author: JAMES K. PREWITT, Judge.

text:
    BOARD OF EDUCATION OF THE SCHOOL DISTRICT OF SPRINGFIELD, R-12 and Greene County, Missouri, Plaintiffs-Respondents, v. CITY OF SPRINGFIELD, Missouri, Defendant-Appellant.
    No. 26453.
    Missouri Court of Appeals, Southern District, Division One.
    Sept. 8, 2005.
    Application for Transfer Denied Oct. 7, 2005.
    Application for Transfer Denied Nov. 22, 2005.

      Neil R. Shortlidge, Stephen P. Chinn, and Paul A. Campo, Stinson, Morrison, Hecker, L.L.P., Overland Park, Kansas and Paul F. Sherman, Mann, Walter, Bishop & Sherman, P.C., Springfield, MO, for Appellant City of Springfield.
    Ransom A. Ellis III and Laura J. Johnson, Ellis, Ellis, Hammons & Johnson, Springfield, MO, for Respondent Board of Education of the School District of Springfield, R-12.
    Theodore L. Johnson III and John W. Housley, Office of Greene County Counsel- or, Springfield, MO, for Respondent Greene County, Missouri.
   JAMES K. PREWITT, Judge.

City of Springfield, Missouri (“City”) appeals from summary judgment in favor of the Board of Education of the School District of Springfield, R-12 (“School Board”) and Greene County, Missouri (“County”) regarding the application of § 89.380, RSMo 2000, to public facilities of School Board and County.

Background

In March of 2001, County purchased five parcels of real property in the 1200 block of North Robberson, in the city of Springfield, for the purpose of relocating and constructing a residential treatment center for juveniles under the authority of the Greene County Juvenile Court, pursuant to § 211.161(3), RSMo. Thereafter, property at 1200 North Boonville Avenue was also acquired by County. Although County voluntarily initiated contact with neighboring residents in order to address their concerns and obtain input regarding the proposed treatment center, there was opposition to its relocation, and neighboring residents expressed their opposition to members of Springfield City Council (“Council”).

On March 22, 2001, City’s Planning and Zoning Commission (“Commission”) adopted an “updated Mid-Town Neighborhood Plan as an element of the Master Plan for the development of the City[.]” City had adopted a comprehensive Master Plan in December of 1996. The Master Plan, a planning and zoning ordinance, is administered by City’s Planning and Development Department and the Commission. In addition to provisions for historic preservation, center-city development, public improvements, and parks and recreational areas, the Master Plan also included a “Shared-Use Principle.” This element of the Master Plan provided for cooperation between City, County and other political jurisdictions in issues involving growth management and land use, including “recommendations concerning the location, extent and character of public ‘facilities’ within the city.” City contends that County approved the Master Plan on March 17, 1997 and that both Respondents contributed to and participated in the development of the plan.

By passage of Resolution No. 8834 on April 2, 2001, Council adopted the updated Mid-Town plan, designed to “[pjrotect and improve the single-family character of the neighborhood!;,] ... [m]anage the expansion of institutional uses without negatively affecting the ... residential portions of the neighborhood!,]” [and] “[coordinate public improvements and encourage private redevelopment[.]” The North Robberson property purchased by County is situated within the geographical borders of the Mid-Town Neighborhood, although County purchased the property prior to the adoption of Resolution No. 8834.

On July 9, 2001, Council adopted Resolution No. 8873, “[u]rging all governmental agencies within the City of Springfield to coordinate the planning of public facilities by submitting plans for public facilities which are within the scope and recommendation of the City’s Master Plan to the Planning and Zoning Commission of the City of Springfield, as required by section 89.380 of the Revised Statutes of the State of Missouri.”

Early in 2002, School Board began negotiations for the purchase of real property located at 1110 North Jefferson for the expansion of a parking lot serving Central High School and the school district’s administrative offices. In April of 2002, School Board initiated a review of existing educational facilities and was considering the possibility of closing and/or relocating certain public school facilities within the city.

In a letter dated February 19, 2002, City’s Director of Planning and Development wrote to School District’s Superintendent, Jack Ernst, advising that the pur-’ chase of land by School Board and its proposal to close school facilities triggered the application of § 89.380, RSMo 2004, and that School Board’s purchase and planned closures required approval by the Commission. Separately, City Attorney Wright wrote Councilwoman Mary Col-lette, on February 19, 2002, stating that violation of § 89.380 provided City with the right to “commence a civil action” against any public entity. In regard to School Board’s plans to close or relocate public school facilities, Wright stated that § 89.380 “requires the R-12 School District to submit the proposed use to the City Planning Commission.” Likewise, County was advised through City’s attorney that its plans for development or use of any public facility upon real property located within the city, particularly the development of the North Robberson property, would be subject to the requirements set forth in § 89.380.

On May 7, 2002, School Board filed a Petition for Declaratory Judgment contending that, under §§ 89.380 and 89.491 and City’s Resolution No. 8873, Commission has no authority “to require Plaintiff Board or District to submit any of Plaintiff Board’s decisions for review, approval or disapproval of Defendant City’s Commission.” School Board also requested a declaration that City has no authority to file any enforcement action alleging a violation for failure to comply. In support of its position, School Board asserts that its right to acquire land is specifically granted to School Board by Article I, Section 26, and Article IX, Section 1(a) of the Missouri Constitution, and § 177.073, RSMo, which, according to School Board, vests it and the school district “with exclusive power to select, locate, procure and use sites for its public schools within Defendant City, without any restriction thereon by an ordinance of Defendant City.”

On May 13, 2002, County filed a Motion to Intervene, which the trial court granted on June 13, 2002. County filed its Petition for Declaratory Judgment on July 1, 2002, contending that § 89.380 has no application to County’s plans to develop the North Robberson property or any other property it owns or may acquire, in that §§ 49.270 and 49.300, RSMo “vest [County] with the exclusive power to select, locate, procure and use sites for its public facilities within Defendant City without any restriction thereon[J”

City filed its Answer and Counterclaim for declaratory judgment in response to School Board’s petition on June 14, 2003. On June 21, 2002, responding to County’s petition, City filed its Answer and Counterclaim for declaratory judgment. City contended that both School Board and County are subject to the provisions of § 89.380. City also requested injunctive relief requiring School Board and County to comply with the statute.

Subsequently, all parties moved for summary judgment. The trial court granted summary judgment in favor of School Board and County on June 9, 2004, finding that § 89.380 was not applicable to either Respondent, and City has no authority to seek any enforcement action against Respondents. City filed a motion to amend judgment pursuant to Rule 75.01 on July 8, 2004, which the trial court overruled on August 3, 2004. City filed Notice of Appeal on August 12, 2004.

Issue as to Timeliness of Notice of Appeal

School Board and County contend that this Court lacks jurisdiction because City failed to file a timely notice of appeal, in that City moved “for an Order pursuant to Rule 75.01 amending said judgment.” Respondents contend a motion filed under Rule 75.01 does not act to extend the finality of the judgment. Both assert that the judgment became final thirty days after its entry on June 9, 2004, thus the notice of appeal filed on August 12, 2004 was untimely. This issue was taken with the case for determination when the appeal was submitted to this Court.

City’s motion to amend judgment stated:

COMES NOW Defendant, the City of Springfield, Missouri (“City”), and within the thirty-day period after entry of judgment, which judgment was entered on the 9th day of June, 2004, moves the Court for an Order pursuant to Rule 75.01 amending said judgment. In support of this motion, the City refers the Court to the accompanying Suggestions in Support.

Within the Suggestions in Support of Defendant’s Motion to Amend Judgment, City requests the trial court amend its judgment by striking or clarifying specified paragraphs. City also indicated therein that it was filing its motion in order to clarify issues for the appellate court and avoid further proceedings.

In response to this Court’s order to show cause why the appeal should not be dismissed, City states that it “mistakenly referenced Rule 75.01 instead of Rule 78.04” in its motion to amend the judgment. “Generally, under Rule 75.01, a trial court retains jurisdiction for thirty days, during which it may vacate, reopen, correct, amend, or modify its judgment.” Dangerfield v. City of Kansas City, 108 S.W.3d 769, 772 (Mo.App.2003).

Rule 78.04 states, in part: “Any motion for new trial and any motion to amend the judgment or opinion shall be filed not later than thirty days after the entry of judgment.” However, under Rule 81.05, the trial court’s jurisdiction may be extended up to ninety days upon the filing of an authorized after-trial motion. American Family Mut. Ins. Co. v. Hart, 41 S.W.3d 504, 511 (Mo.App.2000). A motion for a new trial under Rule 78.04 is such an “authorized after-trial motion.” Id.

, “Refusing to consider the allegations of a motion because the motion fails to cite the specific rule under which it is authorized ... exalts form over substance.” Blue Ridge Bank & Trust Co. v. Hart, 152 S.W.3d 420, 425 (Mo.App.2005). “[TJhere is a general tendency of courts to construe improperly titled ... after-trial motions as motions for new trial.” Clandon v. Daimler Chrysler Corp., 142 S.W.3d 174,177 (Mo.App.2004).

The substance of the motion qualifies it as a motion to amend under Rule 78.04, which extends the time in which the judgment became final, and so we treat it as such. The notice of appeal was timely. We now review the merits of the appeal.

Merits of Appeal

Summary judgment is appropriate when the moving party demonstrates “no genuine issue as to any material fact and is entitled to a judgment as a matter of law.” Rule 74.04(c)(3). The purpose of summary judgment is to move the parties beyond the allegations of the pleadings and to determine if a dispute in fact exists for trial. Martin v. City of Washington, 848 S.W.2d 487, 491 (Mo.banc 1993). On appeal from summary judgment, the record is reviewed in the light most favorable to the party against whom judgment was entered. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.banc 1993). Appellate review is essentially de novo, as “[t]he propriety of summary judgment is purely an issue of law.” Id.

