author: MARY R. RUSSELL, Judge.

text:
    John STEHNO, Respondent, v. SPRINT SPECTRUM, L.P., Appellant, and Amdocs, Ltd., Defendant.
    No. SC 87023.
    Supreme Court of Missouri, En Banc.
    Feb. 14, 2006.
    Rehearing Denied April 11, 2006.

      Ann K. Covington, K. Lee Marshall, St, Louis, for appellant.
    Elaine Drodge Koch, Mikah K. Story, Kansas City, for defendant.
    Aaron N. Woods, Lisa C. Bower, Kansas City, for respondent.
   MARY R. RUSSELL, Judge.

Sprint Spectrum, L.P., appeals a judgment granting John Stehno a new trial on his claim of tortious interference with a business expectancy. Sprint asserts that Stehno did not make a submissible case of tortious interference because he failed to prove: (1) he had a valid, reasonable business expectancy or (2) there was an absence of justification for Sprint’s actions. This Court agrees and reverses the judgment.

I. Facts and Procedural History

As this appeal involves the sufficiency of evidence, a detailed explanation of the facts is necessary. Stehno was an employee of Modis, Inc., an information technology consulting company that provided temporary technical consultants to its clients. One of Modis’s clients was Amdocs, a company specializing in developing billing software. Modis contracted to supply Amdocs with temporary consultants, including Stehno. Amdocs, in turn, contracted with Sprint to help it develop a billing system. As a result of this agreement, Amdocs assigned Stehno to work on the Sprint billing system as a database administrator (DBA). Stehno, however, remained at all times an employee of Modis. He had no contractual relationship with Amdocs or Sprint.

Before Modis hired him, Stehno worked as a temporary contract worker on other projects in Sprint’s data management department. After having problems with other employees, Stehno told Jan Richert, a senior manager in the data management department, that he was leaving her department to work at Sprint Long Distance.

After his assignment at Sprint Long Distance expired, he asked his employer— another temporary employment agency— to contact Richert and see if she would be interested in him for an opening in her department. Richert responded that Steh-no had not been satisfied working there before and that the environment had not changed. As such, the employment agency informed Stehno that Richert refused the offer to return to her department.

Shortly thereafter, Stehno was contacted by Modis about the possibility of working for Amdocs on the Sprint billing system project. He accepted the temporary position without informing Modis that Ric-hert had recently rejected his offer to return to her department. A few days after Stehno began working at Sprint, Richert learned that he was working on the Sprint billing system project. She contacted his supervisors at Amdocs through a series of e-mails and telephone calls, expressing her concerns about the division of labor on the project and about Stehno specifically. Ric-hert explained to Amdocs that Sprint was to provide the DBAs from her department and that there were four DBAs already assigned to the Sprint billing systems project. Amdocs employees were to be used as application developers and not DBAs. Regarding Stehno specifically, Richert informed Amdocs that, although his skill was commensurate with the average DBA in her department, he was “high maintenance” and a “magnet for conflict” and she did not recommend him for the project. She added that because he had already been onsite for four days, the decision on whether to terminate him should be Am-docs’ and not hers.

Amdocs responded in two e-mails, the first stating: “Definitely we are not going to bring somebody that [Sprint] does not recommend”; the second stating: “Today would be [sic] John’s last day in our office. It’s AMDOCS decision. I do not want to keep people that you are uncomfortable with.” After Amdocs terminated its relationship with Stehno, Modis fired him because it had no other assignments for him.

Stehno thereafter sued Sprint and Am-docs for tortious interference with a business expectancy. After trial, the jury returned verdicts for Amdocs and Sprint. Stehno moved for a new trial, and the court granted Stehno’s motion as to Sprint, finding that the verdict was against the weight of the evidence. After an opinion by the Court of Appeals, Western District, this Court granted transfer. Mo. Const, art. V, § 10. Sprint argues that the trial court erred in denying its motion for judgment as a matter of law and in granting Stehno’s motion for a new trial.

II. Standard of Review

The circuit court has nearly unfettered discretion in deciding whether or not to grant a new trial on the ground that the verdict was against the weight of the evidence, “[a]nd its ruling upon that ground will not be disturbed, except in case of manifest abuse.” Robinson v. Wampler, 389 S.W.2d 757, 760 (Mo.1965). As long as the plaintiff makes a submissi-ble case, the court’s grant of a new trial will generally not be disturbed. See id. at 759-60. It is only where there is a complete absence of probative fact to support the jury’s conclusion that this Court will decide that the plaintiff did not make a submissible case. Doe v. TCI Cablevision, 110 S.W.3d 363, 369-70 (Mo. banc 2003).

A submissible case of tortious interference requires the plaintiff to adduce evidence of: (1) a valid business expectancy; (2) defendant’s knowledge of the relationship; (3) a breach induced or caused by defendant’s intentional interference; (4) absence of justification; and (5) damages. Nazeri v. Mo. Valley Coll., 860 S.W.2d 303, 316 (Mo. banc 1993). Sprint argues that Stehno did not present evidence at trial that, if believed, establish the first and fourth elements.

III. Valid Business Expectancy

Sprint argues that Stehno had no valid business expectancy in his continued employment on the Sprint project through Amdocs. The valid business expectancy requirement involves more than a mere subjective expectancy — it must be a reasonable expectancy of continued employment. See Bell v. May Dep’t Stores Co., 6 S.W.3d 871, 877 (Mo. banc 1999). The plaintiff must have more than a “mere hope” of continued employment. See Misischia v. St. John’s Mercy Med. Ctr., 30 S.W.3d 848, 863 (Mo.App.2000).

Stehno was a temporary contractor. While he may have had a subjective hope to have long-term employment on the Sprint project, both Amdocs and Sprint retained the right to end Stehno’s assignment without even consulting him.

Amdocs’ agreement with Modis stated that Amdocs could terminate a service order for any reason with seven days’ written notice. The contract further stated that Amdocs could request that a contractor be removed immediately if it was dissatisfied with the contractor. Similarly, Sprint’s agreement with Amdocs provided that Sprint retained “the right at any time to reasonably require removal of a Subcontractor and/or any of a Subcontractor’s personnel ... [with] reasonable prior notice to Amdocs, specifying the reasons for such removal, with an opportunity to cure (except in cases of gross negligence or intentional misconduct) within such notice period.”

A business expectancy that is contrary to the terms of a contract on which the expectancy depends is unreasonable. See Rhodes Eng’g Co. v. Pub. Water Supply Dist. No. 1, 128 S.W.3d 550 (Mo.App.2004); Harlbarger v. Burdeau Real Estate Co., 741 S.W.2d 309 (Mo.App.1987).

Stehno argues that although he was a temporary contractor, subject to removal at any time by either Sprint or Amdocs under their respective contracts, that is not dispositive. He is correct that his business expectancy need not be based on an existing contract. Eib v. Fed. Reserve Bank of Kansas City, 633 S.W.2d 432, 435 (Mo.App.1982). A probable future business relationship that gives rise to a reasonable expectancy of financial benefit is enough. Id. at 435-36. As such, Stehno argues his employment at-will status does not preclude a valid business expectancy. His argument does have some support in a case from the court of appeals. See, e.g., Hensen v. Truman Med. Ctr., 62 S.W.3d 549, 553 (Mo.App.2001).

Stehno asserts that the facts of this case are analogous to those in Hensen. Hensen worked directly for a company called REN. Id. at 551. He, like Stehno, was assigned to work for another employer— Truman Medical Center — that formerly employed him directly. Id. Because of some alleged misconduct during his assignment, Truman refused to allow Hensen to return to work there under any condition. Id. at 551-52. Hensen sued Truman for tortious interference with his business expectancy, and the court of appeals held that he made a submissible case. Id. at 554. Specifically, the court stated that although Truman enjoyed much latitude in terminating him when he was a Truman employee, “[w]hen Hansen assumed employment with REN — albeit [as] an at-will employee for REN — Truman became obligated not to interfere unjustifiably with any of Hensen’s business expectancies in his new employment relation with REN.” Id.

Although it is facially similar, Hensen differs from the present case in two notable aspects. First, Hensen was not a temporary contractor, but was assigned to work at Truman indefinitely in a specific assignment. Id. at 551. Second, Hensen involved an employer that retained the right to transfer its employees to a different employment assignment. It does not, however, address the situation where the alleged interferer retains a contractual right to remove the employee at any time as in this case. Because of the temporary nature of Stehno’s assignment and the contractual provisions allowing either Sprint or Amdocs to remove him from the project, the present case is clearly distinguishable from Hensen.

Lastly, Richert — the Sprint manager whose department was to provide DBAs for the billing system project — rejected an offer to havé Stehno return to work for her less than one week before he began working on the project through Amdocs. It is specious that Stehno believed he had any chance of long-term employment on the project. Clearly any expectation Steh-no had of continued employment on the Sprint project was not a valid, reasonable business expectation.

IV. Absence of Justification

While Stehno’s failure to produce evidence of a reasonable business expectancy is dispositive of the case, he also failed to adduce substantial evidence on the element of absence of justification. The plaintiff carries the burden of affirmatively showing lack of justification. Naz-eri, 860 S.W.2d at 816-17. If the defendant has a legitimate interest, economic or otherwise, in the expectancy the plaintiff seeks to protect, then the plaintiff must show that the defendant employed improper means in seeking to further' only his own interests. Id. at 317. Improper means are those that are independently wrongful, such as threats, violence, trespass, defamation, misrepresentation of fact, restraint of trade, or any other wrongful act recognized by statute or the common law. Id.

Sprint had an economic interest in controlling who worked on its projects. So important was this interest that Sprint secured the right to reasonably remove any contractor from the project in its contract with Amdocs. “No liability arises for interfering with a .... business expectancy if the action complained of was an act which the defendant had a definite legal right to do without any qualification.” Cmty. Title Co. v. Roosevelt Fed. Sav. & Loan Ass’n, 796 S.W.2d 369, 372 (Mo. banc 1990). As such, Sprint had a valid economic justification for removing Stehno.

