text:
    Janice H. COLEMAN, Plaintiff/Respondent/Cross-Appellant, v. William R. HIRSCH and K. Barket, Defendants/Appellants/Cross-Respondents, and Ronald E. Coleman, Sr., Defendant.
    No. ED 85852.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 29, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 24, 2006.

      Irl B. Baris, St. Louis, MO, for appellant.
    Cynthia S. Holmes, Clayton, MO, for respondent.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

William R. Hirsch and K. Barket (collectively Appellants) appeal and Janice H. Coleman (Mrs. Coleman) cross-appeals from a trial court judgment entered in favor of Mrs. Coleman and against Appellants and Ronald E. Coleman, Sr. (Mr. Coleman) on Mrs. Coleman’s Amended Petition for Declaratory Judgment and to Quiet Title. We have reviewed the briefs of the parties and the record on appeal and conclude that the judgment of the trial court is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. 0Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Also, the trial court did not abuse its discretion in failing to award attorney’s fees to Mrs. Coleman. An extended opinion would have no prece-dential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).

      . Although served by summons, Mr. Coleman failed to appear and was in default at the time of trial and is not a party to this appeal.


source: Caselaw Access Project

author: JOHN E. PARRISH, Judge. KENNETH W. SHRUM,

license: Public Domain

text:
    Anne T. LANAGAN, Appellant, v. Linda Marie RORKE, Individually and as Trustee of the Daniel Arthur Rorke, Jr., Trust, Respondent.
    No. 26736.
    Missouri Court of Appeals, Southern District, Division One.
    Dec. 5, 2005.
    Motion for Rehearing or Transfer to Supreme Court Denied Dec. 27, 2005.
    Application for Transfer Denied Feb. 28, 2006.

      Rodney H. Nichols, Carnahan, Evans, Cantwell & Brown, P.C., Springfield, for appellant.
    Lee Poppen, Kristoffer R. Barefleld, La-throp & Gage, L.C., Springfield, for respondent.
   JOHN E. PARRISH, Judge.

Anne T. Lanagan (appellant) appeals a judgment from the probate division of the Circuit Court of Greene County, Missouri, that denied appellant’s request to remove Linda Marie Rorke (respondent) as successor trustee of the Daniel Arthur Rorke, Jr., Trust and denied a claim for damages directed to distributions of principal from the trust that appellant contends were not in accordance with terms of the trust instrument. This court reverses and remands for further proceedings.

Daniel Arthur Rorke, Jr., (settlor) established the trust in 1989 as part of the estate plan of himself and respondent, his wife. At his death, the assets were to be divided and held in two trusts, a marital trust and a non-marital trust. This was done for purposes of Federal Estate Tax. Respondent executed a similar trust. Each spouse was initial trustee of his or her trust. Each spouse was designated the first successor trustee of the other’s trust. They were lifetime beneficiaries of both trusts. Settlor’s children were remainder beneficiaries of his trust. Set-tlor’s children were not beneficiaries of respondent’s trust.

Settlor’s trust further provides with respect to appointment of trustees:

If [respondent] shall fail to qualify or cease to act or be unable to act as a Trustee hereunder, then DANIEL ARTHUR RORKE, III shall be appointed as successor trustee. If DANIEL ARTHUR RORKE, III shah fail to qualify, cease to act or be unable to act as Trustee hereunder, then MARY CATHERINE RORKE shall be appointed as successor trustee. If MARY CATHERINE RORKE shall fail to qualify, cease to act or be unable to act as Trustee hereunder, then JOSEPH LAWRENCE RORKE shall be appointed as successor trustee. If JOSEPH LAWRENCE RORKE shall fail to qualify, cease to act or be unable to act as Trustee hereunder, then ANNE THERESA RORKE shall be appointed as successor trustee. If all of the above-named individuals shall fail to qualify, cease to act or be unable to act as Trustee hereunder, then THE COMMERCE BANK OF SPRINGFIELD N.A., of Springfield, Missouri shall be appointed as successor trustee.

General Instructions in Article IV of the trust state:

(F) Conflicts of Interest. No individual while serving as Trustee hereunder shall participate in any decision concerning any discretionary payment from any part of my estate or any Trust created therefrom in which such individual may then have any beneficiary interest. Provided, however, that the above restrictions shall not apply where the beneficiary interest is contingent upon the survival by such Trustee of the death of the person for whose benefit the decision concerning the discretionary payment is made.

Settlor died in 1999. Respondent became successor trustee and sole lifetime beneficiary of his, trust. (The trust agreement provided, however, that she would be referred to in the trust as “Trustees.”) She has continued to act as its trustee since settlor’s death.

The trust provided that trust assets, after payment of certain expenses, were to be divided into a marital trust and non-marital trust. The marital trust provided for distributions, as applicable to this appeal, after payment of certain administration expenses and estate taxes, as follows:

(a) The Trustees shall pay, at convenient intervals, but not less frequently than annually, all of the net income from the Marital Trust to Settlor’s spouse.
(b) The Trustees may pay to Settlor’s spouse so much of the principal of the Marital Trust as the Trustees in their discretion deem necessary to provide for the health, education, support or maintenance of Settlor’s spouse (in accordance with the standard of living which was maintained during Settlor’s lifetime).
(c) The Trustees shall pay, upon the request of Settlor’s spouse such additional amount from the principal of the Marital Trust as may be requested by Settlor’s spouse, provided, however, that such additional distribution under this Paragraph (c) shall not exceed, in any one (1) year, the greater of five (5%) percent of the principal value of the Marital Trust; or Five Thousand ($5,000.00) dollars.
(e) Upon the death of Settlor’s spouse, the remainder of the property comprising the Marital Trust shall be distributed and paid over by the Trustees into the Non-Marital Trust-

The non-marital trust has similar provisions to the marital trust. Differences include that the trustee is to pay over to the surviving spouse “so much of the net income from the Non-Marital Trust ... as the Settlor’s spouse shall request from time to time.” It further provides for a sum of $5,000 to be available to provide for settlor’s dog if the dog is living following the deaths of settlor and respondent; for the remainder to be distributed to settlor’s children or their descendants. The trust acknowledged that settlor had four children, Daniel Arthur Rorke, III, Mary Catherine Rorke, Joseph Lawrence Rorke, and Anne Theresa Rorke.

Respondent, as trustee, has made distributions of trust principal to herself from the marital trust for her “health, education, support or maintenance” pursuant to Article II, paragraphs B.3(b) and B.4(b). In making those distributions, respondent did not take into consideration other resources available for her use — resources she received following settlor’s death — for those purposes for which the distributions were permitted. Distributions from the trust were not made in cash. Rather, shares of stock from the trusts were transferred by means of titling them in the name of respondent’s individual trust.

The petition that initiated this action sought, among other relief, judgment against respondent for “any distributions of principal made to or for [her] benefit,” plus interest and removal of respondent as trustee. The trial court’s judgment states, as applicable to those issues:

IT IS THEREFORE THE JUDGMENT AND ORDER OF THIS COURT that the accounting of [respondent] as successor trustee of the Daniel Arthur Rorke Jr. Trust dated December 21, 1989, is approved through December 31, 2003, as follows:
(a) The amount remaining due to [respondent] from the trust for her health, education, support, and maintenance for the year’s 2002 and 2003 and the remaining distribution of five percent (5%) of principal for the years 2002 and 2003 shall be Fifty Thousand and 00/100 Dollars ($50,000.00). This amount may be paid whenever there are assets available in the trust to do so.
(b) Withdrawals by [respondent] for her health, education, support, and maintenance for years 2004 and thereafter shall be limited to her actual living expenses, but not to exceed Seventy-five Thousand and 00/100 Dollars ($75,-000.00) per year. Other resources available to her shall not be considered.
IT IS FURTHER THE JUDGMENT AND ORDER OF THIS COURT that [respondent] shall continue as successor trustee of the Daniel Arthur Rorke Jr. Trust.
IT IS FURTHER THE JUDGMENT AND ORDER OF THIS COURT that any claim of petitioner not specifically provided for herein are [sic] denied.

Point I

Point I alleges that the trial court erred in construing the trust in a manner that permitted respondent, as trustee, to make distributions of trust principal to herself for her health, education, support, and maintenance. Appellant argues that this finding was against the substantial weight of the evidence and was a misapplication of law. She asserts five bases, subparts a through e, as to why, in the context of the case, the trial court’s finding was against the weight of the evidence and was a misapplication of law.

Point 1(a). Appellant asserts distributions of principal are discretionary; that conflict of interest provision prevents respondent from participating in decision because she has a beneficiary interest.

Appellant argues in subpart (a) of Point I that the terms of the trust instrument provide that the distribution of principal for respondent’s health, education, support, and maintenance is a discretionary act. She contends, therefore, that the conflict of interest provision of the trust does not permit respondent, as trustee, to participate in the decision regarding whether a distribution should be made to her or, if a distribution is to be made, in what amount it should be.

The conflicts of interest provision of the trust to which subpart (a) refers is the language in Article IV, paragraph (F) that states, “No individual while serving as Trustee hereunder shall participate in any decision concerning any discretionary payment from any part of my estate or any Trust created therefrom in which such individual may then have any beneficiary interest.” Appellant contends this prohibits respondent from making the decision as to what amount may be paid to her from the principal of the trust for her health, education, support, and maintenance; that respondent violated this provision of the trust by distributing principal to herself for those purposes.

