author: PHILLIP R. GARRISON, Presiding Judge.

text:
    PIONEER POINT HOMEOWNERS ASSOCIATION, INC., Plaintiffs-Respondents, and Pioneer Point Property and Homeowners Association, Inc., Intervenors-Respondents, v. Danny Joel BOOTH and Mary Grace Booth, Defendants-Appellants.
    No. 26168.
    Missouri Court of Appeals, Southern District, Division One.
    Dec. 6, 2005.

      J. Patrick Sullivan, Sullivan Law Office, P.C., Branson, for Appellants.
    Greggory D. Groves, Lowther Johnson Attys. at Law, LLC, Springfield, for Respondents.
   PHILLIP R. GARRISON, Presiding Judge.

Danny Joel Booth (“Booth”) and Mary Grace Booth, (collectively referred to as “Appellants”) appeal a judgment entered against them and in favor of Pioneer Point Homeowners Association, Inc. (“Homeowners Association II”) and Pioneer Point Property and Homeowners Association, Inc. (“P & H”) (collectively referred to as “Respondents”) claiming that Respondents did not have the authority to enforce the provisions contained in the “Statement of Reservations, Restrictions, Taxes and Assessments” (“Statement of Reservations”) governing property located in Pioneer Point First and Third Addition, a subdivision in Stone County, Missouri.

In 1973, Ralph D. Swanson (“Swanson”) formed Pioneer Point, Inc. (“Pioneer Point, Inc.”), a Missouri corporation, for development of a subdivision known as Pioneer Point, Inc. (“the subdivision”), in Stone County, Missouri. On March 25, 1976, Swanson, as President of Pioneer Point, Inc., formed another corporation, the Pioneer Point Homeowners Association, Inc. (“Homeowners Association I”). This nonprofit corporation, of which he served as President, was formed in order to enforce the Statement of Reservations that was recorded on June 24,1977.

Appellants purchased Lot 17, Third Addition, on October 26, 1990, from Pioneer Point, Inc, to build their home. They purchased Lot 18, Third Addition, on September 14, 1991, and later purchased Lots 30, 31, and 38, Third Addition, in the subdivision, in order to build homes to sell. By operation of the Statement of Reservations Appellants automatically became members of Homeowners Association I.

On January 2, 1996, Swanson turned governance of the subdivision over to the homeowners themselves by forming a third corporation, P <& H, to take over and enforce the Statement of Reservations of the subdivision which had been previously handled by Swanson as President of Homeowners Association I. A board of the homeowners was elected and By-Laws were adopted.

Booth served on the board of P & H from September 1996 through August 1997, and his wife served on the board in October and November of 1998. Appellants paid all fees and assessments promulgated by Homeowners Association I, as well as those of P & H, until 1998. At its 1998 annual meeting, the board of P & H assessed a one time, special road assessment of $400 per lot to provide for hard-surfacing the roads. Appellants questioned whether there was a quorum present for the vote on the special assessment and thus the legality of the assessment and all other business transacted at the annual meeting. In early January 1999, Appellants proceeded to review the Statement of Reservations and discovered that the corporate charter for Homeowners Association I had been forfeited by the State of Missouri on January 1, 1989, and had not been reinstated.

Believing that P & H was not the appropriate homeowners’ association under the Statement of Reservations, Appellants ceased paying any fees or assessments it imposed. On March 25, 1999, P & H responded by filing a lien against Appellants’ Lots 17 and 18 of the subdivision, pursuant to the Statement of Reservations, for non-payment of assessments for the period of January 1, 1998, and ending December 31,1998.

P & H filed another lien on January 20, 2000, against Appellants’ Lots 17 and 18 for non-payment of assessments for January 1, 1999, through December 31, 1999. On February 3, 2000, Appellants filed a two-count petition seeking a declaratory judgment. They alleged that P & H was not the homeowners’ association for the subdivision, and that it did not have the authority to impose assessments or file liens. They also sought damages for slander of title.

Homeowners Association II was incorporated on September 25, 2001, while the suit between P & H and Appellants was pending. Swanson, as President of Homeowners Association I, assigned all of its rights, title and interest in the Statement of Reservations to the newly formed Homeowners Association II in an effort to “wrap up” Homeowners Association I. On September 27, 2001, Homeowners Association II and Pioneer Point, Inc. filed suit to enjoin Appellants from continuing a construction project on their property because they had not obtained a permit, as required in the By-Laws, and on October 11, 2001, P & H intervened.

On February 21, 2002, P & H released the original hens it had filed against Appellants. On February 17, 2003, Homeowners Association II filed hens against Appellants, two of which covered the same time periods for unpaid assessments as those released by P & H. In May 2002, Homeowners Association II was granted leave to file an amended petition against Appellants in which it sought a declaratory judgment establishing that it was the proper homeowners’ association under the Statement of Reservations and that it had the authority to levy and collect assessments provided therein, and compensation for unjust enrichment and quantum meru-it. On June 3, 2002, the cases were consolidated and Appellants filed their claims for declaratory judgment and slander of title as counterclaims.

A bench trial was held on September 12 and 23, 2003, and on November 13, 2003, the trial court entered its judgment, finding'that Homeowners Association II was the appropriate entity to enforce the Statement of Reservations; that the By-Laws of the association were valid; that Homeowners Association II had the authority to impose assessments or file liens, and that the hens currently filed against Appellants were valid. Damages were awarded to Respondents, in the amount of $23,364.51 for Appellant’s failure to pay assessments, obtain a construction permit, comply with the Statement of Reservations and ByLaws regarding their construction project, and attorney’s fees for both P & H and Homeowners Association II. This appeal followed.

Appellants raise two similar points on this appeal. In Point I, Appellants allege that Homeowners Association II is not the appropriate entity to enforce the rules and restrictions set forth in the Statement of Reservations. In, Point II, Appellants claim that Homeowners Association II does not have the authority to make assessments and/or file hens.

Appellate courts review declaratory judgments under the standard apphcable in other court-tried cases as set-forth in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Beavers v. Recreation Ass’n of Lake Shore Estates, Inc., 130 S.W.3d 702, 708 (Mo.App. S.D.2004). We will affirm the trial court’s ruling unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id.

Appellants rely upon their argument in Point I to support their allegation in Point II. As such we review both points together. Appellants, citing Kauffman v. Roling, 851 S.W.2d 789, 792 (Mo.App. W.D.1993), argue that the provision in the Statement of Reservations stating “[t]he homeowners’ association referred to in this instrument is [Homeowners Association I],” is unambiguous and thus not open to judicial construction. Thus, as the expressly designated entity under the Statement of Reservations, they contend that Homeowners Association I is the only corporation that can enforce its provisions. However, the situation before us is distinguishable from Kauffman in that we are not faced with substantive changes to a specific restrictive covenant. 581 S.W.2d at 791. As examined below, the precise question before us is more analogous to that in Sherwood Estates Homes Ass’n, Inc. v. Schmidt, 592 S.W.2d 244 (Mo.App. W.D.1979).

Appellants also argue that this court’s decision in Beavers relieves Appellants’ contractual obligations under the Statement of Reservations with regard to any association because Homeowners Association I, which was expressly named as the governing association therein, was forfeited in 1989, and therefore legally no longer exists. 130 S.W.3d 702. In Beavers, this court held that when a nonprofit homeowners’ association is administratively forfeited, the contractual obligations between said association and its members are extinguished because the association had ceased to exist. Id. at 717. However, Beavers is also distinct from this case because there, no successor association had been assigned the rights of the forfeited association. Id. Rather, there the association continued to act as though it was a lawfully organized corporation. Id. at 707.

Respondents argue that the September 25, 2001, assignment of rights from Homeowners Association I, allows Homeowners Association II to stand in its shoes with regard to the Statement of Reservations. The assignment provides in pertinent part:

[Homeowners Association I] ... a corporation which was administratively dissolved, ... in an effort to wrap up its final business, assigns to [Homeowners Association II] ... all of the rights, title, and interest it had in enforcing certain Reservations, Restrictions, Taxes and Assessments associated with [the subdivision].

Respondents direct us to a similar assignment of rights under restrictive covenants made by a developer to a subsequently formed homeowners’ association, which was upheld in Sherwood Estates. In Sherwood Estates, the corporation which developed the subdivision (referred to as the “Company” in the restrictions) purported to have assigned its right to enforce the recorded restrictions on the real property in the subdivision, by virtue of subsequently recording the “Sherwood Estates Homes Association Declaration,” which provided in pertinent part:

[t]he Association shall have the following powers and duties ... FIRST: To enforce, either in its own name or in the name of any owner within the district, any or all building restrictions which may have been heretofore, or may hereafter be imposed upon any of the land in said district[.]

Id. at 246-47. The trial court ruled that although the Company had effectively assigned its right to enforce the restrictions to the Association, the term “Company” in the “Approval of Plans” section of the restrictions did not- include the Association, and therefore that power did not fall within the assignment. Id. at 247-248. On appeal the western district of this court reversed, holding that the stated purpose of both the Declaration and the restrictions would have been seriously undermined if the Association was not found to have the same authority to approve construction plans as had the Company. Id. at 247.

For the reasons stated above neither Kauffman nor Beavers controls this case. Appellants have not challenged the validity of the assignment in this appeal, rather they argue that “notwithstanding a purported assignment” Homeowners Association II does not have the right to impose assessments and file liens because the corporation so entitled was forfeited. Therefore, the only question before us is whether Missouri law allows for an assignment between corporations as to rights and obligations under restrictive covenants despite the fact that the assignor’s name expressly appears in the covenant(s). Sherwood Estates teaches that such assignments are not contrary to the principle that courts should strictly construe restrictive covenants, at least as long as the assignment is not contrary to the purpose of the restriction. 592 S.W.2d at 247.

