author: ROBERT S. BARNEY, Judge.

text:
    STATE of Missouri, Respondent, v. Marion Frank WADDELL, Appellant.
    No. 26212.
    Missouri Court of Appeals, Southern District, Division Two.
    June 14, 2005.

      Thomas D. Carver, Springfield, for appellant.
    John L. Adamik, Marshfield, for respondent.
   ROBERT S. BARNEY, Judge.

Marion Frank Waddell (“Appellant”) appeals his conviction following a bench trial for one count of the Class A misdemeanor of child molestation in the second degree, a violation of section 566.068. In pertinent part, the trial court sentenced Appellant to one year in the Webster County jail, suspended execution of the sentence, and placed Appellant on two years supervised probation. Appellant now contests the sufficiency of the evidence to support his conviction.

“In a court-tried case the sufficiency of the evidence is determined by the same standard as in a jury-tried case and that is whether or not there was sufficient evidence from which the trier of fact could have reasonably found guilt.” State v. Sla-dek, 835 S.W.2d 308, 310 (Mo. banc 1992). “ ‘Substantial or sufficient evidence is that from which the trier of fact could reasonably find the issue in conformity with the verdict.’ ” State v. Bewley, 68 S.W.8d 613, 617 (Mo.App.2002) (quoting State v. Pasteur, 9 S.W.3d 689, 697 (Mo.App.1999)). “In determining whether or not there is evidence sufficient to support a finding of guilt, an appellate court may not weigh the evidence but accepts as true all evidence tending to prove guilt together with all reasonable inferences that support the verdict, and all contrary evidence and inferences are ignored.” Sladek, 835 S.W.2d at 310. “ Witness credibility is a matter for the trial court, and is not within the province of the appellate court in a court-tried criminal case.’ ” Bewley, 68 S.W.3d at 618 (quoting State v. Daniels, 18 S.W.Bd 66, 68 (Mo.App.2000)).

The record reveals that in early July of 2001, A.K., who was fifteen years old at the time, visited the home of her friend, H.W., who was thirteen years old. A.K. and H.W. went to Appellant’s home to help him perform maintenance on his car. According to A.K., while H.W. was inside of Appellant’s car and A.K. was standing “towards the front of the car,” Appellant “went over to put his arm around [A.K.] and he touched [her] butt ... [h]e put his whole hand on it and rubbed on it.” After Appellant touched her, A.K. moved away from him.

Later, A.K. and H.W. went into Appellant’s kitchen to get a glass of water. While the two girls were standing by the sink, Appellant came into the room and began talking to them. After a few minutes of conversation, Appellant “reached over and pulled [A.K.’s] tube top down ... [a]ll the way down to [her] waist” and exposed her breasts. Then Appellant “took the same hand that he pulled the tube top down with and he put his whole hand against [A.K.’s] breast and was feeling it.” Appellant made a comment to A.K. that had “something to do with him being curious and not seeing young breasts in a while.” A.K., who was “shocked” and “scared,” responded by immediately pulling her tube top back up.

Thereafter, A.K. and H.W. went into Appellant’s living room and sat on the couch next to each other. Appellant followed them into the living room and sat down in a rocking chair across the room. As they were sitting there, Appellant asked the girls “what kind of noises [they] made when [they] orgasmic [sic], if [they] moaned or screamed or whined or what.” A.K. and H.W. told him that the question was inappropriate and that they were not going to answer it. H.W. said that she had to leave and started out of the room. A.K. was scared and remained sitting on the couch. At that time, Appellant moved over to a stool “sitting in front of [A.K.] ... told [her] that he wanted to find out” and “put his hand up [her] skirt” on her upper leg. A.K. then stood up, and “went [to Appellant] as if to give him a hug, patted him on the back, and ran out the door.” A.K. went directly to H.W.’s house and told H.W.’s mother about what had happened.

A couple of weeks later, on July 19, 2001, A.K. was once again at H.W.’s house. On this occasion, A.K. was helping H.W. baby-sit her siblings while H.W.’s parents went to a social event. When H.W.’s parents left home, they told A.K. and H.W. to immediately lock the door behind them. A short time later, Appellant came to H.W.’s house and knocked on the door. Appellant “had a bag of candy, and he said that he was coming over to bring [A.K. and H.W.] candy because [they had] moved a table back over to his house earlier that day when he was gone.” Appellant came inside and went into the kitchen where A.K. was doing dishes. He asked A.K. if she was going to give him a hug. A.K. testified she was “scared and didn’t know what to do because there was nowhere we could go, so I went over and gave him a loose hug.” As she did so, Appellant “locked his arms around [her] and put his hands on [her] butt.” H.W.’s little sister, B.W., witnessed Appellant’s actions, and went into the back bedroom and called her parents, who returned home.

After being informed of the incident by H.W.’s parents, A.K.’s father contacted the police on July 22, 2001, and charges were subsequently filed against Appellant. As a result of Appellant’s actions, A.K. was “scared to be around older men,” had to seek counseling, began taking medicine, and was “in and out of the hospital last year due to stress and depression and worry.”

A bench trial was held on January 5, 2004. At the close of all the evidence, the trial court convicted Appellant of one count of child molestation in the second degree. This appeal followed.

In Appellant’s sole point on appeal, he maintains the trial court erred in finding him guilty of child molestation in the second degree because there was insufficient evidence upon which to sustain his conviction. Appellant argues that corroboration of A.K.’s testimony was required due to the “fundamental contradictory and inconsistent nature” of A.K.’s trial testimony and her out-of-court statements. In support of his argument that corroboration of A.K.’s testimony was required, Appellant points to the “inconsistent nature of [A.K.’s] [out-of-court] statements” compared to her trial testimony regarding where the molestation occurred and “the purpose of her trip to [Appellant’s] home.”

As a general rule, “[t]he uncorroborated testimony of the victim in a case of sexual assault is sufficient to sustain a conviction.” Sladek, 835 S.W.2d at 310. CoiToboration is not required unless “the victim’s testimony is so contradictory and in conflict with physical facts, surrounding circumstances and common experience, that its validity is thereby rendered doubtful.” State v. George, 921 S.W.2d 638, 643 (Mo.App.1996). “ ‘The discrepancies must amount to gross inconsistencies and contradictions and must relate directly to an essential element of the case.’ ” State v. Sprinkle, 122 S.W.3d 652, 666 (Mo.App. 2003) (quoting State v. Gatewood, 965 S.W.2d 852, 856 (Mo.App.1998)). “Conflict between the testimony of the victim and other witnesses does not require application of the corroboration rule.” Sladek, 835 S.W.2d at 310. Furthermore, “the corroboration rule ... does not apply to conflicts between the victim’s trial testimony and the victim’s out-of-court statements.” State v. Paxton, 140 S.W.3d 226, 230 (Mo.App.2004) (emphasis added); State v. Benwire, 98 S.W.3d 618, 623 n. 2 (Mo.App.2003). “ ‘Any contradictions between a witness’s trial testimony and any previous testimony or statements are for the ... trier of fact to reconcile and consider when judging the witness’s credibility.’ ” Paxton, 140 S.W.3d at 230 (quoting State v. Helmig, 924 S.W.2d 562, 565 (Mo. App.1996)).

At trial, A.K. stated that Appellant pulled her top down while they were in the kitchen of his home; however, in her initial statement to the police, A.K stated that Appellant pulled her top down while they were in the living room of his home. Additionally, in her written statement A.K. stated that Appellant “touched her butt” while they were in the kitchen as opposed to touching her while they were outside by the car as evidenced by her trial testimony. On cross examination, A.K. explained these discrepancies by stating that at the time she made the original written statement for the police “it was hard to put all the facts down on paper” because she “was very upset” and she was told “to just write down whatever [she] could remember.” She went on to state she was certain that Appellant pulled her tube top down in the kitchen and “touched her butt” while they were outside by the car, as she had stated at trial.

Further, while A.K. testified at trial that she and H.W. went to Appellant’s home to help him fix the brakes on his car, A.K. told the police in her original statement that they had gone to Appellant’s house to help him wash his car. A.K. explained at trial that she was sure she and H.W. had gone to Appellant’s house to help him fix his brakes and that they “had washed his car ...” on a previous occasion.

Here, Appellant’s point relied on takes issue solely with the discrepancies in A.K.’s trial testimony and her previous out-of-court statement to police. However, as set out previously, the corroboration rule “does not apply to conflicts between the victim’s trial testimony and the victim’s out-of-court statements.” Paxton, 140 S.W.Sd at 230. We do not find A.K.’s trial testimony to be so contradictory as to deprive it of all probative force. See Benwire, 98 S.W.3d at 623. In this instance, the inconsistencies in A.K.’s statement to police and her trial testimony which related to the location of where the molestation occurred were but collateral matters. “[W]here the victim’s statements have been inconsistent in collateral matters, no cloud of doubt is created and no corroboration is necessary.” State v. Griggs, 999 S.W.2d 235, 242 (Mo.App.1998); see also State v. Baldwin, 571 S.W.2d 236, 239 (Mo. banc 1978). Any discrepancies between A.K.’s out-of-court statements and her testimony at trial were matters for the trial court to resolve. State v. Silvey, 894 S.W.2d 662, 673 (Mo. banc 1995); Sladek, 835 S.W.2d at 310. Point denied.

The judgment of the trial court is affirmed.

PARRISH, P.J., and BATES, C.J., concur.

      . Statutory references are to RSMo 2000, unless otherwise specified.

      . We use the initials of the minors involved in order to protect their identity.

      .Appellant is H.W.'s grandfather.

