author: Opinion of the Court by Justice KELLER.

text:
    Steve MONDIE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2002-SC-0534-DG.
    Supreme Court of Kentucky.
    March 17, 2005.

      Donald A. Thomas, Liberty, Counsel for Appellant.
    Gregory D. Stumbo, Attorney General, Dennis Shepherd, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Anitria M. Alo, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.
   Opinion of the Court by Justice KELLER.

I. ISSUE

Appellant, Steve Mondie, was convicted of Second-Degree Assault for shooting Greg McGowan. Appellant testified that he shot McGowan only after ordering him to leave Appellant’s residence and then being hit in the mouth by McGowan. Appellant tendered a protection against burglary instruction, which the trial court refused. Was Appellant entitled to such an instruction? Because the evidence supported a finding that Appellant shot McGowan to prevent a burglary of his residence, we hold that the trial court erred in refusing to give a protection against burglary instruction. Accordingly, we reverse Appellant’s conviction and remand for a new trial.

II. BACKGROUND

In 1991, Appellant, who was recovering from back surgery, got into in a fist fight with McGowan and McGowan knocked out four of Appellant’s teeth. Eight years later, after McGowan was paroled on unrelated charges, McGowan pulled his vehicle into Appellant’s driveway, got out of his vehicle, and approached Appellant and his friend, James “Jim Bob” Callinan, who were on the porch of Appellant’s mobile home drinking beer. Appellant met McGowan in the driveway and told him to leave, but McGowan refused. Appellant entered his home and McGowan, uninvited, followed him inside. Appellant again told McGowan to leave. McGowan then hit Appellant in the mouth. Appellant went to his bedroom, retrieved his .45 caliber semiautomatic pistol, and returned to the living room area. Appellant told McGowan to leave a third time, but instead McGowan hit Appellant in the face once more. Appellant then shot twice at McGowan, hitting him once in the chest. Appellant and Callinan then escorted McGowan, who insisted on leaving and driving himself, to his vehicle. As McGowan drove off, Appellant stood in the driveway and fired two shots up in the air so, in Appellant’s words, “he wouldn’t come back.”

Appellant called the Casey County Sheriffs Department to report the incident. Kentucky State Police Lieutenant Mitch Bailey and Detective Ricky Underwood investigated the scene. They found two empty cartridge casings lying approximately three inches apart on the floor in the residence. They found two more empty casings in the driveway.

Callinan’s testimony supported Appellant’s version of what occurred that night. McGowan’s recitation of the events that night, however, differed substantially from Appellant’s and Callinan’s version. McGowan claimed that he was not the initial aggressor and that the shooting occurred in the driveway and not in Appellant’s house. “The decision as to whose story to believe [was], of course, an issue for the jury to decide.”

Appellant was indicted for First-Degree Assault and convicted of the lesser-included offense of Second-Degree Assault. He appealed his conviction to the Court of Appeals, where he claimed primarily that the trial court, although it had given a self-protection instruction, had erred when it refused to give the protection against burglary instruction that he had tendered. The Court of Appeals found that “[t]he record does not indicate that McGowan was committing burglary or any other ciime justifying the use of deadly force in protection of a dwelling.” It then held that “[t]he record did not support Mondie’s claim of burglary, and thus, [it] a£firm[ed] the trial court’s determination that a property defense instruction was not necessary.” We address this issue, and due to the likelihood of a recurrence on retrial, we also address Appellant’s claims regarding (1) testimony about the proximity of the cartridge casings and (2) the Commonwealth’s Attorney’s comments in his closing argument about the capacity of the pistol’s magazine.

III. ANALYSIS

A. Protection Against Burglary Instruction

“It is well settled that a defendant is entitled to have his theory of the case submitted to the jury.” Appellant argues that the evidence was sufficient to support a finding that McGowan was committing a burglary when he shot him, and accordingly, Appellant contends that he was entitled to a protection against burglary instruction. We agree and for this reason, we reverse Appellant’s conviction.

“Historically, burglary was born into the common law as a separate substantive offense out of a desire to protect persons in the sanctity of the home.” Thus “[a]t common law burglary [was] the breaking and entering at nighttime of another’s dwelling with intent to commit a felony therein.” And from the earliest days of Kentucky’s common law, a homicide was justifiable when committed to prevent a burglary. It was thought that the commission of common law burglary contained an element of potential danger to the person against whom it was committed, and therefore, the prevention of burglary by killing the intruder was excusable.

Before the adoption of the Kentucky Penal Code (“Penal Code”), Kentucky adopted numerous burglary statutes, but “case law ... interpreted the statutes in accord with common law principles.” Additionally, Kentucky cases continued to recognize that homicide was justifiable to prevent a burglary, although “Kentucky’s most recent cases seemed to authorize the use of deadly force only to prevent entries designed to commit felonies or inflict violence upon dwellers.” But with the enactment of the Penal Code in 1974, “[a] burglary is committed when someone unlawfully enters (or remains inside) a building with intent to commit’a crime therein,” which is a more expansive concept of burglary than existed under the common law. The defense against burglary was also codified and broadened with the adoption of the Penal Code. KRS 503.080 provides:

(1) The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is immediately necessary to prevent:
(a) The commission of criminal trespass or burglary in a dwelling, building or upon real property in his possession or in the possession of another person for whose protection he acts; or
(2) The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that the person against whom such force is used is:
(b) Committing or attempting to commit a burglary of such dwelling ....

“Dwelling” is defined as “any building or structure, though movable or temporary which is for the time being either totally or partially the defendant’s home or place of lodging.” Thus, with the Penal Code’s broadening of burglary to include unlawful entry for any crime — rather than limiting it to felonies — -and from a literal reading of KRS 503.080(2)(b), “a dweller is privileged to use deadly force against unlawful entry for any criminal purpose (including petty theft and simple assault).” But is such a broad privilege to use deadly force what the General Assembly intended?

“A statute should be construed, if possible, so as to effectuate the plain meaning and unambiguous intent expressed in the law.” “Where the words used in a statute are clear and unambiguous and express the legislative intent, there is no room for construction and the statute must be accepted as it is written.” We cannot ignore the plain meaning of a statute simply because we might consider another interpretation to state a better policy. Thus, in construing a statute, “[w]e have a duty to accord to words of a statute their literal meaning unless to do so would lead to an absurd or wholly unreasonable conclusion.” Additionally, “[t]he original draft of KRS 503.080(2)(b) authorized the use of deadly force to prevent burglary only if a defender believed that a burglar intended ‘to use physical force against an occupant of his dwelling.” ’ The General Assembly, however, “dropped this limitation, for undocumented reasons, and adopted the deadly force rule now in effect.” For that reason, and given that the protection against burglary defense was codified at the same time that the definition of burglary was broadened, we must hold that the General Assembly intended the literal meaning of the statute, even though in so doing it “authorize[d] an incredibly generous use of deadly force, far beyond what one would expect under a policy that puts a high premium on the value of human life.” It is the province of this Court under the constitution to decide what the law is and not to declare what it should be. If the statute “is unwise or impolitic, the remedy rests with the Legislature; not with the courts.”

As previously noted, Appellant tendered a protection against burglary instruction, which the trial court rejected. The Court of Appeals, despite recognizing that “the evidence before the trial court is conflicting as to whether McGowan actually entered the Mondie residence” and that “Mondie claims that McGowan entered his home ... and then physically attacked him,” affirmed this omission and stated that “[t]he record does not indicate that McGowan was committing burglary or any other crime justifying the use of deadly force in protection of a dwelling.” We must disagree. Based on Appellant’s and Callinan’s testimony, the jury could have reasonably believed that McGowan had entered or remained in Appellant’s home with the intent to assault him, thereby committing a burglary, and that Appellant shot him, believing that it was necessary to prevent the burglary. Accordingly we hold that Appellant was entitled to a protection against burglary instruction and that the trial court erred in failing to give such an instruction. Moreover, because KRS 503.080(2)(b)’s privilege of protection against burglary “is broader than the privilege to use deadly force in the protection of [onejself [under KRS 503.050], in that under [KRS 503.080(2)(b) ] a defendant need not believe such force necessary to protect against death or serious physical injury,” we hold that the failure to give the protection against burglary instruction was reversible error.

B. Cartridge Casings

Appellant argues that he was substantially prejudiced when the trial court allowed Lt. Mitch Bailey to testify that the two cartridge casings found in Appellant’s residence were too close together to have been normally fired and ejected from the .45 caliber pistol Appellant used. This testimony provided the basis for the Commonwealth’s Attorney’s argument that the casings had been planted in the residence and that the shooting actually occurred in the driveway, thereby undercutting Appellant’s protection against burglary defense. Appellant asserts that Lt. Bailey was not qualified to testify as an expert and could not testify as to his lay opinion because he had no personal knowledge of the pistol’s ejection pattern because it had not been tested. The Appellant also asserts that he preserved this issue by contemporaneously objecting to Lt. Bailey’s testimony.

Lt. Bailey testified that he had found the empty cartridges in Appellant’s home and that they were only “two and a half to three inches” apart. He also testified that he had been on the Kentucky State Police for sixteen years, that he had been trained in the use of firearms, and that he used firearms on a regular basis. He and the Commonwealth’s Attorney then engaged in the following exchange:

Commonwealth’s Attorney: Are you familiar with a semi-automatic weapon and how it would eject a shell after being fired?
Lt. Bailey: Yes.
Commonwealth’s Attorney: And based on the location of those shell casings, was that consistent with the firing of a semi-automatic weapon two consecutive times and the ejection of those two shell casings?
LB: I found it to be odd that they would be there together, yes.
Commonwealth’s Attorney: And why is that?
LB: Based on what I’ve seen at the firing range and based on my experiences as a detective for five years and the number of shooting incidents, they’re generally scattered a little bit further apart from each other from a number of feet to a number of yards. I just found it odd.
Commonwealth’s Attorney: Did you say it would be unlikely that a weapon would eject two shell casings that would land that close to each other?
Mr. Thomas: Objection, calls for speculation.
Judge: Overrule your objection. Commonwealth’s Attorney: Do you say it’s unlikely?
LB: I would find it unlikely, yes.

