author: LAURA DENVIR STITH, Judge.

text:
    Frank ASARO, Appellant, v. DIVISION OF EMPLOYMENT SECURITY, STATE OF MISSOURI, Respondent.
    No. WD 58283.
    Missouri Court of Appeals, Western District.
    Nov. 7, 2000.

      Patrick Cuezze, Kansas City, for appellant.
    Sharon Ann Willis, Kansas City, for respondent.
    Before Presiding Judge LOWENSTEIN, Judge LAURA DENVIR STITH and Judge NEWTON.
   LAURA DENVIR STITH, Judge.

Frank Asaro appeals from the decision of the Labor and Industrial Relations Commission upholding an assessment against him by the Division of Employment Security for the post-dissolution debts of Midwest Seafood Packing Company (“Midwest”). The Commission based its decision on a determination that Mr. Asaro was the President of Midwest and had carried on the business of Midwest after its dissolution, thus making him ha-ble for its post-dissolution debts pursuant to Section 351.486.3 RSMo 1994. Mr. Asa-ro argues that the Division failed to present competent and substantial evidence that he was President of Midwest, and that, taken as a whole, the evidence that he was not the President of Midwest greatly outweighed the evidence that he served in that capacity. Alternatively, he argues that there was insufficient evidence to conclude that he carried on the business of Midwest past its date of dissolution.

We find that the decision of the Commission was supported by competent and substantial evidence that Mr. Asaro was President of Midwest, and that the Commission’s decision that he was President was not against the overwhelming weight of the evidence. We further find that the evidence supported the Commission’s determination that he carried on the business of Midwest after its administrative dissolution. Accordingly, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The facts shown in the record are as follows:

Appellant Frank Asaro marketed and sold seafood products bearing the label “Carnival Brand Seafood,” from 1996 until late 1997. He was an officer of Carnival Brand Seafood Company, Inc. (“Carnival”), during that period. Carnival produced the bulk of the seafood marketed by Mr. Asaro in Honduras, and Mr. Asaro sold it throughout the United States to various grocery store chains.

One item marketed by Mr. Asaro under Carnival’s label was a bacon-wrapped barbecue shrimp product. This product could not be manufactured in Honduras, however, due to United States Department of Agriculture regulations which placed pork produced in Honduras under quarantine and prohibited its importation into the United States. In order to produce and market bacon-wrapped shrimp domestically without violating USDA regulations, Carnival created Midwest Seafood Packing Company. Midwest was duly incorporated under the laws of the State of Delaware. Midwest filed an application for a Certificate of Authority to do business in Missouri in 1996 in which it listed Julia Rukin as President of Midwest, and it received a Certificate of Authority from the Missouri Secretary of State’s office to transact business in Missouri on November 14, 1996. Midwest began operating as a small production facility at 2319 Troost, Kansas City, Missouri, manufacturing and packaging only the bacon-wrapped shrimp, using locally produced pork and shrimp imported from Honduras.

Although Ms. Rukin had been listed as President of Midwest in Midwest’s application for a Certificate of Authority, when Midwest filed its 1996 Annual Registration Report with the Missouri Secretary of State’s office on May 20,1997, it listed Mr. Asaro as its President. That report bears a signature, the first letter of the first name of which appears to begin with F, and the first letter of the last name of which appears to begin with A in other words, the names in the signature begin with the initial letters of Mr. Asaro’s first and last names. The rest of the signature is illegible, however. Mr. Asaro claims he did not prepare the 1996 Registration Report or list himself as President in it, but he testified that he became aware that the Report listed him as President. He took no action to change or correct this listing.

After operating for approximately one and one-half years, Midwest was administratively dissolved by the Missouri Secretary of State on August 18, 1997, for failure to file a correct Annual Report. Under Missouri law, upon dissolution a corporation continues its existence, but is limited to activities appropriately calculated to wind up and liquidate its business — it generally may not carry on any new business. Mesler v. Director of Revenue, 983 S.W.2d 605, 608 (Mo.App. E.D.1999).

After Midwest was administratively dissolved, Mr. Asaro continued to sell the shrimp product manufactured by Midwest; several Midwest employees continued their work at the manufacturing plant through the end of 1997; and according to Midwest’s “Quarterly Contribution and Wage Report,” Midwest continued to pay its employees after the administrative dissolution. Based on these facts, the Division determined that Midwest had neglected or refused to make contribution reports for the fourth quarter of 1997, and had further failed to pay those contributions as required under Section 288.090 RSMo 1994. On March 25, 1999, the Missouri Department of Labor and Industrial Relations, Division of Employment Security therefore issued an Assessment for Contributions, Interest and Penalties against Appellant Frank Asaro, d/b/a Midwest Seafood Packing Company.

The Division directed the Assessment against Mr. Asaro personally based on its express finding that he had “conducted business on behalf of the corporation [Midwest] in a manner other than as provided in section 351.476, RSMo 1994.” Section 351.476 limits a corporation’s post-dissolution activities to “winding up” or liquidation of the business, and provides that “any ... officer or director who conducts business on behalf of the corporation except as provided in this section shall be personally liable for any obligation so incurred.” Sec. 351.476.2(3) RSMo 1994. Based on this section, the Division found Mr. Asaro “personally hable for payment of all contributions, interest and penalty due for the periods of operation subsequent to August 18, 1997,” the date of Midwest’s administrative dissolution.

Mr. Asaro filed a Petition for Reassessment on April 6, 1999, challenging the Division’s findings. Following a hearing, the appeals referee agreed with the Division that: (1) Mr. Asaro was President of Midwest Seafood Packing Company, and (2) Mr. Asaro carried on the business of Midwest after the corporation was administratively dissolved. Mr. Asaro filed a pro se Application for Review with the Labor and Industrial Relations Commission on December 9, 1999. Without additional proceedings, the Commission adopted the decision of the Appeals Tribunal on January 24, 2000. Mr. Asaro has appealed to this Court.

II. STANDARD OF REVIEW

“The findings of the commission as to the facts, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the appellate court shall be confined to questions of law.” Sec. 288.210 RSMo Cum.Supp.1999. Under this standard, our review of the Commission’s decision is limited. We do not substitute our judgment on factual matters for that of the Commission, but rather determine whether the Commission’s findings are supported by competent and substantial evidence by undertaking a two-step process:

In the first step, the court examines the whole record, viewing the evidence and all reasonable inferences drawn therefrom in the light most favorable to the [decisions], to determine if the record contains sufficient competent and substantial evidence to support the award. If not, the Commission’s award must be reversed. If there is competent and substantial evidence supporting the award, the court moves to the second step, where it views the evidence in the fight most favorable to the award, but must consider all evidence in the record, including that which opposes or is unfavorable to the award, take account of the overall effect of the evidence, and determine whether the award is against the overwhelming weight of the evidence.

Farms World, Inc. v. Labor and Indus. Relations Comm’n, 935 S.W.2d 680, 684 (Mo.App. W.D.1996), citing, Davis v. Research Medical Center, 903 S.W.2d 557, 571 (Mo.App. W.D.1995).

III. THE COMMISSION’S DECISION IS SUPPORTED BY THE RECORD

Mr. Asaro argues that the evidence was insufficient to demonstrate that he was the President of Midwest, and that, taken as a whole, the evidence that he was not the President of Midwest greatly outweighed the evidence that he served in that capacity. Alternatively, he argues that there was insufficient evidence to support the Commission’s determination that he carried on the business of Midwest past its date of dissolution, a necessary prerequisite to his liability under Section 351.486.3.

Here, upon a review of the entire record, we conclude that there was sufficient evidence for the Commission to conclude that Mr. Asaro was the President of Midwest. As noted above, certified corporate records from the office of the Missouri Secretary of State, file-stamped May 20, 1997, and denominated as Midwest’s 1996 Annual Registration Report, listed Mr. Asaro as the President of Midwest. Moreover, while the entire signature on the document is not legible, it is clear that the first and last names of the signature on the document start with the same letters that start Mr. Frank Asaro’s first and last names — “F” and “A.”

The evidence provided by the 1996 Annual Report clearly constitutes evidence which, if believed by the Commission, supported its determination that Mr. Asaro was, in fact, President of Midwest, as Midwest had represented him to be in official documents filed with the Missouri Secretary of State. This is particularly true where, as here, Mr. Asaro admitted that he had heard rumors that he would be listed as President in the report and he became aware that he was listed as President in the report yet did nothing to correct this alleged inaccuracy. It is true that Mr. Asaro denied that the signature on the registration report was his. Mr. Asaro testified that he had nothing to do with the filing of this report, that he was unaware that he had been appointed President of Midwest, that he never signed any papers authorizing his appointment as President, and that he had nothing to do with the day-to-day operations of Midwest as a manufacturing concern. The Commission was entitled to believe none, all, or part of Mr. Asaro’s testimony, however. Lauderdale v. Division of Employment Security, 605 S.W.2d 174, 178 (Mo.App. E.D.1980). The Commission need not have lent any credence to Mr. Asaro’s self-serving assertions that the signature was not his and that he did not authorize his designation as President of Midwest.

Mr. Asaro further claims that, even if the 1996 Annual Registration Report listing him as President constitutes competent and substantial evidence from which the Commission could have found that he was President of Midwest, that evidence was substantially outweighed by contrary evidence that he was not President of Midwest, that all of his dealings with Midwest were “at arms length,” and that he was merely a marketing agent of Carnival, Inc. We disagree.

Countering Mr. Asaro’s claims that he was merely an employee of Midwest was Mr. Asaro’s own testimony that he was an officer of Carnival Brand Seafood, Inc., that both Carnival and Midwest were owned by the same investors, and that the IRS had “pierced the corporate veil” and considered Midwest and Carnival to be alter egos and one and the same company. In addition, Mr. Asaro testified to his extensive personal and high-level involvement with the operations of Midwest, including admitting that he conducted numerous on-site inspections of the product produced by the company and that the on-site manager of Midwest reported all product information to him. The manager considered Mr. Asaro to be a superior and “answered to” him. Carnival also sent money to Mr. Asaro to pay for the business debts incurred by Midwest, and to pay taxes levied on Midwest by Missouri. And, Mr. Asaro signed the paychecks for Midwest employees at the company’s inception, and for some time thereafter. He ceased to do so only when he was told by the USDA that he could not sign the paychecks for Midwest because he had been convicted of a prior (unrelated) felony. Mr. Asaro also paid for Midwest’s rental of its manufacturing facility with money sent from Carnival, Inc.

