author: RONNIE L. WHITE, Judge.

text:
    STATE of Missouri, Respondent, v. David Stanley ZINK, Appellant.
    No. SC 86358.
    Supreme Court of Missouri, En Banc.
    Nov. 22, 2005.
    Rehearing Denied Jan. 31, 2006.

      Rosemary E. Percival, Office of Public Defender, Kansas City, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel N. McPherson, Deborah Daniels, Asst. Attys. Gen., Jefferson City, for Respondent.
   RONNIE L. WHITE, Judge.

I.

A jury convicted Appellant, David Stanley Zink, of one count of first-degree murder and recommended the death sentence. Judgment was entered consistent with the jury’s recommendation. Appellant seeks reversal raising twelve points of error. This Court has jurisdiction pursuant to Mo. Const. art. V, sec. 3. Affirmed.

II.

The facts, which this Court reviews in the light most favorable to the verdict, are: In the early morning hours of July 12, 2001, police responded to the report of a traffic accident near Stafford, Missouri. Upon their arrival, they found Amanda Morton’s car abandoned with the engine running, headlights and hazards lights on, and driver’s side window down. The authorities would later learn that Appellant had rear-ended Ms. Morton’s car and that they both left the accident scene in Appellant’s vehicle.

After Ms. Morton’s disappearance was broadcast on the evening news, the owner of a motel near Camdenton, Missouri, recognized Ms. Morton’s picture as a woman who had checked into a room with Appellant. The motel owner provided the police with Appellant’s registratton card, and using this information the police were able to apprehended Appellant at his home. Ultimately, Appellant waived his Miranda rights and confessed to killing and burying Ms. Morton.

Appellant would testify at trial that after leaving the motel he drove Ms. Morton to a cemetery, bound her with twine, broke her neck and strangled her. Approximately ten minutes later he attempted to sever her spinal cord with a knife to ensure her death. He further testified that it was his purpose to cause her death. The evidence also revealed that Appellant had sodomized Ms. Morton.

The jury found Appellant guilty of first-degree murder. During the penalty phase, the jury found the presence of three statutory aggravators to support its unanimous recommendation for a death sentence: (1) that Appellant had two prior convictions for aggravated rape; (2) that the murder was committed for the purpose of avoiding a lawful arrest; and (8) that the murder involved depravity of the mind and was outrageously and wantonly vile, horrible, and inhuman.

III.

In Appellant’s points II, III,. IV, and V, he claims trial court error in association with allowing him to represent himself and with fading to replace standby counsel appointed from the public defender’s office. Specifically he contends that the trial court’s failure to replace the public defender in the first instance forced him to represent himself; that his waiver of the right to counsel was not given voluntarily, knowingly and intelligently; and that standby counsel forced him to present conflicting defenses thereby canceling out any meaningful defense. Appellant presented the defense of lack of deliberation to support a conviction for voluntary manslaughter as opposed to first-degree murder. Standby counsel presented the defense of diminished mental capacity.

A defendant has a constitutional right to conduct his own trial when he knowingly, intelligently, and in a timely fashion exercises that right. However, “[o]nce a pro' se defendant invites or agrees to any substantial participation by (standby) counsel, subsequent appearances by counsel must be presumed to be with the defendant’s acquiescence, at least until the defendant expressly and unambiguously ... requests that standby counsel be silenced.”

Appellant moved the trial court to allow him to proceed without legal counsel. The transcript of the hearing on Appellant’s motion and the legal file both confirm that Appellant was fully informed of the charges; the potential penalties he faced if convicted, including confinement or death; his rights to appointed counsel and to a trial by jury; the perils of self-representation; and all potential consequences associated with the waiver of counsel. He was also informed that any sentencing recommendations by the prosecutor would not be binding on the judge and that he had the right to appeal.

The transcripts reveal that the trial judge read a prepared waiver of counsel form to Appellant that was in compliance with section 600.051, which codifies all of the requirements for waiver of counsel. Appellant signed this form, including a statement that he understood the full consequences of the waiver. Appellant’s waiver was given voluntarily, knowingly and intelligently.

The court offered Appellant two opportunities to reconsider his decision prior to trial and Appellant declined. Prior to the introduction of evidence, the court extended an invitation that Appellant could change his mind on self-representation at any time during the trial by simply notifying the court. Appellant did not accept this invitation at any time during the guilt phase of his trial, but he did turn his defense over to the public defenders for the sentencing phase of his trial.

The first day of trial, prior to the seating of the jury, Appellant gave his consent to allow standby counsel to address the defense of diminished capacity during opening statement. Appellant introduced standby counsel, stating, “Ah, the Public Defenders will put on them own defense. It’s my defense technically. And he will speak to you about this defense.” When the public defender addressed the jury, he outlined all of the evidence of the diminished mental capacity defense that he planned to present.

Appellant also consented to the introduction of evidence to support the diminished capacity defense, the submission of the diminished capacity jury instructions during the guilt and penalty phases of his trial, and the summation of this defense during closing arguments during the guilt and penalty phases of his trial. In fact, Appellant turned the penalty phase defense over to the public defenders, and at completion of the Appellant’s case he stated to the court that it was his intent not to disrupt the diminished mental capacity defense and that this phase of the trial was the public defender’s “ballgame.” Appellant’s alleged points of error have no merit.

IV.

Appellant also raises two points, points I and VI, claiming prosecutorial misconduct. Appellant maintains that the prosecutor failed to timely disclose, and the trial court failed to admit, a police report that may have provided evidence of Ms. Morton habitually violating her curfew. Appellant believes this evidence was relevant as to whether Ms. Morton left the accident scene with him voluntarily and that when the trial court excluded this evidence, pursuant to the State’s objection, that it prejudiced his case.

Appellant further claims prosecutorial misconduct in relation to the State’s cross-examination of witnesses Dr. Kenneth Benedict and Dr. Mark Cunningham. Appellant claims that the prosecutor inappropriately biased the jury against out-of-state witnesses by asking Dr. Benedict why the defense had to travel so far to find a witness to support his defense. Appellant contends that the prosecutor biased the jury against all expert witnesses when asking Dr. Cunningham if the defendant should receive the death penalty, a question that “no” witness could legally answer. Appellant believes this left the jury with the impression that Dr. Cunningham was biased in favor of the defense.

In situations involving prosecuto-rial misconduct, the test is the fairness of the trial, not the culpability of the prosecutor. “Where prosecutorial misconduct is alleged, the erroneous action must rise to the level of ‘substantial prejudice’ in order to justify reversal.” “The test for ‘substantial prejudice’ is whether the misconduct substantially swayed the judgment.” With regard to the trial court’s exclusion of the police report, “[t]rial courts have discretion to determine the relevancy of evidence, and appellate courts will reverse that determination only upon a showing of abuse of discretion.”,

The record reveals that the prosecution disclosed the police report -in question prior to trial and that the court found the evidence to be irrelevant. Appellant was being tried solely on the murder charge. Whether or not Ms. Morton left voluntarily with Appellant prior to his murdering her was irrelevant in the guilt phase of his trial because he admitted his guilt and intent to kill Ms. Morton. It was also irrelevant in the penalty phase because the jury found three statutory ag-gravators to support the sentence of death, none of which involved an allegation of the abduction or kidnapping of Ms. Morton. The trial court did not abuse its discretion when denying the introduction of this evidence, and even assuming, arguendo, that the court had erred with its exclusion, the evidence of Appellant’s guilt was overwhelming, rebutting any presumption of prejudice associated with the exclusion of admissible evidence.

With regard to the questions the prosecutor presented to defendant’s experts, “[w]ide latitude is afforded the cross-examination of witnesses to test qualifications, credibility, skill or knowledge, and the value and accuracy of the expert’s opinion.” “Cross-examination of a witness to determine possible bias or motive is permissible and its parameters are within the broad discretion of the trial court.” The prosecutor’s questioning of Appellant’s experts was directed at eliciting any bias favoring defendants or disfavoring the death penalty. These questions were appropriate subject matter for cross-examination and the trial court did not abuse its discretion in allowing them.

V.

Appellant raises two evidentiary issues in points VII and IX. Appellant claims the trial court erred for allowing the prosecutor and the witnesses use the terms “murder,” “kidnapping,” “abduction,” and “crime scene,” because these terms were conelusory, invaded the province of the jury and prejudiced the verdict. Appellant also claims that the court erred when excluding excerpts from one police officer’s deposition and an audiotape of a radio conversation between a sheriff and dispatcher. Appellant claims that this evidence is relevant to establishing that the police destroyed evidence, engaged in a cover-up to protect their image and attempted to make it appear there was a kidnapping.

“A trial court has broad discretion to admit or exclude evidence at trial.” “This standard of review compels the reversal of a trial court’s ruling on the admission of evidence only if the court has clearly abused its discretion.” “[T]hat discretion is abused when a ruling is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration.” On direct appeal this Court reviews the trial court “for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial.” Trial court error is not prejudicial unless there is a reasonable probability that the trial court’s error affected the outcome of the trial.

The State appropriately points out that the words Appellant objects to were minimally used and in a manner that did not constitute the dictating of a legal conclusion to the jury. The jury was fully instructed on the elements that it had to find beyond a reasonable doubt to support a conviction for first-degree murder, second-degree murder and voluntary manslaughter. Jurors are presumed to know and follow the instructions they are given when deciding the issue of a defendant’s guilt or innocence. Appellant offers nothing but speculation that the use of these words prejudiced his case and fails to demonstrate that he was denied a fair trial.

With regard to Appellant’s second evi-dentiary claim, even assuming the trial court erred with the exclusion of the evidence in question, Appellant again fails to demonstrate any prejudice. Appellant admitted to intentionally killing Ms. Morton. He was only on trial for the murder, not kidnapping. Kidnapping was not an aggravating circumstance submitted to the jury to support a recommendation for the death penalty. There is no reasonable probability that the outcome of the trial would have been different had the evidence in question been admitted.

VI.

In point VIII, Appellant challenges the discharge of venireperson Byron Kronshage for hardship. Appellant contends that the discharge of Kronshage amounted to a tenth peremptory strike when only nine were statutorily allowed, and that it prejudiced the outcome of the trial because Kronshage had stated in voir dire that it would be difficult for him to recommend a sentence of death.

