author: ROBERT S. BARNEY, Judge.

text:
    SAVANNAH PLACE, LTD., a Missouri Corporation, Respondent, v. Charles and Sandra HEIDELBERG, Appellants, v. Carol Jones and Carol Jones, Trustee of the Carol Jones Revocable Trust Dated December 31, 1987, Respondents.
    No. 26423.
    Missouri Court of Appeals, Southern District, Division Two.
    April 15, 2005.
    Application for Transfer Denied June 21, 2005.

      Lincoln J. Knauer and Ginger K. Gooch, Husch & Eppenberger, LLC, Springfield, for appellants.
    Rodney H. Nichols and John E. Price, Carnahan, Evans, Cantwell & Brown, P.C., Springfield, for respondent.
   ROBERT S. BARNEY, Judge.

This is the second appeal arising from a suit originally instituted by Respondent Savannah Place, Ltd. (“Savannah Place”), seeking to enforce the terms of guaranty instruments signed by Appellants Charles and Sandra Heidelberg (“Appellants”) for the payment of two promissory notes originally executed by Richmond Heights, Ltd. (“Richmond Heights”), a real estate subdivision development corporation. Appellants, Respondent Carol Jones (“Carol Jones”), Respondent Carol Jones, as trustee of the Carol Jones Revocable Trust, dated December 31, 1987, (“the Jones Trust”), and Doug Garges (“Garges”) were Richmond Heights’ original shareholders.

In response to the suit commenced by Savannah Place, Appellants seasonably brought a second amended counter-claim for breach of fiduciary duty against Savannah Place in which they also sought monetary damages, attorneys’ fees and costs. Additionally, Appellants filed a four count second amended third-party claim against Carol Jones and the Jones Trust, seeking monetary damages, attorneys’ fees, and costs, based upon theories of fraudulent misrepresentation, promissory estoppel, breach of contract and breach of fiduciary duty. Appellants sought jury trials for all of their claims.

After a bench trial, which was held pursuant to the jury waiver provisions of the guaranty instruments, the trial court entered judgment in favor of Savannah Place on its claims based on Appellants’ obligations as stated in the two promissory notes. The deficiency balance, after foreclosure of the second deed of trust, amounted to $1,649,541.55, inclusive of interest and attorneys’ fees.

In pertinent part, despite Appellants’ assertions before the trial court that they were entitled to a jury trial on their claims, the trial court found and concluded there “was no credible evidence presented to the [trial] [c]ourt to support any cause of action asserted by [Appellants] in their Second Amended Counterclaim or Second Amended Third-Party Petition, or which would otherwise allow this Court to enter Judgment for [Appellants] on any claim asserted by or against them,” and, accordingly, denied Appellants any relief.

On appeal, this Court determined in Heidelberg I that Appellants were entitled to a jury trial on their second amended counter-claim against Savannah Place and their third-party claims against Carol Jones and the Jones Trust. Heidelberg, 122 S.W.3d at 81-82. Accordingly, this Court reversed and remanded for a jury trial on the foregoing claims. Id. at 87. However, this Court held the trial court’s $1,649,541.55 judgment in favor of Savannah Place be held in abeyance pending jury trials on Appellants’ claims, so as to permit the entry of one monetary judgment related to the disposition of Appellants’ counter-claim against Savannah Place.

On remand to the trial court, Savannah Place, Carol Jones and the Jones Trust seasonably filed their motion to dismiss Appellants’ claims, alleging, as they do in this appeal, that collateral estoppel barred a jury trial on Appellants’ pending claims. In their motion, the parties argued that Appellants’ remaining claims were based upon the identical facts asserted in the previous bench trial on the issues related to the guaranty and that those factual issues had already been decided against Appellants by the trial court. As a result, Savannah Place, Carol Jones and the Jones Trust maintained that requiring such issues to be tried to a jury created the possibility of inconsistent results. Savannah Place, Carol Jones and the Jones Trust also asserted they would be entitled to a directed verdict at the close of any evidence presented by Appellants at a jury trial.

In response, Appellants filed suggestions in opposition to the motion to dismiss, alleging that the application of collateral estoppel would be contrary to this Court’s opinion in Heidelberg I, in that this Court specifically held that Appellants were entitled to a jury trial on their claims.

The trial court subsequently sustained the motion to dismiss Appellants’ claims and held that Appellants were “collaterally estopped from relitigating the factual issues set forth in their Affirmative Defenses which also form the factual bases of their Counterclaim and Third-Party Petition.” The trial court thereafter entered judgment in favor of Savannah Place against Appellants, jointly and severally, in the amount of $1,649,541.55, including interest through June 19, 2002, along with attorneys’ fees and expenses. This appeal followed.

Appellants’ sole point on appeal reads:

The trial court erred in dismissing [Appellants’] counterclaim and third party petition, because a litigant’s constitutional right to jury trial is violated when a court gives collateral estoppel effect to its own bench trial findings after improperly denying a jury trial on claims in the same suit raising similar or related issues, in that the trial court here accorded its bench trial findings collateral estoppel effect and dismissed [Appellants’] counterclaim and third party petition despite this Court’s holding that [Appellants] were entitled to a jury trial on those claims.

We note that since this Court’s opinion in Heidelberg I was written, the Supreme Court of Missouri in State ex rel. Leonardi v. Sherry, 137 S.W.3d 462, 468 (Mo. banc 2004) reiterated “the historical preference for trial by jury as expressed in Article I, section 22(a) of the Constitution of the State of Missouri,” albeit in the context of the “equitable cleanup” doctrine. In Leonardi, a pharmaceutical company sought injunctive relief to enforce restrictive covenants pursuant to its consulting agreements with Dr. Leonardi and also brought legal claims for damages. Id. at 464. Dr. Leonardi filed a counterclaim, asserting a number of affirmative defenses and ultimately sued for breach of contract and breach of the implied covenant of good faith and fair dealing. Id. The lower court denied the company’s request for preliminary injunctive relief, noting that the company had a viable cause of action for breach of contract and that damages were quantifiable and capable of being ascertained subject to a further evi-dentiary hearing on the issues of liability and damages. Id. However, the trial court noted that the company’s request for a preliminary injunction did not dispose of its other request for a permanent injunction; therefore, the trial court found that the company’s “requests for equitable relief and damages were still before it.” Id. at 465. As a result, the trial court concluded Dr. Leonardi was not entitled to a jury trial, because the trial court retained jurisdiction over the company’s claims pursuant to the equitable cleanup doctrine in that “a court of equity may retain jurisdiction to award damages where equity requires this form of relief in the circumstances.” Leonardi, 137 S.W.3d at 465. Following the trial court’s denial of a jury trial, Dr. Leonardi filed his request for a writ in prohibition, arguing the equitable cleanup doctrine was inapplicable under the circumstances and that the trial court had violated his constitutional right to a jury trial. Id.

The Supreme Court of Missouri held that the existence of equitable claims “cannot alone justify a wholesale denial of [Dr.] Leonardi’s request for a jury trial of his counterclaims,” and determined that “[a] writ in prohibition is appropriate when a trial court improperly denies the right to a trial by jury.” Id. at 474. In its opinion, the Supreme Court of Missouri saliently observed that:

Missouri trial courts have jurisdiction to try cases involving requests for equitable relief and damages in one proceeding. The trial court has discretion to try such cases in the most practical and efficient manner possible, consistent with Missouri’s historical preference for a litigant’s ability to have a jury trial of claims at law. Unless circumstances clearly demanded otherwise, trials should be conducted to allow claims at law to be tried to a jury, with the court reserving for its own determination only equitable claims and defenses, which it should decide consistently with the factual findings made by the jury.

Id. at 473 (footnote omitted). Quoting from Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 510, 79 S.Ct. 948, 956, 3 L.Ed.2d 988, 997 (1959), the Leonardi court noted that:

[T]he trial court will necessarily have to use its discretion in deciding whether the legal or equitable cause should be tried first. Since the right to jury trial is a constitutional one, however, while no similar requirement protects trials by the court, that discretion is very narrowly limited and must, whenever possible, be exercised to preserve jury trial.

Id. (footnote omitted) (emphasis added).

We recognize, of course, that in the present matter there are no pending claims for equitable relief, as was the case in Leonardi; however, there are evidentia-ry and procedural parallels in the case at hand. As we view Leonardi, in Missouri there is a marked preference to conduct a jury trial first, with the court reserving for its own determination only bench tried issues, whether equitable or jury waived. See Leonardi, 137 S.W.3d at 473-75. “We are constitutionally bound to follow the most recent controlling decision of the Supreme Court of Missouri.” State v. Keightley, 147 S.W.3d 179, 184-85 (Mo. App.2004); see also Farm Bureau Toum and Country Ins. Co. v. Rogers, 959 S.W.2d 880, 883 (Mo.App.1997).

In the instant matter, the order in which to consider the factual issues to be tried to a jury and the other issues to be tried to the bench is particularly important because “ ‘if an issue common to both legal and equitable [bench-tried] claims was first determined by a judge, relitigation of the issue before a jury might be foreclosed by res judicata or collateral estoppel.’ ” Lytle v. Household Mfg., Inc., 494 U.S. 545, 550, 110 S.Ct. 1331, 1335, 108 L.Ed.2d 504, 514 (1990) (quoting Parklane Hosiery Co. v. Shore, 439 U.S. 322, 334, 99 S.Ct. 645, 653, 58 L.Ed.2d 552, 564 (1979)).

Indeed, in Lytle, the Supreme Court of the United States considered a similar factual and procedural scenario as in the present matter under review. In Lytle, a plaintiff-employee filed an action under both Title VII of the Civil Rights Act of 1964 and 42 U.S.C. section 1981 against his defendant-employer. Lytle, 494 U.S. at 548, 110 S.Ct. 1331. Plaintiff Lytle “requested a jury trial on all issues triable by a jury.” Id. The district court dismissed the section 1981 claims and concluded “that Title VII provided the exclusive remedy for Lytle’s alleged injuries.” Id. Subsequently, the district court held a bench trial on the Title VII claims and entered a judgment against Lytle. Id. at 549,110 S.Ct. 1331.

