author: PATRICIA L. COHEN, Presiding Judge.

text:
    Patrick J. HUTCHINGS, by his guardian, John R. Hutchings, Respondent, v. Steve ROLING, Director, Missouri Department of Social Services, Appellant.
    No. ED 84320.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 7, 2004.

      Trevor Bossert, Assistant Attorney General, Jefferson City, MO, for appellant.
    Thomas E. Kennedy, III, Alton, IL, John J. Ammann, St. Louis, MO, for respondent.
   PATRICIA L. COHEN, Presiding Judge.

In this consolidated appeal, Steven Rol-ing, the Director of the Department of Social Services (“Director”), appeals from two judgments of the St. Louis County Circuit Court, which: (1) reversed the Department of Social Services, Division of Medical Services’ (“Division”) determination, that, due to a lack of State funding, Patrick Hutchings (“P.J.”) was placed on a waiting list for a slot in a Mental Retardation Developmental Disabilities (“MRDD”) and Home and Community Based Services (“HBCS”) waiver program and ordered that P.J. be granted a waiver slot, and (2) granted P.J. attorney’s fees in the amount of $18,070.00.

P.J. urges the Court to uphold the Circuit Court’s judgment on the grounds that the Division’s decision was unsupported by competent and substantial evidence and unauthorized by law. In addition, P.J. seeks a ruling affirming the Circuit Court’s award of attorney’s fees. The Director responds that the Division’s decision was supported by competent and substantial evidence and asks that we affirm the Division’s decision and reverse the Circuit Court’s award of attorney’s fees on the ground, inter alia, that it was premature. Because we find that the Division’s decision was not supported by substantial evidence on the record as a whole, we affirm the Circuit Court’s judgment. With respect to the Circuit Court’s award of attorney’s fees, we agree with the Director that the award was premature and, thus, reverse and remand to the Circuit Court on this basis only.

Factual Background and Proceedings Below

P.J. is a young man in his twenties who has been diagnosed with Rubenstein-Tay-bi syndrome. Rubenstein-Taybi syndrome is a developmental disability, which causes various physical deformities, behavior disorders, and mental retardation. P.J. has an IQ of 45-50, minimal independent living skills, and cannot be left alone. On May 10, 2002, P.J., through his father, John Hutchings, applied to the Division of Mental Retardation and Developmental Disabilities (“DMRDD”) of the Department of Mental Health for funding for services through the Medicaid HBCS waiver program. The HBCS waiver program is designed to provide support services to mentally retarded or developmentally disabled individuals who otherwise would require services in a nursing home or an intermediate care facility for the mentally retarded.

On May 17, 2002, Kathleen Hopkins, Assistant Director, St. Louis Regional Center for Developmental Disabilities, sent Mr. Hutchings an “official memorandum” regarding “Notice of Eligibility Status for the MRDD Medical Home and Community Based Waiver. Effective Date 5/15/02.” In this memorandum, Ms. Hopkins advised that P.J. was eligible for a waiver effective May 15, 2002. However, by the same correspondence, Ms. Hopkins also informed Mr. Hutchings that, because of a lack of funds, the DMRDD’s St. Louis Regional Center was unable to “service additional individuals.” According to Ms. Hopkins’ correspondence, rather than issuing the waiver, the DMRDD placed P.J. on a 166 person waiting list. In addition, Ms. Hopkins’ memorandum advised that movement off the waiting list depended upon “prioritized need,” with “Priority I status” given to the homeless, individuals whose physical, emotional or mental health is in jeopardy, and individuals who are evaluated as being a threat to “self or others.”

Following receipt of the May 17 correspondence, Mr. Hutchings requested a hearing on the DMRDD’s refusal to issue a waiver slot. On September 16, 2002, Mr. Hutchings received a hearing before á hearing officer for the Division of Legal Services. The hearing officer identified the issue as the Division’s decision to render P.J. eligible to participate in the waiver program and placing him on the waiting list “due to lack of [SJtate funding.”

The agency called two witnesses, Ms. Hopkins and Kay Green, the Department of Mental Health’s Federal Programs Director for the DMRDD. Ms. Hopkins, who sent the May 17 “official memorandum” to Mr. Hutchings, testified that she was unaware of any priority criteria in effect when she received Mr. Hutchings’ request, had contacted the “Central Office” to determine how to respond, and was instructed to place P.J. on a waiting list.

Ms. Green testified that Missouri submitted an application to the Centers for Medicare and Medicaid Services (“CMS”) for the purpose of lowering the number of individuals eligible to be served by the waiver program for the fiscal year beginning July 1, 2002. Specifically, Missouri sought to reduce the number of individuals to be served during the Fiscal Year 2002 from 8,545 to 8,147. The Missouri Department of Social Services stated in correspondence sent to CMS on March 21, 2002, that “[tjhese changes are requested due to shortfalls in the [Sjtate’s projected budget collections that resulted in appropriation withholdings this current year, and anticipated appropriation reductions for the fiscal year that begins July 1, 2002.” CMS responded to Missouri’s request through correspondence received by the Department of Social Services on May 17, 2002, and approved the reduction in waiver slots effective July 1, 2002.

Ms. Green provided testimony and documentation indicating that there were available unfilled waiver slots as of the date the DMRDD declared P.J. eligible for a waiver, but refused to issue a slot. In addition, according to Ms. Green’s evidence, at least 49 individuals obtained waiver slots between May 15, 2002, and July 1, 2002. Finally, Ms. Green testified that the new criteria for grant of a waiver slot were effective as of July 1, 2002.

Following the hearing, the Director of the Division issued a Decision and Order concluding that the Division placed P.J. on a waiting list “due to lack of State funding” and affirming the Division’s action in placing P.J. on a waiting list. P.J. thereafter appealed to the Circuit Court, pursuant to Section 208.100, R.S.Mo.2000. The Circuit Court reversed, holding that the Division’s decision was unauthorized by law, and ordering that the Director remove P.J. from the waiting list and provide him with a waiver slot. Thereafter, the Circuit Court granted P.J. attorney’s fees, pursuant to Section 536.087, R.S.Mo. This consolidated appeal followed.

Standard of Review

We review the agency’s decision rather than the judgment of the Circuit Court. Hohensee v. Division of Medical Services, 135 S.W.3d 512, 517 (Mo.App. E.D.2004). We uphold the agency’s decision unless the decision is not based on substantial and competent evidence on the whole record; is unreasonable, arbitrary, or capricious; or is an abuse of discretion. Id. at 517. We view the evidence in the light most favorable to the agency’s decision, giving the decision the benefit of all reasonable inferences. Id.

When reviewing the Division’s factual findings, “we determine whether they are supported by substantial evidence upon the record as a whole.” Bruemmer v. Mo. Dep’t. of Labor Relations, 997 S.W.2d 112, 115 (Mo.App. W.D.1999). Evidence is substantial if it is “competent evidence from which a trier of fact can reasonably decide the case.” Bedford Falls Co. v. Division of Employment Sec., 998 S.W.2d 851, 857 (Mo.App. W.D.1999). Witnesses’ conclusions, where devoid of any factual support, do not rise to the level of substantial and competent evidence. State ex rel. Church’s Fried Chicken v. Board of Adjustment, 581 S.W.2d 861, 865 (Mo.App.1979). Nor is evidence substantial where a reasonable mind would not accept it as sufficient to support a particular conclusion, even when granting all reasonable inferences. Jones v. Mo. Highway & Transp. Com’n, 878 S.W.2d 521, 523 (Mo.App.S.D.1994).

Our review of the trial court’s award of attorney’s fees and expenses is limited to determining whether the trial court’s determination was arbitrary and capricious, unreasonable, unsupported by competent and substantial evidence, made contrary to law, or in excess of the court’s jurisdiction. State ex rel. Div. of Transp. v. Sure-Way Transp., Inc., 948 S.W.2d 651, 656 (Mo.App. W.D.1997). The trial court is afforded no deference in its determinations of law. Id. at 656.

Discussion

A. The Division’s Decision.

P.J. argues in his first point that the Division’s decision affirming the action placing him on a waiting list for a waiver due to lack of State funding is unsupported by the record. More specifically, P.J. contends that the so-called “emergency criteria,” which the DMRDD used to deny him a waiver, for which he was otherwise eligible, were not in effect on the date of the denial. The Director responds, in circular fashion, that the denial letter sent to P.J. on May 17 states that application of the emergency criteria resulted in his denial and, therefore, the criteria existed on the date of his denial. Other than the denial letter, the record is devoid of any written documentation reflecting the existence of “emergency criteria” applicable to P.J. as of May 15, 2002.

As an initial matter, both parties have lost sight of the issue P.J. appealed to the Department of Social Services and the decision the Division rendered. The hearing officer identified the “issue being appealed,” as follows: “The agency has determined Claimant to be eligible to participate in the Mental Retardation and Developmental Disabilities (MRDD) and Home and Community-Based Services waiver effective May 15, 2002, and placed him on a waiting list due to lack of State funding.” The Division’s decision provided, in pertinent part: “Due to lack of [Sjtate funding, Claimant was placed on a waiting list ... The State does not have sufficient funds to provide services to additional individuals unless someone leaves the waiver and free [sic] up some funds to service another person based on the priority system.” Clearly, the Division decided that lack of State funds was the basis for P.J.’s placement on a waiting list. Thus, the issue to be decided here is whether competent and substantial evidence in the record supports such a finding.

The Division addressed the issue of State funding generally through testimony and documentation establishing that the State sought and received approval from CMS to reduce the number of available waiver slots for the Fiscal Year 2002 due to State budget constraints. The agency’s two witnesses, Kathleen Hopkins and Kay Green, consistently testified, and the Division found, that the approval to reduce the waiver slots was effective July 1, 2002. The DMRDD, however, declared P.J. to be eligible for a waiver on May 15, 2002, at least six weeks prior to the effective date of the reduction in waiver slots.