Section 494.430.4 allows the trial court to excuse persons from jury service on the basis of hardship, and the court has substantial discretion with regard to juror ex-cusáis. The record demonstrates that venireperson Kronshage was excused because he and his wife lived alone and both had heart ailments. Kronshage also had laboratory tests scheduled during the time period of the trial, the' result of which might require adjustments in his medication. There is no evidence supporting Appellant’s claim that Kronshage was excused because of his views on the death penalty. Nothing in the record of this case suggests that the tendered panel was not qualified, and the trial court did not abuse its discretion when excusing venire-person Kronshage.

VII.

In Appellant’s point X, he alleges trial court error with submitting the prosecutor’s penalty phase jury instructions 19 and 21, claiming that they diminished the State’s burden to establish that he was death-eligible. Instruction 19 was based upon MAI-CR3d 313.44A, and it required the jury to determine whether there were facts or circumstances in mitigation of punishment that were sufficient to outweigh the facts or circumstances in aggravation. Instruction 21 was based upon MAI-CR3d 313.48A, and it instructs the jury in how to complete the verdict form, based upon the jury’s findings, to pronounce the recommended punishment.

On a claim of instructional error, “[a]n appellate court will reverse only if there is error in submitting an instruction and prejudice to the defendant.” MAI instructions are presumptively valid and, when applicable, must be given to the exclusion of other instructions.

Appellant’s specific claim relates to the statutory requirement in section 565.030.4(3) requiring the jury to determine if mitigating circumstances exist that sufficiently outweigh the evidence in aggravation of punishment. Appellant claims that the instructions, as given, improperly raised his burden to obtain a unanimous jury decision that evidence in mitigation of punishment was sufficient to outweigh the evidence in aggravation. Appellant also claims that Instruction 19 improperly lacks a limitation on the use of aggravating evidence when performing this balancing test.

This Court has previously rejected these and similar arguments concerning these MAI patterned instructions, and these instructions' in no way preclude the jury from giving proper effect to the mitigating evidence. Having ruled on these issues previously, and having examined this claim thoroughly and finding no error of law, an extended opinion on these issues would have no precedential value.

VII.

In point XI, Appellant contends that the jury failed to make the proper factual finding to support, beyond a reasonable doubt, the “depravity of mind” ag-gravator and this failure resulted in prejudice. The jury found the presence of three statutory aggravators beyond a reasonable doubt. Even assuming, arguendo, that the “depravity of mind” aggravator was invalid, “a defendant is ‘death eligible’ where, as here, at least one valid statutory aggravator was found.”

VIII.

In point XII, Appellant finally argues that the trial court lacked jurisdiction and authority to sentence him because the state failed to charge him with “aggravated first-degree murder.” Appellant claims that failure to plead facts, as listed in section 565.030, creates a charge of murder whereby the maximum penalty was life in prison.

This Court has addressed this claim numerous times before, and the omission of statutory aggravators from an indictment or information charging the defendant with first-degree murder does not deprive the sentencing court’ of jurisdiction to impose the death penalty. Missouri’s statutory scheme recognizes a single offense of murder with maximum sentence of death, and the requirement that aggravating facts or circumstances be present to warrant imposition of death penalty did not have the effect of increasing the maximum penalty for the offense. Having examined this claim thoroughly and finding no error of law, an extended opinion on these issues would have no precedential value.

IX.

This Court independently reviews the proportionality of all death sentences. Under section 565.035.3, RSMo 2000, this Court is required to determine whether:

(1) the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor;
(2) Whether the evidence supports the jury’s or judge’s finding of a statutory aggravating circumstance as enumerated in subsection 2 of section 565.032 and any other circumstance found;
(3)the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime, the strength of the evidence, and the defendant.

Having thoroughly reviewed the record, this Court concludes that there is no evidence to suggest that the punishment imposed was a product of passion, prejudice, or any other arbitrary factor.

The trial court’s findings are next reviewed to determine if the evidence supports, beyond a reasonable doubt, the existence of an aggravating circumstance and any other circumstance found. In this case, the jury unanimously found three statutory aggravating circumstances as a basis for considering the death sentence. The evidence supports, beyond a reasonable doubt, a finding that the Appellant had two prior serious assaultive convictions for aggravated rape; that he committed the murder of Ms. Morton for the purpose of avoiding a lawful arrest; and that the murder involved depravity of mind and was outrageously and wantonly vile, horrible and inhuman.

Finally, this Court has upheld sentences of death in similar cases where the defendant committed a prior murder and/or a serious assaultive offense and then murdered again. The death sentence in this case is neither excessive nor disproportionate to the penalty imposed in similar cases, considering the crime, the strength of the evidence, and the defendant.

X.

The judgment is affirmed.

All concur.

      . State v. Taylor, 134 S.W.3d 21, 24 (Mo. banc 2004).

      . Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      . United States v. Swinney, 970 F.2d 494, 498 (8th Cir.1992), quoting, McKaskle v. Wiggins, 465 U.S. 168, 183, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984).

      . Appellant also fails to articulate or cite any authority to support the proposition that the two defenses, i.e., inability to deliberate and diminished mental capacity, were in fact conflicting or why they could not be submitted to the jury in the alternative.

      . State v. Taylor, 944 S.W.2d 925, 938 (Mo. banc 1997). It should be noted that defendant’s citation to Taylor is incorrect. In Taylor this Court held that the "[testimony] of a victim’s family members' characterizations and opinions about the appropriate sentence are inadmissible.” The Court did, however, delineate that an expert's function was not to recommend punishment in State v. Nickens, 403 S.W.2d 582, 587 (Mo. banc 1966).

        . State v. Williams, 922 S.W.2d 845, 851 (Mo.App.1996); Smith v. Phillips, 455 U.S. 209, 220, 102 S.Ct. 940, 71 L.Ed.2d 78, (1982).

      . State v. Peterson, 833 S.W.2d 395, 398 (Mo.App.1992).

      . Id.

        . State v. Wolfe, 13 S.W.3d 248, 258 (Mo. banc 2000).

      . State v. Barriner, 111 S.W.3d 396, 401 (Mo. banc 2003).

      . Middleton v. State, 103 S.W.3d 726, 741 (Mo. banc 2003).

      . State v. Leisure, 796 S.W.2d 875, 880 (Mo. banc 1990).

      . State v. Madorie, 156 S.W.3d 351, 355 (Mo. banc 2005).

      . Id.

      . State v. Gonzales, 153 S.W.3d 311, 312 (Mo. banc 2005).

      . State v. Middleton, 995 S.W.2d 443, 452 (Mo. banc 1999).

      . Barriner, 111 S.W.3d at 401.

      . State v. Madison, 997 S.W.2d 16, 21 (Mo. banc 1999).

      . Section 494.480.2(1).

      . State v. Murray, 744 S.W.2d 762, 770 (Mo. banc 1988).

      . Id.

      . Rule 28.02(c); State v. Whalen, 49 S.W.3d 181, 188 (Mo. banc 2001).

      . Rule 30.25. See State v. Gill, 167 S.W.3d 184, 2005 WL 1620412*7(Mo. banc 2005); State v. Glass, 136 S.W.3d 496, 520-21 (Mo. banc 2004); Taylor, 134 S.W.3d at 30; State v. Tisius, 92 S.W.3d 751, 770 (Mo. banc 2002); State v. Cole, 71 S.W.3d 163, 176 (Mo. banc 2002).

      .Section 565.032; Gill, 167 S.W.3d 184, 193. To support the determination of the depravity of mind aggravator, the jury instruction required the jury to find "that the defendant committed repeated and excessive acts of physical abuse upon Amanda L. Morton and the killing was therefore unreasonably brutal.” The verdict form for aggravating circumstances may have been inartfully completed by the jury, but this does not negate the fact that the necessary findings were made to support this aggravator.

      . Cole, 71 S.W.3d at 171.

      . Id. See also Tisius, 92 S.W.3d at 766.

      . Rule 30.25.

      .Section 565.032.2.

      . Storey v. State, 175 S.W.3d 116 (Mo. banc 2005); Gill, 167 S.W.3d 184; State v. Strong, 142 S.W.3d 702 (Mo. banc 2004); State v. Mayes, 63 S.W.3d 615 (Mo. banc 2001); Skillicorn v. State, 22 S.W.3d 678 (Mo. banc 2000); State v. Middleton, 998 S.W.2d 520 (Mo. banc 1999).


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Missouri ex rel. GENERAL MOTORS ACCEPTANCE CORPORATION, Relator, v. The Honorable Richard E. STANDRIDGE, Respondent.
    No. SC 86948.
    Supreme Court of Missouri, En Banc.
    Jan. 10, 2006.
    Michael J. Abrams, Steven M. McCar-tan, R. Kent Sellers, Kansas City, for relator.

      Dale K. Irwin, Kansas City, for respondent.
   ORIGINAL PROCEEDING IN PROHIBITION

RONNIE L. WHITE, Judge.

I.

General Motors Acceptance Corporation (GMAC) seeks a writ of prohibition preventing the Respondent from compelling discovery on a malicious prosecution counterclaim to a collection action GMAC commenced against Michael Marcum. This Court issued a preliminary writ prohibiting the trial court from taking any further action in this case other than vacating its denial of the protective order GMAC requested concerning the disputed discovery. The writ, as modified, is made absolute.

II.

GMAC repossessed a car purchased by Marcum when he failed to make the required payments. After selling the car at auction, GMAC filed suit against Marcum to collect the remaining deficiency. In response Marcum filed a counterclaim for malicious prosecution. The gravamen of Marcum’s claim was that GMAC’s collection action was malicious because the sales contract itself was fraudulent and void because the car dealership failed to deliver him title to the car within thirty days of the purchase date as required by statute. GMAC subsequently dismissed its action with prejudice, but Marcum persisted with his counterclaim seeking actual and punitive damages.

Marcum filed discovery requests seeking information related to all Missouri and Kansas buyers who entered into retail installment vehicle sales contracts assigned to GMAC where GMAC had knowledge the buyer did not receive title within thirty days of delivery of the vehicle. GMAC objected, claiming the discovery requests were overbroad, irrelevant and overly burdensome. The trial court limited the discovery to a ten-year time period and denied GMAC’s request for a protective order. GMAC seeks a writ of prohibition maintaining that the ten-year temporal limitation still does not cure the defective discovery requests.

III.

GMAC first claims that Marcum’s malicious prosecution claim was filed prematurely divesting the trial court of jurisdiction over his alleged cause of action. GMAC further contends that if even if proper jurisdiction exists, that the discovery requests are overbroad and unduly burdensome because there are insufficient time and subject matter restrictions in the discovery requests. GMAC asserts that in order to comply with Marcum’s requests it would have to review approximately 540,-000 customer records at a cost of nearly $1,000,000.

