author: JOSEPH M. ELLIS, Judge.

text:
    STATE of Missouri ex rel. ESTATE OF Marvin J. PERRY, by Paul E. PERRY, Relator. In the Estate of Marvin J. Perry, Deceased, Paul E. Perry, Appellant, v. The Honorable Ellen S. Roper, Circuit Judge, 13th Judicial Circuit, John S. Perry, and Allan L. Perry, Respondents.
    Nos. WD 64594, WD 64654.
    Missouri Court of Appeals, Western District.
    May 24, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 28, 2005.
    Application for Transfer Denied Aug. 30, 2005.

      Paul A. Seigfried, Mexico, MO, for relator and appellant.
    Scott O. Marshall, St. Louis, MO, for respondents.
    Before JOSEPH M. ELLIS, Presiding Judge, PAUL M. SPINDEN, Judge and THOMAS H. NEWTON, Judge.
   JOSEPH M. ELLIS, Judge.

Paul E. Perry filed a petition for writ of certiorari in this court, as well as an appeal, seeking review of an order of the Probate Division of the Circuit Court of Boone County denying his petition for presentment of the will of his deceased father and his application for letters testamentary. Our writ of certiorari issued, and the writ and the appeal were subsequently consolidated. For the following reasons, we now quash our writ of certio-rari and on the appeal reverse and remand for further proceedings.

On July 25, 2003, Marvin J. Perry (the decedent) died. Subsequently, on September 9, 2004, Paul E. Perry (Perry), the decedent’s son, sought to enter a self-proving will executed by the decedent into probate by filing a Petition for Presentment of Instrument and an Application for Letters Testamentary in the Probate Division of the Circuit Court of Boone County. In both pleadings, Perry affirmatively pled that the statute of limitations applicable to presentment and to letters testamentary had been tolled by his active duty service in the military pursuant to 50 U.S.C. app. § 526 of the Servicemembers’ Civil Relief Act, 50 U.S.C. app. § 501 et seq. Perry averred that he had been serving on active duty in the U.S. Army from January 8, 2003, to July 13, 2004.

On September 10, 2004, the day after the petition and application were filed, the probate judge entered her order denying Perry’s Petition and Application, stating: “Petition for Probate of Will and Application for Letters Testamentary are denied, the Court finding more than one year has passed since the date of death of decedent which occurred on July 25, 2003.”

On September 23, 2004, Perry filed a Petition for Writ of Certiorari in this Court. On October 8, 2004, Perry filed his notice of appeal of the trial court’s judgment. On October 14, 2004, this Court entered its Writ of Certiorari. On November 5, 2004, the trial court entered its Return of Writ of Certiorari, stating that the court lacked jurisdiction to admit or reject the will because it was presented for probate over a year after the death of the decedent. The parties then filed briefs on the matter. Subsequently, Perry filed a motion to consolidate the writ case with his direct appeal, and that motion was granted. Thus, both Perry’s petition for writ of certiorari and his direct appeal are now before this Court.

We must first determine whether Perry’s direct appeal is properly before this Court because, if it is, certiorari will not lie. “ ‘The office of the common-law writ of certiorari ... generally extends to the review of all questions of jurisdiction, power, and authority of the inferior tribunal to do the action complained of, and all questions of irregularity in the proceedings.’ ” State ex rel. Southwestern Bell Tel. v. Brown, 795 S.W.2d 385, 387-88 (Mo. banc 1990) (quoting Am.Jur.2d, Certiorari § 2 (1964)). “The function of the writ is to bring that record before the issuing court for the purpose of determining whether the inferior tribunal acted outside its jurisdiction or otherwise illegally, in situations where no appeal or other available mode of review is afforded or where such other type of review is inadequate to meet the exigencies of the case.” State ex rel Modern Fin. Co. v. Bledsoe, 426 S.W.2d 737, 740 (Mo.App. E.D.1968) (internal citations omitted and emphasis added). “ ‘Certiorari is a remedy narrow in its scope and inflexible in its character. It is not a general utility tool in the legal workshop. It cannot be made to serve the purpose of an appeal or writ of error.’ ” State ex rel. Hill v. Davis, 488 S.W.2d 305, 308 (Mo.App. W.D.1972) (quoting State ex rel. St. Louis Union Trust Co. v. Neaf 346 Mo. 86, 139 S.W.2d 958, 961 (1940)). Accordingly, “[cjertiorari cannot be used as a substitute for appeal ... and where the inferior tribunal has jurisdiction and its action can be reviewed by appeal ..., cer-tiorari will not lie.” State ex rel. Palmer v. Elliff, 332 Mo. 229, 58 S.W.2d 283, 286 (1933).

With regard to appeals in probate matters, Section 472.160.1(14) provides that any aggrieved person may appeal to the appropriate appellate court an order, judgment, or decree of the probate division in all cases where there is a final order or judgment under the probate code “except orders admitting to or rejecting wills from probate.” “This entitlement must be liberally construed, as the law favors the right to appeal.” In re Estate of Clark, 83 S.W.3d 699, 702 (Mo.App. W.D.2002).

While conceding that the probate court’s order was not an order admitting or rejecting a will from probate, Respondent contends that an order rejecting a petition for failing to comply with the time limitation set forth in § 473.050 is not a final order or judgment and is, therefore, not appealable. Respondent argues that it is instead a determination that the probate court lacked subject matter jurisdiction and that such rulings are not reviewable by this Court.

“For an order to be final and ap-pealable, it must dispose of all issues and parties in the case, leaving nothing for future determination.” Id. at 702. The probate court’s order meets these criteria.

In the case at bar, the probate court did not admit or reject the will from probate, and, therefore, the provision of § 472.160.1(14) barring appeals from “orders admitting to or rejecting wills from probate” is inapplicable. This is so because the probate court’s dismissal of an application and refusal to admit a purported will to probate based upon the statute of limitations does not constitute a “rejection” of a will from probate as provided in § 472.160.1. See In re Politte’s Estate, 460 S.W.2d 733, 734-35 (Mo.App. E.D.1970). Instead, the probate court dismissed Perry’s petition and application for failing to comply with the applicable statute of limitations. Id. While Respondent contends that the statutory time limitations set forth by the legislature for the filing of a will and for applying for letters testamentary are not statutes of limitations, Section 473.050 is a statute of limitations, limiting the time within which a will can be presented for probate. Swinney v. Cummings, 581 S.W.2d 474, 476 (Mo.App. S.D.1979); In re Politte’s Estate, 460 S.W.2d at 735. Likewise, the one-year limitation for filing an application for letters testamentary is a statute of limitations. Johnson v. Akers, 9 S.W.3d 608, 609 (Mo. banc 2000). Thus, the trial court disposed of all issues and parties before the court.

A trial court’s dismissal of an action based upon the running of a statute of limitations is a final, appealable order. Long v. Cross Reporting Serv., Inc., 103 S.W.3d 249, 252 n. 4 (Mo.App. W.D.2003); Doe v. Visionaire Corp., 13 S.W.3d 674, 676 (Mo.App. E.D.2000). More specifically, as noted supra, a trial court’s determination that an action is barred by the statute of limitations for filing a will or for applying for letters testamentary is reviewable by an appellate court. See In re Politte’s Estate, 460 S.W.2d at 734-35; Johnson, 9 S.W.3d at 609-10 (reviewing the probate court’s denial of an application for letters testamentary because the application was not filed within the one year statute of limitations).

Even were we to view the applicable statute of limitations as a jurisdictional prerequisite, the probate court had the authority to consider its own jurisdiction, and its ruling in that regard is reviewable by this Court on appeal. Where a trial court has dismissed a case on the ground that it lacked subject matter jurisdiction, the trial court’s dismissal of the action is appealable because the effect of the order is to dismiss the plaintiffs action and not merely the pleading. Sexton v. Jenkins & Assocs., Inc., 152 S.W.3d 270, 273 (Mo. banc 2004).

In short, the trial court’s order dismissing Perry’s petition and application was a final, appealable order, properly before this Court on appeal. Accordingly, certio-rari does not lie. We, therefore, quash our writ of certiorari and take up Perry’s direct appeal.

On appeal, Perry contends that the probate court erred in dismissing his petition and application for failing to comply with the applicable statute of limitations. Perry claims that 50 App. U.S.C. § 526(a) of the Servicemembers’ Civil Relief Act (SCRA) tolled the statute of limitations while he was actively serving in the military.

