author: TAYLOR, Judge.

text:
    GIL RUEHL MECHANICAL, INC., Appellant, v. HARTFORD FIRE INSURANCE COMPANY, Appellee.
    No. 2003-CA-001250-MR.
    Court of Appeals of Kentucky.
    Dec. 17, 2004.
    Steven C. Coffaro, E. Todd Wilkowski, Keating, Muething & Klekamp, P.L.L., Cincinnati, OH, for Appellant.
    Michael A. Duncan, Molly E. MeEvoy, Ziegler & Schneider, P.S.C., Covington, KY, for Appellee.
    Before JOHNSON, TAYLOR, and VANMETER, Judges.
   OPINION

TAYLOR, Judge.

Gil Ruehl Mechanical, Inc. (Gil) brings this appeal from a June 10, 2003, Order of the Campbell Circuit Court, dismissing its complaint to recover against the surety of a mechanic’s lien release bond. We affirm.

In 2001, Gil was a plumbing subcontractor involved in the construction of Joe’s Crab Shack (Joe’s) in Bellevue, Kentucky. Gil alleged the general contractor, AGB Capital Properties, Inc., failed to pay it for services performed in the construction of Joe’s. As a result, Gil filed two “liens” on March 11, 2002. Landry’s Seafood House-Bellevue, Inc., the operator of Joe’s, secured a mechanic’s lien release bond from Hartford Fire Insurance Company (Hartford). The bond specifically provided that it was executed pursuant to Kentucky Revised Statutes (KRS) 376.100.

On March 12, 2003, Gil filed an action against, inter alios, Hartford asserting a claim for “Foreclosure on Bond in Lieu of Mechanic’s Liens.” Hartford filed a motion to dismiss under Ky. R. Civ. P. (CR) 12 based upon expiration of the statute of limitations. Hartford argued the applicable statute of limitations for an action against a surety on a mechanic’s lien release bond was found in KRS 376.090. Hartford pointed out that KRS 376.090 provides the limitation period for an action to enforce a mechanic’s lien. Thus, Hartford argued that KRS 376.090 is also the limitation period for an action against a surety upon a mechanic’s lien release bond. Under KRS 376.090, an action to enforce a mechanic’s lien must be filed within twelve months of filing the lien. Hartford pointed out that the liens were filed March 11, 2002, and the action was filed March 12, 2003, one day outside the limitation period. Thus, Hartford claimed that KRS 376.090 barred Gil’s action upon the release bond.

Gil countered that KRS 413.220 represented the proper statute of limitation. Under KRS 413.220, an action against a surety upon a bond must be brought within seven years of filing the bond. As the mechanic’s liens were discharged upon filing the bond, Gil argued that KRS 413.220 was the applicable statute of limitations and that its action was timely filed.

The circuit court agreed with Hartford that KRS 376.090 was the proper statute of limitations and that Gil’s action to enforce the mechanic’s hen release bond was untimely filed. By order entered June 10, 2003, the circuit court dismissed Gil’s action to enforce its claim against Hartford as surety on the release bond. This appeal follows.

Upon review of a motion to dismiss under CR 12, all factual allegations contained in the complaint must be admitted as true and there must exist no set of facts upon which recovery could be had. The facts relevant to this appeal are materially undisputed. We are called upon to decide a single legal issue — whether KRS 413.220 or KRS 376.090 is the proper statute of limitations for an action to recover against the surety upon a mechanic’s hen release bond. For the reasons hereafter stated, we hold that KRS 376.090 provides the proper limitation period for an action to recover against the surety of a mechanic’s hen release bond.

To determine the apphcable statute of limitations for an action to enforce a mechanic’s hen release bond, our analysis must begin with the only case in this Commonwealth interpreting our release bond statute, KRS 376.100. In Jungbert v. Marret, 313 Ky. 338, 231 S.W.2d 84 (1950), the Court was faced with the question of whether an invalid mechanic’s hen operated to extinguish liability upon a mechanic’s hen release bond. The Court answered in the affirmative by interpreting KRS 376.100 as creating a bond that is a “mere substitute for the hen property.” Id. at 85. The Court explained that in enacting KRS 376.100, the General Assembly’s intent was:

[T]o provide a method only of freeing the property of the hen in order that the owner might make disposition of the property, and that the obligation of the bond should not extend beyond the obligation of the hen for which it was substituted.

Jungbert, 231 S.W.2d at 85. In accordance with this intent, the Court concluded that “[t]he prerequisite for the effectiveness of the bond is the existence of a valid hen on the property.” Id.

In essence, the Court adopted a view that the release bond merely transfers the mechanic’s hen from the real property to the bond. See Gerald B. Treacy, Comment, The Release Bond Statutes: Achieving Balance in the Mechanics’ Lien Laws, 28 UCLA L.Rev. 95 (1980). Under such view, the statutory mandates necessary to estabhsh a valid mechanic’s hen must be satisfied in order to recover against the surety upon the release bond. 53 Am. Jur.2d Mechanics’ Liens § 314 (1996).

KRS 376.090 codifies the statute of limitations apphcable to an action to enforce a mechanic’s hen. While most statutes of limitations are procedural in nature, an exception is recognized:

[Wjhere a statute gives a right of action, or creates a liability, which did not exist at common law, and makes limitation of time an essential element of the cause of action, in which case the running of the limitation period will not only bar the remedy, but also the right conferred. ...

54 C.J.S. Limitations of Actions § 11 (1987)(footnotes omitted). In such circumstances, the statute of limitations is regarded as a substantive restriction upon a statutorily created right.

It is well known that a mechanic’s lien is a creature of statutory law and did not exist at common law. Additionally, KRS 376.090, the mechanic’s lien statute of limitations, specifically provides that the lien “shall be deemed dissolved unless an action is brought to enforce the lien within twelve (12) months from the day of filing the statement....” (Emphasis added). Thus, under its plain terms, KRS 376.090 does not merely preclude a claim upon the mechanic’s lien; rather, it dissolves the lien. It has been observed that “[a] statute that invalidates the mechanic’s lien, rather than simply precluding a claim on it, is not a traditional statute of limitations, but a substantive restriction on the hen....” 53 Am.Jur.2d Mechanics’ Liens § 354 (1996). As KRS 376.090 dissolves the mechanic’s lien, its limitation period should be regarded as a substantive rather than a procedural restriction.

Accordingly, we hold the twelve-month limitation period set out in.KRS 376.090 extinguishes not only the right to enforce the mechanic’s lien but extinguishes the lien itself. Simply stated, we view KRS 376.090 as representing a substantive restriction upon and an essential element of a valid mechanic’s lien.

In accordance with Jungbert, 313 KY. 338, 231 S.W.2d 84, the statutory mandates necessary to establish a valid mechanic’s hen must be satisfied in order to recover upon the release bond. As artfully stated therein, “[t]he prerequisite for the effectiveness of the bond is the existence of a valid lien on the property.” Id. at 85. As KRS 376.090 represents a substantive restriction upon a mechanic’s hen, we now recognize that its limitation period must be comphed with in order to recover upon a mechanic’s hen release bond. As such, KRS 376.090 is the proper statute of limitations in an action to recover against the surety of a mechanic’s hen release bond under KRS 376.100.

As Gil’s action to recover against Hartford was filed one day after the limitation period of KRS 376.090 expired, we conclude the circuit court properly dismissed Gil’s action to recover upon the mechanic’s hen release bond.

For the foregoing reasons, the Order of the Campbell Circuit Court is affirmed.

ALL CONCUR.

      . Kentucky Revised Statutes (KRS) 376.090 reads, in part, as follows:
      (1) Any lien provided for in KRS 376.010 shall be deemed dissolved unless an action is brought to enforce the lien within twelve (12) months from the day of filing the statement in the clerk’s office, as required by KRS 376.080....
      (2) Any lien provided for in KRS 376.010 shall, if the lienholder complies with the requirements of KRS 376.080 and subsection (1) of this section, and does so within the time therein fixed, be valid and effectual against any creditor of, or bona fide or other purchaser from, the owner of the property.

      . KRS 413.220 reads as follows:
      (1) A surety shall be discharged from all liability under any judgment or decree, after the lapse of seven (7) years without the issue of execution and prosecution in good faith for collection.
      (2) A surety in any bond given in the course of any judicial proceeding shall be discharged from all liability on it unless suit is brought on it within seven (7) years after the cause of action accrues.
      (3) A surety in any obligation or contract, other than those provided for in KRS 413.230, shall be discharged from all liability on it unless suit is brought on it within seven (7) years after the cause of action accrues.

      .KRS 376.100 provides:
      "The owner or claimant of property against which a lien has been asserted, or any other person contracting with the owner or claimant of such property for the furnishing of any improvements or services for which a lien is created by this chapter, may, at any time before a judgment is rendered enforcing the lien, execute before the county clerk in which the lien was filed a bond for double the amount of the lien claimed with good sureties to be approved by the clerk, conditioned upon the obligors satisfying any judgment that may be rendered in favor of the person asserting the lien. The bond shall be preserved by the clerk, and upon its execution the lien upon the property shall be discharged. The person asserting the lien may make the obligors in the bond parties to any action to enforce his claim, and any judgment recovered may be against all or any of the obligors on the bond.”