Even if there is an economic justification for interfering with a business expectancy, the interfering party must not employ improper means. Nazeri, 860 S.W.2d at 317. Stehno suggests that Sprint used improper means to interfere with his business expectancy in that Ric-hert misrepresented that he was “high maintenance” and a “magnet for conflict.” He admits, however, that he had conflicts when he worked at Sprint. While Ric-hert’s comments do not paint a positive picture of Stehno, satisfying the absence of justification element requires a showing that the defendant interfered with the business expectancy for “personal, as opposed to corporate” interests. Eggleston v. Phillips, 838 S.W.2d 80, 83 (Mo.App.1992). There is nothing in the record indicating that Richert displayed any personal animus for Stehno. Rather, she voiced her concerns about him to protect the corporate interests of her employer.

Sprint had a legitimate economic interest in choosing who worked on its projects and did not employ improper means in protecting that interest. Stehno failed to produce evidence to the contrary and does not meet his burden of showing absence of justification.

Y. Conclusion

Stehno did not produce substantial evidence that he had a valid business expectancy or that Sprint was not justified in its actions. As such, he did not make a sub-missible case of tortious interference with a business expectancy. The judgment is reversed and the ease is remanded.

All concur.

      . Amdocs employees were to be used as application developers (commonly referred to as application database administrators or AD-BAs) and not DBAs.

      . Stehno makes much of the fact that the contract between Amdocs and Sprint requires Sprint to give Amdocs notice of any such removal, specifying the reasons for removal with an opportunity to cure. Stehno, however, was not a party to the contract between Amdocs and Sprint, nor was he a third party beneficiary. Thus, the notice and opportunity to cure provisions apply only to Amdocs, and Amdocs did not invoke these provisions. These provisions create nothing on which Stehno can rely for the purpose of a business expectancy.

      . Unlike the present case, in Hensen, the plaintiff’s direct employee — REN—-took over all staffing services for the department in which he worked. Id. Thus, in order to keep working at Truman, Hensen had to quit his job and apply for a position with REN with the understanding that he would be placed at Truman. Id.

      . This conclusion does not mean that a temporary employee, assigned to a third-party by an employment agency or contractor, can never have a valid, reasonable business expectancy. There may be some factual scenarios wherein a temporary employee has been given sufficient guarantees of continued employment to give rise to a meritorious claim of tortious interference. This is not such a case.

      . Stehno argues that Sprint's legal right to remove him was qualified. It is true that Sprint only retained the right to ‘'reasonably” remove an Amdocs contractor and that it had to provide notice and an opportunity to cure. These qualifications, however, only applied to Amdocs. As noted earlier, Stehno was not a party to the contract between Amdocs and Sprint. He is unable, therefore, to rely on these provisions to claim that Sprint did not have a valid economic interest in controlling who worked on the project. Further, Sprint did not actually use this contract mechanism to remove him from the project — Amdocs removed him on its own accord. Given that Sprint had an economic interest in removing him from the project directly, it certainly had that same interest in achieving the result indirectly.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE ex rel. Jeremiah W. (Jay) NIXON, Relator, v. The Honorable Jay DAUGHERTY, Respondent.
    No. SC 87440.
    Supreme Court of Missouri, En Banc.
    Feb. 28, 2006.
    Rehearing Denied April 11, 2006.

      Jeremiah W. (Jay) Nixon, Atty. General, Deborah Daniels, Asst. Atty. General, Jefferson City, for relator.
    John W. Simon, St. Louis, Mark A. Thornhill, Benjamin T. Clark, Kansas City, for respondent.
   PER CURIAM.

Michael Taylor pleaded guilty to first degree murder and was sentenced to death. His conviction and sentence were affirmed. State v. Taylor, 929 S.W.2d 209 (Mo. banc 1996). His request for post-conviction relief was denied, and the denial also was affirmed. Id. Taylor then sought relief without success in various state and federal courts. On January 3, 2006, this Court set Taylor’s execution for February 1, 2006, and a warrant of execution issued accordingly.

Taylor filed a petition in the Jackson County circuit court, purportedly under Rule 74.06(d), seeking to vacate the circuit court' judgment denying Taylor post-conviction relief. As noted in Roath v. State, 998 S.W.2d 590, 598 (Mo.App.1999), Rule 74.06(d) does not allow a trial court to entertain an independent action to relieve a party from a judgment or order to set aside a judgment for fraud upon the courts, but applies only to judgments or orders entered in civil actions. The judgment attacked in this action was entered pursuant to Rule 24.035, a rule relating to criminal actions.

Although Rule 24.035 provides that the rule is governed by the rules of civil procedure insofar as applicable, all civil rules do not apply to such actions. To determine whether a rule applies in the context of post-conviction review, the essential inquiry is whether the rule enhances, conflicts with, or is of neutral consequence to the purposes of Rule 24.035. Thomas v. State, 808 S.W.2d 364, 366 (Mo. banc 1991). The purpose of Rule 24.035 is to adjudicate claims concerning the validity of the trial court’s jurisdiction and the legality of the conviction or sentence of the defendant. The rule also has the purpose of avoiding delay in the processing of prisoners’ claims and preventing the litigation of stale claims. To further that purpose, Rule 24.035 contains strictly enforced time constraints that, if not followed, proeedurally bar consideration of a movant’s claims. Id. Moreover, in limited circumstances, claims not raised in the Rule 24.035 motion may be raised in a habeas corpus action.

As illustrated by this case, allowing Rule 74.06(d) to apply to Rule 24.035 judgments frustrates the purposes of Rule 24.035. This Court originally affirmed Taylor’s sentence in 1996. The motion in this case was not filed until 2005, after numerous actions were pursued in both state and federal courts. To allow a Rule 74.06(b) motion to apply to judgments under Rule 24.035 conflicts with the purposes of Rule 24.035 to provide a prompt method to correct error and to avoid stale claims.

In a death penalty case, a Rule 74.06(d) motion also frustrates the purpose of Rule 91.02(b), Rule 29.08(d), and this Court’s order of June 16, 1988. All of these make clear that matters affecting a sentence of death, once it is affirmed on direct appeal and except for a motion under Rule 24.035 or Rule 29.15, are to be filed in this Court and not another state court.

A motion under Rule 74.06(d) is not permitted to attack a judgment entered under Rule 24.035. The Respondent should have dismissed the action. The preliminary writ is made absolute.

All Concur.


author: STEPHEN N. LIMBAUGH, JR., Judge.

text:
    In the Interest of R.B.
    No. SC 86979.
    Supreme Court of Missouri, En Banc.
    March 21, 2006.

      John J. Smith, St. Charles, for appellant.
    Benicia Baker-Livorsi, St. Charles for respondent.
    Timothy C. Mooney, St. Louis, Dulcie Green Wink, Houston, TX, Amicus Curiae for Justice For Children.
   STEPHEN N. LIMBAUGH, JR., Judge.

This is an appeal from the dismissal of a petition that alleged two counts of delinquency against R.B., a juvenile. The juvenile officer appeals claiming that evidence had been improperly rejected by the family court commissioner who heard the case. This Court has jurisdiction as it involves the validity of a state statute. Mo. Const, art. V, sec. 3. However, because the juvenile officer lacks the right to appeal, the appeal is dismissed.

R.B., a juvenile at the time of the alleged incident, was charged with one count of first degree child molestation and one count of sexual misconduct involving a child. At trial, the juvenile officer attempted to elicit the testimony of the alleged victim, a 10-year-old girl. During her testimony she became upset to the extent that she could not continue. At that point, the commissioner declared her to be unavailable for testimony and prevented R.B.’s counsel from cross-examining her.

The juvenile officer proceeded with his case by calling the detective who had first investigated the allegations. He asked the detective what the alleged victim had told him during his investigation of the alleged incident. Defense counsel objected based on hearsay and a violation of R.B.’s constitutional right to confrontation, as recently declared in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The testimony was then allowed, but not for the truth of the matters asserted, and only as an indication of why the officer proceeded as he did. The detective recounted the statements made to him by the alleged victim, and then testified that, pursuant to departmental policies, he ceased questioning the victim so that a forensic interview could be scheduled. When the juvenile officer then sought to introduce the videotape of the forensic interview, R.B.’s counsel objected on the ground that R.B..had not been given an opportunity to cross-examine the alleged victim as is required by Crawford. The objection was overruled and the videotape was received into evidence.

After the conclusion of the hearing and after taking the matter under advisement, the commissioner issued her opinion recommending the petition be dismissed for failure to prove beyond a reasonable doubt that R.B. committed the offenses. As a basis for that recommendation, the commissioner determined that the videotape was inadmissible under Crawford, a ruling that cast doubt on the validity of section 491.075, which permits a child victim’s testimony to be used as substantive evidence in sexual misconduct cases even though the child has not been subjected to cross-examination. Thereafter, the administrative judge of the family court adopted and confirmed the findings and recommendations of the commissioner and entered judgment accordingly. The juvenile offi: cer now appeals the judgment dismissing the petition claiming that the videotape testimony of the alleged victim was - improperly rejected.

The right to appeal is statutory in nature. State v. Bums, 994 S.W.2d 941, 941 (Mo. banc 1999). As such, if a statute does not provide for appeal under certain circumstances, then appeal cannot be had. Farinella v. Croft, 922 S.W.2d 755, 756 (Mo. banc 1996). Section 211.261 sets out the limited situations in which the juvenile officer may appeal. That section provides:

1. An appeal shall be allowed to the juvenile officer from any final judgment, order or decree made under this chapter, except that no such appeal shall be allowed concerning a final determination pursuant to subdivision (3) of subsection 1 of section 211.031 [vesting juvenile courts with jurisdiction when a juvenile is charged with violating state law]....
2. Notwithstanding the provisions of subsection 1 of this section, an appeal shall be allowed to the juvenile officer from any order suppressing evidence, a confession or an admission, in proceedings under subdivision (3) of subsection 1 of section 211.031.
3. The appeal provided for in subsection 2 of this section shall be an interlocutory appeal, filed in the appropriate district of the Missouri court of appeals ....

Sec. 211.261.1-.3, RSMo 2000. Thus, in juvenile delinquency proceedings, the juvenile officer is limited to interlocutory appeals of orders suppressing evidence, confessions, or admissions. Sec. 211.261.3, RSMo 2000.