      . In the amended information, Appellant was charged with one count of child molestation in the second degree under section 566.068 for "touching [A.K.’s] breasts without her consent” on July 8, 2001. Appellant was also charged with assault in the third degree pursuant to section 565.070 for knowingly causing offensive contact to A.K. on July 19, 2001, "by touching her buttocks on the outside of her clothing.” This latter charge was dismissed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. James J. CARRUTH, Appellant.
    No. WD 64066.
    Missouri Court of Appeals, Western District.
    June 14, 2005.
    Kent Denzel, Columbia, MO, for appellant.
    Deborah Daniels, Jefferson City, MO, for respondent.
    Before THOMAS H. NEWTON, P.J., HAROLD L. LOWENSTEIN and PATRICIA A. BRECKENRIDGE, JJ.
   ORDER

PER CURIAM.

Mr. James J. Carruth appeals his conviction for possession of a controlled substance and sentence of six years imprisonment following a jury trial. Mr. Carruth asserts on appeal that the trial court erred and abused its discretion in overruling his objections and admitting two exhibits.

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


text:
    Kavita Vicky TARNEJA, Respondent, v. Kailash C. TARNEJA, Appellant.
    No. 26421.
    Missouri Court of Appeals, Southern District, Division Two.
    June 15, 2005.

      M. Douglas Harpool, Kristoffer R. Bare-fíeld, Lathrop & Gage, L.C., Springfield, for appellant.
    Mark J. Millsap, J. Matthew Miller, Baird, Lightner & Millsap, P.C., Springfield, for respondent.
   ROBERT S. BARNEY, Judge.

Appellant Kailash C. Tarneja (“Husband”) appeals the judgment of the Circuit Court of Greene County, Missouri, dissolving his twenty-six year marriage to Respondent Kavita Vicky Tarneja (“Wife”). Husband raises four points of trial court error challenging the trial court’s valuation and characterization of Husband’s interest in his medical practice; the valuation by the trial court of an investment account which Husband maintains was not based on the “most current available balance;” the trial court’s purported use of incorrect values for certain investment accounts awarded to Wife which created a purportedly unequal division of property; and, the trial court’s award of maintenance to Wife. We affirm the judgment in all respects save for the trial court’s maintenance award which we reverse. We remand the matter of maintenance to the trial court for further proceedings.

The standard for reviewing a decree of dissolution is the same as in any comb-tried action. Bullard v. Bullard, 929 S.W.2d 942, 944 (Mo.App.1996). The decree must be affirmed unless it is unsupported by substantial evidence, 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). “We do not retry the case, rather we accept as true the evidence and reasonable inferences therefrom in the light most favorable to the prevailing party and disregard contradictory evidence.” McCallum v. McCallum, 128 S.W.3d 62, 65 (Mo.App.2003). Additionally, we defer to the trial court’s determinations of credibility in making our review. In re Marriage of Colley, 984 S.W.2d 163, 166 (Mo.App.1998).

The record reveals that the parties were married as part of an arranged marriage in New Delhi, India, on April 26, 1978. Husband is a board certified radiologist who attended medical school in India. Wife testified that she had obtained a “bachelor’s degree and a teacher’s training degree from India” prior to the parties moving to the United States in late 1978. Once the parties were residents of the United States, Husband began practicing medicine and Wife worked as a homemaker and as a part-time substitute teacher.

On January 9, 2001, Wife filed a petition for dissolution of marriage. The trial court granted Wife’s petition for dissolution of marriage and dissolved the parties’ marriage. In its division of marital property, the trial court awarded Wife properties worth $1,520,792.00 and Husband was awarded properties valued at $1,466,403.72, inclusive of his interest in his medical practice. Additionally, the judgment, inter alia, awarded Wife periodic modifiable maintenance in the amount of $6,500.00 per month; ordered Husband to pay the bulk of the marital debt; required each party to pay his or her own attorney’s fees; and, ordered Husband to pay all expenses incurred by one of the parties’ sons while he completed college. Husband’s appeal followed.

In his first point on appeal, Husband maintains the trial court erred in valuing his interest in his medical practice at $433,863.00. According to Husband, the trial court’s valuation was erroneous in that it included certain property belonging to his business partner and, therefore, his interest was overstated by $154,352.50. Further, he argues that said property was mischaracterized as marital property.

We begin our analysis by noting that the “trial court has broad discretion to identify marital property.” N.M.O. v. D.P.O., 115 S.W.3d 854, 859 (Mo.App.2003). “If the evidence supports the trial court’s classification, we will not find error in the trial court’s decision.” Id. Additionally, we observe that “[a] trial court is prohibited from entering a valuation of marital property not supported by any evidence at trial, but the trial court, nonetheless, enjoys broad discretion in valuing marital property.” Kirkham v. Kirkham, 975 S.W.2d 500, 505 (Mo.App.1998). “When the trial court’s valuation of property is within the range of conflicting evidence of value offered at trial, the court acts within its discretion to resolve conflicts in evidence.” Taylor v. Taylor, 25 S.W.3d 634, 644 (Mo.App.2000). “The trial court is entitled to believe or disbelieve the testimony of either party concerning the valuation of marital property in a dissolution proceeding, and can disbelieve expert testimony.” Wofford v. Wofford, 991 S.W.2d 194, 200 (Mo.App.1999).

“In a dissolution proceeding, the object of any valuation of a business is, of course, to determine its fair market value for purpose of application of the equitable distribution mies to arrive at a fair property division.” Thill v. Thill, 26 S.W.3d 199, 203 (Mo.App.2000). “ ‘The judicial determination of value must be an informed judgment, but fair ‘value’ is not susceptible of determination by any precise mathematical computation.’ ” Id. (quoting Flarsheim v. Twenty Five Thirty Two Broadway Corp., 432 S.W.2d 245, 255 (Mo.1968)). No one formula or method of determining value is binding or conclusive. Miranda v. Miranda, 596 S.W.2d 61, 65 (Mo.App.1980). “Generally, therefore, the trial court can accept the opinion of one expert as to value over another and can prefer one method of valuation over competing methods based on the particular facts of the case and the circumstances of the corporate entity involved.” Thill, 26 S.W.3d at 203 (quoting Flarsheim, 432 S.W.2d at 255).

In the present matter, the record reveals the parties and their children moved to West Plains, Missouri, in 1983. Husband established a radiology practice in conjunction with the local hospital, Ozark Medical Center, whereby he was to be the exclusive provider of radiological services to the hospital. Thereafter, Husband formed West Plains Imaging and Associates, Inc. (“WPIA”) and became the sole shareholder of that corporation. Husband used WPIA as a billing entity through which his medical practice operated.

In 1987, due to an increased workload, Husband hired Dr. Rob Armstrong (“Armstrong”) to provide radiology services for WPIA. Thereafter, Husband and Armstrong entered into an oral agreement whereby they would essentially split the profits of the practice equally, after payment of joint overhead expenses.

The aforementioned agreement between Husband and Armstrong remained in effect until in the midst of Husband’s dissolution of marriage proceedings Husband and Armstrong formed West Plains Imaging, L.L.C. (“WPI”) on January 28, 2003, although the terms of the agreement were not to go into effect until July 1, 2003.

Under the WPI agreement, all bank accounts, accounts receivable, equipment, and office furnishings were transferred from WPIA to WPI and Armstrong was given a one-half ownership interest in WPI.

At trial, Cheryl Ward (‘Ward”), the office manager for both WPIA and WPI, testified on May 6, 2003, that Husband owns “one hundred percent” of WPIA. She stated that she pays out of the WPIA accounts various personal bills relating to both Husband and Wife, together with Husband’s professional expenses such as malpractice insurance and continuing education fees. Ward stated that Husband does not get a monthly check and instead “draws money throughout the month.” Husband’s half of what is left over at the end of the month once expenses are paid “stays in the corporation” of which he “is the sole owner.” Ward testified that if there was extra money remaining in the account after the expenses were paid, she transferred these funds to the Salomon Smith Barney account (“the SSB corporate account”), which is also in the name of WPIA. She stated that the SSB corporate account is “where [Husband] keeps some of his money that he didn’t need to take on a monthly basis as income.”

Under the agreement with Armstrong that was in effect at the time of her testimony, Ward stated that in calculating how Armstrong is paid, she takes “the income for the month, subtracts] the expenses, and the balance is divided equally between [Husband] and Dr. Armstrong. There are some adjustments that are deducted from Dr. Armstrong’s for things like depreciation and stuff. And then the net of that is the check that is paid to him monthly.” Armstrong is “compensated by an equal share after expenses are deducted from the month’s income.” She testified that Husband’s retirement plan is “through Smith Barney,” but that “Armstrong is not part of the corporate plan at all” and acknowledged that Armstrong “did not receive any withdrawal or withholding from his salary for retirement or 401K purposes.”

In discussing the recent formation of WPI, Ward stated that Husband and Armstrong each own half of that business and that their agreement relating to WPI was to go into effect on July 1, 2003. Significantly, she stated that WPI had no assets and she was unaware as to how the assets of WPIA would be transferred into the new company.

Alan Rank (“Rank”), a financial consultant with Salomon Smith Barney, testified that about once a month he would receive checks from WPIA to deposit into the SSB corporate account and that the account was used to “accumulate the funds for future transfer [to the retirement accounts] ... and as funds accumulated, purchases of various common stocks and mutual funds were made with the excess balance.” He testified that there would be certain fees assessed if the SSB corporate account was ordered to be liquidated. Further, he testified that as of March 30, 2003, the SSB corporate account held by his corporation had a balance of $462,925.80, but the balance of the account fluctuated periodically.