“Prohibition is the proper remedy for an abuse of discretion during discovery.” “The trial court abuses discretion if its order is clearly against the logic of the circumstances, is arbitrary and unreasonable, and indicates a lack of careful consideration.”

Regarding GMAC’s jurisdictional claim, GMAC correctly states the historical state of the law. Prior to the adoption of Rule 55.06(b) in 1973, a counterclaim for malicious prosecution, if complaining of litigation yet undetermined, stated no cause of action and was subject to dismissal for lack of jurisdiction. Rule 55.06(b), however, provides: Whenever a claim is one heretofore cognizable only after another claim has been prosecuted to a conclusion, the two claims may be joined in a single action; but the court shall grant relief in that action only in accordance with the relative substantive rights of the parties. (Emphasis added.) Marcum appropriately joined his claim. His claim became cognizable, whereby the substantive rights of the parties were determinable, once GMAC dismissed its claim against Marcum with prejudice. The circuit court had jurisdiction to rule on the disputed discovery requests and on GMAC’s requested protective order.

Determining that the circuit court had jurisdiction to rule on these matters does not end this Court’s inquiry. Discovery without appropriate temporal, geographic or subject matter limitation is overbroad. By requesting information on all car sales where GMAC had knowledge of any delay of conferring title to the purchasers, Marcum’s discovery requests are seeking information and documents in excess of the parameters of his counterclaim for malicious prosecution.

IV.

The trial court abused its discretion when denying GMAC’s protective order and requiring GMAC to comply with all of Marcum’s discovery requests. The trial court must vacate its order and limit discovery to the reasonable parameters of the petition allowing discovery of relevant and temporal subject matter. The trial court shall appropriately limit Marcum’s discovery request to include only the information regarding those individuals that GMAC has sued for collection when no vehicle title was transferred. The discovery shall also be limited temporally to the five-year period preceding the filing of Marcum’s counterclaim. This five-year period should be sufficient for Marcum’s search for evidence to establish whether GMAC acted with improper motive in order to support his allegations and an award of actual and/or punitive damages. The writ is made absolute as modified.

All concur.

      . State ex rel. Ford Motor Co. v. Nixon, 160 S.W.3d 379, 380 (Mo. banc 2005).

      . Id.

        . Euge v. Lemay Bank & Trust Company, 386 S.W.2d 398 (Mo.1965); Niedringhaus v. Zucker, 208 S.W.2d 211(Mo.1948); Farmers Ins. Co. v. Miller, 926 S.W.2d 104 (Mo.App.1996); Lindsay v. Evans, 174 S.W.2d 390 (Mo.App.1943).

      .This Court believes that Miller, the post-1973 case cited by GMAC in support of its argument, is distinguishable. However, to provide complete clarity, any case holding to the contrary following the adoption of Rule 55.06(b) should no longer be followed.

        .Nixon, 160 S.W.3d at 380.


author: PER CURIAM.

text:
    Jessie CARTER, Appellant, v. STATE of Missouri, Respondent.
    No. SC 87074.
    Supreme Court of Missouri, En Banc.
    Jan. 10, 2006.

      Scott H. Thompson, Office of the Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, for respondent.
   PER CURIAM.

Jessie Carter’s convictions for first degree murder were affirmed on appeal. State v. Carter, 71 S.W.3d 267 (Mo.App.2002). The court of appeals mandate issued on April 15, 2002. Within 90 days after April 15, Carter’s post-conviction motion was due. Rule 29.15(b). The Jackson County Circuit Court initially filed Carter’s unsigned post-conviction motion on July 8, which is 84 days after the mandate issued. The Jackson County court forwarded Carter’s motion to Maries County, which was the proper venue. The Maries County court filed the motion on July 17, which was 93 days after the mandate issued. The Maries County court dismissed the motion as untimely filed. The motion, although unsigned, was timely filed. The judgment is reversed, and the case is remanded.

Standard of Review

Appellate review of the denial of a post-conviction motion is limited to a determination of whether the findings and conclusions of law of the motion court are clearly erroneous. Rule 29.15(k). Findings and conclusions are clearly erroneous if, after a review of the entire record, the appellate court is left with the definite and firm impression that a mistake has been made. Johnson v. State, 102 S.W.3d 535, 537 (Mo. banc 2003).

Discussion

The state concedes that Nicholson v. State, 151 S.W.3d 369 (Mo. banc 2004), controls and Carter’s pro se motion is timely filed if the original motion was properly completed. The state argues, however, that the motion court did not acquire jurisdiction of the original motion because Carter did not sign it.

Carter did sign a timely filed amended motion. As noted in Wallingford v. State, 131 S.W.3d 781, 782 (Mo. banc 2004), Rule 55.03 applies to post-conviction motions. Rule 55.03(a) requires every motion to be signed by the party if filed pro se. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party. As in Wall-ingford, when Carter’s attorney called the lack of signature to Carter’s attention, it was corrected promptly by the filing of a properly signed amended motion. Because the original motion was timely under Nicholson and Carter’s lack of signature was promptly corrected under Walling-ford, the motion court erred in dismissing the motion as untimely.

The judgment is reversed, and the case is remanded.

All concur.

      . After opinion by the Court of Appeals, Southern District, this Court ordered the case transferred. This Court has jurisdiction. Mo. Const. article V, section 10.

      . The motion court did not have the benefit of Nicholson when it dismissed Carter’s motion.

      . Carter did sign the in forma pauperis motion that was a part of the original Rule 29.15 motion.

      . In Wallingford, the movant initially sought to correct the lack of signature four days after the amended motion was filed. Wallingford at 781.


author: SHERRI B. SULLIVAN, J.

text:
    CONTROL TECHNOLOGY AND SOLUTIONS, Plaintiff/Appellant, v. MALDEN R-1 SCHOOL DISTRICT, Defendant/Respondent.
    No. ED 85796.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 4, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 7, 2005.
    Application for Transfer Denied Jan. 31, 2006.

      Gerard F. Hempstead, Joseph Charles Blanner — co-counsel, Clayton, MO, for Appellant.
    Mark B. Leadlove, Veryl L. Riddle — co-counsel, St. Louis, MO, for Respondent.
   SHERRI B. SULLIVAN, J.

Introduction

Control Technology and Solutions (CTS) appeals from the trial court’s order dismissing its lawsuit for breach of contract against Malden R-1 School District (Malden) for improper venue. We reverse and remand for further proceedings.

Factual and Procedural Background

CTS is a Missouri corporation with its principal place of business in St. Louis County. Malden is a school district located in Dunklin County. On February 11, 2004, CTS and Malden entered into a contract (the Contract) whereby CTS agreed to provide certain work, labor and material in connection -with certain improvements to Malden’s high school and one of its elementary schools. On October 27, CTS filed a petition for breach of contract in St. Louis County against Malden under Section 70.320. CTS alleges in its petition that Malden breached the Contract by refusing to pay CTS $720,153.00 due and owing for work, labor and materials provided by CTS.

On November 19, Malden filed a motion to dismiss or transfer venue, in which it argued that venue was improper in St. Louis County pursuant to Section 508.050. CTS filed a memorandum in opposition. After a hearing, the trial court ruled that venue was improper under Section 70.320, and that pursuant to Section 508.050, CTS’s action could only proceed in the county in which Malden is located, or namely, Dunklin County. CTS appeals.

Point Relied On

CTS argues that the trial court erred in determining that as a matter of law venue for CTS’s breach of contract action against Malden was improper in St. Louis County because Section 70.320 provides that suits affecting any of the terms of any contract with a political subdivision may be brought in the circuit court of the county in which any party to the contract resides, and a school district is a political subdivision under Missouri law and CTS resides in St. Louis County.

Standard of Revieio

Venue is determined solely by statute. State ex rel. SSM Health Care St. Louis v. Neill, 78 S.W.3d 140, 142 (Mo. banc 2002). Statutory construction is a question of law, not judicial discretion. Delta Air Lines, Inc. v. Dir. of Revenue, 908 S.W.2d 353, 355 (Mo.banc 1995). No deference is due to a trial court’s judgment where resolution of the controversy is a question of law. Harrison v. King, 7 S.W.3d 558, 561 (Mo.App. E.D.1999).

General Guidelines for Statutory Construction

We must ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider the words used in their plain and ordinary meaning. Div. of Emp. Sec. v. Taney County Dist. R-III, 922 S.W.2d 391, 393 (Mo.banc 1996). Statutes which seemingly are in conflict should be harmonized so as to give meaning to both statute. County of Jefferson v. Quiktrip Corp., 912 S.W.2d 487, 490 (Mo.banc 1995).

Discussion

The narrow issue presented for review is whether Section 508.050 or Section 70.320 provides venue for the contract dispute between CTS and Malden. Although this issue is couched as an either/or question, we note that the fact that venue is proper in one county does not mean that venue is improper in another. State ex rel. Riordan v. Dierker, 956 S.W.2d 258, 261 (Mo.banc 1997).

Section 508.050 is entitled “Suits against Municipal Corporations, where Commenced” and it provides that:

Suits against municipal corporations as defendant or codefendant shall be commenced only in the county in which the municipal corporation is situated, or if the municipal corporation is situated in more than one county, then suits against the municipal corporation shall be commenced only in that county wherein the seat of government of the municipal corporation is situated; except that suits may be brought against a city containing more than four hundred thousand inhabitants in any county in which any part of the city is situated.

Section 508.050 is found under Title XXXV, Civil Procedure and Limitations, Chapter 508, Venue and Change of Venue.

Section 70.320 is entitled “Suits may be brought in circuit courts” and it provides that:

Suits affecting any of the terms of any contract may be brought in the circuit court of the county in which any contracting municipality or political subdivision is located or in the circuit court of the county in which a party to the contract resides.

Section 70.320 is found under Title VI, County, Township and Political Subdivision Government, Chapter 70, Powers of Political Subdivisions to Cooperate or Contract with Governmental Units, Cooperation by Political Subdivisions under Contract.

Section 508.050 was enacted in 1939. At that time, municipal corporations did not have the power to contract with political subdivisions or private persons. In 1945, the General Assembly amended Missouri’s Constitution by adding Section 16 of Article VI which gives municipal corporations the power to contract with others. In 1947, Article 70 of Missouri’s Revised Statutes, including Section 70.320, was enacted as a general scheme of statutory sections establishing and governing municipal corporations’ ability to contract with governmental entities and private persons, pursuant to Section 16 of our Constitution. Section 70.320 was enacted within that scheme to establish where venue would he for disputes involving these newly created rights to contract between municipal corporations and others.