Thereafter, the Fourth Circuit Court of Appeals affirmed the district court’s judgment against Lytle, “but noted that the dismissal of the § 1981 claims was ‘apparently erroneous’ because ‘Title VII and § 1981 remedies are separate, independent and distinct.’ ” Id. at 549, 110 S.Ct. 1331. “Nevertheless, [the Fourth Circuit] ruled that the District Court’s findings with respect to the Title VII claims collaterally estopped Lytle from litigating his § 1981 claims because the elements of a cause of action under” the two statutes were identical. Lytle, 494 U.S. at 549, 110 S.Ct. 1331. Additionally, the Fourth Circuit rejected Lytle’s assertions that “the Seventh Amendment precluded according collateral-estoppel effect to the [lower court’s] findings, reasoning that the judicial interest in economy of resources overrode Ly-tle’s interest in relitigating the issues before a jury.” Id. at 549-50,110 S.Ct. 1331.

However, the Supreme Court granted certiorari, vacated the judgment of the Fourth Circuit, vacated the decision of the district court with respect to Lytle’s Title VII claims, and remanded the entire matter for further proceedings consistent with its opinion. Id. at 555-56, 110 S.Ct. 1331. In its unanimous opinion, the Supreme Court observed that only a new trial in the case would vindicate Lytle’s Seventh Amendment rights. Id. at 555, 110 S.Ct. 1331. The court also noted that:

[o]nly the District Court’s erroneous dismissal of the § 1981 claims enabled that court to resolve issues common to both claims, issues that otherwise would have been resolved by a jury ... It would be anomalous to hold that a district court may not deprive a litigant of his right to a jury trial by resolving [a bench tried] equitable claim before a jury hears a legal claim raising common issues, but that a court may accomplish the same result by erroneously dismissing the legal claim.

Id. at 551-52, 110 S.Ct. 1331. The Supreme Court went on to state that:

[o]ur conclusion is consistent with this Court’s approach in cases involving a wrongful denial of a petitioner’s right to a jury tidal on legal issues. In such cases, we have never accorded collateral-estoppel effect to the trial court’s factual determinations. Instead, we have reversed and remanded each case in its entirety for a trial before a jury.

Lytle, 494 U.S. at 553-54, 110 S.Ct. 1331 (emphasis added). It then determined that:

[i]n all of these circumstances, relitigation is the only mechanism that can completely correct the error of the court below. Thus, concern about judicial economy, to the extent that it supports [defendant’s] position, remains an insufficient basis for departing from our longstanding commitment to preserving a litigant’s right to a jury trial.

Id. at 553-54,110 S.Ct. 1331.

In Lytle, the Supreme Court also observed that the fact that the district court had entered a judgment in favor of defendant-employer on Lytle’s Title VII claim did not establish that the lower court would have granted a motion for directed verdict on Lytle’s jury tried section 1981 claim. Lytle, 494 U.S. at 554, 110 S.Ct. 1331. The court reasoned that “[a]s we have long recognized, a jury and a judge can draw different conclusions from the same evidence.” Id. at 555, 110 S.Ct. 1331. “Thus, we are not convinced that the District Court would have granted a motion for a directed verdict on Lytle’s § 1981 claim....” Id.

Furthermore, the court determined in Lytle that “[vjacating the District Court’s determination regarding Lytle’s Title VII claims is required to afford Lytle complete and consistent relief.” Id. at 556 n. 4, 110 S.Ct. 1331. “Had his § 1981 claims not been dismissed, the jury’s determination of legal and factual issues could not have been disregarded when the District Court considered his equitable [bench tried] claims. Moreover, vacating the District Court’s judgment avoids the possibility of inconsistent determinations.” Id,

As stated in Leonardo The right to a trial by jury has become a fundamental element of our judicial system, expressing the faith of our people in the common wisdom of ordinary people to ferret out the truth from conflicting evidence. This right is guaranteed in the Seventh Amendment of the U.S. Constitution and in Article I, section 22(a) of the Missouri Constitution.

Leonardi, 137 S.W.3d at 472. Being guided by the foregoing precepts, and in particular the admonition in Leonardi that trials should generally be conducted in such a way as to allow claims at law to be first tried to a jury, in the instant matter this Court will follow the procedure set out by the Supreme Court of the United States in Lytle, 494 U.S. at 554, 110 S.Ct. 1331. See Leonardi 137 S.W.3d at 473.

The judgment of the trial court dismissing Appellants’ claims on the basis of collateral estoppel is specifically reversed. We reverse and remand the case in its entirety. Appellants will first be accorded a jury trial on their claims at law, namely their counter-claim against Savannah Place and their third-party claims against Carol Jones and the Jones Trust. Next, the claim of Savannah Place against Appellants will be tried to the trial court, pursuant to the jury waiver provisions of the guaranty instruments. The trial court must take into consideration the factual findings made by the jury. Leonardi, 137 S.W.3d at 473.

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

      . See Savannah Place, Ltd, v. Heidelberg, 122 S.W.3d 74 (Mo.App.2003), referred to hereafter as Heidelberg J. An appellate court "may take judicial notice of its own records when justice so requires.” Perkel v. Stringfellow, 19 S.W.3d 141, 149 n. 9 (Mo.App.2000). Accordingly, we take judicial notice of the complete record in Heidelberg I.

      . Savannah Place is the assignee of two promissory notes, which were originally executed in the amounts of $930,000.00 and $898,000.00 respectively, as well as the attendant deeds of trust and security instruments, which were originally executed by Richmond Heights in favor of the predecessor in interest to Union Planters Bank. Appellants are co-guarantors of the two promissory notes in question. Carol Jones, the Jones Trust and Garges also executed similar guarantees, but were not sued by Savannah Place.

      . Prior to this time, Savannah Place had caused the second deed of trust securing the $898,000.00 promissory note to be foreclosed. Foreclosure proceedings relating to the first promissory note were subsequently canceled.

      . "The term 'abeyance' means certain rights or conditions are 'in expectancy.’ It clearly implies that the situation is not yet fully completed. When a matter is held in abeyance it is in a condition of being undetermined. It is not finally settled.” Bemyce Belitz v. City of Omaha, Nebraska, 172 Neb. 36, 108 N.W.2d 421, 425 (1961).

      . "Under the doctrine known as equitable cleanup, courts of equity would occasionally grant, in addition to equitable remedies, relief obtainable at law when it was incidental to a request for equitable relief. When a court of equity invoked its power of equitable cleanup, a jury trial was precluded....” Leonardi, 137 S.W.3d at 469 (internal citation omitted). As our Supreme Court noted, however, "Missouri’s constitutional guarantee to a jury trial has never been applied to claims seeking equitable relief.” Id. at 472.

      . Among the cases cited in support was Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 109 S.Ct 2782, 106 L.Ed.2d 26 (1989).

      . We are mindful that in a jury trial, “issues relating to the weight, credibility, or the resolution of conflicts in testimony are matters for a jury’s determination,” not the trial court. Lashmet v. McQueary, 954 S.W.2d 546, 552 (Mo.App.1997). "This court defers to the jury’s role of judging the weight of the evidence and the credibility of witnesses.” Bland v. IMCO Recycling, Inc., 67 S.W.3d 673, 682 (Mo.App.2002).


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Missouri, Respondent, v. William E. ERNST, Appellant.
    No. 26343.
    Missouri Court of Appeals, Southern District, Division Two.
    April 28, 2005.
    Motion for Rehearing or Transfer Denied May 23, 2005.
    Application for Transfer Denied June 21, 2005.

      Kent Denzel, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel N. McPherson, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    ROBERT S. BARNEY, Judge.
   William E. Ernst (“Appellant”) appeals his conviction for one count of the class C felony of statutory rape in the second degree, a violation of section 566.034. Following a bench trial, the trial court sentenced Appellant to seven years in prison. He now brings one point on appeal, alleging the trial court erred in allowing testimony related to his “habit of taking young girls into his bed.” We affirm the judgment of the trial court.

“ “When a defendant waives trial by jury, the trial court’s findings have the force and effect of a jury verdict.’ ” State v. Love, 134 S.W.3d 719, 721 (Mo.App. 2004) (quoting State v. Marshell, 825 S.W.2d 341, 342 (Mo.App.1992)). Accordingly, “ ‘[ajppellate review is as though a verdict of guilty has been returned by a jury. If there is substantial evidence to support the findings of the trial court, its judgment is to be affirmed.’ ” Id. (quoting State v. Giffin, 640 S.W.2d 128, 130 (Mo. 1982)). In our review, we accept “ ‘as true the evidence that tends to prove the defendant’s guilt and all inferences favorable to the state. Contrary evidence and inferences are disregarded.’ ” Id. (quoting Gif-fin, 640 S.W.2d at 130).

The credibility of witnesses and the weight to be given the evidence are for the trial court to determine, and this Court is to defer to the trial judge’s superior position from which to determine credibility. See State v. Blankenship, 830 S.W.2d 1, 16 (Mo. banc 1992). We are not to determine witness credibility nor weigh the evidence on appeal. State v. Harper, 884 S.W.2d 362, 364 (Mo.App.1994).

Viewed in a light most favorable to the trial court’s verdict as we must, State v. Creech, 983 S.W.2d 169, 170 (Mo.App. 1998), the record reveals that Appellant, who was sixty-six years old at the time of trial, first befriended a young woman named L.F. when she was eleven years old. L.F.’s mother, who was struggling to raise four children on her own, owned a restaurant near Appellant’s home and for a number of years Appellant often dined at the restaurant. L.F., who waited tables at the restaurant, grew to enjoy spending time with Appellant and even referred to him as “Grandpa Bill.” In fact, not only did Appellant often aid L.F.’s family by purchasing clothes and toys for the children, but L.F. and her siblings often stayed the night at Appellant’s home.

According to L.F., beginning sometime in 2001, when she was fourteen years old, Appellant began to tell her on a regular basis “that [she] needed to sleep with him because God wanted [her] to” so that she could “be an angel in heaven” and “wouldn’t make God mad.” Appellant also began providing alcohol to L.F. during this time period, such as “Jack Daniels, vodka, Seagram’s 7, [and] Jack Daniels mixed drinks.”

