author: RONALD R. HOLLIGER, Judge.

text:
    CONSUMER FINANCE CORPORATION, Respondent, v. Tanisha M. REAMS, Appellant.
    No. WD 63487.
    Missouri Court of Appeals, Western District.
    Feb. 15, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 29, 2005.

      Dale K. Irwin, Kansas City, for Appellant.
    David Jay Weimer, Kansas City, for Respondent.
    Before THOMAS H. NEWTON, Presiding Judge, HAROLD L. LOWENSTEIN, Judge, and RONALD R. HOLLIGER, Judge.
   RONALD R. HOLLIGER, Judge.

Tanisha Reams appeals the judgment of the trial court in favor of respondent, Consumer Finance Corporation, granting its request for the deficiency remaining upon an automobile loan following repossession and disposition of the vehicle that was collateral for the loan. We conclude that the judgment was not supported by substantial evidence, in that there was insufficient evidence that the post-repossession sale was conducted in a commercially reasonable manner, and reverse the judgment below.

FACTUAL AND PROCEDURAL BACKGROUND

Tanisha Reams purchased an automobile on March 30, 2000. Most of the purchase price was financed through a loan provided by Consumer Finance Corporation, who took a security interest in the automobile as collateral. Reams subsequently defaulted upon that loan, and the collateral was repossessed and liquidated at auction on October 3, 2001, leaving an unpaid deficiency of $11,786.37.

Consumer Finance subsequently brought an action against Reams (hereinafter “Reams I ”), seeking a judgment to recover that deficiency. Reams counterclaimed, alleging that the notice of sale Consumer Finance sent Reams prior to sale of the collateral was defective and that the automobile was not sold after repossession in a commercially reasonable manner. Based upon those allegations, she sought damages under the Uniform Commercial Code, specifically, Section 400.9-625(e)(2), RSMo, as well as pursuant to Section 407.025, RSMo, part of the Missouri Merchandising Practices Act.

Immediately prior to trial, Consumer Finance dismissed its petition against Reams. The case proceeded to trial on Reams’ counterclaim, but the only issue actually litigated at trial concerned the sufficiency of the notice provided to Reams prior to liquidation of the collateral. A judgment issued in favor of Consumer Finance, finding that Reams had failed to present sufficient evidence to meet her burden of proof.

Consumer Finance subsequently refiled its deficiency claim against Reams. The petition made no mention of the prior action and did not plead that Reams was barred from defending against any of the elements of the petition or that those elements were established due to res judicata or collateral estoppel. The parties raised no issues in that regard until the filing of pre-trial briefing. Those briefs have not been made part of the record on appeal.

The matter proceeded to trial, at which time Consumer Finance presented no evidence with regard to commercial reasonableness of the sale of the collateral, relying instead upon its contention that Reams was barred from relitigating that issue, since it was determined through the judgment granted in Consumer Finance’s favor upon Reams’ counterclaim. A collections supervisor at CFC was the only witness called to testify for CFC. That witness testified that RSA conducted the sale of the car by auction. He testified that he had no knowledge as to who was at the sale, how many people were at the sale, or whether it was a public or private sale. No one from RSA was called at trial to testify about what occurred at the sale.

The trial court found in favor of Consumer Finance and entered judgment against Reams. Reams appeals that judgment.

DISCUSSION

Reams raises two points on appeal. First, she argues that the trial court erred in granting judgment in favor of Consumer Finance because the notice sent prior to the repossession sale was insufficient, as a matter of law, to comply with the statutory requirements of Section 400.9-611, RSMo, thereby barring Consumer Finance’s deficiency claim. Second, Reams contends that the trial court erred in its judgment because Commercial Finance failed to meet its burden to present substantial evidence that the post-repossession sale of the collateral was conducted in a commercially reasonable manner as required under Section 400.9-610 (Supp.2001). We find the second point on appeal to be dis-positive and reverse the judgment below.

Our standard of review, in this bench-tried case, is supplied by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. Banc 1976). Dean Mach. Co. v. Union Bank, 106 S.W.3d 510, 515 (Mo.App.2003). We will affirm the judgment unless it is not supported by substantial evidence, is against the weight of the evidence, or it erroneously declares or applies the law. Id. We view the evidence and the reasonable inferences that may be drawn therefrom in the light most favorable to the judgment, disregarding contrary evidence and inferences. Cub Cadet Corp. v. Mopec, Inc., 78 S.W.3d 205, 208 (Mo.App.2002).

Upon default, a secured party has the right to take possession of the collateral. RSMo Section 400.9-609 (Supp.2001); Ford Motor Credit Co. v. Henson, 34 S.W.3d 448, 450 (Mo.App.2001). After default, a secured party may sell or otherwise dispose of the collateral by public or private sale as long as it does so in a commercially reasonable manner in every aspect including the method, manner, time, place and terms. RSMo Section 400.9-610 (Supp.2001); Henson, 34 S.W.3d at 450. The debtor is liable to the secured party for any deficiency that remains after the sale of the collateral. RSMo Section 400.9-615 (Supp.2001).

CFC contends that it need only show that it introduced some evidence that a reasonable person could find proved it conducted a commercially reasonable sale. CFC misstates the standard that it must reach in order to obtain a deficiency judgment. A secured party seeking a deficiency judgment following the sale of collateral after default bears burden of proving compliance with statutory requirement of commercial reasonableness. Citizens Nat’l Bank v. Robertson, 101 S.W.3d 302, 304 (Mo.App.2003); RSMo Section 400.9-610. This is true regardless of whether the debtor pleaded the defense of commercial unreasonableness. Id. A secured party’s failure to prove that the sale of collateral was commercially reasonable precludes it from obtaining deficiency judgment. Id.

In order to obtain a deficiency judgment, it was necessary for Consumer Finance to do more than establish the terms of the loan between it and Reams, as well as her subsequent default upon that arrangement. Consumer Finance was also obligated to prove that it had complied with Uniform Commercial Code provisions regarding repossession and sale of the collateral. In the proceedings below, Commercial Finance sought to employ the judgment in Reams I to satisfy its burden of proof regarding two of those elements, namely the sufficiency of the notice provided to Reams prior to the repossession sale of the car and the commercial reasonableness of that sale.

The doctrine of collateral estop-pel addresses when a party may use an adverse prior judgment against another party to bar that party from relitigating issues determined in that earlier judgment. See SSM Health Care St. Louis v. Radiologic Imaging Consultants, LLP, 128 S.W.3d 534, 541 (Mo.App.2003). There are two manners of utilizing the doctrine of collateral estoppel. In contexts where a defendant seeks to bar a plaintiff from raising an issue determined in a prior action, the use is defensive in nature. Id. Where it is the plaintiff attempting to assert the estoppel against a defendant, seeking to preclude the latter from litigating one of the elements of the plaintiffs case, it is being employed offensively. Id. Here, Consumer Finance sought to assert offensive collateral estoppel.

Generally, offensive use of collateral estoppel is less favored than defensive use of that doctrine. Carr v. Holt, 134 S.W.3d 647, 650 (Mo.App.2004) (citing James v. Paul, 49 S.W.3d 678, 685 (Mo. banc 2001)). Where offensive collateral estoppel is sought, the party asserting the estoppel must establish four elements: (1) the same issue was present in both the present and the earlier litigation, (2) that issue was actually litigated in the earlier proceeding, (3) the issue was determined as a critical and necessary part of the prior judgment, and (4) the offensive use of collateral estoppel would not be unfair to the party being estopped. State v. Daniels, 789 S.W.2d 243, 244-45 (Mo.App.1990).