The only evidence the Division presented with respect to the impact of State funding specifically on P.J. was a comment from Ms. Green: “The reason it’s my understanding that the reason that Mr. Hutchings [sic] son was not assigned a waiver slot was not based upon that we did not have a slot, it was based upon we did not have available funding.” The Division provided no factual support for this statement beyond Ms. Green’s conclusory remark.

The Division testimony with respect to the priority criteria supported the conclusion that the policy was not in effect on May 15, 2002, the date P.J. was declared eligible for a waiver slot. Ms. Hopkins, the Assistant Director of the St. Louis Regional Center, who responded to Mr. Hutchings’ 2002 request for a waiver with the May 17 letter declaring P.J. eligible, but placing him on a waiting list, testified that when she received P. J.’s request for a waiver in May she was unaware of any waiver prioritization process. She further testified that the substance of the May 17 letter was sent to her by the “Central Office” and she did not know the basis for it. Ms. Hopkins also testified that the criteria for waivers changed effective July 1, 2002. Ms. Green testified that the emergency waiting list was created in the spring of 2002, but the “official document” was dated July 1, 2002. In addition, the documentary record reflects that as late as June 2002 the DMRDD was conducting high-level meetings to determine how to handle the waiver program in light of budget shortfalls, but no final policy had been enacted. Comprehensive recommendations developed by the DMRDD’s “Waiver Restructure Management Advisory Team” and submitted to Dr. Anne Deaton, DMRDD’s Director, advised that:

The MRDD Waiver was renewed effective July 1, 2001, for an additional 5 years. A January 4, 2001 letter to State Medicaid Directors from CMS made it clear that once a State asks for approval to serve a set number of persons in a year, the State is obligated to make slots available for eligible persons. CMS informed States that not having sufficient funds for all of the slots approved was not a reason to deny potential participants access.

(Emphasis added.)

The testimony with respect to the availability of a slot on the date P.J. was declared eligible for a waiver was also uncon-troverted. Ms. Green clearly established that there were hundreds of waiver slots available between May and July 2002. When asked at the hearing whether adults received waivers after May 15, 2002, Ms. Hopkins responded: “Yes afraid so.”

This is not a record in which there are conflicts. Rather, all of the evidence supports the conclusion that the criteria for waivers were changed effective July 1, 2002, and that slots were available at the time the DMRDD decided P.J. was eligible. The Director’s assertion that DMRDD’s letter to P.J.’s father establishes the existence of priority criteria misses the point. The question is whether the priority criteria were applicable to P.J. on the date the DMRDD declared him eligible for a waiver slot. Because both the approved reduction in waivers and the changes in criteria for waivers were not effective until July 1, 2002, and because the DMRDD determined that P.J. was eligible for a waiver slot on May 15, 2002, and slots were available, there was no substantial evidence to support a finding that the DMRDD’s refusal to grant the waiver was due either to lack of State funding or the applicability to P.J. of emergency or priority criteria. Accordingly, we affirm the Circuit Court’s judgment reversing the Division’s decision.

B. The Circuit Court’s Award of Attorney’s Fees.

The Director contends that the Circuit Court’s award of attorney’s fees was erroneous on several grounds, including, inter alia, that the award was premature pursuant to Section 536.087.4, R.S.Mo. We agree with the Director that the Circuit Court’s fee award was premature, and, thus, we do not reach his other claims of error.

As this Court has previously noted, “[a] prevailing party in a civil action on appeal from an agency proceeding shall submit an application for fees and expenses to the court.” Lincoln County Stone Co., Inc. v. Koenig, 21 S.W.3d 142, 148 (Mo.App. E.D.2000). However, “when the state appeals the underlying merits of an adversary proceeding, no decision on the application for fees and other expenses shall be made until the underlying merits of the case have been finally determined pursuant to the appeal.” Id.; see also Sure-Way Transp., Inc., 948 S.W.2d at 658 (“[Section 536.087.4, R.S.Mo.,] prohibits a decision on the application for fees until a final and unreviewable decision is achieved.”) (internal citation omitted). Thus, while a fee application is properly filed prior to a final judgment, it “is held in abeyance until the adversarial proceeding becomes final.” Sure-Way Transp., Inc., 948 S.W.2d at 656. Here, approximately one week after the Circuit Court entered an amended judgment in favor of P.J., a hearing was held on P.J.’s application for fees. Accordingly, when the Circuit Court granted the application, the judgment was not yet final. Because “the underlying merits of the case [had not] been finally determined” as of the time the Circuit Court ruled on P.J.’s application for attorney’s fees, we find that the issue of attorney’s fees was not ripe for adjudication. Lincoln County Stone Co., Inc., 21 S.W.3d at 149.

Conclusion

The judgment of the Circuit Court with respect to the Division’s decision and order is affirmed. The Circuit Court’s judgment with respect to attorney’s fees is reversed and remanded for a hearing on the application for attorney’s fees P.J. previously filed in the Circuit Court and any new application filed in connection with the appeal.

KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ„ Concur.

      . Although the Director hied the notice of appeal from the Circuit Court’s reversal of the Division’s decision, P.J. files the appellant’s brief and reply brief, and the Director files the respondent’s brief, pursuant to Rule 84.05(e). Pursuant to Rule 84.04(j), the Director’s respondent’s brief also contains his arguments on appeal from the award of attorney's fees.

      . The DMRDD denied P.J.’s previous November 2001 application because, at that time, PJ.’s needs were being met by the Special School District.

      . All further statutory references are to R.S.Mo.2000 unless otherwise noted.

      . Ms. Green also testified that the State’s request was retroactive until July 1, 2001. However, even if retroactive, Medicaid’s approval letter clearly stated that "[t]he State assures that the reduction in the number of potential participants will not create an adverse impact on current participants who will continue to have access to the same overall services existing prior to the renewal.” Thus, had P.J. been granted the waiver on May 15, when he was declared eligible, he would have been a participant and the agency could not take adverse action by virtue of the retroactive application of Medicaid's approval of the State’s reduction in waiver slots.

      . The Division did not place the "official document” into the record.

      . We disagree with the Director's contention that the Circuit Court’s relief constitutes a usurpation of agency authority. The DMRDD, not the Circuit Court, determined P.J. was eligible for a waiver slot. The Director has provided us with no authority for the proposition that in the absence of a properly supported decision to place P.J. on a waiting list, the Division can deny him a waiver slot. The Director has never claimed that P.J. is not eligible or that waiver slots are not available, only that the emergency criteria, which we find, based on this record, do not apply to P.J., require his placement on a waiting list. As documentation created by the DMRDD and submitted to the hearing officer establishes, "once a State asks for approval to serve a set number of persons in a year, the State is obligated to make slots available for eligible persons.”

      . Separate from the application of attorney’s fees filed in the Circuit Court, P.J. has filed in this Court a "Notice of Intent to Seek Attorney Fees on Appeal.” Pursuant to Section 536.087, R.S.Mo, a prevailing party may file an application for reasonable fees and expenses within thirty days of final judgment in a civil case.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    David HAMMOND, Appellant, v. STATE of Missouri, Respondent.
    No. ED 83935.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 7, 2004.
    Ellen H. Flottman, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Leslie E. McNamara, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J„ BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

David Hammond (“Movant”) appeals the denial of his Rule 24.035 post-conviction motion after an evidentiary hearing. Mov-ant pleaded guilty to one count of burglary in the second degree, Section 569.170, RSMo 2000, and one count of felony stealing, Section 570.030, RSMo 2000. Movant was sentenced as a prior and persistent offender to ten years imprisonment, subject to admission into a long-term drug treatment program. Movant was admitted into the treatment program upon delivery to the Department of Corrections, but was terminated from the program approximately thirteen days later. Subsequently, Movant filed a motion for post-conviction relief pursuant to Rule 24.035, which the court denied after a hearing.

Movant’s sole point on appeal argues the motion court clearly erred in failing to find his post-conviction counsel abandoned him during the evidentiary hearing by failing to investigate and present evidence relating to his mental illness, which he alleges was his only viable post-conviction claim.

We have reviewed the briefs of the parties, the legal file, and the transcripts and find the motion court’s decision was not clearly erroneous. Rule 24.035(k). An opinion reciting the detailed facts and restating the principles of law would have no precedential value. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 84.16(b).


text:
    Stuart TUCKER, Appellant, v. Michelle ZLOTOPOLSKI, Respondent.
    No. ED 83750.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 7, 2004.
    Bruce F. Hilton, Kirkwood, MO, for appellant.
    Jay D. Fisk, Chris E. Rollins, St. Louis, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Stuart Tucker (“Father”) appeals from the trial court’s judgment awarding primary residential custody of his child, A.T., (“the Child”) to the Child’s Mother, Michelle Zlotopolski (“Mother”), implementing a parenting plan, and ordering Father to pay child support in the amount of $667.00 per month.

Father raises three points on appeal. First, Father alleges the trial court erred in awarding Mother primary residential custody because the trial court misapplied Section 452.375.6, RSMo 2002, and the judgment was against the weight of the evidence. Second, Father argues the trial court erred in calculating the award of child support because it should have imputed income to Mother. Third, Father claims the trial court erred by failing to adopt a parenting plan that complied with the statutory requirements of Section 452.310.7, RSMo 2002.

