author: MARY K. HOFF, Judge.

text:
    Timothy J. DORSEY, Plaintiff/Respondent, v. Patrick T. DORSEY, Individually and Personal Representative of the Estate of M. Sharon Dorsey (Deceased), and Megan Zeh, Brian C. Dorsey, Michael M. Dorsey, and Moira K. Dorsey, Defendants/Appellants.
    No. ED 83540.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 15, 2005.

      Robert J. Maurer, Clayton, MO, for appellant.
    C.J. McEnel-y, Jr., St. Louis, MO, for respondent.
   MARY K. HOFF, Judge.

Patrick Tully Dorsey, who was sued individually and as the personal representative of the estate of M. Sharon Dorsey, deceased; Megan Zeh, who was named Megan Maureen Dorsey in the will and challenged codicil; Brian Christopher Dorsey; Michael McPhee Dorsey; and Moira Kathleen Dorsey (all referred to as Proponents) appeal the trial court’s grant of a new trial in this will contest in which Timothy James Dorsey (Contestant) challenges a March 24, 1999 codicil to the Last Will and Testament of M. Sharon Dorsey (Testatrix). We reverse the order for a new trial and remand with directions to enter judgment in favor of Proponents declaring that the March 24, 1999 codicil is a valid part of the Last Will and Testament of M. Sharon Dorsey.

Testatrix died on November 28, 2001, while in her fifties. Her original Last Will and Testament, dated September 19, 1992, provided in the third paragraph, that the remainder of her property be distributed to her six children in equal shares. By a March 24, 1999 codicil, Testatrix, in relevant part, revoked the third paragraph of her original Last Will and Testament that distributed the remainder of her property in equal shares to her six children and substituted the following paragraph instead:

THIRD: I give, bequeath and devise all of the rest, residue and remainder of my property owned by me at the time of my death, real and personal, of whatsoever kind, nature or character and wheresoever situated, in equal shares to my children, PATRICK TULLY DORSEY, MEGAN MAUREEN DORSEY, BRIAN CHRISTOPHER DORSEY, MICHAEL McPHEE DORSEY and MOIRA KATHLEEN DORSEY; the descendants living at the date of my death, of either of the above-named legatees who does not survive me, to take the share of their parent per stirpes. I have intentionally made no provision herein for my son, TIMOTHY JAMES DORSEY, or his descendants for reasons well known to him at this time which he and I have discussed at length.

Contestant, Timothy James Dorsey, filed this action challenging paragraph THIRD of the March 24, 1999 codicil on the ground, among other things, that Testatrix lacked the mental capacity to execute the codicil. Testatrix’s mental incapacity to execute the challenged codicil was the only ground submitted to the jury. After the trial court denied the parties’ motions for directed verdict at the close of all the evidence, the jury returned a verdict finding the March 24, 1999 codicil was a valid part of Testatrix’s Last Will and Testament. The trial court entered judgment in accordance with that verdict. The trial court subsequently granted Contestant’s motion for new trial, and this appeal by Proponents followed.

Proponents’ first, second, and fourth points on appeal contend the trial court erred in granting Contestant’s motion for new trial. In their third point, Proponents argue the trial court erred in denying their motion for directed verdict because the evidence, taken in the light most favorable to the Contestant, was insufficient to cause reasonable minds to differ on the question of Testatrix’s testamentary capacity at the time she executed the codicil to her will, and the only conclusion a reasonable mind could reach on the evidence is that Testatrix had testamentary capacity when she executed the challenged codicil. Because we find the third point dispositive, we will address that point first. See Smith v. Fitzjohn, 354 Mo. 137, 188 S.W.2d 832 (1945) (addressing the submissibility of testamentary capacity and undue influence before addressing the grant of a new trial); Rothwell v. Love, 241 S.W.2d 893 (Mo.1951) (addressing the submissibility of testamentary capacity before addressing the grant of a new trial); see also Gamble v. Bost, 901 S.W.2d 182 (Mo.App. W.D.1995) (addressing the submissibility issue before addressing the issue challenging the trial court’s grant of a new trial in an appeal pursued by a defendant who had originally obtained a jury verdict in his favor in the negligence action).

When we review the denial of a defendant’s or proponent’s motion for directed verdict, we must determine whether the plaintiff or contestant has introduced substantial evidence that tends to prove facts essential to the plaintiffs or contestant’s claim. Lasky v. Union Elec. Co., 936 S.W.2d 797, 801 (Mo. banc 1997); Emerson Elec. Co. v. Crawford, & Co., 963 S.W.2d 268, 272 (Mo.App. E.D.1997). If substantial evidence tending to prove facts essential to the plaintiffs or contestant’s claim exists, then the trial court does not commit reversible error by denying the defendant’s or proponent’s motion for directed verdict. Bequette v. Buff, 862 S.W.2d 921, 922 (Mo.App. E.D.1993). ‘“Substantial evidence is that which, if true, has probative force upon the issues, and from which the trier of facts can reasonably decide a case.’ ” Coonrod v. Archer-Daniels-Midland Co., 984 S.W.2d 529, 534 (Mo.App. E.D.1998) (quoting Hurlock v. Park Lane Medical Center, Inc., 709 S.W.2d 872, 880 (Mo.App. W.D.1985)). In a will contest proceeding challenging an instrument on the ground the person executing the instrument lacked mental capacity, a trial court does not err in denying a defendant’s or proponent’s motion for directed verdict when there is “sufficient substantial evidence ... from which a jury could reasonably have found a lack of general testamentary capacity” at the time the challenged instrument was executed. Byars v. Buckley, 461 S.W.2d 817, 820 (Mo.1970). When reasonable minds could draw different conclusions from the facts about the testatrix’s mental incapacity at the time the instrument was executed, then a directed verdict in favor of the defendant or proponent in a will contest is improper because the issue of testamentary capacity becomes a question for the jury. See Crabtree v. Bugby, 967 S.W.2d 66, 70 (Mo. banc 1998) (claim of employment discrimination based on the filing of a workei’’s compensation claim); Lasky, 936 S.W.2d at 801 (negligence action); Lopiccolo v. Semar, 890 S.W.2d 754, 760 (Mo.App. E.D.1995) (will contest on grounds of undue influence).

It is reversible error, however, to submit to the jury, over objection, the issue of testamentary capacity if the contestants fail to present substantial evidence of the mental incapacity of the person executing the instrument at the time of its execution. Maurath v. Sickles, 586 S.W.2d 723, 728 (Mo.App. E.D.1979). A defendant’s or proponent’s motion for directed verdict should be granted when “the facts in evidence and the reasonable inferences therefrom [are] ‘so strongly against a party that no room is left for reasonable minds to differ.’ Burns [Nat’l Lock Installation Co. v. American Family Mut. Ins. Co.], 61 S.W.3d [262,] 271 [(Mo.App. E.D.2001)].” Uxa ex rel. Uxa v. Marconi 128 S.W.3d 121, 128 (Mo.App. E.D.2003); see also Tharp v. Monsees, 327 S.W.2d 889, 899 (Mo. banc 1959).

In our review of the denial of a defendant’s or proponent’s motion for directed verdict, we consider the evidence in a light most favorable to the plaintiff or contestant, give the plaintiff or contestant the benefit of all reasonable inferences legitimately drawn from the evidence, and disregard the defendant’s or proponent’s evidence except to the extent it supports the plaintiffs or contestant’s case. Sturm v. Routh, 373 S.W.2d 922, 923 (Mo.1964); Byars, 461 S.W.2d. at 819-20; Crabtree, 967 S.W.2d at 70. “‘[W]e do not supply missing evidence or give [the] plaintiff [or contestant] the benefit of unreasonable, speculative, or forced inferences.’ ” Coonrod, 984 S.W.2d at 534 (quoting Klugesherz v. American Honda Motor Co., 929 S.W.2d 811, 813 (Mo.App. E.D.1996)). “The issues of whether the evidence is substantial and whether the inferences drawn are reasonable present questions of law.” City of Sullivan v. Truckstop Restaurants, Inc., 142 S.W.3d 181, 191 (Mo.App. E.D.2004); see also Tharp, 327 S.W.2d at 899.

When a will or codicil is challenged on the grounds the person executing the instrument lacked testamentary capacity, the proponents of the challenged instrument have the burden to establish a prima facie case of due execution of the will or codicil and of the sound mind of the testatrix at the time of the instrument’s execution. Maurath; 586 S.W.2d at 728. Then, to submit the issue of mental incapacity to the jury, the contestants must introduce substantial evidence that the testatrix did not have the mental capacity to make the instrument at the time it was executed. Id.; Glover v. Bruce, 265 S.W.2d 346, 353 (Mo.1954). See also Dowling v. Luisetti 351 Mo. 514, 173 S.W.2d 381, 385 (1943). Importantly, “[t]here can be no submissible issue of testamentary incapacity without some evidence of such incapacity at the time the [codicil] was executed.” Smith, 188 S.W.2d at 833. Evidence of mental unsoundness before or after the execution of the challenged instrument, as long as it is not too remote in time and indicates mental unsoundness existed when the instrument was executed, is admissible. Id.See also Glover, 265 S.W.2d at 352. “[L]ay witness [testimony] is competent [evidence] provided it is based upon facts furnishing a reasonable inference of mental unsoundness” at the time the challenged instrument was executed. Smith, 188 S.W.2d at 833. Additionally, medical opinion testimony may be introduced to establish the mental unsoundness of a person at the time a challenged instrument is executed. See Ambruster v. Sutton, 362 Mo. 740, 244 S.W.2d 65 (1951).