Further, in order to invoke collateral estoppel, it must be pled. In the case of defensive collateral estoppel, it is an affirmative defense that must be raised in the defendant’s answer. Rule 55.08. If it is not pled, then the defense is waived. Adams v. Inman 892 S.W.2d 651, 653 (Mo.App.1994). In the case of offensive collateral estoppel, it must be pled in the plaintiffs petition. Compare Jones v. Des Moines & Miss. River Levee Dist. No. 1, 369 S.W.2d 865, 872 (Mo.App.1963) (discussing pleading requirements to assert res judicata offensively). Here, Consumer Finance failed to plead collateral estoppel in its petition against Reams. While it apparently raised that issue in pre-trial briefing, it never amended its pleadings to assert that doctrine. Missouri courts have generally disapproved of assertions of res judicata late in the proceedings. See Stine v. Warford, 18 S.W.3d 601, 604-05 (Mo.App.2000). We find that similar reasoning applies here, and that a plaintiff must timely assert collateral estoppel to employ it offensively against a defendant. Under the facts before us, Consumer Finance failed to raise collateral estoppel in a timely manner in the proceedings below, and we hold that it cannot, therefore, rely upon collateral estoppel in order to establish any of the essential elements of its case.

“A secured party ... has the burden to prove every aspect of the disposition of collateral when commercial reasonableness is challenged.” Commercial Credit Equip. Corp. v. Parsons, 820 S.W.2d 315, 322 (Mo.App.1991). The disposition must be commercially reasonable in “method, manner, time, place and terms.” Kennedy v. Fournie, 898 S.W.2d 672, 680 (Mo.App.1995). Here, the only evidence adduced at trial regarding the reasonableness of the post-repossession sale was the admission of the bill of sale, which revealed that the collateral was sold at auction as well as the sale price of the vehicle.

This evidence, standing alone, was not sufficient to meet its burden of proof that the sale of the collateral was conducted in a commercially reasonable manner. Ford Motor Credit Co. v. Henson, 34 S.W.3d 448, 450 (Mo.App.2001). For example, there was no evidence in the record regarding whether Consumer Finance or other lenders utilized this method of sale and that particular auction venue with regard to other repossessed vehicles in the ordinary course of business. No evidence was admitted regarding what efforts, if any, were needed or made to prepare the collateral for sale. Nor was there any indication in the record that the price received for the collateral at auction was within the expected range for that type of vehicle in terms of its model, age, and condition.

In order to recover a deficiency upon its loan with Reams, Consumer Finance was required to prove that the post-repossession sale of the collateral was commercially reasonable. See Citizens Nat’l Bank v. Robertson, 101 S.W.3d 302, 304 (Mo.App.2003). Consumer Finance failed to present sufficient evidence regarding that element of its claim. While we view' the evidence in the light most favorable to the judgment, and give Consumer Finance the benefit of all reasonable inferences that may be drawn from the evidence, there was not substantial evidence in the record from which the trial court could find that the sale of the collateral here was conduct ed in a commercially reasonable manner. Consumer Finance is not entitled to a judgment upon the deficiency, absent a finding that the post-repossession sale of the collateral was commercially reasonable. See id. The trial court thereby erred in granting judgment in favor of Consumer Finance.

The judgment of the trial court is reversed. Reams’ request for attorney fees on appeal pursuant to Section 408.092, RSMo, is denied.

THOMAS H. NEWTON, Presiding Judge, and HAROLD L. LOWENSTEIN, Judge, concur.

      . Consumer Finance was entitled to refile its claim because the compulsory counterclaim rule does not apply to associate circuit court actions under chapter 517. Becker Glove Int’l, Inc. v. Jack Dubinsky & Sons, 41 S.W.3d 885, 886 (Mo. banc 2001).

        . Consumer Finance incorrectly argues that the doctrine of res judicata also applies, here. Res judicata operates to bar a party from relitigating a claim decided in a previous action. The claim at issue in the present matter, the deficiency sought against Reams, is different than those raised by Reams’ counterclaim in Reams I. Thus, res judicata is inapplicable here.

      . Collateral estoppel is also described as mutual or nonmutual. Nonmutual collateral es-toppel applies when the one of the parties in the second action was not a party to the earlier adjudication. See In re Caranchini, 956 S.W.2d 910, 912 (Mo. banc 1997). Here, there is no question that the parties in both Reams I and the present action are identical. Thus, the present matter presents a question regarding mutual offensive collateral estop-pel.

      . Even if Consumer Finance had correctly invoked the doctrine of collateral estoppel in the proceedings below, there may be a question as to whether the issue of commercial reasonableness regarding the post-repossession sale of the collateral had been actually litigated in Reams I. From the record before us, it appears that the issue may have been raised in the pleadings, but it was apparently abandoned and not pursued at trial. Finding that collateral estoppel was not timely raised, we need not reach the question of whether the issue of commercial reasonableness was litigated in Reams I.


source: Caselaw Access Project

author: GLENN A. NORTON, Judge.

license: Public Domain

text:
    Quentin YATES, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84506.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 15, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 30, 2005.

      Timothy J. Forneris, St. Louis, MO, for appellant.
    Deborah Daniels, Leslie McNamara (co-counsel), Jefferson City, MO, for respondent.
   OPINION

GLENN A. NORTON, Judge.

Quentin Yates appeals the judgment dismissing his Rule 24.035 motion without an evidentiary hearing. We affirm.

I. BACKGROUND

Yates was charged with one count of first-degree assault, one count of armed criminal action predicated on the assault and two counts of unlawful use of a weapon — the first for shooting a firearm from a motor vehicle under section 571.030.1(9) RSMo 2000 and the other for shooting a firearm into a dwelling house under section 571.030.1(3). According to the indictment, Yates and others were “armed with handguns;” they “opened fire” on the victim from their vehicle; one defendant shot the victim in the foot; Yates “chased and wounded the victim several times;” and “[a] number of rounds penetrated” the victim’s home. According to the indictment and the State’s recitation of its evidence at the plea hearing, all four counts occurred on the same date and at “approximately” the same time. As to the first unlawful use of a weapon count, the State maintained that it would prove that on that date and at that time, Yates and others knowingly shot a firearm from a vehicle at the victim at 3415 Pine Grove. As to the assault and armed criminal action counts, the State maintained that it would prove that “on that date and time at 3341 Oak-dale,” Yates and others fired a number of rounds at the victim, attempting to kill or seriously injure him, with the use of a

deadly weapon. Finally, as to the other unlawful use of a weapon charge, the State maintained that it would prove that “at the same date and time,” Yates and others knowingly shot a firearm into a dwelling house located at 3415 Pine Grove.

Yates agreed at the plea hearing that the State’s recitation of these facts was substantially true and correct. He answered “no” when asked whether anyone had made any promises or had threatened him to induce him to plead guilty. Yates also indicated that he had had sufficient opportunity to discuss his case with counsel, was satisfied that counsel was aware of all the information she needed to adequately advise and represent him, was advised of all aspects of the case, including his legal rights, and was satisfied with the services rendered by counsel. Yates understood that he had the right to have a jury determine his guilt at a trial and that by pleading guilty he waived that right. Understanding that, he still pled guilty to all four counts. The court accepted his pleas after ensuring that Yates had understood all the questions asked of him and had no questions of his own.

Yates filed a motion for post-conviction relief under Rule 24.035 in which he claimed that he was subject to multiple punishments for the same offense because the two counts of unlawful use of a weapon were based on the same conduct, which violated the double jeopardy clause and section 556.041. He also alleged that counsel was ineffective for failing to investigate his request for discovery from the State until his trial date and for coercing him to plead guilty because of counsel’s inadequate investigation. Yates claimed that he would testify at a hearing that “he felt he had no other choice, but to plead because he felt pressured and did not want to go to trial with an unprepared counsel.”

The motion court denied the request for an evidentiary hearing and took judicial notice of the court file, including the indictment and the transcript 'from the plea hearing. In its findings of fact and conclusions of law denying Yates’s motion, the court stated that each of the charges against Yates required proof of a fact not required by the other charges, none of which violated the double jeopardy clause or section 556.041. It also found that Yates failed to allege what specific evidence would have been revealed upon an effective investigation by counsel or how that evidence would have helped him and failed to establish any prejudice resulting from counsel’s actions. Moreover, it found that the allegations of counsel’s failure to investigate and coercion were refuted by the record.

II. DISCUSSION

We review the denial of a post-conviction motion under Rule 24.035 to determine whether the motion court’s findings of fact and conclusions of law were clearly erroneous. Weeks v. State, 140 S.W.3d 39, 44 (Mo. banc 2004). The motion court’s findings and conclusions will be deemed clearly erroneous only if, after reviewing the record, this Court is left with the definite and firm impression that a mistake has been made. Id.