On January 31, 2002, when L.F. was fifteen years old, Appellant took her to the mall to buy a dress for an upcoming school dance. In Appellant’s truck on the way home from the mall, Appellant told L.F. that she needed to have sexual intercourse with him “to get it done and over with, that this was a good time and just stop waiting around” to do it. When they got back to Appellant’s home, they watched movies and L.F. took a shower. After L.F. had gotten in bed with Appellant, Appellant took L.F.’s shorts and underwear off and then engaged in sexual intercourse with L.F., which lasted ten to fifteen minutes. Appellant also put his hand underneath L.F.’s shirt and touched her breasts. According to L.F., while Appellant was having sexual intercourse with her, he told her that she was “doing a good job.” L.F. testified that after it was over, she felt “numb” and “disgusting.” When she and Appellant were still lying in his bed, he said to her, “God’s proud of you” and also told her that she “should be proud of herself.” Afterwards, L.F. got dressed and slept on the couch.

After the January 31, 2002, incident, L.F. continued to see Appellant at her mother’s restaurant. Appellant would warn her not to tell anyone about having sex with him because “God would be angry with [her] if [she] let [Appellant] get in trouble.” A few weeks later, Appellant again asked L.F. to have sex with him. L.F. testified that he again told her that “God was proud of’ her and then asked her if she “would have sex with him but not for God.” L.F. refused.

On April 16, 2002, L.F. told her mother about the incident with Appellant. Thereafter, Appellant was arrested and charged ■with statutoiy rape in the second degree. Following a March 18, 2004, bench trial, the trial court took the case under advisement. On April 12, 2004, the trial court found Appellant guilty beyond a reasonable doubt of statutory rape in the second degree and later sentenced him to seven years in prison. This appeal followed.

In his sole point on appeal, Appellant maintains the trial court abused its discretion in allowing L.F.’s cousin, D.A., to testify that Appellant “took [her] into his bed.” Appellant argues that D.A.’s testimony was “neither logically nor legally relevant to the crime charged” because it “was offered solely to show [Appellant’s] habit of taking young girls into his bed in order to ‘corroborate’ [L.F.’s] claim ... that [Appellant] had sex with [her] .... ” As a result of the admission of D.A.’s testimony, Appellant urges that he was prejudiced by the trial court’s consideration of such inadmissible evidence.

The record shows that in addition to the testimony from L.F., the State called L.F.’s eleven-year-old cousin, D.A., as a witness. Prior to D.A. taking the stand, Appellant objected to D.A.’s testimony on the basis that he anticipated that her testimony would “be an attempt to improperly admit alleged evidence of improper bad acts or to somehow show habit, and — and it’s irrelevant and would be inadmissible.” The trial court overruled the objection.

When D.A. began to testify, she stated that she spent the night at Appellant’s house with L.F. and one of her siblings. Appellant again objected to D.A.’s testimony on the basis of relevance and argued that her testimony amounted to unrelated evidence of alleged prior bad acts. The State responded that “[t]he relevance is ... that he has girls get in bed with him ... having her get in bed with him is not a bad act; it’s just his habit of having young girls get in bed with him.” Though Appellant argued that there was no foundation for the evidence of “habit,” the trial court overruled the objection and noted Appellant’s continuing objection to D.A.’s testimony.

D.A. then testified that in 2001, when she spent the night at Appellant’s home, Appellant woke her up in the middle of the night and told her that he wanted to talk to her in his bed. She stated that Appellant “grabbed” her arm and “brought [her] over to the bed.” Appellant laid down “right next” to her and put his arm underneath her head. D.A. stated that she laid there for awhile with her eyes open and then got up “feeling uncomfortable.” D.A. then returned to sleeping on the couch. She went on to state that Appellant never touched her in a sexual way.

“On rare occasions Missouri courts have dealt with the general topic of the admissibility of evidence pertaining to a habit of a person.” Hawkins v. Whittenberg, 587 S.W.2d 358, 363 (Mo.App.1979). However, “ ‘the admissibility of this character of evidence should be restricted and kept within narrow limits.’ ” Id. (quoting Hodges v. Hill, 175 Mo.App. 441, 161 S.W. 633, 636 (1913)). Foreign authorities have set out that “ ‘[a] habit is the person’s regular practice of meeting a particular kind of situation with a specific type of conduct -’” Id. at 364 n. 2 (quoting McCormiCK on Evidence, 2d ed., § 195, pp. 462-63). “Evidence of the habit of a person ... is relevant to prove that the conduct of the person ... on a particular occasion was in conformity with the habit or routine practice.” Id. (quoting Fed. R.Evid. 406).

In the present matter, D.A. testified that on one specific occasion Appellant asked her to lie in bed with him. This certainly does not demonstrate Appellant’s regular practice of meeting a particular kind of situation with a specific type of conduct, especially in light of the fact that he raped L.F. when he invited her to his bed and he did not molest or rape D.A. See id. at 363-64. The one specific incident about which D.A. testified was not enough to show that Appellant had a habit or a routine practice of “having young girls get into bed with him.” Accordingly, the trial court erred in overruling Appellant’s objection to D.A.’s testimony on the basis of habit.

With that being said, even though the trial court erred in admitting D.A.’s testimony, Appellant is not entitled to a reversal and retrial. As stated in State v. Sladek,

‘In a jury-waived case a certain amount of latitude in the admission of evidence is allowed, and even where an error is made in the admission of some evidence, except where the trial court relied on that evidence in arriving at its findings of fact and conclusions of law, such error is ordinarily held to be non-prejudicial ... when an action is to the court sitting without a jury, the rules of exclusion are less strictly enforced.’

State v. Sladek, 835 S.W.2d 308, 313 (Mo. banc 1992) (quoting State v. Leigh, 580 S.W.2d 536, 545 (Mo.App.1979), reversed on other grounds by Leigh v. State, 639 S.W.2d 406 (Mo.App.1982)).

“ ‘[I]n a judge-tried case, we presume that the trial judge was not prejudiced by inadmissible evidence and was not influenced by it in reaching a judgment, unless it is clear from the record that the trial judge considered and relied upon the inadmissible evidence.’ ” Bewley, 68 S.W.3d at 619 (quoting State v. Anders, 975 S.W.2d 462, 466 (Mo.App.1998)); see also State v. Mullins, 140 S.W.3d 64, 71 (Mo.App.2004).

“ ‘In matters involving the admission of evidence, this Court reviews for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial.’ ” Love, 134 S.W.3d at 724 (quoting State v. Hayes, 113 S.W.3d 222, 226 (Mo.App. 2003)). “Absent some showing that the evidence inflamed the fact-finder or diverted its attention from the issues to be resolved, the receipt of evidence even though irrelevant and immaterial, cannot constitute prejudicial or reversible error.’ ” Id. “ ‘The test is whether the prejudicial improper admission was outcome-determinative.’ ” Id. (quoting State v. Barriner, 34 5.W.3d 139, 150 (Mo. banc 2000)); see also State v. Santillan, 1 S.W.3d 572, 579 (Mo.App.1999).

In pronouncing its judgment, the trial court set out in an almost perfunctory manner that:

The Court, after hearing the evidence, hearing the testimony of all the witnesses and examining the suggestions filed by counsel and what the Court believes the applicable law, does make a finding that the Court believes that the — or the Court finds the Defendant guilty of the charge, finding that evidence beyond a reasonable doubt.

Here, no clear and obvious statement of reliance on D.A.’s testimony was made by the trial court in reaching its decision. Nothing in the record shows the trial considered and relied upon inadmissible “habit” evidence in making its determination of guilt beyond a reasonable doubt.

In short, Appellant has not shown that the inadmissible evidence played a critical role in the trial court’s decision. See Love, 134 S.W.3d at 724. It is our view that the testimony given by D.A. was not “outcome-determinative” in that the testimony provided by L.F. was direct evidence of the charge of statutory rape in the second degree against Appellant. See Bewley, 68 S.W.3d at 617. There is sufficient support in the record permitting the trial court to have found Appellant guilty beyond a reasonable doubt of the offense charged.

The judgment of the trial court is affirmed.

PARRISH, P.J., and SHRUM, J., concur.

      ."A person commits the crime of statutory rape in the second degree if being twenty-one years of age or older, he has sexual intercourse with another person who is less than seventeen years of age.” § 566.034; see also State v. Bewley, 68 S.W.3d 613, 617 (Mo.App. 2002). Sexual intercourse is defined as "any penetration, however, slight, of the female sex organ by the male sex organ, whether or not an emission results.” § 566.010(4). Statutory references are to RSMo 2000, unless otherwise set out.

      . We use the initials of the victim and any other minors mentioned in the opinion in order to protect their identity.

      . According to L.F., besides alcohol, Appellant also bought her clothes, such as thong underwear, shirts, pants, socks, shoes, dresses for several school dances, and cigarettes. Appellant also regularly gave her money, usually a $20 bill, and gave her $100.00 on her birthday every year.

      . We note that while Appellant’s point relied on premises his complaint as being that D.A.’s testimony showed "habit,” the argument portion of Appellant’s brief concentrates almost exclusively upon the ”[a]dmissibility of '[m]is-conduct' [e]vidence” and contains a single sentence on "habit.” "We limit our review to matters raised in the points relied on” and will only consider Appellant’s assertion that D.A.’s testimony was improperly admitted to show habit. See State v. Coody, 867 S.W.2d 661, 664 n. 1 (Mo.App.1993).

      . As best we discern, Missouri has not adopted this particular Federal Rule. See State v. Hemby, 63 S.W.3d 265, 269 (Mo.App.2001).

      . We note that the trial court made no express findings of facts and conclusions of law.