      . Gil effectively asks this Court to interpret KRS 376.100 in such a manner so as to extend the obligation of the bond beyond the obligation of the lien for which it was substituted. This argument was specifically rejected in Jungbert v. Manet, 313 Ky. 338, 231 S.W.2d 84 (1950). In other words, Gil seeks to extend the statute to "insure” the validity of the lien which the legislature did not intend. Id. at 85. Notwithstanding Gil’s argument for a liberal construction of the statute, we are not at liberty to rewrite the statute contrary to legislative intent.


source: Caselaw Access Project

author: HUDDLESTON, Senior Judge.

license: Public Domain

text:
    Q.C., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2004-CA-000147-DG.
    Court of Appeals of Kentucky.
    April 29, 2005.

      Gail Robinson, Assistant Public Advocate, Frankfort, KY, for appellant.
    Gregory D. Stumbo, Attorney General of Kentucky, Frankfort, KY, Joseph H. Mat-tingly, III, Special Assistant Attorney General, Lebanon, KY, for appellee.
    Before MINTON and TACKETT, Judges; HUDDLESTON, Senior Judge.

      . Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

   OPINION AND ORDER

HUDDLESTON, Senior Judge.

In July of 2001, Q.C., a juvenile, was charged in Marion District Court, Juvenile Division, with terroristic threatening and burglary in the second degree. Q.C. denied the charges and proceeded to an adjudication hearing before the Honorable James L. Avritt, Jr., one of Marion County’s district court judges. After hearing the evidence, Judge Avritt dismissed the terroristic threatening charge but found Q.C. guilty of burglary. At a subsequent disposition hearing, Judge Avritt sentenced Q.C. to sixty days in detention; however, Judge Avritt suspended the sentence and placed Q.C. on supervised probation until he turned eighteen.

As a condition of his probation, Q.C. was required to be home by 9:00 p.m. every night. Despite being aware of this condition, Q.C. broke curfew when he left home on February 23, 2002, and did not return until February 26th. In response to Q.C.’s defiance, Judge Avritt issued, on February 25th, a pickup order charging Q.C. with contempt of court. Q.C. was taken into custody. On February 27th, after a detention hearing, the Honorable Connie S. Phillips, Marion County’s chief district court judge, ordered Q.C. detained.

On March 4, 2002, Judge Avritt held a hearing that he referred to as a “contempt/probation revocation hearing”. After hearing testimony from Q.C.’s guardian, Judge Avritt revoked Q.C.’s probation and committed him to the Department of Juvenile Justice (DJJ). Q.C. appealed to Marion Circuit Court, which affirmed the juvenile court’s decision. Q.C. then moved this Court to grant discretionary review. His motion was granted.

On discretionary review, Q.C. argues that the Commonwealth filed neither a written petition charging him with contempt nor a written motion seeking to revoke his probation. Thus, Q.C. reasons, his due process rights, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Sections 2 and 11 of the Kentucky Constitution, were violated.

Even if sufficient notice had been given, Q.C. argues, he could not have been committed to DJJ for either violating his probation or contempt. According to Q.C., a juvenile court can only commit a child to DJJ when the child has been found guilty of a public offense. To support his proposition, Q.C. cites Kentucky Revised Statutes (KRS) 600.020, which defines public offense, and argues that, according to the statute, an alleged probation violation is not a public offense. Furthermore, he points out, KRS 600.020 specifically excludes contempt from the definition of public offense. Since neither contempt nor a probation violation constitutes a public offense, Q.C. concludes that the juvenile court could not have committed him to DJJ.

Q.C. observes that the juvenile code neither defines nor even mentions “probation violation”; thus, he concludes that, even though a juvenile court has the authority to impose probation, it lacks the complementary authority to revoke said probation. According to Q.C., in order to punish a child who has violated probation, a juvenile court must rely upon its inherent contempt powers, which the General Assembly specifically preserved in KRS 600.060. Consequently, Q.C. reasons, the juvenile court could not have committed him to DJJ since he was only facing contempt at the March 4th hearing and KRS 635.055 prohibits a juvenile court from committing a child to DJJ for contempt.

We do not agree that the juvenile court lacked authority to revoke Q.C.’s probation. While the juvenile code neither mentions probation violation nor probation revocation, when the General Assembly granted juvenile courts the authority to impose probation in KRS 635.060(2), it also imbued them with the inherent power to revoke probation. Without the power to revoke, a juvenile court would be unable to enforce probation. In addition, without the power to revoke, KRS 635.060(2) would be rendered meaningless.

Moreover, in KRS 533.050, the General Assembly granted both district and circuit courts the authority to revoke an adult criminal’s probation. Juvenile probation is sufficiently similar to adult probation so that KRS 533.050 applies to probation in juvenile courts. We conclude, therefore, that the juvenile court had the authority to revoke Q.C.’s probation.

While we disagree with Q.C. regarding the juvenile court’s authority to revoke probation, we agree with him that due process required the Commonwealth to serve him with written notice which set forth the specific grounds that constitute the alleged probation violation. If, as in this case, the Commonwealth fails to give adequate written notice, then the lack of proper notice may be a ground for reversal. Despite this, we conclude that twenty-year-old Q.C.’s appeal has become moot since his commitment to DJJ terminated some two years ago when he became an adult. Thus, we can no longer grant him any relief.

It is ORDERED that this appeal be and it is hereby DISMISSED AS MOOT.

ALL CONCUR.

      . See KRS 533.050; Baumgardner v. Commonwealth, 687 S.W.2d 560 (Ky.App.1985); Rasdon v. Commonwealth, 701 S.W.2d 716 (Ky.App.1986); and Messer v. Commonwealth, 754 S.W.2d 872 (Ky.App.1988).


author: BUCKINGHAM, Judge.

text:
    Stephen Joseph MATTINGLY, Appellant, v. Kristie Keisker MATTINGLY (now Elkins), Appellee.
    No. 2004-CA-000314-MR.
    Court of Appeals of Kentucky.
    May 13, 2005.

      B. Mark Mulloy, Louisville, KY, for appellant.
    James A. Grider, Louisville, KY, for ap-pellee.
    Before BUCKINGHAM, JOHNSON, and SCHRODER, Judges.
   OPINION

BUCKINGHAM, Judge.

Stephen Joseph Mattingly appeals from an order of the Jefferson Family Court granting Kristie Keisker Mattingly’s (now Elkins) motion seeking to enforce the college education expense provision of a property settlement agreement as a child support obligation nondischargeable in bankruptcy. We affirm.

Stephen and Kristie were married on September 8, 1979. During the course of their marriage, they had two children, Wesley Nolan Mattingly, born January 9, 1984, and Aaron Stewart Mattingly, born April 15, 1985. The couple separated on May 10, 1986, and Kristie filed a petition for dissolution of marriage in the Jefferson Circuit Court.

On November 14, 1988, the parties filed a property settlement agreement. Under the section styled “Child Support,” Stephen agreed to pay Kristie $125 a week per child. In addition, the child support section also included Stephen’s obligation to pay expenses for insurance and medical care, his obligation to pay expenses for the boys to attend private school (grades K-12), and his obligation to pay for four years of undergraduate school for each of his sons. Under the college expense provision, Stephen agreed to pay tuition, books, fees, room and board, and a reasonable allowance. The property settlement agreement also addressed maintenance, the division of marital property, attorney’s fees and costs, real estate, taxes, and miscellaneous issues in separate sections. The property settlement agreement was incorporated by reference into the decree of dissolution entered on January 6, 1989.

Stephen remarried, and on November 17, 1995, he and his wife filed a voluntary petition for bankruptcy under Chapter 7 of the bankruptcy code. The action was filed in the U.S. Bankruptcy Court in Baltimore, Maryland. Stephen listed Kristie as an unsecured creditor with a fixed and liquidated claim of $100,000. The disclosure contained no information that would indicate Kristie was Stephen’s former spouse, that the debt arose in relation to the property settlement agreement, or that the amount was Stephen’s estimate of the value of the college expense provision contained in the child support section of the agreement. Kristie entered no appearance in the bankruptcy proceeding. On May 14, 1996, the bankruptcy court entered an order discharging Stephen and his wife of their dischargeable debts.

On August 19, 2002, Kristie filed a motion in the Jefferson Family Court to enforce the child support provisions of the property settlement agreement. Specifically, she asked the court to enforce Stephen’s obligation under the college expense provision. At the time, the couple’s oldest son, Wesley, was enrolled in Cornell University, and Stephen had refused to pay the expenses allocated to him under the agreement. Stephen did not deny the terms of the agreement. Rather, he argued that the obligation had been discharged through the bankruptcy proceeding.

On January 15, 2004, the Jefferson Family Court entered an order granting Kristie’s motion seeking to enforce the terms of the agreement. First, the court determined that it had jurisdiction to decide whether the obligation was dischargeable under 11 U.S.C. § 523(a)(5). The court then determined that the college expense obligation was not dischargeable because it was in the nature of child support. This appeal by Stephen followed.

Stephen’s first argument is that since a trial court could not have ordered post-majority child support on its own, it necessarily follows that the court would be precluded from finding post-majority support to be in the nature of child support and thus nondischhrgeable under 11 U.S.C. § 523(a)(5). In support of his argument, he cites KRS 405.020(1) and KRS 403.213(3).

KRS 405.020(1) provides generally that “[t]he father and mother shall have the joint custody, nurture, and education of their children who are under the age of eighteen (18)” and that the father is primarily hable for the nurture and education of such children “and for any unmarried child over the age of eighteen (18) when the child is a full-time high school student, but not beyond completion of the school year during which the child reaches the age of nineteen (19) years.” KRS 403.213(3) provides in pertinent part as follows:

Unless otherwise agreed in writing or expressly provided in the decree, provisions for the support of a child shall be terminated by emancipation of the child unless the child is a high school student when he reaches the age of eighteen
(18). In cases where the child becomes emancipated because of age, but not due to marriage, while still a high school student, the court-ordered support shall continue while the child is a high school student, but not beyond completion of the school year during which the child reaches the age of nineteen (19) years. [Emphasis added.]