A. Double Jeopardy

Yates claims that his convictions and punishments for two counts of unlawful use of a weapon violated the double jeopardy clause. We disagree.

The double jeopardy clause prohibits multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). It is not a double jeopardy violation, however, to convict and punish a defendant in a single trial of several offenses arising from the same set of facts if he has “in law and in fact committed separate crimes.” State v. Treadway, 558 S.W.2d 646, 651 (Mo. banc 1977). Double jeopardy is a question of law that we review de novo. State v. Schumacher, 85 S.W.3d 759, 761 (Mo.App. W.D.2002). When reviewing a double jeopardy claim after a guilty plea, we consider the transcript from the guilty plea and the information or indictment. Peiffer v. State, 88 S.W.3d 439, 441 (Mo. banc 2002).

The indictment charged Yates under subsections (3) and (9) of section 571.030.1, which enumerates multiple offenses pertaining to the unlawful use of a weapon. See section 571.030.1(1)-(10). Subsection (3) makes it unlawful to knowingly discharge or shoot a firearm into a dwelling house. Subsection (9) makes it unlawful to knowingly discharge or shoot a firearm from a motor vehicle. From the description of the incident in the indictment, it appears that multiple shots were fired by the defendants. If the convictions under subsections (3) and (9) were each based on a different shot fired by Yates— one out of a vehicle and one into a dwelling house — then there is no double jeopardy violation because each shot constituted a separate crime under the respective subsections. Cumulative punishments for multiple uses of a weapon, even when prosecuted under the same subsection of this statute, are permissible. State v. Barber, 37 S.W.3d 400, 404 (Mo.App. E.D.2001) (each instance of exhibiting a weapon is a separate crime under subsection (4)); State v. Nichols, 865 S.W.2d 435, 437 (Mo.App. E.D.1993) (each concealed knife carried is a separate crime under subsection (1)); State v. Morrow, 888 S.W.2d 387, 392-93 (Mo.App. S.D.1994) (each shot fired into a dwelling house is a separate crime under subsection (3)).

Even if the convictions under subsections (3) and (9) were based on a single shot fired by Yates out of the vehicle and into the dwelling house, there was no double jeopardy violation.

[Wjhere the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.

Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Subsection (3) requires proof that the firearm was shot into a dwelling house, while subsection (9) requires proof that the firearm was shot from a motor vehicle. Under the Blockburger test, each of these offenses has a different element than the other and they are separate offenses. See, e.g., State v. Gordon, 948 S.W.2d 673, 675 (Mo.App. E.D.1997) (no double jeopardy violation for prosecution of sodomy and incest based on same conduct because elements of each offense are different).

Yates also cites section 556.041(4), which prohibits multiple convictions for offenses constituting a continuing course of conduct:

When the same conduct of a person may establish the commission of more than one offense he may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if ...
(4) The offense is defined as a continuing course of conduct and the person’s course of conduct was uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses.

The instant offenses for unlawful use of a weapon are not defined as continuing courses of conduct. Shooting a firearm into a dwelling and shooting a firearm from a vehicle are each complete upon the firing of one shot. See Morrow, 888 S.W.2d at 393 (distinguishing unlawful use of a weapon under subsection (3) from offenses that intrinsically involve a continuing course of conduct, such as false imprisonment, bigamy, nonsupport and operating a house of prostitution). Thus, section 556.041 does not prohibit Yates’s convictions under subsections (3) and (9) of 571.030.1 based on the same conduct.

The motion court did not clearly err by denying Yates’s claim that his convictions violated the double jeopardy clause and section 556.041. Point denied.

B. Ineffective Assistance of Counsel

Yates contends that the court erred by denying his ineffective assistance of counsel claim without a hearing because he alleged facts showing that counsel’s investigation was inadequate and that counsel had coerced Yates to plead guilty. Yates’s claims were refuted by the record and, thus, properly denied without an evidentia-ry hearing.

A movant is entitled to an evi-dentiary hearing on a motion for post-conviction relief only if: (1) he alleges facts, not conclusions, warranting relief; (2) the facts alleged are not refuted by the record; and (3) the matters complained of prejudiced the movant. Simmons v. State, 100 S.W.3d 143, 145 (Mo.App. E.D.2003). No hearing will be held if the record of the case conclusively shows that the movant is entitled to no relief. Rule 24.035(h). If an examination of the guilty plea proceedings directly refute that the movant’s plea was involuntary, then he is not entitled to an evidentiary hearing. Cain v. State, 859 S.W.2d 715, 717 (Mo.App. E.D.1993).

“When a movant pleads guilty and then affirmatively states in court that he is satisfied with the performance of his trial counsel, he is not then entitled to an evi-dentiary hearing on a claim that counsel was ineffective for failure to investigate, because such a claim is refuted by the record.” Simmons, 100 S.W.3d at 146. Here, Yates was specifically asked whether he was satisfied with counsel’s services and satisfied that she had all the information necessary to represent him, to which he answered “yes.” The court’s questions were specific enough to elicit answers that directly refute Yates’s claim that counsel’s investigation was insufficient. No hearing was required on this claim under these circumstances. See id.; see also Evans v. State, 921 S.W.2d 162, 165 (Mo.App. W.D.1996).

The record also directly refutes Yates’s claim that counsel coerced him to plead guilty by not being prepared for trial. In addition to admitting that he was satisfied with counsel’s services and satisfied that she had all the information she needed to represent him, Yates also stated that he had sufficient opportunity to confer with counsel, that counsel had advised him of all of his legal rights, that no promises or threats had been made to induce his plea and that he understood the consequences of pleading guilty. Unlike Shackleford v. State, in which the movant’s negative response to whether any promises had been made to induce the plea were too general to refute his claim that counsel had made a positive misrepresentation about parole, Yates’s claim that he felt pressured to plead guilty because counsel was unprepared to go to trial was specifically addressed in the court’s inquiry about counsel’s preparation and services. See 51 S.W.3d 125, 128 (Mo.App. W.D.2001); see also Martin v. State, 78 S.W.3d 197, 199-200 (Mo.App. W.D.2002). No hearing was required on this claim under these circumstances. See Weaver v. State, 797 S.W.2d 526, 527-28 (Mo.App. E.D.1990).

The motion court did not clearly err by denying Yates’s ineffective assistance of counsel claim without a hearing. Point denied.

III. CONCLUSION

The judgment is affirmed.

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

      . All statutory references are to RSMo 2000.

      . Shooting into "a railroad train, boat, aircraft, or motor vehicle ... or any building or structure used for the assembling of people” is also unlawful under subsection (3). And subsection (9) also makes it unlawful to discharge or shoot a firearm "at any person, or at any other motor vehicle, or at any building or habitable structure.” The indictment and the transcript of the plea hearing make clear, however, that Yates was charged under subsection (3) only for shooting into a dwelling house and under subsection (9) only for shooting from a motor vehicle.

      . Although not included in his point relied on, Yates also contends in the argument section of his brief that the unlawful use of a weapon convictions and the armed criminal action conviction were based on the same conduct, placing him in double jeopardy, and that his plea counsel was ineffective for not raising the double jeopardy issues. "The argument shall be limited to those errors included in the 'Point Relied On.’ " Rule 84.04(e). We will not consider arguments raised for the first time in the argument portion of a brief. Helmig v. State, 42 S.W.3d 658, 666 (Mo.App. E.D.2001). Even if we did consider Yates’s arguments, they appear to have no merit. When an armed criminal action conviction is predicated on some offense other than the unlawful use of a weapon — in this case, assault — conviction and punishment in the same trial of both armed criminal action and unlawful use of a weapon for the same conduct does not violate the double jeopardy clause. See generally State v. Madison, 997 S.W.2d 16, 21 (Mo. banc 1999). There being no merit to the double jeopardy arguments, counsel cannot have been ineffective for failing to raise them.


author: JAMES K PREWITT, Judge.

text:
    David L. TURNER, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 26256.
    Missouri Court of Appeals, Southern District, Division One.
    March 24, 2005.