It is true that restrictive covenants “are not favorites of the law” and are to “be strictly construed.” Sherwood Estates, 592 S.W.2d at 247 (quoting Brasher v. Grove, 551 S.W.2d 302, 303 (Mo.App.1977)). However, “the principle that restrictions as to the use of real property ‘should be strictly construed’ and ‘doubts resolved in favor’ of its free use ‘should never be applied in such a way as to defeat the plain purpose of the restriction.’ ” Id. (quoting Brasher, 551 S.W.2d at 303) (emphasis added); see also Lake Saint Louis Community Ass’n v. Ravenwood Properties, Ltd., 746 S.W.2d 642, 644 (Mo.App. E.D.1988). Furthermore, the intent of the parties may be gathered by examining all of the provisions of the instrument. Country Club Dist. Homes Ass’n v. Country Club Christian Church, 118 S.W.3d 185, 189 (Mo.App. W.D.2003); Brasher, 551 S.W.2d at 303.

The clear intent of the developer of the subdivision in this ease was that it be maintained, operated and governed by the homeowners themselves. The stated purpose of the Statement of Reservations was:

to vest the entire control, operation, maintenance, care, repair and. upkeep of said water well or wells, water distribution system, and sewage plant and sewerage distribution system, roads and streets in said Property Owners Association for the sole use and benefit of the purchasers.

In addition, the purpose stated in the Articles of Incorporation of Homeowners Association II is “providing services and duties of a homeowners association for [the subdivision].”

Furthermore, contrary to Appellant’s assertions, there is express evidence that the Statement of Reservations allowed for the possibility that another entity might succeed Homeowners Association I. Under the heading “EASEMENTS,” the Statement of Reservations state that “[easements ... are hereby by conveyed ..: to the homeowners’ association, its successors and assigns.” Under “NUISANCES,” the Statement of Reservations provide that “[a]ll lots shall be kept mowed by the owner, and upon failure thereof, the homeowners’ association, its successors and assigns, shall have the . right so to do [sic] at the cost of the owner.” Finally under the section governing the regulation of the subdivision’s sewage system, the Restrictions provide:

[T]he Missouri Clean Water commission or Missouri Department of Natural Resources ... shall be entitled ... to entry of an order appointing a receiver or other officer appointed by the Court to take immediate possession of the sewer system for the purpose of operating, maintaining, repairing and improving the same ... until such time as the court finds that the Homeowners Association or its successors are capable of fulfilling and will perform the obligations imposed on them by this indenture, (emphasis added).

It is clear from the above provisions that one of the main objectives of the instrument was to provide that the' governance and maintenance of the subdivision be vested in a homeowners’ association in which all lot owners were members. The fact that one incorporated entity has taken the place of another by assignment does nothing to alter that intent. Cf. Sherwood 592 S.W.2d at 247. On the other hand, to say that Homeowners Association I is the only entity entitled to enforce the Statement of Reservations would be to defeat the overall purpose of that instrument because no association would be entitled to enforce the Statement of Reservations. In cases such as Beavers such a result is unavoidable, however, as explained, this is not such a case.

Because there has been no challenge to the validity of the assignment between Homeowners Association I and II, and because we have found nothing to suggest that such assignments are disfavored in the law, we cannot say that the trial court erroneously applied the law in holding that Homeowners Association II was the appropriate entity to enforce the Statement of Reservations, and has the authority to make assessments and/or file liens.

Accordingly, Appellants’ points are denied and the judgment of the trial court is affirmed.

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

      . Pursuant to the Statement of Reservations, each lot owner was assessed a certain amount per year for road maintenance, a monthly fee for unlimited use of water, and sewerage expenses, which was to be determined by Homeowners Association I. Homeowners Association I could raise or lower the water, sewerage and road assessments and could make special assessments as are necessary to cover operational expenses. To ensure that charges or assessments were paid promptly, an eight percent interest rate was applied to any delinquent fees, and lot owners could also be held responsible for any attorney’s fees incurred in the collection of unpaid charges. The Statement of Reservations also provide that all charges or special assessments for water, sewerage and roads, as well as any attorney fees for collection shall be a lien upon the lot or tract owner if not paid when due.

      . It is not clear from the record if Appellants attended that meeting.

      . This issue was settled by agreement of the parties prior to trial.

      . Though both are parties on this appeal, the trial court only declared that Homeowner Association II was the appropriate homeowners’ association for the subdivision, not P & H.

      . In the argument portion of Point II Appellant also claims that the trial court erred in the amount of damages it awarded to Respondents. However this argument is not contained in either of Appellants’ points relied on and therefore is deemed abandoned. See Baker v. Empire Dist. Elec. Co., 24 S.W.3d 255, 257 (Mo.App. S.D.2000). Arguments raised in Appellant’s brief that do not appear in a point relied on will not be addressed. Id.

        . Murphy interpreted the provisions of Rule 73.01(c). The provisions of that rule now appear in essentially the same form in Rule 84.13(d), Missouri Rules of Civil Procedure (2003).

      . Appellants in that case attempted to amend the original restrictions to make substantive changes to that instrument in direct contradiction to a provision which prohibited such an amendment within twenty-five years of the initial recording of the Restrictions. Id.


source: Caselaw Access Project

author: GLENN A. NORTON, C.J.

license: Public Domain

text:
    John R. BOYCE, Plaintiff/Appellant, v. Mary Ann BOYCE, Defendant/Respondent.
    No. ED 86482.
    Missouri Court of Appeals, Eastern District, Division Five.
    Dec. 6, 2005.
    Joyce M. Capshaw, Clayton, MO, for respondent.
    M. Zane Yates, Clayton, MO, for appellant.
   GLENN A. NORTON, C.J.

John R. Boyce (Husband) appeals from a judgment dismissing his petition for annulment of his marriage to Mary Ann Boyce (Wife). Because there is no final, appealable judgment, we dismiss the appeal.

Husband filed a petition for annulment of his marriage to Wife. Wife filed a counter-petition for dissolution of marriage. She also filed a motion to dismiss Husband’s petition for annulment. On June 10, 2005, the trial court granted Wife’s motion to dismiss and dismissed Husband’s petition for annulment. Husband filed this appeal.

An appellate court only has jurisdiction over final judgments that dispose of all parties and claims in the case and that leave nothing for future determination. Rule 74.01(b); O’Neill v. O’Neill, 864 S.W.2d 7, 8 (Mo.App. E.D.1993). If the trial court does not resolve all the issues as to all the parties or expressly designate “there is no just reason for delay” under Rule 74.01(b), then this Court does not have jurisdiction and the appeal must be dismissed. Fleahman v. Fleahman, 25 S.W.3d 162, 164 (Mo.App. E.D.1999). Here, the trial court’s judgment only dismissed Husband’s petition for annulment. Wife’s counter-petition for dissolution of marriage remains pending with the trial court.

' This Court issued an order directing Appellant to show cause why his appeal should not be dismissed for lack of a final, appealable judgment. Appellant has filed a response in which he argues that the dismissal of his petition is a judgment and that he will be prejudiced if this cannot be reviewed prior to the trial of the dissolution. Appellant correctly points out that he has a judgment as required by Rule 74.01(a). However, it is not a final judgment. In addition, his arguments concerning prejudice will not vest this Court with jurisdiction in the absence of a final judgment or certification under Rule 74.01(b).

. The appeal is dismissed for lack of a final, appealable judgment.

KATHIANNE KNAUP CRANE and BOOKER T. SHAW, JJ., concur.


author: ROBERT S. BARNEY, Judge.

text:
    Precious Lee BROWN, Movant, v. STATE of Missouri, Respondent.
    No. 26924.
    Missouri Court of Appeals, Southern District, Division Two.
    Dec. 6, 2005.

      Precious Lee Brown, pro se.
    Jeremiah W. (Jay) Nixon, Atty. Gen., & Lisa M. Kennedy, Jefferson City, for Respondent.
   ROBERT S. BARNEY, Judge.

Appellant, Precious Lee Brown (“Mov-ant”), appeals the motion court’s denial of his “Motion to Reopen [Rule] 27.26 Proceedings,” filed January 19, 2005, raising two points of motion court error based on allegations of ineffective assistance of post-conviction counsel. We affirm.

In denying his motion, the motion court observed that unlike Rule 27.26, current Rules 29.15 and 24.035 allow for the filing of successive motions “where post[-]conviction counsel had abandoned the movant;” however, “mere claims of ineffective assistance of post[-]conviction counsel [such as Movant’s] are categorically unreviewable.” The motion court further set out that while “Rule 27.26 allowed successive [Rule 27.26] motions to be filed when the ground presented could not have been raised in a prior motion[,]” Movant’s motion to reopen his case did not contain any new grounds that could not have been raised in the prior Rule 27.26 motion.

As best we discern from our review of Movant’s first allegation of error in his pro se brief, Movant asserts the motion court erred in denying his motion to reopen his Rule 27.26 proceedings so as to have his post-conviction counsel explain why he “abandoned [Movant] and his [three] claims for relief,” arising out of his appellate counsel’s failure to raise in his direct appeal the inadequacy of one of the jury instructions at trial relating to the definition of what constitutes “serious physical injury;” the failure of his trial counsel to object and request a mistrial based on evidence of uncharged crimes admitted at trial; and the failure by trial counsel to raise his Batson claim. Movant argues that such a failure by his post-conviction counsel amounted to “abandonment by post[-]convietion counsel,” entitling him to re-open the prior Rule 27.26 proceedings to address this claim of abandonment by his post-conviction counsel as to the foregoing three issues.

At the time of Movant’s conviction, “Rule 27.26 (repealed) established procedures for post-conviction review in Missouri. That rule placed no time limit on the filing of motions seeking post-conviction relief.” Thomas v. State, 808 S.W.2d 364, 365 (Mo. banc 1991).

Appellate review of a Rule 27.26 motion is specifically limited by Rule 27.26(j) to “a determination of whether the findings, conclusions, and judgment of the trial court are clearly erroneous.” Gawne v. State, 729 S.W.2d 497, 500 (Mo.App.1987). “[(Challenges to the effectiveness of counsel in a Rule 27.26 proceeding are not cognizable in a Rule 27.26 proceeding.” Williams v. State, 744 S.W.2d 814, 817 (Mo.App.1987); see also Brauch v. State, 653 S.W.2d 380, 381 (Mo. banc 1983) (holding that Rule 27.26 “has been specifically held to preclude an attack on the adequacy of counsel in the preparation and conduct of a prior 27.26 motion”).