Before Lt. Bailey testified the jury heard similar testimony from Detective Underwood, i.e., that he had weapons training and that he was familiar with firearms. The Commonwealth’s Attorney introduced into evidence photographs that Det. Underwood had taken of the location of the shell casings inside Appellant’s home. Det. Underwood and the Commonwealth’s Attorney then engaged in a series of questions and answers similar to those with Lt. Bailey:

Commonwealth’s Attorney: Now, you stated Detective Underwood, that you are familiar with the way a semi-automatic weapon would eject a shell when it’s fired. Were there shell casings, the location of them found, in such a way or in such a manner that would indicate that they were fired from a weapon consecutively and ejected and landed in that position?
DU: I’m not saying it’s impossible, but it would be hard to, most of the time you don’t see shell casings laying in the same proximity because most of the time they, in a semi-automatic pistol, when it’s fired, especially an automatic, will eject the — when it ejects, it ejects out to the right and upward and back. You know it could have possibly hit the wall and fell down there and been close, but not likely to have happened. Most of the time what we have we look for shell casings, they are usually found several feet apart. You know, they’re not located most in the same area. They never, like standing over a firing range firing, it will eject the shell casings, if you sit there and pull the trigger and keep pulling the trigger, the shell casings won’t fall close to each other, it just kicks them out.
Commonwealth’s Attorney: And the jury will be able to look at that photograph here but to give them an idea, how close were those shell casings found to each other?
DU: About three inches apart. Commonwealth’s Attorney: Three
inches apart?
DU: Three or four inches. Commonwealth’s Attorney: Based on— now Mr. Mondie told you where he contended he was standing when he fired the weapon, is that right?
DU: Yes.
Commonwealth’s Attorney: Is it likely that that’s where those shell casings landed given where he said that he was standing?
DU: In my opinion, it’s not likely, no.

On cross-examination, Det. Underwood testified as follows:

Mr. Thomas: Det. Underwood, has that firearm ever been sent to the lab?
Det. Underwood: No, it wasn’t.
Mr. Thomas: So, it hasn’t been tested for ejection patterns or anything like that, where it throws shells.
DU: No. We didn’t send it to the lab. There was no dispute about what gun was used, so there was no need really to send it to the lab at that time.
Mr. Thomas: Would you agree that if you had asked for it, they could have fired the weapon and got an angle of ejection and an average length of ejection and stuff for that particular firearm?
DU: Yes, they could have.
Mr. Thomas: So the testimony you gave earlier, that’s just based on your experience with other firearms on the range, not from your experience with that firearm.
DU: Correct.
Mr. Thomas: Would you agree, I think there was a photograph circulating around here, I think you may have indicated it might have bounced off the wall?
DU: Yes, it could have.

While defense counsel did object to Lt. Bailey’s testimony as a lay witness, he did not object to the failure to qualify Lt. Bailey as an expert on ejection patterns and did not request a Daubert hearing, nor was there any objection to Det. Underwood’s similar testimony. Ordinarily, this matter would be resolved by the fact that the error was not preserved. However, as the case is being remanded, further comment is warranted.

Speculation by a lay witness is not helpful to the jury, but “[t]he degree to which a witness may give an opinion, of course, is predicated in part upon whether and the extent to which the witness has sufficient life experiences that would permit making a judgment as to the matter involved.” On the other hand, in order to testify as an expert, “a witness [must be] qualified as an expert by knowledge, skill, experience, training or education.” Opinions as to ejection patterns are indeed expert evidence under KRE 702, i.e., “general truths derived from specialized experience,” as they involve technical information learned through specialized experience or training that would help the jury interpret the facts of the case. Testimony on how cartridge casings are ejected from a particular semi-automatic weapon would allow the jury to draw conclusions about the proximity of the casings that they would otherwise be unable to make. And the officers in this case went even further because their testimony as to the unlikeness of the ejection pattern found in Appellant’s home provided the conclusions for the jury.

Although such testimony is expert evidence, a trial court is not required to hold a Daubert hearing before the testimony is admitted. However, “[e]ssential fairness in a trial requires that the trial court carefully scrutinize the qualifications and the testimony of the officer before permitting his opinion testimony to be submitted to a jury” because “expert opinion based on speculation rather than reasoned analysis and judgment is of no assistance to triers of fact.” As Det. Underwood’s testimony revealed, not all firearms have the same ejection pattern, some are erratic while others are consistent, and even the “surface the cartridge cases land on ... may have great bearing on the pattern displayed.” Both officers stated that they were testifying from their experience on the firing range and on crime scenes and not from their experience with that specific .45 or any other .45 caliber pistol. “We decline to speculate on the outcome of an unrequested Daubeti hearing or to hold that failure to conduct such a hearing sua sponte constitutes palpable error.” However, without more, as the record stands, the officers’ qualifications are insufficient to allow them to testify on retrial as to the ejection pattern of Appellant’s .45 caliber pistol.

C. Prosecutor’s Comment

During Det. Underwood’s testimony, the Commonwealth’s Attorney introduced Appellant’s .45 caliber semi-automatic pistol. Det. Underwood testified that the weapon was the one Appellant used to shoot McGowan. The Commonwealth’s Attorney also introduced the still-loaded magazine. Although there was no testimony concerning the capacity of the magazine, how many rounds were found in the magazine, or if a round was still chambered in the pistol when it was recovered from Appellant’s home, the Commonwealth’s Attorney used this physical evidence in closing to support his theory that McGowan was shot outside and that Appellant planted the cartridge casings in the house:

Commonwealth’s Attorney: Nobody is denying that there were two shots fired outside in the driveway. Even Steve has told you that. There are six live rounds here. Yeah, he could have told the officers that he had nine rounds in his clip. But the problem is this clip holds seven. It’s a seven round clip. Mr. Thomas: Objection your honor, that’s not in evidence.
Judge: Sustain your objection. The jury will not consider the last statement. Commonwealth’s Attorney: The clip is in evidence. You will have this clip back there. You examine it for yourselves. The clip is in evidence. There were six in it when the officers found it. There were two shots fired by everyone’s account outside. The two shots that hit Greg McGowan.

The Appellant argues that in making this statement the Commonwealth’s Attorney did not confine himself to the facts in evidence and improperly encouraged the jury to investigate the magazine’s capacity. We disagree.

Counsel may make reasonable conclusions in closing arguments but them statements must have a basis in the evidence before the court. Although there was no testimony about the magazine’s capacity, the magazine and live rounds were introduced into evidence and the jury may examine the evidence. From this evidence, the jury could likely determine the capacity of the magazine. Admittedly it would be better if the magazine’s capacity was established during the trial, and we leave the parties to resolve the matter on retrial accordingly.

IV. CONCLUSION

Because Appellant was denied a protection against burglary instruction, we reverse his Second-Degree Assault conviction and remand for a new trial.

All concur.

      . Callinan did not testify in person, but by agreement the transcript of his statement to the police was read to the jury as his testimony.

      . Webb v. Commonwealth, 904 S.W.2d 226, 229 (Ky.1995).

      . Davis v. Commonwealth, 252 S.W.2d 9 (Ky. 1952); see also Sanborn v. Commonwealth, 754 S.W.2d 534 (Ky.1988); Blevins v. Commonwealth, 258 S.W.2d 501 (Ky.1953); RCr 9.54(1) ("It shall be the duty of the court to instruct the jury in writing on the law of the case .... ”).

      . Funk v. Commonwealth, 842 S.W.2d 476, 483 (Ky.1992) (Liebson, J., dissenting in part, concurring in part).

      . Rayburn v. Commonwealth, 476 S.W.2d 187, 189 (Ky.1972); Hayes v. Commonwealth, 171 Ky. 291, 188 S.W. 415, 417 (1916) ("[T]here are three essential ingredients in this offense:
      (a) A breaking and entering in the nighttime
      (b) of the mansion house of another (c) with intent to commit some felony.”); Daniels v. Commonwealth, 4 S.W. 812 (Ky.1887) ("The crime of burglary at common law consists in breaking and entering a mansion-house in the nighttime with intent to commit a felony.”); but see Hedges v. Commonwealth, 937 S.W.2d 703, 707 (Ky.1996) ("At common law, burglary was the unlawful entry into the dwelling of another in the nighttime with the intent to commit a crime therein.” (emphasis added)).

      . Flynn v. Commonwealth, 204 Ky. 572, 264 S.W. 1111, 1112 (1924); see Commonwealth v. Beverly, 237 Ky. 35, 34 S.W.2d 941, 943 (1931) ("But it appears to be the sound rule that one who is without fault may shoot and kill another if it be necessary, or apparently necessary, to prevent the commission of a felony on the person or habitation, or any other felony involving violence or the element of potential danger to the person, such as rape, arson, burglary, and robbery.”); Gray v. Combs, 7 J.J.Marsh. 478, 30 Ky. 478, 23 Am. Dec. 431 (1832).

      . Howard v. Commonwealth, 198 Ky. 453, 248 S.W. 1059, 1061 (1923).

      . KRS Chapters 500 to 534.

      . ROBERT G. LAWSON & WILLIAM H. FORTUNE, KENTUCKY CRIMINAL LAW § 4-4(c)(3) (Lexis Law Publishing 1998) [hereinafter KENTUCKY CRIMINAL LAW],

      . Id. (citing Sizemore v. Commonwealth, 285 Ky. 499, 148 S.W.2d 341, 342 (1941)) (" 'The right to act in defense to one’s home is confined to cases of attempted forcible entry for the purpose of committing a felony or of inflicting great bodily harm or offering personal violence to a person dwelling or being therein, and to cases of attack or attempted attack on the home with firearms for any one of such purposes.” ’ (quoting Hamilton v. Howard, 234 Ky. 321, 28 S.W.2d 7, 10 (1930)); Fore v. Commonwealth, 291 Ky. 34, 163 S.W.2d 48, 50 (Ky.1942) ("While a mere trespass on the premises of another will not justify the owner of the premises in shooting the trespasser unless the trespass be accompanied by acts that amount to an assault upon the person of the owner such as would warrant him in exercising the right of self-defense to protect his person[.]”)).

      . Id.; KRS 511.040.

      . KRS 503.010(2).

      . KENTUCKY CRIMINAL LAW, supra note 9, § 4-4(c)(3).

      . Bob Hook Chevrolet Isuzu, Inc. v. Com. Transp. Cabinet, 983 S.W.2d 488, 492 (Ky. 1998).

      . Griffin v. City of Bowling Green, 458 S.W.2d 456, 457 (Ky.1970).

      . ITT Commercial Finance Corp. v. Madisonville Recapping Co., 793 S.W.2d 849, 852 (Ky. App.1990).

      . Bailey v. Reeves, 662 S.W.2d 832, 834 (Ky. 1984); Western & Southern Life Ins. Co. v. Weber, 183 Ky. 32, 209 S.W. 716, 717 (1919) ("[N]o intention shall be read into the wording of the statute contrary to the plain meaning of the language employed.”).