An interlocutory appeal is an appeal taken from a proceeding before the entry of a final judgment. An interlocutory judgment or order “is one that generally decides some point or matter between the commencement and the end of a suit, but that is not a final decision of the whole controversy.” Pulitzer Publ’g Co. v. Transit Cas. Co., 43 S.W.3d 293, 298 (Mo. banc 2001). In contrast, a final judgment is one that decides every issue in a case and leaves nothing else for the court to decide. Id. Consistent with double jeopardy principles, a dismissal of charges in a criminal case is a final judgment if it “has the effect of foreclosing any further prosecution of the defendant on a particular charge.” Bums, 994 S.W.2d at 942 (addressing dismissal of criminal charges prior to trial as, for example, where the offense charged is unconstitutional). These same double jeopardy principles have been applied to juvenile delinquency proceedings. Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975).

The juvenile officer claims that the ruling rejecting the videotaped testimony of the alleged victim can be reviewed as an interlocutory appeal. Although that ruling may have been properly appealed under section 211.261 at an earlier stage of the proceedings, that is not the present case. Here, the challenged ruling was made as a part of the commissioner’s “Findings, Recommendations, and Judgment Denying Jurisdiction,” which was issued after completion of the proceeding and in conjunction with the entry of final judgment by the administrative judge of the family court. This judgment left nothing to be decided for another day. Therefore, by definition, the appeal sought is not interlocutory in nature, but rather, an appeal after a final judgment. Moreover, by that time, jeopardy had attached, and the juvenile officer was foreclosed from further prosecution. Id. at 531, 95 S.Ct. 1779 (jeopardy attaches in juvenile proceedings when the trier of fact begins to hear evidence).

Because section 211.261 does not authorize the juvenile officer to appeal final judgments in delinquency proceedings, and in these situations double jeopardy has attached, there is no jurisdiction to entertain an appeal. Accordingly, we leave the resolution of whether the evidence was properly suppressed or excluded for another day.

The appeal is dismissed.

All concur.


text:
    STATE ex rel. Richard HILL, Relator, v. The Honorable George C. BALDRIDGE, Respondent.
    No. SC 86761.
    Supreme Court of Missouri, En Banc.
    March 21, 2006.

      M. Douglas Harpool, Kristoffer R. Bare-field, Peter A. Lee, Richard D. Crites, Springfield, MO, for Relator.
    Richard L. Anderson, Branson West, MO, for Respondent.
   PER CURIAM.

Introduction

Richard Hill is the Stone County sheriff. His deputies responded to a telephone call to 911. The deputies entered a home, over objection. An occupant of the home, who allegedly had a rifle, was shot and killed by one of the deputies. Hill was not present at or aware of the incident. After being notified of the death, Hill made arrangements for the highway patrol to investigate the shooting.

The decedent’s mother filed a wrongful death suit against the deputy and Hill alleging that Hill was vicariously responsible for the deputy’s negligence. Hill sought summary judgment on the basis that vicarious responsibility did not apply to his acts in an official capacity. The trial court overruled the motion. Hill is entitled to summary judgment. The alternative writ is made peremptory.

Standard of Review

State ex rel. Missouri Highway & Transp. Comm’n v. Dierker, 961 S.W.2d 58, 60 (Mo. banc 1998), sets out the standards for reviewing the trial court action in this case. If the pleadings show that a defendant is immune from suit as a matter of law and the trial court refuses to grant summary judgment, a writ of mandamus is appropriate. This Court reviews the record de novo in the light most favorable to the party against whom judgment is sought.

Discussion

In the underlying suit, the plaintiff asserts that the deputy’s actions were taken in the course and scope of, and in furtherance of, his employment by Hill. On this basis, the plaintiff asserts Hill is vicariously hable for the deputy’s negligence. It is well-settled law, however, that public officers are not responsible for acts of subordinate officials: (1) if such subordinates are themselves employees of the government; (2) if there is no negligence on the part of such public officials in employing them; and (3) the superior officer has not directed or encouraged or ratified such acts or has personally co-operated therein. State ex rel. Green v. Neill, 127 S.W.3d 677, 679 (Mo. banc 2004). The petition does not allege that the deputy is not an employee of the government, that Hill was negligent in hiring the deputy, or that Hill directed, encouraged or ratified the negligent acts or has personally cooperated therein. Similarly, in her response to Hill’s motion for summary judgment, the plaintiff conceded that “her theory of recovery ... against ... Hill is respondeat superior ...” but fails to set out any facts showing Hill was negligent in hiring the deputy or that Hill directed, encouraged or ratified the negligent acts or had personally co-operated therein.

Even if plaintiff properly pleaded respondeat superior, Hill correctly asserts his official immunity. Public officers acting within the scope of their authority are not liable for injuries arising from their discretionary acts or omissions, but they may be held liable for torts committed when acting in a ministerial capacity. Kanazawa v. State By and Through Freeman, 685 S.W.2d 831, 835 (Mo. banc 1985). A “ministerial function” is one of a clerical nature that a public officer is required to perform upon a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to his own judgment or opinion concerning the propriety of the act to be performed. Id. at 836.

Plaintiff asserts, but did not plead, that her claims all relate to actions or inaction of Hill that “taken together under the circumstances of this case might reasonably lead a jury to a belief that [Hill] intended to affirm and ratify the action of his deputy.” To defeat a claim of official immunity, the law requires more. Plaintiff makes no allegation that Hill was required to perform a clerical act in a prescribed manner in obedience to legal authority.

Although invited to do so, the Court declines to abolish or modify the official immunity doctrine. Courts and legal commentators have long agreed that society’s compelling interest in vigorous and effective administration of public affairs requires that the law protect those individuals who, in the face of imperfect information and limited resources, must daily exercise their best judgment in conducting the public’s business. Id. at 836.

Conclusion

The alternative writ is made peremptory.

WOLFF, C.J., LAURA DENVIR STITH, PRICE, TEITELMAN, LIMBAUGH and RUSSELL, JJ., and KINDER, Sr.J., concur.

WHITE, J., not participating.


text:
    STATE of Missouri, Respondent, v. Charles L. SANCHEZ, Appellant.
    No. SC 87214.
    Supreme Court of Missouri, En Banc.
    March 21, 2006.

      Ellen H. Flottman, Office of Public Defender, Columbia, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa M. Kennedy, Asst. Atty. Gen., Jefferson City, for Respondent.
   PER CURIAM.

Introduction

Charles Sanchez argued with a woman with whom he was living about her decision to leave him. He held the woman and her two children hostage for several hours, but they eventually were released or escaped. During the incident, Sanchez acted nervous and paranoid, saying “that there [were] people following him ten cars back;” that “if anybody tried to come in the house he was going to burn down the house and take them out ...that people were “watching him;” and that “there was a torture room underneath the house” where people from California as well as people he worked with had been torturing children, including one of the children held hostage.

A jury convicted Sanchez of two counts of kidnapping, two counts of armed criminal action, one count of unlawful use of a weapon, and one count of arson in the first degree. Over Sanchez’s objection, the trial court incorrectly found that Sanchez was a prior and persistent offender and sentenced him to a total of 22 years in the department of corrections. The judgment is affirmed in part and reversed in part, and the case is remanded for resentencing.

Prior and Persistent Offender

If the state charged Sanchez as a “prior and persistent offender,” as defined by law, and proved the charge beyond a reasonable doubt, the trial court was required to adjudge him to be such an offender based upon specific findings of fact. State v. Stephens, 88 S.W.3d 876, 886 (Mo.App.2002). That an offender has been convicted of more than one felony is not alone sufficient to prove that the offender is a persistent offender. Section 558.016.3 states: “A ‘persistent offender’ is one who has pleaded guilty to or has been found guilty of two or more felonies committed at different times.” (Emphasis added.)

The state and Sanchez disagree as to when felonies can be considered to have been “committed at different times” for purposes of proving persistent offender status. In support of its assertion that Sanchez was a prior and persistent offender, the state offered evidence that Sanchez pleaded guilty to two firearm felonies occurring on the same date at roughly the same time. The evidence showed that on January 4, 1997, Sanchez, carrying a shotgun, entered a restaurant located in a shopping plaza. The police were notified. Sanchez left the restaurant in “an old Ford truck with a red spot ...” of paint on it. When they arrived on the scene, the police spotted the truck about 100 yards from the restaurant on the plaza parking lot. The police stopped Sanchez, removed him from the truck, patted him down, and found a handgun in Sanchez’s belt.

As a result of this incident, Sanchez pleaded guilty to two separate felonies: carrying a concealed weapon and exhibiting a shotgun in an angry or threatening manner. Sanchez argues that these two felonies arose out of a single incident and cannot be the basis for finding him to be a persistent offender.

On these facts, this Court agrees. Although the statutes do not define the phrase “committed at different times,” nor has this Court, felonies are not committed at different times if they are committed as a part of a continuous course of conduct in a single episode. In this case, the state failed to meet its burden to prove beyond a reasonable doubt that the felonies were part of more than a single episode so as to establish that they were committed at different times. There was no evidence as to whether Sanchez left the plaza parking lot, what time interval occurred between when the restaurant was entered and the truck was stopped, when Sanchez acquired the handgun, or whether Sanchez had the handgun at the time he. entered the restaurant. Therefore, the judgment as to Sanchez’s status as a persistent offender is reversed, and the case is remanded for resentencing.

Expert Testimony

Sanchez contends that the trial court abused its discretion in granting the state’s request to preclude him from presenting the defense of diminished capacity and delusional disorder. In a motion in limine, the State objected, in part, to the admission of three separate mental evaluations performed on Sanchez to evaluate whether Sanchez suffered from methamphetamine-induced delusions as a result of his history of drug abuse. The trial court sustained the motion on the basis that testimony of voluntary intoxication is not admissible to negate the mental state of an offense. See State v. Rhodes, 988 S.W.2d 521, 525 (Mo.App.1999). At trial, Sanchez never sought to introduce any expert testimony supporting his contention that he suffered methamphetamine-induced delusions. An offer of proof is required to allow the trial court to consider the testimony in context and to make an informed ruling as to its admissibility. State v. Clay, 975 S.W.2d 121, 131 (Mo. banc 1998). Sanchez failed to take the opportunity to make such an offer of proof, and nothing is preserved for review.

Similarly, Sanchez’s claim that he should have been allowed to introduce expert testimony regarding his defense of diminished, capacity in. rebuttal has no merit. He never made an offer of proof on the issue, and nothing is preserved for review.

Testimony on Methamphetamine Use

The next claim is that the state should not have been permitted to elicit testimony that Sanchez may have been using methamphetamine at the time of the crime. One of the hostage negotiators gave this testimony. ■ The state justified the testimony because otherwise the jury would not have an alternative explanation for the inference Sanchez was seeking that he was mentally ill.

