by the imposition of postjudgment interest should apply equally to the State and private judgment debtors. This reasoning is entirely consistent with Missouri courts’ characterization of postjudgment interest as compensation for the use of money owed and the incentive rationale behind the enactment of § 408.040.1. See Green Acres, 876 S.W.2d at 641; Boatmen’s, 794 S.W.2d at 705; Wulfing, 842 S.W.2d at 160.

Furthermore, to determine that the sovereign immunity cap in § 537.610 acts to limit postjudgment interest would entirely frustrate the purposes behind § 408.040.1, a statute in effect at the time § 537.610 was enacted. The legislature is presumed to be aware of existing declarations of law when it enacts statutes pertaining to the same subject. Schulze v. Haile, 840 S.W.2d 263, 266 (Mo.App.1992). We therefore presume the legislature was aware of § 408.040.1 and court decisions distinguishing postjudgment interest from damage awards when it enacted § 537.610. The legislature had the opportunity to expressly include postjudgment interest within the sovereign immunity cap and declined to do so.

Based upon the foregoing, we determine that § 537.610 does not operate to limit postjudgment interest on damage awards against the State and its entities. Plaintiffs’ point on appeal is meritorious.

That portion of the judgment which denies postjudgment interest to Plaintiffs is reversed, and the cause is remanded. Upon remand, the trial court is directed to provide for postjudgment interest to Plaintiffs in an amended judgment. In all other respects, the judgment is affirmed.

PARRISH, P.J., and SHRUM, J., concur.

      . Statutory references are to RSMo 1994, unless otherwise indicated.

      . MHTC does not dispute that the lack of proper skid resistance on wet pavement is a dangerous condition under § 537.600.1(2) for vehicles traveling at reasonably anticipated speeds.

      . According to McCormick, the valid purposes to admit evidence of prior accidents are (1) to prove the existence of a particular physical condition or defect, (2) to show that the defect or dangerous situation caused the injury, (3) to show the risk that defendant’s conduct created, and (4) to prove that defendant had notice of the danger. McCormick on Evidence, § 200 at 703-07 (5th ed.1999) (footnotes omitted).

      . Under Points I, II, and III, MHTC raises numerous issues in the argument section of its brief which are not stated in the points relied on. We only address questions stated in the points relied on. Smith v. Taylor Morley, Inc., 929 S.W.2d 918, 923 (Mo.App.1996). Issues raised in the argument portion of the brief which do not appear in the points relied on are not preserved for appellate review. Id.


source: Caselaw Access Project

author: GARRISON, Judge.

license: Public Domain

text:
    Loyd E. BROWN, Jr., Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 23359.
    Missouri Court of Appeals, Southern District, Division Two.
    Nov. 27, 2000.
    Motion for Rehearing or Transfer Denied Dec. 19, 2000.
    Application for Transfer Denied Jan. 23, 2001.

      Emmett D. Queener, Asst. Public Defender, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Susan K. Glass, Asst. Atty. Gen., Jefferson City, for respondent.
   GARRISON, Judge.

A complaint filed on August 3, 1996 alleged that Loyd E. Brown, Jr. (“Movant”) committed one count of assault in the first degree, Section 565.050, one count of armed criminal action, Section 571.015, one count of unlawful use of a weapon, Section 571.030, and one count of endangering the welfare of a child, Section 568.045. Mov-ant pled guilty, pursuant to a plea bargain, to one count of assault in the first degree on March 24, 1997, and the trial court sentenced him to ten years imprisonment, suspended execution of the sentence, and placed him on probation. Movant’s probation was subsequently revoked, the trial court executed the sentence previously imposed, and he was delivered to the Missouri Department of Corrections on March 10, 1999. On April 15, 1999, Movant, pursuant to Rule 24.035, filed a motion for post-conviction relief, which was later amended. The motion court denied relief, and Movant appeals.

Appellate review of the denial of a Rule 24.035 motion for post-conviction relief is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous. Rule 24.035(k); Leisure v. State, 828 S.W.2d 872, 873-74 (Mo. banc 1992), cert., denied, 506 U.S. 923, 113 S.Ct. 343, 121 L.Ed.2d 259 (1992). A motion court’s findings are clearly erroneous if, after review of the entire record, the appellate court is left with the definite and firm impression that a mistake has been made. Segraves v. State, 992 S.W.2d 296, 300 (Mo.App. S.D.1999).

In his sole point on appeal, Movant alleges that the motion court erred in denying his Rule 24.035 motion to vacate, set aside or correct the judgment and sentence. Movant argues that the trial court lacked jurisdiction to accept his guilty plea in that the State did not file an information or indictment charging Movant with the crime of assault in the first degree until almost two and a half years after he entered his guilty plea.

The motion court issued an order on August 25, 1999 in which it noted that no information or related docket entry had been found in the court file. It ordered that Movant’s conviction and sentence be vacated, granted the State leave to file an information within ten days of the order, directed that Movant would be discharged and released if the State failed to file the information, and scheduled a hearing on the matter for September 13, 1999. The State filed an information on September 1, 1999. On September 27, 1999, an eviden-tiary hearing was held. At the hearing, the State stated that an information had been drafted and used in Movant’s plea hearing, but that the information was subsequently misplaced and put into the State’s own file instead of the trial court’s file.

Following the hearing, the motion court rescinded its order of August 25, 1999. The motion court found that Movant’s claim that the trial court lacked jurisdiction to accept Movant’s guilty plea was without merit. Specifically, the motion court found that “repeated references were made to the information, including an acknowledgment by [Mjovant that he had been charged with assault in the first degree; a statement by the prosecutor, without contradiction by [M]ovant or other persons present, that this charge was Count II of the information; and a statement by th[e] [trial court] that it accepted Movant’s plea of guilty ‘to the offense as charged in the Information on Count II.’ ” It also found that an information was filed by the State “by delivering it to th[e][c]ourt or to court personnel” and that it was “misplaced at a subsequent time.”

The failure to file an information or indictment formally charging a defendant with a crime is a jurisdictional defect, and there can be no conviction obtained or punishment assessed in a case in which such a jurisdictional defect occurs. Turnage v. State, 782 S.W.2d 755, 760 (Mo.App. S.D.1989). See also State v. McQueen, 282 S.W.2d 539, 540 (Mo.1955); Tolen v. State, 934 S.W.2d 639, 641 (Mo.App. E.D.1996). An information is filed when it is deposited with the clerk of the court. State v. Austin, 861 S.W.2d 334, 336 (Mo.App. S.D.1993); Durley v. State, 685 S.W.2d 284, 286 (Mo.App. S.D.1985). A defendant cannot waive such lack of subject matter jurisdiction. Tolen, 934 S.W.2d at 641.

