text:
    In the Interest of: K.M.K.
    No. ED 84547.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 11, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 23, 2005.
    Christopher M. Braeske, St. Louis, MO, for appellant.
    Cynthia Harcourt, Clayton, MO, for respondent.
    David Porta, St. Louis, MO, for interve-nors.
    Laroma White, St. Louis, MO, for Guardian Ad Litem.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

S.G. (“Mother”) appeals from the trial court’s judgment terminating her parental rights to her minor child, K.M.K. (“the Child”). Mother argues the trial court erred in terminating her parental rights because: (1) the State failed to show by clear, cogent and convincing evidence that grounds for termination of her parental rights existed under Section 211.447.4(2), RSMo 2000; and (2) the trial court’s findings under Sections 211.447.5 and 211.447.6(1) were erroneous.

We have reviewed the briefs of the parties and the record on appeal, and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no prece-dential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order affirming the judgment pursuant to Rule 84.16(b).

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re the Interest of D.M.H., and A.M.J.H., Minors.
    No. ED 84681.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 25, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 28, 2005.
    Stanley Schechter, Clayton, MO, for appellant.
    Barbara L. Greenberg, Family Court of St. Louis County, Clayton, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN, J., and MARY K. HOFF, J.
   ORDER

PER CURIAM.

T.L.D. (“Mother”) appeals the judgment terminating her parental rights to D.M.H. (“Son”) and A.M.J.H. (“Daughter”). We have reviewed the briefs of the parties and the record on appeal and find no error of law. An extended opinion would serve no jurisprudential purpose. We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 84.16(b).


text:
    Geraldine GREEN, Appellant, v. Wayne TULLOCK, et al., Respondents.
    No. ED 84566.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 25, 2005.
    Application for Transfer to Supreme Court Denied March 23, 2005.

      Douglas R. Smith, O’Fallon, MO, for appellant.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   PER CURIAM.

In this court-tried case, the plaintiff, Geraldine Green (“plaintiff’), appeals from a judgment of the Circuit Court of Lincoln County, Missouri in favor of defendants, Wayne Tullock (“decedent”) and Darrell Tullock. Plaintiffs petition sought to set aside a deed to certain real estate, claiming she agreed to lease the real estate with an option to purchase, rather than to sell it, and that the deed was void because it was signed without the legal description included. Plaintiff further claimed that defendants fraudulently misrepresented the nature of the transaction. Defendants counterclaimed for damages for rents from the real estate retained by plaintiff. The trial court bifurcated trial of the equity and legal issues. On April 2, 2003, after hearing on the equitable issues, the court denied plaintiffs action to set aside the deed. On March 29, 2004, after trial of the legal issues the court granted judgment: for plaintiff against defendants in the amount of $1523.76; in favor of defendants and against plaintiff in the amount of $10,272.00; and specifically found that decedent is responsible for the mortgage lien against the property and should hold plaintiff harmless therefrom. We dismiss in part and affirm in part.

We first address plaintiffs motion for substitution of parties on appeal. The attorney for decedent filed a suggestion of death informing this Court that decedent had died. Ninety days passed and no party or successor or representative of the decedent made a motion for substitution of a proper party under Rule 52.13(a)(1). This Court issued its order directing plaintiff to show cause why the appeal should not be dismissed as to decedent. Plaintiff filed a response to our order, along with a motion to substitute decedent’s wife, Marlene Tullock, for decedent.

Plaintiff asserts she believed she could proceed with the appeal without substitution of a party as set forth in Rule 52.13(a)(2), which permits an action to proceed with only a suggestion of death on the record, if the right sought to be enforced survives only against the surviving defendants. However, the trial court’s judgment in this case included an award of money damages, and in addition found that decedent was responsible for the mortgage lien against the property and should hold plaintiff harmless therefrom. This is not the type of case in which the right sought to be enforced survives only against the surviving defendants. See, e.g., Green v. Pearson, 937 S.W.2d 743 (Mo.App.1996); Hancock v. McRoberts, 798 S.W.2d 179 (Mo.App.1990); Gerken v. Epps, 783 S.W.2d 157 (Mo.App.1990). Moreover, “unless a motion for substitution is served within 90 days after a suggestion of death is filed, the action shall be dismissed as to the deceased party without prejudice.” Rule 52.13(a)(1). Here, the motion for substitution was filed more than 90 days after the suggestion of death was filed. Plaintiff’s motion for substitution is denied, and the appeal is dismissed without prejudice as to decedent, Wayne Tullock.

We turn to the merits of plaintiffs appeal as to the remaining defendant, Darrell Tullock. We have reviewed the plaintiffs brief 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).

      . Alternatively, in the event the court set aside the quitclaim deed, defendants sought specific performance of the agreement to sell real estate.

      . Darrell Tullock did not favor this Court with a brief.


text:
    Richard Owen LOW, Appellant, v. ST. CHARLES COUNTY SHERIFF DEPARTMENT, Respondent.
    No. ED 84690.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 25, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 23, 2005.
    Richard Owen Low, Charleston, MO, pro se.
    Joann Leykam, St. Charles, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN, J., and MARY K. HOFF, J.
   PER CURIAM.

Richard Owen Low (“Appellant”) appeals pro se the entry of summary judgment in favor of the St. Charles County Sheriffs Department (“Department”) in his replevin action to recover possession of a boat. The trial court sustained the Department’s motion on the ground, inter alia, that the exhibits Appellant submitted in response conclusively established that neither the Department nor any agent of the Department had the boat in its possession at the time the suit was filed or at any time thereafter. Because wrongful detention of the Plaintiffs property is an essential element of an action in replevin, the trial court entered judgment in favor of the Department. Monarch Loan Co. v. Anderson Transmission Service, 361 S.W.2d 328, 331 (Mo.App.1962).

On appeal, Appellant first submitted an “Appeal Brief in Support” which was rejected for failure to comply with Rule 84.04 in any respect. Appellant then filed a brief in the general form required by Rule 84.04, but it still does not comply with the requirements of Rule 84.04. The statement of facts is a rambling, argumentative diatribe that is essentially incomprehensible. The argument fails to address the standard of review and does not even address the trial court’s finding that neither the Department nor its agents have the boat in their possession, much less attempt to explain why this fact does not bar the claim.

It is well settled that pro se appellants are held to the same standards as attorneys and must comply with Supreme Court Rules, including Rule 84.04, which sets out the requirements for appellate briefs. Davis v. Coleman, 93 S.W.3d 742, 742 (Mo.App.2002). Failure to comply with the rules of appellate procedure constitutes grounds for dismissal of an appeal. Id. at 742-A13. We find the statement of facts and argument portions of Appellant’s brief are so deficient they preserve nothing for review.

Appeal dismissed.

      . All references to rules are to Mo. R. Civ. P.2004.


text:
    Robert L. WOODSON, Appellant, Frances K. Woodson, Plaintiff, v. CITY OF KANSAS CITY, Missouri, Property Maintenance Appeals Board, Respondent.
    No. WD 62615.
    Missouri Court of Appeals, Western District.
    Feb. 1, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 29, 2005.
    Robert L. Woodson, Kansas City, pro se.
    Frances K. Woodson, Kansas City, pro se.
    Nelson V. Munoz, Kansas City, for respondent.
    Before SPINDEN, Presiding Judge, HOLLIGER and HARDWICK, JJ.
   ORDER

PER CURIAM.

Robert Woodson appeals from the Kansas City, Missouri, Property Maintenance Appeals Board’s determination that conditions on two of his properties violated the Nuisance and Property Maintenance Codes. Upon review of the briefs and the record, we find no error and affirm the Board’s order. We have provided the parties with a Memorandum explaining the reasons for our decision because a published opinion would have no jurisprudential value.