A testatrix is shown to have testamentary capacity when the evidence reveals that, at the time of the execution of the will or codicil, the testatrix understood the ordinary affairs of life, the value and extent of her property, the persons who are the natural objects of her bounty, and that she is giving her property to the persons mentioned in the will or codicil in the manner stated. Glover, 265 S.W.2d at 352; see also Sturm, 373 S.W.2d at 928. If a testatrix’s testamentary capacity is established, then she has “ ‘the right to dispose of [her] property according to [her] own way of thinking, and it is not for courts or juries to make a will [or codicil] for [her].’ ” Rex v. Masonic Home of Missouri, 341 Mo. 589, 108 S.W.2d 72, 74 (1937) (quoting Major v. Kidd, 261 Mo. 607, 170 S.W. 879, 881 (1914)).

In light of these principles, we review the evidence at trial to determine whether there was substantial evidence indicating Testatrix lacked mental capacity to execute the March 24, 1999 codicil. Contestant and his wife, Kelley Dorsey, testified as did Testatrix’s deceased husband’s sister, Kathleen McKee; Testatrix’s brother, Michael Tully; and a psychiatrist, Dawn Holeman, who had neither met nor examined Testatrix. Contestant also produced the deposition testimony of one of Contestant’s brothers, Patrick Dorsey; a letter written by Kelley and Tim to Patrick, and the letter response sent by Patrick and his wife, Denise Dorsey; two letters written by Testatrix to Kelley and Tim; and the medical records of a psychologist, Dr. Samuel Blumberg, who treated Testatrix from 1995 until 2001. Proponents introduced into evidence the testimony of: Anthony L. Anderson, the attorney who drafted and was present for the execution of the challenged codicil; Lela Von Drasek, Beulah Anderson, and Gerald L. Warren, the three witnesses to the execution of the challenged codicil; Megan Zeh; Patrick; Dr. Samuel Blumberg, the psychologist who treated Testatrix for several years until 2001; Dr. Fred Rottnek, who was Testatrix’s physician from 1998 until 2000 and Testatrix’s friend from 1996 until her death; Nancy Taschler, one of Testatrix’s friends; Brian; and Michael.

Through our review of this evidence and its reasonable inferences in a light most favorable to Contestant, the record reveals that: Testatrix was a registered nurse, who worked until she died in November 2001 as a result of ovarian cancer and there were only a few days between her diagnosis and death. Testatrix sometimes had disagreements with relatives as a result of which she would not speak to them for over a month, and even for approximately one year. Her disagreements with Tim and Kelley will be discussed in more detail below.

Testatrix’s brother, Michael Tully, testified that his and Testatrix’s mother had psychiatric problems and in 1984 to 1985 was diagnosed as having manic depression, for which she received chemical and elec-tro-shock treatment and was in and out of the hospital from Labor Day 1984 until her death in December 1985.

Testatrix’s husband, James Dorsey, died suddenly in 1992 while at the airport accompanied by Testatrix. Tim and Testatrix had disputes about seeing James’s body at the hospital and at the funeral home, and Testatrix was angry when Tim let others know James’s body could be viewed before the closed casket funeral.

In January 1993 Tim met Kelley, a citizen and at that time a resident of Canada, while on vacation in Jamaica. For about six weeks beginning in October 1993 they lived with Testatrix, until they moved into their own apartment in the St. Louis area. Kelley and Testatrix enjoyed a cordial relationship during this time. When Tim and Kelley discussed getting married in Jamaica with Testatrix, she got angry, saying in part, “You can’t do that. That would be like giving the entire family the finger.” In an effort to get married before Kelley’s four-month visitor’s visa expired, Tim and Kelley were married in January 1994 by a judge in St. Louis. Tim and Kelley sent an informal wedding invitation to the “Dorsey Family” but no one attended the ceremony other than Michael Tully, his wife, Nancy Tully, two of Tim’s friends, and the parents of one of those friends.

Within a few months of the January 1994 wedding, Kelley told Tim that Testatrix had told her something like James’s death “was the best thing that could have happened. That she was planning on divorcing [him] but she was going to wait until [their youngest child] graduated from high school.” In the spring or summer of 1994 Tim confronted Testatrix in an effort to get her to talk about her reported plans to divorce James. During this conversation, Kelley said to Testatrix, ‘"You might have wanted your husband dead, but you’re not going to kill mine” and called Tim’s sister, Megan, a profane name. Although Testatrix never told Tim not to come to her home, Tim did not see Testatrix again except at his grandmother’s funeral in 1997 and in the four days before Testatrix died. Kelley apologized to Megan for that 1994 comment shortly before Testatrix died. Tim was not invited to Megan’s and Brian’s weddings, which were in 1999 and 2000, respectively.

After Testatrix’s death, Patrick discovered two undated letters Testatrix had written, one to Kelley and one to Tim, discussing her reaction to the wedding plans they had discussed. In the letter addressed to Tim, Testatrix stated in part:

There are not enough adjectives available to describe my feelings after our conversation Sunday. You are filled with such hate and bitterness, it is frightening.
If you chose to designate me as the lightning rod for all your problems so be it. I have attempted to provide a home and family for you and your siblings. With a large group of people there are always a variety of personalities and emotions along with those emotions [sic?] are what “being a family” is about. I’ve always opened our home to your friends.
I hope in time you can resolve your hatred and bitterness. Historically, looking back, you might be able to see that you were always given support and love and did not want for anything.
. . * * _ *
Hopefully, our family will withstand the turmoil. I also hope you will be comfortable and happy with the decision regarding the accusations.
My best wishes to you and Kelley and much happiness.
Love, Mom

The one addressed to Kelley stated in part:

To say I am perplexed at the present state of affairs is an understatement....
Sadiy, I ... have never seen so much hate and venom directed at me.
The phrase lying and talking behind people is often repented. As indicated by my prior statements what seemed to be the problem are my truthful comments. If I had lied, I suppose everyone would be happy.
Perhaps if Tim had been honest and upfront with me at the onset and through- the last few months, some of this could be avoided — but then maybe not.
Life is too short. Who knows who will ever be here tomorrow. My family is important to me. If one member chooses to depart, that saddens me. If one apple falls off the tree, I hope the other apples and tree remain strong and intact.
My best wishes to you and Tim and much happiness. Since the unfamiliar phrase “giving my blessing” has become such an issue — you have that, too. Go for it.
Usfi Sharon

Michael Tully, Testatrix’s brother, testified that, while Testatrix may have had trouble knowing who in her family liked her or who her friends were, he and Testatrix handled a number of legal matters together; he never doubted her ability to handle major life decisions about her family and property; and she was “well oriented and alert to what was going on” when they discussed “any kind of family business ... from time-to-time.”

Dr. Holeman, a psychiatrist who did not meet or treat Testatrix, but who reviewed Dr. Blumberg’s records of his care of Testatrix and spoke with Contestant and Tully, also testified for Contestant. Tully told Dr. Holeman his and Testatrix’s mother had been diagnosed with manic depression. From reviewing Dr. Blumberg’s records, Dr. Holeman discerned that Dr. Blumberg diagnosed Testatrix with “depressive disorder ... NOS, which refers to not otherwise specified,” which “encompasses a lot of symptoms [and] doesn’t necessarily get better”; that Testatrix was treated with antidepressant medications from 1996 until 2001; and that “there were episodes that were suggestive of hypomania, which were in the notes followed by a significant depression.” She testified that, in her “thinking,” Testatrix had “a hypo-manic episode” in the spring of 1999 based on Dr. Blumberg’s notes indicating Testatrix had “a broad and expansive affect” during visits on March 17, 1999, and April 7, 1999, and had what Dr. Holeman characterized as “impulsive and rash actions” in June and July 1999. As a result of her review of Dr. Blumberg’s records, and conversations with Tim and Tully, Dr. Holeman diagnosed Testatrix as having “depression, with hypo-manic episodes interspersed.” Then, in response to a hypothetical, Dr. Holeman opined that Testatrix was not of sound mind on March 24, 1999. Dr. Hole-man did testify that she wouldn’t know from the records whether Testatrix knew the natural objects of her bounty, and, as far as she could tell, Testatrix had sound enough mind to be a professional nurse, go to work everyday, and “handle any number of other types of decisions that would occur in the normal everyday life.”

Dr. Blumberg’s records for his January 18,1999, February 24,1999, and March 17, 1999 visits with Testatrix report that Testatrix was going to Italy in March. Then, Dr. Blumberg’s progress notes for his April 7, 1999 visit with Testatrix indicates her report that “Italy [was] good.”

Proponents’ evidence does not support Contestant’s claim except to the extent it reiterates evidence Contestant presented showing Testatrix had some disputes with people and that Dr. Blumberg treated Testatrix for a diagnosed depression for several years before her death. Because we may not consider evidence contrary to that supporting Contestant’s claim, we will not discuss Proponents’ evidence in detail. We note, however, that their evidence substantially supports a determination that Testatrix was of sound mind within the period of time encompassing March 1999. Such evidence includes the testimony of: Anderson, the attorney who drafted and was present at the execution of Testatrix’s will and challenged codicil, who testified Testatrix was of “sound mind” at the time she executed the challenged codicil; Warren, one of the witnesses to the execution of the challenged codicil, who testified nothing happened at the execution of the codicil that gave him “any reason to question whether she was of a sound and disposing mind at the time”; Dr. Blumberg, the psychologist who treated Testatrix from about 1995 through 2001, who testified she was not of unsound mind and was a “balanced” person; Dr. Fred Rottnek, who was Testatrix’s friend from 1996 until her death, and her physician from 1998 until 2000, who testified she was “never” of unsound mind; Patricia Zach, who was a friend of Testatrix from about 1997 until her death and testified she would “rate [Testatrix] as being of a very sound mind, very straightforward”; Patrick, who testified Testatrix had normal mood swings and was not delusional until the last few days of her life when she was on medication; Brian, who lived with Testatrix at least from 1994 until his marriage in 2000, and testified Testatrix functioned as the head of the household during that time; Michael, who has lived in Testatrix’s home all of his life and testified that Testatrix was capable of managing her own affairs; and Megan, who testified Testatrix had numerous friends, was not subject to unusual mood swings, and was not delusional until the last few days of her life when she was on medication.