      Ellen H. Flottman, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Linda Lemke, Assistant Attorney General, Jefferson City, MO, for respondent.
   JAMES K PREWITT, Judge.

David L. Turner (“Movant”) was convicted by a jury of sale of a controlled substance, cocaine, and sale of a controlled substance, marijuana, both violations of § 195.211, RSMo 2000.

The trial court sentenced Movant, in accordance with the jury’s recommendation, to ten years’ imprisonment on each count, with the sentences to run consecutively. Movant’s direct appeal resulted in our affirming his conviction in State v. Turner, 94 S.W.3d 464 (Mo.App.2003) (“Turner I ”). The facts of the underlying case may be found in that opinion. Mov-ant subsequently sought post-conviction relief by filing a Rule 29.15 motion, asserting that his counsel at trial provided ineffective assistance.

Following an evidentiary hearing, the motion court denied the motion. Movant now appeals from that denial. We affirm.

Movant contends the motion court clearly erred in denying Movant’s motion for post-conviction relief because Movant was denied effective assistance of counsel in that trial counsel failed to object to the prosecutor’s closing argument wherein he told the jury that Movant had “violated his own children’s trust.” Movant claims that his trial counsel should have objected because this argument was an improper basis upon which to challenge Movant’s credibility and was prejudicial evidence of bad character, therefore trial counsel’s strategy in failing to object was unreasonable.

FACTS

At trial, during cross examination, the prosecutor questioned Movant about his former drug use and several “priors,” one of which was stealing. The state began to ask Movant, “Stealing usually is an act of deceit; basically you took something from someone else and — ” at which time trial counsel objected as improper impeachment. The court sustained the objection. The state then asked about Movant being on probation for nonsupport of two of his children. He suggested, “[Y]ou indicated to me that when you have children there is a situation with trust that you can take care of them as a father?” Movant answered “yes,” but defense counsel objected to the question as improper impeachment and irrelevant. The trial court overruled his objection.

During closing arguments, the prosecutor remarked: “You can’t believe anything he says. He, himself, already told you he has been convicted of stealing, that’s deceit, and he has violated his own children’s trust.” Defense counsel made no objection.

On direct appeal to this Court, Movant averred that it was plain error for the trial court to permit the State to make the above closing argument. See Turner I at 468. This Court found that the statement about violating “his own children’s trust” did not cause a manifest injustice to appellant and therefore was not plain error. Id. at 469. ...

Movant filed a pro se Rule 29.15 motion on March 5, 2003. Counsel was appointed, and an amended motion was filed June 5, 2003. In it, Movant alleged, in part, that counsel was ineffective in failing to object to the state’s closing argument that Mov-ant’s conviction for non-support “constituted a violation of his children’s trust and that [MJovant’s conviction for stealing constituted an act of deceit.” An evidentiary hearing was held at which defense counsel testified that he had objected in cross-examination to the statement about violating the children’s trust. However, since his objection was overruled at that time, he did not want to call attention to the statement during closing arguments by objecting and most likely being overruled again.

On April 1, 2004, the Honorable David A. Dolan entered findings of facts and conclusions of law denying appellant’s motion. The motion court found that failing to object during closing argument was trial strategy and that Movant was not prejudiced since the issue of his credibility was fully before the jury.

The appellate court’s review is limited to a determination of whether the motion court’s findings were clearly erroneous. Rousan v. State, 48 S.W.3d 576, 581 (Mo.banc 2001); Rule 29.15(k). “The findings and conclusions of the motion court are clearly erroneous only if, after a review of the entire record, the appellate court is left with the definite impression that a mistake has been made.” Id. (quotation marks omitted).

In order to obtain relief on a claim of ineffective assistance of counsel, the mov-ant must show not only that his attorney failed to exercise the ordinary skill and diligence that a reasonably competent attorney would perform under similar circumstances, but also that the movant suffered prejudice thereby. Knese v. State, 85 S.W.3d 628, 631 (Mo.banc 2002), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984).

Movant will not succeed on a post-conviction claim of ineffective assistance of counsel unless he is able to demonstrate by a preponderance of the evidence that there is a reasonable probability that, but for the trial counsel’s error, the result of the trial would have been different. Jeremiah v. State, 73 S.W.3d 857, 859 (Mo.App.2002); Rule 29.15(i). The reviewing court will presume that a trial attorney’s conduct was reasonable under the circumstances rather than ineffective. Clayton v. State, 63 S.W.3d 201, 206 (Mo.banc 2001), cert. denied, 535 U.S. 1118, 122 S.Ct. 2341, 153 L.Ed.2d 169 (2002). “Reasonable choices of trial strategy cannot be the basis for a claim of ineffective assistance.” Knese, 85 S.W.3d at 631.

The motion court found that trial counsel’s failure to object to the state’s closing was trial strategy; that trial counsel was not deficient in his performance for not objecting to the state’s argument concerning Movant’s credibility; and further, that Movant was not prejudiced by the argument, “as the issue of his credibility was fully before the jury since he testified in the case.”

In the evidentiary hearing, appellant’s trial counsel testified as follows:

A: I believe that in trial when the Prosecutor was cross examining the Defendant about prior convictions and had impeached him with questions regarding pleading guilty to non-support, and that he had violated his children’s trust, and I objected to that during his cross examination. It was overruled.
I had a good faith belief if I had objected to that in argument at closing it would have been overruled again, that is drawing more attention to it would have been my thinking.... I knew if I objected to it at that point[,] overruled would have been the result.
Q: So you just believed it would be overruled. You say that was your strategy in that aspect?
A: Yes. It would draw more attention to it having been objected and overruled.

This testimony indicates that trial counsel’s decision was reasonable trial strategy. Trial counsel had been overruled once before on the same objection, and he did not want to be overruled again during closing arguments, which would simply highlight the testimony for the jury. This is a perfectly reasonable trial strategy. See Shockley v. State, 147 S.W.3d 189, 194 (Mo.App.2004) (“[Tjrial counsel often do not object to otherwise improper questions or arguments for strategic purposes because frequent objections might irritate the jury and highlight the statements complained of, resulting in more harm than good.”) (internal quotation marks omitted).

Movant’s trial counsel also testified at the motion hearing that he did not believe that the prosecutor was arguing propensity but, rather, was arguing credibility. On direct appeal, we determined that the prosecutor’s statements were a proper attack on Movant’s credibility. Turner I at 469. Because he was arguing credibility, which is not improper, rather than propensity, the objection would have been non-meritorious. Trial counsel can not be found ineffective for failing to make non-meritorious objections. Barnett v. State, 99 S.W.3d 21, 24 (Mo.App.2003).

Even if we were able to find that trial counsel’s assistance was ineffective, Movant fails to show that he suffered Strickland prejudice. It is Movant’s burden to show, by a preponderance of the evidence, that there is a reasonable probability that the result of the trial would have been different. Jeremiah, 73 S.W.3d at 859; Rule 29.15(i). The facts of the case indicate a strong showing of guilt so that, even if trial counsel had objected to the statement during closing, a reasonable jury would most likely have found him guilty. Movant testified at trial, admitting that he had pled guilty to several felonies, had used crack cocaine, and had been in a drug rehab shortly before the incident. In addition, two officers, who were in the back of the van during the drug buys, testified that they clearly saw Movant, that they had known him for several years, and were certain that he was the person who sold the drugs. A third officer also testified that he knew Movant and spotted him in the vicinity of the drug buys on that day.

Given Movant’s questionable credibility and the identifications by the three officers, it is not reasonably probable that the result of the trial would have been different had his counsel objected to the state’s closing argument. Movant’s sole point must fail.

The judgment is affirmed.

      . Unless otherwise noted, all statutory references are to RSMo 2000.

      . References to rules are to Supreme Court Rules, Rules of Criminal Procedure, 2004 unless otherwise noted.


author: JOHN E. PARRISH, Presiding Judge.

text:
    Deborah A. FINNIGAN, Plaintiff-Respondent, v. KNG INVESTMENTS, INC., d/b/a Knight’S Inn, Defendant-Appellant.
    No. 26309.
    Missouri Court of Appeals, Southern District, Division Two.
    March 25, 2005.
    Russell F. Watters, T. Michael Ward, Teresa M. Young, St. Louis, Brown & James, P.C., MO, for appellant.
    Noah K. Wood, Randell K. Wood, Wood & Associates, Springfield, for respondent.
   JOHN E. PARRISH, Presiding Judge.