Where a dismissal is granted on the pleadings on the grounds that a claim is barred by a statute of limitations, this Court will review the matter as an issue of law. Bettis v. Potosi R-III Sch. Dist., 51 S.W.3d 183, 185 (Mo.App. W.D.2001). The pleadings are “construed liberally, treating all facts alleged as true and construing allegations favorably to the plaintiff.” Dupree v. Zenith Goldline Pharms., Inc., 63 S.W.3d 220, 221 (Mo. banc 2002). A petition may not be properly dismissed for violating the statute of limitations “unless it is clearly established on the petition’s face and without exception that the cause of action is time barred.” Braun v. Petty, 31 S.W.3d 521, 523 (Mo.App. E.D.2000).

Perry’s pleadings affirmatively averred that he had served on active duty in the U.S. Army from January 8, 2003, to July 13, 2004. Perry further stated that the statute of limitations for presenting the will and for filing an application for letters testamentary were tolled pursuant to 50 App. U.S.C. § 526(a) of the SCRA and that his pleadings were, therefore, timely filed. In dismissing Perry’s pleadings, the probate court simply concluded that Perry’s petition and application were barred by § 473.050 because they were not filed within one year of the death of the decedent, implicitly finding that 50 App. U.S.C. § 526(a) did not apply to toll the statute of limitations for the presentment of wills and for an application for letters testamentary.

Section 473.050.3 provides that “[n]o proof shall be taken of any will nor a certificate of probate thereof issued unless such will had been presented ... [i]n cases where notice has not previously been given in accordance with section 473.033 of the granting of letters on the estate of testator, within one year after the death of the testator[.]” Section 473.050.5 further states that “[a] will not presented for probate within the time limitations provided in subsection 3 of this section is forever barred from admission to probate in this state.” Since the decedent died over a year prior to the filing of Perry’s petition and application, the statute of limitations would bar Perry’s petition and application unless the statute of limitations was tolled.

As previously noted, Perry contends that the tolling provisions of the SCRA applied to toll the limitations periods set forth in § 473.050. The Service-members’ Civil Relief Act, 50 App. U.S.C. § 526, states:

(a) Tolling of statutes of limitation during military service
The period of a servicemember’s military service may not be included in computing any period limited by law, regulation, or order for the bringing of any action or proceeding in a court, or in any board, bureau, commission, department, or other agency of a State (or political subdivision of a State) or the United States by or against the servicemember or the servicemember’s heirs, executors, administrators, or assigns.

“The broad, unqualified, and mandatory language of [the tolling statute] leaves lit-tie room for judicial interpretation or oversight in its application.... ” In re A.H. Robins Co., 996 F.2d 716, 718 (4th Cir.1993). “ ‘The tolling statute is unconditional. The only critical factor is military service; once that circumstance is shown, the period of limitations is automatically tolled for the duration of service....”’ Ludwig v. Anspaugh, 785 S.W.2d 269, 271 (Mo. banc 1990) (quoting Ricard v. Birch, 529 F.2d 214, 216-17 (4th Cir.1975)).

Under the Supremacy Clause of the United States Constitution, article VI, clause 2, “Missouri Courts are obliged to apply federal law and may not apply substantive or procedural state law which is in derogation of federal law.” State ex rel. Nixon v. McClure, 969 S.W.2d 801, 804-05 (Mo.App. W.D.1998). Thus, if the tolling provision of the SCRA in 50 U.S.C.App. § 526 is applicable to the statutes of limitations for the presentment of a will and the filing of an application for letters testamentary, the federal statute is controlling and the statute of limitations was tolled during any period in which Perry was serving on active duty in the military. See Ludwig, 785 S.W.2d at 270-72 (holding that the tolling provisions of the SCRA served to toll the limitation of section 473.083.6 on perfecting a timely-filed will contest by securing service of process within 90 days of the filing of the petition). The ultimate issue before this court, therefore, is whether 50 App. U.S.C. § 526(a) of the SCRA applies to toll the limitations period set forth in § 473.050.

The Servicemembers’ Civil Relief Act (formerly “The Soldiers’ and Sailors’ Civil Relief Act”) ‘“is always to be liberally construed to protect those who have been obliged to drop their own affairs to take up the burdens of the nation.’ ” State ex rel. Goehler v. Ladriere, 354 Mo. 515, 189 S.W.2d 986, 989 (1945) (quoting Boone v. Lightner, 319 U.S. 561, 63 S.Ct. 1223, 1226, 87 L.Ed. 1587 (1943)). Accordingly, the tolling provisions of the SCRA are “to be ‘liberally construed to carry out its purposes.’ ” Ludwig, 785 S.W.2d at 271 (quoting Worlow v. Mississippi River Fuel Corp., 444 S.W.2d 461, 464 (Mo.1969)).

The general purposes of the Ser-vicemembers’ Civil Relief Act are set forth in 50 U.S.C.App. § 502, which states:

The purposes of this Act [sections 501 to 596 of this Appendix] are—
(1) to provide for, strengthen, and expedite the national defense through protection extended by this Act [said sections] to servicemembers of the United States to enable such persons to devote their entire energy to the defense needs of the Nation; and
(2) to provide for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of servicemembers during their military service.

“It is readily ascertained that the primary desire of Congress is to give protection to the soldier.... The object is to relieve the soldier from the consequences of his handicap in meeting financial and other obligations incurred prior to his call to duty, so that his energies may be devoted to his military duties, unhampered by mental distress occasioned by the consequences to him or to his dependents flowing from his inability to meet his obligations.” Omega Indus., Inc. v. Raffaele, 894 F.Supp. 1425, 1434 (D.Nev.1995) (quoting Patrikes v. J.C.H. Serv. Stations, Inc., 180 Misc. 917, 41 N.Y.S.2d 158, 165 (City Ct.1943)).

As relevant to the case at bar, the tolling provision of 50 U.S.C.App. § 526 states, “The period of a servieemember’s military service may not be included in computing any period limited by law ... for the bringing of any action or proceeding in a court ... by ... the servicemem-ber....” Respondent contends that this tolling provision only applies to statutes of limitations and further asserts that § 473.050 is not a statute of limitations. Respondent is wrong on both counts.

Under the case law, § 473.050 has been deemed to be a statute of limitations, albeit a “special statute of limitations” to which the regular tolling provisions under Missouri law were not applicable, and has been referred to and treated as such. See Johnson, 9 S.W.3d at 610; In re Politte’s Estate, 460 S.W.2d at 735. Moreover, our Supreme Court has held that the tolling provision of the SCRA was “intended to modify not only those statutes properly called statutes of limitations, by which times are fixed for the bringing of actions, but statutes creating a right of action which did not exist independently of the statute where the time for bringing such an action is limited in some way or a condition precedent is imposed by statute.” Worlow, 444 S.W.2d at 464 (internal quotations omitted).

The Missouri Supreme Court has applied this principle in finding that the tolling provisions of the Servicemembers’ Civil Relief Act applied to at least two statutes that were not traditional statutes of limitations. In Worlow v. Mississippi River Fuel Corp., 444 S.W.2d 461, 464 (Mo.1969), the Court held that the tolling provisions of the SCRA applied to toll the provision in the wrongful death statute providing that a plaintiff taking or suffering a nonsuit may commence a new action within one year of taking the nonsuit. In so doing, the Court cited favorably to cases from other jurisdictions holding that the time limitation barring the filing of a statutory wrongful death action is tolled by the tolling provisions of the SCRA and relied upon those cases in reaching its decision. Id.

In Ludwig v. Anspaugh, 785 S.W.2d 269, 270 (Mo. banc 1990), our Supreme Court considered whether the SCRA served to toll the limitation of section 473.083.6 on perfecting a timely-filed will contest by securing service of process within 90 days of the filing of the petition. In Ludwig, the plaintiff in a will contest action had failed to obtain service on a necessary party, who was actively serving in the military, within the prescribed 90-day period. Id. at 270. After observing that the tolling provision had the dual purpose of protecting the rights of those serving in the armed forces and also protecting those persons having causes of action against persons in military service, the Court noted that “[t]he language of the Act, ‘any period ... to be limited,’ liberally construed, encompasses the requirement of section 473.083.6 that a petitioner secure service of process on all parties defendant within ninety days of filing the petition.” Id. at 271 (internal citations omitted). The Court stated that, while Missouri clearly had a policy interest in furthering the prompt settling of estates and in expediting prosecution of will contests, “[tjhis salutary policy must give way ... to the mandatory tolling provisions made by Congress.” Id.

