author: JEFFREY W. BATES, Chief Judge.

text:
    Floyd MACLIN, Jr., Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 26867.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 7, 2006.

      Mark A. Grothoff, Columbia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Cecily L. Daller, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
   JEFFREY W. BATES, Chief Judge.

Floyd Maclin, Jr. (“Movant”) appeals from an order denying his Rule 29.15 motion requesting post-conviction relief. The motion alleged, inter alia, that Mov-ant’s trial counsel was ineffective for failing to call a witness at the trial. The motion court concluded otherwise. Mov-ant contends that conclusion , is clearly erroneous. We affirm.

I. Factual and Procedural Background

In February 2001, Movant was arrested by officers from the Springfield Police Department after he tried to steal liquor from an Albertson’s grocery store. Movant was charged with second degree robbery for violating § 569.030.1, which states: “[a] person commits the crime of robbery in the second degree when he forcibly steals property.” The phrase, “forcibly steals,” is defined by § 569.010(1) in the following way:

“Forcibly steals”, a person “forcibly steals”, and thereby commits robbery, when, in the course of stealing, as defined in section 570.030, RSMo, he uses or threatens the immediate use of physical force upon another person for the purpose of:
(a) Preventing.or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or
(b) Compelling the owner of such property or another person to deliver up the property or to engage in other ponduct which aids in the commission of the theftf.]

Stealing occurs when a person “appropriates property or services of another with the purpose to deprive him or her thereof, either without his or her consent or by means of deceit or coercion.” § 570.030.1. Movant was charged with second degree robbery becausé he attempted to leave the store with the stolen liquor and was involved in an altercation with four Albert-son’s employees: Matt Young (“Young”); Jason Lindsay (“Lindsay”);' Daryn Davis (“Davis”); and Chad Lawson (“Lawson”).

After Movant waived his right to a jury trial, his case was scheduled to be tried to the court in May 2002. A few weeks before the trial, an investigator for Movant’s trial counsel contacted Young, Lindsay, Davis and Lawson and asked them to come to the prosecutor’s office for an interview. Young, Lindsay and Davis complied with the request and were interviewed by Movant’s trial counsel. Lawson did not come to the interview, and Mov-ant’s counsel made no further effort to contact him.

At the trial, Young and Lindsay were the only witnesses called by the State to testify about what transpired at the store prior to the arrival of the police. Their trial testimony is summarized below.

On February 4, 2001, Movant entered the Albertson’s grocery store in Springfield, Missouri. Young recognized Movant. Young called Lindsay and told him to keep an eye on Movant. To do so, Lindsay went into the front office. This office is an elevated platform, surrounded with one-way glass, standing about eight feet above the floor level of the store. Lawson was already there.

Movant went to the store’s liquor department. From the vantage point of the front office, Lindsay saw Movant pick up at least three bottles of Crown Royal and appear to leave the liquor department with the merchandise hidden on his person. Lindsay called Davis, the store manager, and told him what had happened. Lindsay and Lawson then left the front office. Lindsay went to the liquor department and confirmed that the bottles of Crown Royal had not been left there by Movant. Lawson and Young positioned themselves at the store’s front doors. They were joined by Lindsay and Davis.

When Movant got to the front doors, he was stopped by Lawson. Davis asked Movant if he needed to pay for anything. Movant said, “no,” and denied that he had done anything. He then attempted to leave the store. When Davis put out his arm to block the door, Movant “started to use force to run.” He shoved Davis out the door and got onto the parking lot. All four Albertson’s employees were trying to grab Movant’s arms and get him down on the ground because he was still “[flighting pretty hard, still trying to shove [Davis] out of the way, and run.” Movant started swinging a Crown Royal bottle and hit Lawson in the forehead. Both Young and Lindsay believed Movant was trying to hit somebody, with the bottle. Movant then bit Lindsay’s thumb. Lindsay started screaming that Movant “was trying to bite my thumb off....” Davis picked Movant up to get him off balance, and the pair toppled to the ground. Davis sustained a broken ankle in the fall. Lindsay and Young got on top of Movant to hold him down. Lawson went into the store and obtained some handcuffs, but the employees were only able to cuff one of Movant’s wrists. Because Movant continued to struggle, Lindsay and Young remained on top of Movant for about five minutes until police arrived.

The State then called the two officers who were sent to the store to investigate this incident: Anthony Gomez (“Officer Gomez”) and Kent Bishop (“Officer Bishop”). Officer Gomez testified that when he arrived on the scene, Movant was not fully cuffed and was still resisting. Officer Gomez provided medical assistance to Davis and told Lindsay that he needed to be seen by ambulance personnel. On cross-examination, Officer Gomez admitted that, besides Davis and Lindsay, no other store employee reported being hurt during the struggle. Specifically, “[n]o one came up to [Officer Gomez] and said they were hit in the head with a bottle.” During the cross-examination of Officer Bishop, defense counsel established that the officer had interviewed all four Albertson’s employees involved in the incident. Only Davis and Lindsay reported being injured. Officer Bishop did not recall anyone saying he had been hit in the head with a bottle. If the officer had received such information, it would have been included in his report.

Defendant testified in his own behalf. He admitted that he went to the Albert-son’s store to steal liquor. Once in the liquor department, he took four bottles of Crown Royal whiskey and hid them inside his shirt. The bulk of the bottles was concealed by a three-quarter length leather coat Movant was also wearing. He also admitted that, until he attempted to leave the store, he was not touched by any Al-bertson’s employee. The gist of Movant’s testimony was that he had intended to cooperate when he was caught stealing and only fought with Albertson’s employees because they attacked him first. On cross-examination, Movant gave the following testimony:

Q. And during this time [when Movant was biting Lindsay’s thumb] you were trying to give up, I assume, right?
A. I never struggled with these gentlemen with the exception of biting that gentleman who was trying to twist my neck.
Q. How about swinging the bottle of Crown Royal at someone?
A. Well, that’s interesting because those Crown Royal bottles are pretty thick. They have strings attached to them.
Q. Yes, they do.
A. If I was to swing them over my head with four people surrounding—
Q. Just answer my question.
A. Absolutely not.
Q. You didn’t?
A. No sir.
Q. So those two gentlemen [Young and Lindsay] who got up there earlier lied?
A. I would say they are mistaken, sir.

In closing argument, Movant’s trial counsel noted that the State had only called two of the four Albertson’s employees involved in this incident. After pointing out various contradictions and inconsistencies in their testimony, counsel then made the following argument:

We also heard stories from [Young and Lindsay] that there was the flailing of this bottle, this huge heavy bottle, spinning around trying to hit somebody in the head and did hit Chad Lawson in the forehead while it’s being swung around. It seems a little unbelievable especially when we hear from the police officers that reported to the scene talking to all of the individuals involved, no mention. No mention at all about this person being whacked in the head with a full Crown Royal bottle and being thrown to the ground. No mention of it at all by any of them. Not then, but all of a sudden now that’s part of the story.

At the conclusion of the trial, the judge found Movant guilty of second degree robbery because the State had “quite easily” met its burden of proving each element of the crime beyond a reasonable doubt. Movant received a 12-year sentence. We affirmed the conviction and sentence on direct appeal in State v. Maclin, 113 S.W.3d 304 (Mo.App.2003).

Movant then filed a Rule 29.15 motion to vacate, set aside or correct judgment or sentence. New counsel was appointed, and an amended motion was filed. In Movant’s amended motion, he alleged, inter alia, that trial counsel was ineffective because he failed to call Lawson as a witness. In January 2005, an evidentiary hearing was held on Movant’s amended motion. The judge assigned to rule on the motion was the same one who had served as the trier-of-fact at Movant’s trial. At the motion hearing, the court heard testimony from Movant, his trial counsel and Lawson. The relevant portions of their testimony are summarized below.

Movant was asked why he alleged that his trial attorney was ineffective for failing to call Lawson as a witness. Movant said he wanted Lawson to testify because “he was the one that allegedly was struck in the head with the Crown Royal bottle, and I was hoping to get his testimony to refute that.”

Movant’s trial counsel testified that he might have wanted to refute Young’s testimony about Movant swinging the bottle and hitting Lawson “[i]f I had a definite way of doing that....” Counsel noted, however, that Lawson did not show up for the pre-trial interviews conducted at the prosecutor’s office. Counsel had reviewed the police reports prior to trial and had no reason to believe Lawson’s testimony would benefit Movant.

Lawson testified that he was involved in the altercation with Movant. The scuffle started when Movant walked out of the store after he had been told not to leave by Davis. The scuffle occurred when Davis tried to get Movant to go back inside the store. Lawson said they “were trying to get him to either go back in or trying to get him down, and it took all four of us.” Lawson confirmed that, at one point in the confrontation, he was struck in the head with a Crown Royal bottle. Lawson was standing in front of Movant at the time and was struck on top of the head. The blow knocked Lawson down and left a knot on his head. The bottle, which was in a bag with drawstrings, was attached to Movant’s wrist. Lawson did not know whether he had been struck by Movant on purpose, but “[Movant’s] arms were going everywhere,” and he was pushing, shoving and swinging his hands in an attempt to get away. Lawson agreed that Movant “could have been” deliberately swinging the Crown Royal bottle at him. Movant continued resisting until he was brought to the ground. Three of the four Albertson’s employees who tried to stop Movant from leaving the store with the stolen liquor were injured in the affray because Lawson received a knot of his head, Davis had a compound fracture of his leg, and Lindsay had to get stitches in his hand.