Stephen is correct that the obligation to support a child is limited by the statutes. However, the parties are free to agree otherwise in writing. See KRS 403.213(3). See also Bustin v. Bustin, 969 S.W.2d 697, 699 (Ky.1998); Wilhoit v. Wilhoit, 521 S.W.2d 512, 513 (Ky.1975); and Stevens v. Stevens, 798 S.W.2d 136, 139 (Ky.1990). Therefore, we reject Stephen’s argument that a provision for college education expenses can never be construed as an obligation in the nature of child support.

Stephen’s next argument is that because Kristie failed to challenge the discharge of his obligation/debt in the bankruptcy proceedings, she is precluded from bringing her present claim in the family court. In support of this argument, Stephen cites 11 U.S.C. § 523(a)(15). The federal bankruptcy statutes set out specific exceptions to discharge in 11 U.S.C. § 523. The two exceptions of particular importance in this case are 11 U.S.C. § 523(a)(5) and 11 U.S.C. § 523(a)(15).

Under section 5 to 11 U.S.C. § 523(a), a discharge of debt in a Chapter 7 proceeding does not discharge an individual debtor from any debt “to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree, or other order of a court of record, determination made in accordance with State or territorial law by a government unit, or property settlement agreement, but not to the extent that ... (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance or support[.]” Section 15 of the statute generally precludes an individual debtor from discharging a debt “not of the kind described in paragraph (5) that is incurred by the debt- or in the course of a divorce or a separation or in connection with a separation agreement, divorce decree or other order of a court of record, a determination made in accordance with State or territorial law by a governmental unit[.]”

Stephen’s argument is that the property settlement agreement requiring him to pay for his children’s college education expense does not create an obligation in the nature of child support and, thus, its discharge-ability must be considered in the context of section 15 of 11 U.S.C. § 523(a) rather than section 5. However, before a debt arising from a divorce decree or property settlement agreement can be subject to 11 U.S.C. § 523(a)(15), it must first be found to be not of the kind subject to section (5). See In re Henry, 238 B.R. 472, 474 (Bankr.D.N.D.1999). Because Stephen’s obligation to pay the children’s college education expenses is a debt covered by section 5, as we will explain below, section 15 is not applicable.

Finally, we turn to whether the family court correctly determined that Stephen’s obligation was not dischargeable because it fell within the provisions of 11 U.S.C. § 523(a)(5). Both state courts and federal courts have jurisdiction to determine the dischargeability of an obligation under 11 U.S.C. § 523(a)(5). In re Smither, 194 B.R. 102 (Bankr.W.D.Ky.1996). See also Cunningham v. Cunningham, 497 S.W.2d 941, 942 (Ky.1973). (“A state court in construing its own judgment may decide in judgment enforcement proceedings whether an obligation imposed by the judgment falls within an exception stated in the Bankruptcy Act to the usual effect of a discharge.”) Even following the issuance of a discharge order, a discharge under 11 U.S.C. § 523(a)(5) remains preserved until a judicial resolution is obtained. See Matter of Tremaine, 188 B.R. 380 (Bankr.S.D.Ohio 1995).

The “weight of published circuit, district, and bankruptcy court opinions addressing the instant issue have held that obligations to provide post-majority support, whether in the form of child support payments or educational support, are non-dischargeable support obligations as contemplated in 11 U.S.C. § 523(a)(5).” In re Prager, 181 B.R. 917, 920 (Bankr.W.D.Tenn.1995). “[T]he majority view of district and bankruptcy courts is that a parent’s obligation to pay a child’s college expenses pursuant to a separation agreement, divorce decree, or other court order may constitute an obligation ‘in the nature of support’ that is nondischargeable under § 523(a)(5).” In re Seixas, 239 B.R. 398, 403 (B.A.P. 9th Cir.1999). “[Wjhether an obligation to a former spouse or a child is ‘support’ within the statute’s meaning is ordinarily a question of fact[.]” In re Hale, 289 B.R. 788, 789 (B.A.P. 1st Cir.2003).

The court in In re Smither set forth the following elements as necessary under 11 U.S.C. § 523(a)(5) to show that a debt is nondischargeable:

1. It is owed to a spouse, former spouse, or child of the debtor;
2. It has not been assigned to another entity, except pursuant to section 402 of the Social Security Act;
3. It arose in connection with a divorce decree, separation agreement, property settlement agreement, order of a court of record, or determination made by a governmental unit with state or territorial law; and
4. It is “in the nature of alimony, maintenance or support.”

194 B.R. at 105. The first three elements are met without dispute in this case. The controversy is whether Kristie established the last element.

The family court found the language and structure of the property settlement agreement indicative of an intent by the parties to create an additional child support obligation. The court noted that the section containing the college expense provision fell within the “Child Support” section of the agreement. Further, that obligation was included with other items that fell within the nature of child support, such as weekly support payments per child, medical expenses, life insurance expenses, and special education expenses. Because there was substantial evidence to support the court’s finding that the college expense obligation was in the nature of child support, we conclude that the court did not clearly err in making such determination. See also In re Prager, 181 B.R. at 920 (“where an obligation is labeled as alimony, maintenance, or support and the parties intended to create a support obligation, the bankruptcy court’s inquiry-should end.” Id., citing In re Fitzgerald, 9 F.3d 517, 521 (6th Cir.1993)).

The order of the Jefferson Family Court is affirmed.

ALL CONCUR.

      . An order was later entered transferring the ease to the Jefferson Family Court.

      . United States Code.

      . Kentucky Revised Statutes.


author: JAMES K. PREWITT, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Gary L. SAUCY, Defendant-Appellant.
    No. 26314.
    Missouri Court of Appeals, Southern District, Division One.
    March 14, 2005.
    Petition to Rehearing and Transfer Denied April 5, 2005.

      Kent Denzel, Assistant Public Defender, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Leslie E. McNamara, Assistant Attorney General, Jefferson City, MO, for respondent.
   JAMES K. PREWITT, Judge.

On September 10, 2002, Gary L. Saucy (“Defendant”) was charged with separate offenses under two counts of robbery in the first degree, pursuant to § 569.020, RSMo 2000. The amended information also charged that Defendant was a prior and persistent offender. The two charges were joined, to which Defendant objected and filed a motion to sever which was denied by the trial court.

Under Count I, Defendant was charged with forcibly stealing money by threatening the immediate use of a dangerous instrument against an employee at a Dollar General store. Count II charged Defendant with forcibly stealing money by threatening the immediate use of a dangerous instrument against an employee at B.J.’s Liquor store. Following a jury trial, Defendant was convicted on Count II, and a mistrial was declared as to Count I. Defendant was sentenced as a prior and persistent offender on June 8, 2004, to a term of seventeen years’ imprisonment. Defendant appeals his conviction under Count II.

The charges for which Defendant was tried stemmed from two separate robberies in Joplin, occurring six days apart in July of 2001. At some time in the afternoon of July 6, 2001, an African-American male held a box knife to the neck of an employee at the Dollar General store and demanded that the employee surrender money. The employee was on his way to the back of the store to count his cash drawer when a man stopped him to inquire about air fresheners. The man followed the employee to the back of the store until the employee reached the stockroom and then told the employee “that this was a robbery and that he wanted all [of the] cash.” When the employee failed to respond, the man told him he wasn’t joking and pulled out a box knife. The employee was cut on the chin as the man held the box knife to his neck. An assistant manager was also in the area of the stockroom, and the employee and assistant manager were ordered to lay face-down on the floor as the robber left the store on foot with approximately $400.00 taken from the cash drawer. Coins and checks from the drawer were not taken. The employee could not identify the robber, although a third employee identified someone other than Defendant as the man who stole the money. The individual whom the employee identified was later determined to have been in custody at the time of the robbery.

On July 12, 2001, an alleged robbery occurred at B.J.’s Liquor store around 9:00 p.m. There, an African-American male purchased two cigars and, after receiving change, pulled out an object covered with a white cloth and told the clerk to give him the money. The clerk opened the cash register and then was told to lay face-down on the floor and surrender his wallet. The clerk complied; however, the robber did not take the clerk’s wallet, but he left the store with approximately $247.00 from the cash drawer. After the robber left through the front door of the store, the clerk saw him running west. A surveillance camera recorded the robbery, and the police obtained still photos of the perpetrator which were later shown on television.

From the television broadcasts of the photos of the suspect, the police received tips implicating Defendant. A woman with whom Defendant was living at the time of the July 12th robbery viewed the videotape and identified Defendant as the robber. When the police located Defendant on July 21, 2001, he was placed under arrest. A box knife was found in Defendant’s possession when police searched him. Using Defendant’s mug shot, the police developed a photo lineup which they showed to witnesses -of the two robberies. The clerk from B.J.’s Liquor identified Defendant from the photo lineup police showed him.

On March 29, 2004, Defendant’s jury trial was held. Defendant was convicted on Count II, but the jury did not return a verdict on Count I, and the trial court declared a mistrial as to Count I. The State subsequently filed its nolle prosequi Defendant was sentenced on June 4, 2004, to commitment to the Department of Corrections for a term of seventeen years. Defendant appeals.