We have reviewed the briefs of the parties, the legal file, and the transcript on appeal. Mother’s motion to strike Father’s brief is denied. We find the trial court’s judgment was supported by substantial evidence. Besancenez v. Rogers, 100 S.W.3d 118, 122 (Mo.App. E.D.2003). An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for the order affirming the judgment pursuant to Rule 84.14(b).


text:
    Lajuan HAYES, Movant/Appellant, v. STATE of Missouri, Defendant/Respondent.
    No. ED 84584.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 7, 2004.
    Timothy Joseph Forneris, St. Louis, MO, for appellant.
    Deborah Daniels, Daniel Neal McPherson, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Lajuan Hayes (Movant) appeals from a judgment denying his request for post-conviction relief under Rule 29.15 without an evidentiary hearing. Movant claims ineffective assistance of trial counsel for failing to request that the trial court include the second paragraph from MAI-CR3d 319.02 in the first-degree assault verdict director and for failing to submit a jury instruction on second-degree assault based upon sudden passion arising out of adequate cause. We have reviewed the briefs of the parties and the record on appeal and conclude that because Movant’s motion did not allege facts, not refuted by the record, showing that trial counsel’s performance did not conform to the degree of skill, care and diligence of a reasonably competent attorney, Movant was not entitled to an evidentiary hearing, and the motion court’s findings of fact and conclusions of law are not clearly erroneous. State v. Brooks, 960 S.W.2d 479, 497 (Mo. banc 1997); Rule 29.15(k). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).

      . All rule references are to Mo.R.Crim.P. 2004, unless otherwise indicated.


author: GLENN A. NORTON, Judge.

text:
    Judy CRUMBAKER, Appellant, v. Albert ZADOW and The American Insurance Company, Respondents.
    No. ED 84398.
    Missouri Court of Appeals, Eastern District, Southern Division.
    Dec. 7, 2004.

      Susan K. Roach, Shaun M. Falvey (co-counsel), Clayton, MO, for appellant.
    Richard S. Bender, David G. Bender (co-counsel), Clayton, MO, for respondents.
   OPINION

GLENN A. NORTON, Judge.

Judy Crumbaker appeals the judgment dismissing her claims for suit on a notary bond and infliction of emotional distress and denying her motion for leave to amend the petition. We reverse and remand.

I. BACKGROUND

Crumbaker filed a petition against Albert Zadow, a notary public, and his surety, The American Insurance Company (collectively “Zadow”), alleging that Zadow falsely certified that several quitclaim deeds had been executed in person. The deeds transferred several pieces of real estate from Leslie Rees (“the grantor”) to his former wife, Eleanor Finneran (“the grantee”). The grantor had since died, and Crumbaker was an heir to his estate. Crumbaker also alleged that Zadow’s conduct caused her emotional distress.

Zadow moved to dismiss the petition, arguing that (1) Crumbaker lacked standing because she had no interest in the properties transferred by the deeds, some of which already had been awarded to the grantee in a decree dissolving her marriage to the grantor and (2) the suit could not proceed without the grantee because she was a necessary and indispensable party who could not be joined in the suit by virtue of a release agreement. At the trial court’s request, the parties filed copies of the dissolution decree and the release. Crumbaker also sought leave to amend the petition to join the grantee as an additional defendant. Without explanation, the court granted Zadow’s motion to dismiss and denied Crumbaker’s motion to amend.

II. DISCUSSION

We will affirm this judgment if it can be sustained on any ground alleged in the motion to dismiss. Farm Bureau Town and Country Insurance Company of Missouri v. Angoff, 909 S.W.2d 348, 351 (Mo. banc 1995). The judgment cannot be sustained on the standing ground, and proper procedure was not followed for it to have been sustained on the necessary and indispensable party ground. Thus, we must reverse and remand.

A. Standing

“Reduced to its essence, standing roughly means that the parties seeking relief must have some personal interest at stake in the dispute, even if that interest is attenuated, slight or remote.” Ste. Genevieve School District R II v. Board of Aldermen of City of Ste. Genevieve, 66 S.W.3d 6, 10 (Mo. banc 2002). This “personal stake” is shown by alleging a threatened or actual injury resulting from the challenged action. Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 53 (Mo. banc 1999); City of St. Louis v. K & K Investments, Inc., 21 S.W.3d 891, 895 (Mo.App. E.D.2000). We determine standing as a matter of law based on the petition and any other non-contested facts accepted as true by the parties at the time of the motion to dismiss. Home Builders Association of Greater St. Louis, Inc. v. City of Wildwood, 32 S.W.3d 612, 614 (Mo.App. E.D.2000).

According to the petition, Zadow falsely certified that the deeds had been executed in his presence. The deeds were attached to and incorporated into the petition; they quitclaimed two properties on Monroe street, one on Marvin street and another on Burns street from the grantor and grantee, as husband and wife, to the grantee solely. It appears to have been uncontested at the time of the motion that the grantor had died and that Crumbaker was an heir to his estate. Also before the trial court at time of motion were (1) the dissolution decree, in which the court awarded the Monroe properties to the grantor and the Marvin property to the grantee, and (2) an agreement between the grantee, the grantor’s estate, Crumbaker and the estate’s other personal representative, in which the grantee agreed to convey the Marvin property to the estate and which also contained the following release:

In consideration of the transfers set forth hereinabove, the parties hereto, for themselves, them representatives, them personal representatives, their heirs, officers, directors, employees, successors and assigns, their spouses, children and heirs as the case may be, do hereby, for themselves and all others, fully and forever remise, release and discharge the other of and from any and all causes of action of any type whatsoever, from the beginning of the world to the date of the execution of this Agreement, it being the intent and desire of the parties to fully and forever discharge each other of and from any and all causes of action of any type whatsoever.

Zadow argues that Crumbaker has no interest in the Monroe properties because title thereto had already transferred to the grantee by way of the dissolution decree and, therefore, those properties were not part of the grantor’s estate regardless of the falsely notarized deed. Moreover, Za-dow contends, Crumbaker has no standing to bring claims relating to any of these properties by virtue of the release. We disagree.

First, the dissolution decree did not automatically convey title. If the proceedings are conducted properly and the language of the decree is sufficient, then title to real property may be conveyed in a dissolution decree without further action by the parties. DeWitt v. American Family Insurance Co., 667 S.W.2d 700, 706 (Mo. banc 1984). But a decree that “merely orders the parties to do certain acts and does not automatically convey the property by its plain language” is insufficient to effectuate a conveyance without an affirmative act by the parties. Id. Here, the decree plainly and expressly required the parties to “execute the needed papers to affect such disposition” of property and to provide legal descriptions. Thus, the grantor’s interest in the Monroe properties remained unchanged by the issuance of the dissolution decree. Crumbaker, as his heir, has a personal stake in the validity of the deeds transferring those properties out of the grantor’s estate. Zadow does not dispute that the Marvin and Burns properties would have been part of the grantor’s estate but for the deeds. Thus, Crumbaker has a similar personal stake in the validity of those deeds.

Second, the release does not nullify her interest in these properties or impede her ability to seek relief for injury to that interest. Interpretation of a release is governed by the same principles applicable to any other contractual agreement, and the primary rule of construction is to give effect to the parties’ intent, which is to be determined solely from the four corners of the contract itself. Andes v. Albano, 853 S.W.2d 936, 941 (Mo. banc 1993); Mid Rivers Mall, L.L.C. v. McManmon, 37 S.W.3d 253, 255 (Mo.App. E.D.2000). On its face, this release plainly and unambiguously does not apply to claims against Zadow and the surety, who were not parties to the agreement and have not been shown to be otherwise subject to its terms or intended to be included in the scope of the release. The release is simply irrelevant to Crumbaker’s standing in this case.

Crumbaker has standing to bring these claims, and the motion to dismiss should not have been sustained on that ground.

B. Necessary and Indispensable Party

After eliminating the propriety of granting the motion to dismiss based on standing, the only other ground raised in the motion on which this judgment could be based is the failure to join a necessary and indispensable party under Rule 52.04. We will affirm a trial court’s decision under this rule unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it misinterprets or misapplies the law. See Vahey v. Vahey, 120 S.W.3d 288, 291 (Mo.App. E.D. 2003) (citing Murphy v. Carrón, 536 S.W.2d 30, 32 (Mo. banc 1976)).

Under Rule 52.04, if the court determines that a necessary party has not been joined in the action, then “the court shall order that the person be made a party.” Rule 52.04(a) (emphasis added). If it is not feasible to join the necessary party, then “the court shall determine” whether the party is indispensable — that is, whether in “equity and good conscience the action should proceed without the necessary party or be dismissed.” Rule 52.04(b) (emphasis added). There is nothing in the record to indicate that the court followed this procedure or made these determinations in this case. The failure to follow this mandatory procedure and make the required determinations is reversible error. See Ward v. Bank Midwest, NA, 871 S.W.2d 649, 651 (Mo.App. W.D.1994); Claas v. Miller, 806 S.W.2d 141, 144 (Mo.App. W.D.1991). Likewise, it was an abuse of discretion to deny Crumbaker’s motion for leave to amend her petition to add the grantee as a defendant in these circumstances. On remand, if the court determines that the grantee is not a necessary party, then the motion to dismiss must be denied. If the court agrees that the grantee’s presence in the lawsuit is necessary, then she must be joined under Rule 52.04(a). If she cannot be joined, then the court must determine whether she is indispensable under the factors set forth in Rule 52.04(b). The case can only be dismissed under this rule if the grantee is found to be necessary, unable to be joined and indispensable.

III. CONCLUSION

The judgment is reversed, and the case is remanded for disposition consistent with this opinion.

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

      . Crumbaker's motion to strike the respondents’ brief is denied. Although we have considered the brief, we find it wholly unpersuasive.


text:
    Kyle Everret PHILLIPS, Respondent, v. DIRECTOR OF REVENUE, State of Missouri, Appellant.
    No. ED 84361.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 7, 2004.
    Jeremiah W. (Jay) Nixon, Atty. Gen., James A. Chenault, III, Jefferson City, MO, for appellant.
    Branson L. Wood, III, Hannibal, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

The Director of Revenue (“the Director”) appeals from the trial court’s judgment reinstating the driving privileges of Kyle Everret Phillips (“Phillips”). The Director argues the trial court erred in finding the breathalyzer test was improperly administered pursuant to 19 CSR 25-30.060 and its judgment misapplied of the law.