After' hearing the foregoing evidence, the motion court concluded that Movant’s trial counsel was not ineffective for failing to call Lawson as a witness. The decision not to call Lawson was a reasonable trial strategy and Movant failed to prove prejudice becáuse: (1) trial counsel did not know what Lawson was going to say prior to trial; (2) it is a reasonable trial strategy not to call a witness whose testimony is unknown and possibly damaging; and (3) if Lawson had testified, his testimony could have been damaging to the defense. This appeal followed.

II. Standard of Review

Movant bears the burden of proving his allegation that trial counsel was ineffective. Rule 29.15(i). There is a strong presumption that trial counsel was effective, and Movant bears a heavy burden of overcoming that presumption by a preponderance of the evidence. Storey v. State, 175 S.W.3d 116, 125 (Mo. banc 2005). To determine whether an attorney provided ineffective assistance to a criminal defendant, we apply the standards established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to prevail, Movant must prove that: (1) counsel’s performance did not conform to the degree of skill, care and diligence of a reasonably competent attorney; and (2) counsel’s poor performance prejudiced the defense. Deck v. State, 68 S.W.3d 418, 425 (Mo. banc 2002). For prejudice to exist, Movant must prove “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 426 (italics in original). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Movant must prove each portion of this two-pronged performance and prejudice test in order to succeed on his ineffective assistance of counsel claim:

A criminal defendant must satisfy both the performance prong and the prejudice prong to prevail on an ineffective assistance of counsel claim. In reviewing such a claim, courts are not required to consider both prongs; if a defendant fails to satisfy one prong, the court need not consider the other. And, a court need not determine the performance component before examining for prejudice. If it is easier to dispose of the claim on the ground of lack of sufficient prejudice, the reviewing court is free to do so.

Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987) (italics in original).

As required by Rule 29.15(j), the trial court issued findings of fact and conclusions of law to support its decision denying Movant’s motion. Our review is “limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous.” Rule 29.15(k); State v. Tokar, 918 S.W.2d 753, 761 (Mo. banc 1996). Findings of fact and conclusions of law are clearly erroneous only when, after reviewing the entire record, this court is left with the definite and firm impression that a mistake has been made. State v. Taylor, 929 S.W.2d 209, 224 (Mo. banc 1996).

III. Discussion and Decision

In Movant’s sole point on appeal, he contends the denial of his motion for post-conviction relief was clearly erroneous because the decision not to call Lawson as a witness constituted ineffective assistance of counsel. According to Movant, Lawson would have testified that he was not intentionally hit in the head by Movant, which would have corroborated Movant’s testimony and contradicted the testimony of Young and Lindsay. If Lawson had testified, Movant claims there is a reasonable probability that the outcome of his trial would have been different. Neither argument is persuasive.

The trial court concluded that trial counsel’s decision not to call Lawson was a reasonable trial strategy. It is well-settled that trial strategy decisions are virtually unchallengeable and rarely furnish a ground for finding ineffective assistance of counsel. Storey v. State, 175 S.W.3d 116, 125 (Mo. banc 2005); Middleton v. State, 103 S.W.3d 726, 736-37 (Mo. banc 2003); see also State v. Chambers, 891 S.W.2d 93, 109-10 (Mo. banc 1994). That includes trial counsel’s strategic decisions concerning the selection of the witnesses and evidence that will be presented on a defendant’s behalf. Williams v. State, 168 S.W.3d 433, 443 (Mo. banc 2005); Leisure v. State, 828 S.W.2d 872, 875 (Mo. banc 1992). In Worthington v. State, 166 S.W.3d 566 (Mo. banc 2005), our Supreme Court addressed the issue of whether trial counsel was ineffective for failing to call a witness. The Court succinctly summarized the applicable principles this way:

To prevail on a claim of ineffective assistance of counsel for failure to call a witness, the following must be shown: “1) Trial counsel knew or should have known of the existence of the witness; 2) the witness could be located through reasonable investigation; 3) the witness would testify, and 4) the witness’s testimony would have produced a viable defense.” Even then, “counsel’s decision not to call a witness is presumptively a matter of trial strategy and will not support a claim of ineffective assistance of counsel unless the defendant clearly establishes otherwise.” As a matter of trial strategy, the determination to not call a witness is virtually unchallengeable. “If a potential witness’s testimony would not unqualifiedly support a defendant, the failure to call such a witness does not constitute ineffective assistance.”

Id. at 577 (citations omitted). After reviewing the record, we agree with the motion court’s conclusion that the failure to call Lawson did not constitute ineffective assistance of counsel. Lawson’s testimony would not have provided Movant with a viable defense to the charge of second degree robbery or unqualifiedly supported Movant’s theory of defense or trial testimony.

The crime of second degree robbery is composed of two elements: stealing and the use of actual or threatened force. § 569.030; § 569.010(1); Eason v. State, 52 S.W.3d 24, 27 (Mo.App.2001); State v. Lewis, 633 S.W.2d 110, 114 (Mo.App.1982). In order to convict Movant of second degree robbery under the circumstances present here, the State was required to prove that Movant intentionally used physical force to prevent or overcome resistance to his taking of Albertson’s property. See State v. Maclin, 113 S.W.3d 304, 306-07 (Mo.App.2003). It was not necessary for the State to prove that Movant either caused, or intended to cause, physical injury to anyone. See State v. Applewhite, 771 S.W.2d 865, 867-68 (Mo.App.1989); State v. Harris, 622 S.W.2d 742, 745 (Mo.App.1981); MAI-CR 3d 323.04. In Apple-white, the evidence that defendant pushed the store manager aside and knocked him up against the door was sufficient to support a conviction for second degree robbery. Applewhite, 771 S.W.2d at 868. In Harris, the defendant shoved a security guard and pulled stolen clothes from the guard’s grasp. This conduct likewise constituted the use of sufficient force to support a conviction for second degree robbery. Harris, 622 S.W.2d at 745. “[I]t is not even necessary that the victim be touched to support a submission of forcible stealing under § 569.030.” Applewhite, 771 S.W.2d at 868. If Lawson had been called as a witness, his testimony would not have provided Movant with a viable defense. Instead, Lawson’s testimony would have supported the State’s case because his description of events tended to prove that Movant did use physical force against the Albertson’s employees to overcome or prevent their resistance to Movant’s theft of Albertson’s property.

Movant’s argument also fails because, if Lawson had been called as a witness, his testimony would not have unqualifiedly supported either Movant’s theory of defense (Movant was attacked by the Albert-son’s employees, and the contrary testimony of Young and Lindsay was not credible) or Movant’s trial testimony that he did not hit Lawson in the head with a bottle.

Preliminarily, it is important to note that Lawson failed to show up for a pretrial interview by Movant’s defense attorney. Lawson was the only Albertson’s employee who declined to do so. As a result, defense counsel did not know what Lawson would say if called as a witness, but there was no indication from the police reports that his testimony would help Mov-ant. Furthermore, Lawson’s failure to appear for an interview could have indicated hostility toward Movant and/or his attorney.

At the trial itself, Young and Lindsay were the only witnesses who described the events that happened before police arrived or claimed to have seen Movant hit Lawson on the head with the Crown Royal bottle. Movant’s trial counsel tried to cast doubt on the testimony of Young and Lindsay in the following ways. Counsel pointed out that neither Davis nor Lawson had been called as witnesses to testify about what happened. In particular, Lawson was not called to testify that he had been struck in the head with a bottle by Mov-ant. Counsel elicited favorable testimony from Officer Gomez and Officer Bishop that Lawson had not reported any such injury at the scene. Movant testified on his own behalf and said he was willing to give up quietly and cooperate once he was caught stealing; he only resisted because he was attacked by the Albertson’s employees. Movant also testified that: (1) he “absolutely” did not hit Lawson on the head with a Crown Royal bottle; and (2) Young and Lindsay were both mistaken when they claimed Movant did so. Relying on all of the foregoing evidence, Mov-ant’s trial counsel generally attacked the credibility of Young and Lindsay and suggested that their version of events was inaccurate. This tactic appears to have been somewhat effective based on the judge’s comment that he was inclined to “throw out” Lindsay’s testimony because it was “a little bit over the top.”

If Movant’s trial counsel had called Lawson as a witness, Movant’s theory of defense and Movant’s own believability as a witness would have been damaged. For the reasons already explained above, Lawson’s testimony would have corroborated the testimony of Young and Lindsay and refuted Movant’s version of events, thereby assisting the State in proving that Mov-ant did commit the crime of second degree robbery. Given Movant’s emphatic denial that he struck Lawson on the head with the Crown Royal bottle, contrary testimony from Lawson also would have significantly undermined Movant’s credibility. Similarly, it would have undercut both Movant’s theory of the case and his credibility to have Lawson testify that he “could have been” struck with the Crown Royal bottle by Movant on purpose while he was trying to escape with stolen property in his possession. Trial counsel’s failure to call a witness who would undermine the defendant’s theory of the case or contradict his or her trial testimony does not constitute ineffective assistance of counsel. Clayton v. State, 63 S.W.3d 201, 208-09 (Mo. banc 2001); Crooks v. State, 131 S.W.3d 407, 411 (Mo.App.2004); Helmig v. State, 42 S.W.3d 658, 670 (Mo.App.2001); State v. Jones, 885 S.W.2d 57, 58 (Mo.App.1994).

The motion court concluded that Mov-ant’s trial counsel was not ineffective for failing to call Lawson. The court’s findings of fact and conclusions of law concerning this issue are not clearly erroneous. Rule 29.15(k); State v. Tokar, 918 S.W.2d 753, 761 (Mo. banc 1996). Therefore, Mov-ant’s point on appeal is denied, and the order denying Movant’s amended motion for post-conviction relief is affirmed.