The Missouri Constitution gives “cities broad authority to tailor a form of government that its citizens believe will best serve their interests.” Mo. Const, art. VI, §§ 19-22. City of Springfield v. Goff, 918 S.W.2d 786, 789 (Mo.banc 1996). Section 89.310, RSMo 2000, empowers municipalities to appoint planning commissions with the powers and duties to promote municipal planning. Certain powers and duties include the establishment of “a city plan for the physical development of the municipality!,]” as provided in §§ 89.340 and 89.350, RSMo 2000. Section 89.350, RSMo 2000, describes the purpose of a city plan: “The plan shall be made with the general purpose of guiding and accomplishing a coordinated development of the municipality!.]” Conceptually, a master plan is “a guide to development rather than an instrument to control land use.” State ex rel. Schaefer v. Cleveland, 847 S.W.2d 867, 871 (Mo.App.1992).

School districts are authorized under § 177.041, RSMo 2000, “to acquire real property for any purpose for which the district is authorized by law to acquire the property” through purchase agreements or condemnation. Section 177.073, states, in part, that school districts, “by an affirmative vote of not less than two-thirds of all the members, may: (1) Select, direct and authorize the purchase of sites for and authorize the construction of ..., schools, ... and parking facilities to be used in the operation and maintenance of the schools;” and “(2) authorize and direct the purchase of additional ground needed for school purposes.”

In its first point, City contends that the trial court erred in granting summary judgment to both Respondents because § 89.380 applies to both Respondents “without qualification” and does not conflict with any other statute so as to prevent its application to either Respondent. City contends that § 89.380 is “closely modeled” after Title I., Section 9 of Standard City Planning Enabling Act (SCPEA) of 1928. Respondents do not dispute that § 89.380 was based upon Title I, Section 9 of the SCPEA, in part, however Respondents contend that § 89.380 does not apply to them for reasons set forth hereafter. Both acts are set forth for comparison (footnotes are omitted in Section 9):

Title I., Sec. 9, SCPEA
Legal Status of Official Plan. Whenever the commission shall have adopted the master plan of the municipality or of one or more major sections or districts thereof no street, square, park, or other public way, ground, or open space, or public building or structure, or public utility, whether publicly or privately owned, shall be constructed or authorized in the municipality or in such planned section and district until the location, character, and extent thereof shall have been submitted to and approved by the commission: Provided, That in case of disapproval the commission shall communicate its reasons to council, which shall have the power to overrule such disapproval by a recorded vote of not less than two-thirds of its entire membership: Provided, however, That if the public way, ground, space, building, structure, or utility be one the authorization or financing of which does not, under the law or charter provisions governing same, fall within the province of the municipal council, then the submission to the planning commission shall be by the board, commission or body having such jurisdiction, and the planning commission’s disapproval may be overruled by said board, commission or body by a vote of not less than two-thirds of its membership. The failure of the commission to act within 60 days from and'after the date of official submission to the commission shall be deemed approval.
Section 89.380, RSMo 2000
Whenever the commission adopts the plan of the municipality or any part thereof, no street or other public facilities, or no public utility, whether publicly or privately owned, and, the location, extent and character thereof having been included in the recommendations and proposals of the plan or portions thereof, shall be constructed or authorized in the municipality until the location, extent and character thereof has been submitted to and approved by the planning ' commission. In case of disapproval the commission shall communicate its reasons to the council, and the council, by vote of not less than two-thirds of its entire membership, may overrule the disapproval and, upon the overruling, the council or the appropriate board or officer may proceed, except that if the public facility or utility is one the authorization or financing of which does not fall within the province of the council, then the submission to the planning commission shall be by the board having jurisdiction, and the planning commission’s disapproval may be overruled by that board by a vote of not less than two-thirds of its entire membership. The acceptance, widening, removal, extension, relocation, narrowing, vacation, abandonment, change of use, acquisition of land for, sale or lease of any street or other public facility is subject to similar submission and approval, and the failure to approve may be similarly overruled. The failure of the commission to act within 60 days from and after the date of official submission to the commission shall be deemed approval.

Decision as to School Board

City particularly challenges the trial court’s findings in favor of Respondent School Board that § 89.380 and § 177.073 “obviously conflict” and that § 89.380 conflicts with School Board’s constitutional power of eminent domain under § 177.041. City contends that there is nothing in §§ 177.073 or 177.041 that conflicts with or exempts a school board from the application of § 89.380, or that would preclude a requirement that School Board submit its plan to the Commission for review.

School Board contends that the scope of section 9 of the SCPEA “expressly applies only to the ‘construction or authorization’ of certain public structures[,]” and that under the act, planning and zoning commissions are granted authority “to consider only the location, character and extent’ of a new structure.” School Board cites footnotes 46 and 50 of the act in support of its contention.

Footnote 46 of section 9 is set forth following the heading “Legal Status of Official Plan” and states, in part: “[T]he State planning legislation should devise a means whereby, from the time there is a city plan or a substantial part thereof, all matters which involve location of public buildings, improvements, utilities, etc., should receive city planning consideration; that is, full consideration of their bearing upon the city plan.” (Italicized portion indicates text quoted by School Board.)

Footnote 50, inserted within the first sentence of section 9, following “or public building or structure,” states, in part: “In every municipality there are public works and public buildings whose construction and location are determined by officials or bodies other than the municipal legislative and administrative departments.”

However, footnote 50 continues by stating:

The intention is that the municipal plan and the official acts of the municipal planning commission shall be concerned with all public structures within the municipality, whether built by the municipal authorities or by nonmunicipal authorities; but, of course, it would be improper to permit the city council or other municipal body to control the actual building location of such nonmunicipal public works and buildings. Consequently, it is necessary to provide in the act that the final control in these cases shall be in the appropriate nonmunicipal board or official.

School Board also contends that § 177.073 prevails over § 89.380, in that § 89.380 “is a statute of general application, purporting to require plans for the construction, vacation, abandonment, change of use, acquisition of land for, sale or lease of any ‘public facility’ to be submitted to a planning and zoning commission.” School Board maintains that § 177.073 specifically relates to the rights of school boards and “provides that the school board may, without restriction, ‘select, direct and authorize the purchase of sites for and authorize the construction of school facilities, and ‘authorize and direct’ the sale or lease of property.” School Board defines the authority granted by the legislature in § 177.073 as “unfettered” and states that if § 89.380 is found to be applicable to School Board, the condemnation authority granted under § 177.041 cannot be exercised and is meaningless if plans must first be approved by a planning and zoning commission.

However, nearly all, if not all, public bodies which own or use property and buildings have such authority. Having such authority does not mean it cannot be limited or otherwise regulated. In construing statutes, the primary rule “is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider words in the statute in their plain and ordinary meaning.” Day v. Wright County, 69 S.W.3d 485, 490 (Mo.App.2000). Courts read statutes that deal with the same subject matter in pari materia. Bartley v. Special School Dish, 649 S.W.2d 864, 867 (Mo.banc 1983). When one statute deals with a subject in general terms and another in specific terms, a court should harmonize the statutes when reasonable. Id. Only when the general statute and the specific statute cannot be reasonably harmonized does the specific statute prevail over the general statute. Rich v. Peters, 50 S.W.3d 814, 819 (Mo.App.2001).

The plain language of § 89.380 covers public facilities administered by a “board.” That would appear to cover School Board, and we do not believe there necessarily is a conflict between § 89.380 and constitutional or statutory provisions pertaining to school boards. Section 89.380 is specific in that it covers all boards acquiring property and buildings in certain cities.

School Board can exercise its constitutional and statutory duties without conflicting with § 89.380 by submitting their plan to acquire property or construct upon such property. Even if the city commission disapproves, School Board can override its disapproval “by a vote of not less than two-thirds of its entire membership.” Thus, the ultimate decision lies with School Board. We hold that School Board is subject to the provisions of § 89.380.

Decision as to County

Challenging the grant of summary judgment in favor of Respondent County, City contends that the trial court erred in concluding that construing § 89.380 to grant City’s Commission “any authority over [County’s commission’s] ability to designate and build county buildings would place Section 89.380 in direct conflict with the provisions of Sections 49.270, 49.370, 49.470, 49.520 and 211.331(4), RSMo.” City contends there is no statutory conflict.

City also objects to the trial court’s conclusion that the legislature never intended that county commissions be included within the scope of § 89.380. The trial court points to the use of the term “board,” in § 89.380, in lieu of “the board, commission, or body,” as found in section 9 of the SCPEA, which served as a model for Missouri’s planning and zoning legislation. The trial court found that the legislature’s decision to depart from that language in section 9 “can only be interpreted as a rejection of the SCPEA approach and a purposeful decision to exclude ‘counties’ or their ‘commissions’ from the purview of Section 89.380[.]”

In accordance with the provisions of Article VT, § 18(c) of the Missouri Constitution, as amended in 1970, a charter county is authorized to enact legislation concerning “any and all services and functions of any municipality or political subdivisions, except school districts[.]” Chesterfield Fire Protection Dish v. St. Louis County, 645 S.W.2d 367, 370 (Mo.banc 1983). Section 211.161(3), RSMo 2000, authorizes counties to purchase property for the purpose of establishing juvenile facilities “upon request of the juvenile court[.]” Under § 49.270, county commissions may purchase and have control of land for the use and benefit of the county. Additionally, § 49.300, RSMo 2000, allows counties to condemn property for public purposes. As earlier mentioned in discussing the duties and powers of school boards, such authority is not unusual and does not mean it cannot be limited or regulated.