KNG Investments, Inc., (defendant) appeals the denial of a motion to quash service and set aside a default judgment entered in favor of Deborah Finnigan (plaintiff) contending that the trial court lacked jurisdiction to enter judgment against defendant for the reason that service of process was defective. This court reverses and remands.

Plaintiff filed her petition in the circuit court October 10, 2002. The named defendant was “KNG INVESTMENTS, INC., d/b/a KNIGHT’S INN.” The petition included, immediately below defendant’s name on the petition, the direction:

SERVE: REGISTERED AGENT:
KENNY PATEL,
2114 S. Glenstone,
Springfield, MO 65804[.]

The record on appeal reflects that summons was issued and delivered to the Sheriff of Greene County, Missouri, the date the petition was filed. The trial court’s docket sheet reflects that the summons was returned from the sheriff on October 16, 2002, with service on KNG Investments, Inc., on October 15, 2002. The entry states that service was had “BY SERVING NIC PATEL, GEN MGR ON 10/15/02.” A copy of the summons is included in the record on appeal. The officer’s affidavit of service that appears on the summons states that the summons was served by “(for service on a corporation) delivering a copy of the summons and a copy of the petition to (name) Vic Patel, (title) Gen. Mng./P.I.C., at (address) 21:4 S. Glenstone.” It states, “SERVED IN Greene COUNTY, MO (STATE) ON THIS 15 DAY OF October, ...02 [.]”

Plaintiff filed a motion for interlocutory order of default February 19, 2003, that alleged:

1. Plaintiff filed her Petition on October 10, 2002.
2. Defendant has failed to plead or otherwise respond to or defend Plaintiffs Petition and far more than the time provided for by law for Defendant to respond has passed.
3. Consequently, Defendant is in default.

The motion requested, “WHEREFORE, since, as set forth herein, Defendant is in default, Plaintiff respectfully prays that the court enter an interlocutory order of default and schedule a hearing on damages pursuant to Rule 74.05(b) of the Missouri Rules of Civil Procedure.”

The trial court entered an “INTERLOCUTORY ORDER OF DEFAULT” February 19, 2003, that declared defendant was in default. “JUDGMENT BY DEFAULT” was rendered March 6, 2003. It declared:

The court, having heard the testimony of [plaintiff] finds and hereby assesses as damages, the amount of $900,000.00 against [defendant].
Having so found,
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that, pursuant to Rule 74.05 of the Missouri Rules of Civil Procedure, judgment by default be entered in favor of [plaintiff] and against [defendant] and that [plaintiff] have and recover of [defendant] as damages the amount of $900,000.00, for which let execution issue.

On November 18, 2003, defendant filed a motion to quash service and set aside the default judgment. It alleged, among other things, that service of process on defendant was void; that the trial court, therefore, lacked proper service on defendant. The motion requested that the trial court “quash service and set aside the default judgment entered against [defendant] .... ” Included as “Exhibit G” attached to the motion was a copy of a corporate record certified by the Missouri Secretary of State dated August 2, 2001, that declared defendant’s corporate status was “administratively dissolved or revoked....”

The trial court denied defendant’s motion to set aside the default judgment May 20, 2004. On July 28, 2004, the trial court filed a “JUDGMENT AND ORDER” that declared:

Having overruled [defendant’s] Motion to Quash Service and to Set Aside the Default Judgment on May 20, 2004, by entering a docket entry in the Court’s minutes, the court hereby enters Judgment for [plaintiff] and against [defendant] and orders Defendant’s Motion to Quash Service and to Set Aside the Default Judgment denied.

Defendant asserts two points on appeal. This court finds Point I determinative. It contends the trial court erred in denying defendant’s motion to quash service and to set aside the default judgment because the judgment was void for want of personal jurisdiction. Point I argues that because defendant had been administratively dissolved as a corporation by the secretary of state on August 2, 2001, service of process was required to be effected in the manner directed by § 506.150(4); that this was not done; therefore, the trial court had no authority to enter judgment against defendant.

Section 506.150.1, as applicable to dissolved corporations, provides:

The summons and petition shall be served together. Service shall be made as follows:
(4) Upon a domestic corporation that has been dissolved according to law, by delivering a copy of the summons and of the petition to the last registered agent of the corporation or upon the secretary of state, and if upon the secretary of state, the secretary of state shall send a copy of the summons and petition by registered mail, requesting a return receipt signed by addressee only, addressed to each member of the last board of directors of the corporation at the address of such directors, as shown by the secretary of state’s records.

Service of process was not effected on either the last registered agent of defendant or the secretary of state. It, therefore, was not in compliance with requirements of § 506.150. “[U]nless a defendant is served with process, or summoned, in a manner and form authorized by statute, the court is without authority to proceed.” State ex rel. Illinois Farmers Ins. Co. v. Gallagher, 811 S.W.2d 353, 354 (Mo. banc 1991). Where the statutorily prescribed requirements for process and the manner of service are not met, the court in which the action is pending is without power to adjudicate. Ponder v. Aamco Automatic Transmission, Inc., 536 S.W.2d 888, 890 (Mo.App.1976). Point I is granted. It is determinative of this appeal. Therefore, the remaining point defendant asserts on appeal need not be, and is not, addressed.

The judgment is reversed. The case is remanded.

SHRUM and BARNEY, JJ., concur.

      . The number "19” with a line drawn through it appears immediately before the number "02.”

      . References to statutes are to RSMo 2000.

      . Plaintiff argues that the service in this case complied with requirements of § 506.150.1(3), the provision applicable for service upon a domestic or foreign corporation; that, therefore, it was sufficient to confer jurisdiction over the person of defendant. The fallacy of that argument is that defendant was dissolved as a corporation August 2, 2001. Its corporate existence was forfeited on that date. A corporation’s very being as a legal entity is destroyed the day forfeiture occurs. Phillips v. Hoke Const., Inc., 834 S.W.2d 785, 787 (Mo.App.1992). § 506.150.1(3) relates to service on a corporation, not a former corporation "that has been dissolved according to law,” to which § 506.150.1(4) applies.


author: JAMES K. PREWITT, Judge.

text:
    STATE of Missouri ex rel. Jeremiah W. (Jay) NIXON, Attorney General, the Missouri Land Reclamation Commission, the Missouri Air Conservation Commission, and the Missouri Department of Natural Resources, Plaintiff-Respondent, v. ALTERNATE FUELS, INC., Defendant-Appellant, and Larry Pommier, Defendant.
    No. 26193.
    Missouri Court of Appeals, Southern District, Division One.
    March 25, 2005.
    Patrick R. Miller and Anthony D. Gillette, Dezube Miller, P.A., Overland Park, KS, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shelley A. Woods, Assistant Attorney General, Jefferson City, MO, for Respondent.
   JAMES K. PREWITT, Judge.

Appellant, Alternate Fuels, Inc. (“AFT”), appeals from a judgment entered in circuit court, in pertinent part, in favor of the Missouri Land Reclamation Commission, et al (“the Commission”). The portion of the case involved in this appeal originated as a breach of contract claim which alleged that AFI failed to comply with a Consent Agreement (“Agreement”) entered into pursuant to the Missouri Surface Coal Mining Law, §§ 444.800, et seq, RSMo 2000.

Judgment was entered on March 1, 2004, which held that AFI had breached the Agreement and was therefore liable for payment of the $40,000.00 suspended penalty provided for in the Agreement.