AFFIRMED. Rule 84.16.


author: GARY M. GAERTNER, SR., Presiding Judge.

text:
    Robert N. VOGT, Trustee for the Robert N. Vogt Trust, Appellant, v. Linda EMMONS, Collector of Franklin County, Franklin County and Scenic Regional Library, Respondent.
    No. ED 83873.
    Missouri Court of Appeals, Eastern District, Division One.
    Feb. 1, 2005.
    Rehearing Denied March 23, 2005.

      Byron E. Francis, Jeffery T. McPherson, Jacqueline P. Ulin, Deanna M. Wen-dler, Armstrong Teasdale LLP, St. Louis, MO, for appellant.
    Mark Vincent, Vincent, Hoven & Purschke, Union, MO, Marc H. Ellinger, Blitz, Bardgett & Deutsch, L.C., Jefferson City, MO, for respondent.
   GARY M. GAERTNER, SR., Presiding Judge.

Appellant, Robert N. Vogt, Trustee for the Robert N. Vogt Trust (“Taxpayer”), appeals from the judgment of the Circuit Court of Franklin County granting respondent, Scenic Regional Library’s (“Scenic”), motion to dismiss and also dismissing the case as to the remaining respondents, Linda Emmons, Collector of Franklin County (“Collector”), and Franklin County (“the County”). We affirm in part and reverse in part.

In December of 2001, Taxpayer filed his real property tax bills under protest. On June 24, 2002, Taxpayer filed a second amended petition, in which he alleged the County and Scenic are political subdivisions of the State of Missouri, and that they did levy taxes for the year 2001 upon Taxpayer’s real property. Taxpayer brought his action under Article X, Section 23 of the Missouri Constitution on behalf of himself, all taxpayers owning property and receiving tax bills from the County, and all taxpayers of the Scenic Library district. Taxpayer alleged all of these taxpayers are entitled to an adjudication concerning their entitlement to a refund of taxes that violate the Hancock Amendment, Article X, Section 22 of the Missouri Constitution.

Taxpayer alleged that in calculating the general revenue tax rate levy for the year 2000, the County violated the judgment of the Circuit Court of Franklin County in a similar action, Jack Koehr, et al. v. Mary Ann Henderson, et al., Franklin County Circuit Court No. CV 198-0297CC (“the 1999 judgment”). In particular, Taxpayer argued the County did not use the 1999 tax rate ceiling of $.2914 to calculate the general revenue tax rate levy for the year 2000. Instead, Taxpayer maintained the County used $.3100 as the tax rate ceiling. Taxpayer alleged this mistake caused $80,-008.109 to be collected in excess of the allowable revenue under the 1999 judgment and Article X, Section 22.

Taxpayer argued the County also violated the 1999 judgment in 2001 by using $.3121 as the tax rate ceiling. According to Taxpayer, this mistake caused $211,822.33 to be collected in excess of the revenue allowable under the 1999 judgment and Article X, Section 22.

Scenic, according to Taxpayer, made the same mistake in calculating its tax rate levy for 2000 and 2001, which caused it to collect, respectively, $150,237.3444 and $159,562,028 in excess revenue.

Taxpayer alleged the County made a similar mistake with similar results in the computation of the tax rate levy for road and bridges purposes, which caused an excess of $43,081.2896 to be collected in 2000 and $232,168,937 to be collected in 2001. Taxpayer also argued the County failed to “adjust the sales tax revenue collected in the year 2000 for the year 2001 in accordance with section 67.505.3(6).”

Taxpayer sought a declaration that the County’s tax levy for the year’ 2001 was unlawful, and asked the trial court to direct the County to calculate the tax rate levy for general revenue in the year 2001 using the tax rate ceiling set in the 1999 judgment. Taxpayer also asked the court to enjoin the Collector and the County from collecting any taxes under the unlawful tax rate or any amount over the lawful tax rate, and to refund to Taxpayer and those on whose behalf he acts any sums paid over the amount due on their respective lawful tax bills. Taxpayer also sought punitive damages, costs, and expenses.

Taxpayer sought the same relief for his claim regarding Scenic’s tax rate levy and for the tax rate levy for bridge and road purposes and for the year 2001. Taxpayer does not pray for relief with respect to any 2000 taxes.

In its answer, Scenic admitted it was a political subdivision of the State of Missouri, and that it was authorized to and did levy taxes upon real property for the year 2001. Scenic also asserted, as affirmative defenses, that (1) Taxpayer failed to state a claim upon which relief may be granted; (2) Taxpayer’s allegations regarding the 1999 and 2000 tax rates were barred because they were not asserted in a timely manner; (3) Taxpayer sought relief from persons not party to this action; and (4) Taxpayer was barred from enforcing the 1999 Judgment by the doctrine of laches and the statute of limitations for property tax suits.

The Collector and the County filed a separate answer in which they asserted, as affirmative defenses, that (1) Taxpayer failed to state a claim upon which relief may granted because there are no allegations that any calculation pertaining to the tax year in question was in violation of the Hancock Amendment; (2) the allegations regarding the 1999 and 2000 tax rates were barred because they were untimely; (3) Taxpayer’s claim was invalid because it was a collateral attack on properly established tax rates; and (4) Taxpayer’s claim was barred by the doctrine of laches.

Taxpayer filed a motion for class certification. At the hearing on class certification, Scenic argued the wrong parties were named in this suit. Scenic argued it was not a political subdivision of the State of Missouri and that it had no taxing powers and thus, was not a proper party to this suit. Taxpayer argued that Scenic had almost two years to assert this argument, but unnecessarily waited until the class certification hearing. Further, Taxpayer argued Scenic did not assert this argument when the same parties were named in a similar case, Koehr I.

On July 28, 2003, Scenic filed a motion to dismiss along with suggestions in support alleging Taxpayer named an improper party, failed to name an indispensable party, and failed to comply with the statute of limitations. In particular, Scenic argued it was not a political subdivision of the State of Missouri, rather it was a contractual entity without any authority to enter or levy any property taxes. Further, Scenic argued the statute of limitations ran for tax year 2001 and 2002, making it impossible to add the Franklin County Library District (“FOLD”), which was an indispensable party.

On August 13, 2003, Scenic filed a motion for leave to amend its answer to the second amended petition. In its original answer, Scenic had admitted it was a political subdivision and was authorized to and levied taxes for the year 2001. Scenic denied all of these allegations in its amended answer by interlineation.

On September 18, 2003, the trial court granted Scenic’s motion to dismiss. It found that “the inclusion of a defendant [Scenic] which is not a political subdivision is clear on its face.” Therefore, it had no subject matter jurisdiction with respect to Scenic. The trial court also found that Taxpayer had not requested that the court substitute the FOLD, the proper political subdivision, and that, in any case, FOLD could not be substituted because such a substitution would violate the statutory timely protest requirement. Further, the trial court dismissed with prejudice the entire case regarding the 2001 tax rate because Taxpayer failed to comply with section 137.073.8 in filing the action.

Taxpayer filed a motion for new trial, arguing Scenic should have been barred by collateral estoppel and/or res judicata from challenging its role as a defendant; if Scenic was not a proper party, FCLD should have been substituted; and the case should not have been dismissed for failure to comply with section 137.073.8. The motion for new trial was denied, and this appeal followed.

Our standard of review when considering a trial court’s grant of a motion to dismiss is de novo. McCarthy v. Peterson, 121 S.W.3d 240, 243 (Mo.App. E.D.2003). We can affirm the trial court’s dismissal on any ground before the trial court in the motion to dismiss, even if that ground was not relied upon by the trial court in dismissing the claim. Id. We accept all of plaintiffs averments as true and view the allegations in the light most favorable to the plaintiff. Id.

Because Taxpayer’s third and fourth points concern which entities are proper parties to this suit, we address them first.

