author: JOSEPH M. ELLIS, Judge.

text:
    STATE of Missouri, Respondent, v. Anthony BACON, Appellant.
    No. WD 62384.
    Missouri Court of Appeals, Western District.
    Jan. 11, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 1, 2005.

      Michael E. Reardon, Kansas City, MO, for appellant.
    Andrea K. Spillars, Jefferson City, MO, for respondent.
    Before ELLIS, C.J., BRECKENRIDGE and EDWIN H. SMITH, JJ.

      . Appellant introduced evidence that Kloeke had been charged with possession of the cocaine base and had entered a plea on a lesser charge.

   JOSEPH M. ELLIS, Judge.

Anthony Bacon appeals from his conviction by jury of one count of class C felony possession of a controlled substance (more than thirty-five grams of marijuana), § 195.202; one count of attempted manufacture of a controlled substance (hashish), § 195.211; and one count of class C felony possession of a controlled substance (cocaine), § 195.202. Appellant was sentenced to consecutive terms of seven years imprisonment on the first count, fifteen years on the second count, and one year on the third count.

In February 2001, Appellant and his wife purchased a house at 7506 North Sycamore in Kansas City, Missouri. On June 1, 2001, the couple separated, and Appellant’s wife and son moved out of the house. By June 15, 2001, two women, Tara King and Lori Klocke, had moved into the house with Appellant.

On June 15, 2001, acting on a tip, detectives with the Kansas City, Missouri, Police Department sent a confidential informant into Appellant’s home to attempt to purchase narcotics. The informant purchased a 0.1 gram rock of crack cocaine from someone inside the house.

On June 19, 2001, one of the detectives involved in the June 15, 2001 operation applied for a warrant to search the house at 7506 North Sycamore. In the detective’s affidavit, she described the drug purchase that had occurred on June 15 and noted that the confidential informant had stated that she had seen the occupants of the residence armed with a handgun in the past. After reviewing the application, the Circuit Court of Clay County issued a no-knock warrant allowing the police to search the home at 7506 North Sycamore for cocaine; firearms; U.S. currency in close proximity to narcotics; the two twenty dollar bills that had been used by the confidential informant to purchase the crack cocaine; narcotics paraphernalia; any items used in the preparation, packaging or distribution of cocaine; documents related to drug trafficking; and indicia of occupancy, residency, ownership and/or control over the premises.

The search warrant was executed on June 19, 2001, by the police department’s Tactical Squad and Gang Squad. Members of the tactical squad broke the glass storm door and then used a ram to force open the front door to the house. Prior to entering, officers detonated a “distraction device” in the living room. As he entered the house and made his way through it, Detective James Svoboda saw Appellant and Lori Klocke standing in the kitchen and ordered them to get down on ■ the ground and place their hands on their heads. Both complied with those orders. Shortly thereafter, officers handcuffed Appellant and Klocke and took them outside.

After officers were satisfied that the premises were secure, they conducted a search of the house. A piece of a beige, rock-like substance the size of a small pebble was found on the floor of the kitchen along the southeast wall. Five to ten smaller pieces of the substance were recovered from the floor of the kitchen underneath the table. Lab analysis later revealed the substance to be 0.1 grams of cocaine base.

In the garage, officers found four bags of a leafy, green substance, later determined to be 2,100 grams of marijuana in a cardboard box. In another cardboard box, they found three gallon-sized jars containing a leafy, green substance and a liquid. That substance was also determined to be marijuana.

In the master bedroom officers found a wallet containing Appellant’s driver’s license on the top of a dresser next to the bed. In a cabinet by the bed, officers recovered a .357 caliber handgun that was registered to Appellant. In the master bathroom, on the counter next to the sink, officers recovered a small, round tin containing a leafy, green substance, later found to be 20 grams of marijuana.

In an attic space accessed through a panel in the wall of the master closet, officers recovered a bag containing a leafy green substance, later determined to be 160 grams of marijuana, under a floorboard.

Appellant was subsequently charged by information with class B felony possession of a controlled substance with the intent to distribute related to the marijuana recovered in the search. He was charged with one count of class B felony manufacturing of a controlled substance based upon the jars containing marijuana and the clear liquid, which the information asserted was an attempt at manufacturing hashish. Finally, Appellant was charged with one count of class C felony possession of a controlled substance with regard to the cocaine base recovered in the kitchen.

Appellant was tried by jury on November 4 and 5, 2002. The jury convicted Appellant of two counts of class C felony possession of a controlled substance related to the marijuana and cocaine found in the home and of one count of class B felony attempted manufacture of hashish related to the gallon jars containing marijuana and a liquid. Appellant was sentenced to consecutive terms of seven years imprisonment on the marijuana possession count, fifteen years on the attempted manufacture of hashish count, and one year on the cocaine possession count.

In his first point, Appellant contends that his convictions are not supported by sufficient evidence that he possessed any of the drugs found in the house. Appellant argues that the State failed to prove that he had actual or constructive possession of any of the various narcotics uncovered during the search.

“When a criminal defendant challenges the sufficiency of the evidence to support his conviction, our review is limited to determining whether sufficient evidence was admitted at trial from which a reasonable trier of fact could have found each element of the offense to have been established beyond a reasonable doubt.” State v. Chavez, 128 S.W.3d 569, 573 (Mo.App. W.D.2004). “[T]he function of the reviewing court is not to reweigh the evidence, but to determine if the conviction is supported by sufficient evidence.” State v. Mann, 129 S.W.3d 462, 467 (Mo.App. S.D.2004) (citing State v. Agee, 37 S.W.3d 834, 836 (Mo.App. S.D.2001)). “In making that determination, we must view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the verdict and disregard all evidence and inferences to the contrary.” Chavez, 128 S.W.3d at 573.

In assessing the sufficiency of the evidence to support Appellant’s convictions, we must analyze each of the counts against him separately to determine whether sufficient evidence was presented to support that conviction. We first consider whether the evidence sufficiently supported Appellant’s conviction for possession of over 35 grams of marijuana.

Possession or control of more than 35 grams of marijuana, a controlled substance, is a class C felony under § 195.202. “ ‘In order to establish possession, the State must show (1) a conscious and intentional possession of a controlled substance, either actual or constructive, and (2) an awareness of the presence and nature of the substance.’ ” Id. Both possession and awareness may be established through circumstantial evidence. State v. Foulks, 72 S.W.3d 322, 324 (Mo.App. S.D.2002).

“ ‘Actual possession of a substance is where the person has the substance on his person or within his easy reach and convenient control.’ ” Chavez, 128 S.W.3d at 574 (quoting State v. Rollett, 80 S.W.3d 514, 521 (Mo.App. W.D.2002)). In the case at bar, the evidence did not establish that Appellant was in actual possession of any of the controlled substances found in the house.

Accordingly, we must determine whether the State sufficiently demonstrated that Appellant had constructive possession of the various controlled substances. “ ‘Constructive possession is where a person has the power and intention at a given time to exercise dominion or control over the substance either directly or through another person or persons.’ ” Id. (quoting Rollett, 80 S.W.3d at 521). “Constructive possession requires, at a minimum, evidence that Defendant had access to and control over the premises where the drugs were found.” State v. Morris, 41 S.W.3d 494, 497 (Mo.App. E.D.2000).

“Exclusive possession of the premises raises an inference of knowledge and control.” State v. Hendrix, 81 S.W.3d 79, 83 (Mo.App. W.D.2002). However, where the defendant does not have exclusive control over the premises, “[t]he mere presence of the accused on shared premises where contraband is found is not enough circumstantial evidence to show ownership or possession.” State v. Kimberley, 103 S.W.3d 850, 858 (Mo.App. W.D.2003). “Where the defendant shares possession of the premises with others, as was the case here, additional evidence of some incriminating circumstances must also be presented to permit the inference of knowledge and control over the substance.” Hendrix, 81 S.W.3d at 83. Some of the types of additional evidence that may suffice to support a conviction where there is joint control of the premises are “routine access to an area where such substances are kept, the presence of large quantifies of the substance at the scene where appellant is arrested, admissions of the accused, ... being in close proximity to drugs or drug paraphernalia in plain view of the police, [and the] mixture of defendant’s personal belongings with the drugs.” Morris, 41 S.W.3d at 497 (internal citations omitted). “The totality of the circumstances is considered in determining whether sufficient additional incriminating circumstances have been proven.” Foulks, 72 S.W.3d at 325.

With regard to the marijuana found in the tin in the master bathroom, the evidence was clearly sufficient to support a finding that Appellant exercised constructive possession over it. Several police officers testified that the master bathroom appeared to have a male occupant based upon the fact that they noticed male clothing and hygiene items therein and did not observe any female items. Appellant’s own testimony reflects that there were no other male occupants of the house aside from himself, and Appellant admitted that his cologne was on the counter next to the sink where the tin was recovered. Furthermore, a wealth of evidence reflected that Appellant occupied the master bedroom through which the master bathroom had to be accessed. Several police officers testified that that room was filled with male clothing and other male items and that they did not observe any female items in the room. Appellant’s wallet containing his driver’s license was found on top of a dresser next to the bed, and a handgun registered to Appellant was found in cabinet in the room. In addition, the closet in the master bedroom was filled with men’s clothing that Appellant admitted was his own. Based on the foregoing evidence, the jury could reasonably have determined that Appellant was the sole occupant of the master suite and that he had the exclusive use of the master bathroom. Accordingly, the record reflects that Appellant had access to and control over the master bathroom and that items belonging to him were in close proximity to the tin containing the marijuana. Given the totality of the circumstances, we find that the evidence sufficiently supported a finding that Appellant had constructive possession of that marijuana.

Similarly, we find that the totality of the circumstances supports a finding that Appellant exercised constructive control over the bag of marijuana found in the attic. That bag was found just inside the door to the attic from the master closet. As noted supra, the evidence reflects that the master closet was filled with Appellant’s personal items and did not contain items owned by anyone else. Given the close proximity of the marijuana to Appellant’s personal effects and the reasonable inference of his exclusive access and control over the master bedroom and closet through which the attic had to be accessed, the evidence supports a finding that Appellant had constructive possession of the bag of marijuana.

Since the total weight of the marijuana found in the master bathroom and in the attic was well in excess of 35 grams, Appellant’s conviction for possession of over 85 grams of marijuana is sufficiently supported by the evidence. Accordingly, that conviction is affirmed.