We note that former Rule 27.26, as well as present Rules 24.035 and 29.15, have a common purpose, which is to adjudicate claims concerning the validity of the trial court’s jurisdiction and the legality of the conviction or sentence of a defendant. Schleeper v. State, 982 S.W.2d 252, 253 (Mo. banc 1998). Rules 24.035 and 29.15 have the additional purpose of avoiding delay in the processing of prisoners’ claims and prevention of the litigation of stale claims. Id.

Abandonment by counsel “may occur when post-conviction counsel takes no action on movant’s behalf, so that it appears on the face of the record that movant is deprived of a meaningful review of post-conviction claims.” Morgan v. State, 8 S.W.3d 151, 153 (Mo.App.1999) (Rule 24.035 action); see also Luleff v. State, 807 S.W.2d 495 (Mo. banc 1991) (Rule 29.15 action). Additionally, abandonment by counsel can occur when “the record reflects that counsel has determined that there is a sound basis for amending the pro se motion but fails ... to file the amended motion [in a timely manner] as required by Rule 29.15(f) .... ” Sanders v. State, 807 S.W.2d 493, 494-95 (Mo. banc 1991).

We recognize that in the context of a Rule 29.15 proceeding, the court in which an original post-conviction motion was timely filed has jurisdiction to consider a motion that seeks to reopen post-conviction proceedings to address claims of abandonment. See State ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 217-18 (Mo. banc 2001). Likewise, the same concept pertains to a Rule 24.035 proceeding. Hammack v. State, 130 S.W.3d 721, 722 (Mo.App.2004).

Here, however, Movant is not arguing that his post-conviction counsel completely failed to take any action on his behalf or otherwise failed to amend his original pro se motion. See Morgan, 8 S.W.3d at 153; Sanders, 807 S.W.2d at 494-95. Movant is merely arguing his counsel was ineffective for abandoning issues Movant felt should have been raised in his first post-eonviction action. As set out in his Notice of Appeal,

Movant ha[s] raised the Ground that his Post-conviction Counsel abandoned Mov-ant by not bringing the claim of ineffective assistance of trial counsel ... for failure to raise a Jury Instruction issue, for failure to object to the admittance of uncharged crimes at the trial, and what constitutes a Batson claim concerning jury selection.

In the instant matter, Movant’s abandonment claims amount to mere claims of ineffective assistance of post-conviction counsel, which are categorically unreviewable. Lingar v. State, 766 S.W.2d 640, 640-41 (Mo. banc 1989); see also Hammack, 130 S.W.3d at 722; State v. Owsley, 959 S.W.2d 789, 799 (Mo. banc 1997). Point denied.

In his second point, Movant alleges the motion court erred in finding Movant’s motion was a successive Rule 27.26 motion, and in finding that there was no new reason for re-opening Movant’s Rule 27.26 proceedings so that he could assert a claim for abandonment by post-conviction counsel. We need not review this point of purported motion court error at length, due to our disposition of Point One. Suffice to say, “Rule 27.26 is designed to provide-a procedure, limited in scope, by which a prisoner may attack his conviction and sentence; it is not intended as a springboard for attack upon prior post-conviction proceedings.” Brauch, 653 S.W.2d at 381; see also Lingar, 766 S.W.2d at 641; Neal v. State, 569 S.W.2d 388, 389 (Mo.App.1978). Rule .27.26 is designed so that proceedings under that rule “are directed at defects which led to the original sentencing.” Usher v. State, 741 S.W.2d 677, 678 (Mo.App.1987). “Because movant’s issue on appeal is not a defect which led to the original sentencing [but rather a complaint relating to post-conviction proceedings,] it is not reviewable on appeal.” Id. In either event, Movant’s second Rule 27.26 motion did not assert any claim for abandonment as recognized by the Supreme Court of Missouri. See Luleff, 807 S.W.2d at 497; Sanders, 807 S.W.2d at 495. Point denied.

The judgment of the motion court is affirmed.

SHRUM, P.J., and GARRISON, J., concur.

      . Following a jury trial, Movant was convicted on February 25, 1981, "of three counts of forcible rape and two counts of forcible sodomy conviction which was affirmed by the Supreme Court of Missouri in State v. Brown, 636 S.W.2d 929, 931 (Mo. banc 1982). "On March 4, 1987, [Mjovant filed his [first] pro se motion for relief under former Rule 27.26” alleging ineffective assistance of trial counsel. The motion court denied the motion and this Court affirmed that judgment on appeal. Brown v. State, 769 S.W.2d 839, 840 (Mo.App.1989).
      “Rules 29.15 and 24.035, effective January 1, 1988, replaced Rule 27.26.” Fincher v. State, 795 S.W.2d 505, 506 (Mo.App.1990). Rule 29.15(m), Missouri Court Rules (1988), specifically provided that Rule 27.26 applied to all proceedings wherein sentence was pronounced prior to Januaiy 1, 1988. Id. As Movant was sentenced in 1981, Rule 27.26 is applicable in the present matter. See Brown, 769 S.W.2d at 841. All rule references are to Missouri Court Rules (1981) unless otherwise specified.

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

      . We note that in Flowers v. State, 618 S.W.2d 655, 656 (Mo. banc 1981) the movant claimed he was abandoned by his appointed counsel when his counsel failed to perfect his appeal from the denial of his first Rule 27.26 motion, which alleged "police beatings, refusal to allow a telephone call or access to doctor or lawyer, and failure of appointed counsel to consult with him prior to trial.” The Supreme Court of Missouri held that because "[i]t was not possible for [the movant] to have raised in his [first Rule 27.26] motion the ground that his lawyer would abandon him on the appeal therefrom,” the movant was entitled to “an evidentiary hearing ... on whether [his] counsel abandoned hint on appeal _” Id. at 657 (emphasis added). As such, Flowers is not applicable to the present matter.

      . The instant motion court found that "a review of the files and records, including the transcript of the evidentiary hearing, reveals that counsel rendered effective assistance" to Movant and that "post[-]conviction counsel did not abandon [M]ovant.” Nothing in our review of the records provided by Movant causes us to disagree with the motion court’s conclusions.

      . In Lingar, the movant argued that his prior Rule 27.26 motion attorney was ineffective for failing "to allege two additional grounds in the amended motion Id. at 640-41. The Supreme Court of Missouri held that a “post-conviction proceeding authorized by the rules of this Court is directed to the validity of [a movant’s] conviction and sentence and cannot be used as a conduit to challenge the effectiveness of counsel in the post-conviction proceeding.” Id. at 641.


author: PER CURIAM.

text:
    Iyabo Arinola COLLINS, Respondent, v. Paul D. COLLINS, Appellant.
    No. WD 65046.
    Missouri Court of Appeals, Western District.
    Dec. 6, 2005.
    Brent L. Winterberg, Esq., Kansas City, MO, Attorney for Appellant.
    Chuckwuemek N. Chionuma, Esq., Kansas City, MO, Attorney for Respondent.
    Before EDWIN H. SMITH, P.J., LOWENSTEIN and HOWARD, JJ.
   ORDER

PER CURIAM.

A default judgment of dissolution was rendered against Appellant/Husband. Appellant sought to set aside the judgment under Rules 74.05 and 74.06(b). The trial court denied the motion. Appellant now appeals, claiming the trial court erred when it denied his motion under Rule 74.06. Affirmed. Rule 84.16(b).


text:
    Donald D. RIDDLE, Appellant, v. STATE of Missouri, Respondent.
    No. WD 63382.
    Missouri Court of Appeals, Western District.
    Dec. 6, 2005.
    Susan L. Hogan, Appellate Defender, Kansas City, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel N. McPherson, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before EDWIN H. SMITH, C.J., and LOWENSTEIN and HARDWICK, JJ.
   Order

PER CURIAM.

Donald D. Riddle appeals from the order of the Circuit Court of Jackson County overruling, after an evidentiary hearing, his Rule 29.15 motion for post-conviction relief. After a jury trial, the appellant was convicted of first-degree robbery, in violation of § 569.020, and armed criminal action (ACA), in violation of § 571.015. As a result of his convictions, he was sentenced, as a prior offender, § 558.016, to consecutive prison sentences in the Missouri Department of Corrections of life for first-degree robbery and thirty years for ACA, which were ordered to be served consecutively with the sentences the appellant received on a prior conviction in the Circuit Court of Clay County.

The appellant raises one point on appeal. He claims that the motion court clearly erred in overruling 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 for counsel’s failure to impeach the testimony of one of the State’s witnesses.

We affirm pursuant to Rule 84.16(b).


text:
    Gregory G. FENLON, Appellant, v. ABN AMRO MORTGAGE CO., INC., Respondent.
    No. ED 85184.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 13, 2005.
    Gregory G. Fenlon, Clayton, MO, for appellant.
    Thomas J. Fritzlen Jr., Kansas City, MO, for respondent.
    Before MARY K. HOFF, P.J., CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Gregory Fenlon appeals from the judgment of the trial court awarding ABN AMRO Mortgage Group (“ABN AMRO”) $12,296.00 in attorney’s fees, interest on a portion of those attorney’s fees, and court costs.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth, the facts and reasons for this order.

The judgment of the trial court is affirmed in accordance with Rule 84.16(b).


text:
    In re the Marriage of Welker. Vicky Marie WELKER, Appellant, v. Ricky Thomas WELKER, Respondent.
    No. ED 85384.
    Missouri Court of Appeals, Eastern District, Southern Division.
    Dec. 13, 2005.
    Michael P. Cohan', The Cohan ' Law Firm, LLC, St. Louis, MO, for appellant.
    Thomas L. Hoeh, Perryville, MO, for respondent.
    Before: GLENN A. NORTON, C.J., NANNETTE A. BAKER, ⅜ and KENNETH M. ROMINES, J.- .
   ORDER

PER CURIAM.