The trial court’s findings of fact included that respondent had served as trustee of the trust since settlor’s death; that the distributions she made to herself from marital and non-marital trusts included “distribution of income for years 1999 through 2003, distribution from principal for her living expenses from 1999 through 2001, and in addition, distribution of five percent (5%) of the principal value of the trust for 1999 through 2001 and partial distribution for 2002.” These payments were made pursuant to the language in Article II B.3(c), relating to the marital trust, and Article II B.4(c), relating to the non-marital trust, that provides:

(b) The Trustees may pay to Settlor’s spouse so much of the principal of the Marital Trust as the Trustees in their discretion deem necessary to provide for the health, education, support or maintenance of Settlor’s spouse (in accordance with the standard of living which was maintained during Settlor’s lifetime). [Emphasis added.]

The trial court’s findings of fact state that “[u]nder the terms of the trust, the Court finds that [the provision by which respondent was entitled to resources that provided for her health, education, support, or maintenance] does provide [respondent] with a gift of her health, education, support, and maintenance from the principal of the martial [sic] and non-marital trusts without consideration of other resources available to her.” The findings of fact that address the conflict of interest provision of the trust state:

32. [Appellant] alleges that the paragraph entitled “Conflict of Interest” in Article IV(F) prohibited [respondent] from making distribution to herself of her health, education, support, and maintenance and that by making such distributions, she has breached her fiduciary responsibilities and should be removed as trustee of the trust.
33. [Appellant’s] accounting expert, David Kessler, testified that the language used to determine distributions to [respondent] for her health, education, support, and maintenance were limited by an ascertainable standard, which is the standard of living which was maintained during settlor’s lifetime.
34. The language of this provision is a limiting provision required under a two-trust division to take advantage of estate tax exemptions. It is the purpose of the trust to disqualify the non-marital trust from the marital deduction thereby utilizing the personal exemption of both husband and wife through both estates. It was not [settlor’s] intentions by this provision to require the appointment of another trustee, and for [respondent] to be required to seek the approval of such trustee before making normal expenditures for her health, education, support, and maintenance.
35. Since there is an ascertainable standard which is re-viewable [sic] by the Court, the conflict of interest provision relating to discretionary distributions is not applicable.

As a finding of fact, the trial court stated the legal conclusion that “[t]he conflict of interest provision is not applicable to this inter vivos trust.” It further stated, as a finding of fact, “[Respondent] shall continue as trustee of the trust but annual distributions to herself from principal for her health, education, support, and maintenance beginning with the year 2004 shall not exceed her actual living expenses or Seventy-five Thousand and 00/100 Dollars ($75,000.00), whichever is less. This amount is consistent with her standard of living prior to her husband’s death.”

The trial court’s conclusions of law include:

Based upon the circumstances surrounding the creation of the trust and consideration [of] the trust agreement in its entirety, it was the [settlor’s] intentions to grant his surviving spouse an absolute gift of support from the principal of the trust without the consideration of any other financial resources of the surviving spouse.

Appellant argues that distributions of principal to respondent made pursuant to Articles II B.3(b) and II B.4(b) are discretionary payments; that, therefore, the conflicts of interest provision in the trust, Article IV(F), prohibited respondent from participating in any decision with respect to payments made pursuant to those provisions. Articles II B.3(b) and II B.4(b) provide that the “[t]rustees may pay to Settlor’s spouse [i.e., respondent] so much of the principal of the Marital Trust as the Trustees in their discretion deem necessary to provide for the health, education, support or maintenance of Settlor’s spouse [respondent] (in accordance with the standard of living which was maintained during Settlor’s lifetime).”

Appellant concedes that an ascertainable standard is provided by the terms of the trust that identifies the purposes for which trust principal may be withdrawn, i.e., “for the health, education, support or maintenance of [respondent].” Appellant argues the trial court erred in concluding the terms of the trust granted respondent an absolute gift of support from principal. Appellant further argues that the ascertainable standard imposed on the purposes for which principal could be paid to respondent imposes restrictions on the amount that could be paid respondent.

The trust states that the trustee “may” encroach upon the trust principal for the purposes stated. “Use of the word ‘may’ grants Trustees discretion to encroach upon the principal when and in the amount they consider necessary or advisable.” Hertel ex rel. Hertel v. Nationsbank, N.A., 37 S.W.3d 408, 411 (Mo.App.2001). Here, as in Hertel, the trustee’s right to encroach upon principal is not absolute. It is discretionary in that the right to encroach on principal is limited to amounts deemed necessary for respondent’s health, education, support, or maintenance.

Appellant argues that Article IV(F) denies respondent authority to determine the distributions from principal permitted by Article II paragraphs B.3(b) and B.4(b) because it prohibits an “individual while serving as Trustee” from participating “in any decision concerning any discretionary payment from any part of [the] estate or any Trust created therefrom in which such individual may then have any beneficiary interest.” Respondent had a beneficial interest in the trust. The payment respondent would receive is discretionary in that the amount to be paid is determined on the basis of the standard stated in Article II, paragraphs B.3(b) and B.4(b). Thus, Article IV(F) prohibits respondent from making that determination. Subpart (a) of Point I is well-taken. The trial court erred in its conclusion to the contrary.

In determining the issue presented by subpart (a) of Point I, this court concluded that the conflict of interest provision of the trust applied; that the trial court erred in finding otherwise. No further discussion regarding other subparts of Point I is required. Point I is granted.

Point II

Point II alleges that the trial court erred in concluding that it was settlor’s intention that respondent’s other resources should not be considered in determining her needs for purposes of ascertaining the amount of principal permitted to be distributed to respondent pursuant to Article II, paragraphs B.3(b) and B.4(b). Appellant asserts five bases, subparts (a) through (e) as to why, in the context of the case, the trial court’s finding was against the weight of the evidence and was a misapplication of law.

Point 11(a). Appellant asserts in sub-part (a) that because distributions made under paragraphs B.3(b) and B.I(b) are expressly conditioned on respondent’s need, settlor’s intentions are not relevant.

Subpart (a) of Point II is directed to the trial court’s conclusion of law that “it was the [settlor’s] intentions to grant [respondent] an absolute gift of support from the principal of the trust without the consideration of any other financial resources of [respondent].” The question presented, whether the gift of support was an absolute gift, is the same question that was presented and addressed in Winkel v. Streicher, 365 Mo. 1170, 295 S.W.2d 56 (banc 1956). Winkel held that if an absolute gift of support was made, private income of a beneficiary cannot be considered. 295 S.W.2d at 61. Winkel concluded that no general rule was available for determining the extent of the gift of support other than to ascertain the intention of the settlor under the circumstances of the particular case. Id. The intent of a settlor is gathered from the words used in the document being construed by giving the words their usual and ordinary meaning unless there is something in the instrument that deflects from that meaning. Lehr v. Collier, 909 S.W.2d 717, 723 (Mo.App.1995). Winkel determined “that language directing a trustee to pay to a beneficiary so much as is necessary for his [or her] support would ordinarily be understood by a [settlor] to mean that the beneficiary was to receive his [or her] full support from the trust estate.” 295 S.W.2d at 61-62.

The language of the trust that is the subject of this appeal provides that respondent may receive so much of the principal as, in the discretion of the Trustee, is deemed “necessary to provide for the health, education, support or maintenance of [respondent].” This court concludes, consistent with Winkel, that set-tlor’s intent was for respondent to receive her full support from the trust estate; that the gift of funds for respondent’s health, education, support, or maintenance was an absolute gift albeit that, as determined with respect to Point I, respondent may not participate in the decision regarding what amount is necessary to be paid respondent to provide for those needs. The trial court’s determination that the award of an amount necessary to provide for the needs stated in the trust agreement was an absolute gift is supported by the language in the trust instrument. Nothing within the four' corners of the trust instrument deflects from that meaning. Respondent’s other resources need not be considered in determining the amount to be paid for that purpose from principal. The trial court’s finding is not against the substantial weight of the evidence nor a misapplication of law. Subpoint (a) of Point II is denied.

Point II(b)-(d). Appellant asserts in subparts (b) through (d) that the trust language does not support a finding that its terms were ambiguous; that extrinsic evidence of settlor’s intent would not have been permissible; and that the trial court made no finding that any provision of the trust was ambiguous.

The claim of ambiguity is not addressed for the reason that the issues on appeal are resolved on other grounds. Subparts (b) through (d) of Point II are moot.

Point 11(e). Appellant asserts in sub-part (e) that there was no evidence that supported the finding that settlor intended an absolute gift of support and maintenance.

As found with respect to subpart (a) of Point II, the trust instrument, by the language it employed, made an absolute gift for respondent’s health, education, support, or maintenance. Subpart (e) is denied. Point II is denied.

Point III

Point III alleges that the trial court erred in finding that distributions of trust principal that respondent made to herself were in accordance with the standard of living maintained during settlor’s lifetime. Appellant includes subparts (a) through (c) in which she states why, in the context of the case, the trial court’s determination was erroneous.

Point 111(a). Appellant asserts in sub-part (a) that this issue was not properly before the trial court for determination; that the issue for the trial court to determine was whether respondent, as trustee, had authority to make discretionary distributions, not what amount was proper.

Appellant brought this action by a petition filed in the Probate Division of the Circuit Court. The petition asserted that respondent, as trustee, had failed to perform various duties appellant asserts were required by the terms of the trust and by reason of respondent’s fiduciary duties. The petition sought (1) an accounting by respondent “for all property received by [respondent], as Trustee, from and after March 28, 1999 (being the date of [set-tlor’s] death) to date, for all investment and reinvestment of such property and for all income, receipts and disbursements;” (2) judgment against respondent in favor of residuary trustees “in an amount equal to the value of any distributions of principal made to or for the benefit of [respondent], together with pre- and post-judgment interest thereon ...;” (3) removal of respondent as trustee; (4) punitive damages; and (5) costs.