Here the record clearly shows that the only information on file with the trial court was filed on September 1, 1999, three

SCOTT v. TUTOR TIME CHILD CARE SYSTEMS Mo. 679 Cite as 33 S.W.3d 679 (Mo.App. W.D. 2000) years after the complaint was filed and two years, five months after the plea hearing. In its brief, the State concedes that “no copy of the information now exists which bears a file stamp date prior to the time of [Movant’s] plea” and that “no reference was made to the information on the [trial] court’s docket sheets.” The State argues, however, that “these things are merely evidence of fifing the absence of which does not compel the conclusion that the information was not, in fact, filed,” and that the motion court’s ruling was proper given that the record showed that the information was present and used at Mov-ant’s guilty plea hearing.

While an information may have existed at the time of the plea hearing and may have been used in the plea proceedings, it was not “deposited” with the clerk of the court at the time Movant entered his guilty plea and was not recorded on the trial court’s docket sheets. Therefore, the trial court was without jurisdiction to accept Movant’s guilty plea. See McQueen, 282 S.W.2d at 540; Tolen, 934 S.W.2d at 641; Tumage, 782 S.W.2d at 760. Furthermore, contrary to the State’s assertions in its brief, Movant did not waive the trial court’s subject matter jurisdiction by signing a “Petition to Enter a Plea of Guilty because, as aforementioned, a defendant may not waive such lack of subject matter jurisdiction. Consequently, Mov-ant’s conviction cannot stand, and the motion court clearly erred in finding otherwise.

We reverse and remand for further proceedings not inconsistent with this opinion. What actions the State may take upon remand is a subject we need not address here.

PREWITT, J., and BARNEY, C.J., concur.

      . All statutory references are to RSMo 1994, unless otherwise indicated.

      . All rule references are to Missouri Rules of Criminal Procedure (2000), unless otherwise indicated.

      . The motion court concluded that it was within its authority to withdraw its initial order of August 25, 1999, in which it vacated Movant’s conviction and sentence, as the initial order was not a final judgment under Rule 75.01. For reasons that will be discussed infra, we need not address whether the motion court had such authority.


author: SMART, Judge.

text:
    Bryan SCOTT, Joanne Scott and J & B Associates, Inc., Appellants, v. TUTOR TIME CHILD CARE SYSTEMS, INC. and Life Care Acquisition Corp ., Respondent, Block XX, Respondents.
    No. WD 57649.
    Missouri Court of Appeals, Western District.
    Submitted Sept. 8, 2000.
    Decided Dec. 19, 2000.

      Before HOLLIGER, P.J., BRECKENRIDGE and SMART, JJ.
   SMART, Judge.

The appellants are Bryan Scott, Joanne Scott, and J & B Associates, Inc. They appeal the dismissal by the trial court of their petition against two affiliated Florida corporations on the basis that venue is governed by a forum selection clause in a franchise agreement with one of the corporations. Because we determine that policy considerations dictate that the forum selection clause should not be enforced in this ease, we reverse the decision of the trial court and remand the case for further proceedings.

Background

The following factual background is drawn from the pleadings. The facts pleaded in the petition are assumed to be true for purposes of reviewing the dismissal. Evergreen National Corp. v. Killian Const. Co., 876 S.W.2d 633, 635 (Mo.App. 1994).

Joanne and Brian Scott formed J & B Associates, Inc. for the purpose of opening and operating a child care center near Missouri Highway 291 and 23rd Street in Independence. In 1995, J & B negotiated with a national child care franchisor, Tutor Time Child Care Systems, Inc. (“Tutor Time”), a Florida corporation. The parties eventually entered into a series of agreements, including a franchise agreement, and other agreements related to the development of a site and construction of a facility for a child care center. The agreements were designed to present J & B with a fully developed and constructed “ready-to-open” facility at the specified site. The agreements provided that the development of the site would be performed by Lifeeare Acquisition Corporation (“Lifecare”), a corporation closely affiliated with Tutor Time.

At about the same time, Lifecare leased the undeveloped site from Block XX, a Missouri partnership, with the understanding that the lease would later be transferred to J & B. Several months later, Lifecare assigned the lease to J <& B, and J & B assumed the lease obligations with the consent of Block XX. J & B notified the defendant corporations that the site did not provide adequate drainage and demanded that the site problems be corrected. Eventually, the center opened in September, 1996. However, due to continuing problems with flooding, lack of drainage and mildew, J & B closed the center in July, 1998. In November, 1998, the Scotts and J & B (all of which are hereafter collectively referred to as “the Scotts”) brought an action in Jackson County against Tutor Time, Lifecare, and Block XX. Block XX (hereafter referred to as “Block”) filed an answer and cross-claimed against Tutor Time and Lifecare.

In their petition, the Scotts contended that the Florida corporations (Tutor Time and Lifecare) breached the franchise agreement by wrongfully terminating the agreements, and breached the site development agreement by failing to provide a ready-to-open child care center, and breached the site coordination agreement by failing to provide a qualified site for the operation of the center. They further contended that all defendants breached the lease agreement by failing to construct a “turn-key” child care center, and by interfering with plaintiffs right to quiet enjoyment of the premises. They further contended that all defendants were guilty of:

(a) negligent misrepresentation in communicating false information to the plaintiffs,

(b) breach of implied covenant of good faith and fair dealing by dealing in bad faith, and (c) tortious interference with a business expectancy by including a breach of contracts with other defendants.

Block filed an answer, counterclaim and cross-claim. In its counterclaim, Block brought a claim for: (a) breach of contract for failure to make rental payments under the lease; (b) breach of contract for plaintiffs’ failure to maintain the plumbing and sewage facilities within the leased premises, causing damage to the premises; (c) breach of contract for failure to maintain insurance on the leased premises, resulting in failure to repair damage to the premises; (d) conversion of property belonging to Block. For its cross-claim against Tutor Time and Lifecare, Block sought indemnity from those defendants to the extent plaintiffs were damaged, on the ground that Block had no active dealing with plaintiffs other than consenting for Life-care to assign the lease to J & B, and that any damages sustained by plaintiffs were due to the actions of Tutor Time and Life-care.