Under his first point, Defendant challenges the sufficiency of evidence presented to establish that Defendant displayed a deadly weapon while robbing the clerk at B.J.’s Liquor. In deciding whether evidence at trial supports the conviction, “this court determines whether there was sufficient evidence from which a reasonable juror might have found defendant guilty beyond a reasonable doubt.” State v. Woodson, 140 S.W.3d 621, 627 (Mo.App.2004). We afford “great deference” to the fact finder. Id. at 628.

Defendant contends that there was no other evidence that a weapon was displayed beyond the clerk’s testimony that he “ ‘guessed’ the robber pulled a gun[,]” which was “nothing more than speculation, and as such it is not sufficient to sustain the verdict.” Defendant requests that this court reverse his conviction under Count II and remand for re-sentencing for second-degree robbery.

In support of his position, Defendant asserts that the witness “never said that he opened the cash register because he thought [Defendant] had a gun. He never even said he was afraid [Defendant] might have a gun[,]” and that the robber never claimed to have a gun or a dangerous instrument. Defendant further contends that had the State “presented any evidence of that nature, it might be entitled to an inference that the object in the white cloth appeared to be a gun or dangerous instrument. But because it did not, its case failed as to that element.”

Jeff Beyer, the clerk at B.J.’s Liquor, testified that as he was stocking the cooler on the night of July 12, 2001, a man came in and asked for a cigar. The man paid with the exact change and then asked for another cigar. For the second purchase, Beyer had to walk behind the counter to get change from the cash register, and when he gave the man his change, “[tjhat’s when he pulled out, I guess a gun, I don’t know.” Further testimony is set forth below:

Q. Okay. Why is it that you don’t know if it was a gun or not?
A. It was covered up with a white cloth.
Q. You couldn’t actually see what it was?
A. No.
Q. Did he tell you what it was?
A. No.
Q. Did he say anything to you at the point that he’s got thing [sic] in a white cloth pointed at you?
A. Just telling me to give him, you know, give him the money.
Q. And what did you do then?
A. I just kind of, you know, froze for a minute. But then he said — said
open the, you know, and that’s when he walked around behind the register.
Q. Okay?
A. Or behind the counter.
Q. Okay. And what did he tell you or what did he do when he came around behind the counter?
A. He had me open the register.

At Defendant’s trial, the State had the burden of proving each and every element of robbery in the first degree, State v. Talkington, 858 S.W.2d 802, 804 (Mo.App. 1993), pursuant to § 569.020, RSMo., which provides, in pertinent part:

1. A person commits the crime of robbery in the first degree when he forcibly steals property and in the course thereof he, or another participant in the crime,
(1) Causes serious physical injury to any person; or
(2) Is armed with a deadly weapon; or
(3) Uses or threatens the immediate use of a dangerous instrument against any person; or
(4) Displays or threatens the use of what appears to be a deadly weapon or dangerous instrument.

“The distinctive element of robbery in the first degree is the taking of the property of another by violence or by putting the victim in fear.” State v. Day, 560 S.W.2d 322, 323 (Mo.App.1977). Here, the State charged Defendant with violation of subparagraph (3), contending that “[D]e-fendant threatened the immediate us[e] of a dangerous instrument!.]”

“Fear of immediate injury, ... need not be expressly shown” (Day, 560 S.W.2d at 323) or stated by the victim (State v. Collins, 567 S.W.2d 144, 146 (Mo.App.1978)). A presumption of fear will arise from evidence showing some reasonable grounds therefor. Day, 560 S.W.2d at 323; Collins, 567 S.W.2d at 146. Compliance with the demands of the robber is indicative of the victim’s fear of the consequences which could have resulted had he or she not complied. Id. Further, in instances where.the robber falsely pretends to be pointing a gun, “[t]he fact that defendant may not have had a gun does not prevent a conviction.” Id. at 146. Point I is denied.

In Point II, Defendant assigns error to the trial court’s denial of his “motion to dismiss the two counts of robbery for improper joinder[.]” Defendant asserts “that the counts were improperly joined because the two alleged robberies were not part of the same transaction, a common scheme or plan, or sufficiently of the same [or] similar character[,]” and have no connection. As to any determination of prejudice to the Defendant, he contends “that the evidence of each of the two incidents would have been inadmissible propensity evidence in a trial of the other, had they been tried separately.... Therefore, evidence of the Dollar General robbery violated [Defendant’s] right, in his trial for robbing BJ’s Liquor, to be tried only for that offense.”

Docket sheets reflect that on December 16, 2003, the trial court denied Defendant’s motion to sever Counts I and II. On March 4, 2004, Defendant filed a “Motion to Reconsider the Motion to Sever and for a Ruling on the Motion to Dismiss Improperly Joined Counts.” The trial court denied the same on March 9, 2004. Prior to the trial, Defendant renewed his motion and objected to the trial proceeding on both counts. The trial court overruled the objection.

“Appellate review of a claim for failure to sever charges involves a two-step analysis.” State v. Kelly, 956 S.W.2d 922, 925 (Mo.App.1997). First is a determination of whether the initial joinder of the offenses was proper; and, second, upon a determination that the joinder was proper, this “court must then determine whether the trial court abused its discretion in refusing to sever the offenses.” Id. Where offenses are improperly joined, “prejudice is presumed from a joint trial and the trial court erred in overruling the motion for severance.” State v. Bechhold, 65 S.W.3d 591, 594 (Mo.App.2002). In determining whether there has been a misjoinder of offenses, only the State’s evidence is considered. Id. at 595.

Whether joinder is proper or improper is a question of law, “while severance is within the trial court’s discretion.” State v. Tripp, 939 S.W.2d 513, 517 (Mo.App.1997). “Joinder addresses the more basic question of what crimes can be charged in a single proceeding, while severance presupposes proper joinder and leaves to the trial court’s discretion the determination of whether prejudice may or would result if charges properly joined were tried together.” Id. at 517-18.

Rule 23.05 and § 545.140.2, RSMo.2000 govern joinder.

Multiple offenses may be joined in the same information or indictment if they are of the same or similar character or if they are based on two or more acts that are part of the same transaction or are part of two or more acts or transactions that are connected or constitute parts of a common scheme or plan.

Kelly, 956 S.W.2d at 925.

The State contends that joinder was proper “because all of the alleged crimes were of a same or similar character.” To support this contention, the State cites the similarity of the offenses charged; that there was a lone robber who threatened the immediate use of a dangerous instrument against a store cashier; that the perpetrator approached “with a seemingly innocent purpose,” demanded money, and instructed the victims to lie on the floor; and that the robberies occurred “less than two weeks apart.”

The use of similar tactics in the commission of multiple crimes is sufficient to show that the offenses are of the same or similar character. Tripp, 939 S.W.2d at 518. Those tactics need only resemble or correspond with one another, and they do not need to be identical. Id. The manner in which the crimes were committed should be so similar that it is likely that the same person committed all the charged offenses. Id. However, identical tactics are not required for proper joinder, and liberal joinder is favored in the interest of judicial economy. State v. Vinson, 833 S.W.2d 399, 404 (Mo.App.1992).

Here, the circumstances were not so similar that it is likely that the same person committed both crimes. The evidence did not reflect that the same weapon was necessarily used, nor was there anything distinctive about the manner of committing the crimes. We cannot say that the tactics employed in each robbery were comparable. Other than the fact that in both robberies the perpetrator stole cash and was described as an African-American male, we can find no connection.

“To join offenses which are not part of a common scheme or plan exposes a defendant to prejudice by allowing proof of the commission of unrelated crimes.” State v. Brown, 954 S.W.2d 396, 398 (Mo.App.1997). To determine that the evidence of the other crimes did not prejudice the defendant, this court must find beyond doubt that the tainted evidence did not affect the jury in its fact-finding process. Id. Here, similar to Brown, Defendant was convicted on only one count. In Brown, the State argued that no prejudice resulted because by finding him guilty on two counts and their inability to decide on two other counts established that the jury was able to distinguish the evidence between each offense. On appeal, however, the Eastern District noted that “[a]n appellate court has no way of knowing, and should not speculate about, the extent to which the evidence entered into the jury’s decision-making process!,]” and “[w]e cannot decide whether Defendant was prejudiced by evidence considered by the jury in Counts II and III without speculating.” Id., at 398.

We find that joinder of the two offenses was improper in this case, thus, “prejudice is presumed and severance is mandated.” Kelly, 956 S.W.2d at 926. Point II has merit, and the judgment is reversed and a new trial granted on Count II.

In his final point, Defendant claims an abuse of discretion in the trial court’s denial of his motion in limine and objections at trial wherein Defendant challenged the admissibility of identification testimony elicited from Sherry Counts, a witness for the prosecution. Defendant contends that the trial court erred in allowing Ms. Counts to express a lay opinion when she identified Defendant as the robber from the surveillance video from B.J.’s Liquor store, and thus “invaded the province of the jury.” This contention is reviewed, as it may arise on retrial.

The trial court has wide discretion in admitting the testimony of a lay witness into evidence, and this court will not reverse the trial court’s ruling unless it constitutes an abuse of discretion. State v. Winston, 959 S.W.2d 874, 877 (Mo.App.1997).

“Generally, opinion testimony is inadmissible when the trier of fact is as capable as the witness to draw conclusions from the facts provided.” State v. Gardner, 955 S.W.2d 819, 823 (Mo.App.1997). However, “[c]ourts have created an exception to the opinion rule by allowing lay witnesses to testify as to their opinion if the lay witness is in possession of knowledge that the jury does not also possess since it would be helpful to the jury in determining an issue in dispute.” Winston, 959 S.W.2d at 877. “Thus, in the identification context, a lay witness’ opin-

ion testimony is admissible if there is a basis for concluding that the witness is more likely to correctly identify the defendant than is the jury.” Id. at 877-78.

