author: PATRICIA BRECKENRIDGE, Judge.

text:
    Jack WALKER, Plaintiff, D.E. Rogers and Michalee Rogers, Appellants, v. Ben L. ROGERS and Albany Home Sales, Inc., Respondents.
    No. WD 64708.
    Missouri Court of Appeals, Western District.
    Jan. 31, 2006.

      Jerold L. Drake, Grant City, MO, for appellants.
    Edward M. Manring, Albany, MO, for respondents.
    Before HARDWICK, P.J., BRECKENRIDGE and SPINDEN, JJ.
   PATRICIA BRECKENRIDGE, Judge.

Doyle Eugene (Gene) and Michalee Rogers, husband and wife, appeal the trial court’s judgment in favor of Ben Rogers and Albany Homes Sales, Inc., on their claims for an accounting of the corporate records of Albany and an injunction seeking to enjoin the sale of Albany’s assets. On appeal, they assert the trial court’s judgment, finding that they lacked standing to request an accounting, was not supported by substantial evidence. Specifically, they contend that Gene’s expressed intention to retain an ownership interest in Albany precluded relinquishment of his shareholder rights, including the right to demand an accounting, even though he cashed a check from Ben Rogers, which contained a restrictive indorsement that the check was for full and complete purchase of Gene’s interest in Albany. Because Gene accepted Ben Rogers’ offer to purchase Gene’s entire ownership interest in Albany when he cashed the check from Ben, intended as an offer to purchase Gene’s entire ownership interest, Gene lacked standing to demand an accounting of Albany or seek an injunction of the sale of Albany’s assets. Accordingly, the trial court’s judgment is affirmed.

Factual and Procedural Background

In March 2000, Ben Rogers (Ben) solicited capital contributions to Albany Home Sales, which Ben incorporated for the purpose of selling modular homes. In addition to Ben’s initial investment, which consisted of a fifty-one percent ownership interest in Albany, Ben garnered five additional investors. Specifically, Gene invested $22,500 in Albany; Ron Hinkle invested $25,000; Duane Williams invested $25,000; Jack Walker invested $5000; and Jean Rogers invested $25,000. While Gene believed that his $22,500 investment represented a 12⅜⅞? ownership interest in Albany, Gene admitted that he was not told his ownership interest when he made his investment. Ben stated that because Gene invested less than the other investors, Gene’s share was only nine percent. In addition, Albany provided Gene Schedule K-l tax forms for the years 2000 and 2001, which indicated that Gene held a nine percent ownership interest in Albany.

In November 2001, Ben and his wife, Karen Rogers, visited Gene and Michalee in Coon Rapids, Minnesota. While Ben indicated that the trip was to view land near Gene regarding a development opportunity, Ben and Gene did discuss Albany. Ben also discussed concerns he had with Mr. Hinkle, who was both a shareholder and an employee of Albany. On November 26, 2001, after Ben and Karen left, Michalee, who was concerned about Ben’s dealings with Mr. Hinkle, convinced Gene to gift one-half of his supposed 12⅛% interest in Albany to her through a signed writing. Neither Gene nor Michalee informed Ben or Albany of the purported transfer of half of Gene’s shares.

On April 16, 2002, Gene called Ben with concerns he had regarding a tax form he received from Albany’s accountant. In particular, he told Ben that the form he received indicated that he had a 9% interest in Albany rather than a 12⅛% interest. Gene also voiced his concern over Ben’s treatment of Mr. Hinkle and asked Ben for a full accounting of Albany. In response, Ben told Gene that he was sending a check to Gene the next day to purchase his ownership interest. Gene told Ben that his ownership interest was not for sale. Ben testified that by the end of the conversation, he and Gene had agreed to a $26,000 purchase price.

Gene and Ben had two additional phone conversations over the next two days regarding Albany and its financial situation. On April 18, 2002, at the end of the second conversation, Ben told Gene that he was going to send him a check for $26,000 for his shares in Albany. Thereafter, on April 22, 2002, Gene received a check written on the account of Ben and Karen Rogers, dated April 19, 2002, and signed by Karen, for $26,000. The check also contained the following restrictive indorsement: “Endoser [sic] acknowledges full and copíete [sic] purchase of all interest in Albany Home Sales Inc. of Albany, Mo. A Mo. Corporation by Ben & Karen Rogers. Endorser is seller, stock purchase.” In addition, handwritten on the memo line of the check was the statement, “buyout of 9% ownership via stock purchase Albany Home Sales Inc.”

On April 26, 2002, Gene signed the check above the restrictive indorsement written by Karen and Ben and deposited the check into his bank account. When signing the check, Gene placed his own restrictive indorsement on the check just below Ben’s restrictive indorsement. Specifically, Gene’s indorsement stated, “[r]e-ceived partial payment for ownership in Albany Homes Sales. D.E. Rogers.” Gene did not provide notice of the additional indorsement to Ben, Karen, or anyone representing Albany.

On December 16, 2002, an attorney representing Mr. Hinkle, Mr. Walker, and Gene submitted a written demand to Albany’s attorney, pursuant to section 351.215, RSMo 2000, to examine the books and records of Albany’s accounts. Ben responded in writing on January 4, 2003. Ben’s letter stated that Mr. Hinkle and Mr. Walker could contact him at their convenience to arrange a time to review any of Albany’s records. Regarding Gene’s request, however, Ben stated that because Gene’s shares were “bought out about mid year 2002” and, therefore, Gene was no longer a shareholder, he would not be allowed access to Albany’s corporate records. Ben’s response also stated that, if Gene “wishes to buy back the stock he sold,” “that could be done.”

On December 8, 2008, Gene, Michalee, and Mr. Walker filed a three-count petition against Albany and Ben. In the first two counts, Gene, Michalee, and Mr. Walker sought an accounting of Albany and an injunction to enjoin the sale of Albany’s property and assets. The third count involved only Mr. Walker and sought damages for breach of contract for sales commissions Albany allegedly owed to Mr. Walker.

On January 5, 2004, Ben and Albany filed separate answers. Ben also filed a counterclaim against Gene and Michalee. In his counterclaim, Ben alleged that he paid Gene $26,000 to purchase Gene’s shares of Albany and, therefore, Gene no longer had any shareholder rights or ownership interest in Albany. Thus, Ben sought a judgment in the amount of $26,000, if the court found that Gene did retain an interest in Albany.

On September 9, 2004, the day of trial, Ben filed a motion to dismiss stating that Ben’s payment to Gene was in full accord and satisfaction for Gene’s ownership interest in Albany. In his motion, Ben alleged that, because Gene was no longer a shareholder, Gene did not have standing to request an accounting. Before the trial began, the parties advised the court that Mr. Walker’s claim for breach of contract had been settled. The trial court then heard evidence on the remaining two counts of Gene and Michelee’s petition and Ben’s counterclaim.

On September 15, 2004, the trial court issued its judgment. Specifically, the court held that by indorsing Ben and Karen’s check for $26,000, and retaining the proceeds thereof, Gene no longer had any interest in Albany. Consequently, the court concluded that Gene did not have standing to bring a claim for an accounting. Likewise, because Gene had no interest in Albany, the court resolved count II, which requested an injunction, in favor of Ben. The trial court further ruled that Michalee had no claim against Albany because any rights she acquired in Albany were without the knowledge and consent of Albany. Consequently, the trial court found that any claim she might have would be against Gene rather than Albany. Finally, the court ruled in favor of Gene and Michalee on Ben’s counterclaim. The trial court also dismissed all of Mr. Walker’s claims because they had been settled. Gene and Michalee filed this appeal.

Standard of Review

In a judge-tried case, this court will affirm the trial court’s judgment unless no substantial evidence supports it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carrón, 536 S.W.2d 30, 32 (Mo. banc 1976). This court reviews the evidence, along with all reasonable inferences, in the light most favorable to the trial court’s judgment and disregards all contrary evidence and inferences. Wildflower Cmty. Ass’n, Inc. v. Rinderknecht, 25 S.W.3d 530, 534 (Mo.App. W.D.2000). As the trier of fact, the trial court determines the credibility of witnesses and is free to believe or disbelieve all or part of the witnesses’ testimony. Stulz v. Citizen’s Bank & Trust Co., 160 S.W.3d 423, 427 (Mo.App. W.D.2005).

Lack of Standing to Bring Claim

In their sole point on appeal, Gene and Michalee assert that the trial court’s judgment finding that Gene lacked standing to pursue his claims for an accounting and an injunction was not supported by substantial evidence. In particular, they claim that there was no substantial evidence to show that Gene intentionally or voluntarily relinquished his shareholder rights in Albany because (1) Gene told Ben on at least two occasions that his ownership interest in Albany was not for sale, and (2) before cashing the check for $26,000, Gene wrote on the check that it was received in “partial payment” for his interest in Albany.

Under section 351.215.1, “each shareholder of a corporation may inspect the corporate books.” Kelley v. Heritage Nat’l Bank, 897 S.W.2d 96, 97 (Mo.App. E.D.1995). The statutory right of shareholders to inspect corporate records, however, extends only to “current shareholders, not former shareholders.” Id. (emphasis added). Thus, whether Gene had standing to pursue a claim for an accounting depends on whether Gene was a current or former shareholder when he requested an accounting of Albany’s corporate records.