Ken Schultz (“Schultz”), Husband’s accountant, testified that Husband’s “50 percent split of the corporate earnings from [WPIA] ... are retained in the corporation” because he “owns 100 percent of the corporation.” He also acknowledged that Armstrong’s share of the profits are reflected in his form 1099 as an independent contractor “with no deductions for work-related expenses unlike [Husband’s] whose W-2 reflects gross income minus the deductions for work-related expenses.... ” Schultz also noted that Armstrong received monthly draws based upon profitability and in turn, Armstrong’s individual “corporation will then have professional expenses that he will have to deduct on his corporation to derive at his own taxability.”

Schultz also testified that a promissory note in the amount of $375,678.00 is owed to Husband from WPIA and represented the amount of Husband’s earnings retained by WPIA and reinvested in the corporation. Further, he acknowledged that all of the WPIA assets are owned by Husband. He noted that he did not perform an actual business valuation of either WPIA or WPI; instead he “valued what the tax effect would be if the company were to be liquidated.” Based on the foregoing, it was his belief that Husband’s equity in WPIA had a book value of $165,000.00, which he discounted to a present value of $123,702.00.

Larry Ellison (“Ellison”), Wife’s expert witness and an accountant, testified that the WPIA tax returns reveal that Husband is the sole shareholder and officer of that company. In valuing Husband’s medical practice, Ellison considered WPIA and WPI as the same entity because he had no information as to whether the assets of the two companies differed, and he had no information about the transfer of assets between the two entities. Based on Ellison’s calculations, Husband’s medical practice was valued at $802,477.00. This amount included the SSB corporate account valued as of July of 2003 in the amount of $493,772.00; accounts receivable valued at $147,000.00; fixtures and equipment valued at $75,000.00; the WPIA checking account at Wood and Huston Bank valued at $34,842.00; and, a recently opened WPI checking account at Wood and Huston Bank valued at $51,863.00. Ellison then subtracted $368,614.00, the amount of the note payable to Husband for wages retained by WPIA, to arrive at a final value of $433,863.00. In its findings, the trial court found that the assets of WPIA/WPI were marital property and accepted Ellison’s valuation of the medical practice.

Here, “[t]he court’s objective was to find the true or actual value of Husband’s marital interest in the medical practice.” D.K.H. v. L.R.G., 102 S.W.3d 93, 102 (Mo.App.2003). The record shows that from 1983 until midway through the trial in this matter, when WPI was established, Husband and Armstrong operated WPIA based on an agreement that provided for an equal division of the corporation’s profits; however, the record is clear that throughout that time Husband owned one hundred percent of WPIA, was the sole shareholder, was the sole owner of the corporation’s assets, and was the sole manager of the corporation’s funds. Armstrong was specifically classified as and treated as an independent contractor and he had his own, separate corporation through which his earnings were processed. Clearly, Armstrong had no ownership or corporate interest in WPIA. It was not until this matter had already been through several days of trial that Armstrong and Husband actually began operating as WPI under their written contractual agreement. The office manager, Ward, testified that WPI had no assets and she was unsure if the assets of WPIA were transferred into WPI. She went on to state that “[everything was carried over [to WPI], or put in as far as day-today operations of the office equipment and so forth. There [i]s no difference ... as far as the paper trail.... ” She stated that the only change under the WPI operating agreement is “how the income is disbursed” because the corporation hired another doctor. She also testified that WPIA is still in existence in some form.

We cannot say the trial court erred in determining that all of the assets of WPIA were owned by Husband and were marital property, particularly considering the absence of consideration flowing from WPI to WPIA for the latter’s transfer of assets to WPI. All assets and monies accumulated by WPIA were accumulated during the parties’ marriage and Husband cannot rebut the presumption that his medical practice was not subject to division under section 452.330. Husband’s medical practice was correctly classified as marital property by the trial court.

All income or property acquired during a marriage is presumed to be marital property. § 452.330.3; see also Heslop v. Heslop, 967 S.W.2d 249, 252 n. 2 (Mo.App.1998). That presumption may only be rebutted upon presentation of clear and compelling evidence that the property is non-marital in nature. § 452.330.3; see Coughlin v. Coughlin, 823 S.W.2d 73, 75 (Mo.App.1991). “ ‘Once property is classified as marital, the factors listed in § 452.330 apply in dividing the property.’ ” Hall v. Hall, 118 S.W.3d 252, 261 (Mo.App.2003) (quoting Keller v. Keller, 18 S.W.3d 589, 600 (Mo.App.2000)).

As far as the trial court’s valuation of WPIA/WPI, when there is conflicting evidence regarding valuation of property, this Court defers to the trial court’s resolution of the conflict. McGowan v. McGowan, 43 S.W.3d 857, 864 (Mo.App.2001). The trial court here accepted the valuations set forth by Wife’s expert and the trial court could properly have disbelieved the valuation testimony of Husband’s expert. In re Marriage of Smith, 785 S.W.2d 764, 767 (Mo.App.1990). There was substantial evidence presented supporting the trial court’s determination that Husband’s medical practice was marital property. See Pruitt v. Pruitt, 94 S.W.3d 429, 434 (Mo. App.2003). Additionally, there was substantial evidence presented supporting the trial court’s valuation of the assets relating to Husband’s medical practice. D.K.H., 102 S.W.3d at 102. Point One is denied.

Husband’s second point maintains the trial court erred in overstating the value of his interest in the medical practice because the trial court did not use “the most current available balance” for the SSB corporate account. Husband’s complaint is that the trial court erroneously used the amount of $493,772.00, which was the balance in the SSB corporate account as of July of 2003, as opposed to the amount of $401,265.00, which was the balance in the account as of November 30, 2003.

“Value is a determination of fact by the trial court, to which we give great deference.” Thill, 26 S.W.3d at 203. The court may receive any relevant evidence on the issue of value. D.K.H., 102 S.W.3d at 102. It is widely held that valuation of property should be reasonably proximate to the date the division of property is to be effective. In re Marriage of Below, 8 S.W.3d 233, 236 (Mo.App.1999).

The present matter was tried in court on May 6-7, 2003; August 14-15, 2003; and, January 6, 2004, with the entry of a final judgment by the trial court on June 23, 2004. The record reveals that the beginning balance for 2003 of the account at issue was $495,879.16. Rank stated that as of March 30, 2003, the balance in the account was $462,925.80. Schultz testified that the same account had a “book value” in March of 2003 of $462,302.00. Ellison testified that the account had a balance in July of 2003 of $493,772.00. Yet, the November 1 through November 30, 2003, statement for the account at issue shows that the account had a balance of $401,204.83.

There was testimony from Rank that the fluctuating balance in all of the Salomon Smith Barney accounts was normal based on the fact that they were diversified investment accounts. The trial court chose to believe Ellison’s valuation of the medical practice and likewise adopted the July of 2003 amount detailed by Ellison. Where there is conflicting evidence regarding valuation of property, this Court defers to the trial court’s resolution of the conflict. McGowan, 43 S.W.3d at 864. This is a matter of witness credibility and in such instances the trial court is free to believe or disbelieve the testimony of witnesses. In re Marriage of Smith, 785 5.W.2d at 767. Given that this case was tried over a period of almost a year and there was conflicting evidence relating to the amount of money in the account, we cannot convict the trial court of error in choosing to utilize the July of 2003 account balance. Point Two is denied.

In his third point on appeal, Husband asserts the trial court erred in its division of marital property in that it understated the value of certain investment accounts awarded to Wife, which further exacerbated the inequality of the award of marital property. Husband contends that on page eight of its findings of fact the trial court set out that the Salomon Smith Barney account 736-46699 (“the special account”) had a balance of $118,870.00, but in its Exhibit B attached to its “Judgment and Decree of Dissolution of Marriage” it valued the same account at $111,870.00. Further, Husband contends that on page eight of its findings the trial court valued Wife’s Salomon Smith Barney IRA account at $73,759.00, yet in Exhibit B it valued it at $72,759.00.

As stated previously, a trial court is “ ‘prohibited from entering a valuation of property not supported by any evidence at trial.’ ” Taylor, 25 S.W.3d at 644 (quoting Lewis v. Lewis, 978 S.W.2d 64, 66 (Mo. App.1998)). “Value is a determination of fact by the trial court, to which we give great deference.” Thill, 26 S.W.3d at 203. Here, the record reveals that the special account had a value of $111,230.69 as of July 25, 2003. The same account had a value of $111,892.36 on November 30, 2003. Accordingly, the value of $111,870.00 referred to in the trial court’s judgment was well “within the range of conflicting evidence of value offered at trial” and the trial court did not abuse its discretion in utilizing such a number. Taylor, 25 S.W.3d at 644. Likewise, we discern that Wife’s IRA account was also “within the range of conflicting evidence of value offered at trial.” Id

It should also be noted that the trial court did not set out that the parties were entitled to an “equal” division of all marital properties. Section 452.330 requires a fair and equitable division of marital property given the individual circumstances of the case, but does not require an equal division. Ward, 955 S.W.2d at 19. Point Three is denied.

Turning to Husband’s final point, Husband asserts the trial court erred in awarding periodic modifiable maintenance to Wife in the amount of $6,500.00, per month because such award was unsupported by the evidence and was against the weight of the evidence. Husband maintains the trial court failed to “impute sufficient income to [Wife] for full-time, post-dissolution employment;” “ignored the standard of living of the parties during marriage;” and “underestimated income [Wife] will receive from substantial assets awarded to her in the division of marital property.” As to this latter, third sub-point in particular, Husband argues the trial court erred in its award of maintenance because “there is no indication from the record or from the trial court’s judgment that potential income from the IRA accounts awarded Wife was considered [by the trial court] in determining the maintenance award.” This latter sub-point has merit and compels a reversal of the award of maintenance to Wife.