Thus, considering the evidence as a whole, there existed substantial and competent evidence to support the Commission’s determination that Mr. Asaro was the President of Midwest, and we do not find that the decision of the Commission was contrary to the overwhelming weight of the evidence. See Forms World, Inc., 935 S.W.2d at 684.

We also find no merit to Mr. Asa-ro’s challenge to the factual finding of the Commission that he personally “carried on” the business of Midwest beyond the date of its administrative dissolution. He claims that the evidence showed that he was not carrying on Midwest’s business, in that the business of Midwest was manufacturing the bacon-wrapped barbecue shrimp product, and that he merely sold this product not on behalf of Midwest, but rather on behalf of Carnival Brand Seafood Company, Inc. Again, we disagree.

First, there was also evidence that Midwest employees, not just Carnival employees, continued to work and to be paid after the administrative dissolution, and the Commission implicitly found that their actions constituted more than merely winding up Midwest’s affairs. Second, any attempt by Mr. Asaro to hide behind a distinction between the corporate forms of Carnival Brand Seafood and Midwest Seafood is necessarily defeated by his own testimony that the IRS had already successfully challenged the corporate integrity of Carnival and Midwest as separate entities. He testified that, upon his prior declaration of bankruptcy, the IRS had “pierced the corporate veil” between Carnival and Midwest, proving that the two companies, for all intents and purposes, were one and the same. There was evidence in the record to support the Commission’s conclusion that he was an officer of both entities. The Commission could consider this evidence, provided by his own testimony, and the other evidence noted above, and conclude that Mr. Asaro personally continued to “carry on” the business of Midwest after it had been administratively dissolved. The Commission’s findings in this regard are fully supported by the record.

For all of these reasons, we find that substantial and competent evidence supported the Commission’s determination that Mr. Asaro was President of Midwest and that he carried on the business of Midwest after Midwest had been administratively dissolved. Accordingly, the judgment is affirmed.

Presiding Judge LOWENSTEIN and Judge NEWTON, concur.

      . The relevant portion of the 1994 version of that statute provided:
      Contributions shall accrue and become payable by each employer for each calendar year in which he is subject to' this law. Such contributions shall become due and be paid by each employer to the division for the fund on or before the last day of the month following each calendar quarterly period of three months ...
      Sec. 288.090 RSMo 1994. The legislature made minor changes to subsection 288.090.1 in 1995 which are not relevant here.

      . We note that Section 351.486 RSMo 1994 similarly states:
      A corporation administratively dissolved continues its corporate existence but may not carry on any business except that necessary to wind up and liquidate its business and affairs ... and any officer or director who conducts business on behalf of a corporation so dissolved ... shall be personally liable for any obligation so incurred.
      Sec. 351.486.3 RSMo 1994.


source: Caselaw Access Project

author: ELLIS, Judge.

license: Public Domain

text:
    Julie T. WEILAND, Appellant, v. DIRECTOR OF REVENUE, Respondent.
    No. WD 57662.
    Missouri Court of Appeals, Western District, En Banc.
    Nov. 14, 2000.
    Rehearing Denied Dec. 26, 2000.

      Jeffrey S. Eastman, Gladstone, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SPINDEN, C.J., LOWENSTEIN, BRECKENRIDGE, SMART, ELLIS, LAURA DENVIR STITH, EDWIN H. SMITH, HOWARD, NEWTON, HOLLIGER, JJ., and TURNAGE, S.J.
   ELLIS, Judge.

On December 18, 1998, Appellant Julie T. Weiland was arrested and charged with driving while intoxicated in the state of Missouri. That same day, acting on behalf of Respondent, Director of Revenue, the arresting officer served Weiland with a Notice of Suspension of Driving Privileges for allegedly driving a motor vehicle while the level of alcohol concentration in her blood exceeded .10% or more by weight.

An administrative hearing on the suspension of Weiland’s driver’s license was held on January 18, 1999. On March 20, 1999, the Missouri Department of Revenue issued an order sustaining the suspension of Weiland’s license.

On March 31, 1999, Weiland filed a Petition for Trial De Novo in the Circuit Court of Clay County. On August 30, 1999, the Circuit Court entered its amended judgment stating:

Now on this 30th day of Aug., 1999, the Court having considered the evidence, finds and concludes that based upon a preponderance of the evidence Petitioner is found to have been arrested upon probable cause to believe Petitioner was in actual physical control of a motor vehicle while the alcohol concentration in her blood was .10% or more by weight.
THEREFORE IT IS ORDERED, ADJUDGED AND DECREED that the suspension or revocation of Petitioner’s driver’s license in the State of Missouri is authorized and required by Sections 302.500 through 302.541, RSMo.1994 and RSMo. Supp.1996.

(emphasis added).

Thereafter, Weiland timely filed a notice of appeal with this court. Oral arguments were held on April 5, 2000, and this Court handed down a Per Curiam Order Opinion on May 2, 2000, affirming the suspension of Weiland’s driving privileges. Weiland v. Director of Revenue, No. 57662, slip op. (Mo.App. W.D. May 2, 2000). On May 15, 2000, Weiland filed a “Motion For Rehearing Or, In The Alternative, For Transfer To The Supreme Court.” We granted Wei-land’s motion for rehearing and denied her motion for transfer to the Supreme Court. Rehearing was conducted before the Court en banc on July 12, 2000.

In her sole point on appeal, Weiland contends that the trial court erred in sustaining the suspension of her operating privileges because the finding that she was arrested upon probable cause to believe that she was in “actual physical control” of a motor vehicle while intoxicated is insufficient as a matter of law to support a suspension. She asserts that the statutory definition of “driving” no longer includes “actual physical control” and that the trial court erred in applying that language.

In reviewing a driver’s license suspension or revocation case, we will affirm the trial court’s judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Soval v. Director of Revenue, 2 S.W.3d 854, 856 (Mo.App. W.D.1999). If the trial court erroneously declared or applied the law, its judgment will be afforded no deference on appeal. Knipp v. Director of Revenue, 984 S.W.2d 147, 151 (Mo.App. W.D.1998).

Section 302.505 authorizes the suspension or revocation of a person’s driving privileges for driving while intoxicated. That section states:

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

§ 302.505.1, RSMo. Cum.Supp.1996; Rinne v. Director of Revenue, 13 S.W.3d 658, 659 (Mo.App. W.D.2000). Accordingly, when a suspension or revocation is challenged, the Director has the burden of proving by a preponderance of the evidence that: (1) the licensee was arrested upon probable cause to believe that she was driving in violation of an alcohol related offense and (2) that the licensee had been driving with a blood alcohol content of .10 percent or greater. Rinne, 13 S.W.3d at 659; Haas v. Director of Revenue, 975 S.W.2d 483, 484 (Mo.App. E.D.1998).

Section 302.505.1 does not define the term “driving.” However, the case law has applied the definition of “driving” set forth in § 577.001.1, the analogous criminal DWI statute, when considering license suspension or revocation cases under § 302.505.1. Krienke v. Lohman, 963 S.W.2d 11, 12 (Mo.App. W.D.1998); Chinnery v. Director of Revenue, 885 S.W.2d 50, 52 (Mo.App. W.D.1994).

Prior to 1996, Section 577.001.1 provided that, “the term ‘drive’, ‘driving’, ‘operates’ or ‘operating’ means physically driving or operating or being in actual physical control of a motor vehicle.” § 577.001.1, RSMo 1994 (underline emphasis added). In 1996, however, the legislature amended § 577.001.1 to read as follows: “As used in this chapter, the term ‘drive’, ‘driving’, ‘operates’ or ‘operating’ means physically driving or operating a motor vehicle.” § 577.001.1, RSMo 1996 (underline emphasis added). Notably, in amending § 577.001.1, the legislature chose to delete the phrase “being in actual physical control of’ a motor vehicle from the definitions of “driving” and “operating.”

Accordingly, prior to 1996, being in “actual physical control” of a vehicle constituted “driving” or “operating” as defined by § 577.001.1. However, as a result of the 1996 changes to the definitions of “driving” and “operating,” being in “actual physical control” of a vehicle no longer constitutes “driving” or “operating.” § 577.001.1, RSMo 1996.

Since § 302.505.1 requires a finding that the licensee was arrested upon probable cause to believe that she was “driving” a motor vehicle while the alcohol level in her blood, breath or urine was .10% or more by weight, and “actual physical control” no longer constitutes “driving” under the applicable statutory definition, the trial court’s finding that Weiland was in “actual physical control” of a motor vehicle is insufficient to support the suspension of Weiland’s driver’s license under § 302.505.1. Accordingly, the circuit court erroneously declared and applied the law in its judgment suspending Weiland’s license, and the judgment must be reversed.

The Director contends that, even if the definition of “driving” found in § 577.001.1 does apply to § 302.305 proceedings, Wei-land’s conduct constituted “operating” a vehicle under that definition. While the record before this court is sufficient to determine that the circuit court erroneously stated and applied the law by relying on its finding of “actual physical control” in rendering its judgment, the record does not contain a transcript of the proceedings or any other documentation from the circuit court stating what evidence was before it. We cannot determine from the record before us whether the circuit court could have found from the evidence before it that Weiland was arrested upon probable cause to believe she was “driving” or “operating” a motor vehicle while the alcohol concentration in her blood was .10% or more by weight. Moreover, even if the full record were before this court, we would not be able to determine what factual finding the trial court would have made if it had applied the proper standard.