Based on this record, and our standard of review, we conclude Contestant did not introduce substantial evidence of Testatrix’s lack of testamentary capacity on March 24, 1999. All of the lay witness testimony regarding Testatrix’s behavior and demeanor that was presented by Contestant either pointed out Testatrix was a registered nurse who continued to work until shortly before her death and could handle business and family affairs, or addressed conduct that occurred five or more years before Testatrix executed the challenged codicil. None of the lay witnesses presented by Contestant expressed an opinion that Testatrix was of unsound mind at any point of time near March 24, 1999. Moreover, neither Contestant nor his wife, Kelley, saw Testatrix for over seven years, between the spring of 1994 and a few days before Testatrix’s death in November 2001, except briefly at a funeral in 1997. The fact that Contestant and Kelley had disagreements with Testatrix in late 1993 and early 1994 regarding their wedding ceremony does not indicate to us that Testatrix was of unsound mind in March 1999. Nor does the fact Testatrix may have chosen not to initiate further encounters with Contestant and Kelley after the heated exchange between Kelley, Testatrix, and Zeh in the spring of 1994 persuade us that Testatrix was of unsound mind in March 1999. While the lack of communication and interaction between Testatrix and her son and his wife for such a long period of time may be tragic and unfortunate, that lack of closeness does not in itself depict Testatrix was of unsound mind when executing a codicil that cut off that son’s share of Testatrix’s bounty upon her death. Rather, the prolonged lack of communication and interaction may indicate the reason for the change in, the distribution of Testatrix’s property to her children.

Contestants did not present any evidence that at the time Testatrix executed the March 24, 1999 codicil she was unable to transact her ordinary business and household affairs, did not know or understand fully the value and extent of her property, did not know who were the objects of her bounty, and did not understand she was giving her property as set forth in the codicil.

While Contestant did present the opinion of a psychiatrist that Testatrix was of unsound mind on March 24, 1999, that opinion, based only on a hypothetical and not on a meeting with or treatment of Testatrix, is not substantial evidence of Testatrix’s testamentary incapacity at the time she executed the challenged codicil. Several Missouri Supreme Court cases support our determination that this type of medical opinion testimony is insufficient to submit the issue of Testatrix’s testamentary capacity to the jury. Rex, 341 Mo. 589, 108 S.W.2d 72; Dowling, 351 Mo. 514, 173 S.W.2d 381; Rothwell, 241 S.W.2d 893.

In Rex, the Missouri Supreme Court found the contestants had not presented substantial evidence of a testatrix’s lack of testamentary capacity despite lay witness opinions that the testatrix was of unsound mind, a treating physician who “had no opinion as to” the testatrix’s “mental condition,” and the opinion of two non-treating physicians, based on a hypothetical, that she was of unsound mind at the time the challenged will was executed. Rex, 108 S.W.2d at 80-85. The Court characterized the lay witness testimony as showing Testatrix had “personal eccentricities and peculiarities, ... [and may have been] stubborn, suspicious, ... lacking in affection for her relatives, stingy, and ... exhibiting a quick and explosive temper” on occasion, but concluded that testimony was not probative of testamentary incapacity because it was not accompanied by proof of the testatrix’s conduct at the time she executed the challenged will. Id. at 85. Moreover, the two opinions by non-treating physicians “based wholly and alone upon the facts and circumstances detailed in contestants’ evidence d[id] not constitute substantial evidence of testamentary incapacity.” Id.

In Dowling, the Missouri Supreme Court again found opinions of physicians who had not seen the testator and who based their opinions on hypotheticals did “not constitute substantial evidence of mental incapacity” in light of the absence of evidence of the testator’s mental incapacity on the date the challenged will was executed. Dowling, 173 S.W.2d at 386. The testator executed the challenged will at a hospital the day after he was admitted to the hospital and within 19 days of his death. Id. at 381-82. Hospital records admitted into evidence reported that at the time of his admission to the first hospital the testator was “unable to give [a] lucid picture of his present illness [and was] an uncooperative senile white man of 80 in no acute distress,” and, upon his transfer to another hospital the day after he executed the will, he was diagnosed as, in part, suffering from “[s]enility,” and was admitted “conscious and rational.” Id. at 384. The Court noted “the contestants’ case rests entirely upon the testimony of expert witnesses who never saw [the testator] .... [The] contestants produced no witness, either lay or professional, who ever saw him either after he went to. the hospital or even when he was confined to his room prior” to that. Id. at 385. The only lay witness presented by the contestants who spoke to the testator approximately two months prior to his hospitalization “did not question his mental capacity at that time.” Id. The Court also found that the notation upon the testator’s initial hospital admission that he was unable to give a “lucid picture” was unclear absent testimony “as to what kind of a statement [the testator] made, what his conduct was, or how he then appeared” and “it [was] impossible to tell what it meant without some further explanation.” Id. at 386. The other hospital record indicating that, upon admission, the testator was “conscious and rational” was found by the Court to be “clear and need[ed] no explanation.” Id.

In Rothwell, the Missouri Supreme Court determined that the testimony of a medical expert, based only on a hypothetical and his review of hospital records, that the testator was “suffering from senile psychosis and therefore of unsound mind,” along with certain lay witness testimony which did not reveal conduct by the testator “that would justify or support these witnesses’ stating the testator was of unsound mind,” did “not add up to substantial evidence that [the testator] did not have mental capacity to make” the challenged will. Rothwell, 241 S.W.2d at 894, 895. Concluding the record did “not contain substantial evidence that [the] testator was of unsound mind at the time he signed the [challenged] will,” the Supreme Court held the proponents’ contention that the contestants “did not introduce substantial evidence authorizing the submission of the case to the jury should be sustained.” Id. at 896.

As in those cases, the lay witness testimony Contestant presented here does not reveal any evidence of people who observed or spoke with Testatrix on or around March 24, 1999 the date she executed the challenged codicil. Therefore, there is no lay witness evidence of Testatrix’s testamentary incapacity on that date. Contestant’s case must depend only on the opinion provided by Dr. Holeman that Testatrix was of unsound mind on March 24, 1999. That opinion, however, was not derived from Dr. Holeman’s visit with or treatment of Testatrix, but was derived solely from a review of medical records, a conversation with Tim, a conversation with Tully regarding the mental health of his and Testatrix’s mother, and a hypothetical posed during trial. Under the circumstances, Dr. Holeman’s opinion does not constitute substantial evidence of Testatrix’s mental incapacity on March 24, 1999. Because Contestant failed to present substantial evidence from which reasonable minds could draw different conclusions from the facts about Testatrix’s mental incapacity on March 24, 1999 the issue of her testamentary capacity was not a question for the jury and the trial court erred in not granting Proponents’ motion for directed verdict.

Point three is granted. In light of our disposition of point three, we need not address points one, two, and four.

The order for a new trial is reversed and this matter is remanded with directions to enter judgment in favor of Proponents declaring that the March 24, 1999 codicil is a valid part of the Last Will and Testament of M. Sharon Dorsey.

LAWRENCE E. MOONEY, Presiding Judge and LAWRENCE G. CRAHAN, Judge: Concur.

      . We find the record establishes that Proponents satisfied their initial burden of showing both due execution of the codicil and Testatrix's mental capacity at the time the codicil was executed through several witnesses present at its execution.

      . For ease of reference we may use first names when we refer to individual members of the Dorsey family who have the same last name. We do not mean to be disrespectful by using an individual's first name only.

      . Contestant's motion to strike Proponents’ original brief for failure to comply with Rule 84, filed April 16, 2004, is denied as moot because we granted Proponents leave to file an amended brief. Contestant's motion to strike Proponents’ amended brief for failure to comply with Rule 84 is denied.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    James HILLEBRANDT, Defendant/Movant, v. STATE of Missouri, Plaintiff/Respondent.
    No. ED 83658.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 15, 2005.
    Richard P. Hereford, Clayton, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Assistant Attorney General, Jefferson City, MO, for Respondent.

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

PER CURIAM.

James Hillebrandt (Movant) appeals from the motion court’s judgment denying his Rule 29.15 motion for post-conviction relief after an evidentiary hearing. A jury convicted Movant of one count of first-degree involuntary manslaughter, in violation of Section 565.024 and one count of armed criminal action, in violation of Section 571.015. The trial court sentenced Movant as a prior and persistent offender, subject to an extended term of imprisonment, to consecutive terms of ten years on the manslaughter conviction and five years on the armed criminal action conviction. Movant appealed the judgment of his convictions but later voluntarily dismissed that appeal. Movant thereafter timely filed his pro se and amended motions, pursuant to Rule 29.15, alleging ineffective assistance of his trial counsel. This appeal follows.

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

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


text:
    Dennis CUNNINGHAM, Appellant, v. STATE of Missouri, Respondent.
    No. ED 83737.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 15, 2005.
    S. Kristina Starke, Assistant Public Defender, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Dora A. Fichter, Jefferson City, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN, J., and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Dennis Cunningham appeals the judgment denying his Rule 29.15 motion to vacate, set aside, or correct his judgment and sentence following an evidentiary hearing.

Having reviewed the briefs of the parties and the record on appeal, we conclude the motion court did not clearly err. Rule 29.15(k). An extended opinion would have no precedential value. We have, however, provided the parties with a memorandum setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


author: WILLIAM H. CRANDALL, JR., Judge.

text:
    Julia M. APPLING, Appellant, v. Paul Matthew APPLING, Respondent.
    No. ED 84086.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 15, 2005.