In his third point on appeal, Taxpayer argues the trial court erred in dismissing Scenic Regional Library (“Scenic”) because Scenic is barred by res judicata from challenging its status as a proper taxing authority.

A court may take judicial notice of its own records and may take judicial notice of the records of other cases when justice so requires. Sher v. Chand, 889 S.W.2d 79, 84 (Mo.App.E.D.1994).

Res judicata, commonly referred to as claim preclusion, bars the reassertion of a cause of action that has been previously adjudicated in a proceeding between the same parties or those in privity with them. Lomax v. Sewell, 50 S.W.3d 804, 809 (Mo. App. W.D.2001), quoting Robin Farms, Inc. v. Beeler, 991 S.W.2d 182, 185 (Mo. App. W.D.1999). Res judicata will bar a claim if the following elements are satisfied: (1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of persons or parties to the action; and (4) identity of the quality of the person for or against whom the claim is made. Lomax, 50 S.W.3d at 809, quoting Jordan v. Kansas City, 929 S.W.2d 882, 886 (Mo.App.W.D.1996). The doctrine of res judicata renders conclusive a judgment in a subsequent action between the same parties as to all issues which might have been litigated, not only as to all issues tried. Foster v. Foster, 39 S.W.3d 523, 528 (Mo.App. E.D.2001). However, res judicata can only be applied where a final judgment on the merits has been rendered involving the same claim sought to be precluded in the cause in question. Dodson v. City of Wentzville, 133 S.W.3d 528, 538 (Mo.App. E.D.2004).

In this case, Scenic initially admitted that it was a political subdivision and was authorized to and did levy taxes for the year 2001. However, after filing its motion to dismiss because it was an improper party, Scenic amended its answer denying that it was a political subdivision and denying that it was authorized to and did levy taxes for the year 2001.

While parties exercising reasonable diligence might have argued the issue of whether Scenic was a proper party in the prior litigation dealing with similar issues, res judicata cannot bar a claim based on a different cause of action. None of the previous cases involved a cause of action based on the 2001 tax rates, which are the subject of this action and are the only tax rates from which Taxpayer seeks relief here. Thus, this case has a different cause of action, and an essential element of res judicata is lacking. Therefore, we find the trial court did not err in dismissing Scenic as a party to this litigation. Point denied.

In his fourth point on appeal, Taxpayer argues the trial court erred in dismissing his claims against Scenic and not substituting the FOLD.

Taxpayer contends the interests of justice required such a substitution because: (1) Scenic had held itself out as the proper taxing authority throughout over five years of tax rate litigation with various taxpayers; (2) the substitution of the FOLD would have cured the purported misidentification of Scenic without any prejudice to FOLD, which knew or should have known the nature of the action against Scenic; and (3) substantial hardship would befall Taxpayer and thousands of similarly-situated taxpayers absent the substitution.

We will not convict the trial court of error for failing to take an action that was never requested. U.S. Central Underwriters Agency v. Manchester Life and Cas., 952 S.W.2d 719, 723 (Mo.App. E.D. 1997); see also State of Washington ex rel. Lewis v. Collis, 963 S.W.2d 700, 704-05 (Mo.App. W.D.1998) (where our colleagues declined to act sua sponte to order a defendant’s appearance or to appoint an attorney for defendant).

At the.hearing on the motion for class certification in this case, the trial court stated, after hearing arguments regarding whether Scenic or FOLD was the proper party, “... probably without making a suggestion to [Taxpayer’s counsel], why don’t you figure out a way that we can at least get this into the position that we’ve got the right people named.” There was also discussion at that hearing about the possibility of Taxpayer filing an amended petition naming FOLD and whether such an addition would be timely. However, Taxpayer never asked the trial court to make such a substitution. Because Taxpayer never asked the trial court to make such a substitution, we find no error in the trial court’s failure to order such a substitution. Point denied.

Having determined the proper parties to this suit, we now address Taxpayer’s first two points on appeal with respect to those parties.

In his first point on appeal, Taxpayer argues the trial court erred in dismissing his petition because section 137.073.8 does not govern the relief Taxpayer seeks under Article X, Section 23 of the Missouri Constitution.

Section 137.073.8 provides in pertinent part:

Whenever a taxpayer has cause to believe that a taxing authority has not complied with the provisions of this section, the taxpayer may make a formal complaint with the prosecuting attorney of the county. Where the prosecuting attorney fails to bring an action within ten days of the filing of the complaint, the taxpayer may bring a civil action pursuant to this section and institute an action as representative of a class of all taxpayers within a taxing authority if the class is so numerous that joinder of all members is impracticable, if there are questions of law or fact common to the class, if the claims or defenses of the representative parties are typical of the claims or defenses of the class, and if the representative parties will fairly and adequately protect the interests of the class. Section 137.073.8.

Article X, Section 23 provides: “Notwithstanding other provisions of this constitution or other law, any taxpayer of the state, county or other political subdivision shall have standing to bring suit in a circuit court of proper venue and additionally, when the state is involved, in the Missouri supreme court, to enforce the provisions of sections 16 through 22, inclusive, of this article_” Mo. Const., Art. X, Sec. 23.

Statutory construction is a question of law. Beck v. Beck, 90 S.W.3d 509, 511 (Mo.App. E.D.2002). When construing a statute, we attempt to ascertain the intent of the lawmakers by giving the words in the statute their plain and ordinary meaning. Id. Further, we are required to give each word, clause, and section meaning whenever possible. Id. Courts are not authorized to read into a statute a legislative intent that is contrary to the intent made evident by the plain and ordinary meaning of the language in the statute. Id. When construing a particular portion of a statute, we are to consider related clauses. Martinez v. State, 24 S.W.3d 10, 18 (Mo.App. E.D.2000).

Missouri courts have dealt with issues similar to those raised in this appeal in several recent cases. Although not reaching the issue in its main opinion, Judge Wolff wrote a concurring opinion in Green v. Lebanon R-III School Dish, 13 S.W.3d 278, 286 (Mo.banc 2000) {“Green /”) in which he found that in order to be eligible for tax refunds, taxpayers’ lawsuits must be timely filed under the statutory scheme. Judge Wolff wrote that taxpayers’ lawsuits had to be filed before the taxes became payable — December 31 of the tax year — in order to be eligible for a refund. Id. at 287. Section 23 of the Hancock Amendment is not a consent to a suit for money judgment. Id. However, taxpayers may seek an injunction to enjoin the collection of a tax until its constitutionality is finally determined, and if the tax is collected before a final determination as to its constitutionality, taxpayers’ only remedy is a refund through a timely action. Id. See also Ring v. Metropolitan St. Louis Sewer Dish, 969 S.W.2d 716, 718-19 (Mo. banc 1998).

In Koehr I, we adopted Judge Wolffs concurrence in Gheen I as a correct declaration of the law, finding that the petition, which was first filed on March 11, 1998 and later amended four times to included challenges to taxes from 1995-1998, was eventually determined to be either improper or untimely as to all of those years. Koehr, 55 S.W.3d at 863. We also noted that “the only civil action allowing taxpayers to challenge a tax levy contemplated by [section 137.073.8] is one for injunctive relief.” Id. If such a suit for injunctive relief is timely initiated, section 137.073.9 provides for refunds of amounts erroneously paid regardless of whether taxes were paid under protest. Id.

About a year later, we held that once taxes, even those collected under an unconstitutional statute, have been paid, they can only be recovered through proper statutory proceedings. Koehr v. Emmons, 98 S.W.3d 580, 584 (Mo.App. E.D.2002) {“Koehr II”), quoting Metis v. City of Pine Lawn, 84 S.W.3d 106, 109 (Mo.App. E.D. 2002). Further, this statutory procedure applies to taxes challenged as a violation of the Hancock Amendment. Koehr, 98 S.W.3d at 584. We concluded that the failure to timely protest the payment of taxes alleged to be unconstitutional and to timely commence an action for the refund of those taxes is fatal, even if the challenge is based on the Hancock Amendment. Id.