Accordingly, we reverse the trial court’s judgment and remand the case to the trial court for further proceedings consistent with this opinion. See Lunsford v. Director of Revenue, 969 S.W.2d 833, 835-36 (Mo.App. S.D.1998). On remand, the trial court shall determine whether the arresting officer had probable cause to believe Weiland was “driving” or “operating” her vehicle while intoxicated and make a factual finding as to her blood alcohol concentration at the time of the arrest. Id. at 836.

All concur.

      . While the parties allude to the fact that Weiland was originally charged with violating a Kansas City, Missouri ordinance, that fact would not change our analysis. The express language of § 302.505.1 requires a finding that the licensee was "arrested upon probable cause to believe such person was driving a motor vehicle while the alcohol concentration in the person's blood, breath or urine was ten-hundredths of one percent or more by weight.” § 302.505.1 (emphasis added). Under that statutory language, a finding that the licensee was “driving” is necessary, no matter what statute or ordinance they were arrested under. As noted, supra, the definition of "driving” provided in § 577.001.1 has been found applicable to § 302.505.1. Krienke v. Lohman, 963 S.W.2d 11, 12 (Mo.App. W.D.1998).
      Moreover, "under Missouri law, municipal ordinances must be harmonized with the statutes of the state, and if the ordinances cannot be harmonized, they are void.” State ex rel. Teefey v. Board of Zoning Adjustment of Kansas City, 24 S.W.3d 681, 685 (Mo. banc 2000); see also Carter v. City of Pagedale, 982 S.W.2d 744, 746 (Mo.App. E.D.1998). An ordinance may supplement a state law, but when the expressed or implied provisions of each are inconsistent or in irreconcilable conflict, then the statute annuls the ordinance. Teefey, 24 S.W.3d at 685. “To determine if a conflict exists between an ordinance and a state statute, the test is whether the ordinance permits that which the statute prohibits or prohibits that which the statute permits.” Id.; see also Carter, 982 S.W.2d at 746. Accordingly, to the extent an ordinance could be read to make it a crime to be in "actual physical control” of a vehicle while having a blood alcohol level of .10% or higher by weight, an act which the Missouri legislature has determined no longer constitutes an offense, that ordinance must be considered null and void.

      . While the Director argues that the definitions contained in § 577.001 do not apply to actions to suspend a license for driving with an excessive alcohol concentration under § 302.305, that argument is disingenuous at best. The Director fails to cite Krienke v. Lohman, 963 S.W.2d 11 (Mo.App. W.D.1998), Chinnery v. Director of Revenue, 885 S.W.2d 50 (Mo.App. W.D.1994), Gleason v. Director of Revenue, 859 S.W.2d 189 (Mo.App. W.D.1993) and the many other cases that have applied the definition in § 577.001.1 to § 302.305 proceedings.
      Although Rule 4-3.3(a)(3) does not require counsel to disclose directly adverse authority if that case law has been identified by the opposing party, better practice and candor to this court would generally call for acknowledgment of that authority at the very least. As noted in the Comment to Rule 4-3.3(a)(3), "[t]he underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case.”

      . Missouri courts have defined "actual physical control” to mean a domination or regulation of a vehicle, and it exists as long as the person is keeping the vehicle restrained or is in the position to regulate its movements and the vehicle is running. State v. Hoyt, 922 S.W.2d 443, 447-48 (Mo.App. W.D.1996); State v. Dey, 798 S.W.2d 210, 212 (Mo.App. W.D.1990). " *[A]clual physical control’ of a vehicle simply means to be in a position to regulate the movements of a vehicle which has its engine running.” Dey, 798 S.W.2d at 212.

      . Weiland was only required to present this Court with a sufficient record to determine the issues she was presenting on appeal. Wilson v. River Market Venture, I, L.P., 996 S.W.2d 687, 700 n. 2 (Mo.App. W.D.1999).


author: CRANE, Judge.

text:
    Linda CROSS and Joseph Cross, Plaintiffs/Appellants, v. DRURY INNS, INC., Drury Inn Lambert Place, L.P., Drury Development Corp., Druco Inc., Defendants, American Standard, Inc., Defendant/Respondent.
    No. ED 77554.
    Missouri Court of Appeals, Eastern District, Division Five.
    Nov. 21, 2000.

      Mark T. McCloskey, Clayton, for appellants.
    Kenneth J. Mallín, Elizabeth C. Carver, Bryan Cave LLP, St. Louis, for respondent.
   CRANE, Judge.

Plaintiffs, Linda Cross and Joseph Cross, filed an action against the owners and operators of a Drury Inn hotel (hotel) and American Standard, Inc. (American Standard) to recover damages arising out of injuries suffered by Linda Cross when she slipped and fell on water on the bathroom floor of her hotel room. Water had unexpectedly diverted from the tub spout to the showerhead, which was pointed towards the bathroom, and sprayed out onto the floor. The trial court entered summary judgment in favor of American Standard on a record containing American Standard’s motion, plaintiffs’ response, American Standard’s reply, plaintiffs’ supplemental opposition, and the attachments to each of these pleadings. On appeal, plaintiffs challenge the entry of summary judgment on the strict liability and negligence counts. We reverse the summary judgment on these counts and remand without prejudice to refile.

PROCEDURAL BACKGROUND

Plaintiffs originally filed this lawsuit in February, 1997, against the hotel. They subsequently filed a Second Amended Petition in twelve counts adding American Standard as a defendant. In counts three through eleven, Linda Cross sought damages against American Standard on the theories of negligence, negligence-failure to warn, strict liability-product defect, strict liability-failure to warn, and breach of warranty. In count twelve Joseph Cross, Linda Cross’s former husband, sought damages for loss of consortium against both the hotel owners and operators and American Standard.

The parties conducted discovery and, on December 30, 1999, American Standard filed a motion for summary judgment on counts three through twelve on the grounds that plaintiffs did not and could not produce evidence to support the claim that the diverter valve in the tub spout was defective at the time it was sold. American Standard based its motion on its claim that it was entitled to summary judgment as a matter of law because plaintiffs’ only expert, Mark Ezra, testified that the diverter valve was not defectively designed and that his tests could not demonstrate that any hypothetical manufacturing defect would, in fact, cause self-diversion. Plaintiffs filed a response in which they disputed that they would be unable to show a defect. They claimed that the deposition testimony of their expert, Mark Ezra, American Standard’s expert, Thomas Hart, and four hotel employees established that the diverter valve malfunctioned and that an inference of a manufacturing defect could be drawn from this evidence. American Standard filed a nine-page reply and attached thereto a 22-paragraph affidavit by its expert, Thomas Hart. The trial court then heard the motion and took it under submission, but gave plaintiffs leave to file a supplemental response. Plaintiffs thereafter filed a four-page supplemental opposition to which they attached forty-two pages of materials, including exerpts from the depositions of five witnesses, correspondence with enclosures from the hotel’s lawyers to plaintiffs’ lawyers, an affidavit of a hotel employee, a hotel sub-contract, the hotel’s answers to interrogatories, and an affidavit by its expert, Mark Ezra.

The trial court subsequently entered an order and partial judgment in which it granted American Standard’s motion for summary judgment. The court certified that there was no just reason for delay and ruled that the order granting summary judgment was a final and appealable judgment.

DISCUSSION

In their two points relied on, plaintiffs challenge the entry of summary judgment in favor of American Standard on the strict liability and negligence counts of plaintiffs’ petition, counts three through ten. They argue that the summary judgment record contains evidence from which a trier of fact could find that the diverter valve was defective. We do not reach the merits of this appeal because we reverse and remand on procedural grounds.

Rule 74.04(b) allows a defending party to file a motion for summary judgment. Rule 74.04(c)(1) sets out the procedural requirements for that motion and provides in part that such motion “shall state with particularity in separately numbered paragraphs each material fact as to which the movant claims there is no genuine issue, with specific references to the pleadings, discovery or affidavits that demonstrate the lack of a genuine issue as to such facts.” A summary judgment movant who is a “defending party” need not controvert each element of a non-movant’s claim to establish a right to summary judgment. ITT Commercial Finance v. Mid-Am. Marine, 854 S.W.2d 371, 381 (Mo. banc 1993). Rather, a defending party may establish that right by showing:

(1) facts that negate any one of the claimant’s elements facts, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant’s elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant’s properly-pleaded affirmative defense.

Id. Each of these means establishes a right to summary judgment as a matter of law. Id.

Once the moving party has made this prima facie showing, the burden shifts to the non-movant, who “may not rest upon the mere allegations or denials of his pleading,” but whose response, “by affidavits or as otherwise provided in Rule 74.04, shall set forth specific facts showing that there is a genuine issue for trial.” Id.; Rule 74.04(e). Rule 74.04(c)(2) requires that the response be served within thirty days, and further requires the non-movant to

admit or deny each of movant’s factual statements in numbered paragraphs that correspond to movant’s numbered paragraphs, shall state the reason for each denial, shall set out each additional material fact that remains in dispute, and shall support each factual statement asserted in the response with specific references to where each fact appears in the pleadings, discovery or affidavits.

This subsection also allows a continuance for further discovery.

Rule 74.04(c)(3) provides for the trial court to rule after the response has been filed or the time for filing the response has expired. This rule does not authorize further pleadings. New Prime, Inc. v. Professional Logistics Management Co., Inc., 28 S.W.3d 898 (Mo.App.2000). Rather, the rule contemplates that the trial court should only consider the motion and the response in deciding whether the motion should be granted. Id.

Trial courts may permit the parties to present further argument on the motion by means of reply memoranda, oral argument, or post-hearing memoranda, and the parties may bring defects in the affidavits or other supporting materials to the trial court’s attention by motion to strike or objection. A different question is presented, however, when a summary judgment movant wishes to expand the grounds for the motion or enlarge the record after the motion and response have been filed. This district has permitted the trial court to consider documents attached to a reply memorandum in accord with Rule 74.04(e) if those documents supplemented or opposed affidavits but did not raise new issues, grounds, or arguments. Smart v. Chrysler Corp., 991 S.W.2d 737, 741 (Mo.App.1999); Palermo v. Tension Envelope Corp., 959 S.W.2d 825, 827 (Mo.App.1997). However, no case has sanctioned the filing of materials raising new factual issues, grounds, or arguments. We do not find any authority to do so in Rule 74.04(e) or elsewhere.