      . KENTUCKY CRIMINAL LAW, supra note 9, § 4-4(c)(3) (citing Kentucky Crime Commission/Legislative Research Commission, Kentucky Penal Code Final Draft, 47 (November 1971)).

      . Id.

      . Id.

      . See Minor v. Happersett, 21 Wall. 162, 88 U.S. 162, 178, 22 L.Ed. 627 (1874).

      . Drury v. Franke, 247 Ky. 758, 57 S.W.2d 969, 982 (1933).

      . KRS 503.080 Kentucky Crime Commission/LRC Commentary (1974).

      . Rudolph v. Commonwealth, 504 S.W.2d 340, 340-341 (Ky.1974) ("In Kohler v. Commonwealth, Ky., 492 S.W.2d 198 (1973), where a defendant was convicted for selling heroin, having admitted the act but claiming that he sold the heroin in order to assist law enforcement officers, but a police officer testified that there was no arrangement with defendant that he (defendant) would cooperate with police, we stated, ‘We have consistently recognized ... that when a defendant confesses the doing of the act of which he stands accused but asserts a legal excuse or justification exonerating him from criminal intent the court should submit his theory of defense in concrete form ....” ’); Edwards v. Commonwealth, 429 S.W.2d 859, 860 (Ky.1968) ("The court did not affirmatively instruct the jury so as to encompass this theory of defense. The failure to so instruct was error .... In the circumstances shown in this case the defendant was entitled to an affirmative instruction within the rationale of the authorities cited, and we must reverse the judgment of conviction for the failure of the court to so instruct the jury."); Evitts v. Commonwealth, 257 Ky. 586, 78 S.W.2d 798, 799-800 (1935) ("We have held repeatedly that, where an accused admits the offense, or essential elements of the offense, but relies upon facts or circumstances amounting to an avoidance of the crime, he is entitled to a concrete instruction upon his theory of the case, and a mere general instruction is not sufficient .... We are of the opinion that the failure of the court to give a concrete instruction on the defendant’s theory of this case was sufficiently prejudicial to require reversal.”); Sebastian v. Commonwealth, 585 S.W.2d 440, 441 (Ky. App.1979) ("We conclude that Sebastian was at least entitled to an instruction on his defense of entrapment. Failure to give such an instruction constitutes reversible error.”).

      . Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      . RICHARD H. UNDERWOOD & GLEN WEISSENBERGER, KENTUCKY EVIDENCE 2004 COURTROOM MANUAL 344 (Anderson Publishing Co.2003) [hereinafter KENTUCKY EVIDENCE MANUAL]; ROBERT G. LAWSON, KENTUCKY EVIDENCE LAW HANDBOOK § 6.05, at 274 (3d ed.1993) [hereinafter KENTUCKY EVIDENCE HANDBOOK],

      . KENTUCKY EVIDENCE MANUAL, supra note 24, at 343.

      .KRE 702.

      .. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 148, 119 S.Ct. 1167, 1174, 143 L.Ed.2d 238, (1999).

      . See City of Owensboro v. Adams, 136 S.W.3d 446, 451 n. 1 (Ky.2004) ("Nevertheless, a court need not always hold a Daubert hearing even when the evidence is offered in a jury trial, Clay v. Ford Motor Co., 215 F.3d 663, 667 (6th Cir.2000), though it should do so when admissibility is not obvious from the record. Commonwealth v. Christie, Ky., 98 S.W.3d 485, 488 (2002)."); Tharp v. Commonwealth, 40 S.W.3d 356, 367-68 (Ky.2000),
        cert. denied 534 U.S. 928, 122 S.Ct. 289, 151 L.Ed.2d 213 (2001) (holding that trial court’s failure to conduct Daubert hearing sua sponte is not palpable error); Collins v. Commonwealth, 951 S.W.2d 569 (Ky.1997).

      . Alexander v. Swearer, 642 S.W.2d 896, 897 (Ky.1982).

      . KENTUCKY EVIDENCE HANDBOOK, supra note 24, § 6.15, at 290.

      . Richard N. Ernest, Forensic Ballistics Consultant, http://outzonebbs.net/gun-lab/srv_ccept.shtml.

      . Tharp v. Commonwealth, 40 S.W.3d 356, 368 (Ky.2000), cert. denied 534 U.S. 928, 122 S.Ct. 289, 151 L.Ed.2d 213 (2001).

      . Horton v. Herndon, 254 Ky. 86, 70 S.W.2d 975, 977 (1934); Couch v. Commonwealth, 202 Ky. 677, -, 261 S.W. 7, 9 (1924).

      . Evans v. Commonwealth, 230 Ky. 411, -, 19 S.W.2d 1091, 1097 (1929) ("The defendant objected to the jury looking through these microscopes at these bullets and shells, but we cannot see any well-founded reason for that. Suppose the bullet had been handed to the jury for their examination, there would be no well-founded reason for objecting. Such has been done hundreds of times. Now suppose that one member of the jury had put on his spectacles in order he might see the bullet better, no objection could be made to that; yet, when he looks through the microscope, the defendant objects. That is just the same as the use of the spectacles. It merely enabled the juror to see and to see better than he could see with his naked eye. So there is no well-founded reason for the defendant’s objection.”).


source: Caselaw Access Project

author: BUCKINGHAM, Judge.

license: Public Domain

text:
    Gary HOSKINS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2003-CA-002787-MR.
    Court of Appeals of Kentucky.
    Jan. 21, 2005.
    Case Ordered Published by Court of Appeals March 4, 2005.

      Rebecca Ballard DiLoreto Frankfort, KY, for appellant.
    Gregory D. Stumbo, Attorney General of Kentucky, Matthew D. Nelson, Assistant Attorney General, Frankfort, KY, for ap-pellee.
    Before BARBER, BUCKINGHAM, and HENRY, Judges.
   OPINION

BUCKINGHAM, Judge.

Gary Hoskins appeals from an order of the Harlan Circuit Court denying his motion for correction of sentence filed pursuant to CR 60.02(f). We conclude that the circuit court properly denied Hoskins’s motion and thus affirm.

As a result of an incident that occurred on May 19, 1990, Hoskins was indicted by a Harlan County grand jury on charges of murder, first-degree robbery, first-degree burglary, and first-degree arson. In accordance with a plea agreement with the Commonwealth, he pled guilty to complicity to commit murder and complicity to commit first-degree burglary. The robbery and arson charges were dismissed. A final judgment sentencing Hoskins to 25 years on the murder charge and 10 years on the burglary charge, with the sentences to run concurrently with each other, was entered by the court on March 17,1994, as amended by an order clarifying the judgment entered by the court on September 19,1994.

On December 6, 2002, Hoskins filed a CR 60.02(f) motion to correct his sentence. As grounds for the motion, Hoskins argued that he has been incorrectly classified as a violent offender by the Department of Corrections, thus resulting in a longer period of time before he will be eligible for parole consideration than had he not been so classified. The circuit court entered an order on November 13, 2003, denying Hos-kins’s motion. The court reasoned that “[wjhether or not the Defendant’s pleas of guilt caused him to be classified as a violent offender was not a part of the plea agreement and had no bearing on the sentence and is not a matter which the Court can correct.” This appeal by Hoskins followed.

Under the latest version of KRS 439.3401, violent offenders who have been convicted of a capital offense such as murder or of a Class B felony such as first-degree burglary must serve 85% of their sentence before being considered for parole. KRS 439.3401(3). However, the current version of the statute applies only to persons who committed offenses after July 15, 1998. KRS 439.3401(6). Therefore, the current version of the statute is not applicable to Hoskins’s case.

Under the prior version of the statute that became effective in 1991, violent offenders convicted of a capital offense could not be considered for parole until they had served at least 50% of the sentence. KRS 439.3401(3) (prior 1991 version). The 1991 version of the statute stated that it applied only to those persons who committed offenses after July 15, 1986. KRS 439.3401(4) (prior 1991 version). Therefore, reading the current version of the statute together with the 1991 version, it appears that Hoskins would have to serve 12½ years of his sentence before being considered for release on parole.

Following the' 1991 version of KRS 439.3401, the following note was added:

NOTE: 1991 1st Extraordinary Session, Chapter 3, Section 2, eff. 2-15-91 reads: The amendment of subsection 3 of Section 1 of this Act shall apply to those persons who commit offenses after the effective date of this Act.

Hoskins therefore argues that the 1991 version of KRS 439.3401(3) does not apply to him because the legislature intended, as evidenced by the note following thfe statute, that subsection (3) only apply to persons who committed offenses after the effective date of the statute. He argues that any attempt to apply that statute to him would be unlawful as an ex post facto law. See Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987).

While arguing that the 1991 version of KRS 439.3401(3) does not apply to him because it is to be applied only prospectively, Hoskins further argues that he does not fall under the provisions of KRS 439.3401(2), which he contends acts retroactively, or any other part of the statute. Furthermore, Hoskins argues that he does not fall within any of the provisions of the 1986 version of KRS 439.3401. Therefore, he asserts that the violent offender statute does not apply to his ease and that his parole eligibility is governed by the parole rules in 501 KAR 1:030 Section 3(l)(a). Thus, Hoskins states that he was entitled to parole consideration after serving 20% of his 25-year sentence.

The Commonwealth argues two points in response to Hoskins’s contentions. First, the Commonwealth argues that Hos-kins’s CR 60.02 motion was not brought within a reasonable time as required by the rule. Second, it argues that prior to 1998, violent-offender classifications were made administratively by the Department of Corrections and were not judicial determinations. This was apparently the circuit court’s view.

Effective July 15, 1998, KRS 439.3401(1) was amended to state that “[t]he court shall designate in its judgment if the victims suffered death or serious physical injury.” The effect of this language is that courts make the factual determination necessary for the Department of Corrections to determine whether to classify the inmate as a violent offender. Prior to the 1998 amendment to the statute, the statute made no mention of any findings by the court or other participation whatsoever by the court in the classification process.

Hoskins acknowledges in his reply brief that “[i]t may be that one avenue of relief for Appellant is through administrative review, leading then back to a judicial determination.” He then argues that principles of judicial economy would not be served by rejecting the appeal on the ground that he had failed to exhaust his administrative remedies. He asserts that the issue will ultimately be resolved by the courts, whether at this time or pursuant to an appeal following an administrative proceeding.

The Commonwealth has correctly noted that the violent-offender classification imposed on Hoskins upon his being received into the prison system following his conviction and sentence was an action taken by the Department of Corrections and not by the sentencing court. In fact, even if Hoskins had been sentenced after the effective date of the 1998 version of the statute, the decision concerning whether or not to classify Hoskins as a violent offender would be made by the Department of Corrections. The circuit court’s only role is to make the factual determination set forth in KRS 439.3401(1).