We note that a “maintenance award is ‘aimed at closing the gap between the income of the spouse who seeks maintenance and that spouse’s monthly expenses.’” N.M.O. v. D.P.O., 115 S.W.3d 854, 857 (Mo.App.2003) (quoting In re Marriage of Zavadil, 806 S.W.2d 506, 512 (Mo.App.1991)). “ ‘Within the confínes of the law and the evidence, the trial court has broad discretion in awarding maintenance.’ ” Myers v. Myers, 47 S.W.3d 403, 409 (Mo.App.2001) (quoting In re Marriage of Thompson, 24 S.W.3d 751, 754 (Mo.App.2000)). The determination of whether to award maintenance under section 452.335.1 is a two-step procedure. Crews v. Crews, 949 S.W.2d 659, 666 (Mo.App.1997). In the first step, section 452.335.1 requires the trial court to find that: (1) the party seeking maintenance lacks sufficient property, including marital property apportioned to that spouse, to provide for his or her reasonable needs; and (2) the party seeking maintenance is unable to support herself through appropriate employment. Id; see also Kirkwood v. Kirkwood, 77 S.W.3d 675, 682 (Mo.App.2002). Once these findings are made, section 452.335.2 requires that the trial court, in determining the amount and duration of its maintenance award, consider the ten factors enumerated in the statute and “ ‘balance the reasonable needs of the spouse seeking maintenance with the other spouse’s ability to pay.’ ” Linton v. Linton, 117 S.W.3d 198, 205 (Mo.App.2003) (quoting Myers, 47 S.W.3d at 409). When both steps have been satisfied, the statute provides that maintenance should be awarded “in such amounts and for such periods of time as the court deems just.” § 452.335.2.

“Although a trial court’s decision regarding maintenance is presumed correct, a judgment on maintenance will be disturbed on appeal where it is improper under [the standard of] Murphy v. Carron, 536 S.W.2d 30, 31 (Mo. banc 1976)....” In re Marriage of Eck, 904 S.W.2d 60, 62 (Mo.App.1995) (internal citation omitted). In the absence of a finding that the amount is patently unwarranted and wholly beyond the means of the spouse who pays, this court will not interfere with the circuit court’s award of maintenance. Petty v. Petty, 739 S.W.2d 738, 741 (Mo.App.1987). “Husband, who contends the circuit court erred in awarding any maintenance to [W]ife, bears the burden of proving the maintenance award ‘shocks’ this court’s sense of justice.” Kirkwood, 77 S.W.3d at 682 (quoting In re Marriage of Pahlow, 39 S.W.3d 87, 91 (Mo.App.2001)).

In deciding the propriety of a maintenance award and the sufficiency of a spouse’s property to provide for his or her reasonable needs, the trial court must consider marital property apportioned to a spouse, including the interest a spouse will earn from his or her share of the marital property. This ‘reflects the general principle that investment income must be considered, so that maintenance is not awarded for the purposes of building an estate or accumulation of capital.’ But, a spouse is not required to deplete his or her apportioned share of marital property before being entitled to maintenance. With respect to retirement and IRA accounts that have been apportioned as marital property, our Supreme Court has struck a balance between these two competing principles, and set forth the following guidelines:
In sum, when calculating maintenance, a trial court must consider the income from retirement and IRA accounts to be apportioned as marital property. The trial court determines the amount of income — if any — imputed from these accounts based on the facts and circumstances of each case — including the cost to convert the account into cash, the age of the parties, them intent as to investment/consumption/retirement, the relative division of marital property and marital debts, and any equitable adjustment for reasonably certain taxes and penalties.

Lee v. Lee, 117 S.W.3d 693, 696 (Mo.App.2003) (quoting Hill v. Hill, 53 S.W.3d 114, 116 (Mo. banc 2001)); see also § 452.335.1. “The trial court is not required to impute income attributable to retirement and IRA accounts awarded as marital property, but the court is required to ‘consider’ such income when calculating maintenance.” Lee, 117 S.W.3d at 697. Accordingly, a “trial court’s failure ‘to set forth the necessary information to determine what income from IRA and retirement accounts apportioned to the spouse seeking maintenance as marital property the trial court considered in calculating maintenance’ is reversible error.” N.M.O., 115 S.W.3d at 857 (quoting Muenz, 99 S.W.3d at 9).

In the present matter, we discern from the record that in determining the income Wife would receive from the investment accounts apportioned to her, the trial court only considered the “liquid assets” awarded to Wife and failed to consider the IRA/retirement accounts she also received.

In its calculations on the Form 14 Child Support Calculation Worksheet, the trial court specifically imputed income to Wife in the amount of “$3,047.00 per month earned on $812,768.00 at 4.5 [percent].... ” The $812,768.00 figure was derived from combining the amounts in the four investment accounts awarded to Wife. However, in addition to those accounts, Wife was awarded two IRA accounts valued at a total of $522,759.00. Yet, “[t]he trial court did not explain in its judgment whether it considered income from the IRA [accounts], if at all.” Fischer, 66 S.W.3d at 45. While “[t]he court was not required to impute income attributable to the [two] IRA accounts,” the trial court was “required to ‘consider’ the income from these accounts when calculating maintenance.” Lee, 117 S.W.3d at 697. “Thus, we are unable to determine the extent to which the trial court complied withIKZZ.” Id.

Pursuant to Hill the trial court must consider whether any income may be imputed to the IRA accounts awarded to Wife as marital property, and if so, the amount of that income, if any, when calculating the amount of maintenance to award Wife. We are compelled to reverse the maintenance award and remand the matter of maintenance for further consideration by the trial court consistent with this opinion.

The judgment’s award of maintenance to Wife is reversed. The matter of maintenance is remanded to the trial court for further proceedings consistent with this opinion, including the taking of further testimony and evidence if required. In all other respects the judgment of the trial court is affirmed.

PARRISH, P.J., and BATES, C.J., concur.

      . Unless otherwise stated, all rale references are to Missouri Court Rules (2005) and all statutory references are to RSMo 2000.

      . Murphy interpreted the provisions of Rule 73.01(c). The provisions of that Rule now appear in essentially the same form in Rule 84.13(d).

      .The parties have two children, Ankur Tarne-ja, born November 3, 1981, and Neel Tarneja, bom October 26, 1982. There are no issues in this appeal relating either to custody or child support.

      . The dissolution action was tried to the court on May 6-7, 2003; August 14-15, 2003; and, January 6, 2004, with final judgment being entered by the trial court on June 23, 2004.

      . In its judgment, the trial court awarded the amount of $368,614.00, the amount of the promissory note, to Husband as marital property.

      . The same statement reflects that there had been withdrawals totaling $112,275.00 during that year.

      . We note that Husband controlled the account at issue, but was unable to detail all of the various withdrawals from that particular account, and could not explain why the value of the account fluctuated between July of 2003 and November of 2003.

      .The issue in this point relied on arises in no small part because of delays attendant to the trial of the instant litigation. As previously set out, trial to the court took place during three, separate periods of time over the course of eight months, with a final judgment entered some thirteen months after the commencement of trial. It is this Court’s view that this practice is unfair to the litigants and is not encouraged.

      . Wife presented evidence showing that her current, average monthly expenses totaled $9,495.00. There is evidence in the record showing that Husband earns an average annual income in excess of $475,000.00 annually-

      . See also Fischer v. Fischer, 66 S.W.3d 43, 44 (Mo.App.2001); Jung v. Jung, 886 S.W.2d 737, 740 (Mo.App.1994); In re Marriage of Novak, 83 S.W.3d 597 (Mo.App.2002); Cohen v. Cohen, 73 S.W.3d 39 (Mo.App.2002); N.M.O., 115 S.W.3d at 857; Muenz v. Muenz, 99 S.W.3d 4, 9 (Mo.App.2002).

      . Wife was awarded Smith Barney account #736-21501-17 valued at $668,495.00; Smith Barney account # 736-46699-16 valued at $111,870.00; Wood and Huston account #60217 valued at $30,470.00; and, Wood and Huston account #515868 valued at $1,933.00. The total value of these accounts equals $812,768.00.

      . Wife was awarded Smith Barney account # 736-67020 which was valued at $72,759.00 and $450,000.00 in the form of a Qualified Domestic Relations Order from Smith Barney IRA account # 736-6Í397-19.


author: PHILLIP R. GARRISON, Presiding Judge.

text:
    Richard Owen LOW, Petitioner-Appellant, v. STATE of Missouri, DEPARTMENT OF CORRECTIONS, Southeast Correctional Center, Probation and Parole, Respondent-Respondent.
    No. 26333.
    Missouri Court of Appeals, Southern District, Division One.
    June 16, 2005.

      Richard Owen Low, pro se.
    No appearance for Respondent.
   PHILLIP R. GARRISON, Presiding Judge.

Richard Owen Low (“Appellant”) is pro se in this appeal. He is an inmate incarcerated at the Southeast Correctional Center, Charleston, Missouri who, on June 2, 2004, filed a petition for a temporary and/or permanent restraining order against the Department of Corrections (“DOC”) in the Circuit Court of Mississippi County. In his petition, Appellant claims that funds were unlawfully being removed from his canteen fund by the DOC causing him financial hardship in obtaining postage, writing materials, and personal hygiene products. The trial court entered a judgment denying Appellant’s petition. This appeal followed.

Due to multiple violations of Rule 84.04, we dismiss the appeal. A violation of Rule 84.04 is grounds for us to dismiss an appeal. Stickley v. Auto Credit, Inc., 53 S.W.3d 560, 562 (Mo.App. W.D.2001). Both pro se appellants and attorneys are held to the same procedural rules, thus pro se appellants do not receive preferential treatment regarding compliance with those rules. Hardin v. State, 51 S.W.3d 129, 130 (Mo.App. W.D.2001).