Appellant was also convicted of possession of a controlled substance under § 195.202 with regard to the cocaine báse found on the kitchen floor in the house. In support of that charge, the State presented Detective Svoboda’s testimony that Appellant and Klocke were standing in the kitchen when he entered the home and that Appellant and Klocke had complied when they were told to get down on the ground and place their hands on their heads. The State also presented evidence that a piece of cocaine base the size of a small pebble was recovered from the floor underneath the kitchen table along with five to ten smaller pieces of cocaine base after Appellant and Klocke were handcuffed and taken outside.

“The mere presence of the accused on shared premises where contraband is found is not enough circumstantial evidence to show ownership or possession.” Kimberley, 103 S.W.3d at 858. Further evidence must be presented connecting the defendant with the contraband. State v. May, 71 S.W.3d 177, 184 (Mo.App. W.D.2002). “In order to show that a person in joint control of the premises knows about the presence of illegal substances and has control over those items, the state must present evidence of ‘some incriminating circumstance’ that raises the inference of such knowledge and control.” State v. West, 21 S.W.3d 59, 63 (Mo.App. W.D.2000). “ ‘[Pjroximity to the contraband alone fails to prove ownership.’ ” State v. Farris, 125 S.W.3d 382, 392 (Mo.App. W.D.2004).

The State failed to present any evidence connecting Appellant to the cocaine base aside from his mere presence, along with another person, in the room in which it was found. Detective Vincent testified that the cocaine base appeared to have been thrown on the floor but that he had no idea who had thrown the cocaine base on the floor. No testimony was offered indicating where Appellant or Kloeke was located in the room in relation to where the cocaine was found. Indeed, nothing in the record indicates that it was more likely that Appellant had thrown the cocaine base on the floor than it was that Kloeke had thrown it.

The record also leaves open the possibility that the cocaine base may have been on the floor prior to the entry of the officers into the house. The total amount of cocaine base that was recovered weighed 0.1 gram. The record reflects that the largest piece of cocaine base that was recovered was the size of a small pebble and that all of the cocaine base was recovered from the floor underneath the kitchen table. No evidence was introduced establishing that the presence of the cocaine on the floor of the kitchen would be apparent to a person standing in the room or even sitting at the kitchen table.

Under the totality of the circumstances, we simply do not find sufficient evidence to .establish Appellant’s knowledge of or control over the cocaine base recovered from the kitchen floor. See May, 71 S.W.3d at 185. Accordingly, that conviction must be reversed.

We next turn to Appellant’s conviction for attempted manufacture of a controlled substance related to the jars containing marijuana and a liquid substance that were found in a box in the garage. According to evidence in the record, this is a step in the manufacture of hashish. While not disputing that the evidence establishes that someone was manufacturing hashish in the home, Appellant contends that the evidence is insufficient to establish that he had knowledge of or control over those jars.

The same standards regarding actual or constructive possession applied to possession cases are also applicable to manufacturing cases. West, 21 S.W.3d at 64; State v. Tilley, 104 S.W.3d 814, 821 (Mo.App. S.D.2003). “If actual possession is not present, as in this case, constructive possession of the drugs or the drug components and apparatus will satisfy this burden if other facts exist which buttress the inference of the defendant’s requisite mental state.” State v. Withrow, 8 S.W.3d 75, 80 (Mo. banc 1999).

“When the accused shares control over the premises, as here, further evidence is needed to connect him to the manufacturing process.” Id. “The mere fact that a defendant is present on the premises where the manufacturing process is occurring does not by itself make a submissible case.” Id. “There must be some incriminating evidence implying that the defendant knew of the presence of the manufacturing process, and that the materials or the manufacturing process were under his control.” Id.

The record establishes that Appellant shared joint control over the house with at least one other occupant. Thus, we must determine whether evidence was presented in addition to his joint control over the premises and his presence in the house at the time of the search that would tie him to the jars.

While the jars contained a fairly large amount of marijuana, they were located inside of a closed cardboard box and were not in plain view. No evidence was presented at trial indicating that Appellant had superior access to or control over the garage area. No evidence was presented indicating that any of the items found in or around the box belonged to Appellant. In fact, no evidence was presented related to the ownership of any of the other items that were found in the garage. The record does not even indicate whether Appellant regularly parked his truck in the garage. In short, the State failed to present any evidence establishing Appellant’s possession of the jars aside from his joint control over the premises and his presence in the house when the warrant was executed. That evidence is insufficient to support his conviction. Id. at 80-81. Even taking into account Appellant’s possession of marijuana in another part of the home, the totality of the circumstances is not sufficient to establish Appellant’s knowledge of or control over the jars in the garage. See West, 21 S.W.3d at 66. Accordingly, Appellant’s conviction for attempted manufacture of a controlled substance must be reversed.

In his second point, Appellant claims that the police failed to properly comply with the “knock and announce” procedure required by the Fourth Amendment to the United States Constitution and Article I, § 15 of the Missouri constitution in executing the search warrant on his home. Appellant contends that the trial court, therefore, erred in admitting into evidence the items seized from his house because they were the fruit of an unlawfully executed search and seizure.

“The Fourth Amendment to the Constitution declares that ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’ ” State v. Ricketts, 981 S.W.2d 657, 660 (Mo.App. W.D.1998) (quoting U.S. Const, amend. IV). “The Fourth Amendment provides the same guarantees against unreasonable searches and seizures as article I, section 15 of the Missouri Constitution.” State v. Hamilton, 8 S.W.3d 132, 136 (Mo.App. S.D.1999). Therefore, any “analysis of search and seizure questions under the Fourth Amendment is identical to an analysis of those questions arising under Missouri law.” Id.

“ ‘[T]he Fourth Amendment incorporates the common-law requirement that police officers must knock on the door and announce their identity and purpose before attempting forcible entry.’ ” Ricketts, 981 S.W.2d at 660 (quoting Richards v. Wisconsin, 520 U.S. 385, 387, 117 S.Ct. 1416, 1418, 137 L.Ed.2d 615 (1997)). “[T]he common law knock and announce principle forms a part of the reasonableness inquiry under the Fourth Amendment.” Id. However, “[although the Supreme Court has incorporated the common law ‘knock and announce’ principle into Fourth Amendment jurisprudence, and acknowledged that the failure to comply with the knock and announce requirement may render an otherwise valid search and seizure invalid, the Court also has recognized that non-compliance will not inevitably offend the Constitution.” State v. Baker, 103 S.W.3d 711, 718 (Mo. banc 2003). “Where exigent circumstances exist, legitimate law enforcement interests may outweigh an individual’s right to be notified prior to police entry.” Id. If the officers have “a ‘reasonable suspicion’ that knocking and announcing their presence would be dangerous or futile, or that it would lead to the destruction of evidence,” they are justified in failing to knock and announce their presence prior to entering the premises, and this Court will uphold the constitutionality of the officers’ actions. Id. at 718-19.

Thus, a criminal defendant may challenge the admission of evidence that had been obtained after a search warrant has been illegally executed. Ricketts, 981 S.W.2d at 659. Where such a challenge is raised, the State bears the burden of demonstrating that the police were justified in disregarding the knock and announce requirement before attempting forcible entry. Id. at 660. “Specifically, the State [has] the burden to show that the police had a reasonable suspicion that knocking and announcing would be dangerous, futile or result in the destruction of evidence.” Id. at 661.

On appeal, Appellant contends that the State failed to demonstrate that the police had any such justification for ignoring the knock and announce requirement prior to forcibly entering his home. The principal problem with Appellant’s argument from an appellate standpoint is that he failed to raise any such claim prior to or during trial and has thus failed to preserve the issue for appellate review.

When challenging the admission of evidence, “ ‘a specific objection is required when the evidence is offered at trial to preserve the issue for appellate review.’ ” State v. Evenson, 85 S.W.3d 486, 491 (Mo.App. S.D.2000) (quoting State v. Cardona-Rivera, 975 S.W.2d 200, 203 (Mo.App. S.D.1998)). “ ‘To preserve an objection to evidence for review, the objection must be specific, and the point raised on appeal must be based upon the same theory.’ ” Id. (quoting State v. Knese, 985 S.W.2d 759, 766 (Mo. banc 1999)). “ ‘Failure to object at the earliest opportunity to the admission of evidence- constitutes a waiver of the claim.’ ” Id. (quoting State v. Stewart, 17 S.W.3d 162, 166 (Mo.App. E.D.2000)).

While Appellant filed a motion to suppress evidence recovered during the search, that motion merely asserted that the marijuana discovered during the search should be excluded from evidence because the search warrant authorized officers to search for cocaine and did not mention marijuana. At trial, Appellant asked for, and was granted, a continuing objection to the admission of evidence related to the marijuana found in the house for the reason set forth in his motion to suppress. The motion to suppress made no mention of any claim that the officers’ failure to knock and announce was improper, nor was any such objection raised when the evidence was offered at trial. Appellant also failed to include such a claim in his' motion for new trial. The first and only time Appellant raised any challenge to the admission of evidence based upon the officers’ failure to knock and announce occurred during the sentencing hearing, eleven weeks after the jury had reached its verdict — obviously not the earliest time that Appellant could have raised such an objection. Because Appellant failed to raise this claim when the evidence was offered by the State, any such claim has been waived and is not preserved for appellate review. Id. Point denied.

For the foregoing reasons, Appellant’s convictions for attempted manufacture of hashish and felony possession of cocaine are reversed. His conviction for felony possession of more than thirty-five grams of marijuana is affirmed.

All concur.

      . In arguing to the contrary, Appellant wholly disregards our standard of review. Appellant relies upon testimony offered by himself and his wife to support his claim that one of his female tenants, and not himself, was the sole occupant of the master suite. Appellant's reliance on this evidence is misplaced. The jury was not required to find any of that any of the testimony offered by Appellant or his wife was credible or to afford it any weight, State v. Kimberley, 103 S.W.3d 850, 857 (Mo.App. W.D.2003), and on appeal, this Court is required to view the evidence in the light most favorable to the verdict and to disregard all evidence and inferences to the contrary.
        State v. Chavez, 128 S.W.3d 569, 573 (Mo.App. W.D.2004).
      Moreover, even if Appellant's testimony were believed, at most it establishes that he shared control of the bedroom with one of the women. Appellant admitted that he kept most of his clothes in that room and that he regularly accessed the room and the closet to get his clothes. He further admitted that some of his personal hygiene items were present in the bathroom.

      . Because the marijuana found in the attic and in the master bathroom provide sufficient evidence to sustain Appellant’s conviction, we need not consider whether sufficient evidence was presented to establish Appellant’s possession of the marijuana found in bags in the garage.

      . Appellant testified that Tara King had left the home after a confrontation with him a few days before the search and that she had taken some of her belongings with her.