      . See Bewley, 68 S.W.3d at 619 (held that in a court-tried case the trial court is afforded sound discretion and there is a presumption that the trial court was not prejudiced by inadmissible evidence nor influenced by it in reaching its judgment, unless evidence clearly shows the trial court “considered and relied upon the inadmissible evidence”); State v. Goodwin, 65 S.W.3d 17, 24-25 (Mo.App.2001) (held that in a court-tried case the mere mention of a defendant’s reluctance to take a polygraph examination is not considered a species of misconduct warranting mistrial because under those circumstances a trial court is presumed to have disregarded any improper remarks); Anders, 975 S.W.2d at 465-66 (held that in a court-tried case, even when the trial court erred in admitting results of a breath test due to failure by the authorities to timely test the breath machine, there existed a presumption that the trial court was not prejudiced by inadmissible evidence and was not influenced by it in reaching its judgment).


author: EDWIN H. SMITH, Chief Judge.

text:
    Donald J. THIEL, et al., Appellants, v. Harold L. MILLER (Deceased), et al., Respondents.
    No. WD 63471.
    Missouri Court of Appeals, Western District.
    May 10, 2005.
    Rehearing Denied June 28, 2005.

      Donald G. Stauffer, Marshall, MO, for appellants.
    Errol D. Taylor, St. Joseph, MO, for respondents.
    Before EDWIN H. SMITH, C.J., and ELLIS and HOWARD, JJ.
   EDWIN H. SMITH, Chief Judge.

Diane Adell Burtrum, Robert Clay Kil-lion, Nina Claire Tanner, Barbara Thiel, Michael M. Reece, Phillip Reece, and Donald J. Thiel appeal from the judgment of the Circuit Court of Daviess County for Day Miller (DM), individually, and as the defendant ad litem for Harold L. Miller (HM), deceased, on the appellants’ claim against DM and HM for legal malpractice. The appellants, other than Donald J. Thiel (Thiel), are legatees under the wills of Donald M. (Donald) and Clara M. (Clara) Reece. Donald died on August 26, 1992, while Clara died on December 21, 1997. Thiel is the personal representative of Clara’s estate. In their petition, the appellants alleged that HM was negligent with respect to legal services he provided the Reeces in 1985 and 1992. They further alleged that they were damaged as a result of his negligence in that it caused Clara’s estate to have to pay federal estate taxes and probate expenses totaling $205,486. The appellants’ petition also named DM as a defendant, alleging that HM was acting as DM’s agent or partner in rendering legal services to the Reeces. The case was transferred for trial from Dekalb County to Daviess County on a change of venue.

The appellants raise two points on appeal. In Point I, they claim that the trial court erred in concluding that HM was not negligent in providing legal services to the Reeces, as alleged in their petition, because its finding in support thereof, that he exercised that degree of skill and diligence ordinarily exercised by an attorney under the same or similar circumstances, was against the weight of the evidence. In Point II, they claim that the trial court erred in concluding that DM was not liable for HM’s negligence in providing legal services to the Reeces because the court’s finding, that HM, in providing legal services to the Reeces, was not acting as DM’s agent, was against the weight of the evidence.

We affirm.

Facts

HM, a licensed attorney who practiced law in Maysville, Missouri, before his death in 1993, was a longtime friend of Donald. In October of 1982, HM drafted wills for the Reeces, both of which provided that, upon the death of the survivor, and after providing for the care of Donald’s mother and making certain charitable distributions, the remainder of the property was to be divided among the appellants, other than Thiel, who are Donald’s nephews and Clara’s sisters. The Reeces had no children.

On May 29, 1985, Clara executed an “EXCLUSIVE AND IRREVOCABLE POWER OF ATTORNEY” prepared by HM, which designated Donald and her brother-in-law, Thiel, as her joint attorneys-in-fact, to act jointly or separately in performing the powers enumerated therein. The POA prepared for Clara was not a durable POA, despite the adoption several years earlier of the Missouri Durable Power of Attorney Act, §§ 486.550-486.595.

In the years that followed, both Clara and Donald experienced worsening health. Clara, who was blind in one eye as the result of a childhood accident, developed glaucoma in the other eye and gradually lost her sight, a condition that caused her to move into a nursing home in Maysville in 1986. By late 1989 or early 1990, Clara had developed some degree of dementia such that she could no longer carry on conversations with her Mends and relatives. On September 10, 1993, Clara was declared totally disabled by the Circuit Court of Saline County, which appointed Thiel and his wife Barbara as her co-conservators.

In late June or early July of 1992, Donald, who had a history of heart problems and diabetes, was admitted to a hospital in St. Joseph, Missouri. While hospitalized, Donald asked HM to draft a trust. HM prepared a declaration of trust which designated Donald and Clara as the settlors and Donald and his friend Hershel Shepherd as the trustees of the “Don Reece and Clara Reece Trust.” On July 2, 1992, Donald executed the declaration of trust, individually, and on behalf of Clara as her attorney-in-fact, under her 1986 POA. In an addendum, prepared by HM and signed by Donald for himself individually and for Clara under the POA, all of the Reeces’ property, both real and personal, was transferred to the trust.

Donald died on August 26, 1992, approximately two months after the execution of the trust. Subsequently, prompted by a concern over the validity of the trust, Shepherd, as personal representative of Donald’s estate, filed a petition to determine title to the assets in the trust in the Probate Division of the Circuit Court of Dekalb County. In a judgment entered September 13, 1994, the probate division declared that the Reeces’ 1992 trust was void:

By virtue of the fact that ... Clara Reece was physically and mentally incapacitated, on or about July 2, 1992, and remained so thereafter and to this time, and for the further reason that the ... Exclusive and Irrevocable Power of Attorney [drafted by HM for her in May of 1985] was not “durable,” the actions of Donald M. Reece, signing and acknowledging the Trust Declaration, and its Addendum, were of no legal force and effect, and accordingly were null and void such that no “Trust” was thereby created.

Clara passed away on December 21, 1997. On December 9, 1999, the appellants filed a two-count petition for damages for legal malpractice in the Circuit Court of Dekalb County. The petition named as defendants both HM and DM, who, before HM’s death on April 21, 1993, practiced law in the same office in Mays-ville, Missouri. Count I alleged that HM was negligent in failing to draft a durable POA that would have given Donald, her attorney-in-fact, authority to make dispositions of the couple’s property regardless of Clara’s incapacity or disability, and drafting an invalid declaration of trust, which failed to accomplish the purpose of avoiding estate taxes and the expense and delay of probate. Count II alleged that HM was negligent for failing to pursue an alternative means of avoiding estate taxes once he knew, or should have known, that the 1992 trust was invalid, by opening a conserva-torship in 1992 for Clara, and then taking advantage of the provisions of § 475.094, which allows the probate court to take certain steps to keep a disabled protectee’s estate from being “substantially depleted” by federal estate taxes. The petition sought to hold DM hable for HM’s negligence on the ground that HM, when providing legal services to the Reeces, was acting as his partner or agent of DM.

On December 9, 1999, the appellants filed a motion to appoint DM as defendant ad litem for HM, pursuant to § 537.021, which was sustained on December 27, 1999. On January 3, 2000, the appellants moved for a change of venue pursuant to Rule 51.03. On February 14, 2000, the motion was sustained, and the case was transferred to the Circuit Court of Daviess County.

The case was tried to the court on November 6-7, 2002. Robert Ravenhill, a former circuit judge, appeared as an expert witness for the appellants, and testified that HM’s failure to draft a durable POA for Clara in 1985, given her deteriorating health and the possibility that she would subsequently become incapacitated, constituted a failure ,to exercise the degree of skill and diligence ordinarily used by an attorney under the same or similar circumstances. Ravenhill also testified that, in July 1992, HM attempted to draft an A/B trust, which was designed to avoid estate tax liability upon the death of the surviving spouse, while at the same time providing support for the remainder of that spouse’s life, but the declaration of trust failed to include necessary provisions for the disposition of the funds in the “B” trust, so the trust failed to accomplish the goal of avoiding estate tax liability. Ravenhill further testified that HM’s failure to properly draft the A/B trust constituted a failure to exercise the degree of skill and diligence ordinarily used by an attorney under the same or similar circumstances.

When asked, on direct examination, what an attorney “ought to do” when, as in the Reeces’ situation, there is no durable POA or valid trust to effect estate tax savings, Ravenhill replied that “[ojbviously, you’d have to go to the probate court in the jurisdiction where she resides and establish a conservatorship.” Ravenhill then stated that, if an attorney went this route, “all you could do is make gifts ... if you knew who to make them to and the probate court would allow same.” Subsequently, Ravenhill testified: “In 1992, when Don Reece was alive, if there had been a conservatorship established for Clara Reece, that the conservator of the estate and Don Reece could have gone to the probate court and done enough to divide the estate and avoid probate tax — if they had both gone. I see no barrier to that.”

Ravenhill also testified that the amount of estate taxes which could have been avoided had HM not been negligent in his legal services was $166,608. Ravenhill derived this figure from the Internal Revenue Service Form 706 filed for Clara, which also showed a total estate of $1,110,547. The appellants also claimed that, as a result of HM’s negligence, the estate incurred both attorney’s and personal representative’s fees as probate costs, so that the total damages claimed by the appellants was $205,486.

At trial, the appellants also presented the deposition testimony of DM, who stated that he and HM were never partners. According to DM’s deposition testimony, from 1975 until August of 1989 he “was an independent contractor paid a straight salary by Harold.” After DM bought “the law business” from HM in August of 1989, any fees which HM collected for the practice of law were paid to DM. DM testified that he had nothing to do with the preparation of the T992 declaration of trust or the 1985 POA that were involved in this case.

On September 29, 2003, the trial court entered judgment in favor of the defendants. The trial court found that HM’s failure to (1) draft a durable POA in 1985, and (2) draft a valid trust in 1992, were not the legal cause of the plaintiffs’ alleged damages, in that the trust was invalid in any event, in that Clara’s POA did not explicitly authorize her attorney-in-fact to create a trust, as required by § 404.710.6. The trial court also rejected the appellants’ claim that HM was negligent for failing to open a conservatorship estate for Clara so that the assets that she owned with Donald could be divided to avoid paying estate taxes, stating:

There is no authority available to a conservator to change a protectee’s estate plan for the purpose of effectuating savings of federal estate taxes except as provided by § 475.094 RSMo. Then only in a very limited manner through the vehicle of gifting. This section is not authority to divide a protectee’s property with a spouse in order to take advantage of the unified credit thus avoiding federal estate taxes. Section 475.094 RSMo. would not permit a conservator to divide Clara Reece’s estate for federal estate tax purposes and the conservator is without authority to sever and divide her property otherwise pursuant to § 475.332 RSMo. Plaintiffs claim that Harold Miller was negligent in failing to create a conservatorship in order to save federal estate taxes in the estate of Clara M. Reece is without merit and fails.