The request for an accounting was heard separate from the rest of the case. Docket entries included in the legal file component of the record on appeal recite that hearing was held, evidence was heard, and the part of the case for an accounting was taken under advisement September 30, 2002. On December 10, 2002, a docket entry states, “JUDGMENT ORDERS RESP TO MAKE ACCOUNTING.” The judgment rendered in this case recites that the accounting was approved through December 31, 2003, and states amounts reflected by that accounting. The propriety of some of those amounts, and the manner in which decisions were made by respondent, are challenged in this appeal.

Appellant argues regarding subpart (a) of Point III that “[t]he amount, if any, which [respondent] may have been entitled to receive was not an issue before the Court for determination, as is evidenced by the pleadings filed by the parties.” Appellant’s brief continues:

The Respondent’s authority to make the distributions in question, and the manner in which they were to be made, were the issues before the trial court for determination and not the amount, if any which the Respondent may have been entitled to receive, or what her standard of living was during the [set-tlor’s] lifetime. Notwithstanding this, the trial court, sm sponte, found that the distributions of Trust principal made by the Respondent were in accordance with the Respondent’s standard of living maintained during [settlor’s] lifetime, thereby placing the court in the position of trustee contrary to the terms of the Trust....

Neither the petition nor the counterclaim asserted by respondent raised the issue of what amount, if any, respondent was entitled to receive. Rather, the issue was whether respondent, as trustee, was permitted by the terms of the trust to make the determination of whether payments would be made to her. This issue was addressed in Point I. As determined regarding subpart a of Point I, by reason of Article IV(F) of the trust, respondent was disqualified from participating in the decision as to what amount of support she was entitled to receive from the principal of the trust. The petition did not seek determination of amounts to which respondent may have been entitled in past years or amounts that she would be entitled to receive in future years. “The powers of a court of equity, though broad, are limited to the claim for relief and issues made by the pleadings.” Matter of Heisserer, 797 S.W.2d 864, 873 (Mo.App.1990). Subpart (a) of Point III is well-taken.

Point 111(b). Appellant asserts in sub-part (b) that determination of an appropriate amount to be distributed was to be made by a trustee other than respondent; that respondent’s need was to be based after considering other resources available to respondent.

The issues posed by subpart (b) were heretofore determined. That part of Point III is moot.

Point 111(c). Appellant asserts in sub-part (c) that the trial court’s finding was an abuse of discretion and against substantial evidence because the applicable standard of living was not established and distributions taken by respondent were excessive by reason of other resources available to her.

Subpart (c) is moot. The issues presented have heretofore been addressed.

Point III is granted in part and denied in part. The issue of the amount of support respondent would receive was not before the trial court for determination and is a decision in which respondent may not participate as trustee pursuant to Article IV(F). The allegation in Point III that respondent’s other resources must be considered in determining the amount of support she may receive from the trust is denied.

Point TV

Point IV alleges that the trial court erred in finding that respondent’s actions had not damaged the trust and that the trust owes respondent money. As with the first three points, appellant includes subparts in which she states why, in the context of the case, the trial court’s determination was erroneous. She asserts sub-parts (a) and (b). They may be addressed together.

Appellant alleges that respondent was prohibited from making distributions to herself for her health, education, maintenance, or support by reason of her beneficial interest in the trust (subpart a); that respondent made unauthorized distributions from 2000 to 2008 of $299,348.13 (subpart b). As previously discussed, respondent was disqualified from participating in the decision regarding the amount to which she was entitled for her health, education, maintenance, or support. For that reason, distributions respondent made as trustee to herself for those purposes were not authorized. A trustee’s rights as beneficiary under a trust do not excuse or justify unauthorized withdrawals from that trust. Guiri v. Guiri, 708 S.W.2d 239, 245 (Mo.App.1986). The effect of the withdrawals on the trust is to be determined by the trial court on remand and new trial consistent with this opinion. To that extent, Point IV is granted.

Disposition

The judgment is reversed. The case is remanded for further proceedings consistent with this opinion. The trial court may, in its discretion, permit further evidence for the purpose of entering judgment or making determinations necessary to render judgment.

Upon remand, judgment shall enter deciding the issues presented by the pleadings in this case including:

(a) Approval or disapproval of the accuracy of the accounting heretofore presented by respondent with respect to its disclosure of the uses made of trust assets;
(b) Determination of the amount heretofore erroneously paid respondent from trust principal purportedly on the basis of Article II B.3(b) and Article II B.4(b) as amounts necessary for her health, education, support, or maintenance and providing direction for repayment of such amount to the trust accounts;
(c) Denial of appellant’s request to remove respondent as trustee; provided however, so long as respondent continues as trustee, an additional trustee shall be appointed, consistent with the terms of the trust for selection of trustees, for the limited purpose of determining what amounts, if any, respondent shall have been entitled to receive for past years’ necessary health, education, support, or maintenance expenses, as permitted by Article II B.3(b) and Article II B.4(b), and for the purpose of determining, from time to time in future years, the amounts to which respondent may be entitled for those needs;
(d) Denial of punitive damages;
(e) Assessment of costs.

PREWITT, P.J., recused.

RAHMEYER, J., concurs.

SHRUM, P. J., concurs in part and dissents in part in separate opinion.

KENNETH W. SHRUM,

Presiding Judge, concurring in part and dissenting in part.

I respectfully dissent, in part, from the principal opinion.

First, I disagree with and dissent from the principal opinion to the extent, if any, that it purports to hold that Settlor empowered the trustees to distribute non-marital trust corpus to Respondent for any purpose. The trial court found that the “marital trust was expended by year end 2000.” The record supports that finding. Where, then, is authority for distributing to Respondent corpus from the other trust, i.e., the non-marital trust corpus? I can find no such authority. Certainly, it is not in Article II B.4 which deals with distributions from the non-marital trust. It reads:

“4. Distributions from Non-Marital Trust. The Trustees shall hold, administer and distribute the property comprising the Non-Marital Trust in the following manner:
“(a) If Settlor’s spouse shall survive Set-tlor, the Trustees shall pay at convenient intervals ... so much of the net income from the Non-Marital Trust to Settlor’s spouse as the Settlor’s spouse shall request from time to time.
“(b) The Trustees may pay to Settlor’s spouse so much of the principal of the Marital Trust as the Trustees in their discretion deem necessary to provide for the health, education, support or maintenance of Settlor’s spouse (in accordance with the standard of living which was maintained during Settlor’s lifetime.)
“(c) The Trustees shall pay, upon the request of Settlor’s spouse such additional amount from the principal of the Marital Trust as may be requested by Settlor’s spouse, provided, however, that such additional distribution under this Paragraph (c) shall not exceed, in any one (1) year, the greater of five (5%) percent of the principal value of the Marital Trust; or Five Thousand ($5,000.00) dollars.” (Emphasis supplied.)

By the express terms of subsections (a), (b), and (c) of Article B.4, net income is the only distribution authorized for Respondent from the non-marital trust. Distribution of the principal from the non-marital trust is not authorized by Article II B.4(b) or Article II B.4(c); those subpara-graphs only authorize corpus distributions from the marital trust. To the extent the parties, the trial court, or the principal opinion read this provision differently, I simply disagree.

Moreover, any attempt to explain away the clear language of Article II B.4(2) and Article II B.4(3) by claiming ambiguity in the document is, in my opinion, unavailing. The trial court appears to have found the instrument unambiguous. On appeal none of the parties argue that the trust was ambiguous. To the contrary, in Point II, Appellant specifically argues that the trust is not ambiguous and Respondent appears to agree. Thus, Respondent in her brief asserts, “The Trial Court’s interpretation of the trust at issue is supported by the terms of the trust instrument and does not depend on extrinsic evidence.” Arguably, the ambiguity issue is settled. If that view is correct, it is clear that Respondent was never entitled to corpus distribution from the non-marital trust.

Second, I dissent from that part of the principal opinion which holds that Settlor made an absolute gift of marital trust corpus to Respondent “for respondent’s health, education, support, or maintenance” and that “Respondent’s other sources need not be considered in determining the amount to be paid for that purpose from principal[]” of the marital trust. I dissent because, in my view, the Winkel case (upon which the principal opinion is grounded) is distinguishable. I would hold that the analysis and the result in Hertel ex rel. Hertel v. Nationsbank N.A., 37 S.W.3d 408, 411 (Mo.App.2001), should govern here.

The corpus encroachment language in Winkel was couched in mandatory terms, i.e., it directed that trustee “shall pay the net income and any part of the corpus of the estate ... as [trustee] in his sole discretion deems necessary ... for the support [of the named beneficiary].” 295 S.W.2d at 57. The Winkel opinion recounted at length the relevant circumstances underlying the creation of the subject trust and reviewed the conflicting authorities on the issue of whether a beneficiary is entitled to support out of the corpus of a trust fund when he has other resources. Based on that analysis and the mandatory language quoted above, the Winkel court concluded that the testator intended an absolute gift of support to the beneficiary; that the discretion of the trustee was limited to deciding the amount necessary for that purpose; and that the trustee was not authorized to consider other income resources that the beneficiary might have. 295 S.W.2d at 62.

In so deciding, the Winkel court embraced the view that when “ ‘the trustee is directed to pay to the beneficiary or to apply for him so much [of the trust corpus] as is necessary for his maintenance or support, the inference is that the settlor intended that [the beneficiary] should receive his support from the trust estate, even though he might have other resources.’ ” 295 S.W.2d at 60-61 (quoting Scott on Trusts, 2d Ed sec. 128) (emphasis supplied).