We distinguished Koehr II from City of Hazelwood v. Peterson, 48 S.W.3d 36 (Mo. banc 2001) because Koehr II concerned a procedural question about the timeliness of filing the action where the remedy sought is a tax refund; in contrast, City of Hazel-wood involved “whether the Hancock Amendment must be read in conjunction with the election laws of the state in order to determine whether a tax increase is constitutional.” Koehr v. Emmons, 98 S.W.3d 580, 583 (Mo.App. E.D.2002). Unlike in Koehr II and Koehr I, the taxpayers in City of Hazelwood timely filed suit for the disputed amount. Id.

The issue in City of Hazelwood was whether the City of Hazelwood could proceed with a class action suit for a tax refund. Initially, the plaintiffs in City of Hazelwood filed suit individually to recover excess payments made while the election contest was pending in court. City of Hazelwood, 48 S.W.3d at 38. The trial court “certified a class consisting of all persons who paid property taxes to the District during 1996 and ordered that the claims of the individual plaintiffs be maintained as a class action.” Id. City of Hazelwood, relying on the Supreme Court’s opinion in Ring and the Hancock Amendment, held merely that taxpayers could proceed, under the Hancock Amendment, in the class action suit for a tax refund that was initiated by the trial court. Id. at 41. City of Hazelwood did not involve a question of whether the tax rate was proper. Id. at 38. The essential question was not whether the taxing authority complied or had to comply with chapter 137, but whether the taxing authority had the right to retain taxes collected after the first election until the second election. Id.

In this case, we are faced with a procedural issue that is not directly addressed by City of Hazelwood or Koehr II. The question here is whether, under section 137.073.8, the failure to file a complaint with the prosecutor before initiating an action seeking a refund is fatal to the action under the Hancock Amendment. We find that because section 137.073.8 determines the manner in which Taxpayer may challenge the tax rate when seeking a refund, this case is most similar to the line of cases dealing with the procedural question of timeliness, i.e., Green I and II, Koehr I and II, and Metis.

Keeping in mind our rules of statutory construction, we find that section 137.073.8’s use of the word “may” in describing when a taxpayer can bring a suit merely indicates that it is not mandatory that a taxpayer challenge the taxing authorities’ alleged non-compliance. After considering the interrelated clauses of section 137.073.8, we find that where a taxpayer chooses to challenge the taxing authority, the taxpayer must first file a complaint with the prosecutor and only after the prosecutor fails to act on the complaint may the taxpayer institute an action as representative of a class of all taxpayers. In Judge Wolffs concurring opinion in Green /; he explained that the reason for the procedural requirement of section 137.073.8 was so that “the pen-dency of the action puts the taxing authority on notice of the challenge to its tax rate brought on behalf of all taxpayers,” dispensing with the need for individual taxpayer’s to timely protest their taxes. Green, 13 S.W.3d at 288. Therefore, the trial court did not err in finding that in so far as it sought a refund of any excess taxes paid, the Taxpayer’s suit was procedurally barred because he did not first file a complaint with the prosecutor as section 137.073.8 requires.

In a sub-argument under his first point on appeal, Taxpayer argues the trial court erred in dismissing his petition because section 137.073.8 violates the “open courts” provision of the Missouri Constitution.

Attacks on the constitutionality of a statute are of such importance that the record regarding such issues should be fully developed and not raised as an afterthought in a post-trial motion or on appeal. Hollis v. Blevins, 926 S.W.2d 683, 684 (Mo.banc 1996), quoting Land Clearance for Redev. v. Kansas Univ., 805 S.W.2d 173, 176 (Mo.banc 1991). Unless constitutional issues are raised at the earliest possible opportunity consistent with orderly procedure, they are waived. Id. at 683.

Taxpayer raises his claim that 137.073.8 violates the “open courts” provision of the Missouri Constitution for the first time on appeal. Taxpayer did not raise this claim in his motion for new trial, which would have been the proper time to raise such a claim. As a result, this issue was waived, and we cannot address it. Point denied.

In his second point on appeal, Taxpayer argues the trial court erred in dismissing his petition because even if 137.073.8 does apply, Taxpayer is still entitled to seek a tax refund through enforcement of the 1999 judgment as well as a declaratory judgment and injunctive relief under both the Hancock Amendment and the 1999 judgment.

As noted in Koehr II, there are two ways in which a taxpayer can enforce the rights provided by the Hancock Amendment: 1) a taxpayer can seek an injunction, enjoining the collection of the tax until its constitutionality is determined; and 2) a taxpayer may seek a refund through a timely action if the tax increase violates the Hancock Amendment and is collected before a final judicial approval of the collection of the increase without voter approval. Koehr, 98 S.W.3d at 583.

However, whether to' allow actions' for injunctions and declaratory relief where a refund is not a possibility is another question. Other than the provision authorizing attorney’s fees, the enforcement provision of the Hancock Amendment, section 23, is not a consent to a suit for.a money judgment. Koehr, 55 S.W.3d at 863. If an injunctive action is timely instituted according to section 137.073.8, section 137.073.9 provides for refunds of amounts erroneously collected regardless of whether these amounts were paid under protest. Id. at 863. However, section 137.073.9 limits the eligibility for refunds by stating that nothing in the law “shall be construed to require a taxing authority to refund any tax erroneously paid prior to or during the third tax year preceding the current tax year.” Section 137.073.9. Judge Wolff explained this provision in his concurrence in Green I, stating “... this section, just quoted, sets a time limit for when the judicial action is to be completed. It is not a statute of limitations, nor does it enable lawsuits to be commenced years after the tax year in question. Taxes erroneously collected are not subject to refund without specific statutory authority, and the statute can and does set a specific limitation.” Green, 13 S.W.3d at 290; see also Koehr, 55 S.W.3d at 863.

Because the 2001 taxes are at issue, it is clear that Taxpayer is not eligible for a refund under section 137.073.9 because, as discussed in the previous point on appeal, his action was not filed in accordance with section 137.073.8. Further, the 2001 taxes would have been paid prior to the third tax year preceding the current tax year. However, we can find no barrier to Taxpayer’s pursuit of an action for declaratory relief and for an injunction ensuring the alleged unlawful tax rates and methods of determining such tax rates do not remain in effect in the future. Therefore, we reverse the trial court’s dismissal and allow Taxpayer to proceed on his claims for declaratory and injunctive relief. Point granted.

Based on the foregoing, we affirm in part and reverse in part the judgment of the trial court.

GEORGE W. DRAPER III, C.J., and SHERRI B. SULLIVAN, J., concur.

      . The original petition and the first amended petition are not contained in the record on appeal.

      . This judgment was appealed, and we reversed the trial court’s certification of a plaintiff class, directed the trial court to dismiss all claims for class action relief. The Koehrs were allowed to proceed on their claims as individuals, but the judgment on the Koehrs’ individual claims in favor of the taxing district was affirmed. Koehr v. Emmons, 55 S.W.3d 859, 864 (Mo.App. E.D.2001) (“Koehr I").

      . We note that collateral estoppel is inapplicable to this point because the distinction between collateral estoppel and res judicata is that collateral estoppel operates only as to issues previously litigated, but not as to matters not litigated in the prior action even if they might have properly been determined. Missouri Bd. of Pharmacy v. Tadrus, 926 S.W.2d 132, 136 (Mo.App. W.D.1996). Clearly, the issue of whether Scenic is a proper party was not previously litigated.

      . After the Supreme Court remanded this case, the trial court dismissed the action, finding it was untimely based on our opinion in Koehr I. The Southern District affirmed on appeal. Green v. Lebanon R-III School Dist., 87 S.W.3d 365, 368 (Mo.App. S.D.2002) {"Green II”).