County contends that “[t]he plain text of Chapter 49, RSMo., ... clearly conveys the legislature’s intent to grant county commissions ... exclusive jurisdiction over site selection for and construction of county buildings[,]” citing § 49.270 and § 49.470, which, County contends, grants “county commissions unfettered discretion to build and repair any county building[ ].” County further asserts that the legislature intended to exclude county governments because, when it purported to adopt section 9 of the SCPEA by enacting § 89.380, it did not adopt the “the submission of a plan shall be by the board, commission, or body” text of SCPEA. Section 89.380 omits the terms “commission” and “body.” No where does the statute purport to relate to a county or commissions or county courts.

In some contexts, “board” may be broad enough to include a “commission” or “county court,” but the legislature must have had a reason to eliminate from the proposed act reference to “commission, or body.” That reason would have to have been to limit the scope of the statute. Section 89.380 does not give City the ability to regulate the purchase, improvement or otherwise affect property of the County.

The judgment is affirmed as to Greene County and reversed and remanded as to School Board with directions to the trial court to modify its judgment consistent with this opinion.

GARRISON, P.J., and RAHMEYER, J., concur.

      . Rule 75.01 states, in part: "The trial court retains control over judgments during the thirty-day period after entry of judgment and may, after giving the parties an opportunity to be heard and for good cause, vacate, reopen, correct, amend, or modify its judgment within that time."
      Rule 81.05(a)(2)(A) provides: "For the purpose of ascertaining the time within which an appeal may be taken: ... (2) If a party timely files an authorized after-trial motion, the judgment becomes final at the earlier of the following: (A) Ninety days from the date the last timely motion was filed, on which date all motions not ruled shall be deemed overruled[.]"

      . Section 89.380 was enacted in 1963. (L. 1963 p. 146 § 9). In 1983, under § 49.010, "county courts" in Missouri were designated as "county commissions.” Shawnee Bend Special Road Dist. v. Camden County Comm'n, 800 S.W.2d 452, 460 (Mo.App.1990).


source: Caselaw Access Project

author: RONALD R. HOLLIGER, Presiding Judge.

license: Public Domain

text:
    Dallas DELAY, Appellant pro se, v. MISSOURI BOARD OF PROBATION AND PAROLE, Respondent.
    No. WD 65020.
    Missouri Court of Appeals, Western District.
    Sept. 13, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 1, 2005.

      Dallas Delay, pro se, Mineral Point, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Stephen Hawke and Andrew Hassell, Office of Attorney General, Jefferson City, for respondent.
   RONALD R. HOLLIGER, Presiding Judge.

Dallas Delay appeals the denial by the circuit court of his petition for a writ of mandamus. In his petition he requested that the trial court order the Board of Probation and Parole to grant him probation. He asserted that the Board, in denying his parole, had violated his due process rights and the prohibition on ex post facto laws. The issues Delay raises were squarely decided in State ex rel Cavallaro v. Groose, 908 S.W.2d 133 (Mo. banc 1995), where another inmate claimed a liberty interest in parole based on the application of a repealed parole statute, and also asserted that the Board’s refusal to grant parole violated the ex post facto clause because its decision was based on the new version of the parole statute rather than the one in effect at the time of the offense. Affirmed.

Facts

In 1973 Dallas Delay pleaded guilty to three counts of murder in the first degree, in violation of Section 559.010, RSMo. He is currently in the custody of the Missouri Department of Corrections serving three consecutive terms of life imprisonment. Delay also faces three hundred twenty years imprisonment in federal custody for bank robbery and murder in order to avoid capture. The United States Marshall has lodged a detainer with the Department of Corrections and, in the event that Delay is ever paroled, he will be released to federal custody to begin serving his federal sentence.

Delay’s most recent parole hearing was in October of 2003. The Board of Probation and Parole (the Board) denied Delay’s parole applying Section 217.690 and basing its decision to deny parole on the seriousness of the convicted offense. Delay then filed a petition seeking a writ of mandamus ordering the Board to grant his parole and release him to his federal detainer. The circuit court denied the petition.

Discussion

Preliminarily, we sua sponte address the issue of our jurisdiction. When a circuit court denies a preliminary writ of mandamus, appeal is not proper; instead, the petitioner must file the writ in a higher court. Wheat v. Mo. Bd. of Prob. & Parole, 932 S.W.2d 835, 838 (Mo.App.1996). However, in cases in which “the court below dismisses the petition following answer or motion directed to the merits of the controversy and in doing so determines a question of fact or law,” this court treats the order denying mandamus relief as final and appealable. Id. The Board filed an answer and a motion for judgment directed solely to the merits of Delay’s claims. The circuit court denied the writ on the merits. The circuit court’s order is therefore final and appealable, and this court has jurisdiction over this appeal.

Delay presents two grounds for relief. He argues that a parole statute in effect at the time of his first parole hearing, now repealed, created a liberty interest in parole, the denial of which is a violation of due process. He also asserts that the application of the new version of the parole statute to him violates the ex post facto clause of the United States and Missouri constitutions. Delay urges this court to declare that the parole statute in effect at the time of his first parole hearing in 1975 should control all subsequent parole hearings. The former version of the parole statute reads in relevant part:

When in its opinion there is a reasonably probability that the prisoner can be released without detriment to the community or to himself, the board shall release or parole any person confined in any correctional institution administered by state authorities.

Section 549.261.1, RSMo 1969 (repealed 1982). That section was repealed in 1982 when Section 217.690 was enacted. Section 217.690 provides in pertinent part:

When in its opinion there is reasonably probability that an offender of a correctional center can be released without detriment to the community or to himself, the board may in its discretion release or parole such person except as otherwise prohibited by law.

Section 217.690.1, RSMo 2000. With regard to Delay’s liberty interest argument, there is little, if anything, in the record that separates the present case from the analysis in Cavallaro v. Groose, 908 S.W.2d 133 (Mo. banc 1995). The Supreme Court held in Cavallaro that, under the old parole statute, the mandatory word “shall” created a justifiable expectation of release, or a liberty interest, if the statutory criteria were satisfied. Id. at 135. Conversely, the new statute creates no expectation but rather gives the Board “almost unlimited discretion” in determining whether to grant parole. Id.

In Cavallaro, the Supreme Court rejected the argument that the former parole statute, in effect at the time of the offense, must control all subsequent parole hearings. Id. at 136. Delay attempts to distinguish his case from Cavallero based on the fact that his first parole hearing took place under the old statute. Delay argues that his case is different because the petitioner in Cavallero never had a parole hearing prior to the changing of the statute, and was never entitled to receive a hearing under the old standard. He claims, essentially, that since he once had a parole hearing under the old statute, a liberty interest in parole attaches and all subsequent parole hearings should be held under that statute.

There is no substantive due process right to early release from prison, Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), so, if a liberty interest exists in parole it necessarily must arise from a statute. The Missouri Supreme Court has rejected the assertion that there is a continuing due process right to parole hearings governed by the former statute. Cavallaro, 908 S.W.2d at 135-36. Quoting Cavallaro: “the legislature that creates a statutory entitlement [] is not precluded from altering or terminating the entitlement by a later enactment. Accordingly, as regards due process, any continuing liberty interest in the use of the old parole statute was extinguished by enactment of the new law.” Id. at 136 (citations omitted).

In other words, where statutory entitlements are concerned, what the legislature gives it can also take away. The only liberty interest Delay asserts is under a repealed statute. The legislature, in 1982, was within its power to terminate the statutorily created parole entitlement that Delay now claims. As stated, Delay is not entitled to a perpetual application of the old statute in all subsequent parole hearings, and, thus, his liberty interest argument fails.

Similarly, Delay’s argument that the Board violated constitutional prohibitions against ex post facto laws in applying the revised version of the parole statute also fails. He argues that the revised statute imposes an increased punishment because, he asserts, his release would be required under the old standard. Delay claims that under the old parole statute his release would be required because he cannot be a detriment to the community or to himself because, if paroled, he would be released to federal custody.

Both the United States and Missouri constitutions forbid ex post facto laws. Fults v. Mo. Bd. of Prob. Parole, 857 S.W.2d 388, 390 (Mo.App.1993). “Ex post facto laws are laws which are retrospective and which disadvantage the affected offender ‘by altering the definition of criminal conduct or increasing the punishment for the crime [.]’ ” Miller v. Mitchell, 25 S.W.3d 658, 663 (Mo.App.2000) (quoting Lynce v. Mathis, 519 U.S. 433, 441, 117 S.Ct. 891,137 L.Ed.2d 63 (1997)). In order to violate the prohibition against ex post facto laws in this context, Delay must show that the new statute increased his punishment for his crime or changed the definition of his crime. Wheat v. Mo. Bd. of Prob. Parole, 932 S.W.2d 835, 839 (Mo.App.1996); Cavallaro, 908 S.W.2d at 136.

In this case, the Board denied Delay’s parole release based on the seriousness of the offense. This is a valid reason to deny parole under either the old or the new parole statute, Epperson v. Mo. Bd. of Prob. Parole, 81 S.W.3d, 540, 544 (Mo.App.2002), despite Delay’s unsupported assertions to the contrary. Delay makes no argument that the new parole statute altered the definition of his crime or increased his punishment. In essence, he is claiming that it is more difficult for him to achieve parole under the new statute than it was under the former statute. Under these circumstances, we find no violation of the ex post facto prohibition. See Cavallaro, 908 S.W.2d at 136.

Affirmed.