In this case, Sherry Counts and Defendant were living together around the time of the July 12 robbery, and she would probably have been familiar with his appearance on that date. At trial, there was testimony from witnesses that Defendant’s-appearance had changed since the time of the robberies, in that at trial Defendant had no hair at all, he was heavier, and he wore glasses, unlike his appearance in the videotape. On this basis, we find that the witness was more likely to correctly identify Defendant in the videotape than was the jury, thus the trial court did not abuse its discretion in allowing her to identify Defendant. Point III is denied.

The judgment is reversed and the case remanded for a new trial on Count II.

GARRISON, P.J., and RAHMEYER, J., concur.


author: JOHN E. PARRISH, Presiding Judge.

text:
    G & S MASONRY, INC., Plaintiff-Respondent, v. MJC CONSTRUCTORS, INC., and Fidelity & Deposit Company of Maryland, Defendants-Appellants.
    No. 26462.
    Missouri Court of Appeals, Southern District, Division Two.
    March 23, 2005.
    Motion for Rehearing or Transfer to Supreme Court Denied April 7, 2005.

      Richard R. Hardcastle, III, Scott A. Strange, Greensfelder, Hemker & Gale, P.C., St. Louis, for appellant.
    Thomas W. Millington, Millington, Glass & Love, Springfield, for respondent.
   JOHN E. PARRISH, Presiding Judge.

MJC Constructors, Inc. (MJC) and Fidelity & Deposit Company of Maryland (Fidelity) appeal an order denying their motion to stay litigation and to compel arbitration. This court orders the appeal held in abeyance and remands with directions.

MJC was general contractor for construction of a veteran’s cemetery in Bloomfield, Missouri. MJC sub-contracted part of the required work to G & S Masonry, Inc., (G & S). The subcontract includes provisions, identified as Articles 18.1 and 13.2, related to resolution of disputes. Articles 13.1 and 13.2 state:

13.1 Disputes arising out of the acts, omissions, decisions or Contract interpretations by the Owner or its agents, including but not limited to any dispute concerning the scope of the Subcontractor’s work or the requirements of the Contract Documents, shall be resolved in accordance with the dispute resolution procedures in the Prime Contract. Subcontractor shall have the right to exercise those rights in the name of the Contractor, but at Subcontractor’s sole cost and expense. Subcontractor agrees to be bound by any decision reached in accordance with the dispute resolution procedures of the Prime Contract. Subcontractor agrees to provide notice of any dispute to Contractor in a timely fashion to allow the Contractor time to present Subcontractor’s claim in accordance with the time restrictions set forth in the Prime Contract, and Subcontractor specifically agrees to reimburse Contractor for any and all costs, including reasonable attorneys’ fees, incurred by Contractor in connection with the submission of Subcontractor’s claim to the Owner. Subcontractor specifically agrees that any dispute with the Owner or the Contractor shall not interfere with the Subcontractor’s progress of its work in any manner, and that Subcontractor shall proceed with its work as ordered, subject to claim.
13.2 Any other claim or dispute between the Subcontractor and Contractor that does not fall within the provisions of paragraph 13.1 shall, if the amount in controversy exceeds $50,000.00, be resolved in any Court of competent jurisdiction. Any other claim or dispute between the Subcontractor and Contractor that does not fall within the provisions of paragraph 13.1 shall, if the amount in controversy is less than $50,000.00, be resolved by arbitration conducted in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining [sic] unless the parties mutually agree otherwise. The decision of the Architect shall not be a condition precedent to invoking arbitration. This agreement to arbitrate and any other written agreement to arbitrate with an additional person or persons referred to herein shall be specifically enforceable under the prevailing arbitration law. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.

G & S brought this action in the Circuit Court of Stoddard County, Missouri. The petition is in two counts. Count I asserts a breach of contract by MJC alleging that MJC “failed and refused to make timely payments of amounts due and properly earned during the course of performance of the subcontract by and between G & S and MJC.” Count I seeks recovery from MJC “in the amount of $30,810.29, together with interest thereon at the rate of eighteen percent (18%) per annum from the 22nd day of October, 2003,” costs, and attorney fees. Count II seeks judgment against Fidelity, on the basis of a performance and payment bond alleged to have been issued by Fidelity. Count II requests judgment “in an amount equal to the sum of all damages and relief ordered in the judgment against defendant [MJC] including interest, costs and attorney’s fees,.... ”

MJC filed a motion entitled “Motion to Dismiss, or in the Alternative, to Stay Litigation and Compel Arbitration.” It alleged that the amount in dispute was less than $50,000; that Article 13.2 of the contract between MJC and G & S required arbitration of disputes when the amount in controversy was $50,000 or less. The motion requested the trial court “to dismiss [the] Petition, or in the alternative to stay all aspects of [the] litigation until completion of arbitration proceedings,.... ”

The trial court held a hearing on the motion July 21, 2004. At the time of the hearing, there was a pending motion filed by G & S to amend its petition. G & S submitted a proposed amended petition that alleged “[t]he total amount due to [G & S] is in excess of the sum of $50,000.00, including principal,] interest accrued and attorney fees.” Thereafter, on August 4, 2004, the trial court entered an order reciting the appearances of the parties through their respective counsel; that the motion to compel arbitration was heard; that “having considered the matter,” the motion was denied. The record on appeal does not reflect a ruling on the motion of G & S to amend its petition.

MJC and Fidelity present one point on appeal. They contend the trial court erred in denying their motion to stay litigation and compel arbitration because the contract between MJC and G & S includes an enforceable, mandatory arbitration agreement that encompasses the disputes and claims to which the lawsuit is directed, and the amount in dispute for each claim is less than $50,000.

MJC and Fidelity argue that Article 13.2 of their contract with G & S is applicable because there is no allegation that the dispute arose from actions or claims of the owner. They assert, “In its Petition G & S alleges that it is entitled to $30,810.29, which it claims is the outstanding balance owed by MJC.” MJC and Fidelity conclude that “[c]learly, this amount is less than $50,000.00.” They contend that under the requirement of Article 13.2 that claims of $50,000 or less be submitted to arbitration, the trial court erred in denying the motion.

As this court recently noted in Greenpoint Credit, L.L.C. v. Reynolds, 151 S.W.3d 868 (Mo.App.2004):

An order denying arbitration is ap-pealable pursuant to both Missouri law, see § 435.440.1 [RSMo 2000], and the Federal Arbitration Act, see 9 U.S.C. § 16(a)(1)(B). State procedural law may be followed so long as the procedure does not defeat the substantive rights of the federal act. See Greenwood v. Sherfield, 895 S.W.2d 169, 172 (Mo.App.1995). “When arbitration is pursuant to the federal act but enforcement is sought in a Missouri court, the substantive law of the Federal Arbitration Act, 9 U.S.C. § 2 is to be given effect. McClellan v. Barrath Construction Co., Inc., 725 S.W.2d 656, 658 (Mo.App.1987). However, ‘the procedural provisions of the Federal Arbitration Act are not binding on state courts ..., provided applicable state procedures do not defeat the [substantive] rights granted by Congress.’ Id. See Bunge Corp. v. Perryville Feed & Produce, Inc., 685 S.W.2d 837, 839 [3, 4] (Mo.banc 1985).” Id.

Id. at 873 n. 3.

Before a court compels arbitration, it must determine whether a valid agreement to arbitrate exists between the parties and whether the substance of the disputes are issues of the type the agreement requires to be arbitrated. Id. at 873. There is no issue in this appeal regarding whether the parties’ agreement includes a valid arbitration agreement. Rather, the question is whether the dispute between the parties is an issue that lies within the parameters of the arbitration agreement that both parties acknowledge exists. MJC and Fidelity contend the trial court’s ruling violates the arbitration agreement because the dispute is for an amount of less than $50,000. G & S argues that the amount in dispute exceeds $50,000; that there is a pending motion to file an amended petition clarifying the amount in dispute.

Whether a dispute is covered by an arbitration provision in a contract is a question of law. Dunn Indus. Group, Inc. v. City of Sugar Creek, 112 S.W.3d 421, 428 (Mo. banc 2003). In this case, however, the question for determination is dependent upon the amount in dispute, an issue of fact. The record on appeal includes no finding on that issue. This court is compelled to remand with directions to the trial court to make a determination as to whether the amount in dispute is $50,000 or more and to rule, if it has not already done so, on the motion to amend the petition. Upon those determinations being made, the trial court shall direct the circuit clerk to certify a copy of the trial court’s findings as to the amount in dispute and a copy of the ruling on the motion to amend the petition and to promptly transmit those documents for filing as a supplemental legal file as permitted by Rule 81.12(e). See Heitner v. Gill, 973 S.W.2d 98, 106 (Mo.App.1998). This appeal shall be held in abeyance pending compliance with the directions on remand and the filing of a supplemental legal file herein.

BATES, C.J., and BARNEY, J., concur.


text:
    Joseph S. BURRIS, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 26278.
    Missouri Court of Appeals, Southern District, Division One.
    June 3, 2005.

      Jessica M. Hathaway, Assistant Public Defender, St. Louis, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., and Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for Respondent.
   JAMES K. PREWITT, Judge.