Similarly, liberally construing the language of the tolling provision of the SCRA to carry out the purpose for its enactment, we believe that 50 U.S.C.App. § 526 applies to toll the limitation period set forth in § 473.050. While filing a petition for presentment of a will and an application for letters testamentary are significantly different from filing a tort, contract, or similar’ action in circuit court, they nevertheless involve “judicial ... proceedings ... that may adversely affect the civil rights,” 50 U.S.C.App. § 502(2), of a the servicemember, namely, as in this case, the inheritance to which the servicemember is entitled, as well as the right to administer the estate. A petition for the presentment of a will results in the probate court taking evidence and determining whether to issue a certificate of probate. § 4-73.050. Furthermore, the filing of an application for letters testamentary initiates the administration of the estate of the decedent, which is a proceeding in rem in the probate court that continues until the decree of final distribution and the discharge of the last personal representative. § 473.013. Thus, both a petition for presentment and an application for letters testamentary institute “proceedings” that Perry had a right to bring, if timely filed, in the probate court. Since 50 U.S.C.App. § 526 provides that “[t]he period of a ser-vicemember’s military service may not be included in computing any period limited by law ... for the bringing of any ... proceeding in a court ... by ... the ser-vicemember,” this provision acts to toll the limitations period contained in § 473.050, which pertains to the bringing of a proceeding in probate court.

This result is consistent with the purpose of the tolling provision in setting aside the obligations of a soldier so that the soldier may devote his or her energies to military service without having to worry about obligations back home. We believe that Congress intended that a servicemem-ber like Perry should not be required to concern himself with the presentment of his father’s will, in which he is named as the executor and a beneficiary, and with applying for letters testamentary while he was on active duty in the defense of his country. As was the case in Ludwig, the interests of the State in furthering the prompt settlement of estates must give way to the tolling provisions enacted by Congress pursuant to the Supremacy Clause. Ludwig, 785 S.W.2d at 271.

Furthermore, “[wjhere Congress saw fit to exclude a particular type of proceeding from the tolling provision it did so explicitly and unambiguously, as it did in 50 U.S.C.App. § 527, which provides that ‘[the tolling provisions] shall not apply with respect to any period of limitation prescribed by or under the internal revenue laws of the United States.’ ” In re A.H. Robins Co., 996 F.2d at 719-20. The presence of this exclusion and the absence of any mention of an exception for probate proceedings in the act serves to bolster our view that 50 U.S.C.App. § 526 applies to the period set forth in § 473.050. See Id.

The cases from other jurisdictions relied upon by Respondent in asserting that the tolling provisions should not apply are not on point, and we do not find them persuasive on this issue. In McCoy v. Atlantic Coast Line Railroad Co., 229 N.C. 57, 47 S.E.2d 532, 534 (1948), the court simply stated, in dicta, that it questioned whether the tolling provision of the SCRA was intended to apply to probate proceedings. The court then proceeded to assume that the tolling provisions were applicable to probate proceedings in deciding the case. Id. at 534-35. The ultimate holding in McCoy was that the tolling provision in the SCRA was not applicable to the one-year limitations period contained in the North Carolina wrongful death statute, which the court noted was “materially different from that of most states.” Id. We do not find the reasoning in McCoy persuasive in ruling on the issues now before us.

In McLaughlin v. McLaughlin, 186 Md. 165, 46 A.2d 307, 309 (1946), the Maryland Court of Appeals held that 50 U.S.C.App. § 521, requiring that, prior to the entry of judgment, a plaintiff must file an affidavit stating whether or not the defendant is in the military service or stating that the plaintiff is unaware whether the defendant is in the military service, did not apply to the filing of a will.' The court found that a will could be filed with the probate court without filing a “military affidavit” as to all of the next of kin because the filing of the will was not a judgment, action, or proceeding against the next of kin. Id. Later in the opinion, the McLaughlin court assumed that the tolling provisions of the SCRA were applicable to probate proceedings in general and, more specifically, that they were applicable to the one-year period of limitations upon a caveat after probate. Id. Similarly, in Case v. Case, 55 O.O. 317, 124 N.E.2d 856, 861 (Prob.Ct.Ohio 1955), the court held that

[sjinee the presentation of a will for probate is not an adversary proceeding, and since a surviving spouse or other next of kin ... are not required to enter any appearance (as required in an adversary action) before a will can be admitted to probate in Ohio, the [Service-members’] Civil Relief Act as amended October 17, 1940, has no application to the proceedings to admit a will to probate in Ohio, and it, therefore, is unnecessary for the executor or anyone else to file the affidavit, appoint the attorney, or follow any other of the provisions of said ... Act ... as a condition precedent to the issuing of letters testamentary in the instant case.

We do not find either of these cases, both of which address the applicability of the military affidavit provisions of 50 U.S.CApp. § 521, persuasive on the issue of whether the tolling provisions apply to the time limitations for the filing of a petition for presentment of a will or an application for letters testamentary.

We also find no merit to Respondents’ argument that application of the SCRA to the presentment of wills will lead to an absurd result because the statutes allow non-interested parties to present a will to probate. Respondent opines that interested individuals who have allowed the statute of limitations to run would simply have to engage a member of the military to present the will in order to circumvent the statute of limitations.

In making this argument, Respondent fails to take into account the fact that actual administration of an estate does not commence until the filing of an application for letters testamentary or letters of administration, which will only be granted to interested persons and which must be filed within a year of the death of the decedent. In re Estate of Croom, 107 S.W.3d 457, 463 (Mo.App. S.D.2003); Johnson, 9 S.W.3d at 609. Thus only an interested party who is entitled to take advantage of the tolling provisions would be able to commence the administration of an estate more than one year after the death of the decedent. This result would appear to impose no greater burden on the probate system and the settlement of estates than the tolling of the statute of limitations for the filing of a will contest.

In short, we find that the tolling provisions of the Servicemembers’ Civil Relief Act serve to toll the statute of limitations for the filing of a petition for presentment and an application for letters testamentary for individuals covered by the act. We believe this result is consistent with the intentions of Congress in enacting the statute.

Because the probate court did not receive evidence or render a factual finding on whether Perry actually served in the armed forces subsequent to his father’s death and for what period of time, the cause must be reversed and remanded to the probate court for a hearing on that issue. See Worlow, 444 S.W.2d at 464. If the probate court determines that Perry served in the armed forces for a sufficient period of time after the death of his father for the tolling provisions of 50 App. U.S.C. § 526 to render timely the filing of his petition and application, the probate court is directed to reinstate Perry’s petition for presentment and application for letters testamentary.

The cause is reversed and remanded for further proceedings consistent with this opinion.

All concur.

      . In the will, Marvin J. Perry had nominated Paul E. Perry to serve as executor of his will.

      . Prior to 2003, the Servicemembers’ Civil Relief Act was referred to as the Soldiers’ and Sailors’ Civil Relief Act. See 50 U.S.C. app. § 501.

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

      . Respondent also mentions in passing that the trial court’s order was not denominated a "judgment” as prescribed by Rule 74.01(a). However, "it is well settled that Rule 74.01(a) does not apply to probate proceedings,” In re Nelson, 119 S.W.3d 197, 200 (Mo.App. W.D.2003), and the requirement that the trial court's ruling be denominated a judgment does not apply to appeals under the probate code. In re Estate of Clark, 83 S.W.3d 699, 702 (Mo.App. W.D.2002).

      . On the other hand, a determination by the trial court that it has jurisdiction does not dispose of the issues and parties before the court and is not a final, appealable order, and such a determination is properly reviewable by extraordinary writ. Boillot v. Conyer, 861 S.W.2d 152, 154 (Mo.App. E.D.1993).

      . Because no evidentiary hearing was conducted, the probate court could not have properly based its decision upon a finding that Appellant had not been on active duty in the Army.

      . Section 473.050 is a special statute of limitations that is not tolled under Missouri law, even for fraud or concealment of the will. In re Politte’s Estate, 460 S.W.2d 733, 735 (Mo.App. E.D.1970).

      . See also Bosworth v. Sewell, 918 S.W.2d 773, 776-77 (Mo. banc 1996) (rejecting an argument that § 473.083.1 is jurisdictional rather than a statute of limitations, noting that the statute does not explicitly state that its requirements are 'jurisdictional” and that it was merely a statutory bar that was stricter than most, "in the nature of a statute granting jurisdiction”).