Background

In 1998, the Missouri Department of Natural Resources, Land Reclamation Program (“LRP”) issued a Show Cause order to AFI that stemmed from several notices of violation (“NOV”) which had not been abated. In August 1999, after an appeal of the Show Cause order to the Commission, AFI and the LRP entered into an Agreement to settle the penalties stemming from all of the enforcement actions subject to the Show Cause order. The Agreement provided for the two parties to write a Compliance Schedule (“Schedule”) which listed the enforcement actions covered by the Agreement and the dates by which they must be abated. AFI agreed to pay a penalty in the amount of $75,000; however $40,000 of that fine was suspended. The purpose of the suspended penalty was to serve as an incentive for AFI to comply with the terms of the Agreement and its accompanying Schedule. Any deviation that caused AFI not to be in compliance with those two documents would require the payment of the suspended penalty. Although the Schedule listed several interim dates for each NOV, the suspended penalty would only be triggered if a final deadline on a particular violation was missed.

One of the notices of violation subject to the Agreement was NOV No. P91-02-67 (“NOV 67”), which was written “for failure to protect the slopes of an impoundment for erosion.” The Schedule directed that AFI must “install erosion control structures per design,” by December 1, 1999, and “respond to all staff comments and have an approved plan and map to the LRP” no later than January 1, 2000.

On January 11 and 12, 2000, LRP Inspector Bret Geger toured AFI’s facility, known as the Blue Mound Mine, to see if NOV 67 had been abated. He testified at trial that he found the erosion control structure only partially completed and that no approvable plan and map had been submitted for approval. By March 2000, the structure had been finished but AFI still had not submitted a map that could be approved by the LRP.

In a letter dated March 30, 2000, Larry Coen, Staff Director for the LRC, notified AFI that several NOVs referenced in the Agreement and Schedule had yet to be abated. Mr. Coen testified that the last paragraph of the letter included a demand for the collection of the suspended penalty if the NOVs were not abated. The letter also included a twenty-three-page detailed checklist to aid AFI in remedying the remaining violations.

In April, 2001, the State brought action in the Circuit Court of Barton County against AFI seeking, among other things, recovery of the $40,000.00 suspended penalty. As noted above, the court found in favor of the LRP on the breach of contract claim and ordered AFI to pay the suspended penalty.

Standard of Review

In a court-tried case, the standard of review is that the judgment of the trial court should be sustained unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). This Court should set aside a decree or judgment on the grounds that it is against the weight of the evidence only “with caution and with a firm belief that the decree or judgment is wrong.” Id.

Point I

In its first point, Appellant avers that the trial court erred in finding that AFI had not complied with the Agreement through its failure to provide approvable maps and plans to the LRP because there was no substantial evidence adduced at trial to show breach of the Agreement by AFI. Appellant contends that evidence at trial established that AFI submitted plans and maps that were “sufficient”; however the Commission refused to approve the proposed maps because they were not accompanied by affidavits executed by the landowners approving the amendments to the reclamation plan and structures identified on the maps. Appellant also claims that the requirement of having landowner approval of the map was not included in the Agreement and Schedule and was found only in the suggestions attached to Mr. Coen’s letter.

If contract terms are clear and unequivocal, the court is bound to enforce the contract as written. Smith v. Lockwood, 907 S.W.2d 306, 308 (Mo.App.1995). In this case, the contract is the Agreement and its Schedule and not Mr. Coen’s letter of March 30, 2000. Mr. Coen testified to as much, stating, “[t]he enforceable document was the Compliance Schedule. This [the letter] was simply my attempt to help

the company get back into compliance before the dates of the Compliance Schedule ran out.” This fact alone, however, is not dispositive.

Even if the requirement for landowner approval of the map were part of the contract, the facts in this case, as adduced from the record, show that the map AFI submitted to the Commission was insufficient in several areas other than the landowner approval issue; therefore AFI was in breach of the Agreement. The trial court is in the best position to judge both the credibility of witnesses and the weight that should be given evidence. State v. Dunn, 147 S.W.3d 75, 78 (Mo.banc 2004), citing State v. Miller, 894 S.W.2d 649, 651 (Mo.banc 1995).

Nowhere in the transcript did the president of AFI, Larry Pommier, state that the sole reason the maps had been rejected was the lack of landowner approval. To the contrary, Mr. Pommier testified that “[t]he State had a number of problems with the map that was submitted.” Inspector Geger testified that the map AFI submitted was not approved because it was inaccurate. In addition, he believed that the refusal had nothing to do with the whether landowner affidavits had been submitted. Mr. Coen testified that he didn’t know whether the difficulty with the map was strictly related to the landowner affidavit issue. In fact, the attachments to Mr. Coen’s letter list several ways in which the map was deficient, including failure to: properly depict the permit boundary north of the tipple area; provide different coloring, shading, or hatching for individual land uses; and show the location of any previously mined land.

There was sufficient evidence before the court for the trial judge to determine that AFI breached the agreement by not providing the Commission “approvable” maps. Point I is denied.

Point II

In its second point, Appellant contends that the Consent Agreement was not enforceable to the extent it required AFI to provide affidavits executed by landowners approving the maps and plans because the Commission could not require AFI to obtain the affidavits under any provision of law, and doing so violated public policy. If a contract violates public policy, it is unenforceable. First Nat’l Ins. Co. of America v. Clark, 899 S.W.2d 520, 521 (Mo.banc 1995).

In our analysis of the point above, we determined that the requirement for landowner approval of the map and plan was not part of the Agreement or Schedule. The contract, therefore, is not void and unenforceable. Point II is denied.

The judgment is affirmed.

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

      . Unless otherwise indicated, all statutory references are to RSMo 2000.


author: KENNETH W. SHRUM, Judge.

text:
    Gerard L. BETTINGER and Karen R. Bettinger, Plaintiffs-Appellants, v. The CITY OF SPRINGFIELD, Missouri, Defendant-Respondent.
    No. 26391.
    Missouri Court of Appeals, Southern District, Division Two.
    March 28, 2005.

      Rick J. Muenks, Springfield, MO, for appellants.
    Douglas Harpool, Tamara F. de Wild, Lathrop & Gage, Springfield, MO, for respondent.
   KENNETH W. SHRUM, Judge.

This suit by Gerard and Karen Betting-er (“Plaintiffs”) against the City of Springfield, Missouri (“City”), seeks damages based on a theory of inverse condemnation. They claim City took their real estate for public use without fairly compensating them. Plaintiffs allege this taking occurred when a public drainage system failed to carry away surface water run-off that collected therein as a result of heavy rainfall; and, when the overflow escaped the confines of the drainage easement, the water damaged Plaintiffs’ residential property. City’s motion for summary judgment was sustained. This appeal by Plaintiffs followed. We affirm.

STANDARD OF REVIEW

‘When considering appeals from summary judgments, the Court will review the record in the light most favorable to the party against whom judgment was entered.” ITT Commercial Fin. v. Mid-Am. Marine, 854 S.W.2d 371, 376[1] (Mo. banc 1993). Summary judgment is an issue of law which we review de novo. Id. at 376[4]. Summary judgment is proper when a movant demonstrates that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Jos. A. Bank Clothiers, Inc. v. Brodsky, 950 S.W.2d 297, 300 (Mo.App.1997). “The review of a grant of summary judgment is equivalent to reviewing a court-tried proceeding; if the judgment is sustainable under any theory, it must be sustained.” Id. at 300[1].

FACTS

Plaintiffs own Lot 54, Briarwood Subdivision, Springfield, Missouri, upon which their home is located. On July 12, 2000, this property was damaged when water from a storm water drainage system overflowed onto portions of Plaintiffs’ lot not subject to a drainage easement.

The Briarwood subdivision was laid out and platted in June 1972, and the plat thereof was “presented to, accepted and approved” by City on September 18, 1972. The plat provided for an eighteen-foot drainage easement, running along the south boundary line of Lot 54 and the north boundary of Lot 61 which was essentially divided equally between the two lots. Beginning in 1972, City built and maintained “drainage improvements” within that easement.

After the Briarwood subdivision, land lying north of Briarwood was also subdivided and platted, and the plats thereof accepted and approved by City. Specifically, City approved and accepted Holiday South Subdivision on April 9, 1990 (ordinance No. 21690), the Holiday Addition First Subdivision on May 7, 1990 (ordinance No. 21706), the Holiday Addition Subdivision on May 7, 1990 (ordinance No. 21707), and a final plat of Holiday South 1st Addition on April 4, 1994 (ordinance No. 22505). The owner and subdivider of each of these tracts dedicated public easements to the public for use in draining storm water. When City approved the respective plats, it accepted these easements.