In this case, there is no dispute that in March 2000, Gene paid $22,500 to purchase shares of stock in Albany. Thus, at that time, Gene became a stockholder of the company. Gene formally requested an accounting of Albany’s corporate records on December 16, 2002. The trial court, however, found that Gene had no standing to pursue a claim for an accounting because in April 2002, Gene indorsed the $26,000 check from Ben and Karen, deposited it into his bank account, and retained the funds. Consequently, the trial court found that, through these acts, Gene “waived any interest that he had in Albany[.]” (Emphasis added).

In their claim of error on appeal, Gene and Michalee argue that the trial court decided this case on the legal theory of “waiver.” They claim that insufficient evidence supports a finding of “waiver,” which they correctly note is the intentional or voluntary relinquishment of a known right. See, e.g., Horne v. Ebert, 108 S.W.3d 142, 147 (Mo.App. W.D.2003). Rather, they argue that the evidence demonstrated that Gene did not intend to relinquish his rights in Albany because he expressly stated that his shares were not for sale and he placed a restrictive in-dorsement on the $26,000 check before cashing it, indicating that he was accepting payment only in “partial” payment for his ownership interest in Albany.

Although the trial court did state that Gene “waived” his interest in Albany, it is clear from the context of the court’s decision that the essence of its ruling was based on the legal theory of a completed contract for the sale of shares of stock in Albany. “In construing a judgment, a court must examine and consider the language of the judgment in its entirety. The intent of the court must be determined from all parts of the judgment, and words and clauses are to be construed according to their natural and legal import.” Woodfill v. Shelter Mut. Ins. Co., 878 S.W.2d 101, 103 (Mo.App. S.D.1994) (citation omitted). While the trial court’s judgment may have used a poor choice of words when it stated that Gene “waived” his interest in Albany, it is clear that the basis of the trial court’s decision was that by cashing the $26,000 check and retaining the proceeds, Gene accepted Ben’s offer to purchase Gene’s entire ownership interest in Albany and, therefore, gave up (or “waived”) any rights associated with being a shareholder. In other words, the trial court essentially found that in April 2002, Gene sold his entire interest in Albany. Therefore, on December 16, 2002, when Gene formally demanded an accounting of Albany’s corporate records, Gene was not a current shareholder and, consequently, did not have standing to demand 'an accounting. Accordingly, this court will address Gene and Michalee’s point in the proper context of the trial court’s ruling, i.e., whether a valid contract for the sale of Gene’s entire ownership interest in Albany was executed, thereby making Gene merely a former shareholder of Albany with no standing to demand an accounting.

A valid contract for sale must include the three basic elements of a contract: offer, acceptance, and consideration. Luebbert v. Simmons, 98 S.W.3d 72, 77 (Mo.App. W.D.2003). As to the first element, an offer must be definite and has been “ ‘made when the offer leads the offeree to reasonably believe that an offer has been made.’ ” Volker Court, LLC v. Santa Fe Apartments, LLC, 130 S.W.3d 607, 611 (Mo.App. W.D.2004) (citation omitted). In other words, an offer is “ ‘the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.’” Id. (quoting Restatement (Second) of ContRacts, section 24 (1981)).

In this ease, on April 18, 2002, at the end of Ben and Gene’s phone conversation, Ben indicated that he was going to send Gene a check for $26,000 to purchase Gene’s shares of stock in Albany. A few days later, Gene received a check, signed by Karen, for $26,000. The check contained a restrictive indorsement stating: “Endoser [sic] acknowledges full and co-píete [sic] purchase of all interest in Albany Home Sales Inc. of Albany, Mo. A Mo. Corporation by Ben & Karen Rogers. Endorser is seller, stock purchase.” In addition, the memo line of the check stated, “buyout of 9% ownership via stock purchase Albany Home Sales Inc.”

Ben’s phone conversation, along with the check containing the restrictive indorsement, contained clear and definite terms, which would have led á reasonable person to believe that an offer to enter an agreement to purchase was being made. The language in the indorsement indicates this is an offer for a “full and copíete [sic]” sale of “all interest in Albany,” and that it was an offer to “buyout” Gene’s interest in Albany. (Emphasis added.) Moreover, the additional language in the concluding sentence of the restrictive indorsement provides sufficient clarification that an offer to purchase Gene’s shares of stock in Albany was intended. Specifically, the final sentence of the indorsement reads,' “[e]ndorser is seller, stock purchase.” In placing such an indorsement on the check, Ben clearly manifested his willingness to enter into a contract to purchase Gene’s entire interest in Albany and that Gene’s mere indorsement of the check was “invited” and would “conclude” the deal. Id. Thus, this court finds that Ben’s statement during Ben and Gene’s phone conversation, in combination with the $26,000 check sent to Gene, constituted an offer to purchase Gene’s entire ownership interest in Albany.

Once an offer has been made, the second basic element for the existence of a contract is acceptance. Id. A contract requires an unequivocal and “mirror-image” acceptance. Id. See also New Medico Assocs., Inc. v. Snadon, 855 S.W.2d 489, 491 (Mo.App. S.D.1993). In other words, “[a]cceptance of an offer is a manifestation of assent to the terms thereof made by the offeree in a manner invited or required by the offer.” Restatement (Second) op ConTRACTs, section 50(1) (1981).

Here, Ben and Karen’s offer to purchase Gene’s entire ownership interest in Albany invited Gene to accept the offer by indorsing the $26,000 check. When Gene signed his name above the restrictive indorsement placed on the check by Ben, Gene indicated that he accepted the offer in a manner invited by the offeree, i.e., indorsement of the check. Nevertheless, Gene now claims that he did not intend to accept Ben’s offer to purchase Gene’s shares because he verbally told Ben that, his shares were not for sale.

A determination of whether Gene accepted Ben’s offer, however, “depend[s] upon what is actually said and done and not upon the understanding or supposition of one of the parties.” Gateway Exteriors, Inc. v. Suntide Homes, Inc., 882 S.W.2d 275, 279 (Mo.App. E.D.1994). Thus, while Gene may have indicated at one point in time that his shares were not for sale, Gene’s acts of signing the $26,000 check and retaining the proceeds therefrom were an unequivocal indication that he had changed his mind and decided to accept Ben’s offer to purchase his entire ownership interest in Albany. In addition, the trial court has “ ‘absolute discretion as to the credibility of witnesses and the weight of their testimony is a matter for the trial court[.]’ ” McAllister v. McAllister, 101 S.W.3d 287, 291 (Mo.App. E.D.2003) (citation omitted). The trial court is “free to accept or reject all, part, or none of the testimony of a witness.” Id. Consequently, the trial court was free to disbelieve Gene’s testimony that he consistently told Ben that his shares were not for sale.

Gene also claims that he did not intend to accept Ben’s offer because he added his own restrictive indorsement to the check before he deposited it into his account. Specifically, under Ben and Karen’s restrictive indorsement, Gene added a restrictive indorsement, which stated that it was only for “partial payment for ownership in Albany Home Sales.” Gene asserts that his additional indorsement on the back of Albany’s check indicates that he “clearly expected to continue to assert [shareholder] rights to which he was entitled.” Thus, in effect, Gene argues that his acceptance of Ben’s offer was not valid because it was not the “mirror-image” of Ben’s offer. Consequently, without a valid acceptance, Gene essentially argues that there could not have been a valid contract for the sale of his entire ownership interest in Albany.

An essential element to the formation of a valid contract is a “ ‘meeting of the minds of the contracting parties regarding the same thing, at the same time.’ ” New Medico Assocs., 855 S.W.2d at 491 (citation omitted). A valid contract cannot be found based on the secret intentions of one of the parties, but must rely on the objective outward acts of both parties involved. McKee Constr. Co. v. Stanley Plumbing & Heating Co., 828 S.W.2d 700, 706 (Mo.App. S.D.1992).

This court’s decision in McKee is particularly instructive. In that case, the plaintiff, McKee Construction Company, had done excavation work for Stanley Plumbing & Heating Company. 828 S.W.2d at 701. After a dispute arose regarding McKee’s work and the amount Stanley owed Mr. McKee, Stanley’s attorney sent a letter with a check for $19,570.75 to Mr. McKee’s attorney. Id. The letter stated that the check was “in full payment of all claims by Mr. McKee for work done_ Acceptance and negotiation of this check will be considered a full and final release of any claims that he may have against Stanley....” Id. The letter also stated that if Mr. McKee did not agree, that he should return the check. Id. Mr. McKee then indorsed and cashed the check. Id. Before doing so, however, McKee added a restrictive indorsement to the back of the check. Id. The restrictive indorsement added by Mr. McKee stated: “ ‘Under protest and with full reservation of rights to collect the balance owing.’ ” Id. After Mr. McKee cashed the check, he filed a lawsuit to collect the balance due under the contract. Id. The trial court granted Stanley’s motion for summary judgment finding that Mr. McKee’s acceptance of the check constituted an accord and satisfaction. Id.

On appeal, Mr. McKee argued that the trial court erred in granting summary judgment to Stanley because, in cashing the check, he did not intend the check to be a full and final settlement because of the restrictive indorsement he placed on the check. Id. at 706. In particular, Mr. McKee argued that his restrictive indorsement created a factual dispute over whether there had been a “meeting of the minds.” Id. In rejecting Mr. McKee’s argument, this court found that Stanley’s offer was for full and final payment of any claim that Mr. McKee might have against Stanley. Id. In cashing the check, this court found that Mr. McKee accepted Stanley’s condition that the proceeds constituted a full and final settlement. Id. Specifically, this court held that one party to a contract cannot change the terms by “forming a contrary subjective intent, ... ‘cross[ing] his fingers’, and adding a restrictive endorsement and cashing the check.” Id. Consequently, this court affirmed the trial court’s judgment in favor of Stanley. Id. at 707.