      . In Koehr II, taxpayers did not plead injunc-tive relief. Koehr, 98 S.W.3d at 584.

      . The first election was set aside because of an irregularity in the ballots.

      . This holding applies only to Taxpayer’s remedies under section 137.073.


author: GLENN A. NORTON, Judge.

text:
    STATE of Missouri, Respondent, v. Darius GUYTON, Appellant.
    No. ED 83975.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 1, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 23, 2005.

      Deborah Daniels, Dora Fichter (co-counsel), Jefferson City, MO, for respondent.
    Gwenda Robinson, St. Louis, MO, for appellant.
   OPINION

GLENN A. NORTON, Judge.

Darius Guyton appeals the judgment entered on his conviction for attempted escape from custody. We affirm.

I. BACKGROUND

Guyton was arrested for murder and taken into police custody. An officer handcuffed Guyton to a table in an interview room at the police station. One of the cuffs was attached to an eyelet bolted onto the table, and the other was secured on Guyton’s wrist. The officer left Guyton alone in the room on two different occasions, each time for about 15 minutes. After the officer came back in the room the second time, he noticed that Guyton had been tampering with the handcuffs, trying to get them off. At trial, the officer demonstrated that, with no instruments but his free hand, Guyton wedged a part of the cuff attached to the table into the eyelet and broke off two pieces. “If he broke off one more piece, he’d have been free.” Guyton was found guilty of murder in the second degree, armed criminal action and attempt to escape from custody. He appeals only the judgment and sentence relating to the escape count.

II. DISCUSSION

A. Instructional Error

A verdict-directing instruction must contain each element of the offense charged and must require the jury to find every fact necessary to constitute the essential elements of the offense. State v. Doolittle, 896 S.W.2d 27, 30 (Mo. banc 1995). The court in this case omitted the definition of the object crime in its verdict director for attempt to escape from custody, as required by the relevant pattern instruction for attempt. See Missouri Approved Instruction-Criminal 3d 304.06, Notes on Use 4 (“If the attempt crime is submitted but the object crime is not submitted, the optional paragraph defining the object crime must be given, whether the definition is requested or not.”) (9-1-99). Failure to give an applicable pattern instruction in accordance with the notes on use is error, but its prejudicial impact is to be judicially determined. State v. Richardson, 923 S.W.2d 301, 318 (Mo. banc 1996). In this case, because Guyton failed to properly preserve this error for appeal, we will only review for plain error. Instructional error seldom constitutes plain error. State v. Thomas, 75 S.W.3d 788, 791 (Mo.App. E.D.2002). Guyton must demonstrate that, by giving this instruction, the trial court “so misdirected or failed to instruct the jury that it is evident that the instructional error affected the jury’s verdict.” State v. Baker, 103 S.W.3d 711, 723 (Mo. banc 2003).

Guyton argues that without a definition of escape from custody the instruction allowed the jury to convict him on fewer than the essential elements because it failed to include the requisite mental state. Because the statute defining this crime does not include a mental state, the culpable mental state for escape from custody or attempted escape from custody is established if the defendant 'acted “purposely or knowingly.” Section 562.021.3; see also MAI-CR3d 329.72 (pattern instruction for attempted escape from custody requires jury find defendant committed certain acts and “thereby knowingly” attempted to escape and “did so (knowingly) (for the purpose of escaping).”) (10-1-98); see also MAI-CR3d 329.72, Notes on Use 5.

The instruction given in this case required that the jury find Guyton guilty if the evidence showed that he, “while handcuffed to a table after arrest for murder, damaged the handcuffs,” that this conduct was a substantial step toward committing the offense of escape from custody and that he “engaged in such conduct for the purpose of committing such escape from custody.” (emphasis added). Although this instruction did not require a finding that Guyton acted knowingly, the jury was instructed that it had to find he acted purposely. This is sufficient to establish that the defendant acted knowingly: “[w]hen acting knowingly suffices to establish a culpable mental state, it is also established if a person acts purposely.” Section 562.021.4; see also State v. Carpenter, 57 S.W.3d 405, 410 (Mo.App. S.D.2001) (purposely is higher mental element than lower mental element of knowingly). Thus, the instruction did contain all the essential elements, including the requisite mental state.

This case is unlike the cases relied on by Guyton, in each of which an essential element was missing from the instruction, lowering the State’s burden of proof. In Doolittle, the court’s instruction on attempted first-degree robbery failed to define the object crime, instructing the jury only that it must find that the defendant had pressed “something” into a store clerk’s back while threatening to kill him and that this was a substantial step toward robbery done with the purpose of committing robbery. 896 S.W.2d at 28. The jury was not instructed to find that the defendant had used or threatened to use a dangerous instrument, and the instruction did not include a definition of a “dangerous instrument,” as required by the statute defining robbery and the applicable MAI. Id. at 29 (citing section 569.020 RSMo 1986 and MAI-CR3d 323.02). This constituted plain error because the jury could have found the defendant guilty -without finding that he used a dangerous instrument. Id. at 30. In State v. Farris, the failure to define possession in the verdict director for attempt to manufacture methamphetamine, where possession was an essential element of the crime, was plain error. 125 S.W.3d 382, 392 (MoApp. W.D.2004).

Here, however, the failure to define the object crime was harmless because the instruction otherwise contained all the essential elements, including that Guyton acted with the requisite mental state — that is, for the purpose of attempting to escape. The jury could not logically find that Guy-ton was purposely trying to escape without concluding that he knowingly attempted to escape by damaging the handcuffs. See State v. Bozarth, 51 S.W.3d 179, 182 (Mo. App. W.D.2001) (failure to define “knowingly” in instruction on attempted escape from confinement did not lower State’s burden of proof because instruction also required finding that defendant acted with purpose of escaping). Thus, the instruetion contained the essential elements of the crime and did not lower the State’s burden of proof.

Because the instruction did not misdirect or fail to instruct the jury such that the jury’s verdict was affected, we find no plain error. Point denied.

B. Sentencing Error

After Guyton committed this crime but before he was sentenced, the maximum sentence for class D felonies, such as this attempt to escape from custody, was reduced from five to four years. See section 558.011.1(4) RSMo Supp.2004; see also section 575.200.2(2) (making crime a class D felony when person attempting to escape is under arrest for a felony). Guyton contends that, under section 1.160(2), he was entitled to the benefit of this change in the law. But, under section 1.160(2), “a defendant will be sentenced according to the law in effect at the time the offense was committed unless a lesser punishment is required by a change in the law creating the offense itself.” State v. Johnson, 150 S.W.3d 132, 138 (Mo.App. E.D.2004). Here, the change was not to the statute creating the crime of attempted escape from custody, section 575.200.1, but to the general sentencing statute. There was no error, therefore, plain or otherwise, in sentencing Guyton according to the range of punishment in effect at the time his offense. See Prapotnik v. Crowe, 55 S.W.3d 914, 918 (Mo.App. W.D.2001) (“if the range of sentence for [a certain] class [of] felonies is reduced by the legislature in [section] 558.011 after the date an individual commits [a felony of that class], the offender is still subject to the higher range of punishment”).

Point denied.

III. CONCLUSION

The judgment is affirmed.

CLIFFORD H. AHRENS, J. and NANNETTE A. BAKER, J. concurring.

      . "A person commits the crime of escape from custody or attempted escape from custody if, while being held in custody after arrest for any crime, he escapes or attempts to escape from custody.” Section 575.200.1 RSMo 2000. All statutory references are to RSMo 2000, unless otherwise noted.