We agree with the Commonwealth that Hoskins’s attack on his violent-offender classification is not procedurally correct. As noted by the Commonwealth, it appears that the correct path for Hoskins to have taken was to proceed against the Department of Corrections with an original action before the Franklin Circuit Court. In short, the Harlan Circuit Court correctly denied Hoskins’s CR 60.02 motion.

The order of the Harlan Circuit Court is affirmed.

ALL CONCUR.

      . Kentucky Rules of Civil Procedure.

      . Kentucky Revised Statutes.

      . In light of Sanders v. Commonwealth, 844 S.W.2d 391 (Ky.1992), Hoskins would actually be eligible for parole consideration after serving 12 years in prison rather than 12½ years.

      . Kentucky Administrative Regulations.

      . "[P]arole is a matter of legislative grace or executive clemency.” Land v. Commonwealth, 986 S.W.2d 440, 442 (Ky.1999).

      . See Smith v. O’Dea, 939 S.W.2d 353, 355 (Ky.App. 1997) ("A petition for declaratory judgment has become the vehicle, whenever Habeas Corpus proceedings are inappropriate, whereby inmates may seek review of their disputes with the Corrections Department”).


author: MARY R. RUSSELL, Judge.

text:
    Henry G. LANE, et al., Appellants, v. Patricia S. LENSMEYER, Boone County Collector, and Columbia 93 School District, Respondents.
    No. SC 86116.
    Supreme Court of Missouri, En Banc.
    Feb. 15, 2005.
    Rehearing Denied April 5, 2005.

      Craig S. Johnson, Jefferson City, MO, for Appellants.
    John L. Patton, Columbia, MO, G. Alex Bartlett, Jefferson City, MO, for Respondents.
    Melissa K. Randol, Kyle Farmer, Missouri School Board Association, Columbia, for Amicus Curiae, Missouri School Boards’ Association, Missouri Association of School Administrators and Missouri Municipal League.
   MARY R. RUSSELL, Judge.

Henry G. Lane, William and Margie An-glen, Lloyd Haley, Curtis Braschler, Gordon L. Trumbo, Beulah F. Alverson, Ernest W. Greenup, and Ronald M. Lucas (collectively “Taxpayers”) appeal from the judgment of the Circuit Court of Boone County in favor of the Boone County Collector, Patricia S. Lensmeyer (“Collector”), and the Columbia 93 School District (“School District”) on Taxpayers’ amended petition alleging School District’s 2001 tax levy rate violated section 67.110.2, RSMo 2000. After opinion by the Court of Appeals, Western District, this Court granted transfer. Mo. Const, art. V, sec. 10.

This Court affirms the judgment of the trial court, finding that the trial court did not err in determining that School District’s tax rate did not violate section 67.110.2 in that it was calculated to produce substantially the same revenues as required in the annual budget.

I. Facts and Procedural History

School District adopted its 2001-2002 school year budget in June 2001. The budget stated a local property tax revenue need of $56,232,505. Based on its declared needs and its total assessed valuation of $1,281,852,353, School District proposed a 2001 tax levy rate of $4.7544 per $100 assessed valuation. After a public hearing, School District adopted the tax levy rate. Collector dispersed the 2001 tax bills, including those of Taxpayers, which reflected taxes due to School District based on the adopted levy rate.

Plaintiff Henry Lane (“Lane”) filed a two-count petition against School District seeking (1) a declaratory judgment that School District’s 2001 tax rate was excessive and unlawful under section 67.110.2 and (2) an injunction requiring School District to revise the 2001 levy to conform with the provisions of section 67.110.2. In his original petition, only Lane and School District were named parties. Lane, however, was later granted leave to file an amended petition listing himself and the eight other plaintiff Taxpayers as named plaintiffs.

The amended petition filed by Taxpayers alleged that School District’s 2001 tax levy rate was excessive and illegal under section 67.110.2. They sought (1) a declaratory judgment that the tax levy rate was excessive and unlawful under section 67.110.2 and (2) a refund from Collector pursuant to sections 139.031 and 139.290 for the taxes they paid as a result of the allegedly excessive 2001 tax rate. Taxpayers argued that the levy rate violated section 67.110.2 because it was not “calculated to produce substantially the same revenues as required in the annual budget,” in that it would produce $57,287,725, which was $1,055,220 (1.88 percent) more than the declared local property tax need of $56,232,505 in School District’s 2001-2002 budget.

At trial on Taxpayers’ amended petition seeking a declaratory judgment and a tax refund, Taxpayers called three witnesses: Collector; Kevan Snell, Director of Business Services for School District and Treasurer for its School Board (“Treasurer”); and Lane. School District presented the testimony of Dr. Chris Straub (“Expert”), a school finance consultant. The trial court found Treasurer and Expert to be “knowledgeable and qualified] as experts with respect to school finance in Missouri” and it found their testimony was credible. The trial court entered its judgment in favor of Collector and School District finding that School District’s 2001 tax levy rate did not violate sections 67.110 or 137.073. It further determined that the provisions of section 139.290 relied on by Taxpayers did not afford them “a procedure for securing any relief under the allegations and proof in this case.” Taxpayers appeal.

II. Jurisdiction

At the outset, this Court must determine its own jurisdiction of this appeal. Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997). Without jurisdiction, the appeal must be dismissed. Id. This Court has no jurisdiction if Taxpayers failed to state a claim pursuant to Rule 55.27(a)(6), (2001).

Count I of Taxpayers’ amended petition sought a declaratory judgment that the tax levy was in excess of that permitted by section 67.110.2. A court may grant a declaratory judgment if presented with: (1) a justiciable controversy that presents a real, substantial, presently-existing controversy admitting of specific relief, as distinguished from an advisory decree upon a purely hypothetical situation; (2) a plaintiff with a legally protectable interest at stake, “consisting of a pecuniary or personal interest directly at issue and subject to immediate or prospective consequential relief’; (3) a controversy ripe for judicial determination; and (4) an inadequate remedy at law. Mo. Soybean Ass’n v. Mo. Clean Water Comm’n, 102 S.W.3d 10, 25 (Mo. banc 2003) (quoting Northgate Apts., L.P. v. City of N. Kansas City, 45 S.W.3d 475, 479 (Mo.App.2001)).

Taxpayers failed to meet the requirements for declaratory judgment in that they had an adequate remedy at law for addressing the issue of excessive taxes paid because they could request a refund of the taxes they believed were collected in violation of section 67.110.2. Indeed, Count II of Taxpayers’ amended petition requests a partial refund, pursuant to section 139.031.5, for the 2001 taxes paid for School District. As a basis for their refund claim under section 139.031.5 in Count II, Taxpayers asserted that the tax levy violated section 67.110.2. As such, the very issue on which Taxpayers sought a declaratory judgment in Count I was a proof element of their refund claim in Count II.

An action for declaratory judgment is inappropriate when the issue can be raised by some other means. Parshall v. Buetzer, 121 S.W.3d 548, 552 (Mo.App. 2003). There is no showing that the resolution of Taxpayers’ Count II would not fully redress the issue on which they sought a declaratory judgment in Count I and would not be an adequate remedy without recourse to declaratory judgment. Count I of Taxpayers’ amended petition for a declaratory judgment failed to state a claim upon which relief could be granted, and the trial court lacked juris diction to enter judgment thereon. Therefore, in reviewing this case, this Court treats the trial court’s judgment on Taxpayers’ amended petition as an adjudication as to only Count II, the refund claim.

As to Count II, the jurisdictional issue is whether Taxpayers have standing to bring this appeal.

First, School District asserts that the voluntary dismissal with prejudice of Lane’s original petition prevents Lane from having standing in this appeal because a party is estopped and waives his right to appeal when a judgment is entered at his request. Stewart v. Stewart, 866 S.W.2d 154, 158 (Mo.App.1993). Lane’s original two-count petition listed only himself and School District as named parties. He later filed a written motion for leave to amend his petition pursuant to Rule 55.33(a), (2001). In sustaining Lane’s motion, the trial court made the following docket entry:

PLAINTIFF APPEARS PERSONALLY AND BY COUNSEL. DEFENDANT APPEARS BY COUNSEL. AT PLAINTIFF’S REQUEST, COUNTS I AND II DISMISSED WITH PREJUDICE AND PLAINTIFF GIVEN LEAVE TO FILE 1ST AMENDED PETITION. SAME FILED. SUMMONS ORDERED ISSUED.

The portion of the trial court’s docket entry dismissing Lane’s petition with prejudice is clearly at odds with its express grant of leave to file the amended petition. Once a petition is dismissed with prejudice, the trial court is powerless to reinstate it, including the filing of an amended petition. Liberman v. Liberman, 844 S.W.2d 79, 80 (Mo.App.1992). The trial court is presumed to know the law and, as such, this Court infers that the trial court in this case understood that it could not both dismiss Lane’s petition with prejudice and grant him leave to amend it. See Harrison v. Coomber Realty & Inv. Co., 359 Mo. 862, 224 S.W.2d 63, 64 (1949) (stating that the trial court is presumed to know the law). Because the trial court granted Lane leave to file the amended petition and proceeded with the case, it could not have intended to dismiss his original petition with prejudice. The dismissal language was superfluous and without effect and does not cause Lane to lack standing in this appeal.

School District further challenges Taxpayers’ standing to bring this appeal by asserting that they are not “aggrieved” by the trial court’s judgment in that the total amount of all their tax refund claims, both individually and collectively, is insufficient for them to be “aggrieved” within the meaning of section 512.020. This Court disagrees.

School District argues that Koehr v. Emmons, 55 S.W.3d 859 (Mo.App.2001), stands for the proposition that where the amount of the tax refund claimed is significantly less than the filing fee for the appeal, the appellants are not “aggrieved” within the meaning of section 512.020. Reliance on Koehr, however, is misplaced. In Koehr, the plaintiffs, individually and as representatives of a class of ad valorem taxpayers, filed a petition seeking a refund of taxes allegedly levied in excess of the limits set forth in the Hancock Amendment. 55 S.W.3d at 861. In addressing the individual tax refund claim, the court explained that the amount allegedly overpaid, just $4.04, was less than 10 percent of the filing fee for the appeal. Id. at 864. It indicated that “such an insubstantial sum does not provide a proper foundation for finding a Hancock violation,” because the tax and spending limitations of the Hancock Amendment are “not thwarted if the calculation of the revenue limit is not accurate to the mill.” Id.