Vicky Welker (Vicky) appeals the Circuit Court’s Amended Judgment Dissolving Marriage, which dissolved her marriage to Ricky Welker (Ricky). Vicky contends the Court erred when it 1) calculated the amount of child support; 2) dissolved the marriage on the basis that it was irretrievably broken; and 3) awarded Ricky primary custody of the children. We have reviewed the briefs of the parties and the Record on Appeal, and we find no error of law in this case. No jurisprudential purpose would be served by a written opinion. The parties have been provided with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed pursuant to Rule 84.16(b)(5).


text:
    Roger D. WILBURN, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85560.
    Missouri Court of Appeals, Eastern District, Division Four.
    Dec. 13, 2005.
    Michelle M. Rivera, St. Louis, MO, for appellant. .

      Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun Naccarato, Jefferson City, MO, for respondent.
    Before NANNETTE A. BAKER, P. J., ROBERT G. DOWD, JR., J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Roger D. Wilburn (“Movant”) appeals from the motion court’s judgment denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. In his sole point relied on, Movant claims the motion court erred in denying his post-conviction motion without an evidentiary hearing. Movant claims his counsel was ineffective for allegedly telling him that he would only be required to serve fifteen percent of his eight year sentence and with credit for the time he already served, he would be released shortly following his delivery to the Department of Corrections. Movant claims that had he known that he was required to serve a minimum one-third of his sentence before being eligible for parole, he would not have pleaded guilty and would have insisted on going to trial. We find no error and affirm.

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

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

      . All rule references are to Mo. Rules Crim. P.2004, unless otherwise indicated.


text:
    In the Matter of the CARE AND TREATMENT OF Richard GIESE, Appellant.
    No. ED 85703.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 13, 2005.
    Emmett D. Queener, Columbia, MO, for appellant.
    James R. Layton, Charles S. Birmingham, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Richard Giese (hereinafter, “Giese”) appeals from the trial court’s judgment entered following a bénch trial finding him to be a sexually violent predator and committing him to the custody and care of the Department of Mental Health pursuant to Sections 632.480-.513 RSMo (2002). Giese raises two points on appeal, challenging the sufficiency of the evidence.

We have reviewed the briefs of the parties, the legal file, and transcript on appeal. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for the order affirming the judgment pursuant to Rule 84.16(b).


text:
    Dennis WILLIAMS, Plaintiff-Appellant, v. Jerquique YASSINE, Raye A. Maupin, and State Farm Insurance Company, Defendants-Respondents.
    No. 26771.
    Missouri Court of Appeals, Southern District, Division One.
    Dec. 14, 2005.
    Dennis Williams, Moberly, pro se.
    Jerquique Yassine, Jefferson City, pro se. No brief filed.
    Rayé A. Maupin, Jefferson City, pro se. No brief filed.
    Monte P. Clithero, Kevin M. FitzGerald, Springfield, for State Farm Insurance Company.
    Before PREWITT, P.J., PARRISH, J., and RAHMEYER, J.
   PER CURIAM.

Dennis Williams (“Appellant”) brings an appeal from the dismissal with prejudice of his Petition for Damages brought against “State Farm Insurance Co.” (“State Farm”), Jerquique Yassine, and Raye A. Maupin. State Farm brought a motion to dismiss before the trial court claiming, inter alia, there was no legal entity named “State Farm Insurance,” that the petition failed to state a cause of action for conspiracy, and that the petition failed to state a claim or cause of action against State Farm. Appellant filed an Answer vaguely claiming “they” (apparently referring to the other defendants) “lied in court as depositions from the Springfield police prove,” that the other defendants were negligent, in causing an accident, and that other defendants in the case held a State Farm policy but had moved out of state so State Farm must.be held liable. We find that the Court could have properly dismissed the Petition on the basis that “State Farm Insurance Co.” was not a legal entity, that Appellant had failed to state a claim for conspiracy, or that State Farm could not be sued directly for any claimed negligence on the part of its insureds.

A fuller rendition of the facts is not possible from Appellant’s brief. His statement of facts consists of two sentences with no citations to the legal file. The Point Relied on (although not designated as such) states: “The trial court erred in dismissing the cause with prejudice when the case had been dismissed without prejudice on on [sic] 9-15-04.” The argument simply contends that the court abused its discretion because “it robbed the Plaintiffs right to refile the case under Statute 516.230 RSMo that allows a case to be refiled within one year when its [sic] dismissed without prejudice.” There is virtually no discussion of the issues raised in the 'motion to dismiss. The judgment is affirmed.

      . Additionally, Appellant’s brief fails to comply with Rule 84.04, and a "failure to substantially comply with Rule 84.04 preserves nothing for appellate review.” Burton v. Tucker, 937 S.W.2d 775, 776 (Mo.App.S.D.1997).


author: JAMES K. PREWITT, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Larry J. BULLOCK, Defendant-Appellant.
    No. 26650.
    Missouri Court of Appeals, Southern District, Division One.
    Dec. 15, 2005.

      Gary Brotherton, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., and Karen L. Kramer, Assistant Attorney General, Jefferson City, MO, for respondent.
   JAMES K. PREWITT, Presiding Judge.

Following a jury trial, Larry J. Bullock (“Appellant”) appeals his conviction on two counts of statutory sodomy in the first degree, pursuant to § 566.062, RSMo 2000, for which he received two consecutive twenty-year terms of imprisonment.

We view the evidence in the light most favorable to the verdict. State v. Crawford, 32 S.W.3d 201, 204 (Mo.App.2000). Between the second week of May of 2001 and May 29, 2001, Appellant lived with his cousin, Sheila Cassidy, in Carthage, Missouri. Cassidy lived there with her daughter, S.K., born March 10, 1994, and a son. During this time, Appellant allegedly rubbed baby oil on S.K’s body and licked her vagina.

Cassidy is also the natural mother of C.K., born September 25, 1995, who lived with her father, Victor Libeer, and adoptive mother, Kathy Libeer, in Blue Springs, Missouri. On May 18, 2001, Cas-sidy and Appellant picked up C.K. in Blue Springs for her bi-monthly visit to Carthage. During this weekend visit, Appellant allegedly put baby oil over C.K.’s body and touched her vagina with his hand.

On May 31, 2001, the day scheduled for C.K.’s next visitation with her mother, C.K. told Kathy Libeer that she did not want to go and made allegations against Appellant. A complaint was filed on September 10, 2002, and the State charged Appellant with two counts of statutory sodomy. At the trial beginning September 17, 2004, Appellant denied all allegations. The jury found Appellant guilty on both counts. Appellant waived jury sentencing, and the trial court sentenced Appellant on November 4, 2004. Appellant filed his Notice of Appeal on November 10, 2004.

In his first point, Appellant contends that the trial court erred in overruling his motion for judgment of acquittal, as the evidence proved only that Appellant “licked [S.K’s] vagina, and no rational trier of fact could have found beyond a reasonable doubt that he inserted his tongue.” Our review is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found Appellant guilty beyond a reasonable doubt. State v. Love, 88 S.W.3d 511, 514 (Mo.App.2002). “We disregard contrary inferences unless they are such a natural and logical extension of the evidence that a reasonable juror would be unable to disregard them.” State v. Roberson, 941 S.W.2d 7, 8 (Mo.App.1997).

Section 566.062.1, RSMo 2000 states that “[a] person commits the crime of statutory sodomy in the first degree if he has deviate sexual intercourse with another person who is less than fourteen years old.” “Deviate sexual intercourse” is defined as:

[A]ny act involving the genitals of one person and the hand, mouth, tongue, or anus of another person or a sexual act involving the penetration, however slight, of the male or female sex organ or the anus by a finger, instrument or object done for the purpose of arousing or gratifying the sexual desire of any person;

Section 566.010(1), RSMo 2000.

Appellant maintains that no evidence of this form of statutory sodomy was offered at trial. At trial, S.K. testified that Appellant touched her with his tongue. During a videotaped interview, S.K. said Appellant licked her “where she went to the bathroom.” After showing the videotaped interview,' Jeannie Stuart, an employee of the Division of Family Services (“DFS”) and who interviewed S.K., testified that S.K. indicated on a diagram that Appellant touched her vagina. During closing arguments, the State said:

[S.K.] sat right there and told you that [Appellant] licked her vagina, her private area, with his tongue. No reason for him to be there. No reason whatsoever to be there. No health issues, no reason. The only reason he was there was for his own sexual gratification. The definition we’ve already talked about.
Was that sexual deviant intercourse? Of course it was, based on that definition I read to you a moment ago. It’s the exact same definition as on the other instruction. Tongue, on the second line there towards (sic) the far right, tongue or — you know, he’s putting his tongue on her sex organ, her vagina....

Appellant asserts that licking a vagina is not the same thing as inserting a tongue into a vagina in the context of deviate sexual intercourse. In State v. Elder, 36 S.W.3d 817 (Mo.App.2001), this District considered the definition of “deviate sexual intercourse” as found in § 566.010(1), RSMo 1994. There, the defendant admitted that he touched his tongue to the vagina of the victim who was under the age of fourteen for the purpose of sexual gratification but that such an act did not constitute deviate sexual intercourse. Id. at 818, 820. This District determined that licking a victim’s vagina was deviate sexual intercourse for the offenses of sodomy and statutory sodomy in the first degree. Id. at 820-821.

In State v. Pollard, 588 S.W.2d 212 (Mo.App.1979), the offenses with which the defendant was charged included sodomy. On appeal, defendant alleged error in that the State failed to offer proof of penetration in its prosecution for sodomy when the jury had been instructed that penetration was an essential element in-finding defendant guilty of the offense. The Western District cited the victim’s testimony, which it found to be “as specific and convincing on this element [of sodomy] as- could ever be expected short of a parrot response that penetration had occurred.” Id. at 215. There, the victim testified as follows:

Q. After he removed your jeans from you, what did he then do?
A. He said he was going to give me something that I never had before, then he opened up my legs and started licking at me.
Q. After he opened your legs, what did he then do?
A. He pulled his head and he started just licking and sucking for a long time.
Q. Where was he licking and sucking?
A. On my vagina.