Similarly, in this case, Ben’s restrictive indorsement indicated that by indorsing the check, Gene was selling his entire ownership interest in Albany. Gene complied with those terms by indorsing and cashing the check. Thus, Gene’s actions constitute an acceptance of Ben’s offer. If Gene intended to modify the terms of the offer, he could not do so secretly by placing his own restrictive indorsement on the check. Gene’s unilateral act of placing a second restrictive indorsement on the check, without providing notice to Ben, Karen, or Albany, did not invalidate Gene’s acceptance of Ben’s offer. Id. at 706-07.

The final element necessary to the formation of a valid contract is consideration. “Consideration exists where there is a detriment to the promisee or a benefit to the promisor.” Citibank (South Dakota), N.A. v. Wilson, 160 S.W.3d 810, 813 (Mo.App. W.D.2005). Consideration “may consist of some right, interest, profit, or benefit accruing to one party, or some forbearance, loss, or responsibility given, suffered, or undertaken by the other party.” Id.

In this case, both Gene and Ben incurred a detriment and received a benefit as a result of the transaction. Gene benefited by receiving $26,000, while giving up something of value, which was his ownership interest in Albany. Similarly, Ben benefited by receiving Gene’s ownership interest in Albany, while giving up $26,000. This is sufficient to meet the requirements for consideration to support a contract for the sale of Gene’s ownership interest in Albany. Id.

In sum, this court finds that there was substantial evidence to support the trial court’s finding that there was a contract for the sale of Gene’s entire ownership interest in Albany. On April 19, 2002, Ben and Karen made an offer to Gene to purchase Gene’s entire interest in Albany through the presentation of a $26,000 check. On April 26, 2002, when Gene indorsed the $26,000 check and retained its proceeds, Gene accepted the offer and, therefore, sold his entire ownership interest in Albany. Consequently, on December 16, 2002, when Gene formally requested an accounting of Albany’s corporate records, he was not a current shareholder in Albany. Accordingly, Gene did not have standing to bring a claim for an accounting, under section 351.215.1, and the trial court did not erroneously apply the law. Moreover, Gene fails to cite any authority regarding his right to seek an injunction against Albany to enjoin the sale of Albany’s property and assets. Without authority to the contrary, the analysis regarding why Gene lacks standing to seek an accounting appears equally applicable to Gene’s claim for an injunction. Therefore, this court also finds that the trial court did not err in ruling in favor of Ben on Count II of Gene and Michalee’s petition, which sought an injunction against Albany to enjoin the sale of Albany’s property and assets.

The trial court’s judgment is affirmed.

All concur.

      . Use of first names is to avoid confusion. No disrespect toward the parties is intended.

      . Ben is Gene's younger brother and Jean Rogers is Ben and Gene’s sister.

      . All statutory references are to the Revised Statutes of Missouri 2000.

      . Mr. Walker is not a party to this appeal.

      . Gene and Michalee do not appeal the trial court’s decision with respect to its finding that Michalee does not have a claim against Albany. Therefore, this court will discuss their point on appeal in terms of whether Gene had standing to request an accounting of Albany’s corporate records.

      . In relevant part, section 351.215.1 states: "Each shareholder may at all proper times have access to the books of the company, to examine the same, and under such regulations as may be prescribed by the bylaws."

      . The parties do dispute, however, the percent of ownership interest Gene purchased. Gene claims that he purchased a 12¼% interest in Albany, while Ben claims that Gene purchased a 9% interest. The trial court, however, has " ‘absolute discretion as to the credibility of witnesses,' " and where there is conflicting evidence, this court defers to the trial court’s determinations. McAllister v. McAllister, 101 S.W.3d 287, 290-91 (Mo.App. E.D.2003) (citation omitted).

      . The court’s holding on this issue is consistent with its ruling with respect to the doctrine of accord and satisfaction under both the Uniform Commercial Code and the common law, in that it serves the purpose of promoting “fairness by protecting the bona fide expectations of a debtor who tenders payment on condition that it will be accepted as payment in full.” McKee, 828 S.W.2d at 705.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    AQUILA, INC., Appellant, v. MOWOOD, LLC, and Omega Pipeline Company, Respondents.
    No. WD 64970.
    Missouri Court of Appeals, Western District.
    Jan. 31, 2006.
    Joseph M. Rebein, Jason E. Pepe, Co-Counsel, Kansas City, MO, for appellant.
    John M. Edgar, Daniel R. Young, Co-Counsel, Kansas City, MO, for respondents.
    Before RONALD R. HOLLIGER, Presiding Judge, ROBERT G. ULRICH, Judge and JOSEPH M. ELLIS, Judge.
   ORDER

PER CURIAM.

Aquila, Inc. appeals from a judgment entered in the Circuit Court of Jackson County finding in favor of the defendants, Mowood, L.L.C. and Omega Pipeline Company, in a breach of contract action filed by Aquila. After a thorough review of the record, we conclude that the judgment is supported by substantial evidence, is not against the weight of the evidence, and that no error of law appears. No jurisprudential purpose would be served by a formal written opinion; however, a memorandum explaining the reasons for our decision has been provided to the parties.

Judgment affirmed. Rule 84.16(b).


text:
    Steven B. TURNER, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64733.
    Missouri Court of Appeals, Western District.
    Jan. 31, 2006.
    Sarah Weber Patel, Appellate Defender, Kansas City, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Asst. Atty. Gen., joins on the briefs, Jefferson City, MO, for Respondent.
    Before ROBERT G. ULRICH, P.J., PATRICIA A. BRECKENRIDGE, and JAMES M. SMART, JR., JJ.
   Order

PER CURIAM.

Steven Turner appeals the denial of his Rule 29.15 motion in which he sought to vacate his convictions for one count of first-degree murder and one count of armed criminal action.

Having carefully considered the contentions on appeal, we find no grounds for reversing the decision. Publication of a formal opinion would not serve jurisprudential purposes or add to understanding of existing law. The judgment is affirmed. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Tammy Lynn ROBERSON f/k/a Martin, Appellant.
    No. WD 64986.
    Missouri Court of Appeals, Western District.
    Jan. 31, 2006.
    Amy M. Bartholow, Columbia, MO, for appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for respondent.
    Before ROBERT G. ULRICH, P.J., PATRICIA A. BRECKENRIDGE and JAMES M. SMART, JJ.
   ORDER

PER CURIAM.

Tammy Lynn Roberson appeals her conviction of the class B felony of Burglary in the First Degree, section 569.160, RSMo 2000. She does not appeal her misdemeanor conviction of False Imprisonment, section 565.130, RSMo 2000. She was sentenced to fifteen years in the custody of the Department of Corrections for the burglary conviction and to one year in the county jail for the misdemeanor conviction. Ms. Roberson contends that the trial court violated her right to due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 10 of the Missouri Constitution by failing to grant her motion for judgment of acquittal as to count one, first-degree burglary, because insufficient evidence was presented to find that she committed every element of the offense as a principal, as charged.

For reasons stated in the memorandum provided to the parties, the judgment of conviction is affirmed. Rule 30.25(b).


author: JOSEPH M. ELLIS, Judge.

text:
    Ruby ALLEE, Scott Davidson, and Mary Jane Foster Scott, Appellants, v. RUBY SCOTT SIGEARS ESTATE, et al., Defendants, William Scott, Personal Representative of the Estate of Ruby Scott Sigears and James J. Scott, Respondents.
    No. WD 64980.
    Missouri Court of Appeals, Western District.
    Jan. 31, 2006.

      Frank H. Strong, Jr., Maryville, MO, for appellants.
    Theodore M. Kranitz, St. Joseph, MO, for respondents.
    Before HAROLD L. LOWENSTEIN, Presiding Judge, JOSEPH M. ELLIS, Judge and THOMAS H. NEWTON, Judge.
   JOSEPH M. ELLIS, Judge.

Ruby A. Allee, Scott M. Davidson, and Mary Jane Foster (“Mary”; a/k/a Mary Jane Moyer), collectively referred to as “Appellants,” appeal a final judgment of the Circuit Court of Nodaway County finding, in favor of James J. Scott (“Jim”) and William S. Scott (“Bill”) (collectively referred to as “Respondents”), that the last will and testament of Ruby Scott Sigears (“Ruby”; a/⅛⅛ Ruby D. Scott), which was executed on February 25, 2000, as well as the beneficiary and warranty deeds she executed on the same date, were all valid and enforceable expressions of her intent.

At the time she executed the documents in question, Ruby was eighty-one years old and had four living children from her first marriage — two daughters (Joan Davidson (“Joan”) and Mary) and two sons (Jim and Bill). On February 25, 2000, Ruby executed a five-page will, two deeds (a beneficiary deed and a warranty deed), and a durable power of attorney, all of which were drafted by attorney Jeannie Trimmer (“Attorney Trimmer”).

On May 9, 2000, the daughters filed a petition seeking the appointment of a guardian and conservator for their mother. Jim’s wife, Jacqueline Scott (“Jackie”), filed a competing petition on May 23, 2000. After conducting what turned out to be a non-adversarial hearing, the court found Ruby to be fully incapacitated and disabled and appointed the Public Administrator of Nodaway County as the guardian of Ruby’s person and the conservator of her estate on June 14, 2000.