Appellant’s sole point relied on is as follows:

The motion court clearly erred in not granting relief to Appellant herein. Appellant had demonstrated and invoke [sic] principles of substantive law which entitle pleader relief, [sic] petition stands as valid statement of Appellant’s claims. Respondent’s [sic] have presented no evidence to refute or oppose Appellant’s allegations herein. Respondent’s [sic] have, and continue their unauthorized removal of funds from Appellants canteen account. This action is in violatson [sic] of Appellant’s constitutional rights and denied Appellant due process of the law under the Fourteenth Amendment of the U.S. Constitution. Appellant’s canteen account is a protected property interest. Having determined that a protected interest exists, the only question left for the trial court was to decide is [sic] what process is due. The trial court failed to appropriately determined [sic] by Appellant’s petition for temporary and/or permanent restraning [sic] order to stop the Respondent’s [sic] from causing additional irreparable injury to Appellant. The trial courts [sic] ruling is [sic] clearly erroneous decision based upon an unreasonable application of state and federal law and the evidence put before the trial court as they [sic] existed.

Rule 84.04(d) sets the guidelines for an appellant regarding his points on appeal. It states:

(1) Where the appellate court reviews the decision of a trial court, each point shall:
(A) identify the trial court ruling or action that the appellant challenges;
(B) state concisely the legal reasons for the appellant’s claim of reversible error; and
(C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.
The point shall be in substantially the following form: “The trial court erred in [identify the challenged ruling or action ], because [state the legal reasons for the claim of reversible error ], in that [explain why the legal reasons, in the context of the case, support the claim of reversible error ].”

Here, Appellant’s “Point Relied On” fails to comply with the requirements of Rule 84.04(d). Appellant’s point does not identify the rule of law the trial court should have applied, nor does it specify the evidentiary basis supporting the application of the rule of law suggested. See Rule 84.04(d)(1). Further, Appellant’s point does not intelligibly identify the issues he is pursuing on appeal. Finally, Appellant’s point relied on violates the proscription in Rule 84.04(d)(4) that “[a]b-stract statements of law, standing alone, do not comply with this rule.” We cannot begin to interpret Appellant’s point as stated because we would be forced to act as an advocate for Appellant. “It is not the function of the appellate court to serve as advocate for any party to an appeal.” Shochet v. Allen, 987 S.W.2d 516, 518 (Mo. App. E.D.1999).

Second, Appellant’s statement of facts is insufficient. Rule 84.04(c) instructs that the “statement of facts shall be a fair and concise statement of the facts relevant to the questions presented for determination without argument.” The purpose of the statement of facts is to provide an immediate, accurate, complete and unbiased understanding of the facts. Kent v. Charlie Chicken, II, Inc., 972 S.W.2d 513, 515 (Mo.App. E.D.1998). Rule 84.04(i) further instructs that the statement of fa'cts is to include specific page references to the legal file and transcript. In his statement of facts, Appellant complains that the DOC is depleting his canteen fund and the reasons behind its actions are inconsistent. The DOC informed him that he owed money to Farmington Correctional Center, then later changed its story, claiming that he now owes for the Electronic Monitoring Program. Appellant also asserts in his statement of facts that the DOC has not provided him any evidence of such a financial obligation and that its actions are causing him severe financial hardship. Appellant’s statement of facts includes argument and gives no specific references to the record on appeal. He, therefore, has failed to provide an immediate, accurate, complete and unbiased understanding of the facts of the case. This violation alone constitutes grounds for dismissal of an appeal. Kent, 972 S.W.2d at 515.

Third, Appellant’s argument violates Rule 84.04(e) in several respects. Appellant fails to restate his point relied on at the beginning of the argument section. Rule 84.04(e) states that “[t]he point relied on shall be restated at the beginning of the section of the argument discussing that point.” His argument does not contain any statement of the applicable standard of review. See Faulkerson v. Norman, 77 S.W.3d 43, 45 (Mo.App. E.D. 2002); Rule 84.04(e). In addition, “[a]n argument should show how the principles of law and the facts of the case interact.” Boyd v. Boyd, 134 S.W.3d 820, 824 (Mo.App. W.D.2004). While Appellant includes some citations to authority, such citations are misguided and are inapplicable to his claim of error. He does not explain how these cases support his contention that the trial court erred in denying his petition. See Patterson v. Waterman, 96 S.W.3d 177, 179 (Mo.App. S.D.2003). When an appellant does not cite relevant authority in support of his position, or explain its absence, we are justified in considering the point abandoned. Schubert v. Trailmobile Trailer, LLC, 111 S.W.3d 897, 906 (Mo.App. S.D.2003). “[A]negations of error not briefed or not properly briefed shall not be considered in any civil appeal.” Rule 84.13(a).

Although we are acutely aware of the problems faced by pro se litigants, Appellant’s pro se status does not excuse him from his compliance with Rule 84.04. Speer v. K & B Leather Co., 150 S.W.3d 387, 388 (Mo.App. S.D.2004). Appellant has failed to comply with this rule and, therefore, we dismiss his appeal.

We note, however, ex gratia, that Section 506.384.1 provides that “[n]o civil action may be brought by an offender, except for a constitutional deprivation, until all administrative remedies are exhausted.” Therefore, a trial court will not have “subject matter jurisdiction in a case in which the party seeking judicial review has not exhausted all administrative remedies.” Doody v. State, Dept. of Social Services, Div. of Child Support Enforcement, 993 S.W.2d 563, 565 (Mo.App. W.D.1999). The policy reasons behind this principle are described as follows:

Exhaustion is generally required as a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review.

McDonald v. Thompson, 35 S.W.3d 906, 911 (Mo.App. S.D.2001) (quoting Farm Bureau Town & Country Ins. v. Angoff, 909 S.W.2d 348, 352 (Mo. banc 1995)). The administrative process for an inmate requires him to “file informal resolution requests, grievances, and grievance appeals before the [administrative] process is exhausted and the inmate can file suit in court.” Cooper v. Minor, 16 S.W.3d 578, 580 (Mo. banc 2000). It is unclear from the record here whether all administrative remedies have been pursued. Appellant, however, acknowledges the following in his brief:

Appellant would assert to this court that per Rules of the Court, he would be unable to file a civil action pursuant to 42 U.S.C.A. Section 1983, to contest respondent’s authority until he has completed the “grievance procedure” which respondent can delay for many months. As such, his petition for temporary and/or permanent restraining order would be the only appropriate relief to appellant to pursue for the stoppage of respondent’s actions, and the continuous irreparable injuries he will continue to suffer.

We interpret this to mean that Appellant acknowledges the requirement that he must first exhaust administrative remedies, and an indication that he has not done so.

Appeal dismissed.

PREWITT, J., and RAHMEYER, J., concur.

      . Reference to rules are to Missouri Rules of Civil Procedure (2004) unless otherwise indicated.

      . References to statutes are to RSMo (2000) unless otherwise indicated.


author: W. FRANK CRAWFORD, P.J., W.S.,

text:
    Albert THOMPSON v. Patricia CHAFETZ.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Jan. 21, 2004 Session.
    March 4, 2004.
    Permission to Appeal Denied by Supreme Court Sept. 13, 2004.
    Warner Hodges, III of Germantown for appellant, Albert Thompson.

      Eugene J. Podesta, Jr. of Memphis for appellee, Patricia Chavetz.
   OPINION

W. FRANK CRAWFORD, P.J., W.S.,

delivered the opinion of the court,

in which ALAN E. HIGHERS, J. and HOLLY M. KIRBY, J., joined.

This is an appeal from an Order denying Appellant’s Tenn. R. Civ. P. 60 Motion, which sought relief from the grant of Ap-pellee’s Motion for Summary Judgment. Appellant’s attorney failed to set the Motion for hearing until some nineteen (19) months after the entry of the Order granting summary judgment. The trial court found that the attorney’s failure to prosecute resulted in prejudice to Appellee and denied the Rule 60 Motion. We affirm.

On January 10, 2000, Albert Thompson (“Thompson,” “Plaintiff,” or “Appellant”) filed a “Complaint for Damages for Legal Malpractice” against Patricia Chafetz (“Chafetz,” “Defendant,” or “Appellee”). Chafetz represented Thompson in his contested divorce and the allegations of legal malpractice stem from those proceedings. Chafetz filed her Answer on March 28, 2000.

Following discovery, on October 19, 2000, Chafetz filed a Motion for Summary Judgment, along with a Statement of Undisputed Material Facts and the Affidavit of attorney Darrell D. Blanton in support thereof. The Motion for Summary Judgment was set for hearing on May 4, 2001. Warner Hodges, III (“Hodges”), attorney for Thompson, failed to appear at that hearing. At that time, the trial court asked Eugene J. Podesta, Jr. (“Podesta”), attorney for Chafetz, to draft an Order Granting Summary Judgment and to inform Hodges that the Order would be entered if Hodges did not file an affidavit to rebut that of Darrell D. Blanton within one week. Podesta drafted the Order and notified Hodges by letter of the affidavit requirement.