In addition, the trial court found that DM was not HM’s principal or partner at the time that HM provided legal services to the Reeces.

This appeal followed.

Standard of Review

The standard of review in this court-tried legal malpractice case is set forth in Murphy v. Carrón, 536 S.W.2d 30, 32 (Mo. banc 1976). McRentals, Inc. v. Barber, 62 S.W.3d 684, 696 (Mo.App.2001). We will affirm the trial court’s judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. This court will set aside a judgment as against the weight of the evidence only if it firmly believes that the judgment is wrong. Doynov v. Doynov, 149 S.W.3d 917, 922 (Mo.App.2004). In our review of a court-tried case, we view the evidence, along with all reasonable inferences, in the light most favorable to the trial court’s judgment, and disregard all contrary evidence and inferences. McRentals, 62 S.W.3d at 696.

I.

In Point I, the appellants claim that the trial court erred in concluding that HM was not negligent in providing legal services to the Reeces, as alleged in their petition, because its finding in support thereof, that he exercised that degree of skill and diligence ordinarily exercised by an attorney under the same or similar circumstances, was against the weight of the evidence. Specifically, they claim that the trial court’s finding was wrong in that the evidence favorable to the trial court’s judgment and all reasonable inferences from that evidence leads to only one conclusion — that HM was negligent in one or more of the following respects: (1) in failing to draft a durable POA for Clara in 1985, in that this failure prevented Donald from acting on behalf of Clara in creating the Reeces’ revocable inter vivos trust in 1992 that would have allowed Clara’s estate to avoid federal estate taxes and probate expenses; (2) in failing to include in the trust documents all of the necessary provisions of an A/B trust, in that this failure caused the Reeces’ trust to fail with respect to avoiding the payment of federal estate taxes and probate expenses; and, (3) in failing to recognize that the Reeces’ trust was either invalid or was insufficient, in the foregoing respects, and thereafter, failing to open a conservatorship for Clara that would, pursuant to § 475.094, have protected her estate from being “substantially depleted” by the payment of federal estate taxes.

To succeed on a legal malpractice claim for negligence, the plaintiff must show: (1) an attorney-client relationship; (2) negligence; (3) damages; and, (4) a causal connection between the attorney’s negligence and the plaintiffs damages. Klemme v. Best, 941 S.W.2d 493, 495 (Mo. banc 1997). To establish that an attorney was negligent, a plaintiff must show that he failed to exercise that degree of skill and diligence ordinarily used under the same or similar circumstances by members of the legal profession. London v. Weitz-man, 884 S.W.2d 674, 677 (Mo.App.1994). In order to prove, damages and causation, the plaintiff must show that, “but for” the negligence of the attorney, the result of the underlying action or proceeding would have been different. Mogley v. Fleming, 11 S.W.3d 740, 747 (Mo.App.1999); Steward v. Goetz, 945 S.W.2d 520, 532 (Mo.App. 1997); Baldridge v. Lacks, 883 S.W.2d 947, 954 (Mo.App.1994). “The measure of damage would be the amount a client would have received ‘but for’ the attorney’s negligence.” Steward, 945 S.W.2d at 532.

The appellants alleged in their petition, in two counts, that HM was negligent in his estate planning for the Reeces-in that he failed to properly establish a trust for them or open a conservatorship for Clara, either of which would have avoided federal estate taxes and, in the case of the former, would have also avoided probate expenses for the decedent’s estate of Clara. In Count I, they alleged that HM was negligent with respect to creating the Reeces’ trust. In Count II, they alleged, in the alternative, that he was negligent for failing to recognize the infirmities in the creation of the trust and failing to open, in the alternative, a conservatorship to protect Clara’s estate, pursuant to § 475.094, from substantial depletion for the payment of federal estate taxes.

A. Count I — The Trust

In Count I, the appellants alleged that HM was negligent in establishing the Reeces’ trust in two respects: (1) in failing to draft a durable POA for Clara in 1985; and, (2) in failing to include in the trust declaration of 1992 all the necessary provisions of an A/B trust. They alleged that “but for” these failures, Clara’s estate would have paid less in federal estate taxes and probate expenses, in the amount of $205,486, resulting in a larger estate for the beneficiaries of Clara’s estate. In other words, the outcome of the underlying probate proceeding, with respect to the payment of federal estate taxes and probate expenses by Clara’s estate, would have been different, but for HM’s alleged negligence.

In alleging in Count I that HM was negligent for failing to draft a durable POA for Clara in 1985, the appellants contend that this act resulted in Donald’s not being able to act on Clara’s behalf in executing the Reeces’ trust in 1992 such that the trust was a nullity, ab initio, resulting in federal estate taxes and probate expenses. It is undisputed that had a valid trust been established in 1992, federal estate taxes and probate expenses could have been avoided by Clara’s estate. However, as we discuss, infra, the mere fact that HM failed to draft a durable POA, as opposed to a non-durable POA, did not cause the trust to. be void.

The record reflects that Donald approached HM about setting up a trust in the early summer of 1992. HM drafted the declaration of trust, which was executed on July 2, 1992. Donald executed the trust individually and on behalf of Clara as her attorney-in-fact, under the POA drafted in 1985. Although Clara had not been adjudicated as being disabled, as defined in § 475.010(4)(a), such that she could not manage her financial resources, the record indicates that there was reason to believe at the time that she was not competent to execute the declaration of trust on her own behalf.

The record reflects that in 1994, in a proceeding before the probate division of the Circuit Court of Dekalb County to determine title to the purported assets of the Reeces’ trust, the trust was declared void for the reason that Donald could not act under the 1985 POA to execute the trust declaration for Clara as her attorney-in-fact. See State ex rel. Ryan v. Ryan, 124 S.W.3d 512, 516 (Mo.App.2004) (holding that actions which exceed statutory authority are void ab initio and are a legal nullity). The probate court found that Donald did not have the authority to execute the declaration of trust for Clara as her attorney-in-fact under the 1985 POA because it was not a durable POA that survived her incapacitation, as found by the court. See § 486.560, RSMo.1986, (providing that “all acts done by an attorney in fact pursuant to a durable power of attorney prior to a judicial determination of disability or incapacity of the principal shall have the same effect ... as if the principal were competent and not disabled.”). In that regard, the appellants alleged in their petition that HM should have drafted a durable POA in 1985, which would have provided for the management of Clara’s affairs in the event of her future incapacity or disability, and that if he had, Donald would have been empowered to execute the trust for Clara in 1992 such that it would have been valid and federal estate taxes and probate expenses would have been avoided. In other words, they alleged that “but for” HM’s failure to draft a durable POA for Clara in 1985, the trust would have not failed and the outcome of the underlying probate proceeding, with respect to the payment of federal estate taxes and probate expenses by Clara’s estate, would have been different.

Even assuming, arguendo, that HM’s failure to draft a durable POA for Clara in 1985 fell below the required standard of care, the appellants’ claim would still fail in that they did not satisfy the “but for” test, or in other words, they did not show that HM’s failure to draft a durable POA, versus a non-durable POA, resulted in the damages claimed — the payment of federal estate taxes and probate expenses.

In 1989, the Durable Power of Attorney Act, §§ 486.550-.595, RSMo. Supp.1983, was repealed and enacted in lieu thereof was the Durable Power of Attorney Law of Missouri, §§ 404.700-.735. Section 404.710.6 of the durable power of attorney law provides, in pertinent part:

6. Any power of attorney, whether durable or not durable, and whether or not it grants general powers for all subjects and purposes or with respect to express subjects or purposes, shall be construed to grant power or authority to an attorney in fact to carry out any of the actions described in this subsection if the actions are expressly enumerated and authorized in the power of attorney. Any power of attorney may grant power of authority to an attorney in fact to carry out any of the following actions if the actions are expressly authorized in the power of attorney:
(1) To execute, amend or revoke any trust agreement;
(2) To fund with the principal’s assets any trust not created by the principal.

(Emphasis added.) Thus, under this statute, regardless of whether a POA is durable or non-durable, the attorney-in-fact is not authorized to act for the principal in establishing a trust with respect to the principal’s funds, unless a specific provision to that effect appears in the POA.

Pursuant to § 404.735.2, § 404.710.6 is made applicable to POAs executed prior to August 28, 1989. Hence, regardless of what the law was in 1985, when Clara’s POA was drafted and executed, as to the powers of an attorney-in-fact under a durable POA, based on the controlling law in 1992, when Donald executed the trust declaration for Clara, as her attorney-in-fact, the POA under which he acted, even if durable, had to include an express provision authorizing him to so act. Thus, even if HM had drafted a durable POA for Clara in 1985, as opposed to a non-durable POA, the Reeces’ trust would have still been declared invalid by the probate court in 1994, unless the POA included the trust authorization provision required by § 404.710.6. Hence, even if the appellants could establish that HM’s failure to draft a durable POA was negligent in some respect, they could not establish that “but for” this failure, the Reeces’ trust would have been found valid by the probate court in 1994, and Clara’s estate would have avoided federal estate taxes and probate expenses. Thus, the trial court was correct in denying the appellants’ legal malpractice claim based on HM’s drafting of a non-durable, rather than a durable POA for Clara in 1985, as alleged by the appellants.

Even if the appellants had alleged in their petition that HM was negligent for failing to amend Clara’s POA, prior to her incapacitation and the execution of the declaration of trust in 1992, to include a trust authorization provision, as required by § 404.710.6, their legal malpractice claim, based on a deficient POA, would still fail. Ravenhill, the appellants’ expert witness, testified that in his entire professional career, he could not recall ever seeing such a provision in a POA. Likewise, DM testified that he would discourage a client from seeking to include such a provision in a POA because such power was too broad and subject to abuse. Thus, even if the appellants had claimed that HM was negligent for failing to include a trust authorization provision in the POA, the evidence was sufficient for the trial court to find that HM was not negligent in failing to include such a provision. While the trial court found for the respondents on an alternate basis, we are to affirm on any basis supported by the record. Ballard v. Ballard, '77 -S.W.3d 112, 118 (Mo.App. 2002).