Ruby died on January 11, 2003. On March 5, 2003, the daughters presented a different, earlier will as Ruby’s last will and testament, which was not admitted to probate. Instead, the February 25, 2000 will offered by Respondents was admitted. On April 22, 2003, the daughters filed a Petition to Contest Purported Will in which they averred that Ruby was not of sound mind and lacked sufficient mental capacity at the time she executed the will of February 25, 2000, and that the will was procured by the undue influence of Respondents. On May 27, 2003, the daughters also filed a Petition to Set Aside Deeds in which they averred that Ruby was not of sound mind and lacked sufficient mental capacity at the time she executed the deeds, and that the deeds were procured by the undue influence of Respondents. The trial court subsequently consolidated the actions. Joan died on March 9, 2004, after which her children (Ruby A. Allee and Scott M. Davidson) were substituted as parties.

The case was tried to the court on November 12, 2004. At trial, the court was presented with a variety of conflicting evidence on the issues of mental capacity and undue influence. On November 18, 2004, the court entered a judgment in favor of Respondents on Appellants’ claims of undue influence and lack of mental capacity, finding that Ruby’s February 25, 2000 will “was and is her own Last Will and Testament,” and that the beneficiary and warranty deeds she also executed on the same date “were and are expressions of her intention and are declared valid and subsisting, and shall be carried out according to their expressed intent.” On December 17, 2004, Appellants filed a Motion to Set Aside the Judgment and Grant a New Trial or To Reopen the Judgment for Additional Evidence, Amend or Make New Findings of Fact, and to Direct the Entry of a New Judgment, which was overruled on January 7, 2005. As authorized by sections 473.083.7, 512.020, and 472.160.1(14), Appellants then filed a timely notice of appeal.

As in any court-tried civil case, we apply the standard of review set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

[T]he decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is “against the weight of the evidence” with caution and with a firm belief that the decree or judgment is wrong.

Murphy, 536 S.W.2d at 32. “Great deference must be given to the trial court’s resolution of conflicts in evidence,” Hugenel v. Estate of Keller, 867 S.W.2d 298, 302 (Mo.App. S.D.1993), and we give due regard to the court’s opportunity to have judged the credibility of the witnesses before it. Tuchschmidt v. Tuchschmidt, 861 S.W.2d 741, 743 (Mo.App. E.D.1993). “Accordingly, the statement of facts which follows treats the evidence in a light most favorable to the judgment of the trial court and defers to the judgment of the trial court on matters in which the evidence is in conflict.” Kennedy v. Jasper, 928 S.W.2d 395, 397 (Mo.App. E.D.1996).

Ruby’s initial consultation with Attorney Trimmer, which occurred sometime prior to February 25, 2000, lasted two or three hours. During this meeting, which was also attended by Respondents at Ruby’s request, Attorney Trimmer had an extensive discussion with Ruby concerning how she wanted her will and general estate plan to be handled. Attorney Trimmer testified that in her experience, it was common for adult children to come in with elderly clients in need of estate planning services, and that she had met with Ruby “[l]ong enough to know if there was a problem.”

The disputed documents were executed at Attorney Trimmer’s law office on February 25, 2000. Jim and Bill testified that on both visits to see Attorney Trimmer, Ruby had driven herself to and from Attorney Trimmer’s offices in her own automobile, and that she had done so alone. Ruby, Attorney Trimmer and her secretary Stephanie Williams, Jim and his wife Jackie, and witness Kermit Goslee were all present when the documents were executed. At Attorney Trimmer’s suggestion, Jim videotaped these proceedings, and the VHS tape was admitted into evidence and viewed both during the hearing and by the trial court in chambers.

As relevant here, the will, which was properly notarized and attested, provided that “[a]ll real and personal property which I shall own at my death shall be divided equally between my two sons: William Scott and James Scott, with each son to receive an undivided one-half (1/2) interest which is to be held as tenants in common.” The will further stated: “I intentionally make no provision in this my Last Will and Testament for my daughters, Joan Davidson and Mary Jane Moyer, having already given large amounts of money to them during my lifetime and having been poorly treated by them. Note that my daughter, Kathleen Steinhauser, has predeceased me.” The deeds executed by Ruby granted Respondents half ownership interests in certain Missouri real estate owned by her, and the durable power of attorney appointed Jackie as Ruby’s attorney in fact. Ruby paid Attorney Trimmer’s fee for the legal work she had performed for her, and told Mary about the will the same day it was executed.

Attorney Trimmer testified that she saw no “red flags” indicating the possible presence of undue influence, and that it was Ruby, not Respondents, who directed her to insert the provision in the will that omitted the daughters from receiving an inheritance. Based on her observations during the initial consultation and the actual execution of the documents, she felt Ruby was “very competent. I felt she knew what was going on. She knew how she wanted her estate divided.... I didn’t feel she was under any pressure from the boys at all.”

Jim testified that although he lived in Bedford, Iowa, he visited Ruby in Mary-ville, Missouri, two or three times a month and that on occasion, she had driven to Iowa to visit him. He testified that the discussions he had with Ruby over the five or six years preceding her execution of the will were perfectly understandable, and that she never appeared to be confused concerning what she was talking about. Following her quadruple bypass surgery in 1997, he saw some physical changes in Ruby but stated that it “didn’t affect her mental capacity at all.” Jim also stated that Ruby was appropriately dressed and very well groomed at all times, and that there was nothing about her behavior that made him feel uncomfortable or caused him to have any concerns.

Jim further testified that he was a social worker for the State of Iowa, and had a bachelor’s degree in social science. He also has a master’s degree in educational administration, with a concentration in counseling psychology, and was six credit hours short of obtaining a master’s degree in counseling psychology. He explained that he was qualified by the State of Iowa to perform investigations of elder abuse, during which he had determined the competency of elderly people. His professional opinion, based on his experience, training, and personal observations, was that Ruby was competent on February 25, 2000. Jim further stated that the terms of the will were what his mother wanted, and acknowledged that although he was invited by Ruby at some point to give his input on the will, he declined, saying, “Mother, leave it to whom you want to.”

As to Ruby’s relationship with Mary, Jim testified that last time he saw Ruby and Mary together, Ruby stepped in between Mary and Jackie to prevent Mary from verbally abusing and physically assaulting Jackie, after which Ruby asked Mary to leave Ruby’s home.

Although Ruby had allowed Mary and her children to live in Ruby’s Maryville, Missouri home since approximately 1989, Mary acknowledged having received a certified letter from Jackie’s lawyer Zel Fischer on April 5, 2000, which was admitted into evidence and stated that “Mrs. Ruby Scott has requested that you move from her property!].]” The letter gave Mary thirty days to move out, but she did not do so until June 30, 2000.

Bill’s wife, Debbie Scott, testified that she first met Ruby in 1995 or 1996 and that she had been to Maryville a handful of times (possibly five times) prior to February 25, 2000. She further testified that in 1995 and 1996, she had telephone conversations with Ruby during which Ruby told her she thought her daughter Mary was writing checks on her checking account in amounts of six to seven hundred dollars and that Mary and her children were “tearing up her house and yard” and that there was “|j]unk all over the yard.” One of these checks was used to purchase a dog pen, although Ruby had no animals in her home other than a small dog. She also indicated that Ruby related to her that Ruby’s relationship with Mary was “kind of going sour” to the point of “getting physical,” relating an altercation where Mary had pulled Ruby’s hair and twisted her arm. Ruby also told her that she was “very unhappy” in her home and “very much wanted her daughter and grandchildren to move out.” Debbie Scott farther testified that prior to June 2000, while Ruby was a resident at the Nodaway Nursing Home and Debbie and Bill were in an interior hallway, she “could hear somebody hollering, ‘You’re not going home. You’re gonna stay here your ten days.’ I was really shocked to find that it was [Mary] that was hollering at [Ruby].”

Jim acknowledged that he was present in court in June 2000, when a guardian and conservator were appointed for Ruby. He testified that although he had stipulated that Ruby was in need of a guardian and conservator at that point, he had only done so on the advice of his attorney, who advised him to so stipulate to avoid having the family’s “dirty laundry” aired in public, and since the guardian could then “go after anyone who [had] committed criminal acts against her.”

Bill testified that Ruby did not ask him what to put in the disputed will or deeds. He said that when she had asked him in the past about such matters due to some “bad feelings” she had about certain members of the family, he “[t]old her to do with the damn stuff what she wanted to.” Other than that, Bill never told Ruby how she should dispose of her estate or what she ought to do with any part of her real or personal property. He further testified that although Ruby’s estate had at one time been quite considerable, “it had dwindled down over the previous years.” To illustrate this, he testified that on December 10, 1998, Ruby had sold, at public auction, 120 acres of Holt County real estate at $1,500 an acre. Nevertheless, the resulting $180,000 in sale proceeds, which she received in 1999, were no longer pari; of Ruby’s estate at the time of her death four years later.

While Ruby was still alive, Greg Wenni-han had farmed Ruby’s arable land under a three-year lease. He testified that Ruby died during the third year of the lease, and that during those three years, he had never noticed anything untoward or unusual about her behavior when he talked with her about his ongoing farming operations and delivered monthly rent payments to her in person at her home. He also testified that when he would visit Ruby at her home, she was always clean, pleasant, and appropriately dressed, and that she never said or did anything indicating to him that “she didn’t know what was going on.”