We have reviewed the briefs of the parties and the record on appeal and no error of law appears. The judgment of the trial court is affirmed. No precedential or jurisprudential purpose would be served by an opinion reciting the detailed facts and restating the principles of law. However, a memorandum has been provided to the parties, for their use only, setting forth the reasons for this order. We affirm pursuant to Rule 84.16(b).


text:
    Samantha RANGEL, a Minor By and Through Her Mother and Next Friend, Constance RANGEL, Appellant, v. SUPERIOR OF MISSOURI, INC., d/b/a, Superior Services-St. Louis, Respondent.
    No. ED 83806.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 7, 2004.
    James P. Leonard, St. Louis, MO, for appellant.
    Frank N. Gundlach, Cynthia A. Petra-cek, St. Louis, MO, for respondent.
    Before GARY M. GAERTNER, SR:, P.J., SHERRI B. SULLIVAN, J., BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Samantha Rangel (“Daughter”), a minor by and through her mother and next friend, Constance Rangel, appeals from the trial court’s judgment in favor of Superior of Missouri, Inc., d/b/a Superior Services-St. Louis (“Superior”), on Daughter’s petition to enforce settlement. Daughter argues the trial court erred in finding there was no meeting of the minds between the parties because the settlement proposal prepared by Superior clearly and unambiguously offered to settle Daughter’s claim, which Daughter accepted.

We have reviewed the briefs of the parties, the record on appeal and exhibits, and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. The trial court’s judgment is affirmed pursuant to Rule 84.16(b). The parties have been furnished with a memorandum for their information only, setting forth the reasons for the order affirming the judgment pursuant to Rule 84.16(b).

      . Superior’s Motion for Damages for Frivolous Appeal, which was ordered taken with the case, is hereby denied.


text:
    BUCKEYE RETIREMENT CO. L.L.C., LTD., Appellant, v. Bessie ROOKS, Respondent.
    No. ED 83809.
    Missouri Court of Appeals, Eastern District, Division Four.
    Dec. 7, 2004.
    Thomas J. Fritzlen, Jr., Kansas City, MO, for appellant.
    Craig Steven Redler, St. Louis, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN, J., and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Buckeye Retirement Co., L.L.C., Ltd. (“Plaintiff’) appeals the judgment finding that Bessie Rooks (“Defendant”) was not liable for payment of amounts owed to Plaintiff under a retail installment contract. We have reviewed the briefs of the parties and the record on appeal and find no error of law. An extended opinion would serve no jurisprudential purpose. We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 84.16(b).


text:
    In the Interest of A.V. and A.V.
    No. ED 84162.
    Missouri Court of Appeals, Eastern District.
    Dec. 7, 2004.

      Laurence G. Schmidt, Festus, MO, Grant Johnston, Crystal City, MO, for appellant.
    Theodore R. Allen, Jr., Hillsboro, MO, for respondent.
    Lisa Page, Festus, MO, Guardian Ad Litem for juveniles.
    Before KATHIANNE KNAUP CRANE, P.J., GLENN A. NORTON, J. and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Father appeals the judgment terminating his parental rights with respect to A.V. and AN.

We have reviewed the parties’ briefs and the record on appeal and find no error of law. The judgment is supported by substantial evidence and is not against the weight of the evidence. An extended opinion would have no precedential value. We affirm the judgment under Rule 84.16(b).


author: LAWRENCE E. MOONEY, Presiding Judge.

text:
    STATE of Missouri ex rel. MCDONALD’S CORPORATION, Relator, v. The Honorable Paula BRYANT, Judge of the Circuit Court of the City of St. Louis, Missouri, Division 27, Respondent.
    No. ED 84840.
    Missouri Court of Appeals, Eastern District, Writ Division Two.
    Dec. 7, 2004.

      Mark F. Mueller, St. Louis, MO, for relator.
    Craig S. Redler, St. Charles, MO, for respondent.
   LAWRENCE E. MOONEY, Presiding Judge.

Relator, McDonald’s Corporation, filed its petition for a writ of prohibition or, in the alternative, a writ of mandamus. Relator argued that the respondent judge erred in not granting its motion to transfer venue. We issued a preliminary order in prohibition. Because the plaintiff in the underlying action, Martin McQuiller, failed to file a reply to relator’s motion to transfer venue, respondent had a duty to transfer the case to a court where venue is proper. The preliminary order in prohibition is made absolute.

In November 2003, McQuiller filed his action against relator in an associate circuit division of the City of St. Louis Circuit Court. McQuiller alleged that he slipped and fell at relator’s restaurant located in St. Louis County. The petition is captioned “PERSONAL INJURY UNDER $25,000.” Relator was served and the return date of the summons was May 25, 2003. On that date, relator specially appeared and filed a motion to transfer venue with a supporting affidavit. Relator alleged in the motion that venue was improper in the City of St. Louis because it does not “have or usually keep an office or agent for the transaction of their usual and customary business, or operate any restaurant, in the City of St.Louis,” and that the cause of action accrued in St. Louis County. Relator further alleged that, under section 508.040, venue is only proper in St. Louis County., Respondent continued the matter and, on June 10, 2004, relator’s motion was called, heard, and submitted. McQuiller never, filed a reply to relator’s motion to transfer venue. On June 16, 2004, respondent denied relator’s motion. Relator filed a petition for writ of prohibition or, in the alternative, a writ of mandamus. This court issued a preliminary order in prohibition-.

Chapter 517 sets out provisions relating to the practice and procedure in civil cases originally filed in an associate circuit division. Becker Glove International Inc. v. Dubinsky, 41 S.W.3d 885, 887 (Mo. banc 2001). Here, the action was originally filed in an associate circuit division and the sum demanded did not exceed $25,000. Under section 517.011.1(1), the provisions of Chapter 517 apply here.

Section 517.061 states:

Change of venue and change of judge shall be for the same reasons and in the same manner as provided in the rules of civil procedure except that the application shall be filed not later than five days before the return date of the summons. If the cause is not tried on the return date but continued and if all parties are given fifteen days’ advance notice of a trial setting before the particular judge, then any application for change of judge or change of venue shall be made not later than five days before the date set for trial.

Respondent argues that relator’s motion to transfer was untimely because it was not filed within five days of the return date of the summons. But the motion to transfer must be filed within five days of the return date only when the case is tried on that date. Here, the case was not tried on the return date. The second part of section 517.061 sets forth when a motion to transfer must be filed when the case is not tried on the return date. In the present case, relator filed its motion to transfer on the return date. Under the second part of section 517.061, the motion was timely.

We next address McQuiller’s failure to file a reply to relator’s motion to transfer. Rule 51.045 provides procedures for replying to a motion to transfer that alleges improper venue. This rule stated in part that “[wjithin ten days after the filing of a motion to transfer for improper venue, an opposing party may file a reply denying the allegations in the motion to transfer ... if no reply is filed, a transfer of venue shall be ordered to a court where venue is proper....” “The plain and ordinary meaning of Rule 51.045 mandates a transfer of venue when no reply is filed by the opposing party, to a motion to transfer venue that alleges venue is improper.” State ex rel. Vee-Jay Contracting Co. v. Neill, 89 S.W.3d 470, 472 (Mo. banc 2002). A judge must transfer venue if the opposing party does not reply to a proper motion to transfer venue. Id. “This is but an application of the general rule that failure to file a required answer admits the allegations of the preceding pleading.” Id. If Rule 51.045 applies here, then respondent had a duty to transfer the case to a court where venue is proper.

Section 517.021 provides that the rules of civil procedure “shall apply to cases or classes of cases to which this chapter is applicable, except where otherwise provided by law.” In addition, Rule 41.01(d) likewise states that “[c]ivil actions pending in the associate circuit division shall be governed by Rules 41 through 101 except where otherwise provided by law.” Moreover, section 517.061 states that, other than the timing of the application to transfer, change of venue “shall be for the same reasons and in the same manner as provided in the rules of civil procedure.” There is no separate or different procedure set forth in section 517.061 or any other provision of Chapter 517 that addresses replies to motions to transfer venue. Thus, Rule 51.045 applies here. See Parkside Wireworks v. MDG Management Corp., 69 S.W.3d 133, 135-36 (Mo.App. E.D.2002).

Respondent argues that although no formal reply to relator’s motion to transfer was filed, pleadings under Chapter 517 are informal and therefore McQuiller’s oral argument on June 10, 2004 was sufficient. Even assuming oral argument was sufficient, it was not made within ten days after relator filed its motion to transfer, May 25, 2004, as was then required under Rule 51.045(b). Respondent also contends

that it is “common practice” that parties are not required to file responsive pleadings in the Associate Circuit Division of the City of St. Louis Circuit Court.

Section 517.031.1 does indeed provide that “[t]he pleadings of the petition shall be informal unless the court in its discretion requires formal pleadings.” In addition, section 517.031.2 states that:

Affirmative defenses, counterclaims, and cross claims shall be filed in writing not later than the return date and time of the summons unless leave to file the same at a later date is granted by the court. No other responsive pleading need be filed. If no responsive pleading is filed, the statements made in the petition, affirmative defenses, counterclaims or cross claims shall be considered denied except as provided in section 517.132.

It has been recognized that certain provisions of Chapter 517 reflect a statutory directive that proceedings in associate circuit courts are intended to be less formal than circuit court proceedings. Exchange National Bank v. Wolken, 819 S.W.2d 45, 48 (Mo. banc 1991). But, as previously discussed, section 517.021 provides that the rules of civil procedure apply “except as where otherwise provided by law.” Therefore, the informal nature of associate circuit proceedings notwithstanding, under section 517.021, Rule 51.045 applies.