      . The crime of attempted escape from confinement has substantially the same elements as the crime of attempted escape from custody:
      A person commits the crime of escape or attempted escape from confinement if, while being held in confinement after arrest for any crime, while serving a sentence after conviction for any crime, or while at an institutional treatment center operated by the department of corrections as a condition of probation or parole, he escapes or attempts to escape from confinement.
      575.210. 1. There being no mental state in this statute, it too requires knowing or purposeful conduct. See section 562.021.4; see also MAI — CR3d 329.74.

      . "No offense committed and no fine, penalty or forfeiture incurred, or prosecution commenced or pending previous to or at the time when any statutory provision is repealed or amended, shall be affected by the repeal or amendment, but the trial and punishment of all such offenses, and the recovery of the fines, penalties or forfeitures shall be had, in all respects, as if the provision had not been repealed or amended, except:
      (1) That all such proceedings shall be conducted according to existing procedural laws; and
      (2) That if the penalty or punishment for any offense is reduced or lessened by any alteration of the law creating the offense prior to original sentencing, the penalty or punishment shall be assessed according to the amendatory law.”
      Section 1.160.


text:
    CEDAR CREEK MALL, LLC., Appellant, v. PAUL PROPERTIES MANAGEMENT, INC., et al., Respondents.
    No. WD 64095.
    Missouri Court of Appeals, Western District.
    Feb. 14, 2005.
    As Modified March 29, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 29, 2005.

      Michael Scott Dodig, Lee’s Summit, for Appellant.
    Robert James Ellison Edwards, Kansas City, for Respondents.
    Before HAROLD L. LOWENSTEIN, Presiding Judge, PAUL M. SPINDEN, Judge, and RONALD R. HOLLIGER, Judge.
   ORDER

Cedar Creek Mall, LLC (“Cedar Creek”) appeals the judgment of the trial court denying its request for injunctive relief prohibiting Respondents Paul Properties Management, Inc., and 3rd & Ward — Lee’s Summit L.L.C. (“Respondents”) from constructing a proposed Walgreen’s Drug Store. Cedar Creek contends that the proposed building would violate restrictive covenants within an easement upon the land where the drug store is to be located and/or a lease agreement between the original landowner and one of the tenants of Cedar Creek Mall.

We have reviewed the briefs of the parties and the record on appeal, and find no error of law. A written opinion reciting the detailed facts and restating the applicable principles of law would have no prec-edential or jurisprudential value. However, the parties have been furnished with a memorandum opinion for 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: PATRICIA BRECKENRIDGE, Judge.

text:
    Sharyn L. MILLS, Appellant, v. Kellye A. LOETHEN, Respondent.
    No. WD 63398.
    Missouri Court of Appeals, Western District.
    Feb. 22, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 29, 2005.

      Brian J. Klopfenstein, Kearney, MO, for appellant.
    Dennis J. Cassidy, Kansas City, MO, for respondent.
    Before HOWARD, P.J., SPINDEN and BRECKENRIDGE, JJ.
   PATRICIA BRECKENRIDGE, Judge.

Sharyn L. Mills appeals the trial court’s judgment denying her motion for a new trial on her claim of negligence against Kellye A. Loethen. Ms. Mills filed her motion for new trial after the jury found Ms. Loethen sixty percent at fault and Ms. Mills forty percent at fault for an automobile accident but awarded Ms. Mills no damages. On appeal, Ms. Mills claims that she is entitled to a new trial because the trial court erroneously admitted evidence in violation of the collateral source rule. She further contends that the erroneous admission of such evidence caused the jury to award her zero damages, which, she asserts, is against the weight of the evidence and indicates that the verdict was the result of passion or prejudice.

Ms. Mills’ claims on appeal require this court to examine the entire record. That is, even if this court were to assume, without deciding, that the admission of the evidence at issue violated the collateral source rule, “the record would still have to support a finding of prejudice ... before a new trial would have been proper.” Duckett v. Troester, 996 S.W.2d 641, 648 (Mo.App.1999). “A determination of prejudice by the erroneous admission of evidence depends largely upon the facts and circumstances of the particular case.” McGuire v. Seltsam, 138 S.W.3d 718, 722 (Mo. banc 2004). In reviewing the facts and circumstances of the case, “[t]he appropriate question is whether the erroneously admitted evidence had any reasonable tendency to influence the verdict of the jury.” Id.

Ms. Mills argues on appeal that the allegedly erroneously-admitted evidence influenced the jury’s verdict by casting doubt on her credibility, and the evidence caused the jury to disregard her medical evidence and reach a verdict that was against the weight of the evidence. To evaluate the merits of her claims, this court must review the evidence that was before the jury. Ms. Mills failed, however, to include in the record on appeal all of the evidence presented at trial. In particular, Ms. Mills did not file any of the exhibits that were admitted during the trial. These exhibits included, among other things, her medical records and the deposition testimony of two doctors who had examined her and offered opinions as to the cause of her injuries.

“‘Rule 81.12(a) provides that the record on appeal shall contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented.’ ” Citibank (South Dakota) N.A. v. Edwards, 147 S.W.3d 810, 811 (Mo.App.2004) (quoting Bastain v. Brown, 28 S.W.3d 494, 495 (Mo.App.2000)). “ ‘This rule requires an appellant to file a transcript and prepare a legal file so that the record contains all the evidence necessary for a determination of [thejquestions presented to the appellate court for a decision.’ ” Id. (quoting Bastain, 28 S.W.3d at 495).

Although Ms. Mills claims that the allegedly erroneous admission of evidence resulted in prejudice entitling her to a new trial, she “has not provided this court with a sufficient record ... to assess the validity of that claim.” Id. Without the entire record, including exhibits, this court cannot determine whether the allegedly improper evidence had any reasonable tendency to influence the jury to disbelieve Ms. Mills and award her zero damages, and whether such an award was against the weight of the evidence, indicating that the verdict was the result of passion or prejudice. “In the absence of a sufficient record, there is nothing for this court to review, and the appeal must be dismissed.” Id.

Accordingly, the appeal is dismissed.

All concur.

      . This court recognizes that the Supreme Court has held that error in admitting evidence in violation of the collateral source rule is presumed prejudicial. Kickham v. Carter, 335 S.W.2d 83, 90 (Mo.1960). In Kickham, however, the error was preserved. Id. at 89. The Eastern District of this court has held that the presumption of prejudice in Kickham applies only to preserved errors. Buatte v. Schnuck Mkts., Inc., 98 S.W.3d 569, 573 (Mo. App.2002). The record in this case indicates that Ms. Mills’ claims of error were not preserved due to untimely objections. Even if the claims of error were preserved and the presumption did apply, however, this court would still need to review the record to determine if Ms. Loethen rebutted the presumption. Duckett, 996 S.W.2d at 648.


text:
    STATE of Missouri, Respondent, v. Leonard CARPENTER, Appellant.
    No. ED 83808.
    Missouri Court of Appeals, Eastern District, Division Two.
    March 22, 2005.
    Amanda R. Schehr, 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.

Leonard B. Carpenter (“Defendant”) appeals from a judgment entered in the Circuit Court of the City of St. Louis following his conviction on two counts of second-degree murder and two counts of armed criminal action. In his appeal, Defendant contends that the trial court erred in: (1) finding him mentally competent to proceed to trial; and (2) denying his Motion to Suppress statements on the grounds that he lacked the capacity to knowingly waive his constitutional rights.

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).


author: ROBERT G. DOWD, JR., Judge.

text:
    Elbert A. WALTON, Jr., Appellant, v. CITY OF BERKELEY, Missouri, Respondent.
    No. ED 84477.
    Missouri Court of Appeals, Eastern District, Division Two.
    March 22, 2005.

      Elbert A. Walton, Jr., St. Louis, MO, pro se.
    Donnell Smith, St. Louis, MO, for respondent.
   ROBERT G. DOWD, JR., Judge.