Ruby’s treating physician, Kanti Haval-dar, M.D., testified that she was his patient from 1985 until her death in 2003. In 1987, Dr. Havaldar diagnosed Ruby with cerebral vascular insufficiency and referred her to a neurologist, who determined that of her four carotid arteries, one was 100 percent occluded and another was 50 percent blocked. In May 1997, Ruby had a heart attack and her cardiologist performed a catheterization, as well as a quadruple bypass. By late 1999, testified Dr. Havaldar, Ruby also began suffering from vascular dementia. However, Dr. Havaldar indicated that it was not until several months after the events of February 25, 2000, that her “rapid deterioration started.”

Asked whether, at the time Ruby executed the disputed will and deeds on February 25, 2000, she would have been able to: (1) understand the ordinary affairs of life; (2) understand the nature and extent of her property; (3) know the persons who were the natural objects of her bounty; and (4) intelligently weigh and appreciate her natural obligations to those persons, Dr. Havaldar replied: “First three answers is yes. The last answer is no.”

At the close of all the evidence, the court took a recess. Later that day, the court made the following comments on the record in the presence of counsel for both sides. As to undue influence, the court stated:

Across the board, undue influence— there has not been evidence of that proven in here. It’s a sad state that there’s such animosity in the family, but I don’t believe that undue influence has been proven. There [were] some things that were not good practices. [It] looks like at the start of the tape [that Jackie] was the one that went over the will with [Ruby]. But — and I realize that changes the burden. But I don’t think even though having a relation in a fiduciary capacity ratchets up what has to be proven, or used to defend, I guess is more accurate. I just don’t think that’s been proven. I can’t find undue influence in here.

As to testamentary capacity, the court stated:

As far as the case as a whole, up until Dr. Havaldar’s testimony I was not hearing anything that caused me to believe that the will should be kicked.... The other issue it comes down to is mental competency. Dr. Havaldar’s testimony was quite strong on the issues that need to be proven on will contests. Able to understand the ordinary affairs of life. Able to understand the nature and extent of the property and able to know the persons who were the natural objects of the bounty. He said she should be in good shape on those. And from the testimony I heard and reviewing the tape, I concur "with that, she was aware of those items. Dr. Havaldar said based on her health condition he didn’t believe she was in a position to knowingly weigh and appreciate the natural obligations to those persons. Now his testimony that he kept saying was, ‘know how to do right.’ It’s not the same thing.
I viewed the tape. Also listened to what Jeannie Trimmer testified to. She spent two to three hours with [Ruby] and she didn’t feel there was any problem. I think a careful lawyer- — you have to give credence to what they say. Quite honestly, using my own good judgment sitting here, ... as to the last, ‘appreciate the natural obligations to those persons’ — as far as Mary Scott was concerned, [Ruby] was quite clear in that, that she had housed Mary and her family for a lot of years and it seemed to me as though she was saying that that is what she had [already] given her of her estate. And I read that to take it that [Ruby] felt she owed [Mary] nothing under that. Whether that is right or not, it sure tells me that she thought through this issue and made a decision on that.... We’re not here to double guess as far as right, you know, what we think by using our value standards, how an estate should be divided up. It’s looking at the law.

Six days later (November 18, 2004), the trial court entered its formal judgment, which states, in relevant part:

1. The evidence in the two cases before the Court, # # CV703-87CC (will contest) and CV703-108CC (action to set aside deeds) depend upon identical facts and law, and are ruled together.
2. Decedent Ruby Scott Sigears was of sound and disposing mind and memory when she executed her last will and testament of 25 February 2000, in that:
(a) She was able to understand the ordinary affairs of life, and
(b) She was able to understand the nature and extent of her property, and
(c) She was able to know the persons who were the natural objects of her bounty, and
(d) She could intelligently weigh and appreciate her natural obligations to those persons.
IT IS THEREFORE the JUDGMENT of the Court that the Last Will and Testament of Ruby Scott Sigears dated 25 February 2000 was and is her own Last Will and Testament; and that the beneficiary deed and warranty deed executed by the decedent also on 25 February 2000 were and are expressions of her intention and are declared valid and subsisting, and shall be carried out according to their expressed intent. Judgment for defendants accordingly.

We now proceed to consider Appellants’ four points on appeal, which we will address out of their original order. In their fourth point, Appellants argue that “[t]he court erred in not finding undue influence because such a finding is against the weight of [the] evidence in that substantial testimony and evidence established facts from which undue influence may be inferred.”

“Undue influence means such influence as destroys the free choice of the person making the will. To break the will the evidence must show such influence as amounts to force, coercion or overpersuasion sufficient to destroy the free agency and will power of the testator.” Morse v. Volz, 808 S.W.2d 424, 432 (Mo.App. W.D.1991) (internal citation omitted).

Factors considered in determining the existence of undue influence in the making of a will include: (1) an unnatural disposition, (2) an onset of solicitude of the [testator] by the proponent, (3) a change in predetermined testamentary intent, (4) unusual circumstances surrounding the execution of the will, (5) hostile feelings of the beneficiary toward the expected recipients, (6) remarks of the beneficiary to the [testator] derogatory of contestants, (7) the source of the [testator’s] property being such as to make the disposition to the beneficiary unlikely, and (8) recitals of the will itself indicates undue influence.

Ruestman v. Ruestman, 111 S.W.3d 464, 479 (Mo.App. S.D.2003) (citation omitted). “The burden is on the plaintiff to prove undue influence.” Id. at 478.

Although Appellants would have us do so, we need not painstakingly recount the evidence presented by both sides as to each of these factors, much of which has already been set forth in the factual summary supra. It is enough to say that a complete answer to Appellants’ contention in this point is found in Ryterski v. Wilson, 740 S.W.2d 374, 376 (Mo.App. S.D.1987), in which appellant children sought review of a decision of the court which denied their request that the court set aside certain deeds because of undue influence on the part of respondent grantees:

Appellants contend in their remaining point that the trial court erred because its judgment was “against the weight of the evidence in that the evidence shows that the deeds in question were obtained by undue influence on the part of the respondents”. To set aside a deed on the basis of undue influence, there must be clear, cogent and convincing evidence of such influence. Estate of Stanley, 655 S.W.2d 88, 91 (Mo.App. W.D. 1983).... As the evidence of undue influence was in dispute, we ordinarily defer to the finding of the trial court. This court should exercise the power to set aside a judgment on the ground that it is against the weight of the evidence with caution and only when we have “a firm belief that the decree or judgment is wrong.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Upon reviewing the evidence here we have no such belief. This point is denied.

Likewise, in light of the relevant supporting facts recited supra, and after carefully reviewing the entire record, including the conflicting evidence relied on by Appellants, we do not firmly believe that the trial court’s judgment finding no undue influence by Respondents or their wives as to either the will or the deeds is wrong. Point denied.

In their second point, Appellants contend that “[t]he court erred in finding testamentary capacity because such a finding is against the weight of [the] evidence in that probative testimony and evidence by the testator’s physician found the testator to be in no better [condition] at the time of execution than when declared incompetent and that by observation over a number of months denied the testator had capacity to intelligently weigh and appreciate her obligations toward the natural objects of her bounty.”

The proponent of a will has the burden of proof concerning testamentary capacity of the testator. Once the proponent makes a prima facie case showing due execution and attestation of the will as provided by statute and that the decedent was of sound and disposing mind when the will was signed, the contestants must then produce substantial evidence to overthrow the prima facie case and to prove that the testator lacked sufficient mental capacity. The burden of proof, however, remains with the proponent of the will throughout the case.

Hugenel, 867 S.W.2d at 304-05 (internal citations omitted).

In order to have testamentary capacity at the time a will is executed, the testator must: (1) understand the ordinary affairs of his life; (2) understand the nature and extent of his property; (3) know the persons who were the natural objects of the bounty; and (4) intelligently weigh and appreciate his natural obligations to those persons and know that he is giving his property to the persons mentioned in his will. No particular degree of mentality is required as long as the testator can adequately consider the requisite features.

In re Estate of Hague, 894 S.W.2d 684, 688 (Mo.App. W.D.1995) (internal citation and original paragraph style omitted). “Such capacity must exist at the time the will is executed. The right to dispose of property by will as the testator may choose is one that the law does not readily deny on the ground of lack of testamentary capacity.” Morse, 808 S.W.2d at 430 (internal citation and original paragraph style omitted).

Appellants do not deny that Respondents made their prima facie case, but argue that they overcame it with their evidence. The trial court’s gratuitous findings on this issue, all of which are supported by substantial record evidence, clearly demonstrate that while the court credited Dr. Havaldar’s testimony that, at the time Ruby executed the disputed will on February 25, 2000, she was able to understand the ordinary affairs of life, understand the nature and extent of her property, and know the persons who were the natural objects of her bounty, it rejected his conclusion that she was unable to intelligently weigh and appreciate her natural obligations to those persons, choosing instead to accept the contrary evidence it had heard and seen bearing on that issue. See Kennedy, 928 S.W.2d at 397 (“The trial court, when sitting as the trier of fact, may believe all, part or none of the testimony of any witness.”) This contrary evidence included the testimony of Attorney Trimmer (which the court expressly found to be credible), the videotape made at the time Ruby executed the will in question, and the testimony establishing that Ruby had taken her adult daughter Mary and Mary’s children into Ruby’s own home for over ten years, which permitted the reasonable inference that she intelligently took that into consideration in deciding that she had already done enough for Mary during her lifetime and had no moral or natural obligation to do more. While others might have placed a different assessment on the relative claims of the daughters and the sons, the decision was Ruby’s to make as she pleased. See Estate of Hague, 894 S.W.2d at 688.

