text:
    Clatte WILLIAMS, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84776.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 15, 2005.
    Gwenda R. Robinson, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Alison K Brown, Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Clattee Williams, Jr. (“movant”) appeals the judgment of the motion court denying his motion for post-conviction relief pursuant to Missouri Supreme Court Rule 29.15 on the merits without an evidentiary hearing. Movant claims that he was denied effective assistance of counsel because counsel failed to make a specific objection to the submission of the verdict directing instruction for the charge of second degree assault of a law enforcement officer.

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).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. David DEHART, Appellant.
    No. ED 83616.
    Missouri Court of Appeals, Eastern District, Division Two.
    March 15, 2005.
    Amanda R. Schehr, Assistant Public Defender, St. Louis, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

David Dehart (“Defendant”) appeals from the trial court’s judgment entered in the Circuit Court of the City of St. Louis upon his conviction by a jury of two counts of robbery in the first degree. In his appeal, Defendant alleges that the trial court erred when it overruled his trial attorney’s Motion for Judgment of Acquittal at the close of the State’s evidence and at the close of all evidence because the evidence was insufficient to prove beyond a reasonable doubt that Defendant was guilty of the first-degree robbery of a Church’s Chicken and a Shell Oil gas station.

We have reviewed the briefs of the parties and the record on appeal and no error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would have no precedential value. We have, however, provided a memorandum for the use of the parties only setting forth the reasons for our decision.

We affirm pursuant to Rule 30.25(b).


text:
    Sharon Marie SEELBACH, Respondent, v. Kevin Charles SEELBACH, Appellant.
    No. ED 84109.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 15, 2005.
    Mary Ann Weems, St. Louis, MO, for appellant.
    Sally Austin Mills, Clayton, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Kevin Charles Seelbach (“father”) appeals the judgment of the trial court modifying a decree of dissolution. Father claims the trial court erred in modifying custody because there was insufficient evidence of a substantial change of circumstances and such modification was not necessary for the welfare of the minor children. Additionally, father asserts error in the trial court’s award to Sharon Marie Seelbach (“mother”) of amounts for back child support, his portion of medical and dental bills for the minor children, a portion of her attorney’s fees, and a portion of the guardian ad litem fee. Father also argues that the trial court incorrectly credited mother with the amount of income she earned at the time of the dissolution in its Form 14 calculation.

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

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


text:
    Timmothy Scot KERSTING, a minor, by his Next Friend, Dean Thomas KERSTING, and Dean Thomas Kersting, Individually, Respondents, v. Catherine HERTSEL, n/k/a Catherine R. Magallanes, Appellant.
    No. ED 84115.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 15, 2005.
    Douglas R. Beach, St. Louis, MO, for appellant.
    Benicia Ann Baker-Livorsi, St. Charles, MO, for respondents.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN and MARY K. HOFF, JJ.
   ORDER

PER CURIAM.

Catherine Magallanes appeals from the judgment modifying a prior judgment of paternity and consent order. The trial court’s judgment is supported by substantial evidence and is not against the weight of the evidence. An opinion would have no precedential value. The parties have been provided with a memorandum for their information only setting forth the reasons for this order. The judgment is affirmed. Rule 84.16(b).


author: PATRICIA L. COHEN, Presiding Judge.

text:
    Corinna BARTON, Appellant, v. Larry D. BARTON, Respondent.
    No. ED 84158.
    Missouri Court of Appeals, Eastern District, Division Two.
    March 15, 2005.

      Mark S. Levitt, St. Louis, MO, for appellant.
    Timothy I. Nicholson, St. Louis, MO, for respondent.
   PATRICIA L. COHEN, Presiding Judge.

Introduction

Corinna Barton (“Wife”) appeals the trial court’s judgment dissolving her marriage to Larry Barton (“Husband”). Wife contends that because she proved her entitlement to maintenance pursuant to Section 452.335, R.S.Mo 2000, the trial court abused its discretion in failing to award her maintenance. We agree and, accordingly, reverse and remand.

Facts

Husband and Wife were married for approximately ten years. They have one child, born on December 21, 1994. The parties separated in March 2001. In July 2001, Wife filed a Petition for Dissolution of Marriage, in which she sought, inter alia, maintenance. Thereafter, Husband filed a Cross-Petition for Dissolution of Marriage.