On May 9, 2001, Hodges filed the Affidavit of Kevin A. Snider, along with “Plaintiff’s Response to Defendant’s Rule 56.03 Statement of Undisputed Material Facts,” in opposition to the Motion for Summary Judgment. Despite these filings, and without any further hearing, the trial court entered the Order Granting Defendant’s Motion for Summary Judgment on May 14, 2001. Neither Hodges nor Podesta had knowledge that this Order had been entered until Podesta was notified sometime in June or July of 2001. At that time, Podesta checked the file and found that the Order had been entered. He then notified Hodges to check the file. After checking the file, on September 20, 2001, Hodges filed “Plaintiffs Motion Pursuant to Rule 60 T.R.C.P. for Relief from Judgment or Order” (the “Rule 60 Motion”). The Rule 60 Motion reads, in relevant part, as follows:

Defendant had filed a Motion for Summary Judgment which had been continued for various reasons a few times. The Motion for Summary Judgment primarily dealt with the absence of an affidavit from a practicing attorney supporting the legal malpractice. On May 9, 2001, Plaintiff did file an appropriate affidavit with the court from Kevin A. Snider, an attorney who had been practicing for more than one year prior to the alleged negligence in the present case. The Motion for Summary Judgment was scheduled to be heard on Friday, May 11 and counsel for the Plaintiff faxed a copy of the affidavit to counsel for Defendant stating that he assumed that the Motion for Summary Judgment would be stricken, or to notify him otherwise. Apparently, through miscom-munication, counsel for the Defendant had left an Order Granting Summary Judgment with the Court, which the Court apparently signed on May 14, 2001. Plaintiff verily believes that he has just cause to set aside this Order as he had complied with Rule 56 of the Tennessee Rules of Civil Procedure by filing an adequate affidavit in opposition to the Motion for Summary Judgment. Counsel for the Plaintiff was not sent a copy of the Order and only recently learned that the Order had been signed

The Rule 60 Motion was not set for hearing until December 6, 2002, some nineteen (19) months after the Order Granting Summary Judgment was entered. On January 6, 2003, the trial court filed its “Order Denying Plaintiffs Motion for Rule 60 Relief,” which reads, in pertinent part, as follows:

This cause came to be heard this 6th day of December, 2002, on the written motion of Plaintiff for relief from judgment pursuant to Rule 60, the statement of counsel and the entire record in this cause; from all of which it appears to the Court that the Motion is not well-taken and should be denied ...

Thompson appeals from this Order and raises two issues for our review as stated in his brief:

1. Whether the order granting Defendant’s Motion for Summary Judgment was ever properly entered, and whether said order, if not properly entered, is either final or appealable.
2. Whether the trial judge erred in granting Defendant’s Motion for Summary Judgment and in denying Plaintiffs post trial motion to correct same.

Motion for Summary Judgment

Appellant first contends that the Motion for Summary Judgment was not properly entered pursuant to Tenn. R. Civ. P. 58. This issue is not properly before this Court. Thompson’s Notice of Appeal, filed February 5, 2003, specifically states that he is appealing from the “Order of the Court entered on the sixth of January, 2003.” The January 6, 2003 Order denies the Rule 60 Motion.

However, even if we entertain Appellant’s issue, we nonetheless find that the requirements of Tenn. R. Civ. P. 58 are met in this case. Rule 58 reads, in relevant part:

Entry of a judgment or an order of final disposition is effective when a judgment containing one of the following is marked on the face by the clerk as filed for entry:
(2) the signatures of the judge and one party or counsel with a certificate of counsel that a copy of the proposed order has been served on all other parties or counsel ...

Id. (emphasis added).

The Order Granting Summary Judgment is stamped “Filed” on May 14, 2001, it is signed by Judge George Brown and by Podesta, as counsel for Chafetz. It contains a Certifícate of Service, signed by Podesta, indicating that Hodges was served with a “true and exact” copy of the proposed order on May 4, 2001. Nothing in Rule 58 indicates that any party is entitled to receive a copy of the judgment as it is filed (i.e. stamped, signed by the judge and counsel). Rather, Rule 58 is satisfied where, as in this case, all parties receive a copy of the proposed order. This issue is without merit.

Tenn. R. Civ. P. 60 Motion

A Rule 60 motion for relief from a judgment is within the sound discretion of the trial court and the court’s ruling on a Rule 60 motion may not be reversed on appeal unless it is determined that the court abused its discretion. See Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 97 (Tenn. 1993); Banks v. Dement Constr. Co., 817 S.W.2d 16, 18 (Tenn.1991); Toney v. Mueller Co., 810 S.W.2d 145, 147 (Tenn.1991); Travis v. City of Murfreesboro, 686 S.W.2d 68, 70 (Tenn.1985); Spruce v. Spruce, 2 S.W.3d 192, 194 (Tenn.Ct.App.1998); Day v. Day, 931 S.W.2d 936, 939 (Tenn.Ct.App.1996); Ellison v. Alley, 902 S.W.2d 415, 418 (Tenn.Ct.App.1995).

The abuse of discretion standard requires us to consider: (1) whether the decision has a sufficient evidentiary foundation; (2) whether the trial court correctly identified and properly applied the appropriate legal principles; and (3) whether the decision is within the range of acceptable alternatives. State ex rel. Vaughn v. Kaatrude, 21 S.W.3d 244, 248 (Tenn.Ct. App.2000). While we will set aside a discretionary decision if it does not rest on an adequate evidentiary foundation or if it is contrary to the governing law, we will not substitute our judgment for that of the trial court merely because we might have chosen another alternative.

The Rule 60 Motion was heard on December 6, 2002. After both attorneys had argued, the trial court denied the Rule 60 Motion with the following explanation:

MR. HODGES: Could your Honor tell me ... the reasons why this [Rule 60 Motion] has been denied?
THE COURT: In all candor, Mr. Hodges, I don’t think that you have been prompt in prosecuting this case and keeping up with the matters dealing with this case. And if you were dilatory [sic] to file promptly like any other lawyer should do, then these matters would have come to your attention and your office’s attention. And I gave you the benefit of the doubt with regard to your explanation that you gave the Court with regards to the fax that you claim that you did not receive. So I am giving you the benefit of every doubt, but since you asked my reason, I gave you my reason.

This matter arises out of an interesting procedural miscommunication, namely the Motion for Summary Judgment was granted unbeknownst to both attorneys in the case. However, the job of this Court, in reviewing the action of the trial court, is not so much focused on the filing of the Motion for Summary Judgment as upon the actions of Messrs. Podesta and Hodges following the discovery of this filing. It is undisputed that Podesta learned of the grant of summary judgment sometime in the summer of 2001 and that he notified Hodges to check the file. On September 20, 2001, Hodges filed the Rule 60 Motion. Had Hodges set the Motion on the docket at that time, there is little doubt that it would have been granted based upon the fact that Hodges filed the Affidavit of Kevin Snider in a timely manner and the fact that neither side was aware of the filing of the Motion for Summary Judgment. In fact, Podesta indicated that he “wouldn’t have much to say to the Court [concerning the Rule 60 Motion being granted] if we were still in the summer of 2001.”

However, rather than setting the Rule 60 Motion to be heard in a timely fashion, Hodges waited until December of 2002, nearly nineteen (19) months after the entry of the Motion for Summary Judgment. At the hearing on December 6, 2002, Messrs. Podesta and Hodges were allowed adequate time to argue the issue of whether this delay caused prejudice to then* respective sides. Having reviewed this record, and particularly the statements of counsel made at the December 6, 2002 hearing, we cannot say that the trial court abused its discretion in finding that Hodges was derelict in fading to set the Rule 60 Motion for timely disposition. Furthermore, there were adequate eviden-tiary grounds for the trial court to find that such unwarranted delay prejudiced Chafetz’s case. We find no abuse of discretion by the trial court.

Consequently, we affirm the order of the trial court. Costs of this appeal are assessed against the Appellant, Albert Thompson, and his surety.

      . Darrell D. Blanton informed Podesta that he believed the Order Granting Defendant's Motion for Summary Judgment had been entered during a conversation the two had in the hallway of the courthouse.

      . Up to the time that Podesta checked the file, he had proceeded as if the Order had not been entered (i.e. he took the deposition of Kevin Snider).

      .The exact date of Podesta’s call to Hodges to check the file is not in the record. Podesta stated at oral argument that it was in the “Summer of 2001,” but that it could have been as late as August 2001.


author: HOLLY M. KIRBY, J.,

text:
    Sam POSEY, Danny Todd, William “Billy” A. Chitwood, Jimmy L. Porter v. CITY OF MEMPHIS.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Feb. 18, 2004 Session.
    Aug. 23, 2004.
    Permission to Appeal Denied by Supreme Court Feb. 28, 2005.

      Mark Allen and Melissa L. Palo, Memphis, Tennessee, for the appellants, Sam Posey, Danny Todd, William “Billy” A. Chitwood, and Jimmy L. Porter.
    Louis P. Britt, Charles V. Holmes, and Thomas J. Walsh, Jr., Memphis, Tennessee, for the appellee, City of Memphis.
   OPINION

HOLLY M. KIRBY, J.,

delivered the opinion of the Court,

in which W. FRANK CRAWFORD, P.J., W.S., and ALAN E. HIGHERS, J., joined.

This is an equal protection case involving pension benefits for firefighters. The municipal charter and ordinance required that thirty-year firefighters be automatically promoted to fire captain and that their salaries and pensions be calculated accordingly. The defendant municipality reorganized the command structure of the fire division, forcing nearly half of the fire captains to retire. The position of fire captain was eliminated, and the remaining former captains were designated as battalion captains with expanded responsibilities. The fire captain position remained on the payroll for purposes of calculating pension benefits, as per the municipal charter and ordinance requirement. Following the reorganization, the salary for thirty-year firefighters was set at a fire captain’s base pay, but thirty-year firefighters were no longer permitted to ascend the captain’s pay scale and retire at the highest level of pay. In contrast, police officers, whose compensation and pensions were governed by the same charter and ordinance provisions, had an opportunity to reach the highest pay levels given thirty-year police officers. The firefighters filed this lawsuit alleging, inter alia, a violation of the equal protection provision of the United States Constitution. The trial court found no equal protection violation. We affirm, holding that the equal protection clause is not applicable because thirty-year firefighters and thirty-year police officers are not sufficiently similarly situated.