Id.

“ ‘Cunnilingus’ ” is defined in Webster’s Third New International Dictionary as “stimulation of the vulva with the lips or tongue.” Pollard, 588 S.W.2d at 215 (quoting State v. Thompson, 574 S.W.2d 432, 434 (Mo.App.1977)). “Because of the anatomy of the mouth and the female genitalia, we believe that any contact between the mouth or its component parts and the vulva is sufficient to constitute the offense of cunnilingus.” Id. The Western District concluded:

Anyone even with the most basic or rudimentary knowledge of the human anatomy “of the mouth and the female genitalia” (Thompson, supra) would reach the reasonable (and indeed, inevitable) inference and conclusion from this account of the defendant’s actions, if believed, without direct evidence that some degree of insertion or penetration by defendant’s mouth or tongue occurred diming the cunnilingus.

Pollard, at 215.

We conclude that the act of licking the female genitalia fits the definition of “deviate sexual intercourse.” Furthermore, Appellant incorrectly states in this point that he was charged with inserting his tongue into S.K.’s vagina. The information actually charges that “[Appellant] had deviate sexual intercourse with [S.K.], who was then less than twelve years old.” However, Jury Instruction No. 8 instructs the jury to find Appellant guilty under Count II of statutory sodomy in the first degree if it is believed that Appellant “inserted his tongue into [S.K.’s] vagina[.]” The language requiring the jury to find that Appellant “inserted his tongue into [S.K.’s] vagina” was immaterial and constituted mere surplusage which amounted to the assumption of an unnecessary burden by the State. See State v. Perkins, 831 S.W.2d 637, 640 (Mo.App.1992), A sufficient level of evidence was presented so that a reasonable fact finder could conclude Appellant had committed statutory sodomy. Point one is denied.

In his second point, Appellant maintains that the trial court abused its discretion in overruling his objection to what Appellant contends was an attempt by the State to extract from the venire a commitment to find Appellant guilty. During voir dire, the State asked: “Does anyone believe it’s okay for an adult to have sexual relations or sexual intercourse with a person who’s less than [twelve] years old?” Appellant’s counsel objected, maintaining the State was trying to get a commitment from the panel. The trial court determined that the question was permissible as long as it centered only on matters of conscience presented by the issue and overruled the objection.

“[T]he trial judge is vested with the discretion to judge the appropriateness of specific questions and is generally vested with wide discretion in the conduct of voir dire.” State v. Oates, 12 S.W.3d 307, 310 (Mo.banc 2000). An appellate court will find reversible error only where an abuse of discretion is found and the defendant can demonstrate prejudice. State v. Womack, 967 S.W.2d 300, 303 (Mo.App.1998).

“It is reversible error for an attorney during voir dire to attempt to obtain from the venire a commitment or a pledge to act in a specific way if certain facts are elicited or certain contingencies arise at trial.” State v. Crew, 803 S.W.2d 669, 669 (Mo.App.1991). “[C]ounsel may probe the venire to determine preconceived prejudices that would prevent the jurors from following the court’s instructions.” Id.

Appellant relies on the holding in State v. Kiner, 441 S.W.2d 720, 722 (Mo.banc 1969), that this was not a legitimate voir dire inquiry: “And if after hearing all the testimony as it comes from the witness stand and the Judge’s instructions on the law, if the state proves to you beyond a reasonable doubt as to the guilt of the defendant, is there any reason you could not and would not vote to find him guilty?” Id.

But the question we examine is more akin to the question at issue in State v. Crawford, 904 S.W.2d 402, 408 (Mo.App.1995), where the prosecutor indicated during voir dire that there would be evidence at trial that one of the victims stole something. The prosecutor then asked the ve-nire whether anyone believed “that if a person steals something he should be put to death.” Id. The Eastern District found that “the prosecutor was merely attempting to elicit any potential sympathies the jurors may have for defendant” as “any positive responses might bear upon the juror’s ability to follow the trial court’s instructions.” Id. The trial court did not abuse its discretion by overruling Appellant’s objection. Point two has no merit.

In his remaining point, Appellant avers the trial court erred in admitting videotaped statements by C.K. and S.K. from interviews with DFS interviewer Jeannie Stuart, because this denied Appellant the opportunity for effective cross-examination. Our review of the trial court’s decision to admit testimony concerning the interviewing of a victim is limited to a determination of whether the decision amounted to an abuse of discretion, and the trial court’s decision will be affirmed unless there is no reasonable basis in the record for it. State v. Sanders, 126 S.W.3d 5, 13 (Mo.App.2003). The same standard of review governs our review of the trial court’s decision to admit the victim’s videotaped statements. State v. Smith, 136 S.W.3d 546, 550 (Mo.App.2004).

Section 492.304, RSMo Cum.Supp. 2004 governs the admissibility of audiovisual recordings of children under the age of fourteen alleged to be the victim of an offense under chapter 566 and satisfies a defendant’s right to confrontation. State v. Mann, 35 S.W.3d 913, 916 (Mo.App.2001). “The statutory requirement that the child witness be available to testify at trial, under oath, and subject to the fact finder’s observation of demeanor ... guarantees that right.” State v. Schaal, 806 S.W.2d 659, 663 (Mo.banc 1991); see also § 492.304.2, RSMo 2004. This allows the jury “to judge the videotaped, recorded testimony for themselves; they do not receive it secondhand.” Schaal, 806 S.W.2d at 663.

Both C.K. and S.K. testified in court before their videotaped interviews were admitted, and Appellant had the opportunity to cross-examine them. The trial court did not abuse its discretion by admitting the videotaped interviews. Point three has no merit.

The judgment is affirmed.

PARRISH and RAHMEYER, JJ., concur.


author: JOHN E. PARRISH, Judge.

text:
    In the Interest of L.A.M.R., M.R.R., and D.J.M. M.D.R., Appellant v. Greene County Juvenile Office, Respondent.
    Nos. 26783, 26785.
    Missouri Court of Appeals, Southern District, Division One.
    Dec. 15, 2005.

      Kevin A. Easley, Hazelrigg, Roberts & Easley, P.C., Springfield, for appellant.
    Bill Prince, Springfield, for respondent.
   JOHN E. PARRISH, Judge.

M.D.R., mother of son, D.J.M., born April 8, 2001, and two daughters, L.A.M.R., born June 19, 1997, and M.R.R. born June 17, 1999, appeals the termination of her parental rights. No. 26783 is the appeal of the judgment terminating her parental rights to L.A.M.R. and M.R.R. No. 26785 is her appeal of the judgment terminating parental rights to D.J.M. The appeals were consolidated by this court. Both judgments are affirmed.

“Juvenile proceedings and appellate review of such, partake the nature of civil proceedings and the scope of review is as in court-tried cases.” C.R.K. v. H.J.K, 672 S.W.2d 696, 698 (Mo.App.1984). The trial court order terminating parental rights is the judgment from which the appeal is taken. § 211.261, RSMo 2000; Rule 120.01. The judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. In Interest of S.J.G., 871 S.W.2d 638, 640 (Mo.App.1994), citing In Interest of L.W., 830 S.W.2d 885, 886 (Mo.App.1992). This court views the facts and reasonable inferences from those facts in the light most favorable to the judgment. In Interest of M.L.K., 804 S.W.2d 398, 400 (Mo.App.1991). Where multiple statutory bases for termination of parental rights are found, all that must be found in order to affirm the judgment is that one of the statutory grounds was proven and that termination is in the best interests of the children. In Interest of S.J.G., supra, at 641.

M.J. v. Greene County Juvenile Office, 66 S.W.3d 745, 747 (Mo.App.2001).

On the morning of August 25, 2002, Springfield, Missouri, police received a report that two children were unattended at the swimming pool of an apartment complex. The children were L.A.M.R. and M.R.R. At that time, L.A.M.R. was five years old. M.R.R. was three. A police officer responded and found the two children at the pool without supervision. M.R.R. was unclothed. Both children had bruising on their bodies. Missouri Division of Family Services (DFS) was contacted. A DFS worker joined the officer at the apartment complex.

M.D.R. resided at the apartment complex with the three children and with R.M., father of D.J.M- The police officer contacted her. She informed the officer that she had been asleep in her apartment and was not aware that the children were at the swimming pool. M.D.R. said she was up late the night before with D.J.M. who was ill with ear infection, fever, and tonsillitis. She stated she had taken D.J.M. to a walk-in clinic and obtained a prescription for medication but had not filled the prescription because she did not have gas money to get to the pharmacy. However, R.M. reported that M.D.R. left the apartment that evening on two occasions to obtain beer and cigarettes.

M.D.R. was asked about the bruises on the children. Her explanation to the DFS worker was that she and R.M. “did beat the children with their hands and a belt.” M.D.R. was asked when was the last time she spanked or used a belt on a child. She could not tell the DFS worker because she said the children acted up daily.

The DFS worker talked to L.A.M.R. She told the worker that M.D.R. and R.M. “both beat her and her sister, M.R.R., with a belt and their hands.” L.A.M.R. was asked when was the last time she was hit. L.A.M.R. could not remember; she told the DFS worker “she [got] it all the time.”

M.D.R. was arrested on charges of child endangerment and child abuse. The children were taken into custody by DFS and 'subsequently placed in DFS care by the juvenile court. Petitions to terminate M.D.R.’s parental rights were filed November 6, 2003. The petition to terminate parental rights to D.J.M. and the petition to terminate parental rights to L.A.M.R. and M.R.R. alleged that the children were in the care of the Missouri Department of Social Services, Children’s Division, (formerly DFS) due to parental neglect; that the children were with that agency “pursuant to an order in Greene County Juvenile Court.”

The petitions alleged that the children had been judicially determined as “abused and/or neglected” and that the children had been under the jurisdiction of the juvenile court for a period of one year, and the conditions that led to the assumption of jurisdiction still persisted or conditions of potentially harmful nature continued to exist. The petitions alleged that there was little likelihood the conditions would be remedied at an early enough date so that the children could be returned to a parent in the near future, and that continuation of the parent and child relationship greatly diminished the children’s prospects of early integration into a stable and permanent home.

