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    Stephen DORSCH, Appellant-Respondent, v. FAMILY MEDICINE, INC., et al.; Larry Legler, Gregory Markway, Marvin Steiner, Respondent-Appellants.
    Nos. WD 63050, WD 63058.
    Missouri Court of Appeals, Western District.
    Jan. 25, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 1, 2005.
    Application for Transfer Denied April 26, 2005.

      David W. Whipple, Kansas City, MO, for appellant-respondent.
    Mark A. Olthoff, Kansas City, MO, for respondent-appellants.
    Before: LISA WHITE HARDWICK, P.J., ROBERT G. ULRICH and THOMAS H. NEWTON, JJ.
   ROBERT G. ULRICH, Judge.

Stephen Dorsch, M.D., appeals the judgment of the trial court finding for Respondents Family Medicine, Inc. (FMI), a Missouri Corporation, and physicians and medical doctors, Larry Legler, Gregory Markway, and Marvin Steiner in his suit seeking a writ of mandamus and an accounting and asserting claims of breach of contract and fraud against his former employer and fellow stockholders. Dr. Dorsch also sought money damages for amounts that he claimed should have been paid him according to the Corporate Stock Agreement, wage-continuation payments according to the Employment Agreement between himself and FMI and Schedule A to the Employment Agreement, and incentive compensation according to the Employment Agreement and Schedule A.

The trial court determined that Dr. Dorsch failed to present supporting evidence for his claims for a writ of mandamus, accounting and fraud (counts I, II, and IV). The trial court also determined that Dr. Dorsch was not entitled to recovery for breach of contract under either the Employment Agreement or Appendix A of the agreement. The court entered judgment for the Respondents and against Dr. Dorsch on all counts. Despite Dr. Dorseh’s request for a jury trial, the trial court heard both equitable and legal claims as the trier of fact, applying the equitable clean-up doctrine.

Both Dr. Dorsch and Respondents appeal. Dr. Dorsch appeals the trial court’s judgment. Respondents cross-appeal the trial court’s order sanctioning their failure to provide discovery as directed and the court’s award to Dr. Dorsch for additional expenses incurred because of Respondent’s failure to disclose financial documents.

The judgment of the trial court is affirmed. The trial court’s order of sanctions is reversed.

Facts

Dr. Stephen Dorsch was hired by FMI in October of 1986. Dr. Dorsch’s initial Employment Agreement outlined that he would be paid a base salary plus “incentive compensation” based upon his individual adjusted gross billings. The practice of FMI was to allow individual physicians to become shareholders in the corporation after a period of time — usually after one year. By becoming a shareholder, physicians in the corporation were entitled to significant benefits, including improved income potential and patient access.

At the time that Dr. Dorsch was hired, the corporation’s 1000 shares of stock were entirely owned by Dr. Larry Legler. On January 31, 1987, Dr. Legler sold 500 of .these shares to Dr. Greg Markaway at a price of $1 per share. Until discovery was conducted in this action, the price paid by Dr. Markaway for his shares of FMI stock was never revealed to Dr. Dorsch.

In December of 1986, Dr. Dorsch began discussing the prospect of becoming a shareholder in FMI with Doctors Legler and Markaway. In May 1987, at the end of FMI’s fiscal year, Dr. Dorsch became aware that a shareholder agreement was forthcoming. The arrangement was solidified on September 1, 1987, at which time four separate documents were signed. Dr. Dorsch read and executed a Corporate Stock Sale Agreement, a [Stock] Subscription Agreement, an Employment Agreement, and “Schedule A,” an addendum to the Employment Agreement. He was sold 333 1/3 shares of FMI at a price of $87.21 per share, at a total purchase price of $27,240.00. FMI’s accountant, Paul Dooley, determined the price for the stock. Dr. Dorsch was made both a shareholder in the company and a member of its board of directors.

“Schedule A” of the Employment Agreement outlined two forms of compensation. The Agreement provided for both a base salary and the potential for incentive compensation based upon the performance of an individual doctor’s “department.” Incentive compensation was only awarded if a doctor’s department remained profitable after the deduction of shared expenses. Incentive compensation was to be computed by FMI’s board of directors, at least once, following the close of a fiscal year.

In January of 1992, Dr. Marvin Steiner was hired by FMI. On February 1, 1993, he became a shareholder in the corporation. Dr. Steiner purchased 250 total shares of FMI for a price of $130.90 per share, with a purchase price totaling $32,724.00. The shares were purchased in equal amounts from Doctors Legler, Markway, and Dorsch, resulting in each of the four doctors owning 25% of the total company stock.

The relationship between Dr. Dorsch and Respondents began to deteriorate in the late 1990’s. For reasons unrelated to this appeal, Dr. Dorsch was notified of his termination at a Board of Director’s meeting on August 26, 1999. Dr. Dorsch was officially terminated by FMI effective October 25, 1999. The Corporate Stock Sale Agreement signed by Dr. Dorsch provided specific terms for the repurchase of stock by the company in the event of termination. On January 10, 2000, FMI attempted to purchase Dr. Dorsch’s remaining 250 shares for a price of $1,422.53, at a value of approximately $5.69 per share.

Dr. Dorsch brought this suit against FMI on June 13, 2000. His petition sought four separate claims for relief: (1) a writ of mandamus ordering FMI to allow Dr. Dorsch access to the company’s books; (2) an accounting of the book value of FMI stock, as well as income and expenses attributable to Dr. Dorsch; (3) a claim for breach of contract; and (4) a claim for fraud. The parties appeared for trial on April 22, 2002, and the case was tried to the court. The trial court dismissed three counts of the petition at the close of the plaintiffs evidence. Only the breach of contract claim survived the motion, and the trial court heard evidence from the defendants on that issue alone. On April 29, 2003, the trial court entered its judgment in favor of FMI and the named defendants as to all four counts. The court also ordered sanctions against the defendants for failure to make complete discovery. This appeal and cross-appeal followed.

I. Equitable Clean Up

Dr. Dorsch’s first three points on appeal address the propriety of the trial court’s decision to apply the “equitable clean up doctrine” to resolve his claims. At the onset of trial, counsel for Dr. Dorsch requested a jury trial on all issues before the court. The court observed that each count of the action (including the fraud and contract claims) called for some form of equitable relief and that the underlying claims for damages were incidental to the equitable relief sought. Counsel for Dr. Dorsch then requested a jury trial as to the legal issues, and requested that the court limit its own factual findings to the claims for equitable relief. The court proceeded to try the entire case itself, while allowing the potential for impaneling a jury if during the trial there appeared to be “a sufficient separation between the issues of liability and damages to justify the seating of a jury in connection with the damage claims.”

Under then existing case law, the rationale applied by the trial court was carefully and appropriately applied. However, while this appeal was pending, the Missouri Supreme Court issued a ruling that clarified Missouri’s position on the “equitable clean up doctrine.” In State ex rel. Leonardi v. Sherry, the Missouri Supreme Court recently ruled that

Missouri trial courts have jurisdiction to try cases involving requests for equitable relief and damages in one proceeding. The trial court has discretion to try such cases in the most practical and efficient manner possible, consistent with Missouri’s historical preference for a litigant’s ability to have a jury trial of claims at law. Unless circumstances clearly demand otherwise, trials should be conducted to allow claims at law to be tried to a jury, with the court reserving for its own determination only equitable claims and defenses, which it should decide consistently with the factual findings made by the jury.

137 S.W.3d 462, 473 (Mo. banc 2004). Based upon this ruling, the court should have impaneled a jury to hear Dr. Dorsch’s legal claims. “Trying incidental claims at law to the court ... should be the exception and not the rule.” Id. at 474. Neither party disputes the appropriateness of the trial court’s resolution of the claims for equitable relief.

While this ruling certainly informs the issues presented, it does not completely decide them, and the clarification of law does not entirely resolve the questions posed by this appeal. Even though a trial by jury would have been proper, the question remains whether denial of a jury trial regarding the legal issues is reversible. Before trial court error is reversible, the appellant must demonstrate that the error materially affects the outcome of the action. RSMo 512.160.2 (2000); Rule 84.13(b). While the trial court may have been erroneous in its conclusion that no jury was required, the underlying fraud and breach of contract claims were decided — in one fashion or another — as matters of law. If these decisions were in fact correct, the ultimate decisions would still have rested with the trial court, and not with the jury. Consequently, determining whether Dr. Dorsch was prejudiced by the court’s decision requires examination of appellant’s points four and five. FMI also raised the alternative question of whether the right to a jury trial was waived.

II. Fraud Claim

In his fourth point on appeal, Dr. Dorsch contends the trial court erroneously granted FMI’s motion for judgment as a matter of law for lack of evidence regarding his fraud claim. Had the trial court impaneled a jury, FMI’s motion would have been brought as a motion for directed verdict at the close of plaintiffs evidence. Because review is of both the trial court’s decision and the question of prejudice, analysis must address whether the case submitted by Dr. Dorsch as plaintiff would have survived the post-evidence motion.

‘When ruling on a defendant’s motion for a directed verdict at the close of the plaintiffs evidence, the trial court must view the evidence in the light most favorable to the plaintiffs, and they should receive the benefit of all reasonable inferences.” In re Estate of Mapes, 738 S.W.2d 853, 855 (Mo. banc 1987). However, if the plaintiff fails to support one or more of the elements of a cause of action by substantial evidence, a directed verdict is proper. Bond v. Cal. Comp. & Fire Co., 963 S.W.2d 692, 696 (Mo.App. W.D.1998).

The circumstances constituting fraud must be pled with particularity, with an exception for the general pleadings of mental conditions such as intent or knowledge. Rule 55.15. To survive a motion for directed verdict, a fraud claim must show substantial evidence of (1) a representation, (2) its falsity, (3) its materiality, (4) that the speaker knew of the falsity or was ignorant of its truth, (5) that the speaker intended the representation be acted on in the manner reasonably contemplated, (6) the hearer’s ignorance of falsity, (7) the hearer’s reliance on the representation as being true, (8) the hearer’s right to rely on the truth of the representation, and (9) the hearer was consequently and proximately damaged. See Sofka v. Thal, 662 S.W.2d 502, 506 (Mo. banc 1983). The essential elements of a fraud claim must be strictly proven as pleaded. Wion v. Carl I. Brown & Co., 808 S.W.2d 950, 953 (Mo.App. W.D.1991).