Trial courts have broad discretion to admit or exclude evidence at trial. A reviewing court will reverse only upon a showing of a clear abuse of discretion. State v. Chaney, 967 S.W.2d 47, 55 (Mo. banc 1998). In this case, the state limited the testimony to stating that Sanchez’s behavior was consistent with drug use. The witness explained that this fact affected his method of negotiating. He also testified that he had no idea whether Sanchez was on drugs.

In this case the testimony was admissible as a part of the sequence of events surrounding the crime, in order to paint for the jury a complete and coherent picture of the offense. State v. Hams, 870 S.W.2d 798, 810 (Mo. banc 1994). The testimony also rebutted Sanchez’s inference that he was mentally ill. The trial court’s ruling is not clearly against the logic of the circumstances then before the court and is not so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.

Prosecutor’s Closing Argument

In reviewing Sanchez’s next point on appeal, the Court observes that to prevail on plain error review, Sanchez must show that the trial court’s error so substantially violated his rights that manifest injustice or a miscarriage of justice results if the error is not corrected. State v. Parker, 886 S.W.2d 908, 917 (Mo. banc 1994). Plain error will seldom be found in unobjected to closing argument. State v. Kempker, 824 S.W.2d 909, 911 (Mo. banc 1992).

It is well settled that relief should be rarely granted on assertion of plain error to matters contained in closing argument, for trial strategy looms as an important consideration and suchv assertions are generally denied without explanation. State v. Cobb, 875 S.W.2d 533, 537 (Mo. banc 1994). Such situations rarely merit plain error review because in the absence of objection and request for relief, the trial court’s options are narrowed to uninvited interference with summation and a corresponding increase of error by such intervention. State v. Silvey, 894 S.W.2d 662, 670 (Mo: banc 1995).

In this case, the state argued in rebuttal closing argument that “if there were [irrational thoughts] you would have heard from some doctors.” The argument was made in response to the repeated references defense counsel made in closing argument to Sanchez’s “irrational thoughts” and state of mind. A prosecutor has considerable leeway to make retaliatory arguments at closing. A prosecutor may retaliate to an issue raised by the defense even if the prosecutor’s comment would be improper. State v. Clayton, 995 S.W.2d 468, 479 (Mo. banc 1999). In this instance, the state’s closing argument was not improper in that it was rebutting the numerous remarks made by Sanchez’s counsel as to Sanchez’s irrational behavior in the closing argument.

Further, closing arguments must be interpreted with the entire record rather than in isolation. State v. Edwards, 116 S.W.3d 511, 536-37 (Mo. banc 2003). Sanchez fails to show this Court how these closing arguments had any decisive effect on the jury, given the overwhelming evidence of his guilt. There was no abuse of discretion in the trial court’s failure to sua sponte intervene in the State’s closing argument, nor is there trial court error rising to the level of a miscarriage of justice or manifest injustice. See Edwards, 116 S.W,3d at 535-36.

Sufficient Evidence of Arson, First Degree

Section 569.040.1 sets out the crime of arson, first degree:

A person commits the crime of arson in the first degree when he knowingly damages a building or inhabitable structure, and when any person is then present or in near proximity thereto, by starting a fire or causing an explosion and thereby recklessly places such person in danger of death or serious physical injury.

Sanchez asserts that there was insufficient evidence to prove the crime because there was insufficient evidence he “knowingly disregarded an unjustifiable risk that he was placing nearby persons in danger of death or serious physical injury.” He argues that the only people that he put “in danger of death or serious physical injury” were the police officers and firefighters who were on the scene and “who respond to every fire.”

A directed verdict of acquittal is authorized only where there is insufficient evidence to support a guilty verdict. State v. Morovitz, 867 S.W.2d 506, 508 (Mo. banc 1993). In this case, Sanchez told a police negotiator, “I poured gas all over the place; I’m going to torch it.” Immediately thereafter the house caught on fire. The negotiator testified that he personally went to the houses on either side of Sanchez’s home in order to evacuate the residents due to the possibility of gunshots and fire in the area. ■ He testified that he felt the need to evacuate those houses because the siding on the house immediately adjacent to Sanchez’s house was actually beginning to melt on the house and the officers were worried about the safety of those occupants.

Other evidence proved that after setting the house on fire and emerging from the back porch, Sanchez pointed his gun at the police officers who were waiting to apprehend him. After one of the officers fired a shot at Sanchez and missed, Sanchez dropped his gun and lay down on the concrete in a pool of water that was forming from the fire hoses. The.negotiator testified that at that time the water “was probably six inches, eight inches deep” from where he was all the way to the house and that it was like a torrential downpour of water flowing on their heads from the fire hoses. He went on to state that the power lines were right over their heads and they were burning, and the insulation was melting off. He thought the power lines were going to melt and fall into the water and electrocute people.

A fire inspector testified that the siding on the home next door to Sanchez’s had melted due to the fire Sanchez started. The inspector referenced several photographs showing the damage from radiant heat that was suffered by the residence next door. He noted that the house next door to Sanchez’s had been in great danger of being set on fire and that once that siding has melted away and burned like that, it would not take very long for the rest of the wooden structure of the house to catch fire. He went on to reference the danger of electrocution from falling power lines as well as his belief that the fire put police officers, firefighters, and neighbors in danger of death or serious physical injury.

The foregoing testimony is sufficient evidence from which the jury could have found that Sanchez knowingly set his own home on fire and recklessly placed numerous people in danger of death or serious physical injury. The trial court did not err in denying Sanchez’s motion for judgment of acquittal and in sentencing San'chez for the commission of arson, first degree.

Multiple of Kidnapping

In his last point, Sanchez maintains his right to be free from double jeopardy was violated by his conviction on two separate counts of kidnapping with respect to the same victim. The jury found Sanchez guilty on one count that the victim was confined for the purpose of inflicting physical injury or terrorizing her and on a second count that the victim and another victim were confined for the purpose of using them as a shield or hostage. Sanchez argues that kidnapping is a continuing course of conduct and, therefore, he only committed one crime.

In State v. French, 79 S.W.3d 896, 898-99 (Mo. banc 2002), this ; Court reviewed the analysis to be used. The Double Jeopardy Clause prohibits multiple punishments for the same, offense. Where multiple punishments are imposed following a single trial, double jeopardy analysis is limited to determining whether multiple punishments were intended by the legislature. In other words, multiple punishments are permissible if the defendant has in law and in fact committed separate crimes. To determine whether the legislature intended multiple punishments, a court looks first to the “unit of prosecution” allowed by the statutes under which the defendant was charged. Only where the charging statute is silent as to the unit of prosecution must recourse be made to Missouri’s general cumulative punishment statute.

Sanchez was charged under section 565.110.1, which states in pertinent part that:

A person commits the crime of kidnapping if he unlawfully removes another without his consent from the place where he is found or unlawfully confines another without his consent for a substantial period, for the purpose of
(2) Using the person as a shield or hostage; or
(5) Inflicting physical injury on or terrorizing the victim or another.

The jury convicted him of confining the woman with whom he was living for the purpose of inflicting physical injury on her or terrorizing her. The jury separately convicted him of confining the woman and her child for the purpose of using them as shields or hostages. Since the crime is defined with reference to confining “another” and there is more than one victim, section 565.110.1 allows for more than one allowable unit of prosecution. See State v. Thompson, 147 S.W.3d 150, 160 (Mo.App. 2004).

That the same victim is contained in both instructions does not change the analysis. That victim’s inclusion in the “shields and hostages” instruction did not prejudice Sanchez. The jury was required to find that the child also was used as a shield or hostage. The instructions required two separate persons to be victimized in different ways. The duplication was mere surplusage as the name of the victim is not an element of the crime. See State v. Bradshaw, 81 S.W.3d 14, 23 (Mo. App.2002).

Conclusion

The judgment as to Sanchez’s status as a persistent offender is reversed; the judgment in all other respects is affirmed; and the case is remanded for resentencing.

All concur.

      . This Court transferred this case after an opinion by the Court of Appeals, Southern District, authored by the Honorable Robert S. Barney. Mo. Const, article V, section 10. Parts of that opinion are incorporated without further attribution.

      . See section 565.110, section 571.015, section 571.030.1(4), and section 569.040, respectively. All statutory citations are to RSMo 2000.

      . On remand, if appropriate, the court can correct the classification of the kidnapping offense.

      . Section 556.041.


author: RONNIE L. WHITE, Judge.

text:
    Ryan K. YORK, Respondent, v. DIRECTOR OF REVENUE, State of Missouri, Appellant.
    No. SC 87159.
    Supreme Court of Missouri, En Banc.
    March 21, 2006.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Cheryl Caponegro Nield, Deputy Solicitor, Jefferson City, for appellant.
    Carl M. Ward, Washington, for respondent.
   RONNIE L. WHITE, Judge.

I.

The Director of Revenue (Director) revoked Ryan K. York’s driver’s license based upon a probable cause determination that he was driving while intoxicated. The circuit court reinstated York’s driving privileges concluding that the facts were insufficient to support probable cause. The judgment is affirmed.

II.

The evidence, in the light most favorable to the judgment, indicates that a Missouri State Highway Patrol Trooper arrested York at a sobriety checkpoint on Missouri Highway 19. York was not driving erratically, he had not committed any traffic violations, he made no attempt to avoid the checkpoint and he produced his license and insurance card with no difficulty. The trooper spent a total of only three minutes with York prior to placing him under arrest.

The trooper claimed that she detected a strong odor of alcohol around York and noticed that his eyes were watery, bloodshot, and glassy. According to the trooper’s testimony, these observations alone were insufficient to establish intoxication so she performed three field sobriety tests and a portable breath test (PBT) to help develop probable cause for a possible arrest. She would later testify that York had problems with his balance, with walking and turning, and with his speech, but at trial was unable to recall if these observations were made in association with the field sobriety tests prior to the arrest, as is required to establish probable cause. She also admitted at trial that she improperly administered all of these tests and that her failure to do so seriously compromised their validity.

The circuit court found that the trooper’s testimony regarding her probable cause determination was not credible and excluded the evidence of the improperly performed tests. The court also determined that the only uncontroverted indicia of intoxication, including the odor of intoxicants and York’s eyes being watery, bloodshot and glassy, and York’s admission to drinking one or two beers were insufficient to support probable cause to arrest and ordered the Director to reinstate York’s driving privileges.