      . 42 USCS § 1982 of the Civil Rights Act of 1866 states, "All citizens of the United States shall have the same right, in every State or Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.” (emphasis added). Thus, the right to inherit has long been recognized as a "civil right” held by the citizens of this country. More generally, "[t]he term 'civil rights’ embraces the rights due from one citizen to another, deprivation of which is a civil injury for which redress may be sought in a civil action.” Commonwealth v. Shimpeno, 160 Pa.Super. 104, 50 A.2d 39, 44 n. 2 (1946).

      . "[B]y its 1996 enactment, amending the provisions of section 473.050, the legislature has made clear that one who presents a will or codicil for admission to probate is not required to be an interested or otherwise entitled person, as either defined in case law or section 472.010(15). This enactment comports with the efficacious public policy of facilitating the process of probating instruments testamentary. We caution, however, that actual administration of an estate com-menees with the filing of the application for letters testamentary or of administration. Letters are to be granted to those persons entitled to letters as set out in section 473.110, thence to interested persons as set out in section 473.020.” In re Estate of Croom, 107 S.W.3d 457, 463 (Mo.App. S.D.2003) (citations and emphasis omitted).


source: Caselaw Access Project

author: JAMES M. SMART, JR., Judge.

license: Public Domain

text:
    Casey E. NOAKES, Now Norwat, Appellant, v. Daniel R. NOAKES, Defendant; Michael J. Westhusing, Respondent; Lenora L. Westhusing, Defendant.
    No. WD 64387.
    Missouri Court of Appeals, Western District.
    May 24, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 28, 2005.
    Application for Transfer Denied Aug. 30, 2005.

      Richard Anthony Koehler, Butler, for appellant.
    James Charles Johns, Clinton, for respondent.
    Before JAMES M. SMART, JR., P.J., RONALD R. HOLLIGER, and LISA WHITE HARDWICK, JJ.
   JAMES M. SMART, JR., Judge.

Casey Noakes Norwat appeals the family court’s denial of her motion to dismiss Michael Westhusing as an intervenor in an action to modify the custody and visitation provisions of a dissolution decree. The judgment is affirmed.

The marriage of Casey Norwat (Mother) and Daniel Noakes (Father) was dissolved by decree in November 1998. One child was born of the marriage in 1995. During the pendency of the original dissolution proceeding, the child’s paternal grandmother, Lenora Westhusing (Grandmother), and paternal step-grandfather, Michael Westhusing (Step-Grandfather), filed a motion to intervene and a motion for grandparents’ visitation, pursuant to section 452.402. Mother did not oppose those motions as to either Grandmother or Step-Grandfather at that time.

Pursuant to the original dissolution decree, Mother and Father were awarded joint legal custody of the minor child. Mother was designated the “primary physical custodian,” with rights of speeific visitation granted to Father. The court permitted Grandmother and Step-Grandfather to intervene and granted rights of visitation to both intervenors. We have not been provided a copy of the original dissolution decree, but both parties allege in subsequent motions that the original decree granted the intervenors “contemporaneous custody” with Father and provided that “in the event [Father] fails to exercise any visitation provided herein, the intervenors shall have the opportunity to exercise that visitation.” That judgment was not appealed.

In February 1999, Mother filed a notice of proposed relocation, in which she sought to relocate the child’s primary residence to Florida. Mother included a proposal for a revised schedule of visitation, which, in addition to making provisions for Father’s visitation, also included the following provisions:

(1) The grandparents shall have visitation for a period of one week beginning on July 1 of each year;
(2) When [the child] starts school, the grandparent’s visitation shall be during one of the four [ ] weeks that the child is with [Father] in the summer; and
(3) During the grandparents visitation prior to when [the child] starts school, [Mother] will bring the child to Kansas City at her expense and the grandparents will return the child to Florida at their expense.

The term “grandparents” referred to Grandmother and Step-Grandfather. The intervenors responded with a “Motion to Obtain a Revised Schedule of Visitation.” Intervenor Step-Grandfather continued to be a party in that action. Neither Mother nor Father made any objection to Step-Grandfather’s status as an intervenor.

The court entered its modification judgment in July 1999. The modified decree permitted Mother to relocate to Florida and provided for Mother and Father to have joint legal and joint physical custody of the child, with Mother designated as the “primary physical custodian.” The judgment incorporated a new parenting plan, stipulated to by the parties, which included ample periods of time during which the child would reside with Father. With regard to the intervenors, the judgment stated:

The parties recognize that during the[ ] times when the child is with [Father], thé Intervenors, the paternal grandparents, will have an opportunity to spend time with the minor child. However, the purpose of this visitation is for the Father to have continuing and meaningful contact with the minor child and the minor child will primarily be with [Father],

Thus, it would appear that the Grandparents’ rights to visitation were slightly diminished by the modification judgment. No appeal was taken from that judgment.

In July 2000, Mother filed a “family access” motion, which, according to Mother, was dismissed shortly thereafter “at the request of the parties.” Mother also filed her first motion to dismiss Step-Grandfather as an intervenor. That motion raised for the first time the issue of the standing of Step-Grandfather to be included in any visitation order of the court. The motion cited this court’s May 2000 opinion in Hampton v. Hampton, 17 S.W.3d 599, 602 (Mo.App.2000), which held that a siep-grandparent has no right to visitation under the provisions of Missouri’s grandparent visitation statute. Mother’s brief states that her motion to dismiss the intervenor was neither acted upon by the trial court nor pursued by her at that time.

The July 1999 modification decree remained in full force and effect until the court took up the following motions underlying this appeal: On November 24, 2003, intervenors filed a motion for contempt. Father filed a motion for contempt on May 6, 2004. (Father’s earlier contempt motion, filed in October 2003, was dismissed in November when the parties failed to appear at a pre-trial meeting.) Both contempt motions related to Mother’s noncompliance with various provisions of the modified parenting plan.

Mother filed several motions in response to the contempt motions. Although it is not reflected in the court’s judgment in this case, Mother first filed a “Motion to Dismiss Intervenor Michael Westhusing” in December 2003, a copy of which is included in the legal file. That motion, like her earlier one, requested that the court dismiss Step-Grandfather from the case based on the argument that as a step-grandparent, he is not entitled to intervene or to be granted visitation, pursuant to Hampton. Mother then filed a “Motion to Dismiss the Intervenors/Motion to Quash Intervenors’ Motion for Contempt” in February 2004, seeking to dismiss both inter-venors from the case. She argued, inter alia, that the “broad and sweeping” grandparent visitation order was unconstitutional; that there was no specific finding that grandparent visitation was in the child’s best interest; and that visitation with Grandmother was not in the child’s best interest at that time for a variety of reasons. Mother again sought specifically to have Step-Grandfather dismissed based on Hampton. Alternatively, she sought to have the intervenors’ contempt motion quashed.

Mother also filed a “Motion to Modify” in March, pursuant to section 452.400, in which she alleged that “substantial and continuing circumstances have occurred in the [child’s] life” that warrant modification of the original and modified parenting plans. Those circumstances involved, primarily, Mother’s allegation that Father and paternal Grandmother had conspired to hide the child from Mother for several days when she was supposed to be returned to Mother. In her motion to modify, Mother sought that: (1) Step-Grandfather be dismissed, again, because he has “no standing to be a part of this cause” pursuant to this court’s Hampton decision; (2) Grandmother be dismissed from the case, or alternatively, that her contact and visitation with the child be restricted; and (3) Father’s visitation be altered and restricted. According to the court’s judgment, Mother also filed a “Motion to Exclude Intervenors’ Participation” in May 2004, but no copy is filed with this court.

The parties’ various motions were consolidated for hearing and presented to the family court. In its nunc pro tunc Order and Judgment, the court found, with regard to the contempt motions, that although Mother “willfully and intentionally denied visitation and contact” between the child, Father, and the intervenors, it “[could] not find that she acted without good cause.” The contempt motions were therefore denied. With regard to Mother’s motion to modify, the court found that there had been a change of circumstances, but that the change consisted of Mother denying visitation and contact between the child and Father and the intervenors for over four years. The court found that “contact with extended family” was in the child’s best interest and, therefore, she should be “ease[d] back into visits with her paternal grandparents.” The court adopted the parenting plan submitted by Father and the intervenors to replace the existing 1999 parenting plan. In addition to reiterating the language of the earlier plan as to the intervenors (i.e., that when the child is with Father, the paternal grandparents will have an opportunity to spend time with the minor child), the new plan provides that Father shall use “reasonable care and diligence” in reacquainting the child with the intervenors in such manner as he deems appropriate to alleviate the child’s concerns.