The Koehr court did not refuse review because the appellant was not aggrieved as to the amount in controversy being insubstantial in comparison to the filing fee for appeal, as School District contends. Instead, the Koehr court found that the sum in controversy was so insubstantial that it did not constitute a Hancock violation. Taxpayers’ case does not involve a question of whether the tax levy in question violated the Hancock Amendment and, as such, Koehr is not controlling. Taxpayers’ refund requests are sufficiently substantial to render them aggrieved parties. Taxpayers are aggrieved for purposes of section 512.020 in that the trial court ruled against them on their amended petition seeking a refund of taxes paid under an allegedly excessive levy.

Finding jurisdiction to review this appeal, the merits of Taxpayers’ appeal are considered.

III. Standard of Review

In a court-tried case the decision of the trial court will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Mmphy v. Carrón, 536 S.W.2d 30, 32 (Mo. banc 1976). In reviewing this case, however, this Court also considers that the establishment of a tax levy is an exercise of legislative function, whether state or local, in determining if a tax shall be imposed and fixing the amount, purpose, and subject of the tax. See State ex rel. Indus. Servs. Contractors, Inc. v. County Comm’n of Johnson County, 918 S.W.2d 252, 256 (Mo. banc 1996).

IV. Did School District’s 2001 tax levy rate violate section 67.110.2?

Taxpayers allege that the trial court erred in determining that the tax levy did not violate section 67.110.2 so as to trigger a refund under section 139.031.5. Section 67.110 requires that each political subdivision in the state, except counties, fix its ad valorem property tax rates according to a procedure outlined in that statute. Section 67.110.2 requires that “[t]he tax rates shall be calculated to produce substantially the same revenues as required in the annual budget.” Sec. 67.110.2 (emphasis added).

A. Is section 67.110.2 applicable to School District?

School District argues that section 67.110 is merely a general statute relating to political subdivisions setting tax rates, whereas section 164.011 is the specific statute applicable to how school districts set tax rates. School District cites Greenbriar Hills Country Club v. Director of Revenue, 935 S.W.2d 36 (Mo. banc 1996), for the proposition that “[w]hen the same subject matter is addressed in general terms in one statute and in specific terms in another, the more specific controls over the more general.” 935 S.W.2d at 38. This theory, however, only applies where two statutes governing the same issue are in conflict and cannot be harmonized. Nich ols v. Dir. of Revenue, 116 S.W.3d 583, 586 (Mo.App.2003).

Section 164.011 “is the statutory mechanism by which school districts must certify the taxes necessary to be produced (estimate of need) to the county clerk.” Southwestern Bell Tel. Co. v. Mitchell, 631 S.W.2d 31, 37 (Mo. banc 1982). It provides in pertinent part:

The school board of each district annually shall prepare an estimate of the amount of money to be raised by taxation for the ensuing school year, the rate required to produce the amount, and the rate necessary to sustain the school or schools of the district for the ensuing school year, to meet principal and interest payments on the bonded debt of the district and to provide the funds to meet other legitimate district purposes. In preparing the estimate, the board shall have sole authority in determining what part of the total authorized rate shall be used to provide revenue for each of the funds as authorized by section 165.011, RSMo.

Sec. 164.011.1 (emphasis added).

While section 164.011 governs the procedure school districts must use in certifying their estimated needs for the ensuing school year, section 67.110 governs the procedure that they must follow in actually fixing their ad valorem property tax rates to meet their estimated needs. Because sections 164.011 and 67.110 address separate and distinct steps in the taxing procedure of school districts, they are not properly characterized as being general versus specific, much less as being in conflict with each other.

By its express terms, section 67.110 applies to “[ejach political subdivision in the state, except counties ... as defined in section 70.120.” Sec. 67.110.1. Section 70.120(3) defines a political subdivision as “any agency or unit of this state which now is, or hereafter shall be, authorized to levy taxes or empowered to cause taxes to be levied,” which includes a school district.

School District was required to comply with section 67.110.2 in setting its tax levy. The question is whether it did so. That question turns on whether the tax levy produced “substantially the same revenues” as required in School District’s 2001-2002 budget.

B. Defining “substantially the same revenues”

There is no statute or case law defining the phrase “substantially the same revenues” as used in section 67.110.2. In interpreting statutes, this Court determines the intent of the legislature, giving the language used its plain and ordinary meaning. State, Mo. Dep’t of Soc. Servs., Div. of Aging v. Brookside Nursing Ctr., Inc., 50 S.W.3d 273, 276 (Mo. banc 2001). In determining legislative intent, the statute is read as a whole and in pari materia with related sections. Id. In interpreting statutes, “‘it is appropriate to take into consideration statutes involving similar or related subject matter when such statutes shed light upon the meaning of the statute being construed, even though the statutes are found in different chapters and were enacted at different times.’ ” Buck v. Leggett, 813 S.W.2d 872, 874-75 (Mo. banc 1991) (quoting Citizens Elec. v. Dir. of Dept. of Rev., 766 S.W.2d 450, 452 (Mo. banc 1989)). Statutes involving the assessment, levy and payment of taxes should be construed in context with each other. See id.

Although the phrase “substantially the same revenues” as found in section 67.110.2 has not been interpreted, this Court has interpreted the nearly identical phrase, “substantially the same amount of tax revenue,” found in section 137.073.2, commonly referred to as the rollback statute. The present version of section 137.073.2 provides in relevant part:

Whenever changes in assessed valuation are entered in the assessor’s books .... [a]ll political subdivisions shall immediately revise the applicable rates of levy for each purpose ... for which taxes are levied to the extent necessary to produce from all taxable property, exclusive of new construction and improvements, substantially the same amount of tax revenue as was produced in the previous year....

Sec. 137.073.2, RSMo Cum.Supp.2003 (emphasis added). In St. Louis-Southwestern Railway Co. v. Cooper, 496 S.W.2d 836 (Mo.1973), this Court interpreted the 1969 version of this section, which provided in relevant part:

Whenever the assessed valuation of real or personal property within the county has been increased by ten percent or more over the prior year’s valuation ... then such taxing authorities shall immediately revise and lower the rates of levy to the extent necessary to produce from all taxable property substantially the same amount of taxes as previously estimated to be produced by the original levy.

Sec. 137.073, RSMo 1969 (emphasis added).

In Cooper, railroads sought to recover school taxes they paid under protest because they believed them to be excessive in light of section 137.073, RSMo 1969. 496 S.W.2d at 838. This Court held that an excess of 9.3 percent over that required according to the original estimates did not comply with the mandate of section 137.073, RSMo 1969, stating:

The meaning of the phrase “substantially the same” is well known. “Substantially,” as the word is used in the statute, is synonymous with “practically”, “nearly”, “almost”, “essentially” and “virtually.” ... [A]n increase of 9% in revenue, obviously cannot be said to have produced almost the same amount of revenue as had been originally estimated.

Cooper, 496 S.W.2d at 842.

School District points out, however, that this Court’s conclusion in Cooper suggests a variance of 5.5 percent is “substantially the same” for purposes of satisfying section 137.073.2. One of the plaintiffs in Cooper requested the imposition of a “correct” levy rate that would still have produced approximately 5.5 percent excess revenues. Id. at 843. After acknowledging this rate would still produce an excess, this Court concluded that “the rates suggested by plaintiffs would have produced sufficient revenue for the districts and at the same time would have met the requirements of [section] 137.073.” Id.

This Court was again confronted with a case arising under section 137.073, RSMo 1969, in Southwestern Bell Telephone Co. v. Hogg, 569 S.W.2d 195 (Mo. banc 1978). In Hogg, the school district argued that it made a “good faith” effort to comply with the “substantially the same” requirements of section 137.073, RSMo 1969. Id. at 201. This Court stated that although the school district’s computations would not result in “the exact amount of estimated need from taxation, ... it can and should be very close to it.” Id. (emphasis added).

Section 67.110.2 and section 137.073.2, RSMo Cum.Supp.2003, use nearly identical language in phrasing their “substantially the same” requirements. Further, section 67.110 and section 137.073.2, RSMo Cum.Supp.2003, involve similar subject matter. As such, it is logical to apply the same definition of “substantially the same” to both statutes. The legislature intended the phrase “produce substantially the same revenues as required in the annual budget” to mean that the amount of the revenues produced be practically, nearly, almost, essentially, or virtually the same as that required in the budget.

Although this definition does not advise school districts and other political entities as to what range of deviation between revenues produced and budgeted needs is acceptable, this Court discussed the meaning of “substantially the same” in section 137.073 in Cooper:

[T]he words “substantially the same amount” were used in [section] 137.073 with the recognition that a rate which would yield precisely the same amount would be virtually impossible to determine[, but] the purpose of the section is obviously to prevent “windfalls” in school taxes to the school districts merely because the assessed valuation of the real property in a county increases.

Cooper, 496 S.W.2d at 841 (emphasis added).

Following Cooper, this Court should determine if School District’s tax levy was calculated to produce revenues practically, nearly, almost, essentially, or virtually the same as its budgeted needs, or whether it provided School District a windfall.

C. Estimated excess taxes collected

Taxpayers argue that the undisputed evidence established that the tax levy would produce substantially more revenue than budgeted. School District’s 2001-2002 budget declared needs of $56,232,505 in local tax revenues. The total assessed valuation of the taxable property in School District was $1,281,852,353. The tax rate set by School District was $4.7544 per $100 assessed valuation. Assuming a collection rate of 100 percent, the rate set would produce revenues of approximately $60,944,388, or $4,711,883 (7.73 percent) more than the budgeted figure for local tax revenues. School District, however, formulated its budget with the assumption that its tax collection rate would be only 94 percent, which lowered local property tax revenues to $57,287,725, or only $1,055,220 (1.88 percent) more than budgeted.

Taxpayers’ arguments to this Court use calculations based on a 100 percent collection rate, yielding an excess taxes figure of $4,711,883 (7.73 percent) more than budgeted. Collector and School District, however, challenge Taxpayers’ use of the 100 percent collection calculations. They correctly argue that Taxpayers are barred by Rule 83.08(b) from presenting a new argument based on the 100 percent collection rate to this Court because Taxpayers used School District’s 94 percent collection rate in their arguments to the trial and appellate courts.

Taxpayers’ amended petition used calculations based on School District’s assumption that 6 percent of the 2001 billed property taxes would be uncollectible. Taxpayers argued:

Utilizing the School’s budget figure, the total assessed valuation figure, and the six percent uncollectible rate, complying with [section] 67.110 RSMo, and complying with [section] 137.073.6 RSMo requiring the tax rate to be expressed equal to the nearest l/100th of a cent, the correct levy rate to produce the same amount of revenue called for in the budget would be $4.6668 per $100.00 of assessed valuation of property.