      Daniel P. Card, II, Jefferson City, MO, for appellant.
    Benicia Ann Baker-Livorsi, Michael A. Turken, St. Charles, MO, for respondent.
   WILLIAM H. CRANDALL, JR., Judge.

Wife, Julia M. Appling, appeals from the judgment of the trial court, .dissolving her marriage to husband, Paul Matthew Ap-pling. We affirm, as modified.

The parties were married in July 1983 and separated in July 2002. Three children were born of the marriage: a daughter in 1984; a son in 1989; and a daughter in 1992. Throughout the marriage, the parties moved frequently because of husband’s job transfers. They lived in various cities in Missouri; in Atlanta, Georgia; and in Tampa, Florida. In 1997, the family moved'to the St. Peters, Missouri area.

At the time of dissolution, wife was 42 years of age. She was a college graduate with a degree in office administration. During the early years of the marriage, wife worked as a secretary in the medical field. After her second child was born, she and husband agreed that she would remain home to care for the children. When the family moved to the St. Peters area, they bought a horse for their son and a pony for their younger daughter. The family began attending horse shows. Starting in the spring of 2002, wife was frequently away from home for horse shows. At the time of dissolution, wife was not employed and felt that she needed additional training before she could reenter the work force.

Husband was a college graduate who worked in the telecommunications industry. His past annual earnings were $125,473.00 in 1999; $160,386.00 in 2000; $133,620.00 in 2001; and $166,955.00 in 2002. In March 2003, husband’s employment was terminated and he received $92,566.00 in severance pay. At the time of dissolution, husband was employed and was earning about $80,000.00 per year.

Wife filed a petition for dissolution of her marriage to husband and husband filed a cross-petition for dissolution. The trial court dissolved the parties’ marriage. The court, inter alia, awarded wife non-modifiable maintenance of $1,500.00 per month for a period of 12 months. The court ordered the marital home sold and the net proceeds of the sale divided equally between husband and wife. The court divided certain marital property between the parties and set aside their separate property to each of them. The court awarded the son the horse and computer equipment and the younger daughter the pony. The court awarded the parties joint legal and physical custody of the children, but specified that son’s primary residence should be with husband. After completing its own Form 14, the court found that the presumed child support amount was unjust and inappropriate. The court ordered husband to pay child support of $775.00 per month to wife as long as the elder daughter was living with wife, the younger daughter was living with father one week and with mother the next week, and the son was living with father; but reduced the child support to $400.00 per month when the elder daughter no longer lived with mother. The court ordered each party to be responsible for 50 percent of all medical expenses not covered by health insurance. The court ordered husband to pay 75 percent and mother to pay 25 percent of the children’s post-secondary educational expenses. Wife appeals from that judgment.

Our review is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

In her first point, wife contends that the trial court erred in awarding non-modifiable maintenance for a period of twelve months. She argues that because she required further education to re-enter the work force, it was speculative that she would be employed and self-sufficient within one year.

The trial court has broad discretion in determining the duration of maintenance and an appellate court will interfere only if the award is improper or an abuse of discretion. Cohn v. Cohn, 841 S.W.2d 782, 786 (Mo.App. E.D.1992). If there is a reasonable expectation of an impending change in the parties’ financial condition rather than mere speculation as to such a change, an award of limited duration maintenance is proper. Id. A party is not required to wait to request modification until it is certain the spouse receiving maintenance will be self-sufficient. Id.

Here, wife had a college degree in office management. Although she had not been employed outside of the home since 1989, she had at least six years of work experience in the medical field prior to that time. The vocational expert, who evaluated wife and whose report was admitted into evidence, stated that a comprehensive one-year independent study course for medical transcription was available at the community college. He stated that for a medical transcriptionist the expected starting salary was $26,500.00 and that the job market was strong. He further opined that if wife chose merely to update her computer skills, she would be eligible for an entry-level administrative position, with the earning capacity of about $24,000.00 per year. Wife herself testified that she wanted to take a six-month course in medical terminology, but that she did not have the funds to do so. By giving wife maintenance for a period of 12 months, the court provided wife with ample opportunity to complete her desired coursework and secure employment as well as the necessary funds to pay for additional education. Wife failed to prove that the court abused its discretion in concluding there was a reasonable probability that she could become self-sufficient within one year. Point one is denied.

In her second point, wife asserts that the trial court erred in awarding certain marital property to the parties’ children. She specifically challenges the award of the 2000 Firebird Trans-Am automobile,, the horse “Three Steps Ahead,” the pony “Comanche Charlie,” the Dell home computer, the Cannon eopier/fax, and the four-wheel ATV. She argues that the court lacked jurisdiction to award marital property to third parties. The parties disagree about whether to characterize the above-mentioned property as marital property owned by them or as nonmarital property owned by their children.

Section 452.330.1 RSMo 2000 states that in a proceeding for dissolution of marriage “the court shall set apart to each spouse such spouse’s nonmarital property and shall divide the marital property. ...” The statute gives the trial court broad power to divide and distribute marital property. Randolph v. Randolph, 8 S.W.3d 160, 168 (Mo.App. W.D.1999). The statute, however, does not give the trial court discretion to divide and distribute marital property to the parties’ children. Id. Thus, it was error for the trial court to award the property at issue to the parties’ children. Wife’s second point is granted.

An error in classifying property, however, is not necessarily prejudicial error. Judy v. Judy, 998 S.W.2d 45, 53 (Mo.App. W.D.1999). This court is not to reverse a judgment unless error was committed materially affecting the merits of the action. Id. The erroneous characterization of property requires reversal of the division of marital property if the error materially impacts the overall distribution of marital property. Id.

In the present action, wife testified that the four-wheel ATV belonged to husband. Her proposed division of property, which was admitted into evidence, valued the ATV at $4,000.00 and suggested that it be awarded to husband. Wife’s proposed division of property did not include the Dell computer, the Cannon copier/fax machine, the horse, or the pony. Her list of “HOUSEHOLD/PERSONAL GOODS,” which was admitted into evidence, included the Dell home computer, valued at $900.00, and the Cannon copier/fax, valued at $350.00; but made no mention of the other items of property at issue. Husband testified that the horse belonged to his son and the pony belonged to his younger daughter. Mother testified that the horse belonged to her, not to her son. No evidence as to the value of either the horse or the pony was adduced. Yet, on appeal, husband posits that there was no prejudicial impact on the property division because “[t]he values in Wife’s statement of property of the horses are minimal.” In light of the distribution of property in excess of $800,000.00 to the parties and husband’s implicit adoption of a “minimal” valuation of the horses, this court declines to find that the property at issue impacted on the overall distribution of the marital property-

Under Rule 84.14, when the appellate court believes the trial court has erred, it may enter the judgment the trial court should have entered. L.A.L. v. L.L., 904 S.W.2d 50, 55 (Mo.App. E.D.1995). Accordingly, the decree is modified to award husband the four-wheeler ATV; and to award wife the horse “Three Steps Ahead,” the pony “Comanche Charlie,” the Dell home computer, and the Cannon copier/fax.

In her third point, wife charges error in the trial court’s Form 14 calculation to determine the presumed child support amount, because the calculation did not include imputed income to husband, un-reimbursed medical expenses, and college expenses. Wife argues that without these amounts computed into the Form 14 calculation, the court could not make a finding that the presumed child support amount was unjust and inappropriate. The trial court rejected the Form 14 of each party and completed its own Form 14.

We first address wife’s argument relating to imputation of income to husband. In calculating child support, the trial court has discretion to impute income to an underemployed or unemployed parent. Burton v. Donahue, 69 S.W.Bd 76, 79 (Mo.App. E.D.2001). A parent may not escape responsibility to his or her family by deliberately limiting his or her work to reduce income. Id. In order to avoid such a situation, a court, in proper circumstances, may impute income to a parent according to what that parent could earn by use of his or her best efforts to gain employment suitable to that parent’s capabilities. Id. What constitutes the appropriate circumstances to impute income will depend on the facts and must be determined on a case-by-case basis. Id.

In performing its Form 14 calculation, the court used husband’s current monthly income of $6,666.00 or $80,000.00 annually, instead of using his average salary of $152,109.00 for the four years preceding the dissolution. The evidence was that husband’s employment was terminated by his employer in the spring of 2008. At the time of dissolution in December 2003, he was employed, but at a salary less than his previous salary. There was no evidence that the termination by his previous employer was voluntary or that he actively attempted to reduce his income. Under these circumstances, the trial court did not err in refusing to impute income to husband.

We next address wife’s argument relating to unreimbursed medical expenses. The trial court ordered wife to pay 50 percent of all medical expenses not covered by health insurance.

The directions and comments for use for completion of Form 14, Line 6d provide for the inclusion of “uninsured extraordinary medical costs” in the Form 14 calculation to establish the presumed child support amount. Comment A under Line 6d defines uninsured medical costs as “reasonable and necessary” and extraordinary medical costs as “predictable and recurring, such as expenses for dental treats ment, orthodontic treatment, asthma treatment and physical therapy.”

In her amended statement of income and expenses, which was admitted into evidence, wife listed $175.00 in expenses for medical, dental, and drugs for the children in her custody. On appeal, she claims that this amount included $100.00 per month for orthodontic expenses for one of the children. There was, however, no evidence in the record as to the nature of these medical expenses. Thus, the record is devoid of any evidence to establish that the medical expenses were either “reasonable and necessary” or “predictable and recurring.” If the expenses in question are not predictable and recurring, then the burden of requiring the custodial parent to pursue the payment of the uninsured medical expenses from' the non-eustodial parent, under a separate order, would be slight and would not justify building in the payment of uninsured medical costs into the monthly child support obligation. Keller v. Keller, 18 S.W.3d 589, 599 (Mo.App. W.D.2000). Given the circumstances of this case, where the actual amount of the extraordinary medical expenses is unknown, the trial court did not err in failing to include an exact dollar amount for medical expenses for the children in its Form 14 calculation.