SHRUM, P.J., and BARNEY, J. Concur.

      . All references to rules are to the Missouri Court Rules (2005).

      . All references to statutes are to RSMo (2000).


source: Caselaw Access Project

author: PAUL McGHEE, Senior Judge.

license: Public Domain

text:
    Randall Gene DENNEY, Appellant, v. Terri Anne (Denney) WINTON, Respondent.
    No. 26463.
    Missouri Court of Appeals, Southern District, Division One.
    Feb. 10, 2006.

      Richard A. Ong, Melton & Herrin, P.C., Cassville, MO, for Appellant.
    No brief filed by Respondent.
   PAUL McGHEE, Senior Judge.

Randall Gene Denney (“Father”) appeals from a judgment increasing and extending his child support obligation, ordering him to pay Terri Anne (Denney) Winton (“Mother”) one-half of health-related expenses for one child, and awarding her attorney fees. We affirm in part and reverse and remand in part.

Father and Mother have two children from their marriage to each other. Adrienne was born October 28, 1982, and Abbey was born May 24, 1985. The trial court dissolved their marriage on July 20, 1989, approved their separation agreement, and provided for the custody and support of the children. The court modified the dissolution judgment in 1993, by reducing Father’s child support obligation to $331.00 per month.

Mother filed a motion to modify on April 28, 2000, that was tried on January 29, 2004. She requested in her motion that the child support amount be increased from the date of filing, that Father be required to pay one-half of the extraordinary medical expenses for the children, and that he be required to pay her attorney fees. Father did not ask for any affirmative relief in his answer, other than for his attorney fees.

The trial court found that application of the guidelines and criteria of Rule 88.01 would result in a change of more than twenty percent of the existing child support amount, thus making a prima facie showing of a change of circumstances so substantial and continuing as to make the existing terms of child support unreasonable. The court also found that “Adrienne Quinn Denney is disabled (emphasis added) due to injuries sustained in an automobile accident and child support for her shall continue beyond the age of majority.” The judgment, dated February 24, 2004, ordered Father to pay Mother “beginning April 28, 2000, the total sum of $635.00 per month for two children until emancipation.” It further ordered Father to pay Mother $10,010.92 for one-half of the health-related expenses incurred for Adrienne after April 20, 2000, and $2,000.00 for her attorney fees.

Father relies on five points in his appeal, while Mother has not submitted a brief. The standard of review governing modification of child support provisions is the same as in any other court-tried case. The judgment of the trial court will be affirmed on appeal unless there is no substantial evidence to support it, or unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Windsor v. Windsor, 166 S.W.3d 623, 628 (Mo.App. W.D.2005), citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976); Winter v. Winter, 167 S.W.3d 239, 242 (Mo.App. S.D.2005); Hoberock v. Hoberock, 164 S.W.3d 26, 29-30 (Mo.App. E.D.2005). “A child support provision will be upheld unless the trial court abused its discretion or erroneously applied the law.” In re Marriage of Ledford, 28 S.W.3d 465, 467 (Mo.App. S.D.2000), quoting In re Marriage of Gerhard, 985 S.W.2d 927, 930 (Mo.App. S.D.1999). An abuse of discretion will be found only where the trial court’s ruling is clearly against the logic of the circumstances or is arbitrary or unreasonable. Id.

A trial court is free to believe or disbelieve all, part or none of the testimony of any witness. Lueckenotte v. Lueckenotte, 34 S.W.3d 387, 394 (Mo.banc 2001). We give deference to the trial court’s determination of the credibility of the witnesses; and the evidence, with all of the inferences flowing therefrom, is viewed in the light most favorable to the judgment. McLaurin v. McLaurin, 171 S.W.3d 150, 151-52 (Mo.App. E.D.2005); Johnston v. Dunham, 172 S.W.3d 442, 447 (Mo.App. W.D.2005).

As his first point, Father asserts that the trial court erred in ordering him to pay child support for Adrienne past the age of majority. “Generally, a child support obligation terminates when the child reaches the age of eighteen.” Windsor, 166 S.W.3d at 630. At the time of trial, Adrienne was twenty-one years old and a student at Drury University in Springfield. She suffered extremely severe injuries in an automobile accident on September 8, 1997, when she was fourteen years old. She was in a coma for eight days, and she endured hospitalizations, surgeries, counseling, therapy, and other treatments. She was taking medications at the time of the trial and was to undergo another surgery after the trial.

Notwithstanding the severity of her injuries, Adrienne was able to return to high school and participate in speech and debate, and in academic and other clubs, including being president of the National Honor Society at her school. She graduated from high school on May 18, 2001, with a class ranking of sixth out of 118 students. That summer, she worked at a convenience store in Monett before moving to Springfield to attend Drury University in the fall of 2001. While attending Drury, she worked part-time as a sales clerk at Dillard’s, and at the front desk and verification department of Drury’s financial aid office. According to Adrienne, she left the convenience store job to attend Drury, and she quit her other employment because of her schoolwork.

At trial time, she was living with three other students in an apartment furnished by Drury. The four women shared the chores, such as vacuuming, washing dishes, laundry, cooking and grocery shopping. She often walked three blocks to classes because it was good therapy, but she had a driver’s license and drove Mother’s Jeep more often in the winter because she cannot walk as well in the winter.

Section 452.340.3 provides that unless the circumstances of the child manifestly dictate otherwise and the court specifically so provides, the support obligation of the parent terminates when the child reaches age eighteen, unless the provisions of subsection 4 or 5 apply.

Our Supreme Court held in Fower v. Fower Estate, 448 S.W.2d 585, 586 (Mo.1970), that a father had a duty to support his adult mentally-incapacitated child; although, at that time, the duty of support was to the child and not the custodial parent. See also Racherbaumer v. Racherbaumer, 844 S.W.2d 502, 503-04 (Mo.App. E.D.1992). The duty to support a child continues after the child attains adulthood “if the child is unmarried, un-emancipated, insolvent and, by reason of physical or mental conditions, incapable of supporting himself.” Cole v. Estate of Armstrong, 707 S.W.2d 459, 462 (Mo.App. S.D.1986). The power of a divorce court at that time to provide for support ended when the child attained majority, at least when the child was not a party. Id.

In 1988, subsections 3 to 6 were added to § 452.340; of which subsection 4 authorizes the dissolution court to extend the parental support obligation past the child’s eighteenth birthday. Racherbaumer, 844 S.W.2d at 504; Heider v. Heider, 822 S.W.2d 446, 447 (Mo.App. E.D.1991). Section 452.340.4 provides: “If the child is physically or mentally incapacitated from supporting himself and insolvent and unmarried, the court may extend the parental support obligation past the child’s eighteenth birthday.”

In Speight v. Speight, 933 S.W.2d 879, 882 (Mo.App. W.D.1996), the court stated:

Before the exception found in § 452.340.4 will apply, the court must find that the child is: 1) physically or mentally incapacitated from supporting himself; 2) insolvent; and 3) unmarried. The evidence needed to show these elements is substantial. State ex rel. Albert v. Sauer, 869 S.W.2d 853, 855 (Mo.App.1994). As to “mental incapacity,” courts have been fairly strict in defining its parameters. “A parent’s duty to continue supporting a physically or mentally incapacitated child arises from the child’s helpless condition ... [t]he child’s mental incapacity must impair the child’s ability to support himself.” Id. Evidence introduced to establish incapacity and need might include medical testimony, letters of guardianship, living expenses and ability to meet obligations. Id.

In In re Marriage of D.R.S. and P.W.S., 817 S.W.2d 615, 618 (Mo.App. S.D.1991), Letters of Guardianship for Incapacitated Person had been issued by the probate division of the circuit court for an adult child, and, in affirming the order of the trial court extending the support obligation for the adult child, this Court quoted the definition of “incapacitated person” from § 475.010(8) of the Probate Code, and found the letters of guardianship to be sufficient evidence that the child was incapacitated.

Although there was no evidence that letters of guardianship had been issued for Adrienne as an incapacitated person, nor was there any medical testimony, there is no checklist of evidence which must be introduced in order to establish incapacity. Clark v. Clark, 20 S.W.3d 562, 566 (Mo.App. W.D.2000).

The principal evidence on the issue of incapacity was the lay testimony of Mother as to Adrienne’s injuries and her long and difficult progress toward recovery. The evidence reflects Adrienne’s admirable determination and her remarkable achievements despite her injuries; but it also reflects that, despite the residual effect of her injuries, she is not physically or mentally incapacitated from supporting herself within the meaning of § 452.340.4.

“Insolvency” in the context of § 452.340.4 is defined as “the inability to pay debts as they become due in the ordinary course of business.” Racherbaumer, 844 S.W.2d at 505; D.R.S., 817 S.W.2d at 618.

Adrienne had accumulated from her numerous scholarships and a Pell grant a credit of $1,444.00 at Drury, and she testified that she was receiving social security disability benefits of an undisclosed amount, which has “helped a lot.” Mother was holding some $28,000.00 in trust for her from the settlement of the accident claim, and she sent Adrienne money from Father’s child support for medications that cost about one hundred dollars per month. Mother was saving the trust fund money for Adrienne if she went to graduate school as planned. Adrienne then had scholarships and the credit at Drury; she was the beneficiary of the trust fund; and there was no evidence of any debts. She was not insolvent within the meaning of § 452.340.4. As Adrienne was neither incapacitated nor insolvent, the trial court erroneously applied the law in ordering Father’s child support obligation for her to extend beyond the age of majority upon the basis of its finding that she was disabled.