(emphasis added).

Taxpayers’ amended petition argued that the tax levy violated section 67.110.2 in that it would produce $57,287,725, or $1,055,220 (1.88 percent) more than the local property tax need of $56,232,505 declared in School District’s budget. Taxpayers’ amended petition sought a refund based on the 94 percent collection calculation of $1,055,220 in excess revenues. Like Taxpayers’ amended petition, their arguments to the court of appeals were based on a 94 percent collection rate and asserted that School District’s levy rate produced excess revenues of $1,055,220.

School District argues that this Court should evaluate Taxpayers’ claims based on calculations using the 94 percent collection rate, or the $1,055,220 excess revenue calculation. School District argues that Rule 83.08(b) prohibits Taxpayers from arguing that School District collected $4,711,883 excess taxes because they cannot alter the basis for their claims on appeal. Rule 83.08(b) provides in relevant part: “A party may file a substitute brief in this Court ... [which] shall include all claims the party desires this Court to review, [but] shall not alter the basis of any claim that was raised in the court of appeals brief.”

The record on appeal and Taxpayers’ brief at the court of appeals do not reflect that Taxpayers challenged School District’s use of the 94 percent collection rate in its budget process or in its levy determinations. In the trial court and the court of appeals, Taxpayers claimed that the $57,287,725 in revenue produced by the levy was not “substantially the same” as the $56,232,505 budgeted by School District such that the levy violated section 67.110.2, thereby triggering a refund under section 139.031.5. In contrast, they ask this Court -to determine whether the revenue produced was “substantially the same”, by weighing a figure that is $3,656,663 more than the original challenged difference.

Taxpayers argue that they have altered theu first point only with respect to the tax rate and revenue amounts driven by the uncollectible issue. This alteration, however, is significant in the analysis of whether the collected revenue and the budgeted revenue figures are “substantially the same” pursuant to section 67.110.2. This calculation is central to the determination of the issues presented in this case. Taxpayers’ alteration of the challenged amount has “altered the basis” for their claim in violation of Rule 83.08(b).

Despite the violation of Rule 83.08(b), this Court finds that the use of the 94 percent collectible figure does not violate existing case law in that School District presented evidentiary support for the use of that collection rate. In Southwestern Bell Telephone Co. v. Feuerstein, 529 S.W.2d 371 (Mo.1975), this Court was asked to determine whether the trial court had erred in ordering a refund to certain taxpayers from their school district, pursuant to section 137.073, RSMo 1969. 529 S.W.2d at 372. That statute required a reduction in the local tax rate levied by the district based on certain instances of increases in assessed valuation of real or personal property. Id. at 373. This Court resolved the issue in favor of the taxpayers and affirmed the trial court’s judgment, ordering a reduction in the district’s levy. Id. at 374. This Court also addressed the district’s argument that the reduction ordered by the trial court was incorrect in that it was based on a 100 percent collection rate of the levy, rather than the lesser collection rate employed by the district. Id. In ruling against the district on that issue, this Court stated: “[TJhere is no statutory authority which allows a school district to estimate and assume a rate of collection and state their needs on that basis.” Id. In addition to pointing out the lack of statutory authority for using a collection rate other than 100 percent, this Court also noted the lack of any evidentia-ry support for the district’s use of the lesser rate. Id.

In this case, however, there was eviden-tiary support for School District’s use of a 94 percent collection rate in calculating its 2001-2002 budget. Treasurer testified at trial that School District calculates the collection rate by “taking the total current taxes [to be distributed to School District that year] and dividing by the taxes levied.” He further testified that the 6 percent uncollectible rate includes the 1.5 percent fee that School District pays the county collector and the county assessor from its tax revenue. The 2001-2002 budget included a schedule of School District’s collection rates for the budget years 1993 to 2001, and then listed the projected 2002 collection rate as 94 percent. This collection rate schedule also shows School District’s five-year average collection rate was 94.62 percent and its three-year average was 94.02 percent. Given that School District does not lack evidentiary support for its use of the 94 percent collection rate, Feuerstein does not dictate that School District’s use of the 94 percent collection rate was improper.

This case is properly analyzed by using the calculations based on a 94 percent collection rate, which reflect that School District collected $1,055,220 more taxes than its declared needs.

D. Did School District collect “substantially the same revenues” as budgeted?

Whether School District’s 2001 tax levy rate generated “substantially the same revenues” as School District’s budgeted needs depends on whether a collection of $1,055,220 in excess revenues complies with the “nearly, almost, essentially, virtually” standard.

The budgeting process for school districts in Missouri is an inexact practice. Southwestern Bell Tel. Co., Inc. v. Mahn, 766 S.W.2d 443, 445 (Mo. banc 1989); Salisbury R-IV Sch. Dist. v. Westran R-I Sch. Dist., 686 S.W.2d 491, 496 (Mo.App. 1984). In Salisbury, the court noted:

The school district budget process is an inexact practice .... because neither the revenues nor the expenditures can be predicted with certainty. The revenues derive from local county, state and federal sources. The local revenues are from the school district levy, and comprise the most significant component of anticipated income. The local revenues also include income from ... miscellaneous sources. Other significant income derives from the short-term investment of tax receipts, but that fluctuates with the current interest rate.
The school district budget extends from July 1 to June 30. The estimated budget must be approved by the board of education before July 1 of the year, and the Estimate of Required Local Taxes [for the local revenue component of the budget] must be submitted— along with the rate of levy to be extended against the assessed property in the district — to the county clerk by July 15 of the year. The preponderant portion of the taxes, however, are paid to the schools during the early months of the calendar year .... [which] compounds the uncertainty of the budget process.

686 S.W.2d at 496.

School District’s 2001-2002 budget is a 99-page document, which Treasurer testified was prepared in a yearlong budgeting process. School District presented evidence of some of the uncertainties it faced in formulating its budget at the time it was presented for approval at the June 11, 2001, School Board meeting:

(1)Assessed valuation figures for property within School District were merely preliminary and subject to later adjustment.
(2) School District did not know what the proration factor would be for allocation of basic state aid under the state foundation formula.
(3) School District had not received the worksheets from the State Auditor for use in calculating permissible tax rates for 2001.
(4) School District had not yet received from the Missouri Department of Elementary and Secondary Education the projections on the amount of proposition C sales tax revenues, cigarette tax revenues, and free textbook revenues it would receive in 2001-2002.
(5) The amount of funds it would receive from taxes on state-assessed utilities was not yet known.

Expert testified at trial that the budgeting process for schools in Missouri is “a moving target.” He stated:

Statutes said that you’re supposed to have a budget adopted before the beginning of the fiscal year. To do that you don’t even have the assessed valuation figures which don’t allow you to even calculate your final tax rate. Anybody who says they can develop a final school budget prior to beginning the fiscal year is, you can’t do that. That’s why the budget statutes allow for boards of education to amend their budgets.
The biggest single thing in Missouri school finance is the tax rate. Not only does it determine your local revenues, but .... [it] determines your state revenues. And to have any kind of final budget adopted before you can set your tax rate is just nuts. You can’t do it. You’ve got to come back and change it after you have that information.

Immediately before giving this testimony Expert was asked: “[I]f the projected funds coming in from local tax revenues ... exceeded by two percent the budgeted amount, you would not consider that to be substantial?” Expert opined that it was not a substantial deviation. This Court agrees.

In light of the uncertainties at issue in the school budgeting process, a deviation of 1.88 percent in this case does not violate section 67.110.2. The intent of the legislature’s “substantially the same” language in section 67.110.2 is to prevent tax windfalls, and holding taxing entities to the “nearly, almost, essentially, virtually” standard accomplishes this purpose. Because establishing a school budget is an inexact process, it will produce inexact results. The “nearly, almost, essentially, virtually” standard should not be read to require that revenues produced from a school district’s levy match exactly the district’s budgeted needs. The statute does not require “the same” revenues, but merely “substantially the same revenues.” School District’s levy rate produced 1.88 percent more taxes than budgeted, but it permitted School District to meet its budgeted needs without a windfall collection of tax monies. Given this, the trial court did not err in finding that School District’s 2001 tax levy rate did not violate section 67.110.2.

Y. Conclusion

The judgment of the trial court is affirmed.

All concur.

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

      . Portions of the court of appeals opinion authored by the Honorable Edwin H. Smith are incorporated in this opinion without further attribution.

      . Lane also proposed class certification and to act as the class representative of all taxpayers paying property taxes under the levy rate.

      . The amended petition named Collector, not School District, as the sole defendant. At the request of Collector, School District was later added as an indispensable party defendant.

      . Taxpayers also proposed to be appointed as class representatives for all taxpayers who had paid 2001 property tax for School District. Taxpayers' motion for class certification was denied in that the trial court found, as a matter of law, a class action could not be certified and Taxpayers should not be appointed as class representatives.

      . This percentage is derived by dividing $1,055,220 (excess) by $56,232,505 (needs). This calculation yields an answer of 1.87653 percent more, which is rounded to 1.88 percent.

      . Section 139.031.5 provided in relevant part:
      All the county collectors of taxes ... shall, upon written application of a taxpayer, refund any real or tangible personal property tax mistakenly or erroneously paid in whole or in part to the collector.... Such application shall be filed within one year after the tax is mistakenly or erroneously paid. The governing body ... shall make available to the collector funds necessary to make refunds ....
      Subsection 5 was amended in 2003 to change the period of time in which to file for a refund from one year to three years.
      While the disposition of this case centers on Taxpayers’ arguments relating to section 67.110.2, the parties also argue whether Taxpayers properly sought a refund pursuant to section 139.031.5.
      Subsections 1, 2, 3, and 4 of section 139.031 set forth procedures for challenging "any taxes assessed against” the taxpayer. To collect a refund under those provisions, the taxpayer must pay the challenged taxes in protest by filing a written statement of protest. Sec. 139.031.1. Taxpayers' petition stated they were seeking refunds pursuant to section 139.031.1, but it also stated that they were seeking refunds for themselves and the class pursuant to section 139.031.5. Section 139.031.5 permits recovery of taxes "mistakenly or erroneously paid" and does not require the taxpayer to pay in protest or commence a court action, though it does limit the time for seeking the refund. Taxpayers argue that refunds for "mistakenly or erroneously paid” taxes under subsection 5 include refunds for taxes paid as a result of an improperly set levy. Collector, School District, and amici curiae (Missouri School Boards’ Association, Missouri Association of School Administrators and Missouri Municipal League) urge a narrow application of subsection 5, contending that subsection 5 is for use only by individual taxpayers and not intended for refunding taxes paid under an improperly set levy.
      The provisions of subsections 1 to 4 and subsection 5 of section 139.031 are distinct and mutually exclusive. Payment under protest is required before seeking relief under subsections 1 to 4 so that "the taxpayer can make it known that [he or she] is paying involuntarily and can alert the taxing authority to the amount of the refund claimed so that the challenged tax can be segregated and held until resolution of the dispute.” Quaker Oats Co. v. Stanton, 96 S.W.3d 133, 138 (Mo.App. 2003). A payment made under protest also warns the collector that the tax is claimed to be illegal, serves as notice to the government of the dissatisfaction of the taxpayer, and defines the grounds on which the taxpayer stands. Id. Without this warning, the collector might collect taxes for several years and disburse them, in reliance upon their apparent validity, and then suffer financial hardship if ordered to make later refunds. Id.