      . Appellant stipulated that the State had probable cause to support the issuance of the warrant.

      . Had Appellant filed a motion in limine on those grounds and/or made a proper objection to the admission of that evidence at trial, the State would have bom the burden of demonstrating that the police officers had a reasonable suspicion that knocking and announcing their presence would be dangerous or futile or that, it would result in the destruction of evidence. State v. Ricketts, 981 S.W.2d 657, 661 (Mo.App. W.D.1998). The trial court would have conducted an eviden-tiary hearing at which the State would have been required to demonstrate that extrinsic circumstances existed justifying the police officers’ decision not to knock and announce. Because Appellant failed to timely raise the issue, no such hearing occurred, and this Court has no way of knowing what evidence might have been presented by the State on this issue at such a hearing. Consequently, even if Appellant had requested that this Court to exercise its discretion to review his claim for plain error, the record on appeal is not sufficient to allow for such review. State v. Cella, 32 S.W.3d 114, 117 (Mo. banc 2000).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Joel D. HOPKINS (29.15), Appellant, v. STATE of Missouri, Respondent.
    No. WD 62696.
    Missouri Court of Appeals, Western District.
    Jan. 11, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 1, 2005.
    Sean D. O’Brien and Phillip Ray Gibson, Kansas City, MO, for appellant.
    Victor Melenbrink, Jefferson City, MO, for respondent.
    Before: EDWIN H. SMITH, C.J., SPINDEN and SMART, JJ.
   Order

PER CURIAM.

Joel D. Hopkins appeals from the order of the Circuit Court of Platte County overruling, after an evidentiary heating, his Rule 29.15 motion for post-conviction relief. After a jury trial in the Circuit Court of Platte County, the appellant was convicted of one count of murder in the first degree, § 565.021.1(2) and one count of armed criminal action (ACA), § 571.015. As a result of his convictions, he was sentenced to consecutive terms, in the Missouri Department of Corrections, of life imprisonment, without the possibility of parole for murder, and fifty years for ACA.

The appellant raises three points on appeal. In Point I, he claims that the motion court erred in denying his Rule 29.15 motion, after an evidentiary hearing, because the evidence presented at the motion hearing clearly established that he received ineffective assistance of trial counsel in that counsel failed to investigate and present the testimony of Steve Masden, a co-defendant, who would have testified that the appellant did not participate in the murder. In Point II, he claims that the motion court erred in denying his Rule 29.15 motion, after an evidentiary hearing, because the evidence presented at the motion hearing clearly established that he received ineffective assistance of trial counsel in that counsel failed to investigate and present testimony of Masden that the rap lyrics found in the appellant’s prison cell, which were in the appellant’s handwriting and linked the author of the lyrics to the murder, were actually composed by Masden and were merely recorded by the appellant. In Point III, the appellant claims that the motion court erred in denying his Rule 29.15 motion, after an evi-dentiary hearing, because the evidence presented at the motion hearing clearly established that he received ineffective assistance of trial counsel, in that counsel failed to present testimony from Masden’s sister that her brother owned tennis shoes with a tread pattern which was similar to .the pattern found imprinted on the victim’s forehead and which the State had claimed at trial was from the appellant’s tennis shoes.

Affirmed, pursuant to Rule 84.16(b).

      . All rule references are to the Missouri Rules of Criminal Procedure, 2004, unless otherwise indicated.

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


text:
    Gregory T. COLBERT, Appellant, v. Lashaun Y. ROSS, Steve Rolling, Gary Bailey, and Cindy Lech, Respondents.
    No. WD 64228.
    Missouri Court of Appeals, Western District.
    Jan. 18, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 1, 2005.
    Richard Colbert, Kansas City, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, Douglass Noland, Assistant Attorney General, Kansas City, for Respondent.
    Before HAROLD L. LOWENSTEIN, Presiding Judge, PAUL M. SPINDEN, Judge, and JAMES M. SMART, JR., Judge.
   ORDER

Gregory Colbert appeals the circuit court’s judgment dismissing his petition on the ground that it failed to state a claim upon which relief could be granted. We affirm. Rule 84.16(b).


author: ROBERT G. ULRICH, Judge.

text:
    MOORE, et ux, Appellants, v. CITY OF PARKVILLE, et al., Respondents.
    No. WD 63692.
    Missouri Court of Appeals, Western District.
    Jan. 18, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 1, 2005.

      Gary K. Alen, Parkville, MO, for appellants.
    Jack L. Campbell, Kansas City, MO, for respondent, City of Parkville.
    James C. Bowers, Jr., Kansas City, MO, for respondent, Apex Management.
    William P. Cronan, II, Rocheport, MO, for amicus curiae. '
    Before VICTOR C. HOWARD, P.J., ROBERT G. ULRICH and PATRICIA A. BRECKENRIDGE, JJ.
   ROBERT G. ULRICH, Judge.

Appellants, a number of citizens of Park-ville, appeal the summary judgment entered in favor of the City of Parkville and Apex Management Systems, Inc. in Appellants’ suit for injunctive relief. Appellants’ suit concerned the rezoning of certain property from Residential (R-l) to Planned Commercial (B-4). The issue presented is whether the City’s notice of a hearing before the Parkville Planning and Zoning Commission (Planning Commission) was sufficient to meet the requirements of section 89.050 and due process. The judgment of the trial court is affirmed.

Factual and Procedural History

Apex owns certain property within the city of Parkville. It filed an application to rezone the property from Residential (R-1) to Planned Commercial (B-4) and to approve the preliminary plan for the development of a plaza on the site called Apex Plaza. Notice of the Planning Commission hearing at which the application was to be discussed was published in the Platte County Sun Gazette. The notice appeared nineteen days before the January 14, 2003, scheduled public hearing. The City also mailed notice of the scheduled hearing via certified mail to property owners within 185 feet of the boundaries of the Apex property.

The Planning Commission met as advertised and discussed the Apex rezoning request and continued the matter to February 11, 2003, publicly announcing the continuance at the January hearing. The City again gave notice by certified mail of the February 11, 2003, hearing to all property owners within 185 feet of the boundaries of the Apex property.

The Planning Commission again met and discussed the issue at its February 11, 2003, scheduled meeting as advertised. Several interested property owners within the city limits testified against Apex’s effort to rezone the property. At the conclusion of the hearing, the Planning Commission recommended that the Parkville Board of Aldermen deny the application.

The Board of Aldermen met on March 10, 2003, to consider Apex’s application for rezoning and its preliminary plan for Apex Plaza and the Planning Commission’s recommendation that it deny the request to rezone. The Board of Aldermen passed Ordinance No. 2062 rezoning the Apex property from Residential (R-l) to Planned Commercial (B-4) and approved the preliminary plan for the construction of Apex Plaza.

Appellants filed suit against the City and Apex on June 19, 2003, seeking injunc-tive relief. The City and Apex filed their joint motion to dismiss the petition and for summary judgment. The trial court granted the motion for summary judgment on December 8, 2003. Appellants appeal from the trial court’s summary judgment.

Standard of Review

Summary judgment is appropriate where no genuine issue as to any material fact exists and the moving party is entitled to judgment as a matter of law. Farmers’ Elec. Co-op., Inc. v. Mo. Dep’t of Corr., 977 S.W.2d 266, 269 (Mo. banc 1998)(citing ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 380 (Mo. banc 1993)); Rule 74.04(c). Because the trial court’s judgment is founded on the record submitted and the law, the appellate court need not defer to the trial court’s order granting summary judgment. Farmers’ Elec. Co-op., 977 S.W.2d at 269 (citing ITT, 854 S.W.2d at 376). Appellate review is de novo, and the criteria on appeal for testing the propriety of summary judgment are no different from those that should be employed by the trial court to determine the propriety of sustaining the motion initially. Id.

Point One

In their first point on appeal, Appellants claim that the trial court erred in granting summary judgment in favor of the City and Apex because the City violated the public notice requirement of section 89.050 when it gave notice only of the Planning Commission meeting and not the Board of Aldermen meeting at which the rezoning request was considered and voted upon.

Zoning ordinances constitute an exercise of a state’s police power. City of Louisiana v. Branham, 969 S.W.2d 332, 336 (Mo.App. E.D.1998). A city has no inherent police power so it must look to statutes to determine the extent of the power delegated to it by the state. Id. Any exercise of such delegated powers must conform to the terms of the statutory grant. Id. Missouri’s Zoning Enabling Act, sections 89.010 through 89.140, is the sole source of power and measure of authority for a city, town, or village in zoning matters. Id. Section 89.030 delegates the power to zone to municipalities and provides that the local legislative bodies of such municipalities may divide their cities into zoning districts. Section 89.050 grants municipal legislative bodies the power to determine the manner in which zoning regulations shall be established and amended. It also provides that notice and a. hearing are necessary prerequisites to the valid enactment of a zoning ordinance. City of Monett, Barry County v. Buchanan, 411 S.W.2d 108, 113 (Mo.1967). Spe-cificallys section 89.050 provides:

The legislative body of such municipality shall provide for the manner in which such regulations and restrictions and the boundaries of such districts shall be determined, established, and enforced, and from time to time amended, supplemented, or changed. However, no such regulation, restriction, or boundary shall become effective until after a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. At least fifteen days’ notice of the time and place of such hearing shall be published in an official paper or a paper of general circulation in such municipality.

Section 89.060 governs the amendment of a zoning ordinance. It states, “The provisions of section 89.050 relative to public hearing and official notice shall apply equally to all changes or amendments.” § 89.060. Enactment of a zoning ordinance or the amendment of an existing ordinance must strictly comply with the statutorily prescribed notice and hearing requirements of sections 89.050 and 89.060. Branham, 969 S.W.2d at 336. Where the procedural requirements of the Zoning Enabling Act are not strictly complied with, the ordinance is invalid and cannot be enforced. Id.

Pursuant to the authority granted by section 89.050 to provide for the manner in which zoning regulations shall be established, the Parkville Board of Aldermen, the legislative body of the City of Park-ville, enacted sections 483.020 and 483.030 of the Parkville Zoning Ordinances. Section 483.020 provides that, before taking any action on any proposed amendment to the zoning districts or regulations, the Board of Alderman shall submit the amendment to the city’s Planning Commission for its recommendation and report. Section 483.030 of the Parkville Zoning Ordinances provides notice and a public hearing before the Planning Commission on any proposed amendment to the zoning district:

The Planning Commission shall hold a public hearing thereon, before submitting its report to the Board of Aldermen. Notice of public hearings before the Commission shall be given by publishing the time, place, and nature of the hearing not more than thirty (30) nor less than fifteen (15) days before the hearing at least once in one (1) or more newspapers in general circulation in the City.