Tutor Time and Lifecare filed joint motions to dismiss the petition and the cross-claim based upon a provision in the franchise agreement and each of the related agreements specifying:

This agreement shall be governed by the laws of the State in which the Franchisee is domiciled at the time of execution hereof. The Franchisor and Franchisee acknowledge and agree that the U.S. District Court for the Southern District of Florida, or if such court lacks jurisdiction, the Seventeenth Judicial Circuit (or its successor) in and for Bro-ward County, Florida, shall be the venue and exclusive forum in which to adjudicate any dispute arising either directly or indirectly, under or in connection with this Franchise Agreement....

The defendant corporations contended that pursuant to the express terms of the contract of the parties any such action could be brought only in Florida. The trial court, after consideration of the motions of defendant corporations, ruled that the forum selection clause was applicable, and accordingly dismissed the claims of the Scotts against the defendant corporations. The claim of the Scotts against Block remained pending. The court denied the motion to dismiss the cross-claim of Block against the defendant corporations, stating that such motion was rendered moot by the court’s ruling on the other motion.

Standard of Review

When reviewing a motion to dismiss, this court will treat all facts alleged as true and give the non-moving party the benefit of all reasonable inferences, deduced from the facts. Evergreen, 876 S.W.2d at 635. When the motion to dismiss is one for improper venue relating to a formn selection clause, it should be treated as an issue of jurisdiction. Chase Third Century Leasing Co., Inc. v. Williams, 782 S.W.2d 408, 411-12 (Mo.App.1989). Because the issue of whether jurisdiction exists is a question of law, the appellate court reviews the issue independently on appeal. Farris v. Boyke, 936 S.W.2d 197, 200 (Mo.App.1996).

Analysis

The Scotts first contend that the trial court erred as to Defendant Lifecare in that the agreement entered into between Lifecare and J & B did not contain a forum selection clause. The Scotts contend that only a party to a contract may enforce the terms of the contract, citing authorities for that proposition. They overlook, however, the fact that their petition pleads that Lifecare and Tutor Time are “alter egos of each other, and that each is the agent of the other justifying that they be treated as one party.” The trial court was presumably entitled on this motion to take the petition at face value. In any event, because of the disposition we reach as to Point II herein, we need not resolve the issue of whether Lifecare can benefit from a contract to which it was not explicitly a party.

In Point II, the Scotts contend the enforcement of the forum selection clause was error because the clause was both unfair and unreasonable. They contend that Missouri law dictates that it should not be enforced, citing High Life Sales Company v. Brown-Forman Corp., 823 S.W.2d 493 (Mo. banc 1992). Prior to High Life, Missouri courts treated outbound forum selection clauses as per se violative of public policy. Id. at 495-96. In High Life, the Court decided that such clauses would no longer be considered per se unenforceable, and that they would be enforced when enforcement was not unfair or unreasonable. Id. at 496-97. In that case, the Court elected not to enforce such a clause in a liquor distribution agreement, because the State of Missouri retained a strong state interest in controlling liquor distribution in Missouri and in protecting licensed distributors from unjustified termination of their franchise. Id. at 498.

In Chase Third Century Leasing Co., 782 S.W.2d 408 (Mo.App.1989), the court, in enforcing an inbound forum selection clause in a contract between a Missouri business and a Mississippi business, stated that the party resisting the forum selection clause has the burden of persuading the court that it should be released from the effect of the selection clause, and that it is not sufficient to simply assert a “lack of bargaining power.” Id. at 411-12. The Scotts assert a lack of bargaining power, but they do not demonstrate that the contract was one of adhesion. They presented no evidence that the contract was an adhesion contract. On appeal they rely only on the fact that the contract is long and detailed, but present no authority for the proposition that every long and detailed contract must be presumed to be adhesive, even when there is no testimony that the contract was presented only as a “take it or leave it” proposition.

The Scotts also raise within Point II the argument that there are public policy reasons for avoiding application of the outbound forum selection clause in this case. The Scotts, apparently thinking of High Life, supra, argue that Missouri has an important state interest in safeguarding its children when foreign companies establish child care facilities within the state, and that therefore, as a matter of public policy, the state should not enforce the forum selection clause. The Scotts’ argument might be persuasive if this suit involved issues related to the interpretation of state child care regulations, or if foreign corporations were going to be operating a center. However, the pleadings do not suggest that either of the foregoing is true, nor did the Scotts offer any such evidence in the trial court.

Nevertheless, we note that there are certain policy considerations here militating against enforcement of the forum selection clause. In particular, while we note that the parties on appeal presume that Tutor Time and Lifeeare were both dismissed entirely from these proceedings, including the dismissal of the cross-claim of Block against those Florida corporations, that is not the case. A closer look at the court’s judgment shows that the court did not actually dismiss Block’s claims against the Florida corporations. The court’s judgment shows the trial court believed that the dismissal of the Scotts’ claims against the Florida corporations somehow automatically mooted the cross-claims of Block against those corporations. We are not, however, aware of any reason that the dismissal of the Scotts’ claims against the Florida corporations would eliminate the claims of Block against the Florida corporations. Nevertheless, the motion of the Florida corporations to dismiss the cross-claims of Block was denied as moot. Because the motion was not granted, Block was not “aggrieved” by the judgment within the meaning of § 512.020, RSMo 1994. Perhaps it is for this reason that Block has not appealed, recognizing that it did not have anything to appeal. The statement of the trial court that the motion to dismiss the cross claims was made moot by the dismissal of the other claims was merely the expression of an opinion of the trial court, and was not an operative provision of the judgment. See 46 Am.Jur.2d, Judgments, § 6. Thus, in reality, the cross-claims of Block against the Florida corporations continue to pend before the trial court as do the Scotts’ claims against Block. The Florida corporations are therefore not entirely relieved of defending claims in Missouri by the forum selection clause; they are only partially so relieved. This gives rise to the policy factors here. Block will still litigate cross-claims against the Florida corporations here, and the Scotts will still litigate their claims against Block here. Where, as here, so much of the litigation will remain in Missouri, it would seem unreasonable to enforce the outbound forum selection clause and thereby require one aspect of this case-the Scotts’ claims against the Florida corporations — to be resolved in Florida. To avoid duplication of effort, and to avoid potential problems of collateral estoppel or res judicata or inconsistent adjudications which could theoretically result from separating the trials of these related claims, it makes sense to keep all the litigation here and it is unreasonable to do otherwise. We conclude, therefore, that the trial court erred in holding that the forum selection language, in this context, required dismissal of the claims of the Scotts against the Florida corporations.

Accordingly, we reverse the judgment of the trial court dismissing the Scotts’ claims against Tutor Time and Lifecare and remand the case for further proceedings.