Elbert A. Walton, Jr. (Walton) appeals from the trial court’s judgment granting a directed verdict in favor of the City of Berkeley on Walton’s claim for wrongful removal as the city attorney for the City of Berkeley. Walton contends the trial court abused its discretion in denying his motion to amend his petition, and erred in directing a verdict in favor of the City of Berkeley. We reverse and remand.

This is the second appeal from a petition filed by Walton against the City of Berkeley. Walton was duly appointed as the city attorney for the City of Berkeley on or about November 19, 1996 when the acting city manager, Roosevelt Sims, recommended Walton to be appointed the city attorney and the council approved Walton’s appointment as the city attorney. Pursuant to Ordinance No. 3401, passed January 21, 1997, the mayor of the City of Berkeley was authorized and directed to enter into a contract with Walton to be the city attorney. Thereafter, on or about March 1, 1997, the city manager, Margie Hollins, pursuant to Section 13 of the City Charter of Berkeley, which authorizes the city manager to appoint the city attorney with the approval of the city council, executed a contract with Walton to agree to the terms and compensation of his appointment as the city attorney. A copy of Ordinance No. 3401 was attached to the contract executed by the city manager and Walton. Thereafter, the city manager was terminated and the city council passed a motion granting the mayor power to enter into employment contracts. On April 1, 1998, the mayor and Walton entered into a contract modifying the March 1, 1997 contract. The compensation fixed by Ordinance No. 3401 remained the same. However, the terms of terminating Walton as city attorney were modified and additional compensation for standing in as the city prosecutor was embodied in the modified contract.

Beginning in April 1998, after an election for city council members, there were disagreements and legal actions regarding who were the council members for the City of Berkeley. According to the City of Berkeley, in September 1998, January or February 1999, and May 1999, the city manager recommended the removal of Walton as the city attorney. There was some dispute as to whether the city council voted in favor of the removal of Walton as the city attorney on each occasion that the recommendation of removal was made to the city counsel. Walton acted as the city attorney until May 1999 when he was precluded from attempts to exercise his duties in that capacity.

In January 2001, Walton filed a two-count petition against the City of Berkeley. In Count I, entitled “Wrongful Removal of City Attorney,” Walton alleged the City of Berkeley failed to pay in full all of the monthly retainers, extraordinary legal fees, and expense reimbursement owed to Walton from the “date of [Walton’s] appointment as City Attorney up to date of the filing of the Petition herein and in the future.” Walton claimed he was entitled to these payments due to the alleged failure of the city council to ever approve his removal as the city attorney as required by the City of Berkeley’s charter. In Count II, Walton sought damages for breach of contract. Walton alleged that on or about March 1, 1997, he and the City of Berkeley entered into a contract agreeing to the fees to be paid for expenses and legal services provided by Walton as city attorney. The contract was modified on or about April 1, 1998, the fees to paid Walton as the city attorney remained the same and additional compensation for standing in as the city prosecutor was embodied in the modified contract. In Count II, Walton claimed that the City of Berkeley purported to remove him as the city attorney in violation of the terms of the contract without either the prior notice provided for under the contracts or a hearing to the show cause for termination.

Before any evidence was heard in the case, the trial court sua sponte determined that Walton’s breach of contract action in Count II was a legal action and determined, relying on Edwards v. Schoemehl, 765 S.W.2d 607 (Mo. banc 1989), that the wrongful removal action in Count I was an equitable claim. The trial court resolved that the jury would decide any contract issues under Count II, and the trial court would decide any equitable issues under Count I.

After Walton presented all of his evidence on both counts, the City of Berkeley moved for directed verdict on Count II, the breach of contract claim. The trial court entered a directed verdict dismissing Count II because it found the contracts were never lawfully executed because the contract was executed by the mayor who did not have authority under Section 432.070, RSMo 2000 to execute the contracts, and thus were unenforceable under the law. In addition, the trial court again sua sponte determined, relying on the Edwards case, that the wrongful removal action in Count I was an equitable claim. The trial court found that the pleading in Count I would be deemed amended to conform to the evidence as presented. The City of Berkeley objected and claimed Edwards was distinguishable. The City of Berkeley moved for directed verdict on Count I, which the trial court denied. Thereafter, the trial court dismissed the jury and proceeded to hear the City of Berkeley’s evidence relating to Count I. The City of Berkeley objected to proceeding without the jury because Walton did not file Count I as an equitable claim. The trial court denied the objection.

After the presentation of all the evidence, the trial court found that Walton was discharged as of May 26, 1999, which was the date Walton admitted a letter was sent to him by the city manager purporting to remove him as city attorney. The trial court entered a judgment in favor of Walton in the amount of $156,049.82 for retainers, expenses, and extraordinary fees earned through May 26, 1999. The City of Berkeley appealed the judgment and Walton cross-appealed. Walton v. City of Berkeley, 118 S.W.3d 617 (MoApp. E.D. 2003).

On appeal, the City of Berkeley argued the trial court lacked authority to grant equitable relief to Walton under Count I of Walton’s petition alleging wrongful removal. Id. at 620. This court agreed finding Count I of Walton’s petition sought only money damages and therefore was an action at law rather than equity. Id. at 621. The Edwards case, which was relied on by the trial court in determining Count I was an equitable action, was distinguished on the grounds that in that case, the plaintiff challenged a suspension proceeding, not a wrongful removal claim, and the plaintiff sought both reinstatement and back pay, not just money damages. Id. at 620-21. This court held the trial court lacked jurisdiction to grant Walton equitable relief under Count I and reversed and remanded for further proceedings as to Count I. Id. at 621. This court also denied Walton’s cross-appeal point alleging trial court error in admitting parol evidence that the city council had approved Walton’s removal. Id.

On remand, Walton promptly filed a motion for leave to file an amended petition. Walton subsequently filed his first amended petition seeking reinstatement as the city attorney and for back pay and money damages. Thereafter, the trial court entered a directed verdict in favor of the City of Berkeley on Count I finding insufficient pleadings and proof of a valid written contract. The trial court based its grant of directed verdict on the City of Berkeley’s previous motion for directed verdict with respect to the pleading and proof of breach of contract. At the time the trial court entered its judgment for directed verdict, the City of Berkeley had not filed any motions or responses in the case on the remand. In addition, the trial court denied Walton’s motion for leave to amend his petition as not timely filed. Walton now appeals.

In his first point, Walton contends the trial court abused its discretion in denying Walton leave to amend his petition. We agree.

Rule 55.33(a) mandates that “leave [to amend] shall be freely given when justice so requires.” The trial court has broad discretion to permit amendment of the pleadings at any stage of the proceedings. Asmus v. Capital Region Family Practice, 115 S.W.3d 427, 432 (Mo.App. W.D.2003). Amendments to pleadings in cases on general remand are permissible and motions to amend are directed to the sound discretion of the court. Arnold v. Ingersoll-Rand Co., 908 S.W.2d 757, 760-61 (Mo.App. E.D.1995). The following factors should be considered in deciding whether to grant leave to amend a petition: (1) hardship to the moving party if leave is not granted; (2) reasons for failure to include any new matter in earlier pleadings; (3) timeliness of the application; (4) whether an amendment could cure any inadequacy of the moving party’s pleading; and (5) injustice resulting to the party opposing the motion, should it be granted. Sill v. Burlington Northern Railroad, 87 S.W.3d 386, 395 (MoApp. S.D.2002).