Rule 74.04(e) by its own terms gives trial courts discretion to permit only affidavits to be supplemented or opposed. It does not authorize supplementation of the motion or response. Rule 74.04(c) dictates a specific format for a motion and response in order to clarify the areas of dispute and eliminate the need for the trial or appellate court to sift through the record to identify factual disputes. All facts must come into the summary judgment record in the manner required by Rule 74.04(c)(1) and (2), that is, in the form of a pleading containing separately numbered paragraphs and a response addressed to those numbered paragraphs.

When a movant needs to supplement the motion with new facts, the movant should withdraw the original motion and file a new or amended motion incorporating the additional evidence. New Prime, 28 S.W.3d at 904 fn. 4. A second motion for summary judgment based on an expanded record is permissible. Id.; M & P Enterprises, Inc. v. Transamerica Financial Services, 944 S.W.2d 154, 162 (Mo. banc 1997).

In this case, after plaintiffs filed their response, both parties filed additional pleadings to which they attached additional materials introducing new matters of fact, expert affidavits, and arguments. The first round of pleadings went to whether the evidence identified in the motion excluded the existence of a manufacturing defect or supported an inference of such a defect. The second round of pleadings incorporated new facts relating to the existence of other accidents and relating to misuse, abnormal use or other reasonable explanations for the malfunction. These gave rise to arguments about whether these additional facts would allow or prohibit such an inference, such as whether other accidents occurred in substantially similar circumstances or whether explanations for the malfunction were or were not negated.

These additional pleadings and the materials attached thereto did not come into the summary judgment record as part of the initial motion or response and thus were not authorized by Rule 74.04(c). They were not authorized by Rule 74.04(e) because they did not supplement any affidavits and they added new facts and issues which expanded the scope of the summary judgment motion. Further, we cannot consider the reply and supplemental opposition to be an amended motion and response because these pleadings were not in the form required by Rule 74.04(c)(1) and (2). In particular, the reply did not set out additional material facts in a manner in which they could be admitted or denied and, as a result, the supplemental opposition did not attempt to specifically admit or deny particular factual statements contained in the reply. Further, the supplemental opposition did not support all of the additional facts relied on with documentation or affidavits meeting the requirements of Rule 74.04(e).

The parties may not waive noneompliance with Rule 74.04. Miller v. Ernst & Young, 892 S.W.2d 387, 389 (Mo.App.1995). This is not a situation in which the issues and documents are so clear that we may waive noncompliance and decide the appeal on the merits. For us to separate out what is properly in the record and then analyze that record by “separating fact from conclusion, admissions from disputes, the material from the immaterial” to determine if there was a genuine issue of fact would require us to become advocates for both parties, which is not our function. Id. In addition, both parties have identified facts and materials in their supplemental filings which they determined were pertinent to the resolution of the motion; it would not serve the interests of justice to attempt to apply the law to what is apparently less than the record the parties want considered. In this case both parties would be better served by resubmission of all of the issues in one motion and response in the form required by Rule 74.04(c)(1) and (2) so that the uncontro-verted facts and any remaining factual issues may be clearly and completely identified.

The summary judgment on counts three through ten is reversed and the case is remanded to the trial court without prejudice to the resubmission of the motion. In all other respects, the judgment is affirmed.

MARY K. HOFF, C.J. and ROBERT E. CRIST, J., concur.

      . The relevant portion of Rule 74.04(e) permits affidavits filed to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits.


author: PER CURIAM.

text:
    Steven PRICE, Appellant, v. SPACEWALKER, INC., Respondent, and Liberty Mutual Insurance Co., Respondent.
    No. ED 78001.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 21, 2000.
    Leroy Crouther, Jr., St. Louis, for appellant.
    Bradshaw, Steele, Cochrane & Berens, L.C., Dale E. Gerecke, Cape Girardeau, for respondent.
    Before GARY M. GAERTNER, Sr., P.J., LAWRENCE G. CRAHAN, J., and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Appellant, Steven Price, (“appellant”), appeals from the decision of the Labor and Industrial Relations Commission, (“Commission”), affirming the Administrative Law Judge’s decision denying him compensation. We affirm.

Appellant raises four points on appeal. He argues: 1) the Commission ignored competent evidence of trauma which according to its own opinion would have resulted in a finding for him; 2) the Commission erred in substituting its own medical judgment for that of the physicians; 3) the Commission erred in using inadmissible evidence in an attempt to impeach him; and 4) the Commission erred in using incorrect burden of proof. We disagree.

We have reviewed the briefs of the parties and record on appeal, and find the judgment is supported by competent and substantial evidence. As an extended opinion would serve no jurisprudential purpose, we affirm the judgment pursuant to Rule 84.16(b).


author: ULRICH, Judge.

text:
    STATE BOARD OF NURSING, Appellant, v. JoAnn BERRY, Respondent.
    No. WD 58043.
    Missouri Court of Appeals, Western District.
    Nov. 28, 2000.

      Rikki L. Jones, Jefferson City, for appellant.
    Larry Darnell Hale, St. Louis, for respondent.
    Before EDWIN H. SMITH, P.J., ULRICH, J. and ELLIS, J.
   ULRICH, Judge.

The Missouri State Board of Nursing (the Board) appeals from the decision of the Administrative Hearing Commission (AHC), as affirmed by the Circuit Court of Cole County, finding no cause to discipline JoAnn Berry’s LPN license under sections 335.066.2(1), (12), or (14), RSMo Cum. Supp.1998. The Board contends that the AHC erred in failing to find cause to discipline Ms. Berry’s LPN license, claiming that possession of cocaine and marijuana, in violation of section 195.202, RSMo 1994, a criminal statute applicable by section 335.066.2(14), was proven and constitutes the requisite cause. The judgment of the circuit court affirming the decision of the AHC and the decision of the AHC are affirmed.

Facts

JoAnn Berry, an LPN, submitted an application for employment to the Spanish Lake Nursing Center located in Floris-sant, Missouri, on March 19, 1996. As part of the application process, she was required to submit to a pre-employment urine drug screen. Ms. Berry’s urine drug screen tested positive for the presence of marijuana and cocaine.

The Board filed a complaint with the AHC on August 5, 1998, because of the positive test results, alleging that cause existed for the Board to discipline Ms. Berry’s LPN license pursuant to sections 335.066.2(1), (12), and (14). During the course of the Board’s action against Ms. Berry, the Board sent Ms. Berry a Request for Admissions and a copy of Supreme Court Rule 59.01. Contained within the Board’s Request for Admissions were statements that Ms. Berry had consumed marijuana and cocaine on or about March 19, 1996, and that she had submitted to a pre-employment urine drug screen. When Ms. Berry failed to respond to the Board’s Request for Admissions within thirty days, the statements contained within the Board’s Request for Admissions were deemed admitted as provided by Rules 59.01(c) and 61.01. After the AHC determined that Ms. Berry received the Board’s Request for Admissions and failed or refused to answer the included questions, the admitted questions were admitted as evidence.

The AHC, after an evidentiary hearing, found that the Board had not established cause to discipline Ms. Berry’s license under sections 335.066.2(1), (12), or (14). The Board filed a petition for judicial review in the Circuit Court of Cole County. The circuit court affirmed the decision of the AHC on November 5, 1999. The Board’s appeal followed.

Standard of Review

The appellate court reviews the decision of the AHC, not the judgment of the circuit court. EBG Health Care III, Inc. v. Missouri Health Facilities Review Comm., 12 S.W.3d 354, 358 (Mo.App. W.D.2000). This court will consider the evidence and all reasonable inferences from the evidence in the fight most favorable to the administrative agency’s findings. Id. If the AHC could have reasonably made its findings and reached its result, the court on appeal may not substitute its own judgment for that of the AHC. Harrington v. Smarr, 844 S.W.2d 16, 18 (Mo.App. W.D.1992). The fact-finding function rests with the AHC, and even if the evidence would support either of two findings, the court is bound by the AHC’s factual determination. Id. The appellate court’s function on review is limited to determining whether the AHC’s decision is supported by competent and substantial evidence, or is arbitrary, capricious, unreasonable or constitutes an abuse of discretion. EBG Health Care III, 12 S.W.3d at 358. The Missouri Supreme Court has defined substantial evidence to be:

... evidence which, if true, has probative force upon the issues, i.e., evidence favoring facts which are such that reasonable men may differ as to whether it establishes them; it is evidence from which the trier or triers of the fact reasonably could find the issues in harmony therewith; it is evidence of a character sufficiently substantial to warrant the trier of facts in finding from it the facts, to establish which the evidence was introduced.

Collins v. Division of Welfare, 364 Mo. 1032, 270 S.W.2d 817, 820 (1954). While the appellate court cannot substitute its own judgment on factual matters, it can independently determine questions of law. Psychare Mgmt., Inc. v. Dep’t of Soc. Servs., Div. of Med. Servs., 980 S.W.2d 311, 312 (Mo. banc 1998).

Point on Appeal

As its sole point on appeal, the Board contends that the AHC erred in failing to conclude that Ms. Berry possessed marijuana and cocaine in violation of Chapter 195, RSMo, thereby authorizing discipline of her license under section 335.066.2(14). The Board asserts that possession of a controlled substance, as proscribed in section 195.202, RSMo 1994, can be established in section 335.066 proceedings by a preponderance of the evidence with a positive drug screen alone or in combination with other corroborating evidence. The Board asserts that it satisfied its burden of proving Ms. Berry’s possession of a controlled substance with the evidence that Ms. Berry tested positive for the presence of marijuana and cocaine within her body and by her admission that she consumed the illegal drugs, therefore, requiring that Ms. Berry’s license be disciplined under section 335.066.2(14).