Furthermore, in light of the other relevant supporting facts recited supra, and after carefully reviewing the entire record, including the conflicting evidence relied on by Appellants, we do not have a firm belief that the trial court’s conclusion that Ruby was of sound and disposing mind and memory when she executed her last will and testament on February 25, 2000 is wrong. Point denied.

In their first point, Appellants claim the court erred in failing to apply a presumption of testamentary incapacity in favor of Appellants “because probative evidence indicated that the testator was in no better condition on the date of execution than when in slightly more than three months the testator was without objection adjudged to be incapacitated and disabled, in need of a guardian and conservator, and presumed incompetent.” They further claim that the court erroneously “declined to apply the standard of presumption set out by a finding of an individual as fully incapacitated and in need of a guardian and conservator.” We disagree.

Appellants rely upon section 475.078.3 for such a presumption. In relevant part, section 475.078.3 states: “A person who has been adjudicated incapacitated or disabled or both shall be presumed to be incompetent.” While Ruby was indeed so adjudicated on June 14, 2000, no valid statutory presumption of mental incapacity arose in the case sub judice because she executed the disputed will on February 25, 2000, which was slightly more than three months before that adjudication took place. In other words, the fact that Ruby was adjudicated to be fully incapacitated and disabled on June 14, 2000, does not give rise to a presumption that she was mentally incapable of validly executing a will more than three months earlier. See Schuler v. Schuler, 290 S.W.2d 192, 195 (Mo.App. E.D.1956). This is especially true here, since there was evidence that although Ruby had begun suffering from vascular dementia in late 1999, it was not until several months after the events of February 25, 2000, that her “rapid deterioration started.” Point denied.

In their third and final point, Appellants assert that the court erred in failing to apply a presumption of undue influence against Respondents because “probative evidence indicated a fiduciary relationship by granting [a] power of attorney to a son’s wife, substantial benefit to the fiduciary in that the sons [became] sole beneficiaries, and the beneficiaries assisted in causing the execution of the will and deeds.” Once again, we disagree.

“A presumption of undue influence arises ... when the evidence shows: (1) a fiduciary relationship existed between the testator and the beneficiary, (2) the beneficiary received a substantial bequest in the will, and (8) the beneficiary was active in procuring the execution of the will.” Vancil v. Carpenter, 935 S.W.2d 42, 44 (Mo.App. W.D.1996). “Once the plaintiff has established a confidential relationship and benefaction to the fiduciary, the courts take a very liberal attitude toward the quantum of proof necessary to establish that the fiduciary was actively concerned in some way which caused or contributed to the execution of the will.” Id. at 45. “The presence of the fiduciary at the execution of the will and the exertion of his influence at the exact moment of execution need not be shown,” Dobbins v. Hupp, 562 S.W.2d 736, 741 (Mo.App. W.D.1978), and “[t]he existence of a power of attorney is significant evidence that a confidential relationship has developed.” Vancil, 935 S.W.2d at 45.

Appellants assert that the court “accepted that a fiduciary capacity was present” but erroneously “declined to consider ... [the] presumption of undue influence.” This assertion is refuted by the record, however, because the trial court’s gratuitous findings on this issue clearly reflect that it was not only fully cognizant of the presumption, but was also concerned about the role a fiduciary (namely Jackie, who became Ruby’s attorney in fact pursuant to a durable power of attorney executed by Ruby at around the same time the will was executed) had played in going over the will with Ruby. As the court put it: “There [were] some things that were not good practices. [It] looks like at the start of the tape [that Jackie] was the one that went over the will with [Ruby]. But — and I realize that changes the burden.” Nevertheless, the court went on to find that Appellants had failed to prove the existence of undue influence to its satisfaction: “But I don’t think even though having a relation in a fiduciary capacity ratchets up what has to be proven, or used to defend, I guess is more accurate. I just don’t think that’s been proven. I can’t find undue influence in here.” In light of the substantial evidence presented by Respondents tending to show that neither Jackie, her husband Jim, nor Jim’s brother Bill had exercised undue influence over Ruby amounting to “force, coercion or overper-suasion sufficient to destroy [her] free agency and will power,” Morse, 808 S.W.2d at 432, the trial court was forced to make a judgment call on conflicting evidence, to which we give “[g]reat deference,” Hugenel, 867 S.W.2d at 302, in recognition of its “superior ability to judge factors such as credibility, sincerity, character of the witnesses, and other intangibles not revealed in the transcript.” Hoberock v. Hoberock, 164 S.W.3d 26, 30 (Mo.App. E.D.2005). Point denied.

The judgment of the trial court is affirmed.

All concur.

      . A third daughter, Kathleen Steinhauser, had predeceased Ruby in August 1994.

      . Appellants offered this will, which their counsel claimed was executed on June 25, 1992, into evidence during trial of this matter, but the court sustained Respondents' objection thereto. Appellants do not assign this ruling as error on appeal, and did not present any other evidence (or an offer of proof) as to the prior will’s contents at trial.

      .All statutory references are to RSMo 2000.

      . Attorney Trimmer testified that she made this suggestion because "any time you have a client or someone that is drafting a will cutting one of the children out, there's always a concern that it will be contested.”

      . Neither Appellants nor Respondents requested that the court issue conclusions of law or specific findings on the various controverted fact issues presented by the case. In their brief, Respondents suggest that, because this is so, we should assume that the trial court made all factual findings consistent with its judgment. It is true that we generally "assume, in the absence of a specific finding, that all fact issues were resolved in accordance with the circuit court’s judgment.” Young v. Young, 14 S.W.3d 261, 263 (Mo.App. W.D.2000). “Nonetheless, when a circuit court volunteers findings of fact, the findings are reviewable on appeal. The voluntary statement by the circuit court of the grounds for its decision certainly may be considered in determining what evidence, if any, it rejected. It may also be considered in determining whether the circuit court misapplied the law." Id. (internal citations, quotation marks, and brackets omitted).


author: JAMES M. SMART, JR., Judge.

text:
    Steve COWGER, Appellant, v. Lynn LIVINGSTON, Respondent.
    No. WD 65369.
    Missouri Court of Appeals, Western District.
    Jan. 31, 2006.

      William Garry Cownie, Lees Summit, MO, for Appellant.
    Sharon M. Westhoff, Harrisonville, MO, for Respondent.
    Before ROBERT G. ULRICH, P.J., PATRICIA A. BRECKENRIDGE, and JAMES M. SMART, JR., JJ.
   JAMES M. SMART, JR., Judge.

Steve Cowger appeals the trial court’s order setting aside the child support portion of a judgment in a paternity case. He says the trial court erred in granting the motion to set aside because the movant did not set forth facts sufficient to establish good cause and a meritorious defense, as required by Rule 74.05(d). Because the trial court vacated the judgment within the thirty-day period during which it retains jurisdiction, the judgment never became final. Accordingly, we lack jurisdiction. We dismiss the appeal.

Background

In September 2004, Appellant Steve Cowger (Father) filed a petition seeking declaration of paternity and an order of support for the minor child Mikaila Livingston, who was born in May 1998. Respondent Lynn Livingston (Mother) was served with the petition and summons on October 7, 2004, as “Next Friend” of Mikaila Livingston and in her own capacity. The summons informed Mother that she had thirty days within which to file a responsive pleading or else a default judgment may be taken against her. Mother did not file a responsive pleading.

In March 2005, Father’s attorney sent Mother a copy of a Notice of Hearing. The hearing was held on March 14. Mother appeared without counsel. No transcript from that hearing is included in the record on appeal. On that same day, the court entered a Judgment and Order of Paternity. The order declared Steve Cow-ger to be the biological father of seven-year-old Mikaila Livingston. The court granted Mother sole legal and physical care, custody, and control of the child and ordered her to maintain health insurance on Mikaila. The court ordered Father to pay child support of $250 per month, beginning in August 2005.

On March 31, counsel for Mother filed a Motion to Set Aside the Judgment and Order. The motion alleged that “Respondent was not [previously] represented by counsel and believes justice would best be served if the Judgment and Order were set aside in accordance with [Supreme Court] Rule 74.05[.]” In Father’s suggestions in opposition, he claimed that Mother had not complied with the requirements of Rule 74.05 because she did not set forth facts that established good cause and a meritorious defense.

The court conducted a hearing on Mother’s motion to set aside on April 11, 2005. Both parties appeared in person and with counsel. After hearing argument from counsel, the court stated: “The Respondent’s motion to set aside the child support portion of the March 14th Order is granted, and we need to have a date set for a hearing so I can hear all of the evidence.” That same day, the court ordered the child support portion of the judgment set aside. Father appeals that order;

Father’s Arguments

Father brings two points on appeal. He says the trial court erred in granting Mother’s motion to set aside, because she failed to properly plead and failed to demonstrate reasonable diligence or good cause and a meritorious defense, as is required under Rule 74.05(d). That rule permits a court to set aside a default judgment upon a motion which states facts constituting a meritorious defense and shows good cause for failing to file a responsive pleading. Comstock v. Comstock, 91 S.W.3d 174, 176 (Mo.App.2002). Both must be shown. Id. Father says Mother’s motion to set aside, which merely stated that she “was not represented by counsel and believes justice would best be served if the Judgment and Order were set aside in accordance with Rule 74.05,” did not satisfy the pleading requirements. Father points out, citing Great S. Sav. & Loan Ass’n v. Wilburn, 887 S.W.2d 581, 583 (Mo. banc 1994), that a defendant is not entitled to have a default judgment set aside if the motion to set aside lacks facts relevant and material to a showing of good cause and a meritorious defense. Father also contends that Mother failed to introduce any evidence at the hearing to establish a meritorious defense or good cause for her failure to respond. He asks this court to reverse the erroneous ruling.