Finally, and most pertinent to this appeal, the court denied Mother’s “Motion to Dismiss Intervenors” and her “Motion to Exclude Intervenors’ Participation” without further elaboration. Mother now appeals that judgment.

In her sole point on appeal, Mother argues that the trial court erroneously applied the law in failing to dismiss Step-Grandfather from the case because a step-grandparent has no statutory right in Missouri to intervene in a dissolution proceeding and no statutory right to visitation with a step-grandchild. Mother says the trial court, therefore, lacked subject matter jurisdiction to allow Step-Grandfather to remain in the case.

In grandparent visitation cases, as in most court-tried civil cases, this court is guided by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), and will affirm the judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or misapplies the law. Hampton, 17 S.W.3d at 601.

Step-Grandparent Visitation

Paternal Grandmother and paternal Step-Grandfather sought and were granted leave to intervene and rights to visitation with the minor child in conjunction with Mother and Father’s 1998 dissolution, pursuant to section 452.402. Mother argues, based on this court’s holding in Hampton, 17 S.W.3d 599, that the dissolution court erred in permitting Step-Grandfather to intervene and in awarding him visitation under section 452.402. She also contends, based on Hampton, that the motion court in the underlying case erred in denying her motions to dismiss Step-Grandfather as well.

In Hampton, where the child’s mother was soon to be incarcerated, both maternal grandparents and their respective spouses sought leave to intervene in the father’s dissolution modification action. 17 S.W.3d at 601. The grandparents were granted leave to intervene to pursue visitation rights. The modification court granted sole legal custody to the father and awarded every-other-weekend visitation to the maternal grandparents and step-grandparents while Mother was incarcerated. Id. This court specifically held in Hampton that section 452.402, which permits grandparent visitation, does not apply to step-grandparents. Id. at 602. The court reasoned that the legislature, in using the word “grandparent,” intended to authorize visitation only to the parent of a child’s father or mother and held that the court, therefore, had misapplied the law in awarding visitation to the step-grandparents. Id. The Hampton court also found that the amount of visitation time granted the true grandparents was unconstitutionally excessive, and the cause was reversed and remanded with instructions to adjust the visitation time. Id. at 605-06 (citing Herndon v. Tuhey, 857 S.W.2d 203 (Mo. banc 1993)).

The Respondents essentially ignore Mother’s arguments with regard to section 452.402 and Hampton. They instead focus on the contention that the court properly could have joined Step-Grandfather as an additional party pursuant to section 452.485 and awarded him visitation, pursuant to section 452.375.5, after finding that the welfare of child required it and that it was in the child’s best interest. They also, in oral argument, argue that the doctrine of res judicata bars Mother’s contentions at this point in the proceeding.

It is unclear whether the statutes cited by the Respondents could have been invoked to provide Step-Grandfather the right to intervene and to seek visitation in light of the United States Supreme Court’s holding in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). It is unnecessary, however, for us to address the intervenors’ arguments with regard to these other statutes because, in this particular case, Mother’s untimely objections to Step-Grandfather’s participation are precluded by the doctrine of res judicata.

Res Judicata

We agree with Mother’s assertion that, as is now clear after Hampton, the original intervention and award of grandparent visitation to Step-Grandfather was not authorized under the grandparent visitation statute. The motion court could have granted Mother’s motions to dismiss as a matter of law, based on Hampton, so long as her contentions were not otherwise barred.

The next question, then, is whether Mother’s intentions are now otherwise barred. Grandparents point out (and Mother evidently concedes) that Mother did not object to Step-Grandfather’s intervention in the original 1998 dissolution proceeding and did not appeal the original judgment that granted him visitation rights. Grandparents say that the matter, therefore, has been felly and finally adjudicated, and Mother now is barred from seeking to have Step-Grandfather dismissed on grounds of res judicata. We agree.

Res judicata, which means “a thing adjudicated,” is a common law doctrine that precludes relitigation of an already adjudicated claim. Timmerman v. Timmerman, 139 S.W.3d 230, 235 (Mo.App.2004). The doctrine of res judicata is applicable to child custody and visitation provisions, except to the extent that such provisions later may be modified pursuant to applicable statutes. See, e.g., In re Marriage of Burroughs, 691 S.W.2d 470, 476 (Mo.App.1985); C— C— v. J— A— C — , 499 S.W.2d 809, 812 (Mo.App.1973); see also § 452.495. Res judicata applies not only to all the points and issues raised by the parties upon which the court was actually required to pronounce judgment, but also to every point properly belonging to the subject matter of the litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. Lay v. Lay, 912 S.W.2d 466, 471 (Mo. banc 1995).

Section 452.402 provides that the court may grant reasonable visitation rights “to the grandparents of the child.” The statute says nothing about spouses of grandparents. The term “grandparent” has a clear meaning in the law. Thus, even though no court had yet interpreted section 452.402 to preclude step-grandparent participation at the time of the original intervention, the issue existed in the original dissolution case and could and should have been litigated in that proceeding. The fact that Hampton was not decided until two years later does not assist Mother. All Hampton did was clarify the issue of law with regard to grandparent visitation by interpreting the statute that already existed at the time of the original intervention. For these reasons, Mother is now barred by the doctrine of res judi-cata from contesting Step-Grandfather’s participation in the case and his visitation rights, except to the extent that she may seek modification of the visitation provisions on grounds permitted under the applicable statutes.

Section 452.400 governs modification of visitation provisions. Timmer-man, 139 S.W.3d at 234. “The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child.... ” § 452.400.2 (emphasis added). “Proof of a substantial change of circumstances is not required to modify visitation under section 452.400.2.” Timmerman, 139 S.W.3d at 234. A trial court may order grandparent visitation only when it finds that it is in the child’s best interest and does not endanger the child’s physical or emotional development. See Herndon, 857 S.W.2d at 209; § 452.402.2. Based on the foregoing, we conclude that modification of grandparent visitation rights requires only a reasonable finding that such modification is in the child’s best interests.

Here, the motion court specifically found that it is in this child’s best interest to resume visitation with the “paternal grandparents ” (plural), obviously referring inartfully to the grandmother and the step-grandfather. The motion court included Step-Grandfather in that best interests determination. Thus, there is no need to remand for additional findings as to this issue. Whether the decree later may be modified to exclude visitation with Step-Grandfather will depend upon a court’s determination as to whether such visitation remains in the child’s best interests. .

Subject Matter Jurisdiction

Despite Grandparents’ argument that res judicata precludes Mother’s assertions, they acknowledge that the doctrine would not apply if Mother could show that the original order was invalid on its face or that the court lacked subject matter jurisdiction. Mother does argue that the dissolution court lacked subject matter jurisdiction to permit Step-Grandfather to intervene and have visitation because he had no statutory right to do either. She also briefly argues that the motion court in the underlying case lacked subject matter jurisdiction on the same basis. As noted by Mother, a claim of lack of subject matter jurisdiction may be raised at any stage of the proceedings, may not be waived, and cannot be conferred by action or agreement of the parties. See In re Marriage of Dooley, 15 S.W.3d 747, 754 (Mo.App.2000); In re Marriage of Mitchell, 756 S.W.2d 949, 951 (Mo.App.1988). Thus, Mother argues, she could not have waived her right to now seek Step-Grandfather’s dismissal by failing to earlier object or appeal a prior invalid judgment.

In part, Mother’s appeal is a collateral attack on the validity of the original judgment. “A collateral attack is an attempt to impeach a judgment in a proceeding not instituted for the express purpose of annulling the judgment.” Tim-mons v. Timmons, 139 S.W.3d 625, 629 (Mo.App.2004). In general, a final judgment is immune from collateral attack so long as the court had personal and subject matter jurisdiction and the judgment was not void on its face. Telge v. Telge, 677 S.W.2d 403, 405 (Mo.App.1984). A lack of jurisdiction renders a judgment void. See In re Marriage of Brown, 878 S.W.2d 94, 98 (Mo.App.1994). A judgment that is void is a nullity that has no force or effect and cannot support a claim of res judicata. McIntosh v. Wiggins, 356 Mo. 926, 204 S.W.2d 770, 772 (1947); see also Marriage of Brown, 878 S.W.2d at 98.