The trial court found, with respect to each child, that the allegations in the petitions were true. It concluded, with respect to each child, that it was in the child’s best interests to terminate M.D.R.’s parental rights.

M.D.R. raises one point on appeal. She does not challenge the findings of the trial court that there are statutory grounds for terminating her parental rights. The point on appeal contends the trial court erred in finding “(1) that there were no emotional ties and a bond between the minor children and [M.D.R.], (2) that [M.D.R.] failed to provide support or like kind support to the child, (3) that there are no further services that could be offered to help rectify the situation and return the minor children back to the home, (4) that [M.D.R.] has shown a disinterest in and lack of commitment to the minor children and (5) that [M.D.R.] has not maintained visitation or other contact with the children.” A trial court is required to make findings on those topics when considering whether to terminate the parent-child relationship pursuant to the statutory grounds the trial court relied on in this case -for terminating M.D.R.’s parental rights. See § 211.447.6.

As this court perceives M.D.R.’s point on appeal, what she challenges is the trial court’s determination that termination of her parental rights was in the best interests of the children. That issue, therefore, is the only issue for appellate review. “An appellate court reviews only issues raised in the points relied on in an appellant’s brief.” State v. Rogers, 973 S.W.2d 495, 498 (Mo.App.1998). See also In re A.K.F., 164 S.W.3d 149, 152 (Mo.App.2005).

The determination of what is in a child’s best interests is an ultimate conclusion for the trial court based on the totality of the circumstances. [In the Interest of] M.J., 66 S.W.3d [745] at 749 [ (Mo.App.2001) ]. It is the trial court’s duty to weigh the evidence presented relating to best interests and we will not reweigh that evidence. Id. We review the trial court’s determination that termination was in the best interests of a child pursuant to an abuse of discretion standard. [In the Interest of] K.C.M., 85 S.W.3d [682] at 689 [ (Mo.App.2002) ].

In re K.J.K, 108 S.W.3d 62, 68 (Mo.App.2003).

Section 211.447.6 states that when a trial court is considering whether to terminate the parent-child relationship on the grounds on which the trial court acted in the cases consolidated for purposes of this appeal, “the court shall evaluate and make findings on [factors set forth in the statute], when appropriate and applicable to the case[.]” Those factors include:

(1) The emotional ties to the birth parent;
(2) The extent to which the parent has maintained regular visitation or other contact with the child;
(3) The extent of payment by the parent for the cost of care and maintenance of the child when financially able to do so including the time that the child is in the custody of the division or other child-placing agency;
(4) Whether additional services would be likely to bring about lasting parental adjustment enabling a return of the child to the parent within an ascertainable period of time;
(5) The parent’s disinterest in or lack of commitment to the child.

The trial court’s findings included that the evidence indicated the minor children did not demonstrate emotional ties or attachments to M.D.R. The trial court found, however, that M.D.R. generally maintained contact with the children. The trial court found no parent provided verification of payment of financial support, but that M.D.R. provided some items of in-kind support. It found that there were no services that could be offered which would enable placement of the children with M.D.R. within an ascertainable time. It further found that through her unwillingness to assimilate change, M.D.R. had shown a disinterest in and lack of commitment to the minor children.

M.D.R. relies on evidence presented by Ann Beatty as support for her contention that there were emotional tiés between her and the children. Dr. Beatty is a psychologist. M.D.R. and the children were referred to her for counseling. Dr. Beatty testified that L.A.M.R. and M.R.R. had emotional ties to M.D.R., but that D.J.M. had very little attachment to M.D.R. Dr. Beatty observed, however, that she would not want the children to live with M.D.R.; that she would be very concerned about the home environment M.D.R. would provide.

Testimony by Dr. Mark Bradford, a clinical psychologist, supports a finding that the emotional ties the children had with M.D.R. were unhealthy and detrimental to the children. He observed that M.D.R.’s emotional problems override her common sense or judgment to parent. He concluded that M.D.R. became overwhelmed with her own issues so that she had poor judgment in terms of caring for children. He stated that the children do not have the time that would be required for M.D.R. to mature and become a capable parent.

Brooke Adams, a case worker, testified regarding the interaction among M.D.R. and the children at visits. She stated that the children did not respond well to visits with M.D.R.; that visits would be followed by nightmares, bedwetting and “tantrum-ing”. She said these types of things occurred from anything associated with visits by M.D.R.

The evidence demonstrated a lack of healthy emotional attachments between M.D.R. and the children. It supported the determination that termination of parental rights was in the best interests of the children. See In re A.T., 88 S.W.3d 903, 908 (Mo.App.2002).

M.D.R.’s point on appeal misstates the trial court’s finding regarding providing support for the children. The trial court found M.D.R. provided some in-kind support. M.D.R. argues that the evidence did not reveal that there were no further services that could be offered to rectify the circumstances that led to the trial court taking custody of her children. The evidence revealed that M.D.R. was referred to two psychologists, provided individual and family therapy, parenting education, and therapeutic visitation. These services did not alleviate the circumstances that led to the court taking custody of the children.

The children had been in DFS custody for approximately 20 months at the time of the termination of parental rights hearing. There was testimony by a case worker that neither M.D.R. nor anyone else had requested additional services. The finding that no additional services could be offered that would enable return of the children to M.D.R. within an ascertainable period of time was supported by substantial evidence.

The trial court found a disinterest by M.D.R. in the children and lack of commitment to them. There was evidence that M.D.R. was unwilling to make changes that would facilitate a return of the children; that a year and a half after the children had been removed from M.D.R.’s custody, M.D.R. still lacked stable housing and steady employment. M.D.R. admitted at the hearing that she was not in a position to parent the children. M.D.R.’s failure to make adequate progress to provide a home and financial stability demonstrated a disinterest in the children and lack of commitment to them.

M.D.R. attempted to visit the children “every couple of weeks.” The visits had negative effects on the children. M.D.R. would sometimes leave before the time allotted for the visits. Although this may not amount to evidence of failure to maintain visitation or contact, it demonstrates a lack of commitment by M.D.R. to secure the return of her children.

A determination of what is in children’s best interests is an ultimate conclusion to be made on the basis of the totality of the circumstances. In re K.J.K., supra. That conclusion is not limited to an evaluation of the factors on which the trial court was required to make specific findings. There was sufficient evidence for the trial court to conclude it was in the children’s best interests to terminate M.D.R.’s parental rights. The trial court did not abuse its discretion in so finding. M.D.R.’s point on appeal is denied; The judgments are affirmed.

PREWITT, P.J., and RAHMEYER; J., concur.

      . R.M.’s parental rights were also terminated in No. 26785. He does not appeal.

      . The trial court found that each child had been adjudicated neglected and abused and that each child had been subject to the trial court’s jurisdiction for in excess of one year, but conditions leading to the assumption of jurisdiction continued to exist, including failure of M.D.R. to provide continuing and consistent parental relationships along with safe, stable and secure home environments. See § 211.447.4(2) and (3), RSMo 2000.

      . M.D.R.’s point on appeal urges that the evidence was insufficient for the trial court to have made findings "clearly, cogently, and convincingly.” Findings regarding a child’s best interests are reviewed on an abuse of discretion standard, not a clear, cogent and convincing standard. In re A.T., 88 S.W.3d 903, 908 (Mo.App.2002).

      . References to statutes are to RSMo 2000.


author: NANCY STEFFEN RAHMEYER, Judge.

text:
    Henry D. STIEBEN, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 26859.
    Missouri Court of Appeals, Southern District, Division One.
    Dec. 15, 2005.

      Nancy A. McKerrow, Columbia, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Roger W. Johnson, Asst. Atty. Gen., Jefferson City, for Respondent.
   NANCY STEFFEN RAHMEYER, Judge.

Henry D. Stieben (“Appellant”) pled guilty to statutory sodomy, but now claims his plea was involuntary because there was an incomplete factual basis to support the plea in that he never acknowledged having sexual contact with the victim was for the purpose of arousing or gratifying the sexual desire of any person. We disagree and affirm the denial of his Rule 24.035 motion.

This Court’s review of a lower court’s action on a post-conviction motion is limited to a determination of whether the court’s finding is clearly erroneous. Fields v. State, 950 S.W.2d 916, 918 (Mo.App. S.D.1997). The findings and conclusions of the motion court are clearly erroneous only if, after a review of the entire record, this Court is left “with a definite and firm impression that a mistake has been made.” Simpson v. State, 816 S.W.2d 286, 287 (Mo.App. S.D.1991). On appeal, we presume the motion court’s findings are correct. Worthington v. State, 166 S.W.3d 566, 572 (Mo. banc 2005).

“Rule 24.02(e) provides that ‘[t]he court shall not enter a judgment upon a plea of guilty unless it determines that there is a factual basis for the plea’ therefore, if the facts do not establish the commission of a crime, the plea should be rejected. Felton v. State, 103 S.W.3d 367, 369 (Mo.App. S.D.2003). It is not mandatory at the plea hearing to have every fact enumerated which establishes defendant’s guilt. Id. at 370. It is only necessary that the defendant be informed, at some point prior to the court’s acceptance of his plea, of the facts sufficient to determine his guilt and establish each element of the crime. Id. The purposes of the rule are to ensure that the defendant understands the nature of the charges against him, that defendant understands the maximum penalty confronting him, and that the defendant recognizes that “he has waived specific legal rights by pleading guilty.” Saffold v. State, 982 S.W.2d 749, 753 (Mo.App. W.D.1998).

This Court held in Smith v. State, 141 S.W.3d 108 (Mo.App. S.D.2004), that an appellant needs only to have “an awareness of the nature and elements of the charge to which he or she pleads guilty,” and it is not necessary for the plea court to find that the defendant admits to or believes the veracity of the elements charged against him. Id. at 111 (quoting Vann v. State, 959 S.W.2d 131, 134 (Mo.App.1998)). The initial hesitation or reluctance to admit guilt does not render a later admission invalid so as to destroy the factual basis for the plea. See Bird v. State, 657 S.W.2d 315, 316 (Mo.App. E.D.1983) (holding that a guilty plea was valid even though defendant’s initial admission was both “hesitant and equivocal”).