Regarding the college expenses, section 452.340.5 RSMo 2000 provides that the child support obligation of a parent shall continue for a child enrolled in an institution of vocational or higher education provided certain conditions are met, until age twenty-one or until the child’s education is complete, whichever occurs first. Thus, the payment of the reasonable expenses of a child, for whom an obligation of support is owed, for attending such an institution has been found to be a form of child support. Ricklefs v. Ricklefs, 39 S.W.3d 865, 877 (Mo.App. W.D.2001). Such expenses, however, are not included in the calculation of the basis child support obligations. Id. The directions and comments for use in completion of Form 14, Line 6e, titled “Other extraordinary child-rearing costs,” Comment A, provides, in pertinent part:

Post-secondary educational expenses ... are not included in the schedule of basic child support obligations. These expenses may be included in Form No. 14 as an “other extraordinary child-rearing cost” if the parents agree or the court orders that the parents contribute to payment of these expenses.

(Emphasis added). In Shiflett v. Shiflett, 954 S.W.2d 489, 493-94 (Mo.App. W.D.1997), the appellate court recognized that, under the applicable directions and comments for completing the Form 14 worksheet, the inclusion of post-secondary expenses as “other extraordinary child rearing costs” in the trial court’s calculation of the presumed child support amount was discretionary with the trial court. This approach is logical inasmuch as many times such expenses are not present expenses, but future expenses triggered upon enrollment at a later date, with the result that they cannot be reflected as part of a Form 14 calculation of the presumed child support amount. Ricklefs, 39 S.W.3d at 878. In light of the unique nature of post-secondary educational expenses as a component of child support, it is reasonable that, as an alternative to including such expenses in the trial court’s Form 14 calculation, the present Form 14 scheme envisions a separate order of support. Id.

Here, the trial court did not include college expenses in its Form 14 calculation and it was not obligated to do so. The actual out-of-pocket costs for the children’s college education was uncertain at the time of dissolution. At that time, only the oldest child was attending college and the cost of college for the two younger children was uncertain. Thus, the trial court entered a separate judgment in lieu of adding a specific dollar amount to the Form 14 calculation. See, e.g., MacDonald v. Minton, 142 S.W.3d 247, 253 (Mo.App. W.D.2004). The trial court did not abuse its discretion in failing to include college expenses in Its Form 14 calculation. Wife’s third point is denied.

In her fourth point, wife challenges the trial court’s requiring her to be responsible for 50 percent of the unreim-bursed medical expenses.

Section 454.633.3 RSMo 2000 governs the payment of uncovered medical expenses of a child by his or her parents- and provides, in pertinent part:

As between parents, responsibility for the child’s care expenses that are not covered by a health benefit plan may be equitably apportioned between the parents by the court or the division, in percentage shares based on their income, or based on a written agreement of the parties. If the order or agreement fails to designate the shares applicable to the parents, then each parent shall be liable for fifty percent of such expenses.

As discussed above, Form 14 provides for the inclusion of extraordinary medical expenses in calculating the presumed child support amount; whereas, the payment of uncovered non-extraordinary medical expenses is to be handled by a separate order. Here, no evidence was adduced that extraordinary medical expenses were incurred for the children. As such, the court’s order that wife pay 50 percent of the uncovered medical expenses was only for the payment of non-extraordinary medical expenses; and there was no indication in the record that such medical expenses were significant. The trial court did not err in ordering wife to pay 50 percent of the uncovered medical expenses. Wife’s fourth point is denied.

In her fifth point, wife contends that the trial court abused its discretion in ordering her to be responsible for 25 percent of the college expenses.

In reviewing an award of child support for post-secondary expenses, this court recognizes that the trial court is in the best position to determine the financial capability of a parent to assist in the support of the parent’s child, including college expenses. Rieklefs, 39 S.W.3d at 878. The appellate court views the evidence and permissible inferences in the light most favorable to the decree and disregards all contrary evidence and inferences. Id. Deference is accorded the trial court unless the evidence is palpably insufficient to support it. Id. A parent’s ability to pay and a child’s needs are factors the court considers in determining whether to order the parent to pay a percentage of a child’s post-secondary educational expenses. Id.

In the instant action, when the trial court prepared its Form 14 calculation, it determined that wife’s proportionate share of the parties’ combined income was 24.75 percent. Thus, the court’s order that wife pay 25 percent of the college expenses for the children reflected her share of the parties’ income. Wife’s fifth point in denied.

The judgment is modified to award husband the four-wheeler ATV; and to award wife the horse “Three Steps Ahead,” the pony “Comanche Charlie,” the Dell home computer, and the Cannon copier/fax. The judgment is affirmed, as modified.

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

      . Wife’s claim of error regarding the automobile is moot, because the car has been sold with the parties’ consent and the proceeds from the sale distributed to daughter.


text:
    STATE of Missouri, Respondent, v. William Lee APEL, Appellant.
    No. WD 63590.
    Missouri Court of Appeals, Western District.
    Feb. 22, 2005.

      Andrew C. Webb, Sedalia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Andrea Mazza Follett, Asst. Attorney General, Jefferson City, for Respondent.
    Before HAROLD L. LOWENSTEIN, P.J., JAMES M. SMART, JR., and EDWIN H. SMITH, JJ.
   PER CURIAM.

William Apel appeals his convictions of two counts of first-degree drug trafficking, § 195.222.8, and one count of possession of a precursor chemical with the intent to create a controlled substance, § 195.420.1. Apel challenges the trial court’s rulings on discovery and evidentiary matters, and also asserts that the lawfully admitted evidence was insufficient to convict. We find his points IV through VIII to be such that our resolution of those points is without jurisprudential value. We resolve those points by summary ruling under Rule 30.25(b) and furnish a memorandum concerning our analysis to the parties. We will thus undertake in this opinion to discuss only Points I, II and III, in which Apel asserts that the trial court erred in failing to suppress evidence on Fourth Amendment grounds.

Statement of Facts

At trial, the State presented the following evidence. On April 11, 2002, Corporal Brian Daniel of the Missouri State Highway Patrol received information from an unknown woman that a Pettis County residence (which was subsequently revealed to be Apel’s residence) housed an active methamphetamine laboratory. The woman revealed this information to Daniel after he had made a traffic stop. Daniel followed up on the evidence, visiting the residence that day. No one answered his knock at the door, and he left.

The next evening, Daniel returned to Apel’s residence. While driving in his car with the windows down along a gravel road that came to within about 50 or 60 feet from the house, Daniel smelled a strong chemical odor. He recognized this odor as the type produced when methamphetamine is being “cooked.” Having been told that the house may contain a scanner, he turned around and headed in the other direction so that he could avoid detection while he attempted to obtain assistance from other officers. Immediately after turning the car around, he saw a black truck pull into the residence. Daniel changed his plan, turned around again and drove back toward Apel’s home.

When he reached ■ the outside of the residence, he spoke with Apel, who had just exited the truck. Apel evidently identified himself as a resident of the premises.

I indicated that we were looking for a subject, and I asked him who was in the residence, and he indicated he'was unaware of who was in the residence. I asked him if he would care to take me inside the residence to identify the other occupants.

Apel “initially hesitated,” said Officer Daniel. “However, he indicated he would take me into the residence,” and Apel did so. Inside the residence, Daniel smelled a strong odor that he believed was anhydrous ammonia. He saw, in plain view, a scanner and several radios in the living room and a fan that was operating in the kitchen window. Daniel also saw two occupants, Teresa Petree and Michael Wormsley. Petree was standing in front of the kitchen sink with a bottle of bleach nearby. Officer Daniel asked Wormsley some questions. Shortly thereafter, he took both occupants' outside and placed them under arrest.

Officer Daniel further questioned Apel regarding the residents of the house. Apel told him that a young man named “Dustin” (who was later identified as Dustin Tietge) lived with him at the house. Apel agreed to show the rest of the house to Daniel, who could smell the same strong odor emanating from a room in the back of the house. Apel opened the door to the room, which was an unfinished back porch; the strong odor burned Daniel’s eyes, nose, and lungs. In plain view, Daniel observed a glass Mason jar containing a bubbling liquid. Daniel secured Apel in front of the residence and contacted the Sheriffs Department for assistance.

Without obtaining a search warrant, additional officers (including Officer Troy Blunt) arrived at the house and processed it for evidence. In a bedroom, they found a baggie of chunky white powder, which subsequently tested positive for 20.85 grams of methamphetamine; three blister packs of pills and some unused baggies; a respirator.mask; and marijuana paraphernalia.

They also found three jars in plain view on the counters. Testing revealed the contents of these jars to be 25.55 grams of powdered pseudoephedrine, 50.79 granas of pseudoephedrine, and 100.95 grams of liquid methamphetamine, respectively. A search of the kitchen cabinets revealed Prestone starting fluid, liquid Heet, canning jars, and coffee filters.

They also found jars on the back porch. Testing revealed the contents of these jars to be 48.84 grams of liquid methamphetamine, 9.27 grams of powdered methamphetamine, and 21.14 grams of liquid methamphetamine. The search of the porch produced three empty Prestone cans as well. Prestone and Heet are sources of ether, which is often used to manufacture methamphetamine.

Similar drug-related products were found throughout the rest of the house. In Apel’s bedroom, the officers found scales customarily used by drug dealers and two Wal-Mart receipts dated several weeks earlier for the purchases of Heet, salt, starting fluid, and a “twin window fan.” The search of Apel’s bedroom also revealed a decongestant box, an empty salt container, and a full salt container. The officers knew that salt could be combined with muriatic acid to create the hydrochloride used in methamphetamine production.