Joseph S. Burris (“Appellant”) was sentenced consecutively to a life term for first degree murder (§ 565.020, RSMo 1994) and fifty years for armed criminal action (§ 571.015.1, RSMo 1994). His convictions were affirmed. State v. Burris, 32 S.W.3d 583, 585 (Mo.App.2000). Appellant filed a pro se motion for post-conviction relief under Rule 29.15, on January 5, 2001. On November 17, 2003, the trial court dismissed the motion for failure to prosecute. On May 28, 2004, this Court granted leave to file a late notice of appeal. Following a notice of appeal, Appellant filed a “Motion to Remand Based on Newly Discovered Actual Conflict of Interest” in this Court on December 30, 2004.

Following Appellant’s Rule 29.15 motion being filed in the trial court, counsel was appointed, and a First Amended Motion was filed on April 5, 2001, alleging that Appellant’s trial counsel was ineffective for failing to object when prosecutors made the following remarks during closing arguments:

Joseph Burris is responsible for this murder, and one of the ways you can tell the community that you are tired of this kind of thing is to come back and say, Count 1, murder in the first degree, and the only possible penalty for that is life without the possibility of probation or parole.

Appellant contended that trial counsel’s failure to object caused the prosecutor’s personalization of the facts, both designed to inflame the jury by appealing to the conscience of the community, to go uncorrected. Appellant further argues that, had the objection been preserved on the record, the appellate court could have reviewed the issue as preserved error under an abuse-of-discretion standard, and “would have reversed the case for a new trial.” Appellant insists this failure to preserve the error denied Appellant his rights to due process and effective counsel.

The circuit court dismissed Appellant’s motion for failure to prosecute without entering findings of fact and conclusions of law. Appellant contends that Rule 29.15(j) states “the motion court shall issue findings of fact and conclusions of law on all issues presented, whether or not a hearing is held.” Cases agree. See Smith v. State, 28 S.W.3d 889, 890 (Mo.App.2000).

Respondent agrees that Appellant is correct that this matter should be reversed for failure of the trial court to make findings of fact and conclusions of law. A motion court’s order to dismiss a case for failure to prosecute without issuing findings of fact and conclusions of law requires reversal and remand with directions to determine the need for an evidentiary hearing. Coday v. State, 92 S.W.3d 324, 326-27 (Mo.App.2002). See also Mitchell v. State, 50 S.W.3d 342, 343 (Mo.App.2001). This requires reversal and remand with directions to the motion court to issue findings of fact and conclusions of law.

In his motion filed here (and not raised in the trial court), Appellant requests remand for a new trial and, alternatively, an opportunity to amend his previously-amended Rule 29.15 motion based on “newly-obtained information” discovered by Appellant during preparation for this appeal and after his Rule 29.15 motion was denied by the trial court. Appellant claims this information points to an actual conflict of interest because the lawyers representing him at his criminal trial were also representing the owner of the facility where he was living when the incident occurred.

“Claims which were not presented to the motion court cannot be raised for the first time on appeal.” Amrine v. State, 785 S.W.2d 531, 535 (Mo.banc 1990). “The effect of Rule 29.15(d) is to bar all claims not raised in a timely-filed plead-ingü” and a claim can only be considered to the extent it was raised at trial. State v. Evans, 992 S.W.2d 275, 295-96 (Mo.App.1999). Rule 29.15 is designed to provide a single and unitary post-conviction remedy. State ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 214 (Mo.banc 2001).

However, failure to meet time limitations set out in Rule 29.15 does not always preclude post-conviction relief. One such circumstance would be an issue of timeliness precluding discovery of a claim. Brown v. State, 66 S.W.3d 721, 726 (Mo.banc 2002). That, however, cannot be raised in a Rule 29.15 motion, but habeas corpus may be available. Id. See also id. at 730-31. Such relief should be sought, if at all, in the circuit court having jurisdiction over appellant. Id. at 732.

The judgment is reversed and remanded for the trial court to make findings of fact and conclusions of law regarding the disposition of Appellant’s motion.

GARRISON, P.J., and RAHMEYER, J„ concur.


text:
    Lori Ann STRAWHUN, Respondent, v. Jeffrey Harlan STRAWHUN, Appellant.
    No. 26266.
    Missouri Court of Appeals, Southern District, Division Two.
    June 10, 2005.
    Robert D. McGee, Springfield, for appellant.
    Lee E. Poppen, Lathrop & Gage, Springfield, MO, for respondent.
   JOHN E. PARRISH, Presiding Judge.

Jeffrey Harlan Strawhun, appellant, seeks to appeal a judgment entered in an action for dissolution of marriage in which, as trial progressed, the parties announced they had reached an agreed disposition of all pending issues. The terms of the parties’ agreement was read into the record. Each party testified that they agreed to the terms that were presented to the trial court. Additionally, appellant testified that he understood by entering into the agreement, he was waiving any right to future trials and his right to appeal. Thereafter, the trial court approved the settlement and entered a “Judgment and Decree of Dissolution of Marriage” and, subsequently, an “Amended Judgment and Decree of Dissolution of Marriage.” As explained in Marquez v. Marquez, 136 S.W.3d 574 (Mo.App.2004), the appeal must be dismissed.

Marquez explains:

In Missouri, the right to appeal is statutory. Segar v. Segar, 50 S.W.3d 844, 846 (Mo.App.2001). For most civil actions, the right to appeal to [sic] is granted to “[a]ny party to a suit aggrieved by any judgment of any trial court ....”§ 512.020 [RSMo 2000] (emphasis added). “A party is not aggrieved by a judgment entered pursuant to a voluntary settlement agreement.” Segar, 50 S.W.3d at 847. “ ‘Parties are estopped or waive their right to appeal under section 512.020 when a judgment is entered at their request.’ ” In re Marriage of Echessa, 74 S.W.3d 802, 805 (Mo.App.2002) (quoting In Interest of A.H., 963 S.W.2d 374, 377 (Mo.App.1998)). “ ‘This follows because a judgment entered pursuant to an agreement of the parties is not a judicial determination of rights.’ ” Id. (quoting A.H., 963 S.W.2d at 377). [Footnote omitted.]

Id. at 578. Rule 74.06, under circumstances stated in that rule, addresses the remedy for a party who believes a mistake was made in the entry of a judgment.

The appeal is dismissed.

SHRUM and BARNEY, JJ., concur.


author: HAROLD L. LOWENSTEIN, Judge.

text:
    PLATINUM EXPRESS, INC., Respondent, v. Kendall SCOTT d/b/a Scott Transportation, Appellant.
    No. WD 64250.
    Missouri Court of Appeals, Western District.
    June 14, 2005.
    George S. Miller, Esq., Maryville, MO, for Appellant.
    George E. Proctor, Jr., Liberty, MO, for Respondent.
    Before NEWTON, P.J., LOWENSTEIN and BRECKENRIDGE, JJ.
   HAROLD L. LOWENSTEIN, Judge.

“Kendall Scott d/b/a Scott Transportation” (Scott) appeals from the judgment entered in favor of respondent Platinum Express, Inc. Scott asserts three points on appeal: (1) the trial court erred in denying his motion to dismiss or transfer for lack of proper venue; (2) the trial court erred in failing to make a record of the hearing when judgment was entered in favor of Platinum Express; and (3) the trial court erred in awarding attorney’s fee because there was no statutory or contractual basis for awarding such fees.

Facts

This appeal arises from a contract dispute between Platinum Express, Inc. and Scott. Platinum Express filed this breach of contract action in DeKalb County seeking a refund for a $3,050 overpayment to Scott. Scott was subsequently served in Audrain County. In response, Scott filed a “Motion to Dismiss or Transfer for Improper Venue” and asserted that he was an individual residing in Audrain County. The trial court denied the motion. After Scott failed to appear for trial, the trial court entered judgment in favor of Platinum Express, awarding it $3,050 in damages and $450 attorney’s fees.

Analysis

Scott’s first point on appeal alleges that the trial court erred in denying his motion to dismiss or transfer for lack of proper venue. The standard of review in a court-tried case is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Accordingly, the trial court’s judgment will be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Id.

Venue is determined solely by statute. State ex rel. Smith v. Gray, 979 S.W.2d 190, 191 (Mo. banc 1998). The general venue statute, Section 508.010, provides that when the defendant is a resident of the state, venue is proper in the county where either: (1) the defendant resides; or (2) the plaintiff resides and the defendant may be found. Here, Scott is not a resident of DeKalb County and was not served there. Therefore, venue was not proper in DeKalb County.

Platinum Express argues that venue is also proper where the breach of contract occurs. However, the cases that respondent cites are not applicable because they involve a breach of contract claim involving a corporate defendant. When the defendant is an individual and the plaintiffs claim is based on contract, venue is determined by Section 508.010(1). State ex rel. Drienik v. Clifford, 944 S.W.2d 266, 267-68 (Mo.App.1997). Here, the defendant Scott is an individual and not a corporation. Since venue was not proper in DeKalb County, where the breach of contract allegedly occurred, the trial court erred in applying the law by not transferring this case to Audrain County, where Scott resides. Furthermore, because resolution of Scott’s first point is dispositive, this court need not address the remainder of appellant’s points on appeal.

The judgment is reversed and remanded with instructions for the trial court to transfer the case to Audrain County Circuit Court.

All concur.

      . Platinum Express’ petition also asserted an action on account and a claim of quantum meruit. However, Platinum Express voluntarily dismissed both counts prior to trial.

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

      . In its petition, Platinum Express alleges "[t]hat the [djefendant is an individual d/b/a Scott Transportation.”