Appellants argue that in addition to the requirements of the Parkville ordinances for notice and a public hearing before the Planning Commission on zoning proposals, sections 89.050 and 89.060 required Park-ville to give notice of the Board of Aider-men’s meeting at which it considered and voted upon the ordinance rezoning the Apex property. The plain language of the statutes makes no such requirement, however. Section 89.050 compels that a public hearing' be held prior to enactment of a zoning ordinance. It does not require that the public hearing be held by the legislative body, the Board of Alderman in this case, as suggested by Appellants. To hold otherwise would require this court to read into the statute the requirement of a public hearing “before the city’s legislative body.” The primary goal in construing a statute is to ascertain the intent of the legislature from the language used. State ex rel. Hunter v. Lvppold, 142 S.W.3d 241, 243 (Mo.App. W.D.2004). A court may not read into a statute a legislative intent contrary to the intent made evident by the plain language of the statute. Id.

This case is similar to the case, Reynolds v. Liccardi, 504 So.2d 654 (La.Ct.App.1987). In Reynolds, plaintiffs challenged a zoning change by the police jury, the legislative body, of the Louisiana parish of St. Bernard allowing the establishment of a trailer park on a particular tract of land. Id. at 655. They alleged that the action taken by the police jury at its regularly scheduled monthly meeting constituted a public hearing for which there was lack of proper notice. Id. The court agreed and invalidated the ordinance, and the police jury appealed. Id.

The applicable statutes provided, in pertinent part:

§ 140.54: No regulation of restriction shall become effective until after a public hearing at which parties in interest have an opportunity to be heard. A public hearing in regard to the regulations may be held by the governing authority of the parish.
§ 140.55: The provisions of R.S. 33:140.54 relating to public hearing and official notice shall apply equally to all changes or amendments.
§ 140.56: The parish planning commission ... shall be the zoning commission for the parish of St. Bernard. Before making any recommendation to the police jury, the zoning commission shall hold a public hearing. Notice of time and place of each such hearing shall be published... .After the hearing has been held by the zoning commission, it shall make a report of its findings and recommendations to the police jury and the police jury shall not hold its public hearings or take any action until it has received the final report of the zoning commission.

Id. at 656 (quoting La.Rev.Stat. Ann. §§ 140.54, 140.55, 140.56).

In the case, the parish zoning commission advertised a public hearing, held a hearing, and considered the arguments on both sides of the issue. Id. It then issued a report to the police jury. Id. At its regularly scheduled monthly meeting, the police jury considered the commission’s report and voted on the proposal. Id. The Louisiana Court of Appeals explained that section 140.54 required a public hearing before establishing or amending a zoning ordinance and that the statute did not require that the public hearing be conducted by the governing authority of the parish, although it may hold such hearing in its discretion. Id. The court also noted that section 140.56 required that the zoning commission conduct a public hearing with notice prior to making a recommendation to the police jury. Id. The court, therefore, held that the hearing before the zoning commission satisfied the requirement that a public hearing be held before effecting a change or amendment, each preliminary step required by the statutes was met, and proper notice was given. Id.

Section 89.050 provides that no zoning regulation shall become effective until after a public hearing in relation thereto. Like the statute in Reynolds, section 89.050 does not require that the public hearing be conducted by the legislative body. And also like the statutes in Reynolds, sections 483.020 and 483.030 of the Parkville ordinances require a public hearing before the Planning Commission before it makes its recommendations to the Board of Aldermen. The purpose of the notice and public hearing requirements in sections 89.050 and 89.060 is to afford interested persons an opportunity to be heard regarding a proposed zoning ordinance. Bonds v. City of Webster Groves, 432 S.W.2d 777, 783 (Mo.App.1968). In this case, notice of the January 14, 2003, and February 11, 2003, hearings before the Planning Commission were published in the local newspaper and also mailed via certified mail to property owners within 185 feet of the boundaries of the Apex property, and several interested property owners testified at the hearings against Apex’s effort to rezone the property. The hearing before the Parkville Planning Commission, thus, satisfied the hearing requirement of section 89.050.

Appellants contend that the case of Murrell v. Wolff, 408 S.W.2d 842 (Mo. 1966), supports their argument that section 89.050 requires notice and a public hearing before the legislative body to amend or enact a zoning ordinance. Murrell, however, is distinguishable from this case. The question in Murrell was whether section 89.070 required a zoning ordinance, which amended an existing ordinance, to first have been submitted to a zoning commission for study, public hearing, and report before its enactment. Id. at 847. The ordinance at issue was not submitted to a zoning commission before being considered and voted upon by the board of aldermen after a public hearing by the board of aldermen. Id. at 846. In answering the question, the Missouri Supreme Court discussed the difference between the procedural requirements for enacting a city’s original zoning districts and regulations and for zoning amendments. Id. at 847-48. It explained that section 89.070 mandates a two-hearing procedure in the enactment of original districts and regulations, one before the planning commission and one before the legislative body. Id. at 847. Such two-hearing procedure “provides the property owner, the public and the municipality a double protection against hasty and ill-conceived action in the establishment of zoning a municipality.” Id. at 847-48. The Court further explained that sections 89.050 and 89.060 govern amendments to zoning districts or regulations and that they require a public hearing and official notice. Id. at 848. The Court then stated the following, relied upon by Appellants in the case sub judice, “The hearing contemplated for amendments, modifications and changes is a hearing before the legislative body; not the two-phase hearing procedure required in the enactment of original zoning ordinances.” Id. In making this statement, however, the Court recognized the specific circumstances of the case that at the time of the ordinance was enacted, no zoning commission existed, no ordinance existed requiring submission to a zoning commission, and all zoning amendments went directly to the board of aldermen for public hearing. Id. The Court acknowledged that a municipality may create a zoning commission that provides, via ordinance, that all applications for rezoning be referred by its legislative body to its planning commission for investigation, study, and report. Id. Such is the case here where sections 483.020 and 483.080 of the Park-ville ordinances require submission of a proposed amendment to the planning commission for public hearing after proper notice, recommendations, and report to the Board of Alderman. As discussed above, Apex’s rezoning request was submitted first to the Planning Commission where public hearings were held, and the Planning Commission issued its recommendation to the Board of Alderman before action was taken by the Board. The City satisfied the notice and public hearing requirements of section 89.050. Point one is denied.

Point Two

In point two, Appellants claim that the trial court erred in granting summary judgment in favor of the City and Apex because the City’s failure to provide adequate notice of the Board of Alderman’s meeting denied them due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 10 of the Missouri Constitution. They contend that the notice they received for the meeting before the Planning Commission did not satisfy due process because that meeting was not the forum at which they could be heard in a meaningful manner.

Generally, the taking of a property right without notice and an opportunity to be heard violates due process. Laubinger v. Laubinger, 5 S.W.3d 166, 174 (Mo.App. W.D.1999)(quoting Weber v. Firemen’s Retirement Sys., 872 S.W.2d 477, 479 (Mo. banc 1994)). The requirements of procedural due process apply, however, only to the deprivations of interests encompassed by the constitutional protection of liberty and property, and the range of interests protected by procedural due process is not infinite. Id. (citing Belton v. Bd. of Police Comm’rs, 708 S.W.2d 131, 136 (Mo. banc 1986)). Thus, a two-step analysis is required to determine whether the constitutional right to procedural due process was violated. Id. Whether a constitutionally protected interest is impinged must first be determined. Id. (citing Belton, 708 S.W.2d at 136). If so, the second step is to determine whether the procedures followed satisfied due process requirements. Id. (citing Belton, 708 S.W.2d at 136).

Appellants fail to address the first step of the analysis and cite no authority to demonstrate that they, as neighboring property owners to property subject to a rezoning request, have a constitutionally protected property interest in continuing the existing zoning classification of the nearby property. In fact, little cogent support exists for the proposition that a neighbor has a constitutional right to have restrictions imposed on others. Douglas W. Kmiec, Zoning and Planning DeskbooK § 6.1 (2d ed.2001). Nevertheless, zoning, rezoning, and refusals to rezone are legislative rather than quasi-judicial acts. Fairview Enters., Inc. v. City of Kansas City, 62 S.W.3d 71, 76 (Mo.App. W.D.2001); Hoffman v. City of Town & Country, 831 S.W.2d 223, 224 (Mo.App. E.D.1992). Furthermore, a zoning ordinance is presumed valid. Fairview, 62 S.W.3d at 77; Hoffman, 831 S.W.2d at 225. Thus, while notice and a hearing on Apex’s application to rezone were required by sections 89.050 and 89.06, they were not constitutionally required. State ex rel. Coffman v. Crain, 308 S.W.2d 451, 456 (Mo.App.1958). See also W.C. & AN. Miller Dev. Co. v. D.C. Zoning Comm’n, 340 A.2d 420, 424 (D.C.1975). Instead, due process requires that a zoning ordinance bear a substantial relationship to health, safety, morals, or public welfare, and the constitutional standard is essentially one of reasonableness. Fairview, 62 S.W.3d at 76 (citations omitted); St. Louis County v. Kienzle, 844 S.W.2d 118, 122 (Mo.App. E.D.1992). Appellants do not claim that the ordinance rezoning the Apex property was unreasonable. Point two is denied.

The judgment of the trial court is affirmed.

HOWARD, P.J., and BRECKENRIDGE, J. concur.

      . Statutory references are to RSMo 2000 unless otherwise indicated.

      . Section 89.070 provides, in pertinent part, “In order to avail itself of the powers conferred by sections 89.010 to 89.140, such legislative body shall appoint a commission, to be known as 'The Zoning Commission,’ to recommend the boundaries of the various original districts and appropriate regulations to be enforced therein.”

      . The City and Apex do not dispute that Appellants have standing in this case. An adjoining or nearby property owner has standing, without further proof of special damage, to assert the invalidity of an ordinance or the right for review of an administrative decision affecting the property in question. Allen v. Coffel, 488 S.W.2d 671, 675 (Mo.App.1972). Whether a neighbor has a constitutionally protected interest for procedural due process purposes is, however, a separate question.


text:
    STATE of Missouri, Respondent, v. Steve CONLEY, Jr., Appellant.
    No. WD 62605.
    Missouri Court of Appeals, Western District.
    Jan. 25, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 1, 2005.
    James L. Lasalle, Kansas City, MO, for appellant.
    Deborah Daniels, Jefferson City, MO, for respondent.
    Before NEWTON, P.J., LOWENSTEIN and HOLLIGER, JJ.
   ORDER

PER CURIAM.