The initial pleadings allege that Dr. Dorsch purchased FMI stock in reliance on the fraudulent representation that stock redemption was meant as a means of compensating Dr. Dorsch for increasing the value and good will of FMI. The trial court based its judgment as a matter of law on the decision that Dr. Dorsch was not induced to enter the contracts by any misrepresentation or omission of FMI.

The trial court’s decision was based upon four findings. First, that FMI did not knowingly make any false representations to Dr. Dorsch. Second, FMI made no representations to Dr. Dorsch that its stockholders knew or should have known was incorrect. Third, the court found that Dr. Dorsch presented no evidence of any intent to defraud. Finally, the court found that Dr. Dorsch did not rely to his detriment on any misrepresentation or omission because he presented no evidence that any misrepresentations or omissions were made by any defendant.

Dr. Dorsch asserts that the trial court merely made one finding, that false representations were not made. The record shows, however, that the trial court found two distinct elements of the fraud claim lacking: first, the absence of evidence that any of the representations made by FMI were false, and; second, no evidence was submitted to indicate awareness of the falsity of the representations. Dr. Dorsch contends on appeal that the court’s ruling was erroneous because evidence was submitted of two separate false representations.

The first of these alleged misrepresentations was that the actual value of the FMI stock was reflected in the price that he paid $87.21 per share for a total purchase price of $27, 240.00. No methodology for assessing the price of stock was included within the subscription agreement. Dr. Dorsch testified at trial, however, that at the time he signed the Subscription Agreement, he was given the information that the stock purchase price was based on production and receipts of the corporation multiplied by a percentage factor and then divided by the total number of shares. Dr. Dorsch also argues that the falsity of this representation was compounded by the failure of respondents Legler and Marka-way to reveal that Dr. Markaway had paid only $1 per share in a purchase earlier in the same year.

The second alleged misrepresentation was that the formula for calculating the value of stock being purchased would be the same formula used to calculate the value of the stock at redemption. While no method of valuation is provided in the Subscription Agreement, the Corporate Stock Sale Agreement specifically provided that upon termination, stock redemption shall be based upon the book value of the stock as determined by generally accepted accounting principles. Dr. Dorsch testified that he did not understand the meaning of the language within the Agreement and was notified by Dr. Legler and Paul Dooley that the methods of calculation were substantially similar for purchase price and the price upon redemption. Dr. Dorsch paid $87.21 per share at his initial purchase of FMI stock, and sold 83 1/3 of these shares to Dr. Steiner for $130.90 per share. However, upon redemption to the company, Dr. Dorsch was offered only $5.69 per share.

The determination before this court is whether these representations constitute sufficient evidence to satisfy the elements of a submissible case of fraud as outlined within the pleadings. The plaintiff who alleges “certain and definite misrepresentations” bears the burden to substantially prove the misrepresentations that have been alleged. Wion, 808 S.W.2d at 954. “Fraud imputes venality and corruption to the person charged with it, and both reason and law require clear and convincing proof of it.” Centerre Bank of Independence v. Bliss, 765 S.W.2d 276, 284 (Mo.App. W.D.1989) (quoting Gibson v. Smith, 422 S.W.2d 321, 328 (Mo.1968)).

No evidence was presented that the first of these representations was fraudulent. While the scope of this appeal does not include evaluating the “actual value” of a stock, Dr. Dorsch was accurately appraised of the manner in which the stock price was calculated. Dr. Legler’s decision to antecedently sell his own stock at a different price to Dr. Markaway is irrelevant to this action. Dr. Dorsch decided to purchase the stock after being correctly informed of the manner in which his own stock price was determined. He determined whether the privileges of ownership were properly valued by these calculations. None of the respondents made a false representation to Dr. Dorsch regarding the value of FMI stock when he purchased it.

The second representation, that the same methodology used to calculate stock value when Dr. Dorsch purchased stock would be employed to determine its value upon redemption, manifests similar deficiencies. The evidence offered to support the claim is Dr. Dorsch’s testimony that Dr. Legler and Paul Dooley indicated that the “general accounting principles” referenced in the Corporate Stock Sale Agreement were “similar to the calculations for the purchasing of the stock.” Dr. Dorsch later testified “[t]he Subscription Agreement again has no calculation at all as to how the stock value is come up with and I was given, you know, the verbiage that we use production and there is a percentage of this and then it’s divided out.”

Nothing within this testimony indicates that the representations of either Dr. Legler or Mr. Dooley were false. At no time did the parties indicate that upon redemption the same formula would be utilized or that the redemption price would be similar. Furthermore, no testimony was offered to indicate that these two parties knew this representation was false at the time it was made. The truth or falsity of a representation is determined at the time the representation was made and at the time the representation is intended to be acted on. Blanke v. Hendrickson, 944 5.W.2d 943, 944 (Mo.App. E.D.1997). The argument raised on appeal is that these representations “proved to be false” nearly twelve years after the fact, which fails to satisfy the requirements of proof for a submissible claim of fraud.

Neither of these representations, viewed individually or in the aggregate, provide sufficient evidence that fraud has occurred. Insufficient evidence existed to support Dr. Dorsch’s claim of fraud and the trial court did not err in granting the defendants’ motion for a directed verdict on the issue at the close of the plaintiffs evidence. Furthermore, the rationale utilized by the trial court to grant the judgment as a matter of law would have been proper had a jury been impaneled and had been used to grant a directed verdict.

FMI further argues that the fraud claim is barred by the statute of limitations. The theory adopted is that Dr. Dorsch, as a director and shareholder of FMI, should have become aware of any potential fraud at the time that stock was sold to Dr. Steiner in 1993. Because the fraud claim was properly decided as a matter of law, this claim is moot and need not be determined.

III. Breach of Contract Claim

Dr. Dorsch’s fifth point on appeal is that the trial court improperly found that FMI had not breached its employment contract with Dr. Dorsch, despite FMI’s failure to pay incentive compensation following his termination. Unlike the fraud claim, the trial court overruled the defendants’ motion for judgment as a matter of law at the close of plaintiffs evidence regarding the breach of contract claim. FMI was allowed to present evidence on the remaining claim, and the case was submitted to the trial court. Counsel for FMI brought a joint motion for judgment as a matter of law at the close of all the evidence, which the trial court took under advisement with the case.

Dr. Dorsch suggests that allowing the case to be submitted inherently prejudiced the breach of contract claim at law and not in equity, because the trial court decided the case while sitting as a trier of fact instead of a jury. Although the trial court made findings of fact, the breach of contract claim was decided as a matter of law. The suggestion that Dr. Dorsch was inherently prejudiced fails to consider the nature of a breach of contract claim. Missouri law holds that the interpretation of a contract is a question of law, and is reviewed de novo on appeal. Goldstein & Price, L.C. v. Tonkin & Mondl, L.C., 974 S.W.2d 543, 551 (Mo.App. E.D.1998). Review must still address the question of whether Dr. Dorsch was prejudiced by the failure to impanel a jury.

Answering this second question requires examination of the extent to which the contract question was a so-called “pure” question of law. If the trial court was not required to reference extrinsic evidence, examine credibility, or draw inferences from evidence to reach its conclusions, then it was not acting as a trier of fact when it rendered its judgment. If the case was resolved as a “pure” question of law, it cannot be said that Dr. Dorsch was prejudiced by the lack of a jury. Pure questions of law would be resolved by a directed verdict at the close of all the evidence, and no issues would have been submitted to the jury. However, if the trial court’s determination was based upon the weighing of evidence to any question of fact, Leonardi dictates that a jury should have decided those questions. 137 S.W.3d at 473.

Consequently, this case is reviewed as if it was decided as a question of law and thus treated as if it had been resolved by a directed verdict in favor of FMI. The evidence is reviewed in the light most favorable to the party against whom the directed verdict was granted. Morris v. J.C. Penney Life Ins. Co., 895 S.W.2d 73, 76 (Mo.App. W.D.1995). The issue for resolution is whether the plaintiff has presented a submissible case. Mathis v. Jones Store Co., 952 S.W.2d 360, 365 (Mo.App. W.D.1997). Examining the submissi-bility of a case is a question of law, reviewed by presuming the plaintiff evidence to be true, and giving plaintiff “the benefit of all reasonable and favorable inferences drawn from the evidence.” See Killion v. Bank Midwest, N.A., 987 S.W.2d 801, 808 (Mo.App. W.D.1998)(quoting Riley v. Riley, 847 S.W.2d 86, 88 (Mo.App.1992)).

Dr. Dorsch argues that the trial court improperly found the absence of a breach of the employment contract with FMI despite FMI’s refusal to pay incentive compensation following his termination. Dr. Dorsch was notified of his termination in August of 1999, but continued seeing patients with FMI until September 15. His official termination date was October 25, 1999, and he continued to receive his base salary until that date. However, Dr. Dorsch received no incentive compensation after May 31,1999.

Paragraph 2 of “Schedule A” to the Employment agreement is a general provision regarding the payment of incentive compensation, and reads:

In addition to base salary, the Employee shall receive incentive compensation, if any, computed by the Board of Directors pursuant to this paragraph. Incentive compensation shall be computed and paid pursuant to the computations at least once during each fiscal year of the Corporation, the time and manner of payment of such incentive compensation to be determined by the Corporation’s Board of Directors. All incentive compensation shall be paid less deductions for withholding taxes and other deductions required by law. It is specifically recognized that the purpose of this incentive compensation shall be to make the total compensation paid equal to the reasonable value of his services to the extent that the Corporation is financially able to pay such compensation without incurring loss, [emphasis added]

The argument presented by Dr. Dorsch is that he was entitled to receive a percentage of the incoming profits of FMI from June 1, 1999, through September 15, 1999, based upon the reasonable value of his services while he continued to work for the corporation. Dr. Dorsch presented testimony by a CPA, Mark Vianello, that under accepted accounting principles, compensation for the rendering of services should be assessed at the time that a patient is given care.