We do not agree, however, that this is a question of “subject matter jurisdiction.” Subject matter jurisdiction refers to the power of a court to hear and determine cases of the general class or category to which the proceedings in question belong. Black’s Law DictionaRY 1425 (6th ed.1990); Mo. Soybean Ass’n v. Mo. Clean Water Comm’n, 102 S.W.3d 10, 22 (Mo. banc 2003). Mother does not contend that the trial court lacked the authority to hear and determine cases dealing with child custody and visitation matters. Her argument, rather, is that both courts lacked the jurisdiction to permit Step-Grandfather to participate in the case. See Marriage of Brown, 878 S.W.2d at 99 (Crahan, J., dissenting) (observing that there is a difference between the concepts of subject matter jurisdiction and “quasi-jurisdietional factual findings” necessary to determine that a particular case falls within a court’s subject matter jurisdiction).

The trial court’s authority to hear a child custody determination is often characterized as jurisdiction of the subject matter. See State ex rel. Phelan v. Davis, 965 S.W.2d 886, 890 (Mo.App.1998). Section 452.410.1 provides that a “court shall not modify a prior custody decree unless it has jurisdiction under the provisions of section 452.450[.]” Pursuant to that statute, “[a] court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree” so long as one of the four fisted criteria is met. § 452.450.1(l)-(4). The motion court clearly had jurisdiction over the subject matter — the matter of the child’s custody and visitation — regardless of whether or not Step-Grandfather intervened.

This case is not like Chipman v. Counts, 104 S.W.3d 441, 448 (Mo.App.2003), where the court remanded for dismissal because the sole petitioner lacked standing and thus had failed to invoke the court’s subject matter jurisdiction. In Chipman, the child’s grandmother petitioned for custody under the dissolution statute dealing with child custody even though the child’s parents had never been married. Id. at 443. The appellate court reversed the award of custody to the grandmother because she did not have standing to file the petition under the dissolution statute. Id. at 445-46. This case is distinguishable. In that case, where the sole petitioner lacked standing, there no longer existed any case or controversy over which the court could exercise its jurisdiction. Here, regardless of whether or not Step-Grandfather participated, all the other parties in the case did have standing and presented interests that were adverse. Thus, the court had a justiciable case and controversy, and it properly exercised its jurisdiction over the custody and visitation issues.

Mother frames her argument in terms of jurisdiction. Her real complaint is that the dissolution court misapplied the law. Although the trial court may have erred in permitting Step-Grandfather to intervene and awarding him visitation, it did not deprive itself of jurisdiction by doing so. See Valdez v. Thierry, 963 S.W.2d 459, 461 (Mo.App.1998) (a court that has jurisdiction may decide the issues erroneously without losing that jurisdiction); McIntosh, 204 S.W.2d at 773 (“when a court has jurisdiction, it has jurisdiction to commit error”). Nothing is better settled than the principle that an erroneous judgment has the same res judicata effect as a correct one. McIntosh, 204 S.W.2d at 772. If the court made a mistake, it was a mistake of law, and any mistake of law should have been addressed on direct appeal. See Valdez, 963 S.W.2d at 461.

Because Mother never appealed the earlier erroneous rulings that granted Step-Grandfather intervention and visitation, the matter was res judicata in the underlying motion case in which Mother sought to dismiss Step-Grandfather. Under the circumstances, the court could have modified Step-Grandfather’s visitation only after finding that it would not be in the child’s best interests. The court specifically found that such visitation was in the child’s best interests. The judgment is affirmed.

HOLLIGER and HARDWICK, JJ., concur.

      . We note that section 452.375.1(1) defines "custody” as "joint legal custody, sole legal custody, joint physical custody or sole physical custody or any combination thereof," but does not employ the term "primary physical custody.” LaRocca v. LaRocca, 135 S.W.3d 522, 524 (Mo.App.2004). As we explained in Loumiet v. Loumiet, 103 S.W.3d 332, 338 (Mo.App.2003), the term "primary physical custody” is a misnomer; the question in all cases is simply whether physical custody is joint or sole.

      . Section 452.402 provides in pertinent part:
      1. The court may grant reasonable visitation rights to the grandparents of the child and issue any necessary orders to enforce the decree ... when:
      (1) The parents of the child have filed for a dissolution of their marriage. A grandparent shall have the right to intervene in any dissolution action solely on the issue of visitation rights. Grandparents shall also have the right to file a motion to modify the original decree of dissolution to seek visitation rights when visitation has been denied to them[.]
      2. The court shall determine if the visitation by the grandparent would be in the child's best interest or if it would endanger the child’s physical health or impair the child’s emotional development. Visitation may only be ordered when the court finds such visitation to be in the best interests of the child. The court may order reasonable conditions or restrictions on grandparent visitation.

      . Pursuant to section 452.485,
      [i]f the court learns ... that a person not a party to the custody proceeding ... claims to have ... visitation rights with respect to the child, [the court] may order that person to be joined as a party and to be duly notified of the pendency of the proceeding and of his joinder as a party. (Emphasis added.)

      .The section of § 452.375.5 the Grandparents consider relevant provides in part:
      Prior to awarding the appropriate custody arrangement in the best interest of the child, the court shall consider each of the following as follows:
      (5) Third-party custody or visitation:
      (a) When the court finds that each parent is unfit, unsuitable, or unable to be a custodian, or the welfare of the child requires, and it is in the best interests of the child, then custody, temporary custody or visitation may be awarded to any other person or persons deemed by the court to be suitable and able to provide an adequate and stable environment for the child. Before the court awards custody, temporary custody or visitation to a third person under this subdivision, the court shall make that person a party to the action;

      (b) Under the provisions of this subsection, any person may petition the court to intervene as a party in interest at any time as provided by supreme court rule.

      (Emphasis added.)

      . The Grandparents also point out that Mother did not object to Step-Grandfather’s intervention and participation in the 1999 relocation/modification proceeding or appeal that judgment.

      . Mother does not discuss the matter of possible modification of the grandparents' visitation rights.

      . Sometimes a "court has no jurisdiction (or competency) to render a particular judgment in a particular case, for example, if statutory conditions have not been complied with, or the petition fails to plead a claim upon which relief can be granted.” Bullmaster v. Krueger, 151 S.W.3d 380, 387 (Mo.App.2004) (citing State ex rel. Lambert v. Flynn, 348 Mo. 525, 154 S.W.2d 52, 57 (1941)). Here the problem ís not so much the failure to comply with statutory conditions as it is simply a misapplication of the law. Accordingly, this case does not present an issue of subject matter jurisdiction, even under the Bullmaster formula.

      . Mother does not argue that the court lacked jurisdiction because those criteria were not met.


author: GLENN A. NORTON, Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Joseph M. STOCKLEY, Donna McCarrison, Amanda Cox, Rebecca McCarrison and Margerie McCarrison, Respondents.
    No. ED 84200.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 24, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 18, 2005.
    Application for Transfer Denied Aug. 30, 2005.

      Jason W. Corray, Collinsville, IL, for appellant.
    Eric C. Young, John Bitzer (co-counsel), Belleville, IL, co-counsel for appellant.
    Morry S. Cole, St. Louis, MO, for respondent.
   OPINION

GLENN A. NORTON, Judge.

State Farm Automobile Insurance Company appeals the judgment declaring that its policy covers claims against Joseph Stoekley arising from his use of a baggage tug on the tarmac at the airport. We reverse.

I. BACKGROUND

Joseph Stoekley was a baggage handler for Trans World Airlines. He used a four-wheeled vehicle called a tug to transport baggage in the tarmac area at Lambert St. Louis International Airport. While operating the tug, Stoekley struck and killed another TWA employee, and the decedent’s family filed a wrongful death claim against Stoekley. The State Farm policy covering Stockley’s personal car extends liability coverage to accidents arising from his use of a non-owned car. “Car” is defined in the policy as a “land motor vehicle with four or more wheels, which is designed for use mainly on public roads.” State Farm filed the instant petition, seeking a declaration that the policy provides no coverage for Stockley’s use of the tug because the tug was not designed for use mainly on public roads. After a bench trial, the court concluded that the tug was designed for use on the airport tarmac, which is a public road, and entered judgment declaring that the policy covered the tug.