      In a very narrow class of cases in which taxes were paid through mistake or error, subsection 5 provides an alternative to the administrative remedies and the requirement that taxes be paid under protest. Id. Subsection 5 is to be narrowly construed to apply only where administrative or judicial remedies are unavailable to the taxpayer due to the actions of taxing officials. See id. at 142-43. "[A] narrow construction of the relief available in subsection 5 of section 139.031 is necessary, considering that there needs to be certainty for taxpaying entities and the ability of the collector to disburse the taxes.” Id. at 143. Public policy discourages suits for the refund of taxes erroneously paid or illegally collected and favors certainty in the collection of revenue. See Crest Communications v. Kuehle, 754 S.W.2d 563, 567 (Mo. banc 1988). Only in Crest has a taxpayer been granted relief pursuant to the "mistakenly or erroneously paid” provisions of what is now subsection 5, and in that case other administrative and judicial remedies were unavailable to the taxpayer. In Crest, the taxpayer paid his taxes without protest where he had not received a required notice of increased assessment. Id. at 564. This Court found that because the collector was aware of the taxpayer's disagreement over his assessment, his payment of the increased amount due to the failure to be given the required notice fell within the meaning of “mistakenly or erroneously paid.” Id. at 567. Since the Crest decision, the appellate courts in Missouri have consistently limited Crest to its particular facts and have not again extended section 139.031.5 to provide a refund. Taxpayers in this case, unlike the taxpayer in Crest, did have notice of the increased tax rate and paid under protest as required in subsections 1 to 4. Insofar as Taxpayers could and did seek relief pursuant to subsections 1 to 4, it was improper for them to also seek relief pursuant to subsection 5. Additionally, nothing in section 139.031 authorizes class refunds. Under the facts of this case, it was inappropriate for Taxpayers to seek relief pursuant to section 139.031.5.

      . School District does not claim that the dismissal of Lane's original petition affects the standing of the other eight Taxpayer plaintiffs.

      . Rule 55.33(a), (2001), provided in pertinent part:
      A pleading may be amended once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the pleading may be amended at anytime within thirty days after it is served. Otherwise, the pleading may be amended only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.

      .Section 512.020 requires that a party be "aggrieved” by a final judgment before having any right to appeal. Sec. 512.020; Sckroff v. Smart, 120 S.W.3d 751, 754 (Mo. App.2003). "An aggrieved party is one who suffers from an infringement or denial of legal rights.” Schroff, 120 S.W.3d at 754. Further, the judgment at issue "must operate directly and prejudicially on the party’s personal or property rights or interests” with immediate effect. Id.

      . This percentage represented $125,187 excess taxes collected, divided by the $1,346,912 taxes estimated to be produced by the original levy. See Cooper, 496 S.W.2d at 839.

      . This percentage is based on the proposed rate producing approximately $75,000 more than the amount previously estimated to be produced by the original levy ($1,346,912). The percentage is calculated by dividing $75,000 by $1,346,912.

      . Section 67.110.2 uses the phrase "substantially the same revenues." Section 137.073.2, RSMo Cum.Supp.2003, uses the phrase "substantially the same amount of tax revenue.”

      . There are three factors in taxation: (1) the assessed valuation; (2) the amount of money necessary to be raised (declared needs); and (3) the rate of levy. Hogg, 569 S.W.2d at 199. The levy rate is the last factor determined, after dividing the amount of taxes required by the assessed valuation.

      . Taxpayers assert that section 137.073.6 controls "the exactitude of tax rates” and instructs that the maximum permissible deviation of a tax rate is 1/100th of one penny, or $0.0001. Taxpayers cite the following language: "Each taxing authority shall express its proposed tax rate in a fraction equal to the nearest one/one hundredth of a cent. A taxing authority shall round up a fraction greater than or equal to five/one thousandth of one cent to the next' higher one/one hundredth of a cent.” Taxpayers argue that this statute should be read in pari materia with section 67.110.2 in determining what deviation is permissible for revenues to be "substantially the same.” There is nothing in the rounding rules of section 137.073.6 that is instructive to a determination of the proper definition of "substantially the same revenues" under section 67.110.2.

      . The preliminary assessment figures used in formulating the budget adopted at the June 11, 2001, meeting were $33,900,606 less than the assessed valuation figures available from the county clerk’s office on August 7, 2001.

      . Taxpayers raise three other points of error. Because of the decision on this point, Taxpayers’ other points on appeal are moot, and are not addressed. Taxpayers’ other points assert: the trial court erred in accepting School District’s position that lowering the tax rate to comply with section 67.110.2 would cause School District loss of state financial aid; the trial court erred in denying Taxpayers’ request for class action certification; and the trial court erred in sustaining Collector’s motion to join School District as a necessary and indispensable party defendant in this case.


author:
STEPHEN N. LIMBAUGH, JR., Judge.
      RONNIE L. WHITE, Chief Justice,

text:
    STATE ex rel. TRANS WORLD AIRLINES, INC., Relator, v. The Honorable Michael P. DAVID, Judge of the Circuit Court of the City of St. Louis, Missouri, Respondent.
    No. SC 86138.
    Supreme Court of Missouri, En Banc.
    March 15, 2005.
    Ronnie L. White, C.J., filed dissenting opinion, in which Barney and Newton, Special Judges, concurred.

      Jeffery T. McPherson, James L. Stock-berger, G. Keith Phoenix, Todd C. Staton, St. Louis, MO, for Relator.
    Kenneth P. Danzinger, Granite City, IL, James P. Holloran, St. Louis, MO, for Respondent.
   STEPHEN N. LIMBAUGH, JR., Judge.

Trans World Airlines, Inc. (TWA), a defendant in the underlying personal injury suit, seeks a writ of prohibition barring the trial court from taking any further action in the case other than to transfer it from the Circuit Court of the City of St. Louis to the Circuit Court of St. Louis County, where venue is proper. The trial court overruled TWA’s motion to transfer for improper venue solely because the affidavit originally filed in support of the petition was not notarized. TWA initially filed a petition for writ of prohibition in the Court of Appeals, Eastern District, which was denied, and TWA then refiled the petition in this Court, which issued its preliminary writ. The standard of review is abuse of judicial discretion. State ex rel. Linthicum v. Calvin, 57 S.W.3d 855, 856-57 (Mo. banc 2001).

Bobbie Mullins, the plaintiff in the underlying suit, filed a personal injury action in the Circuit Court of the City of St. Louis on November 26, 2001. The suit named TWA and International Total Services (ITS) as defendants. The suit arose from an accident that occurred at Lambert St. Louis Airport, located in St. Louis County.

At the time the suit was filed, TWA and ITS were not permitted to file any responsive pleading because they were operating under Chapter 11 of the United States Bankruptcy Code. In June of 2003, however, the bankruptcy court lifted the automatic stays, and the trial court ordered TWA and ITS to “answer, otherwise respond, or raise any applicable venue motions to Plaintiffs First Amended Petition.” On July 7 and July 11, 2003, respectively, TWA and ITS filed motions to transfer for improper venue. In their motions, both alleged Mullins’ cause of action accrued in St. Louis County and that neither defendant had offices or agents for the transaction of its usual or customary business in the City of St. Louis. In support of its motion, TWA attached what appeared to be an affidavit from TWA representative Michael J. Lichty, but the “affidavit,” though signed by Lichty, was not notarized. Though there was a form for attestation after Lichty’s signature, the form had not been filled out. By all accounts, the failure to do so was inadvertent.

At that point, Mullins filed a motion to conduct discovery on the issue of whether TWA maintained an office or agent in the City of St. Louis, but Mullins made no mention of the failure to notarize the affidavit. The record does not show whether Mullins was aware of the defect and chose not to raise the issue, or whether Mullins, like TWA, simply overlooked the problem. In any event, the trial court, itself, appears to have overlooked the problem by specifically tailoring its order granting preliminary discovery “to the issues set forth in the Affidavit of Michael Lichty.”

For whatever reason, Mullins did not conduct any additional formal discovery although she was given nearly 10 weeks for that purpose, and she merely waited to file her responses the day before the extended deadline expired. In those responses, Mullins did not deny or even address the allegation that neither TWA nor ITS had any agents or offices in the City of St. Louis. Instead she claimed that TWA and ITS waived any right to challenge venue by filing their bankruptcy notices with the court, by filing their entries of appearance with the court, and by serving the parties with a “Notice of Hearing.”

On March 9, 2004, the trial court entered an order overruling TWA’s and ITS’ venue motions. In the order, the court expressly ruled that the venue motions were timely filed and that any pleadings filed prior to the lifting of the bankruptcy stay, including the bankruptcy notices, did not constitute a waiver of their rights to challenge venue. Nonetheless, the trial court denied the venue motions, but on a different ground, finding that TWA did not meet its burden of proof to demonstrate that venue was improper in the City of St. Louis because the affidavit of its representative, Lichty, was signed but not notarized. Apparently, the defect in the affidavit had not been brought to the attention of the court or TWA until oral argument at the hearing on the motions. Thereafter, on March 19, 2004, TWA filed a motion to reconsider and for leave to supplement its motion with a notarized copy of Lichty’s affidavit, but the trial court overruled both requests.

The parties agree that the applicable venue statute is section 508.040, RSMo 2000, which states that: “Suits against corporations shall be commenced either in the county where the cause of action accrued ... or in any county where such corporations shall have or usually keep an office or agent for the transaction of their usual and customary business.” They also agree that the cause of action accrued in St. Louis County. As noted, however, TWA and ITS asserted that neither TWA nor ITS maintain offices or agents for the transaction of its usual or customary business in City of St. Louis, and again, Mullins’ reply to their venue motions did not dispute or even address that fact. In the absence of a dispute on the merits of the improper venue claim, disposition of the case turns on whether TWA and ITS waived that claim by not perfecting the affidavit, as Mullins contends and the trial court so held.