The Hertel court reached a different result than the Winkel court, but did so because the facts were different. The Hertel trust read, inter alia:

“[T]he Trustees shall have power in their discretion to encroach upon the principal of this share of the trust estate during the life of Grantor’s daughter for her health, education, maintenance and support and such encroachments may be made from time to time and in such amounts as the Trustees may consider necessary or advisable under the circumstances.”

37 S.W.3d at 410-11.

This language was interpreted by the eastern district as not making an absolute gift of trust corpus; consequently, the Hertel trustee “should not be denied the opportunity to consider beneficiary’s other financial resources when deciding whether it is appropriate to encroach upon the trust principal.” Id. at 413. The Hertel court explained:

“[T]his provision ... grant[s] Trustees the power to encroach upon the principal in their discretion. Use of the word ‘may’ grants Trustees discretion to encroach upon the principal when and in any amount they consider necessary or advisable.
“Further, we find that the ‘necessary or advisable’ language applies to the amount of the encroachment as well as to its timing. Thus, Trustor intended Trustees to exercise their judgment and discretion in determining whether an encroachment for the health, education, maintenance, and support of Beneficiary is necessary or advisable, and whether the amount requested is necessary or advisable.”

37 S.W.3d at 411.

The Hertel court also found its holding was not inconsistent with Winkel:

“Whereas the Winkel trust provided the trustee ‘shall pay the net income and any part of the corpus,’ this trust states ‘such encroachments may be made.’ Moreover, the placement of the discretionary language in Winkel suggests the discretion applies only to the amount of principal to be paid out. The discretionary language herein is applicable to the Trustees’ general power to encroach.”

37 S.W.3d at 413.

I believe the “corpus encroachment” language here is more akin to that in Hertel; consequently, the Hertel analysis should govern. My reasons follow.

First, the “corpus encroachment” provision in Winkel was in a single, mandatory paragraph, i.e., the trustee “shall pay the net income and any part of the corpus.” In contrast, here (as in Hertel), directions about paying net income and corpus are in separate paragraphs. Specifically, Article II B.3(a) of this trust provided the trustee “shall pay the net income” to Respondent, whereas Article II B.3(b) recites that trustee “may pay” so much of the corpus “as the trustees in their discretion deem necessary” for Respondent to maintain the standard of living she had during Settlor’s lifetime. (Emphasis supplied.)

Second, Article II B.3(b) contains only discretionary language. In my view, the discretionary language that permeates Article II B.3(b) bespeaks an intent by Set-tlor not to make an absolute gift of corpus, but rather to authorize invasion of marital trust corpus only in case of need.

Third, my view that Winkel is distinguishable is strengthened by examining the relevant surrounding circumstances underlying the creation of these respective trusts. The Winkel court found it noteworthy that the trust purpose was to provide support and maintenance for a beneficiary who was. living “at the Emmaus Home;” that this and the uncertainty about the beneficiary’s sources of support, amounts of support, and future needs supported an inference that the Winkel trustor was not primarily interested in preserving an estate, but rather his focus was on making provision for the needy relative. In sharp contrast, the trust here was simply part of an estate plan; its purpose was minimizing federal estate tax obligations. In my view, that explains the discretionary language used here.

Fourth, many other circumstances discussed and deemed relevant in Hertel also exist here. Illustrative is the fact that both trusts have “spendthrift” provisions. Id. at 413. This and other trust provisions discussed in Hertel (which are also in the instant trust) show that Settlor intended to give the trustees power and authority to preserve and maintain the trust corpus while also allowing the trustee to accommodate for unforeseen events.

In sum, I find merit in Appellant’s second point. I would find that the Settlor intended to make an absolute gift of income to Respondent from both the marital and non-marital trusts, coupled with a provision that the principal of the marital trust could only be invaded if needed. Consequently, I would hold that the trustees must factor in Respondent’s other financial resources and income when deciding what part of the marital trust corpus, if any, was properly paid to Respondent per Article II B.3(b). I would hold that no part of the non-marital trust corpus is payable to Respondent. In all other respects, I agree with the principal opinion.

      . There was no request for declaratory relief. Had a party wished a determination of specific rights of the trustee or any beneficiary, pleadings could have sought such relief. See, e.g., Seltzer v. Schroeder, 409 S.W.2d 777, 782 (Mo.App.1966).

      . The record on appeal does not reveal how a court could possess foresight as to what a beneficiary’s future needs would be so as to declare an amount to be paid in future years.

      . At trial, while considering admissibility of testimony of the lawyer who drafted the trusts, the judge stated: “Well, what I’ve read so far, we've heard fairly straight forward paragraphs that I’ve seen in many trust documents. I don't see an ambiguity in them at this point." Later, the trial judge told the parties that he would let the trust preparer testify — not as an offer of proof — but with the understanding that he would not consider the testimony unless he found an ambiguity. Although the trial judge did not expressly rule the trust unambiguous, the judgment, when fairly read, indicates that the judge’s findings and conclusions were based on the language within the trust, and not on the trust preparer’s testimony about Settlor’s intent and meaning of the language used. I am confirmed in this by the following, which was the first conclusion of law in the judgment: “Absent an ambiguity, ... the instrument and evidence of grantor's intent is generally inadmissible.” All of the above persuades me the trial judge viewed the trust language as unambiguous.


author: GLENN A. NORTON, Chief Judge.

text:
    Richard and Elizabeth ZEMPEL, Respondents, v. R.J. SLATER, Appellant.
    No. ED 85109.
    Missouri Court of Appeals, Eastern District, Division Five.
    Dec. 6, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 19, 2006.
    Application for Transfer Denied Feb. 28, 2006.

      Jeffrey J. Lowe, Clayton, MO, for respondents.
    Samuel T. Vandover, St. Louis, MO, for appellant.
   OPINION

GLENN A. NORTON, Chief Judge.

R.J. Slater appeals the judgment entered after the jury’s verdict in favor of Richard and Elizabeth Zempel on their negligence claims arising out of a collision between Slater’s car and Richard Zempel’s motorcycle. We affirm.

I. BACKGROUND

This accident occurred on a clear, sunny day in October at the intersection of Route B and Seeburger Road in St. Charles County. The terrain in that area is flat, and the fields at that intersection were cleared on the day of the accident. Richard Zempel and his 11-year old son were traveling in the eastbound lane of Route B on a motorcycle, and Slater was traveling south on Seeburger Road in his car. Slater had a stop sign, but there were no traffic signals applicable to Zempel. Slater testified that he was very familiar with this intersection and knew there was a stop sign on Seeburger Road but not on Route B. Photographs taken from a point just before and just past the stop sign on Seeburger Road depicted an unobstructed view of Route B. But Slater testified that the photographs did not show that, on the day of the accident, there was traffic and glare from the setting sun. Nevertheless, Slater agreed that he could see “some distance” down, and stated that he had a “sufficient view” of, the eastbound lane of Route B.

Slater testified that he stopped “long before” he got to the stop sign and looked to the left and the right many times. There was a lot of traffic, and after some of the traffic cleared, he advanced past the stop sign, but not onto the paved portion of Route B, and again looked left and right many times. Slater remained stopped just past the stop sign until the traffic cleared. He testified that he had a “sufficient view” of the eastbound lane, then he looked to the westbound lane again and, seeing that all was clear, proceeded at about five miles per hour through the intersection, continually glancing left and right as he crossed Route B. When he was leaving the intersection, there was a crash. He agreed that a portion of his car was still in Zem-pel’s lane at the time of the collision, but Slater said that he never saw the motorcycle and had no explanation for why he had not.

The first officer to respond to the accident testified that Zempel’s motorcycle was lying in the eastbound lane of Route B with extensive front-end damage and that there was a skid mark starting 84 feet, 10 inches from the intersection and ending at the motorcycle. Slater’s car was off the road against a telephone pole. Over Slater’s counsel’s objection, the officer discussed a diagram attached to his police report depicting the “area of impact;” it showed Slater’s car positioned in the middle of the intersection with half of the car in the westbound lane and half in the eastbound lane of Route B. Slater’s counsel also objected to questions in which the officer was asked to indicate where the impact occurred, and Zempel’s counsel withdrew those questions. But the officer did testify that he had determined the area of impact based on the motorcycle’s skid mark. On cross-examination, Slater’s counsel asked the officer further questions about his determination of the point of impact. The officer first explained that the motorcycle hit the car partly on the passenger-side door and partly on the front fender. The officer agreed with Slater’s counsel that, based on where the car was hit and the officer’s measurements, at least the front three and half feet of Slater’s car was through the intersection when the motorcycle first made contact with it. On re-direct, the officer further explained that, based on the length of Slater’s car, it was still blocking the entire eastbound lane of Route B at the point that Zempel’s motorcycle and the car collided.

The officer also testified that he detected a “slight” or “faint” odor of alcohol on Slater when talking with him after the accident. When he asked Slater if he had been drinking, Slater told him that he had a “couple of beers at his river house.” Slater denied drinking anything on the day of the accident and denied telling the officer that he had. The officer testified that Slater passed an eye gaze nystagmus test and a portable breath test. Ultimately, the officer determined that Slater’s blood alcohol content was not above the legal limit and that alcohol had not been a probable contributing cause to this accident. The officer also stated that alcohol affects different people different and has the ability to affect reaction time and perception.

Another officer at the accident scene also testified that he knew Slater had consumed one or two beers, although he could not recall why he concluded that: “it might have been the odor on him or something.” He also testified that the portable breath test revealed that Slater had been drinking, but that he was not over the legal limit, which the officer mentioned had been reduced from .10 to .08 since the time of this accident. The officer went on to explain that, in his experience, alcohol affects people differently:

I’ve been going on 15 years, and the alcohol — it just depends on the person. We can get a guy that’s standing out there drunker than a skunk and he can do that field sobriety perfect, but it just depends on — and if they’re an alcoholic, they can handle themselves better, so it all depends on the person.