Section 335.066

Chapter 335 of the Nursing Practice Act governs the licensing of the nursing profession in Missouri. Section 335.066.2 provides fifteen causes for disciplining a nursing license. In this administrative proceeding, the Board alleged it had cause to discipline Ms. Berry’s nursing license for the following three causes enumerated in subsections of section 335.066.2:(1) Use or unlawful possession of any controlled substance ... to an extent that such use impairs a person’s ability to perform the work of any profession licensed or regulated by sections 335.011 to 335.096; (12) Violation of any professional trust or confidence; (14) Violation of the drug laws or rules and regulations of this state, any other state or the federal government.

The AHC addressed each of the three alleged causes for disciplining Ms. Berry’s license in its Findings of Fact and Conclusions of Law. The AHC held that the Board failed to prove its case under sections 335.066.2(1) and (12). As to subsection (14), the AHC concluded that the evidence that Ms. Berry had two controlled substances in her system, which she admitted consuming, was alone inadequate to establish that Ms. Berry violated a state or federal statutory prohibition against possessing marijuana or cocaine. The Board appeals only the AHC’s decision that no cause exists for discipline under section 335.066.2(14); the Board does not raise any claim of error regarding the AHC’s decision as it pertains to sections 335.066.2(1) and (12).

Section 335.066.2(14)

Section 335.066.2(14) is dependant on existing criminal statutes and is not self sustaining. Subparagraph (14) provides that the “ [violation of the drug laws or rules and regulations” of any state or the federal government is a basis for disciplining a license. Although 335.066.2(14) makes violation of any federal or state statute prohibiting the possession of illegal drugs reason for disciplining a license, the Board referenced only section 195.202, RSMo 1994. Section 195.202 requires proof of the conscious and intentional possession of a contraband drug. State v. Yahne, 943 S.W.2d 741, 745 (Mo.App. W.D.1997) (citing State v. Purlee, 839 S.W.2d 584, 587 (Mo. banc 1992)). Thus, conscious and intentional possession of a contraband drug is a basis for disciplining a license under 335.066.2(14).

The Board asserts that the burden of proof required when considering a breach of section 335.066.2(14) is “preponderance of the evidence” and not proof “beyond a reasonable doubt” even though the Board incorporates section 195.202, a criminal statute, to identify the elements that must be proved. The burden of proof in a civil case is different from the burden of proof in a criminal case because the purpose of each proceeding is different. Unlike a criminal case where the state charges an individual with a criminal violation, the proof of which jeopardizes life or liberty, the licensing process and the ability to discipline a nurse’s license to practice in the nursing profession is an administrative mechanism delegated by the General Assembly to the Board to protect the health and welfare of the state’s citizens. See Missouri Bd. of Registration for the Healing Arts v. Levine, 808 S.W.2d 440, 442 (Mo.App. W.D.1991). The life or liberty of the licensee is not at jeopardy. The Board, however, has a legitimate duty to protect Missouri’s citizens, as directed by the General Assembly through section 335.066.2(14), from those persons who are licensed or would be licensed to provide nursing care and who knowingly and intentionally use contraband drugs, which are illegal to possess and which, by their nature, affect the senses and may significantly inhibit the exercise of good judgment or impede the ability to render nursing care to the standard demanded by law.

To prove a breach of section 335.066.2(14), the Board was compelled to prove that Ms. Berry knowingly and intentionally possessed marijuana or cocaine, controlled substances, the elements of section 195.202, not to the standard required for conviction in a criminal prosecution but to the standard of a civil matter, “preponderance of the evidence.” See In re Hill, 8 S.W.3d 578, 581 (Mo. banc 2000). “Preponderance of the evidence” is defined as that degree of evidence that “is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows the fact to be proved to be more probable than not.” Vaught v. Vaughts, Inc./Southern Missouri Constr., 938 S.W.2d 931, 941 (Mo.App.S.D.1997).

Conclusion

The Board’s unrebutted evidence in this case revealed that Ms. Berry consumed marijuana and cocaine on March 19, 1996. This evidence was admitted by Ms. Berry’s failure to respond to the Board’s Request for Admissions pursuant to Rule 59.01(c) and 60.01. Mrs. Berry also admitted that she tested positive for the presence of marijuana and cocaine on the same date, thereby corroborating her admission that she consumed the contraband substances, Whether knowledge and intent can be inferred from a positive drug test and/or consumption of a controlled substance has not been decided in Missouri. Evidence of Ms. Berry’s positive drug test and her consumption of marijuana and cocaine was not sufficient to establish, even under the preponderance of the evidence standard, that Ms. Berry knowingly and intentionally possessed marijuana and cocaine as proscribed by section 195.202. See State v. McCoy, 116 N.M. 491, 864 P.2d 307, 312 (N.M.App.1993), rev’d on other grounds by State v. Hodge, 118 N.M. 410, 882 P.2d 1 (N.M.1994) (adopting the majority view that a positive drug test alone does not prove knowledge or intent; additional proof of intentional or knowing possession is required). The requests for admission did not ask Ms. Berry to admit that she consciously and intentionally possessed marijuana and cocaine. Nor did they ask Ms. Berry to admit that she consciously and intentionally consumed the drugs. Furthermore, no other evidence was offered that she consciously and intentionally possessed the drugs. Although the standard of proof is to a preponderance of the evidence and not beyond a reasonable doubt, the absence of evidence that Ms. Berry consciously and intentionally possessed the drugs fails to satisfy the requisite mental state element required by section 195.202 regardless which standard is applied. The decision of the AHC is affirmed. The judgment of the trial court is affirmed.

EDWIN H. SMITH, P.J., and ELLIS, J., concur.

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

      . Although the Board’s sole point on appeal asserts that "possession can be established singularly through a positive drug screen or in combination with other corroborating evidence,” the point and the Board’s argument is directed only at the violation of criminal provisions within Chapter 195, applicable by section 335.066.2(14). Thus, whether the Commission’s decision was erroneous when it applied sections 335.066.2(1) and (12) is not considered.

      . 1 CSR 15-2.420 provides that in Administrative Hearing Commission licensing cases "[a]ny party may obtain discovery in the same manner, upon or under the same conditions and upon the same notice and other requirements, as is or may be provided for with respect to discovery in civil actions by rule of the Supreme Court of Missouri for use in the circuit court.”


author: HOLLIGER, Presiding Judge.

text:
    Albert L. MOLTHAN, Respondent, v. DIRECTOR OF REVENUE, Appellant.
    No. WD 57744.
    Missouri Court of Appeals, Western District.
    Nov. 28, 2000.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, for Appellant.
    Philip F. Carderella, Kansas City, for Respondent.
   HOLLIGER, Presiding Judge.

The Director of Revenue appeals from the judgment of the trial court setting aside the Director’s revocation of Albert Molthan’s driver’s license for driving a vehicle with a blood alcohol content of .10 percent or more in violation of § 302.505, RSMo Cum.Supp.1999. The Director contends that the trial court erred in excluding hearsay that would identify Molthan as the driver of a vehicle. We affirm. The hearsay evidence was properly excluded, and other evidence was insufficient to establish that Molthan was, in fact, the driver of the vehicle, as was required to suspend his driver’s license privileges.

The facts adduced before the trial court viewed in the light most favorable to the court’s judgment are as follows. On February 24, 1999, a Kansas City police officer was dispatched to the scene of a two-vehicle collision on Interstate 70. When he arrived, both cars were parked on the right side of the highway and two men were outside of the cars. The officer testified that the two were “exchanging information” but did not otherwise identify what that information included. The officer identified one of the men as Albert Molthan.

The officer smelled an odor of intoxicating beverage coming from Molthan. He testified that Molthan was unsure of his balance and stumbling. The officer administered the horizontal gaze nystagmus test. He testified that, at maximum deviation, Molthan’s eyes were “flattering” [sic], which is a sign of intoxication. Other sobriety tests were performed at the station. The officer came to the conclusion that Molthan was intoxicated and placed him under arrest for suspicion of driving while intoxicated. At the station, Molthan took a breath test, which showed an alcohol concentration of .152 percent. The Director subsequently suspended Molthan’s driving privileges under § 302.505. Mol-than then filed a petition for trial de novo contesting the Director’s action.

At trial, the parties stipulated that the breath analyzer was operating properly and that Moltharis alcohol test result was .152 percent. The officer admitted that Molthan never told him he was driving the car but, rather, told him that he (Molthan) was “traveling in it at the time of the accident.” The state did not call the other driver as a witness. Instead, the state offered into evidence certified copies of the Director’s records, which included in the arresting officer’s report a statement by the other driver identifying Molthan as the driver of one of the vehicles involved in the accident. Molthan objected to the statement by the witness as hearsay. At the conclusion of the evidence, the court found against the Director.

In his sole point on appeal, the Director argues that the trial court erred in sustaining the hearsay objection to the portion of the officer’s report containing the witness statement and in finding that the arresting officer did not have probable cause to arrest Molthan for driving while intoxicated. The Director argues that an officer may rely upon hearsay in establishing probable cause and that there was other circumstantial evidence that Molthan had driven the vehicle.

Included in the Director’s argument is the contention that the state need not prove that Molthan was in fact driving the vehicle, but only that the officer had probable cause to believe the licensee was driving.

STANDARD OF REVIEW

The judgment of the trial court must be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Endsley v. Director of Revenue, 6 S.W.3d 153, 157 (Mo.App.1999). We need not defer to the trial court’s judgment if the evidence is uncontroverted or admitted so that the real issue is a legal one as the legal effect of the evidence. Kienzle v. Director of Revenue, 944 S.W.2d 326, 328 (Mo.App.1997). However, where evidence is presented which, if believed, would support a finding in favor of one party, but contrary or inconsistent evidence is also presented, then it is up to the trial court to resolve the factual issue. Hampton v. Director of Revenue, 22 S.W.3d 217, 220 (Mo.App.2000). So long as the trial court’s determination is supported by substantial evidence, we will affirm, regardless of whether we would have reached the same result. Endsley, 6 S.W.3d at 165.

DISCUSSION

Was there substantial evidence to support the finding that the state failed to prove that Molthan was driving?