In that regard, TWA argues that the trial court abused its discretion when it refused to allow TWA to amend its motion for change of venue by submitting an affidavit that was properly notarized and that was otherwise identical in substance to the one attached to the original motion. This Court agrees. Despite the trial court’s concern that eight months had elapsed from the date on which TWA filed its venue motion to the date on which TWA tendered the new affidavit, it is uncontro-verted that the delay was not due to any improper motive. Instead, TWA was simply unaware that the affidavit was not verified until the court issued its initial order denying the venue motion on March 9, 2003, the same date that corresponds to the more than eight-month lapse after the venue motions were filed. As noted, in the interim, the trial court, itself, issued a discovery order on its own mistaken assumption that there was no problem with the affidavit. And again, Mullins did not raise the issue until the last minute. Finally, and importantly, the amended affidavit did not contain any new allegations, so its admission would not have caused any unfair prejudice to Mullins.

This Court’s finding of an abuse of discretion is also informed, if not controlled by, the rules of civil procedure:

First, Rule 55.33 directs that “leave [to amend pleadings] shall be freely given when justice so requires.” Although technically, an amendment to a motion for change of venue is not an amendment to a pleading, the policy behind the rule applies no less to motions for change of venue, at least under the version of Rule 51.045 in effect when the trial court made its ruling. This is so because Rule 51.045(a)(1) then provided that motions for change of venue must be filed “[w]ithin the time allowed for responding to an adverse party’s pleading,” thus subjecting motions for change of venue to the same filing deadline that was required for answers to petitions. Applying the policy behind Rule 55.33 to the circumstances of the case at hand, justice so required that leave be given to amend the motion.

Second, the new version of Rule 51.045(a), which was not effective until July 1, 2004, provides that “for good cause shown, the court may extend the time to file a motion to transfer venue or allow the •party to amend it.” (Emphasis added.) Although the trial court was not bound by that provision when it last disallowed the amendment to the affidavit on March 19, 2004, the rule had in fact been published in December of 2003 and reflected the policy of this Court from that time on. Again, applying the rule to the circumstances of the case at hand, TWA had established good cause to allow the amendment.

In sum, the trial court abused its discretion in disallowing the amended affidavit to the motion for change of venue. In turn, the trial court abused its discretion in overruling the motion for change of venue on the merits, as it has been conceded that venue in the City of St. Louis is improper. This Court’s preliminary writ of prohibition is made absolute as modified, and the trial court is ordered to transfer the case to St. Louis County.

WOLFF, STITH and PRICE, JJ., concur.

WHITE, C.J., dissents in separate opinion filed.

BARNEY and NEWTON, Sp.JJ., concur in opinion of WHITE, C.J.

TEITELMAN and RUSSELL, JJ., not participating.

RONNIE L. WHITE, Chief Justice,

dissenting opinion.

I respectfully dissent. This is not a difficult case. TWA simply did not perfect its motion to transfer and waived venue.

Proper venue is a personal privilege, and objection on the basis of improper venue may be waived. The party challenging venue bears the burden of persuasion and proof that venue is improper. In addition to simply fifing a motion for transfer of venue a party must perfect that motion with substantive evidence because unsworn statements by counsel or statements in briefs are not evidence, unless conceded to by opposing counsel.

TWA elected to submit a document signed by Michael J. Lichty to support its motion to transfer. The principal opinion continually refers to this document as being an “affidavit.” In reality, no affidavit was ever filed with the trial court. An affidavit is a written declaration on oath sworn to by a person before someone authorized to administer such oath. Lacking the required notarization, Mr. Lichty’s written statement is nothing more than hearsay and is not competent evidence.

The procedure for fifing supporting affidavits with a motion is clearly set out in Rule 44.01(d). Rule 44.01(d) requires supporting affidavits to be served with the motion, period. An affidavit filed by the movant after the initial fifing need not be considered at all, even if it is filed on the day of the motion hearing. While an untimely affidavit need not be considered at all, the trial court, in its discretion would be free to grant a motion for an extension of time to amend an incompetent document or a motion for leave to amend the transfer motion in general.

TWA did not file a proper motion for transfer of venue supported with competent evidence. TWA did not even file a supporting affidavit for its transfer motion. TWA did not request any extension of time or seek leave to amend its transfer motion until after the trial court issued its order denying transfer, even though the issue about the written hearsay statement was raised during the motion hearing. It is difficult to accept that TWA was unaware of its failure when the pre-stamped notary signature block on its document, which appeared on the very same page of the document as Mr. Lichty’s signature, remained starkly and obviously empty.

From the date the lawsuit was filed, January 10, 2001, until the date when TWA filed its motion for transfer on July 7, 2003, TWA had 908 days to perfect its motion by means of a simple notarization. From the date when the motion was filed, July 7, 2003, until the date of the hearing, December 8, 2008, TWA had an additional 154 days to seek leave to amend so it would have filed a proper motion for transfer. From the date of the motion hearing, December 8, 2003, until the date when the court issued its order, March 9, 2004, TWA had an additional 91 days to seek leave of the court to perfect its motion. In total, TWA had 1153 days (3 years and 58 days) to contemplate, prepare, draft, and perfect its two-page motion for transfer and its two-page affidavit.

Lacking any applicable law or court rules, the principal opinion references Rule 55.33, having no application to motions, and a version of Rule 51.045, not in effect at the time of the trial court’s ruling, in order to support its decision. The opinion miraculously concludes that TWA showed “good cause” to justify its late filing of an affidavit in support of its transfer motion, whereas a simple “reality check” confirms that TWA’s extremely prolonged failure to file a supporting affidavit for its motion could not even remotely constitute “good cause.” Apparently, under the principal opinion’s analysis, non-compliance with the rules of procedure and evidence is excusable upon request of an extraordinary writ.

TWA simply failed to file a proper motion for transfer and as such waived venue. Under these facts, I would not find any abuse of discretion on the part of the trial judge for overruling TWA’s motion to transfer or overruling its motion to amend the transfer motion to permit the outrageously late attempt at filing a supporting affidavit. I would quash the preliminary writ.

      . The version of Rule 51.045 in effect at the time the motions and reply in this case were filed provided in relevant part:
      (b) Within ten days after the filing of a motion to transfer for improper venue, an opposing party may file a reply denying the allegations in the motion to transfer. If a reply is filed, the court shall determine the issue.
      If the issue is determined in favor of the movant or if no reply is filed, a transfer of venue shall be ordered to a court where venue is proper.
      (Emphasis added.)
      The version of the Rule in effect after July 1, 2004, provides that "(b) ... the reply shall set forth the basis for venue in the forum. The court shall not consider any basis not set forth in the reply....”

      . Rules 51.045(a), 55.08 and 55.27; Mogley v. Fleming, 11 S.W.3d 740, 746 (Mo.App. 1999); Reece v. Reece, 890 S.W.2d 706, 712 (Mo.App. 1995); State ex rel. Uptergrove v. Russell, 871 S.W.2d 27, 29-30 (Mo.App.1993).

      . State ex rel. Etter, Inc. v. Neill, 70 S.W.3d 28, 31 (Mo.App.2002); Coale v. Grady Brothers Siding and Remodeling, Inc., 865 S.W.2d 887, 889 (Mo.App. 1993); Cuba’s United Ready Mix v. Bock Concrete, 785 S.W.2d 649, 650 (Mo.App. 1990).

      . State ex rel. Dixon v. Damold, 939 S.W.2d 66, 69 (Mo.App.1997).

      . Hinton v. Proctor & Schwartz, Inc., 99 S.W.3d 454, 458 (Mo.App.2003).

      . Id.; Mueller v. Bauer, 54 S.W.3d 652, 657 (Mo.App.2001); Fitzpatrick v. Hoehn, 746 S.W.2d 652, 655 (Mo.App. 1988); United Labor Committee of Missouri v. Kirkpatrick, 572 S.W.2d 449, 462 (Mo. 1978).

      . Rule 44.01(d); Stavrides v. Zerjav, 848 S.W.2d 523, 530 (Mo.App. 1993); Kennedy v. Empire Gas Co., Inc., 756 S.W.2d 945, 947 (Mo.App.1988).

      . Rule 55.33, entitled, "Amended and Supplemental Pleadings,” cited by the majority for the proposition that leave to amend this transfer motion should be freely granted, applies only to pleadings. Motions concerning procedural matters do not constitute "pleadings.” Rule 55.01; Wulff v. Kakadiaris, 856 S.W.2d 128, 130 (Mo.App. 1993); Olson v. Auto Owners Ins. Co., 700 S.W.2d 882, 885 (Mo.App. 1985); State v. James, 347 S.W.2d 211 (Mo. 1961); Smith v. Smith, 327 Mo. 632, 37 S.W.2d 902, 904 (1931); Graff v. Dougherty, 139 Mo.App. 56, 120 S.W. 661, 662 (1909)(overruled on other grounds in Schneider v. Schneider, 273 S.W. 1081, 1083 (Mo.App. 1925)). It is, in fact, "beyond question that motions are treated as separate and different from the 'pleadings.' ” Harris v. Nola, 537 S.W.2d 636, 638 (Mo.App. 1976). "Moreover, others of the Rules of Civil Procedure reflect a careful distinction between the use of the term 'pleading' as opposed to the term 'motion.' Thus Rule 55.01 lists the different kinds of pleadings, and does not include any mention of motions.” Id.


author: PER CURIAM.

text:
    In the Interest of T.S., K.S., and L.J., minors Juvenile Officer, Petitioner/Respondent, v. A.C.S. and T.M.S., Respondents/Appellants.
    Nos. ED 84246, ED 84247.
    Missouri Court of Appeals, Eastern District, Division Two.
    Jan. 11, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 23, 2005.
    John R. Bird, St. Louis, Christopher M. Braeske, Clayton, for appellants.

      Barbara L. Greenberg, Clayton, for respondent.
    Laroma White, St. Louis, for Guardian Ad Litem.
    Philip H. Dennis, Jr., St. Louis, for In-tervenor.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J. and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Mother and father separately appeal from the trial court’s judgments terminating their parental rights to three minor children pursuant to Section 211.447 RSMo (2000). The judgments are supported by substantial evidence and are not against the weight of the evidence. No error of law appears. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

An opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties have been furnished with a memorandum opinion, for their information only, setting forth the facts and reasons for this order.

The judgments are affirmed in accordance with Rule 84.16(b).

      . All statutory references will be to RSMo (2000) unless otherwise indicated.