HOLLIGER and BRECKENRIDGE, JJ., concur.

      . In taking another look at whether the judgment is final for purposes of appeal, we conclude that because the trial court did dismiss the claims of the Scotts against the Florida corporations, and because it makes sense to treat that dismissal as final for purposes of appeal, and because the trial court did certify the judgment as final for purpose of appeal, pursuant to Rule 74.01(b), it is proper to exercise jurisdiction to review the dismissal of the claims of the Scotts against the Florida corporations.

      . Because the claim of Block XX would be a cross-claim for indemnity or contribution against the Florida corporations, that action would seek to establish the liability of the Florida corporations for any damages sustained by the Scotts and assessed to Block XX. This is the very issue to be tried in the action of the Scotts against the Florida corporations.


author: ULRICH, Judge.

text:
    TOWER PROPERTIES COMPANY, Respondent, M.B.T. Partners, L.P., Appellant-Respondent, v. George G. ALLEN, Jr., et al., Respondent Appellant.
    Nos. WD 57473, WD 57490.
    Missouri Court of Appeals, Western District.
    Dec. 19, 2000.

      Lance Wolf Lefevre, Kansas City, for respondent-appellant George C. Allen, Jr.
    Jeffrey S. Bay, Kansas City, for respondent.

      Robert B. Thompson, Kansas City, for appellant-respondent M.B.T. Partners, L.P.
    Before BRECKENRIDGE, P.J., ULRICH, J. and HOWARD, J.
   ULRICH, Judge.

George G. Allen appeals from the judgment entered in favor of Tower Properties (“Tower”) and against George Allen as it relates to both Tower’s action for unlawful detainer and Mr. Allen’s counter-claim for breach of contract following a judge tried case. The trial court awarded Tower damages in the amount of $7,458.69 on the unlawful detainer action, plus an additional sum of $4,500.00 in attorney’s fees incurred in defending the breach of contract counter-claim based on an attorney’s fee provision in the lease. Mr. Allen claims that the trial court erred in (1) entering a judgment in favor of Tower Properties on Tower’s unlawful detainer action; (2) not entering a judgment in Mr. Allen’s favor on his counter-claim for breach of contract; and (3) awarding Tower attorney’s fees. M.B.T. Partners, L.P. (“MBT”) filed a motion to dismiss Mr. Allen’s appeal as it relates to MBT and award MBT attorney’s fees under Rule 84.19. The motion was ordered taken with the case. MBT also cross-appeals alleging the trial court erred in refusing to award MBT attorney’s fees against Mr. Allen under the terms of the lease. The case as it pertains to Mr. Allen’s appeal is affirmed in part and reversed in part. MBT’s motion to dismiss and award attorney’s fees is granted. The judgment as it relates to MBT’s cross-appeal is affirmed.

I. Facts

MBT, as owner of an office building known as the Ridge Arcade Building located at 916 Walnut, Kansas City, Missouri, and Mr. Allen entered into a lease agreement on September 10, 1993, wherein Mr. Allen leased from MBT a suite located in the Arcade Building for a term of one year commencing on September 10, 1993 and terminating on September 30, 1994. The lease also included an addendum signed by both parties, which gave Mr. Allen the option to extend the lease for an additional two years, through September 30, 1996. The lease also provided that if Mr. Allen continued to hold the leased premises after the termination of the lease, the tenancy would continue as a month-to-month tenancy at will with all of the other conditions remaining the same.

After entering into the lease, Mr. Allen requested options to extend the lease for three additional years beyond September 30, 1996. Mr. Allen prepared, signed and forwarded a second addendum to the lease to MBT, reciting the terms of the additional options Mr. Allen sought to add to the lease. MBT, by and through its president, modified the second addendum by inserting and requiring a sixty-day notice provision in order to exercise the options for additional years. The amended and modified second addendum was signed and initialed by MBT and then returned to Mr. Allen. Mr. Allen neither objected, responded nor agreed to the amendments and modifications made by MBT to the second addendum.

Tower entered into a contract to purchase the Arcade Building from MBT on September 19, 1996. Tower closed on the purchase of the Arcade Building on October 11, 1996. Shortly thereafter, Tower notified the tenants of the building, including Mr. Allen, of its purchase and told those tenants without leases that they had to vacate the building by December 31, 1996. Mr. Allen, under the belief that a valid lease existed, did not immediately vacate the premises. Although Mr. Allen continued to occupy the premises until December 28, 1996, he stopped paying rent after September 1996.

Tower filed a petition initiating an action against Mr. Allen for unlawful detainer on December 16, 1996. Mr. Allen voluntarily vacated the premises on December 28, 1996. Mr. Allen filed his answer, counterclaim, and third party petition joining MBT as a party for breach of contract on January 24,1997.

The matter was tried in the Circuit Court of Jackson County, Missouri, on February 26, 1999. The trial court entered judgment in favor of Tower on the unlawful detainer action and in favor of both Tower and MBT on Mr. Allen’s breach of contract cross-claim. The trial court awarded Tower damages in the amount of $7,458.69, plus an additional sum of $4,500.00 in attorney’s fees based on an attorney’s fee provision in the lease agreement between MBT and Mr. Allen. This appeal followed.

II. MBT’s Motion to Dismiss Appeal and Award Attorney’s fees

MBT, by separate motion that this court ordered taken with the case, seeks the dismissal of Mr. Alen’s appeal as it pertains to M.B.T. Partners, L.P. and accordingly demands an award of attorney’s fees for a frivolous appeal pursuant to Rule 84.19. MBT contends that because Mr. Allen does not challenge the trial court’s judgment as it relates to MBT, the appeal as it relates to MBT should be dismissed. In his Notice of Appeal, Mr. Allen named both Tower and MBT as respondents in the appeal. But in his brief, Mr. Alen challenges the trial court’s finding of liability only to Tower. He does not argue that the trial court erred in its judgment as it relates to MBT. Where a plaintiff appeals against more than one party but only argues the liability of one party in his appellate brief, the appeal against the other party is deemed abandoned. Hun-sicker v. J.C. Industries, Inc., 952 S.W.2d 376, 381 (MoApp. W.D.1997). Thus, Mr. Allen’s failure to challenge the trial court’s judgment that MBT was not hable on the breach of contract claim results in an abandonment of any claim Mr. Alen may have had against MBT. Id. Under these circumstances, this court is required to dismiss Mr. Alen’s appeal as it relates to MBT.