The parties tried the matter in September 2003. At trial, Wife testified that she suffered from various medical conditions, including diabetes, arthritis, kidney failure, nerve loss in her hand, carpal tunnel, torn cartilage in her knee, irritable bowel syndrome, and problems with her colon and pancreas. Supporting her testimony, Wife produced a Social Security Administration Decision, dated July 30, 2002, which determined in relevant part that:

[Wife’s] impairments are juvenile onset diabetes, diabetic peripheral sensory neuropathy of the lower extremities, diabetic retinopathy with neoproliferation hemorrhages, diabetic autonomic neuro-pathy with gastroparesis confirmed on endoscopy, compressed fracture of T10, status post arthroscopic debridement of the left knee; and status post multiple laparotomies for relief of bowel obstructions.

The Social Security Administration found that Wife “has been unable to engage in any substantial gainful activity since August 1, 2000,” and “has been under a disability as defined by the Social Security Act and Regulations since August 1, 2000.” Wife testified at trial that she received $368.00 each month in Supplemental Security Income (SSI) benefits.

Husband testified that he started working at Daimler-Chrysler in 1998. Husband earned in excess of $50,000.00 a year during 1998, 1999, and 2000, and was making $960.00 per week at the time of trial. Husband’s living expenses were approximately $700.00 a month.

Wife testified to monthly living expenses of $1,700.00 at the time of trial. Wife included the following items as expenses: monthly mortgage and pad rental for the parties’ mobile home in the amount of $536.81, utilities, home repairs, homeowners’ and automobile insurance, monthly charitable contributions, clothes, medical costs not covered by insurance, and food.

Following trial, the trial court entered a Judgment and Decree of Dissolution. The trial court awarded Wife primary custody of the couple’s minor child and granted Husband temporary custody and visitation rights. Further, the trial court ordered Husband to pay $667.00 per month in child support, the cost of the child’s post-high school education, and to maintain medical insurance on the child. The court awarded Husband the benefit of any tax deductions for the child and ordered Husband to name the child as sole beneficiary of his term life insurance. The trial court denied Wife’s request for maintenance.

The trial court divided the marital property, awarding Wife the couple’s 1996 Plymouth Neon, $2,000.00 for her interest in the value of the New Horizon timeshare owned by the parties, and one-half the value of Respondent’s pension at Daimler-Chrysler. The trial court awarded Husband the 2003 Dodge pick-up truck and 1970 Dodge Dart he had purchased since separating from Wife, the New Horizon timeshare (upon Wife’s receipt of her interest), and one-half of the Daimler-Chrysler pension.

The trial court ordered the couple’s 1994 mobile home to remain titled in both parties’ names until the outstanding $21,374.89 mortgage was paid in full, with Husband responsible for the $250.81 monthly mortgage payment, insurance, and property taxes. The trial court further ordered Husband to pay Wife’s medical insurance for three years as provided for by COBRA, Wife’s attorney’s fees, and Guardian ad Litem fees in the amount of $1,500.00. Finally, the trial court ordered the parties to follow an agreement they had previously reached with respect to their tangible personal property. The trial court taxed the costs of the action against Wife.

Thereafter, Wife filed a Motion for New Trial or in the alternative to Revise Judgment and Decree of Dissolution with respect to the trial court’s denial of her request for maintenance. The trial court denied the motion and this appeal followed.

Standard of Review

We review a trial court’s denial or grant of maintenance for an abuse of discretion. Nichols v. Nichols, 14 S.W.3d 630, 635 (Mo.App. E.D.2000). We affirm the trial court’s judgment unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Chapman v. Chapman, 871 S.W.2d 123, 124 (Mo.App. E.D.1994).

Discussion

In her sole point on appeal, Wife contends that the trial court erred in denying her maintenance where she proved: (1) she lacks sufficient property to provide for her reasonable needs; (2) she is unable to support herself through appropriate employment; and (3) Husband is capable of providing support.

Husband counters that the trial court’s denial of maintenance was supported by the evidence. More specifically, Husband contends that Wife failed to show that she needs $1,700.00 in maintenance per month to meet her reasonable needs. Husband further argues that the trial court’s order benefited Wife because she received a tax-free award in the form of medical, mortgage, and child care expenses, and was therefore able to continue to receive SSI benefits which, according to Husband, she would lose if she received maintenance.

Section 452.335 R.S.Mo governs an award of maintenance and provides, in pertinent part, that:

In a proceeding for ... dissolution of marriage ..., the court may grant a maintenance order to either spouse, but only if it finds that the spouse seeking maintenance:
(1) Lacks sufficient property, including marital property apportioned to him to provide for his reasonable needs; and
(2) Is unable to support himself through appropriate employment....