As it applies to Adrienne, § 452.340.5 provides, in pertinent part:

If the child is enrolled in an institution of vocational or higher education not later than October first following graduation from a secondary school ... and so long as the child enrolls for and completes at least twelve hours of credit each semester, not including the summer semester, ... and achieves grades sufficient to reenroll at such institution, the parental support obligation shall continue until the child completes his or her education, or until the child reaches the age of twenty-two, whichever first occurs.

Subsection 5 further provides:

To remain eligible for such continued parental support, at the beginning of each semester the child shall submit to each parent a transcript or similar official document provided by the institution of vocational or higher education which includes the courses the child is enrolled in and has completed for each term, the grades and credits received for each such course, and an official document from the institution listing the courses which the child is enrolled in for the upcoming term and the number of credits for each such course.

At the time of trial, Adrienne had completed at least twelve credit hours each semester with a grade point average of 3.2. She had also taken classes at another college in order to graduate in four years, and she expected to graduate from Drury in May of 2005. She timely enrolled at Drury, and she had completed the credit hours and achieved the grades required to continue the support obligation until the earlier of completing her education or becoming twenty-two years of age. Although Father denied receiving any of her college records, the testimony of Adrienne and Mother that they had furnished the records to him show that Adrienne complied with the requirement that she furnish documentation of her scholastic progress to Father. At the time of trial, Father had an obligation to pay support for Adrienne until she reached the age of twenty-two, if she continued to comply with the higher education requirements of § 452.340.5.

In his second point, Father argues that the trial court erred in ordering him to pay one-half of Adrienne’s uninsured medical expenses. He claims that the trial court misapplied the law because it did not require the trust fund to be used to pay the uninsured medical expenses. Mother had health insurance through her employment as a public school teacher, which paid much of Adrienne’s medical expenses. Father claimed to have had health insurance for Adrienne at the time of the accident, but neither he nor anyone for him has paid any of the medical expenses. The trial court ordered Father to pay to Mother one-half of the uninsured expenses incurred after the motion to modify was filed and entered judgment against him in the amount of $10,010.92.

Section 452.340.1 authorizes retroactive child support, and it is completely within the discretion of the trial court to determine the effective date so long as it is subsequent to the filing of the motion. Erickson v. Blackburn, 169 S.W.3d 69, 79 (Mo.App. S.D.2005); Malawey v. Malawey, 137 S.W.3d 518, 525-26 (Mo.App. E.D.2004); Lokeman v. Flattery, 146 S.W.3d 422, 430 (Mo.App. W.D.2004).

From the sparse evidence as to the creation and terms of the trust fund, it appears that the driver of the automobile (who died before the trial) had liability insurance of only $25,000.00, and Adrienne’s personal injury claim was settled for that amount. The money was placed in a trust fund for her benefit, and Mother held some $28,000.00 as trustee at the time of trial. Adrienne hoped to attend graduate school, and Mother planned to pay her expenses for graduate school from the trust fund. If Adrienne did not attend graduate school, Mother planned to pay from the fund Adrienne’s medical expenses, including substantial future expenses.

Mother necessarily had obligated herself to pay all of the uninsured medical expenses for Adrienne incurred after the filing of the motion to modify, and she was not required to use Adrienne’s separate trust fund to reheve Father from his duty after April 28, 2000, to pay one-half of her uninsured medical expenses.

Father also complains that the trial court allowed the child support to be used for the accumulation of capital rather than as a means of paying child support. There is no evidence that Mother was accumulating capital from the child support payments by Father. The parents did not contribute more than a nominal amount to the trust fund; the money was partial compensation to Adrienne for her injuries. Father is not entitled to benefit from the increase in the amount of Adrienne’s trust fund. He is entitled to no relief on his second point, and it is denied.

Father contends in his third point that the trial court erred in ordering him to pay the presumed child support amount shown on Mother’s Form 14, because there was no substantial evidence that he had deliberately sought to limit his income in order to avoid paying child support.

Father submitted a Form 14 stating his income as $1,083.00 per month, and Mother’s income as $2,893.00 per month, which resulted in a presumed child support amount of $265.00 per month for two children. The trial court rejected his Form 14. Mother’s Form 14 stated Father’s monthly income as $2,878.00, and her monthly income as $2,560.00, resulting in a presumed child support amount for two children of $635.00 per month. The court accepted Mother’s Form 14 and found that this presumed child support amount was not rebutted as being unjust or inappropriate. As previously stated, the court ordered Father to pay $635.00 per month to Mother from the filing of the motion to modify.

In calculating child support amounts, trial courts have discretion to impute income to an underemployed or unemployed parent, and a parent may not escape responsibility to his or her family by deliberately limiting his or her work to reduce income. Hern v. Hern, 173 S.W.3d 653, 655 (Mo.App. E.D.2005); In re Marriage of Johanson, 169 S.W.3d 897, 899 (Mo.App. S.D.2005). In order to avoid such a situation, a court may, in proper circumstances, impute income to a parent according to what that parent could earn by use of his or her best efforts to gain employment suitable to that parent’s capabilities. Hern, 173 S.W.3d at 655.

The trial court imputed income to Father based upon his previous earnings, and it applied the two-step procedure set forth in Woolridge v. Woolridge, 915 S.W.2d 372, 379-80 (Mo.App. W.D.1996), in determining the presumed child support amount. Review of the application of the Woolridge procedure is to determine whether it is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law under the Murphy v. Carrón standard. We review for an abuse of discretion with respect to the trial court’s rebuttal review of the presumed child support amount. Windsor, 166 S.W.3d at 634.

Imputing income to Father in determining the child support amount was supported by substantial evidence, and was not against the weight of the evidence; neither did the application of the Wool-ridge procedure erroneously declare or apply the law. The trial court did not abuse its discretion in its rebuttal review of the presumed child support amount, and Father is not entitled to relief on this point. Point three is denied.

In his fourth point, Father reiterates his challenge to the order that he pay child support for Adrienne after her twenty-second birthday, and he also contends that the trial court erred in failing to order Mother to reimburse him for the child support he paid for Adrienne and Abbey after their emancipation.

The provision that § 452.340.3 terminates a child support obligation when the child reaches the age of eighteen has an exception which is applicable to the support of Abbey. As to Abbey, § 452.340.5 provides, in pertinent part:

If when a child reaches age eighteen, the child is enrolled in and attending a secondary school program of instruction, the parental support obligation shall continue, if the child continues to attend and progresses toward completion of said program, until the child completes such program or reaches age twenty-one, whichever first occurs.

Abbey was eighteen and attending high school when the case was tried. Father states in his brief that Abbey graduated from high school on May 31, 2004, which shows that she continued after the trial to attend and progress toward completion of her secondary school education. This supports the trial court’s finding that Father had a continuing obligation to pay support for Abbey as she then was not emancipated. The trial court did not err in ordering him to pay child support for Abbey under § 452.340.5, and Father is not entitled to relief on this point. Point four is denied.

Father claims in his brief that he is entitled to reimbursement under § 452.370.4, for child support paid by him after the emancipation of the children. This section requires the person entitled to receive child support to notify the parent obligated to pay child support of the emancipation of a child; and if notice is not given, then the receiving parent is liable to the paying parent for the child support paid following emancipation, plus interest.

The claim for reimbursement was not properly raised or preserved in the trial court, and it may not be reviewed upon appeal in the absence of plain error. In re Marriage of Demorrow, 169 S.W.3d 591, 593 (Mo.App. S.D.2005); Mason v. Mason, 873 S.W.2d 631, 636 (Mo.App. E.D.1994). There is no error because neither child was emancipated when the case was tried, and there is no evidence that Father had overpaid child support for either child. If the claim were to be reviewed, it would be denied.

As his final point, Father complains of the order that he pay $2,000.00 of Mother’s attorney fees. As a general rule, parties to a dissolution pay their own attorney fees. Hern, 173 S.W.3d at 656. However, § 452.355.1 authorizes an award of attorney fees for the cost to the other party of maintaining or defending any proceeding pursuant to §§ 452.300 to 452.415, which includes motions to modify child support under § 452.370. Lueckenotte, 34 S.W.3d at 399. Section 452.355.1 authorizes the trial court to order a party to pay reasonable attorney fees after considering all relevant factors, including the financial resources of the parties, the merits of the case, and the actions of the parties during the pendency of the action. Erickson, 169 S.W.3d at 80.

“The trial court is considered an expert on the necessity, reasonableness, and value of attorney’s fees.” Travis v. Travis, 174 S.W.3d 67, 71 (Mo.App. W.D.2005). It is entirely within the trial court’s discretion whether to award attorney fees, and an appellate court will interfere with an attorney fee award only on a showing of abuse of discretion. Id. To demonstrate an abuse of discretion, the complaining party must show that the trial court’s decision was so against the logic of the circumstances, and so arbitrary and unreasonable as to shock one’s sense of justice. Id.

Father testified that he had “good insurance” through his employer when Adrienne was injured that was secondary to Mother’s insurance. However, his insurance paid none of Adrienne’s medical expenses, and the trial court reasonably could have found that he made no genuine effort to apply for benefits under his policy. Father also testified that he would pay none of Adrienne’s medical expenses unless the court ordered him to pay. Father’s conduct in this respect, his cessation of his child support payments for Adrienne when she became twenty-one, and his mer-itless contention that the children had been emancipated, coupled with the necessity for Mother to retain an attorney to bring this action, and his ability to earn more than Mother, are sufficient to support the award of reasonable attorney fees to her. The trial court did not abuse its discretion in making the award, and it was not so against the logic of the circumstances, or so arbitrary and unreasonable as to shock the sense of justice. This point is denied.