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Derrick McKINLEY, Appellant.
    No. ED 84600.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 14, 2005.
    Maleaner R. Harvey, Assistant Public Defender, St. Louis, MO, for appellant.

      Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Derrick McKinley (“Defendant”) appeals from the trial court’s judgment entered in the Circuit Court of the City of St. Louis upon his conviction by a jury of robbery in the first degree and armed criminal action. Defendant contends that the trial court erred in: (1) overruling his motion for judgment of acquittal with respect to the charge of robbery in the first degree; (2) overruling his motion for judgment of acquittal with respect to the charge of armed criminal action; and (3) overruling his attorney’s objection to certain statements during the State’s closing argument.

We have reviewed the briefs of the parties and the record on appeal and no error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would have no precedential value. We have, however, provided a memorandum for the use of the parties only setting forth the reasons for our decision.

We affirm pursuant to Rule 30.25(b).


text:
    STATE of Missouri, Plaintiff/Respondent, v. Mark Twain JOHNSON, Defendant/Appellant.
    No. ED 84750.
    Missouri Court of Appeals, Eastern District, Division Four.
    June 14, 2005.
    Jo Ann Rotermund, Assistant Public Defender, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Mark Twain Johnson (Defendant) appeals from the trial court’s judgment and sentence imposed after a jury found him guilty of one count of delivery of a controlled substance, in violation of Section 195.211 RSMo 2000. The trial court sentenced Defendant, as a prior and persistent drug offender, to ten years’ imprisonment. This appeal follows.

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would have no jurisprudential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 30.25(b).


author: GLENN A. NORTON, Judge.

text:
    Stanley SHIELDS, Respondent, v. PROCTOR & GAMBLE PAPER PRODUCTS COMPANY, Appellant, and Division of Employment Security, Respondent.
    No. ED 84970.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 14, 2005.

      Cynthia A. Quetseh, Jefferson City, MO, for respondent Labor and Industrial Relations Commission.
    Stanley Shields, Chaffee, MO, pro se.
    Daniel M. O’Keefe, St. Louis, MO, for appellant.
   OPINION

GLENN A. NORTON, Judge.

Proctor & Gamble Paper Products Company (“P & G”) appeals the Labor and Industrial Relations Commission’s determination that Stanley Shields was not disqualified from receiving unemployment benefits. We reverse.

I. BACKGROUND

P & G decided to downsize its work force as a result of productivity improvements, so it offered its employees voluntary separation packages. P & G had a certain number of packages to offer. It announced that the packages were available to any technician; those who were interested were to request a package. More employees requested packages than were available, so P & G prioritized who would receive an offer. P & G began by prioritizing, in order of seniority, all of the employees who would qualify for regular and early retirement. Then the remaining employees were prioritized by seniority.

Shields had requested a separation package. He had worked as an electrician at P & G for almost 25 years and was eligible for early retirement. By virtue of his seniority, Shields was high enough on the prioritized list of early retirement-eligible employees and was offered a separation package. The separation agreement provided that Shields would voluntarily end his employment with P & G and would receive a cash separation allowance and other benefits. Under the agreement, Shields could revoke his acceptance within seven days of his signature. But if he did not revoke his acceptance within that time, then the agreement would become effective and enforceable by both parties immediately upon the expiration of those seven days. Shields signed the agreement and never revoked his acceptance.

Shields testified that he left P & G because he was going to be assigned to work on a new production line for which he had no formal training. He did not feel comfortable doing that job with only on-the-job training, so he took the separation package. According to Shields, no one told him that he had to take the separation package, “but the plant manager ... said that there was going to be some changes made, they had to get the productivity level at a certain rate so they could cut costs, and if the people didn’t want to accept these changes they should only consider the separation packages.”

Shields applied for unemployment benefits. P & G sought an eligibility determination, arguing that Shields had voluntarily retired. A deputy for the Division of Employment Security determined that Shields was not disqualified from receiving benefits because he had voluntarily quit with good cause attributable to P & G’s requirement that he work on the new line without proper training. P & G appealed to the appeals tribunal for the Division, contending that Shields voluntarily quit under the separation agreement and that work was still available to him if he had chosen not to quit. Shields and a P & G human resources manager testified at the hearing, after which the appeals tribunal made the following findings of fact:

The employer was in the process of reducing its work force by offering employees an option of accepting a separation package. Employees who chose the separation package have not been replaced by other employees. The employer’s process consisted of allowing the most senior of its employees the package option first. The process continued to lower level seniority employees as needed to reach its staffing level goal. The claimant chose to accept the employer’s offer of a separation package.

It concluded that P & G intended to reduce its work force because it did not have enough work for all of its employees; the fact that P & G used separation packages to achieve this reduction did not change the intent. Thus, the tribunal concluded, Shields’s unemployment resulted from lack of work. The tribunal held that Shields was discharged, not for misconduct, and that he was not disqualified from receiving benefits. P & G appealed to the Commission, again contending that Shields was not discharged, but had voluntarily quit under the separation agreement. The Commission affirmed and adopted the determination of the appeals tribunal. P & G appeals to this Court.

II. DISCUSSION

A. Standard of Review

Our review of the Commission’s decision in an unemployment compensation case is governed by Article 5, Section 18 of the Missouri Constitution and section 288.210 RSMo 2000. Winco Manufacturing, Inc. v. Partee, 141 S.W.3d 34, 37 (Mo.App. E.D.2004). We may modify, reverse, remand for rehearing, or set aside the Commission’s decision only where: (1) the Commission acted without or in excess of its powers; (2) the decision was procured by fraud; (3) the facts found by the Commission do not support the award; or (4) there was no sufficient competent evidence in the record to warrant the making of the award. Section 288.210. In the absence of fraud, the Commission’s factual findings are conclusive and binding on this Court if supported by competent and substantial evidence. Section 288.210. “Our function is to determine whether the Commission, based upon the whole record, could have reasonably made its findings and reached its result.” Winco, 141 S.W.3d at 37.

Neither party contends that the Commission’s findings of fact were procured by fraud or are unsupported by the evidence. Rather, the only issue is whether the Commission reached the correct conclusion of law as to the nature of Shields’s separation from employment. This Court is not bound by the Commission’s conclusions of law or its application of the law to the facts. Id. Further, where, as here, there is no dispute about the essential facts and the issue is the application of the statute to virtually un-controverted facts, the issue is one of law. Id. We find that on the whole record in this case, the Commission’s conclusion that Shields was discharged is erroneous, and this error of law requires reversal.

B. Cause of Separation

Under section 288.050.1, a claimant is not eligible for unemployment benefits if he voluntarily leaves employment without good cause attributable to the work or the employer. One leaves work voluntarily, as opposed to being discharged, when he leaves of his own accord and volition. Moore v. Swisher Mower & Machine Company, Inc., 49 S.W.3d 731, 737 (Mo.App. E.D.2001). “[JJudicial interpretations of the unemployment statutes have required that an employee not have caused his dismissal by his wrongful action or inaction or his choosing not to be employed.” Missouri Division of Employment Security v. Labor & Industrial Relations Commission of Missouri, 651 S.W.2d 145, 149 (Mo. banc 1983). The causation envisioned by the statutes “is that having as its direct and immediate consequence the claimant’s unemployment.” Id. at 150. When unemployment occurs in the context of the employer’s attempt to downsize through a voluntary separation program, causation depends on whether the final act needed to effectuate separation was committed by the employee or by the employer. See id.; see also St. Joseph’s Health Center v. Missouri Labor and Industrial Relations Commission, 768 S.W.2d 123, 125 (Mo.App. W.D.1988).

In Missouri Division of Employment Security, the employer announced that certain jobs would be eliminated on a specific date and sought volunteers — who otherwise would have been entitled to keep their jobs because of seniority — to be laid off. Id. at 146, 150. The employer then selected which of the volunteers would be laid off according to the employer’s perceived needs. Id. Only those volunteers who were not seen as necessary for effective operation of the plant were selected for layoff. Id. “The claimants’ volunteering for layoff did not have their unemployment as its direct and immediate result. A further event — the employer’s choosing them for layoff — was required.” Id. Thus, the Court found that the claimants had left work voluntarily with good cause attributable to the employer and were not barred from receiving unemployment benefits. Id.

In St. Joseph’s Health Center, the employer announced that it was downsizing and offered cash bonuses in exchange for voluntary resignations. 768 S.W.2d at 124. The employer explained that resignation was voluntary, that the employer was not trying to force anyone to quit and that the decision whether or not to resign was entirely up to the employee. Id. There was no evidence that the employer sought to reduce its work force by any particular number and no evidence that it had threatened involuntary layoffs or otherwise pressured employees to resign. Id. at 125. Although only the first 15% of employees in each department were allowed to apply for resignation, there was no evidence that the employer had to approve the application. Id. So long as the applicant was within that 15% — as was the claimant in that case — resignation and the payment of the bonus was automatic without further action by the employer. Id. The Western District concluded that, unlike the situation in Missouri Division of Employment Security, there was no action on the part of the employer in laying off the claimant and her unemployment resulted solely from her voluntary resignation. Id. at 126. The fact that bonuses were offered to encourage resignation did not change the voluntary nature of the claimant’s separation. The claimant had the choice to remain employed, but she accepted the offer of resignation and received the bonus instead. Id. at 127. “There was nothing in her resignation that was attributable to her work or her employer. There was no evidence that her resignation was anything but voluntary. The evidence is completely devoid of any good cause for [the claimant] leaving her employment except for her own desire to accept the offer of [the employer] and voluntarily resign.” Id.