However, “Schedule A” also contains a specific provision regarding incentive compensation when a physician has been terminated by FMI. Paragraph 8 reads:

In the event of termination of Employee’s employment, regardless of the reason, the Corporation’s Board of Directors shall as of the last day of the calendar month following the month in which Employee’s employment terminates, determine whether Employee is entitled to receive any additional compensation because of Employee’s efforts through his last day of employment. The Board of Directors shall make such determination by utilizing principies similar to those which it would have applied in the making of a determination of incentive compensation for Employee under paragraph 2 hereof In the event the Board of Directors determines that additional compensation is due Employee then such additional compensation shall be paid, less deductions for withholding taxes and other deductions required by law, within thirty (30) days following the date as of which such determination was made. [Emphasis added]

The interpretation of a contract is entirely a question of law, the cardinal rule of which is to ascertain the intention of the parties and give it effect. Sonoma Mgmt. Co. v. Boessen, 70 S.W.3d 475, 479 (Mo.App. W.D.2002). This intention is solely determined by the contract itself unless an ambiguity is found within the contract. Id. “A contract is ambiguous only if its terms are reasonably open to more than one meaning, or the meaning of the language used is uncertain.” Id. (quoting Atlas Reserve Temps, v. Vanliner Ins. Co., 51 S.W.3d 83, 87 (Mo.App. W.D.2001)). Whether a contract is ambiguous is also a question of law. Yerington v. La-Z-Boy, Inc., 124 S.W.3d 517, 520 (Mo.App. S.D.2004).

Dr. Dorsch has offered no grounds for finding these provisions ambiguous, and there is nothing within the record to indicate they should be treated as such. Instead, the ground offered both at trial and on appeal for enforcement of the contract is that Paragraph 2 provides for payment based upon the reasonable value of services provided. The trial court ruled upon these provisions as if Paragraphs 2 and 8 were in conflict, and applied the rule of construction that a specific clause acts to modify or pro tanto nullify a more general clause. See e.g. A & L Holding Co. v. S. Pac. Bank, 34 S.W.3d 415, 419 (Mo.App. W.D.2000).

These provisions do not conflict with each other, however. While Paragraph 2 provides a general analysis of the manner in which incentive compensation is to be paid, Paragraph 8 provides a qualification of the payments in the event of termination. Paragraph 8 incorporates those provisions of Paragraph 2 prescribing principles for determining whether an employee is entitled to incentive compensation but modifies the scope with which the analysis of incentive compensation is made. Rather than basing its determination on a consideration of the entire fiscal year, the time frames outlined in Paragraph 8 require incentive compensation to be determined by a much more limited review. These two provisions are harmonious, and there is no conflict between them. Because Dr. Dorsch’s termination as an employee of FMI is not disputed, the applicable contractual provision is Paragraph 8 of “Schedule A.”

The clear language of Paragraph 8 does not state, as Dr. Dorsch argues, that an employee is entitled to incentive compensation through the last day of his employment. Rather, the contract specifically states that the Board of Directors must determine whether the employee is entitled to such compensation as of the last day of the month of termination, and the Board must utilize principles similar to those used in determining incentive compensation under Paragraph 2. This incentive compensation, if any is found due, must be paid to the terminated employee within 30 days of the determination. The intent of this provision is to provide a means of evaluating the payment of incentive compensation when the corporation terminates an employee. It provides a means of expediting the procedures and ensures that the corporation will use the same methodology it would use if the employee remained with FMI.

While the application of these terms to Dr. Dorsch may seem harsh, certainly situations could occur in which this provision would be exceptionally beneficial. The basis of Dr. Dorsch’s claim is that FMI should have used a method of accounting that compensated him at the time that his services were rendered on behalf of the corporation. Nonetheless, the law presumes that Dr. Dorsch had knowledge of the contents of this contract when he signed it. See Binkley v. Palmer, 10 S.W.3d 166, 171 (Mo.App. E.D.1999). Absent a showing of fraudulent inducement, Dr. Dorsch is further presumed to have agreed to this form of expedited analysis.

Even if all of Dr. Dorsch’s evidence is presumed true, and all reasonable inferences are resolved in his favor, he has failed to prove FMI had breached the contract. FMI’s practice prior to Dr. Dorsch’s termination was to evaluate the performance of each doctor’s department at the end of the fiscal year. If the department showed a negative balance, then no incentive compensation was paid. Due to the precarious nature of incoming receipts, which frequently differed from those billed, the decision of whether a department was profitable at the end of a fiscal year was made without considering accounts receivable. Dr. Dorsch’s employment was terminated effective October 25, 1999, and evaluation for incentive compensation by the Board was done after October. At the end of October 1999, Dr. Dorsch’s department showed a negative balance. None of this evidence is in dispute.

Dr. Dorsch had been paid incentive compensation under the terms of “Schedule A” throughout his employment by FMI. The basis of the breach of contract claim is that because Dr. Dorsch continued to see patients through September, his unpaid accounts receivable should have been used to offset the negative balance. However, the nature of this claim is not that FMI’s Board of Directors failed to follow the same practice it had previously utilized to compute incentive compensation. Instead, the claim advanced is that continuing to use the same method following Dr. Dorsch’s termination unfairly compensated him for services provided to the corporation. In effect, Dr. Dorsch’s claim is that FMI breached its contract with him by expressly following it. By accepting the benefits of a contract, a party cannot escape those provisions of the agreement that prove non-beneficial to him. See Chagnon v. Shampaine Indus., 412 S.W.2d 519, 528 (Mo.App.1967). Furthermore, this issue is decidable as a matter of law and requires no weighing of the factual evidence presented to reach this outcome.

The trial court reached the correct ruling regarding Dr. Dorsch’s breach of contract claim. The ruling was decided as a matter of law, not as a question of fact, as Dr. Dorsch failed to make a submissible case of breach of contract. Consequently, it cannot be said that Dr. Dorsch has been prejudiced by the failure of the trial court to impanel a jury even though the claim as pled was a legal issue because he failed to make a submissable case.

IY. Prejudice

Despite the trial court’s use of the equitable clean-up doctrine, Dr. Dorsch was not prejudiced by the failure of the trial court to impanel a jury. Because both the fraud and breach of contract claims were properly decided as matters of law, had a jury been impaneled it would not have been permitted to decide the case. The failure to impanel a jury would have had no material effect on the outcome of the action. Consequently, Dr. Dorsch’s claimed points of error are denied.

V. Cross-Appeal

In the single point of error raised on cross appeal, FMI alleges that the trial court improperly awarded sanctions for failing to comply with discovery. Dr. Dorsch filed a motion for sanctions on April 19, 2002, alleging that FMI’s failure to produce documents requested in the Plaintiffs First Request for Production of Documents. In its order dated April 29, 2003, the trial court directed FMI to pay $10,000 for additional costs and expenses because FMI failed to provide complete discovery. The cross-appeal contends that FMI’s actions stated in the motion were non-sanctionable in that they violated no court order and were not contumacious behavior.

The decision of a trial court to impose sanctions is reviewed under an abuse of discretion standard. Long v. Cross Reporting Serv., 103 S.W.3d 249, 254 (Mo.App. W.D.2003). “An abuse of discretion occurs when the court’s order is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” Id. (quoting Brown v. Kirkham, 23 S.W.3d 880, 882-83 (Mo.App. W.D.2000)). The reviewing court should not decide whether it would have imposed the same sanctions, but whether the trial court could have reasonably concluded the sanctions were proper under the circumstances. Eidson ex rel. Webster v. Eidson, 7 S.W.3d 495, 499 (Mo.App. W.D.1999).

FMI was served with Dr. Dorsch’s original request for production of documents on October 16, 2000. A timely response was provided to Dr. Dorsch on November 20, 2000, which included objections to production of some of the requested documents. Two of the requests objected to were for patient information, which FMI objected to on the basis that the request included documents to which the physician/client privilege applied. In a letter to FMI’s counsel dated December 26, 2001, Dr. Dorsch requested additional documents that had been testified to in the deposition of Dr. Legler. Included in this letter were further requests for patient information and a zip code analysis conducted by FMI. Counsel for FMI responded in a letter dated February 21, 2002, and objected to the disclosure of the zip code analysis as work product. An identical objection was raised to other document requests. Dr. Dorsch had also requested further access to financial information. The financial information was objected to as irrelevant to the underlying breach of contract action.

Dr. Dorsch filed a “Golden Rule” letter on February 28, 2002. The letter emphasized that the patient information had not been objected to and not disclosed. Counsel for FMI responded on March 7, 2002. Responsive documents were provided, except for requests for financial information, which FMI characterized as “overbroad” and “irrelevant.” The zip code analysis was still objected to as “work product.” Counsel for Dr. Dorsch sent another letter on March 13, 2002, once again requesting the documents and notifying FMI that he intended to file a motion to compel.

Dr. Dorsch filed a motion to compel discovery on March 14, 2002. The Court held a conference on the motion on April 2, 2002, at which time the zip code analysis was released to Dr. Dorsch. No court order compelling the discovery was entered, and the record is void of the substance of this conference. Dr. Dorsch filed a motion for sanctions on April 19, 2002. The trial court’s order of sanctions was dated April 29, 2003.

The essence of the point on appeal is FMI’s cross-appellant claim that the rule explicitly requires objections be overruled before a litigant can be sanctioned for failure to provide requested documents. Alternatively, the cross appeal contends that a litigant’s actions must be contumacious before sanctions can be imposed.

Missouri Supreme Court Rule 61.01(d) grants trial courts discretion to impose sanctions against a party or the party’s attorney for failure to produce discoverable documents, which may include attorney’s fees incurred that are attributable to the failure to disclose. In relevant part, Rule 61.01(d) states,

If a party ... fails to produce documents and tangible things as requested under Rule 58.01, or timely files objections thereto that are thereafter overruled and the documents and things are not timely produced ... the court may, upon motion and reasonable notice to other parties, make such orders in regard to the failure as are just....