MBT also moves this court for frivolous appeal damages under Rule 84.19. An appeal is frivolous if it presents no justiciable question and is so readily recognizable as devoid of merit on the face of the record that there is little prospect that it can ever succeed. Fravel v. Guaranty Land Title, 934 S.W.2d 23, 25 (Mo. App. W.D.1996). The purpose of awarding damages under Rule 84.19 is (1) to prevent congestion of appellate court dockets with cases devoid of merit which, by their presence, contribute to delaying resolution of cases with merit and (2) to compensate respondents for incurring expenses defending judgments against meritless issues. Id. Frivolous appeal sanctions are imposed with extreme caution to avoid chilling an appeal of even slight, colorable merit. Id.

Mr. Allen’s appeal as it relates to MBT is frivolous. Mr. Allen named MBT as a party to the appeal but yet never claimed any error in the judgment as it relates to MBT’s liability. Because no claim of error relating to MBT exists, MBT should have never been made a party to the appeal. As a result of being named a party to the appeal, MBT was compelled to retain counsel and defend against Mr. Alen’s appeal. MBT is, therefore, entitled to reasonable attorney’s fees under Rule 84.19. Mr. Alen’s appeal as it relates to MBT is dismissed. The cause is remanded to the trial court for determination and award of reasonable attorney’s fees to MBT for the frivolous appeal.

III. Standard of Review

As a judge tried case, the standard of review is governed by Murphy v. Carrón, 536 S.W.2d 30 (Mo. banc 1976), which interprets what is now Rule 73.01(c). Under this standard, this court will affirm and sustain the judgment of the trial court unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Jones v. Jones, 10 S.W.3d 528, 532 (Mo.App. W.D.1999). Because the trial court is in the best position to weigh all the evidence and render a judgment based on the evidence, the judgment should be affirmed under any reasonable theory supported by the evidence. Id.

IV. Mr. Allen’s Points on Appeal

Mr. Allen contends that the trial court erred in not entering a judgment in his favor on his breach of contract counterclaim against Tower properties. Mr. Allen asserts that he had a valid and existing lease with the original landlord, MBT, that contained options to continue to occupy the premises through September 30, 2002, which Mr. Allen claims he was entitled to and did in fact exercise, and that Tower Properties, as MBT’s successor, breached the terms of the lease when it terminated the lease before it expired.

In order for a lease to be legally valid, it must possess the essential elements of any other contract. The essential elements of an enforceable contract are parties competent to contract, a proper subject matter, legal consideration, mutuality of agreement, and mutuality of obligation. L.B. v. State Comm, of Psychologists, 912 S.W.2d 611, 617 (Mo.App. W.D. 1995). The term “mutuality of agreement” implies a mutuality of assent by the parties to the terms of the contract. Id. The nature and extent of a contract’s essential terms which form the basis of the parties’ mutual assent must be certain or capable of being certain. Id. Especially relevant to the analysis of this case is the principle that a contract is not complete until the proposition of one party is presented to the other party and accepted as presented. Id. (citing Randall v. Harmon, 761 S.W.2d 278, 279 (Mo.App. S.D.1988); Revere Copper & Brass v. Manufacturers’ Metals & Chemicals, 662 S.W.2d 866, 870 (Mo.App. W.D.1983)). The acceptance of the proposition presented by one party must be accepted by the other party in the form tendered. Id. Specifically, if the acceptance purports to add or alter the proposition made, then no binding contract is formed. Id. By adding terms or altering the terms of the original offer, a party makes a counteroffer and rejects the original offer. Id.

In this case, the record reveals that there was no mutual assent as to the terms of the second addendum to the lease because MBT did not accept Mr. Allen’s second addendum to the lease in the form that it was tendered. Mr. Allen prepared the second addendum to the lease himself, which was to provide for several options to extend the lease through September 30, 2002. Mr. Allen signed the second addendum before mailing it to MBT. Upon receipt of the second addendum to the lease, MBT amended and modified it by adding a sixty-day notice provision requirement to exercise the options to extend the original lease. MBT then signed the modified second addendum and returned it to Mr. Allen. Although fully aware of the amendments and modifications to the second addendum made by MBT, Mr. Allen never accepted the new terms proposed by MBT’s modifications and the original lease agreement expired at the conclusion of September 30, 1996, as a term of the lease.

Accordingly, the second addendum did not create a valid and enforceable contract. There was no “mutuality of agreement” as to the terms of the second addendum. The modified version of the second addendum was merely a counter offer made by MBT, which Mr. Allen did not accept. Absent a binding and enforceable second addendum to the lease, the lease terminated by the expiration of its term on September 30, 1996, as provided in the original lease and first addendum to the lease. No contract existed to extend the terms of the lease beyond September 30, 1996. Consequently, the lease was already terminated, by its own terms, when Tower asked Mr. Allen to vacate the property. The trial court, therefore, did not err in entering a judgment in favor of Tower on Mr. Allen’s breach of contract claim. The point is denied.

Mr. Allen also contends on appeal that the trial court erred in entering a judgment in favor of Tower Properties on Tower’s unlawful detainer action. Mr. Allen argues that he was entitled to notice to terminate the tenancy prior to the filing of the unlawful detainer action. Unlawful de-tainer is defined as “[w]hen any person willfully and without force holds over any lands, tenements or other possessions, after the termination of the time for which they were demised or let to the person.” § 534.030, RSMo 1994. There can be no unlawful detention by the tenant until his leasehold estate is terminated. Davidson v. Kenney, 971 S.W.2d 896, 898 (Mo.App. W.D.1998).

In this case, Mr. Allen entered into a valid lease that provided for his tenancy until September 30, 1996. Mr. Allen continued to occupy the premises after the original lease term expired. The terms of the original lease contained a hold-over provision which stated that if Mr. Allen continued to hold the leased premises after the termination of the lease, the tenancy would continue as a month-to-month tenancy at will with all of the other conditions remaining the same. Therefore, pursuant to the terms of the original lease, Mr. Allen lawfully continued to occupy the premises after September 30, 1996, as a month-to-month tenant at will.

In order for Tower to show unlawful detainer, it was required to prove that Mr. Allen remained in possession after it validly terminated his month-to-month tenancy. Davidson, 971 S.W.2d at 898. Termination of a month-to-month tenancy is governed by section 441.060, which provides:

A tenancy at will or by sufferance, or for less than one year, may be terminated by the person entitled to the possession by giving one month’s notice, in writing, to the person in possession, requiring the person in possession to vacate the premises.