II. DISCUSSION

A. Standard of Review and Burden of Proof

Generally, we review court-tried cases under the standards set forth in Murphy v. Carrón and will affirm the judgment unless it is against the weight of the evidence, it is not supported by substantial evidence, or it erroneously declares or applies the law. 586 S.W.2d 80 (Mo. banc 1976). “In a court-tried declaratory judgment action, however, interpretation of an insurance policy is a question of law, and the trial court receives no deference where resolution of the controversy is a question of law.” Automobile Club Inter-Insurance Exchange v. Medrano, 83 S.W.3d 632, 637 (Mo.App. E.D.2002). Only if an ambiguity within the policy necessitates a factual determination will the standards set forth in Murphy govern. Id. Here, neither party argues that the policy is ambiguous, and our review is de novo. See id. Moreover, the underlying facts are not in dispute in this case, and, thus, application of the insurance policy to those facts is also a matter of law. See Hunt v. Capitol Indemnity Corp., 26 S.W.3d 341, 342 (Mo.App. E.D.2000).

The burden of proving coverage is on the insured, despite the insured’s denomination as defendant in a declaratory judgment action. Medrano, 83 S.W.3d at 638. Stockley contends that State Farm had the burden of proof. He, and the trial court, cite to Safeco Insurance Company of America, Inc. v. Wood, in which this Court recited the well-known principle of law that “[w]hen an insurance company seeks to escape coverage based on policy exclusions, the burden is on it to establish the applicability of the exclusion.” 948 S.W.2d 182, 183 (Mo.App. E.D.1997). But this case involves policy definitions, not policy exclusions. The policy in this case extends liability coverage to non-owned cars, and, thus, coverage depends on the definition of “car” in the policy. The issue here is not whether an exclusion in the policy negates otherwise applicable coverage for the claims against Stockley. Rather, the question is whether there is coverage in the first place. It is Stockley’s burden to prove coverage. See Universal Reinsurance Corp. v. Greenleaf 824 S.W.2d 80, 83 (Mo.App. E.D.1992) (rejecting similar reliance on law regarding insurer’s burden to prove exclusion; where issue is coverage under policy definitions, not applicability of exclusion, insured bears burden of proof); see also Citizens Insurance Company of America v. Leiendecker, 962 S.W.2d 446, 451 (Mo.App. E.D.1998) (insured bears burden to prove that policy definition included claims).

B. Design of the Tug

The parties agree that the tug was a four-wheeled land motor vehicle. The only issue is whether it was “designed for use mainly on public roads.” In determining whether a dune buggy was covered by a virtually identical phrase in another State Farm policy — “designed for use mainly off public roads” — this Court held that the policy was not ambiguous simply because it did not define whose designs should be considered:

The word “designed” clearly implies the plans of those individuals who engineered the vehicle originally plus the plan of any person who significantly modified the vehicle. The language is not ambiguous.

Meeks v. Berkbuegler, 632 S.W.2d 24, 26 (Mo.App. E.D.1982). In Meeks, the directed verdict in favor of State Farm was affirmed based on evidence that the original designers clearly intended the dune buggy to be used off the road, that the original manufacturer’s design did not even meet the requirements for licensing and that the consumer, who built the vehicle from a kit and added equipment to qualify it for licensing, planned to use the buggy primarily off public roads and actually used the vehicle primarily off public roads. Id. at 26. The court also noted that, without an external shell, the vehicle was “little more than a four-wheeled rail with a roll-cage” and that, even with the consumer’s modifications and licensing, the vehicle was not transformed into a “standard on-the-road vehicle.” Id.

In this case, Stoekley failed to prove that the tug was designed for use mainly on public roads. In fact, the only evidence of the plans of those individuals who engineered the vehicle originally supports the opposite conclusion. John Barclay was a manufacturing manager for 19 years with the company that made this tug. He was not an engineer. He testified that this model tug was designed basically to move baggage and was not designed for use mainly on public roads. Barclay had met with TWA to discuss its intentions to use the tug to move baggage and freight. Besides baggage handling, Barclay testified, the tug was also used at industrial plants to move materials from rail docks to assembly lines and in the package industry to move air freight. Barclay testified that the tug would not be capable of performing on public roads because (1) it has a maximum speed of 13.8 miles per hour with a short wheel base that makes it difficult to control at higher speeds; (2) the headlights use 55-watt floodlight bulbs and have no dimmer switch or high/low beam function; (3) the front tires are slow-speed tires; (4) the cab windshield is not laminated; and (5) there are no brakes on the front wheels. Although the tug involved in this accident was manufactured shortly after Barclay started working for the company, the design work for that model tug had taken place and production had begun before Barclay started working there. He was not personally involved in the design work. Nevertheless, as a manufacturing manager, Barclay was responsible for all design aspects of the tug and reviewed the total design of the tug.

A mechanical and automotive engineer retained by State Farm also opined that, based on his visual inspection and a review of an operator’s manual he received from counsel, this tug was not designed for use mainly on public roads. He had not investigated the original design plans of the manufacturer of the tug and did not know whether the tug had been modified since it was produced. In fact, the only testimony regarding modification of the tug came from Stoekley, who claimed that the diesel engine had been replaced with a gas burning engine and that he believed the speed-governing device had been removed or disabled: “there was talk that people would remove the governors to make them move faster than they were actually supposedly capable of doing, faster than the proposed speed limit.”

There was no evidence to contradict the witnesses’ conclusions that the tug was not designed originally for use mainly on public roads. Stockley challenges the probative value of these witnesses’ testimony under Meeks, claiming that only those particular individuals who engineered the vehicle originally are qualified to testify about their design intentions. No such thing is required by Meeks. In fact, in Meeks, it appears that the only evidence of the plans of those who engineered the vehicle originally was the manufacturer’s instruction manual accompanying the dune buggy kit and the testimony of the consumer who assembled it. See id. at 25. Here, Barclay was a 19-year employee of the manufacturer familiar with the design of this model tug. That he was not involved with the inception of the design does not render his testimony irrelevant.

Moreover — and more importantly to the disposition of this case given that it was Stockley’s burden to prove coverage — if Barclay’s and the retained expert’s conclusions are irrelevant, then there was no evidence presented to the trial court of the tug’s original design. The testimony about modifications was not specific to this tug and was speculative at best, based on “talk” Stockley had overheard; without more, his testimony does not show that the tug was modified for use mainly on public roads. It was Stockley’s burden to prove that the tug was designed for use mainly on public roads. Thus, any failure to produce sufficient evidence of the plans of those who engineered this vehicle originally and the plans of anyone who modified it is a failure of Stockley to meet that burden.

C. Public Road

Stockley also argues that, if relevant at all, Barclay’s and the retained expert’s testimony shows at most that the tug was designed for use on the airport tarmac, which, he claims, is a public road. Stockley mischaracterizes the testimony. Both witnesses testified not just that the tug was designed to carry baggage, but also expressly concluded that the tug was not designed for use mainly on public roads. Nevertheless, under no construction of the term “public roads” and the evidence in this case does the airport tarmac constitute a public road.

Because “public roads” is not defined in the policy, we must give it “its common or usual meaning, or the meaning the policyholder would give it, not the insurers technical definition.” Camden v. State Farm Mutual Automobile Insurance Co., 66 S.W.3d 78, 81 (Mo.App. E.D.2001). Here, the parties give virtually the same meaning to the term “public roads,” citing various cases in which our courts have discussed the nature of a public road. Common to all of these cases, including those cited by Stockley, is the notion that a road is only public if the public has the right to access the road. The Southern District had concisely summarized what our courts have consistently held:

Whether a road is public or private is determined by the extent of the right to use it, not by the extent to which that right is exercised or by the quantity of travel over it. A public roadway exists if the use of the roadway is free and common to all citizens, and [ ] the public has actual access to it. This determination is not wholly dependent on the roadways length, or on the place to which it leads, or on the number • of people who use it.

Faustlin v. Mathis, 99 S.W.3d 546, 549 (Mo.App. S.D.2003) (internal quotation marks and citations omitted) (citing Chapman v. Lavy, 20 S.W.3d 610, 613 (Mo.App. E.D.2000), Pauls v. County Commission of Wayne County, 26 S.W.3d 597, 598-99 (Mo.App. S.D.2000) and Skinner v. Osage County, 822 S.W.2d 437, 441 (Mo.App. E.D.1991)). See also Kleeman v. Kingsley, 88 S.W.3d 521, 523-25 (Mo.App. S.D. 2002); Arrington v. Loehr, 619 S.W.2d 888, 891 (Mo.App. S.D.1981); State ex rel. Wabash Railway Co. v. Public Service Commission of Missouri, 340 Mo. 225, 100 S.W.2d 522, 525-26 (1936) (defining “road” or “highway” as “nothing more than a strip of ground set aside, improved, and dedicated to the public for use as a passageway” and finding that passageways in question were public highways because they had been used by the public as roadways for many years, were improved at public expense and possessed all the characteristics of public highways); City of St. Louis v. Bell Place Realty Co., 259 Mo. 126, 168 S.W. 721, 722-23 (1914) (term “public highway” in city ordinance included “all kinds of thoroughfares in which the public have a right of way or passage”).