Here, McQuiller failed to file a response to relator’s motion to transfer. The preliminary order in prohibition is made absolute, and respondent is ordered to refrain from all action except to transfer the case to a proper venue.

CLIFFORD H. AHRENS, J., and BOOKER T. SHAW, J., concur.

      . Section 508.040 provides that “[s]uits against corporations shall be commenced either in the county where the cause of action accrued ... or in any county where such corporations shall have or usually keep an office or agent for the transaction of their usual and customary business.”

      . All statutory references are to RSMo.2000.

      . Other than a memorandum stating that the motion to transfer was called, heard, and submitted on June 10, 2004, no other record of this hearing was filed with this Court.

      . The Missouri Supreme Court has adopted a new Rule 51.045 that changes the time to file a motion to transfer venue and the time to reply. The new rule did not become effective until July 1, 2004. The new rule contains nearly identical language to the previous rule that applies if a reply is not filed. The new rule states that "if no reply is filed, the court shall order a transfer of venue to a court where venue is proper.”


author: KENNETH W. SHRUM, Judge. JEFFREY W. BATES, Chief Judge, JOHN E. PARRISH, Presiding Judge,

text:
    STATE of Missouri ex rel., Tisha Joy MOORE, Relator, v. Honorable Stephen R. SHARP, Respondent.
    No. 26089.
    Missouri Court of Appeals, Southern District, Division Two.
    Dec. 13, 2004.

      Thomas R. Carnes, St. Louis, for relator.
    No Brief filed for respondent.
   KENNETH W. SHRUM, Judge.

PRELIMINARY ORDER MADE ABSOLUTE

This is an original action in prohibition in which Relator seeks to prohibit the Honorable Stephen R. Sharp (Respondent) from taking further action in a dissolution of marriage case filed in the circuit court of Stoddard County, Missouri, and a declaration that the circuit court case was dismissed December 18, 2003. The circuit court case is Tisha Joy Moore v. Scott Lynn Moore, case No. 02CV762553. Relator is the petitioner in that case. A preliminary order was entered by this court. See Rule 97.04. For the reasons that follow, the preliminary order is made absolute.

On July 1, 2002, Relator filed her petition for dissolution of marriage in case No. 02CV762553. A November 20, 2002, docket entry in that case recites:

“By agreement of the parties, Commissioner Phillip Britt is designated to conduct proceedings and make findings and recommendations to the undersigned. Case set for trial at 9:00 a.m. January 6.”

The case was continued from its January 6, 2003, setting and rescheduled twice. Then, a June 2, 2003, docket entry reads:

“Hearing Held
“Parties appear in person and with counsel. Guardian ad litem, James Tweedy, also appears. Evidence adduced.
“Cause Taken Under Advisement
“Cause taken under advisement for submission of findings and recommendations to Hon. Stephen Sharp.”

While the case was thus pending — without Commissioner Britt having submitted findings and recommendations to Respondent — the state Division of Child Support Enforcement (“DCSE”) filed a motion to intervene in the dissolution case. The motion was granted August 20, 2003.

Next, Relator’s dissolution action was consolidated for trial with an action for judicial review of an administrative child support enforcement action the DCSE brought against Scott Lynn Moore. See n.1. That case is Stoddard County circuit court case No. 03MC761242-02.

With Relator’s case in this posture, i.e., consolidated for purpose of trial with the DCSE review action, but without any cross-claim for relief filed by Relator’s spouse, Relator filed a voluntary dismissal of No. 02CV762553, without prejudice. This was filed December 18, 2003.

On February 5, 2004, the circuit court of Stoddard County entered the following order:

“By reason of the Court’s earlier order consolidating [case No. 02CV762553] with 03MC761242-02, [Relator in this action for prohibition] may not voluntarily dismiss [case No. 02CV762553] without consent. It is therefore ordered that the case not be dismissed. Case is set for trial at 9:00 a.m. Monday, February 23, 2004.”

Relator thereafter filed this action in prohibition.

Relator’s point relied on contends she is entitled to an order prohibiting Respondent from taking further action in the Stoddard County dissolution action; that “[Respondent is without jurisdiction in that action, notwithstanding the fact that the dissolution action had been consolidated with a separate petition for review of a child support enforcement order, in that [RJelator dismissed the dissolution action without prejudice on December 18, 2003.” This court agrees.

Rule 67.02(a)(2) provides that, with exceptions not present here, “a civil action may be dismissed by the plaintiff without order of the court anytime ... [i]n cases tried without a jury, prior to the introduction of evidence.” (Emphasis supplied.) As explained in P.R. v. R.S., 950 S.W.2d 255[1,2] (Mo.App.1997):

“Once a plaintiff dismisses a case pursuant to Rule 67.02(a), ‘it is as if the suit were never brought.’ The trial court may take no further action as to the dismissed action and any step attempted is a nullity. The trial court loses jurisdiction at the time of dismissal and no appeal can be taken from the dismissal.”

Id. at 256 (citations omitted). Moreover, “[a] voluntary dismissal is effective on the date it is filed with the court.” Kirby v. Gaub, 75 S.W.3d 916, 917 (Mo.App.2002).

In refusing to recognize Relator’s claimed right to voluntarily dismiss her case without consent, Respondent appears to rely on State ex rel. Keeling v. Randall, 386 S.W.2d 67 (Mo.banc 1965). There, a wife’s action for personal injuries was consolidated by the trial court with her husband’s derivative suit for loss of his wife’s services. Husband then attempted to dismiss his case without his wife also dismissing. That effort was rejected by the Supreme Court of Missouri. In so holding, the court noted that consolidation there had occurred under Rule 66.01(b)(1965) (a rule allowing consolidation of actions involving a “common question of law or fact”), and not per Rule 67.01 (1965)(prede-cessor to Rule 67.02(a)). Continuing, the court wrote:

“As said in Sec. 941, Federal Practice and Procedure, Barron and Holtzoff: ‘It is obviously in the interests of justice not to try issues piecemeal whenever it is reasonably possible to do otherwise.’ We consider this particularly applicable in husband and wife suits based on the same single occurrence which are so necessarily interrelated and dependent. ... Our ruling in this case is confined to the situation presented, in which one spouse has sued for personal injuries and the other for loss of services, and we hold that after such an order of consolidation has been made by the court and while it remains in effect one plaintiff may not be allowed to dismiss without prejudice.”

Id. at 68-69 (emphasis supplied).

To recount the limited scope of the Keeling case is to demonstrate its inapplicability here. The claims in the consolidated cases here do not stem from a “single occurrence;” they are not “necessarily interrelated and dependent;” the facts to be proven are different in each case; and separate trials will not result in trying issues piecemeal.

Thus, in Relator’s case she was seeking dissolution of her marriage and custody and support for the parties’ minor children, whereas in the administrative agency review case Relator’s husband was challenging an administrative agency’s order that directed him to pay Relator a child support amount and maintain health insurance for two children, beginning August 15, 2002. The administrative order which Relator’s husband wanted reviewed was authorized by section 454.470. That section is implicated when, as here, “a court order has not been previously entered.” Id. The fact that an administrative agency order was entered, however, did not deprive the thirty-fifth judicial circuit from determining the support obligation of Relator’s husband. See section 454.501. The court’s adjudication of child support would “supersede the director’s order as to support payments due subsequent to the entry of the order by the court, but ... not affect any support arrearage which may have accrued under the director’s order.” Id. Since the two actions are, for the most part, separate and not intertwined, the Keeling case and the principle espoused therein are inapposite. Respondent’s an-nouneed reason for refusing to recognize Relator’s voluntary dismissal is flawed.

We turn now to another question, namely, whether Relator was precluded by Rule 67.02(a)(2) from voluntarily dismissing her dissolution of marriage case without consent of the circuit court because of the June 2, 2003, proceeding at which evidence was adduced before drug court commissioner Britt. This court answers that question in the negative.

First, we note that the only evidence adduced (before Relator dismissed her petition) was that placed before Commissioner Britt. He is neither an associate circuit nor circuit court judge. For reasons given below, we conclude Respondent lacked authority to assign Relator’s case to the thirty-fifth judicial circuit’s drug court for any purpose, including receipt of evidence. We further find that the drug court commissioner lacked authority to hear this dissolution of marriage case under any circumstance, no matter what procedure was followed. If Sooch v. Director of Revenue, 105 S.W.3d 546 (Mo.App.2003), was rightly decided (as we believe it was) it follows that any dissolution decree entered by the circuit court based upon a. drug court commissioner’s findings and recommendations could have no legal effect when, as here, the commissioner’s authority to act was timely challenged.

Having concluded that Respondent could not enter a valid decree based on evidence heard by Commissioner Britt, it follows that evidence was never “introduced” within the meaning of Rule 67.02(a)(2); consequently, Relator was entitled to voluntarily dismiss her case without Respondent’s consent.

The general assembly’s statutorily-declared aim in authorizing the establishment and use of drug courts was to “provide an alternative for the judicial system to dispose of cases which stem from drug use.” § 478.001. Additionally, drug courts were directed to “combine judicial supervision, drug testing and treatment of drug court participants.” Id. These statements, albeit brief, are explicit expressions of legislative intent to limit the scope of authority of drug courts.

In making this observation, we do not ignore the following language in section 478.003:

“The Commissioner shall have all the powers and duties of a circuit judge, except that any order, judgment or decree of the commissioner shall be confirmed or rejected by an associate circuit or circuit judge by order entered within the time the judge could set aside such order, judgment or decree had the same been made by the judge. If so confirmed, the order, judgment or decree shall have the same effect as if made by the judge on the date of its confirmation.” (Emphasis supplied.)