In a disabled truck parked outside of the residence, officers found tubing typically used to link anhydrous ammonia “nurse tanks” to propane tanks. Other evidence relating to anhydrous ammonia production — an Igloo thermos and a ten-gallon propane tank — was found throughout the rest of the house.

At a bench trial, Apel testified in his own defense that he had no knowledge of any drug-related activities taking place in his house on April 12, 2002, or at any other time. He also said that when he left for work at 6:45 a.m. on April 12, none of the incriminating evidence that was found later that night was in his residence.

He also presented the testimony of Teresa Petree, one of the persons found in the house on the day in question. Petree had pleaded guilty to possession of the proscribed substances found in Apel’s home. At Apel’s trial, Petree admitted that she and Dustin Tietge were engaged in methamphetamine production at Apel’s home on that day. Petree said that she did not arrive until around noon, after Apel had already left for work in the morning. She also testified that she brought a number of the ingredients required to manufacture methamphetamine. However, Petree’s testimony failed to account for all of the evidence discovered in the house. She did not account for the methamphetamine discovered in the freezer and the kitchen cabinets.

The court convicted Apel of two counts of first-degree trafficking and one count of possession of a precursor chemical. The court sentenced him to two fifteen-year terms for the trafficking counts and one seven-year term for the possession count, with all sentences to run concurrently.

Apel appeals.

Search and Seizure

In his first three points on appeal, Apel argues that the trial court erred in refusing to exclude evidence on the basis of his claim of an unreasonable search and seizure.

At the outset, we note that the parties dispute whether Apel has preserved this issue for appeal. The State is correct that Apel’s failure to object at trial to the admission of the evidence constitutes a failure to preserve the issue for appeal. See State v. Cosby, 976 S.W.2d 464, 467 (Mo.App.1998). Nonetheless, here, the trial court declined to rule on the pre-trial motion to suppress and instructed counsel that the motion would be taken with the case, and a ruling reserved for after trial. Counsel obviously understood that the court would consider his objection preserved even if not made at trial. Accordingly, here, we will exercise our discretion to treat the pre-trial objection to admission of this evidence as though the same objection was made at trial.

The issue presented here is a question of law — whether the evidence discovered in Apel’s home was the result of an unreasonable search and seizure. State v. Werner, 9 S.W.3d 590, 595 (Mo. banc 2000). As for the evidence, we view it in the light most favorable to the trial court’s decision even if we are convinced we would have weighed it differently. State v. Kriley, 976 S.W.2d 16, 19 (Mo.App.1998). We will not reverse the ruling if it is plausible in light of the record as a whole. Id.

The evidence reflects that an anonymous tip led Officer Daniel to Apel’s residence, where he smelled an odor indicating methamphetamine was being produced. Daniel approached Apel, who had just driven up to the residence, told him that he was looking for a subject, and asked Apel if he would take the officer inside the house to identify the occupants. According to Officer Daniel, Apel agreed to allow him to enter for the purpose of identifying the occupants. Once inside, Officer Daniel saw two occupants and several incriminating items in plain view. He also experienced more of the strong odor, which he said burned his eyes, nose, and lungs. Officer Daniel “secured the area.” Daniel called for assistance. Other officers arrived and searched the house and the cur-tilage. At no time did an officer obtain a search warrant.

At trial, the State introduced as exhibits the fruits of Daniel’s search for occupants and the fruits of the subsequent search for evidence. It is the admission of this evidence that Apel contests.

The Fourth Amendment to the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV (emphasis added). Generally, the warrantless entry and search of a home is presumptively unreasonable and violates the Fourth Amendment. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); see also State v. Kimberley, 103 S.W.3d 850, 856 (Mo.App.2003). Thus, the entry and search at issue is valid only if justified by a recognized exception. Kriley, 976 S.W.2d at 21.

Initially, we address Apel’s argument that the lack of reliability of the informant’s tip invalidates the search. Officer Daniel went to Apel’s residence in response to an anonymous tip that methamphetamine was being produced at the home. Apel argues that this information did not establish, probable cause because Daniel had no prior experience with the tipster.

Apel fails to recognize that Corporal Daniel did not need probable cause to go the residence on April 11 or April 12. The police, in the course of a criminal investigation, may enter the curtilage around a home and knock on the door to seek admittance or to converse with the resident. See Kriley, 976 S.W.2d at 22. “[T]here is no reasonable expectation of privacy subject to Fourth Amendment protection where the public at large is welcome.” Id.

Officer Daniel’s suspicion that methamphetamine was being produced in Apel’s residence at the time he asked for permission was based on more than an anonymous tip. During his second visit to the house, Daniel smelled an odor which he, based on experience and training, associated with methamphetamine production. Thus, the officer had reasonable suspicion that a crime was being committed at the time he contacted Apel in the driveway.

Consent

Entry of a residence upon valid consent of a resident in charge of the home is lawful. State v. Johnston, 957 S.W.2d 734, 742 (Mo. banc 1997). Consent is valid only when it is freely and voluntarily given. State v. Bunts, 867 S.W.2d 277, 281 (Mo.App.1993). Consent is freely and voluntarily given if, in light of the totality of the circumstances, the objective observer would conclude that it was the result of a free and unconstrained choice. State v. Hyland, 840 S.W.2d 219, 221 (Mo. banc 1992).

Officer Daniel testified that he asked Apel if he could enter his residence to identify the occupants. Daniel said that although Apel hesitated briefly, he agreed to take him into the residence. Nothing in Daniel’s testimony indicated that Apel’s compliance was the result of a threat, coercion, or force. Daniel drew his gun as he was about to enter the residence, after consent had already been given. The drawing of the gun, under the circumstances, was not unreasonable. Entry of the house could have been perceived as a significant safety risk in view of the apparent methamphetamine production in process.

Apel testified that he did not consent to Daniel’s entry into the house. However, the court was free to choose which rendition of events to believe. State v. Shaw, 915 S.W.2d 775, 780 (Mo.App.1996). The notion that Apel voluntarily consented is not extremely improbable in fight of the record as a whole. Kriley, 976 S.W.2d at 19. Viewing the evidence in a fight favorable to the trial court’s decision, we cannot say the trial court’s ruling was implausible in the light of the record as a whole. We cannot say the trial court erred in determining that valid consent was voluntarily given.

Probable Cause

Once inside the residence, Daniel was authorized, as he looked for the occupants, to observe any evidence in plain view. What an individual knowingly exposes to public view, even in his or her own home, involves no reasonable expectation of privacy and is not a subject of Fourth Amendment protection. Kriley, 976 S.W.2d at 19. The plain view doctrine allows an officer, who is lawfully located in a place, to seize any objects that can plainly be seen so long as there is probable cause that the object is connected to a crime. State v. Johnston, 957 S.W.2d 734, 742 (Mo. banc 1997).

Officer Daniel was, as determined by the trial court, lawfully in the home as a result of valid consent. The scope of this consent included authority to enter the house for the purpose of identifying occupants. Upon entering the house, Daniel saw two occupants, one in the living room and one in the kitchen. Daniel also saw a scanner and several radios in the living room. The tipster had warned the officer that the occupants of the house might have a scanner on. The presence of the scanner was thus further corroboration. In the kitchen window, he saw a box fan that was blowing the noxious odor to the outside. The scanner, radios,.box fan, and individuals were in plain view. The presence of the scanner and the odor were consistent with and confirmatory of the information gained from the tip.

Daniel had, as a result of these factors, an abundance of probable cause to believe that the residence housed a meth-amphetamirie lab. “Probable cause exists where the apparently incriminating character of the item is obvious.” Johnston, 957 S.W.2d at 742-43. The odor of anhydrous ammonia emanating from Apel’s residence, the presence of the scanner, and the box fan were obviously indicators of a methamphetamine operation.

Although Daniel had already discovered two occupants, he had no knowledge whether anyone else was in the house at that time. Having probable cause to believe a crime was in progress, and not knowing who else might be in the house, a careful search of the rest of the house was .reasonable. Also, Daniel said he asked again, for consent to search the rest of the house. Apel complied. At this point, however, it is doubtful that Apel’s consent was necessary. With a methamphetamine operation in effect, the officer was ready to begin to make arrests and, for the purposes of both safety and to interrupt a crime in progress, the officers were free to ascertain who else was in the house, and to determine whether they were estopped in the commission of a crime or might constitute a threat to the officer’s safety.

While walking through the remainder of the first floor, Daniel saw a box of Heet in the kitchen. Daniel knew that Heet was typically used in the production of methamphetamine. Daniel also continued to smell the strong odor coming from a room in the back of the house. Apel opened the door to the room, and the strong odor burned Daniel’s eyes, nose, and lungs. In plain view, Daniel observed a glass Mason jar containing a bubbling liquid. The strong odor and the presence of the jar indicated that an active methamphetamine operation had been interrupted in progress.

Apel argues that Officer Daniel never intended to look for occupants. He says that Daniel’s statement to Apel about looking for a subject was “merely a pretext to gain entry ... to conduct a more thorough search.” Apel suggests that this “misrepresentation” is tantamount to coercion and, therefore, invalidates his alleged consent.

It is not at all clear that there was a misrepresentation. The officer’s testimony is consistent with the notion that after he got out of his vehicle and approached Apel, he wanted to say that he was looking for particular person, but that he did not remember the name, although it was written on a pad in his vehicle. If that is true, then his statement that he was looking for a “subject” is not completely false. In any event, we fail to see how Officer Daniel’s statement, even if it was a “misrepresentation,” was such that it would transform Apel’s consent into non-consent. In consenting to allow access to search for a particular subject, Apel inferentially authorized the officer to observe all items in plain view.