As noted, supra, in addition to alleging in Count I that HM was negligent for failing to draft a durable POA for Clara, the appellants also alleged that he was negligent for not including in the trust documents all the necessary provisions of an A/B trust. However, in light of the fact that the Reeces’ trust of 1992 was invalidly created, due to Donald’s lack of authority to act as to Clara, and was void, ab initio, the inclusion of such a provision would not have changed the result they decry, the invalidation of the trust and the failure to avoid federal estate taxes and probate expenses. Hence, the appellants could not and did not make a legal malpractice claim on that basis either.

B. Count II — The Conservatorship

In Count II of their petition, the appellants alleged, alternatively, that HM was negligent in failing to establish a conserva-torship for Clara in 1992, to allow the court, pursuant to § 475.094, to release her interests in property that she held jointly with Donald, once he knew or should have known that the trust had failed, as a means to avoid federal estate taxes. In that regard, the appellants contend that in preparing a durable POA for Donald in June of 1992, HM should have realized his mistakes in preparing Clara’s non-durable POA in 1985 and its resulting invalidation of the Reeces’ trust. And, from that, they argue that since Donald did not die until some eight weeks later, there was “ample time in which to apply for Letters of Con-servatorship for Clara and then proceed to divide the property under the authority of RSMo. § 475.094.” They claim that the trial court’s denial of their legal malpractice claim in this count was against the weight of the evidence.

To make a legal malpractice claim on the basis alleged in Count II of their petition, the appellants had to show, inter alia, that HM, in failing to recognize in June of 1992 that the Reeces’ trust had failed due to the limitations of Clara’s POA and failing thereafter to pursue a conser-vatorship for Clara so as to invoke the provision of § 475.094, allowing the court “to convey or release [her] contingent and expectant interests in property, including marital property rights and any right of survivorship incident to joint tenancy or tenancy by the entirety,” thereby avoiding the federal estate taxes sought to be avoided by the creation of the trust, failed to exercise that degree of skill and diligence ordinarily used under the same or similar circumstances by members of the legal profession. The trial court found that they had failed in that endeavor, and we agree.

Except in “clear and palpable” cases, expert testimony is required to establish a claim of legal malpractice. Baldridge, 883 S.W.2d at 954. From the record, we see nothing clear and palpable in determining whether HM, exercising the required standard of care, should have pursued the conservatorship route in 1992 in order to protect Clara’s estate from federal estate taxes. As we discuss, infra, there were numerous factual and legal issues left unresolved by the record from which to judge HM’s performance as to whether he should have counseled Donald to pursue a conservatorship for Clara and seek to invoke the federal-estate-tax-avoidance provisions of § 475.094.

Logically, HM could not be found negligent with respect to the failures charged in Count II unless the evidence demonstrates that the conservatorship route was a readily discernable and viable alternative to the creation of the Reeces’ trust to accomplish the apparent desired objective of avoiding federal estate taxes by Clara’s estate. Common sense dictates that counsel’s failure to engage in a futile act would not fall below the required standard of care. See Cline v. Teasdale, 142 S.W.3d 215, 220 (Mo.App.2004) (holding that, logically, an attorney is not negligent in failing to engage in a futile act). In that regard, it is not at all clear from the record that, even if HM had pursued the conservatorship route for Clara, this would have been a successful alternative to the trust route for avoiding federal estate taxes by virtue of the application of § 475.094.

Assuming, arguendo, that the record would support the fact that HM knew or should have known that the Reeces’ trust was infirm, from the record it is not at all clear that the § 475.094 alternative was viable and should have been pursued by HM acting competently under the circumstances. Moreover, it is not at all clear that “but for” HM’s failure to pursue this alternative, Clara’s estate would have avoided the federal estate taxes complained of by the appellants in their legal malpractice claim.

Section 475.094 reads:

If the court determines and enters a finding that a permanently totally mentally disabled protectee’s estate would be substantially depleted upon his death by the payment of federal estate taxes, the court is hereby empowered: to exercise or release powers of appointment, to change the beneficiaries and elect options under insurance and annuity policies, to make gifts to the natural objects of the protectee’s bounty, to convey or release his contingent and expectant interests in property including marital property rights and any right of surviv-orship incident to joint tenancy or tenancy by the entirety, to surrender insurance or annuity policies for their cash values, to exercise his right to an elective share in the estate of his deceased spouse, and to renounce any interest by testate or intestate succession or by inter vivos transfer, if such act or acts will not deplete the protectee’s estate so as to impair the ability to provide for the protectee’s foreseeable lifetime needs, and if such act will cause financial benefits to inure solely to the natural objects of the protectee’s bounty. Such act shall be undertaken by the court only to the extent that it will result in a substantial saving of federal estate tax for the estate of the disabled protectee upon his death.

(Emphasis added.) Thus, for § 475.094 to apply in support of the appellants’ legal malpractice claim, as alleged in Count II, they had to show, inter alia, that Clara, between June of 1992 and the time of Donald’s death some six weeks later, the critical time alleged by the appellants, would have been adjudicated as being “permanently totally mentally disabled.”

Letters of conservatorship of the estate may be issued for any person adjudged to be “disabled.” § 475.030.1. A “disabled person” is defined in § 475.010.4(a) as a person who is “[u]nable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that the person lacks ability to manage his financial resources[.]” (Emphasis added.) And, “[mjanage financial resources” means the ability to take:

those actions necessary to obtain, administer and dispose of real and personal property, intangible property, business property, benefits, income or any assets, or those actions necessary to prevent waste, loss or dissipation of property, or those actions necessary to provide for the care and support of such person or anyone legally dependent upon him by a person of ordinary skills and intelligence commensurate with his training and education^]

§ 475.010(11). The person petitioning to be appointed a conservator of an estate has the burden of proving a disability by clear and convincing evidence. § 475.075.7; Ryan v. Maddox, 112 S.W.3d 476, 481 (Mo.App.2003). Section 475.075.1 requires that a hearing be conducted in determining whether to grant letters of conservator-ship. Estate of Ewing v. Bryan, 883 S.W.2d 545, 547 (Mo.App.1994). The determination of whether to appoint a conservator is based on the respondent’s condition at the time of the hearing. In the Matter of Mitchell, 914 S.W.2d 844, 847 (Mo.App.1996).

In this case, Clara was adjudged to be totally disabled on September 13, 1993, and accordingly, Barbara Thiel, who was Clara’s sister, and Barbara’s husband Donald, were appointed her co-conservators. Thus, there is evidence in the record that on September 13, 1993, Clara had been found to be totally disabled. However, for § 475.094 to apply, in support of the appellants’ malpractice claim, as alleged in Count II, the evidence would have had to demonstrate that a court would have found Clara to be “permanently totally mentally disabled” in mid-1992. One could only speculate that having been found totally disabled in late 1993 that Clara would have been found to be “permanently totally mentally disabled” in mid-1992, for purposes of § 475.094.

It is significant that § 475.094 requires that the protectee be found to be “permanently totally mentally disabled,” rather than simply being found to be “totally disabled,” in order for the court to divest the protectee of assets to avoid federal estate taxes. Section 475.010.4(a) provides that a person is considered disabled for purposes of a conservatorship, as provided in § 475.030.1, for either a physical or mental condition, and there is no requirement that the condition be permanent. Hence, a person could be totally disabled and have a conservator appointed, pursuant to § 475.030.1, for a physical condition that was not permanent, such that § 474.094 would not apply. In providing a greater showing for purposes of § 475.094 than is required for a conservatorship, the legislature obviously recognized that the court should not be allowed to resort to the drastic step of permanently divesting a protectee of his assets, unless he is and will always be mentally unable to make reasoned decisions concerning his property.

In addition to the doubt that exists with respect to Clara’s adjudication as being “permanently totally mentally disabled” in mid-1992, doubt also exists, based on the record, as to the application of § 475.094, in any event, due to the various conditions precedent imposed by the statute in order for the court to divest the estate of assets, in the various ways enumerated, to avoid federal estate taxes. The court can only act for the protectee, under § 475.094, if the “protectee’s estate would be substantially depleted upon his death by the payment of federal estate taxes.” What constitutes “substantially depleted,” for purposes of § 475.094, has never been determined by the courts. Thus, some question as to that issue would have existed for HM at the time the appellants alleged he should have acted in creating a conservatorship for Clara to avoid federal estate taxes, pursuant to § 475.094.

In addition to the requirement of substantial depletion, § 475.094 requires, before the court can act in accordance therewith, a determination that the divestiture of assets “will not deplete the protectee’s estate so as to impair the ability to provide for the protectee’s foreseeable lifetime needs, and ... will cause financial benefits to inure solely to the natural objects of the protectee’s bounty.” The record is devoid of substantial evidence of either of these conditions precedent to allow a determination as to whether the § 475.094 route was a viable alternative that should have been pursued by HM, acting within the appropriate standard of care, in order to avoid federal estate taxes for Clara’s estate.

Given the lack of evidence in the record to find that the § 475.094 alternative was a clear and viable alternative for avoiding federal estate taxes, the appellants were compelled to produce expert testimony to demonstrate HM’s negligence in failing to pursue this alternative, Baldridge, 883 S.W.2d at 954 (stating that expert testimony is required in legal malpractice claims except in a “clear and palpable” case), which they failed to do. The appellants’ expert, Ravenhill, never concluded that, in not pursuing a conservatorship, HM failed to exercise that degree of skill and diligence ordinarily used under the same or similar circumstances. Moreover, from the record, it appears that the facts and the law would have prevented him from so testifying to any degree of professional certainty. Hence, the record simply does not support the appellants’ claim in this point that the trial court’s determination, that HM was not negligent in failing to pursue a conservatorship for Clara in order to avoid federal estate taxes, is against the weight of the evidence.

Point denied.

II.