The intent of Rule 61.01(d) is evident. If a party fails or refuses to provide information requested and has not objected to the production of the items, the trial court may impose sanctions. If the party from whom items are sought in accordance with the rule files objections to the production of requested items, the court must rule on the objections. Should the court overrule or deny the objections, the objecting party is compelled to produce the requested items for discovery. Should the party opposing the discovery continue to decline to produce the requested items, the party seeking the discovery may formally seek the court’s order imposing sanctions against the noncompliant party. A trial court is granted broad discretion in controlling discovery, and this discretion extends to the choice of remedies in response to the non-disclosure of evidence. Wilkerson v. Prelutsky, 943 S.W.2d 643, 647-48 (Mo. banc 1997). This discretion is tempered in that sanctions should be limited to what is required to accomplish the purposes of discovery. See Fairbanks v. Weitzman, 13 S.W.3d 313, 327 (Mo.App. E.D.2000). Before sanctions may be imposed on a party for failing to engage in discovery, the trial court must determine that the party seeking sanctions has been prejudiced by the errant party’s non-compliance. Eidson, 7 S.W.3d at 499.

The record is void of essential information to permit proper review. Transcripts of the hearings regarding discovery disputes, if any hearings occurred, are not present in the record. Indeed, FMI claims that no formal hearing occurred that addressed their objections to the production of documents. No rulings are provided regarding the legitimate questions of law presented in the Respondent’s objections to discovery. The record does not contain any order compelling discovery. While the parties make comment in their briefs about behavior that may have been appropriately sanctioned, none of this is properly presented in the record on appeal. The record does not demonstrate support for the position that FMI failed to properly engage in the discovery process. Insufficient evidence exists from which to find that the trial court properly exercised its discretion in awarding sanctions. The point is granted.

The judgment of the trial court is affirmed as to both the fimid and breach of contract claims. The trial court’s order of sanctions is reversed.

LISA WHITE HARDWICK, P. J. and THOMAS H. NEWTON, J. concur.

      . Except where the actions of an individual named respondent/defendant are important to the decision, the acronym FMI will be used to denote both the corporation and the respondents collectively.

      . Trial testimony indicates that the term "incentive compensation,” used throughout FMI’s employment agreements with Dr. Dorsch, is synonymous with the term "bonus.”

      . A concern continues even after the Leonardi opinion — the practicality of efficiently managing a trial. When both legal and equitable issues are presented to a trial court, the court must still decide the practical considerations of which claims to try first, and the Missouri Supreme Court has sought to preserve the trial court's flexibility in this regard. See State ex rel. Leonardi, 137 S.W.3d at 474. This opinion affords deference to the trial court's decision that a jury would be impaneled only if the evidence presented so required.

      . The petition reads as follows:
      41. That when Defendants Legler and Markway represented to Plaintiff that his purchase of stock of Defendant Corporation was a means of compensating Plaintiff for the value, good will and build up of Defendant Corporation, said Defendants knew such representations to be untrue and false, knowing full well that the Corporate Stock Sale Agreement would not compensate Plaintiff for his hard work, good will and build up of business of Defendant Corporation in the event his employment terminated with Defendant Corporation.

      . Paragraph 4 of the Corporate Stock Sale Agreement reads
      "Should any of the events specified in paragraph 3 of this agreement [which includes termination] occur, the Corporation shall redeem and acquire all the common stock of the Corporation owned and held by Shareholder at the book value of said common stock as shown on the books and records of the Corporation's taxable fiscal year which immediately precedes the occurrence of said event.” [Brackets added]
      The same paragraph later indicates that, subject to further qualifications based upon taxes, profit sharing, and pension payments, “book value of the common stock of the Corporation as of the last day of the Corporation's taxable fiscal year immediately preceding the occurrence of the event shall be determined according to generally accepted accounting principles.”

      . Dr. Dorsch actually brought two separate breach of contract claims, one requesting equitable relief (an accounting) arising out of a claimed breach of the Corporate Stock Sale Agreement, and another praying for damages for a breach of the incentive compensation portion of the employment contract. Point five addresses only the legal claim, which is also the only claim implicated by the improper application of the equitable clean up doctrine.

      . While this testimony is present in the record, it was only allowed for a limited purpose. An objection was raised that the testimony was either parol evidence or a legal conclusion based upon Mr. Vianello’s interpretation of the contract. The trial court responded by stating "The Court takes into account the fact that this is for accounting purposes, and of course it is reserved for the Court to determine what the contract means.”

      . According to the testimony of Sandra McCormack, FMI’s practice manager, FMI collected more than $111,000 between September 1, 1999, and March 2002 from patients treated by Dr. Dorsch while he was employed by FMI.

      . Respondents have also argued that Dr. Dorschs right to a jury trial was waived. As previously discussed, trial counsel for Dr. Dorsch requested before trial that a jury hear all legal claims. Additionally, counsel raised the failure to impanel a jury again in his motion for a new trial. Having concluded that the failure to impanel in this case is not a reversible error, whether these actions were sufficient to preserve the issue for appeal need not be determined.

      . The documents requested in the letter were (1) information regarding the number of patients that had moved with Dr. Dorsch following his termination; (2) information regarding the approximate number of patients who visited FMI in October of 1999; (3) copies'of requisitions received by FMI to transfer patients to Dr. Dorsch; and (4) the zip code analysis. All of these were objected to generally as a product of the zip code analysis, which defense counsel claimed was work product.

      . Local Rule 33.5(4) of the Sixteenth Judicial Circuit requires that motions made pursuant to Supreme Court Rules 56-61 include an affidavit of the movant "[tjhat he has communicated in writing with the opposing party or his counsel in a sincere attempt to resolve the differences relating to such motion.”

      .The primary objection to the financial information was that it was irrelevant to the lawsuit. The requested documents pertained to the accounts receivable attributable to patients who visited FMI prior to Dr. Dorsch’s termination. FMI’s position was that the documents requested were in no way relevant to the breach of contract action, and therefore not reasonably calculated to lead to the discovery of admissible evidence in violation of Rule 56.01(b)(1).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Bobby McCULEY, Appellant.
    No. ED 83281.
    Missouri Court of Appeals, Eastern District, Division Two.
    Jan. 25, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 23, 2005.
    Application for Transfer Denied April 26, 2005.

      Gwenda R. Robinson, Assistant Public Defender, St. Louis, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Bobby McCuley (“Defendant”) appeals from the trial court’s judgment entered in the Circuit Court of the City of St. Louis upon his conviction by a jury of assault in the second degree, domestic assault in the first degree, two counts of armed criminal action and unlawful use of a weapon. Defendant contends that the trial court erred in: (1) submitting armed criminal action because assault in the second degree requires a mental state of “reckless” and armed criminal action requires a mental state of “purposefully or knowingly;” (2) accepting the jury’s guilty verdicts for assault in the second degree and unlawful use of a weapon because unlawful use of a weapon is a lesser-included offense of second degree assault; (3) denying Defendant’s motion for a mistrial based on a prospective juror’s comments during voire dire; and (4) sentencing Defendant to five years imprisonment for unlawful use of a weapon where the legislature amended Section 558.011, reducing the maximum punishment or penalty from five years to foui' years.

We have reviewed the briefs of the parties and the record on appeal and no error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would have no precedential value. We have, however, provided a memorandum for the use of the parties only setting forth the reasons for our decision.

We affirm pursuant to Rule 30.25(b).


text:
    Demetrius N. BATTLE, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 84294.
    Missouri Court of Appeals, Eastern District, Division Two.
    Jan. 25, 2005.
    Application for Transfer to Supreme Court Denied March 23, 2005.
    Application for Transfer Denied April 26, 2005.
    John William Simon, Clayton, MO, for appellant.
    Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J. and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Movant, Demetrius N. Battle, appeals from the judgment denying on the merits his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. The findings and conclusions of the motion court are based on findings of fact that are not clearly erroneous. No error of law appears. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order.

We affirm the judgment pursuant to Rule 84.16(b).


author: KATHIANNE KNAUP CRANE, Judge.

text:
    STATE of Missouri, Plaintiff/Respondent, v. Wayne SHOULTS, Jr., Defendant/Appellant.
    No. ED 84000.
    Missouri Court of Appeals, Eastern District, Division Two.
    Jan. 25, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 23, 2005.
    Application for Transfer Denied April 26, 2005.

      Craig Johnston, Assistant Public Defender, Columbia, MO, for appellant.
    Shawn L. Nacearato, Karen L. Kramer, Assistant Attorney General, Jefferson City, MO, for respondent.
   KATHIANNE KNAUP CRANE, Judge.

Defendant appeals from the judgment entered in a court-tried case finding him guilty of the class C felony of possession of methamphetamine, in violation of Section 195.202 RSMo (2000), and the class D felony of possession of anhydrous ammonia in a non-approved container, in violation of Section 578.154 RSMo (2000). The court sentenced him to three years imprisonment on each count, to be served concurrently. On appeal, defendant challenges the admission of the evidence seized from the automobile in which defendant was a passenger and defendant’s post-arrest statements. We affirm.

The sufficiency of the evidence is not in dispute. The convictions were based on defendant’s possession of a bag of 3.37 grams of methamphetamine inside a locked bag and a tank containing anhydrous ammonia while he was a passenger in another person’s automobile. The appeal involves the circumstances surrounding the traffic stop and subsequent search of the automobile.

On the afternoon of January 9, 2002 in St. Louis County, Missouri, Officer Andria Van Mierlo stopped an automobile in which defendant was a rear-seat passenger for an expired temporary tag in the rear window. She advised the car’s driver, Anthony Hoffman (the driver), of the purpose for the stop. The driver responded that he was aware of the expired tag and had already received a ticket for the violation. Officer Van Mierlo obtained identification from the driver, defendant, and a second passenger, and she returned to her vehicle for verification. Officer Van Mierlo returned to the automobile and asked the three occupants if they could “step out of the car” for her. At this point the car had been stopped for three or four minutes. She and the driver walked around to the rear of the car to look at the expired temporary tag, and either she or the driver removed it. She then gave the driver a verbal warning, since he had already received a ticket for the expired tag, returned his identification, and told him to properly register the car. The officer considered the three free to leave at that point. She did not specifically advise them that they could leave because no one brought it up.

Officer Van Mierlo then asked the driver how he knew defendant. The driver replied that defendant had been walking down the street and asked him for a ride. Officer Van Mierlo knew the response was false because she had seen the driver and defendant in the driveway of the second passenger in the car a short time before. She also spoke to defendant and the second passenger whose stories conflicted with the driver’s on this issue.