III.

“This Court will affirm the trial court’s judgment 'unless there is no substantial evidence to support it, unless the decision is contrary to the weight of the evidence, or unless the trial court erroneously declares or applies the law.” This Court also defers to the trial court’s determination of credibility of the witness testimony.

“Section 302.505.1 permits the department of revenue to suspend or revoke the driver’s license of any person arrested upon probable cause of driving while intoxicated.” “An aggrieved driver can seek a trial de novo.” “At the trial the court must determine whether the suspension or revocation is supported by evidence that: (1) the driver was arrested upon probable cause for violating an alcohol-related offense; and (2) the driver’s blood alcohol concentration exceeded the legal limit.” “The burden of proof is on the director of revenue to establish grounds for the suspension or revocation by a preponderance of the evidence.”

“The probable cause required for the suspension or revocation of a driver’s license is the level of probable cause necessary to arrest a driver for an alcohol-related violation.” “That level of probable cause mil exist when a police officer observes an unusual or illegal operation of a motor vehicle and observes indicia of intoxication upon coming into contact with the motorist.” “Probable cause, for the purposes of section 302.505, will exist when the surrounding facts and circumstances demonstrate to the senses of a reasonably prudent person that a particular offense has been or is being committed.” “The level of proof necessary to show probable cause under section 302.505 is substantially less than that required to establish guilt beyond a reasonable doubt.” “The trial court must assess the facts by viewing the situation as it would have appeared, to a prudent, cautious, and trained police officer.” “Whether there is probable cause to arrest depends on the information in the officers’ possession prior to the arrest.”

IV.

The Director argues that the trial court erred when excluding the results of the PBT because section 577.021 does not require any foundation for the admission of these tests. The Director further contends that the results of the PBT, when coupled with the remaining observations of the trooper, was sufficient evidence to support probable cause for York’s arrest and suspension of his driving privileges.

The relevant trial testimony from the trooper concerning her determination of probable cause for York’s arrest is summed up as follows:

Field Sobriety Tests:

Question: All right. And in fact, you compromised the validity of all of the tests that you administered in this particular’ case, because you didn’t follow the proper operating guidelines and procedures and give all the instructions your were required to; isn’t that true? Answer: According to my prior testimony, yes, sir.

Portable Breath Test:

Question: And you indicated you administered a portable breath test, a preliminary breath test?
Answer: Yes, sir, I did.
Question: And what did that indicate?
Mr. Ward: Judge, at this point, I’ve got a number of objections, but I think it would be appropriate if I would voir dire the witness concerning that test.
The Court: Any objection to that?
Mr. Chenault: Go ahead.
The Court: You may proceed.

Further Voir Dire Examination by Mr. Ward:

Question: Trooper, prior to administering this test on Mr. York, true or false, you did not have any specific training or special training or formal training in how to operate this unit?
Answer: Are you referring to the preliminary—
Question: The portable. The portable breath test that you used in this case.
Answer: On the preliminary breath test, no sir. No formal training.
Question: And you didn’t personally check this particular instrument for calibration, you didn’t have a Type-II to do that; is that correct?
Answer: A Type-II does that check. Yes, Sir.
Question: Okay. You don’t have any personal knowledge as to whether you— you didn’t do it; is that correct?
Answer: I did not, no, sir.
Question: Okay. And you didn’t observe it being done either; is that correct?
Answer: No, sir.
Question: All right. And you understand, in connection with the administration of the PBT, that there are operating guidelines for using that particular instrument; is that correct?
Answer: Yes, sir.
Question: Okay. In fact, there’s an operator’s card which you brought to the hearing the last time when we went through that; do you recall that?
Answer: Yes, sir, I do.
Question: In this particular case, you contacted Mr. York at the roadblock at 1943 [7:43 p.m.], according to your report; is that correct?
Answer: Yes, sir, that is correct.
Question: And then, the time you’ve indicated that he was arrested was 1946 [7:46 p.m.]; is that correct?
Answer: Yes, indeed.
Question: All right. And so we know, then, that you did not have him under your observation for 15 minutes or 20 minutes prior to administering that test on him; isn’t that true?
Answer: That is correct, sir.
Question: All right. And you don’t have any understanding of how that instrument worked, internally, at the time that you administered it, either; is that true?
Answer: Oh, no, sir.
Question: And you didn’t know if it was a fuel cell or a infrared-type devices; is that correct?
Answer: I do not know the mechanical workings of the preliminary breath test.
Question: Okay. Now a portable breath test is like any other field sobriety test, you use it to help develop probable cause; is that correct?
Answer: Yes, sir.
Question: Now, do you think — again, you’re a reasonably prudent, cautious, trained police officer. Should such an officer know how to properly administer that test?
Answer: Yes, sir.
Question: Okay. And should such an officer have some basic understanding of how the instrument works, and how to utilize it and follow the operating guidelines for the use of the instrument?
Answer: Yes, sir.
Question: Okay. And in this particular case, you did not follow those operating guidelines; isn’t that correct?
Answer: That is correct, sir.
Question: All right. And in your opinion, like any other field sobriety test, should an officer rely upon the results of an improperly administered field sobriety test when making a probable cause determination?
Answer: No, sir.

The testimony of the trooper controverts and discredits the Director’s evidence for establishing probable cause for the arrest. While section 577.021 provides that a PBT shall be admissible as evidence of probable cause to arrest, the circuit court found that the trooper lacked the proper training to administer the PBT and that no evidence existed to establish that the device used was properly calibrated, maintained or even working at the time it was used. Consequently, the court found that any evidence as to the results obtained from this test was not credible. Because the evidence of the test’s reliability was controverted, this Court gives deference to the trial court’s determination on the credibility of that evidence. The circuit court acted within its discretion when it ruled the PBT evidence not to be credible, and even assuming, arguendo, that the circuit court erred by excluding the PBT results, such an alleged error is harmless once the results were negated.

Additionally, the trooper was unable to recall if her observations, that York had problems with his balance, with walking and turning, and with his speech, were made prior to the arrest, as is required to establish probable cause. The credibility of this evidence is further strained with only three minutes elapsing between the time York made contact with the trooper and with him being placed under arrest. The circuit court correctly noted that the only uncontroverted indicia of York’s intoxication were the smell of alcohol, the fact that York’s eyes were watery, bloodshot and glassy, and York’s admission to drinking one or two beers. However, the trial court, in its discretion, was free to draw the conclusion that there was no probable cause based upon its assessment of this evidence and the officer’s own equivocation of the existence of probable cause.

Y.

The judgment is affirmed.

All concur.

      . The field sobriety tests included the horizontal gaze nystagmus (HGN) test, the walk-and-turn test, and a one-leg stand test.

      . Walker v. Director of Revenue, 137 S.W.3d 444, 446 (Mo. banc 2004); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

      . Verdoom v. Director of Revenue, 119 S.W.3d 543, 545 (Mo. banc 2003).

      . Id.

      . Id.

      . Id..; Section 302.535.1.

      . Id.

      . Brown v. Director of Revenue, 85 S.W.3d 1, 3 (Mo. banc 2002).

      . Id.

      . Id.

      . Id.

      . Id.

      . Hinnah v. Director of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002).

      . Section 577.021 provides: "Any state, county or municipal law enforcement officer who has the power of arrest for violations of section 577.010 or 577.012 and who is certified pursuant to chapter 590, RSMo, may, prior to arrest, administer a chemical test to any person suspected of operating a motor vehicle in violation of section 577.010 or 577.012. A test administered pursuant to this section shall be admissible as evidence of probable cause to arrest and as exculpatory evidence, but shall not be admissible as evidence of blood alcohol content. The provisions of section 577.020 shall not apply to a test administered prior to arrest pursuant to this section.”

      . Hinnah, 77 S.W.3d at 621.

      . Id.


author: RICHARD B. TEITELMAN, Judge.

text:
    STATE ex rel. BROADWAY-WASHINGTON ASSOCIATES, LTD., Relator, v. The Honorable Michael W. MANNERS, Respondent.
    No. SC 87121.
    Supreme Court of Missouri, En Banc.
    March 21, 2006.

      W. Edward Reeves, Caruthersville, Rhonda E. Smiley, Kansas City, for Relator.
    Steven E. Mauer, Jeremiah J. Morgan, Megan J. Redmon, Lucille R. Myles, Timothy P. Price, Kansas City, MO, for Respondent.
    Frederick H. Riesmeyer, II, Kansas City, Eric J. Shane, New York, NY, for Amicus Curiae.
   RICHARD B. TEITELMAN, Judge.

Relator Broadway-Washington Associates, Ltd. (“Broadway”), seeks a writ of prohibition barring respondent from taking any further action other than sustaining Broadway’s motion to dismiss the underlying condemnation action. The Tax Increment Financing Commission of Kansas City filed a condemnation petition five years after the adoption of the ordinance approving the redevelopment project. The circuit court entered an order of condemnation. Section 99.810.1(3), RSMo 2000, requires that the subject property be “acquired” within five years of the adoption of the ordinance. Filing a condemnation petition does not result in the acquisition of private property. Therefore, the circuit court was without jurisdiction to enter an order of condemnation, and the preliminary writ of prohibition previously issued is made absolute.

FACTS

The Real Property Tax Increment Allocation Redevelopment Act sections 99.800 to 99.865 authorizes municipalities to utilize eminent domain to take private property to facilitate redevelopment. On September 2, 1999, the City of Kansas City passed an ordinance authorizing a redevelopment plan under the act that included land owned by Broadway. The ordinance became effective on September 12, 1999.

On September 13, 2004, the commission filed a condemnation petition seeking to acquire Broadway’s property. Broadway filed a motion to dismiss, asserting that the trial court lacked subject matter jurisdiction because section 99.810.1(3) provides that the commission had to acquire the property within five years of the adoption of the ordinance. Broadway argued that filing a condemnation petition did not result in the acquisition of Broadway’s property and the condemnation was untimely under section 99.810.1(3). The circuit court overruled Broadway’s motion.

On July 13, 2005, the circuit court entered an order of condemnation. A hearing was held to determine the value of the property that was taken from Broadway. Broadway was awarded $3.23 million, and that amount was paid into the circuit court’s registry on October 18, 2005. On November 1, 2005, this Court entered a preliminary writ of prohibition.