In Point II, the appellants claim that the trial court erred in concluding that DM was not liable for HM’s negligence in providing legal services to the Reeces because the court’s finding, that HM, in providing legal services to the Reeces, was not acting as DM’s agent, was against the weight of the evidence. Specifically, they claim that the court’s finding was against the weight of the evidence in that it was conceded at trial that DM owned the offices shared by HM; the two shared a letterhead, libraries, office equipment, staff, and services; and DM received all the compensation paid by the Reeces for HM’s legal services. Given our resolution of Point I, supra, this point is moot. A claim of error is moot if resolution of the claim has no practical effect on the outcome of the appeal. Cline, 142 S.W.3d at 224.

Point denied.

Conclusion

The judgment of the Circuit Court of Daviess County, finding for the respondents on the appellants’ legal malpractice claim, is affirmed.

ELLIS and HOWARD, JJ., concur.

      . Harold L. Miller died on April 21, 1993. He is no relation to Day Miller.

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

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

      . This section was repealed in 1989.


author: PER CURIAM.

text:
    Ronnie G. DUNCAN, Respondent, v. DIRECTOR OF REVENUE, Appellant.
    No. ED 84797.
    Missouri Court of Appeals, Eastern District, Division Five.
    May 17, 2005.
    Stacy E. Yeung, Jefferson City, MO, for appellant.
    Patrick S. Flynn, Troy, MO, for respondent.
    Carl M. Ward, Chesterfield, MO, Co-counsel for respondent.
    Before GEORGE W. DRAPER III, C.J., CLIFFORD H. AHRENS, J. and GLENN A. NORTON, J.
   ORDER

PER CURIAM.

The Director of Revenue appeals the judgment reinstating Ronnie Duncan’s driving privileges, arguing that there was uncontroverted evidence to support a pri-ma facie case under section 577.041 RSMo 2000 that Duncan was arrested, that the arresting officer had reasonable grounds to believe that Duncan was driving while intoxicated and that Duncan refused to submit to a breath test. The Director claims that the trial court had no basis for finding that the arresting officer’s testimony lacked credibility and argues that we need not give that finding deference on appeal because the Director’s evidence was uncontroverted. Where, as here, the trial court has made a specific finding that it did not believe the testimony of the Director’s witness, we must defer to the trial court’s credibility determination even if that testimony is uncontroverted. Mathews v. Director of Revenue, 8 S.W.3d 237, 238 (Mo.App. E.D.1999); see also Hawk v. Director of Revenue, 943 S.W.2d 18, 22 (Mo.App. S.D.1997); Thurmond v. Director of Revenue, 759 S.W.2d 898, 899 (Mo.App. E.D.1988).

We have reviewed the parties’ briefs and the record on appeal, and no error of law appears. Deferring to the trial court’s credibility determination and construing the evidence favorably to the judgment, we find that the judgment is supported by substantial evidence and is not against the weight of the evidence. An extended opinion would have no precedential value. We affirm the judgment under Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Andy J. WATSON, Appellant.
    No. ED 84758.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 17, 2005.
    Michelle M. Rivera, St. Louis, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Leslie E. McNamara, Jefferson City, MO, for Respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN, J., and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Andy J. Watson appeals the judgment entered pursuant to the jury’s verdict finding him guilty of stealing, third offense. We have reviewed the briefs of the parties and the record on appeal and find no error of law. An extended opinion would have no precedential value. We have, however, provided the parties with a memorandum setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 30.25(b).


text:
    Rex GILMORE, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84704.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 17, 2005.
    Maleaner Harvey, St. Louis, MO, for Appellant.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Lacey R. Searfoss, Jefferson City, MO, for Respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN, J., and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Rex Gilmore appeals from the denial of his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. We have reviewed the briefs of the parties and the record on appeal and find no error of law. An extended opinion would have no precedential value. We have, however, provided the parties with a memorandum setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


text:
    Michael J. SAVAGE, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 84672.
    Missouri Court of Appeals, Eastern District, Division One.
    May 17, 2005.
    Maleaner Ryna Harvey, St. Louis, MO, for Appellant.
    Deborah Daniels, Alison K. Brown-co-counsel, Jefferson City, MO, for Respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Michael J. Savage (Movant) appeals from the denial of his Rule 24.035 motion after an evidentiary hearing. Movant contends that the motion court erred in denying his motion because he was denied effective assistance of counsel in that defense counsel misinformed him about his parole eligibility.

We have reviewed the briefs of the parties and the record on appeal and conclude that the motion court’s findings of fact and conclusions of law are not clearly erroneous. Rule 24.035(k). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).

      . All rale references are to Mo. R.Crim. P.2005, unless otherwise indicated.


author: PER CURIAM:

text:
    CITIBANK (SOUTH DAKOTA) N.A., Respondent, v. Gladys PARK, Appellant.
    No. WD 64644.
    Missouri Court of Appeals, Western District.
    May 17, 2005.
    Rehearing Denied June 28, 2005.
    David E. Herron, II, Kansas City, KS, for appellant.
    David E. Caviness, Kansas City, MO, for respondent.
    Before ROBERT G. ULRICH, Presiding Judge, JAMES M. SMART, JR., Judge and JOSEPH M. ELLIS, Judge.
   ORDER

PER CURIAM:

Gladys F. Parks appeals from a judgment entered in the Associate Division of the Circuit Court of Chariton County in favor of Citibank (South Dakota), N.A., in an action by Citibank to recover unpaid amounts owed on a credit card it had issued to Parks. 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:
    Lisa ROBISON, Employee/Appellant, v. TREASURER OF the STATE OF MISSOURI, as Custodian of the Second Injury Fund, Respondent.
    No. ED 85045.
    Missouri Court of Appeals, Eastern District, Division One.
    May 17, 2005.
    Robert Joseph Lenze, St. Louis, MO, for Appellant.
    Emily Rushing Kelly, Assistant Attorney General, St. Louis, MO, for Respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Lisa Robison appeals from a Final Award Denying Compensation (Final Award) of the Labor and Industrial Relations Commission (the Commission) affirming an Award and Decision of the Administrative Law Judge with the Division of Workers’ Compensation. We have reviewed the briefs of the parties and the record on appeal and conclude that the Final Award of the Commission is not contrary to the overwhelming weight of the evidence and thus is supported by competent and substantial evidence on the whole record. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-223 (Mo. banc 2003). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).


author: ROBERT G. DOWD, JR., Judge.

text:
    Tamara SKEWES, Appellant, v. MASTERCHEM INDUSTRIES, INC., Respondent.
    No. ED 85093.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 17, 2005.

      McCaine J. Zimmer, Hillsboro, MO, for appellant.
    Daniel J. Carpenter, St. Louis, MO, for respondent.
   ROBERT G. DOWD, JR., Judge.

Tamara Skewes (Plaintiff) appeals from the judgment dismissing her petition, without prejudice, based on forum non conve-niens. In her sole point, Plaintiff argues the trial court abused it discretion in granting the motion filed by Masterchem Industries, Inc. (Defendant) to dismiss her petition because the trial court erroneously applied the forum non conveniens standard. We find no abuse of discretion and affirm.

Plaintiff is a resident of Vancouver, British Columbia, Canada. Plaintiff alleged that while working in Canada as a painter for her employer, Edendale Restoration Limited, she was burned when a halogen lamp ignited vapors from a paint primer manufactured by Defendant. Plaintiff sustained serious injuries.

Plaintiff filed a one-count, products liability, failure-to-warn case against Defendant in the Circuit Court of Jefferson County, Missouri. Plaintiff sought compensatory and punitive damages. Defendant is a Missouri corporation with its principal place of business in Barnhart, Missouri, which is located in Jefferson County. Defendant filed a motion to dismiss Plaintiffs petition under the doctrine of forum non conveniens. After oral argument on the motion, the trial court granted Defendant’s motion to dismiss. Plaintiff filed a motion to reconsider. After oral argument, the trial court denied Plaintiff’s motion to reconsider. This appeal follows.

In her sole point, Plaintiff argues the trial court abused its discretion in granting Defendant’s motion to dismiss based on forum non conveniens because the trial court erroneously applied the forum non conveniens standard. We disagree.

The standard of review for granting a motion to dismiss under the doctrine of forum non conveniens is abuse of discretion. Acapolon Corp. v. Ralston Purina Co., 827 S.W.2d 189,192 (Mo. banc 1992). Under the abuse of discretion standard, the trial court’s decision must be affirmed unless the plaintiff can show the trial court’s ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Anglim v. Missouri Pacific R. Co., 832 S.W.2d 298, 303 (Mo. banc 1992). Furthermore, on review by this court, the decision of the trial court will not be disturbed if we find (1) the relevant factors weigh in favor of applying the doctrine of forum non conveniens, and (2) permitting the case to be tried in Missouri would lead to an injustice because such a trial would be oppressive to the defendant or impose an undue burden on Missouri courts. Id.

Here, the trial court did not abuse its discretion in dismissing the case under the doctrine of forum non conveniens. The Missouri Supreme Court case of Acapolon Corp. v. Ralston Purina Co. discusses the application of forum non conveniens in the foreign plaintiff/foreign injury context and is directly on point.

Acapolon involved a foreign plaintiff suing Ralston Purina, a resident of Missouri, in Missouri state court for damages arising out of allegedly defective shrimp feed that Ralston Purina sold to plaintiff for use in Guatemala. In discussing the substantial inconvenience element of forum non con-veniens, the court relied on the fact that the claim accrued in Guatemala, that many of the witnesses were there, that Guatemalan law would apply to the dispute, and that there was a great distance between Missouri and the site of the injury in Guatemala. Id. at 193. The court recognized that Ralston Purina was a Missouri resident sued in the City of St. Louis, its place of residence, but stated that “[t]he factor of residence of the defendant is not inevitably controlling,” given the other factors. Id. It thus affirmed the dismissal. Id.