While she was talking to these individuals, two other officers arrived at the scene. Officer Van Mierlo asked the driver for permission to search his car. He was calm and cooperative and said, “Sure. Go ahead.” He and the second passenger stood back and “seemed fine.” She made this request about three minutes after asking the driver how he knew defendant. When Officer Van Mierlo began searching the automobile, defendant became very nervous, loud, belligerent, and combative, and began flailing his arms. One of the other officers told defendant to place his hands behind his back, and handcuffed him for safety.

During the search of the car, Officer Van Mierlo observed the top of a red metal tank with a valve on top and a box of aluminum foil inside an open canvas bag in the rear passenger compartment next to where defendant had been sitting. Based on her experience, Officer Van Mierlo thought the tank could be a container for anhydrous ammonia. When she removed the tank from the vehicle, the driver said, “That’s not mine.” He told her that defendant “put more stuff in the trunk.” When Officer Van Mierlo asked defendant what was in the tank, defendant replied that he did not know because he found it on the side of the road.

Officer Van Mierlo then asked the driver if she could go into the trunk. He consented in a manner she felt was encouraging. She found a padlocked leather bag in the trunk. Defendant said that it contained legal papers, but when Officer Van Mierlo picked it up, it sounded as if jars were inside the bag rather than papers. Another officer asked defendant for the key to the bag. After unlocking the bag, Officer Van Mierlo found a green container with some white powdery residue, a green container with a bag containing an off-white rocky-type substance that was consistent with methamphetamine, a white tube with some off-white powder inside, used coffee filters, batteries, a knife, a bottle of denatured alcohol, hemostats, ephedrine, a scale, and a glass jar containing a brownish liquid. After finding the brownish liquid, the officers contacted the drug unit. Because these are all items used in the production of methamphetamine, Officer Van Mierlo arrested defendant for the production of methamphetamine.

Detective Joseph Smith and Sergeant Merly, both of the Drug Unit, and the Lemay Fire Department all reported to the scene. Because he could smell ammonia, Det. Smith tested the tank with a Drager test kit, which positively indicated the presence of anhydrous ammonia. He evacuated the area, and emptied the cylinder. Det. Smith determined that the tank did not comply with any state or federal law for the storage of anhydrous ammonia.

At the police station, Detective Smith advised defendant of his Miranda rights and interviewed him. Although he admitted the bag and its contents were his, defendant maintained that he had no idea what was in the tank because he found it on the side of the road.

At trial, the parties stipulated that there was a bag containing 3.37 grams of methamphetamine found in a green tube in the locked bag.

Prior to trial, defendant filed motions to suppress all items seized and all statements made by the defendant after the stop. The trial court denied defendant’s motions to suppress. During trial defendant renewed his objection to all items obtained in the search of the car. Defendant also objected to the admission of defendant’s statements to Det. Smith. He did not object to the statements he made to Officer Van Mierlo.

DISCUSSION

For his sole point, defendant contends that the trial court erred in overruling his motion to suppress and in admitting the evidence seized from the driver’s vehicle and defendant’s post-arrest statements because the officer did not have the requisite reasonable suspicion to continue the detention and questioning after she gave the driver a warning, the continued questioning was not consensual, the driver could not consent to a search of defendant’s belongings, defendant’s consent to the search of his belongings was not voluntary, and the automobile exception did not authorize the search of defendant’s belongings.

a. Standing

Since he did not own the vehicle, defendant had no standing to challenge the search of the vehicle on Fourth Amendment grounds. State v. Kovach, 839 S.W.2d 303, 308-09 (Mo.App.1992). However, he could challenge the admission of evidence obtained as a result of his own detention, if illegal. Id. at 312.

b. Standard of Review

We review the trial court’s ruling on a motion to suppress to determine if there is sufficient evidence to support the ruling based on the complete record before the trial court. State v. Slavin, 944 S.W.2d 314, 317 (Mo.App.1997). We consider both the suppression hearing record and the trial record. State v. Deck, 994 S.W.2d 527, 534 (Mo. banc 1999). We will reverse the ruling if it is clearly erroneous, that is, if the court is left with a definite and firm impression that a mistake has been made. State v. Milliorn, 794 S.W.2d 181, 183 (Mo. banc 1990). The weight and credibility of the witnesses are matters for the trial court’s determination. State v. Burkhardt, 795 S.W.2d 399, 404 (Mo. banc 1990). We view the facts and the reasonable inferences therefrom in the light most favorable to the trial court’s ruling. State v. Martin, 79 S.W.3d 912, 915-16 (Mo.App.2002).

The Fourth Amendment to the United States Constitution guarantees the right of all citizens to be free from unreasonable searches and seizures. U.S. Const, amend. IV. “A routine traffic stop based on the violation of state traffic laws is a justifiable seizure under the Fourth Amendment.” State v. Barks, 128 S.W.3d 513, 516 (Mo. banc 2004). “ ‘[S]o long as the police are doing no more than they are legally permitted and objectively authorized to do, [the resulting stop or] arrest is constitutional.’ ” Id. (quoting Slavin, 944 S.W.2d at 317).

However, the fact that police may detain a person for a routine traffic stop does not justify indefinite detention. Id. “The detention may only last for the time necessary for the officer to conduct a reasonable investigation of the traffic violation ....” Id. (citing State v. Woolfolk, 3 S.W.3d 823, 828 (Mo.App.1999)). A reasonable investigation of a traffic violation may include 1) asking for a driver’s license and automobile registration, 2) requesting the driver to sit in the patrol car, and 3) asking the driver about his destination and purpose. Barks, 128 S.W.3d at 517. After the warning was given, the driver and his passengers should have been permitted to go unless Officer Van Mierlo had an objectively reasonable suspicion that the driver or passengers were involved in criminal activity based on specific, articulable facts. Id.

In this case the initial traffic stop was completed once the officer gave the warning and returned the driver’s license to the driver. See id.; see also Woolfolk, 3 S.W.3d at 829. At this point there was no evidence that the officer had developed articulable facts that would have supported detaining the driver for further inquiry. Barks, 128 S.W.3d at 517. The answers given to Officer Van Mierlo’s determination after the completion of the stop and the suspicions based thereon are “irrelevant to the question of whether specific, articulable facts supported a reasonable suspicion of criminal activity and provided a justification for further questioning once the traffic stop was completed.” Id. (quoting Woolfolk, 3 S.W.3d at 829).

Defendant next contends that the detention did not turn into a consensual encounter because a reasonable person in the driver’s position would not have felt free to leave. A warrantless search is valid if it is made with consent that is freely and voluntarily given. State v. Faulkner, 103 S.W.3d 346, 355 (Mo.App.2003); State v. Smith, 966 S.W.2d 1, 7 (Mo.App.1997). Further questioning following the conclusion of a traffic stop is allowed if the encounter has become consensual. State v. Scott, 926 S.W.2d 864, 869 (Mo.App.1996); see also State v. Sullivan, 49 S.W.3d 800, 815 (Mo.App.2001). “ ‘So long as the person is free to leave, the officer can talk to him, and is free to ask whether he has contraband on his person, or in his car, or in his residence.’ ” Barks, 128 S.W.3d at 517 (quoting Woolfolk, 3 S.W.3d at 830).

Although no litmus test exists for determining whether continued questioning is consensual or constitutes a seizure of the person questioned, our courts have found guidance in United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497, reh’g denied, 448 U.S. 908, 100 S.Ct. 3051, 65 L.Ed.2d 1138 (1980); Scott, 926 S.W.2d at 869. Mendenhall held there may be a seizure of the person when there is the “threatening presence” of multiple officers, if the officer displayed a weapon, whether the officer touched the suspect, or if the officer used “language or tone of voice indicating that compliance with the officer’s request might be compelled.” An officer does not need to inform a suspect that he or she is free to leave the scene in order for the encounter to become consensual. Scott, 926 S.W.2d at 870; see also Ohio v. Robinette, 519 U.S. 33, 35, 117 S.Ct. 417, 419, 136 L.Ed.2d 347, 352 (1996); State v. Day, 87 S.W.3d 51, 56 (Mo.App.2002). However, that option must be apparent from the circumstances. Barks, 128 S.W.3d at 517.

If the person has not been unlawfully seized, an officer may ask for permission to search; if consent is given without coercion, the subsequent search is not prohibited by the Fourth and Fourteenth Amendments. Woolfolk, 3 S.W.3d at 831. The state has the burden of showing that consent was freely and voluntarily given. Sullivan, 49 S.W.3d at 813. It does not satisfy this burden merely by showing submission to lawful authority. Woolfolk, 3 S.W.3d at 831. “Consent is freely and voluntarily given if, considering the totality of all the surrounding circumstances, ... the objective observer would conclude that the person giving consent made a free and unconstrained choice to do so.” Faulkner, 103 S.W.3d at 355 (quoting State v. Hyland, 840 S.W.2d 219, 221 (Mo. banc 1992)). This determination involves a consideration of “a number of factors including, but not limited to, the number of officers present, the degree to which they emphasized their authority, whether weapons were displayed, whether the person was already in custody, whether there was any fraud on the part of the officers, and the evidence of what was said and done by the person consenting.” Sullivan, 49 S.W.3d at 813 (quoting State v. Taylor, 917 S.W.2d 222, 224 (Mo.App.1996)). The officer is not required to tell the suspect he or she can refuse to give consent to search. Hyland, 840 S.W.2d at 221; Woolfolk, 3 S.W.3d at 831.

The cases on which defendant relies contained evidence of coercion that was not present in this case. In Barks, the officer had positioned himself at the driver’s side window, was looking down at Barks, and had a lengthy conversation while his emergency lights remained activated. 128 S.W.3d at 516-17. In Woolfolk, the driver was repeatedly requested to allow the officer to search the car, the driver originally told the officer he did not want the car searched, and the officer made the request while he had the driver leaning up against the car. 3 S.W.3d at 832. In State v. Taber, 73 S.W.3d 699 (Mo.App.2002), defendant was stopped, questioned, and placed in a patrol car. Id. at 702-03. Likewise, the driver in Martin was placed in the officer’s patrol car. 79 S.W.3d at 917. In State v. Leavitt, 993 S.W.2d 557, 563 (Mo.App.1999), the driver was “ordered” to show the officer the contents of her car.