ROBERT G. ULRICH and JOSEPH M. ELLIS, Judges, concur.

      . Delay asserts that the seriousness of the offense is only a valid reason to deny parole if the inmate is being considered for release back to the community. He offers no support for this assertion and we find none in our review of the case law.


author: PHILLIP R. GARRISON, Presiding Judge. NANCY STEFFEN RAHMEYER, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Perry F. DAVENPORT, Defendant-Appellant.
    No. 26238.
    Missouri Court of Appeals, Southern District, Division One.
    Sept. 13, 2005.
    Motion for Rehearing or Transfer Denied Oct. 5, 2005.
    Application for Transfer Denied Nov. 22, 2005.
    Jason T. Umbarger, Springfield, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Asst. Atty. Gen., Jefferson City, for respondent.
   PHILLIP R. GARRISON, Presiding Judge.

A jury found Perry F. Davenport (“Defendant”) guilty of statutory sodomy in the first degree, a violation of Section 566.062, for which he was sentenced to a term of ten years in the Department of Corrections. He now appeals, claiming; instructional error, that certain testimony was inadmissible hearsay, and that the victim’s testimony was inappropriately bolstered by additional evidence. We reverse and remand.

Defendant does not contest the sufficiency of the evidence supporting his conviction. Viewed in the light most favorable to the verdict the evidence revealed the following: sometime in late August 2002, eleven-year-old D.S. (“the victim”), moved with her eight-year-old brother to Springfield, Missouri to live with their aunt and uncle (Defendant). In October 2002, all of them moved to Fordland, Missouri, where they were living at the time of the offense charged in this case.

On or about December 6, 2002, the victim was in the living room of her home when Defendant told her to turn around. When she asked “why,” telling Defendant that she had to do her homework, he turned her around, stuck his hand down her pants, and pushed his finger into her vagina. He then whispered into her ear, “don’t tell because if you do your [sic] going to end up in the system and that’s what they do there.”

Sometime later, the victim’s mother asked her if her “grandpa,” which is what the victim called Defendant, had ever touched her in a way he was not supposed to. She initially told her mother “no,” but started to cry and then told her what happened. After the victim’s mother reported this to authorities, Defendant was interviewed by Detective Rick Hamilton (“Detective Hamilton”) and told him that “he rubbed her, he may have rubbed her stomach area.” However, while Defendant was being held at the Webster County Sheriffs Office he told fellow inmate Scotty Mitchell (“Mitchell”) that he was in jail because he “had finger f — d his foster child.” He also told Mitchell that the child was a ten-year-old female, and that the allegations were true.

On this appeal defendant relies on three points of error, however, as we find that Point I necessitates a reversal and remand we need not consider his remaining claims. Appellant contends that the trial court erred in refusing to give jury Instruction A, a converse instruction tendered by him. The verdict directing instruction to which it was directed was Instruction No. 5 which read:

If you find and believe from the evidence beyond a reasonable doubt:
First, that on or about December 06, 2002, in the County of Webster, State of Missouri, the defendant committed an act involving his hand and the genitals of [the victim], and
Second, that such conduct constituted deviate sexual intercourse, and
Third, that at that time [the victim] was less than twelve years old, Then you ■will find the defendant guilty of statutory sodomy in the first degree under this instruction.
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.
As used in this instruction, the term “deviate sexual intercourse” means any act involving the genitals of one person and the hand, mouth, tongue, or anus of another person or a sexual act involving the penetration, however slight, of the male or female sex organ or the anus by a finger, instrument or object done for the purpose of arousing or gratifying the sexual desire of any person.

Instruction A, which Defendant contends the trial court erroneously refused to give, read:

If you have a reasonable doubt as to whether [Defendant], on or about the 6th day of December, 2002, with the purpose of arousing or gratifying the sexual desire of any person, committed an act constituting deviate sexual intercourse involving the hand of [Defendant] and the genitals of [the victim], you must find the defendant not guilty of statutory sodomy in the first degree as submitted in Instruction No. 5.

Instruction A was refused because the trial court did not “believe it comported with the requirements of Missouri pattern instructions.” It also believed that the proposed instruction “conversed too many things,” and those elements that were conversed were not in the same order as presented in the verdict director. Defendant then submitted, and the trial court gave, Instruction No. 6 which stated:

If you have a reasonable doubt as to whether [Defendant], on or about the 6th day of December, 2002, committed an act involving his hand and the genitals of [the victim] and that such conduct constituted deviate sexual intercourse you must find the defendant not guilty of statutory Sodomy in the first degree as submitted in Instruction No. 5.

A defendant is entitled to a converse instruction in proper form if requested. State v. Mouse, 989 S.W.2d 185, 191 (Mo.App. S.D.1999) overruled on other grounds, State v. Pond, 131 S.W.3d 792, 794 (Mo. banc 2004); MAI-CR 3d 308.02 Notes on Use 2 (9-1-01). A “trial court errs if it does not instruct the jury in compliance with MAI-CR instructions and applicable notes.” State v. Mec, 643 S.W.2d 601, 604 (Mo.App. E.D.1982); Mouse, 989 S.W.2d at 191. Failure to give such an instruction creates a presumption of prejudice. State v. White, 622 S.W.2d 939, 943 (Mo.1981); See also State v. Dodson, 491 S.W.2d 334, 339 (Mo. banc 1973).

A converse instruction based on MAI-CR 3d 308.02 “enables a defendant to select from a verdict director the element or elements that he wishes to emphasize.” MAI-CR 3d 308.02, Notes on Use 2 (9-1-01). In particular, MAI-CR 3d 308.02, Notes on Use 4(D) (9-1-01) provides, in pertinent part:

Where the verdict director states in one paragraph a culpable mental state that applies to elements contained in another paragraph, a separate converse instruction can combine the culpable mental state with a particular element from another paragraph.

In this case, Defendant contends that Instruction A properly conversed not only the physical act submitted in Instruction No. 5, but also the culpable mental state of purposefully “arousing or gratifying the sexual desire of any person” as contained in the definition of “deviate sexual intercourse.” See Section 566.010.

The State argues that the passage in Instruction A regarding the culpable mental state is in fact a portion of the definition rather than an element as presented in Instruction 5. The State points out that the approved form of converse instructions limits defendants to conversing only those elements present in the verdict director, MAI-CR 3d 308.02 (9-1-01). As such, alleges the State, Instruction A was not in proper form because it conversed a definition in addition to an element in Instruction 5.

The evolution of the mental requirement in the definition of “deviate sexual intercourse” illustrates that it does constitute a mental element of the offense. The phrase “for the purpose of arousing or gratifying the sexual desire of any person” was not present in the statutory definition of “deviate sexual intercourse” until 1994. Section 566.010(1). However, this provision has always been part of the definition of “sexual contact.” Section 566.010(B). In State v. Harris, the Supreme Court of Missouri found that third degree sexual abuse, of which “sexual contact” is an element, was not a lesser included offense of rape. 620 S.W.2d 349, 355 (Mo. banc 1981). The Court reasoned that sexual contact “requirefd] a mental state,” in that the act covered by the definition must be done “for the purpose of arousing or gratifying sexual desire of any person.” Id.

In State v. Fields, 739 S.W.2d 700, 704 (Mo. banc 1987), the Supreme Court of Missouri held that the definition of “deviate sexual intercourse,” implied that the act be done “for the purpose of arousing or gratifying sexual desire of any person” in order to avoid criminalizing otherwise innocent touching. See also State v. Harnar, 833 S.W.2d 25, 28 (Mo.App. S.D.1992) (To hold otherwise would make “criminal an ‘innocent touching,’ such as a doctor examining a patient.”) and State v. Gibson, 623 S.W.2d 93, 99-100 (Mo.App. W.D. 1981).

Following Fields the Supreme Court added the definition of “deviate sexual intercourse,” including the culpable mental state, to the approved instruction for statutory sodomy. MAI 3d 320.08 (1-1-87); Harnar, 833 S.W.2d at 28. Failure to include this paragraph in the verdict director is considered presumptively prejudicial because the definition of “deviate sexual intercourse” is an essential element of the crime. Id. at 27-28. In 1994 the legislature codified the Court’s reasoning in Fields by amending the definition of “deviate sexual intercourse” to require that a covered act be done for the “purpose of arousing or gratifying the sexual desire of any person.” Section 566.010(1).

In light of this history the State’s argument that Instruction A was not in proper form must fail. MAI-CR 3d 308.02 instructs defendants to “[ijnsert the element or elements to be covered in the converse instruction using the language from the verdict director.” Instruction A did not use any language foreign to verdict directing Instruction 5, and as has been shown, the requirement that an act be “for the purpose of arousing or gratifying sexual desire of any person” constitutes a mental element of the offense. Fields, 739 S.W.2d at 704; Harris, 620 S.W.2d at 355; see also State v. Londagin, 102 S.W.3d 46, 52 n. 3 (Mo.App. S.D.2003).

The prejudicial effect of failing to give a jury instruction is for the court to decide. White, 622 S.W.2d at 943; State v. Williams, 611 S.W.2d 26, 29 (Mo. banc 1981). Instruction No. 6, given by the trial court, required the jury to find Defendant not guilty of sodomy in the first degree if they had a reasonable doubt as to whether he committed an act involving his and the genitals of the victim, and that such conduct constituted “deviate sexual intercourse.” It did not, however, specifically converse the mental element of the offense as Defendant was entitled to do. Accordingly, we are constrained to reverse the judgment entered on the jury verdict and remand the case to the trial court for further proceedings.

PREWITT, J., concurs.

RAHMEYER, J., dissents in separate opinion.