§ 302.505 RSMo Cum.Supp.1999 provides in relevant part:

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

The thrust of the Director’s argument is that it meets its burden by proving that Molthan was in fact intoxicated and that the officer arrested him upon probable cause to believe he was driving. In other words, the Director contends that the state is not required to prove that Molthan was, in fact, driving a motor vehicle but only that the officer had reasonable grounds to believe he was driving. We rejected this same contention in Hampton, supra. We said:

While, read literally and in isolation, Section 302.505 does not expressly state that the person who is arrested for driving while intoxicated in fact must be the driver, this is the necessary intendment of the statute, the purpose of which is to suspend the license of persons who are driving while intoxicated. Being intoxicated while not driving is not a crime, and is not a basis for suspension of one’s license.

Hampton, 22 S.W.3d at 220. We rejected an absurd reading of § 302.505, RSMo Cum.Supp.1999, and pointed out that § 302.530.4 provides that upon appeal of the administrative action by the Director that at even the administrative hearing stage before a trial de novo, “[t]he sole issue ... shall be whether by a preponderance of the evidence the person was driving a vehicle pursuant to the circumstances set out in section 302.505.” Id. at 221 (first emphasis added).

We reject the Director’s contention that the statement of the witness was admissible because it was not in fact hearsay since it was not offered to in fact show that Molthan was driving the vehicle. Clearly, the offer was for its truth and not just to explain the basis for the officer’s belief that he had probable cause. The state offers no alternative theory that the rejected offer either was not hearsay, or was admissible under some other exception to the hearsay rule.

The Director argues that Farin v. Director of Revenue, 982 S.W.2d 712 (Mo.App.1998) and McCabe v. Director of Revenue, 7 S.W.3d 12 (Mo.App.1999), support its position that the hearsay testimony of a witness is admissible. In Farin, there was no issue presented about hearsay testimony. In fact, the witness who saw Mr. Farin driving (an officer other than the one who made the arrest) did, in fact, testify at trial. Farin, 982 S.W.2d at 713. Rather, the issue was whether the actual arresting officer could rely upon the observations of another officer in determining probable cause to arrest for driving while intoxicated under § 302.505. In McCabe, an off-duty officer observed the driving act and notified another officer who subsequently made the arrest and alcohol assessment. There, the off-duty officer, unlike in Farin, did not testify but his hearsay statement was offered. The hearsay objection and argument on appeal was rejected upon the basis that it was not offered for its truth but to explain that a basis for probable cause to arrest existed. McCabe, 7 S.W.3d at 14. McCabe was an action for review of a suspension for refusal to take a breath test for alcohol under § 577.041 RSMo Cum.Supp.1997. The Southern District has seemed to hold that in a § 577.041 case, the Director need not prove someone was actually driving the vehicle but only probable cause to believe the individual was driving. Calicotte v. Director of Revenue, 20 S.W.3d 588, 592 (Mo.App.2000) (fn.5) We cannot clearly explain the holding in McCabe, except to observe that, to the extent it can be read to suggest that in a case under § 802.505, the Director must only prove probable cause to believe the person was driving, and not that he or she actually was driving, it would be in conflict with this court’s holding in Hampton.

Thus the issue we must resolve is not whether hearsay may be admissible to show probable cause but whether it is admissible to prove the actual fact of driving by a preponderance of the evidence as required by Hampton. It is the Director’s responsibility to present upon appeal an exposition of the legal reasons by which the trial court erred. State v. Root, 820 S.W.2d 682, 686 (Mo.App.1991). In the context of exclusion of evidence, the Director must show in the present context some legitimate reason why the obviously hearsay evidence was admissible. Id. A point relied on must set forth the actions or rulings of the trial court that are sought to be reviewed and “wherein and why” they are claimed to be erroneous. Supreme Court Rule 30.06(c). A point relied on must consist of these three points “[t]he challenged ruling of the trial court” and the “rule of law ... which it is asserted the court should have applied is set forth and the evidentiary basis upon which it is contended that the asserted rule is applicable is specified.” Thummel v. King, 570 S.W.2d 679, 686 (Mo.banc.1978). The Director offers no such basis and none appears obvious to us. We therefore reject the Director’s contention that the trial court erred in sustaining Molthan’s objection.

Our inquiry is not, however, complete. Although we disagree that hearsay is admissible to prove the fact of driving by Molthan, we do agree with the Director’s contention that the arresting officer himself need not actually observe the defendant driving. Chinnery v. Director of Revenue, 885 S.W.2d 50, 51 (Mo.App.1994). Evidence of driving may be shown by admissions. Pendergrass v. Director of Revenue, 4 S.W.3d 599, 601 (Mo.App.1999). The issue may also be proven by other circumstantial evidence. Id.

Here, the Director made no inquiry of the officer concerning the ownership of the vehicle that Molthan was presumably driving. The Director admits that all the report shows about ownership is “saa” which the Director presumes stand for “same as above” and is beneath the officer’s entry for “name of driver.” This is hardly strong circumstantial evidence given the officer’s admission that Molthan did not tell him he was the driver. The Director also points to testimony that Molthan and the other individual were “exchanging information” at the scene, and suggests that only persons actually driving exchange information. The only testimony given by the officer from any discussion with Mol-than was that he stated to the officer that he was “traveling” on the interstate and was unsure how the accident happened.

We do not determine that such evidence could not have supported a contrary conclusion by the trial court. Instead, our inquiry is whether there is substantial evidence upon which the trial court could have properly concluded that the Director had failed to prove that Molthan was the driver. We believe there was and that this is not a case where the evidence is so clearly overwhelming that we can find that the trial court abused its discretion or rendered a judgment that was clearly against the weight of the evidence.

The judgment is affirmed.

BRECKENRIDGE and SMART, JJ„ concur.

      . Although there is no clear ruling expressed in the record, both parties agree, and the transcript colloquy supports the conclusion, that the trial court refused to consider the objected-to portion of the record upon the basis of the hearsay objection.

      . In Nightengale v. Director of Revenue, 14 S.W.3d 267, 269-70 (Mo.App.2000), a case under § 577.041 RSMo Cum.Supp.1998, the issue we were presented with was whether hearsay testimony was properly admissible to prove someone was driving the vehicle. We did not reach the question because the hearsay testimony was only that the individual was "possibly driving.” The Eastern District also has been presented this issue, in a case under § 302.505 RSMo 1994 as to whether hearsay was admissible to prove erratic driving (the plaintiff admitted the fact of driving), but did not reach it for other reasons. Kearney v. Director of Revenue, 999 S.W.2d 310, 311 (Mo.App.1999).

      . We note that in a case under § 302.505, such as here, the Southern District has held that the actual fact of driving must be proven. House v. Director of Revenue, 997 S.W.2d 135, 139 (Mo.App.1999).


text:
    In the ESTATE OF Donald D. WEST, Missouri Department of Social Services, Division of Medical Services, Appellant, v. Janice West MOFFATT, Respondent.
    No. WD 57683.
    Missouri Court of Appeals, Western District.
    Nov. 28, 2000.

      Jennifer L. Barth, Jefferson City, for appellant.

      Kenneth Michael Hayden, Versailles, for respondent.
    Before EDWIN H. SMITH, P.J., ULRICH, J. and ELLIS, J.
   ULRICH, Judge.

The Department of Social Services of the State of Missouri (Department) appeals from the judgment of the probate court in favor of the Estate of Donald D. West (Estate) on the Department’s claim seeking reimbursement under section 473.398, RSMo Cum.Supp 1995, for Medicaid expenditures paid to Donald D. West, decedent. The court ruled in favor of the Estate because it determined that the Department failed to satisfy its burden of proving the expenditure of Medicaid benefits on Mr. West’s behalf. The court sustained the Estate’s objection to the Department’s Exhibit 1, claim documentation, thereby precluding its consideration as evidence. The Department asserts, contrary to the trial court’s rulings, that the confidentiality provisions of sections 208.120.1 and 208.155 do not bar admission of the Department’s Exhibit 1, claim documentation, and that a proper foundation was laid to admit the exhibit. The issues presented, therefore, are whether either section 208.120.1 or 208.155 precludes introduction as evidence decedent West’s records of his receipt of Medicaid benefits in a section 473.398 proceeding where the state is seeking reimbursement from Mr. West’s estate for Medicaid payments made in his behalf, and, if the evidence is legally admissible, whether the Department laid the requisite foundation for its introduction.

The judgment of the trial court is reversed, and the case is remanded to the trial court.

Facts

Donald D. West died testate on November 3, 1998. The Department filed a claim for $13,434.77 against the estate of Mr. West on April 2, 1999, as authorized by section 473.398, RSMo Cum.Supp.1995, for medical benefits the Department had paid as Medicaid on Mr. West’s behalf. The probate court heard the Department’s claim against Mr. West’s estate on September 1, 1999. At trial, the Department called two witnesses from the Department of Social Services, Division of Medical Services (DMS), to present records pertaining to Medicaid payments made in Mr. West’s behalf: an income maintenance caseworker and an estate recovery analyst. The Department offered nine exhibits. Exhibit 1 was the claim documentation compiled by the DMS, which consisted of a billing statement, an attachment to the billing statement, the remittance advice, and a check register. The Estate objected to the introduction of the exhibits. Only one of the exhibits offered, a computer listing showing that the Department received no calls on the recipient’s benefit notice, was admitted by the trial court into evidence.

The Estate requested judgment at the close of the Department’s evidence. The probate court granted the Estate’s motion for a directed verdict, finding that the Department failed to prove that benefits were expended on behalf of Donald West and entered judgment in favor of the Estate and against the Department. This appeal followed.

I. Confidentiality of Claim Documentation

The Estate objected to the introduction of records purportedly pertaining to the payment of state funds in decedent’s behalf as Medicaid, contending that the information was protected as confidential information by sections 208.120.2 and 208.155. The court sustained the objection. The Department contends that the probate court erred in sustaining the Estate’s objection to the introduction of the Department’s claim documentation (Exhibit 1) because the documentation of Medicaid payments made in behalf of the decedent was not confidential information under sections 208.120.1 and 208.155, and Exhibit 1 was, therefore, admissible. The Department asserts that the exhibit was not confidential for purposes of the hearing under either section because the claim documentation was directly connected with the administration of the Medicaid program and was, therefore, specifically excluded from the protection of either statute. The question presented is whether either section 208.120.1 or section 208.155 precluded introduction of decedent West’s records of receipt of Medicaid benefits in the section 473.398 proceeding.