When completed, the Holiday Additions had storm water drainage systems in place. In turn, these systems were connected with the Briarwood Subdivision storm water drainage system. As a consequence, a single storm water drainage system served parts of each of the Holiday subdivisions, and water collected therein traveled through the drainage system in the Briarwood subdivision.

An additional part of this continuous storm water drainage system involved a subdivision known as South View Addition, which City annexed on December 31,1968, and Lots 9 and 10 of Holiday South Subdivision which City acquired in May 1990. These lots were used by City for the construction of drainage improvements for the system, including detention basins and culverts.

During the early morning hours of July 12, 2000, seven inches of rain fell upon the city in less than six hours. This “record” rainfall “put the magnitude of the storm between a 100 and 500-year event.” It was during this weather event that water in the subject drainage system overflowed, left the easement area, and damaged Plaintiffs’ home and other property. This led Plaintiffs to file the instant damage suit, captioned “Petition for Damages (Inverse Condemnation).” Plaintiffs asked for $54,155 in damages for the “wrongful appropriation.”

As the case progressed and after some discovery made, Plaintiffs filed a “Motion for Summary Judgment on Liability Alone.” City filed a “Cross Motion for Summary Judgment.” The trial court denied Plaintiffs’ motion and granted City’s cross-motion for summary judgment. This appeal followed.

DISCUSSION AND DECISION

We reproduce Plaintiffs’ single point relied on:

“The trial court erred in granting the City’s Motion for Summary Judgment ... because [Plaintiffs’] private property was appropriated for a public use without just compensation in that the water run-off within the [Cjity’s public drainage system exceeded the boundaries of the public drainage easement resulting in a taking of private property for a public use.”

This case involves the law of surface water in Missouri which has a long and somewhat tortured history. From 1884 and until the case of Heins Implement v. Hwy. & Transp. Comm’n., 859 S.W.2d 681 (Mo.banc 1993), the so-called “common enemy” doctrine was applied. Id. at 686. Over the years, however, courts often applied the common enemy rule differently, created exceptions to it, and frequently disagreed on the scope of the exceptions. Id. at 686-87. As such, the Heins court concluded in 1993 that surface water case precedents could no longer be reconciled, Id. at 687, and the common enemy rule had outlived its usefulness. Id. at 690-91. Therefore, Heins rejected the common enemy doctrine and accepted the rule of reasonable use. Id. at 689-91.

The rule of reasonable use does not lay down any specific rights or privileges regarding surface waters, but leaves each ease to be decided on its own facts in accordance with “principles of fairness and common sense.” Id. at 689. The thrust of the reasonable use rule states that “ ‘each possessor is legally privileged to make a reasonable use of his land, even though the flow of surface water is altered thereby and causes harm to others, but incurs liability when his harmful interference with the flow of surface waters is unreasonable.’ ” Id. at 689[7] (citation omitted).

Liability for surface water flow arises when the defendant’s conduct regarding surface water is (1) intentional and unreasonable, or (2) negligent, reckless, or in the course of an abnormally dangerous activity. Id. at 689-90[9]. Otherwise stated, the reasonable use rule simply imposes “a duty upon any landowner in the use of his or her land not to needlessly or negligently injure by surface water adjoining lands owned by others, or in the breach thereof to pay for the resulting damages.” Id. at 690.

With this in mind, we now consider Plaintiffs’ argument. As we understand it, Plaintiffs first take the position that the Heins case and the reasonable use rule adopted by it do not apply here. Without expressly saying so, the essence of Plaintiffs’ theory is one of strict liability, i.e., City’s acceptance, control, and maintenance of the subject storm water drainage systems rendered it hable for damages to Plaintiffs’ property that were caused when water in the drainage system left the easement and overflowed onto their property without regard to the cause of the overflow.

Plaintiffs begin by claiming that Heins and the reasonable use rule have no application to their case due to factual differences. Specifically, they state that, in Heins, private land was damaged by water that could not escape because a highway bypass was built with an inadequate culvert, whereas here Plaintiffs’ land was damaged by a public drainage system that overflowed. Id. at 691.

Their first argument as to why this fact distinction makes a difference involves a definition of “surface water” lifted from Roberts v. Hooker, 610 S.W.2d 321 (Mo.App.1980), namely, “surface water” is “the uncollected flow from falling rain or melting snow, or are waters which rise in the earth from springs and diffuse over the surface of the earth.’ [Clark, Waters & Water Rights, § 52.1(a) 1967].” Id. at 326. Focusing exclusively on this definition, Plaintiffs seem to suggest that surface water collected in a municipal drainage system (such as occurred here) loses its identity as surface water once it is collected in a drainage system; consequently, the Heins case (which dealt with surface water) is not applicable.

Without further developing that argument, Plaintiffs next cite Clark v. City of Springfield, 241 S.W.2d 100 (Mo.App. 1951), for the proposition that Missouri has “traditionally recognized damages arising from the overflow of surface and sewage waters onto and across private property.” Inexplicably, Plaintiffs never state why or how Clark supports their position that the Heins rule of reasonable use does not attend when water is collected in a public drainage system and then overflows causing damage. Whatever undisclosed connection Plaintiffs believe exists between the authorities they cite and the arguments they make, their arguments fail for the following reasons.

First, the water that flooded Plaintiffs’ property is “surface water” for the purpose of legal analysis despite their argument to the contrary. The fact that water is artificially “collected” and then discharges or overflows onto another’s property does not necessarily convert the water into something else for purposes of imposing or avoiding liability for damages. See, e.g., Heins, 859 S.W.2d 681 (“pooling” of water considered surface water); Thomas v. City of Kansas City, 92 S.W.3d 92 (Mo.App.2002) (overflow of drainage systems treated as surface waters); Darst v. Metro. St. Louis Sewer Dist., 757 S.W.2d 270 (Mo.App.1988) (flood water of a stream entirely escaping banks is surface water); Kenton, 247 S.W.2d at 700-01 (water running through sewer pipe is surface water); 78 Am.Jur.2d, Waters, § 174 (2002).

Second, Clark and cases cited therein, as well as the language used, no longer have relevancy. This follows because the common enemy rule was at issue in Clark and that rule was displaced via Heins.

Third, assuming arguendo that the surface water doctrine discussed in Clark still governed, it has limitations. See Lewis v. City of Springfield, 142 Mo. App. 84, 125 S.W. 824, 825 (1910) (city only liable for flooding of drainage systems when overflow was caused by “ordinary rains,” quoting Carson v. City of Springfield, 53 Mo.App. 289, 294-95 (1893)). On this record, the Lewis limitation would govern, compelling a ruling for City as a matter of law.

We next consider another “strict liability” argument made by Plaintiffs, i.e., the reasonable use rule does not apply because of note 15 in the Heins decision. There, the following is found: “It has been suggested that even a reasonable diversion of surface water by a public entity constitutes a ‘taking.’ ” Heins, 859 S.W.2d at 691 n. 15 (citing Wilson v. Ramacher, 352 N.W.2d 389, 394 (Minn.1984)). Based on the footnote and the Heins court’s mention of the Ramacher case, Plaintiffs assert that City is strictly liable because the flooding resulted in a taking or damaging of their property without just compensation.

The Supreme Court of Missouri adopted the reasonable use surface water rule in 1993 for the avowed purpose of “bringing] into one classification all waters over the use of which controversy may arise.” Heins, 859 S.W.2d at 691 (quoting Higday v. Nickolaus, 469 S.W.2d 859, 869-70 (Mo.App.1971)). The court held “that when, as a result of a public works project, private property is damaged by an unreasonable diversion of surface waters, whether by design or mistake, the owner may bring an action for inverse condemnation.” Heins, 859 S.W.2d at 691[11] (emphasis supplied).

With this language in the body of the Heins opinion, we can only speculate on the intention of the Heins court as intimated by its note 15 comment. Perhaps, the court was suggesting that even a reasonable diversion of water by a public entity onto a private owner’s land might be an unconstitutional taking if the public entity did so (a) intentionally, knowing it had no right to use the land without paying for it, or (b) in the mistaken belief it had the lawful right to so use the private land for that purpose and then refused to pay for the land or damage thereto. In any event, the note 15 comment was obiter dicta.