In determining whether the doctrine of forum non conveniens should be applied, the trial court uses various factors including “place of accrual of the cause of action, location of witnesses, the residence of the parties, any nexus with the place of suit, the public factor of the convenience to and burden upon the court, and the availability to plaintiff of another court with jurisdiction of the cause of action which affords him a forum for his remedy.” Id. at 193 (citing State ex rel. Chicago, Rock Island & Pacific R.R. Co., 454 S.W.2d at 39). These factors are not exclusive and are only to be used by courts as a guideline in exercising their discretion to apply the doctrine of forum non conveniens. Anglim, 832 S.W.2d at 303. Although the trial court is not required to consider these “non-exclusive” factors, and the Missouri Supreme Court has held that it is improper “to catalogue the circumstances” supporting forum non conveniens dismissal (see Id.), the record below nevertheless indicates that all the factors were presented to the trial court and support dismissal based on forum non conveniens.

The first factor is the place of accrual of the cause of action. Under the first factor, Plaintiff argues that the cause of action for this case accrued in Missouri because that is where the product was designed and manufactured.

Procedurally, Acapolon and the instant case are identical in that they both involve (1) foreign plaintiffs; (2) suing Missouri residents; (3) in Missouri state courts (in their home counties); (4) for damages allegedly occurring in foreign countries; (5) arising out of the use of the defendants’ products sold abroad. Here, as shown by the numerous Canadian connections to this case, these factors likewise favor dismissal. Here, the accident occurred in Canada, all the witnesses to the accident, the accident scene, Plaintiff’s medical treatment, her employer and coworkers, and her damages were felt and incurred in Canada. Scene investigators, emergency responders, and insurance investigators were all located in Canada. In contrast, Plaintiffs only connection to Missouri is that the product was designed and manufactured in this state. Based on these facts, the trial court stated that “[i]t would, on the face of things, appear that for convenience of witnesses, and the availability of evidence, British Columbia, Canada, would be the more convenient forum.”

Additionally, the trial court properly found that Canadian law would apply and stated that “[ojbviously, it would be more convenient for their courts to apply their own substantive law, than for the Courts here in Missouri to apply British Columbia’s substantive law.” Under Missouri’s choice of law rules, the trial court found that Canadian law will apply to this case. Kennedy v. Dixon, 439 S.W.2d 173, 185 (Mo.l969)(holding that the rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship.) Here, based on the numerous Canadian connections to this case, the trial court correctly concluded that the law of the place of the accident controls and that Canadian law applies.

Plaintiff here did not contest the availability of a forum in Canada to hear this dispute. In fact, she specifically stated: “Plaintiffs (sic) admit that their case could be brought in another forum.” Moreover, Defendant has agreed to appear in Canada, to not contest jurisdiction, and to produce its witnesses and documents there. The record reveals that Canadian courts recognize product liability causes of action in cases such as this. In the trial court, Plaintiff presented an affidavit of a Canadian lawyer stating that a product liability claim is available under Canadian law.

The trial court did not abuse its discretion in dismissing the case in favor of a Canadian forum, which it found would be more familiar with Canadian substantive law and would reduce the burden on the Missouri court and on the parties’ private expenses. The trial court did not abuse its discretion in dismissing the Plaintiffs case based on the doctrine of forum non conve-niens. Point denied.

Judgment affirmed.

PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE, J., concur.

      . Upon this court’s direction, the trial court entered a judgment of dismissal and designated it as final for purposes of appeal.

      . We draw the parties’ attention to this court’s recent opinion in Natacha Chandler v. Multidata Systems International Corp., Inc., 163 S.W.3d 537, -, 2005 WL 1083801 (2005), which discusses forum non conveniens in a similar context. In Chandler, this court concluded that the trial court did not abuse its discretion in dismissing Plaintiffs’ petition for forum non conveniens on the basis that (1) Panama is an available forum; (2) Panama is an adequate forum; (3) there is no legal requirement that Defendants agree to be bound by the judgment of a foreign court before ordering dismissal; and (4) the forum non conveniens factors set forth in State ex rel. Chicago, Rock Island & Pacific R.R. Co. v. Riederer, 454 S.W.2d 36 (Mo. banc 1970) weigh in favor of dismissal.

      . We note that in Acapolon, the product was manufactured in Guatemala but designed in St. Louis, and Plaintiffs primary claim for recovery was based on products liability for the defective design of the shrimp feed. 827 S.W.2d at 192. Despite the fact that the product was designed in St. Louis, the court in Acapolon found Guatemala to be the more convenient forum. Id. at 194. The court held that "even when an American company manufactures an offending element in this country, the facts may not justify proceeding in an American forum.” Id. at 195.

      . Contrary to Plaintiffs assertion, under Missouri law, a cause of action accrues when and originates where damages are sustained and capable of ascertainment. Elmore, v. Owens-Illinois, Inc., 673 S.W.2d 434, 436 (Mo. banc 1984).


text:
    Kevin D. CALDWELL, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84647.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 17, 2005.
    Gwenda R. Robinson, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Trevor Bossert, Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Kevin Caldwell (“movant”) appeals from the judgment of the motion court denying his motion for post-conviction relief pursuant to Rule 29.15 after an evidentiary hearing. Movant contends that the motion court erred in denying his Rule 29.15 motion because his trial counsel was ineffective in that trial counsel told the jurors on voir dire that movant would “probably testify” and also disclosed on voir dire that movant had prior convictions that included convictions for burglary, and movant did not testify. Movant asserts that trial counsel’s actions were not justifiable as reasonable trial strategy and prejudiced him in that there is a reasonable probability that the jurors would have acquitted movant of rape, sodomy, and/or burglary but for those actions.

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).


author: GARY M. GAERTNER, SR., Presiding Judge.

text:
    Darrell L. BELL, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84591.
    Missouri Court of Appeals, Eastern District, Division One.
    May 17, 2005.
    Darrell L. Bell, Moberly, pro se.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Assistant Attorney General, Jefferson City, MO, for Respondent.
   GARY M. GAERTNER, SR., Presiding Judge.

Appellant, Darrell L. Bell (“Movant”), appeals from the judgment of the Circuit Court of Marion County denying his motion to re-open inquiry into abandonment by post-conviction counsel. In the underlying case, Movant entered a guilty plea to murder in the second degree, section 565.021 RSMo 2000. Movant was sentenced to life imprisonment. We affirm.

On November 11, 1993, Movant entered a guilty plea to murder in the second degree. Movant was sentenced to life imprisonment. In January of 1994, Movant filed a timely Rule 24.035 motion to vacate, set aside or correct the judgment or sentence. Counsel was appointed to represent Movant. In August of 1994, the motion court issued findings of fact and conclusions of law denying Movant’s 24.035 motion without an evidentiary hearing. On February 16, 2001, Movant filed a motion to re-open his 24.035 motion claiming he was abandoned by his post-conviction counsel. That motion was denied by the motion court for lack of jurisdiction. On February 25, 2004, Movant filed a motion to re-open inquiry into abandonment by post-conviction counsel claiming that the motion court did have jurisdiction to consider his claim of abandonment. The motion court denied the motion to re-open for lack of jurisdiction. This appeal followed.

In his only point on appeal, Movant claims the motion court erred in denying his motion to re-open inquiry into alleged abandonment by his post-conviction counsel.

Rule 24.035(a) provides, in pertinent part, that “[t]he procedure to be followed for motions filed pursuant to this Rule 24.035 is governed by the rules of civil procedure insofar as applicable.” Rule 24.035(a). Under Rule 75.01, within the Missouri Rules of Civil Procedure, a trial court is allowed to retain control over its judgments for a 30-day period after they are entered so that they may be, for good cause, vacated, re-opened, corrected, amended, or modified. Rule 75.01; State v. Lawrence, 139 S.W.3d 573, 576 (Mo.App. E.D.2004).

On February 22, 2001, the motion court dismissed Movant’s motion to re-open his 24.035 proceedings finding it lacked jurisdiction over the abandonment claim. No appeal was filed after the motion court entered its judgment. It was not until February 25, 2004, more than three years after the February 22, 2001 judgment, that Movant filed a motion to re-open inquiry into alleged abandonment by post-conviction counsel. The motion court denied the 2004 motion to re-open inquiry into abandonment for lack of jurisdiction.

The motion to re-open inquiry into abandonment, which attacked the motion court’s February 22, 2001 judgment, amounted to a Rule 75.01 motion. Because the Rule 75.01 motion was filed well after the 30-day period in which the trial court retained control over its 2001 judgment, it was untimely. Therefore, the motion court did not err in denying the motion to re-open inquiry into abandonment proceedings for lack of jurisdiction. Point denied.

Based on the foregoing, we affirm the judgment of the trial court.

SHERRI B. SULLIVAN and BOOKER T. SHAW, JJ., concur.


text:
    2030 DELMAR, L.L.C., Appellant, v. BOA CONSTRUCTION COMPANY, Respondent.
    No. ED 83243.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 17, 2005.
    Joseph K. Robbins, St. Louis, MO, for appellant.
    Brian E. McGovern, Chesterfield, MO, for respondent.
    Before CLIFFORD H. AHRENS, J., NANNETTE A. BAKER, J. and GLENN A. NORTON, J.
   ORDER

PER CURIAM.

2030 Delmar, L.L.C. sued Boa Construction Company for breach of contract. Following a bench trial, the court found the contract to be unenforceable because Boa entered into it under duress and, although Boa continued to work on the project, it did so under duress and did not ratify the contract. The court denied the LLC’s claim and awarded damages to Boa on its quantum, meruit counterclaim. The LLC appeals.

The LLC does not challenge the trial court’s findings or conclusions regarding duress, except to state, in its reply brief, that “Boa continued to work and ratified the contract after the alleged element of duress had been removed.” We do not consider arguments raised for the first time in a reply brief. Coyne v. Coyne, 17 S.W.3d 904, 906 (Mo.App. E.D.2000). Since we affirm the trial court’s conclusion that the contract was unenforceable on the basis of duress, the LLC’s arguments regarding the existence of consideration to support the contract and damages on his contract claim are moot.

We also find no merit in the LLC’s challenge to the amount that the trial court awarded Boa on its counterclaim. The LLC wholly fails to identify which of the charges listed in Boa’s itemization of damages were incorrect and has not included the exhibit containing that itemization in the record on appeal.

We have reviewed the parties’ briefs and the record on appeal and find no error of law. The judgment is supported by substantial evidence and is not against the weight of the evidence. An extended opinion would have no precedential value. The judgment is affirmed under Rule 84.16(b).