Even though section 478.003 contains broad language (as italicized), we reject any suggestion that it authorizes Respondent to use the drug court commissioner as if he were a family court commissioner or authorizes the drug court commissioner to act as a family court commissioner.

“The cardinal rule of statutory construction is that the intention of the legislature in enacting the statute must be determined and the statute as a whole should be looked to in construing any part of it.” J.S. v. Beaird, 28 S.W.3d 875, 876[2] (Mo. banc 2000). Thus, although the italicized part of section 478.003 might be read — if read in isolation — as equating the power and duties of a drug court commissioner to those of a circuit judge, that language must be considered in context. See State, Mo. Dept. of Soc. Serv. v. Brookside Nursing Center, 50 S.W.3d 273, 276[3] (Mo. banc.2001). When the drug court legislation is looked at as a whole, it can only be read as giving a drug court commissioner “all the powers and duties of a circuit judge” that are required to accomplish the drug court’s purpose, i.e., “to provide an alternative for the judicial system to dispose of cases which stem from drug use,” but nothing more.

In so stating, we acknowledge that the thirty-fifth judicial circuit court is a court of general jurisdiction. However, when that court establishes and uses a drag court, it is exercising a special statutory power. In doing so, it is confined strictly to the authority given by the statute. Missouri Soybean v. Missouri Clean Water, 102 S.W.3d 10, 22[5] (Mo.banc 2003). We believe the thirty-fifth judicial circuit exceeds the authority given it by the general assembly when it attempts to use a drug court commissioner as a family court commissioner.

We are confirmed in this view by the following. First, there is the significant fact that the general assembly created “family courts” in certain counties before the drug court legislation was enacted. Because the general assembly is presumed to know the existing law when it enacts a new piece of legislation, Greenbriar Country Club v. Dir. of Rev., 47 S.W.3d 346, 352[5] (Mo.banc 2001), it is reasonable to presume that, when the general assembly enacted the drug court law, it did so with full knowledge of family court law and that not all counties had family courts, yet it did not expressly authorize assignment of Chapter 452 cases to drug courts or give drug courts any authority over Chapter 452 proceedings. Since “the express mention of one thing in a statute implies the exclusion of another,” Harrison v. MFA Mut. Ins. Co., 607 S.W.2d 137, 146 (Mo.banc 1980), State v. Cox, 836 S.W.2d 43, 46 (Mo.App.1992), we find that the general assembly, with its drag court legislation, clearly intended to limit drag court authority to one specific instance, i.e., disposal “of cases which stem from drag use.”

We are convinced that had the general assembly intended to authorize assignment of Chapter 452 cases to drag courts for trial and recommended disposition, the general assembly would have said so. Id. at 979. The fact that it did not do so supports our belief that Respondent lacked authority to assign Relator’s case to the drug court commissioner and the commissioner was without authority to act in the case in any fashion; consequently, no evidence was introduced within the meaning of Rule 67.02(a)(2).

Additional support for this view is found in Sooch, 105 S.W.3d 546. There, Missouri’s Director of Revenue (“Director”) revoked Sooch’s driving privileges. Sooch appealed Director’s decision to the eleventh judicial circuit court, seeking a trial de novo. Id. at 547. The presiding judge for that circuit assigned a drug court commissioner to hear the case. Id. The commissioner thus assigned heard the case and entered findings and recommendations that Sooch’s license be revoked for one year. An associate circuit judge timely adopted the drag court commissioner’s findings and recommendations as the judgment of the court. Sooch then appealed. The eastern district of this court held:

“[A] drug court commissioner, who is neither an associate circuit or circuit court judge, ... lacks jurisdiction to hear a trial de novo pursuant to Section 302.535. Therefore, the order entered here, after a trial de novo, has no legal effect. As such, [Sooch’s] petition remains pending in the circuit court.”

Id. at 547 (citations omitted).

In sum, the plain language of the drag court statute, application of well-established rules of statutory construction, and the Sooch case compel a finding that nothing the drug court commissioner did in this case, including receipt of evidence, had any legal effect; consequently, the “introduction of evidence” prong of Rule 67.02(a)(2) was not implicated. Since we can find no other reason why Relator was not entitled, as a matter of right, to voluntarily dismiss her petition, we make the preliminary order in prohibition absolute.

BATES, C.J., Concurs in Separate Opinion.

PARRISH, P. J., Dissents in Separate Opinion.

JEFFREY W. BATES, Chief Judge,

concurring.

I concur in the principal opinion. I write separately only to explain why I disagree with the dissent’s assertion that no writ of prohibition should issue because “the principal opinion addresses issues that are neither raised by the point relied on or jurisdictional.”

The dissent contends the issue for determination by this Court is limited to the relator’s point relied on. Ordinarily, I would agree with this general rule and concede that it applies to briefs filed with this Court after issuance of a preliminary writ of prohibition. See, e.g., State ex rel. Wilson v. Brown, 897 S.W.2d 171, 178 (Mo.App.1995). The instant case, however, is governed by Rule 84.18(a), which states:

Apart from questions of jurisdiction of the trial court over the subject matter and questions as to the sufficiency of pleadings to state a claim upon which relief can be granted or a legal defense to a claim, allegations of error not briefed or not properly briefed shall not
be considered in any civil appeal and allegations of error not presented to or expressly decided by the trial court shall not be considered in any civil appeal from a jury tried case.

(Italics added.) When a question of the trial court’s subject matter jurisdiction is involved, Rule 84.13(a) authorizes this Court to raise the issue sua sponte and decide the matter on a ground that is not preserved, briefed or argued by the parties. See Adkisson v. Director of Revenue, 891 S.W.2d 131, 132 (Mo. banc 1995). In my view, this case presents two separate questions of subject-matter jurisdiction that can and should be addressed in this prohibition action.

Rule 67.02(a)(2) authorizes a plaintiff whose civil action is tried without a jury to dismiss the case anytime “prior to the introduction of evidence.” In Garrison v. Jones, 557 S.W.2d 247 (Mo. banc 1977), our Supreme Court held that this language “refers to the introduction of evidence at the trial of the cause on the merits.” Id. at 249; see also State ex rel. Brooks Erection & Constr. Co. v. Gaertner, 639 S.W.2d 848, 849 (Mo.App.1982); Washington Univ. Med. Center Redevelopment Corp. v. Komen, 637 S.W.2d 51, 53 (Mo.App.1982). That is the nub of the problem here. In Sooch v. Director of Revenue, 105 S.W.3d 546 (Mo.App.2003), the Eastern District of this Court held that a drug court commissioner had no jurisdiction to hear a trial de novo in a driver’s license revocation case absent statutory authorization to do so. Id. at 547. Because of that lack of jurisdiction, the drug court commissioner could not hear the evidence introduced at trial and then decide the case on the merits.

More to the point, that lack of jurisdiction means a drug court commissioner cannot even hear the evidence on the merits and then enter a finding and recommended judgment which is later adopted by an article V judge. In Roberson v. Director of Revenue, 108 S.W.3d 744 (Mo.App.2003) a driver’s petition for judicial review was heard by a drug court commissioner. The Eastern District of this Court held that the evidence on the merits had to be heard by an associate circuit or circuit judge:

Roberson filed a petition for review, and a trial de novo was held before a drug court commissioner. The findings and recommendations of the drug court commissioner were adopted by the associate circuit court as the judgment. Sooch requires a finding in the present case that the drug court commissioner lacked jurisdiction to hear the trial de novo of Roberson’s petition for review. Therefore, in light of our decision in Sooch, we must remand the case for trial de novo before an associate circuit or circuit court judge.

Id. at 745-46. Therefore, I believe Roberson refutes the dissent’s contention that “the involvement of the official who conducted an evidentiary hearing for purposes of recommending findings to the circuit court is not a matter of jurisdictional concern .... ”

Neither State v. Ralls, 8 S.W.3d 64 (Mo. banc 1999) nor Transit Cas. Co. In Receivership v. Certain Underwriters at Lloyd’s of London, 995 S.W.2d 32 (Mo.App.1999) support a contrary conclusion. In Ralls, the Supreme Court decided a drug court commissioner could not preside over a felony jury trial, even though § 478.466 states that such a commissioner, “[sjubject to approval or rejection by a circuit judge, .... shall have all the powers and duties of a circuit judge.” Ralls, 8 S.W.3d at 64. In Transit Cas. Co., the Western District of this Court held that a circuit judge could not delegate his decision-making authority to a Special Master appointed pursuant to Rule 68.01 “because only judges comprising the courts designated in article V, section 1 of the Missouri Constitution may constitutionally exercise the judicial power.” Transit Cas. Co., 995 S.W.2d at 34. The statement in Ralls, 8 S.W.3d at 65, that “many functions might properly be delegated to a drug court commissioner subject to the review of an article V judge” appears to be obiter dictum because it was not necessary to the decision. See Martinez v. State, 24 S.W.3d 10, 16 (Mo.App.2000). In any event, I do not believe that hearing evidence on the merits, making factual findings and recommending how an article V judge should dispose of the case is one of the undefined “functions” which can be delegated to a drug court commissioner. See Roberson, 108 S.W.3d at 745-46; Transit Cas. Co., 995 S.W.2d at 34-35.