Assuming arguendo that this was the intention behind the comment, Plaintiffs neither pleaded facts supportive of the “design” or “mistake” elements, nor responded to City’s summary judgment motion with any fact to support the notion that City acted by “design” or through “mistake.”

On the record presented, there are no disputed facts, which if resolved favorably to Plaintiffs, would show (1) City intentionally flooded Plaintiffs’ land (as occurred in Ramacher), or (2) the flooding occurred as the result of City’s negligent conduct, reckless conduct, or conduct in the course of an abnormally dangerous activity. To the contrary, the undisputed evidence reveals Plaintiffs’ property was damaged by water that fell in record amounts and flooded areas never before flooded.

On this record, this case is governed by the well established general rule that governmental entities are not liable in inverse condemnation when the damage is the result of natural forces. See Ressel v. Scott County, 927 S.W.2d 518, 521[8] (Mo.App.1996) and cases cited therein; Welch v. City of Appleton, 265 Wis.2d 688, 666 N.W.2d 511, 516-17 (2003). The flooding of Plaintiffs’ property was not the result of anything City did or failed to do, either intentionally or by design; it simply was the result of natural forces. Point denied.

The trial court did not err in granting summary judgment in favor of City. The issue presented by City’s motion for summary judgment was whether the surface water rule of law adopted in Heins governed here. This was a question of law which the trial court correctly decided adversely to Plaintiffs.

The judgment of the trial court is affirmed.

PARRISH, P.J., and BARNEY, J., concur.

      . Article I, Section 26 of the Missouri Constitution states that "private property shall not be taken or damaged for public use without just compensation.” "Inverse condemnation is a cause of action against a governmental agency to recover the value of property taken by the agency, though no formal exercise of the power of eminent domain has been completed.” Mo. Real Estate and Ins. Agency v. St. Louis County, 959 S.W.2d 847, 849[2] (Mo.App.1997).

      . Surface water takes many forms. For instance, overflow during flooding from a river, stream, or creek is surface water. Sigler v. Inter-River Drainage Dist., 311 Mo. 175, 279 S.W. 50, 56 (1925). Generally stated, surface water is water running across land that emanates from natural sources such as rain or melting snow. Happy v. Kenton, 362 Mo. 1156, 247 S.W.2d 698, 700-01 (1952); Walther v. City of Cape Girardeau, 166 Mo.App. 467, 149 S.W. 36, 38 (1912).

      . This doctrine held that surface water was a common enemy to all landowners; thus, he or she was allowed to guard against it in his or her own way. Abbott v. The K.C., St. J. & C.B. Ry. Co., 83 Mo. 271, 283-86, 1884 WL 9487 (1884); Grant v. St. Louis, I.M. & S. Ry. Co., 149 Mo.App. 306, 130 S.W. 80, 81 (1910). As such, when a landowner improved his or her property, he or she was not responsible for damages to the neighbor’s land by reason of the fact that surface water might thereby have been turned upon his or her neighbor, so long as the improvements were done in a "proper manner.” Id.

      .It appears that both parties asked the trial court to decide this question of law via summary judgment. However, essentially no fact question was presented by what was filed. Consequently, the parties do not contend on appeal that factual issues exist. Whether summary judgment was an appropriate vehicle to raise this question of law, as opposed to a motion to dismiss for the failure to state a claim, is a question not before this court.

      . In developing their argument, Plaintiffs do nothing more than quote this language from Clark, 241 S.W.2d at 106, which in turn came verbatim from Paddock v. Somes, 102 Mo. 226, 14 S.W. 746, 749 (1890): "And of course it is an actionable injury and nuisance for one to collect surface waters and cast them in a body upon a neighboring proprietor; and the same rule holds in this regard, both as to individuals and to municipal corporations. The latter, though not obligated to construct sewers or drains to protect adjoining owners against the flow of surface water from public ways, yet, if they do construct drains, and thus carry water and cast water upon adjacent lands are as much responsible as though they had invaded such lands by sending their servants thereon.”


text:
    Larry E. CROSS, Plaintiff-Appellant, v. The CITY OF SPRINGFIELD, Missouri, Defendant-Respondent.
    No. 26392.
    Missouri Court of Appeals, Southern District, Division Two.
    March 28, 2005.
    Appeal from the Circuit Court of Greene County; J. Miles Sweeney, Judge.
    Rick J. Muenks, Springfield, for appellants.
    Douglas Harpool, Tamara F. de Wild, Lathrop & Gage, Springfield, for respondent.
   KENNETH W. SHRUM, Judge.

This suit by Larry E. Cross against the City of Springfield, Missouri (“City”), seeks damages based on a theory of inverse condemnation. He claims City took his real estate for public use without fairly compensating him. Plaintiff alleges this taking occurred when a public drainage system failed to carry away surface water run-off that collected therein as a result of heavy rainfall; and, when the overflow escaped the confines of the drainage easement, the water damaged Plaintiffs residential property. City’s motion for summary judgment was sustained. This appeal by Plaintiff followed.

This is a companion case to Bettinger v. City of Springfield, 158 S.W.3d 814, 2005 WL 711877 (Mo.App.2005), No. 26391, decided and handed down by this court on March, 2005. The issues here are identical to those in Bettinger. Moreover, except for the parties plaintiff, the real estate involved, and the damage claimed, the relevant facts here are identical to those in Bettinger. Finally, the trial court error alleged here and the arguments made in support of those claims are identical to those in Bettinger. As a consequence, we opt to affirm the summary judgment entered in this cause for the reasons set forth in Bettinger. See, e.g., State ex rel. Dowdy v. Neill, 90 S.W.3d 469, 470 (Mo. banc 2002).

The judgment is affirmed.

PARRISH, P.J., and BARNEY, J., concur.


text:
    Larry D. CLUTTER and Patricia Ann Clutter, Plaintiffs-Appellants, v. The CITY OF SPRINGFIELD, Missouri, Defendant-Respondent.
    No. 26393.
    Missouri Court of Appeals, Southern District, Division Two.
    March 28, 2005.
    Rick J. Muenks, Springfield, for appellants.
    Douglas Harpool, Tamara F. De Wild, Lathrop & Gage, Springfield, for respondent.
   KENNETH W. SHRUM, Judge.

This suit by Larry D. Clutter and Patricia Ann Clutter against the City of Springfield, Missouri (“City”), seeks damages based on a theory of inverse condemnation. They claim City took them real estate for public use without fairly compensating them. Plaintiffs allege this taking occurred when a public drainage system failed to carry away surface water run-off that collected therein as a result of heavy rainfall; and, when the overflow escaped the confines of the drainage easement, the water damaged Plaintiffs’ residential property. City’s motion for summary judgment was sustained. This appeal by Plaintiffs followed.

This is a companion case to Bettinger v. City of Springfield, 158 S.W.3d 814, 2005 WL 711877 (Mo.App.2005), No. 26391, decided and handed down by this court on March, 2005. The issues here are identical to those in Bettinger. Moreover, except for the parties plaintiff, the real estate involved, and the damage claimed, the relevant facts here are identical to those in Bettinger. Finally, the trial court error alleged here and the arguments made in support of those claims are identical to those in Bettinger. As a consequence, we opt to affirm the summary judgment entered in this cause for the reasons set forth in Bettinger. See, e.g., State ex rel. Dowdy v. Neill, 90 S.W.3d 469, 470 (Mo. banc 2002).

The judgment is affirmed.

PARRISH, P.J., and BARNEY, J., concur.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Bryan D. PEIFFER, Appellant.
    No. ED 84026.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 29, 2005.
    Amanda R. Schehr, St. Louis, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shawn L. Naccarato, Jefferson City, MO, for Respondent.

      Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN, J., and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Bryan D. Peiffer appeals the judgment entered upon his conviction by a jury of one count of driving while intoxicated pursuant to section 577.010, RSMo 2000. We have reviewed the briefs of the parties and the record on appeal and find no error of law. An extended opinion would serve no jurisprudential purpose. We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 30.25(b).