The officer confirmed that because alcohol was not mentioned in the police report and Slater was not arrested, the other officer did not believe that alcohol contributed to the accident.

Due to closed-head injuries from the collision, Zempel and his son had no recollection of how the accident occurred. This had been the first long motorcycle ride outside of their St. Louis City neighborhood that Zempel had ever taken with one of his sons. Zempel said that “whenever” he takes his sons for rides on the motorcycle, he has them read the speed limit sign to him and then he puts the needle of the speedometer on the speed limit. He said that it was his habit when riding with his sons to always obey the speed limit:

I never break the speed limit when driving a motorcycle and especially with my son — with any of my children on the back which I didn’t do very often anyway. I didn’t take the kids for rides. This was the only time we went for a long ride outside the neighborhood. Zempel’s son testified that he had ridden on a motorcycle with his father “maybe 20 or 30 times” and that he had never seen Zempel go over the speed limit while riding with him. He also described how his father asks him to read the speed limit signs and then he looks over his father’s shoulder to see the speedometer.

At the conclusion of the Zempels’ case and at the close of all evidence, Slater’s motions for directed verdict were denied. The jury was instructed to assess a percentage of fault to Slater if he either failed to yield the right-of-way or failed to keep a careful lookout. The court also instructed the jury to assess a percentage of fault to Zempel if he failed to keep a careful lookout or knew or should have known that there was a reasonable likelihood of collision in time to swerve, slow down or sound a warning, but failed to do so. The jury assessed 60% of the fault to Slater and 40% of the fault to Zempel and awarded the Zempels damages. Slater’s motion for judgment notwithstanding the verdict, along with other post-trial motions, was denied. He appeals, challenging various evidentiary rulings and the sufficiency of the evidence.

II. DISCUSSION

A. Evidentiary Rulings

We will not disturb the trial court’s decision regarding the admission of evidence absent a clear abuse of discretion. Fairbanks v. Weitzman, 13 S.W.3d 313, 318 (Mo.App. E.D.2000). We find no abuse of discretion in any of the court’s evidentiary rulings in this case.

1. Evidence of Slater’s Alcohol Consumption

Slater challenges the admission of the first officer’s testimony regarding the odor of alcohol and Slater’s consumption of a couple of beers. Slater contends that this evidence allowed the jury to improperly conclude that he had not seen Zempel due to his alcohol consumption. Slater argues that such a conclusion is speculative because there was no evidence as to when the alcohol was consumed and no evidence that his alcohol consumption affected his ability to perceive, see, hear and recall the accident, caused him not to see Zempel or otherwise impaired him in anyway. The prejudicial effect of the evidence, he maintains, outweighed any slight relevance and was not cured by the limiting instruction. We disagree.

Evidence of a party’s alcohol consumption is admissible “if otherwise relevant and material.” Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104, 108 (Mo. banc 1996). Here, Slater was not only a party, but also the only witness who could testify about the accident. A witness’s alcohol consumption is relevant and material to his ability to see, hear, perceive and observe. Id. at 106. Any possible impairment of a witness’s ability to recall is relevant to his credibility. Id. For those reasons, Slater’s alcohol consumption was relevant in this case. Moreover, because the case was submitted on the parties’ comparative fault, the evidence of his alcohol consumption is especially relevant. See Stewart v. Carron, 938 S.W.2d 636, 640 (Mo.App. E.D.1997).

Stewart involved a head-on car collision, and the case was submitted on the drivers’ comparative fault. Id. at 636-37, 638. Evidence of the plaintiffs intoxication was admitted into evidence, but the trial court refused to allow evidence that the defendant drank four beers at a bar before the accident. Id. at 637. The officer at the scene of the accident testified that the defendant “ “was not under the influence of alcohol that in any way caused or created the accident.’ ” Id. at 638. Due to his injuries, the plaintiff had no recollection of the accident or the events before it. Id. at 637. This Court reversed the trial court’s finding with respect to evidence of the defendant’s alcohol consumption based on the “relevant and material” standard in Rodriguez:

Evidence of defendant’s consumption of alcohol prior to the accident bears on his ability to see, hear, perceive and observe his surroundings and would enable a jury to be more fully informed in order to determine the relative fault of the parties.

Id. at 640. This evidence was especially relevant because the defendant was the only witness who could testify about what occurred before and during the accident. Id.

As Slater points out, there is not similar evidence of the plaintiffs intoxication in this case. While that may influence a determination of the relevance of a defendant’s drinking for purposes of comparative fault, the Court in Stewart did not rely on that evidence. Rather, the argument on appeal in that case, and the Court’s opinion, focused on the probative value of alcohol consumption on the defendant’s ability to observe his surroundings at the time of the accident. Id. at 638-39. In any case, Stewart is still instructive for its other factual similarities and to contradict Slater’s suggestion that specific testimony about the effect of the alcohol on the defendant is required for this type of evidence to be admissible. In Stewart there was no such evidence, and, in fact, requiring evidence of the effect the alcohol had on the person would be similar to the requirement for admissibility that Rodriguez did away with: “[previously, in a negligence action, evidence of a driver’s alcohol consumption was admissible only if coupled with evidence of erratic driving or some other circumstance from which it might be inferred that the driver’s physical condition was impaired at the time of the accident.” 936 S.W.2d at 106 (emphasis added). The absence of that evidence and any further details about the time of consumption go to the weight of the officer’s testimony, not to its admissibility.

At oral argument, Slater’s counsel insisted that this case was analogous to Hosto v. Union Electric, where this Court affirmed the trial court’s decision to exclude evidence of alcohol consumption. 51 S.W.3d 133, 143-44 (Mo.App.E.D.2001). In that case, a helicopter crashed into power lines, killing the pilot and his passenger. Id. at 136. The decedents’ families sued the power company. Id. at 137. The trial court refused to submit an instruction alleging the passenger’s comparative fault for getting in the helicopter with the pilot whose blood alcohol content was .114 and also refused to admit evidence that the passenger’s blood alcohol content was .08. Id. at 143. On appeal, the power company argued that this evidence was relevant and created an inference that the passenger and the pilot were drinking together all day, which showed her knowledge of his impaired condition and supported the comparative fault instruction. Id. This Court found that, unlike Rodriguez — in which the passenger’s comparative fault was submitted on evidence that her blood alcohol content was over the legal limit and she admitted drinking with the intoxicated driver before getting in the car — there was no evidence that the helicopter passenger consumed alcohol with the pilot and her blood alcohol content was lower than the .10 legal limit. Id. at 144.

This case is distinguishable from Hosto primarily because the evidence was offered for a different purpose than was the evidence at issue here. In Hosto, the defendant was trying to prove that the passenger and the pilot drank together to show her knowledge that the pilot was intoxicated for purposes of her comparative fault. Here, however, evidence of Slater’s alcohol consumption was offered in regards to his ability — as the only witness who could testify about the accident and as the driver of the car involved in the accident — to see, hear, perceive and observe his surroundings. Moreover, in Hosto, the evidence of the pilot and the passenger’s blood alcohol content, without more, did not show that they had been drinking together all day or that the passenger knew that the pilot was intoxicated. Here, on the other hand, there was evidence that Slater had consumed alcohol; nothing in Hosto or any ease law required the Zempels to show that his blood alcohol content was over the legal limit for that evidence to be admissible.

Furthermore, contrary to Slater’s argument, the probative value of the officer’s testimony with respect to Slater’s credibility as a witness and to his fault in the accident was not outweighed by the possibility that the testimony would be prejudicial. And, in any case, the court and counsel took measures approved by the Supreme Court to diminish any undue prejudice. See Rodriguez, 936 S.W.2d at 108. First, the court gave a limiting instruction, at Slater’s request, which precluded the jury from considering the evidence that he had consumed two beers as an independent act of negligence. Moreover, the evidence of alcohol consumption was put into context by both officers’ testimony that Slater’s blood alcohol content was not above the legal limit and that alcohol had not been a probable contributing cause to this accident. In addition, Slater denied that he had anything to drink the day of the accident and denied that he had told the officer that he had been drinking. In closing argument, Slater’s counsel pointed out the conflict between Slater’s denial and the officer’s testimony, asked the jury to consider who was telling the truth and argued that the alcohol evidence was an effort to throw a side issue into the case. Counsel then reminded the jury that the evidence showed that Slater had passed the sobriety tests and that the odor of alcohol was “about him,” not on his breath. The arguments of counsel, the other evidence and the limiting instruction were sufficient to lessen the prejudice that may have resulted from the admission of the evidence of Slater’s alcohol consumption.

Point I is denied.

2. Other Testimony Regarding Alcohol

Slater contends that the second officer’s comment that an alcoholic or someone “drunker than a skunk” might still pass a field sobriety test and reference to the change in the legal limit was irrelevant, highly prejudicial and without foundation. Slater argues that the officer had no personal knowledge that he had been drinking because the officer was unsure about why he knew Slater had consumed one or two beers and had trouble recalling any details of this incident. He claims also that mentioning the new lower legal limit implied that Slater would have been over the limit under the new law. The prejudicial effect of this implication, Slater claims, was made worse by the officer’s testimony about the general effects of alcohol on other people. We disagree.

First, the equivocation and problems with recall in the officer’s testimony go to the weight of this testimony, not its admissibility. Cf. State v. Holmes, 823 S.W.2d 55, 57 (Mo.App. E.D.1991) (foundational testimony regarding identification of physical evidence need not be free from doubt to be admissible; such questions of weight are for the jury). This officer’s testimony regarding Slater’s alcohol consumption— that he had one or two beers and that the portable breath test revealed Slater had been drinking — was admissible for the same reasons discussed above: it was relevant, and its relevance was not outweighed by undue prejudice. See section II.A.1, supra.