NANCY STEFFEN RAHMEYER, Judge.

I respectfully dissent. Although I agree that the culpable mental state could have been properly conversed, I do not believe the proposed converse did so and was properly rejected by the trial court as it was confusing to read and was not in compliance with the MAI-CR instructions and applicable notes. Furthermore, Defendant was not prejudiced as he submitted, and the trial court gave, a proper converse.

The majority opinion simply reaches the issue of whether it is proper to converse the element of the culpable mental state, but does not analyze whether the proposed converse, Instruction No. 5, was a proper converse. I believe that is because of the confusion created by Appellant’s point relied on. The point relied on states: “The trial court erred in not giving Appellant’s converse, Instruction No. A, which properly conversed the elements of the verdict director, including the culpable mental state of purposefully ‘arousing or gratifying the sexual desire of any person’ as required by Section 566.010, RSMo.”

The State, in its response, only addresses the issue of whether the definition of “deviate sexual intercourse” is simply part of the definitional language among the elements or a separate element of the crime. The trial court did address that issue and properly rejected the instruction because it conversed too many things and it did not converse them in the same order that they were presented in the verdict direction. The basis of the court’s decision was not that the mental state was improperly injected into the converse instruction.

The majority opinion apparently relies upon MAI-CR 3d 308.02, Notes on Use 4(D); however, I believe the appropriate paragraph is MAI-CR 3d 308.02, Notes on Use 4(E), entitled conversing more than one paragraph. The proposed converse clearly covered more than one paragraph of the verdict director and in so doing should have been numbered in the same manner as the verdict director. Defendant sought to converse the first two elements of the verdict director; however, he did so in a convoluted order. He gave partial facts from the first paragraph, “on or about the 6th day of December, 2002”; then gave the definition of the mental element in the second paragraph, “with the purpose of arousing or gratifying the sexual desire of any person”; returned to the first paragraph, “committed an act”; returned to the second paragraph, “constituting deviate sexual intercourse”; and finally, quoted language from the first paragraph, “involving the hand of [Defendant] and the genitals of [the victim].”

I find State v. Matthews, 37 S.W.3d 847 (Mo.App. S.D.2001), to be instructive. In Matthews, defendant tendered a converse jury instruction; however, the proposed converse divided three separate facts from the first paragraph of the verdict director into three separate paragraphs. Id. at 851. This Court stated:

We note that MAI-CR3d 308.02 instructs to insert the element or elements to be covered in the converse instruction “using the language from the verdict director,” and refers the reader to the Notes on Use for examples. Notes on Use 4(B) states that when conversing one paragraph of the verdict director, the material that follows the introductory phrase of the converse, “must be taken from the verdict director.” In the instant case, Defendant sought to converse all of the material in paragraph First of [the verdict director], but the language contained in [the proposed converse] following the introductory phrase did not track that contained in paragraph “First” of the verdict director either in form or content. While there is no contention that the language used by Defendant in constructing [the converse] unfairly characterized the language from [the verdict director], the fact remains that the language in [the converse] was not “taken from [the verdict director]” as directed by Notes on Use 4(B). [The given converse], however, did utilize the same language, in one paragraph, just as it appeared in paragraph First of [the verdict director].

This Court held that the proposed converse was not in proper form in that it was not in strict compliance with MAI-CR 3d 308.02 or its Notes on Use. Id. at 852. Even if an instruction was improperly denied, the prejudicial effect of the failure to give the instruction was to be judicially determined. Id. We noted that even if the defendant was correct that his proposed converse was consistent with MAI-CR 3d 308.02 and the Notes on Use, the defendant was not prejudiced by the failure to give the tendered instruction because a proper converse was given to the jury and the jury was, in fact, instructed under a converse that correctly declared the law. Id.

Likewise, Defendant was not entitled to a converse instruction that was not in compliance with MAI. Although neither party addressed in its argument whether the actual proposed instruction was a proper converse, and, more importantly, whether Defendant was prejudiced by the denial of the proposed instruction, I would find that the proposed instruction was properly refused.

After reviewing Appellant’s other points for plain error, I would affirm the judgment.

      . All references to statutes are to RSMo (2000) unless otherwise indicated.

      . Section 566.010(1) currently defines "deviate sexual intercourse" as "any act involving the genitals of one person and the hand, mouth, tongue, or anus of another person or a sexual act involving the penetration, however slight, of the male or female sex organ or the anus by a finger, instrument or object done for the purpose of arousing or gratifying the sexual desire of any person.”

      . Section 566.010(3) defines “sexual contact” as “any touching of another person with the genitals or any touching of the genitals or anus of another person, or the breast of a female person, for the purpose of arousing or gratifying sexual desire of any person.”


author: PER CURIAM.

text:
    In the Interest of L.M.P., C.A.V.P., P.P., III, Plaintiff, Missouri Department of Social Services, Children’s Division, Respondent, v. V.L.P. (Natural Mother), Appellant.
    No. WD 64906.
    Missouri Court of Appeals, Western District.
    Sept. 27, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 1, 2005.
    Tom J. Bowman, Richmond, MO, attorney and guardian for the children.
    Timothy D. Tipton, Excelsior Springs, MO, and Bruce B. Brown, Kearney, MO, for Appellant V.L.P.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, MO, for Respondent Missouri Children’s Division.
    Gary L. Gardner, Asst. Attorney General, Jefferson City, MO, and Anne Virginia Kiske, St. Joseph, MO, co-counsel for Respondent joins on the briefs for Respondent.
    Before VICTOR C. HOWARD, P.J., JAMES M. SMART, JR., and THOMAS H. NEWTON, JJ.
   Order

PER CURIAM.

V.L.P. appeals the juvenile court’s judgment that terminated her parental rights as to her three children on the grounds of neglect and failure to rectify harmful conditions. 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).


text:
    Beau BRADSHAW, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64747.
    Missouri Court of Appeals, Western District.
    Sept. 27, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 1, 2005.
    Kent Denzel, Assistant Public Defender, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before HOWARD, P.J., and SMART and NEWTON, JJ.
   Order

PER CURIAM.

Beau Bradshaw appeals the denial of his Rule 29.15 motion for post-conviction relief. The motion court’s findings and conclusions that Bradshaw’s trial counsel was not ineffective are not clearly erroneous. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The motion court’s judgment is affirmed. Rule 84.16(b).


author: KENNETH W. SHRUM, Presiding Judge.

text:
    Douglas WEIDNER, D.P.M., and Suzanne Weidner, Plaintiffs-Appellants, v. Sharon M. ANDERSON, D.P.M., Defendant-Respondent.
    Nos. 26763, 26854.
    Missouri Court of Appeals, Southern District, Division Two.
    Sept. 30, 2005.
    Motion for Rehearing and Transfer Denied Oct. 21, 2005.
    Application for Transfer Denied Nov. 22, 2005.

      Tyce S. Smith, Conway L. Hawn, Smith & Turley, Waynesville, for appellants.
    William E. Hickle, Hickle Law Firm, Rolla, for respondent.
   KENNETH W. SHRUM, Presiding Judge.

Douglas Weidner and Suzanne Weidner (“Plaintiffs”) and Sharon M. Anderson (“Defendant”) signed a contract under which Defendant was to initially operate Plaintiffs’ podiatry clinic and ultimately become the owner thereof. After Plaintiffs sued Defendant for breach of contract and injunctive relief, Defendant responded with a four-count counterclaim. In it, Defendant sought damages for breach of contract, misrepresentation, libel, and slander.

A scheduled trial of Defendant’s counterclaims was held without Plaintiffs being present. After learning of the judgment entry, Plaintiffs filed multiple motions seeking an order setting aside the judgment favorable to Defendant on two of her counterclaims.

Ultimately, all of Plaintiffs’ motions to vacate the judgment were overruled and their suit was dismissed, with prejudice, for failure to prosecute. Plaintiffs’ appeal raises five points of trial court error. Generally, the five claims traverse two main topics: (1) alleged trial court error for not vacating the judgment on Defendant’s counterclaims; and (2) alleged insufficiency of the evidence to support the counterclaim judgment. In part, Plaintiffs’ claims of trial court error have merit. Defendant failed to prove entitlement to the full amount of damages awarded on her breach of contract count. Moreover, there was insufficient evidence to support an award of damages to Defendant on her libel count. Accordingly, we amend the judgment related to the contract count by reducing the damage award. We reverse the judgment favorable to Defendant on Count II and remand. In all other respects, we affirm.

In August 1997, Plaintiffs and Defendant agreed via written contract that Defendant would operate Plaintiffs’ podiatry clinic for two years. Moreover, Defendant was given an option to buy the clinic and business for $280,000. While operating the clinic for Plaintiffs, Defendant was to be paid for her services as follows: $5,000 per month for the first three months under the contract and after that, Defendant was to have all “net revenues” of the business. The parties operated under this contact for approximately ten months during which time Defendant received $50,000, i.e., $5,000 per month. In May 1998, Plaintiffs notified Defendant that “[ejffective immediately, we are ... terminating you with cause under the TOMS agreement dated August 26,1997.”

On June 2, 1998, Plaintiffs sued Defendant, alleging she had breached the contract in multiple respects. They also sought injunctive relief based on several theories, including an allegation that she had started her own clinic in violation of non-compete provisions in the contract.

On June 24, 1998, Plaintiffs fired their attorney, Matthew Clement (“Clement”). That same day, Clement notified Defendant’s lawyer, Roger Carnahan (“Carna-han”), that he no longer represented Plaintiffs. Clement moved to withdraw as Plaintiffs’ lawyer. This motion was filed with the circuit clerk on June 29, 1998. Clement then wrote Carnahan on July 3, 1998, again advising he no longer represented Plaintiffs and that any future communications should be sent directly to them.

