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

text:
    Maurice GLETZER, Respondent, v. Amos HARRIS, Appellant.
    No. ED 84367.
    Missouri Court of Appeals, Eastern District, Division One.
    Feb. 1, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 23, 2005.
    Application for Transfer Denied April 26, 2005.

      Joshua M. Schindler, Schindler Law Firm, Clayton, MO, for appellant.
    Daniel S. Peters, Herzog, Crebs, LLC, St. Louis, MO, for respondent.
   GARY M. GAERTNER, SR., Presiding Judge.

Appellant, Amos Harris (“Harris”), appeals from the judgment of the Circuit Court of the City of St. Louis denying his motion to set aside registration of a foreign judgment, which was entered in New York against Harris and in favor of Respondent, Maurice Gletzer (“Gletzer”).

In 1991, Gletzer, a resident of Belgium, filed suit against Harris in the Supreme Court of the City of New York (“the New York suit”). The New York suit was filed by Gletzer claimed Harris failed to repay a loan Gletzer made to him for real estate transactions. On October 23,1991, Gletzer obtained a default judgment, “in the sum of $400,000.00 with interest ... together with the costs and disbursements of this action,” against Harris in the New York suit.

Harris engaged in settlement negotiations with Gletzer for approximately seven or eight years after the New York default judgment was rendered. Harris has known of the existence of the New York default judgment since at least 1995.

Despite efforts to settle the debt, Harris never paid any of his debt to Gletzer. On December 12, 2000, Gletzer filed a petition and supporting affidavit seeking registration of the default judgment in Missouri pursuant to Rule 74.14. Subsequently, Harris filed a motion to set aside registration of the foreign judgment arguing that the New York court lacked personal jurisdiction over him due to improper service.

The trial court found that, in August of 1991, Harris resided in New York at 143 Avenue B, New York, New York (“the Christadora House”). The affidavit of service that was filed with the New York court reflects that a process server, David Bongiorni, served Harris with the summons and complaint via Harris’ doorman, Tadeusz Kurzyna, on August 24, 1991 at the Christadora House. The evidence further revealed that on August 28, 1991, the summons and complaint was mailed to Harris at his New York address. The court concluded that Harris waived the defense of lack of personal jurisdiction because he failed to assert it seasonably and submitted to the judgment through his conduct. The court also found that Harris received his constitutionally required due notice. As a result, Harris’ motion to set aside registration of the foreign judgment was denied. This appeal followed.

In reviewing this bench-tried case, the judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976).

Harris asserts two points on appeal, but these points can be consolidated into one point on appeal. Harris claims the court erred in denying his motion to set aside the registration of the foreign judgment, because the New York court lacked personal jurisdiction over Harris in that service was improper.

Initially, we address Gletzer’s claim that Harris waived the defense of lack of personal jurisdiction due to his post-judgment conduct.

The defense of lack of personal jurisdiction may be waived by failure to assert it seasonably, by formal submission in a cause, or by submission through conduct. Neirbo Co. v. Bethlehem Shipbuilding Corporation, 308 U.S. 165, 168, 60 S.Ct. 153, 84 L.Ed. 167 (1939). However, “a defendant is always free to ignore the judicial proceedings, risk a default judgment, and then challenge that judgment on jurisdictional grounds in a collateral proceeding.” Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 706, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1984). A defendant who questions the validity of service giving a court personal jurisdiction over him does not have to raise the issue of personal jurisdiction in that court, and is allowed to raise it later when the judgment is filed in another state. Sentinel Acceptance v. Hodson Auto Sales, 45 S.W.3d 464, 469 (Mo.App. W.D.2001). If a party litigates the issue of jurisdiction in the initial court proceedings, that court’s determination on the issue is conclusive upon that party and entitled to full faith and credit. Id., quoting Williams v. Williams, 997 S.W.2d 80, 83 (Mo.App. S.D.1999).

Harris has engaged in numerous post-default judgment settlement discussions with Gletzer over the years in an attempt to settle his debt. The evidence indicates Harris has known of the existence of the New York default judgment since at least 1995. However, Harris never litigated the issue of jurisdiction before the New York court and in fact never appeared before the New York court. Gletzer admits Harris never conceded to him that the New York court had personal jurisdiction over Harris or that the default judgment was valid. Furthermore, Harris never paid Gletzer any money in settlement of their dispute. In response to Gletzer’s petition seeking registration of the foreign judgment, Harris raised, for the first time, his argument that the New York court lacked personal jurisdiction over him in his motion to set aside registration of the foreign judgment. We find, based on these facts, that Harris has not waived his lack of personal jurisdiction defense.

Next we address the merits of Harris’ argument that the New York court lacked personal jurisdiction over him.

Missouri is compelled to give full faith and credit to a judgment of another state unless the judgment of the rendering state is void for lack of jurisdiction over the person or subject matter, or is obtained by fraud. Phillips v. Fallen, 6 S.W.3d 862, 864 (Mo.banc 1999). To be entitled to full faith and credit, the rendering court’s exercise of jurisdiction must not only be permissible under the federal law of due process, but it must also be valid under the state law of the rendering court. Adamson v. Harris, 726 S.W.2d 475, 478 (Mo.App. W.D.1987). A foreign judgment, which is regular on its face, is entitled to a strong presumption that the rendering court had jurisdiction over the parties and the subject matter of the suit. Phillips, 6 S.W.3d at 868, quoting Johnson v. Johnson, 770 S.W.2d 483, 485 (Mo.App. E.D.1989). A party asserting the invalidity of a foreign judgment has the burden of overcoming the presumption of validity. L & L Wholesale, Inc. v. Gibbens, 108 S.W.3d 74, 79 (Mo.App. S.D.2003).

Under N.Y. C.P.L.R. section 308(2), personal service upon a natural person can be made “by delivering the summons ... to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by ... mailing the summons to the person to be served at his or her last known residence ....” N.Y. C.P.L.R. section 308(2). Where no attempt is made to proceed to the defendant’s apartment unit, it cannot be held that delivery of service in the lobby of the apartment house to the doorman satisfies the requirements of N.Y. C.P.L.R. section 308(2). McCormack v. Goldstein, 204 A.D.2d 121, 611 N.Y.S.2d 185, 186 (N.Y.App.Div.1994); see also Soils Engineering Services, Inc. v. Donald, 258 A.D.2d 425, 685 N.Y.S.2d 723 (N.Y.App. Div.1999).

“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950).

At the hearing, Harris argued that service of the New York suit on his doorman was improper service, because the doorman did not deny the process server access to his unit. Harris claims that the applicable New York law only allowed a suit to be served on a doorman if the doorman denied access to the unit of the person to be served.

One of Gletzer’s arguments in response is that the holdings of Soils and McCor-mack cannot be retroactively applied to the 1991 default judgment. Assuming ar-guendo that the interpretation of N.Y. C.P.L.R. section 308(2) in Soils and McCormack can be retroactively applied, Harris still fails to overcome the strong presumption that the New York court had jurisdiction over the parties. The affidavit of service did not say whether the process server actually sought or was denied access to Harris’ unit. Moreover, no depositions or testimony from either the doorman or the special process server were admitted at the hearing on the motion to set aside the registration of foreign judgment. It is completely unclear from the evidence whether the doorman refused to allow the special process server to approach Harris’ unit in the Christadora House. Therefore, Harris did not meet his burden of overcoming the strong presumption that the New York court had jurisdiction over the parties.

Furthermore, the service comported with due process as Harris’ doorman was served and a copy of the summons and complaint was timely mailed to Harris at his New York address. Harris admits that his doormen had received service of lawsuits for him in the past, and does not even attempt to argue that service here was not in compliance with the federal law of due process. The service was reasonably calculated to provide Harris with notice and an opportunity to respond. Point denied.

Based on the foregoing, we affirm the judgment of the trial court.

SHERRI B. SULLIVAN and BOOKER T. SHAW, JJ„ concur.


source: Caselaw Access Project

author: ROBERT G. DOWD, JR., Judge.

license: Public Domain

text:
    Mary Jill GILLESPIE, Appellant, v. ESTATE OF Michael G. McPHERSON, Respondent.
    No. ED 84110.
    Missouri Court of Appeals, Eastern District, Division Two.
    Feb. 1, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 23, 2005.
    Application for Transfer Denied April 26, 2005.

      James C. Ochs, St. Louis, MO, for Appellant.
    John C. Maxwell, St. Charles, MO, for Respondent.
   ROBERT G. DOWD, JR., Judge.

Mary Jill Gillespie (second wife) appeals from the trial court’s grant of summary judgment in favor of the Estate of Michael G. McPherson (Estate) on second wife’s action for declaratory judgment as to the rightful beneficiary of a life insurance policy. Second wife contends the trial court erred (1) in granting the Estate’s motion for summary judgment because the motion for summary judgment did not comply with Rule 74.04 and therefore, should have been denied, and (2) in granting the Estate’s motion for summary judgment and denying her motion for summary judgment because second wife was the named beneficiary on Michael G. McPherson’s (Decedent) life insurance policy and thus, is entitled to the proceeds of the life insurance. We affirm.

The facts in this case are largely undisputed. Second wife married Decedent on August 16, 2000. Decedent was previously married to Nancy McPherson, who is now known as Nancy Riddel, (first wife) and that marriage produced four children. On February 27, 1997, Decedent and first wife’s marriage was dissolved. As part of the dissolution of marriage, Decedent entered into a marital settlement agreement in which custody of the four children was given to first wife, with Decedent agreeing to pay monthly child support and a percentage of the children’s day care, health insurance, and higher education costs. In addition, Decedent agreed to procure and maintain a life insurance policy in the amount of $100,000.00 naming first wife as the irrevocable beneficiary until the youngest of the parties’ four children was emancipated. At the time of the dissolution of marriage, Decedent had not yet procured the life insurance policy.

On March 27, 2000, almost three years after his divorce from first wife, Decedent procured a policy of life insurance through Shelter Insurance Company after first wife called and discussed the life insurance provision of the marital settlement agreement with second wife. Second wife, who was Decedent’s fiancée at the time, accompanied Decedent to the Shelter Insurance agent’s office. Decedent named first wife as the beneficiary on the policy and listed second wife as the contingent beneficiary. There was no reference to first wife being an irrevocable beneficiary on the policy itself. Second wife, who paid all of her and Decedent’s bills, wrote the checks for the insurance premiums on the life insurance policy. Second wife and Decedent furnished first wife with a copy of the insurance policy.

After Decedent and second wife’s marriage and without first wife’s knowledge, Decedent and second wife went to the Shelter Insurance Company agent’s office and changed the beneficiaries of Decedent’s life insurance policy. First Wife was removed and second wife was named as the primary beneficiary. Second wife’s daughter, Decedent’s step-daughter, was named as a contingent beneficiary. First wife was never notified of the change in beneficiaries.

Shortly after her marriage to Decedent, second wife decided to divorce Decedent for financial reasons. The marriage was dissolved by a default judgment. Second wife was awarded the majority of marital assets. There was no mention of the life insurance policy in question in the dissolution judgment. Second wife and Decedent continued to cohabitate until his death in October 2002. At the time of his death, Decedent’s and first wife’s youngest child was nine years old. Second wife continued to pay the insurance premiums after the dissolution of the parties’ marriage. Thereafter, second wife filed a claim for payment as the beneficiary of the $100,000.00 life insurance policy. Shelter Insurance Company denied payment stating its belief that the dissolution of the marriage revoked second wife’s right to the policy.

Second wife filed a petition for declaratory judgment against Shelter Insurance Company and the Estate requesting a determination and declaration of the rightful beneficiary of Decedent’s life insurance proceeds. Second wife did not name first wife as a party defendant and first wife did not seek to intervene or join the action. Shelter Insurance Company filed a motion for interpleader, which was granted by the trial court, and Shelter Insurance Company paid $102,235.28 into the court registry. Shelter Insurance Company was then dismissed with prejudice.

Thereafter, the Estate filed its motion for summary judgment with its memorandum in support as one document. The Estate alleged second wife was not entitled to the insurance proceeds as a result of her divorce from Decedent. The Estate also alleged that because Decedent was under a duty to procure the life insurance policy naming first wife as the irrevocable beneficiary under the terms of the dissolution judgment, Decedent was not free to change the beneficiary without first wife’s consent and therefore, first wife was entitled to the insurance proceeds as a matter of law. Second wife subsequently filed her response to the Estate’s motion for summary judgment asserting the Estate’s motion failed to comply with Rule 74.04(c)(1), which requires the filing of a separate legal memorandum, and thus, the Estate’s motion should be denied. Second wife also filed her motion for summary judgment alleging she was entitled to the insurance proceeds as the named beneficiary on the life insurance policy where there was no evidence of intent to revoke second wife’s rights as the beneficiary. The Estate filed a response and also filed a separate memorandum of law in support of its motion for summary judgment. Thereafter, the trial court granted the Estate’s motion for summary judgment and denied second wife’s motion for summary judgment. Second wife’s subsequent motion, titled a “Motion for Reconsideration,” was overruled and this appeal follows.

In her first point, second wife asserts the trial court erred in granting the Estate’s motion for summary judgment because the motion for summary judgment did not comply with Rule 74.04 and therefore, should have been denied. Second wife maintains the trial court should have denied the Estate’s motion on the basis that it did not file a separate memorandum in support of its motion for summary judgment. We disagree.

The Estate filed its motion for summary judgment and memorandum in support together as one document. In its response to the motion for summary judgment, second wife asserted that the motion failed to comply with Rule 74.04(c)(1), which states, “Movant shall file a separate legal memorandum explaining why summary judgment should be granted.” The Estate thereafter filed a separate legal memorandum explaining its reasons why summary judgment should be granted in its favor.

Generally, failure to comply with Rule 74.04(c)(1) warrants a trial court’s denial of a summary judgment motion and warrants an appellate court’s reversal of the grant of summary judgment. Sotirescu v. Sotirescu, 52 S.W.3d 1, 7 (Mo.App. E.D.2001). However, when the issues and the documents in support of the motion are clear to the litigants, the trial court, and the appellate court, the failure to comply with Rule '74.04 does not per se preclude the granting of summary judgment nor the affirming of such a judgment. Id. In short, the trial court and the appellate court are vested with discretion. Id.

Here, the Estate attached its first memorandum in support of its motion to the summary judgment instead of fifing it separately as required under the rule. The issues were clear to the litigants and the trial court at the time of the fifing of the motion and memorandum in support of the motion for summary judgment as one document, as evidenced by second wife’s response to the Estate’s motion for summary judgment. This failure to file the memorandum separately does not preclude the trial court from granting the Estate’s motion for summary judgment. Moreover, the Estate corrected its failure to comply with Rule 74.04(c)(1) by fifing a separate memorandum in support of its motion for summary judgment after second wife filed her response to the Estate’s motion for summary judgment pointing out the failure to comply with Rule 74.04(c)(1). If the motion states with particularity the grounds for summary judgment, the memorandum in support of the motion can be filed at any time. See Noe v. Pipe Works, Inc., 874 S.W.2d 502, 503 (Mo.App. E.D.1994). Point denied.

In her second point, second wife contends the trial court erred in granting the Estate’s motion for summary judgment and denying her motion for summary judgment because second wife was the named primary beneficiary on Decedent’s life insurance policy and thus, is entitled to the proceeds of the fife insurance. Under these facts, we disagree.

Appellate review of a trial court’s grant of summary judgment is essentially de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The record is reviewed in the light most favorable to the party against whom judgment was entered, according that party all reasonable inferences that may be drawn from the record. Id. Summary judgment will be upheld on appeal if the movant is entitled to judgment as a matter of law and no genuine issues of material fact exist. Id. at 377. The material facts in this case are not substantially in dispute and thus, this case presents only a question of law.

The Estate alleged two theories in its motion for summary judgment asserting the reasons second wife was not entitled to the insurance proceeds. First, the Estate argued that second wife’s divorce from Decedent effectively terminated her right as the beneficiary under .the policy. Secondly, the Estate alleged that because Decedent was under a duty to procure the fife insurance policy naming first wife as the irrevocable beneficiary under the terms of the dissolution judgment, Decedent was not free to change the beneficiary without first wife’s consent and therefore, first wife was entitled to the insurance proceeds as a matter of law. We address the Estate’s first ground in its motion for summary judgment. Because we find it is dispositive, we need not address the remaining ground in the motion.

The Estate asserts that second wife’s divorce from Decedent effectively terminated her right as the beneficiary under the policy. We agree.

Section 461.051.1, RSMo 2000, provides: If, after an owner makes a beneficiary designation, the owner’s marriage is dissolved or annulled, any provision of the beneficiary designation in favor of the owner’s former spouse or a relative of the owner’s former spouse is revoked on the date the marriage is dissolved or annulled, whether or not the beneficiary designation refers to marital status. The beneficiary designation shall be given effect as if the former spouse or relative of the former spouse had disclaimed the revoked provision.

Subsection 2 of 461.051 provides exceptions to the general rule promulgated in subsection 1. Section 461.051.2 provides:

Subsection 1 of this section does not apply to a provision of a beneficiary designation that has been made irrevocable, or revocable only with the spouse’s consent, or that is made after the marriage was dissolved, or that expressly states that marriage dissolution shall not affect the designation of a spouse of relative of a spouse as beneficiary.

Here, Decedent, the. owner of the policy, listed second wife as the beneficiary of the life insurance policy prior to the dissolution of their marriage. The beneficiary designation was not made irrevocable or revocable only with consent. Furthermore, the policy did not expressly state that the marriage dissolution would not affect the beneficiary designation. Thus, by operation of the dissolution of marriage, second wife was revoked as the beneficiary as of the date of the dissolution.

Second wife argues we must look to the intent of the parties to determine whether the divorce affected Decedent’s designation of second wife as the beneficiary under the insurance policy. To support her argument, second wife relies on Estate of Keeton, 728 S.W.2d 694 (Mo.App. W.D.1987). In Keeton, the parties entered into a property settlement agreement that provided in part, “it is stipulated and agreed between the parties that husband is the present owner of the following listed life insurance policies and it is agreed between the parties that the wife does transfer any right, title, interest and benefit in and to the said life insurance policies that she may have, relinquishing to husband the full ownership or benefit and control thereof....” Id. at 696. The settlement agreement also provided that the parties waive and relinquish any interest in their separate retirement accounts. Id. The former husband never took any affirmative action to change the name of the beneficiary on the insurance policies or his retirement account. Id. After the time of the death of her former husband, the wife was named as the beneficiary on his life insurance policies and retirement account and she sought and received the proceeds as the named beneficiary. Id. The estate of the former husband filed a petition claiming it was entitled to the proceeds of the insur-anee policies and retirement account. Id. After hearing evidence concerning the decedent’s intent, the court in Keeton held that the language of the agreement evidenced a clear intent of the parties to release or revoke all of the wife’s rights to the insurance policies and retirement plans. Id. at 697.

We are not persuaded by second wife’s reliance on Keeton. Here, second wife and Decedent did not enter into a property settlement agreement. In fact, the dissolution of marriage was procured by default. Moreover, the dissolution judgment makes no mention of the life insurance policy at issue. Under these circumstances, we will not speculate as to what Decedent intended. In addition, we note the Keeton court did not address Section 461.051. We find the Estate was entitled to judgment as a matter of law by operation of Section 461.051, which revoked second wife as the beneficiary on the life insurance policy on the date of the dissolution of her marriage to Decedent. Point denied.

The trial court did not err in entering summary judgment in favor of the Estate. The judgment of the trial court is affirmed.

PATRICIA L. COHEN, P.J., and KATHIANNE KNAUP CRANE, J., concur.

      . Decedent’s oldest child, April McPherson, is the personal representative of his estate.

      . The relevant provision of the marital settlement agreement read:
      Husband agrees to procure and maintain in full force and effect a policy of life insurance insuring Husband's life with a face value of one hundred thousand dollars ($100,000.00), naming Wife as irrevocable beneficiary thereon, until such time as the parties’ youngest child has become emancipated. Husband agrees to provide Wife with written documentation each year following the divorce to verify that said life insurance coverage is still in full force and effect and that Wife is named as irrevocable beneficiary thereon.

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

      . An "owner” is defined in Section 461.005(8) as “a person or persons having a right, exercisable alone or with others, to designate the beneficiary of a nonprobate transfer, and includes joint owners.”


author: PER CURIAM.

text:
    In the Interest of C.E.B. and A.A.B.
    No. ED 84316.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 8, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 5, 2005.
    Christopher M. Braeske, Clayton, MO, for Appellant.
    Barbara L. Greenberg, Family Court of St. Louis County, Clayton, MO, for Respondent.
    Before LAWRENCE E. MOONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Toni Yvette Branch appeals from the family court’s judgment terminating her parental rights to C.E.B. and A.A.B. pursuant to Section 211.447 RSMo 2000.

We have reviewed the briefs of the parties and the record on appeal. The judgment is supported by substantial evidence and is not against the weight of the evidence. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. The judgment is affirmed in accordance with Rule 84.16(b).

The parties have been furnished with a memorandum for their information only, setting forth reasons for the order affirming the judgment pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Joe A. HOWARD, Appellant.
    No. WD 63617.
    Missouri Court of Appeals, Western District.
    Feb. 15, 2005.
    Bert M. Godding, St. Joseph, MO, for appellant.
    Laura Beth Donaldson, St. Joseph, MO, for respondent.
    Before RONALD R. HOLLIGER, Presiding Judge, PAUL M. SPINDEN, Judge and JOSEPH M. ELLIS, Judge.
   ORDER

PER CURIAM.

Joe Howard appeals from his conviction by jury of one count of stalking, § 565.225.2, RSMo 2000. Howard was sentenced to a term of one year in the Buchanan County Jail and fined $500. No jurisprudential purpose would be served by a formal written opinion. However, a memorandum explaining the reasons for our decision has been provided to the parties.

Judgment affirmed. Rule 30.25(b).


author: LISA WHITE HARDWICK, Judge.

text:
    Geneva McCOY, Respondent, v. Terry Mitchel (Mitch) McCOY, Appellant.
    No. WD 62818.
    Missouri Court of Appeals, Western District.
    Feb. 15, 2005.

      James 0. Kjar, Warsaw, MO, for Appellant.
    James E. Switzer, Clinton, MO, for Respondent.
    Before SMART, P.J., ELLIS and HARDWICK, JJ.
   LISA WHITE HARDWICK, Judge.

Terry McCoy (Husband) appeals from the property division in the judgment dissolving his marriage to Geneva McCoy (Wife). Because the trial court prejudi-cially erred in classifying certain property as Wife’s non-marital property, we reverse the judgment and remand.

Factual and PROCEDURAL History

After six years of marriage, Wife filed a dissolution petition against Husband in December 2001. The primary issue at trial was the property division. Wife requested the court to set apart as her non-marital property a parcel of real estate in Henry County, valued between $155,000 and $189,000, and a $88,000 promissory note. Although both property items were acquired during the marriage, Wife argued they were non-marital because they were acquired from the sale of property she owned prior to the marriage. Husband argued the real estate and promissory note were transmuted into marital property when they were titled in both parties’ names. Husband requested an equal division of the marital property, including the property items in dispute.

In the dissolution judgment, the court set apart the Henry County real estate and the promissory note as Wife’s non-marital property. The court divided the marital property by awarding Husband $2,745 in marital assets and Wife $42,261 in marital assets. The court also ordered Wife to pay Husband $20,000 to equalize the marital property division. Husband appeals the property determination.

Applicable Law

In the disposition of property during a dissolution proceeding, the court must first set apart each party’s non-marital property before dividing the marital property. § 452.330.1. All property acquired by either spouse after the marriage and before the decree of dissolution is presumed to be marital property. § 452.330.3. The presumption of marital property may be overcome by a showing that the property was acquired in exchange for property acquired prior to the marriage. § 452.330.2(2).

Property acquired in exchange for non-marital property may subsequently be transmuted into marital property by express or implied agreement of the parties. Farnsworth v. Farnsworth, 108 S.W.3d 834, 838 (Mo.App.2003). When a spouse uses non-marital assets to purchase property and then jointly titles the property, there is a presumption that a gift was intended to the other spouse and the property was transmuted into marital property. Id. at 838-39; Williams v. Williams, 965 S.W.2d 451, 454-55 (Mo.App.1998). “To rebut this presumption, the spouse claiming that the property should be designated non-marital must introduce clear and convincing evidence that he or she did not intend a gift to the other spouse. The clear and convincing evidence standard refers to evidence that instantly tilts the scales in the affirmative when weighed against the evidence in opposition, and the fact finder’s mind is left with an abiding conviction that the evidence is true.” Farnsworth, 108 S.W.3d at 839 (citations omitted).

The judgment in a dissolution case must be affirmed unless it is unsupported by substantial evidence, against the weight of the evidence, or erroneously declares or applies the law. Jinks v. Jinks, 120 S.W.3d 301, 304 (Mo.App.2003). The trial court has broad discretion in classifying and in distributing marital property. Id. at 305. An appellate court will reverse only if the division of property is so unduly weighted in favor of one party as to constitute an abuse of discretion. Id.

Point on Appeal

In his sole point on appeal, Husband contends the court misapplied the law in determining that the Henry County real estate and the promissory note were Wife’s separate non-marital property. Husband argues that Wife failed to overcome the presumption that the property items were transmuted into marital property when they were titled in both parties’ names. Husband seeks reversal of the judgment and a remand requiring the trial court to include the real estate and promissory note in the division of marital property-

The record reflects that, prior to the marriage, Wife owned a resort business and property in Wayne County, known as Spring Valley Resort, Inc. (SVR). A few months after the parties married in December 1995, Wife had the resort property re-titled jointly in her and Husband’s name for estate and tax planning purposes. Husband and Wife testified that the retitling was done in an effort to avoid probate and was not intended to transfer a one-half interest in the real estate to Husband. Both parties agreed, at trial, that the resort property remained Wife’s non-marital property even after it was jointly titled.

Three years later, in October 2000, the resort property and certain assets of SVR were sold for a total sales price of $350,000. After payment of all loans secured by the resort property, Husband and Wife received a check made payable to them in the amount of $166,334.13 and a promissory note payable to them for the balance of $38,000. The parties deposited the check proceeds into their joint bank account. The first monthly payment on the promissory note was made payable to Husband and Wife, but all subsequent payments were payable to SVR and were deposited into the SVR corporate bank account.

Husband and Wife used the cash proceeds from sale of the resort property to purchase real estate in Henry County for $129,000 in October 2000. The deed to the Henry County property was jointly titled in both parties’ names. The parties spent approximately $20,000 to make improvements on the Henry County property, using funds from the SVR bank account. Once the improvements were made, the parties used the Henry County property to operate a flea market antiques business that Husband had previously operated at a different location.

The trial court’s judgment declared the Henry County property and the promissory note to be Wife’s separate non-marital property based on a “source of funds” analysis. The court determined that the Henry County property and the promissory note were acquired solely from the sale of the resort property, which the parties had agreed was Wife’s non-marital property. Although the deed to the newly purchased Henry County property and the promissory note were titled in both parties’ names, the court concluded that Husband and Wife did not intend to transmute the sales proceeds to marital property because they never requested or directed such joint titling.

On appeal, Husband correctly points out that the joint titling of the Henry County real estate and the promissory note created a presumption that these assets were transmuted into marital property. Farnsworth, 108 S.W.3d at 838-39. Wife, therefore, had the burden of proving by clear and convincing evidence that she did not intend to gift the property items to Husband despite the manner in which they were titled. Id. at 839. Husband contends the evidence is insufficient to meet Wife’s substantial burden.

Wife contends she met her burden of proof by showing that she never directed the Henry County property and promissory note to be jointly titled and, therefore, it should be inferred that she did not intend to gift the items to Husband. Wife’s testimony in this regard must be understood in full context. Wife testified that at the time she sold the resort property and purchased the Henry County real estate, she did not give anyone instructions on how to title the promissory note or deed. However, she saw both documents before closing on the transactions and was aware that she and Husband were shown as joint owners. Wife proceeded with the closings and gave no indication that she did not intend for Husband to share ownership of the assets.

Even after the closings, Wife’s conduct did not clearly indicate any intent to maintain the assets as her separate property. Husband and Wife used the Henry County property to operate a flea market antiques business that Husband previously had at a different location. Although Wife eventually requested that the promissory note payments be made payable to SVR, Wife also allowed Husband access to SVR’s corporate bank account where the payments were deposited. Husband wrote checks from the corporate account, and the parties used funds from that account to make improvements on their Henry County property.

In light of the circumstances surrounding the joint titling of the assets and Wife’s subsequent conduct, Wife’s mere testimony that she gave no instructions on the titling is insufficient to prove her intent. Wife was required to affirmatively present clear and convincing evidence that she did not intend to gift the Henry County property and the promissory note to Husband. By giving no instructions, Wife effectively allowed the joint titling and then did nothing to indicate any intent to maintain the assets as her separate property. This evidence does not “instantly tilt the scales in [Wife’s favor] when weighed against the evidence in opposition.” Farnsworth, 108 S.W.3d at 839. Accordingly, Wife failed to overcome the presumption that the assets were transmuted into marital property by joint titling.

The trial court erred in classifying the Henry County real estate and the promissory note as Wife’s non-marital property because Wife did not present clear and convincing evidence to support that determination. The property items should have been classified as marital property and included in the court’s division of marital property. “Error in classifying property is not necessarily prejudicial, however, unless it materially affects the merits of the action.” Id. Reversal is required only if the error caused the division of property to be so unduly weighted in one party’s favor as to constitute an abuse of discretion. Jinks, 120 S.W.3d at 305.

The trial court valued the total marital estate at $45,006 and divided it equally between the parties. With the inclusion of the Henry County real estate and the promissory note, the total value of the marital property has increased to a minimum of $238,006. Since Wife was awarded both of these properties, she received total marital assets of $215,261 or 90% of the marital estate. The trial court’s classification error resulted in Wife receiving a disproportionate share of the marital property, particularly in light of the court’s intent to equally divide the marital estate.

The marital property division is so unduly weighted in Wife’s favor that it constitutes an abuse of discretion. Accordingly, the judgment is reversed and remanded to the trial court for reconsideration of the property division, consistent with this opinion.

All concur.

      . All statutory citations are to the Missouri Revised Statutes 2000, unless otherwise noted.

      . The trial testimony established that the minimum value of the Henry County real estate was $155,000 and the promissory note was for $38,000.


text:
    Clifton E. WINN (24.035), Appellant, v. STATE of Missouri, Respondent.
    No. WD 63448.
    Missouri Court of Appeals, Western District.
    Feb. 15, 2005.
    Susan Lynn Hogan, Appellate Defender, Kansas City, MO, for Appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before EDWIN H. SMITH, C.J., ELLIS and HOWARD, JJ.
   ORDER

PER CURIAM.

Clifton Winn appeals from the judgment denying his Rule 24.035 motion for post-conviction relief. In his sole point on appeal, he claims that the trial court clearly erred in overruling his motion because the plea court accepted his guilty pleas to both involuntary manslaughter and armed criminal action (ACA). He asserts that his conviction for ACA cannot stand because involuntary manslaughter, which requires a mental state of recklessness, cannot serve as the underlying felony for ACA, which requires a purposeful or knowing mental state.

Given the Missouri Supreme Court’s recent clarification in State v. Belton, 153 S.W.3d 307 (Mo. banc 2005) of the very contention raised by Winn, we affirm the motion court’s judgment. Rule 84.16(b).


author: LAWRENCE E. MOONEY, Presiding Judge.

text:
    STATE of Missouri ex rel. Jeremiah W. (Jay) NIXON, the Missouri Department of Natural Resources, and the Missouri Clean Water Commission, Respondents, v. MILL CREEK SEWERS, INC., and Joseph P. Afshari, Appellants.
    No. ED 84183.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 15, 2005.
    Application for Transfer to Supreme Court Denied April 5, 2005.
    Mary Jamis Kresyman, Clayton, MO, for appellants.
    Cheryl Caponegro Nield, Asst. Atty. Gen, Harry D. Bozoian, Asst. Atty. Gen., Jefferson City, MO, for respondent.
   LAWRENCE E. MOONEY, Presiding Judge.

Mill Creek Sewers, Inc., and Joseph P. Afshari appeal from the trial court’s judgment assessing a monetary penalty against the appellants. Because the appellants have failed to supply this Court with an adequate record on appeal, we dismiss the appeal.

In June of 1998, following a bench trial, the trial court entered judgment against the appellants requiring appellants to upgrade their wastewater treatment facility pursuant to a schedule and to pay an upfront $14,000 civil penalty. The judgment also set forth a schedule of penalties in the event appellants failed to comply with any of the compliance dates specified in the judgment. In September of 2008, the State of Missouri, the Missouri Department of Natural Resources, and the Missouri Clean Water Commission filed a motion for assessment of stipulated penalties. Based on evidence presented at prior hearings and the evidence presented at the hearing on the State’s motion, the trial court found the appellants had failed to comply in all respects with the trial court’s June 1998 judgment. In particular, the trial court found that the appellants had failed to timely upgrade their wastewater treatment facility at Mill Creek and had failed to pay the full civil penalty. The trial court noted that the appellants’ own evidence, as well as the State’s evidence, established appellants’ failure to comply. Accordingly, the trial court, in its judgment in this case, ordered the appellants to pay $558,000 to the State in accordance with the schedule of penalties set forth in the June 1998 judgment. The appellants filed this appeal.

It is an appellant’s duty to provide a full and complete record on appeal. Rhodes v. Zhang, 7 S.W.3d 7, 8 (Mo.App. E.D.1999). Rule 81.12(a) provides that the record on appeal shall contain all of the record, proceedings, and evidence necessary to the determination of all questions to be presented to us. This rale requires an appellant to file a transcript and prepare a legal file so that the record contains all the evidence necessary to determine the questions presented to this Court to decide. Jaggie v. Attaran, 70 S.W.3d 595, 597 (Mo.App.E.D.2002) citing Bastain v. Brown, 28 S.W.3d 494, 495 (Mo.App. E.D.2000). Without the required record, there is nothing for this Court to review. Id.

The appellants here claim the trial court abused its discretion in assessing the fine. However, the appellants failed to file a transcript of the hearings the trial court conducted on the assessment of penalties. The legal file reflects that trial proceedings were recorded. The appellants’ claims of trial-court error require a review of the evidentiary bases for the trial court’s decision. If an appellant fails to provide this Court with a record containing everything necessary to determine all questions presented to this Court, the appeal must be dismissed. Jaggie, 70 S.W.3d at 597; Buford v. Mello, 40 S.W.3d 400, 402 (Mo.App.2001); Bastain, 28 S.W.3d at 495; Rhodes, 7 S.W.3d at 8. At oral argument the appellants requested plain-error review of an unbriefed issue. We decline such review.

Appeal dismissed.

LAWRENCE G. CRAHAN, J., and MARY K. HOFF, J., concur.

      . Minute entries reflect that, subsequent to the trial court’s June 1998 judgment, the parties appeared and presented evidence before the trial court on several occasions.


text:
    STATE of Missouri, Respondent, v. Juane T. KENNELL, Appellant.
    No. ED 84222.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 15, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 5, 2005.
    Scott Thompson, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Deborah Daniels, Jefferson City, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN, J., and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Juane T. Kennell appeals the judgment entered upon a jury verdict convicting him of murder in the first degree, assault in the first degree, and two counts of armed criminal action. 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).


author: JOHN E. PARRISH, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Calvin J. WILLIAMS, Defendant-Appellant.
    No. 25919.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 25, 2005.
    Motion for Rehearing or Transfer to Supreme Court Denied March 18, 2005.
    Application for Transfer Denied April 26, 2005.

      Craig Johnston, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Dora A. Fichter, Asst. Atty. Gen., Jefferson City, for respondent.
   JOHN E. PARRISH, Presiding Judge.

Calvin J. Williams (defendant) was convicted, following a ■ jury trial, of forcible rape. § 566.030.1. Defendant was charged as, found to be, and sentenced as a persistent offender. § 558.018.2. This court affirms.

Defendant does not challenge the sufficiency of the evidence by this appeal, but alleges trial court error regarding jury selection and the admission of evidence related to the taking and testing of a sample of defendant’s blood. Facts recited, other than what is necessary to understand the nature of the charge against defendant, are limited to circumstances related to the issues presented on appeal. All evidence favorable to the state is accepted as true, including all favorable inferences drawn from the evidence. State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989). Evidence and inferences to the contrary are disregarded. Id.

On August 12, 2000, K.P. and her friend, Brian Reynolds, arrived at KP.’s apartment at Madison Towers Apartments in Springfield, Missouri. K.P. was not working due to a disability. Defendant was present with some other people near the entrance to the apartment building, although he did not live at Madison Towers. K.P. and Reynolds asked if anyone wanted to join them to play cards, after which defendant accompanied K.P. and Reynolds to KP.’s apartment. The three of them played cards and drank for two or three hours. Reynolds left the apartment. K.P. and defendant continued playing cards until he suddenly got up and grabbed her by the neck. He took her to the bedroom and raped her.

Point I is founded on the fact that defendant is African American and K.P. is Caucasian. Defendant asserts that the trial court erred in allowing the state to exercise a peremptory strike against Christine Blackwell, an African American member of the panel of prospective jurors. After the parties made their peremptory strikes, the following occurred.

MISS TOBIN [defense counsel]: Your Honor, I’d challenge [the state’s] strike of No. 29, Christine Blackwell.
THE COURT: Okay. And the basis?
MISS TOBIN: Your Honor, I believe they struck her for her race.
MRS. PATTERSON [assistant prosecuting attorney]: Your Honor, that’s a Batson[] challenge. I think that I have to give the Court a race-neutral reason for my striking her—
THE COURT: All right—
MRS. PATTERSON: And the reason . is that she told us that her brother had been prosecuted by our office for arson. That it was recent. That she did not feel that he was treated fairly by the police or by the Prosecutor’s office. I think that is reason for me not to want her to sit on this jury.
THE COURT: Was her brother even convicted?
MRS. PATTERSON: I didn’t ask.
THE COURT: I thought that my notes said that.
MRS. PATTERSON: It must be how she referred to it. I know I didn’t ask specifically, but she just must have said that he was convicted of arson.
THE COURT: Well, of course, the record would speak for sure to that but—
MRS. PATTERSON: From my point of view, it was the fact that she answered to my question about the police and to the prosecution that she did not believe she [sic] was treated fairly.
MISS TOBIN: And I don’t believe that was her testimony at all. She indicated that she had concerns about his treatment, but she indicated that she had no problem being fair and impartial in this case.
MRS. PATTERSON: Her answers to the ultimate questions are why I did not ask the Court to strike her for cause. Actually, the way it went was that I said: Was he treated fairly? She responded: I had concerns about that. Then, I asked: Was he treated fairly by the prosecution? She responded: I had concerns about that.
So, I didn’t ask the Court to strike her for cause, but I’ve given ample reason for using a peremptory.

The trial court denied defendant’s challenge to the state’s peremptory strike of Ms. Blackwell stating, “The Batson challenge is denied on the basis that the State explained that there were other reasons for cause. I mean, other reasons to strike, while not stricken for cause, there were other valid reasons.”

The procedure to be followed by trial courts in Missouri in addressing Batson challenges was enunciated in State v. Deck, 994 S.W.2d 527 (Mo. banc), cert. denied, 528 U.S. 1009, 120 S.Ct. 508, 145 L.Ed.2d 393 (1999).

In Batson, the United States Supreme Court prohibited the use of peremptory strikes to exclude potential jurors based on race, Batson, 476 U.S. at 97, 106 S.Ct. 1712, 90 L.Ed.2d 69 [(1986)],....
Missouri has adopted a three-step process for making a successful Batson challenge. State v. Parker, 836 S.W.2d 930, 939 (Mo.banc 1992). First, the defendant must object to the state’s peremptory strike and identify the protected class to which the prospective juror belongs. Id. The state is then required to provide a reasonably specific and clear, race and/or gender-neutral explanation for the strike. Id. If the state provides such an explanation, the burden then shifts to the defendant to show that the state’s explanation was pretex-tual and that the strike was actually motivated by the prospective juror’s race or gender. Id.
In evaluating the prosecutor’s explanation, the chief consideration is whether the explanation is plausible in light of the totality of the facts and circumstances surrounding the case. Id. While the presence of similarly-situated white or male jurors is probative of pretext, it is not dispositive. Id. This Court will reverse the trial court’s decision on a Batson challenge only upon a showing of clear error. Id.

Id. at 536-37.

The events during voir dire that produced the Batson challenge arose when the state inquired whether the members of the panel had personally been, or had a Mend or family member who had been, the victim of a crime, accused of a crime, or convicted of a crime. A number of panel members responded, including Ms. Blackwell. She stated her brother had been convicted of arson. She stated this had occurred “locally.” She was asked how long ago it had happened. She answered, “July.” The following colloquy then occurred between the assistant prosecuting attorney and the panel member.

MRS. PATTERSON: And did you know enough to have an opinion if the police treated him fairly?
VENIREPERSON BLACKWELL: I have an opinion about that.
MRS. PATTERSON: Okay. And so if we have police officers that testify here today, do you think you might hold the way your brother was treated somewhat against them?
VENIREPERSON BLACKWELL No, I could be fair.
MRS. PATTERSON: Okay. Was it SPD or Greene County?
VENIREPERSON BLACKWELL: Greene County.
MRS. PATTERSON: Okay. And did — Greene County did not investigate this case, and I’ll just let you know that.
Ms. Blackwell, did you follow the case such that you watched any part of the prosecution?
VENIREPERSON BLACKWELL: No.
MRS. PATTERSON: Do you have an opinion about how he was treated?
VENIREPERSON BLACKWELL: Fairly.
MRS. PATTERSON: Okay. And so do you think that would certainly have been someone from my office?
Do you think that that would be a problem in terms of your ability to be fair in this case?
VENIREPERSON BLACKWELL: I don’t believe so.
MRS. PATTERSON: Okay. And anything else about that situation?
VENIREPERSON BLACKWELL: No.

Contrary to the statements by the attorneys for both the state and defendant, Ms. Blackwell did not say she had “concerns” about her brother’s treatment in the arson case. However, the fact that the state’s race-neutral explanation of why it exercised its peremptory challenge to remove Ms. Blackwell was based on incorrect information does not, standing alone, require a finding that the strike violates the mandates of Batson. See State v. Koenig, 115 S.W.3d 408 (Mo.App.2003); State v. Bass, 81 S.W.3d 595 (Mo.App.2002). “The issue in a Batson challenge ... is not whether the reason given for a strike is true in fact, but whether the striking party believes it to be true; even if only a hunch, and the strike is not inherently racial on its face.” Bass, supra, at 611. A prosecutor may base a peremptory strike on past experience, “hunches,” or “horse sense,” without violating Batson so long as the basis for the strike is racially-neutral. State v. Smith, 944 S.W.2d 901, 912 (Mo. banc), cert. denied, 522 U.S. 954, 118 S.Ct. 377, 139 L.Ed.2d 294 (1997).

Ms. Blackwell stated that her brother had been recently convicted of arson. The arrest, prosecution, or incarceration of a venireperson’s relative is a race-neutral reason for exercising a peremptory challenge. State v. Deck, 994 S.W.2d at 537; State v. Johnson, 930 S.W.2d 456, 461-62 (Mo.App.1996). Although Ms. Blackwell did not state she had concerns about how her brother had been treated, she did state she had an “opinion” about how he was treated by police. The assistant prosecuting attorney and the defense attorney expressed beliefs that Ms. Blackwell stated such an opinion.

A prospective juror’s general demeanor such as inattentiveness, hesitation, or nonverbal communication, is a race-neutral explanation for the exercise of a peremptory strike. State v. Taylor, 18 S.W.3d 366, 372 (Mo. banc), cert. denied, 531 U.S. 901, 121 S.Ct. 238, 148 L.Ed.2d 170 (2000); State v. Deck, supra; State v. Miller, No. 83858, 162 S.W.3d 7, 2005 WL 43058 (Mo.App.E.D. filed Jan. 11, 2005). The assistant prosecuting attorney and defendant’s attorney apparently formulated their beliefs based on their observations of Ms. Blackwell and concluded that she had concerns about the treatment her brother received.

Defendant further argues that the state’s peremptory strike of Ms. Blackwell was pretextual because a similarly situated white panel member, Connie Bisby, was not stricken by the state and served as a juror at trial. Ms. Bisby requested to speak privately regarding voir dire inquiries. She explained that she and her husband had been arrested six years earlier; that he was convicted of a drug offense. She told the trial court and the attorneys that she “was more or less let go.” The events she described occurred in Greene County. Springfield city police were involved in the case. She was asked how she felt about how the police treated her. She answered, “The initial part of it, badly, but then — fairly.” The initial part of the events about which she complained involved execution of a search warrant. Ms. Bisby stated, in response to questioning by the assistant prosecuting attorney, that she and her husband had been treated fairly by the prosecution. She stated that there was nothing about the experience that left her feeling like she could not be fair to both sides in this case.

Action taken by the state with respect to a juror with similar circumstances to one struck is relevant in assessing whether a strike was racially motivated. State v. Davis, 894 S.W.2d 703, 710-11 (Mo.App.1995). However, determination of the question requires consideration of the totality of the circumstances, or as stated in Davis, “the entire ‘milieu’ of voir dire in examining the peremptory strikes of the State as part of a Batson challenge.” Id. at 711.

This court first notes that no issue was presented to the trial court regarding the claim that failure to strike Ms. Bisby demonstrated that the reasons given in striking Ms. Blackwell were pretextual. Arguably, the issue is not preserved for review by this court. As State v. Bass, supra, explains, quoting from State v. Pride, 889 S.W.2d 163, 165 (Mo.App.1994), “ ‘Where a defendant fails to lay a foundation for findings of pretext on the state’s explanations in the trial court, the defendant may not challenge the state’s explanations on appeal.’ ” 81 S.W.3d at 611. Regardless, the events involving Ms. Blackwell’s brother occurred a few months prior to the trial of this case. Ms. Bisby’s experience occurred six years before this trial.

A finding that a peremptory strike was properly used will not be overturned absent clear error. State v. Gray, 887 S.W.2d 369, 384 (Mo.banc 1994). A finding is clearly erroneous when “although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” State v. Antwine, 743 S.W.2d 51, 66 (Mo.banc 1987).

State v. Smith, supra.

A review of the entire record on voir dire directed to the issues raised before the trial court and addressed on appeal does not leave this court with the definite and firm conviction that the trial court committed a mistake in denying defendant’s challenge to the peremptory strike the state used to remove Ms. Blackwell. The trial court concluded that defendant did not rebut the state’s assertion that the challenge to Ms. Blackwell was not racially motivated. This court finds no abuse of discretion in that determination. Point I is denied.

Point II of defendant’s appeal argues that the trial court erred in denying defendant’s motion to suppress evidence and objections at trial to evidence regarding the taking and testing of a blood sample taken from defendant. Defendant argues the taking of the blood sample violated “his rights to be free from self-incrimination, counsel, and to be free from an unreasonable search and seizure.”

The events to which Point II are directed occurred following defendant’s arrest. Defendant was informed of his Miranda rights. He invoked those rights, telling the arresting officer he did not wish to speak to him without a public defender. Interrogation ceased and defendant was incarcerated.

Sergeant Robert Pitts contacted defendant the next day. Defendant was taken to an interview room. He was again read his Miranda rights. Sergeant Pitts was not aware that defendant had previously “invoked his rights” and had declined to speak to law enforcement personnel. Sergeant Pitts asked defendant for a blood sample. Defendant signed a form consenting to giving a blood sample. A blood sample was drawn and sent to the Missouri Highway Patrol laboratory. Analysis of the blood sample revealed defendant’s DNA was consistent with DNA present on the victim’s vaginal swab.

Defendant filed a motion to suppress evidence directed to the evidence obtained as a result of the taking of the blood sample. He also objected at trial to admission of testimony and other evidence related to the blood sample. The motion to suppress evidence was denied and the objections at trial overruled.

Under Miranda, once an individual requests to speak to an attorney, all interrogation must cease until an attorney has been provided. State v. White, 770 S.W.2d 357, 359 (Mo.App.1989). A violation of Miranda does not, however, vitiate consent to search if the consent was otherwise voluntarily given. Id. at 360. A request for consent to search is not an interrogation for purposes of Miranda because consent is not an incriminating statement. Id. at 359. A Miranda violation, however, is a factor to be considered in determining whether the consent was voluntary. Id. at 360.

Factors to consider, in addition to the Miranda violation, include the number of officers present when consent was given, the degree to which the officers emphasized their authority, whether any weapons were displayed, whether the person was in custody, whether any fraud was committed by officers, and the acts and statements of the person who consented to the search. Id. at 360.

Defendant was in custody at the time he signed the consent to give a blood sample. He was questioned by one officer, Sergeant Pitts. Defendant was not handcuffed. There is no evidence that Sergeant Pitts displayed a weapon or used coercion to procure defendant’s consent. The questioning, including the request for consent and defendant signing the consent form, was videotaped. The form defendant signed informed him he had a constitutional right not to be searched without a search warrant and the right to refuse to consent to a search.

After reviewing the videotape, the trial court denied defendant’s motion to suppress evidence. The trial court found defendant freely and voluntarily consented to submit to the blood draw based on the totality of the circumstances revealed at the evidentiary hearing.

The scope of review in considering a trial court’s ruling on a motion to suppress evidence is whether that ruling is supported by substantial evidence. State v. Granado, 148 S.W.3d 309, 311 (Mo. banc 2004). A trial court’s ruling will be reversed only if it is clearly erroneous. Id. This court concludes the trial court’s ruling was not clearly erroneous. Point II is denied. The judgment is affirmed.

BATES, C.J., and SHRUM, J., concur.

      . References to statutes are to RSMo Cum. Supp.1999.

      . See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

      . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    ALLIED WASTE NORTH AMERICA, INC. d/b/a BFI Waste Services of Kansas City, Respondent, v. Dick SLOSS d/b/a Sloss Systems, Inc., Appellant.
    No. WD 63676.
    Missouri Court of Appeals, Western District.
    March 8, 2005.
    Rehearing Denied May 3, 2005.
    Carl William Bussey, Kansas City, MO, for Appellant.
    Renee Sayer Robertson, Independence, MO, for Respondent.
    Before EDWIN H. SMITH, C.J., HOWARD and NEWTON, JJ.
   ORDER

PER CURIAM.

Appellant Dick Sloss appeals from the trial court’s judgment in favor of Respondent Allied Waste North America, Inc. Sloss claims that the trial court erred in denying his motion to dismiss for lack of personal jurisdiction and in admitting his entire deposition as evidence.

We affirm. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Robert Dale SCHLUP, Appellant.
    No. WD 63562.
    Missouri Court of Appeals, Western District.
    March 15, 2005.

      Kent Denzel, Columbia, MO, for Appellant.
    Deborah Daniels, Jefferson City, MO, for Respondent.
    Before BRECKENRIDGE, P.J., LOWENSTEIN and HARDWICK, JJ.
   ORDER

PER CURIAM.

Appellant raises one point following his jury conviction for forcible rape, forcible sodomy, kidnapping, and first-degree robbery. He asserts prejudicial error in the trial court overruling his motion for mistrial because of an answer of a prosecution witness as to the place of the arrest. Affirmed. Rule 30.25(b).


text:
    STATE of Missouri, ex rel., Jeremiah W. NIXON, Attorney General, State of Missouri, Respondent, v. Edward Allen MOORE, Appellant Pro Se.
    No. WD 63651.
    Missouri Court of Appeals, Western District.
    March 15, 2005.

      Edward A. Moore, Licking, pro se.
    Paul Harper, Jefferson City, MO, for respondent.
    Before HARDWICK, P.J., ULRICH and NEWTON, JJ.
   LISA WHITE HARDWICK, Judge.

The State of Missouri obtained summary judgment on a claim against Edward Allen Moore under the Missouri Incarceration Reimbursement Act (MIRA). Moore appeals, contending the case had been removed to federal court and, thus, the circuit court had no jurisdiction to grant summary judgment. We reverse the judgment because the removal case has not been remanded from the federal court.

Factual and PROCEDURAL HistoRY

Moore was convicted of first-degree assault and sentenced as a Class X offender to thirty years imprisonment in the custody of the Missouri Department of Corrections. While incarcerated, Moore filed a civil lawsuit against Correctional Medical Services (CMS) and obtained a judgment for $9,800 in damages.

Two months after the civil judgment was affirmed on appeal, the State of Missouri filed suit against Moore, in the Circuit Court of Cole County, seeking reimbursement for the costs of his incarceration under MIRA, § 217.825 et seq. Moore promptly removed the case to federal court in October 2001. Despite the removal, the circuit court proceeded with the case and granted the State’s summary judgment against Moore on March 27, 2002. It was not until after summary judgment was entered that the circuit court received an order from the federal court, on April 19, 2002, remanding the removed case.

On the date the case was remanded, Moore filed a motion for new trial, arguing the summary judgment was a nullity because the circuit court did not have jurisdiction to proceed prior to the remand. Three days later, on April 22, 2002, Moore filed a second notice to remove the case to federal court. The circuit court again proceeded to handle the case as if no removal had occurred. Pursuant to the previous entry of summary judgment on the MIRA claim, the circuit court ordered that all funds held by Moore be deposited into the court registry. On May 30, 2002, the court disbursed $6,266.16 of the deposited funds to the State as reimbursement for Moore’s incarceration costs. The court also denied Moore’s motion for new trial.

In July 2002, Moore appealed the summary judgment. We issued a decision in July 2003, reversing and remanding the case. State ex rel. Nixon v. Moore, 108 S.W.3d 813 (Mo.App.2003) (“Moore I”). We held that the circuit court lacked jurisdiction to grant summary judgment prior to the time it received the federal court’s order remanding the removed case. Id. at 820-21.

Upon our remand from Moore I, the State filed a second motion for summary judgment in the circuit court. Moore did not respond to the motion because no remand order had been received from the federal court on his second removal petition and, thus, he believed the circuit court had no jurisdiction to rule on summary judgment. On December 12, 2003, the circuit court granted the State’s second summary judgment motion. Moore appeals.

JURISDICTION

Although Moore brings six points on appeal, we need only address his first point challenging the circuit court’s jurisdiction, because it requires reversal. Jurisdictional issues present questions of law, which we review de novo and without deference to the circuit court’s determination. Hiler v. Dir. of Revenue, 48 S.W.3d 683, 685 (Mo.App.2001).

As in his prior appeal, Moore contends the circuit court lacked jurisdiction to grant summary judgment because no remand order has been entered by the federal court regarding the second removal. Pursuant to 28 U.S.C. §§ 1446(d) and 1447(c), the second removal was effected by the filing of Moore’s notice on April 22, 2002, and no further action could be taken by the state court until a certified copy of a remand order was mailed from the federal court. Moore I, 108 S.W.3d at 819.

The State contends there is an exception to the general rule that all proceedings are void after notice of removal in cases where an identical second removal notice has been filed. Relying on two North Dakota cases, the State argues the circuit court never lost jurisdiction because Moore’s second removal notice, which raised the same legal arguments as his first removal notice, was procedurally ineffective. Farm Credit Bank of St. Paul v. Ziebarth, 485 N.W.2d 788 (N.D.1992); Farm Credit Bank of St. Paul v. Rub, 481 N.W.2d 451 (N.D.1992). We note, however, that in both cases the second removal was determined procedurally ineffective only after the federal court had ordered the cases remanded. Similarly, in other cases cited by the State where removal was deemed improper and the state court retained jurisdiction, a remand order had been entered as required by 28 U.S.C. Section 1447(c). Bell v. Burlington N. R.R. Co., 738 P.2d 949 (Okla.App.1986); Wilson v. Sandstrom, 317 So.2d 732 (Fla.1975).

Here, any determination that Moore’s second removal was ineffective would be premature because the federal court has taken no steps to remand the case. Nor does the record provide any indication that the State has requested a remand order. Although the State argues the federal court has in effect dismissed the removal case by declaring in two orders (entered on July 11, 2002 and October 30, 2003) that it lacked federal subject matter jurisdiction over the removed claims, these orders did not remand Moore’s case to state court. As we explained in Moore I, the mailing of a remand order is the “operative jurisdictional event” that assures the state court of the finality of the federal court proceeding.

Requiring the state to wait to proceed with the case until after a certified remand order has been sent ensures that the federal court has indeed ceased to exercise jurisdiction over the merits of the case. Under the case law of most circuits, federal courts have the power to review, alter, or reverse an erroneous order of remand during the short period between the signing of a remand order and the certification and mailing to the state court.... Because remands are not appealable, 28 U.S.C. § 1447(d), it makes sense to allow the federal district court an opportunity to correct any error or misunderstanding before the remand order is final.

108 S.W.3d at 818. (citations omitted) A certified copy of the remand order mailed from the federal court is the only “rehable notice of remand” that re-eonfers jurisdiction on the state court. Id.

Moore effected his second removal on April 22, 2002. The removal deprived the circuit court of jurisdiction to proceed on his claims “unless and until the case is remanded.” 28 U.S.C. § 1446(d). The State does not dispute that no remand order has been entered or mailed by the federal court on the second removal. Accordingly, the circuit court did not have jurisdiction to enter summary judgment against Moore on December 12, 2003. The judgment is reversed, and the cause is remanded with no further proceedings to occur until the circuit court receives a certified copy of a remand order mailed from the federal court.

All concur.

      . See State v. Moore, 882 S.W.2d 253 (Mo.App.1994).

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

      . Section 1446(d) provides:
      Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.
      Section 1447(c) provides in relevant part:
      ... If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.... A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case.


text:
    HEALTH CAPITAL CONSULTANTS, L.L.C., Respondent, v. Lu-Jean FENG, M.D., Appellant.
    No. ED 84589.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 22, 2005.
    Peter A. Gianino, Jr., Clayton, MO, for appellant.
    Randall David Grady, Clayton, MO, for respondent.
    Before: CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Lu-Jean Feng (“Feng”) appeals from a Judgment and Order entered in the St. Louis County Associate Circuit Court on April 5, 2004 in favor of Health Capital Consultants L.L.C. (“HCC”) and against Feng on HCC’s claim of breach of contract. Feng raises five points on appeal. First, she alleges that the trial court erred in failing to dismiss the lawsuit in that the court lacked personal jurisdiction over her because she did not have sufficient minimum contacts with Missouri. Feng also alleges that the trial court erred in enforcing the forum selection clause in her contract with HCC because it was unjust and unreasonable. Further, Feng argues that the trial court erred in entering judgment in favor of HCC and against her, because she was not a real party in interest to the HCC agreement in that she did not sign it. Next, Feng argues that the trial court erred in entering judgment in favor of HCC and against her, because the contract with HCC, including the forum selection clause, was extinguished by the court order of the case filed in Cuyahoga County, Ohio (“Ohio Case”), which terminated the appointment of HCC. Lastly, Feng contends that the trial court erred in entering a judgment in favor of HCC because HCC failed to present a submissible case for breach of contract in that HCC failed to prove that it provided any services of value to Feng. We find no error and affirm.

No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

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


author: PAUL M. SPINDEN, Presiding Judge.

text:
    Linda Kay TAYLOR, Respondent, v. RICHLAND MOTORS and John M. Hawkins, Appellants, and Hillcrest Bank, Defendant.
    Nos. WD 64012, WD 64013.
    Missouri Court of Appeals, Western District.
    March 22, 2005.

      John Dorsey, Claycomo, for Appellant.
    Lawrence Gerard Rebman, Kansas City, for Respondent.
   PAUL M. SPINDEN, Presiding Judge.

In this dispute over Linda Kay Taylor’s purchase of a car from Richland Motors, the circuit court entered summary judgment against Richland Motors and John M. Hawkins, a notary public, after they did not file an answer to Taylor’s petition or respond to her requests for admissions. Because the facts deemed admitted do not make a submissible case and because parties are disputing material issues of fact, the circuit court erred in granting summary judgment. We, therefore, reverse the circuit court’s judgment and remand for further proceedings.

Before Taylor could complete the purchase of a car from Richland Motors, she was hospitalized for injuries suffered in an automobile collision. One of Richland Motors’ salesmen went to her hospital room and persuaded her to sign a promissory note and a deed of trust on her house to ensure the note. The salesman took the note to Taylor’s daughter, for whom Taylor was purchasing the car, and had her sign the note, too. The salesman then presented the note to Hawkins who attested that Taylor and her daughter had appeared before him and had voluntarily signed the note. Hillcrest Bank accepted the deed of trust. A month later, Taylor and her daughter signed other loan papers at Richland Motors. These papers apparently have been lost and are not part of the record.

Taylor declared bankruptcy almost a year later. She relinquished her car to Hillcrest Bank to satisfy her promissory note. Taylor sold her house and learned at closing that the car’s purchase price had been deducted from the sale proceeds to satisfy Hillcrest Bank’s lien even though Taylor had already relinquished the car to the bank.

In 2008, Taylor sued Hillcrest Bank, Richland Motors, and Hawkins. Hillcrest Bank settled with Taylor. Richland Motors and Hawkins did not respond to Taylor’s lawsuit.

Taylor moved for summary judgment after Richland Motors and Hawkins did not respond to her requests for admissions. On the day of trial, Richland Motors and Hawkins asked the circuit court for leave to file an answer and to respond to Taylor’s requests for admissions. The circuit court denied the defendants’ motions and granted summary judgment for Taylor. The circuit court ruled that Taylor was entitled to “$11,649.57 as damages, $129.02 in costs and expenses and $8,815.00 in Attorneys’ fees from the defendants.” Richland Motors and Hawkins appeal.

Among their allegations on appeal is that the circuit court did not have jurisdiction because Taylor’s petition did not aver a valid cause of action against them. Section 517.081.1, RSMo 2000, governs what is required of a petition filed in the associate division of circuit court. This is because the Supreme Court, pursuant to authority granted to it in Mo. Const, art. V, Section 5 (1945), declared in Rule 41.01(d), “Civil actions pending in the associate circuit division shall be governed by Rules 41 through 101 except where otherwise provided by law.” Section 517.031.1 says, “The plaintiff shall file a written petition containing the facts upon which the claim is founded.... The pleadings of the petition shall be informal unless the court in its discretion requires formal pleadings.”

The circuit court did not require formal pleadings in this case. In her petition, Taylor asserted:

... On December 1, 1994, while [Taylor] was still in the hospital under the influence of pain medication, morphine, Demerol and vicodin, a salesman from Richland Motors came without warning into [Taylor’s] hospital room bringing with him a deed of trust and a promissory note and encouraged [Taylor] to sign same against her home as collateral for a car ... he was trying to sell to [Taylor’s] sixteen year old daughter, Melissa Lynn Purvis....
... Said salesman from Richland Motors then went to [Taylor’s] house and presented the promissory note to [Plaintiffs] sixteen year old daughter for her signature, stating he would bring the car to her immediately after she signed the document and pointed out that her mother had “okayed” the transaction with her signature. Whereupon, [Taylor’s] minor daughter signed the promissory note. ...
... On December 1, 1994, the salesman from Richland Motors presented said deed of trust and promissory note to Defendant, John M. Hawkins, a Notary for Platte County, Missouri[,] who falsely attested to the fact that [Taylor] presented herself to him on December 1, 1994, and signed said deed of trust of her free will. ...
... Defendant John M. Hawkins further broke his Notarial oath by writing in the date of the Notarization on said deed of trust as December 8, 1994, a date 7 days after the date of the deed of trust and the date of the Notary block he attested to. ...

Taylor prayed for the circuit court to “adjudge and decree that the deed of trust between the parties was maliciously and fraudulently gottenf.]”

In determining whether or not a petition states a claim for which relief can be granted, courts must interpret the petition’s allegations liberally by according to them every reasonable inference. Grewell v. State Farm Mutual Automobile Insurance Company, Inc., 102 S.W.3d 33, 36 (Mo. banc 2003). To state a cause of action, a petition must aver substantive principles of law that entitle the plaintiff to relief, and it must aver ultimate facts sufficient to inform the defendant of the underlying events that the plaintiff contends gave rise to the cause of action. Ritterbusch v. Holt, 789 S.W.2d 491, 493 (Mo. banc 1990). An informal petition is sufficient if it advises the defendant of the nature of the action and “suffices to bar another action thereon by plaintiff.” Pemiscot County Memorial Hospital v. Bell, 770 S.W.2d 499, 502 (Mo.App.1989) (quoting Kershner v. Hilt Truck Line, Inc., 637 S.W.2d 769, 771 (Mo.App.1982)).

Taylor’s petition stated a cause of action for fraud against Richland Motors. It sufficiently advised Richland Motors that Taylor was suing it for fraud. Taylor, however, did not state a cause of action for fraud against Hawkins.

The elements of fraud are:

(1) a representation, (2) its falsity, (3) its materiality, (4) the speaker’s knowledge of its falsity, or his ignorance of its truth, (5) the speaker’s intent that it should be acted on by the person and in the manner reasonably contemplated, (6) the hearer’s ignorance of the falsity of the representation, (7) the hearer’s reliance on the representation being true, (8) his right to rely thereon, and (9) the hearer’s consequent and proximately caused injury.

Rhodes Engineering Company, Inc. v. Public Water Supply District Number 1 of Holt County, 128 S.W.3d 550, 567 (Mo.App.2004). Taylor did not allege that she relied on Hawkins’ false attestations. She does allege that Hillcrest Bank “examined said deed of trust and accepted it with the illegal signature and notarization.” But she has no cause of action against Hawkins based on Hillcrest Bank’s reliance on Hawkins’ false statement. Hence, Taylor’s claim that the deed of trust was “maliciously and fraudulently gotten” did not state a claim for fraud against Hawkins.

But Taylor also prayed that the circuit court “adjudge and decree that [she] was wronged by the Defendants.” Conceivably, the circuit court could have concluded that Taylor was asserting a civil conspiracy claim against Richland Motors and Hawkins.

A claim for civil conspiracy must establish that two or more persons, with an unlawful objective, committed at least one act in furtherance of a conspiracy after a meeting of the minds and thereby damaged plaintiff. Rice v. Hodapp, 919 S.W.2d 240, 245 (Mo. banc 1996). “Conspiracy is not itself actionable in the absence of an underlying wrongful act or tort.” Williams v. Mercantile Bank of St. Louis NA, 845 S.W.2d 78, 85 (Mo.App.1993). Taylor’s conspiracy claim appears to rest on Richland Motors’ fraud and Hawkins’ breach of his official duties as a notary public. Taking Taylor’s allegations as true, Richland Motors conceivably committed fraud, and Hawkins falsely attested to several things. Applying the more lenient pleading standards of associate circuit court, we infer that these wrongful acts were part of an overall plan or agreement to trick Taylor into unwittingly executing a deed of trust on her house.

Taylor’s petition, therefore, stated causes of action for fraud against Richland Motors and civil conspiracy against Rich-land Motors and Hawkins. Thus, we proceed to review the circuit court’s decision to grant Taylor’s motion for summary judgment.

In reviewing summary judgment, we view the evidence in a light most favorable to Richland Motors and Hawkins, affording them the benefit of all reasonable inferences. ITT Commercial Finance Corporation v. Mid-America Marine Supply Corporation, 854 S.W.2d 371, 376, 382 (Mo. banc 1993). Summary judgment requires that the parties not be disputing any issue of material fact and that the party seeking summary judgment be entitled to judgment as a matter of law. Rule 74.04(c)(6); ITT Commercial Finance, 854 S.W.2d at 377.

“The key to summary judgment is the undisputed right to judgment as a matter of law; not simply the absence of a fact question.” ITT Commercial Finance, 854 S.W.2d at 380. Because summary judgment is “an extreme and drastic remedy,” we exercise great caution in affirming it because the procedure cuts off the opposing party’s day in court. Id. at 377. We must “sustain the trial court’s award of summary judgment if the judgment can be sustained under any theory” supported by the summary judgment record. Rodgers v. Czamanske, 862 S.W.2d 453, 458 (Mo.App.1993) (citing Zafft v. Eli Lilly & Company, 676 S.W.2d 241, 243 (Mo. banc 1984)).

The circuit court erred in granting summary judgment. Although Rule 59.01(a) permitted the circuit court to deem Richland Motors and Hawkins to have admitted the matters submitted in Taylor’s requests for admissions, those facts, viewed in a light most favorable to Richland Motors and Hawkins as the non-moving parties, did not make submissible cases against them. Neither admitted facts establishing that they conspired with one another or agreed to work toward an unlawful objective. Richland Motors did not admit that it knowingly made a false, material representation to Taylor or that it concealed material information from Taylor in breach of its duty to disclose it to her. One who does not disclose a fact that he knows may justifiably induce another to act in a business transaction is obligated to disclose the fact only if he is under a duty to do so. Taylor does not assert facts in this case that gave rise to such a duty. Nor did Richland Motors admit that it intended for Taylor to rely, or that she had a right to rely or that she did rely, on any statement made by it.

Taylor’s petition did allege facts that were not included in her requests for admissions, but, even though Richland Motors and Hawkins did not answer Taylor’s petition, the circuit court erred if it deemed them to have admitted these allegations. No answer is required of a defendant in a petition filed in the associate division of circuit court, and, if an answer is not filed, the circuit court is to deem the petition’s averments to be denied. Section 517.031.2, RSMo 2000.

The facts established by Taylor’s requests for admissions, therefore, did not establish liability. Genuine issues of material fact remain on Taylor’s claims of fraud against Richland Motors and for civil conspiracy against Richland Motors and Hawkins. We, therefore, set aside the circuit court’s summary judgment and remand for further proceedings on Taylor’s claims.

Before remanding, however, we consider Richland Motors’ and Hawkins’ contention that the circuit court abused its discretion by refusing to allow them leave to file answer to Taylor’s petition. We disagree.

Although Section 517.031.2 reheves a defendant of an obligation to file an answer to a petition filed in the associate division of circuit court, defendants must file a response if they want to assert an affirmative defense. Richland Motors and Hawkins wanted to assert an affirmative defense, the running of the statute of limitations.

Section 517.031.3 provides that the circuit court “may extend the time for filing any pleading” for good cause. Richland Motors and Hawkins did not argue that their inaction was the result of excusable neglect, and we do not discern excusable neglect from the record. Taylor filed her petition on April 3, 2003. Authorities served Richland Motors on April 28 and Hawkins on August 12. Each had thirty days from the date of service to answer and to assert affirmative defenses. Rule 55.25(a). Neither filed a responsive pleading. Richland Motors’ and Hawkins’ motion did not argue or demonstrate that their not filing was excusable. They argued only that they wanted to assert a defense and that filing an untimely answer would not prejudice Taylor. On appeal, they still do not explain why their conduct constituted excusable neglect.

They cite Neenan Company v. Cox, 955 S.W.2d 595 (Mo.App.1997) and Clark v. Booth, 660 S.W.2d 316 (Mo.App.1983), but these cases involved parties seeking leave to amend a pleading — not file one for the first time. The circuit court did not abuse its discretion in refusing Richland Motors’ and Hawkins’ request to file an answer out of time.

VICTOR C. HOWARD, Judge, and THOMAS H. NEWTON, Judge, concur.