On the other hand, the evidence in this case supports a finding that the driver’s continued conversation with the officer after the completion of the traffic stop was consensual and that the driver freely and voluntarily consented to the search of his automobile. At the time of the questioning, the officer and the driver were standing outside the driver’s vehicle, looking at the car. There was no “threatening presence.” Although three officers were on the scene, the two additional officers were observing the two passengers, and only Officer Van Mierlo was talking to the driver. See Sullivan, 49 S.W.3d at 814. She did not display her weapon or touch the driver. She testified that she did not use coercive language or tone of voice. See e.g. Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877. There was no evidence that consent was given under fraud or duress. Day, 87 S.W.3d at 55-6. The time that elapsed from the stop to the request was approximately six minutes. See State v. Peterson, 964 S.W.2d 854, 857 (Mo.App.1998); State v. Lord, 43 S.W.3d 888, 892 (Mo.App. S.D.2001). As in Lord, the driver described a “benign, non-coercive exchange” in which the driver “readily volunteered information” and consented to the officer’s requests. 43 S.W.3d at 892.

The facts in this case clearly place it within those cases that have affirmed a finding of no illegal seizure or no indicia of coercion. Day, 87 S.W.3d at 56; Sullivan, 49 S.W.3d at 813; Scott, 926 S.W.2d at 869; Peterson, 964 S.W.2d at 857; see also Lord, 43 S.W.3d at 892 (reversal of order sustaining motion to suppress).

The open bag containing the tank was inside the car. Both it and the tank were in plain view. The seizure of the bag and its contents was within the consent to search given by the driver and not illegal.

Defendant last contends that, even if there was no illegal detention leading up to the discovery of the evidence, the search of his own belongings inside the driver’s trunk was illegal. Defendant argues that the driver did not have authority to consent to a search of defendant’s belongings. We disagree that the search was illegal.

Officer Van Mierlo discovered the canvas bag containing the air tank and aluminum foil in the back seat of the automobile, where defendant had been sitting, and was told that it was defendant’s. The driver also told her that defendant had “put more stuff in the trunk.” She had probable cause to believe that other drug paraphernalia or illegal substances would be in the bag in the vehicle’s trunk. State v. Lane, 937 S.W.2d 721, 722 (Mo. banc 1997); Kovach, 839 S.W.2d at 312, on which defendant relies, is inapposite.

For all of the above reasons the seizure of the evidence was not illegal nor the result of an illegal detention of defendant. Sufficient evidence in the record before the trial court supports its ruling. The trial court did not clearly err in failing to suppress the two bags seized from the automobile and their contents. Accordingly, defendant’s post-arrest statements were not inadmissible as “fruit of the poisonous tree.” Point one is denied.

The judgment of the trial court is affirmed.

PATRICIA L. COHEN, P.J. and ROBERT G. DOWD, JR., J., concur.

      . Carrying a holstered weapon is not considered a display of a weapon. Scott, 926 S.W.2d at 869.


author: GEORGE W. DRAPER, III, Chief Judge.

text:
    THE MASONIC TEMPLE ASSOCIATION OF ST. LOUIS, Appellant, v. COMPASS SQUARE & STAR, INC., et al., Respondents.
    Nos. ED 85210, ED 85320.
    Missouri Court of Appeals, Eastern District, Division Five.
    Jan. 25, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 23, 2005.
    Application for Transfer Denied April 26, 2005.

      James A. Stemmier, St. Louis, MO, for Appellant.
    Alan E. Dewoskin, Clayton, MO, for Respondent.
   GEORGE W. DRAPER, III, Chief Judge.

On the petition of The Masonic Temple Association of St. Louis (Temple), the trial court appointed a receiver to collect and manage the funds of Compass Square & Star, Inc. (Charity). Temple has filed an appeal from two orders in this matter directing the receiver to make attorneys’ fees payments of Charity and its directors and officer. We dismiss the appeal.

This is the third time these parties have appeared before this Court in this matter. In a previous appeal, this Court determined that The Masonic Temple Association of St. Louis (Temple) had standing to sue Compass Square & Star, Inc. (Charity). The Masonic Temple Ass’n of St. Louis v. The Society for the Preservation of the Masonic Temple, 70 S.W.3d 24, 26-27 (Mo.App. E.D.2002). Recently, Charity appealed from a judgment awarding declaratory relief in the form of a resulting trust in favor of Temple, appointing a receiver to collect and manage the funds donated to Charity, and granting Temple’s petition for accounting. The Masonic Temple Ass’n of St. Louis v. Compass Square & Star, Inc., 151 S.W.3d 67 (Mo.App. E.D., 2004). We affirmed the trial court’s judgment. Id.

While the appeal was pending in that case, the trial court entered two orders. The first order was entered on August 18, 2004, and made various rulings, including an order directing the receiver to pay $1,000 to each defendant for deferment of attorneys’ fees. The second order was entered on October 5, 2004, and directed the receiver to pay the fees and expenses of Charity and its directors and officers that they incurred to defend another suit, cause No. 04CC-002667. Temple appeals from these two orders in two separate appeals, which were consolidated.

Before addressing the merits of an appeal, this Court has a duty to examine its jurisdiction sua sponte. Government e-Management Solutions, Inc. v. American Arbitration Ass’n, Inc., 142 S.W.3d 857, 860 (Mo.App. E.D.2004). The orders in question are interlocutory, which raises a question of whether they are ap-pealable. Unless an interlocutory order falls within those narrow exceptions provided by statute, a prerequisite to appellate review is that there must be a final judgment. Section 512.020(5), 2004 Mo. Legis. Serv. 168; Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997). These orders do not fall within any of the enumerated exceptions and are not appealable as orders “refusing to revoke, modify, or change an interlocutory order appointing a receiver or receivers.” Section 512.020(2). Therefore, they are only appealable if they are final judgments.

A final judgment normally resolves all claims in a case and leaves nothing for future determination. Gibson v. Brewer, 952 S.W.2d at 244. Where no such final judgment exists, the appeal should be dismissed. Committee For Educ. Equality v. State, 878 S.W.2d 446, 450 (Mo. banc 1994). The orders in question do not resolve all of the claims in the case. Indeed, the orders do not even resolve one distinct claim in the case. Rather, they are miscellaneous interlocutory orders regarding the receiver’s powers and directing the receiver to make various payments. “For a judgment to be final and appealable, it must be one that finally disposes of at least one claim on the merits and not a ruling on miscellaneous issues that does not resolve at least one claim.” Bryant v. City of University City, 105 S.W.3d 855, 856 (Mo.App. E.D.2003). The orders are interlocutory and are not ap-pealable.

We directed the appellant to show cause why we should not dismiss this appeal for lack of a final, appealable judgment. In response, Temple has filed a copy of an “Order and Judgment” dated December 6, 2004 in which the trial court amends its prior orders by designating them as “judgments.” However, while this does resolve the issue that the orders were not denominated judgments as required by Rule 74.01(a), this fails to resolve the issue that there is no final judgment from which an appeal can be taken. Without a final judgment, this Court has no jurisdiction to proceed with appellate review.

Temple further argues that these orders are appealable as “any special order after final judgment.” Section 512.020(5). However, the provision regarding special orders after final judgment applies only to those orders attacking or aiding the enforcement of a judgment after it has become final. A.L. v. Peeler, 969 S.W.2d 262, 265 (Mo. App.E.D. 1998). Examples of “any special order after final judgment” include an order overruling a motion to quash an execution, an order reviving a judgment and lien after the judgment creditor obtained a writ of scire facias pursuant to prior Rule 74.36, and a final judgment entered in a garnishment action. Helton Const. Co., Inc. v. High Point Shopping Center, Inc., 838 S.W.2d 87, 91 (Mo. App. S.D. 1992). The case law makes it clear that a “special order” arises only when a party seeks to enforce a final judgment or prevent the enforcement of a final judgment. In this case, the orders in question do not attack a judgment, aid in the enforcement of a judgment, or prevent the enforcement of a final judgment.

The appeal is dismissed for lack of a final, appealable judgment.

LAWRENCE G. CRAHAN, J., and GLENN A. NORTON, J., concur.


text:
    William FEDERER, Plaintiff/Appellant, v. Richard A. GEPHARDT, et al., Defendants/Respodents.
    No. ED 84697.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 1, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 23, 2005.
    Application for Transfer Denied April 26, 2005.
    Bradley S. Dede, Clayton, MO, and Paul J. Orfanedes, Washington, D.C., for appellant.
    Elizabeth C. Carver, St. Louis, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

William Federer (“Federer”) appeals from the judgment of the trial court dismissing his petition. Federer contends that the causes of action in his petition were timely filed within the respective statute of limitation for each cause and that his petition stated claims upon which relief could be granted.

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).


author: GLENN A. NORTON, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Vincent GREER, Appellant.
    No. ED 83662.
    Missouri Court of Appeals, Eastern District, Division Five.
    Feb. 1, 2005.
    Application for Transfer to Supreme Court Denied March 23, 2005.
    Application for Transfer Denied April 26, 2005.

      Craig Johnston, Columbia, MO, for appellant.
    Deborah Daniels, Linda Lemke (co-counsel), Jefferson City, MO, for respondents.
   OPINION

GLENN A. NORTON, Presiding Judge.

Vincent Greer appeals the judgment entered on his convictions for murder in the first degree, assault in the first degree and two counts of armed criminal action. We affirm.

I. BACKGROUND

One morning shortly after his fifteenth birthday, Greer hid behind a sofa in the basement. When his father came into the room, Greer shot him with a semi-automatic rifle, causing him serious injury. As Greer’s mother started to come downstairs, his father yelled for her to go back upstairs and call 911. Greer chased after her, still holding the gun. When he got to the top of the stairs, the door was locked. He ran back down the steps, out the garage door and up onto the deck — stopping to dislodge a bullet that had jammed the gun — and then broke the glass on the back door. Greer walked into the kitchen, saw his mother was hiding behind a bar stool and shot her in the back of the head. She later died from the wound. Greer’s father came upstairs, got the gun from Greer and held him down until police arrived.