The facts of this case are easily distinguishable from those contained in the cases that Apel cites in support of his assertion. See State v. Lorenzo, 743 S.W.2d 529 (Mo.App.1987) (search of van and its contents went beyond the scope of consent to “peek” inside vehicle); Bump er v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) (consent invalid where officer misrepresented that he had a warrant to conduct the search). Here, Officer Daniel did not exceed the scope of the permission he was given. Also, the officer did not lie in an effort to cause the issuance of a warrant. It is not even clear that it would be fair to call the officer’s statement a misrepresentation. Apel admits that the officer told him that he could not remember the name of the person he was looking for, but he had it written down on some paperwork in his car. Apel could have, but did not, insist that the officer retrieve the name in question.

The next question is whether the officer should have, after arresting the occupants, secured the premises, and then sought to obtain a warrant before conducting a further search of the premises. The answer is that would have been the most technically proper thing to do. It is obvious, however, that he would have had a duty to post officers on the premises to make sure no one obtained access to the dangerous chemicals in the interim. It is further obvious that a warrant would have issued. Moreover, even if it did not seem that there was an immediate risk of an explosion in connection with chemicals on the premises, as a general rule it is not a good idea to defer the investigation of the site of a chemical laboratory containing volatile chemicals. Thus, we conclude that the warrantless search of the house at that time was reasonable. See State v. Rowland, 73 S.W.3d 818, 824-25 (Mo.App.2002) (strong smell of ether and incriminating items observed in plain view established probable cause to obtain a search warrant). Therefore, these items were properly admitted into evidence.

The touchstone of the Fourth Amendment is reasonableness. KHley, 976 S.W.2d at 21. The police could have arrested the occupants and watched the house while a warrant was procured. But whether the police waited and formally obtained a warrant or not, they would have had to secure, the house and preclude access. There was no practical difference to Apel whether or not a warrant was obtained. Thus, it was not error for the trial court to admit the evidence obtained in the warrantless search.

The judgment is affirmed.

      . Counsel ran some risk of being considered on appeal to have waived objection to the evidence. The only sure way to avoid that risk is to either (1) have the judge specifically recite for the record that the objection is preserved throughout; or (2) respectfully demand a ruling on the pre-trial motion before trial; and then, throughout the trial, as neces-saiy, reiterate the objection, so that the court may reconsider at each stage of the proceeding. The court does not have to take such a motion "with the case.” If the court is not persuaded that the motion should be granted, the court can simply deny the motion subject to reconsideration later at trial when proper objection is made at trial.

      . This case also is no longer authoritative because it was overruled by State v. Martin,

        892 S.W.2d 348, 351 (Mo.App.1995).

      . In State v. Rutter, 93 S.W.3d 714 (Mo. banc 2002), the Court refused to employ the "inevitable discovery” doctrine where it appeared that the warrantless search had an effect of undermining a defendant’s claim of self-defense. In that case, had the police gone to get a warrant before searching the residence, the defendant’s self-defense argument would not have been weakened because he could have maintained (without fear of strong rebuttal) that there were firearms in the victim’s closet at the time of the shooting even though no firearms were later discovered when the officers searched. Here, it is clear that the officers would not have allowed anyone access to the premises because of the obvious danger, even if they had gone to procure a warrant.


author: JAMES K. PREWITT, Judge.

text:
    John McELHENY, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 26139.
    Missouri Court of Appeals, Southern District, Division One.
    Feb. 22, 2005.

      Irene Earns, of Columbia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for Respondent.
   JAMES K. PREWITT, Judge.

John H. McElheny (“Movant”) appeals the denial of his Rule 29.15 motion for post-conviction relief following an eviden-tiary hearing. Movant was- convicted by a jury of second-degree murder and sentenced to a term of life imprisonment in 1997. On direct appeal, this court affirmed the conviction and sentence by per curiam order, and the mandate issued on August 31, 1998.

Movant timely filed a pro se Rule 29.15 motion and an in forma pauperis affidavit, alleging indigency. Movant’s request for appointed counsel was denied, and a hearing date was set. However, Movant did not appear for that hearing, as he was incarcerated and had not been appointed counsel, and the motion court found him in default and denied his motion. Movant contacted the State Public Defender’s Office and the district defender entered his appearance on behalf of Movant. A Rule 75.01 motion was filed, which the motion court sustained, and Movant’s post-conviction case was “reinstated.” That ruling was subsequently set aside and Movant’s Rule 29.15 motion was denied.

On appeal from the denial of his pro se motion, this court reversed the motion court’s ruling and remanded for further proceedings to allow appellant to amend his motion. McElheny v. State, 29 S.W.3d 861 (Mo.App.2000). Counsel was appointed and an amended motion was filed alleging ineffective assistance of trial counsel. An evidentiary hearing was held on October 9, 2001. Movant’s motion for post-conviction relief was denied on January 20, 2004. This appeal follows.

Movant contends, among other things, that the motion court failed to recognize Movant’s claim that trial counsel was ineffective in that she failed to properly object to testimony that constituted evidence of an uncharged bad act. Movant further contends that had trial counsel made the appropriate objection, the trial court could have recognized that the testimony was not legally or logically relevant and, as such, was inadmissible.

Under Rule 29.15(k), our review of the denial of a post-conviction motion is limited to deciding whether the motion court’s findings and conclusions are clearly erroneous. Felder v. State, 88 S.W.3d 909, 913 (Mo.App.2002). The findings and conclusions of a motion court are clearly erroneous only if, after a review of the entire record, we are left with a firm and definite impression that a mistake has been made. Id.

To be entitled to relief under a claim for ineffective assistance of counsel, a movant must establish that counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances and that counsel’s deficient performance prejudiced the defense. Id. To demonstrate prejudice, a movant must “establish by a preponderance of the evidence that there is a reasonable probability that the result would have been different.” Jeremiah v. State, 73 S.W.3d 857, 859 (Mo.App.2002). Movant is required to satisfy both prongs of the test, and should a movant fail to satisfy one, the court need not consider the other. Perry v. State, 11 S.W.3d 854, 862 (Mo.App.2000). There is a presumption that counsel’s conduct was appropriate. State v. Madewell, 904 S.W.2d 66, 68 (Mo.App.1995).

At Movant’s trial, evidence was presented that placed Movant and an acquaintance, Philip Buchanan, at a bar in Camden County on the night of December 2, 1995, where there was a shooting resulting in the death of Jerry Burns. Burns had been accompanied by others who were celebrating a birthday. At some point in the evening, a fight ensued, involving Mov-ant and Buchanan against Burns and members from his group. There was testimony that there was an altercation between Jerry Burns and Movant during the brawl. Apparently, both Movant and Buchanan sustained injuries, and the two men left the bar together. Later that night, Movant and Buchanan returned to the bar, and Jerry Burns was fatally shot inside the bar. Movant was subsequently accused of killing Jerry Burns.

It was alleged at trial that Movant had been paying unwanted attention to one of the women with Jerry Burns and his group. Some witnesses stated that Mov-ant was pointing and staring at the woman, and there was testimony that Jerry Burns had approached Movant and asked him to stop. It was after Burns approached Movant that the fight broke out.

Deanna Shoemaker was called to testify for the prosecution. She was allegedly the woman receiving Movant’s attention prior to the fight. She testified that when she was at the bar on the night prior to the shooting, she saw Movant and Buchanan there and spoke briefly to Movant when she went up to the bar to get a drink. The exchange between them was friendly; Movant told her she looked too young to be drinking, and she thanked him for the compliment. However, she was later approached by Kevin Williams, the disc jockey working at the bar that night, who related a conversation wherein Movant and Buchanan had stated to him that “they had a $5,000.00 hit on [her], that [she was] either going home with them or they were going to kill [her].” Deanna later told her husband what Williams had said, and when she saw Movant and Buchanan at the bar on December 2,1995, she pointed them out to her husband, who in turn pointed them out to Jerry Burns.

Defense counsel for Movant objected to Deanna’s testimony regarding what Kevin Williams had stated to her. The testimony and counsel’s objection thereto are set forth below:

Q [By prosecutor] In the course of the evening [December 1, 1995] did something else happen that involved this [Movant]?
A [By Deanna Shoemaker] Yes, sir.
Q Tell the jury what that was, please.
A I saw Kevin Williams talking to [Movant] several times and then later on he came up to me and asked me if I was—
[DEFENSE COUNSEL]: Objection. May we approach?
THE COURT: Approach.
[DEFENSE COUNSEL]: This clearly is trying to elicit a hearsay statement as to what Kevin Williams told her.
THE COURT: Wish to argue?
[PROSECUTOR]: It’s not hearsay, not offered to prove the truth. If there ever was an admission under the res gestae this is it, on top of which she'referred to it in opening statement.
[DEFENSE COUNSEL]: Don’t believe I said anything about what Kevin Williams told her on Friday night. You did in your opening statement. I don’t believe there’s anything with res gestae.
[PROSECUTOR]: Goes directly to what happened the next night. It’s not hearsay because its not offered to prove the truth of what was said.
[DEFENSE COUNSEL]: What is the purpose of the testimony then?
[PROSECUTOR]: What happened the next night.
THE COURT: Overrule the objection, she may finish.
(THE PROCEEDINGS RETURNED TO OPEN COURT)
(by [Prosecutor])
Q Let’s back up a little bit and tell the jury who Kevin Williams is.
A He was the [disc jockey] at Sisters [Bar].
Q And when you say the [disk jockey] are — where did he hang out at Sisters?
A Like okay, this is where he was. He was in this area right here where the stage is.
Q Have a seat back in the witness box. Now you were beginning to describe for the jury a conversation that you had with Kevin Williams later on the night of December the 1st?
A Yes, sir.
Q And would you go ahead and tell the jury what that conversation was?
A Yes, sir. He come up to me and asked me if I was scared or if something was wrong ... and I said no. And I asked why and he said, “Well, These two guys over here said that they had a $5,000.00 hit on you, that you were either going home with them or they were going to kill you.”
Q And did he say anything else to you about that?
A And he also a little bit later, pulled, told me that Buchanan was sent down here to kill me from the city.
Q Did that make any sense at all to you?
A No, absolutely none.