An analysis of Appellant’s claim that there was an incomplete factual basis to support his plea and the State’s response that an adequate basis exists can be resolved from the testimony at the plea hearing in the dialogue between the court, the prosecuting attorney, the defense attorney, and Appellant:

[PROSECUTOR]: Your Honor, if this case were to go to trial, the State’s evidence would be as follows: [Victim] would testify that when he was age 13, that he on July 7, 2002, was in the home of [Appellant], and on that date [Appellant] did offer to massage his back. He rubbed his back, and then he went down and began rubbing the back of his legs. [Victim] would testify that [Appellant] did reach under him and began rubbing his balls. [Victim] would then also testify that [Appellant] asked him to turn over, and that [Appellant] then began to masturbate [Victim’s] penis.
[Victim] would testify that [Appellant] did massage the sac — [Appellant] did massage — [Appellant] did massage [the victim’s] sac with one hand and stroked his penis with another. [Victim] would testify that on July 7, 2002, in Webster County, Missouri, that [Appellant] did work his penis until — with his hand until [Victim] did ejaculate.
Your Honor, [Victim] would testify that this did occur in Webster County, Missouri, and did occur with [Appellant] who is in the courtroom today.
THE COURT: [Defense counsel], do you believe the State can make a sub-missible case on these facts?
[DEFENSE COUNSEL]: I believe so, Judge.
THE COURT: Okay. [Appellant], you have heard the Prosecutor’s statement. Was that accurate?
[APPELLANT]: May I ask my attorney a question, sir?
THE COURT: Okay. Be so amended. Prior to going off the record this last time, the — I had asked the Prosecuting Attorney to state what the evidence the State would present at a trial on this matter. I would ask the Prosecuting Attorney at this time, do you have anything else to say with regard to the facts the State would present on this matter if it were to go to trial?
[PROSECUTOR]: No, Your Honor.
[THE COURT]: Okay. [Appellant], you have heard the statement — the Prosecutor’s statement — as to the facts that the State would present at a trial in this matter; is that correct?
[APPELLANT]: I’ve heard them.
[COURT]: Okay.
[DEFENSE COUNSEL]: Judge, I wonder if I might give you what our response is to that?
I’ve — I’ve talked with [Appellant]. What we would like to say to the Court — and, [Appellant], you can tell— confirm or deny this to the Judge, is that we acknowledge that this is the evidence the State would present at trial. We don’t — We aren’t saying that everything in that statement of fact is accurate, and — but we’re acknowledging that that is the evidence that would be presented at trial. And we aren’t saying that we agree with everything that was presented by the State in terms of those — the facts that would be presented, but we do acknowledge that evidence would be presented at trial.
THE COURT: Well, are you telling me that is an Alford plea?
[DEFENSE COUNSEL]: No. No, we — we are acknowledging that there was a sexual contact. We’re not acknowledging that everything that she said would be presented as evidence that’s accurate. We are acknowledging the basic charge occurred, but that all the details surrounding what might be stated as evidence at trial are not — is not evidence that we’d agree to every detail of the evidence that was presented as what would be presented at trial. There would be some disagreement as to some facts.
THE COURT: Well, that leaves me kind of in a never-never land to know what [Appellant] is saying occurred and what he’s pleading to and what he’s not. And so I’m going — It is my intent, [Defense counsel], to inquire of [Appellant] what he believes is not accurate about that statement and what is accurate about the statement.
[DEFENSE COUNSEL]: If I might, Judge, I’d like to request — [Appellant] would like to acknowledge today that he did have sexual contact with — by touching the alleged victim’s penis with his hand, and we do want to enter a plea to guilty to that and acknowledge that that occurred. And we would like to be able to present that acknowledgment to the Court and ask the Court to accept the plea on that basis, if — if we may. As you’re aware at any trial, there’s always going to be disagreement about facts and details.
THE COURT: Okay.
[DEFENSE COUNSEL]: We are acknowledging agreement on the basic fact that there was a contact.
THE COURT: Do you want to inquire of your client on this? Do you want to go ahead and ask him questions?
[DEFENSE COUNSEL]: Well, I’d let you finish up what you’d want to do, Judge, and then see if we could cover the factual basis adequately on my part of it, or—
THE COURT: That — That’s why I’m saying. Let’s do that now.
[DEFENSE COUNSEL]: On this charge, Count I alleges that you committed statutory sodomy in the first degree by — In here, it says, “touching, rubbing, and ejaculating [Victim’s] penis,” but statutory sodomy in the first degree includes having sexual contact between your hand and [Victim’s] penis?
[APPELLANT]: Correct.
[DEFENSE COUNSEL]: And are you acknowledging to the Court today that you did have contact between your hand and [Victim’s] penis?
[APPELLANT]: There was contact.
[DEFENSE COUNSEL]: And — And, on that basis, you want to enter a plea of guilty to Count I of this case?
[APPELLANT]: Yes.
[DEFENSE COUNSEL]: On — In response to Question 31, it says, “State in your own words what you say happened,” and you’ve written in, “I touched [Victim’s] penis with my hand”?
[APPELLANT]: That is correct.
[DEFENSE COUNSEL]: And that is — that is the answer you’ve indicated there; is that correct?
[APPELLANT]: Correct.
[THE COURT]: In light of everything that you have said, are you telling me that you are guilty of your own free will because you are guilty as charged?
[APPELLANT]: I’m guilty as to what I agreed and said I did.
[THE COURT]: Well, [Appellant]—
[APPELLANT]: Yes, sir. I—
[THE COURT]: The — The charge on Count 1 is — It is alleged that you committed the unclassified felony crime of statutory sodomy in the first degree, in that on or about July, 2002, in the county of Webster, State of Missouri, [Appellant] had deviant sexual intercourse with another person; to wit, [Victim], a male juvenile, age 13, by touching, rubbing, and ejaculating [Victim’s] penis.
I’m asking you, that in light of everything that’s gone on this afternoon, are you telling me that you are guilty of Count I of your own free will because you are guilty as charged?
[APPELLANT]: Yes.
[THE COURT]: At this time, I will ask you how do you plead to the charge of an unclassified felony of statutory sodomy in the first degree as alleged in Count I of the information? Guilty or not guilty?
[APPELLANT]: Have to be guilty.

Under section 566.062, “A person commits the crime of statutory sodomy in the first degree if he has deviate sexual intercourse with another person who is less than fourteen years old.” Deviate sexual intercourse is defined as

any act involving the genitals of one person and the hand, mouth, tongue, or anus of another person or a sexual act involving the penetration, however slight, of the male or female sex organ or the anus by a finger, instrument or object done for the purpose of arousing or gratifying the sexual desire of any person.

Section 566.010. Appellant contends that he simply agreed in response to questions from his attorney that contact occurred between his hand and the victim’s penis, and that there is no mention of the purpose of sexual gratification; however, Appellant fails to note the direct question by the Court to him. The Court was not satisfied with his answer, “I’m guilty as to what I agreed and said I did,” but further questioned him by specifically stating the charge, which defined his action as “toueh-ing, rubbing, and ejaculating [Victim’s] penis,” and asking if he was guilty of that charge. Appellant stated that he was guilty.

The court gave a sufficient description of the specific acts which form the basis of statutory sodomy, including the required mens rea. Admitting to touching, rubbing and ejaculating [a thirteen-year-old boy’s] penis provides a sufficient factual basis, including the element of for the purpose of arousing or gratifying the sexual desire of any person. Any layperson would have an understanding that rubbing a thirteen-year-old’s penis to ejaculation would be for the purpose of sexual arousal or gratification of a person and we find no error in the moving court finding that Appellant, at the time of his plea, understood the nature of the crime and admitted facts constituting the crime. The denial of Appellant’s Rule 24.035 motion is affirmed.

PREWITT, P.J., and PARRISH, J„ concurring.

      . All rule references are to Missouri Court Rules (2005), unless otherwise specified.

      . All references to statutes are to RSMo 2000, unless otherwise specified.


text:
    Aaron BOLDMAN and Lori Boldman, Plaintiffs-Appellants, v. TANEY COUNTY COMMISSION, Taney County Planning Commission and Taney County Board of Adjustment, Defendants-Respondents.
    No. 26677.
    Missouri Court of Appeals, Southern District, Division One.
    Dec. 15, 2005.

      Craig A. Smith, The Styron Law Firm, Ozark, for Appellant.
    Robert R. Paulson, Forsyth, for Respondent.
   PHILLIP R. GARRISON, Presiding Judge.

Aaron Boldman (“Boldman”) and Lori Boldman (collectively referred to as “Plaintiffs”) appeal a judgment entered by the Circuit Court of Taney County affirming the decision of the Taney County Board of Adjustments (“the Board”); which in turn had affirmed the Taney County Planning Commission’s (“the Commission”) denial of their request to use a portion of their property to conduct what they refer to as a “private boarding school” for boys.

The Commission denied Plaintiffs’ application by a vote of three to two. Plaintiffs sought review by the Board, and after a hearing on February 20, 2002, the Board voted unanimously to deny Plaintiffs appeal. Plaintiffs filed a three-count petition for judicial review with the circuit court. In Count I, they sought a declaratory judgment that the exercise of zoning powers by the Commission were void because the Taney County Commission had not complied with Section 64.860, which provides that in order to avail itself of zoning powers, the county commission shall request the planning commission to recommend the boundaries of the various original districts and appropriate regulations to be enforced in them. In Count II, they sought a writ of certiorari claiming that if the zoning activities were authorized by law, the Commission improperly denied their request for a Division III permit by improperly placing the burden of proof on them, failing to consider a regulation of the Commission permitting the proposed use, and fading to make adverse findings of fact. They sought a writ vacating the Commission’s denial of their request and the Board’s decision to let it stand, and ordering the Board to issue the requested permit. In Count III, Plaintiffs claimed “Inverse Condemnation” in that the Board’s decision was a violation of due process, for which the Board and Commission were liable under 42 U.S.C. § 1983, because either their proposed use was provided for in the zoning regulations or the Commission did not have the authority to act.