Three Missouri statutes are directly applicable to the issue presented. Section 473.398 authorizes the state to recover funds from the estate of a decedent who received Medicaid benefits. The statute states in part:

Upon the death of a person, who has been a recipient of aid, assistance, care, services, or who has had moneys expended on his behalf by the department of health, department of social services, or the department of mental health, or by a county commission, the total amount paid to the decedent or expended upon his behalf after January 1,1978, shall be a debt due the state or county, as the case may be, from the estate of the decedent. The debt shall be collected as provided by the probate code of Missouri, chapters 472, 473, 474 and 475, RSMo.

§ 473.398.1, RSMo Cum.Supp.1995. Subsection 473.398.4 specifically allows recovery for assistance provided under 42 U.S.C. § 1396. Medicaid is federally funded and administered by the states according to state qualifying plans. 42 U.S.C. § 1396 (1992). The purpose of Medicaid is to provide medical assistance to needy persons whose income and resources are insufficient to meet the expenses of health care. McKenzie v. State of Missouri Dep’t of Social Sews., Div. of Family Servs., 983 S.W.2d 196, 198 (Mo.App. E.D.1998). The federal statute imposes upon the states the burden of administering the program if the states receive the federal funds. Recipients of the medical care provided according to 42 U.S.C. § 1396 are to be families with dependent children and of aged, blind, or disabled individuals whose income and resources are insufficient to meet the costs of necessary medical services. § 1396. Rehabilitation and other services are to be provided to help such families and individuals attain or retain capability for independence or self-care. Id. Sums made available under the statute are to be used for making payments to states that have submitted, and had approved by the Secretary, state plans for medical assistance. Id.

Both sections 208.120.1 and 208.155 restrict the use of records pertaining to recipients of medical benefits provided through the state’s approved plan. Section 208.120.1 prohibits all officers and employees of the state of Missouri from “disclosing any information obtained by them in the discharge of their official duties relative to the identity of applicants for or recipients of benefits or the contents of any records, files, papers, and communications” with certain exceptions. The statute makes an exception for “purposes directly connected with the administration of public assistance.” The statute also addresses confidentiality and admissibility in judicial proceedings:

[i]n any judicial proceedings, except such proceedings as are directly concerned with the administration of these programs, such information obtained in the discharge of official duties relative to the identity of applicants for or recipients of benefits, and records, files, papers, communications and their contents shall be confidential and not admissible in evidence.

§ 208.120.1.

Section 208.155, like section 208.120.1, protects certain information of recipients of medical assistance and states: “All information concerning applicants and recipients of medical assistance shall be confidential, and any disclosure of such information shall be restricted to purposes directly connected with the administration of the medical assistance program.” § 208.155.

The first of two witnesses called by the Department to testify was a DMS income maintenance caseworker. She testified that she was custodian of Mr. West’s income maintenance file. She stated that to respond to questions about payments to Mr. West she needed to view Mr. West’s file. The Estate objected to the DMS income maintenance caseworker testifying from records of Medicaid funds received by Mr. West that it claimed were confidential and inadmissible in a judicial proceeding under sections 208.120 and 208.155. The Estate asserted the objection as a “continuing objection,” and the court sustained the objection.

The Department then called a second witness who was employed by the Department of Social Services as an estate recovery analyst. She was the records custodian of Medicaid payment records pertaining to the decedent. She was familiar with Department record keeping and bookkeeping procedures. Her duties included compiling documents of the Department that are necessary to support a claim in probate court against the estate of a decedent who has received Medicaid benefits. Her duties also included testifying at any hearings resulting from the Department’s claim in probate court. In anticipation of her testimony, she brought Department records relevant to payments made- to Mr. West that included the billing statement, an attachment to the billing statement, the remittance advise, total pages and check registers. These documents were reviewed for accuracy of the entries and compared to computer data maintained by the Department. The witness explained that the billing statement is a listing of payments made to medical service providers on behalf of the Medicaid recipient. The information provided by the billing statement includes the name and address of each provider paid in behalf of the Medicaid recipient, a narrative of the service provided, and the amount and date of each remittance to the provider. The witness testified that entries into the computer database, from' which the billing statement is prepared, are made in the normal course of business at or near the time the Department receives the information. The witness testified about Department procedures utilized to ensure accurate entry of data and payment to providers of Medicaid recipients.

Neither section 208.120 or 208.155 precluded introduction of records pertaining to receipt of benefits by Mr. West during his lifetime in the section 473.398 proceeding. Section 473.398 directs that the debt for benefits received by the decedent “shall be collected [from the decedent’s estate] as provide by the probate code.” Section 208.120 makes exception to judicial proceedings where the issue is the amount received by a recipient or “for purpose directly connected with the administration of public assistance.” The very issue in the section 473.398 proceeding is the amount received by the recipient. Thus, this exception to the confidentiality provision excludes the prohibition from introduction of information regarding the amount received by Mr. West.

Section 208.155 does not specifically preclude introduction of records applicable to a recipient in a judicial proceeding. Essential to the state’s recovery for benefits received by the decedent under section 473.398 is evidence of amounts received by the decedent. The state has the burden of proof, and it is unable to prove its case if it cannot use records of benefits received by the decedent. The General Assembly, by section 473.398, intended the use of the records of benefits received by the decedent in the state’s effort to prove the debt owed by the decedent’s estate. The General Assembly would not direct the judicial determination of debt owed by a decedent’s estate, understanding that the means of proving the debt would be records of benefits received by the decedent, and then preclude their use in a judicial proceeding. Section 208.155 is not directed at judicial proceedings.

The Department’s claims against the estates of Medicaid recipients in 478.398 judicial proceedings are exempt from the confidentiality and inadmissibility provisions of sections 208.120.1 and 208.155. The Point is granted.

Foundational Requirements of Claim Documentation

The Department also contends that the probate court erred in sustaining the Estate’s objection to the Department’s claim documentation (Exhibit 1) because the proper foundation was laid in that the Department’s witness properly qualified the exhibit as a business record, the business records exception to the hearsay rule was applicable, and therefore, the records were admissible.

Before a document may be received in evidence, it must meet a number of foundational requirements including relevancy, authentication, the best evidence rule, and hearsay. Hadlock v. Director of Revenue, 860 S.W.2d 335, 337 (Mo. banc 1993). The authenticity of a document cannot be assumed, and what it purports to be must be established by proof. Robin Farms, Inc. v. Bartholome, 989 S.W.2d 238, 252 (Mo.App. W.D.1999). Thus, before a writing can be admitted into evidence and considered by the trial court, its proponent must show that it is, in fact, what it is purported to be. Id. The determination of whether a sufficient foundation was laid for admission of the evidence is within the sound discretion of the trial court. Id.

Section 490.680 sets forth the business records exception to hearsay:

A record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.

§ 490.680. The qualification of records within the business records exception to the hearsay rale requires testimony as to the mode of preparation of the record and that it was made at or near the time of the act, condition or event it purports to show. In Interest of J.M.C., 920 S.W.2d 173, 175 (Mo.App. W.D.1996). Where a business regularly employs electronic computer equipment to enter and store its business records, printouts of the records are admissible under section 490.680 if, as the Act requires, the entries reflected are made in the regular course of business at or reasonably near the time of the occurrences of the events they record, and the trial court is satisfied that the sources of information and mode and time of preparation indicate trustworthiness, and hence justify admission. State v. Williamson, 836 S.W.2d 490, 498 (Mo.App. E.D.1992). A witness is qualified to testify regarding a business record if he or she has sufficient knowledge of the business operation and methods of keeping records of the business to give the records probity. Id. at 499. The trial court is afforded broad discretion in determining whether a party has properly complied with section 490.680. Id. at 497.

In this case, the Department’s estate recovery analyst testified that her job responsibilities included preparing the identification file and the cost data documentation for the Division of Legal Services and testifying at any hearings about the documents. She then described and explained the principal documents comprising the Medicaid claim documentation: the computer-generated billing statement, remittance advice, and check register. She tes-tiffed that she was the custodian of the claim documentation applicable in this case and that she had reviewed the claim documentation and compared the amounts with another document from a separate subsystem in the computer for accuracy. She then described the Medicaid claim process from the time the Department receives a claim from a medical service provider until the time the claim is paid. She explained how the amount paid to a Medicaid medical service provider is determined and how DMS assures that the claim submitted is the same one that is paid. She also described the procedure for payment of a Medicaid claim and how DMS tracks the amounts paid on behalf of a Medicaid recipient by the use of a unique departmental client number (DCN) assigned to each Medicaid recipient. She testified that the documents and information used to prepare the claim documentation were in the normal and ordinary course of business and that Department employees have an affirmative duty to enter accurate Medicaid information into the computer in a timely manner to determine assistance payments. She testified that the DMS regularly uses computers to enter and store information about public assistance payments and the Department’s computer system is a secure system protected by password.

The record reflects that the Department laid a proper foundation for the admission of the claim documentation, Exhibit 1. The court’s decision to sustain the objection based on lack of foundation appears to be based upon the court’s determination that the Department failed to satisfy the requirements of section 473.398 .4 by failing to provide a “certified statement of the treasury or his designee that the payment was made.” The Eastern District has determined that the methods of proof promulgated in section 473.398.4 are not the exclusive methods permitted to prove the amount of money expended. Department of Social Servs. v. Ragsdale, 934 S.W.2d 322, 324 (Mo.App. E.D.1996). This district agreed with the Ragsdale decision in Pierce v. State of Missouri, Dept of Social Servs., 969 S.W.2d 814, 818 (Mo.App. W.D.1998), holding that the Department’s computer records detailing the amounts paid to the decedent or on his behalf, along with the testimony of the Department’s estate recovery analyst and income maintenance caseworker, were sufficient to establish the “total amount paid” to the decedent or expended upon his behalf in an action to recoup Medicaid benefits. Id.