Subject-matter jurisdiction is the power to hear and determine cases of the general class to which the proceedings in question belong. Missouri Soybean Ass’n v. Missouri Clean Water Comm’n, 102 S.W.3d 10, 22 (Mo. banc 2003). Here, the drug court commissioner did not have subject-matter jurisdiction to try a dissolution action, even by consent of the parties. See Oberreiter v. Fullbright Trucking Co., 117 S.W.3d 710, 716 (Mo.App.2003) (subject matter jurisdiction cannot be conferred by consent or estoppel, and the lack thereof cannot be waived). Therefore, the evidence presented by the parties before the commissioner was a nullity and did not constitute “the introduction of evidence” within the meaning of Rule 67.02(a)(2). See Gunnett v. Girardier Bldg, and Realty Co., 70 S.W.3d 632, 642 (Mo.App.2002) (when a court lacks subject-matter jurisdiction, it has no right, power or authority to act in the matter; any action the court takes is null and void). Since no evidence had been introduced before Judge Sharp at a trial on the merits of relator’s dissolution action prior to December 18, 2003, relator was authorized by Rule 67.02(a)(2) to voluntarily dismiss her case. See Garrison, 557 S.W.2d at 249.

Once relator’s voluntary dismissal was filed, it was immediately effective without any action by the trial court. Shelter Mut. Ins. Co. v. Vulgamott, 96 S.W.3d 96, 104 (Mo.App.2003); Barnett v. Weidner, 901 S.W.2d 281, 283 (Mo.App.1995); Samland v. J. White Transp. Co., Inc., 675 S.W.2d 92, 96 (Mo.App.1984). Judge Sharp lost jurisdiction as of the date of the dismissal. Vulgamott, 96 S.W.3d at 104; Freeman v. Leader Nat. Ins. Co., 58 S.W.3d 590, 595 (Mo.App.2001). It is well settled that once a plaintiff voluntarily dismisses his or her petition:

nothing remains before the court upon which it can act; even an order reinstating the case on the trial docket at the plaintiffs request is a nullity. The legal situation is as though the suit had never been brought. No steps can be taken, and any step attempted in the dismissed suit is a nullity.

Rickman v. Coughlin, 75 S.W.3d 334, 338 (Mo.App.2002). Therefore, Judge Sharp’s order of February 5, 2004 stating that relator’s dissolution action “not be dismissed” was a nullity. In re Estate of Klaas, 8 S.W.3d 906, 909 (Mo.App.2000).

A writ of prohibition is appropriate whenever a trial court exceeds its jurisdiction. See Missouri State Bd. of Registration for Healing Arts v. Brown, 121 S.W.3d 234, 236 (Mo. banc 2003); State ex rel. Chassaing v. Mummert, 887 S.W.2d 573, 577 (Mo. banc 1994). Accordingly, a permanent writ of prohibition lies to prevent Judge Sharp from continuing his attempts to exercise jurisdiction over relator’s dissolution action, which no longer exists and must be treated as if it had never been brought.

JOHN E. PARRISH, Presiding Judge,

dissenting.

I respectfully dissent. In my opinion, the principal opinion addresses issues that are neither raised by the point relied on or jurisdictional. I would order the preliminary order in prohibition quashed.

Relator asserts one point relied on. It contends that relator is entitled to an order prohibiting the respondent judge from taking further action in the Stoddard County dissolution action, case No. 02CV762553, because “respondent is without jurisdiction in that action, notwithstanding the fact that the dissolution action had been consolidated with a separate petition for review of a child support enforcement order, in that relator dismissed the dissolution action without prejudice on December 18, 2003.” Relator contends, alternatively, that failure to grant leave to dismiss relator’s petition for dissolution was an abuse of discretion. The issue for determination by this court is that raised in relator’s point relied on. See Baker v. Empire Dist. Elec. Co., 24 S.W.3d 255, 257 (Mo.App.2000); Nat’l. Equity Resources Corp. v. Montgomery, 872 S.W.2d 533, 536 (Mo.App.1994).

No issue is raised regarding the fact that evidence had been adduced, by consent of the parties, before an official who serves as a drug court commissioner. In my opinion, the involvement of the official who conducted an evidentiary hearing for purposes of recommending findings to the circuit court is not a matter of jurisdictional concern because that official acted solely within the confines of the directive of the circuit court and did not exercise authority limited to a judicial officer. A circuit judge may delegate functions to others subject to his or her review and determination. See State v. Ralls, 8 S.W.3d 64, 65 (Mo. banc 1999); Transit Cas. Co. v. Certain Underwriters At Lloyd’s Of London, 995 S.W.2d 32, 34-35 (Mo.App.1999). That is what occurred in this case.

Trial Court’s Authority to Deny Attempt to Dismiss

A docket entry dated June 2, 2003, in relator’s Stoddard County dissolution case, case No. 02CV762553, states:

Hearing Held
Parties appear in person and with counsel. Guardian ad litem, James Tweedy, also appears. Evidence adduced.
Cause Taken Under Advisement
Cause taken under advisement for submission of findings and recommendations to Hon. Stephen Sharp!]

On December 18, 2003, the trial court noted the receipt of correspondence from relator (the petitioner in case No. 02CV762553). It reflected the filing of “Petitioner’s Discharge of Attorney Robert Mayer and Dismissal without Prejudice of Pending Dissolution Proceedings.” On February 5, 2004, the respondent circuit judge entered the order that relator could not voluntarily dismiss her dissolution of marriage case without consent, stating, “It is therefore ordered that the case not be dismissed.”

Rule 67.02(a)(2) permits cases tried without a jury to de dismissed by the party bringing the action “prior to the introduction of evidence.” Rule 67.02(b) addresses dismissal of actions that Rule 67.02(a) does not permit to be dismissed at the instance of the initiating parties. It provides such actions shall not be dismissed “except upon order of the court upon such terms and conditions as the court deems proper.”

Evidence having previously been introduced in case No. 02CV762553, relator was not entitled to dismiss her petition “except upon order of the court upon such terms and conditions as the court deems proper.” Rule 67.02(b). Although the respondent judge did not rely on Rule 67.02 as the reason dismissal was denied, a correct ruling is not to be disturbed because a wrong or insufficient reason for that ruling was given. State ex rel. Hazelwood Yellow Ribbon Committee v. Klos, 35 S.W.3d 457, 464-65 (Mo.App.2000); State ex rel. Heiserman v. Heiserman, 941 S.W.2d 768, 770 (Mo.App.1997).

Trial Court’s Discretion

Relator sought to dismiss her dissolution of marriage case some 18 months after its filing. During the time between its filing and her attempt to dismiss without prejudice, she sought continuance of the proceedings on two occasions. The respondent in the dissolution action had filed an answer, a proposed parenting plan, and a joint custody plan. There had been discovery. A hearing, discussed supra, had been held. The case was consolidated with an action for judicial review of a child support enforcement action, case No. 03MC761242-02. Whether to allow dismissal was within the discretion of the circuit court. State ex rel. J.L. Mason Group of Missouri, Inc. v. Village of Dardenne Prairie, 763 S.W.2d 727, 729 (Mo.App.1989); Schuster v. Purdun, 742 S.W.2d 226, 227 (Mo.App.1987). In my opinion, there was no abuse of discretion by the trial court’s denial of relator’s request to dismiss the dissolution action. Compare Cento v. Cento, 703 S.W.2d 595 (Mo.App.1986); Braun v. General Motors Corp., 579 S.W.2d 766, 771 (Mo.App.1979). I would quash the preliminary order in prohibition.

      . This court requested and received certified copies of the docket sheets in case No. 02CV762553 and relevant parts of a consolidated case (Stoddard County case No. 03MC761242-02). The records have been filed in this case and are judicially noticed by this court. Knorp v. Thompson, 352 Mo. 44, 52, 175 S.W.2d 889, 894[4] (1943).

      . All rule references are to Supreme Court Rules (2004), unless otherwise indicated.

      .In 1998, Missouri's general assembly authorized the creation and use of "drug courts.” §§ 478.001-006. The thirty-fifth judicial circuit court — in which Respondent is the presiding judge — opted to appoint a drug court commissioner in lieu of designating a judge of that circuit to hear drug court cases. See § 478.003. Commissioner Philip Britt is an appointee. All statutory references are to RSMo (2000), unless stated differently.

      . Rule 66.01(b)(1965) provided, inter alia, "[w]hen actions involving a common question of law or fact are pending before the court ... it may order all the actions consolidated...

      . See n.3.

      . We acknowledge that Relator's point relied on does not directly question the propriety of a drug court commissioner hearing this type of case. The absence of that claim in Relator’s point relied on is hardly surprising, however, since Respondent neither alluded to Commissioner Britt’s "evidence gathering” nor did he invoke Rule 67.02(a)(2) to support his decision that Relator could not dismiss her case. We further note that Relator twice questioned the drug commissioner's authority in filings with this court, yet Respondent never answered. In Relator’s writ petition she alleged that "assignments of domestic relations cases to a drug court commissioner are not authorized by statute and are unconstitutional, and that any actions Mr. Britt may have taken in the underlying case were unconstitutional and a nullity.” Although Relator reprised this allegation in the argument section of her brief, Respondent again left it unanswered. In any event, jurisdictional issues may be raised at any time. In re Marriage of Pierce, 867 S.W.2d 237, 238[6] (Mo.App.1993).

      .We emphasize the words "timely challenged” because of State ex rel. York v. Daugherty, 969 S.W.2d 223 (Mo.banc 1998), a case that dealt with an analogous situation. Initially in Slay v. Slay, 965 S.W.2d 845 (Mo. banc 1998), the Missouri Supreme Court ruled that documents signed by a family court commissioner were not final appealable judgments as they were not signed by a constitutionally empowered judge. After Slay, the Daugherty court clarified that any parly who failed to challenge a commissioner's ''judgment” waived the right to object to the commissioner’s authority, findings, and legal conclusions, and any party who accepted the benefits of or assumed the burdens of such a "judgment” was estopped from attacking it. 969 S.W.2d at 225[6],

      . Via section 487.080, the legislature gave "the family court ... exclusive original jurisdiction to hear and determine [certain] matters.” Included were "[a]ll actions ... governed by chapter 452, RSMo, including but not limited to dissolution of marriage.” The thirty-fifth judicial circuit, however, is not one where the legislature created family courts; consequently, the circuit court of the thirty-fifth judicial circuit has "original jurisdiction over all cases and matters, civil and criminal.” Mo. Const., art V, § 14 (1945); § 478.070.