This is the third appeal in this long-running dispute between members of the Memphis Fire Department and Defendant/Appellee City of Memphis (“the City”) regarding the calculation of pension benefits for firefighters employed for thirty years or more. In the present appeal, we are asked to determine whether the City’s method for calculating the pension benefits of thirty-year firefighters violates the equal protection clause of the Fourteenth Amendment to the United States Constitution.

Under the City’s charter and ordinance provisions, thirty-year firefighters and thirty-year police officers are grouped together for purposes of calculating pension benefits. Article 10, section 67 of the City charter provides:

Any fireman or policeman, who shall have served the City of Memphis for a period of thirty (30) years, either continuously or intermittently, shall, at the expiration of said thirty years, automatically be promoted to the rank of captain of the fire division or captain of the police division, with all the salary, emoluments and other privileges of said rank; and, upon the retirement of such fireman or policeman, he shall receive a pension as captain.

Similarly, section 25 — l(4)(a)(3) of the City ordinances provides:

For any police officer or firefighter credited with thirty (30) or more years of service, and eligible for automatic promotion to captain or comparable rank in the police or fire divisions of the city under Charter Section 67, his average monthly compensation shall be the current monthly base compensation of a captain or comparable rank in the police or fire divisions of the city as of the date of his retirement, plus any shift premium pay, hazardous premium pay, holiday pay, longevity pay and incentive pay, excluding overtime pay, earned during the immediately preceding twelve (12) months.

Thus, thirty-year firefighters and police officers are automatically entitled to the compensation, emoluments and privileges granted by their respective divisions to captains, or those holding a comparable rank.

Prior to 1988, the command hierarchy of both fire and police divisions included the rank of captain, by which compensation and pensions of thirty-year firefighters and police officers were calculated. A fire captain’s pay was broken into five pay levels, ranging from “base” pay to “level four” pay. Upon promotion to captain, a firefighter earned a captain’s “base” pay but could rapidly ascend to the higher “level four” pay by continuing to serve for at least one year.

In 1988, however, the City reorganized the command structure of the Memphis Fire Department in part by eliminating the fire captain position. Nearly half of the fire captains at that time were forced to retire. The fire captains who were not forced to retire were given expanded responsibilities and designated to the newly created rank of battalion captain. Although the City eliminated the fire captain position, a “phantom” fire captain rank remained on the payroll for purposes of calculating the pension benefits of thirty-year firefighters according to captain’s pay, as required under the charter. Thus, although thirty-year firefighters were no longer promoted to the rank of captain, their compensation and pension benefits were increased to the base pay level of the former captain position. However, because thirty-year firefighters were no longer able to actually hold the job position of captain, they were left with no opportunity to reach level four, the highest captain’s pay. The circumstances were different for police officers; the captain’s rank, at which thirty-year police officers are entitled to receive their pensions, remained a viable job position which police officers may hold. Consequently, police officers may retire at the highest pay level for a captain.

On October 15, 1992, members of the fire department, Plaintiffs/Appellants Sam Posey, Danny Todd, William “Billy” A. Chitwood, and Jimmy L. Porter (collectively “the Firefighters”) filed this lawsuit, alleging that the City’s method of calculating pensions violated the City charter and City ordinances, as well the equal protection clause of the Fourteenth Amendment to the United States Constitution. The City filed a motion for summary judgment, and both parties filed affidavits in support of their positions. On April 19, 1995, Chancellor Neal Small entered a judgment in favor of the City, holding that there was no violation of the municipal charter and ordinances. The Firefighters appealed, and this Court vacated Chancellor Small’s judgment, holding that the trial court erred in failing to address the equal protection claim and remanding the cause for an evidentiary hearing. Posey v. City of Memphis, No. 02A01-9603-CH-00058, 1997 WL 36811, at *4 (Tenn.Ct.App. Jan.31,1997).

On remand, a bench trial was held on November 19, 1998, before Chancellor Walter L. Evans. After hearing evidence from both parties, the trial court entered an order on December 18, 1998, finding in favor of the Firefighters. The trial court held that the City had violated the charter and ordinances, but did not rule on the equal protection claim. The City appealed, and the trial court’s ruling was reversed on appeal. This Court held that the City had not violated the charter and ordinance provisions and remanded the cause for the trial court to address the equal protection claim. Posey v. City of Memphis, 23 S.W.3d 332, 336 (TenrnCt. App.2000).

Since the parties had already presented their evidence pertaining to the equal protection claim, on remand, the trial court heard only the oral argument of counsel. After the hearing, the trial court found in favor of the City:

There are serious questions relating to whether Memphis policemen and firemen are similarly situated for purposes of invoking protection afforded by the equal protection clause of the Fourteenth Amendment under the facts of this case. Clearly, policemen and firemen work within separate divisions of City Government. As a result, each group works within separate and distinctly different command and salary structures. Each group also has vastly different job duties and responsibilities.

Thus, the trial court questioned whether the Firefighters and police officers were similarly situated for purposes of the equal protection clause. The trial court observed that, although the charter and ordinance provisions “provide both 30-year policemen [and] firemen enhanced pension benefits, neither section grants them identical benefits.” The trial court noted that the provisions “recognize that pension benefits of a 30-year policeman versus a 30-year fireman will not necessarily be the same as they each work within separate divisions of City Government which have separate salary structures.” The trial court then held that, assuming arguendo that the firefighters and police officers were similarly situated and that the equal protection clause applied, the City had a rational basis for the disparate treatment. From that order, the Firefighters now appeal.

Since this case was tried by the trial court sitting without a jury, we review the trial court’s factual findings de novo accompanied by a presumption of correctness unless the preponderance of the evidence is otherwise. Tenn. R.App. P. 13(d); Campbell v. Fla. Steel Corp., 919 S.W.2d 26, 35 (Tenn.1996). The trial court’s legal conclusions are reviewed de novo with no presumption of correctness. Campbell, 919 S.W.2d at 35.

The equal protection clause of the United States Constitution provides: “No State shall make or enforce any law which shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend XIV, § 1. It is well settled that the equal protection clause does not require absolute equality from the State and its political subdivisions. Gray’s Disposal Co. v. Metropolitan Gov’t of Nashville, 122 S.W.3d 148, 162-63 (Tenn.Ct.App.2002). It requires only “that persons similarly situated be treated alike.” Osborn v. Marr, 127 S.W.3d 737, 741 (Tenn.2004) (quoting Gallaher v. Elam, 104 S.W.3d 455, 461 (Tenn.2003)). Thus, if two classes are being treated differently, the equal protection clause has no application unless the classes are similarly situated within the meaning of the equal protection clause. Id.

On appeal, the Firefighters argue that they are similarly situated to police officers, pointing to the grouping of firefighters and police officers in article 10, section 67 of the City charter and section 25-l(4)(a)(3) of the City code. The Firefighters also cite City of Chattanooga v. Harris, 442 S.W.2d 602 (Tenn.1969), in which the Tennessee Supreme Court determined that it was proper to provide both firefighters and police officers free counsel or indemnity for liability if they are sued for acts connected to their employment. Harris, 442 S.W.2d at 603-04, 607. The Firefighters argue further that the City’s decision to pension them off at the base pay of a “captain, or comparable rank,” when police officers remain entitled to retire at the highest pay rates for a “captain, or comparable rank” does not pass constitutional muster, because there is not even a rational basis for the distinction.

The threshold issue, of course, is whether firefighters and police officers were similarly situated so as to warrant application of the protection of the equal protection clause. The municipal charter and ordinances clearly set both firefighters and police officers apart from other municipal employees, and grant them special benefits not otherwise available to municipal employees. Both firefighters and police officers work within a command structure, deal daily with emergency situations, and are confronted with life-threatening circumstances not encountered by other municipal employees. These are substantial similarities. There are, however, substantial differences as well. As noted by the trial court, firefighters and police officers work in different divisions of the City and have greatly different job responsibilities. They have a different command hierarchy, job duties for each rank, and different compensation structures. The municipal charter and ordinance provisions note that thirty-year firefighters are entitled to compensation as fire captains and thirty-year police officers are entitled to compensation as police captains, underscoring the fact that the rank of captain for firefighters is not the same as the rank of captain for police officers.

Under these circumstances, we must conclude that firefighters and police officers are not sufficiently similarly situated to warrant application of the equal protection clause of the Constitution. This holding pretermits the issue of whether the City had a rational basis for the difference in treatment.

The decision of the trial court is affirmed. Costs on appeal are taxed to Appellants Sam Posey, Danny Todd, William “Billy” A. Chitwood, and Jimmy L. Porter, and their sureties, for which execution may issue, if necessary.

      . For a detailed description of the nature of the conflict and issues decided in previous appeals, see Posey v. City of Memphis, 23 S.W.3d 332, 333-34 (Tenn.Ct.App.2000). In this opinion, we review only those facts necessary to address the issue in this appeal.

      . We held that this method of calculation did not violate the City’s charter or ordinance provisions in Posey v. City of Memphis, 23 S.W.3d 332, 336 (Tenn.Ct.App.2000).


text:
    Mike WILSON, d/b/a M & M Auto Sales v. Shane CHAPMAN.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    May 19, 2004 Session.
    July 8, 2004.
    Permission to Appeal Denied by Supreme Court Dec. 6, 2004.
    Edward Witt Chandler of Mountain Home, Arkansas, for Appellant, Shane Chapman.
    Roger A. Stone of Memphis for Appel-lee, Mike Wilson, d/b/a M & M Auto Sales.
   OPINION

W. FRANK CRAWFORD, P.J., W.S.,

delivered the opinion of the court,

in which ALAN E. HIGHERS, J. and HOLLY M. KIRBY, J., joined.