Based on this history of the two venue statutes, we find that Section 70.320 is a more specific statute than Section 508.050 because it was enacted as part of a specific statutory scheme creating and governing a specific act, namely contracting, between specific parties, namely municipal corporations and governmental units as well as private persons. We consider a statute in the context of the entire statutory scheme on the same subject in order to determine legislative intent. Benoit v. Missouri Highway and Transp. Comm’n, 33 S.W.3d 663, 673-674 (Mo.App. S.D.2000). Section 70.320 was also enacted eight years after Section 508.050. A chronologically later statute, which functions in a particular way will prevail over an earlier statute of a more general nature, and the latter statute will be regarded as an exception to or qualification of the earlier general statute. Lett v. City of St. Louis, 948 S.W.2d 614, 619 (Mo.App. E.D.1996). Furthermore, we presume the legislature acts with the knowledge of statutes involving similar or related subject matters. Allen v. Public Water Supply Dist. No. 5 of Jefferson County, 7 S.W.3d 537, 540 (Mo.App. E.D.1999). Apparently, the General Assembly did not see any irreconcilable conflict between the two statutes.

We note that repeal by implication can occur if a later-enacted statute is inconsistent and irreconcilable with an earlier-enacted statute. Levinson v. State, 104 S.W.3d 409, 412 (Mo.banc 2003). In that case, the later-enacted statute repeals the first statute to the extent of any conflict with the second. Id. We do not believe we have to go so far as to hold that Section 70.320 repeals by implication any conflict it has with Section 508.050. Rather, we find that they can be reasonably reconciled, in that Section 70.320 provides an alternative venue against municipal corporations when the lawsuit involves a dispute over a contract.

Malden emphasizes the use of the word “shall” in Section 508.050 to support its argument that only Section 508.050 applies in this case. However, our Supreme Court has found that the use of such a term does not necessarily preclude alternatives. State ex rel. Riordan v. Dierker, 956 S.W.2d 258 (Mo.banc 1997) involved a declaratory judgment action against the Board of Police Commissioners. The action itself, a declaratory judgment, had its own venue statute. The defending party, the Board of Police Commissioners, had its own venue statute as well. The Court examined a conflict between the two venue statutes, and found that they could be harmonized, even though one used the word “shall.” The following was said by the Court:

The Retirement Board argues that the Circuit Court of Cole County erred in transferring the action from Cole County to the City of St. Louis because venue was proper in Cole County... .The issue in this case is whether Sec. 84.015 provides exclusive venue in the City of St. Louis. This section provides, “Venue for any civil action involving the board of police commissioners ... shall be appropriate in the [City of St. Louis].” The Retirement Board interprets Sec. 84.015 as providing an alternative venue, not exclusive venue, in the City of St. Louis.
To interpret Sec. 84.015, this Court must ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider the words used in their plain and ordinary meaning. Section 84.015 does not use the word “exclusive” or any synonym thereof. It states only that venue “shall be appropriate” in the City of St. Louis. This section by its terms provides for venue in the City of St. Louis, but places no limits on venue in other jurisdictions.
The Retirement Board correctly points out that venue is also appropriate in Cole County under Sec. 536.050.1. This subsection establishes venue for declaratory judgment actions respecting the validity of rules:
The power of the courts of this state to render declaratory judgments shall extend to declaratory judgments respecting the validity of rules, or of threatened applications thereof, and such suits may be maintained against agencies whether or not the plaintiff has first requested the agency to pass upon the question presented. The venue of such suits against agencies shall, at the option of the plaintiff, be in the circuit court of Cole County, or in the county of the plaintiffs residence, or if the plaintiff is a corporation, domestic or foreign, having a registered office or business office in this state, in the county of such registered office or business office. Nothing herein contained shall be construed as a limitation on the declaratory or other relief which the courts might grant in the absence of this section.
Statutes which seemingly are in conflict should be harmonized so as to give meaning to both statute. Here, the Court must harmonize one specific statute that allows suits challenging agency rules to be brought in Cole County, Sec. 536.050, and another specific statute that allows venue in the City of St. Louis, Sec. 84.015. That venue is proper in one county does not mean that venue is improper in another. Neither of these sections contain language indicating a legislative intent to provide a sole, exclusive venue. As such, these sections can be harmonized by interpreting them as providing alternative venues.

Id. at 260-261 (citations and quotations omitted).

Our Supreme Court’s reasoning is equally applicable to the instant case, where we have one statute governing suits in general against specifically municipal corporations as defending parties, and one statute involving specifically contracts between municipal corporations and others. We believe these two statutes can be reconciled as providing alternative venues for suits against municipal corporations involving contracts.

We also note that if we held that Section 508.050 governed all cases against municipal corporations including ones involving contracts to the exclusion of Section 70.320, then Section 70.320, as it reads on its face, would be rendered meaningless. We presume the legislature does not enact meaningless provisions. Allen, 7 S.W.3d at 540.

For the foregoing reasons, CTS’s point on appeal is granted. The judgment of the trial court is reversed. This cause is remanded for proceedings consistent with this opinion.

NANNETTE A. BAKER, P.J., and ROBERT G. DOWD, JR., J., concur.

      . Ail statutory references are to RSMo 2004, unless otherwise indicated.

      . This Act was found to be constitutional in St. Louis Housing Authority v. City of St. Louis, 361 Mo. 1170, 239 S.W.2d 289, 293 (1951) ("That 1947 Act is a specific authorization of cooperation (under a constitutional mandate and for a salutary purpose) and was within power granted to the General Assembly in Section 16 of Article VI”).


text:
    William G. WILCOX, Appellant, v. Steven B. GARRISON, Respondent.
    No. WD 64413.
    Missouri Court of Appeals, Western District.
    Oct. 11, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 22, 2005.
    Application for Transfer Denied Jan. 31, 2006.
    Albert W.L. Moore, Jr., Independence, MO, for Appellant.
    Aimee M. Gromowsky, Kansas City, MO, for Respondent.
    Before HOWARD, P.J., and NEWTON and HARDWICK, JJ.
   Order

PER CURIAM.

Appellant, William G. Wilcox, appeals from a judgment in the Circuit Court of Jackson County in favor of Respondent, Steven B. Garrison, on Wilcox’s claims for discriminatory discharge, breach of contract and tortious interference against Garrison. Wilcox argues five points on appeal. In Point I, Wilcox argues that the trial court erred in admitting evidence of Wilcox’s past, physical condition, post-firing events and credibility, because Garrison never established that this evidence had a role in his decision to fire Wilcox. In Point II, Wilcox argues that the trial court erred in refusing to instruct the jury regarding the negative inference arising from Garrison’s withholding of his wireless telephone calling records on February 11,

1999, from evidence. In Point III, Wilcox argues that the trial court erred in directing a verdict for Garrison on Wilcox’s breach of contract claim, because Wilcox made a submissible case for breach of contract. In Point IV, Wilcox argues that the trial court erred in dismissing Wilcox’s claim for tortious interference for failure to state a claim, because Wilcox duly pleaded all elements of tortious interference. In Point V, Wilcox argues that the trial court denied him due process and equal protection of the law, because he did not receive a fair trial.

We have reviewed the parties’ briefs and the record on appeal. No error of law appears. A written opinion would serve no jurisprudential purpose. We have, however, prepared a memorandum for the use of the parties only, setting forth the reasons for our decision.

We affirm the judgment pursuant to Rule 84.16(b). Points I, II, and III are denied and Points IV and V are dismissed.


text:
    STATE of Missouri, Respondent, v. Pleasant J. HURST, Appellant.
    No. ED 83842.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 11, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 21, 2005.
    Application for Transfer Denied Jan. 31, 2006.

      William James O’Herin, Florissant, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER, III, J. and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Appellant, Pleasant J. Hurst (“Defendant”), appeals the judgment of the Circuit Court of St. Charles County, following a jury trial, convicting him of attempted kidnapping, sections 565.110, RSMo 2000 and 564.011, attempted sexual misconduct involving a child, sections 566.083 and 564.011, sexual misconduct involving a child, section 566.083, kidnapping, section 565.110, and child molestation in the first degree, section 566.067. Defendant was sentenced as a prior and persistent offender to a total of fifty-two years imprisonment to be served in the Missouri Department of Corrections. We affirm.

We have reviewed the briefs of the parties and the record on appeal. As an extended opinion would serve no jurisprudential purpose, we affirm the judgment pursuant to Rule 30.25(b).

      . All statutory references are to RSMo 2000, unless otherwise indicated.


text:
    Sharon GORDON, Plaintiff/Respondent, v. Michael BABCOCK, Defendant/Appellant, and Nocturne Enterprises, Inc., et al., Defendants.
    No. ED 85563.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 11, 2005.
    Application for Transfer to Supreme Court Denied Nov. 29, 2005.
    Application for Transfer Denied Jan. 31, 2006.
    Charles W. Gray, St. Charles, MO, for Appellant.
    William Laird Hetlage, Lawrence Gerard Gillespie — co-counsel, Clayton, MO, for Respondent.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Michael Babcock (Appellant) appeals from a trial court judgment denying Appellant’s Motion to Set Aside Default Judgment. We have reviewed the briefs of the parties and the record on appeal and conclude that the trial court did not abuse its discretion in denying Appellant’s Motion to Set Aside Default Judgment because the motion does not state facts constituting a meritorious defense and does not show good cause. Hinton v. Proctor & Schwartz, Inc., 99 S.W.3d 454, 458 (Mo.App. E.D.2003); Rule 74.05(d). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Rule 84.16(b).

      . All rule references are to Mo. R. Civ. P.2004, unless otherwise indicated.


author: CLIFFORD H. AHRENS, Judge.

text:
    Robert N. VOGT, Trustee for the Robert N. Vogt Trust, Respondent, v. Linda EMMONS, Collector of Franklin County, Appellants.
    No. ED 85430.
    Missouri Court of Appeals, Eastern District, Division One.
    Oct. 11, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 21, 2005.
    Application for Transfer Denied Jan. 31, 2006.

      Marc H. Ellinger, Jefferson City, MO, for appellant.
    Byron E. Francis, St. Louis, MO, for respondent.
   CLIFFORD H. AHRENS, Judge.