Second, the officer’s mention of the change in the legal limit and his testimony about the effects of alcohol on other people was also admissible. In his argument to the contrary, Slater relies on Yingling v. Hartwig, 925 S.W.2d 952, 956 (Mo.App. W.D.1996). In that personal injury case, the defendant’s medical expert testified that there was a difference between complaints made by patients not in litigation and those made by patients in litigation. Id. at 955. The court called these statements “generalities, without any indication of similarity with or application to [the plaintiff]” and denounced their use:

A court of law is not a public forum, and witnesses are not permitted to make general declarations about matters wholly unrelated to the parties. Statements about unidentified people with unidentified injuries and complaints are irrelevant to prove whether [the plaintiff] continues to suffer from her injuries, one of the issues at trial, and the trial court abused its discretion in admitting the testimony.

Id. But there is no abuse of discretion in admitting testimony regarding generalities if the witness also compares or applies those general principles to the specifics of the particular case. See, e.g., Disbrow v. Boehmer, 711 S.W.2d 917, 923-24 (Mo.App. E.D.1986). In Disbrow, the plaintiff sought to set aside her mother’s will and offered expert testimony about the general symptoms of arteriosclerosis — a disease her mother had — and its effects on one’s mental faculties. This Court disagreed that the evidence was irrelevant and speculative because, after testimony regarding the general symptoms of the disease, the expert went on to explain how the disease affected the testatrix, which was relevant to her testamentary capacity. Id. at 924. Under those circumstances, it was not an abuse of discretion to admit the expert’s testimony. Id.

According to the reasoning in the above cases, the officer’s testimony in this case about the effects of alcohol on people generally was admissible because he also testified — albeit indirectly — about the effects of alcohol on Slater in this case. Namely, the officer testified that failure to include alcohol on the police report indicated that alcohol had not contributed to this accident. Slater claims that any benefit from this testimony was weakened substantially by the inflammatory and misleading implications that Slater had skillfully fooled the officers despite his drunkenness. But the officers had already testified that Slater’s blood alcohol content was not above the legal limit based on the portable breath test. There was nothing in either of the officers’ testimony to suggest that Slater could have fooled the portable breath test. At best, one could conclude that he was drunker than he appeared, but still not drunk enough according to the portable breath test to have been arrested or to have caused one to conclude that alcohol contributed to accident. Slater suffered no prejudice from that inference. Moreover, without more, merely mentioning the change in the law does not create an unfairly prejudicial inference that Slater would have been over the new lower limit; even if that could be inferred, again it was not prejudicial in light of the evidence that alcohol did not contribute to the accident. Finally, the curative measures discussed above served to lessen any prejudice attending these comments. See section II. A.1, swpra. '

Point II is denied.

3. Habit Evidence

Slater argues that the trial court erred by admitting evidence that Zempel had a habit of obeying the speed limit. He argues that the ride Zempel and his son took on the day of the accident was unlike any previous rides they had taken and, therefore, there was no foundation for admitting evidence of his habits on those other rides. Slater also contends that this evidence did not constitute a true habit because Zempel’s compliance with the speed limit was not automatic and was dependent on too many conditions, namely, being on a motorcycle with his son. Finally, Slater argues that Zempel’s and his son’s testimony was self-serving and was in the present tense, which does not demonstrate that the habit existed before the time of the accident. We find no merit in any of these arguments and no clear abuse of the trial court’s decision regarding the admission of this evidence. See Fairbanks, 13 S.W.3d at 318.

From the rare occasions on which Missouri courts have addressed the admissibility of habit evidence, the following principles emerge. Habit evidence “ ‘is relevant to prove that the conduct of the person ... on a particular occasion was in conformity with the habit or routine practice.’ ” Hawkins v. Whittenberg, 587 S.W.2d 358, 364 n. 2 (Mo.App. S.D.1979) (quoting Fed.R.Evid. 406). The admissibility of habit evidence should be restricted and kept within narrow limits. Hawkins, 587 S.W.2d at 363 (citing Hodges v. Hill, 175 Mo.App. 441, 161 S.W. 633, 636 (1913)). A habit is a person’s “ ‘regular practice of meeting a particular kind of situation with a specific type of conduct. ... The doing of habitual acts may become semi-automatic.’ ” Hawkins, 587 S.W.2d at 364 n. 2 (quoting McCohmick On Evidence § 195, at 462-63 (2d ed.)). To be admissible, the habit must be “ ‘sufficiently regular and uniform, or the circumstances sufficiently similar to outweigh the danger, if any, of prejudice or confusion.’ ” Hawkins, 587 S.W.2d at 364 n. 2 (quoting McCoemick. swpra, § 195); see also State v. Ernst, 164 S.W.3d 70, 74 (Mo.App. S.D,2005) (using above principles to conclude that evidence of one incident was insufficient proof of the defendant’s habit or routine).

Here, the evidence that Zempel always obeyed the speed limit when riding with his sons is proper habit evidence and was admissible. The testimony demonstrates that it was Zempel’s regular practice every time he had one of his sons on the motorcycle to obey the speed limit, which practice he maintains by having his son read the speed limit sign and then putting the needle of the speedometer on that limit. In this way, the conduct could be construed as having become semi-automatic. The fact that the ride on the day of the accident was the longest ride Zempel had ever taken with his son does not render the habit evidence inadmissible' because the habit was to obey the speed limit whenever his son was on the motorcycle with him; there was nothing in the testimony to suggest that Zempel’s conduct differed depending on the length of the ride. Therefore, the circumstances under which Zempel testified he always obeyed the speed limit were sufficiently similar to the circumstances on the day of the accident. Although their testimony was- largely in the present tense, it was clear that both Zempel and his son were referring, at least in part, to the shorter rides taken before the day of the accident. Moreover, although this was the first long ride, Zem-pel’s son had been on 20 or 30 motorcycle rides with his father and every time Zem-pel obeyed the speed limit. This is an adequate sampling of Zempel’s conduct from which to conclude that this was his regular practice and distinguishes this case from those cited by Slater. See Reyes v. Missouri Pacific Railroad Co., 589 F.2d 791, 795 (5th Cir.1979) (“four prior convictions for public intoxication spanning a three and one-half year period are of insufficient regularity to rise to the level of ‘habit’ evidence”); McWhorter v. City of Birmingham, 906 F.2d 674, 679 (11th Cir.1990) (testimony of four other officers did not establish party’s habit of harassing police officers).

Point III is denied.

4. Point of Impact Evidence

Slater argues that the officer’s testimony as to the point of impact and the diagram depicting the point of impact were inadmissible because expert opinion testimony is not permitted as to point of impact in a collision case.

First, the questions Zempel’s counsel asked regarding the officer’s determination of the point of impact were withdrawn after Slater’s counsel objected; thereafter, the officer merely testified as to how he arrived at that determination based on his perceptions of the skid marks on the road, which is not testimony that Slater challenges on appeal. Rather, the officer only testified as to his determination of where the impact occurred during cross-examination by Slater’s counsel. A party cannot complain that the trial court improperly admitted evidence that was introduced by that party. Foster v. Village of Brownington, 140 S.W.3d 603, 609 (Mo.App. W.D.2004). Even if Slater could complain about that evidence on appeal, the officer’s testimony was consistent with Slater’s version of the accident. Slater’s counsel even relied on the officer’s testimony that the point of impact was near the south side of the road to argue that, with Slater’s car that far across the intersection, Zempel had time to see him and avoid hitting him. Therefore, the officer’s testimony was not unfairly prejudicial to Slater, and there was no clear abuse of discretion in admitting it. See Fairbanks, 13 S.W.3d at 318.

The diagram depicting the point of impact was also admissible. Although it shows Slater’s car in the middle of Route B at the point of impact — with the back end of the car in the westbound lane and the front end in the eastbound lane — the officer’s testimony during cross-examination clearly indicated that (1) no part of Slater’s car was in the westbound lane at the point of impact, (2) the impact occurred when Slater’s car was much closer to the south edge of the road, and, in fact, (3) part of Slater’s car had already passed through the intersection by that time. The conflict between the diagram and the officer’s testimony does not, as Slater contends, render admission of the diagram erroneous. Complaints about inconsistencies in the evidence go to weight, not to admissibility. Brandt v. Pelican, 856 S.W.2d 658, 663 (Mo. banc 1993). And, again, Slater’s counsel relied on the contradictory — and favorable — testimony of the officer to lessen any prejudice attending the diagram. It was not a clear abuse of the trial court’s discretion to admit the diagram. See Fairbanks, 13 S.W.3d at 318.

Point VII is denied.

B. Sufficiency of the Evidence

Slater challenges the submission of the verdict-directing instruction regarding his failure to yield the right-of-way or failure to keep a careful lookout; he also challenges the denial of his motions for directed verdict and for judgment notwithstanding the verdict. The propriety of these rulings all ultimately depend on whether there was substantial evidence that Slater failed to yield the right-of-way and failed to keep a careful lookout. See generally Romeo v. Jones, 144 S.W.3d 324, 330 (Mo.App. E.D.2004) (each alternative in disjunctive instruction must be supported by substantial evidence); Erdman v. Condaire, Inc., 97 S.W.3d 85, 88 (Mo.App. E.D.2002) (directed verdict and judgment notwithstanding the verdict both depend on whether plaintiff presented substantial evidence for every fact essential to liability). These are questions of law, and we view the evidence and all reasonable inferences therefrom favorably to the Zempels in this case and disregard the unfavorable inferences. See Romeo, 144 S.W.3d at 330; Hudson v. Whiteside, 34 S.W.3d 420, 427 (Mo.App. W.D.2000); Erdman, 97 S.W.3d at 88.