These requirements have been interpreted to mean that the tenancy can only be terminated at the end of a rental period and notice of that termination must be given at least one rental period prior to the termination date. Davidson, 971 S.W.2d at 898; Mcllvain v. Kavorinos, 202 S.W.2d 103, 105 (Mo.App.1947). Accordingly, in order to terminate Mr. Allen’s month-to-month tenancy at will Tower must have given him one month’s notice effectively stating that it was terminating the tenancy and for him to vacate the premises.

In a letter dated October 21, 1996, Tower provided Mr. Allen with the requisite notice to vacate the premises. The notice, however, gave Mr. Allen until December 31, 1996 to vacate the premises. Thus, Mr. Allen’s tenancy did not terminate until December 31, 1996. Unlawful detention by the tenant does not occur until his leasehold estate is terminated. Davidson, 971 S.W.2d at 898. Moreover, Mr. Allen complied with the notice to terminate when he vacated the premises before the expiration of his tenancy on December 28,1996. The trial court’s judgment in favor of Tower on the claim for unlawful detainer is, therefore, reversed.

Although the judgment as it pertains to the unlawful detainer claim is reversed, equity requires the case be remanded to the trial court to allow Tower the opportunity to replead. As this court stated in Murphy v. Cole Nat’l Corp., 731 S.W.2d 28 (Mo.App. W.D.1987):

[W]here the failure of proof results from a misconceived theory of recovery, but the evidence nevertheless shows a state of facts which may entitle the plaintiff to recover under a proper theory, in the interests of justice — and where the theory asserted at trial was not for strategic advantage — “ ‘the judgment will not be reversed outright, but instead, in the exercise of sound judicial discretion, the case will be remanded to give-[the plaintiff] the opportunity to amend his petition, if so advised, so as to state a case upon the theory which his evidence discloses.’

Id. at 31-32.

The rationale set out in this cited case applies here. While Tower did not plead a claim for rent and possession, the facts which it pleaded and showed stated such a claim. Although Tower is currently in possession of the property, it is still entitled to recover unpaid rent for the time Mr. Allen possessed the premises. Because Tower has shown the facts that may entitle it to rent, the portion of the judgment relating to the unlawful detainer action is reversed, but the cause is remanded to the trial court to permit Tower to re-plead in accordance with this opinion.

Mr. Allen also contends on appeal that the trial court erred in awarding Tower $4,500.00 in attorney’s fees based on an attorney’s fee provision in the lease agreement between MBT and Mr. Allen. Missouri courts have adopted the “American Rule” which requires that litigants bear the expense of their own attorney’s fees. Waldroup v. Dravenstott, 972 S.W.2d 364, 370 (Mo.App. W.D.1998). Exceptions to the “American Rule” are recognized that allow a party to recover attorney’s fees if (1) a statute allows for their recovery; (2) a contractual provision allows for their recovery; (3) the fees are incurred due to involvement in collateral litigation; or (4) equity'demands it. Id.

In this case, the trial court awarded Tower attorney’s fees based on a contractual provision in the lease agreement between Mr. Allen and MBT, and in which Tower was the successor in interest. The lease contained two provisions relating to attorney’s fees. The first provision in the lease provided for the recovery of reasonable attorney’s fees when incurred in actions involving loss of life, bodily or personal injury or property damage. Mr. Allen’s breach of contract action does not fall under this category of actions. The second attorney’s fees provision in the lease provides that if the “Landlord brings any action under this lease, or consults or places this lease or any amount payable by Tenant hereunder with an attorney for the enforcement of any of Landlord’s rights hereunder, then Tenant agrees in each and any such case to pay to Landlord the reasonable attorney’s fees and other costs and expenses incurred by the Landlord in connection therewith.” Based on this provision in the lease, attorney’s fees can only be recovered when they are incurred in a cause of action arising out of the lease. The cause of action in this case was brought under the second addendum to the lease, which was never properly made a part of the original lease as discussed above. Therefore, the cause of action in this case was not covered by the attorney’s fees provision in the original lease because it was a breach of contract action regarding the second addendum and not the original lease.

Accordingly, the trial court erred in awarding Tower its attorney’s fees based on a contractual provision in the original lease. None of the exceptions to the “American Rule” apply in this case, and therefore each party should bear the expense of his own attorney’s fees. The judgment as it pertains to the award of attorney’s fees to Tower is reversed.

V. MBT’s Point on Cross Appeal

In its sole point on cross-appeal, MBT contends that the trial court erred in refusing to award MBT its attorney’s fees, which were incurred while defending itself against Mr. Allen’s breach of contract claim, as provided for under the terms of the lease agreement between Mr. Allen and MBT. MBT argues that while the transfer of the land to Tower may have terminated the landlord-tenant relationship between MBT and Mr. Allen, the transfer had no effect on the contractual relationship between the parties. Thus, MBT argues that in accordance with the terms of the lease, MBT was entitled to reasonable attorney’s fees incurred while defending against Mr. Allen’s breach of contract claim.

An stated before, the attorney’s fees provisions in the lease provide for the recovery of reasonable attorney’s fees only when incurred (1) in actions involving loss of life, bodily or personal injury or property damage; or (2) in a cause of action arising out of the lease. Mr. Allen’s breach of contract action was neither a suit involving the loss of life, bodily or personal injury or property damage; nor was it a suit arising out of the lease between Mr. Allen and MBT. The cause of action in this case was brought under the second addendum to the lease, which was never properly made a part of the original lease as discussed above. Therefore, the cause of action in this case was not covered by the attorney’s fees provision in the original lease because it was a breach of contract action regarding the second addendum and not the original lease. Thus the trial court did not err in refusing to award MBT its attorney’s fees. The trial court’s decision regarding MBT’s claim for attorney’s fees is affirmed. MBT’s point is denied.

VI. Conclusion

The judgment of the trial court is affirmed in part and reversed in part. MBT’s motion to dismiss Mr. Allen’s appeal as it relates to MBT and to award attorney’s fees under Rule 84.19, which was ordered taken with the case, is granted. The cause is remanded to the trial court for determination and award of the attorney’s fees incurred by MBT in defending against Mr. Allen’s appeal. The trial court’s judgment as it pertains to Mr. Allen’s breach of contract claim is affirmed. The portion of the judgment relating to Tower’s unlawful detainer action is reversed, but the cause is remanded to the trial court to permit Tower to replead in accordance with this opinion. The judgment as it pertains to the award of attorney’s fees to Tower and against Mr. Allen is reversed. The trial court’s judgment refusing to award MBT attorney’s fees is affirmed.