Greer was arrested, provided a Miranda warning and transported to the juvenile detention center. Greer’s uncle was brought in and was present when the deputy juvenile officer again advised Greer of his rights under Miranda and of his rights under the state juvenile code. Greer waived his rights and confessed to shooting both of his parents. After Greer was certified to stand trial as an adult, Greer again waived his rights and made similar statements. Greer’s pre-trial motion to suppress all of these statements was denied, as were his objections to their admission at trial.

The jury found Greer guilty and assessed punishment as follows: life imprisonment without probation or parole for his mother’s murder; life imprisonment on the armed criminal action count associated with the murder; ten years’ imprisonment for assaulting his father; and three years’ imprisonment on the armed criminal action count associated with the assault. The court sentenced Greer to these terms of imprisonment, ordering the sentence on the first armed criminal action count to run consecutively to the sentence for murder. The sentences for the assault and associated armed criminal action count were ordered to run concurrently with the other sentences. After an earlier trial on these charges, the court had ordered the sentences on all four counts to run concurrently. The court noted that its decision to run the sentences the way it had after this re-trial was based on the fact that the second jury had imposed “a considerably greater sentence” on the first armed criminal action count than had the first jury— life imprisonment versus twenty years’ imprisonment — and “a considerably lesser sentence” on the second armed criminal action count.

II. DISCUSSION

A. Deliberation

Greer argues that the trial court erred in overruling his motion for judgment of acquittal at the close of all of the evidence because the State failed to prove that he deliberated about killing his mother. We disagree.

When reviewing the sufficiency of the evidence to support a criminal conviction, this Court does not act as a “super juror” with veto powers. State v. Chaney, 967 S.W.2d 47, 52 (Mo. banc 1998). We give great deference to the jury and do not ask ourselves whether we believe that the evidence at trial established guilt beyond a reasonable doubt. State v. Cartwright, 17 S.W.3d 149, 152 (Mo.App. E.D. 2000). Instead, the question is whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Chaney, 967 S.W.2d at 52. In answering that question, we view the evidence in the light most favorable to the verdict, give the State the benefit of all reasonable favorable inferences and disregard all contrary evidence and inferences. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993).

Murder in the first degree requires proof of deliberation. Section 565.020.1 RSMo 1994. “Deliberation” is “cool reflection for any length of time no matter how brief.” Section 565.002(3). Ordinarily, deliberation is proved by the circumstances surrounding the crime; it may be inferred, but must be proven beyond a reasonable doubt. State v. Glass, 136 S.W.3d 496, 514 (Mo. banc 2004). “Proof of deliberation does not require proof that the defendant contemplated his actions over a long period of time, only that the killer had ample opportunity to terminate the attack once it began.” State v. Johnston, 957 S.W.2d 734, 747 (Mo. banc 1997) (internal citations omitted).

The evidence to support the jury’s finding of deliberation was substantial. First, Greer encountered several roadblocks as he chased after his mother, which provided him ample opportunity to terminate the attack. The basement door was locked, so he went outside and around to the back of the house. His gun was jammed, but he dislodged the bullet and continued on into the kitchen. The mere fact that it took some amount of time for Greer to reach his mother before he shot her supports the reasonable inference that he reflected for at least that time. See State v. Clemmons, 753 S.W.2d 901, 906 (Mo. banc 1988) (evidence that defendant took a few steps toward victim before stabbing victim gave rise to reasonable inference that defendant reflected for at least the amount of time it took to reach victim).

Second, Greer’s statements to the police supported a finding that he had deliberated about the murder. Greer claimed at various points during the interview that he did not know what made him shoot his parents, that he was not thinking anything when he shot his mother, that he “just snapped” and that he could not remember everything that happened. But he also stated that he thought about running after he shot his father, “[b]ut then I got inside and I was like I should get them before they call the cops.” Greer also admitted that he had thought about shooting his parents before:

Q: Okay. Had you thought about doing this like last night or just something this morning?
A: Well, there had been thoughts of it, not, I never thought I was serious and then whenever I started really thinking about it I was like, how could you be so stupid.
Q: Right. And that’s today, you’re thinking about that.
A: And last night.
Q: Last night.
A: Thinking about it, you know.
Q: Uh huh.
A: How could I be stupid enough to think about it.
⅜ ⅜ ⅝ ⅜
Q: What made you think ... what made you think about this? I mean, did you see something on TV or did you finally say I’ve had it or?
A: Well, actually the first thought I had about it was yesterday in school. One of my teachers was telling us about how he used to be a DJO. He used to track down juveniles that killed their parents and stuff.
Q: Uh huh.
A: I just got a weird thought in my head.
Q: Right.
A: And I couldn’t get it out.
Q: You went to bed last night even thinking about it?
A: I didn’t hardly sleep at all.
Q: Didn’t hardly sleep. So you were really thinking about it then?
A: Uh huh.

The State is entitled to the reasonable inference that by “it” Greer meant killing his parents.

Greer argues that there is other evidence that supports a finding that Greer did not deliberate. He points to two psychologists’ conclusions that Greer could not have deliberated on this murder and to his father’s testimony that when he came into the kitchen after Greer’s mother had been shot, Greer “looked like he was in a world of his own” and had a “glazed look.” The jury was free to disbelieve this testimony, however, and to the extent this evidence is contrary to the jury’s verdict, we are to disregard it in our review of the sufficiency of the evidence. See State v. Porter, 640 S.W.2d 125, 127 (Mo. banc 1982); Grim, 854 S.W.2d at 405.

Contrary to Greer’s contentions, we need not resort to speculation to find sufficient evidence of deliberation in this case. The trial court did not err in overruling his motion for judgment of acquittal. Point denied.

B. Juvenile Confession

Greer argues that the court plainly erred in denying his motion to suppress and admitting at trial his pre-certification confession because the statements were involuntary and the waiver of his rights to counsel and to remain silent was not knowing or intelligent. We disagree.

After an individual has been advised of his rights in accordance with Miranda, no statement he makes may be used against him unless he makes a knowing, intelligent, understanding and voluntary waiver of those rights. State v. Pierce, 749 S.W.2d 397, 402 (Mo. banc 1988). The State carries the burden of proving that the confession was voluntary. State v. Jones, 699 S.W.2d 525, 527 (Mo.App. E.D.1985). We view the evidence pertaining to the admissibility of the confession in the light most favorable to the trial court’s ruling. State v. Simmons, 944 S.W.2d 165, 173 (Mo. banc 1997). Conflicts in the evidence are for the trial court to resolve, and this Court defers to the trial court’s superior position from which to assess credibility. Id.

Whether a confession is voluntary depends on “whether the totality of the circumstances created a physical or psychological coercion sufficient to deprive the defendant of a free choice to admit, deny or refuse to answer the examiner’s questions.” Id. There is no evidence of physical coercion in this case. In determining whether a confession resulted from improper mental coercion, we consider the defendant’s age, experience, intelligence, gender, education and any infirmity or unusual susceptibility to coercion, but no one factor is dispositive. Id. Similarly, whether a waiver is knowing and intelligent depends on the facts and circumstances of the case, and our review is based on the totality of the circumstances, taking into account the background, experience and conduct of the defendant. State v. Bucklew, 973 S.W.2d 83, 90 (Mo. banc 1998).

Although juveniles may voluntarily waive their rights, courts emphasize that a juvenile’s confession requires “special caution.” Pierce, 749 S.W.2d at 402; see also generally Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948) and Gallegos v. State, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962). The juvenile’s age is not a controlling factor, but it is a significant consideration among the totality of the circumstances. See Pierce, 749 5.W.2d at 402. Other factors include the defendant’s psychological age, previous court experience, education, intelligence and unusual susceptibility to coercion. State v. Gray, 100 S.W.3d 881, 886 (Mo.App. S.D.2003). We must consider not just whether the confession was coerced, “ ‘but also that it was not the product of ignorance of rights or of adolescent fantasy, flight or despair.’ ” Pierce, 749 S.W.2d at 402 (quoting Application of Gault, 387 U.S. 1, 55, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967)).

The totality of the circumstances here show that Greer’s waiver was knowing and intelligent and his confession voluntary, even in light of his age. Greer does not dispute that the deputy juvenile officer read Greer each of his rights. Namely, Greer was told that he had the right to have a parent, guardian, or custodian present; that he had the right to remain silent; that he had the right to counsel; that anything he said would be used against him in juvenile court; that he could be certified to stand trial as an adult; and that, if certified, anything he said would be used against him in adult court. After each right was read to him, Greer explained it back to the juvenile officer in his own words and indicated that he understood each. Greer initialed each right as set out on the waiver form and signed the form, indicating that he understood the rights and was willing to make a statement. His uncle signed the form, indicating that the waiver of rights was presented to Greer in his presence; the juvenile officer and the interrogating officers also signed the form, attesting that Greer had been read the waiver of rights, understood it and affirmed his signature in their presence. These facts show that his waiver was knowing and intelligent. See State v. Gilbert, 103 S.W.3d 743, 750-51 (Mo. banc 2003) (knowing and intelligent waiver is normally shown by testimony that defendant was read rights, asked whether understood and gave affirmative response). Moreover, it is undisputed that Greer was of at least average intelligence, read along and paid attention during the reading and waiving of his rights and that he was calm, quiet, polite and coherent during the interview. He responded to questions appropriately and seemed to understand what was happening. This evidence belies Greer’s claims that his age, depression, shock from the incident and inexperience with the court system affected his ability to understand his rights, knowingly and intelligently waive them and voluntarily make a statement.

Greer contends that questioning by an officer at the crime scene “foreshadowed” later errors during the interrogation at the juvenile detention center. At the scene, Greer was advised of his rights, and the officer gathered some background information (name, date of birth, address, phone number, etc.). The officer asked some additional questions even after learning that Greer was a juvenile, relating to securing the home (who else was there and whether there were any other weapons in the house) and determining the extent of injuries to Greer and others (including how blood, also observed on Greer, had gotten in Greer’s bedroom). We find nothing about this initial questioning coercive or detractive from the voluntariness of Greer’s later confession. Greer also suggests that he was misled because he was only told that the offense was assault when the officers should have known that his mother was about to die from the wound Greer inflicted and the charge, therefore, was likely to be murder. At the time of questioning, however, the officers believed mother was alive, and, thus, informing Greer that the offense was assault was not a coercive tactic.