This case involves a question of whether a plaintiff who brings suit for a debt due him resulting from his agent’s business activities has standing as a real party in interest. The trial court found that the agent was acting on behalf of his employer, that the plaintiff had standing to sue as a real party in interest, and granted judgment in favor of the plaintiff. Defendant appeals. We affirm.

On June 27, 2000, a complaint was filed styled “Mike Wilson d/b/a M & M Auto Sales, for the use and benefit of Curt Young, plaintiff, versus Jerry Chapman, Individually and d/b/a Memphis Motor Sports, defendants.” The complaint alleges, essentially, that plaintiff is a licensed automobile dealership and plaintiff sold and delivered to defendant certain vehicles for the total purchase price of $63,600.00 for which he has not been paid. The complaint seeks judgment against the defendant for the amount due, plus prejudgment interest. The defendant, Jerry Chapman, filed an answer to the complaint on September 21, 2000, denying the material allegations of the complaint, averring that the “true part-in-interest is not before the court.” By order entered March 26, 2001, the trial court granted plaintiffs motion to amend the complaint to add Shane Chapman, individually and doing business as Brooks Road Auto Mart and Memphis Auto World as an additional party. On March 23, 2001, plaintiff filed an amended complaint for a breach of contract naming Jerry Chapman, individually, and Shane Chapman, individually, and d/b/a Brooks Road Auto Mart and Memphis Auto World. The amended complaint states in relevant part:

Comes now the plaintiff and sues the defendant, Shane Chapman, individually, and doing business as Brooks Road Auto Mart and Memphis Auto World, for breach of contract for the sum of $63,600.00 past due and owing, prejudgment interest, and costs stating as follows:
1. Plaintiff incorporates by reference all matters contained in the original Complaint for Breach of Contract, a copy of same being attached hereto.
2. That defendant, Shane Chapman, on information and belief, is the owner and holder of an automobile dealership license from the state of Tennessee originally in the name of Brooks Road Auto Mart located at 1829 Brooks Road and now doing business as Brooks Road Auto Mart and Memphis Auto World at 1635 Winchester, Memphis, Tennessee. That all the acts which give rise to the complaint occurred in Shelby County, Tennessee.
3. On information and belief, plaintiff avers that defendant’s father and agent, servant or employee, Jerry Chapman, representing himself to have authority to do so, purchased 22 vehicles between January 1, 2000 and June 27, 2000, for a total purchase price of $63,600.00. Plaintiff holds the certifícate of title to each of the vehicles awaiting payment of the purchase price agreed to for each vehicle purchased.
4. Plaintiff avers that most of the 22 vehicles have been sold to various customers who are operating the vehicles without having titled same. Defendant, Shane Chapman, individually and dba Brooks Road Auto Mart and/or Memphis Auto World received payment from retail customers but have not paid plaintiff.
5.Plaintiff avers that Jerry Chapman, father of Shane Chapman, had the apparent authority and that the purchases of the 22 vehicles from the plaintiff have now been ratified by virtue of the vehicles having been sold to third parties without payment being remitted to the plaintiff.
WHEREFORE, PREMISES CONSIDERED, plaintiff prays:
1. That service of process issue upon the defendant, Shane Chapman, and he be required to answer but his oath to the answer waive.
2. That at the hearing of the cause the Court determine that the defendant, Shane Chapman, has failed to pay the plaintiff the sum of $63,600.00 for the 22 vehicles purchased.
3. That the Court grant prejudgment interest.
4. For such other, further, different and general relief to which plaintiff may be entitled.

On May 16, 2001, Shane Chapman filed his answer to the amended complaint, denying the material allegations thereof and adopting by reference the affirmative defenses asserted in the original answer filed by Jerry Chapman in which he averred that “the true party in interest is not before the court in this matter” and that “the named plaintiff does not have the capacity to represent the represent the true plaintiff.”

A non-jury trial was held on January 22, 2003 and the parties stipulated that at all relevant times Jerry Chapman was acting as the agent for Shane Chapman and that Curt Young was acting as the agent for Mike Wilson. The record further reflects that at the beginning of the trial, counsel for Shane Chapman advised the court that the case involved only one issue:

“Our position is we don’t owe [Mr. Wilson] anything he breached the contract and didn’t produce what are . called good — good titles. That will be issue in this lawsuit, as to who breached the contract and whether the money is owed or not.”

Notwithstanding his earlier statement to the court, at the conclusion of the Plaintiffs evidence, counsel for Shane Chapman moved for a dismissal based on failure to prosecute in the name of the real party in interest, to wit:

MR. CHANDLER (attorney for Shane Chapman): Your Honor, I move for a judgment in favor of the Defendant on the grounds the proof shows that be bought these cars in the name of M & M Auto Sales and that he sold these cars in the name of M & M Auto Sales. He does not own M & M Auto Sales. He has no ownership interest in it. He is an agent of this company.
There is no showing that he had any authority to even file a lawsuit. He doesn’t claim to have any authority to file a lawsuit.
He filed the lawsuit Mike Wilson doing business as M & M Auto Sales, for the use and benefit of Curt Young.
Well, for the use and benefit is trustee language. There’s no showing of any trust. There’s no showing of any— there’s no showing of any authority for him to even file this lawsuit. So I’m entitled to judgment.
If Your Honor gave judgment in this case, you would have to give the judgment to Mike Wilson because, as we all know, M & M Auto Sales doesn’t— doesn’t legally exist. It has to be in the name of the individual, Mike Wilson. Well, Mike Wilson is not here. Mike Wilson has not testified, and he has not shown any evidence that he had authority to even file this lawsuit.
What he has told you is that he was acting as an agent for M & M Auto Sales, owned by Mike Wilson, and that he bought these cars and that he sold them to Jerry Chapman as an agent for M & M Auto Sales.
Well, now, if Jerry has not paid for them and he owes them, who does he owe, the agent or the principal?
Our contention is if he owes anybody anything it’s Mike Wilson.
MR. STONE (attorney for Mike Wilson): I don’t have any objection to that. I agree. Mike Wilson, M & M Auto Sales. Whether the Court wants to accept for the use and benefit of Curt Young is up to the Court. But the Plaintiff is Mike Wilson d/b/a M & M Auto Sales. We made a prima facie case.
THE COURT: Mr.' — Mr. Young has— has testified that he was the agent for M & M Auto Sales, and he’s a disclosed agent. In other words, everything that he signed evidences that he was an agent. On each of these titles — titles that I’ve looked at he signed Curt Young, agent.
As a disclosed agent I think he does have the authority to proceed and act in the name of M & M Auto Sales. Based on his — based on his testimony and the fact that he’s disclosed his agency, I don’t see — I don’t see that that’s a problem, and the motion is denied.

The defense then put on Jerry Chapman, who testified that M & M Auto Sales sold 22 cars to him and that he refused to pay the $63,000.00 for those cars:

Q. Now, did there come a time when you refused to pay the $63,000.00 for the 22 cars?
A. Yes, I did.

Basically, the record reflects that the majority of the trial was a defense based on allegedly defective certificates of title of some of the automobiles in question. The trial court found that the plaintiff had complied with the contract, and the evidence in the record does not preponderate against that finding.

Since this case was tried by the court sitting without a jury, we review the case de novo upon the record with a presumption of correctness of the findings of fact by the trial court. Unless the evidence preponderates against the findings, we must affirm, absent error of law. T.R.A.P. 13(d). As to the trial court’s decision on questions of law, our review is de novo upon the record with no presumption of correctness accompanying the trial court’s conclusions of law. See Tenn. R.App. P. 13(d); Waldron v. Delffs, 988 S.W.2d 182,

On January 30, 2003 the trial court entered “Judgment for Plaintiff Against Shane Chapman, Individually, and d/b/a Brooks Road Auto Mart and Memphis Auto World, and Voluntary Nonsuit Against Jerry Chapman,” assessing the damages sought, plus pre-judgment interest. Shane Chapman appeals from this judgment and raises one issue, as stated in his brief:

Whether as a matter of law judgment should be for the defendants because the plaintiff was a trust and the proof clearly shows the indebtedness for breach of contract was to “Mike Wilson” d/b/a M & M Auto Sales?

Rule 17.01 of the Tennessee Rules of Civil Procedure governs real parties in interest and provides as follows:

Every action shall be prosecuted in the name of the real party in interest; but an executor, administrator, guardian, bailee, trastee of an express trust, a party to whose rights another is subro-gated, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in his or her own name without joining the party for whose benefit the action is brought; and when a statute so provides an action for the use and benefit of another shall be brought in the name of this State. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification or commencement by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.

Shane Chapman contends that the judgment in favor of Mike Wilson d/b/a M & M Auto Sales is invalid because Mike Wilson was not a party to the lawsuit. Shane Chapman asserts that the plaintiff is an alleged trust beneficiary, “Curt Young.” Specifically, Shane Chapman contends that the words “for the use and benefit of Curt Young,” as used in the heading of the Amended Complaint, constitute trust language. We disagree. We find that the real party in interest is Mike Wilson d/b/a M & M Auto Sales and that he was properly named as a party to the lawsuit. The complaint shows on its face that the plaintiff is a resident citizen of the State of Arkansas and a licensed dealership and that Curt Young is his licensed salesman. The agreement between the parties was made by plaintiff, Mike Wilson, on the one hand through his licensed salesman and the defendant on the other hand. The real party in interest is Mike Wilson. The trial court found, and the evidence does not preponderate against the finding, that everything that Curt Young did was done as an agent for Mike Wilson.

Accordingly, the judgment for plaintiff is affirmed. The case is remanded to the trial court for a determination of the prejudgment interest and total money judgment for plaintiff. Costs of the appeal are assessed to the appellant, Shane Chapman, and his surety.

      . Plaintiff took a voluntary nonsuit as to defendant, Jerry Chapman, at this hearing.