BRECKENRIDGE, P.J., and HOWARD, J., concur.


author: LAURA DENVIR STITH, Judge.

text:
    Theresa Kay McFARLAND, Respondent, v. Quentin WILSON, Director of Revenue, Appellant, P.O. Bewick, Defendant.
    No. WD 57980.
    Missouri Court of Appeals, Western District.
    Dec. 19, 2000.

      Jeremiah W. (Jay) Nixon, Atty. Gen., James A. Chenault, III, Sp. Asst. Atty. Gen., Jefferson City, for appellant.
    Robert H. Martin, Independence, for respondent.
    Before Presiding Judge LOWENSTEIN, Judge LAURA DENVIR STITH and Judge NEWTON.
   LAURA DENVIR STITH, Judge.

Respondent Theresa McFarland was arrested for driving while intoxicated and, pursuant to Section 577.041 RSMo Cum. Supp.1998, the Director of Revenue suspended her driving privileges for one year for fading to submit to a breathalyzer test. Ms. McFarland appealed that suspension. At trial, the Director attempted to prove that Ms. McFarland was arrested upon probable cause and failed to submit to a breathalyzer test, despite a procedurally proper request to do so. The trial court entered judgment in favor of Ms. McFarland because it believed that Ms. McFarland was not told the reasons why she was asked to submit to the breathalyzer exam in the manner required by Section 577.041. The Director appeals, arguing that because it is undisputed that the police officers read Ms. McFarland the Missouri Implied Consent Law and in so doing informed her of the legal reasons why they wished her to submit to a breathalyzer exam, they sufficiently notified her of the reasons why she was asked to take a breathalyzer exam. We agree. Because it is uncontested that the Director otherwise made a prima facie case, but that the court granted judgment for Ms. McFarland before she presented her evidence, we reverse the judgment and remand for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

The evidence adduced below, considered in the light most favorable to the judgment, is as follows:

On May 11, 1999, the police stopped the car Respondent Theresa McFarland was driving and, after determining that she appeared to be intoxicated, arrested her, brought her to the police station, explained to her the Missouri Implied Consent Law under Section 577.020 and Section 577.041, and asked her to submit to a breathalyzer test. She refused to take the test and the Missouri Director of Revenue (the Director) revoked her driving privilege for one year pursuant to Section 577.041.

Ms. McFarland filed a petition for review in the Circuit Court of Jackson County on June 10, 1999. The circuit court held a hearing on Ms. McFarland’s Petition on October 21, 1999. At the hearing, the arresting officer, Mark Fugate, testified that on May 11, 1999, at approximately 1:00 a.m., he was on patrol when he encountered a small pickup truck driven by Ms. McFarland. Officer Fugate noticed Ms. McFarland was driving with no headlights and was swerving on and off the roadway. He stopped her vehicle and asked her to step out. Officer Fugate testified that he noticed Ms. McFarland had difficulty following directions, and that he recognized a moderate odor of alcohol on her breath. He then administered three standard field sobriety tests: the one-legged stand, the walk and turn test, and the horizontal gaze nystagmus test. Officer Fugate testified that Ms. McFarland put her foot down more than three times on the one-legged stand test and that she stated she could not perform the walk and turn test. The officer also testified that when he performed the horizontal gaze nystagmus test on Ms. McFarland, he noticed that her eye movement was not “smooth,” and she “had distinct gaze nys-tagmus before deviation,” which “indicates that there’s a neurological stimulus that has affected [the] neurotransmitters in the brain ... [and] the brain is altered in a degree to where [an individual] may not be able to perform normal tasks.”

Based on his observations, Officer Ful gate was of the opinion that Ms. McFarland was intoxicated to a degree that she could not safely operate a motor vehicle. Officer Fugate placed Ms. McFarland under arrest for suspicion of driving under the influence of alcohol and contacted the police dispatcher. He asked the dispatcher to alert the DUI (Driving Under the Influence) squad that he wanted one of its members to give a breathalyzer test to Ms. McFarland. Officer Fugate then transported Ms. McFarland to the Kansas City Metro Patrol Division, where he met with Officer Larry Bewick, an officer qualified to administer breathalyzer tests.

Officer Bewick testified at the hearing that he was certain that when he came into contact with Ms. McFarland early on the morning of May 11, 1999, he explained all her rights to her under both Miranda and under the Missouri’s Implied Consent Law. He stated that he specifically explained to Ms. McFarland that, pursuant to the Implied Consent Law, it is “implied or understood under Missouri law, that upon the request of a police officer for her to take a test to determine her blood alcohol content, that she would take that test. The refusal to take that test would result in revocation of her driver’s license for a period of one year.”

Officer Bewick testified that after twice explaining the Implied Consent Law to Ms. McFarland, he asked her if she understood her rights but, “[s]he stated that she didn’t understand those rights at 2:15 in the morning.” He said he then further discussed the ramifications of refusing to take the breathalyzer test with Ms. McFarland, but Ms. McFarland still refused to take the test. Officer Bewick also testified that he told Ms. McFarland he wanted her to understand that her refusal to take the breathalyzer “would definitely result in the revocation of her driver’s license.” He stated that they talked about the consequences “several times.” Officer Fugate also confirmed that Ms. McFarland continued to refuse to take the test.

After both police officers testified at the hearing, the Director rested its case. Ms. McFarland then argued that the Director had failed to establish a prima facie case against her. In support she noted that the relevant statute “specifically provides the arresting officer shall include the reasons of the officer requesting a person to submit to a [breathalyzer] test,” and claimed that “there’s no evidence whatsoever before the Court that that’s been done by either one of these officers.” She maintained that “you can only have one arresting officer ... And there’s no testimony whatsoever ... as to why she was placed under arrest, and the reasons given to her for the test.” (emphasis added).

The Director argued that the statute was satisfied when Officer Bewick read the Implied Consent Law warnings to Ms. McFarland, as those warnings explain the reason for conducting the test. The trial court nonetheless held that the Director had failed to prove all of the elements for revoking an individual’s license for Driving While Intoxicated as set out in Section 577.041. Although the court made no specific findings in its order as to what element had not been proved, the other elements of the statute had unequivocally been shown, and the colloquy at trial demonstrates that the only element of a prima facie case which Ms. McFarland claimed had not been shown was whether the officers had adequately informed Ms. McFarland of the reasons why she was asked to take a breathalyzer test. Based on this perceived failure to meet the requirements of Section 577.041, on October 21,1999, the court set aside the revocation of Ms. McFarland’s license and ordered that her driving privileges be reinstated. The state now appeals.