The appellant was convicted on two counts of armed robbery and two counts of armed criminal action committed in separate crimes. On appeal from his bench trial, he raises issues of error in failure to sever and in an unduly suggestive line up. Affirmed. Rule 30.25(b).


text:
    Robin McELROY, Respondent, v. EAGLE STAR GROUP, INC., Appellant.
    No. WD 63862.
    Missouri Court of Appeals, Western District.
    Jan. 25, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 1, 2005.

      William J. Gotfredson, Kansas City, MO, for appellant.
    Steven C. Effertz, Independence, MO, for respondent.
    Before RONALD R. HOLLIGER, Presiding Judge, PATRICIA BRECKENRIDGE, Judge and JOSEPH M. ELLIS, Judge.
   JOSEPH M. ELLIS, Judge.

Appellant, Eagle Star Group, Inc. (“Eagle Star”), appeals the denial of its motion to set aside a default judgment entered by the Circuit Court of Jackson County in favor of respondent, Robin McElroy, in her personal injury action against Eagle Star. In its sole point on appeal, Eagle Star claims the motion should have been granted pursuant to Rule 74.05(d) since it stated facts establishing a meritorious defense to McElroy’s lawsuit and also showed good cause for setting aside the default judgment. Finding a lack of good cause shown, we affirm.

McElroy’s attorney first notified Eagle Star of McElroy’s personal injury claim in a letter dated March 17, 2003, which was sent to and received by Eagle Star’s registered agent, Michael Jaax. 'In this letter, counsel for McElroy described the nature and cause of McElroy’s injuries, requested that Jaax notify Stone Oak’s liability insurer of McElroy’s claim, and asked that either Jaax or Stone Oak’s liability insurer acknowledge her claim within fifteen days. Counsel for McElroy never received a response of any kind from Jaax or a liability insurer for Stone Oak:

McElroy filed her petition against Eagle Star on September 19, 2003, and Jaax was served on October 8, 2003. The petition alleged that McElroy was a resident of Stone Oak Apartments (“Stone Oak”), an apartment complex located at 3151 Jennings Road in Independence, Jackson County, Missouri, and that Eagle Star was “the owner and operator” of Stone Oak. According to the petition, on or about November 15, 2002, McElroy was injured when a glass globe which was located on a light fixture in her apartment fell off the fixture, striking her on the left wrist. The petition further alleged that an Eagle Star “maintenance employee” had previously changed a light bulb in that fixture but had negligently failed to secure the glass globe covering the fixture, which fell out of the fixture and struck McElroy when she subsequently attempted to replace the light bulb that had been placed there by Eagle Star’s employee. .The petition alleged three separate acts of negligence on the part of Stone Oak, “one or more of’ which caused or contributed to cause McElroy’s injuries: (1) that Stone Oak “failed to properly maintain the light fixture, to ensure that plaintiff could safely remove and replace a light bulb”; (2) that Stone Oak, “by its employee, improperly installed the lens to the light fixture so as to allow the lens to be insecure and fall on plaintiff as she attempted to change a light bulb”; and (3) that Stone Oak “allowed the light fixture to be placed in a location so that the fixture was dangerous to persons who might change the light bulb in said fixture, including plaintiff.” Finally, the petition alleged that as a direct and proximate cause of Eagle Star’s negligence, McElroy sustained: physical injury to her left arm and hand, including a lacerated tendon which required surgical repair; pain and suffering; permanent and progressive disability; past and future medical expenses; and past and future wage, losses.

Eagle Star failed to file an answer to McElroy’s petition within thirty days of personal service of process on its registered agent, as required by Rule 55.25(a). As a result, on November 20, 2003 (which was a little less than two weeks after Eagle Star was required to have filed its answer), McElroy filed a motion requesting the entry of an interlocutory order of default under Rule 74.05(b), a copy of which was also served on Jaax by counsel for McElroy. The trial court entered an interlocutory order of default on November 25, 2003, and set an evidentiary healing for December 18, 2003. The following day (November 26, 2003), McEl-roy’s counsel sent to Jaax, via certified mail with return receipt requested, a letter enclosing a copy of the interlocutory order of default, which stated that such an order had been entered against Eagle Star and that an evidentiary hearing had been scheduled for December 18, 2003. This letter, which noted that counsel had previously attempted to contact Jaax by phone to discuss the case, but had never heard back from him, also invited Jaax to call counsel should he wish to discuss the matter prior to the scheduled hearing. Counsel for McElroy received no written or telephonic response to the letter.

At the December 18, 2003 evidentiary hearing, which was not attended by counsel for or a corporate representative of Eagle Star, McElroy presented evidence that her medical expenses from the accident totaled $33,931.33, that she would incur over $65,000.00 in future medical expenses, including additional surgery on her left hand, and that she was permanently and progressively disabled due to her injuries. McElroy also presented evidence that she had already lost some $27,040.00 in wages due to the time she missed due to her injury, and would experience additional wage losses in the future. Finally, McElroy presented substantial evidence that Eagle Star was the owner and/or operator of Stone Oak. This evidence included a publicly recorded easement, dated March 23, 2001, reciting that “Eagle Star Group, dba Stone Oak Apts .... owns or has control over certain real estate and improvements thereon located at 3151 Jennings Road, Independence, Missouri 64055 ,.. consisting of 96 residential units known as Stone Oak Apartments” and granting a cable television company an easement to install, operate, and maintain a cable communications system on the property. The easement was executed by and bore the signature of Michael Jaax, who listed himself as the “owner” of “Eagle Star Group dba Stone Oak Apartments.” It also included a May 30, 2001 letter from Jaax to McElroy’s mother informing her of a rent increase for Stone Oak residents effective July 1, 2001. This letter, which was signed by “Mike Jaax,” bore a prominent “EAGLE STAR GROUP” letterhead.

On December 31, 2003, the trial court entered a default judgment against Eagle Star, finding that Eagle Star “is doing business as Stone Oak Apartments and is therefore responsible for the damages claimed by Plaintiff in this action.” The court further found, upon consideration of the evidence before it, that McElroy sustained “severe personal injury” resulting in permanent disability, which caused her to incur past medical expenses in excess of $33,000; future medical expenses in excess of $65,000; lost wages in excess of $25,000; and future wage losses. The court ultimately assessed total actual damages against Eagle Star in the amount of $869,000.00.

Nearly a month later (January 27, 2004), Eagle Star filed a verified motion to set aside the default judgment pursuant to Rule 74.05(d), which allows a default judgment to be set aside if the movant states facts constituting a meritorious defense and shows good cause. The verified motion alleged that: (1) Eagle Star had a meritorious defense because it did not own the Stone Oak apartment complex (rather, a different corporate entity known as Day Star Properties did), and because “McEl-roy’s injuries were likely caused by her own negligent conduct”; and (2) Eagle Star had good cause for failure to file a timely answer “because it reasonably .believed its insurance carrier was doing so.” McElroy filed a response on February 9, 2004, and on February 17, 2004, the trial court entered an order denying Eagle Star’s January 27, 2004 motion .to set aside the default judgment.

Two days later (February 19, 2004), Eagle Star filed an “emergency” motion for reconsideration. On February 24, 2004 (five days after Eagle Star filed the motion for reconsideration but before the trial court had ruled on it), Eagle Star filed a notice of appeal. Meanwhile, on March 1, 2004, McElroy filed her response to Eagle Star’s motion for reconsideration, which included, among other things, evidence that Jaax was particularly knowledgeable about the legal system in general and default judgments in particular, having been a party to 189 lawsuits in Jackson County alone, 87 of which resulted in a default judgment and in most of which he acted pro se.

Although Eagle Star did not request an evidentiary hearing and counsel for McEl-roy did not believe it was entitled to one, in a March 11, 2004 letter to the trial court, a copy of which was also faxed to counsel-for Eagle Star, McElroy’s lawyer suggested, out of an abundance of caution, that the trial court conduct one anyway in order to allow Eagle Star “an opportunity to be heard.” The trial court accepted counsel’s suggestion, and on- March 24, 2004, conducted such a hearing. At the commencement of the hearing, counsel for Eagle Star advised the trial court that Eagle Star did not wish to present any evidence in support of its motions and also claimed that its motion for reconsideration was moot because of the notice of appeal it had filed on February 24, 2004. The trial court denied Eagle Star’s motion for reconsideration by order dated March 24, 2004. Thereafter, counsel for both parties advised the court that its “order” denying the motion to set aside the default judgment dated February 17, 2004, needed to be designated a “judgment” for purposes of appeal, and on April 16, 2004, the trial court entered a “judgment” denying Eagle Star’s motion to set aside the default judgment. This appeal followed.

I.

At the outset, though neither party’s brief questions this court’s jurisdiction over the instant appeal, we have a duty to determine our appellate jurisdiction sua sponte. Chromalloy Am. Corp. v. Elyria Foundry Co., 955 S.W,2d 1, 3 (Mo. banc 1997). In general, “[a] prerequisite to appellate review is that there be a final judgment_” Boley v. Knowles, 905 S.W.2d 86, 88 (Mo. banc 1995). “[D]uring the thirty day period after a default judgment, the judgment is within the ‘breast of the court’ and not yet final[.]” Hoey v. St. Luke’s Episcopal Presbyterian Hosp., 713 S.W.2d 636, 638-39 (Mo.App. E.D.1986). “The circuit court retains control of its judgment for 30 days after denying a motion to set aside, and the judgment becomes final when the 30 days expire. A party then has 10 days to appeal the judgment.” Moore v. Baker, 982 S.W.2d 286, 288 (Mo.App. W.D.1998) (internal citations omitted); Rule 81.05(a)(2)(B); Rule 81.0h(a). As noted supra, the trial court entered its “judgment” overruling Eagle Star’s motion to set aside the default judgment on April 16, 2004, and Eagle Star filed its notice of appeal on February 24, 2004. “In any case in which a notice of appeal has been filed prematurely, such notice shall be considered as filed immediately after the judgment becomes final for the purpose of appeal.” Rule 81.05(b). “Rule 81.05(b) seeks to preserve appeals for litigants whose counsel in an abundance of caution or by mistake file premature notices of appeal....” State ex rel. State Highway Comm’n v. Tate, 576 S.W.2d 529, 531 (Mo. banc 1979). Therefore, Eagle Star’s appeal from the trial court’s April 16, 2004 order and judgment overruling Eagle Star’s January 27, 2004 motion to set aside the default judgment under Rule 74.05(d) was filed on a timely basis, and we have jurisdiction to entertain it.

II.