The judgment of the trial court increasing the amount of child support, continuing the child support obligation until emancipation, and ordering Father to pay medical expenses and attorney fees is affirmed. The finding that Father’s child support obligation for Adrienne extends beyond the age of majority because she is disabled is reversed. As Adrienne has reached the age of twenty-two, and Abbey has completed high school, this case is remanded for further proceedings consistent with this opinion.

PARRISH, J„ and RAHMEYER, J„ concur.

      . This is an error, as the trial court’s written direction to Mother’s then-attorney was to prepare a judgment which included requiring Father to pay one-half of Adrienne’s uninsured medical expenses from and after April 28, 2000.

      . Statutory references are to RSMo 2000.

      . There is no contention that Adrienne had ever married.


text:
    Travis BENTON, Appellant, v. VETERANS OF FOREIGN WARS OF The UNITED STATES, INC., Respondent.
    No. WD 65449.
    Missouri Court of Appeals, Western District.
    Feb. 14, 2006.
    Larry D. Coleman, Raytown, for appellant.
    Tedrick A. Housh III, Kansas City, for respondent.
    Before PATRICIA A. BRECKENRIDGE, Presiding Judge, VICTOR C. HOWARD, Judge, and RONALD R. HOLLIGER, Judge.
   ORDER

Travis Benton appeals the dismissal of his lawsuit against the Veteran’s of Foreign Wars of the United States (VFW-US) by the circuit court.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. A written opinion reciting the detailed facts and restating the applicable principles of law would have no prec-edential or jurisprudential value. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order. Affirmed. Rule 84.16(b)


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Kenneth E. ROWLETTE, Appellant.
    No. WD 65022.
    Missouri Court of Appeals, Western District.
    Feb. 14, 2006.
    Irene C. Earns, Columbia, MO, for appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for respondent.
    Before JAMES M. SMART, P.J., ROBERT G. ULRICH, and LISA WHITE HARDWICK, JJ.
   ORDER

PER CURIAM.

Kenneth Rowlette was convicted of driving while revoked (class D felony), Section 302.321, RSMo, 2000, and third degree assault (misdemeanor), Section 565.070, RSMo 2000, following jury trial. He was sentenced as a persistent offender, (Section 302.321, RSMo 2000, Cum.Supp., and 558.016, RSMo Supp.2000) to consecutive terms of four years in the custody of the Department of Corrections for the class D felony conviction of driving while revoked and ninety days in the county jail for the misdemeanor assault conviction. Mr. Rowlette appeals his convictions asserting that the trial court committed plain error when it did not act sua sponte and declare a mistrial when the arresting police officer testified that she handcuffed Mr. Rowlette for reasons of safety after she asked him to identify himself and he “pushed past her,” thereby violating his constitutional right to due process. He claims that the incident represented misconduct that he was not charged with and that his rights included being tried only for the offenses charged.

For the reasons set forth in the memorandum provided to the parties, we affirm. Rule 30.25(b).


text:
    Konstantinos K. TOTSIKAS, Appellant-Respondent, v. Carla TOTSIKAS; Respondent-Appellant, Christos Totsikas and Eleftheria Totsikas, Respondents.
    Nos. WD 64885, WD 64930.
    Missouri Court of Appeals, Western District.
    Feb. 14, 2006.
    Paul T. Graham, Jefferson City, MO, for Appellant-Respondent.
    Sara C. Michael, Jefferson City, MO, for Respondent-Appellant.
    Anjali Gandhi, Jefferson City, MO, for Respondents.
    Before ROBERT G. ULRICH, P.J., PATRICIA A. BRECKENRIDGE, and JAMES M. SMART, JJ.
   ORDER

PER CURIAM.

Konstantinos K. Totsikas appeals and Carla Totsikas cross-appeals the Second Amended Judgment and Decree of Dissolution of Marriage entered in the Cole County Circuit Court. The judgment dissolved the marriage of Konstantinos K. Totsikas and Carla Totsikas and awarded custody and visitation of the three minor children born to the parties during the marriage. Each party raises four of the eight points on appeal. Mr. Totsikas claims the trial court: (1) erred in ordering that the visitation schedule change upon the first child beginning school because the order is not supported by substantial evidence and is not in the children’s best interests; (2) erred in ordering that the visitation schedule change upon the first child beginning school because the order is a conditional judgment and violates section 452.410; (3) erred in awarding Ms. Totsikas sole physical custody as opposed to awarding both Mr. and Ms. Totsikas joint physical custody of the children; and (4) erred in ordering Mr. Totsi-kas to pay all of the Guardian Ad Litem (GAL) fees. Ms. Totsikas claims the trial court: (1) erred in denying her request to relocate the children to West Virginia; (2) erred in its calculation of the Form 14 child support amount; (3) erred in denying her request for maintenance; and (4) erred in denying her request that Mr. Totsikas pay her attorney’s fees. All points are denied, and the judgment is affirmed. Rule 84.16(b).


author: GARY M. GAERTNER, SR., Presiding Judge.

text:
    Yolanda R. MILLER, Appellant, v. Richard DUNN, Director, Missouri Department of Health and Senior Services, Respondent.
    No. ED 86297.
    Missouri Court of Appeals, Eastern District, Division Two.
    Feb. 14, 2006.

      Vincent G. Rapp, Vincent G. Rapp, LLC, St. Charles, MO, for Appellant.
    Kelly D. Walker, General Counsel, Jeremiah W. (Jay) Nixon, Atty. Gen., Kathleen A. Fitzgerald, Assistant Attorney General, Jefferson City, MO, for Respondent.
   GARY M. GAERTNER, SR., Presiding Judge.

Appellant, Yolanda R. Miller (“Miller”), appeals the judgment of the Circuit Court of St. Louis County affirming the decision of Respondent, Richard Dunn, Director, Missouri Department of Health and Senior Services (“the Department”). The Department’s decision ordered Miller’s name to be permanently placed on the Employee Disqualification List (“the EDL”) because there was competent and substantial evidence that Miller, a nurse, misappropriated $15,000.00 from Martha Whitaker (‘Whitaker”), a resident at a nursing home. We affirm.

Miller worked as a certified nursing assistant/licensed practical nurse part-time at Friendship Village of West County (“Friendship Village”), a nursing home in Chesterfield, Missouri. Whitaker was a resident at the long-term care unit at Friendship Village from March 4, 2002 until her death on June 24, 2003. As part of her nursing duties, Miller worked directly with Whitaker approximately eleven times prior to May 22, 2003. As one of Whitaker’s nurses, Miller was aware of Whitaker’s diagnoses and medications.

While at Friendship Village, Whitaker was treated for the following conditions: dementia, major depressive disorder, anxiety (severe at times), obsessive-compulsive disorder traits, periods of delirium, depression, acute respiratory failure, anemia, chronic obstructive pulmonary disease (“COPD”), pneumonia, and congestive heart failure. Whitaker took a number of medications for her mental and physical conditions.

In the final two months of Whitaker’s life, she was hospitalized on two different occasions. Whitaker’s first hospitalization took place from May 1 to May 14, 2003 for a breathing condition. Whitaker returned to Friendship Village on May 15, 2003, after which she was essentially bedridden. Whitaker’s next hospitalization took place from June 16 to June 19, 2003 for respiratory failure. She returned to Friendship Village on June 20, 2003, and died four days later.

Between Whitaker’s two hospitalizations, on May 22, 2003, Miller obtained a check in the amount of $15,000.00 written from Whitaker’s account (“the check”). Whitaker signed the check, but Miller filled in all of the other parts of the check: the date of May 22, 2003, her own name in the “pay to” area, and the $15,000.00 amount in numbers and in writing. Miller also endorsed the back of the check and cashed the check.

Louise Behlman (“Behlman”), Whitaker’s niece and power of attorney, discovered the check had been issued when she was going through Whitaker’s papers after Whitaker’s death. On June 27, 2003, Behlman reported her discovery to Friendship Village because she believed the check was altered. On that same day, Friendship Village reported the situation to the Department. Peggy Post (“Post”) of the Department conducted an investigation of the situation and called the police. The police also conducted an investigation, and arranged for the $15,000.00 to be removed from Miller’s account and returned to Whitaker’s estate.

On January 26, 2004, the Department notified Miller that, because the results of its investigation tended to substantiate the conclusion that Miller misappropriated money from Whitaker, it intended to permanently place Miller’s name- on the EDL. On January 28, 2004, Miller completed an application for an administrative hearing, which was held by the Department on June 25, 2004. Subsequently, on August 16, 2004, the Department issued its decision ordering Miller’s name to be permanently placed on the EDL because there was competent and substantial evidence that Miller misappropriated $15,000.00 from Whitaker. On September 10, 2004, Miller petitioned the trial court for judicial review of the Department’s decision. On April 18, 2005, the trial court entered its judgment affirming the Department’s decision. This appeal by Miller followed.

In her sole point on appeal, Miller contends the Department’s decision ordering her name to be permanently placed on the EDL for misappropriating the check is not supported by competent and substantial evidence.

In our review of an administrative agency’s decision, we review the findings and decision of the agency and not the judgment of the trial court. Lagud v. Kansas City Bd. of Police Com’rs, 136 S.W.3d 786, 791 (Mo.banc 2004). An agency’s decision can be reviewed to determine if it is supported by competent and substantial evidence upon the whole record. Id., quoting section 536.140.2(3), RSMo 2000. An agency’s decision is unsupported by competent and substantial evidence only in the rare case when the decision is contrary to the overwhelming weight of the evidence. Id., quoting Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo.banc 2003). While we defer to the agency’s factual findings, where the agency’s decision is based upon an interpretation, application or conclusion of law, we review the agency’s decision de novo. Community Bancshares v. Secretary of State, 48 S.W.3d 821, 828 (Mo.banc 2001).