It is undisputed that on the airport tarmac there are roadways — that is, lanes with speed limits and traffic signals painted on the ground — to better organize the flow of traffic in that area. But it is also undisputed that the tarmac is restricted to the public. Only individuals that need to access the area for aircraft support and airline services are permitted access with appropriate clearance. There is a checkpoint at which all persons entering the tarmac must show identification to verify their permission to access the area. One attempting to enter the tarmac without the proper credentials would be taken into police custody and arrested. Although Stockley makes much of the fact, as did the trial court, that numerous people have the proper credentials to access the tarmac, the number of people who use the road is not determinative of its status as a public road. See Faustlin, 99 S.W.3d at 549. Use of the tarmac roadways can hardly be said, even in theory, to be “free and common to all citizens” when only those with a particular need and permission are permitted access to the area. See id. Moreover, the public certainly does not have actual access to the tarmac roadways. See id. A road to which the general public is prohibited from entering unless they are properly credentialed based on their need to be in the area cannot, under the common and usual meaning of the term, be considered a public road.

D. Summary and Disposition

In sum, Stockley did not prove that the tug was a “car” as defined in the policy and, therefore, did not meet his burden to prove that the policy covered the accident arising from his use of that tug. State Farm was entitled to a declaration of no coverage, and the judgment to the contrary must be reversed.

III. CONCLUSION

The judgment is reversed.

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

      . Although by setting forth the rules for interpreting ambiguous language in an insurance policy, Stockley implies that the policy is ambiguous, he does not actually assert that any particular language in the policy is ambiguous. As discussed in section B, even if he had, we find no ambiguity in the relevant phrase "designed for use mainly on public roads."

      . Both Stockley and the trial court misstate that Safeco held that when insurance company "relies upon a policy definition to deny coverage,” the burden is on the insurer to prove facts that warrant the exclusion. Safe-co says nothing about policy definitions. At issue in Safeco was the applicability of a policy exclusion, and the case was disposed on appeal based on the insurer's failure to produce with its motion for summary judgment all the relevant policies. 948 S.W.2d at 184.

      . The only case Stockley cites that does not include a discussion of the publics right of access to a public road did not address the public nature of the roads in question at all. In State ex rel Clay County v. Hackmann, the Court determined that the term “public road” in a statute was intended by the legislature to include city streets, based on its conclusion that "road” was a generic term for all kinds of ways, including streets. 270 Mo. 658, 195 S.W. 706, 708-09 (1917).

      . Nor is the fact that the airport is owned and operated by the City of St. Louis and patrolled by local police officers authorized to enforce traffic rules on the tarmac.

      . Stockley’s motion to dismiss State Farm’s brief for failure to comply with Rule 84.04(d) is denied. The briefs deficiencies have not impeded our ability to dispose of this case on the merits. See Moore v. Swisher Mower & Machine Co., Inc., 49 S.W.3d 731, 736-37 (Mo.App. E.D.2001). Management Services, that the Commission erred in closing the record on Claimant’s request for additional benefits before they submitted certain deposition testimony as it is not raised in a cross-appeal. See Omaha Indem. v. Pall, Inc., 817 S.W.2d 491, 499 (Mo.App. E.D.1991).


author: PER CURIAM.

text:
    Nancy VALENTA and Richard Valenta, Appellants, v. CITY OF ST. LOUIS, Respondent.
    No. ED 84556.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 24, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 18, 2005.
    Application for Transfer Denied Aug. 30, 2005.
    Richard L. Hughes, St. Louis, MO, for appellant.
    Patricia A. Hageman, St. Louis, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Nancy Valenta (“Valenta”) appeals the judgment in favor of the City of St. Louis (“the City”) on her negligence action against the City. Valenta asserts numerous claims of error regarding evidentiary rulings by the trial court. Specifically, Valen-ta challenges the trial court’s decision to allow her expert witness to be cross-examined regarding the total billing for forensic engineering in the year 2003, the trial court’s exclusion of evidence of special damages, and the trial court’s rulings on certain objections to the City’s closing argument. Valenta also argues that the verdict was the result of bias, passion and prejudice of the jury, and she claims that the verdict was the result of juror misconduct. Finally, Valenta alleges that the cumulative effect of these errors warrants reversal.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion.

However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment of the trial court is affirmed in accordance with Rule 84.16(b).


text:
    Lonnie SNELLING, Appellant, v. STATE of Missouri, et al., Respondents.
    No. ED 84845.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 24, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 18, 2005.
    Application for Transfer Denied Aug. 30, 2005.
    Lonnie Snelling, St. Louis, MO, pro se.
    Chuck N. Chionuma, Lyra L. Johnson, Kansas City, MO, Gregg M. Lemley, Heidi K. Durr, Dan H. Ball, Lisa A. Keesling, Terrance J. Good, Jeremiah W. (Jay) Nixon, Atty. Gen., Tiffany B. Kieffer, St. Louis, MO, for respondents.
    Before: CLIFFORD H. AHRENS, P.J., KATHIANNE KNAUP CRANE, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Lonnie Snelling, (“Appellant”), appeals pro se from a judgment dismissing an action he brought in the Circuit Court of St. Louis County. Appellant filed his First Amended Petition alleging ten causes of action and naming the following as defendants: the State of Missouri, five judges, Lou Fusz Motors Company, Michelin North America, Inc., General Motors Corporation, the law firms of Winning Basso, & Krupp, P.C., Bryan Cave, L.L.P., and Chionuma and Associates, P.C., and three individual Attorneys, Louis J. Basso, Jay L. Kanzler, Jr. and Uzoma A. Odofo. This litigation stems from the dismissal of lawsuits filed by Appellant more than six years ago. On Appeal, Appellant asserts seven points containing multiple arguments of error.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order. We find no error and affirm pursuant to Rule 84.16(b).


text:
    Daniel K. OGLESBY, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 84837.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 24, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 18, 2005.
    Application for Transfer Denied Aug. 30, 2005.

      Amy M. Bartholow, Columbia, MO, for appellant.
    Deborah Daniels, Karen L. Kramer, Asst. Attys. Gen., Jefferson City, MO, for respondent.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Movant, Daniel K. Oglesby, appeals from the judgment denying on the merits his Rule 29.15 motion for post-conviction relief after an evidentiary hearing. We have reviewed the record on appeal and the briefs of the parties and find that the motion court’s judgment is based on findings of fact that are not clearly erroneous. An extended opinion would have no prece-dential value. We have, however, prepared a memorandum opinion setting forth the reasons for our decision for the use of the parties only. We affirm the judgment pursuant to Rule 84.16(b).


text:
    Bryant WELCH, Appellant, v. BFI INDUSTRIES, INC., Respondent.
    No. ED 85556.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 24, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 18, 2005.
    Application for Transfer Denied Aug. 30, 2005.
    Ray A. Gerritzen, Louis, MO, for appellant.
    Kevin M. Leahy, St. Louis, MO, for respondent.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

In this workers’ compensation case, Bryant Welch (“Claimant”) sought an increase in his disability and future medical benefits on the ground that his physical condition had worsened since the time of the original award of the Administrative Law Judge (“ALJ”) in February 2001. After a hearing, the Labor and Industrial Relations Commission (“Commission”): (1) increased Claimant’s permanent partial disability benefits by two and one-half weeks, but declined to award permanent total disability benefits; and (2) adopted the ALJ’s original award providing for future medical care “to relieve the effects of the accident to his left foot to include fusion surgery, with pins and grafting, within the next ten years, custom made shoes, and orthotics, by medical providers selected by the employer.” Claimant appeals, asserting that the Commission’s denial of permanent total disability benefits and limitation on future medical care are not supported by substantial evidence and are contrary to the overwhelming weight of the evidence.

We have reviewed the briefs of the parties and the record on appeal. Because we find that the Commission’s denial of permanent total disability benefits is supported by the evidence and that the Commission’s award of future medical benefits, when reasonably construed, does not improperly limit Claimant’s future medical care, we affirm. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003). An extended opinion restating the principles of law applicable to this case would have no precedential value. We have, however, provided a memorandum for the use of the parties only setting forth the reasons for our decision.

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

      . We do not reach the claim of Respondents, BFI Industries, Inc., and Custard Claims