Eagle Star brings one point on appeal. In that sole point, Eagle Star contends the trial court erred in overruling its motion to set aside the default judgment under Rule 74.05(d) since the motion stated facts establishing a meritorious defense to McEl-roy’s lawsuit and Eagle Star also showed good cause for setting aside the default judgment.

At the outset, we must determine the appropriate standard of review for a case such as this. Although this court’s decisions have not always consistently reflected it, after conducting a thorough review of Missouri case law, we think the applicable standard of appellate review governing an appeal from a judgment granting or denying a motion to set aside under Rule 74.05(d) depends on whether the motion was filed before or after the underlying default judgment became final.

If the defaulting party’s Rule 74.05(d) motion to set aside a default judgment is filed before the underlying default judgment has become final, “it is treated for purposes of appeal as an ‘authorized after-trial motion’ [under Rule 81.05(a)(2) ] and is deemed the equivalent of a motion for new trial,” which “extends the trial court’s control over the default judgment from 30 days to 90 days from the day the motion is filed.” Popular Leasing USA, Inc. v. Universal Art Corp., 57 S.W.3d 875, 877 (Mo.App. E.D.2001); Klaus v. Shelby, 4 S.W.3d 635, 637 (Mo.App. E.D.1999). For this reason, “[a]n appeal will not lie from an order setting aside a default judgment within thirty days after entry of judgment because during the thirty-day period, a default judgment is within the breast of the court and not yet final.” Grooms v. Grange Mut. Cas. Co., 32 S.W.3d 618, 620 (Mo.App. E.D.2000). This approach is consistent with that taken in Taylor v. United Parcel Sonice, Inc., 854 S.W.2d 390 (Mo. banc 1993), where our Supreme Court reaffirmed its decision in In re Franz’ Estate, 359 Mo. 362, 221 S.W.2d 739 (1949), which interpreted the predecessor to Rule 81.05 and held that “a motion to set aside a default judgment ‘was nothing more than a motion asking the trial court to reconsider its ruling and to set aside its dismissal order. It was, in fact, simply a motion for rehearing or new trial.’ ” Taylor, 854 S.W.2d at 393 (quoting Franz’ Estate, 221 S.W.2d at 740). Moreover, although it was not cited in Taylor, Gorzel v. Orlamander, 352 S.W.2d 675 (Mo.1961), a more recent Missouri Supreme Court case directly addressing the issue, held as follows:

[W]here a motion to set aside is filed within the period provided for filing motions for new trial, the appellate courts of this state (usually without any discussion of this question) have uniformly considered such motions as being timely and as effective as though denominated a motion for new trial. We do not think it is important whether a motion of this type is denominated a motion to set aside or a motion for new trial. The relief sought is an order setting aside the default judgment and another trial upon the merits. In that situation we think it is reasonable and proper to regard the motion filed by defendants as a motion for new trial, or the equivalent thereof, and we rule that it had the effect of vesting the trial court with jurisdiction to rule the motion upon its merits within the period of 90 days after it was filed.

Id. at 677-78.

Therefore, in cases where the motion to set aside a default judgment is filed before the default judgment has become final, just as in cases involving the grant or denial of a timely filed motion for new trial on discretionary grounds, we review the trial court’s decision to grant or deny the Rule 74.05(d) motion for abuse of discretion. See, e.g., Comstock v. Comstock, 91 S.W.3d 174, 176 (Mo.App. W.D.2002); Crain v. Crain, 19 S.W.3d 170, 174, 175 (Mo.App. W.D.2000); H.J.I. v. M.E.C., 961 S.W.2d 108, 118 (Mo.App. W.D.1998); State ex rel. Div. of Family Servs. v. Sutherland, 916 S.W.2d 818, 821 (Mo.App. W.D. 1995); Magee v. Magee, 904 S.W.2d 514, 518 (Mo.App. W.D.1995).

On the other hand, when a Rule 74.05(d) motion ‘is filed after the default judgment has become final, it is treated as an independent proceeding, separate and apart from the underlying judgment.’ The independent nature of this proceeding requires the entry of a new final judgment to invoke appellate jurisdiction.” Am. Std. Ins. Co. v. Bittick, 112 S.W.3d 55, 57 (Mo.App. W.D.2003) (quoting Popular Leasing, 57 S.W.3d at 878). Accordingly, a Rule 74.05(d) “motion to set aside default filed after the default judgment has become final is an independent action, and the circuit court’s judgment to grant or to deny that motion is indepen dent of the underlying judgment.” Hutchison v. Vandenburg, 90 S.W.3d 229, 231 (Mo.App. W.D.2002) (citing Popular Leasing, 57 S.W.3d at 878). “In such a case, the trial court’s order granting or denying the motion to set aside default judgment is itself (assuming that all -other prerequisites of appellate jurisdiction are met) a separately appealable judgment.” Popular Leasing, 57 S.W.3d at 878; see also Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132, 135 (1952). Indeed, this court has recently held that since “[t]he direct appeal of a default judgment is not permitted,” a party’s failure to file a motion to set aside or vacate a final default judgment under Rule 74.05(d) meant that it was “entitled to no relief on appeal.” Leonard v. Leonard, 112 S.W.3d 30, 37 (Mo.App. W.D.2003).

Therefore, when a party’s Rule 74.05(d) motion to set aside a default judgment is filed after the underlying default judgment has become final, Murphy v. Catron, 536 S.W.2d 30 (Mo. banc 1976), sets forth the proper standard of appellate review of the trial court’s separate and independent judgment granting or denying the motion. See, e.g., Newton v. Taylor, 113 S.W.3d 244, 245 (Mo.App. E.D.2003); Kenmark Motorsport, Ltd. v. Burns, 985 S.W.2d 814, 814 (Mo.App. E.D.1998); Safeco Ins. Co. of Am. v. Wells, 921 S.W.2d 55, 56-57 (Mo.App. E.D.1996). Cf. Sprung v. Negwer Materials, Inc., 775 S.W.2d 97, 98-99 (Mo. banc 1989).

Regrettably, this court’s decisions interpreting Rule 74.05(d) have not consistently recognized or applied these distinctions. In one line of cases, we have applied an abuse of discretion standard of review where the Rule 74.05(d) motion was filed after the underlying default judgment had become final. See, e.g., State ex rel. Dep’t of Soc. Servs. v. Stone, 71 S.W.3d 643, 646 (Mo.App. W.D.2002); Gering v. Walcott, 975 S.W.2d 496, 498, 499-500 (Mo.App. W.D.1998); Adams v. Borello, 975 S.W.2d 188, 190, 191 (Mo.App. W.D.1998); Stradford v. Caudillo, 972 S.W.2d 483, 485 (Mo.App. W.D.1998); Brants v. Foster, 926 S.W.2d 534, 535 (Mo.App. W.D.1996); Moore v. Dahlberg, 810 S.W.2d 730, 732 (Mo.App. W.D.1991).

In a second line of cases, we have “combined” or amalgamated the Murphy and abuse of discretion standards of review, without regard to whether the Rule 71.05(d) motion was filed before or after the underlying default judgment had become final. See, e.g., Mullins v. Mullins, 91 S.W.3d 667, 669, 672 (Mo.App. W.D.2002); Fuller v. Ross, 68 S.W.3d 497, 500 (Mo.App. W.D.2001); Lovenduski v. McGrain, 69 S.W.3d 80, 84 (Mo.App. W.D.2001); Reed v. Reed, 48 S.W.3d 634, 639 (Mo.App. W.D.2001); Winsor v. Terex-Telelect-Inc., 43 S.W.3d 460, 464, 466 (Mo.App. W.D.2001); Young v. Safe-Ride Serus., 23 S.W.3d 730, 732 (Mo.App. W.D.2000); Boatmen’s First Nat’l Bank v. Krider, 844 S.W.2d 10, 11, 12 (Mo.App. W.D.1992).

To the extent these two lines of cases conflict with this opinion, they should no longer be followed. In the case sub judice, Eagle Star filed its Rule 74.05(d) motion to set aside the default judgment within thirty days following entry of that judgment — that is, before the default judgment became final. Rule 75.01; Popular Leasing, 57 S.W.Sd at 877. Thus, in the instant appeal, we review the trial court’s decision to deny the motion for abuse of discretion.

A motion to set aside a default judgment is left to the sound discretion of the trial court, the exercise of which will not be interfered with on appeal unless the record demonstrates an abuse of that discretion. The law favors a trial on the merits but also defends the integrity of the legal process and procedural rules and therefore does not sanction the disregard thereof. The discretion not to set aside a default judgment is a good deal narrower than the discretion to set one aside, with the result that appellate courts are more likely to interfere when the trial court has denied such a request.

In re Adoption of Z.T.H., 910 S.W.2d 830, 835 (Mo.App. W.D.1995) (internal citations omitted); Hinton v. Proctor & Schwartz, Inc., 99 S.W.3d 454, 458 (Mo.App. E.D.2003). “[A] judicial act which is untenable and clearly against reason and which works an injustice” constitutes an abuse of discretion. Egelhoff v. Holt, 875 S.W.2d 543, 549-50 (Mo. banc 1994). An alternative formulation was approved in Hancock v. Shook, 100 S.W.3d 786, 795 (Mo. banc 2003), where the Court noted that “[a]n abuse of discretion occurs when a trial court’s ruling is clearly against the logic of the circumstances then before the court and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration.” Either way, it is clear that “[i]f reasonable persons can differ as to the propriety of the trial court’s action, then it cannot be said that the trial court abused its discretion.” Id.

III.

As noted previously, in its sole point on appeal, Eagle Star contends the trial court erred in overruling its motion to set aside the default judgment under Rule 74.05(d) since the motion stated facts establishing a meritorious defense to McElroy’s lawsuit and Eagle Star also showed good cause for setting aside the default judgment.

Preliminary to our analysis, it is important to recognize the procedural posture of this appeal. As set forth earlier, Eagle Star filed its motion to set aside the default judgment on January 27, 2004. The trial court denied Eagle Star’s motion without a hearing by order dated February 17, 2004. Thereafter, on February 19, 2004, Eagle Star filed a motion for reconsideration of the denial of its motion to set aside. Even though no hearing on the motion for reconsideration was required, the trial court scheduled one for March 24, 2004. Eagle Star did not present any evidence at that hearing, and the motion for reconsideration was overruled on that date. On April 16, 2004, at the request of the parties, the trial court made the denial of the motion to set aside default judgment a final judgment for purposes of appeal by entering a “judgment” identical to its “order” of February 17, 2004.