Count I was voluntarily dismissed by Plaintiffs. On March 26, 2004, the trial court entered its judgment affirming the decision of the Board and finding against Plaintiffs on both Counts II and III. This appeal followed.

Plaintiffs raise three points on this appeal. In Point I, Plaintiffs allege that the Board acted arbitrarily and capriciously in denying their application for a Division III permit on the basis of “no new evidence.” In Point II, Plaintiffs argue that the Board erred because the Commission lacked the statutory authority to deny the permit, asserting that the Commission had not promulgated the appropriate rules under the enabling statute, Section 64.860, necessary to exercisé the zoning authority granted by the legislature. In Point III, Plaintiffs argue that the Board’s ruling was arbitrary and capricious in that their proposed “school” was a compatible use in “rural residential” neighborhoods pursuant to the Taney County Development Code (“Development Code”).

Points I and III both pertain to what were, essentially, factual determinations by the Board. Therefore, we review them together. We have not been provided with a verbatim transcript of any of the proceedings below. Rule 100.02(e) provides that the record on appeal “shall'consist of: (A) a transcript of the testimony; (B) exhibits and relevant papers; (C) rulings, orders, decisions, findings of fact and conclusions of law issued by the agency.” Plaintiffs have included the minutes of both the Board and the Commission’s hearings regarding their proposed use of the property, which includes what appears to be a summary of the evidence presented to each. Therefore, we will assume, without deciding, that the record before us is adequate under Rule 100.02(e).

We review the decision of the Board, not the judgment of the circuit court. Animal Shelter League of Ozarks, Inc., v. Christian County Bd. of Adjustment, 995 S.W.2d 533, 537 (Mo.App. S.D.1999). The scope of our review of the Board’s decision is limited to a determination of whether the ruling is authorized by law and is supported by competent and substantial evidence upon the whole record. Mo. Const. art. V § 18; Animal Shelter League of Ozarks, 995 S.W.2d at 537. In determining whether there was substantial evidence supporting the Board’s decision, we view the evidence in the light most favorable to the Board’s decision. Animal Shelter League of Ozarks, 995 S.W.2d at 540. We will only disturb the Board’s decision if it is clearly contrary to the overwhelming weight of the evidence. State ex rel. Dotson v. County Com’n of Clay County, 941 S.W.2d 589, 593 (Mo.App. W.D.1997). In short, we will not replace the judgment of the Board with that of our own. Lorenz v. City of Florissant, 787 S.W.2d 776, 777 (Mo.App. E.D.1990).

In Point I, Plaintiffs argue that the Board erred in affirming the Commission’s denial of the permit because the Board did not consider the evidence presented in reaching its decision. Plaintiffs argue that this is the natural conclusion to be drawn from the “unambiguous language” of the Board’s final decision, which stated:

On February 20, 2002 the Taney County Board voted to deny an appeal request by [Plaintiffs] to develop an educational camp for young men, located at 1466 Blackwell Ferry Rd. The vote to deny the appeal was unanimous, based on the applicant presenting no new evidence to the Board.

We find Plaintiffs’ point unpersuasive. The minutes from the February 20, 2002, Board meeting Alústrate that the Board heard a substantial amount of evidence regarding Plaintiffs’ proposed use of the property. A staff report on the proposal was read to the Board, and Boldman and other witnesses, both for and against, testified. One witness pointed out that a petition of some 250 names in opposition to the boarding school was presented to the Commission. Furthermore, there was substantial testimony taken regarding concerns about the safety of the boarding school participants and the neighbors of the property. In addition there was testimony that Plaintiffs’ proposed use was not compatible with the area, that the facility was not licensed by the State and that neighboring property values would decline. Based upon this evidence we see nothing that leads us to the conclusion that the Board did not consider the evidence placed before it. We give the Board’s decision the benefit of all reasonable inferences. Lorenz, 787 S.W.2d at 777. Accordingly, Plaintiffs’ Point I is denied.

In Point III, Plaintiffs observe that the Development Code permits “schools as a ‘compatible use’ in ‘rural residential’ neighborhoods,” and they argue that the Board’s decision was “arbitrary, capricious and unreasonable” because it erroneously found that their proposed use did not constitute a “school.”

Plaintiffs have not provided a complete version of the Development Code in this case. We are not directed to any portion of the record filed here that includes a definition of “school” in the Development Code. As such we can not say that the Board erred in deciding that Plaintiffs’ proposed use of the property was not a “school.” “Arguments and statements which are not supported by the record on appeal supply no basis for appellate review.” Rice v. State, Dept. of Social Services, 971 S.W.2d 840, 843 (Mo.App. E.D.1998).

We do note that the minutes from the February 20, 2002, meeting of the Board relate that there was discussion as to whether Plaintiffs’ proposed use of the property constituted a school. There were to be no more than ten young men attending the “camp” at any one time and Plaintiffs, along with two residential, paid interns, were to staff the camp. The young men were to bunk in “tent-like” structures. Boldman testified that the participants would receive high school diplomas or G.E.D.s, however, he also admitted that the camp was not a State approved school. While our characterization of this facility might include the word “school,” that is not our judgment to make. “If evidence before an administrative body warrants either of two opposed findings” we are bound by the administrative decision. Animal Shelter League of Ozarks, 995 S.W.2d at 543. Point III is denied.

In Point II, Plaintiffs argue that the Board did not have the authority to deny their application for a Division III permit because the Commission did not adhere to Section 64.860 when it promulgated its zoning regulations. For reasons stated below, we do not reach the merits of this point.

Our review is limited to whether the Board’s decision was supported by substantial and competent evidence and was authorized by law. Id. at 537. Plaintiffs’ challenge to the authority of the Board is, in essence, a claim that its action was not authorized by law. However, Plaintiffs have not supplied this court with all of the applicable portions of the Development Code.

A Plaintiff must file a record on appeal which contains “all of the record, proceedings, and evidence necessary for a determination of the questions presented to the appellate court.” Rice, 971 S.W.2d at 843. Though not urged to do so in this case, we may not take judicial notice of ordinances. Board of Educ. of City of St. Louis v. Daly, 129 S.W.3d 405, 408 (Mo.App. E.D.2004). While Plaintiffs’ have supplied us with some portions of the Development Code, more would be needed to decide the issue raised in Point II.

Plaintiffs assert that the Commission, and consequently the Board, did not have the authority to exercise the zoning powers conferred by Section 64.860 because, they argue, the Commission did not comply with the requirements of that statute. Section 64.860 states in pertinent part:

In order to avail itself of the zoning powers conferred by [Sections 64.845 to 64.880 the county commission shall request the county planning commission to recommend the boundaries of the various original districts and appropriate regulations to be enforced therein.

Plaintiffs argue that neither adequate districts, nor regulations applying therein, were established. However, Plaintiffs cite no relevant authority in support of the proposition that Taney County’s zoning is contrary to the statute. Rather, they rely upon State ex rel. Sims v. Eckhardt, 322 S.W.2d 903 (Mo.1959), and City of Moline Acres v. Heidbreder, 367 S.W.2d 568 (Mo.1963). In Sims, the issue was whether the city was allowed to simply extend its existing zoning regulations into a newly annexed territory without complying with the procedures required by the enabling act. 322 S.W.2d at 907. In this case however, Plaintiffs claim that the substance of Taney County’s original zoning regulations do not comply with Section 64.860. Therefore, Sims is not controlling here. In addition, City of Moline Acres pertained to one “single use” zone that encompassed the city, which Plaintiffs do not complain of in this case. 367 S.W.2d at 571. Regardless, the Supreme Court of Missouri has specifically rejected City of Moline Acres, as an unsound opinion because, after re-examination, it found “nothing ... to indicate a legislative intent that, under all circumstances, a municipality must provide for more than one use in its zoning ordinance.” McDermott v. Village of Calverton Park, 454 S.W.2d 577, 581 (Mo. banc 1970).

Plaintiffs specifically argue that the Commission did not comply with Section 64.855, which provides in pertinent part:

[T]he unincorporated territory may be divided into districts of such number, shape and area as may be deemed best suited to carry out the purpose of sections 64.845 to 64.880 ... All the regulations shall be uniform for each class or kind of buildings or land uses throughout each district, but the regulations in one district may differ from those in other districts. The regulations shall be made in accordance with a comprehensive zoning plan, and shall give reasonable consideration, among other things, to the then existing character of the districts, their, suitability for particular uses, conservation of the value of buildings and of existing development, and encouragement of the most appropriate use of the land throughout the county.

As stated above, Plaintiffs have only provided a portion of the Development Code. Therefore we can not determine whether Taney County’s land use regulations are uniform within each district, whether they have been made in accordance with a comprehensive zoning plan or whether they otherwise comply with Section 64.855. Accordingly, we can not review the County’s zoning regulations for the' deficiencies that Plaintiffs assert exist. Point II is denied.

We find sufficient evidence existed for the Board to affirm the decision of the Commission. Accordingly, the decision of the Board is affirmed.

PREWITT and RAHMEYER, JJ„ concur.

      . Throughout this opinion we use the phrase "boarding school” out of convenience, however, this is not to be taken as a decision on Plaintiffs’ assertion in Point III, that their proposed property use constitutes a "school” as referenced under the Taney County Development Code.

      . All statutory references are to RSMo (2000) unless otherwise indicated. Likewise, all rule references are to Missouri Rules of Civil Procedure (2002) unless otherwise indicated.

      . According to the Taney County Development Code, a Division III Permit is "required for all developments that do not qualify for a Division I or II permit; generally this is for new major developments or land use changes.... ” We note that throughout the record, and in their brief to this court, Plaintiffs refer to this as a "special use permit.” However, the application to the Planning Commission designated the permit sought as a Division III permit. Likewise, the circuit court referred to it as a Division III permit. As such, for the sake of clarify we will refer to it as a Division III permit in this opinion. According to the record a special use permit is included in permits authorized as a Division III permit.