The trial court, therefore, erred in sustaining the Estate’s objection to the Department’s claim documentation. Point 2 is granted.

III. Substantial and Competent Evidence of Moneys Expended Was Presented

The Department also contends that the probate court erred in granting the Estate’s motion for a directed verdict because it presented a prima facie case, which the Estate failed to rebut, in that the testimony of the Department’s witnesses, with or without Exhibit 1, constituted substantial and competent evidence of moneys expended by the state on behalf of Mr. West during his lifetime.

In Department of Social Services v. Ragsdale, 934 S.W.2d at 324, the Eastern District held that even if the computer records or the treasurer’s statement offered by the State are disregarded as exhibits, the properly admitted testimony of a Department of Social Services employee as to the amount the state had expended for decedent, if believed, was sufficient to establish the “moneys expended” for decedent as required by section 473.398.4. The language of section 473.398.4 does not make documentary evidence the exclusive means of showing proof of public assistance moneys expended on the decedent’s behalf under section 473.398. The statutory language includes the phrase that “proof may include, but is not limited to” computerized records and a certified statement. § 473.398.4, RSMo Cum.Supp.1995. These two forms of evidence are simply-deemed to be competent evidence of payment.

As the trial court erred in sustaining the Estate’s objection to the claims documentation offered by the Department, whether the testimony of the Department’s income maintenance caseworker and estate recovery analyst, without admission of the claims documentation, was sufficient as substantial and competent proof of moneys expended need not be decided in this case.

The judgment of the trial court is reversed and the case is remanded to the trial court for a new hearing to be conducted in a manner consistent with this opinion.

EDWIN H. SMITH, P.J., and ELLIS, J., concur.

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

      . The claim amount was later amended to $13,497.69.


text:
    Ronald Keith TURRELL, Respondent Pro Se, v. MISSOURI DEPARTMENT OF REVENUE, Appellant.
    No. WD 57653.
    Missouri Court of Appeals, Western District.
    Nov. 28, 2000.

      Evan J. Buchheim, Jefferson City, for appellant.
    Ronald K. Turrell, Raytown, for pro se.
   HOLLIGER, Presiding Judge.

The Director of Revenue (“Director”) appeals the judgment setting aside the Director’s revocation of Ronald Keith Turrets (“Turrell”) driving privileges for operating a motor vehicle with a blood alcohol concentration of at least .10% by weight. § 302.505, RSMo. Cum.Supp.1996. The Director contends that the trial court misinterpreted and misapplied the law and that its judgment in favor of Turrell was against the weight of the evidence. We reverse.

STANDARD OF REVIEW

The trial court’s decision will be affirmed unless it is unsupported by substantial evidence or misstates or misapplies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). In hearing a petition for trial, under § 302.535, of a revocation or suspension based on § 302.505, RSMo. Cum.Supp.1996, the issues before the trial court are: (1) whether the driver was arrested upon probable cause for violating an alcohol-related offense; and (2) whether the driver had been driving with a blood alcohol content of at least .10% by weight. Kienzle v. Director of Revenue, 944 S.W.2d 326, 327 (Mo.App.1997). We need not defer to the trial court’s findings when the evidence is not in conflict. Justice v. Director of Revenue, 890 S.W.2d 728, 731 (Mo.App.1995). Conversely, if any part of the witness’ testimony can be viewed as inaccurate or inconsistent, “the usual rule attends and we give deference to the trial court in its resolution of all witness credibility questions.” Endsley v. Director of Revenue, 6 S.W.3d 153, 161 (Mo.App.1999). Once the Director has presented a prima facie case, the burden shifts to the driver to rebut the Director’s prima facie case. Smith v. Director of Revenue, 13 S.W.3d 700, 705 (Mo.App.2000).

FACTS

On November 6, 1999, Missouri Highway Patrol Trooper Michael D. Moats stopped Turrell’s vehicle for erratic driving. Trooper Moats observed a strong odor of alcohol on Turrell’s breath, that his eyes were bloodshot and that his speech was slurred. The Trooper asked the driver to perform several field sobriety tests all of which he performed poorly. Turrell was arrested for driving while intoxicated and taken to a police station where he consented to a breath test. The Trooper notified the Director that the test showed a blood alcohol concentration of .163%. The Director then suspended Turrell’s driving privileges.

At the trial de novo the Director offered into evidence the testimony of Trooper Moats and the Department of Revenue Records concerning Turrell’s arrest. Tur-rell did not testify. The Trooper testified, as set forth above, to the facts of the arrest and, without objection, to the Trooper’s testimony that Turrell’s BAC was .163%. The Director’s certified records were admitted over the objection of Tur-rell. The basis for that objection will be discussed infra.

Probable Cause to Arrest the Driver

We are not favored by a brief from Turrell who appears pro se on the appeal. Nor were there any specific findings requested or made as to the court’s reasons for setting aside the Director’s action. “Probable cause for arrest exists when an officer possesses facts which would justify a person of reasonable caution to believe that an offense has been or is being committed and that the individual to be arrested has committed it.” Wilcox v. Director of Revenue, 842 S.W.2d 240, 242 (Mo.App.1992). Here the evidence clearly presented probable cause for Trooper Moats to arrest Turrell for driving while intoxicated. No contrary evidence was presented to contradict the Director’s prima facie showing on the issue of probable cause.

Did the Director Make a Prima Facie Case of Excessive Blood Alcohol Content?

The trooper testified at trial that the breath test result was .163%. The Director correctly argues that proof of the foundational requirements for admission of a breath test is rendered unnecessary in the absence of an objection. Sellenriek v. Director of Revenue, 826 S.W.2d 338, 340-41 (Mo. banc 1992). “When evidence of one of the issues in the case is admitted into evidence without objection, the party against whom it is offered waives any objection to the evidence, and it may be properly considered even if the evidence would have been excluded upon a proper objection.” Reinert v. Director of Revenue, 894 S.W.2d 162, 164 (Mo. banc 1995). (Holding that the court erred in sustaining an objection to the maintenance report where no objection was made to the testimony of the breath result).

Turrell did object to the admission of the Director’s certified records containing the breath test result because the serial number written on the maintenance report (940068) differed by one digit from the serial number of the breath analyzer (940069) used for his breath test. The specific objection was:

“... to the use of the results of those tests. There was no testimony with respect to the maintenance reports in those tests. With respect to the admission of the records themselves, we would not object, but we would point out that the maintenance report relates to a different Datamaster than the one used to conduct the test.”

There was, however, within the record a computer printout from the maintenance test showing the same serial number as the breath analyzer used for Turrell’s test. The trial court admitted the certified records over driver’s objection “to the extent that, a certified copy of ... Director of Revenue records are admissible in court.” As we have no findings from the court and no brief from Turrell, we can only surmise that the basis for the court’s judgment against the Director was the basis of the objection made by driver’s counsel. That objection, however, came too late to affect the admissibility of the breath test results. Having been previously admitted without objection those results were properly before the court and, as such, had to be considered by the court in determining whether the Director met his burden of proof. Reinert, 894 S.W.2d at 164. The Director thus made a prima facie showing of each element of his case. The driver presented no evidence either directly or by cross-examination that would contradict either element. No argument was made to the trial court that the discrepancy in serial numbers reflected that no maintenance check was done on No. 940069. This case is unlike Endsley, 6 S.W.3d at 160-61 where there was contradictory or inconsistent evidence that would allow the trial court to weigh the evidence and determine it adversely to the Director. In Endsley the court indicated that there were two possible scenarios created by the problem with the maintenance record. One scenario included the possibility that a necessary step was not performed; the other included that the officer performed the step but simply did not record it. In that situation it is for the trial court to resolve the conflict in the evidence. Id. at 161-62. Here there was no scenario that would allow the conclusion that a maintenance check was not performed on the unit used for Turrell’s test. The only possible scenario was that the officer either made a one digit error in recording the serial number on the handwritten portion of the report or that the Director included in his records the maintenance report of another machine as well as those of the machine in question. The trial court’s judgment was against the weight of the evidence. The weight of the evidence demonstrates that the maintenance was properly performed on the machine used for Turrell’s test. The cause is reversed with directions to enter judgment on behalf of the Director.

BRECKENRIDGE, and SMART, JJ., concur.

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

      . SeeRSMo. § 302.312.

      . The actual maintenance printout carried the same serial number as the Datamaster; the discrepancy was in the handwritten notation on the report.

      . The likelihood that a scrivener’s error occurred is buttressed by the fact that the BAC Verified Maintenance Report Form 5 also contained a handwritten notation across the top, albeit not in the box on the form, that the serial number of the unit was 94069.


text:
    CHAPMAN HEATING AND AIR CONDITIONING COMPANY, Respondent, v. David ROGERS, Appellant, Karl Brendlinger, d/b/a Smith Rogers Heating & Cooling, Defendant.
    No. WD 57634.
    Missouri Court of Appeals, Western District.
    Nov. 28, 2000.
    Michael D. Fusselman, Moberly, for appellant.
    Rodney J. Stevens, Columbia, for respondent.
    Before HOLLIGER, Presiding Judge, BRECKENRIDGE and SMART, Judges.
   ORDER

PER CURIAM.

Defendant David Rogers appeals the circuit court judgment permanently enjoining Smith Rogers Heating and Air Conditioning from operating under the fictitious name “Smith Rogers” or any other business name that includes the name “Rogers.” He further appeals the circuit court’s ruling enjoining him from using his voice and image with name identification in radio or television advertisements. The judgment of the trial court is affirmed.

We have reviewed the briefs of the parties and the record on appeal, and find no error of law. A Written opinion reciting the detailed facts and restating the applicable principles of law would have no prec-edential or jurisprudential value. However, the parties have been furnished with a memorandum opinion for the information only, setting forth the facts and reasons for this order.

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