II. STANDARD OF REVIEW

On appeal, we will sustain the trial court’s judgment “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We exercise the power to set aside a decree or judgment “on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.” Id. (citations omitted).

III. THE DIRECTOR MADE A PRIMA FACIE CASE

In his sole point on appeal the Director argues that the trial court erred in setting aside the revocation of Ms. McFarland’s driver’s license because the uncontroverted evidence established that Ms. McFarland was arrested, that reasonable grounds existed to believe she had driven a motor vehicle in an intoxicated condition, and that she refused the breathalyzer test.

Section 577.041 specifies the trial court’s duty when determining whether a driver’s license has properly been revoked: 4. If a person’s license has been revoked because of the person’s refusal to submit to a chemical test, such person may petition for a hearing before a circuit or associate circuit court in the county in which the arrest or stop occurred ... At the hearing the court shall determine only:

(1) Whether or not the person was arrested or stopped;
(2) Whether or not the officer had:
(a)Reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated or drugged condition; or
(b) ..., or
(c) ..., and
(3)Whether or not the person refused to submit to the test.
5. If the court determines any issue not to be in the affirmative, the court shall order the director to reinstate the license or permit to drive.

Sec. 577.041. Of course, as we have noted elsewhere, the court must also determine whether the State has proved that the person was in fact driving the automobile. See, e.g., Hampton v. Director of Revenue, 22 S.W.3d 217 (Mo.App. W.D.2000); House v. Director of Revenue, 997 S.W.2d 135 (Mo.App. S.D.1999).

Section 577.041 further provides that when an officer asks an individual to submit to a breathalyzer test, the “request of the officer shall include the reasons of the officer for requesting the person to submit to a test ... [the officer] also shall inform the person that evidence of refusal to take the test may be used against such person and that the person’s license shall be immediately revoked upon refusal to take the test.” Sec. 577.041.1. (emphasis added). Berry v. Director of Revenue, 885 S.W.2d 326, 327 (Mo. banc 1994). This is the requirement that the court found was not complied with in this case. We disagree.

Missouri cases have repeatedly held that when an officer explains to the arrested individual that the purpose of the breathalyzer is to determine blood alcohol content, that this explanation sufficiently expresses the reason for the breath test and satisfies the requirements of Section 577.041.1. Thus, Corum v. McNeill, 716 S.W.2d 915 (Mo.App. E.D.1986), held that when an officer explains to the arrested individual that the purpose of the breathalyzer test is to determine the amount of alcohol in the individual’s system, “[N]o more reason than this is required by the statute.” Id. at 917. Similarly, in Bolling v. Schaffiier, 488 S.W.2d 212, 216 (Mo.App.1972), an officer’s statement to the arrested individual that the reason for taking the breathalyzer test was to determine the amount of alcohol in his system was sufficient to meet the statutory disclosure requirement. Again, in Nuyt v. Director of Revenue, 814 S.W.2d 690, 692 (Mo.App. E.D.1991), the police officer met the statutory requirements, when he told the arrested individual that the request for him to take the breathalyzer was to measure his blood alcohol content, and when the officer informed him of the consequences of his refusal to submit to the breathalyzer.

In this case, Officer Bewick testified that he read Ms. McFarland the Missouri Implied Consent warnings, and further testified without objection that he told her that it is “implied or understood under Missouri law, that upon the request of a police officer for her to take a test to determine her blood alcohol content, that she would take that test. The refusal to take that test would result in revocation of her driver’s license for a period of one year.” Officer Bewick explained to Ms. McFarland that the reason for the breathalyzer test was to determine her blood alcohol content and that the consequences of not submitting to the test would be loss of her license. He adequately explained the reasons he wanted Ms. McFarland to take the test and met the requirements of Section 577.041.1. As the State also proved the other elements of a prima facie case, the court below erred in entering judgment for Ms. McFarland at the close of the State’s case. As Ms. McFarland has not yet had the opportunity to present her evidence in contravention to the State’s prima facie showing, we reverse and remand for a new trial.

Presiding Judge LOWENSTEIN and Judge NEWTON, concur.

      . All statutory references are to RSMo Cum. Supp.1998, unless otherwise indicated.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The court's order cited the 1982 version of the statute, but the 1998 version was in effect at the time of the arrest and is the version applicable here.

      . The following exchange occurred at the hearing:
      THE COURT: As I understand [Ms. McFarland’s counsel’s] motion, all he’s saying is that you failed to show that the officer-the arresting officer ... They didn’t — And shall inform the person that — Where is it?
      MR. SONNENBERG (for the Office of the Prosecuting Attorney): Right here, Judge, where it’s underlined.
      THE COURT: Shall include the reasons of the officer for requesting the person to submit to the test. This has come up before. And has it ever been decided that this is superfluous language or that it means what it says?

      THE COURT: Why they wanted her to take the test. It seems like a silly thing for the legislature to have put in there. And it’s very rarely brought up, but it has been brought up. And it seems to me that since it’s in there, we can’t assume that the — Or I think we can assume that the legislators didn't — probably didn’t mean for it to be there, but anyway, it’s there. And so we have to use it.

      MR. SONNENBERG: Well, Your Honor, that is included in the Implied Consent section. And the officer testified as to the—
      THE COURT: I know. That would make sense in itself. But anyway, what case do you have that it’s — Has it been decided, do you know?

      MS. BARKLEY (for the Director): I do believe that by reading the Implied Consent, that that is—
      THE COURT: Well I know that you think that. But I’m talking about what does the Court of Appeals think.
      MS. BARKLEY: I don’t know if there is case law or not.
      THE COURT: That's what I—
      MS. BARKLEY: I’d be glad to try to look it up for you.
      THE COURT: Well, in that case I think he’s right. And you guys will take it up and we'II find out. I've been wondering about this for a long, long time.
      MR. MARTIN: Thank you, Your Honor. THE COURT: It’s been so long. It's been, I bet, 10 or 15 years since the last time somebody brought that up. It was Mike White. I can remember. I was sitting here thinking.
      MR. SONNENBERG: Uh-huh.
      THE COURT: It was Mike White that brought that up again. And in those days the State didn’t automatically appeal these things.
      MR. SONNENBERG: Yes sir.
      THE COURT: But we’ll know now.
      MR. SONNENBERG: Thank you. Your Honor.
      THE COURT: Okay-doke. And I found — I found the issues for the Petitioner.