Broadway argues that the word “acquired” as used in section 99.810.1(3) means that title to the property must be transferred within five years of the adoption of the ordinance. Conversely, the commission argues that the word “acquired” refers to filing a condemnation petition. The commission asserts that Broadway’s position misconstrues the statutory language and would enable a landowner to employ delay tactics preventing the acquisition of property within the five-year timeline.

ANALYSIS

I. Prohibition

Prohibition is a discretionary writ that may be issued to prevent an abuse of judicial discretion, to avoid irreparable harm to a party, or to prevent exercise of extra-jurisdictional power. State ex rel. York v. Daugherty, 969 S.W.2d 223, 224 (Mo. banc 1998). A writ of prohibition may be issued if condemnation proceedings are unauthorized. State ex rel. U.S. Steel v. Koehr, 811 S.W.2d 385, 388 (Mo. banc 1991).

II. Section 99.810.1(S)

Section 99.810.1(3) provides in pertinent part that “... no property for a redevelopment project shall be acquired by eminent domain later than five years from the adoption of the ordinance approving such redevelopment project....” The meaning of the word “acquired” is the key to the resolution of this case, but it is not defined within the Act. Absent a statutory definition, the plain and ordinary meaning of the specific words used must be followed. Ports Petroleum Co., Inc. of Ohio v. Nixon, 37 S.W.3d 237, 240 (Mo. banc 2001). Courts may look outside the plain meaning of the statute only when the language is ambiguous or would lead to an illogical result. Spradlin v. City of Fulton, 982 S.W.2d 255, 258 (Mo. banc 1998).

The word “acquire” means “to come into possession, control, or power of disposal of ...” (Merriam Webster Unabridged Dictionary, 3rd ed.). Under Missouri’s law of eminent domain, simply filing a condemnation petition does not give the condemnor “possession or control” over the subject property. To the contrary, since 1875, article I, section 26 of the Missouri Constitution has mandated that until the damages awarded by the commissioners are “paid to the owner, or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested.” Thus, the date of the taking is the date upon which the condemnor pays the commissioner’s award into court. State ex rel. Missouri Highway Commission v. Starling Plaza Partnership, 832 S.W.2d 518, 520' (Mo. banc 1992). Until the commissioner’s award is paid, the condemnor has no title to or right to possession and control of the subject property. It is only after the award is paid that the condemnor has “acquired” the property. The General Assembly is presumed to legislate with knowledge of existing law. Greenbriar Hills Country Club v. Director of Revenue, 47 S.W.3d 346, 352 (Mo. banc 2001). Therefore, contrary to the commission’s argument, the word “acquired” as used in section 99.810.1(3) does not refer to filing a condemnation petition. Instead, the word “acquired” refers to the transfer of ownership from the property owner to the con-demnor upon the payment of the commissioner’s award into the court or to the property owner. Holding otherwise would require this Court to ignore 130 years of Missouri eminent domain law on the plain meaning of the statutory term “acquired.”

CONCLUSION

The ordinance approving the redevelopment plan became effective on September 12, 1999. The commission paid the damage award into the circuit court on October 18, 2005. Therefore, the commission did not acquire Broadway’s property within five years of the adoption of the ordinance authorizing the redevelopment plan. The preliminary writ is made absolute.

WOLFF, C.J., PRICE, LIMBAUGH, RUSSELL and WHITE, JJ„ and RICHTER, Sp.J., concur.

LAURA DENVIR STITH, J., not participating.

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

      . Article I, section 28 of the Missouri Constitution provides that "... when an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be public shall be judicially determined without regard to any legislative declaration that such use is public.” It is an open question as to whether the procedures in the act comply with this constitutional mandate.

      .Broadway raises four additional arguments in support of its writ petition. These arguments were not previously raised and will not be addressed by this Court.

      . If the legislature had intended to require that a condemnation petition be filed within five years, it would have easily done so. Other statutes of limitation specifically provide that an action must be "commenced” within a certain time period. Section 516.100. Other statutes provides that an action "shall be brought” within a certain time period. Section 516.105. Instead of providing that a condemnation action must be "commenced” or "brought” within five years of the adoption of the ordinance approving the redevelopment plan, the legislature determined that subject property must be "acquired” within five years. This Court must give effect to the plain language of the section 99.810.1(3).


text:
    In the Interest of B.T. Juvenile Officer, Respondent, v. T.E. (Father), Appellant.
    No. SC 87265.
    Supreme Court of Missouri, En Banc.
    March 21, 2006.
    Jenifer W. Svancara, Danne W. Webb, Kansas City, for appellant.
    Jennifer E. Cicero, Office of Jackson County Circuit Court, Kansas City, for respondent.
    Donald S. Forrester, Kansas City, Ami-cus Curiae Guardian ad Litem.
   PER CURIAM.

B.T. was taken into protective custody and placed with the children’s division. After several reviews, the court held a disposition hearing. At the hearing, the juvenile officer introduced evidence of the father’s conviction in Texas. Under section 210.117, RSMo Supp.2004, in effect at the time of the hearing, the Texas conviction precluded the father from being reunited with B.T. or residing in the same home as B.T. The court entered judgment accordingly. The father contends the statute is invalid. This Court has jurisdiction. Mo. Const, article V, section S. Because section 210.117, RSMo Supp.2004, has been repealed, the judgment is vacated and the case is remanded.

If a new enactment supersedes the statute on which the litigants rely to define their rights, the issue no longer represents an actual controversy and is moot. See Committee for Educational Equality v. State, 878 S.W.2d 446, 454 (Mo. banc 1994). Lapse of time may create a condition that may cause the controversy involved in a case to become a mere moot question. Id.

In this case, section 210.117, RSMo Supp.2004, was repealed and replaced by section 210.117, RSMo Supp. 2005. Section 210.117, RSMo Supp.2005, permits discretion as to placement of the child notwithstanding the father’s Texas conviction. Once the General Assembly repealed section 210.117, RSMo Supp.2004, this Court’s basis for deciding the constitutionality of that statute evaporated. No relief can be granted concerning the validity of that statute, now repealed. C.C. Dillon Co. v. City of Eureka, 12 S.W.3d 322, 325 (Mo. banc 2000).

Although the issue of the validity of section 210.117, RSMo Supp.2004, is moot, the judgment relied on that section. Therefore, the judgment is vacated, and the case is remanded. On remand, the court can apply section 210.117, RSMo Supp.2005.

All concur.


author: MICHAEL A. WOLFF, Chief Justice. RONNIE L. WHITE, Judge

text:
    James HIGHFILL and Dan Highfill, Appellants, v. Mary HALE, Respondent.
    No. SC 86987.
    Supreme Court of Missouri, En Banc.
    March 21, 2006.

      Raymond Bozarth, Christopher A. Slusher, Jefferson City, for Appellants.
    David G. Bandre’ Jefferson City, for Respondent.
    Diana Carter, Jefferson City, for Defendants.
   MICHAEL A. WOLFF, Chief Justice.

Introduction

If “good fences make good neighbors,” what do bad fences make?

On the portion of James and Daniel Highfills’ property that is adjacent to Mary Hale’s property in- rural Gasconade County, there is an eight-foot high metal fence spray-painted with pictures and phrases on the side facing Hale’s property and “one-way glass” installed in one portion of the fence. The one-way glass would allow someone • standing on the Highfills’ property to observe Hale’s house and yard without Hale being able to see them. Video cameras are mounted on top of the fence in a position to observe Hale’s property.

To say that there is bad blood between the Highfills and Hale may understate the situation. Over the past several years, the Highfills and Hale have instigated multiple lawsuits and complaints against one another for various reasons. Some of these calls involved complaints by Hale that the Highfills were shooting firearms near her property. The Highfills claim that, around mid-September 2001, the sheriff told them that “if the calls don’t stop, someone’s gonna get arrested.”

While responding to prior complaints, various sheriffs deputies observed the fence, but none of them asked the Highfills to remove it or informed the Highfills that the fence was unlawful.

On September 21, 2001, Hale made three calls to the Gasconade County sheriffs office. The first two calls concerned prior complaints she had made against the Highfills. During the third call, which was made to the non-emergency number, she stated that she believed that she might have been shot. Two deputies, Casey Hat-ton and Matthew Oiler, were dispatched to Hale’s residence. Hale reported that she was mowing her lawn when she heard a loud noise that sounded like a gunshot and felt a burning in her arm, resulting in a red welt-like mark remaining on her arm.

While investigating Hale’s complaint, the deputies observed the fence. Although the fence had been described to them by others, this was the first occasion that either of these deputies personally observed the fence. While he was taking Hale’s statement, Deputy Hatton noticed, through the gap between the fence and the ground, that a person wearing white tennis shoes was looking through the one-way glass. Deputy Hatton later identified this person as James Highfill. Deputy Oiler testified that he felt it was “readily evident” that the purpose of the fence, complete with the one way glass and cameras, “was to be able to watch Ms. Hale, and, of course, Ms. Hale would know that she was being watched.”

Deputy Oiler reviewed the statute for stalking and concluded that the “statute fit what was going on with that fence.” He then telephoned the prosecuting attorney, described the fence to her, and asked her if she would consider filing charges if he arrested one or both of the Highfills for stalking. She responded that she would.

Both of the Highfills were arrested for stalking. The prosecutor ultimately decided not to file charges. Although there is some contrary evidence, when viewed in the light most favorable to the Highfills, the record supports their contention that the prior complaints between the parties were considered by the deputies in their decision to arrest the Highfills.

After the events of September 21, 2001, Hale was convicted of falsely accusing Daniel Highfíll of assault and of fabricating evidence in an unrelated incident.

The Highfills claim that their civil rights were violated during their confinement and that the deputies used excessive force in making the arrest, resulting in permanent injuries to James Highfíll. The Highfills filed suit against the deputies and Hale for false imprisonment. After the case was transferred to Osage County, the deputies were dismissed from the case based on official immunity.

The trial court found that, “[e]ven if Defendant Mary Hale’s initial report has been totally false, the deputy’s first hand observations of conduct that he thought was criminal, which was unrelated to the original report, created a disconnect such that, as a matter of law, Defendant Mary Hale can have no civil liability for false imprisonment.” The trial court granted summary judgment in favor of Hale. After opinion by the court of appeals, this Court granted transfer. Mo. Const, art. V, sec. 10.