In addressing Movant’s contention that trial counsel was ineffective for failing to properly object that this testimony constituted evidence of an uncharged bad act, the motion court made the following finding:

Movant has asserted that this testimony was inadmissible hearsay, but has offered no cogent argument in support of this assertion. Indeed, the testimony to which Movant objects is admissible on a variety of bases that need not be delineated here. The ruling of the trial court was correct. Even if it were not, however, Movant has failed to show the requisite prejudice occasioned by appellate counsel’s failure to assert this error on appeal, particularly considering the overwhelming evidence of Movant’s guilt presented to the jury at trial. In order to justify relief, Movant must show that he was prejudiced by his counsel’s ineffective assistance to such an extent “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Mallett v. State, 769 S.W.2d 77 (Mo. banc 1989) at 82. This Movant has not done.

Here, we do not find the motion court’s findings and conclusion regarding Movant’s claim to be clearly erroneous. Movant had the burden to establish that there was a reasonable probability that the result in the criminal trial would have been different had the testimony not been allowed. The motion court determined that Movant failed to establish prejudice. Mov-ant testified in his own behalf and admitted that, although he could not recall the shooting, he believed the shot that killed Jerry Burns came from him. The trial court’s finding of no prejudice was not clearly erroneous. Movant’s point is denied.

The motion court’s judgment is affirmed.

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


author: JEFFREY W. BATES, Chief Judge.

text:
    STATE of Missouri ex rel. Linda CUNNINGHAM, Relator, v. The Honorable John D. WIGGINS, Judge, Division 2 Circuit Court of Phelps County, Respondent.
    No. 26700.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 22, 2005.

      Lawrence R. Smith and Steven G. Kaufman of St. Louis, MO, for Relator.
    No appearance for Respondent.
   JEFFREY W. BATES, Chief Judge.

PRELIMINARY ORDER IN PROHIBITION MADE ABSOLUTE

Linda Cunningham (“Relator”) seeks a writ of prohibition to prevent the Honorable John D. Wiggins (“Respondent”) from proceeding any further with respect to the first count of a two-count petition filed against Relator by Eugene Hollis (“Hollis”). Relator contends Respondent must dismiss Count I of the petition because Hollis lacks standing to pursue the cause of action alleged therein. Relator’s petition in prohibition is based on the following facts.

On April 14, 2004, Hollis filed a two-count petition in the Circuit Court of Phelps County, Missouri. The caption of the petition listed two plaintiffs: “LUCILLE HOLLIS, A deceased person, By and through her Plaintiff Ad Litem, Eugene Hollis, and EUGENE HOLLIS, Individually and as Plaintiff Ad Litem For Lucille Hollis....” Relator was named as the defendant in the petition. The introductory sentence of the petition stated: “COMES NOW Lucille Hollis, a deceased person, by and through her Plaintiff Ad Litem, Eugene Hollis, and Eugene Hollis, individually and for their cause of action against the Defendant, Linda M. Cunningham, states to the court as follows....” In the first count of Hollis’ petition, he sought to recover damages from Relator for allegedly causing personal injuries to Hollis’ deceased wife, Lucille Hollis (“Decedent”), in a motor vehicle collision. In Count II, Hollis pled his own individual claim for loss of consortium based on the personal injuries allegedly inflicted upon his wife by Relator.

Along with the petition, Hollis also filed a motion requesting he be appointed plaintiff ad litem for Decedent. This motion contained the following statements pertinent to the issues presented by Relator’s petition for a writ of prohibition:

1. Plaintiff Eugene Hollis is the lawful widower of Lucille Hollis, a deceased person, and wishes to bring an action for personal injury sustained by Lucille Hollis on or about April 24, 1999.
2. Upon the death of Lucille Hollis, there was no Estate opened for Lucille Hollis in Maries County, Missouri, the county of residence.
3. Therefore, there is no personal representative to bring a survival action on behalf of Lucille Hollis.
4. The widower of Lucille Hollis, Eugene Hollis, is the most appropriate person to bring this action on her behalf.

Based on the record presented to us, it appears the trial court has never ruled on the motion. Therefore, at present, Hollis is attempting to pursue Decedent’s cause of action for personal injuries in Hollis’ individual capacity only.

On May 13, 2004, Relator filed a motion to dismiss Count I of the petition. One ground for dismissal asserted in the motion was that Hollis did not have standing to pursue a cause of action for personal injuries to Decedent. On July 16, 2004, Respondent overruled Relator’s motion to dismiss. Upon receipt of the ruling, Relator filed a motion for reconsideration which was denied on November 4, 2003. Shortly thereafter, Relator filed her petition in prohibition with this Court. See Rule 97.03. We issued a preliminary order in prohibition, which we make absolute.

“Prohibition lies to prevent a court from acting in excess of its jurisdiction.” State ex rel. East Carter County RII School Dist. v. Heller; 977 S.W.2d 958, 959 (Mo.App.1998). Relator challenges Hollis’ standing to assert the cause of action pled in Count I of his petition. Farmer v. Kinder, 89 S.W.3d 447 (Mo. banc 2002), contains a discussion of standing that is germane here:

Standing is a jurisdictional matter antecedent to the right to relief. It asks whether the persons seeking relief have a right to do so. Where, as here, a question is raised about a party’s standing, courts have a duty to determine the question of their jurisdiction before reaching substantive issues, for if a party lacks standing, the court must dismiss the case because it does not have jurisdiction of the substantive issues presented. Lack of standing cannot be waived.

Id. at 451 (citations omitted).

Since standing is jurisdictional, prohibition is a proper remedy when an action is brought by a party who lacks standing. See State ex rel. Stifel, Nicolaus & Co., Inc. v. Clymer, 522 S.W.2d 793, 798 (Mo. banc 1975); State ex rel. Tang v. Steelman, 897 S.W.2d 202, 203 (Mo.App.1995); State ex rel. Eagle Oil Co. v. Tillman, 712 S.W.2d 20, 22-23 (Mo.App.1986). The dispositive issue here is whether Hollis has standing, either individually or in the capacity of a plaintiff ad litem, to pursue Decedent’s cause of action for personal injuries.

At common law an action for personal injuries did not survive the death of the injured individual. Plaza Exp. Co. v. Galloway, 365 Mo. 166, 280 S.W.2d 17, 21 (banc 1955). In Missouri, this common law rule has been abrogated by statute. Section 537.020 states, in pertinent part, as follows:

1. Causes of action for personal injuries, other than those resulting in death, whether such injuries be to the health or to the person of the injured party, shall not abate by reason of his death, nor by reason of the death of the person against whom such cause of action shall have accrued; but in case of the death of either or both such parties, such cause of action shall survive to the personal representative of such injured party, and against the person, receiver or corporation liable for such injuries and his legal representatives, and the liability and the measure of damages shall be the same as if such death or deaths had not occurred....
2. The right of action ... for personal injury that does not result in the death shall be sufficient to authorize and to require the appointment of a personal representative by the probate division of the circuit court upon the written application therefor by one or more of the beneficiaries of the deceased.

Thus, Decedent’s cause of action for personal injuries did not abate upon her death, but it survived only to a personal representative of her estate appointed by the probate division of the circuit court. As used in this statute, “personal representative” means a person to whom letters testamentary or letters of administration have been issued in a probate estate. See Carter v. Pottenger, 888 S.W.2d 710, 714 (Mo.App.1994).

Hollis’ motion for appointment of a plaintiff ad litem, conceded no estate was opened after his wife’s death and no personal representative was ever appointed. Likewise, Hollis’ petition shows on its face that he brought suit on Decedent’s personal injury claim individually and asked to be appointed plaintiff ad litem for Decedent. Because Hollis did not bring suit in the capacity of personal representative of Decedent’s estate, he lacks standing to pursue Decedent’s cause of action for personal injuries. See State ex rel. Tang v. Steelman, 897 S.W.2d 202, 203 (Mo.App.1995); Carter, 888 S.W.2d at 714; Howell v. Murphy, 844 S.W.2d 42, 49 (Mo.App.1992); Sauter v. Schnuck Markets, Inc., 803 S.W.2d 54, 55 (Mo.App.1990).

Our decision would not change even if Hollis had been appointed plaintiff ad li-tem as he requested. Section 537.021.1(1) authorizes such an appointment, but only for the purpose of pursuing a cause of action for lost chance of recovery or survival. See Caldwell v. Lester E. Cox Medical Centers-South, Inc., 943 S.W.2d 5, 7 (Mo.App.1997); Smith v. Tang, 926 S.W.2d 716, 722 n. 2 (Mo.App.1996). Count I of Hollis’ petition alleged no such cause of action.

Respondent is ordered to proceed no further upon Count I, except to enter an order dismissing this count of the petition. See State ex rel. Tang v. Steelman, 897 S.W.2d 202, 203 (Mo.App.1995).

SHRUM and BARNEY, JJ., Concur.

      . Since Lucille Hollis is deceased, she should not have been named as a party in the caption of the petition. “Courts have jurisdiction to render judgments for or against viable entities only. A dead person is by definition not a viable entity.” Holmes v. Arbeitman, 857 S.W.2d 442, 443 (Mo.App.1993); see Wilkerson v. Williams, 141 S.W.3d 530, 537 (Mo. App.2004).

      . After the issuance of the preliminary order, we were advised that Judge Wiggins has retired. Therefore, our peremptory writ will be directed to the judge who succeeded Judge Wiggins in office as the Division II Circuit Judge in Phelps County, Missouri.