Every motorist operating a vehicle must “exercise the highest duty of care to maintain a careful lookout ahead and laterally upon entering an intersection.” Blackshiers v. Harris, 980 S.W.2d 189, 190 (Mo.App. E.D.1998). This duty requires drivers to make careful observations to determine whether there is any cross traffic in or so near the intersection as to constitute an immediate danger. Hudson, 34 S.W.3d at 427. To make a submissible case that the defendant failed to yield the right-of-way at a stop sign, the plaintiff must establish that his vehicle was so close to the intersection that it was an immediate hazard. Id. at 429. The evidence can include, among other things, the plaintiffs speed, the location of the collision and the distance one could see in the plaintiffs direction from the stop sign; when coupled with evidence of the stop sign’s location, the collision and damages, the plaintiff makes a submissible case. Id. To make a submissible case of failure to keep a careful lookout, the plaintiff must establish that the defendant saw or could have seen the plaintiff in time to have avoided the collision. Id. at 427. The defendant is “held to have seen what looking would reveal.” Id. Normally, the plaintiff must establish the time when and the distance at which the potential danger of collision triggered the defendant’s specific duty to take effective precautionary action. M0organ v. Toomey, 719 S.W.2d 129, 133 (Mo.App. E.D.1986). In certain fact situations, however, our courts have found it unnecessary to prove time and distance. See, e.g., Hudson, 34 S.W.3d at 428-29.

In Hudson, the plaintiffs’ car was in the flow of traffic when they saw the defendant’s car stopped at a stop sign at an intersection 20 feet away. Id. at 421. The plaintiffs did not have a stop sign. Id. Once into intersection, the plaintiffs saw that the defendant’s car was just a few feet in front of their car, and the cars collided. Id. at 422. The defendant never saw the plaintiffs’ car, although his view from the stop sign was unobstructed for 1,125 feet in the direction from which the plaintiffs were traveling. Id. The case was submitted on alternative theories that the defendant had failed to yield the right-of-way or failed to keep a careful lookout. Id. The court found that the effective precautionary measure would have been for the defendant to have remained stopped and to have refrained from pulling out into the intersection in front of the plaintiffs’ car. Id. at 428-29. There was sufficient evidence that the defendant could have seen the plaintiffs’ car in time to avoid the collision and that the defendant created the danger of a collision by failing to see the plaintiffs’ car before pulling out in front of it. Id. at 429. The plaintiffs, therefore, made a submissible case for failure to keep a careful lookout. Id. Moreover, the plaintiffs’ distance from the stop sign and their speed, the defendant’s unobstructed view and the fact of the collision was sufficient evidence from which the jury could decide whether the plaintiffs’ car presented an immediate hazard and, therefore, the plaintiffs made a submissi-ble case for failure to yield the right-of-way. Id.

Similarly, here, the evidence demonstrates that the effective precautionary measure would have been for Slater to have remained stopped instead of creating a hazard by pulling out into the intersection. There was substantial evidence from the photographs and Slater’s own testimony that his view down Route B in the direction from which Zempel was traveling was unobstructed. Slater’s argument on appeal relies on the “contrary” evidence that his view was impaired by sun and traffic on the day of the accident. To the extent that evidence raises an inference unfavorable to the plaintiffs’ case, we disregard it on appeal. See id. at 427. Moreover, regardless of what else affected his view, in describing the distance between cars in the flow of that traffic, Slater implied that he could see at least 300 feet down Route B:

... Now [the westbound vehicles] were not in a parade necessarily, but that traffic was generally moving towards the sun. There was other traffic coming from the west to the east. It was automobile traffic. You would see 1, 2 or 300 feet back you would see another one, so the traffic was flowing from the west to the east and also from the east to the west as I remained stopped there. Furthermore, Slater agreed that he could see “some distance” down, and stated that he had a “sufficient view” of, the eastbound lane of Route B.

There was also sufficient evidence from which the jury could determine how far away the motorcycle was from the intersection when Slater entered it: there was evidence that Zempel was traveling the speed limit in conformity with his habit and that the speed limit was 55 miles per hour on that part of Route B; that, at 55 miles per hour, a vehicle travels 82.5 feet per second; that Slater was traveling 5 miles per hour across Route B, which was 22 feet, 9 inches wide; that, at 5 miles per hour, a vehicle travels 7.5 feet per second; that a driver’s reaction time is 3/4 of a second; and that Zempel’s motorcycle left a skid mark starting 84 feet, 10 inches from the intersection. In fact, in the context of Zempel’s comparative fault for the accident, Slater’s counsel argued that this evidence showed that Zempel’s motorcycle was between 268 and 330 feet from the intersection when Slater entered it and, therefore, Zempel could have seen Slater in time to avoid the collision. Likewise, this was substantial evidence from which a jury could conclude that Slater failed to keep a careful lookout because he could have or should have seen Zempel. Moreover, this was substantial evidence from which a jury could conclude that the motorcycle presented an immediate hazard and Slater failed to yield the right-of-way. Therefore, it was proper to give the verdict-directing instruction on both theories and to deny the motions for directed verdict and for judgment notwithstanding the verdict.

Points IV, V and VI are denied.

III. CONCLUSION

The judgment is affirmed.

ROBERT G. DOWD, JR., J. and JAMES R. REINHARD, SR., J. concurring.

      . As other courts have pointed out, Missouri has not adopted the federal rules. See, e.g., State v. Hemby, 63 S.W.3d 265, 269-70 (Mo.App. S.D.2001).

      . The court in Hawkins pointed out that the precedential value of Hodges is questionable because the Hodges court expressed doubt as to its correctness and concluded that, even if improperly admitted, the habit evidence was not prejudicial. Hawkins, 587 S.W.2d at 363-64.

      . See also McWilliams v. Wright, 460 S.W.2d 699, 702 (Mo.1970) (eastbound driver made submissible case against westbound motorcyclist based on evidence that driver saw motorcyclist more than 1,300 feet from point of impact, that immediately before collision, motorcyclist swerved into car after noticing car’s headlights right in front of him and that view in both directions was unobstructed — motorcyclist created danger of collision by swerving in reaction to headlights he obviously could have and should have seen much earlier and could have effectively avoided danger by staying in own lane); Williams v. Christian, 520 S.W.2d 139, 142 (Mo.App.1974) (pedestrian struck while standing on side of road made submissible case based on evidence that pedestrian first saw car when it was two houses away driving straight on the road — effective precautionary action would have been to continue on the road and refrain from driving onto shoulder); Morgan, 719 S.W.2d at 135 (plaintiff standing in parking lot struck by car made submissible case against driver based on evidence that car was 40 to 50 yards from plaintiff at time he started driving straight down the aisle at 10 to 15 miles per hour toward the plaintiff, that driver’s view was unobstructed; that plaintiff and others standing near him saw car, thus driver should have been able to see the plaintiff, and that driver swerved out of aisle at some unknown time and distance and struck plaintiff — if driver would have continued driving straight in the aisle, then he would have avoided the collision).


author: LAWRENCE E. MOONEY, Judge.

text:
    Susan H. MELLO, Respondent/Cross-Appellant, v. Anita DAVIS, Appellant/Cross-Respondent, and McDonnell Douglas, Defendant.
    Nos. ED 84795, ED 84856.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 6, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 19, 2006.
    Application for Transfer Denied Feb. 28, 2006.
    Jess W. Ullom, Joy D. McMillen, Kelly J. Ford, St. Louis, MO, for appellant.
    Susan H. Mello, St. Louis, MO, pro se.
   LAWRENCE E. MOONEY, Judge.

This dispute has had, in the understated observation of the trial judge, “a torturous history.” He calculated the weight of the trial-court file at forty-eight pounds. Now with an appeal and cross-appeal, that weight may have increased but, since appellate judges travel in packs, there is at least help with the heavy lifting. However, at day’s end, and we fervently hope dusk is drawing nigh, there is but a single question that need be answered: Is Susan Mello entitled to additional legal fees from her former client, Anita Davis? We hold that she is not.

In remembrance of all the trees that have sacrificed life and limb in Mello’s marathon pursuit of legal fees, we shall recount only the essential facts. In 1992, Anita Davis, having been laid off from her thirty-year secretarial position with McDonnell Douglas, engaged Susan Mel-lo to represent her in a potential employment-discrimination suit against her former employer. The contingent-fee agreement provided, in pertinent part, as follows:

Susan H. Mello will represent the undersigned in the above matter upon payment of $600.00 non-refundable fee retainer, plus the sum of 35% of all funds received (or the fair market value of non-monetary items) prior to the date the trial or other hearing is to begin; 40% of all amounts (or the fair market value of non-monetary items) received after the trial hearing date; and 45% of all amounts (or the fair market value of non-monetary items) received after the trial or hearing has ended, whether or not counsel undertakes to handle the appeal.

Mello filed suit against McDonnell Douglas in 1992, but before any depositions were taken, the parties settled. The former employer paid $27,500 in settlement and Ms. Davis was back at McDonnell Douglas, earning the same wages and receiving benefits. Mello retained $9,625 of the settlement as her fee. Later, Mello made an additional demand — that Davis forward 35% of her salary and benefits, including her pension, that were to be earned in the future — in satisfaction of Mello’s claimed contingent fee. In 1998, Mello sued her former client and, after six years of litigation, was denied further recovery on her contract, but was awarded $33,700 in quantum meruit.