The judgment is affirmed.

DISCUSSION

Summary Judgment Standard

Whether summary judgment should have been granted is a question of law and, therefore, reviewed de novo. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The evidence is viewed in the light most favorable to the party opposing summary judgment — in this case, the Highfills. See id. Summary judgment is proper where the movant establishes that there is no genuine dispute as to the material facts and that she is entitled to judgment as a matter of law. Id. at 380. As a defending party, Hale must demonstrate either: (1) facts negating one or more elements of the Highfills’ claim; (2) that the Highfills cannot and will not be able to prove one or more elements of their claim; or (3) that there is no material dispute about each fact necessary to establish an affirmative defense. See id. at 381.

False Imprisonment

False imprisonment, also called false arrest, is “the confinement, without legal justification, by the wrongdoer of the person wronged.” Warrem v. Parrish, 436 S.W.2d 670, 672 (Mo.1969). A person can be liable for false imprisonment if he encourages, causes, promotes, or instigates the arrest. Day v. Wells Fargo Guard Service Co., 711 S.W.2d 503, 505 (Mo. banc 1986); Blue v. Harrah’s North Kansas City, LLC, 170 S.W.3d 466, 472 (Mo.App. 2005). Whether a person instigated an arrest is a fact-specific inquiry; there is no fixed test that may be applied. Smith v. Allied Supermarkets, Inc., 524 S.W.2d 848, 852 (Mo. banc 1975).

Merely reporting facts to a police officer, and leaving it to that officer’s discretion whether to make an arrest, does not subject the reporter to liability for false arrest. Rustid v. Weidemeyer, 673 S.W.2d 762, 767 (Mo. banc 1984); Blue, 170 S.W.3d at 472. Even reporting incorrect information may not subject the reporter to liability, if the intent was not to direct the police to arrest a specific individual. See Smith, 524 S.W.2d at 852 (incorrect eyewitness identification not sufficient to create liability of witness for false arrest); Snider v. Wimberly, 357 Mo. 491, 209 S.W.2d 239, 242 (1948) (defendant not liable for false arrest where he “did not say that plaintiff was the prowler, but only said he thought plaintiff was the prowler”). It “requires something more than only furnishing wrong information” to be liable for instigating an arrest. Snider, 209 S.W.2d at 242. For example, evidence that a defendant “knowingly provided false, incomplete, or misleading information” may support a false imprisonment action. Jacobs v. Bonser, 46 S.W.3d 41, 48 (Mo.App.2001).

The fact that the officers in this case were dismissed from the suit based on official immunity does not necessarily absolve Hale of liability. “[A]n officer’s immunity does not extend to an individual who gives the officer information about a crime and encourages and requests the officer to arrest an innocent party.” Blue, 170 S.W.3d at 473.

The Highfills argue that the trial court’s judgment that there was a “disconnect” between the offense arrested for and the original report was incorrect because stalking requires conduct that is repeated and ongoing. Therefore, the Highfills argue, the deputies were required to evaluate the previous reports made by Hale. The problem with this argument is that, even if Hale had previously made false reports, the fence existed. The fence, complete with its graffiti, one-way glass, and surveillance cameras, was not a fabrication created by Hale. The deputies independently observed the fence on September 21, and it was known to have existed prior to September 21. The deputies reviewed the stalking statute and consulted the prosecutor before deciding to arrest the Highfills. If this decision was erroneous, Hale is not responsible for it simply because the deputies were on her property when they observed the fence.

The Highfills also argue that the trial court’s decision was improper because “a defendant’s course of conduct over an extended period of time may provide sufficient evidence to show that the defendant instigated false arrest.” This argument may be disposed of in the same way as the first: even though Hale made multiple pri- or complaints, some of which (but not all) were found to be false, this does not negate the deputies’ independent observations of the fence and their independent decision to arrest the Highfills.

If the Highfills had been arrested for shooting at Hale on September 21, this would be a different case. And, even were the intervening conduct not sufficient, here a fact even further distinguishes prior cases involving false imprisonment — it is the telephone call Deputy Oiler made to the prosecuting attorney. This call was an intervening event, separating Hale’s complaints from the High-fills’ arrest. Even assuming that Hale’s prior complaints were totally false and that the prior complaints were at least partly responsible for the decision to arrest the Highfills, Hale is not responsible for the deputy’s independent evaluation of the fence in relation to the stalking statute, his independent call to the prosecutor, or the prosecutor’s independent determination that she would consider fifing charges. Nor is Hale responsible for the prosecutor’s subsequent decision not to file charges.

The false imprisonment cases cited by the parties are generally not helpful in resolving this issue because they do not involve an independent intervening act like the call to the prosecutor. One case with similar facts, Rankin v. Venator Group Retail, Inc., 93 S.W.3d 814 (Mo.App.2002), weighs in favor of Hale.

The reason the deputies went to Hale’s property on September 21 was to investigate a report of shots being fired. Hale did not identify the Highfills or request that they be arrested for that offense. While there, the deputies observed the fence and independently decided to arrest the Highfills for an offense that was different from that which caused them to go to Hale’s property. Hale did not specifically request that the Highfills be arrested that day for stalking — or for any other crime.

Adopting the Highfills’ interpretation would lead to potential liability for almost anyone who complains about possible criminal behavior, dependent only on whether the defendant was ultimately charged and convicted. Since the complaining citizen has no control over whether the police decide to arrest someone or whether the prosecutor decides to bring charges, the Court declines to hold a reporting person responsible for false arrest simply for reporting information to the police.

Conclusion

Hale is entitled to summary judgment because she demonstrated facts that negate the element of causation that is necessary to the Highfills’ claim. Without showing causation, the Highfills cannot prevail against Hale for instigating their false imprisonment.

The judgment is affirmed.

LAURA DENVIR STITH, PRICE, LIMBAUGH and RUSSELL, JJ„ concur.

WHITE, J., dissents in separate opinion filed; TEITELMAN, J., concurs in opinion of WHITE, J.

RONNIE L. WHITE, Judge

dissenting.

I respectfully dissent. The principal opinion does an “end-run” around the proper standard of review for summary judgments by interjecting the outcome-oriented conclusion that the policemen’s call to the prosecutor constituted an intervening event disrupting the chain of causation. This conclusion ignores the obvious, that but for Hale’s instigation of an apparently false police report, and but for the protracted conflict between these two parties, which the officers considered, the Highfills would not have been subjected to a false arrest for the crime of stalking.

“The essence of the cause of action of false arrest, or false imprisonment, is the confinement, without legal justification, by the wrongdoer of the person wronged.” “A person may also be liable for false arrest if he does not actually confine the plaintiff but merely instigates it, as in the case of providing information on the basis of which a subsequent unlawful arrest is made.”

There is no dispute that the Highfills were restrained against their will when they were arrested without a warrant for stalking, and the Highfills are not required to prove that Hale explicitly ordered or directed the arrest, but only that her conduct amounted to encouraging or instigating the arrest. Instigation can be shown by direct or circumstantial evidence and can take place over an extended period of time.

The record supports, and the principal opinion admits, that multiple complaints made by Hale to the police prior to the day of the arrest were considered by the police at the time of the arrest. In fact, to be prosecuted for the crime of stalking there must be purposeful and repeated harassment, so the police had to consider the prior incidents when making their probable cause determination.

It is disingenuous to assert that the independent observation of “the fence” was all that was required to make this arrest. Moreover, the independent observation of this fence could have just as easily been interpreted as the Highfills taking defensive security measures against Hale’s actions, which could just as equally be considered grounds for an arrest for harassment and stalking. Indeed, the fact that Hale placed three calls to the police on the day of arrest supports an inference that she intended to continue calling until an arrest was made. Clearly there are disputed material facts as to the intent and motivations of Hale when she made her instigating calls to the police.

That being said, justification is a complete defense to this cause of action, and even if Hale instigated the arrest, she cannot be held liable for false imprisonment if the arrest was justified. To assert justification as an affirmative defense, Hale would have to prove that the arrest was lawful or that the officers had probable cause to make the arrest. “Probable cause to arrest exists when the arresting officer’s knowledge of the particular facts and circumstances is sufficient to warrant a prudent person’s belief that a suspect has committed an offense.” In general, “the defense of probable cause is a question of fact for the jury.”

Hale claims that the arrest was justified based solely on the police officers’ independent observations on the day of the arrest, but as previously noted the stalking statute only criminalizes conduct that amounts to purposeful and repeated harassment. Without an inquiry into the purpose of the fence and without specific knowledge of prior incidents of harassment by the High-fills against Hale, the police could not have formed a reasonable belief that the High-fills were guilty of stalking and there could be no probable cause to support the arrest. Moreover, knowledge of the facts and circumstances as to whether an offense has been committed for purposes of arresting someone is completely divorced from a prosecutor’s decision to charge a person for a crime. The call to the prosecutor is totally irrelevant to this determination.

For summary judgment purposes, a genuine issue of material fact exists if there is competent evidence in the record of two plausible, but contradictory, accounts of the essential facts. When viewed in the light most favorable to the Highfills, as is required, the record reveals that there is sufficient evidence from which a jury could determine that Hale instigated the arrest. Hale also failed to demonstrate the facts necessary to support the affirmative defense of probable cause. There are two plausible accounts concerning the material facts of this case, and the call to the prosecutor did not break the chain of causation.

The principal opinion’s claim that to allow a jury to hear this case would result in some type of global civil liability for anyone complaining about possible criminal behavior not only lacks merit, but essentially demonstrates a distrust of our jury system to competently examine the evidence and make a proper determination. Summary judgment in this instance was simply inappropriate. I would reverse and remand for further proceedings and trust our jury system to weigh the disputed material facts and reach the proper result.

        . Robert Frost, "Mending Wall,” in Collected Poems, Prose, & Plays 39, 39-40 (Literary Classics of the U.S.1995) (1914).

      . Section 565.225.2, RSM'o 2000, the applicable statute here, states: "Any person who purposely and repeatedly harasses or follows with the intent of harassing another person commits the crime of stalking.” "Harasses” is defined in section 565.225.1(3) as, "to engage in a course of conduct directed at a specific person that serves no legitimate purpose, that would cause a reasonable person to suffer substantial emotional distress, and that actually causes substantial emotional distress to that person.”

      . This opinion substantially follows the analysis of an opinion authored by the Honorable Glenn A. Norton.