Here, at the time the separation packages were offered, P & G had no plans to implement involuntary layoffs if the separation packages did not achieve the desired reduction in work force. P & G had to prioritize who would receive an offer because more employees requested them than P & G desired to offer at that time. But prioritizing was the last decision in this process that was made by P & G. If the employee was high enough on the seniority list, then he would be offered a separation package without meeting any further selection criteria established by P & G. Once the separation package was offered, it had to be accepted by the employee to effectuate termination. The decision to accept or reject the offer was entirely up to the employee. In fact, the P & G manager testified that 20% of those who were offered the separation package rejected it and kept their jobs. There is no evidence that P & G threatened involuntary layoffs, intended to reduce its work force by any certain number involuntarily, or otherwise pressured Shields or other employees to request or accept the offer of separation. Once Shields accepted the offer by signing the separation agreement, the agreement automatically became effective seven days later because he did not revoke his acceptance. As in St. Joseph’s, P & G made no further selection for separation from among those who accepted its offer, and no further action by P & G was required to effectuate separation. Unlike the claimants in Missouri Division of Employment Security, Shields’s act of accepting the separation agreement had as its direct and immediate consequence his unemployment. The Commission’s reliance on P & G’s intent to reduce its work force is misplaced because, despite that intention, Shields had the choice to remain employed. See St. Joseph’s, 768 S.W.2d at 126-27. Therefore, Shields’s separation was voluntary.

The Division contends that even if the separation was voluntary, Shields quit for good cause attributable to P & G’s requirement that he work on a new line without formal training. Even assuming that this was the real reason that Shields quit, see note 5, supra, there is no evidence that he did so in good faith. To establish the good faith element of good cause, the employee must prove that he made an effort “to resolve the dispute before resorting to the drastic remedy of quitting his job.” Winco, 141 S.W.3d at 38. The record contains no evidence that Shields made any effort to address his alleged concerns about the lack of training with P & G before he quit. The Division’s suggestion that no such effort was required because P & G “made it clear” that an employee’s only recourse for dissatisfaction with P & G’s changes was the separation package is belied by the record. Shields testified himself that no one told him he had to take a separation package; rather, according to Shields, P & G merely told employees that they should “only consider” the separation package.

In sum, Shields’s act of accepting P & G’s offer of separation was voluntary and did not constitute a discharge. Moreover, his acceptance of the offer directly and immediately caused his unemployment without further action by P & G. Thus, Shields voluntarily quit without good cause attributable to his employer or the work, and he is disqualified from receiving benefits. Point I is granted.

II. CONCLUSION

The Commission’s determination of eligibility is reversed.

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

      . Shields signed the agreement on May 13th, and thus, by its terms, the agreement became effective on May 20th. The agreement did not require P & G’s signature to be effective, but P & G did sign it on May 28th. Neither party challenges the validity or enforceability of this agreement; nor is there any claim that P & G did not honor its obligations under the agreement.

      . Although it is undisputed that Shields was going to be transferred to a new line and would receive only on-the-job training, P & G points out that on his exit-interview questionnaire, Shields did not cite this as his reason for leaving.

      . The Division has filed a respondent's brief; Shields has not.

      . All statutory references are to RSMo 2000.

      .The apparent inconsistency between Shields's testimony and his exit-interview questionnaire relating to his reason for quitting was not addressed by the Commission and need not be resolved for our disposition.

      . P & G's other point on appeal, asserting an alternative basis for disqualifying Shields from receiving benefits, is moot.


text:
    Earl REDD, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84985.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 14, 2005.
    Richard P. Hereford, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Earl Redd (“movant”) appeals from the order of the motion court denying his amended motion for post-conviction relief under Rule 29.15 without an evidentiary hearing.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

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


author: BOOKER T. SHAW, Judge.

text:
    Alvin PATTERSON, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84996.
    Missouri Court of Appeals, Eastern District, Division One.
    June 14, 2005.

      Michelle Murphy Rivera, St. Louis, MO, for appellant.
    Deborah Daniels, St. Louis, MO, for respondent.
   BOOKER T. SHAW, Judge.

Movant Alvin Patterson (“Movant”) appeals from the motion court’s judgment denying his Rule 29.15 motion for post-conviction relief because it was untimely filed. Movant was convicted after a jury trial of two counts of forcible rape, Section 566.030, RSMo 2000, two counts of felonious restraint, Section 565.120, RSMo 2000, and three counts of unlawful use of a weapon, Section 572.030(4), RSMo 2000. Movant was sentenced to two ten-year terms of imprisonment for the rape counts, two five-year terms of imprisonment for the felonious restraint counts, and one three-year term and two five-year terms of imprisonment for the unlawful use of a weapon counts, all sentences to ran consecutively.

This Court affirmed Movant’s judgment and sentence pursuant to Rule 30.25(b) in State v. Patterson, 112 S.W.3d 438 (Mo. App. E.D.2003). This Court’s mandate was issued on September 10, 2003. On December 11, 2003, Movant filed an untimely pro se motion for post-conviction relief. On April 6, 2004, Movant’s attorney filed an amended motion for post-conviction relief. On June 17, 2004, Movant’s attorney filed a motion to consider his amended motion on the merits despite its untimely fifing. On July 9, 2004, the motion court issued its order and judgment dismissing Movant’s post-conviction motion as untimely. This appeal follows.

In his only point on appeal, Movant argues the motion court clearly erred in denying his untimely post-conviction motion because he mailed his pro se motion on December 4, 2003, five days before the deadline, and he believed it would therefore be timely filed with the motion court. Movant also argues that a delay was caused because he was incarcerated in Florida where Form 40 was not readily available to him.

We review the motion court’s dismissal of a post-conviction relief motion only to determine whether the motion court’s findings and conclusions are clearly erroneous. Bollinger v. State, 144 S.W.3d 335, 338 (Mo.App. E.D.2004).

Under Supreme Court Rule 29.15(b), “[i]f an appeal of the judgment or sentence sought to be vacated, set aside or corrected was taken, the motion [for post-conviction relief] shall be filed within [ninety] days after the date the mandate of the appellate court is issued affirming such judgment or sentence.” Rule 29.15(b). A post-conviction motion is deemed filed when it is deposited with the clerk of the circuit court. Thomas v. State, 31 S.W.3d 23, 25 (Mo.App. E.D.2000).

Here, this Court issued its mandate on September 10, 2003. Movant’s post-conviction motion was due on December 9, 2003. Movant’s pro se motion was filed in the circuit court on December 11, 2003, or ninety-two days after this Court issued its mandate. Therefore, Movant’s motion was untimely, and the motion court had no jurisdiction to review it. Bollinger, 144 S.W.3d at 338.

Movant acknowledges that his motion was untimely filed, but argues that he mailed it timely, thus urging this Court to adapt the mailbox rule. “The appellate courts of this state have historically rejected applying the mailbox rule to the filing of post[-]conviction relief motions.” Thomas, 31 S.W.3d at 25 (quoting Stidham v. State, 963 S.W.2d 351, 353 (Mo.App. W.D.1998)). The only relevant inquiry under Missouri law is when the post-conviction motion was filed with the clerk of the circuit court, not when it was mailed. Id. Here, Movant’s motion was filed with the circuit clerk ninety-two days after this Court issued its mandate on direct appeal. Movant’s motion was clearly untimely, and the motion court properly dismissed it.

Movant further argues that a delay was caused by his lack of access to Form 40 in Florida, where he was incarcerated. Movant’s claim that prison officials caused the delay is also unavailing. Matchett v. State, 119 S.W.3d 558, 559 (MoApp. S.D.2003). “Regardless of the reasons for untimeliness, the motion was filed more than [ninety] days after the mandate was issued, and the motion court had no jurisdiction.” Id.

Because the record clearly shows that Movant’s post-conviction motion was untimely, the motion court had no jurisdiction to consider Movant’s post-conviction motion, and properly dismissed it. Furthermore, because the motion court lacked jurisdiction to consider Movant’s motion, this Court has no jurisdiction to hear this appeal. Bollinger, 144 S.W.3d at 338; Matchett, 119 S.W.3d at 559. Accordingly, we dismiss Movant’s appeal for lack of jurisdiction.

DISMISSED.

GARY M. GAERTNER, SR., P.J., and SHERRI B. SULLIVAN, J., Concur.


text:
    Bryan Scott BELT, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84810.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 14, 2005.

      Lisa M. Stroup, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa M. Kennedy, Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Bryan Scott Belt (“movant”) appeals the judgment of the motion court denying his motion for post-conviction relief pursuant to Missouri Supreme Court Rule 24.035 on the merits without an evidentiary hearing. Movant argues that he was denied effective assistance of counsel, rendering his guilty plea involuntary.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

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


text:
    Gerald BOYER, Defendant/Movant, v. STATE of Missouri, Plaintiff/Respondent.
    No. ED 85033.
    Missouri Court of Appeals, Eastern District, Division Four.
    June 14, 2005.
    Jo Ann Rotermund, Assistant Public Defender, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Alison K. Brown, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Gerald Boyer (Movant) appeals from the motion court’s judgment denying his Rule 24.035 motion for post-conviction relief (motion) without an evidentiary hearing. Movant pled guilty to one count of possession of a controlled substance, in violation of Section 195.202. The court sentenced Movant to seven years’ imprisonment. Movant thereafter timely filed his pro se and amended motions, pursuant to Rule 24.035, alleging Counsel had provided ineffective assistance. This appeal follows.

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would have no prec-edential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).