      . Chapter 487 governing family courts was enacted in 1993, whereas the drug court legislation arose in 1998.

      . We acknowledge that Relator agreed to this procedure, i.e., the drug court commissioner hearing evidence and making findings and recommendations for presentation to Respondent for his consideration. However, parties cannot confer jurisdiction by agreement or consent. Kelch v. Kelch, 450 S.W.2d 202, 204[3] (Mo.banc 1970).

      . Certified copies of the docket sheets in Stod-dard County case No. 02CV762553 were received and have been filed in this case and, for purposes of this dissenting opinion, are judicially noticed. Knorp v. Thompson, 352 Mo. 44, 52, 175 S.W.2d 889, 894 (1943).

      . The hearing at which evidence was adduced was held before a drug court commissioner to whom the case had been assigned by agreement of the parties on November 20, 2002. It was under advisement for findings and recommendations to be provided the respondent judge.

      . Provisions similar to present Rule 67.02 were previously found in Rule 67.01. Also, prior to July 1, 2002, the rule allowed a plaintiff to dismiss a civil action without order of court prior to introduction of evidence "at the trial.” That language is not now part of Rule 67.02.

      .Rule 52 is not applicable to this action.


text:
    Fred G. FENSOM, Appellant, v. Gary KEMPKER, Respondent.
    No. WD 63866.
    Missouri Court of Appeals, Western District.
    Dec. 14, 2004.
    Appellant pro se.
    Jeremiah W. (Jay) Nixon, Attorney General, Deborah Daniels, Asst. Attorney General, joins on the briefs, Jefferson City, for Respondent.
    Before JAMES M. SMART, JR., P.J., JOSEPH M. ELLIS, and LISA WHITE HARDWICK, JJ.
   PER CURIAM.

Fred G. Fensom appeals the motion court’s order and judgment dismissing his declaratory judgment action as moot. The dismissal does not constitute a final, ap-pealable judgment. Because we lack jurisdiction, we dismiss Fensom’s appeal.

The Declaratory Judgment Action

Fred Fensom pleaded guilty to one count of forgery, § 570.090.1(1), RSMo. 2000. His motion to withdraw his guilty plea was denied. This court dismissed his appeal of that ruling on March 5, 2002. State v. Fensom, 69 S.W.3d 550 (Mo.App.2002). On April 18, 2002, the circuit court sentenced Fensom to four years in prison. Fensom was free on an appeal bond until his appeal was denied by this court. State v. Fensom, 103 S.W.3d 835 (Mo.App.2003). He began serving his sentence with the Department of Corrections on June 5, 2003.

The Department of Corrections has determined, pursuant to § 558.019.2(1), that Fensom must serve forty percent of his four-year sentence before being eligible for parole, due to a prior prison commitment. Fensom contends that this determination is in error. According to Fensom, the prior commitment was based on a 1978 conviction that resulted in a five-year sentence. The execution of that sentence was suspended, Fensom says, and he was placed on probation. Later, his probation was revoked, and the sentence was executed. Eventually, the revocation was reversed and the sentence vacated via a Rule 27.26 motion. Fensom was returned to probation status, and the prior commitment was rendered a nullity.

On November 3, 2003, Fensom filed a petition for declaratory judgment in the Cole County Circuit Court, seeking a declaration that he was already eligible for parole consideration. Fensom argued in his petition that the Department of Corrections acted improperly by deeming him ineligible for parole under § 558.019.2(1), because the probation revocation that resulted in his earlier prison commitment was eventually reversed.

On December 18, 2003, Respondent Kempker filed a motion to dismiss Fen-som’s petition as moot. Respondent argued, based upon the allegations in the petition, that the appellant “appear[ed] eligible for parole consideration” already because he had served forty percent of his sentence. Thus, argued Kempker, Fen-som already had the relief he wanted: eligibility to be considered for parole.

In January 2004, the circuit court entered an order and judgment dismissing Fensom’s petition as moot, based on the belief that he had already served forty percent of his sentence. Fensom now appeals the dismissal to this court. He contends that the circuit court erred in determining that the petition was moot, because he has not served forty percent of his sentence, according to Department of Corrections calculations. The time during which Fensom was free on appeal bond does not count toward his time served in calculating eligibility for parole. Because he did not actually begin serving his prison sentence until June 5, 2003, he says, he has not served forty percent. Thus, he argues, the court erred in dismissing his petition as moot.

Lack of Jurisdiction

This court has a duty to determine, sua sponte, whether we have jurisdiction to consider this appeal. See Chromalloy Am. Corp. v. Elyria Foundry Co., 955 S.W.2d 1, 3 (Mo. banc 1997).

“Any involuntary dismissal shall be without prejudice unless the court in its order for dismissal shall otherwise specify.” Rule 67.03. Here, the court’s judgment does not specify that the dismissal was with prejudice. In most instances, a dismissal without prejudice does not constitute an adjudication on the merits. Vernor v. Mo. Bd. of Prob. & Parole, 934 S.W.2d 13, 14 (Mo.App.1996). The general rule is that a dismissal without prejudice is not a final judgment and, therefore, is not appealable. Chromalloy, 955 S.W.2d at 3.

Where a petition is dismissed without prejudice, the plaintiff typically can cure the dismissal by filing another suit in the same court; thus, a dismissal without prejudice generally is not a final judgment for purposes of appeal. Vernor, 934 S.W.2d at 14. Pursuant to Rule 67.01, a dismissal with prejudice would bar the assertion of the same cause of action against the same party, but a dismissal without prejudice permits the party to bring another civil action for the same cause, unless it is otherwise barred.

Here, the dismissal of Fensom’s claim, as we noted supra, was due to his failure to properly plead all the particulars of his claim. He failed to supply the trial court with the information necessary to show that the matter was not moot. Accordingly, if he had filed a new action, this time pleading all necessary information, presumably he would have been allowed to proceed to the merits. Even now, although substantial time has been lost through the pendency of this appeal, we know of nothing that will prevent the appellant from filing his petition again and pursuing a judgment on the merits. We conclude that there is no final judgment in this matter because the dismissal was without prejudice.

Conclusion

Because the circuit court’s dismissal of Fensom’s petition does not constitute a final, appealable judgment, we conclude that we do not have jurisdiction. The appeal is dismissed.

      . All statutory references are to Revised Statutes of Missouri, 2000, unless otherwise noted.

      . The petition appeared to show that Fensom has been incarcerated since April 18, 2002 (his sentencing date), because that is the date he refers to in the petition. In Fensom's response to the motion to dismiss, he argued that this is incorrect, because the “Department of Corrections is not recognizing the sentence start date due to the time spent on appeal bond....” Fensom, however, failed to include the "sentence start date” in either pleading. Thus, even if this matter were reviewable, it is difficult to see how we could convict the trial court of error for its action in dismissing the case.


text:
    STATE of Missouri, Plaintiff/Respondent, v. Branden JONES, Defendant/Appellant.
    No. ED 83459.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 14, 2004.
    S. Kristina Starke, St. Louis, MO, for defendant/appellant.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Jefferson City, MO, for plaintiff/respondent.
    Before CLIFFORD H. AHRENS, P.J., WILLIAM H. CRANDALL JR., J., and GLENN A. NORTON, J.
   ORDER

PER CURIAM.

Branden Jones appeals from the judgment convicting him of first-degree robbery, attempted first-degree robbery, resisting arrest, and two counts of armed criminal action in violation of 569.020, 564.011, 575.150, and 571.015, RSMo 2000, respectively. He contends the trial court erred in denying his motion to suppress identification testimony and in admitting identification testimony.

Having reviewed the briefs of the parties and the record on appeal, we conclude the trial did not err, plainly or otherwise. Rule 30.20. An extended opinion would serve no jurisprudential purpose. We have, however, provided the parties a memorandum setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 30.25(b).


text:
    Rhonda L. BROOKS, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84572.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 14, 2004.
    Amanda R. Schehr, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel N. McPherson, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Movant Rhonda L. Brooks (“Movant”) appeals from the motion court’s judgment denying her post-conviction relief motion pursuant to Rule 24.035 without an eviden-tiary hearing. In her sole point on appeal, Movant argues the motion court erred in denying her relief without an evidentiary hearing because she alleged facts, not conclusively refuted by the record, that her plea counsel was ineffective because he failed to investigate her case or keep her informed regarding new developments in this case. Movant also argues counsel promised to keep news of her plea agreement out of the newspaper to induce her to plead guilty, which he did not do.

We have reviewed the briefs of the parties and the record on appeal, and find no error of law. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. We have, however, provided a memorandum, only for the use of the parties, setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 84.16(b).


text:
    Barbara LATTIMORE, Respondent, v. WASHINGTON UNIVERSITY and CUTA, Appellants.
    No. ED 84542.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 14, 2004.
    Mary A. Lindsey, David S. Ware, Evans & Dixon, L.L.C. St. Louis, MO, for appellants.
    Joseph K. Robbins, St. Louis, MO, for respondent.
    Before PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ.
   ORDER

PER CURIAM.

Washington University (Employer) appeals from the decision of the Labor and Industrial Relations Commission (Commission) reversing the Administrative Law Judge’s decision denying Barbara Latti-more’s (Claimant) claim. The Commission found Claimant suffered from a compensa-ble occupational disease and she was entitled to past medical expenses, future medical expenses, temporary total disability benefits, and permanent partial disability benefits.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion reciting the detailed facts and restating principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 84.16(b).