      . Rustid v. Weidemeyer, 673 S.W.2d 762, 767 (Mo. banc 1984).

      . Id.

      . Day v. Wells Fargo Guard Service Co., 711 S.W.2d 503, 505 (Mo. banc 1986).

      . Id.

      . Section 565.225.2. All statutory citations refer to RSMo 2000.

      . Day, 711 S.W.2d at 505.

      . Wehrman v. Liberty Petroleum Co., 382 S.W.2d 56, 63 (Mo.App.1964); Parrott v. Reis, 441 S.W.2d 390, 392 (Mo.App.1969).

      . State v. Tokar, 918 S.W.2d 753, 767 (Mo. banc 1996).

      . Signorino v. National Super Markets, Inc., 782 S.W.2d 100, 103 (Mo.App.1989).

      . ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 382 (Mo. banc 1993).

      . Id. at 376.


text:
    STATE of Missouri, Respondent, v. Ricky RAY, Appellant.
    No. ED 85566.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 11, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 21, 2005.
    Application for Transfer Denied April 11, 2006.
    Ellen H. Flottman, Columbia, MO, for Appellant.
    Deborah Daniels, Shaun J. Mackel-prang, Jefferson City, MO, for Respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Ricky E. Ray (hereinafter, “Defendant”) appeals from the trial court’s judgment sentencing him to life imprisonment without the possibility of parole after a jury convicted him of murder in the first degree, Section 565.020 RSMo (2000). Defendant raises one point on appeal, claiming the trial court abused its discretion in failing to grant a mistrial in response to the State’s withholding of a witness’s statement which inculpated Defendant.

We have reviewed the briefs of the parties, the legal file, and the transcript on appeal and find no abuse of discretion in the trial court’s refusal to grant a mistrial. State v. Wallace, 43 S.W.3d 398, 402 (Mo. App. E.D.2001). An opinion reciting the detailed facts and restating the principles of law would have no precedential value. We have, however, provided a memorandum opinion, only for the use of the parties, setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Larry FOWLER, Appellant.
    No. WD 64461.
    Missouri Court of Appeals, Western District.
    Oct. 25, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 20, 2005.
    Application for Transfer Denied April 11, 2006.

      Kent Denzel, Columbia, MO, for appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for respondent.
    Before SMART, P.J., LOWENSTEIN and HARDWICK, JJ.
   ORDER

PER CURIAM.

Appellant, a prisoner in a Department of Corrections facility, broke a window while arguing with another inmate. He was convicted of damaging state property under Mo.Rev.Stat. § 217.385.2 (2000). On appeal Appellant claims his conviction is not supported by sufficient evidence. Affirmed. Rule 30.25(b).


text:
    Larry D. BITTICK, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64515.
    Missouri Court of Appeals, Western District.
    Nov. 22, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 3l, 2006.
    Application for Transfer Denied April 11, 2006.
    Larry D. Bittick, pro se.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, for respondent.
    Before VICTOR C. HOWARD, P.J., JAMES M. SMART, JR., THOMAS H. NEWTON, JJ.
   Order

PER CURIAM.

Larry Bittick appeals the denial of his Rule 29.15 motion following an evidentiary hearing, in which he sought relief from his convictions on one count of second-degree assault on a law enforcement officer and three counts of second-degree assault. Having carefully considered the contentions on appeal, we find no grounds for reversing the decision. Publication of a formal opinion would not serve jurisprudential purposes or add to understanding of existing law. The judgment is affirmed. Rule 84.16(b).


author: KENNETH M. ROMINES, Judge.

text:
    Gordon NEILSON, Plaintiff/Appellant, v. Mark T. McCLOSKEY and Mark T. McCloskey, P.C., Defendant/Respondents.
    No. ED 86199.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 22, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 19, 2006.
    Application for Transfer Denied April 11, 2006.

      Lawrence 0. Willbrand, Lawrence 0. Willbrand, P.C., St. Louis, MO, Thomas Ducey, Dueey & Associates, P.C., Belle-ville, IL, for appellant.
    Mark T. McCloskey, McCloskey, P.C., Patricia N. McCloskey, (pro se), St. Louis, MO, for respondent.
   KENNETH M. ROMINES, Judge.

This case involves the application of the Rules of Professional Conduct. The trial court granted Defendant-Respondents’ Motion to Dismiss for failure to state a claim. We affirm.

The record before the trial court consists of several amended petitions and motions to dismiss. Stripped of the nonessential, Neilson alleges that he entered into an agreement with McCloskey that McCloskey would represent one of Neil-son’s clients in an automobile accident; that the representation would be joint; and, the fee would be evenly divided between counsel. Clear is the fact that a settlement was reached in the sum of two million five hundred thousand dollars ($2,500,000), of which one million dollars ($1,000,000) was attorney fees. Clear also are the facts that McCloskey sent Neilson a check for two hundred and twenty-five thousand dollars ($225,000) — Neilson refused to negotiate the check—and stop payment was then made on the check. Neilson and McCloskey are not in the same firm.

Neilson filed suit alleging, inter alia, several tort theories. Neilson was granted leave to amend five times; on the sixth request to amend, the trial court granted McCloskey’s Motion to Dismiss for failure to state a claim.

Our standard of review goes to whether the trial court abused its discretion. Dow-ney v. Mitchell, 835 S.W.2d 554, 556 (Mo. App. E.D.1992).

Rule 4—1.5(e) states, in pertinent part:

(e) A division of fee between lawyers who are not in the same firm may be made only if:
(1) the division is in proportion to the services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation;
(2) the client is advised of and does not object to the participation of all the lawyers involved; and
(3) the total fee is reasonable.

The Comment to 4-1.5(e), as pertinent, states:

Paragraph (e) permits the lawyers to divide a fee on either the basis of the proportion of services they render or by agreement between the participating lawyers if all assume responsibility for the representation as a whole and the client is advised and does not object. It does not require disclosure to the client of the share that each lawyer is to receive. Joint responsibility for the representation entails the obligations stated in Rule 5.1 for purposes of the matter involved.

Neilson, after five tries, made no allegation that he was in the same firm with McCloskey, that the fee was to be divided in proportion to the efforts by each, or that there was a written agreement with the client that each attorney would assume joint responsibility.

None of the pleadings set out a claim that would be justiciable given the dictates of Rule 4-1.5(e). None of the pleadings set out a claim for quantum meruit. Neil-son failed to state a claim. There was no abuse of discretion in the trial court dismissing this cause.

Attorney’s fees “... are not owned, they are earned ..If an attorney wants a share of the fee, he must perform an appropriate share of the legal services in the case. (Risjord v. Lewis, 987 S.W.2d 403, 406 (Mo.App.W.D.1999)). This requires actual participation in the handling of the case, or the assumption of a financial and ethical responsibility for the case. This fundamental requirement applies to attorneys seeking fees for legal services performed and to those claiming fees for assuming joint responsibility for representation in the case.

In sum, an agreement to share attorney fees that does not comply with Rule 4-1.5(e) is unenforceable. Londoff v. Vuylsteke, 996 S.W.2d 553, 557 (Mo.App.E.D.1999); see also Risjord v. Lewis, 987 S.W.2d 403, 404 (Mo.App.W.D.1999) and McFarland v. George, 316 S.W.2d 662, 670 (Mo.App.1958) (construing predecessor Rule 4.34). Clearly the rules of professional conduct have the force and effect of judicial decision. In re Ellis, 359 Mo. 231, 221 S.W.2d 139,141 (1949).

We on this Court are not so far removed from the real world not to know that in commerce between attorneys, attorneys must rely on the integrity of one another, and that promises made are to be promises kept. While difficult to reconcile the two hundred and twenty-five thousand dollar ($225,000) check to Neilson from McCloskey, Rule 4-1.5(e) does not let us engage in the inquiry.

The Judgment is affirmed.

GARY M. GAERTNER, SR., P.J., and GEORGE W. DRAPER III, J., concur.

      . We note that this body of law is well known to Neilson and his counsel. See Dairyland Ins. v. Cobbs, 8 S.W.3d 191 (Mo.App. E.D. 1999).

      . Callously explained in the McCloskey brief as follows: "What plaintiff fails to understand is that when a young lawyer offers an old lawyer a gratuity out of generous spirit, that gift if rejected, does not create a right.” (Resp. Br. at 7.)


text:
    STATE of Missouri, Plaintiff/Respondent, v. Michael LIGGINS, Defendant/Appellant.
    No. ED 86033.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 29, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 24, 2006.
    Application for Transfer Denied April 11, 2006.
    Celestine Dotson, St. Louis, MO, for appellant.
    Tim Lemen, Clayton, MO, for respondent.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Michael Liggins (Defendant) appeals from a judgment of conviction of driving while intoxicated (DWI). We have reviewed the briefs of the parties and the record on appeal and conclude that the record contained sufficient evidence from which the trial court could have found Defendant guilty beyond a reasonable doubt of DWI. State v. Shinn, 921 S.W.2d 70, 72-73 (Mo.App.E.D.1996). We also conclude that it was not improper to proceed with the prosecution in circuit court and that no prejudice resulted to Defendant in proceeding under the information as charged. An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Criminal Procedure 30.25(b).


text:
    Sally ROSS, Appellant, v. CROW BROKERAGE COMPANY, INC. d/b/a Trammell Crow Company, Respondent.
    No. ED 85596.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 29, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 9, 2006.
    Application for Transfer Denied April 11, 2006.
    Matthew J. Ghio, Chackes, Carlson and Spritzer, LLP, St. Louis, for appellant.
    Krissa P. Lubben, Amy E. Clendennen, Thompson Coburn LLP, St. Louis, Mary C. Dollarhide, Paul, Hastings, Janofsky & Walker LLP, San Diego, CA, for respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Appellant, Sally Ross (“Ross”), appeals the judgment of the Circuit Court of St. Louis County, entered after a jury trial, in favor of Respondent, Crow Brokerage Company, Inc. D/B/A Trammell Crow Company (“Crow Brokerage”). Ross had filed a wrongful discharge claim against Crow Brokerage asserting she was discharged in violation of a public policy exception to the employment at-will doctrine. We affirm.

We have reviewed the briefs of the parties and the record on appeal. As an extended opinion would serve no jurisprudential purpose, we affirm the judgment pursuant to Rule 84.16(b). We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision.