author: SHERRI B. SULLIVAN, J.

text:
    GOLDEN DELTA ENTERPRISES, Plaintiff/Appellant, v. CITY OF ARNOLD, Missouri, Defendant/Respondent.
    No. ED 84233.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 14, 2004.

      Phillip Kent Gebhardt, Desoto, MO, for appellant.
    Robert Kevin Sweeney, Kirkwood, MO, for respondent.
   SHERRI B. SULLIVAN, J.

Golden Delta Enterprises (Appellant) appeals from the trial court’s judgment denying Appellant’s petition seeking a declaratory judgment regarding the non-existence of a sewer lien on certain real estate located in the City of Arnold (Arnold). We affirm.

Factual and Procedural Background

Appellant is an unincorporated business trust organization doing business in the State of Missouri. On March 12, 2003, Appellant acquired by Trustee’s Deed certain property commonly known as 1919 Old Missouri State Road (hereinafter referred to as the Property) located within the corporate limits of Arnold. Appellant recorded the Property with the Jefferson County Recorder of Deeds on March 28, 2003.

Arnold is a municipal corporation organized pursuant to Chapter 77 as a third-class city in the State of Missouri. Arnold was incorporated in September 1973. On May 20, 1999, Arnold passed an Ordinance No. 16.139, as required by statute, establishing a sanitary sewer district, known as the East-West Grandview Sanitary Sewer Subdistrict (hereinafter referred to as the Subdistrict). On March 16, 2000, Arnold enacted Ordinance No. 16.145 (hereinafter referred to as Ordinance No. 16.145 or the Ordinance). Ordinance 16.145 authorized a special tax bill to be issued allocating a share of the costs for the public work provided in constructing the sewers located within the geographic boundaries of the Subdistrict to the parcels of real property within the Subdistrict, including the Property.

Arnold maintains, and Appellant does not dispute, that there has been no challenge to the allocation of costs for the actual construction of the sanitary sewers within the Subdistrict. However, the assessment for the Property was not paid when due. Upon the sale of the Property, Arnold notified the title company that an assessment was due. Prior to trial of this matter, the assessment was not paid.

On May 6, 2003, Appellant filed its petition seeking a declaratory judgment that Arnold “failed to perfect any lien for sewer connection or user charges under § 250.234, RSMo, against [the Property] prior to the date of acquisition of said property by [Appellant] on or about March 12, 2003.... ” After a bench trial, the trial court denied Appellant’s petition. This appeal follows.

Points on Appeal

Appellant presents four points on appeal, each challenging the trial court’s judgment in favor of Arnold, maintaining that the judgment was in error for the following reasons: (I) Appellant took title to the property free and clear of any lien or claim of Arnold under the Missouri Recording Statutes; (II) Appellant took title to the property free and clear of any lien or claim of Arnold under the “first in time, first in right” rule, as the lien evidenced by the 1999 Deed of Trust was superior or senior to the lien purportedly created by Ordinance No. 16.145 or by the issuance of a special tax bill in 2000, and the foreclosure of the 1999 Deed of Trust extinguished any perfected or unperfected lien, if any, in favor of Arnold purportedly created by Ordinance No. 16.145 or the issuance of a special tax bill under the Ordinance, and no statute provides for the priming of the Deed of Trust by the Ordinance or any special tax bill issued under said ordinance; (III) no substantial evidence supported a judgment that the Property was described in Ordinance No. 16.145 or the special tax bill issued under the Ordinance; and (IV) no substantial evidence was adduced proving that a valid special tax bill was issued evidencing a debt that was due and capable of supporting a lien against the property; therefore, under the “no debt, no lien” rule, there can be no outstanding lien against the property-

Standard of Review

The standard of review in a court-tried case is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). The judgment of the trial court will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence or it erroneously declares or applies the law. Id. Neither party in this case requested findings of fact or conclusions of law, nor did the trial court make any findings of fact. As such, Supreme Court Rule 73.01(a)(3) provides that “[a]ll fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached.” See also Lueckenotte v. Lueckenotte, 34 S.W.3d 387, 394 (Mo.banc 2001).

Discussion

Appellant maintains that it took title to the Property free and clear of any lien or claim of Arnold under both (1) the Missouri Recording Statutes and (2) the “first in time, first in right” rule. We discuss these two points together because they are both in error for essentially the same reason.

The Missouri Recording Statutes and the “First in Time, First in Right Rule”

Appellant claims that after the March 12, 2003 foreclosure sale in which it acquired the Property, recorded on March 28, by Trustee’s Deed in foreclosure of the equity of redemption under a certain Deed of Trust dated July 27, 1999 and recorded on August 2, 1999, it became aware of Arnold’s claim for a sewer lien on the Property.

Appellant acknowledges that Ordinance No. 16.145, adopted on March 16, 2000, authorizes Arnold to issue special tax bills for sewer improvements. However, Appellant maintains that Arnold did not record any notice of the sewer lien in the Jefferson County Recorder of Deeds. Appellant asserts that no ordinances were in effect on August 2, 1999, the date the 1999 Deed of Trust was recorded, that purported to levy any assessments or liens against the Property for the sewers within the Subdistrict.

Appellant cites the following statutes in support of its point.

Section 442.380. Instruments to be recorded
Every instrument in writing that conveys any real estate, or whereby any real estate may be affected, in law or equity, proved or acknowledged and certified in the manner herein prescribed, shall be recorded in the office of the recorder of the county in which such real estate is situated.
Section 442.390. Notice imparted from time of filing for record
Every such instrument in writing, certified and recorded in the manner herein prescribed, shall, from time of filing the same with the recorder for record, impart notice to all persons of the contents thereof and all subsequent purchasers and mortgagees shall be deemed, in law and equity, to purchase with notice.
Section 442.400. Not valid until recorded
No such instrument in writing shall be valid, except between the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the recorder for record.

(Emphasis supplied by Appellant).

Appellant maintains that Ordinance No. 16.145 and/or the special tax bill issued under the authority of Ordinance No. 16.145 purport to be instruments in writing that affect real estate, and they were not recorded in the Jefferson County Recorder of Deeds prior to Appellant’s purchase of the Property. As such, concludes Appellant, Appellant was a bona fide purchaser for value without actual notice of the unrecorded special tax bill or hen in favor of Arnold, and Appellant took the Property free and clear of any such bill or lien.

Appellant essentially argues that Arnold’s assessment against the Property is akin to a real estate transaction requiring that an instrument be filed with the Recorder of Deeds. Appellant presents no authority for such a proposition. Rather, under Section 88.812, Arnold has a statutory right, as a third-class city, to subject certain properties to a special tax:

Section 88.812. Special assessments for improvements authorized — plans and cost estimates, publication of — public hearing required, when — attorney and engineering fees, limit on- — -lien, duration of
In all third class cities, fourth class cities, towns and villages, and all cities having a constitutional charter or a special charter, the assessments made for constructing and repairing sidewalks and sidewalk curbing, and for sewers, and for grading, paving, excavating, macadamizing, curbing and guttering of any street, avenue, alley, square, or other highway, or part thereof, and repairing the same, or for any other improvement ... shall be known as “special assessments for improvements”, and shall be levied and collected as a special tax, and a special tax bill shall issue therefor and be paid in the manner provided by ordinance.... all the tax bills shall become due and payable sixty days after the date of issue thereof, except in the case of tax bills payable in installments as herein provided; and, every special tax bill shall be a lien against the lot or tract or parcel of land described in said special tax bill for a period of ten years after date of issue. ...

(Emphasis supplied by the Court). Appellant is essentially disclaiming responsibility to pay for an improvement that benefited his property, just like it benefited all the other properties in the Subdistrict.

Appellant also claims that under the “first in time, first in right” rule the lien evidenced by the 1999 Deed of Trust was superior or senior to the lien purportedly created by Ordinance No. 16.145 or by the issuance of a special tax bill thereunder in 2000. Appellant argues that the foreclosure of the 1999 Deed of Trust extinguished any perfected or unperfected lien in favor of Arnold purportedly created by Ordinance No. 16.145 or the issuance of a special tax bill under the Ordinance.

For those unfamiliar with the colloquial phrase “first in time, first in right,” the Uniform Commercial Code (UCC), which has been adopted in this state, provides the rules to be applied in determining the priority of conflicting security interests. First Nat. Bank of Steeleville, N.A. v. Erb Equipment Co., Inc., 921 S.W.2d 57, 61 (Mo.App. E.D.1996). The primary rule is that “[cjonflicting security interests rank according to priority in time of filing or perfection.” Id.; Section 400.9-312(5)(a).

Once again, Appellant presents no authority that special tax bills issued for improvements made by third-class cities under Section 88.812 are subject to the “first in time, first in right” rule of perfecting a security interest. The special tax bill at issue has no other requirements for its issuance than those set forth under Chapter 88. The special tax bill at issue was issued on March 16, 2000, and is a lien against the Property for ten years. Section 88.812. It is merely a tax bill assessed against the Property that Appellant owns for improvements to the Property. The Property has benefited from the improvements made within the Subdistrict and now Appellant has to pay the bill for those improvements. Appellant’s first two points on appeal are denied.

In its third point, Appellant claims that no substantial evidence supported a judgment that the Property was described in Ordinance No. 16.145 or the special tax bill issued thereunder.

Section 88.812 and Section 7 of Ordinance No. 16.140 require special tax bills to describe each lot or tract or parcel of land assessed. Section 217 of Ordinance No. 16.145 describes the Property as follows:

Against Maxville Terrace
With parcel identification number 019.030.02002027
Belonging to Lawrence M. Kempf and wife
Assessment: $5,687.91

Appellant maintains that this identification of the Property does not contain any recitation of the full legal description of the Property. Appellant cites Podlesak v. Wesley, 849 S.W.2d 728 (Mo.App. S.D.1993), in which the evidentiary foundation for describing real estate by a tax assessor’s parcel identification number was discussed. Appellant maintains that the Podlesak court stated that a parcel identification number was insufficient. However, the Podlesak court also stated that:

There was no evidence or showing, however, as to what information is available through the land parcel identification numbers in the assessor’s office to assist in identifying the property intended to be conveyed. . This is especially pertinent since reference to extrinsic evidence is permissible and one of the affidavits indicated the property could be located.
If the land description is sufficiently definite that one reasonably skilled in determining land locations can locate it, it is sufficient. Mason v. Whyte, 660 S.W.2d at 386.

Id. at 732. In the instant case, the unre-futed testimony of Arnold City Administrator John Brazeal (hereinafter referred to as Brazeal) established that the Property was within the Subdistrict. The trial court apparently found Brazeal’s testimony to be credible. Appellant argues that no evidentiary foundation was laid that would allow the trial court to conclude that the Property was described by the Jefferson County Assessor’s parcel identification number shown in Section 217 of Ordinance No. 16.145. However, Appellant does not specify how no foundation was laid but merely cites to the portion of the transcript where Appellant objected to Bra-zeal’s testimony on the basis of lack of foundation. The trial court allowed Bra-zeal to testify over Appellant’s objection and apparently found Brazeal’s testimony to be credible. We defer to the trial court’s findings on the matter of the credibility of witnesses. Mullenix-St. Charles Properties, L.P. v. City of St. Charles, 983 S.W.2d 550, 555 (Mo.App. E.D.1998). Point denied.

In his fourth and last point, Appellant maintains that no substantial evidence was adduced proving that a valid special tax bill was issued evidencing a debt that was due and capable of supporting a lien against the property; therefore, under the “no debt, no lien” rule, there can be no outstanding lien against the property.

Appellant points out the portion of Section 88.812 that provides that a special tax bill becomes a lien sixty (60) days after its issuance, “except in the case of tax bills payable in installments as herein provided.” Appellant maintains that the statute is silent on when the lien of a special tax bill payable in installments begins, and. that there is no evidence in this case as to when the special tax bill in question was issued. Appellant claims that the special tax bill issued by the City Clerk was not introduced into evidence, and that Exhibit E showed a partial payment. Thus, Appellant argues one can assume that the special tax bill was one due in installments, and since there was no evidence that the holder of the tax bill accelerated the amount due, then the amount of the debt purportedly owed to Arnold is not accurately reflected in Exhibit E. Without a debt being established by the evidence, reasons Appellant, citing Goetz v. Selsor, 628 S.W.2d 404, 406 (Mo.App. S.D.1982), there can be no lien.

This argument is without merit for several reasons. We shall only point out a few. Ordinance No. 16.145 is the special tax bill, and it was admitted into evidence as Exhibit D. The special tax bill was issued on March 16, 2000. Exhibit E is not a special tax bill. Exhibit E is a bookkeeping notice issued in the ordinary course of business to inform an individual or entity that a special tax assessment is now due and owing.

Again, the trial court found, and we discern no error in its finding, that Ordinance No. 16.145 conformed to the requirements of issuing a special tax bill under Chapter 88 for improvements made to the Subdistrict, of which the Property was a part. Once the tax bill was issued, it became a lien on the Property for a period of ten years. The special tax bill at issue was issued on March 16, 2000, and is a lien against the Property for ten years thereafter. Section 88.812. Point denied.

The judgment of the trial court is affirmed.

GARY M. GAERTNER, SR., P.J., and BOOKER T. SHAW, J., concur.

      . All statutory references, referred to as both Chapter and Section, are to RSMo 2000, unless otherwise indicated.

      . We note that the judiciary is not in a position to create a statutory requirement where there is none. If the legislature wanted to put a recording requirement in Chapter 88 it could have, but did not.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Sharon TWITTY, Respondent, v. ST. LOUIS COUNTY, Missouri, Appellant, and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Additional Party.
    No. ED 83862.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 14, 2004.
    Daniel Barlett, Associate County Counselor, Clayton, MO, for appellant.
    John J. Larsen, Jr., St. Louis, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

St. Louis County (“Employer”) appeals the Labor and Industrial Relations Commission’s (“the Commission”) decision finding Sharon Twitty (“Employee”) permanently and totally disabled and awarding her benefits. Employer argues the Commission erred in awarding benefits because: (1) Employee failed to give Employer notice of her injuries under Section 287.420, RSMo 1994; (2) Employee failed to satisfy her burden of proof that Employer was not prejudiced by her failure to provide statutory notice of her injuries; and (3) Employee failed to adduce evidence of treatment records to support the opinion of two experts who testified in support of her permanent and total disability status.

We have reviewed the briefs of the parties and the record on appeal and no error of law appears. The Commission’s decision is affirmed. No precedential or jurisprudential purposes would be served by an opinion restating the detailed facts and the principles of law. We have, however, provided a memorandum for the use of the parties only setting forth the reasons for this order affirming the decision pursuant to Rule 84.16(b).

      . The Second Injury Fund adopted the brief of Employer.


text:
    George Michael MARAMAN, Petitioner/Respondent, v. Laura Irene MARAMAN, Respondent/Appellant.
    No. ED 83549.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 14, 2004.
    Timothy Hill Battern, St. Louis, MO, for appellant.
    Craig Everett Hellmann, Washington, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Laura Irene Maraman appeals from the trial court’s Judgment and Decree of Dissolution dissolving her marriage to George Michael Maraman and awarding the parties joint legal and physical custody of their minor child. We have reviewed the briefs of the parties and the record on appeal and conclude that the trial court did not err. An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).


author: GLENN A. NORTON, Presiding Judge.

text:
    HABITAT FOR HUMANITY ST. LOUIS, Respondent, v. Junior KIRKWOOD and James R. DuBose, Appellants.
    No. ED 83877.
    Missouri Court of Appeals, Eastern District, Division Five.
    Dec. 14, 2004.

      Anthony D. Gray, St. Louis, MO, for appellants.
    William Sauerwein, Shawn Briner (co-counsel), St. Louis, MO, for respondents.
   OPINION

GLENN A. NORTON, Presiding Judge.

Junior Kirkwood and James DuBose appeal the default judgment entered against them on Habitat for Humanity’s petition for declaratory and injunctive relief. We dismiss the appeal.

The court entered an interlocutory order of default under Rule 74.05(b) after finding that Kirkwood and DuBose failed to file any responsive pleading or motion directed to Habitat’s petition. It concluded that, as a result, the defendants were in default and were not entitled to defend the allegations in Habitat’s petition; a jury trial on the merits was not necessary because Habitat sought only equitable relief. Contemporaneous with the order of default, the court entered judgment. Kirkwood and DuBose filed their notice of appeal and then filed a request with the appellate court to have the interlocutory order of default and judgment set aside. The legal file contains no record of a motion in the trial court to set aside or vacate the default judgment.

A default judgment cannot be appealed unless the trial court has previously heard a motion to set aside or vacate the judgment. Vonsmith v. Vonsmith, 666 S.W.2d 424 (Mo. banc 1984). Motions filed after the notice of appeal do not satisfy the Vonsmith requirement. Barney v. Suggs, 688 S.W.2d 356, 358 (Mo. banc 1985). Kirkwood and DuBose failed to timely file with the trial court a motion to set aside or vacate the default judgment, and direct appellate review is not available to them.

The appeal is dismissed. All motions pending in this Court are denied.

ROBERT G. DOWD, JR., J. and MARY K. HOFF, J., concur.


author: JOHN E. PARRISH, Presiding Judge.

text:
    Gene TIDWELL, Claimant-Appellant, v. WALKER CONSTRUCTION, Employer-Respondent and Security Ins. Co. of Hartford, Insurer-Respondent.
    No. 26159.
    Missouri Court of Appeals, Southern District. Division two.
    Dec. 16, 2004.

      Daniel H. Rau, Davis & Rau, P.C., Cape Girardeau, for Appellant.
    Patricia L. Musiek, McAnany, Van Cleave & Phillips, P.C., St. Louis, for respondent/employer.
   JOHN E. PARRISH, Presiding Judge.

Gene Tidwell (claimant) appeals a final award of the Labor and Industrial Relations Commission (the commission) denying compensation. This court affirms.

Chronology

This appeal has followed a proeedurally tortured path. The following is a chronology of relevant events occurring prior to reaching this court.

August 17, 2001 Claim for Compensation filed
October 10, 2002 Hearing before Administrative Law Judge (ALJ)
November 4, 2002 Final Award Denying Compensation entered by ALJ
November 25, 2002 Claimant filed his Application for Review by the commission
February 7, 2003 Claimant filed pleading denominated “Motion to Consider Additional Evidence and to Suspend Briefing Schedule”
March 10, 2003 Pleading opposing claimant’s request of February 7 filed by C.A. Walker Construction Co. (employer) and Frank Gates U.S.A. (insurer)
March 14, 2003 The commission entered order stating claimant’s request was granted and remanded case to ALJ “to hold a hearing to allow [claimant] to introduce additional evidence ... and for the employer to respond or object as appropriate”
April 8, 2003 Hearing before ALJ to receive evidence as directed commission’s March 14, 2003 order
May 15, 2003 Parties file joint motion requesting the commission to remand case for ALJ to enter award upon consideration of all the evidence
May 30, 2003 Motion to remand to ALJ to render new award denied
February 10, 2004 Final Award Denying Compensation entered by the commission

Facts

Claimant filed a claim for workers’ compensation based on injuries he alleged were suffered July 2, 2001. Claimant asserted he was injured while using a chain saw to remove a tree trunk while working for employer; that he felt a pull in his low back while working with the chain saw that worsened as he continued working. Following a hearing, the ALJ found claimant did not sustain an accident resulting in injuries arising out of and in the course of his employment on the date alleged. The ALJ entered an award denying compensation. Claimant sought review of the ALJ award by the commission.

The commission entered the final award denying compensation that is the subject of this appeal. The commission’s order includes the findings:

Subsequent to the trial of this matter and after the award of the [ALJ] was issued, the employee filed a motion to present additional evidence. The Commission remanded the matter to the Division of Workers’ Compensation (Division) for an evidentiary hearing to introduce this evidence for consideration by the Commission.
The transcript of that remand hearing was received by the Commission, and after careful review, the Commission finds that the evidence is not newly discovered and was available to the employee prior to the trial and further that even if admitted into evidence the proposed evidence lacks the probative value necessary to cause a change in the underlying decision to deny the employee benefits. Therefore the Commission denies the employee’s motion to introduce new evidence.

The commission found the award of the ALJ was supported by competent and substantial evidence and was in accordance with The Workers’ Compensation Law. The commission affirmed the ALJ’s award of no compensation and incorporated the award and decision of the ALJ in the commission’s award by incorporation by reference.

The findings adopted by the commission include:

The claimant was adamant that he hurt his back while using the chain saw on Monday afternoon, July 2, and that he had to leave work at noon the next day because of back pain. According to the claimant, Mr. McMullin was present on Monday running the bucket [in which claimant asserted he was located for purposes of trimming a tree at United Methodist Church in Kennett at the time of his alleged injury]. Mr. Walker [owner and operator of employer] verified that the claimant returned to Dexter with the truck early on the afternoon of July 3. However, the testimony of Bob Coleman and Robert McMullin, along with business records, show that that [sic] claimant was not working at the church on July 2, but that he was working at the Kennett school site (there was no tree trimming at the school site). That evidence further shows that the claimant last worked at the church on Thursday and Friday, June 28 and 29. He then worked for ten hours on Saturday, June 30, in Dexter at the Chamber of Commerce site. The evidence shows that Robert McMullin only worked in Kennett on June 28 and 29. The records confirm that the claimant worked during the morning of July 3 at the Kennett School.
The claimant was adamant that he told Dr. Jalal on three separate visits about the chain saw incident. However, Dr. Jalal’s notes do not record any such statement. Further, Dr. Jalal’s notes indicate that he had radicular symptoms for a month prior to his first visit on July 5. There was only one off-work slip from Dr. Jalal. There was no mention of a work-related accident in the radiology report from the Dexter Hospital. The first mention of a chain saw is contained in the report from Dr. Ray dated July 23, 2001. That report mentions a four-foot long chain saw and that he worked until the next day. In an independent reported dated October 19, 2001, Dr. Petkovich wrote: “He [the claimant] specifically stated he was walking on a chair rail and he twisted his lower back.” He did not record anything about a chain saw. Nowhere else is a chair rail mentioned.
In his deposition, the claimant denied that he had any hobbies. Robert McMullin testified that the claimant told him he thought he hurt himself water skiing. The claimant denied that he said that. He further denied that he had a boat or that he had ever water skied. However, a physical therapy note from August 6, 2001, stated: “I [the claimant] hurt really bad on Friday night. I took my ultra-light plane over to Kentucky lake [sic] and I could not stand to drive back.”

The ALJ’s findings, which the commission adopted, further state:

[T]o rule in the claimant’s favor, I would first have to find that Dr. Jalal on three separate occasions failed to record how the accident happened. I would also have to find that Dr. Jalal incorrectly stated that he had had radicular symptoms for a month and that the doctor had incorrectly recorded that the claimant told him he had passed a kidney stone. I would have to find that the Dexter Hospital incorrectly recorded the claimant’s history. I would also have to find that Dr. Petkovich mis-recorded the mechanism of injury. To paraphrase [another ALJ], it may be possible that one doctor mistakenly failed to note a cause of injury, but it is [sic] strains credibility to assume that three doctors did. Mason v. Hudson Foods, Inj. No. 94-153082 (1/28/99). I would further have to find that not only was Robert McMullin not credible, I would have to find that the employer’s business records were falsified. Further, not only were they falsified, but they were falsified in such a way as to verify part of his story but not others. I would also have to ignore that the claimant did not consider ultra-light flying to be a hobby. According to the evidence, [employer] has been in business for years. They have upwards to 50 people working for them. They have workers’ compensation claims as part of their business. Indeed, claims are part of the construction business. In order to find for the claimant, I would have to assume that this employer conspired to deny the employee benefits. I have not been convinced. Even assuming that the claimant got his days mixed up, he could not have been injured on the preceding Thursday or Friday. If he was injured on either of those days, he could not have work [sic] at the school for a half day the next day, nor could he have driven the truck back to the employer’s office in Dexter. Assuming that the job record for Monday July 2, 2001[,] was mistaken, he could not have been injured cutting trees, because Robert McMullin was working in Dexter on that date and was not operating the bucket lift.

The commission found that “claimant was not injured on the job on July 2, 2001. On that date he was working at the Kennett school and was not trimming trees at the Kennett Methodist Church. He could not have been injured trimming trees as he stated.”

Scope of Review

This court’s review is directed to questions of law. § 287.490.1. “We accord the commission the same deference that is due to the court’s judgment in a non-jury trial and are obliged to affirm if there is basis in the record for the decision.” Parker v. Springfield Ry. Services, 897 S.W.2d 103, 108. (Mo.App.1995). The whole record is considered to determine if there is sufficient competent and substantial evidence to support the award. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003).

Issues on Appeal

Point I contends the commission erred in denying claimant’s motion to consider additional evidence. Claimant argues the additional evidence he sought to have considered (and which is a part of the record before this court) was offered to cure defects and errors in the record on which the commission relied in entering its award of no compensation.

In declining to rule in claimant’s favor, the commission, pursuant to the findings of the ALJ it adopted, relied on Dr. Jalal’s records concerning claimant’s medical history, information contained in the Dexter Hospital’s records regarding claimant’s medical history, and the pronouncement in Dr. Petkovich’s records concerning “the mechanism of injury.” The commission further relied on employer’s business records. The evidence presented at the hearing before the ALJ on remand related to an error in the report from Dr. Petkovich on which the commission relied and evidence regarding claimant’s personal property tax records — evidence that those records did not include an assessment for an ultra light airplane. Claimant further testified that he had never presented information that he had injured his back flying an airplane to the healthcare provider that related that as part of his medical history.

The part of the commission’s findings to which Point I is directed is the determination that the evidence adduced at the hearing following the remand was not newly discovered evidence in that it was available to claimant before the initial hearing. Point I, however, does not question the commission’s assessment “that even if admitted into evidence the proposed evidence lacks the probative value necessary to cause a change in the underlying decision to deny [claimant] benefits.”

A party seeking a new trial on the ground of newly discovered evidence presented in the first incidence to the ALJ or the Commission must show the following: (1) the evidence came to the movant’s knowledge since the trial; (2) due diligence would not have uncovered the evidence sooner; (3) the new evidence is so material it would probably have produced a different result had it been presented at trial; (4) the new evidence is not merely cumulative of evidence already presented; and (5) the evidence is not offered to impeach the character or credibility of a witness. [Emphasis added.]

Wilson v. ANR Freight Systems, Inc., 892 S.W.2d 658, 664 (Mo.App.1994) (citation omitted).

Because the commission found that the “new evidence,” if presented at trial, would not have produced a different result, the issue claimant asserts in Point I is moot. Point I is denied.

Point II states:

[The commission] erred as a matter of law as there is a lack of sufficient competent evidence to warrant the award in that the same is based upon a defective record and the overwhelming amount of evidence demonstrated that [claimant] sustained and reported a work related injury to [employer].

Rule 84.04(d)(2) provides:

Where the appellate court reviews the decision of an administrative agency, rather than a trial court, each point shall:

(A) identify the administrative ruling or action 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.

Point II fails to explain in what respect evidence that was adduced overwhelmingly demonstrated claimant sustained a com-pensable injury. It does not explain why, in the context of the case, the legal reasons claimant relies on in claiming reversible error support the claim of error made by Point II. A point relied on that fails to meet requirements of Rule 84.04(d) preserves nothing for appellate review. Daniel v. Indiana Mills & Mfg., Inc., 103 S.W.3d 302, 307 (Mo.App.2003). This court has, nevertheless, reviewed the evidence presented at trial to ascertain whether the commission’s award is supported by the whole record.

This court is compelled to view evidence and all reasonable inferences therefrom in the light most favorable to the commission’s award. Baird v. Ozarks Coca-Cola/Dr. Pepper Bottling Co., 119 S.W.3d 151, 152 (Mo.App.2003). “Deference is given to the commission on issues of witness credibility, evidentiary conflicts, weight of evidence and factual inferences.” Id. “The commission is free to disregard the testimony of witnesses, even if no contradictory or impeaching evidence is introduced.” Cahall v. Riddle Trucking, Inc., 956 S.W.2d 315, 317 (Mo.App.1997). There is competent and substantial evidence, considering the whole record, which supports the commission’s award. Further opinion with respect to the issue asserted in Point II would have no prece-dential value. The commission’s determination of that issue is affirmed in compliance with Rule 84.16(b)(4). Point II is denied.

Point III argues that the commission erred in denying a joint motion for remand to the ALJ for more complete findings of fact following the April 8, 2003, hearing at which claimant presented additional evidence for the commission’s consideration. The parties filed a joint motion May 15, 2003, requesting further remand to the ALJ to permit him to enter award upon consideration of all the evidence. Claimant contends the motion was a stipulation; that “party stipulations are to be enforced.” He argues, therefore, failure to remand the case for entry of a new award was error.

A stipulation relating to an interest of a party that is wholly under that party’s control and does not affect the procedure of a case is binding and enforceable. State v. Jones, 539 S.W.2d 317, 318 (Mo.App.1975); Hanchett Bond Co. v. Glore, 208 Mo.App. 169, 232 S.W. 159, 160 (1921). However, a stipulation that affects the procedure of a case is not binding. State v. Jones, supra. Further, a stipulation in contravention of a statute is not permitted. See International Dehydrated Foods, Inc. v. Boatright Trucking, Inc., 824 S.W.2d 517, 520 (Mo.App.1992).

The procedure for reviewing and considering additional evidence in a workers’ compensation case is governed by statute. An ALJ has authority only “to hear and determine claims upon original hearing” absent remand by the commission “for a more complete finding of facts.” § 287.610.5. Remand for purposes of a more complete finding of facts is a procedural remedy, established by statute, that is discretionary with the commission. It is not something parties may require by stipulation.

The commission permitted claimant the opportunity to identify the evidence he sought to have added to the original record as newly discovered evidence. The evidence was presented before the ALJ on the basis of the commission’s March 14, 2003, order. The hearing at which the evidence was offered was held April 8, 2003. The record of the hearing enabled the commission to determine whether to admit the evidence and include it as part of the trial record. The commission determined the evidence did not qualify for admission as newly discovered evidence. This court finds no error in the procedure the commission followed and, for the reasons stated for purposes of resolving Point I, no error in its determination not to admit the evidence as newly discovered evidence. Point III is denied. The award is affirmed.

SHRUM and BARNEY, JJ., concur.

      . References to statutes are to RSMo 2000.


text:
    Daniel DELANA, Appellant, v. STATE of Missouri, Respondent.
    No. WD 63571.
    Missouri Court of Appeals, Western District.
    Dec. 21, 2004.
    Margaret Mueller Johnston, Asst. Public Defender, Columbia, joins on the briefs for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buehheim, Asst. Atty. Gen., Jefferson City, joins on the briefs for respondent.
    Before HAROLD L. LOWENSTEIN, P.J., PAUL M. SPINDEN, and JAMES M. SMART, JR., JJ.
   Order

PER CURIAM.

This is an appeal from a Saline County Circuit Court judgment overruling Appellant’s Rule 24.035 motion without an evi-dentiary hearing. Having carefully considered the contentions on appeal, we find no grounds for reversing the decision. Publication of a formal opinion would not serve jurisprudential purposes or add to understanding of existing law. The judgment is affirmed. Rule 84.16(b).


text:
    Mary E. OGLESBY, Appellant, v. PFIZER, INC., et al., Respondent, Kenbar Services, Inc., d/b/a Manpower Temporary Services, Defendant.
    No. WD 63247.
    Missouri Court of Appeals, Western District.
    Dec. 21, 2004.
    Leland F. Dempsey, Kansas City, for appellant.
    Jeffrey M. Place, Brian J. Fowler, Kansas City, for respondent.
    Before BRECKENRIDGE, P.J., HOWARD and SMART, J.J.
   ORDER

PER CURIAM.

Mary Oglesby appeals the entry of summary judgment against her and in favor of Pfizer, Inc., on her claim that Pfizer wrongfully discharged or discriminated against her because she exercised her rights under the Missouri Workers’ Compensation Act. Since a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment is affirmed. Rule 84.16(b).


author: RONALD R. HOLLIGER, Judge.

text:
    Chris Charles FITZWATER, Appellant, v. Kathy Lynette FITZWATER, Respondent.
    No. WD 63149.
    Missouri Court of Appeals, Western District.
    Dec. 21, 2004.

      James Rahm, Carrollton, for Appellant.
    Steven Petry, Kansas City, for Respondent.
   RONALD R. HOLLIGER, Judge.

Chris Fitzwater (“Husband”) appeals a judgment dissolving his marriage to Kathy Fitzwater (“Wife”) complaining that the trial court erred in its property division by dividing a marital asset (proceeds from the sale of the parties’ farm) that did not exist at the time of dissolution hearing and that had not been squandered by Husband. Reversed and remanded.

The decree of dissolution awarded wife a judgment against husband in the sum of $28,429.77. The majority of this amount, $18,696.27, was found by the trial court to be respondent’s share of proceeds from the sale of a marital farm in Ray County. Husband contends that the majority of the sale proceeds from the farm were spent on reasonable living expenses, not part of the marital estate at the time of trial, and thus not subject to division.

The Fitzwaters were married on March 23, 1979, and eventually separated in July 2000. Husband filed for dissolution . of marriage in November of 2002 and the judgment was issued on June 27, 2003.

The issue on appeal turns on the disposal of a Ray County farm purchased by the couple during the marriage. Prior to separation, the Ray County farm was sold and approximately $37,000 remained in proceeds after the mortgage was paid off. Husband used most of these proceeds to pay off various creditors. The record is clear as to the origins of some of the debts paid off with the sale proceeds: some were marital debts and others the husband incurred after separation. The record is unclear, however, as to many of the other debts paid off by the sale proceeds of the Ray County farm. Many of them could have been incurred prior to separation or after.

Wife argues that she was entitled to half of the proceeds from the sale of the Ray County farm. She alleges on appeal that Husband squandered the sale proceeds prior to the dissolution of the marriage.

Husband responds that the sale proceeds of the Ray County farm were not eligible for division as marital property because they were not in existence at the time of trial. He argues that the proceeds were spent on legitimate marital debts and that wife has not met her burden of producing evidence that he squandered the sale proceeds prior to dissolution.

STANDARD OF REVIEW

The trial court has broad discretion in the division of marital property and its distribution will only be disturbed on appeal if the distribution of marital property is so heavily and unduly weighted in favor of one party as to amount to an abuse of discretion. Conrad v. Conrad, 76 S.W.3d 305, 314 (Mo.App.2002). A reviewing court must defer to the trial court’s marital property division unless it is improper under the standard of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), or is an abuse of discretion. Ray v. Ray, 877 S.W.2d 648, 651 (Mo.App.1994).

DISCUSSION

Generally, the trial court cannot value and include in its division of marital property an asset that does not exist at the time of trial. This is because the appropriate date for valuing and determining marital assets is the date of trial. Conrad, 76 S.W.3d at 314. An exception to this general principle exists where a spouse is found to have secreted or squandered marital assets in anticipation of the marriage being dissolved. Id. In such a case the court may charge the offending spouse with the value of the secreted or squandered asset. Id.

An understanding of where the burden of proof and burden of production of evidence lies is essential to understanding the application of these principles at trial. The burden of injecting the issue of whether marital property has been secreted or squandered is on the spouse claiming such wrongful conduct. Id. at 315. Once raised, the burden of producing evidence shifts to the alleged wrongdoer spouse who must “account” for the asset by presenting evidence as to its whereabouts or disposition. Id. Matters of credibility and weight of the evidence are for the trial court. Love v. Love, 72 S.W.3d 167, 171 (Mo.App.2002). The burden of proof or persuasion, however, remains on the spouse who claims that the property has been secreted or squandered. Conrad, 76 S.W.3d at 315.

Applying these principles regarding the burden of production is difficult on this record because there is no stated claim or argument on the record below that Husband squandered or secreted the farm sale proceeds. There was, likewise, no evidence or contention that the proceeds still existed in some form at the time of trial. Nor is there any such finding by the trial court, which in its judgment merely states that the proceeds should “be shared equally.” We do not imply that the trial court was required to make an explicit finding absence a request because we can assume that the trial court made factual findings consistent with its judgment. McCarthy v. Dir. of Revenue, 120 S.W.3d 760, 761 (Mo.App.2003). But, there must be evidence to support such a finding. But the cross-examination by Wife and her testimony clearly indicated her disagreement with Husband incurring debts and spending these proceeds for living or farm expenses during the separation. We, therefore, consider whether the evidence would support a finding that Husband squandered the sale proceeds.

Whether in anticipation of such a claim or mere prudence, Husband, who was the petitioner below, presented evidence first about the farm sale, the net proceeds, and the debts that had been paid with those proceeds. Marital debt is debt incurred subsequent to commencement of the marriage and prior to legal separation unless an exception applies. Rawlings v. Rawlings, 36 S.W.3d 795, 798 (Mo.App.2001). Generally, marital debt is treated the same as living expenses for purposes of expenditures leading up to dissolution. See, Kester v. Kester, 108 S.W.3d 213, 223 (Mo.App.2003) (money spent on marital debt and living expenses could not be considered in the property division); Adams v. Adams, 108 S.W.3d 821, 831 (Mo.App.2003) (wife met her burden when she introduced evidence of using proceeds to pay marital debts and living expenses).

On appeal, Wife incorrectly argues that it was Husband’s burden of proof to convince the trial court that he had not squandered the proceeds and used the proceeds for legitimate purposes. As a result, her brief provides no assistance to support the trial court’s judgment. She argues merely that the trial court could have disbelieved Husband’s accounting and that, therefore, Husband has failed to satisfy his burden of proof. The record reflects that husband presented evidence to “account” for the use of the proceeds. Wife at all times had the burden of proof (persuasion) to show that Husband had squandered the sale proceeds. Conrad, 76 S.W.3d at 315. She presented no substantial evidence to satisfy that burden. For example, she complains that he paid personal property taxes out of the proceeds on assets he was awarded but that she paid her own personal property tax out of her income. That argument ignores the fact that income earned, to the extent that it still exists in some form, is also marital property. Comninellis v. Comninellis, 99 S.W.3d 502, 510 (Mo.App.2003). Wife’s argument also ignores that tangible property Husband acquired after the separation but before trial was marital property and properly treated by the trial court as such.

Wife’s most specific complaint is that Husband used some of the proceeds to pay for feed, supplies, and equipment in his farming operation, which he continued on other premises after the marital farm was sold to her parents. She admitted, however, that the cows and equipment for that farming operation were marital property and the trial court treated them as such. There is no authority that the post separation expenditure of marital funds for the maintenance of marital property is the squandering of marital property. She made no claim below that the farming operation had any other assets or value separate from the tangible property divided by the court. Ultimately, Wife’s real complaint is not that the sale proceeds were expended but with the manner of their use. Her evidence does not support the conclusion, however, that the funds were improperly expended. The evidence only showed that Husband spent the money for marital debts or to maintain or acquire other marital property that was subject to division by the trial court.

In summary, Wife failed to provide substantial evidence to support a finding that the proceeds of the farm sale had been secreted or squandered. And on the evidence presented, the court would have erred in applying the law to hold that such expenditures amounted to squandering. Thus, the trial court erred in treating the proceeds as an existing asset that could be charged against Husband in the division of marital property. The judgment is, therefore, reversed and remanded to the trial court for reconsideration of its property division in light of this opinion.

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

      . As far as we can tell, the first time squandering or the farm proceeds was mentioned was on appeal.


author: HAROLD L. LOWENSTEIN, Judge.

text:
    Maxine ALBERTSON, Respondent, v. Jacqueline COX, Appellant.
    No. WD 63238.
    Missouri Court of Appeals, Western District.
    Dec. 21, 2004.

      James F. Crews, Tipton, MO, for Appellant.
    David A. Yarger, Versailles, MO, for Respondent.
    Before NEWTON, P.J., LOWENSTEIN and HOLLIGER, JJ.
   HAROLD L. LOWENSTEIN, Judge.

Jacqueline Cox filed an application to be appointed the personal representative of Cecil Bond’s estate, representing to the probate court that she was the daughter and sole heir of the decedent. Relying on this representation, the court appointed Cox as the personal representative of the estate. Subsequently, the decedent’s sister, Maxine Albertson, filed a petition to remove Cox as the personal representative, alleging that Cox was not the decedent’s daughter. The court ultimately ruled in favor of Albertson, finding that Cox was not Bond’s natural daughter, nor had she been adopted by him. Consequently, the court removed Cox as personal representative of the estate.

Analysis

The appellant claims that the court erred in removing her as personal representative of Cecil Bond’s estate. The probate court’s decision will be affirmed unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

On appeal, Cox argues that her removal was invalid because none of the grounds for removal, as set forth by Section 473.140, were satisfied. However, this argument presupposes that the probate court can only remove a personal representative through the statute cited by Cox. There is authority that the court may remove a personal representative on grounds not specified in the statute: “Removal of a personal representative in the probate division is normally a statutory process. The procedure to be followed is that prescribed by statute. If removal is predicated upon a nonstatutory ground, it is advisable nevertheless to follow the statutory procedure.” J.B. JohN A. BORRON, Jr, Missouri Practice: Probate Law AND PRACTICE, § 513 ( 3d ed.2000) (emphasis added). The trial court has inherent power to remove a personal representative whose appointment is void or illegal for any reason. In re Estate of Bloomer, 528 S.W.2d 784, 789 (Mo.App.1975). “[I]t is not necessary that grounds for removal under Section 473.140 RSMo.1969 be shown.... [T]he appointment of an administrator where there is no vacancy and based upon false statements invokes this inherent power and duty.” Id.

Here, the trial court removed Cox as personal representative, having found that Cox’s application contained false information and that she was not the decedent’s daughter. This finding was supported by substantial and competent evidence. First, the decedent’s sister testified that her brother was not Cox’s father by natural birth or by adoption. She further testified that Cox had already been born when the decedent married Cox’s mother. Finally, there was no name listed for Cox’s father on her birth certificate. Therefore, the court used its inherent power to remove Cox, having initially named her personal representative under the belief that she was decedent’s daughter. The judgment is affirmed.

All concur.

      . Section 473.140 provides:
      If any personal representative becomes mentally incapacitated or is convicted of a felony or other infamous crime, or becomes an habitual drunkard, or in any manner incapable or unsuitable to execute the trust reposed in him, or fails to discharge his official duties, or wastes or mismanages the estate, or acts so as to endanger any core-presentative, or fails to answer any citation and attachment to make settlement, the court, upon its own motion, or upon complaint in writing made by any person interested supported by affidavit, after notice to the personal representative, and to the attorney of record, if any, of any personal representative who cannot be served with notice in this state, shall hear the matter and may revoke the letters granted.

      . In her other point on appeal, Cox argues that the trial court erred in removing her because her conduct as personal representative was not wrongful. Because her first point is dispositive, this court need not address this issue.


author: LISA WHITE HARDWICK, Judge.

text:
    John DUNN, et al, Respondent, v. SECURITY FINANCIAL ADVISORS, INC. et al, Defendant; First Heartland Capital, Inc., Appellant.
    No. WD 64164.
    Missouri Court of Appeals, Western District.
    Dec. 21, 2004.

      William J. Travis, St. Louis, MO, for Appellant.
    Anthony J. Romano, Kansas City, MO, for Respondent.
    Before HARDWICK, P.J., ULRICH and NEWTON, JJ.
   LISA WHITE HARDWICK, Judge.

First Heartland Capital, Inc. appeals from the denial of its Motion to Dismiss and Compel Arbitration of negligence, breach of fiduciary duty, and unauthorized trading claims filed by John Dunn. Appellant contends the trial court erred in denying the motion for failure to comply with a local rule requiring the filing of suggestions. Because the rule was misapplied, we reverse and remand.

Factual and PROceduRAl History

In his capacity as Trustee of the John B. Dunn Trust, John Dunn opened a brokerage account with First Heartland Capital on December 1, 2000. Mr. Dunn signed a new account form that acknowledged his acceptance of a Brokerage Account Pre-Dispute Arbitration Agreement. By accepting the agreement, Mr. Dunn consented to arbitrate “all controversies ... concerning any order or transaction, or the continuation, performance or breach” of the terms of the brokerage account.

On November 12, 2003, Mr. Dunn, Jill Dunn, and the Trust filed a five-count Petition in Jackson County Circuit Court against First Heartland Capital and three other defendants. The claims against First Heartland Capital alleged unauthorized trading, breach of fiduciary duty, and negligence, all arising out of transactions that occurred in the Trust’s brokerage account. First Heartland Capital filed a Motion to Dismiss and Compel Arbitration of the claims filed by Mr. Dunn based on his prior consent to arbitrate all controversies related to the brokerage account. The trial court denied relief on the sole ground that the motion did not conform to Local Rule 33.5.1, which requires the filing of “brief written suggestions” at the same time the motion is filed. First Heartland Capital appeals the denial of the Motion to Dismiss and Compel Arbitration.

JURISDICTION

Before addressing the merits of the appeal, we must consider Mr. Dunn’s contention that we lack jurisdiction because the trial court has not entered a final judgment. He argues the denial of the Motion to Dismiss and Compel Arbitration is not subject to appeal under Rule 74.01 in that: (1) there has been no final disposition of all the parties in this lawsuit; and (2) there has been no adjudication of all claims in the five-count petition against multiple defendants.

This action is governed by Section 435.440.1(1), which expressly allows a party to appeal from “an order denying an application to compel arbitration.” The “special statute” takes precedence over the general requirement in Rule 74.01 that a judgment is not final unless it disposes of all parties and issues in the case. Transit Cas. Co. v. Certain Underwriters, 963 S.W.2d 392, 396 (Mo.App.1998). Mr. Dunn’s attempt to apply Rule 74.01 is based on a line of reasoning from two Southern District cases that the Eastern and Western Districts have declined to follow. Transit Cas., 968 S.W.2d at 396; Young v. Prudential Sec., Inc., 891 S.W.2d 842, 844 (Mo.App. E.D.1995). We have appellate jurisdiction because the trial court’s denial of the motion to compel arbitration is subject to immediate appeal under Section 435.440. Young, 891 S.W.2d at 844.

Denial of Motion to Dismiss and Compel AebitRation

The trial court denied First Heartland Capital’s Motion to Dismiss and Compel Arbitration for failure to comply with Local Rule 33.5.1, which provides in relevant part:

A party filing any motion ... shall serve and file at the same time brief written suggestions in support thereof together with authorities relied upon and any affidavits to be considered in support of the motion. Failure to file concise suggestions shall be grounds for refusing the relief requested.

First Heartland Capital contends the court erred in refusing relief under this local rule because its motion was fully supported by “references to legal authority, suggestions, the arbitration provision, and an affidavit.” The suggestions and citations to legal authority were set forth in the text of the four-page motion. Mr. Dunn concedes that the motion included the supporting documentation required by the local rule, but he argues the trial court properly denied relief because the motion and suggestions were not filed as separate documents.

“An appellate court’s review of the arbitrability of a dispute is de novo.” Dunn Indus. Group v. City of Sugar Creek, 112 S.W.3d 421, 428 (Mo. banc 2003). We also independently review the trial court’s application of Local Rule 33.5.1, as it involves a question of law. Williams v. Kimes, 996 S.W.2d 43, 44-45 (Mo. banc 1999) (questions of law are reviewed de novo). This procedural rule must be interpreted according to the plain and ordinary meaning of the words used. Allison v. Tyson, 123 S.W.3d 196, 204 (Mo. App.2003). Although an appellate court may be reluctant to interfere with a trial court’s construction of its own rule, fundamental fairness and due process require that the rule be applied as written. See In re Transit Cas. Co., 900 S.W.2d 671, 674 (Mo.App.1995).

The plain language of Local Rule 33.5.1 requires a party to file brief written suggestions in support of a motion at the same time the motion is filed. The failure to file “concise suggestions” is the only ground for denying relief under the rule. The rule does not require the filing of suggestions in a document separate from the motion. Nor does the rule in any way suggest that relief may be denied if the suggestions are contained in the body of the motion. The rule merely seeks to insure that the movant provides all relevant facts, authorities, and documents in support of the motion. There is nothing in the rule to restrict the format for the suggestions, so long as they are filed along with the motion.

The trial court erred in interpreting Local Rule 33.5.1 to require the filing of separate suggestions. The Motion to Dismiss and Compel Arbitration was improperly denied on this procedural ground. The pleading must be judged on its substance and not its format or caption. Worley v. Worley, 19 S.W.3d 127, 129 (Mo. banc 2000). First Heartland Capital satisfied the local rule by filing brief written suggestions at the same time its motion was filed. The trial court should have proceeded to decide the motion on the merits. We reverse the denial of the Motion to Dismiss and Compel Arbitration and remand for determination of the issues raised therein.

All concur.

      . Jill Dunn is a beneficiary of the John B. Dunn Trust.

      . All "Local Rule” citations are to the rules adopted by the Circuit Court of Jackson County. All other rule citations are to the Missouri Rules of Civil Procedure (2004).

      . Rule 74.01 provides in relevant part:
      (a) Included Matters. 'Judgment' as used in these rules includes a decree and any order from which an appeal lies. A judgment is rendered when entered. A judgment is entered when a writing signed by the judge and denominated 'judgment' or 'decree' is filed....
      (b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may enter a judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay. In the absence of such determination, any order or other form of decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

      . All statutory citations are to the Missouri Revised Statutes (2000).

      . Abrams v. Four Seasons Lakesites/Chase Resorts, Inc., 904 S.W.2d 37, 39 (Mo.App. S.D.1995); Garwood v. Port Arrowhead Marina,

        Inc., 996 S.W.2d 153, 155-56 (Mo.App. S.D.1999).


author: NANCY STEFFEN RAHMEYER, Judge.

text:
    Terry Gene BAKER, Plaintiff-Appellant, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Defendant-Respondent.
    No. 26161.
    Missouri Court of Appeals, Southern District, Division One.
    Dec. 22, 2004.
    John Cowherd, Mt. Vernon, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen. and Shawn R. McCall, Asst. Atty. Gen., Jefferson City, for Respondent.
   NANCY STEFFEN RAHMEYER, Judge.

Terry Baker (“Appellant”) appeals the judgment affirming the revocation of his driver’s license by the Missouri Department of Revenue (“Director”). We affirm.

In this appeal from the revocation of a driver’s license for failure to submit to a breath test, Appellant claims the court erred in upholding the revocation because the Director did not have the statutory authority to revoke his license under section 577.041, in that the arresting officer never made a sworn report to the director claiming Appellant refused a breath test and, thus, the revocation was void. Appellant contends the trial court specifically found that the Alcohol Influence Report (AIR), which is entitled: “Chemical Test Refusal (Officer Must Mark Box If Subject Refused Test),” was not marked nor checked by the officer, and the entire AIR was not signed by the arresting officer. Appellant avers that although the trial court found that no sworn report was submitted to the Director, the court held it was bound by Turpin v. King, 693 S.W.2d 895 (Mo.App. S.D.1985), to uphold the revocation.

Appellant argues the trial court misapplied the law as set forth in Allen v. Director of Revenue, 59 S.W.3d 636 (Mo.App. W.D.2001), in that the trial court should have found that the Director did not have the statutory authority to revoke Appellant’s license without a sworn report from the officer. In Allen, the officer submitted an unsigned and unsworn AIR to the director asserting that he had reasonable grounds to believe that Allen was driving a motor vehicle while in an intoxicated condition and that Allen refused to submit to a breath test. Id. at 636. The director’s only evidence at trial was the unsigned and unsworn AIR. Id. at 637. The revocation of the license was reversed by the trial court and affirmed on appeal with the admonition that the actions of the director revoking the license of the person refusing to take a breath test was proper only upon receipt of a sworn report from the officer. Id. at 639.

The Allen court relied upon Bodenhausen v. Missouri Board of Registration for the Healing Arts, 900 S.W.2d 621 (Mo. banc 1995), for the proposition that administrative agencies possess only those powers expressly conferred or necessarily implied by Missouri law and held all the subsequent actions of the director after receiving an unsworn AIR were void. Allen, 59 S.W.3d at 638. The court reasoned that although section 577.041.4 provides circuit courts with limited statutory review, the courts should not be powerless to act where the director ignores statutory requirements. Id. Appellant concludes, therefore, that the initial revocation of his license by the Director was void and the trial court erred in affirming a void revocation.

The Director counters that a sworn report was not essential to a revocation action at the trial court because the arresting officer gave sworn testimony before the court. The Director, relying upon Hinnah v. Director of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002), states the issues for the trial court were limited to: (1) whether or not the person was arrested or stopped; (2) whether the officer had reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated or drugged condition; and (3) whether or not the person refused to submit to the test. In other words, whether the actions of the Director in initially revoking the license were proper is not a matter for review by the trial court or this Court. The Director claims Turpin is appropriate precedent for the court’s decision to uphold the revocation in that this Court in Turpin found that the director was not required to offer its business records, including the AIR, to prevail in an action under section 577.041.4. Turpin, 693 S.W.2d. at 896. The Director distinguishes the Allen case because the only evidence in Allen was the director’s record, which consisted of the officer’s un-sworn AIR, whereas the court heard the additional sworn testimony of the arresting officer in this trial.

We are thus presented with two apparently conflicting theories of the requirements of section 577.041. The first theory, presented by Appellant and his reliance on Allen, is that if the officer does not comply with the requirements of section 577.041.2 to provide a sworn affidavit to the Director, then the Director did not have the authority to revoke Appellant’s license. If there was no authority to revoke his license, so Appellant’s theory continues, all subsequent actions by the Director were void, thus precluding the upholding of a license revocation by the trial court.

The second theory, propounded by the Director and its reliance on Hinnah, is that the issue of whether the Director had any authority to revoke the license was not reviewable by the trial court and, thus, not at issue in this appeal. The Director argues that under section 577.041.4 the sole issues concerning the trial court were the three issues set forth in Hinnah. The Director concludes, even if there was noncompliance with section 577.041.2 by the Director, our review of the trial court decision is limited to the trial court’s findings on those three specific issues.

Initially, we note that the trial court made explicit findings regarding the submission of a sworn statement by the officer and we defer to the trial court’s determination of credibility. Hinnah, 77 S.W.3d at 620. We accept the trial court’s finding of fact that no sworn affidavit was presented to the trial court and, thus, decide this controversy as an issue of law. Although Appellant contends that we must first decide whether the actions of the agency were “void,” we do not believe that issue controls the outcome of this appeal. We have no quarrel with the analysis of our sister court that administrative law is a matter solely of constitutional or statutory creation and the courts must follow the procedures provided by these laws. See Allen, 59 S.W.3d at 637. While we also agree with Appellant that the Director’s actions may be void, we cannot agree that under section 577.041.4 and a plain reading of Hinnah, the controlling Supreme Court precedent, that the trial court misapplied the law in revoking Appellant’s license.

As opposed to the review of the administrative decision set forth in Bodenhausen, 900 S.W.2d at 622, this Court reviews the circuit court’s judgment and not the administrative order. See Dillon v. Director of Revenue, 999 S.W.2d 319, 321 (Mo.App. W.D.1999). Review of the trial court’s judgment after a trial de novo is governed by the standard set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Id. The decision of the trial court must be affirmed on appeal unless there is no substantial evidence to support the decision, the decision is against the weight of the evidence, or the trial court erroneously declares or applies the law. Hinnah, 77 S.W.3d at 620. Thus, even if the administrative action was void, we are constrained to find that pursuant to section 577.041.4 the court was limited to ascertaining (1) whether or not the person was arrested or stopped; (2) whether the officer had reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated or drugged condition; and (3) whether or not the person refused to submit to the test. See Hinnah at 620. The inquiry ends once these three questions have been answered. Id. The issue raised by Appellant is not contemplated by the statute.

We recognize the anomaly of allowing the Director to revoke a license without the presentation of a sworn affidavit in direct violation of section 577.041.2 and yet this Court refusing to review that action under section 577.041.4. We believe this is simply the wrong forum to address the noncompliance of an administrative agency to follow the strictures of the legislature. We do not believe Allen commands a different result, but if we have incorrectly analyzed the holding of Allen, we are bound by the latest authority from our Supreme Court in Hinnah v. Director of Revenue. Mo. Const. art. V, § 2 (1945); Tapley v. Shelter Ins. Co., 91 S.W.3d 755, 763 (Mo.App. S.D.2002).

The judgment of the trial court is affirmed.

GARRISON, P.J., and PREWITT, J., concur.

      . All references to statutes are to RSMo Cum. Supp.2003, unless otherwise indicated.

      . Section 577.041 states in pertinent part:
      1. If a person under arrest, or who has been stopped pursuant to subdivision (2) or (3) of subsection 1 of section 577.020, refuse upon the request of the officer to submit to any test allowed pursuant to section 577.020, then none shall be given and evidence of the refusal shall be admissible in a proceeding pursuant to section 565.024 or 565.060, RSMo, or section 577.010 or 577.012. The request of the officer shall include the reasons of the officer for requesting the person to submit to a test and also shall inform the person that evidence of refusal to take the test may be used against such person and that the person’s license shall be immediately revoked upon refusal to take the test....
      2. The officer shall make a sworn report to the director of revenue, which shall include the following:
      (1) That the officer has:
      (a) Reasonable grounds to believe that the arrested person was driving a motor vehicle while in an intoxicated or drugged condition; or
      (b) Reasonable grounds to believe that the person stopped being under the age of twenty-one years, was driving a motor vehicle with a blood alcohol content of two-hundredths of one percent or more by weight; or
      (c) Reasonable grounds to believe that the person stopped, being under the age of twenty-one years, was committing a violation of the traffic laws of the state, or political subdivision of the state, and such officer has reasonable grounds to believe, after making such stop, that the person had a blood alcohol content of two-hundredths of one percent or greater;
      (2) That the person refused to submit to a chemical test;
      (3) Whether the officer secured the license to operate a motor vehicle of the person;
      (4) Whether the officer issued a fifteen-day temporary permit;
      (5) Copies of the notice of revocation, the fifteen-day temporary permit and the notice of the right to file a petition for review, which notices and permit may be combined in one document; and
      (6) Any license to operate a motor vehicle which the officer has taken into possession.

      4. If a person's license has been revoked because of the person's refusal to submit to a chemical test, such person may petition for a hearing before a circuit or associate circuit court in the county in which the arrest or stop occurred.... At the hearing the court shall determine only:
      (1) Wffiether or not the person was arrested or stopped;
      (2) Whether or not the officer had:
      (a) Reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated or drugged condition; or
      (b) Reasonable grounds to believe that the person stopped, being under the age of twenty-one years, was driving a motor vehicle with a blood alcohol content of two-hundredths of one percent or more by weight; or
      (c) Reasonable grounds to believe that the person stopped, being under the age of twenty-one years, was committing a violation of the traffic laws of the state, or political subdivision of the state, and such officer had reasonable grounds to believe, after making such stop, that the person had a blood alcohol content of two-hundredths of one percent or greater; and
      (3) Whether or not the person refused to submit to the test.


text:
    Paula Beth HOLLY, Respondent, v. Donald Eugene HOLLY, Appellant.
    No. 26099.
    Missouri Court of Appeals, Southern District, Division Two.
    Dec. 22, 2004.
    James B. Fleischaker, Fleischaker & Williams & Powell, Joplin, for Appellant.
    No appearance for Respondent.
   JOHN E. PARRISH, Presiding Judge.

Donald Eugene Holly (husband) appeals a judgment denying his Motion for Relief from Void Judgment. Husband contends an earlier judgment entered in the action for dissolution of marriage brought by Paula B. Holly (wife) was void because the court that entered the judgment failed to obtain personal jurisdiction over him. He sought relief pursuant to Rule 74.06(b). The trial court denied husband’s request. This court reverses and remands with directions for further proceedings by the trial court.

Wife filed an action for dissolution of marriage in the Circuit Court of Jasper County, Missouri, in August 1997. The petition alleged husband resided at 23 Am-berly Way, Carrolton, Georgia. Wife’s attorney in the dissolution action requested the circuit clerk to “have [husband] served via certified mail at the following address: 23 Amberly Way, Carrolton, GA 30116-8318.” Records in the dissolution case show “Summons/w Petition for Dissolution of Marriage sent Certified Mail to [husband]” on August 8, 1997. A docket entry dated August 29, 1997, states, “Domestic Return Receipt filed by Post Office showing receipt of mail signed by [husband].”

Judgment was entered in the dissolution action October 22, 1997, reciting that wife had appeared with her attorney but husband, “having been duly served,” did not appear. The judgment dissolved the marriage, awarded custody of the parties’ child, born April 28, 1994, to wife. It directed wife to “provide medical insurance for the benefit of the minor child with [wife] and [husband] sharing equally the cost of any non-covered medical expenses.” Husband was ordered to pay to wife child support in the amount of $380 per month. The judgment also distributed marital and non-marital property.

Husband and his attorney appeared at the hearing on the motion that is the subject of this appeal. Wife appeared by her attorney. Husband was the only witness. Husband testified that at the time the dissolution action was filed, he was residing at 28 Amberly Way, Carrolton, Georgia. He told the trial court that he had not received a summons and copy of the petition that he later learned had been filed in Missouri; that he had not signed any receipt for certified mail. Husband was shown a signed receipt for certified mad that had been filed in the dissolution action. He said he did not recall ever having seen it. He said what appeared to be a signature on the card was not his signature.

Husband said he first learned that wife had filed an action to dissolve their marriage after he left Carrolton and took a job in Dallas, Georgia; that he tried to call his family and learned the number had been disconnected. He said he called his parents who lived in Southwest City and was told wife “had sold everything and went to Florida.”

On cross-examination husband acknowledged that his and wife’s marriage took place in Missouri; that a child was born of that marriage. He was asked if the child was conceived in Missouri. He answered, ‘Tes.” Husband told the trial court he had no way of contacting wife until she called him and told him he owed her $16,000.

The trial court took husband’s motion under submission. Judgment denying the motion was entered January 7, 2004. The judgment recites, “[A]fter reviewing suggestions filed by the parties, court’s notes, and being fully advised in these premises, [the Court] finds and concludes that personal service was obtained and the Court acquired jurisdiction to enter a general judgment, including the Order for Child Support. In so doing, the Court also finds [wife’s] former counsel ... gave an incorrect address, but that actual receipt of notice was and is sufficient to obtain personal service and allow entry of general judgment.”

Husband presents one point on appeal. He contends the trial court erred in denying his Motion for Relief from Void Judgment because he was never served with process in a manner authorized by Missouri rules or statutes. The only attempt to obtain service on husband in the dissolution action brought by wife was by certified mail. The trial court concluded that husband “executed the return receipt he says he had not seen.” Based on that determination, the trial court found that “personal service was obtained and that it acquired jurisdiction to enter a general judgment, including the order for child support.”

Rule 54.14 prescribes what is required to obtain personal service on a party to a Missouri proceeding outside the state. It provides:

(a) By Whom Made. Personal service outside the state shall be made:
(1) By a person authorized by law to serve process in civil actions within the state or territory where such service is made, or by the deputy of a person so authorized;
(2) By a person appointed by the court in which the action is pending.
(b) Upon Whom. The service of process shall be made as provided in Rule 54.13(b).[]
(c) Acknowledgment. Acknowledgment of service by mail may be made as provided in Rule 54.16.[]

There was no personal service had or attempted on husband. Rather, what was attempted was service by certified mail pursuant to Rule 54.12(b), service that is available for in rem or quasi in rem actions. See Rule 54.12(a).

Rule 54.12(b) states:

Service by Mail. A party requesting service by registered or certified mail shall file an affidavit made by the party or by someone on behalf of the party, stating:
(1) Why personal service cannot be had in this state on the party to be served by mail, and
(2) The name and address of the party to be served by mail.
The clerk shall thereupon mail to the party to be served a summons and copy of the pleading by registered or certified mail, requesting a return receipt signed by addressee only.

The trial court found that the service that was effected was “sufficient to obtain personal service and allow entry of general judgment.” Husband argues this was error. This court agrees.

The trial court, as this court understands the judgment it rendered on husband’s motion for relief from the earlier judgment, found husband had actual notice of the pending dissolution action; that this was sufficient for the trial court to have had authority to enter a general judgment. “Although a [party] may receive notice that satisfies the minimum standards of due process, this alone ‘does not obviate the necessity of serving process in the manner prescribed in our statutes and rules.’ Acapolon Corp. v. Ralston Purina Co., 827 S.W.2d 189, 196 (Mo. banc 1992). Absent proper service, any judgment rendered over a party is void.” Rodriguez v. Rodriguez, 975 S.W.2d 485, 488 (Mo.App.1998).

Personal service of summons was required in order for the trial court to have had authority to enter a general judgment. State ex rel. Childers v. Kirby, 256 S.W. 546, 547 (Mo.App.1923); Chapman v. Chapman, 194 Mo.App. 483, 185 S.W. 221, 223 (1916). That did not occur in this case. The general judgment purportedly entered was, therefore, void. The trial court had no jurisdiction over husband’s person and, therefore, lacked jurisdiction to enter in personam orders with respect to him. The parts of the dissolution judgment that undertook to enter any personal judgment were void from their inception. Williams v. Williams, 950 S.W.2d 919, 924 (Mo.App.1997). Husband’s point on appeal is granted with respect to the trial court holding that it had authority to enter a general judgment in the dissolution proceeding.

The judgment denying husband’s Motion for Relief from Void Judgment is reversed. The case is remanded with directions to the trial court to enter judgment consistent with this opinion and to further determine the status of all other issues addressed by the dissolution judgment; that the trial court determine whether there was in rem jurisdiction to address the res that was before that court.

SHRUM and BARNEY, JJ., concur.

      . Respondent filed no brief in this case. Although no penalty is prescribed for a respondent's failure to file a brief on appeal, when this occurs the appellate court is left with nothing to aid in the disposition of the appeal other than the appellant’s brief. The dilemma this presents is that the court must resolve the case without the benefit of the respondent’s authorities and points of view.

      .Rule 54.13(b) provides for personal service to be made "[u]pon an individual ... by delivering a copy of the summons and petition personally to the individual or by leaving a copy of the summons and petition at the individual’s dwelling house or usual place of abode with some person of the individual's family over the age of fifteen years, or by delivering a copy of the summons and petition to an agent authorized by appointment or required by law to receive service of process.”

      . Rule 54.16 permits summons to be served by regular mail upon acknowledgement being completed by a defendant in the manner prescribed by that rule. Rule 54.16 is not applicable to the type of service of process attempted in this case.

      . "While a divorce suit is a proceeding in rem, the marriage status constituting the res, a personal judgment ... cannot be supported by constructive service upon the defendant.” Elvins v. Elvins, 176 Mo.App. 645, 159 S.W. 746, 748 (1913).

      . The trial court has not addressed whether it had in rem jurisdiction; therefore, that question is not considered by this court as part of this appeal. An issue will not be addressed on appeal prior to its determination by the trial court. Scott v. Edwards Trans. Co., 889 S.W.2d 144, 147 (Mo.App.1994); Boatmen's Bank of Southern Missouri v. Foster, 878 S.W.2d 506, 508 (Mo.App.1994).


author: PHILLIP R. GARRISON, Presiding Judge.

text:
    Tommy R. BEWLEY, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 26103.
    Missouri Court of Appeals, Southern District, Division One.
    Dec. 22, 2004.

      Mark A. Grothoff, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Leslie E. McNamara, Assistant Attorney General, Jefferson City, for respondent.
   PHILLIP R. GARRISON, Presiding Judge.

Tommy R. Bewley (“Movant”) appeals from the Circuit Court of Mississippi County’s denial of his Rule 29.15 motion for post-conviction relief. We affirm.

The following is a brief description of the facts of the underlying case. Movant and his wife Jewell Bewley (“Dee”) sexually abused fourteen-year-old C.H., a runaway from the Missouri Baptist Children’s Home in East Prairie, Missouri, by kissing and touching her body and by Movant having sexual intercourse with her. Other incidents of sexual abuse involved E.T., a mentally challenged young girl less than twelve years of age at the time, and A.T., E.T.’s younger brother who at the time of the abuse was less than ten years of age. Movant and Dee were respite providers, paid by the Missouri Department of Mental Health to baby-sit E.T. and A.T. for their mother. E.T. testified to being touched by Movant, having been forced to have sexual intercourse with him, and having been forced to have sexual intercourse with A.T. E.T. also told a social worker that she and A.T. were forced to watch Movant and Dee “do it.” A.T. testified on videotape to being sodomized by Movant and being forced to kiss and lick the private parts of Movant and Dee. He also confirmed that Movant had forced E.T. and he to have sexual intercourse and that he had watched Movant and Dee have sexual intercourse. The fourth child to claim abuse at the hands of Movant was A.D., an eight-year-old girl, who said Mov-ant touched her on her chest and between her legs, as well as made her watch movies where the actors “all got in a bed together and they were touching each other.”

Movant was tried by the court, without a jury, and convicted of two counts of sexual misconduct in the first degree, pursuant to Section 566.090; one count of child molestation in the first degree, pursuant to Section 566.067; two counts of endangering the welfare of a child in the first degree, pursuant to Section 568.045, RSMo Cum. Supp. (1998); two counts of statutory sodomy in the first degree, pursuant to Section 566.062; one count of statutory rape in the first degree, pursuant to Section 566.032; one count of statutory rape in the second degree, pursuant to Section 566.034; and one count of statutory sodomy in the second degree, pursuant to Section 566.064. He was sentenced to concurrent terms in the Missouri Department of Corrections of four years for each count of sexual misconduct, four years for each count of endangering the welfare of a child, life for statutory rape in the first degree, six years for statutory rape in the second degree, and six years for statutory sodomy in the second degree. Movant was also sentenced to consecutive terms of ten years for child molestation in the first degree, life for the first count of statutory sodomy in the first degree, and life for the second count of statutory sodomy in the first degree. He directly appealed his convictions to this Court and we affirmed in Bewley, 68 S.W.3d 613.

Movant filed a motion seeking post-conviction relief pursuant to Rule 29.15. The motion court issued its findings of fact and conclusions of law denying Movant’s motion after an evidentiary hearing. This appeal followed.

Appellate review of the denial of a motion for post-conviction relief is limited to a determination of whether the findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k); Parham v. State, 77 S.W.3d 104, 106 (Mo.App. S.D.2002). “Findings and conclusions are clearly erroneous if, after a review of the entire record, the court is left with the definite and firm impression that a mistake has been made.” Middleton v. State, 80 S.W.3d 799, 804 (Mo. banc 2002) (quoting Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000)).

In order for a criminal defendant to be granted post-conviction relief on the basis of ineffective assistance of counsel, the defendant must demonstrate that “his counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise under substantially similar circumstances, and that he was thereby prejudiced.” Parham, 77 S.W.3d at 106 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)). Prejudice means that there is “ ‘a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.’ ” State v. Shum, 866 S.W.2d 447, 468 (Mo. banc 1993) (quoting State v. Ervin, 835 S.W.2d 905, 929 (Mo. banc 1992)).

Movant presents two points on appeal, both relating to the failure of his trial counsel to call certain witnesses. When the claim of error is failure to call a witness, the “[ajppellant must show that the outcome may have been different had the witness testified and that counsel’s failure to call the witness was something other than trial strategy.” White v. State, 122 S.W.3d 118, 120 (Mo.App. S.D.2003). It is virtually impossible to challenge a decision not to call a witness to testify as a matter of trial strategy. Payne v. State, 21 S.W.3d 843, 845 (Mo.App. E.D.1999).

In his first point, Movant claims that he was denied effective assistance of counsel because his trial counsel failed to call Dr. Claudia Preuschoff (“Dr. Preus-choff’) to testify that her examination of E.T. showed no vaginal penetration. Dr. Preuschoff, a pediatrician, testified at the evidentiary hearing on Movant’s Rule 29.15 motion. She examined E.T. under sedation after E.T. was uncooperative during a previous SAFE examination. Dr. Preuschoff found no obvious evidence of vaginal penetration in her exam of E.T., though she found that E.T. had trichomo-nas, a sexually transmitted disease that can be spread through penis to genitalia contact. She stated, however, that “we know now that you oftentimes don’t have physical findings even in observed instances [of vaginal penetration].” Dr. Preus-choff testified that the more sexually mature a girl is, the less likely it is for there to be evidence of penetration. The tissues which would show vaginal penetration heal very quickly when there is an injury. Furthermore, Dr. Preuschoff testified that E.T. was “very much along the way towards sexual maturity” at the time of the exam.

Movant’s trial counsel also testified at the evidentiary hearing. She stated that she did not call Dr. Preuschoff for strategic reasons because she believed that the doctor’s testimony would neither help the defense nor indicate that E.T. had not been raped. The motion court found that calling Dr. Preuschoff would have actually hurt Movant’s defense and, furthermore, the decision not to call her was within the wide range of reasonable trial strategy.

On appeal, Movant claims that Dr. Preuschoffs testimony would have bolstered his defense that he was innocent of the charges by showing that E.T. had not been vaginally penetrated, therefore creating reasonable doubt that E.T. had been raped. The State responds by pointing out that Dr. Preuschoffs testimony would not have provided a defense to Movant because of her testimony that a girl of E.T.’s age and maturity may not show evidence of vaginal penetration. According to the State, her testimony would only show what the doctor would expect to find in similar cases of sexual abuse.

We agree with the motion court and Movant’s trial counsel that Dr. Preus-choffs testimony would not have aided Movant’s defense in any substantial way because it would have been evidence that it is not unusual for a young girl of E.T.’s age and maturity to show no physical evidence of vaginal penetration even where penetration had occurred. “When defense counsel believes a witness’ testimony would not unequivocally support his client’s position, it is a matter of trial strategy not to call him, and the failure to call such witness does not constitute ineffective assistance of counsel.” Winfield v. State, 93 S.W.3d 732, 739 (Mo. banc 2002). The motion court did not clearly err in denying post-conviction relief to Movant for his counsel’s failure to call Dr. Preus-choff. Movant’s first point is denied.

In his second point, Movant claims that he was denied effective assistance of counsel because his trial counsel failed to call Delberta Taylor (“Taylor”). In an affidavit filed with the motion court, Taylor stated that she knew Jeanetta Taylor, the mother of E.T. and A.T., as well as Movant and Dee. Taylor claimed that. E.T. and A.T. caused many disturbances when they lived with their mother, including fighting with and cursing her. She said that the police were constantly being called to the house. According to Taylor, when Movant and Dee would baby-sit A.T. and E.T., the children appeared to be much better behaved, well-adjusted, obedient, and respectful. An investigator from Movant’s trial counsel’s office spoke to Taylor, and that investigator’s report, part of the record on appeal, contained substantially the same information as Taylor’s affidavit. Movant’s trial counsel testified that she did not call Taylor as a part of her trial strategy in that she believed that Taylor would not testify to anything that would provide a defense to the State’s charges. The motion court found that Taylor was not called because of trial strategy and that her testimony would not have aided the defense.

Movant claims that if called, Taylor’s testimony would have shown that A.T. and E.T. were “happier and more comfortable” with Movant and Dee than with their own mother, and that a reasonable probability exists that the trial court’s opinion would have been swayed. The State responds by stating that Taylor’s testimony would not have provided any viable defense to Mov-ant and would have merely shown that A.T. and E.T. were happier around him. Her testimony would not have provided evidence that Movant did not sexually abuse them. We agree with the motion court that the decision not to call Taylor was a matter of trial strategy and that Movant was not prejudiced as a result. Movant’s second point is denied.

The judgment of the motion court is affirmed.

PREWITT and RAHMEYER, JJ., concur.

      . All rule references are to Missouri Rules of Criminal Procedure (2003) unless otherwise noted.

      . For a more thorough discussion of the facts, see our opinion in State v. Bewley, 68 S.W.3d 613, 615-617 (Mo.App. S.D.2002).

      . We use the initials of all the victims in this case to protect their identity.

      . All statutory references are to RSMo (1994) unless otherwise indicated.