Section 198.090.15 provides that:

[t]he department shall maintain the employee disqualification list and place on the employee disqualification list the names of any persons who have been finally determined by the department, pursuant to section 660.315, RSMo, to have misappropriated any property or funds of a resident while employed in any facility, (emphasis added). Section 198.090.15.

“No person, corporation or association who received the employee disqualification list ... shall knowingly employ any person who is on the employee disqualification list.” Section 660.315.12 (amended 2003). Section 660.315.9 provides in relevant part that:

“[t]he length of time the person’s name shall appear on the employee disqualification list shall be determined by the [Department], based upon the following: (l)[w]hether the person acted recklessly or knowingly ...; (3)[t]he degree of misappropriation of the property or funds ...; (5)[a]ny mitigating circumstances; [and] (6)[a]ny aggravating circumstances.” Section 660.315.9 (amended 2003).

Because “misappropriate” is not expressly defined in the Missouri statutes and regulations governing the nursing home industry, the term is given its plain and ordinary meaning as found in the dictionary. Wells v. Dunn, 104 S.W.3d 792, 796 (Mo.App. W.D.2003). Common to various dictionary definitions of the term “is the idea that misappropriation involves the dishonest diversion of the money or property of another to one’s own use.” Id. at 797.

A person who exerts undue influence uses dishonest motives to substitute his will for the will of another. Welch v. Welch, 354 Mo. 654, 190 S.W.2d 936, 938 (1945). Undue influence is influence amounting to overpersuasion, force, or coercion. Kramer v. Schramm, 59 S.W.3d 585, 585 (Mo.App. E.D.2001), quoting Strauser v. Dayton, 762 S.W.2d 862, 865 (Mo.App. E.D.1989). Coercion can be shown through evidence of the exploitation of another’s special vulnerability. See State v. Garner, 103 S.W.3d 866, 870 (Mo.App. S.D.2003), quoting People v. Knapp, 244 Mich.App. 361, 624 N.W.2d 227, 235 (2001).

In determining whether undue influence exists, we consider the following factors: “the extreme age of the [donor], his impaired physical condition, his mental debility, not necessarily amounting in complete incompetency, and the absence of competent and bona fide independent advice.” Farnsworth v. Farnsworth, 728 S.W.2d 223, 227 (Mo.App. W.D.1986). Another factor is whether the donee was active in some way which caused the execution of the instrument. See id. To establish undue influence, it is not necessary to establish the existence of a confidential relationship between the donor and the donee. Strauser, 762 S.W.2d at 865.

In this case, Miller admits that she appropriated funds from Whitaker. Thus, the only issue is whether there is competent and substantial evidence in the record that Miller’s appropriation was dishonest.

The Department’s decision did not make a specific finding as to whether Miller exercised undue influence over Whitaker in obtaining the check. However, the Department did make the following findings which suggest the existence of undue influence: (1) “[Miller] ... dishonestly obtained a check written against the account of [Whitaker],” (2) ‘Whitaker was made vulnerable due to declining health and the influence of powerful medications,” and (3) “[Miller] exploited Whitaker’s vulnerability using her position as Whitaker’s care provider.”

On the date of the appropriation, Whitaker was eighty-three years old. There is evidence that around that time Whitaker’s physical condition was poor. In May of 2003, Whitaker was diagnosed with acute respiratory failure, pneumonia, and had a history of congestive heart failure and chronic obstructive pulmonary disease. On May 15, 2003, Whitaker returned to Friendship Village after a two-week stay in the hospital and was essentially bedridden. Whitaker was hospitalized again from June 16 to June 19, 2003 for respiratory failure, and she died on June 24, 2003. The date of the appropriation took place in between Whitaker’s two hospitalizations.

There is conflicting evidence as to Whitaker’s mental condition around the date of the appropriation. In May of 2003, Whitaker was diagnosed with dementia. On May 21, 2003, one day before the date of the appropriation, Whitaker was diagnosed with depression. On May 21, 2003, and on June 11, 2003, Whitaker was taking, inter alia, Xanax and Buspar. Possible side effects of Xanax and Buspar are anxiety, delirium, worsening of cognitive functions, sedation, and dizziness.

The two psychiatric evaluations in the record closest in time to the date of the appropriation took place on March 21, 2003 and June 11, 2003. The March 21, 2003 evaluation indicates that Whitaker’s flow and content of thought were within normal limits, she was alert but disoriented as to time, and she had poor insight. The June 11, 2003 evaluation indicates that her content of thought was “helplessness,” she was alert and oriented, and her insight and judgment were within normal limits.

Mary Pommier (“Pommier”), an advance practice nurse board certified in geriatric nursing, saw Whitaker at least once a month from March of 2002 until Whitaker’s death in June of 2003. Pommier testified that during the last two months of Whitaker’s life, Whitaker could not make any decisions and that she and Whitaker’s doctor deferred to Behlman for those decisions.

Geriatric nurse practitioner Michele Roberts (“Roberts”) saw Whitaker in conjunction with Whitaker’s psychiatrist and treating physician every three to six weeks from 2002 until Whitaker’s death in June of 2003. Roberts stated that Whitaker experienced periods of confusion which increased during the last two months of Whitaker’s life. Roberts further testified that during the time period around the date of the appropriation, “[Whitaker’s] dementia progressed to the point with the other medical complications, with her COPD, hypoxia, deliriums that she’d been going in and out of, that it was impossible for her to clearly make decisions regarding a lot of her money.” Roberts also stated that, based upon her interaction with Whitaker, she believed that Whitaker did not have the capacity to make a gift to someone on the date of the appropriation, and that Whitaker could not understand the significance of her actions.

Miller testified that Whitaker, although diagnosed with dementia, “knew what she was doing” and knew enough to know what was going on with her finances.

Delores Feuerstine (“Feuerstine”), Whitaker’s bookkeeper for about five years, testified that during the last time she visited Whitaker prior to her death, Whitaker told her she would find a check entry for $15,000.00 to a nurse who was kind to her as a down payment on a house. Feuerstine believed Whitaker was “sharp as a tack.” While Feuerstine was aware that Whitaker was seeing a psychiatrist, she was unaware Whitaker was diagnosed with dementia. Feuerstine also stated she never knew Whitaker to be confused, disoriented, or anxious.

Whitaker also failed to seek competent and bona fide independent advice prior to the date of the appropriation, even though Whitaker could have consulted with either Behlman, her power of attorney, or Feuer-stine, her bookkeeper. For about five years, Feuerstine visited Whitaker once a month to balance the books and fill out any necessary checks, which Whitaker would sign. During that time, the only persons who filled out checks for Whitaker to sign were Feuerstine and Whitaker’s friend across the hall, except when Miller filled out the check to herself on the date of the appropriation.

Miller actively procured the check by filling in the details of the check: the date of the appropriation, her own name in the “pay to” area, and the $15,000.00 amount in numbers and in writing. Miller also endorsed the back of the check and cashed the check.

Although there is conflicting evidence as to Whitaker’s state of mind on the date of the appropriation, because Whitaker’s mental condition is only one factor suggesting Undue influence, we cannot say the Department’s decision is contrary to the overwhelming weight of the evidence. Rather, the record reflects that Whitaker’s extreme age, her impaired physical condition, her questionable mental condition, the absence of competent and bona fide independent advice, and Miller’s active procurement of the check constitutes competent and substantial evidence to support the Department’s findings which suggest the existence of undue influence. Thus, there is competent and substantial evidence that Miller dishonestly obtained the check from Whitaker. Further, the Department’s finding that “[Miller] ... dishonestly obtained a check written against the account of [Whitaker]” can be construed as a finding of misappropriation. Therefore, there is competent and substantial evidence that Miller misappropriated the check from Whitaker.

The Department’s decision ordering Miller’s name to be permanently placed on the EDL is also supported by competent and substantial evidence because of the degree of misappropriation and the presence of aggravating circumstances. The degree of Miller’s misappropriation was extensive given that the amount of the check was $15,000.00 and aggravating circumstances existed due to Whitaker’s extreme age, her physical condition, and her questionable mental condition. Point denied.

Based on the foregoing, the judgment of the trial court is affirmed.

      . Behlman discovered the check when she saw it listed on Whitaker’s bank statements.

      . Miller was charged with the crime of stealing, but these charges were dropped due to the fact that Whitaker was deceased.

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

      . Because of this admission, for purposes of this opinion all further references to “the date of the appropriation” will refer to May 22, 2003, the date Miller obtained the check from Whitaker.

      . Miller also concedes that she violated sections 198.090.2 and .6 “by virtue of the fact that she accepted the gift and did not report it.” Because of the context of her admission, we believe Miller intended to concede she violated sections 198.090.2 and .3. Section 198.090.2 mandates that a nursing home employee who receives a gift valuing ten dollars or more from a resident report the gift to the operator of the home. Section 198.090.3 prohibits a nursing home employee from accepting $100 or more from a resident. Section 198.090.6 criminalizes a nursing home employee for diverting personal funds from a resident.


author: LAWRENCE E. MOONEY, Judge.

text:
    Donald K. ZEISER, Appellant/Cross-Respondent, v. Amir H. TAJKARIMI and Three Rivers Systems, Inc., Respondents/Cross Appellants.
    Nos. ED 85922, ED 85955.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 14, 2006.