Here, Walton will most definitely suffer a hardship by the trial court’s failure to grant leave. The trial court entered a directed verdict in favor of the City of Berkeley on Count I of his original petition because there was insufficient evidence of a contract, thereby treating Count I of Walton’s original petition like a legal claim on the contract. Walton’s amended petition attempts to clarify the type of action he is filing in accordance with the trial court’s ruling in the original trial. At the original trial, the trial court made a determination that Count I would be treated like an equitable cause of action in accordance with the Edwards case, and deemed the pleadings amended to conform to the evidence presented. Thus, at the original trial there was no need for Walton to seek leave to amend his pleadings in the original proceedings based on the trial court’s sua sponte determination to treat the claim as an equitable one. On remand, Walton did seek leave to amend his pleadings in Count I asking for reinstatement along with back pay and money damages, and it appears the amended petition could cure the inadequacy of Count I of the original petition. Walton’s amended petition attempts to plead an equitable cause of action more like the equitable action brought in the Edwards case, which is the approach the trial court endeavored to take in the original trial. Furthermore, the City of Berkeley has not set forth any injustice or prejudice it would encounter if Walton was allowed to file his first amended petition.

Under the circumstances of this case, we find the trial court abused its discretion in denying Walton’s leave to amend. There appears to have been some confusion as to what Walton was asking for in Count I of his petition and an amended petition could have cured any deficiencies and confusion. Therefore, the trial court should have granted Walton leave to amend Count I of his petition. Point granted.

Thus, we reverse the trial court’s judgment entering directed verdict. The cause is remanded to the trial court with directions to grant Walton leave to amend his pleadings and for further proceedings consistent with this opinion.

PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE, J„ concur.

      . The trial court’s judgment, in its entirety, provides:
      The Court finds from the evidence presented at trial, and the allegations pled in Count I, that there are insufficient pleadings and insufficient proof of a valid written contract herein which complies with Section 432.070 RSMO. In accordance with Section 432.070 RSMo., any duty of a city-defendant to pay plaintiff from their agreement or acceptance of services is void. This Section requires that a written, detailed, and authorized contract is a prerequisite to Plaintiff's recovery. Defendant timely objected and moved for a directed verdict with respect to the pleading and proof of a breach of contract or other legal remedy at trial, pg. 395, 402. Plaintiffs motion to amend Count I filed on February 19, 2004 is denied as not timely filed. Filing of the first amended petition on March 9, 2004 is denied. In accordance with the Mandate herein, which remands the case for further proceedings, the Court sustains Defendant’s Motion for Directed Verdict and enters Judgment for Defendant.

      . We need not address Walton’s second point on appeal, claiming trial court error in entering directed verdict in favor of the City of Berkeley, because of our disposition of Walton's first point.

      . We remind the parties that to invoke equity jurisdiction a party seeking equitable relief must plead and prove there is no adequate remedy at law and the trial court lacks jurisdiction to grant equitable relief where there is an adequate remedy at law. Blue Cross Health Services, Inc. v. Sauer, 800 S.W.2d 72, 76 (Mo.App. E.D.1990).


text:
    STATE of Missouri, Respondent, v. Lamark FRANKLIN, Appellant.
    No. ED 84357.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 22, 2005.

      Scott Thompson, Assistant Public Defender, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa M. Kennedy, Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Lamark Franklin (“Defendant”) appeals from his conviction of murder in the first degree and armed criminal action. A jury convicted Defendant of first degree murder, Section 565.020.1, and armed criminal action, Section 571.015. The trial court found Defendant to be a prior offender and sentenced Defendant to: life imprisonment without parole for the murder, and thirty years imprisonment for the armed criminal action, to be served concurrently with the murder sentence. We find no error and affirm.

No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

We affirm the judgment pursuant to Rule 30.25(b).

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


text:
    STATE of Missouri, Respondent, v. James MOORE, Appellant.
    No. ED 84286.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 22, 2005.
    Amanda R. Schehr, Assistant Public Defender, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel N. McPherson, Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

James Moore (“Defendant”) appeals from his conviction of robbery in the first degree and armed criminal action. A jury convicted Defendant of robbery in the first degree, Section 569.020, and armed criminal action, Section 571.015. Defendant was sentenced to eleven years for the robbery and three years for the armed criminal action, to be served concurrently. We find no error and affirm.

No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

We affirm the judgment pursuant to Rule 30.25(b).

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


text:
    Gregory HAYES, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84240.
    Missouri Court of Appeals, Eastern District, Division Two.
    March 22, 2005.
    Jo Ann Rotermund, Asst. Public Defender, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Asst. Attorney General, Jefferson City, MO, for respondent.
    Before PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ.
   ORDER

PER CURIAM.

Gregory Hayes (Movant) appeals from the denial of his Rule 29.15 motion for post-conviction relief without an evidentia-ry hearing. In that motion, Movant sought to vacate a conviction for one count of first-degree robbery, Section 569.020, RSMo 2000, for which Movant was sentenced as a persistent offender to fifteen years’ imprisonment. On appeal, Movant argues the trial court erred in denying Movant’s Rule 29.15 without an evidentiary hearing because (1) trial counsel was ineffective for failing to request an instruction on receiving stolen property because the evidence would have supported receiving stolen property as opposed to first-degree robbery, and (2) appellate counsel was ineffective for failing to challenge on direct appeal the trial court’s denial of his motion to suppress and the denial of his objection to the in-court identification by Victim. We affirm.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion would have no precedential value nor serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Jonathan M. RIGGS, Defendant-Appellant.
    No. ED 84027.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 22, 2005.

      Henry B. Robertson, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Leslie E. McNamara, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN and MARY K. HOFF, JJ.
   ORDER

PER CURIAM.

The defendant, Jonathan Riggs, appeals from the judgment and sentence entered after a jury found him guilty of murder in the second degree, robbery in the first degree, and burglary in the first degree. No jurisprudential purpose would be served by a written opinion. The parties have been provided with a memorandum for their information only setting forth the reasons for this order. The judgment is affirmed. Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Aaron LUEDEMANN, Appellant.
    No. ED 83967.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 22, 2005.
    N. Scott Rosenblum, Mark Lyons, Clayton, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel N. McPherson, Jefferson City, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN, J., and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Aaron Luedemann appeals from the judgment entered upon the jury’s verdict convicting him of one count of the class A felony of domestic assault in the first degree for which he was sentenced, as a prior felony offender, to ten years in prison.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. An extended opinion would serve no jurisprudential purpose. We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Michael E. BARKER, Appellant.
    No. ED 84520.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 22, 2005.

      Irene C. Karns, Columbia, MO, for appellant.
    Deborah Daniels, Timothy W. Anderson (co-counsel), Daniel N. McPherson (co-counsel), Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J. and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Michael Barker appeals the judgment entered on a jury verdict convicting him of first degree sodomy under section 566.062 RSMo 2000, seeking plain error review. We have reviewed the parties’ briefs and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. The judgment is affirmed under Rule 30.25(b).


text:
    Richard J. LYNCH, Appellant, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Respondent.
    No. ED 84567.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 22, 2005.
    Daniel E. Nack, St. Charles, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., St. Louis, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Richard Lynch appeals the judgment of the circuit court in favor of The Director of Revenue, State of Missouri (“Director”) on his petition to review the revocation of his license. Lynch claims that the trial court improperly considered the police report because it was not offered or received into evidence. Lynch also claims that he was not allowed the requisite time to contact an attorney prior to his refusal, and therefore, the revocation should have been reversed.

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).


text:
    Thomas MARCHAND, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84621.
    Missouri Court of Appeals, Eastern District, Division Two.
    March 22, 2005.
    Gwenda R. Robinson, District Defender, Office B, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Alison K. Brown, Asst. Attorney General, Jefferson City, MO, for respondent.
    Before PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ.
   ORDER

PER CURIAM.

Thomas Marchand (Movant) appeals from the judgment denying his Rule 24.085 motion for post-conviction relief without an evidentiary hearing. Movant contends the motion court clearly erred in denying his claim that (1) an insufficient factual basis existed for Movant’s guilty plea and (2) plea counsel was ineffective for failing to advise Movant the State lacked sufficient evidence to prove the mens rea element of the crime at the guilty plea hearing. We affirm.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion would have no precedential value nor serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order pursuant to Rule 84.16(b).