“[A] motion for reconsideration has no legal effect because no Missouri rule provides for such a motion.” Hinton v. Proctor & Schwartz, Inc., 99 S.W.3d 454, 459 (Mo.App. E.D.2003). Moreover, “Rule 74.05(d) provides for the setting aside of a default judgment by the trial court when the party requesting such relief meets certain requirements in the motion requesting such relief, not in a motion for reconsideration after a judgment denying the motion requesting such relief.” Id. at 459-60. The parties recognize the distinction and concede that the appeal is from the trial court’s denial, without a hearing, of Eagle Star’s motion to set aside the default judgment, and without regard to the motion for reconsideration or any proceedings had thereon.

“Rule 74.05 sets forth the basis upon which a court may set aside a default judgment_” Mullins, 91 S.W.3d at 670. The rule provides, in pertinent part: “Upon motion stating facts constituting a meritorious defense and for good cause shown, an interlocutory order of default or a default judgment may be set aside. The motion shall be made within a reasonable time not to exceed one year after the entry of the default judgment. Good cause includes a mistake or conduct that is not intentionally or recklessly designed to impede the judicial process.” Rule 74..05(d).

Entitlement to an evidentiary hearing on a motion to set aside a default judgment depends on meeting the pleading requirements of Rule 74.05. Under the explicit terms of Rule 74.05(d), a motion to set aside a default judgment must state facts constituting both a meritorious defense and good cause for the default. When deciding whether a moving party has complied with the pleading requirements of Rule 74.05(d), courts examine the allegations set forth in the motion to set aside the default judgment and consider the contents of any accompanying materials such as affidavits, exhibits, and proposed answers.

Reed v. Reed, 48 S.W.3d 634, 640 (Mo.App. W.D.2001) (internal quotation marks and citation omitted).

With this background, we first address the good cause requirement of Rule 74.05(d). “If good cause is not established, there is no abuse of discretion in not setting aside a default judgment.” In re Marriage of Pierce, 867 S.W.2d 237, 238 (Mo.App. S.D.1993). In Great Southern Savings & Loan Association v. Wilburn, 887 S.W.2d 581 (Mo. banc 1994), the Missouri Supreme Court applied the standard of Rule 74.05(d) set forth supra and stated the rule to be that a “defaulted defendant shows good cause by proving that he or she did not recklessly or intentionally impede the judicial process.” Id. at 584. Accordingly, “good cause excludes not only intentional conduct but also reckless conduct.” Crain, 19 S.W.3d at 174. In the Rule 74.05 context, “reckless” has been defined as meaning “lacking in caution” or “deliberately courting danger.” In re Marriage of Williams, 847 S.W.2d 896, 900 (Mo.App. S.D.1993). One of the quintessential characteristics of reckless conduct is set out in the latest edition of Black’s Law Dictionary:

Intention cannot exist without foresight, but foresight can exist without intention. For a man may foresee the possible or even probable consequences of his conduct and yet not desire them to occur; none the less if he persists on his course he knowingly runs the risk of bringing about the unwished result. To describe this state of mind the word ‘reckless’ is the most appropriate. The words ‘rash’ and ‘rashness’ have also been used to indicate this same attitude.

Black’s Law Dictionary 1298 (8th ed.2004) (internal quotation marks and citation omitted). This test of foreseeability may also be met objectively: “ ‘To be reckless, a person makes a conscious choice of his course of action, either with knowledge of the serious danger to others involved in it or with knowledge of the facts which would disclose the danger to a reasonable man.’ ” Mullins, 91 S.W.3d at 670 (quoting Marriage of Williams, 847 S.W.2d at 900). One may also be said to have acted recklessly if he or she is intentionally indifferent to a harmful consequence in that he or she simply “does not care about the consequences of his or her actions.” Black’s Law DictionaRY, -supra, at 1299; see also Walcott, 975 S.W.2d at 499.

Eagle Star’s verified Rule 74.05(d) motion offered the following explanation for the'failure of its registered agent, Michael Jaax, to carry out his responsibility to protect Eagle Star’s interests. According to the motion, on October 28, 2003 (ten days before Eagle Star’s answer was due), Jaax, in accordance with his “normal and customary” procedure when receiving notice of a claim, forwarded the suit paperwork he had received some twenty days earlier to Eagle Star’s insurance agency, the R.J. Ahmann- Company of Eden Prairie, Minnesota (“the Ahmann Company”), where it was received the following day. Reasonably assuming that Stone Oak’s insurance carrier (which Jaax believed to be the Indian Harbor Insurance Company) “would be handling this matter” on behalf of Eagle Star after receiving the relevant materials he had forwarded to the Ahmann Company, Jaax “took no further action to respond” to McElroy’s petition.

The Ahmann Company completed a loss notice and faxed the loss notice and suit papers to CRC, an insurance broker. On October 30, 2003, CRC faxed an acknowledgment of the claim to the Ahmann Company. Almost a month later, after having been served, on or about November 20, 2003, with McElroy’s motion for an interlocutory order of default against Eagle Star, Jaax “became concerned” and telephoned Mark Ahmann (“Ahmann”) of the Ahmann Company to inquire further. Ah-mann assured Jaax that Stone Oak’s insurance carrier “would in fact handle this matter.” Based on this assurance, Jaax “took no further action” to respond to McElroy’s motion.

On or about December 31, 2003, after learning that McElroy’s motion for an interlocutory order of default against Eagle Star had been granted and that a default judgment had subsequently been entered against Eagle Star, Jaax “became very concerned” and again telephoned Ahmann. Ahmann reassured Jaax that Stone Oak’s insurance carrier “would handle this matter.” Based on this reassurance, Jaax “took no further action” in response.

On January 7, 2004, the Ahmann Company discovered that there had been what Eagle Star’s brief characterizes as “a mix-up and confusion” between CRC and another entity, WKF & C. The original claims adjuster at CRC no longer had the case, and the claim was mistakenly forwarded to the managing general agent, WKF & C. Apparently, CRC had confused the claim with a totally different claim that was filed on a July 2002 loss. WKF & C was faxed a copy of the claim but “the claim was lost somewhere between CRC and WKF & C.”

On January 16, 2004, Jaax was informed by McElroy’s counsel that no insurance carrier for Stone Oak had “in any way responded” to McElroy’s lawsuit. Jaax called Ahmann for an explanation, whereupon he was told that a mistake had been made in the handling of the original claim paperwork and that there was a “potential dispute” over whether Stone Oak had any insurance coverage. Immediately after learning of this “potential dispute” over insurance coverage, Jaax retained counsel to represent Eagle Star. Counsel filed Eagle Star’s verified motion to set aside the default judgment on January 27, 2004.

The trial court implicitly found, and McElroy argues on appeal, that these circumstances did not amount to good cause. We agree.

Several months before McElroy’s petition had even been filed, Jaax chose to ignore her request to notify Stone Oak’s liability insurer of her potential claim, or even to acknowledge it. After being properly served with the suit papers, Jaax then waited until twenty of the thirty days comprising Eagle Star’s answer period had already elapsed before forwarding them to Eagle Star’s insurance agency. Moreover, he did not follow up with counsel for McEl-roy to ensure that an answer or other response to the petition was timely filed by Stone Oak’s insurance carrier.

While Jaax’s conduct up to that point could be charitably viewed as merely negligent or imprudent, it is clear that his subsequent actions recklessly impeded the judicial process, because Jaax then received a copy of McElroy’s motion for an interlocutory order of default against Eagle Star, which expressly stated that Eagle Star was “now in default” since “[mjore than 30 days have passed since service and no Answer has been filed.” At that point, Jaax knew (or should have known) that the matter had not, in fact, been “taken care of’ by Stone Oak’s insurance carrier as he had previously assumed. Yet Jaax recklessly chose to rely on his insurance agent’s contrary assurance that Stone Oak’s insurance carrier “would in fact handle this matter.” See Krider, 844 S.W.2d at 12.

But Jaax’s reckless and impeditive conduct did not stop there. Incredibly, even after (1) receiving actual notice that McEl-roy’s motion for an interlocutory order of default against Eagle Star had been granted; (2) receiving a copy of the interlocutory order itself; and (3) learning that a default judgment had subsequently been entered against Eagle Star, Jaax once again consciously chose to rely on his insurance agent’s repeated but unreasonable assurance that Stone Oak’s insurance carrier “would in fact handle this matter.” This could well be considered evidence of Jaxx’s intentional indifference to the consequences of his actions, which, as noted supra, is also a form of recklessness. Moreover, it was not until an additional two weeks had passed that Jaax, after having been informed by McElroy’s counsel that Stone Oak’s insurance carrier had never responded to the lawsuit and having learned that there might not actually be any insurance coverage whatsoever, finally retained counsel to represent Eagle Star— some nine weeks after its 30-day answer period had expired. Cf. Great Southern, 887 S.W.2d at 583-84; Krugh v. Hannah, 126 S.W.3d 391, 393 (Mo. banc 2004).

Finally, as noted supra, the trial court also had substantial and undisputed evidence before it that Jaax, an experienced pro se litigant who had participated as either a plaintiff or a defendant in more than 85 cases which resulted in default judgments, knew full well that Eagle Star’s failure to file a timely answer or other response to McElroy’s petition in accordance with Rule 55.25(a) could result in a default judgment against Eagle Star. While a defaulting defendant’s familiarity with litigation and experience in hiring attorneys for other cases does not, standing alone, support a conclusion that the defendant intentionally or recklessly impeded the judicial process, Great Southern, 887 S.W.2d at 584, in its most recent Rule 74.05(d) case, our Supreme Court held that uncontroverted evidence of other default judgments involving the same defendant “leads to the conclusion that she was well aware of the consequences of her inattention and makes her failure to file more egregious than excusable.” Krugh, 126 S.W.3d at 393.

On this record, the inescapable conclusion is that the trial court most certainly did not abuse its discretion in refusing to set aside the default judgment against Eagle Star. Jaax’s actions could reasonably have been viewed by the trial court as more than a series of unfortunate mishaps involving what Eagle Star’s brief characterizes as merely “the negligent mishandling of paperwork.” Rather, they could reasonably have been considered a continuing course or pattern of conduct “lacking in caution” and “deliberately courting danger” in the futile and unwarranted hope or expectation that Stone Oak’s purported insurance carrier would somehow “take care of’ McElroy’s lawsuit. In short, the facts clearly show that the default judgment was the .product of Eagle Star’s recklessness — that is, its “conscious choice of a course of action with knowledge of the serious danger that a default judgment could result,” Marriage of Williams, 847 S.W.2d at 902, or its intentional indifference to the judicial process. “When a litigant chooses to ignore or act in reckless disregard of the rules and procedures set out for the orderly administration of the judicial process, he cannot then be heard to complain when he receives no relief under its rules, particularly Rule 74.05(d).” Stradford, 972 S.W.2d at 486. Point denied.