Linda Emmons, collector of Franklin County and Franklin County (herein collectively referred to as “Franklin County”) appeal the judgment of the trial court in favor of Robert N. Vogt, Trustee for the Robert N. Vogt Trust (“Vogt”) on all counts of his petition for declaratory judgment, injunctive relief and refund of taxes regarding certain property tax rates set by Franklin County. Franklin County claims that the trial court erred in its judgment because Franklin County properly computed its 2002 tax rates, and such calculation was in compliance with a prior judgment regarding Franklin County’s rates. Additionally, Franklin County argues that Vogt’s claims were untimely, and barred by the doctrine of res judicata. Franklin County also asserts error in the admission of correspondence between counsel from a prior case. Finally, Franklin County claims the trial court erred regarding its judgment that Franklin County failed to properly adjust tax rates for actual sales tax collections in 2000, 2001, and 2002. We affirm.

On December 27, 2002, Vogt filed a petition for declaratory judgment, injunctive relief and refund of taxes. In his petition, Vogt alleged that Franklin County used improper tax rate ceilings to calculate the property tax rate levies for both the general revenue and for the road and bridge purposes in 2000 and ultimately in 2001 based upon the improper calculation from 2000. Because the improper tax rate ceilings were used in calculating the levies in 2000 and 2001 this resulted in an improper calculation of the tax rate levies for 2002. Vogt alleged the tax rate levies for 2002 were in violation of the Hancock Amendment to the Missouri constitution and section 137.078 RSMo (Cum Supp.2002). He also claimed the tax rate levies were in violation of a 1999 judgment entered in the case of Jack Koehr, et al. v. Linda Emmons, et al., Franklin County Circuit Court No. CV198-0297CC (“1999 Judgment”), which found, among other things, that the 1998 tax rates were unlawful and unconstitutional based upon an improper “rounding up” formula used in its calculations. In addition, Vogt claimed that Franklin County failed to adjust the 2002 tax rates for the sales tax revenue collected in 2001, pursuant to section 67.505.3(6) RSMo (2000). Vogt requested an order declaring the levies for the general revenue and road and bridge purposes unlawful; directing Franklin County to calculate the tax rates for 2002 using the proper tax rate ceiling, which would be determined by recalculating the tax rate ceilings for the years 2000 and 2001 pursuant to the tax rate ceiling for 1999 set by the 1999 Judgment; enjoining Franklin County from collecting taxes under the unlawful rate set for 2002; refunding sums paid over the amount due when the lawful rate is used to compute the 2002 tax bills; punitive damages; and costs and attorney’s fees.

Vogt moved for plaintiff class certification, and the trial court granted the motion. Notice to class members was published, and no members of the class applied for exclusion from the class. The court found that Vogt was an adequate class representative. The cause was tried to the court, and findings of fact, conclusions of law and judgment were entered, finding in favor of Vogt on all counts. The trial court found that Franklin County failed to use the proper tax rate ceilings from 1999 in calculating its tax rates for 2000. Specifically, the court stated that Franklin County used the 1998 tax rate ceilings, which were derived from the use of the improper rounding formula and were found to be in violation of the Hancock Amendment, to calculate the tax rate levies in 2000, thus “perpetuating an unconstitutional cycle.” The court determined that the use of the improper tax rate ceiling in calculating the tax rates for 2000 ultimately resulted in unlawful tax rates for general revenue and road and bridge purposes for 2002. The court ordered Franklin County to recalculate its tax rates for 2002 using the proper tax rate ceilings for 2001, which would be determined by recalculating the 2000 tax rate ceilings pursuant to the tax rate ceilings from 1999. The court also awarded a refund of $488,352.00 in excess property tax revenue to Vogt and the members of the class as a result of the unlawful rates in 2002. The court found that Franklin County also collected an excess of property tax revenue in 2000, 2001, and 2002, as a result of understated sales tax adjustments for those years, in violation of section 67.505.3. As a result, the court awarded Vogt and the members of the class a total refund of $315,835.60 for excess property taxes collected from the understated sales tax adjustments in 2000, 2001, and 2002. Franklin County now appeals.

Franklin County asserts several claims on appeal. Initially, we address the timeliness claim as a threshold matter. In its third point on appeal, Franklin County argues that Vogt’s petition was barred by the statute of limitations and by the doctrine of laches. Franklin County argues the suit is effectively a challenge to the tax rates for 2000, and therefore, is untimely.

Franklin County agrees there is no dispute that Vogt’s challenge to the 2002 tax rates was timely filed. Instead, Franklin County takes issue with the fact that Vogt’s petition is actually a challenge to the 2000 tax rates instead of the 2002 rates, and no timely challenge was made to the rates from 2000.

In his concurring opinion in Green v. Lebanon R-III School Dist., 13 S.W.3d 278, 286-90 (Mo. banc 2000) (Wolff, J., concurring), Judge Wolff stated that a taxpayer must file a timely suit under the statutory scheme in order to be entitled to a tax refund. He noted that the “manner of enforcement of Hancock’s mandates is subject to the orderly procedures established by statute.” Id. at 287. A taxpayer may enforce his rights under the Hancock Amendment by filing a timely action to seek a refund of the alleged unconstitutional tax. Id. (citing Ring v. Metropolitan St. Louis Sewer Dist., 969 S.W.2d 716, 718 (Mo. banc 1998)). Judge Wolff noted that if a taxpayer’s suit is not timely filed, that is, filed before December 31 of the tax year in question, refunds are not available. Id. Our court adopted the concurring opinion of Judge Wolff as a correct declaration of the law in Koehr v. Emmons, 55 S.W.3d 859 (Mo.App.2001)(“Koehr I”).

In the present case, Vogt and the members of the class do not seek a refund of taxes for 2000 or 2001. Instead they seek a refund only for the year 2002. A timely action for refund of taxes for 2002 was filed. Vogt’s petition was filed December 27, 2002, and therefore, timely sought a refund of the 2002 taxes he alleged were improperly collected. The simple fact that the taxes ultimately being refunded from 2002 were collected based on improper calculations from prior years does not negate the timely filing of the suit.

Additionally, the requirement that the suit be filed by December 31 of the tax year in question applies to actions for refunds. However, in a prior case involving a challenge to Franklin County’s tax rates by Vogt, our court determined that while an action for refund was properly dismissed as untimely, actions for declaratory or injunctive relief may have been proper. In Vogt v. Emmons, 158 S.W.3d 243 (Mo.App.2005) ("Vogt I”), this court determined that Vogt was not entitled to a refund of 2001 taxes because the action was not filed in accordance with section 137.073.8. However, we stated that we could find “no barrier to [Vogt’s] pursuit of an action for declaratory relief and for an injunction ensuring the alleged unlawful tax rates and methods of determining such tax rates do not remain in effect in the future.” Id. at 252. Therefore, we do not believe the actions for declaratory judgment and injunctive relief in the present case were barred by the timeliness requirements for filing an action for refund.

Franklin County also argues that the instant action was barred by the doctrine of laches.

There is no “ready-made test” for invocation of the doctrine of laches. Estate of Holtmeyer v. Piontek, 913 S.W.2d 352, 356 (Mo.App.1996); (citing Metropolitan St. Louis Sewer District v. Zykan, 495 S.W.2d 643 (Mo.1973)). Generally, laches is appropriate to bar a claim where one party’s “needless delay” materially prejudices the opposing party. Id.

In the present case, Franklin County’s argument for application of the doctrine of laches to bar the action fails. Franklin County acknowledges that prior suits challenging the tax rates now at issue were filed and dismissed. It cannot now assert unnecessary delay on the part of Vogt and the members of the class in bringing the action. Point denied.

We next consider Franklin County’s claim, set forth in point one on appeal, that the tax rates for 2002 were properly computed based upon the 2001 tax rate ceilings.

In its calculation of the tax rate levies for both general revenue and road and bridge purposes, Franklin County utilizes a formula which is based, in part, on the prior year’s tax rate ceiling. Section 137.073.1(3) RSMo (Cum Supp.2002) defines tax rate ceiling as “the maximum tax rate that may be levied,” unless a higher rate is approved by the voters. In 2000, Franklin County used the tax rate ceiling from 1998 to calculate the rates for the year. However, this tax rate ceiling, along with the levies calculated as a result, was determined to be improper, and violative of the Hancock Amendment in the 1999 Judgment. Applying this unconstitutional 1998 tax rate ceiling resulted in improper tax rate ceilings for the year 2000. This unconstitutional rate was then carried forward with the use of the 2000 tax rate ceiling to calculate the 2001 tax rate levies. Ultimately, the improper rate continued in 2002 with the use of the 2001 tax rate ceiling which had been based upon the unconstitutional 2000 rates. It is the 2002 rates that are now the subject of this suit.

In its reply brief, Franklin County states that the “core issue” presented on appeal is the finality of the property taxes, and the trial court’s error in abrogating this finality. Franklin County claims that we may only consider the calculation of the 2002 rates based upon the proper application of the 2001 tax rate ceiling. However, Franklin County fails to acknowledge the fact that the 2001 tax rate ceilings were based upon a calculation that began with the use of the improper tax rate ceiling from 1998 to calculate the tax rate ceilings for 2000.

Although we agree with Franklin County that “finality is a crucial element of property tax rates” for municipalities and other governmental entities, we also believe that, if timely challenged, an unconstitutional rate must be remedied, even if it is based on prior years’ tax rate ceilings. Vogt and the members of the class do not seek revision of the tax rates from 2000 and 2001. They seek only revision of the 2002 rates which would require recalculation of a portion of the computation of the rates from 2000 and 2001. Additionally, Vogt and the members of the class do not seek refunds for any taxes collected in 2000 and 2001; instead they seek timely refund of the excess taxes generated by the improper levies from 2002, and they seek to stop the improper calculations from continuing.

As a result of the foregoing, the trial court did not err in ordering Franklin County to recalculate the 2002 tax rates using the proper tax rate ceiling from 2001, which would be determined by recalculating the tax rate ceilings from 2000 pursuant to the tax rate ceiling from 1999. Additionally, the trial court did not err in awarding a refund for the excess revenue collected in 2002 as a result of the unlawful tax rates. Point denied.

In its second point on appeal, Franklin County argues that the calculation of the tax rates for 2002 was made in compliance with the 1999 Judgment. Franklin County relies upon Estate of Ingram v. Rollins, 864 S.W.2d 400, 403 (Mo.App.1993), for the proposition that the “operative effect of an order lies in the order or decretal portion itself, rather than in any accompanying recitals, findings, memorandum or opinion.” Franklin County claims it complied with the “decretal portions” of the 1999 Judgment. According to Franklin County, the “decretal” portion of the judgment barred the county from rounding up its tax rates, ordered repayment of certain amounts of improper taxes, required the county to pay attorney’s fees, and affirmed the tax rates set for 1999. However, Franklin County ignores the portion of the opinion in Estate of Ingram, in which the court also notes that the general rules of construction apply to an order, and the words and clauses must be construed “in accordance with their natural import.” Id. “The order should be examined in its entirety, with an eye to making sense of the language used.” Id.