Despite the foregoing, Carnahan faxed Defendant’s answer and four-count counterclaim to Clement on July 6, 1998. Clement then called up his motion to withdraw as Plaintiffs’ lawyer on July 9, 1998, and the court sustained the motion that day.

On August 26, 1998, Carnahan filed a notice with the circuit clerk that recited he intended to “call up [Defendant’s counterclaims] for hearing and disposition” on September 24, 1998. This notice contained a “Certificate of Service” in which Carnahan certified that on August 25, 1998, “a true and correct copy” of such notice was “deposited in the United States Mail, first class postage thereon prepaid, addressed to: Douglas and Suzanne Weid-ner, HCR 71, Box 750-5 Camdenton, MO. 65020.”

When Defendant appeared on September 24, 1998, Plaintiffs were not in court. Even so, Carnahan opted to present Defendant’s testimony and other evidence on Defendant’s breach of contract count and her libel claim. Thereon, the court entered judgment against Plaintiffs on these counts for $425,560 and $137,500, respectively.

On November 3, 1998, Plaintiffs moved to set aside what they characterized as a “default judgment.” This motion cited Rule 74.05 as authority for vacating the judgment. The essence of their unverified motion was that (1) they did not know Defendant had filed an answer and four-count counterclaim; (2) they had no notice that a hearing on Defendant’s counterclaim was to be held September 24, 1998; and (3) they had meritorious defenses to the counterclaims.

Accompanying the motion was an affidavit from their former lawyer, Clement, in which he acknowledged receiving a “faxed” copy of the answer and counterclaim filed by Defendant. Clement’s affidavit continued with this: “I was on vacation from July 6, 1998 through July 17, 1998. There is no record that this document was ever sent to Dr. and Mrs. Weidner by me or anyone at my office.”

By the end of September 1999, the trial court had overruled Plaintiffs’ two motions to set aside the judgment. For the next four years, the case lay virtually inactive. In February 2004, Defendant filed a motion to revive her judgment. This led to a spate of new filings in the case. Included were new motions by Plaintiffs asking that the judgment against them be vacated. Plaintiffs alleged various grounds for such relief, but the court refused to vacate the judgment. Thereon, Defendant dismissed her misrepresentation and slander counts, the trial court dismissed Plaintiffs’ suit against Defendant for failure to prosecute (with prejudice), and this appeal by Plaintiffs followed.

POINT I: Alleged Void Judgment On Defendant’s Counterclaims

Plaintiffs’ first point maintains the money judgment against them was void because Plaintiffs were never served with the counterclaims and were never notified that a hearing on the counterclaims was scheduled for September 24, 1998; consequents ly, the trial court erred when it would not set aside the judgment per Plaintiffs’ request.

Rule 74.06(b)(4) empowers a trial court to set aside a final judgment if the movant shows that the judgment is void. In part, a “void judgment” is one rendered in a manner inconsistent with due process. Baxi v. United Technologies Automotive, 122 S.W.8d 92, 96[7] (Mo.App.2003).

It has been held that a judgment may be void if rendered without compliance with the service requirements of Rule 43.01. Am. Econ. Ins. Co. v. Powell, 134 S.W.3d 743, 746[1] (Mo.App.2004). This follows because failure to give adequate notice violates the due process rights of the one entitled to notice. Cody v. Old Republic Title Co., 156 S.W.3d 782, 784 (Mo.App. 2004); Powell, 134 S.W.3d at 746-47[3].

Here, Plaintiffs’ motion to vacate judgment alleged (1) that Clement never sent them a copy of the answer and counterclaims and (2) they were never given notice of the hearing on the counterclaims. They argue, therefore, that the judgement was void and the court erred when it refused to set it aside. There is, however, a fatal evidentiary flaw in Plaintiffs’ claim.

Specifically, Plaintiffs’ motion to set aside the judgment was unverified. A Rule 74.06(b) motion to set aside a judgment does not prove itself, any more than does any other unverified motion or pleading. Johnson v. Brown, 154 S.W.3d 448, 451[3] (Mo.App.2005). See also Snelling v. Reliance Auto. Inc., 144 S.W.3d 915, 918 (Mo.App.2004) (holding a Rule 74.05 motion to set aside does not prove itself). “ ‘If the [Rule 74.06(b) ] motion contains sufficient allegations of fact for its support, the motion thus must be verified, or supported by affidavits or sworn testimony produced at the hearing on the motion.’ ” Dallas-Johnson Properties, Inc. v. Hubbard, 823 S.W.2d 5, 6 (Mo.App.1991) (citation omitted).

In this case, the court had personal jurisdiction over Plaintiffs when Defendant filed her counterclaims. This occurred when Plaintiffs initially sued Defendant. Consequently, the issue is not the validity of a summons or service of summons, but whether the record supports the trial court’s implicit finding that Plaintiffs either knew about the counterclaims and the September 24, 1998, hearing, or they were chargeable with knowledge of their existence.

Plaintiffs assert that their motion to vacate the judgment alleged facts, which if proven, supported a finding that the judgment was void. The problem for Plaintiffs, however, is that they never presented any admissible evidence by which they denied receiving a copy of the answer and counterclaims before the subject judgment was entered. Nor did they offer sworn evidence in which they denied having knowledge that counterclaims had been filed in the suit. Inexplicably, the only evidence on this issue was Clement’s affidavit in which he swore that (a) he received the answer and counterclaims, and (2) he had no office record to show those pleadings were forwarded to Plaintiffs. This is not evidence — even if believed— that inexorably compels the conclusion that Plaintiffs never had a copy of the counterclaims during the pre-judgment period, nor does it compel a finding that they never knew about the counterclaims before entry of the judgment. If Plaintiffs were wholly unaware that counterclaims had been filed, why not say so under oath? Why not support their claim of voidness of judgment with competent evidence?

There was, on the other hand, a document in the record from which the trial judge could presume Plaintiffs knew about the counterclaims and knew of the September 24, 1998, hearing on those claims. This is found in the August 25, 1998, notice filed by Defendant in which she called up her counterclaims. It contained a certificate of service in which Carnahan certified he mailed a copy of the notice to Plaintiffs at HCR 71, Box 750-5 Camdenton, MO. 65020. Mailing notices and copies of pleadings to litigants who are unrepresented by a lawyer is an authorized method by which service can be obtained on such litigants. Rule 43.01(c)(2); Zurheide-Hermann, Inc. v. London Square Dev. Corp., 504 S.W.2d 161, 165[2] (Mo.1973). “In the absence of evidence to the contrary there is a rebuttable presumption that a written certificate by counsel making service that papers have been mailed to named parties at an address certain speaks the truth, i.e., that the papers were mailed to the parties named, at the address given, and that the attorney entertained the belief in good faith that the address was in fact the proper address of the parties named.” Id. at 165[4],

Moreover, there is a presumption that a document duly mailed has been received by the addressee. Clear v. Mo. Coordinating Bd. for Higher Educ., 23 S.W.3d 896, 900[6] (Mo.App.2000). See Rule 43.01(c) (provides that service by mail is complete upon mailing). When, as here, there is a presumption that the pleadings were duly mailed to what Carnahan believed was in fact the proper address, such presumption could be rebutted by evidence that (a) the mailing was not received by Plaintiffs, or (b) that it was not Plaintiffs’ correct address. Clear, 23 S.W.3d at 900[7]. Had such evidence been presented, the presumption would not have been nullified, but the question would then have been left for determination of the finder of fact under all the facts and circumstances of the case. Id. at 900[8].

Here, Plaintiffs never challenged the presumption raised by Carnahan’s August 26, 1998, certificate of service that they received his notice about the counterclaims. Specifically, they presented no evidence of non-receipt of the notice and no evidence that the address on Carnahan’s certificate of service was not a proper address for them. Their counsel’s bare statement to that effect, as contained in the motion to vacate judgment, was not proof that supported their allegation of lack of knowledge about the counterclaims. Zurheide-Hermann, 504 S.W.2d at 165. Consequently, they are deemed to have received the notice shortly after August 26,1998.

Thus, assuming arguendo, that Plaintiffs never received copies of the answer and counterclaims before September 24, 1998, they had nearly a month’s ad-vanee notice (via Carnahan’s certificate of service) that a hearing on the counterclaims would be held September 24, 1998. This was adequate to meet the requirements of due process, in that informing Plaintiffs that counterclaims would be heard on September 24, 1998, put them on notice that a response to their petition had been filed and that counterclaims existed, or at a minimum, provided them with cause to make inquiry about what was going on. “Notice is regarded in law as actual where the person either knows of the fact’s existence or is conscious of having the means of knowing it, even though such means may not be used.” Walkenhorst-Newman v. Montgomery Elevator, 37 S.W.3d 283, 286[6] (Mo.App.2000). “Whatever fairly is sufficient to put an ordinarily prudent person on inquiry constitutes notice to him of such facts as would be discovered by reasonable pursuit and proper inquiry.” Lamke v. Lynn, 680 S.W.2d 285, 286 (Mo.App.1984).

Because Plaintiffs apparently ignored the notice given them of the September 24 hearing, this point must fail. They should have made inquiry with the court to ascertain what was filed. They apparently chose to do nothing. Due to their own willful ignorance or neglect, the judgment was entered in their absence. We find that the judgment was not void for lack of notice. Point I is denied.