The judgment in quantum meruit cannot stand because there was an express contract between the parties that completely governed liability for legal fees for indivisibly rendered legal services. Where an express contingent-fee agreement exists between attorney and client, the attorney’s recovery of fees must lie on the contract. 0Nangle v. Brockman, 845 S.W.2d 619, 620 (Mo.App. E.D.1992); Kramer v. Fallert, 628 S.W.2d 671, 675 (Mo.App. E.D.1981). The attorney may not proceed in quantum meruit to “obtain a second bite of the apple.” Kramer, 628 S.W.2d at 675. Mello is not entitled to any attorney’s fees in quantum meruit.

Nor can Mello recover further fees on her carelessly worded contract. The trial court held that whether the parenthetical clause relied on by Mello — “or the fair market value of non-monetary items” — should allow for an assessment based on future earnings was unclear. We agree. An agreement between an attorney and client is construed by the same rules as apply to any other contract. Kramer, 628 S.W.2d at 674. Any ambiguity is construed against the attorney who drew the agreement. 23 Williston on Contracts § 62:4 (4th ed.2002). Construing the ambiguous clause against the drafter here, the contract did not allow for a contingent fee based on future earnings. Or, more simply put, if it was Mello’s intent to have her client surrender 35 to 45% of all future earnings until the welcome hand of death freed her from this servitude, the contract needed to say as much.

The judgment in quantum meruit is reversed; in all other respects, the judgment is affirmed. Mello shall recover no further attorney’s fees and shall bear the costs of this appeal.

KATHIANNE KNAUP CRANE, P.J., and BOOKER T. SHAW, J., concur.

      . In light of our ruling, Mello’s first three points on cross-appeal, involving the award in quantum meruit, are denied as moot. We also dismiss Mello’s final point, wherein she complains that the trial court entered judgment on a count that she had previously voluntarily dismissed. Mello never explains how she was aggrieved or prejudiced by this judgment entry.

      . Despite the obvious temptation, we do not reach the issue of unconscionability.

      . All pending motions before this Court are denied.


text:
    STEARNS BANK N.A., Respondent, v. Noel S. PALMER, Appellant.
    No. ED 85261.
    Missouri Court of Appeals, Eastern District, Northern Division.
    Dec. 6, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 24, 2006.
    Application for Transfer Denied Feb. 28, 2006.

      Edward L. Campbell, Kirksville, MO, for respondent.
    Noel S. Palmer, Novelty, MO, pro se.
   OPINION

GLENN A. NORTON, Chief Judge.

Noel Palmer appeals the judgment denying his motion to set aside a joint voluntary dismissal of all the parties’ claims with prejudice, which had been filed by both parties through their attorneys. We agree with the trial court that it had no jurisdiction to act after the joint dismissal of the case; therefore, this Court has no appellate jurisdiction, and we must dismiss the appeal.

I. BACKGROUND

Under a conditional sales contract between the parties, Stearns Bank loaned Palmer money to purchase an aircraft and Palmer granted the Bank a purchase money security interest in the aircraft. By separate agreement, the Bank also had a security interest in another aircraft of Palmer’s, which secured his performance of any obligations he owed the Bank. When Palmer defaulted on the loan, the Bank took possession of both aircraft and filed a petition in replevin. Palmer filed counterclaims. The trial court entered partial summary judgment in June of 2002, finding that the Bank was entitled to take possession of both aircraft by virtue of its security interests and that issues relating to the sale of those aircraft would be determined by jury trial. In July, the parties filed, through their attorneys, a voluntary joint dismissal with prejudice under Rules 67.01 and 67.02(a) (2002) of “this action which shall include the dismissal of all claims, counterclaims and crossclaims filed by any of the parties hereto.” A few days after the joint dismissal was filed, Palmer sent a letter pro se to the court stating that he did not agree to voluntarily dismiss and that he had “very poor communication” with his attorney.

In the spring and summer of 2008, Palmer sent more correspondence pro se to the court and filed motions seeking, among other things, to present new documentation concerning the validity of the Bank’s security instruments. The Bank opposed these motions on the ground that the trial court had no jurisdiction to act after the parties voluntarily dismissed the case. Palmer responded that the joint dismissal was filed without his consent and that the new documents he had uncovered since then showed the Bank’s fraud. Palmer’s motions were overruled.

In June of 2004, Palmer filed, again pro se, a motion to set aside the joint dismissal, claiming that he did not see the joint dismissal before it was filed, that he and his attorney “evidently miscommunieated as to the effect of’ that pleading, that he did not consent to filing it and that it should not have been filed because he still wished to proceed with the claims that remained after the partial summary judgment. The Bank opposed the motion again on jurisdictional grounds. After a hearing, the court denied Palmer’s motion, finding that his attorney had apparent authority to file the joint dismissal and that, once filed, the court lost jurisdiction. Palmer appeals pro se.

II. DISCUSSION

The Bank challenges this Court’s jurisdiction on appeal, arguing that ■ because the trial court had no jurisdiction to act after -the joint dismissal was filed, we too have no jurisdiction over this matter on appeal. We agree. Our jurisdiction derives from that of the circuit court. In re Marriage of Jeffrey, 53 S.W.3d 173, 175 (Mo.App. E.D.2001). If the circuit court does not have jurisdiction, then we do not acquire jurisdiction except to dismiss the appeal. See id. at 176. Whether the circuit court had jurisdiction is a question of law, which we review independently on appeal. Norman v. Fischer Chevrolet Oldsmobile, Inc., 50 S.W.3d 313, 316 (Mo.App. E.D.2001).

Under Rule 67.02(a), a plaintiffs voluntary dismissal filed before the jury panel is sworn for voir dire is operative without order of the court. A dismissal with prejudice “bars the assertion of the same cause of action or claim against the same party.” Rule 67.01. Counterclaiming and cross-claiming parties have the same right to dispose of their cases without court order by voluntary dismissals with prejudice. See Rule 67.04. Palmer suggests that the joint dismissal in this case was covered by Rule 67.05, which provides that the dismissal of a plaintiffs action does not operate to dismiss previously filed counterclaims, and that, therefore, the court still had jurisdiction over his counterclaims. But that rule only applies when the plaintiffs case is dismissed and the other parties’ claims are not. Here, the joint dismissal was filed by both parties before a jury panel was sworn for voir dire and expressly applied to the dismissal with prejudice of all the claims, counterclaims and cross-claims of the parties. “Once all such claims have been so dismissed, the case is over and nothing remains before the court upon which it can act.” Samland v. J. White Transportation Company, Inc., 675 S.W.2d 92, 97 (Mo.App. W.D.1984). The court cannot even reinstate the case at the dismissing party’s request. See id. Stated another way, the trial court loses jurisdiction on the date a voluntary dismissal is filed. Freeman v. Leader National Insurance Co., 58 S.W.3d 590, 595-96 (Mo.App. E.D.2001).

Palmer also attempts to avoid the ramifications of the joint dismissal by challenging his attorney’s authority to file it on his behalf. Only allegations of unfairness in the agreement to dismiss or fraud in its procurement would undermine the attorney’s apparent authority to enter the joint dismissal and relieve Palmer of the obligations thereunder:

An attorney in charge of a case has implied authority from his client to enter into any stipulation for the control of the progress of the action, even to the entering of judgment in favor of the opposite party. ■ The compromise of a pending suit by an attorney having apparent authority will be binding upon his client, unless it be so unfair as to put the other party upon inquiry as to the authority, or imply fraud.

Promotional Consultants, Inc. v. Logsdon, 25 S.W.3d 501, 505 (Mo.App. E.D.2000) (attorney had implied authority to enter settlement requiring client to dismiss case with prejudice, and, without evidence that settlement was unfair or fraudulently obtained, it was binding on client); see also Samland, 675 S.W.2d at 96 (dismissal was authorized and binding on client absent showing by client that settlement was unfair or that attorney lacked authority to file stipulation of dismissal).

Palmer has never alleged that the agreement to jointly and voluntarily dismiss all the parties’ claims was unfair or procured by fraud. Rather, in the trial court, he contended that he had not consented to the dismissal, that he and his attorney did not communicate well and that he had not seen the joint dismissal. On appeal, Palmer suggests that his attorney’s poor health might explain his actions in filing the dismissal without Palmer’s consent, but himself admits that this would not amount to fraud. Palmer has wholly failed to demonstrate any reason why the joint dismissal should be invalidated.

The filing of the joint dismissal was valid and ended this case. Therefore, the trial court was correct to conclude that it had no jurisdiction to act after the joint dismissal was filed. Because the trial court lacked jurisdiction, we lack jurisdiction on appeal. The Bank’s motion to dismiss is granted, and the appeal is dismissed. The Bank’s motion for damages under Rule 84.19 (2005) for filing a frivolous appeal is denied.

III. CONCLUSION

The appeal is dismissed.

CLIFFORD H. AHRENS and KENNETH M. ROMINES, JJ., concurring.

      . All rule references are to the Missouri Supreme Court Rules (2002), unless otherwise noted.

      . This is the text of the Rule effective July 1, 2002 for cases to be tried by a jury, which applied to the joint dismissal filed on July 2, 2002 in this case involving, at that point, only issues for jury trial.

      . Palmer's appeal also raises an issue relating to certain language in the parties' sales contract relating to the Bank's security interest in Palmer’s other aircraft. That issue was ruled on in the court’s partial summary judgment entered over two years ago in July of 2002. As the Bank points out in its motion to dismiss, the partial summary judgment is not being appealed — Palmer’s notice of appeal and his jurisdictional statement both clearly cite the court’s denial of the motion to set aside as the judgment being appealed. And, even assuming that the partial summary judgment was appealable, any appeal at this late date is untimely. See Rule 81.04(a).