The trial court’s final order and judgment overruling Eagle Star’s motion to set aside the default judgment under Rule 74.05(d) is affirmed.

All concur.

      . All rule references are to-Missouri Court Rules (2003).

      . Almost a month later (i.e., on or about December 22, 2003), Jaax signed the return receipt. Eagle Star's brief does not provide any explanation for this substantial delay.

      . “Once properly served, a party who defaults is charged with notice of all subsequent proceedings in the case. Therefore, a party in default has no right to notice of the default proceedings.” Bredeman v. Eno, 863 S.W.2d 24, 26 (Mo.App. W.D.1993) (internal citations omitted). In particular, "because a defaulting defendant is charged with notice of all subsequent proceedings in the case once he has validly been served with the summons and complaint, a separate notice of a hearing to assess damages is not required.” Beckmann v. Miceli Homes, Inc., 45 S.W.3d 533, 540 (Mo.App. E.D.2001). We nevertheless wish to commend counsel for McElroy for what the record shows to be his repeated, forthright, and professionally courteous efforts to ensure that Eagle Star received actual notice of all important post-service developments in his client’s case against Eagle Star.

      . We note that Eagle Star's appellate counsel was hired after the default occurred and after the motion to set aside the default judgment had been filed and denied.

      . In general, whether to grant or deny a motion for new trial on discretionary grounds "is for the trial court’s sound exercise of discretion. Appellate review is limited to determination of whether or not there has been an abuse of discretion. When the trial court has sustained the motion for new trial, the appellate court is more liberal in upholding its action than when the trial court has denied relief.” Cook v. Cox, 478 S.W.2d 678, 682 (Mo. 1972). See also Kansas City v. Keene Corp., 855 S.W.2d 360, 372 (Mo. banc 1993); Sapp v. Key, 287 S.W.2d 775, 779 (Mo.1956).

      . This court has also decided Rule 74.05(d) cases in which we simply did not set forth any standard of review. See, e.g., Lewis v. Shields, 25 S.W.3d 554 (Mo.App. W.D.2000).

      . We recognize that at first blush it seems that the application of these two standards of review depending on whether the motion to set aside is filed before or after the default judgment becomes final rewards the dilatory, because the Murphy v. Carron standard is less strenuous than the abuse of discretion standard. But such is not the case for two reasons. First, even where the abuse of discretion standard is employed, a trial court’s discretion to deny a motion to set aside is much narrower and more limited than its discretion to grant it. Thus, at least where the motion to set aside is denied, the trial court's discretion is more constrained than in the usual case, and the appellate court is more likely to find an abuse of discretion. Second, in general, waiting is never a good idea since there are many cases indicating that the earlier the motion to set aside is filed, the more the court should be inclined to grant relief. "The sooner the mistake is discovered, and acted upon, the more receptive the courts should be to a motion to set aside.” Myers v. Pitney Bowes, Inc., 914 S.W.2d 835, 839 (Mo.App. S.D.1996). So by consciously waiting until the default judgment becomes final before filing its Rule 74.05(d) motion to set aside, a defaulting defendant actually reduces its chances of receiving relief.

      . In this context, any dereliction of a corporation’s registered agent is, of course, chargeable to the corporation itself. See Barker v. Friendly Am., Inc., 606 S.W.2d 457, 460 (Mo.App. W.D.1980).

      . Eagle Star’s brief does not state exactly when the “mix-up” occurred, how McElroy’s claim was confused with a different claim for a different date, or how all this would cause Eagle Star to fail to file an answer in this case.

      . As it turas out, the "dispute” was far more than "potential,” since Stone Oak's insurance carrier issued a decimation of coverage letter on January 23, 2004.

      . In her brief, McElroy also argues that Eagle Star’s Rule 74.05(d) motion failed to state facts constituting a meritorious defense to the various negligence claims set forth in her petition. However, having already held that Eagle Star did not show good cause, there is no need for us to address that issue, as an appellant’s "[f|ailure to establish either one of these elements negates the necessity of considering the other.” Brants, 926 S.W.2d at 535; see also Stradford, 972 S.W.2d at 486.


text:
    Todd NICHOLS, Respondent, v. OVERNIGHT EXPRESS, INC. and Great West Casualty, Appellants.
    No. WD 64279.
    Missouri Court of Appeals, Western District.
    Jan. 25, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 1, 2005.

      Daniel L. Doyle, Overland Park, KS, for appellants.
    Thomas K. Thompson, Liberty, MO, for respondent.
    Before: LISA WHITE HARDWICK, P.J., ROBERT G. ULRICH and THOMAS H. NEWTON, JJ.
   ROBERT G. ULRICH, Judge.

Overnight Express, Inc. and Great West Casualty appeal an award of workers’ compensation benefits to Todd Nichols. Overnight asserts that Mr. Nichols was not a statutory employee under section 287.040 because he was not performing the “usual business” of Overnight on the day he was injured. The Commission’s final award is reversed.

Facts

Todd Nichols was working for Midwest Trailer Repair on March 13, 2003, when he was injured. He and the owner of Midwest, Larry Martel, were repairing the doors of an Overnight trailer on a lot owned by Overnight when one of the 130-pound doors of the trailer fell striking Mr. Nichols’ right wrist and landing on his right foot.

Overnight is a trucking company that leases trailers. It has terminals in Illinois, Georgia, and Kansas City, Missouri, and a main terminal in St. Paul, Minnesota. Maintenance for and major repair of the trailers are performed at the St. Paul terminal. No maintenance is performed at any other terminal. For trailers located outside of St. Paul in need of a minor repair or a major repair to make it roadworthy to travel to St. Paul, Overnight hires other companies or individuals. Midwest is one such company used by Overnight for trailer repairs. When a trailer needed repairs, Overnight would contact Midwest, to determine if it was available for the job. If it was not available, Overnight would contact another company or repairman. Midwest prepared an invoice for each job performed for Overnight. Before Mr. Nichols’ injury, Midwest performed trailer repairs for Overnight for approximately six months for a total cost for labor and parts of $3500. Some of the repairs performed by Midwest for Overnight during that six-month period included lights, roof leaks, trailer legs, and brakes.

Standard of Review

Article V, section 18 of the Missouri Constitution provides for judicial review of the Commission’s award to determine whether the award is “supported by competent and substantial evidence upon the whole record.” Section 287.495.1 further provides that an appellate court reviews only questions of law and may modify, reverse, remand for rehearing, or set aside the award only upon one or more of the following grounds:

(1) That the commission acted without or in excess of its powers;
(2) That the award was procured by fraud;
(3) That the facts found by the commission do not support the award;
(4) That there was not sufficient competent evidence in the record to warrant the making of the award.

In reviewing an award of the Commission, the reviewing court “must examine the whole record to determine if it contains sufficient competent and substantial evidence to support the award, i.e., whether the award is contrary to the overwhelming weight of the evidence.” Chouteau v. Netco Constr., 132 S.W.3d 328, 332 (Mo.App. W.D.2004)(quoting Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003)). “Whether a workers’ compensation claimant is an employee is a question of law, not a finding of fact, and is subject to correction by an appellate court.” Id.

Statutory Employee

The issue in this case is whether Mr. Nichols worked as a statutory employee of Overnight under section 287.040. Section 287.040.1 provides:

Any person who has work done under contract on or about his premises which is an operation of the usual business which he there carries on shall be deemed an employer and shall be liable under this chapter to such contractor, his subcontractors, and their employees, when injured or killed on or about the premises of the employer while doing work which is in the usual course of his business.

The purpose of the statute is “to prevent employers from circumventing the requirements of the [Workers’ Compensation Law] by hiring independent contractors to perform work the employer would otherwise perform.” Bass v. Nat’l Super Mkts., Inc., 911 S.W.2d 617, 619 (Mo. banc 1995), cert. denied, 517 U.S. 1208, 116 S.Ct. 1825, 134 L.Ed.2d 930 (1996). The statute must be construed liberally with close cases decided in favor of workers’ compensation coverage. Id, at 621. According to section 287.040, statutory employment exists when three elements coexist: (1) the work is performed pursuant to a contract; (2) the injury occurs on or about the premises of the alleged statutory employer; and (3) the work is in the usual course of business of the alleged statutory employer. Id. at 619-620.

The first two elements are not at issue in this case. The parties agree that Overnight orally contracted with Mr. Martel to repair its trailer on March 13, 2003, and that Mr. Nichols’ injury occurred on Overnight’s premises. The third element is the only issue in the case: whether the repair of the trailer was in the usual course of business of Overnight.

In determining whether the work is within the usual business of the putative employer, the routine/frequent test is applied. Id. at 620-21 (the essential/integral test was applied in older cases). Under the test, focus is placed on the routine and frequent nature of the independent contractor’s activities rather than whether the activities are essential and integral to the putative employer’s business. Id. A putative employer’s “usual business” as used in section 287.040 is, thus, those activities (1) that are routinely done (2) on a regular’ and frequent schedule (3) contemplated in the agreement between the independent contractor and the statutory employer to be repeated over a relatively short span of time (4) the performance of which would require the statutory employer to hire permanent employees absent the agreement. Id. at 621.

When injured, Mr. Nichols was on a lot owned by Overnight repairing the doors of one of its trailers. While trailer repairs are essential to Overnight’s business, they are not routinely done on a regular or frequent schedule. Repairs are performed only as needed. Midwest had performed some trailer repairs for Overnight in the six-month period before Mr. Nichols’ injury; however, Midwest and Overnight did not have an agreement contemplating that Midwest would perform repeated trailer repairs over a short span of time. Instead, Overnight would contact Midwest only when a trailer needed repairs to determine if Midwest was available for the job. If it was, Midwest would perform the repairs and prepare a separate invoice for the job. The work performed by Mr. Nichols was not, therefore, part of the usual business of Overnight. See e.g. Tullmann v. St. Louis Sci Ctr. Found., 34 S.W.3d 860, 862 (Mo.App. E.D.2001)(where science center only called contractor sporadically to remove or build an exhibit wall, contractor would create a work order for each job, no evidence was presented of a regular and frequent schedule for building or removing exhibit walls, and no agreement existed between science center and contractor contemplating removal of exhibit wall, subcontractor that was hired by contractor to help remove an exhibit wall did not perform usual business of center). Thus, Mr. Nichols was not statutory employee of Overnight.

The Commissions award of workers’ compensation benefits to Mr. Nichols is reversed.

HARDWICK, P.J. and NEWTON, J. concur.

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