Point II: Failure to Set Aside the Judgment under Rule 74.05

Plaintiffs’ second point maintains the court should have set aside the judgment under Rule 74.05(d). Plaintiffs argue that them motion met all of the requirements of that rule, i.e., it was made within a reasonable time, it demonstrated good cause, and it set forth meritorious defenses. This argument lacks merit because Rule 74.05 only attends when the judgment entered was a “default judgment.” As explained below, this was not a “default judgment” as contemplated by Rule 74.05. Rather, it was a judgment on the merits; as such, Rule 74.06 was the appropriate rule that should have been used in seeking to vacate this judgment.

Ordinarily, a judgment is said to be a “default judgment” within the meaning of Rule 74.05 if it results solely from the failure of a party to answer a pleading or otherwise defend, i.e., a judgment nihil dicit. Crowe v. Clairday, 893 S.W.2d 400, 403 (Mo.App.1995); Estep v. Atkinson, 886 S.W.2d 668, 673 n. 4 (Mo.App.1994). In contrast, a judgment on the merits is often said to be one that results when a party had participated in the litigation by filing pleadings, but failed to show up for trial. Cotleur v. Danziger, 870 S.W.2d 234, 236-37 (Mo.banc 1994). To set aside a “judgment on the merits,” the proper standard is found in Rule 74.06, not Rule 74.05. Estep v. Atkinson, 886 S.W.2d at 672-74.

If these general rules always governed without exception, then Plaintiffs could use Rule 74.05 in their attempt to vacate this judgment. However, the Estep case teaches that in deciding which rule governs, i.e., Rule 74.05 or Rule 74.06, the inquiry is often fact driven.

In Estep, the plaintiff appeared for a trial on November 13, 1992, as scheduled. The defendant had not filed an answer to plaintiffs amended petition as of that date, despite the court’s order of February 14, 1992, that “[a]ll responsive pleadings were to be filed on or before February 25, 1992.” Id. at 669. Neither the defendant nor his lawyer appeared on the trial date. Thereon, the court heard evidence and entered judgment favorable to plaintiff on his claims and on the defendant’s counterclaims. Id. at 670. After learning of the judgment, the defendant moved for its vacation. Id. In refusing to vacate the judgment, the trial court found, inter alia, that its judgment was not a default judgment, but was a judgment on the merits. Id. at 671. With that finding made, the court concluded the defendant had not proven himself entitled to have the judgment set aside under the more stringent standards of Rule 74.06(b). Id. This court affirmed the trial court’s order, reasoning as follows:

“As reported earlier, when Plaintiffs and lawyer Bruffett appeared in the trial court November 12, 1992, they — and the trial court — proceeded with trial (albeit uncontested). Plaintiffs did not ask the trial court to enter an interlocutory order of default against Defendant per Rule 74.05(a), and the trial court did not do so. Plaintiffs presented their evidence on the merits and the trial court found in their favor.”
“From Mahurin v. St. Luke’s Hospital of Kansas City, 809 S.W.2d 418, 421[2, 3] (Mo.App. W.D.1991), we learn:
‘when an answer is required but not filed, when a cause is tried as if an answer had been filed, on appeal the matter is treated as if an answer traversing the allegations of the petition was filed. Estate of Schubert v. Holleman, 683 S.W.2d 324, 325 (Mo.App.1984). This is not to say that the filing of an answer is not required; it is to say that enforcement of the requirement of an answer is waived unless the opposing party invokes its enforcement by timely and proper action. Id. at 325-26.’
“Here, Plaintiffs never claimed there was a default nihil dicit because Defendant failed to answer their amended petition. Plaintiffs, their lawyer, and the trial court proceeded as though Defendant had answered. Applying Mahurin, we treat this appeal as if he had. Accordingly, we hold that the trial court correctly applied the law in ruling that Defendant’s motion to set the judgment aside was not governed by Rule 74.05, but instead by Rule 74.06.”

Id. at 673-74.

The circumstances in Estep are sufficiently akin to those here to make the Estep analysis dispositive. Specifically, Defendant, her lawyer, and the trial court proceeded on September 24, 1998, as though Plaintiffs had answered the counterclaims. Defendant did not ask the trial court to enter an interlocutory order of default against Plaintiffs per Rule 74.05(a), and the trial court did not do so. Instead, Defendant presented her evidence on the merits and the trial court found in her favor. Relying on Estep, we hold that Plaintiffs chose the wrong remedy when they relied exclusively on Rule 74.05; that on the facts of this case, the only available choice for Plaintiffs was to seek vacation of the judgment per Rule 74.06.

Since Plaintiffs used the incorrect standard to support their argument, their second point must be denied. “Failure to specifically rely on a rule is sufficient to deny [Plaintiffs] any benefits of that rule.” Downing v. Howe, 60 S.W.3d 646, 651 (Mo.App.2001).

Assuming arguendo that Estep does not govern and that Plaintiffs properly invoked Rule 74.05 as their remedy, they still have a fatal evidentiary deficiency in their case, i.e., they did not support their Rule 74.05 allegations by verifying their motion, or by sworn affidavit, or by sworn testimony produced at a hearing in support of their motion. See, e.g. Snelling v. Roy’s Trans., 144 S.W.3d 919, 920[3] (Mo.App.2004). The party moving to set aside a default judgment per Rule 74.05(d) has the burden of proof to convince the court that the party is entitled to relief. Hinton v. Proctor & Schwartz, 99 S.W.3d 454, 458[3] (Mo.App.2003). As found in Point I, Plaintiffs offered no evidence to overcome the presumption that they received notice that a hearing was to be held on Defendant’s counterclaims. They chose to ignore the notice, i.e., they failed to contact an attorney to represent them at the hearing and they faded to attend the hearing. This intentional disregard of the notice prevents a showing of good cause under Rule 74.05. See Great S. Sav. & Loan Ass’n v. Wilburn, 887 S.W.2d 581, 584 (Mo.banc 1994); Gering v. Walcott, 975 S.W.2d 496, 499 (Mo.App.1998).

Because Plaintiffs presented no evidence to support their claims and because their bare assertions via unverified motion were not sufficient, the trial court did not err in denying Plaintiffs’ Rule 74.05(d) motion. Point denied.

Point IV: Failure to Set Aside Judgment for Lack of Jurisdiction

Plaintiffs’ fourth point maintains that the trial court lacked subject matter jurisdiction on the breach of contract counterclaim. They cite Scher v. Sindel, 837 S.W.2d 350, 354 (Mo.App.1992), for the proposition that a litigant must plead the necessary element of “performance” to state a cause of action for breach of contract. Plaintiffs insist, therefore, that Defendant’s breach of contract count “failed to state a claim upon which relief could be granted by failing to plead the performance of her obligations under the subject contract.”

In analyzing this claim, we start by recounting the following general principles of law. When deciding if a pleading fails to state a claim, we accept as true all facts properly pleaded and all reasonable inferences drawn therefrom. Madden v. C & K Barbecue Carryout, Inc., 758 S.W.2d 59, 61 (Mo.banc 1988). A pleading sufficiently states a cause of action if the aver-ments of the pleading, accorded every reasonable and favorable intendment, invoke principles of substantive law that may entitle the pleader to relief. Villines v. Mier, 58 S.W.3d 921, 923[2] (Mo.App.2001). When a challenge to a pleading for failure to state a claim is brought for the first time on appeal, the pleading will be more liberally construed than if the challenge was made via a motion to dismiss. Baugher v. Gamble Const. Co., 324 Mo. 1233, 26 S.W.2d 946, 949 (1930); Schell v. Keirsey, 674 S.W.2d 268, 273[7] (Mo.App.1984).

In this case, Plaintiffs’ fourth point must fail for a variety of reasons. Initially, we note that Plaintiffs first raised this alleged deficiency over five years after the judgment was entered. As such, the following is apropos:

“These arguments come too late. While the sufficiency of a petition to state a claim may be raised at any stage of the proceedings and even for the first time on appeal a petition will be found sufficient after verdict ‘(i)f, after allowing all reasonable inferences and matters necessarily implied from the facts stated, there is sufficient [sic] to advise defendant with reasonable certainty as to the cause of action it is called upon to meet and bar another action for the same subject matter.’ Cognately, a petition which only imperfectly pleads a claim but which is amendable to a proper statement of that claim without changing the cause of action will be held good after verdict.”

Barber v. Allright Kansas City, Inc., 472 S.W.2d 42, 44 (Mo.App.1971) (citations omitted).

Consequently, upon a liberal construction of Defendant’s counterclaim, we find it is broad enough to include an allegation of partial performance. Therein, Defendant alleged a contract existed between Plaintiffs and herself with a variety of obligations imposed upon each party. She claimed that Plaintiffs breached the contract and caused her damage. The only reasonable inference to be accorded these allegations is that Defendant did not breach the contract and performed her duties thereunder. Otherwise, she would be entitled to no relief. Any other reading of these allegations would be unduly strained.

Second, we find that Defendant’s partial performance of the contract was not an issue here. Via their own petition, Plaintiffs admitted that Defendant began “servicing the patients of plaintiffs and the nursing home contracts.” The only pertinent allegations of Defendant’s breach were that she failed to pay Plaintiffs certain portions of the profits, she failed to deposit all of the receipts, and she wrote checks in violation of the contract. She performed services under the contract for ten months before Plaintiffs terminated the agreement.

Although not dispositive of the issue, the following statement weighs heavily against Plaintiffs’ contentions in this point: “Where a party admits to a material fact, relevant to an issue in a case, the same is competent against him as substantive evidence of the fact admitted and is entitled to considerable weight.” Mitchell Eng., Div. of CECO v. Summit Realty, 647 S.W.2d 130,141[10] (Mo.App.1982). In belatedly arguing that Defendant failed to plead partial performance under the contract, Plaintiffs simply ignore what the record shows, that Plaintiffs admitted Defendant partially performed.