Dismissal

Although neither party has questioned this court’s jurisdiction over this appeal, we have a duty to determine our appellate jurisdiction sua sponte. See McElroy v. Eagle Star Group, Inc., 156 S.W.3d 392, 398 (Mo.App.2005) (citing Chromalloy Am. Corp. v. Elyria Foundry Co., 955 S.W.2d 1, 3 (Mo. banc 1997)). The right of appeal in Missouri is purely statutory, and, in the absence of specific statutory authority, no appeal will lie from á ruling that does not constitute a final disposition of the case. Altman v. Werling, 509 S.W.2d 787, 788 (Mo.App.1974).

Supreme Court Rules 74.05 and 75.01 provide procedural means by which to set aside judgments, each rule having its own standard for relief. Cotleur v. Danziger, 870 S.W.2d 234, 236 (Mo. banc 1994). “Rule 75.01 contains the least stringent standard because it inheres while the trial court retains jurisdiction of the case.” Id. Pursuant to Rule 75.01, the trial court may set aside its judgment for good cause before it becomes final. As noted, Rule 74.05(d) permits a court to set aside a default judgment if the defaulting party can show “good cause” for the default and “facts constituting a meritorious defense.” Id.

Here, Mother moved to have the judgment set aside pursuant to Rule 74.05. She could also have moved under Rule 75.01, which has the “least stringent standard” for setting aside the judgment. In any event, “if a trial court sets aside the default judgment within the initial thirty days, [it] is deemed to have acted on its own initiative even though the order refers to the party’s motion to set aside and sustains it.” Obermann v. Obermann, 701 S.W.2d 162, 164 (Mo.App.1985). Because the court in this case acted within the thirty days during which it retained jurisdiction over the judgment, we deem it to have acted on its own initiative. The court had the discretion to vacate its earlier judgment on its own initiative under Rule 75.01.

That rule provides that “[t]he trial court retains control over judgments during the thirty-day period after entry of judgment and may, after giving the parties an opportunity to be heard and for good cause, vacate, reopen, correct, amend, or modify its judgment within that time.” Rule 75.01. Here, the original hearing was held on March 14, 2005, and judgment was entered on that day. Mother promptly retained counsel and filed her motion to set aside on March 31. A hearing was convened on Mother’s motion on April 11. The motion was granted that day. Thus, the judgment was set aside within the thirty-day period during which the court retained control under Rule 75.01.

Rule 75.01 expressly requires “good cause” and “an opportunity to be heard” for the court to vacate or modify a judgment. See Cotleur, 870 S.W.2d at 236; Klaus v. Shelby, 4 S.W.3d 635, 637 n. 1 (Mo.App.1999). Both are present here. The court called a hearing on the motion to set aside. Both parties were present and represented by counsel. Mother’s counsel reminded the court that Mother had been unrepresented in the earlier proceeding, and that the court, after entering the child support order, advised Mother that “she had thirty days to get a lawyer and file a motion to set it aside.” Mother’s counsel then informed the court:

[Mother] brought to my office paperwork showing that [Father] receives hundreds of thousands of dollars each year in subsidies from the United States Government in his farming operation, and I think that it is imperative that the Court hear that information. So I am asking the Court to set aside its judgment.

Mother’s counsel also informed the court that there was an Administrative Order for $1,500 per month for child support. Father’s counsel responded that the order had been set aside “in the first petition for review.” The court determined that the parties should “have their day in court.” The court granted the motion to set aside and set a hearing date in order to “hear all of the evidence.”

We do not have a transcript from the original hearing or any records from the administrative proceedings to which the parties allude in their arguments. The transcript of the hearing on the motion to set aside shows, however, that the court had reason to believe there existed additional information that would be pertinent to the setting of a correct amount of child support. Good cause under 75.01 is not necessarily the same concept as “good cause” under 74.05. Rule 74.05 always looks specifically to the actions of the defendant in failing to defend. Rule 75.01, on the other hand, sometimes looks to the whole case, not merely the actions of the defendant. “Good cause” in the context of Rule 75.01 “refers to a remedial purpose” and “is interpreted liberally in order to avoid manifest injustice.” Stroup v. Leipard, 981 S.W.2d 600, 603 (Mo.App.1998). Appellant here focuses his “good cause” argument strictly on the failures of Ms. Livingston, and ignores other considerations which could have reasonably influenced the court within its discretion. We conclude, therefore, that Appellant fails to show that the court did not have “good cause” to set aside its earlier judgment so that all the relevant evidence could be presented at a hearing on the merits.

“In general, ‘[a] prerequisite to appellate review is that there be a final judgment.’ ” McElroy, 156 S.W.3d at 398 (citation omitted). Rule 75.01 permits the court, during the thirty-day period after entry of judgment, to vacate, reopen, correct, amend, or modify its judgment. Altman, 509 S.W.2d at 788. During that thirty-day period, the court retains jurisdiction and the judgment is not yet final. McElroy, 156 S.W.3d at 399. At the expiration of the thirty-day period, the judgment becomes final. Klaus, 4 S.W.3d at 637.

If a trial court acts within its authority (for “good cause”) to set aside a default judgment within the period during which it retains control, the judgment never becomes final. Id. at 638. The judgment, therefore, is not appealable, because the appellate court has jurisdiction only over final judgments. Id. at 638-39.

Here, the trial court exercised its discretion under Rule 75.01 to vacate the earlier judgment. It did so for good cause and after hearing within the thirty-day period during which the court retains control over the judgment. Thus, the judgment never became final. Without a final judgment, an appellate court lacks jurisdiction to hear the appeal. See id.; Altman, 509 S.W.2d at 788. The appeal must be dismissed.

ULRICH and BRECKENRIDGE, JJ., concur.

      . All rule references are the Missouri Rules of Civil Procedure 2005, unless otherwise indicated.

      .The court referred to the judgment as a default judgment because Mother failed to file a responsive pleading. Rule 74.05(a) provides: “When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rales ... a judgment may be entered against the defaulting party.” Mother did appear at the time of the hearing, but the record does not reflect whether she "defended." It is not clear that this was a true default judgment; but both parties regard it as such. Also, for reasons explained more fully in this opinion, the effect of the court's action in setting aside the judgment is the same whether or not it was a true default.

      . Mother did not file a brief and is not presently represented by counsel in this appeal.

      . The Cotleur opinion also examines Rule 74.06, which it calls "the highest standard” for obtaining relief from a judgment. 870 S.W.2d at 236. That rule is not pertinent to this appeal, however, and need not be discussed.


author: PHILLIP R. GARRISON, Judge.

text:
    Darrin R. MEUIR, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 26931.
    Missouri Court of Appeals, Southern District, Division Two.
    Jan. 31, 2006.

      Lisa M. Stroup, St. Louis, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen. and Karen L. Kramer, Assistant Attorney General, Jefferson City, MO, for Respondent.
   PHILLIP R. GARRISON, Judge.

A jury convicted Darrin R. Meuir (“Movant”) of one count of robbery in the first degree, and one count of armed criminal action. He was sentenced as a prior and persistent offender to twenty years for the robbery conviction and ten years for the armed criminal action conviction, with the sentences to run concurrently. On direct appeal, this Court affirmed the first degree robbery conviction and sentence, and reversed the armed criminal action conviction and sentence in State v. Meuir, 138 S.W.3d 137 (Mo.App. S.D.2004).

A more complete description of the facts may be found in Meuir, 138 S.W.3d at 139-141. For the purposes of this appeal, however, it is sufficient to note that the evidence demonstrated that on September 13, 2001, Movant stayed in his car with a loaded .30-06 rifle while his companion, Christopher Shipman (“Shipman”), entered the Keller’s Truck Stop in Miner, Missouri, at 3:00 a.m., wearing a gas mask and jersey gloves. Shipman pointed a .22 starter’s pistol at the clerk, and took the cash drawer containing over $600. The clerk activated a silent alarm during the robbery, and a short time later, Movant and Shipman were arrested in Sikeston, Missouri. The arresting officers found the cash drawer with $618 in it, the .22 starter’s pistol, gas mask, jersey gloves, and loaded .30.06 rifle in Movant’s car. Ship-man confessed to robbing the truck stop and later pled guilty to first-degree robbery. Movant was charged, tried and convicted as indicated above.

With regard to the first-degree robbery conviction, Movant filed a pro-se motion seeking post-conviction relief pursuant to Rule 29.15, which was later amended by appointed counsel. Movant appeals the denial of his Rule 29.15 motion without an evidentiary hearing, raising three points of error. We affirm.

Movant raises three points on this appeal. In each he argues that the motion court clearly erred in denying his Rule 29.15 motion without an evidentiary hearing on his claims of ineffective assistance of counsel. In Point I, he argues that counsel was ineffective in not moving to strike testimony concerning his prior convictions, in Point II, he asserts counsel was ineffective in not allowing him to testify at trial, and in Point III, he claims that counsel was ineffective in not asserting a duress defense.

We review a denial of a Rule 29.15 motion to determine whether the findings and conclusions of the trial court are clearly erroneous. Rule 29.15(k); Bryan v. State, 134 S.W.3d 795, 798 (Mo.App. S.D.2004). Clear error occurs when, “after reviewing the entire record, this court is left with the definite and firm impression that a mistake has been made.” Bryan, 134 S.W.3d at 798; see also State v. Taylor, 929 S.W.2d 209, 224 (Mo. banc 1996).