Here, the 1999 Judgment found that the tax rates for 1998 were improper, and violative of the Hancock Amendment due to the rounding up formula utilized by Franklin County. It follows logically from this finding that Franklin County would be precluded from using improper tax rate ceilings to calculate subsequent years’ property tax rate levies. Thus, Franklin County did violate the 1999 Judgment by using the improper tax rate ceilings to calculate its tax rate levies for both the general revenue and road and bridge purposes for the year 2000. This improper calculation was carried forward with the use of the tax rate ceiling from 2000 to calculate the levies for 2001 and the use of the improper tax rate ceiling from 2001 to calculate the 2002 tax rate levies. Point denied.

In its fourth point, Franklin County argues that Vogt’s action is barred by the doctrine of res judicata because a member of the class Vogt represents previously challenged the 2000 rates and the action was dismissed, and the present action is actually a challenge of the 2000 tax rates rather than the 2002 rates.

Vogt argues that Franklin County has waived any res judicata claim by failing to timely raise such a defense. Citing Heins Implement Co. v. Missouri Highway Transp. Com’n, 859 S.W.2d 681, 684-85 (Mo. banc 1993), Vogt states that a party who fails to assert a defense of res judicata as an affirmative defense in its answer, as an amendment to the pleadings, or as part of a timely motion presented to the trial court, is deemed to have waived the defense. We agree.

In its answer, Franklin County asserted several affirmative defenses. These defenses did not include a claim of res judica-ta. Franklin County referred to a prior case involving challenges to the tax rates in its answer, but only to make an argument for the affirmative defense that Vogt’s claims were untimely and barred by the statute of limitations. Franklin County argues in its reply brief, that the, issue of res judicata was raised, argued and briefed before the trial court during the class certification hearing. However, there is no evidence of this in the record before us.

Additionally, we note that Franklin County argues that the disposition of Vogt I serves to bar Vogt’s current action. However, there is nothing in the . record before us to indicate the disposition of the claims which were the subject of Vogt I. As noted above, our court reversed the dismissal as to the claims for- declaratory judgment and injunctive relief to allow Vogt to proceed on these claims. Vogt, 158 S.W.3d at 252. However, we have not been provided with evidence of the disposition of these claims in the record on appeal. “It is the duty of an appealing party desiring review of an issue to furnish all records relating thereto.” Sally v. City of Rolla, 884 S.W.2d 380, 382 (Mo.App.1994). Absent a complete record, which contains the matters necessary for our determination of the issue before us, dismissal may be appropriate. Id. Here, we have not been provided with a significant portion of the evidence necessary to make a determination as to the issue of whether Vogt’s claims were barred by res judicata. Therefore, we cannot review this point on appeal.

In its fifth point on appeal, Franklin County claims the trial court erred in admitting evidence of correspondence between counsel in a prior case because the letters were settlement discussions between counsel. Additionally, Franklin County asserts that the correspondence is inadmissible to explain or modify the 1999 Judgment.

The trial court is vested with broad discretion concerning the admissibility of evidence, and we will not interfere with the décision of the trial court absent an abuse of discretion. Hancock v. Shook, 100 S.W.3d 786, 795 (Mo. banc 2003). “An abuse of discretion occurs when a trial court’s ruling is clearly against the logic of the circumstances then before the court and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration.” Id. It is difficult to predicate reversible error upon the erroneous admission of evidence in a court-tried case. Welshans v. Boatmen’s Bancshares, Inc., 872 S.W.2d 489, 495 (Mo.App.1994).

“Because settlements are encouraged under the law, the general rule is that evidence procured from settlement is to be excluded at trial.” Hancock, 100 S.W.3d at 799. However, as noted by Vogt, there is an exception to this general rule when the evidence constitutes an admission of independent fact relevant to an issue between the parties. Holtmeier v. Dayani, 862 S.W.2d 391, 404 (Mo.App.1993).

In the present case, the correspondence admitted at trial did contain evidence of some settlement discussion between counsel during the 1999 litigation which was ultimately the result of the 1999 Judgment. However, the letters also contained an admission by counsel for Franklin County that the rounding up, which was the subject of the initial suit, was improper. The letters also provided statements regarding the calculations of the 1997 and 1998 tax rate levies, and the excess tax revenues collected by Franklin County for general revenue and road and bridge purposes. In determining these figures of excess revenue, counsel for Franklin County noted the correct tax rate ceilings that should have been used in 1998 to calculate the tax rate levies. This information was relevant and admissible in the instant case to determine the question of whether the 2002 tax rates were improper based on prior years’ calculations, which began in 2000 with the use of the improper tax rate ceiling from 1998.

Moreover, we note that no prejudice resulted from the admission of the correspondence. The court stated that it would try to ignore the settlement discussions contained in the letters. Additionally, the portions of the correspondence cited in the court’s judgment contained information already incorporated in the 1999 Judgment, which was admitted at trial without objection.

Franklin County also argues that the letters were improperly admitted to explain or vary the terms of the 1999 Judgment. We disagree. The information cited in the court’s judgment in the present case was consistent with the findings in the 1999 Judgment. The court merely noted that in the letters Franklin County acknowledged the improper rates from 1998, and stated the excess revenue amounts, which were recited in the court’s 1999 Judgment. These facts did not vary the 1999 Judgment, but instead were consistent with the judgment. Thus, we do not believe the trial court abused its discretion in admitting the correspondence. Point denied.

In its final point on appeal, Franklin County claims that the trial court erred in its judgment that Franklin County failed to adjust its tax rates for actual sales tax collections in 2000, 2001, and 2002. Franklin County does not dispute that it failed to adjust the property tax rates based upon actual sales tax revenue in the immediately preceding year. Instead it simply claims the adjustment was not required under section 67.505.3.

Pursuant to section 67.505.3, a county shall:

“reduce that total property tax levy in an amount sufficient to decrease the total property taxes it will collect by an amount equal to one of the following: (1) Fifty percent of the sales tax revenue collected in the tax year for which the property taxes are being levied; ... (6) One hundred percent of the sales tax revenue collected in the tax year for which the property taxes are being levied; provided that, in the event that in the immediately preceding year a county actually collected more or less sales tax revenue than the amount determined under subdivision (4) of section 67.500, the county shall adjust its total property tax levy for the current year to reflect such increase or debrease.”

Franklin County set forth Proposition 1, which posed the question to its voters, “[sjhall the County of Franklin, Missouri impose a county-wide sales tax of one-half (1/2) of one percent and reduce its total property tax levy annual by fifty percent (50%) of the total amount of the sales tax revenue collected in the same tax year?” Franklin County voters approved this proposition. As a result, pursuant to section 67.505.3, Franklin County was required to reduce the total property taxes it would collect by an amount equal to fifty percent of the sales tax revenue collected in the tax year for which the property taxes were being levied. Section 67.500(4) defines “sales tax revenue collected” as, “the amount of sales tax revenue received by a county during the first six calendar months of any year multiplied by two.”

Subsection (6) of 67.505.3 contains a qualifying provision which, as noted above, requires the county to make an adjustment in its property tax levy for the current year for the actual sales tax collected in the immediately preceding year, where that amount is more or less than the amount calculated pursuant to 67.500(4). Franklin County argues that this adjustment is only required to be made in counties where the voters approved a one hundred percent reduction of the current year’s property tax levies pursuant to section 67.505.3(6).

In its argument, Franklin County relies upon the “last antecedent rule,” as set forth in Rothschild v. State Tax Commission of Missouri, 762 S.W.2d 35, 37 (Mo. banc 1989). In Rothschild, the Missouri Supreme Court found that, “ ‘relative and qualifying words, phrases or clauses are to be applied to the words or phrase immediately preceding and are not to be construed as extending to or including others more remote.’ ” Id.; (quoting Citizens Bank & Trust v. Director of Revenue, 639 S.W.2d 833, 835 (Mo.1982)).

The trial court found that the “last antecedent rule” did not apply to the language of section 67.505.3, and determined that Franklin County collected excess property taxes in 2000, 2001, and 2002 as a result of understated sales tax adjustments for those years. The court ordered a refund of the excess property taxes collected in 2000, 2001, and 2002 from these understated sales tax adjustments.

The “last antecedent rule,” as applied to section 67.505 results in an illogical construction of the statute. “Statutory interpretation is a question of law.” Anderson v. Village of Jacksonville, 103 S.W.3d 190, 195 (Mo.App.2003); (citing Staley v. Mo. Dir. of Revenue, 623 S.W.2d 246, 248 (Mo. banc 1981)). The primary rule in construing a statute is to determine the intent of the legislature based upon the language used. Id. We are to give effect to that intent when possible, and we are to consider the plain and ordinary meaning of the words used. Id. “ ‘The entire statute should be construed to determine legislative intent, and all provisions should be harmonized, if reasonably possible.’ ” Id.; quoting Campbell v. Labor & Indus. Relations Comm’n, 907 S.W.2d 246, 249 (Mo.App.1995)). Provisions involving the same subject matter are to be construed together. Baldwin v. Director of Revenue, 38 S.W.3d 401, 405 (Mo. banc 2001) (citation omitted).

In the present case, when section 67.505.3 is read in its entirety, and read in conjunction with section 67.500(4), the intent of the legislature is clear. Section 67.505.3 requires a county to reduce its total property tax levy by a certain amount of sales tax revenue collected in the tax year for which the property taxes are being levied. Subsections (1) through (6) provide several options for reductions based on differing percentages of the sales tax revenue collected. As previously noted, section 67.500(4) defines “sales tax revenue collected” as, “the amount of sales tax revenue received by a county during the first six calendar months of any year multiplied by two.” As noted by the trial court, this language is indicative of the legislature’s intent to recognize that counties must make tax levy decisions before the entire year’s sales taxes are collected. The qualifying language in section 67.505.3(6) requires an adjustment based on whether this estimate is more or less than the actual sales tax revenue in the immediately preceding year. To find that this adjustment applies only to counties in which property taxes are reduced by one hundred percent of the sales tax revenue collected, rather than applying the adjustment to each percentage provided for in subsections (1) through (5), results in an illogical interpretation of the statute.