Finally, even accepting the case Plaintiffs cite (Scher), we note the origins of that rule date to State ex rel. Fletcher v. Blair, 352 Mo. 476, 178 S.W.2d 322 (1944). In explaining the necessity to plead performance, the Fletcher court noted that a petition is not fatally defective for failing to allege full performance or an offer to perform if the pleader alleges prevention of performance by the other party. Id. at 324[5]. Defendant did exactly that here; consequently, the Scher rule is not implicated. For these reasons, Plaintiffs’ fourth point is denied.

Point V: Sufficiency of the Evidence to Support the Counterclaims

Plaintiffs’ fifth point urges reversal by claiming the trial court lacked subject matter jurisdiction to enter the judgment because the damages awarded were neither pled nor proven. Plaintiffs continue by asserting that the evidence ivas insufficient to prove any damages for either the breach of contract count or the libel count. We address their contentions as we best understand them.

First,- Plaintiffs argue that Defendant did not properly plead damages for her breach of contract claim. They direct our attention to the Rule 55.05 requirement that, except for tort suits seeking money damages, “[i]f a recovery of money be demanded, the amount shall be stated.” Plaintiffs point out that Defendant’s request for damages set forth no specific amount. They then argue that “since [Defendant] effectively plead no damages for breach of contract in her counterclaim, the trial court’s award of any damages exceeded its subject matter jurisdiction.” Finally, Plaintiffs cite case law that, in default proceedings, a trial court has no subject matter jurisdiction to enter a damage award in amounts greater than that pled.

This argument fails because, as we have already found, this is not a default proceeding. The rule limiting the amount that can be awarded in a default case to that specifically requested “is designed to prevent a plaintiff from taking advantage of a defendant, even one who has ignored a summons.” Jew v. Home Depot USA, Inc., 126 S.W.3d 394, 398[11] (Mo.App.2004). The rule is one of notice to an opposing party. Id. at 398[12], The theory underlying the rule is that the defendant is presumed to be willing to have the plaintiff granted the relief stated in the petition, but no intendment or presumption can be made that the defendant is willing to authorize more. Id. at 398. The same considerations simply do not apply here.

In our case, Plaintiffs knew Defendant was proceeding under the contract and knew the general amount of damages sustainable under that contract. The requirement under Rule 55.05 that the amount of damages must be specifically stated is a procedural requirement. Stewart v. Sturms, 784 S.W.2d 257, 261-62 (Mo.App.1989). When Plaintiffs failed to challenge this requirement, they waived the procedural defect. We reject the notion that failure to allege a specific amount of damages deprived this trial court of subject matter jurisdiction. This prong of Plaintiffs’ point is denied.

Next, we consider Plaintiffs’ contention that the evidence was insufficient to support the judgment on the libel count. The evidence presented by Defendant on this matter is scant at best, even when charitably viewed. At the trial, Defendant testified that Dr. Weidner sent a letter to the county health department stating that Defendant currently was unlicensed to practice podiatry. This statement, of course, was false. However, Defendant never testified that this letter damaged her reputation in any way. Instead, Defendant testified as follows:

“Q: Do you believe similar letters were sent to other nursing homes and doctors and people in the area?
“A: Yes, I do.
“Q: As a result of these false statements, have you been damaged?
“A: Yes, I have.
“Q: In what way?
“A: I have nursing home administrators that will not come to the phone to talk to me. They will not return phone calls. I have had doctors that don’t return calls, that are no longer referring patients.” (Emphasis supplied.)

After this, Defendant said it would cost her $37,500 to repair the damage done to her reputation. She testified that $37,500 was the amount it would cost to do a “marketing action plan” for three years. This was the total of her evidence.

We find this patently insufficient to prove libel. “[P]roof of actual reputational harm is an absolute prerequisite in a defamation action.” Kenney v. Wal-Mart Stores, Inc., 100 S.W.3d 809, 817 (Mo.banc 2003). There must be concrete proof that a person’s reputation has been injured. Id. at 816. The Kenney court held:

“One form of proof is that an existing relationship has been seriously disrupted, reflecting the idea that a reputation may be valued in terms of relationships with others. Testimony of third parties as to a diminished reputation will also suffice to prove ‘actual injury.’ Awards based on a plaintiffs testimony alone or on ‘inferred’ damages are unacceptable.”

Id. (quoting Rocci v. MacDonald-Cartier, 323 N.J.Super. 18, 731 A.2d 1205, 1208 (1999)).

In the record, we find no such “concrete” proof of injury. Defendant claimed that Dr. Weidner made a defamatory statement to the county health department. However, no damage resulted from this letter, i.e., there is no evidence of the effects of the letter to the health department.

In apparent attempts to show actual injury, Defendant testified that she “believe[d]” other similar letters were sent to other doctors and nursing homes. However, Defendant’s “belief” testimony, presented as it was without explanation or foundation, was nothing but pure speculation and did not provide the kind of concrete proof required to support a claim for damages in a libel suit. Nor was this deficiency cured by Defendant’s testimony that other doctors and nursing homes “will not return [her] phone calls.” This follows because Defendant never identified who she “believed” may have gotten these letters, nor did she identify who refused to return her calls; consequently, there was a total failure of proof that the letters — if sent to other persons as Defendant “believed” — caused her calls to be unreturned or caused her to lose business. To view Defendant’s evidence as sufficient would require acceptance of speculation heaped upon speculation. This we will not do. In sum, Defendant’s speculative evidence is entirely insufficient to meet the dictates enunciated by the Missouri Supreme Court in Kenney. Consequently, that part of the judgment awarding Defendant $137,500 for libel is reversed and remanded. Commerce Bank, NA v. Blasdel, 141 S.W.3d 434, 458[34, 35] (Mo.App.2004).

The final argument under Point V is Plaintiffs’ claim that the evidence is insufficient to support the amount of damages for breach of contract. Plaintiffs are partially correct.

It is axiomatic that “[d]amages are an essential element of a cause of action for breach of contract and must be proven.” Rice v. West End Motors, Co., 905 S.W.2d 541, 542 (Mo.App.1995). Here, Defendant testified that she earned $5000 per month for ten months of the two-year contract. She further testified that, based on her projections, she should have made $311,115 had the Plaintiffs not breached the contract for a period of 21 months, i.e., $14,515 per month. The court awarded her $14,815 per month for the full two years less the $50,000 she had been paid, or $305,560. The court also awarded her $120,000 for the loss of the option to purchase the clinic.

The damages awarded as a result of the loss of the option are supported by substantial evidence. The damage figure for loss of monthly income ($14,815) is also supported by substantial evidence. We believe, however, that the court erred in calculating damages for the full two-year period. The contract specifically provided that Defendant was only entitled to $5000 per month for the first three months. Therefore, the $14,815 amount should not be applied to that period.

Consequently, the judgment should reflect that Defendant was damaged in the amount of $396,115. Pursuant to Rule 84.14, this court is authorized to give such judgment as the court ought to give. The judgment is reversed and remanded as to the award for libel. The judgment is hereby amended to reflect an award of $396,115 for breach of contract. In all other respects, the final judgment of the trial court is affirmed.

BARNEY, J., and BATES, C.J., concur.

      . "Net revenues” were defined in the contract as "Gross Revenues less Entrepreneur and Medical Mavin Ltd. Fees and Overhead expenses.” The term "Entrepreneur fee” was a defined phrase and was a prescribed amount Defendant was to pay Plaintiff during the two-year period she operated the business. The "Medical Mavin Ltd.” fee was an amount to be paid to the broker who arranged the deal between Plaintiffs and Defendant. The phrase “Overhead expenses” was also defined in the contract.

      . The record is silent on why Defendant limited her notice of hearing to her counterclaims, rather than calling up the entire case for trial.

      . Plaintiffs filed a second motion to vacate in March 1999. It focused exclusively on a claim that an indispensable party had not been joined; consequently, vacation of the judgment was mandated. Relief on that ground was denied in September 1999 and that denial is not raised as a claim of error on appeal.

      . In pertinent part, Rule 43.01(a) requires that "[e]very pleading, subsequent to the original petition, every written motion ... and every written notice ... shall be served upon each of the parties affected thereby, but no service need be made on parties in default. ...” Subsections (b)-(g) of Rule 43.01 prescribe, inter alia, how service is to be made and how shown.

      . In their reply brief, Plaintiffs argue — for the first time — that the trial court should have invoked Rule 75.01 to set aside the judgment. Their premise is the trial court retained control over the counterclaim judgment until thirty days after January 14, 2005, the date that Defendant finally dismissed the remaining two counts of her counterclaim; consequently, the trial court abused its discretion by not finding there was "good cause” to set aside the judgment. Multiple problems attend this argument. First, it is one Plaintiffs have wholly waived in that (a) they never presented that argument to the trial judge, (b) they never made that argument as a point on appeal, and (c) they never advanced that argument in their opening brief. Moreover, such argument fails because what might have been "good cause” under Rule 75.01, i.e., Plaintiffs’ alleged lack of notice of the counterclaims and lack of notice of the September 24, 1998, trial setting, was not supported by any evidence.

      . This is not to say that such a defect would survive a motion to dismiss or a motion for more definite statement.

      . Plaintiffs’ third point urged reversal of the award of punitive damages on the libel counterclaim. Our reversal of the judgment on the libel count renders that point moot; consequently, we need not address Point III.

      . The calculation is as follows: ($14,815 x 21 months) + $120,000 (option damages) — $35,000 ($50,000 paid less $15,000 for first three months).