The issue on this appeal is “whether the trial court erred in refusing to grant him an evidentiary hearing on the above-described claims, not whether he is actually entitled to relief.” Bryan, 134 S.W.3d at 798; see Masden v. State, 62 S.W.3d 661, 664-65 (Mo.App. W.D.2001). A hearing is only required when a movant has: “(1) allege[d] facts, not conclusions, that, if true, would warrant relief; (2) these facts must raise matters not refuted by the record and files in the case; and (3) the matters complained of must have resulted in prejudice to the movant.” Bryan, 134 S.W.3d at 798 (quoting Barnett v. State, 103 S.W.3d 765, 769 (Mo. banc 2003)). If the record shows conclusively that Movant is not entitled to relief, no evidentiary hearing is required. Rule 29.15(h); State v. Brooks, 960 S.W.2d 479, 497 (Mo. banc 1997); Bryan, 134 S.W.3d at 798. The motion court’s findings are presumed to be correct. Worthington v. State, 166 S.W.3d 566, 572 (Mo. banc 2005).

In order to prevail on an ineffective assistance claim, Movant must show that: “(1) counsel’s performance did not conform to the degree of skill, care, and diligence of a reasonably competent attorney; and (2) counsel’s poor performance prejudiced the defense.” Bryan, 134 S.W.3d at 798-99; see also State v. Hall, 982 S.W.2d 675, 680 (Mo. banc 1998). To establish prejudice, Movant must show “that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Bryan, 134 S.W.3d at 799 (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Movant must prove each portion of this two-pronged performance and prejudice test in order to prevail on his ineffective assistance of counsel claim. Bryan, 134 S.W.3d at 799. Failure to make an adequate showing as to one prong relieves the court from considering the other. Bryan, 134 S.W.3d at 799; Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987). Furthermore, trial strategy choices made by counsel are presumed to be reasonable, and it is not ineffective assistance of counsel to choose one reasonable course of action over another, equally reasonable choice. Worthington, 166 S.W.3d at 573.

In Point I, Movant argues that the trial court erred in not granting an eviden-tiary hearing on his claim of ineffective assistance of counsel regarding defense counsel’s alleged failure to prevent Ship-man from testifying about Movant’s “priors,” not having said testimony stricken from the record, and for not moving for a mistrial.

The evidence against Movant at trial was significant. He and Shipman visited the truck stop twice on the night of the robbery, on the first occasion they both entered and left after noticing a customer in the store. Meuir, 138 S.W.3d at 139-40. Upon returning approximately an hour later, Movant parked the car one hundred yards away from the truck stop, but in such a way as to be able to view the door which Shipman would be exiting. Id. Mov-ant had a rifle in the front seat with him and it was positioned in such a manner that he could quickly bring it to a firing position toward the highway which served as their escape route. Id. at 139-40. Lastly, he and Shipman drove away together after Shipman held up the truck stop. Id. at 140. “Proof that a defendant acted as a lookout while someone else committed a robbery has been held to be sufficient ... to create accomplice liability.” Id. at 144.

Movant now seeks to have that conviction overturned on the premise that the following statement so tainted the jury that but for its inclusion in Shipman’s testimony, there was a reasonable probability that they would not have rendered a guilty verdict:

I probably could have got better time if I was to make a story up or whatever, man, being this is my first time down and he’s (Movant) had priors, if I was to say that he was the man instead of me. (emphasis added).

The motion court determined that this testimony was not elicited by Movant’s attorney and that it was an isolated comment. In light of the evidence against Movant, this single comment does not establish the prejudice prong of the ineffective assistance of counsel standard. There is not a reasonable probability that the outcome of the trial would have been different had this statement not been uttered by Ship-man, or in the alternative was stricken from the record. See Seals v. State, 141 S.W.3d 428, 431 (Mo.App. S.D.2004).

Likewise, given the weight of the evidence and this testimony’s isolated nature, we cannot say that had counsel raised it in a motion for a new trial, that it was reasonably probable that the trial court would have sustained the motion. Therefore, we are not left with the definite and firm impression that the motion court’s determination that Movant failed to pled facts showing that Shipman’s testimony prejudiced him, was a mistake. See Worthing-ton, 166 S.W.3d at 573. Point I is denied.

In Point II, Movant argues that the motion court erred in denying his Rule 29.15 motion without an evidentiary hearing on his claim of ineffective assistance of counsel in that defense counsel, despite Movant’s request to do so, did not call him as a witness at trial. Movant asserts that he was not aware that he had an absolute right to testify in his own defense even if his attorney advised against it. He alleges that had he been allowed to testify, the outcome of the trial would have been different because he would have given testimony which would have supported a duress defense. The motion court found this assertion to be contrary to the record. In its findings of fact and conclusions of law the motion court points out that during the trial, the trial court informed Movant that he had the right to testify, that he had a right to inform counsel of his desire to testify and that it was Movant’s decision as to whether or not to testify. Furthermore, following the trial, the trial court questioned Movant as to his satisfaction with defense counsel at which time he raised no objection to defense counsel not having called him as a witness. Movant alleges that the following exchange took place between he and the trial court:

THE COURT: [Movant], your lawyer indicates at this time that she doesn’t know whether or not you want to testify, and that you understand that you have the right to testify in this case. You cannot be compelled to testify. Nobody can call you up as an involuntary witness to testify in this case or compel you to give evidence against yourself, but if you do decide to testify in this case, then the State can ask you questions as to prior convictions, which would then be open to the jury in this case; do you understand?
[MOVANT]: Yes, sir.
THE COURT: You can let your lawyer know whether or not you want to testify, all right?

The right to testify in one’s own defense is fundamental and may only be waived by the individual. Simmons v. State, 100 S.W.3d 143, 146 (Mo.App. E.D.2003). An evidentiary hearing is required unless the record conclusively shows that Movant “voluntarily and knowingly waived the right to testify.” Id. If such a waiver is found, “[a]bsent any exceptional circumstances, the advice by counsel on whether or not to testify is a matter of trial strategy and not grounds for post-conviction relief.” Lawrence v. State, 160 S.W.3d 825, 831 (Mo.App. S.D.2005). Here, Movant clearly concedes that the trial court advised him of his right to testify and that the decision to do so or not was his. We agree with the motion court that the record refutes this portion of Movant’s Rule 29.15 motion. As such we are not left with the firm belief that the motion court’s decision to deny the evidentiary hearing as to this point was a mistake. Point II is denied.

In Point III, Movant argues that the motion court erred in denying his Rule 29.15 motion without an evidentiary hearing on his claim of ineffective assistance of counsel regarding counsel’s failure to present the affirmative defense of duress. Movant’s Point III is intertwined with Point II in that the only evidence of duress Movant alleges should have been presented was his own testimony. Movant argues that defense counsel was ineffective in not calling him as a witness so that he could testify that he participated in driving Ship-man from the truck stop under duress.

In the absence of a showing to the contrary, counsel is presumed to have provided effective counsel. West v. State, 159 S.W.3d 847, 849 (Mo.App. S.D.2005). “The presumption is that the challenged action was sound trial strategy.” Id. The decision whether or not to place a defendant in the witness chair is a difficult one. It has been repeatedly held that when a criminal defendant has knowingly and voluntarily waived his right to testify, absent extraordinary circumstances, an ineffective assistance of counsel claim will not lie in defense counsel’s decision not to call him as a witness. Lott v. State, 147 S.W.3d 842, 845 (Mo.App. S.D.2004); see also Morrison v. State, 75 S.W.3d 893, 896-897 (Mo.App. S.D.2002); State v. Holcomb, 956 S.W.2d 286, 296 (Mo.App. W.D.1997).

Movant’s testimony may have had the affect of countering evidence presented at trial that Movant knew, at least after the fact, of Shipman’s actions in the truck stop and participated in driving the car away from the location of the crime. However, the motion court found that defense counsel declined to call Movant as a witness because Movant’s prior criminal history could have been used against him. “Reasonable choices of trial strategy, no matter how ill fated they appear in hindsight, cannot serve as a basis for a claim of ineffective assistance.” Worthington, 166 S.W.3d at 573 (quoting Cole v. State, 152 S.W.3d 267, 270 (Mo. banc 2004)).

The facts pled in Movant’s Rule 29.15 motion focus entirely on the prejudice prong of the ineffective assistance of counsel test in that the defense of duress was available and that had it been put before the jury, the outcome would have been different. As to the performance prong however, Movant faded to plead facts which would have shown that defense counsel failed to use the degree of skill, care and diligence of a reasonably competent attorney in choosing not to present the affirmative defense of duress by calling Movant to testify. Nothing in Movant’s motion alleged what a reasonably competent attorney would have done under these circumstances. Given the presumption that defense counsel’s trial strategy is reasonable, we are not left with a definite and firm impression that the motion court’s determination that Movant failed to assert facts showing that defense counsel was ineffective, was a mistake. As such Point III is denied.

Based up the record we are not left with the firm and definite belief that the motion court’s denial of Movant’s Rule 29.15 motion without an evidentiary hearing was erroneous as to any of Movant’s three points. Accordingly, the judgment of the motion court is affirmed.

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

      . All references to rules are to Missouri Rules of Criminal Procedure (2005) unless otherwise indicated.

        . Movant specifically argues that defense counsel was ineffective in not submitting a MAI-CR 3rd 310.24 instruction on the issue of duress.