      Frank Susman, Kenneth B. Newman, Andrew D. Dillon, Lawrence C. Friedman, St. Louis, MO, for appellant.
    Gregory H. Wolk, Andrew S. Berg, St. Charles, MO, for respondents.
   LAWRENCE E. MOONEY, Judge.

This Court is presented with an appeal and cross-appeal from summary judgment entered in a contract dispute. Because the contract is ambiguous, summary judgment was improperly granted and, thus, we reverse and remand.

Factual and Procedural Background

This is an action between Three Rivers Systems, Inc., a software-development corporation, and its sole owner/shareholder, Mr. Amir H. Tajkarimi, on one hand, and on the other, Donald K. Zeiser, a former shareholder who remained engaged by the corporation as a consultant following the redemption of his company stock. Prior to August 2000, Mr. Tajkarimi and Mr. Zeiser were the sole owners/shareholders of Three Rivers. In August of 2000, the parties agreed that Three Rivers would redeem all of Zeiser’s corporate stock, and that Zeiser would resign as a director of Three Rivers. At the same time, the parties entered into a consulting agreement, whereby Three Rivers agreed to retain Zeiser as a consultant. It is this consulting agreement, and specifically the provisions for payment to Zeiser for his consulting services, that is at issue in the present action.

For his consulting services, Zeiser was to be paid according to the provisions set out in section 3 of the consulting agreement. This section had a number of sub-paragraphs that provided for a variety of payments, including subparagraph (a) that provided for an annual salary, and subpar-agraphs (b) and (c) that provided for quarterly payments equal to 20% of the net income of Three Rivers for the quarter. At the very heart of the debate in this case is subparagraph (d), which provides as follows:

d) After the Stock Redemption Price has been paid in full under Section 2.1 of the Stock Redemption Agreement, within 30 days of the end of the immediately preceding and each subsequent calendar quarter or other period as mutually agreed upon by the parties, a payment shall be made equal to an additional 30% of the Net Income (hereafter defined) of Three Rivers for the quarter or other agreed upon period just ended and for each quarter or other agreed upon period thereafter (less for the first quarter or other period only, the last payment under the Stock Redemption Agreement applied toward the Stock Redemption Price), until an aggregate sum of $1,400,000 has been paid to DKZ. Upon termination of this Agreement by either party, payments under this paragraph d) shall continue but at the increased percentage of 50% of Net Income.

Three Rivers and Mr. Tajkarimi (collectively the defendants) terminated the consultant agreement in September of 2003, and ceased making payments to Zeiser. The consulting agreement provided that, upon termination of the agreement, all payments under Section 3(a), (b), (c), and (e) would cease, but that Three Rivers would continue to have liability for payments under sections 3(d).

Zeiser filed suit against the defendants. In the first two counts of his six-count petition, Zeiser alleged breach of contract for the defendants’ failure to pay the full amount of the $1,400,000 owed him under subparagraph 3(d) of the consulting agreement. Zeiser claimed he was still owed approximately $677,000 under this section.

The defendants answered, and Three Rivers filed various counterclaims against Zeiser. The defendants then moved for summary judgment on all counts of Zeiser’s petition. As to Zeiser's breach-of-contract claims, the defendants contended that they had fulfilled their obligation to Zeiser, and thus were entitled to judgment as a matter of law, because the aggregate sum of all payments made to Zeiser under the consulting agreement had exceeded 1.4 million dollars, exclusive of the stock redemption price, and because the defendants had terminated the consulting agreement before any further payments to Zeiser accrued. In the defendants’ view, the phrase appearing in subparagraph 3(d) — “until an aggregate sum of $1,400,000 has been paid” — -meant that all of the payments stipulated to be due for consulting services accumulated until the amount of 1.4 million dollars had been paid.

Zeiser also moved for partial summary judgment, seeking judgment in his favor on the issue of material breach of contract by the defendants, as alleged in the first two counts of his petition. In Zeiser’s view, “aggregate sum” meant only the aggregate of the payments made pursuant to subparagraph (d); payments made pursuant to the other subparagraphs of section 3 were not to be included in the 1.4 million-dollar payment. Zeiser argued that the consulting agreement provided for three distinct types of compensation. First, Zeiser contended he was to receive an annual salary under section 3(a). Second, Zeiser contended he was to receive quarterly payments equal to 20% of the net income of Three Rivers, as provided for in section 3(b) and (c) of the consulting agreement. And third, Zeiser contended he was also to receive 1.4 million dollars under section 3(d) of the consulting agreement. Zeiser admitted receiving the annual salary, as well as a total of $562,515 under the net-income provisions, sections 3(b) and (c), of the consulting agreement. Zeiser argued, however, that the defendants had materially breached the consulting agreement by only paying $735,485 of the 1.4 million dollars owed to him under section 3(d) of the agreement.

The trial court entered summary judgment for the defendants. In so doing, the court found that the phrase in section 3(d) of the consulting agreement, “until an aggregate sum of $1,400,000 has been paid,” was unambiguous, and meant that all amounts paid pursuant to the preceding subparagraphs should be aggregated. The court found that there was no genuine issue that payment made in accordance with consulting agreement had accumulated to more than 1.4 million dollars, and thus the defendants had no additional liability for payment to Zeiser. Accordingly, the trial court found that the defendants were entitled to summary judgment on Zeiser’s breaeh-of-eontraet claims. And, consequently, Zeiser’s other claims failed because the defendants had performed their agreement. Zeiser appeals the grant of summary judgment on all counts, citing as error the trial court’s misinterpretation of section 3(d) of the consulting agreement in its summary judgment on the breach-of-contract claims.

Standard of Review

Our review of a grant of summary judgment is essentially de novo. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We view the record in the light most favorable to the party against whom judgment was entered, and afford that party the benefit of all reasonable inferences. Id. For entry of summary judgment in its fayor, a movant has the burden of proving that no genuine issues of material fact exist and that it is entitled to judgment as a matter of law. Id. at 381. Whether or not summary judgment was proper is a question of law, and we need not defer to the trial court’s order granting summary judgment. Id. at 376.

Discussion

The propriety of summary judgment in this case turns on the interpretation of the language of subparagraph 3(d) of the consulting agreement, and whether the language used is unambiguous in its meaning. “In a contract case, summary judgment is appropriate where the language of the agreement is so clear and unambiguous that the meaning of the portion of the contract in dispute is so apparent that it may be ascertained from the four corners of the document.” Board of Educ. City of St. Louis v. State, 134 S.W.3d 689, 695 (Mo.App. E.D.2004) citing Missouri Consol. Health Care Plan v. BlueCross BlueShield of Missouri, 985 S.W.2d 903, 908 (Mo.App.1999)(quoting MECO Sys., Inc. v. Dancing Bear Entertainment, Inc., 948 S.W.2d 185, 191 (Mo.App.1997)); see also, Northwest Plaza, L.L.C. v. Michael-Glen, Inc., 102 S.W.3d 552, 557 (Mo.App. E.D.2003). “Summary judgment is inappropriate in an action arising out of a contract, however, where the disputed contract language is ambiguous and parol evidence is.required to interpret the contract and the parties’ intent.” Northwest Plaza, 102 S.W.3d at 557 citing Missouri Consol. Health Care Plan, 985 S.W.2d at 908. Where a contract is ambiguous, then a question of fact arises as to the intent of the parties as to its meaning, and thus it is error to grant summary judgment. Tuttle v. Muenks, 21 S.W.3d 6, 9 (Mo.App. W.D.2000). Rather, the determination of the parties’ intent should be left to the jury. Id.

Whether a contract is ambiguous is a question of law for the court, that we determine without deference to the trial court’s decision. Eveland v. Eveland, 156 S.W.3d 366, 369 (Mo.App. E.D.2004); see also, Northwest Plaza, 102 S.W.3d at 557. A contract is not ambiguous merely because the parties disagree as to its construction. Dunn Industrial Group, Inc. v. City of Sugar Creek, 112 S.W.3d 421, 428 (Mo. banc 2003). Rather, a contract is ambiguous only if its terms are susceptible of more than one meaning so that reasonable persons may fairly and honestly differ in their construction of the terms. Id.; Northwest Plaza, 102 S.W.3d at 557. Additionally, if language which appears plain considered alone conflicts with other language in the contract, or if giving effect to it would render other parts of the contract a nullity, then we will find the contract to be ambiguous. Tuttle, 21 S.W.3d at 9.

Despite all parties’ contentions to the contrary, we hold the language of the consulting agreement to be ambiguous. The terms of the consulting agreement are susceptible of more than one meaning such that reasonable persons can fairly and honestly differ in their construction of the terms of the consulting agreement. The language of the agreement is simply unclear as to whether the aggregate sum of 1.4 million dollars refers only to the “additional” payments contemplated in 3(d) or whether it also refers to payments made under the other subparagraphs, as well. Additionally, in considering the contract as a whole, the language of subparagraph 3(d) appears to conflict with other provisions in the consulting agreement. Parol evidence is required to interpret the contract and to ascertain the parties’ intent in this case. For the foregoing reasons, we hold that the agreement is ambiguous.

Because the language of the consulting agreement is ambiguous and because parol evidence is required to determine the parties’ intent, a genuine issue of material fact exists and, therefore, summary judgment is not proper. We, therefore, reverse the trial court’s judgment granting summary judgment in the defendants’ favor on all counts of Zeiser’s petition, and remand the cause for further proceedings.

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

      . Three Rivers, Mr. Tajkarimi, and Mr. Zeiser entered into a shareholders’ agreement in December of 1991. Pursuant to that agreement, Mr. Tajkarimi owned 500 shares (59.95%) and Mr. Zeiser owned 334 (40.05%) of the outstanding common stock of the corporation.