Greer’s knowing and intelligent waiver included a waiver of his statutory right to be advised that he has “the right to have a parent, guardian or custodian present during questioning.” See section 211.059.1(3). After the juvenile officer advised Greer of his right to have a parent, guardian, or custodian present, Greer responded that he understood that he had the right to have someone present and that his uncle was there. Greer’s response indicates that he waived the right to have his parent, guardian, or custodian present or felt that the right was satisfied by his uncle’s presence. Now Greer claims that his uncle was not a sufficiently friendly adult because he did not believe he was there to advise or protect Greer and did not even speak to Greer until the end of the interrogation. This argument assumes that, despite having waived the statutory right to have a parent present, Greer still was entitled to confer with some other friendly adult. Even if that is true, his uncle’s presence sufficed.

Section 211.059.1(3) “is a legislative recognition of what Missouri courts have long asserted, namely juveniles may not be able to assess them rights adequately; consequently, they must be allowed to confer with a friendly adult.” Gray, 100 S.W.3d at 889 (internal quotation marks, citations and brackets omitted). This stems from the notion that an adult friend or lawyer can give a juvenile “the protection which his own immaturity could not” and put the juvenile on “less unequal footing with his interrogators.” Gallegos, 370 U.S. at 54, 82 S.Ct. 1209. “[A]n adult’s presence helps to insure that the juvenile understands the consequences of his confession and his rights.” State v. Barnaby, 950 S.W.2d 1, 3 (Mo.App. W.D.1997); see also Jones, 699 S.W.2d at 527-28; State v. Burris, 32 S.W.3d 583, 589 (Mo.App. S.D.2000). The juvenile is not, however, entitled to get any particular advice from the adult. See Burns, 32 S.W.3d at 589; see also Barnaby, 950 S.W.2d at 3. Rather, this right is usually satisfied when the adult is present during the reading of rights and questioning and is not antagonistic to the child’s interest, such that the juvenile could look to that person for advice.

For instance, in Gray, the juvenile defendant claimed that his confession was involuntary because, although his mother was present during the interrogation, he was not told that she was willing to help him. 100 S.W.3d at 889. The court found, however, that he had “ample opportunity to confer” with his mother at their home before the challenged interrogation (after having been initially questioned by the police) and again after his mother entered the inteiTogation room. Id. Likewise, in Bamaby, the juvenile defendant contended that, although his mother was present during the interrogation, she was not “friendly” because she did nothing to protect his rights and, thus, her presence was a “mere formality.” 950 S.W.2d at 3. But the court found that the officers did nothing to exclude the mother from the proceeding and, in fact, encouraged her participation, making certain she understood that the warnings had been given. Id. at 4. Although the mother only half-heartedly acknowledged that she understood those rights and demonstrated that she was not a “willing participant,” the confession was not involuntary. Id. “Nothing in the record indicates that [the juvenile] was precluded by the authorities from conferring with his mother.” Id. In these cases, it was irrelevant that the juvenile and adult did not take advantage of the opportunity to confer or that the adult did not actually provide the juvenile any advice. Rather, it is the opportunity for the juvenile and adult to confer that is critical. That opportunity was provided to Greer.

Moreover, the record reflects that Greer’s uncle was “friendly” to Greer. A “friendly adult” is one whose mindset is not antagonistic or adverse to the juvenile. Burris, 32 S.W.3d at 589. Naturally, the adult must also have some relationship with the juvenile — that is, the adults must know the child well enough that it is possible for him to offer the child “meaningful advice” or “concerned help” should the need arise. State v. Tolliver, 561 S.W.2d 407, 409 (Mo.App.1977) (juvenile officers with no information about juvenile or circumstances of alleged crime were not considered “adult friends”). Uncle testified that he was married to Greer’s father’s sister and that he had known Greer since he was born. When the officer at the hospital was looking for an adult relative to attend Greer’s interrogation, the uncle volunteered. Despite indicating that he “had no feelings one way or another” as to whether he was there to protect Greer, did not understand that he was there to advise Greer and did not intend to protect Greer, he also stated that he was not angry at Greer about the shootings. Uncle was in a state of shock from the incident and said he had no feelings at all. No hostility was observed between Greer and his uncle, and they were seen greeting each other “as friends.” Greer apparently believed that his uncle was friendly towards him because he indicated that his uncle was there instead of a parent and did not object to his presence. Moreover, in the uncle’s observation, Greer did nothing that would have led him to believe that Greer did not understand what was going on, implying that he never saw the need to advise Greer. Although he also admitted that it was possible he had told someone something to the effect that if Greer ever “got out,” he should never come around his home, we defer to the trial court’s resolution of this and other conflicts in evidence and to its credibility determinations. See Simmons, 944 S.W.2d at 173. This record supports a conclusion that the uncle was not antagonistic towards or adverse to Greer’s interest. His presence, therefore, provided Greer an opportunity to confer with a friendly adult.

The presence or absence of a friendly adult is just one of the factors we consider when reviewing the totality of the circumstance, although it is one “of great importance.” Tolliver, 561 S.W.2d at 409. The totality of the circumstances of this case are wholly and clearly distinguishable from those circumstances attending the confessions of juveniles in cases like Haley, Gallegos and Pierce. The children in those cases were held or questioned without communication with any adult for lengthy periods until they confessed, and their confessions were, therefore, deemed involuntary. See Haley, 332 U.S. at 598, 68 S.Ct. 302 (fifteen year-old was questioned through the night by relays of police without a friend or lawyer present); Gallegos, 370 U.S. at 54, 82 S.Ct. 1209 (fourteen year-old was detained five days without access to his mother, lawyer, or adult ad-visor); Pierce, 749 S.W.2d at 403 (fifteen year-old, arrested as adult and having initially asserted right to remain silent on advice of counsel, was held for several days without communication with an attorney or family member, “sobbing in apparent fear and despair”). Here, the interrogation lasted only a couple of hours, Greer was not prevented access to his family and he had his uncle with him the entire time. These facts, plus the evidence discussed above tending to show that Greer understood everything that was happening, demonstrates that Greer knowingly and intelligently waived his rights and confessed voluntarily. It was not error, therefore, for the court to deny his motion to suppress and admit this confession.

Point denied.

C. Sixth Amendment Right to Counsel

Greer argues that his Sixth Amendment right to counsel was violated because the officers who interviewed him after he was certified knew that he had a lawyer and, therefore, the waiver of his rights during that interview was ineffective. This claim also was not preserved for review, but we find no error, plain or otherwise, because Greer’s Sixth Amendment right to counsel had not yet attached. The Sixth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against an accused by way of a formal charge, preliminary hearing, indictment, information, or arraignment. State v. Washington, 9 S.W.3d 671, 675 (Mo.App. E.D.1999). Once the right has been invoked, subsequent waiver during a police-initiated custodial interview is invalid. Id. Here, proceedings had not begun. Greer had not been indicted or charged in the adult court at the time of this interview. The indictment was filed February 5, 1998; the interview occurred several weeks earlier on January 8th (according to trial testimony and waiver form) or January 18th (according to suppression hearing testimony). Moreover, any Sixth Amendment right to counsel that had attached in the juvenile proceeding did not transfer after Greer was certified as an adult. See id.

Point denied.

D.Sentencing Error

Greer argues that running the sentences on the murder count and the first armed criminal action count consecutively — instead of concurrently as it had after his first trial — violated Greer’s due process rights under North Carolina v. Pearce, 395 U.S. 711, 726, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). To prevent judicial vindictiveness by trial courts against defendants who take successful appeals, the Supreme Court in Pearce held that “whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear” and must be based upon “objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” Id. The Pearce rule is grounded in the constitutional right to due process. See id. at 725. Constitutional errors do not automatically require reversal and are subject to the harmless error analysis. See generally Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The error in this case, if any, was harmless beyond a reasonable doubt because the first life sentence must be served in its entirety without the possibility of probation or parole and, therefore, any additional term of years of imprisonment is mere surplusage. See State v. Williams, 860 S.W.2d 364, 367 (Mo.App. E.D.1993) (adding persistent sexual offender enhancement of “not less than 30 years” to life sentence was harmless error where defendant was required already to serve 40 years of the life sentence). Greer will be in prison for the rest of his life, and that would be true whether these sentences were run concurrently or consecutively.

Point denied.

III. CONCLUSION

The judgment is affirmed.

WILLIAM H. CRANDALL, JR. J. and MARY K HOFF, J. concurring.

      . See Miranda v. Arizona, 384 U.S. 436, 475-76, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The convictions resulting from the first trial were overturned on appeal due to the State’s discovery violations. State v. Greer, 62 S.W.3d 501 (Mo.App. E.D.2001).

      .Although in its remarks about the "considerably lesser sentence” the court actually referred to count III — the assault count — both juries recommended ten years on that count. As Greer concedes, the court likely misspoke and meant to refer to the second armed criminal action count, for which the first jury recommended seven years’ imprisonment and the second jury recommended three.

      . All statutory references are to RSMo 1994.

      . This claim of error was not included in Greer’s motion for new trial.

      . The record refutes Greer’s claim that the juvenile officer informed him that being certified as an adult only meant going to an adult jail. In any case, Greer does not indicate what other information about certification should have been provided, nor does it appear that the juvenile officer was required to advise Greer about anything else. See generally Rule 122.05 (1997) (requiring juvenile be advised of right to remain silent, right to counsel and right to stop talking once he starts, that whatever he says to juvenile officers and court personnel can be used "in certain later proceedings” and that whatever he says to police can be used against him if prosecuted as adult).

      . Greer’s point relied on does not even include a claim of error relating to the waiver of this right, only as to the waiver of his rights to counsel and to remain silent.

      . The record reflects that at the time of the interrogation, Greer’s mother and father were unavailable to attend the questioning or confer with Greer because they were in the hospital being treated for the injuries Greer had inflicted, but also that Greer's father was aware Greer had been taken into police custody.

      . The juvenile officer also testified that Greer told her his uncle “was in there representing me, reading him his Rights, making sure that he helped him to understand it also.” Although this testimony is somewhat vague, it tends to further support the conclusion that Greer believed his uncle was a friendly adult.