Additionally, we note that in section 137.073.1(4), in its definition of “tax revenue,” the legislature notes that counties levying sales taxes pursuant to chapter 67 shall include in the calculation of tax revenue, “an amount equivalent to that by which they reduced property tax levies as a result of sales tax pursuant to section 67.505, RSMo, and section 164.013, RSMo, in the immediately preceding fiscal year.... ” This provision does not qualify the reduction as applying solely to counties in which the property taxes are reduced by one hundred percent of the sales tax revenue collected.

Therefore, viewing the plain language of section 67.505.3 in its entirety, and in conjunction with the provisions in section 67.500(4) and 137.073.1(4), we believe it was the intent of the legislature to require counties to make an adjustment to their property tax levies based upon the actual sales tax collected in the immediately preceding year. The trial court did not, therefore, err in finding that Franklin County improperly failed to adjust its property tax levies to account for the actual sales tax collected in the immediately preceding years in 2000, 2001, and 2002.

Vogt has also filed a motion for attorneys’ fees and costs for services on appeal, in the amount of $27,139.06, supported by an affidavit, which was taken with the case. Of the total fees requested, $23,534.06 had been incurred at the time the motion was filed, and counsel anticipated incurring an additional $3,615.00 for remaining work on appeal. Pursuant to Article X, Section 23 of the Missouri Constitution, a taxpayer bringing a challenge under the Hancock Amendment is entitled to costs, including reasonable attorneys’ fees incurred in maintaining the suit, if the suit is sustained. Vogt’s suit was sustained, and he was granted attorneys’ fees by the trial court. Franklin County does not challenge this award on appeal and did not file suggestions in opposition to Vogt’s motion for fees on appeal. As Vogt correctly notes, the entitlement to attorneys’ fees on appeal stands upon the same ground as that at the trial court level. Knopke v. Knopke, 837 S.W.2d 907, 924 (Mo.App.1992). Vogt was entitled to fees at the trial level pursuant to Article X, Section 23 of the Missouri constitution, and therefore, Vogt is also entitled to fees on appeal. Vogt is awarded $25,000.00 in attorneys’ fees on appeal.

The judgment of the trial court is affirmed.

MARY K. HOFF, P.J., and PATRICIA L. COHEN, J., concur.

      . Article X, Section 22 of the Missouri constitution prohibits counties and other political subdivisions from levying any tax not authorized by law. It also states that counties and political subdivisions may not increase a tax without voter approval.

      . All further statutory references are to RSMo (2000), unless otherwise indicated.

      . Franklin County did not object to this award at trial, nor does it raise the refund as an issue on appeal. During argument, the parties stipulated that this refund is permitted by law.


text:
    STATE of Missouri, Appellant, v. Allen McKAY, Respondent.
    No. ED 86264.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 11, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 21, 2005.
    Application for Transfer Denied Jan. 31, 2006.
    Jeremiah W: (Jay) Nixon, Atty. Gen., Deborah Daniels, Asst. Atty; Gen., Jefferson City, MO, for Appellant.
    Alexandra E. Johnson, Asst. Public Defender, Laura E. O’Sullivan, Asst. District Defender, St. Louis, MO, for Respondent.
    Before GARY M. GAERTNER, P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J. .
   ORDER

PER CURIAM.

Appellant, State of Missouri, appeals from the order of the trial court granting Respondent’s, Allen McKay (“Defendant”), “Defense Motion To Quash Or Dismiss Defective Information.” The information charged Defendant with the Class B felony of possession of cocaine base pursuant to section 195.202, RSMo 2000, and section 195.275. We affirm.

We have reviewed the briefs of the parties and the record on appeal. As an extended opinion would serve no jurisprudential purpose, we affirm the judgment pursuant to Rule 30.25(b).

      . All statutory references are to RSMo 2000, unless otherwise indicated.


text:
    Scott GOODMAN, Appellant, v. AT & T CORPORATION and Division of Employment Security, Respondents.
    No. ED 85368.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 18, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 29, 2005.
    Application for Transfer Denied Jan. 31, 2006.
    Scott Goodman, St. Louis, MO, pro se.
    Alan Downs (Division of Employment Security), Jefferson City, MO, Kevin P. Clark, (AT & T Corporation), St. Louis, MO, for respondents.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Scott Goodman (Goodman) appeals the Labor and Industrial Relations Commission’s Order, which affirmed the Appeals Tribunal’s decision that Goodman was ineligible for unemployment benefits, pursuant to Section 288.050.1 RSMo (2000). The Commission reasonably found that Goodman was ineligible for benefits because of his inability and unavailability for work. We have reviewed the briefs of the parties and the Record on Appeal, and we find no error of law in this case. Thus, a written opinion would have no precedential value. The judgment is affirmed pursuant to Rule 84.16(b).


text:
    DRUMMOND COMPANY, Plaintiff/Appellant, v. ST. LOUIS COKE & FOUNDRY SUPPLY CO., et al., Defendants, and Robert E. Woods, Jr., Defendant/Respondent.
    No. ED 84884.
    Missouri Court of Appeals, Eastern District, Division One.
    Oct. 18, 2005.
    Application for Transfer to Supreme Court Denied Nov. 29, 2005.
    Application for Transfer Denied Jan. 31, 2006.

      Sanford J. Boxerman, Clayton, MO, for appellant.
    Thomas M. Blumenthal, Clayton, MO, for respondent.
   CLIFFORD H. AHRENS, Judge.

Drummond Company, Inc.' (“Drum-mond”) appeals from the judgment of the trial court directing a verdict in favor of Robert Woods, Jr. (“Bob Woods”) as to Count IX of its fourth amended petition, which alleged a corporate director breached a fiduciary duty to a creditor. Drum-mond contends that the trial court erred in directing a verdict in favor of Bob Woods because it was entitled to submit its claim to the jury in that there was sufficient evidence for a jury to find that, as a director of St. Louis Coke & Foundry Supply Co. (“St. Louis Coke”), Bob Woods breached a fiduciary duty to Drummond, a creditor, to stop the diversion of corporate funds when St. Louis Coke was insolvent. Finding no error, we affirm.

Under our standard of review, when a directed verdict is granted in favor of a defendant, this Court views the evidence and permissible inferences in the light most favorable to the plaintiff, disregarding contrary evidence and inferences. Mprove v. KLT Telecom, Inc., 135 S.W.3d 481, 494 (Mo.App.2004). Applying that standard, the facts are as follows. Drum-mond is the largest supplier of coke in the United States. It had a longstanding business relationship with St. Louis Coke for more than forty years prior to the commencement of the current litigation. Drummond, through its division, ABC Coke, supplied all of St. Louis Coke’s requirements for coke. Essentially St. Louis Coke operated as a broker, making sales to third-party customers and addressing customer concerns, with Drummond shipping coke directly to the third-party customers (“end users”) and invoicing St. Louis Coke. St. Louis Coke sent invoices to its customers, who paid it, and St. Louis Coke in turn paid Drummond. St. Louis Coke retained a set commission for each ton of coke product that it sold. From 1994 through a portion of 2000, Drummond and St. Louis Coke did business under a contract (“1994 Agreement”). Under the terms of the 1994 Agreement, St. Louis Coke was required, in most circumstances, to pay Drummond within thirty-seven days after Drummond submitted an invoice to St. Louis Coke.

Bob Woods was the president of St. Louis Coke from approximately 1970 to 1990. He was succeeded by Steve Potter, whom he hired. Steve Potter in turn was replaced as president by Bob Woods’ son, Robert Woods, III (“Rob Woods”) in the mid-1990s. Rob Woods continued as president of St. Louis Coke at least until it filed a Chapter 11 reorganization bankruptcy proceeding in 2002. During the time that Rob Woods was president of St. Louis Coke, Bob Woods served as chairman of the board (“chairman”). Bob Woods and Rob Woods collectively controlled a majority of the stock of St. Louis Coke, though they were not the only shareholders, and Rob Woods regarded the firm as a closely-held corporation. As chairman, Bob Woods had the right to examine the financial records of St. Louis Coke at any time, but did not do so. Bob Woods was active in the company and worked with customers both in selling and collecting accounts receivable.

In 1998, Rob Woods and his wife started up another closely held company, Score, Inc. (“Score”). Rob Woods served as president of that firm as well as St. Louis Coke. From 1998 onwards St. Louis Coke loaned substantial sums of money to Score, with some of the loan proceeds apparently used to purchase equipment for Score. At least some of St. Louis Coke’s proceeds from the sale of coke supplied by Drum-mond went to fund Score’s operations and purchase of equipment. Between June, 1999 and December, 2001, Score made periodic repayments on the loans and funds transferred to Score. Bob Woods, though he was familiar with Score, purportedly had no knowledge of these transfers, though he was aware from looking at the receivables of St. Louis Coke that there was a “significant” receivable due from Score.

Sometime in the late 1990s, St. Louis Coke fell behind in its payments to Drum-mond for the coke supplied to its customers. As of February 2000, St. Louis Coke owed Drummond in excess of $2.8 million dollars on its existing debt (“Old Debt”) invoiced before January 24, 2000. St. Louis Coke owed Drummond approximately $800,000 more on invoices between January 24, 2000 and February 22, 2000 (“New Debt”). Drummond and St. Louis Coke made efforts to try to resolve this outstanding debt issue. Bob Woods made a trip to Alabama to meet with executives of Drummond, and with an attorney, negotiated a new agreement, executed February 23, 2000 (“2000 Agreement”) and signed by Bob Woods as chairman. Bob Woods was aware at that time that St. Louis Coke was behind in its payments to Drummond.

The 2000 Agreement set up a payment schedule to retire the Old Debt, which included monthly payments of $50,000 from April 1, 2000 to May 1, 2002, periodic “balloon payments” and a final payment on June 1, 2002. The 2000 Agreement also addressed payment of the New Debt, requiring St. Louis Coke to immediately notify Drummond by fax of the receipt of payments for coke and to thereafter remit those funds to Drummond by wire transfer by the next business day at the latest. The 2000 Agreement did not give St. Louis Coke any security interest in or liens against the assets of St. Louis Coke, Bob Woods, or Rob Woods. St. Louis Coke made some strides towards reducing the Old Debt, but by April 20, 2001, Rob Woods informed Drummond that St. Louis Coke would not be able to make the $50,000 monthly payments under the 2000 Agreement for April 2001 and at least several months thereafter without restructuring the debt. St. Louis Coke continued to sell product supplied by Drummond to customers during the period from April 2001 to September 2001. On September 26, 2001, Rob Woods informed Drummond that it would not be able to make a payment, and on the following day, St. Louis Coke’s attorney informed Drummond that the company could not meet its debts and would likely file bankruptcy absent further debt restructuring. Drummond thereafter began to sell directly to the end users. Litigation ensued. In April 2002, St. Louis Coke filed Chapter 11 reorganization proceedings.