      .Section 3 of the consulting agreement provided, in part, as follows:

        3.Payment. For such consulting services, DKZ [Donald K. Zeiser] will be paid the following amounts:
      a) An annual salary of $40,000, payable in equal monthly installment on the first day of each month during the term of this Agreement, commencing September 1, 2000, ...
      b) Within 30 days of the end of the first calendar quarter after the date hereof, or of the end of such other period after the date hereof as mutually agreed upon by the parties, an initial payment shall be made equal to 20% of the Net Income (hereafter defined) of Three Rivers for the period from the date hereof until the end of said calendar quarter or other agreed upon period.
      c) Within 30 days of the end of each subsequent calendar quarter or other period as mutually agreed upon by the parties, a payment shall be made equal to 20% of the Net Income (hereafter defined) of Three Rivers for the quarter or other agreed upon period just ended.
      d) After the Stock Redemption Price has been paid in full under Section 2.1 of the Stock Redemption Agreement, within 30 days of the end of the immediately preceding and each subsequent calendar quarter or other period as mutually agreed upon by the parties, a payment shall be made equal to an additional 30% of the Net Income (hereafter defined) of Three Rivers for the quarter or other agreed upon period just ended and for each quarter or other agreed upon period thereafter (less for the first quarter or other period only, the last payment under the Stock Redemption Agreement applied toward the Stock Redemption Price), until an aggregate sum of $1,400,000 has been paid to DKZ. Upon termination of this Agreement by either party, payments under this paragraph d) shall continue but at the increased percentage of 50% of Net Income.
      e)After both the Stock Redemption Price and $1,400,000 are paid in full, within 30 days of the end of the immediately preceding and each subsequent calendar quarter or other period as mutually agreed upon by the parties, a payment shall be made equal to 20% of the Net Income (hereafter defined) of Three Rivers for the quarter or other agreed upon period just ended (less for the first quarter or other period only, the last payment under paragraph d) above applied toward the $1,400,000). Upon termination of this Agreement by either party, payments under this paragraph e) shall cease.

      . There is no dispute that Zeiser received the full amount of the stock redemption price.

      . The terms of the consulting agreement provided that either party could terminate the agreement upon 60 days’ written notice.

      . In the other four counts of his petition, which are not directly at issue on appeal, Zeiser sought damages and/or rescission for alleged fraud in payments and fraudulent -inducement. He also brought an action for accounting.

      . The defendants' counterclaims alleged (1) waste of corporate assets, (2) money had and received/embezzlement, and (3) breach of contract. The defendants also brought actions for accounting.

      . Zeiser also moved for partial summary judgment in his favor on all but one count of Three Rivers’ counterclaim. No request was made for summary disposition of count II— money had and received/embezzlement of Three Rivers' counterclaim. The trial court, however, granted judgment in favor of Zeiser on all counts of Three Rivers’ counterclaim. Three Rivers has filed a cross-appeal alleging trial-court error in granting judgment in Zeiser’s favor on count II, because there was no motion pending before the court addressed to count II. Three Rivers' point is well taken. "In order for a trial court to grant summary judgment, it must normally have a motion for summary judgment before it....” Williams v. Mercantile Bank of St. Louis NA, 845 S.W.2d 78, 82 (Mo.App. E.D.1993). Here, there was no motion filed seeking summary judgment on count II. Thus, there was nothing before the court for decision relating to that count. The trial court, therefore, erred as a matter of law in entering summary judgment in favor of Zeiser on Count II. The judgment in favor of Zeiser on count II of Three Rivers’ counterclaim is reversed and remanded for further proceedings. Three Rivers raises no further allegations of error regarding the trial court’s judgment in Zeiser's favor on the other counts of its counterclaim. Accordingly, as to the other counts of Three Rivers’ counterclaims, the trial court’s judgment in favor of Zeiser is affirmed. And, Zeiser’s motion to dismiss Three Rivers’ cross-appeal is denied.


text:
    Paul ROLLEN, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 86053.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 14, 2006.
    Timothy Forneris, Assistant Public Defender, St. Louis, MO, for appellant.
    Deborah Daniels, Richard A. Starnes, Assistant Attorney General, Jefferson City, MO, for respondent.

      Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Movant, Paul Rollen, appeals from the judgment denying on the merits his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. The findings and conclusions of the motion court are based on findings of fact that are not clearly erroneous. No error of law appears. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order.

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


text:
    Piera KING, Appellant, v. DIERBERG’S MARKETS, INC., Respondent.
    No. ED 86349.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 14, 2006.
    Ray B. Marglous, St. Louis, MO, for Appellant.
    Karen A. Mulroy, St. Louis, MO, for Respondent.
    Before NANNETTE A. BAKER, P.J. and ROBERT G. DOWD, JR. and SHERRI B. SULLIVAN, JJ.
   ORDER

PER CURIAM.

Piera King (Claimant) appeals from the Final Award of the Labor and Industrial Relations Commission (Commission) affirming the award of the Administrative Law Judge (ALJ) denying compensation. On appeal, Claimant argues the Commission erred in finding the March 5, 2002 automobile collision involving Claimant did not arise out of and in the course of her employment, as required under Section 287.120, RSMo 2000. We affirm.

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 would have no precedential value nor serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order pursuant to Rule 84.16(b).


text:
    Byron LYONS, Claimant/Respondent, v. AUTO TERMINALS, INC., Employer/Appellant.
    No. ED 86325.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 14, 2006.
    Scott P. Holwitt, Weinhaus, Dobson, Goldberg & Moreland, St. Louis, MO, for respondent.

      L. David Green, Michael S. Prater, Ed-wardsville, IL, for appellant.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Employer appeals from the final award of the Labor and Industrial Relations Commission affirming the award of the Administrative Law Judge. We affirm. The findings and conclusions of the Commission are not clearly erroneous, and an extended opinion would have no prece-dential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our order affirming the judgment pursuant to Rule 84.16(b).


text:
    Torobereja THOMAS, Movant/Appellant, v. STATE of Missouri, Defendant/Respondent.
    No. ED 85953.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 14, 2006.
    Lisa M. Stroup, St. Louis, MO, for Appellant.
    Deborah Daniels, Lisa M. Kennedy — co-counsel, Jefferson City, MO, for Respondent.
    Before ROBERT G. DOWD, JR., P.J., CLIFFORD H. AHRENS, J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Torobereja Thomas (Movant) appeals from a judgment denying his request for post-conviction relief under Rule 29.15 following an evidentiary hearing. Movant claims ineffective assistance of trial counsel. We have reviewed the briefs of the parties and the record on appeal and conclude that the motion court did not clearly err in denying Movant’s motion for post-conviction relief. 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.2005, unless otherwise indicated.


text:
    In the Interest of B.S. and A.S., minors. Juvenile Officer of the City of St. Louis, Missouri, Petitioner/Respondent, v. L.S., Respondent/Appellant.
    Nos. ED 86248, ED 86249.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 14, 2006.

      Daniel Underwood, Graham LaBeaume, Family Court — Juvenile Division, St. Louis, MO, for respondent.
    Mary D. Fox, St. Louis, MO, for appellant.
    Suzanne Epstein-Lang, Family Court— Juvenile Division, St. Louis, MO, Guardian Ad Litem.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Mother appeals from the trial court’s judgment finding her two minor children within the provisions of section 211.031.1(1) RSMo (2000) and ordering that the children remain in protective custody and be in the legal custody of the Children’s Division. The judgment is supported by substantial evidence and is not against the weight of the evidence. No error of law appears. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

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

The judgment is affirmed in accordance with Rule 84.16(b).


text:
    Nicholas G. HIGGINS, Plaintiff/Appellant, v. LEGENDS ACQUISITION COMPANY, L.L.C., d/b/a The Country Club at The Legends, Defendant/Respondent.
    No. ED 86307.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 14, 2006.
    Mary Leighton Bruntrager, Neil John Bruntrager — co-counsel, St. Louis, MO, for appellant.
    Jerome F. Raskas, Peter Houghton Love — co-counsel, St. Louis, MO, for respondent.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Nicholas G. Higgins appeals from a summary judgment entered against him and in favor of Legends Acquisition Company, L.L.C. (Legends), d/b/a The Country Club at the Legends (the Club) in Higgins’s cause of action to recover damages for Legends’ failure to partially refund initiation fees Higgins paid to the Club for membership as provided by the Club’s Bylaws. We have reviewed the briefs of the parties and the record on appeal and conclude that the language of Section 5.02 of the Club’s Bylaws is not ambiguous, and because no genuine issues of material fact exist, Legends is entitled to judgment as a matter of law. ITT Commercial Fin. Corp. v. Mid-Am, Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). 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).


text:
    STATE of Missouri, Plaintiff/Respondent, v. Terrell D. ROBINSON, Defendant/Appellant.
    No. ED 86057.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 14, 2006.
    Jo Ann Rothermund, St. Louis, MO, for appellant.
    Deborah Daniels, Karen Louise Kramer — co-counsel, Jefferson City, MO, for respondent.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Terrell D. Robinson (Appellant) appeals from a trial court judgment granting the State’s Motion for Order Nunc Pro Tunc to correct a clerical mistake in the typewritten Judgment and Sentence. We have reviewed the briefs of the parties and the record on appeal and conclude that the trial court had jurisdiction to grant and did not abuse its discretion in granting the State’s Motion for Order Nunc Pro Tunc. 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 Criminal Procedure 30.25(b).