Drummond filed suit against St. Louis Coke, Rob Woods, and others in an effort to collect the money owed to it by St. Louis Coke. Its fourth amended petition included a number of claims against various defendants, which now included Bob Woods. Many of these claims were dismissed or resolved prior to trial. The case went to trial on Drummond’s Count III fraudulent misrepresentation claim against Rob Woods, and on the Count IX breach of fiduciary duty to creditor claim against both Bob Woods and Rob Woods.

At trial, Drummond, claimed that Woods owed a fiduciary duty to stop St. Louis Coke’s “diversion of funds” to Score from the sale of Drummond’s coke. The evidence showed that starting in June, 1998, Score built up a debt to St. Louis Coke that amounted to approximately $1,547,766 by the time that Drummond entered into the 2000 Agreement with St. Louis Coke on February 23, 2000. By April 20, 2001, when St. Louis Coke began having troubles paying the Old Debt to Drummond, Score had reduced its indebtedness to St. Louis Coke to approximately $1,128,070. During the period from April 20, 2001 until September 26, 2001, when St. Louis Coke was having problems paying its Old Debt to Drummond, there were additional transfers of funds from St. Louis Coke to Score of approximately $451,518. This included a $100,000 transfer to Score on May 4, 2001. During this same period, Score repaid approximately $401,419 to St. Louis Coke. By September 27, 2001, when Drum-mond quit furnishing product to St. Louis Coke, Score’s net indebtedness to St. Louis Coke had been further reduced to approximately $935,651. By January 18, 2002, Score’s net indebtedness to St. Louis Coke had increased to- approximately $1,002,979.

During the period St. Louis Coke was having trouble paying the Old Debt, Bob Woods was aware that St. Louis Coke had a substantial receivable due to it from Score. He did not discuss this matter with the president of both companies, his son, Rob Woods. Bob Woods also made no effort to collect any of the money owed to St. Louis Coke by Score, purportedly because he believed that Score could not pay it.

At the close of evidence, the trial court denied Rob Woods’ motion for directed verdict as to the Count III for fraudulent misrepresentation, and granted Bob Woods and Rob Woods’ motion for directed verdict as to Count IX for breach of fiduciary duty to creditor. Thereafter the jury returned a verdict in favor of Drum-mond and against Rob Woods on Count III in the amount of $ 1.4 million actual damages, with no punitive damages. Drummond now appeals from the order of the trial court directing the verdict in favor of Bob Woods on Count IX.

As previously noted, in reviewing a directed verdict granted in favor of a defendant, this ■ Court views the evidence and permissible inferences in the light most favorable to the plaintiff, and disregards contrary evidence and inferences. Mprove, 135 S.W.3d at 494. We determine whether, on the evidence so viewed, plaintiff made a submissible case. Id. Where the grant or denial of a directed verdict is based on a conclusion of law, we review the trial court’s decision de novo. Id.

The trial court's order directing the verdict on Count IX does not state the basis for its decision. The transcript indicates that the trial court did not consider there to be a cause of action in Missouri for breach of fiduciary duty to creditors. At the same time, the transcript also suggests that the trial court focused on the definition of “insolvency” in making its decision to grant the motion for a directed verdict in favor of Bob Woods. The issue of whether there is a cause of action for breach of fiduciary duty to creditors is dispositive of this appeal. Drummond concedes that no Missouri case has held there to be a cause of action for breach of fiduciary duty by a corporate director to a creditor of the corporation. Drummond urges that we recognize a new common law cause of action.

Missouri courts have held that, as a general rule, absent statutory authority, or an intentional or fraudulent act, the relationship between a creditor and a corporation is that of contract, not one of trust. Kroeger v. Garkie, 274 S.W. 478, 480 (Mo.App.1925) (quoting Utley v. Hill, 155 Mo. 232, 55 S.W. 1091, 1098 (1900). See also Premier Bank v. Tierney, 114 F.Supp.2d 877, 886-87 (W.D.Mo.2000) (applying Missouri law); Stone v. Rottman, 183 Mo. 552, 82 S.W. 76, 81-82 (1904); Union National Bank v. Hill, 148 Mo. 380, 49 S.W. 1012, 1016 (1899)). The relationship between a corporation and a creditor is merely that of a debtor and creditor. Union National Bank, 49 S.W. at 1017. Mere nonfeasance is not sufficient to impose individual liability upon corporate directors and officers; rather, active malfeasance or a specific statutory liability creating an individual cause of action for creditors is necessary to create such individual liability. See Tierney, 114 F.Supp.2d at 886-87; Kroeger. 274 S.W. at 480; Stone, 82 S.W. at 81-82; Hill, 49 S.W. at 1016-17. There was no evidence that Bob Woods committed an intentional or fraudulent act. He had participated in the negotiations of the 2000 Agreement, but there is no evidence that there was any fraudulent intent in those negotiations. He knew that Score owed significant amounts of receivables to St. Louis Coke, and suspected that Score could not readily pay those receivables, but did not authorize transfers of funds to Score. There was no evidence that Bob Woods committed any acts of active malfeasance.

Statutory corporation law in Missouri has created individual liabilities for directors in certain cases. Section 351.345 RSMo (2000), for example, provides that individual directors are jointly and severally liable for the debts of the corporation for the amount of any dividend they knowingly declare and pay not in accordance with relevant statutes, not to exceed the amount of such dividends. Absent directors or those who properly objected are exempted from liability, as are those who relied in good faith on corporate records or officials. Id. Section 351.476 addresses the effect of a corporate dissolution, stating that a dissolved corporation cannot carry on any business save that appropriate for winding up its affairs. Sub-section 351.476.2(3) provides that corporate dissolution does not

[sjubject its directors or officers to standards of conduct different from those applicable to directors and officers of a corporation which has not been dissolved; provided that any such 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.

Corporate directors and officers who exceed their trustee-like statutory duties in winding up the business affairs of a dissolved corporation become personally liable under section 351.436.2(3). Section 351.486 creates a similar statutory personal liability for directors and officers of a corporation which has been administratively dissolved. No such statute creates personal liability for directors based on the evidence in the case before this Court.

Missouri has rejected the concept that corporate directors are fiduciaries for creditors, even in the event of insolvency, and has held that directors are not individually liable to creditors, absent statutory authority or an intentional or fraudulent act. See Union National Bank, 49 S.W. at 1016; Alberger v. National Bank of Commerce, 123 Mo. 313, 27 S.W. 657, 657-59 (1894). Transfers made to defraud creditors are governed by Chapter 428 RSMo, known as the “Uniform Fraudulent Transfer Act.” The remedies for creditors in cases involving fraudulent transfers are listed in section 428.039, and essentially look to avoiding the transfer in part or in whole, or to attaching the transferred asset or the proceeds therefrom. Section 428.039 does not specifically provide for the personal liability of corporate directors or officers to creditors in the event of a fraudulent transfer.

Early Missouri cases do recognize directors’ liability to creditors in the limited situation where the corporation is not a going concern, but rather clearly going out of business or incapable of doing business, and that, it is conclusively established that it is insolvent. See Banta v. Hubbell, 167 Mo.App. 38, 150 S.W. 1089, 1091-92 (1912); Warren v. Mayer, 163 Mo.App. 451, 143 S.W. 861, 863-64 (1912); Sarah A. Williams et al. v. The Jackson County Patrons of Husbandry and John P. Jones, 23 Mo.App. 132 (Mo.App.1886). See also Land Red-E-Mixed Concrete Company v. Cash Whitman, Inc., 425 S.W.2d 919, 923 (Mo.1968) In such cases the corporation was effectively de facto dissolved, placing the directors and officers in a trustee-like position for the equal benefit of all creditors, similar to the liability imposed by statute under sections 351.476 and 351.486. Such cases are inapplicable in the present case, because there was no evidence that St. Louis Coke was clearly going out of business, incapable of doing business, or not a going concern at the time of the disputed transfers. Instead, there was evidence that despite its financial difficulties, St. Louis Coke continued to sell coke supplied by Drummond to customers during the period of time through September 2001.

There was no breach of a statutory fiduciary duty on the part of directors and officers to creditors in this case. Nor did the evidence in this case establish any common law liability or duty. Aecordingly, Drummond failed to make a submissi-ble ease on its claim of breach of a fiduciary duty to creditors on the part of Bob Woods in his capacity as a director. The trial court did not err in directing a verdict in favor of Bob Woods as to Count IX of Drummond’s fourth amended petition.

The judgment of the trial court is affirmed.

MARY K. HOFF and PATRICIA L. COHEN, JJ., concur.

      . Bob Woods apparently was chairman at other times as well, but the record does not indicate the precise dates that he held the office of chairman or was otherwise a member of the board of directors of St. Louis Coke.

      . Rob Woods and his wife were the sole shareholders of Score.

      . Unless noted otherwise, all further statutory citations are to RSMo (2000).

      . Missouri has long had statutes that hold transfers or conveyances that actively or constructively defraud creditors to be void. These statutes do not state that corporate directors or officers are fiduciaries for creditors and personally liable to them.

      . While nearly all of the cases cited above involve allegations that corporate directors and/or officers of purportedly insolvent corporations engaged in preferential treatment of some creditors over others, which is not the factual situation in the case before this Court, they do involve the liability of corporate officers and directors for transfers of corporate assets, and are therefore analogous.

      . There is little evidence in the record as to the nature of St. Louis Coke’s business activities between September, 2001, and April 2002, when it filed for reorganization in bankruptcy under Chapter 11 of the United States Bankruptcy Code.


text:
    John MOORE, Plaintiff/Appellant, v. THE VILLAGE OF BEL-RIDGE, MO, Defendant/Respondent.
    No. ED 85607.
    Missouri Court of Appeals, Eastern District, Division One.
    Oct. 18, 2005.
    Application for Transfer to Supreme Court Denied Nov. 29, 2005.
    Application for Transfer Denied Jan. 31, 2006.
    Sanford J. Boxerman, Clayton, MO, for appellant.
    Stephanie E. Karr, Clayton, MO, for respondent.
    Before MARY K. HOFF, P.J., CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

John Moore appeals the judgment of the trial court finding lack of jurisdiction regarding his claim under section 536.100 RSMo (2000). Moore argues the trial court erred in finding lack of jurisdiction because his dispute with the Village of Bel-Ridge, Missouri (“Bel-Ridge”), was a “contested case,” within the definition set forth under section 536.010(2).

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their 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).