The provisions of the statute establish a threshold test. Nichols, 14 S.W.3d at 636. The spouse seeking maintenance has the burden of establishing the statutory threshold requirements. Comninellis v. Comninellis, 147 S.W.3d 102, 106 (Mo.App. W.D.2004).

To determine whether the spouse seeking maintenance has met his or her burden with respect to the first statutory requirement, the trial court must consider the reasonable needs of the spouse seeking maintenance and then decide whether the spouse is able to meet those needs “through use of marital property or appropriate employment.” Breihan v. Breihan, 73 S.W.3d 771, 774 (Mo.App. E.D.2002). As the Western District has recently held, “ ‘reasonable needs’ is the standard for determining the expenses properly allowable to a spouse seeking maintenance.” Comninellis, 147 S.W.3d at 106. The marital standard of living serves as an “important guide” in computing the spouse’s reasonable needs, although it is not an exclusive factor. Brueggemann v. Brueggemann, 551 S.W.2d 853, 857 (Mo.App. E.D. banc 1977); see also Nichols, 14 S.W.3d at 636.

The trial court made no specific findings with respect to either Wife’s expenses or whether those expenses constituted “reasonable needs.” Although in the absence of findings, we presume the trial court resolved all factual conflicts in favor of the result reached, here, there are no factual conflicts. Comninellis, 147 S.W.3d at 107.

The record discloses that Wife claimed expenses in the aggregate amount of $1,739.31 per month. These expenses consisted of: $535.81 in rent or mortgage; $255.00 in utilities; $160.00 in gas and oil, maintenance, taxes and license fees for her automobile; $182.00 in insurance; $25.00 in church or charitable contributions, and $581.50 in other living expenses. Nothing in the record supports a finding that Wife’s claimed expenses did not constitute her “reasonable needs” for purposes of determining the appropriateness of maintenance.

Having determined Wife’s reasonable needs, the trial court is next required to ascertain whether she has sufficient property to meets those needs. In analyzing the sufficiency of the property, we are primarily concerned with whether any of the property is income-producing. Brueggemann, 551 S.W.2d at 857. The record reveals that the trial court awarded the following property to Wife: 1996 Plymouth Neon; $2000 interest in a timeshare, one-half the value of Husband’s pension, and the note payment on the mobile home. Clearly, none of this property is income-producing. Moreover, Wife is not required to deplete her assets or consume her marital property to obtain maintenance. Wallace v. Wallace, 839 S.W.2d 354, 357 (Mo.App. W.D.1992). Comparing Wife’s reasonable needs to the property she has available to meet those needs, it is clear that she lacks sufficient property to meet her reasonable needs. Thus, Wife has met the first statutory threshold requirement.

To meet the second statutory threshold requirement, the spouse seeking maintenance must prove that she is unable to support herself through appropriate employment. Comninellis, 147 S.W.3d at 106. There is no dispute that Wife is disabled as a result of numerous complications from juvenile diabetes. As a result of her disability, Wife receives a monthly income of $368.00 in SSI benefits.

The trial court specifically referred to Wife’s employability in the judgment and decree, noting that “[djoctors have stated that [Wife] has been unable to work since 1994 but this is contradicted by the fact [Wife] has had a job since then.” Even if Wife has had some employment since 1994, the relevant inquiry is whether the income from employment is capable of meeting Wife’s reasonable needs. See Wallace, 839 S.W.2d at 358. There is nothing in the record to support a finding that either Wife’s past employment or any available future employment is likely to meet Wife’s reasonable needs. Accordingly, Wife met the threshold requirements for an award of maintenance and the trial court abused its discretion in failing to so hold.

Where, as here, the threshold requirements for maintenance are met, the trial court is required to consider the factors enumerated in Section 452.335.2 to determine the amount and duration of maintenance. Hosack v. Hosack, 973 S.W.2d 863, 872 (Mo.App. W.D.1998). In this case, however, the trial court improperly employed factors designed to guide a determination of amount and duration as a justification for denying maintenance outright. See Wallace, 839 S.W.2d at 357 (“The factors in § 452.335.2, one of which is the spouse’s ability to pay, are only to be considei'ed after the court finds that the threshold test is satisfied and allows an award of maintenance.”) (emphasis added).

To the extent that the court attempted to balance the needs of Wife with the ability of Husband to pay, its analysis was flawed. In particular, the evidence at trial revealed that Husband earned in excess of $50,000.00 a year in 1998, 1999, and 2000 from his employment at Daimler-Chrysler, earned $960.00 per week at the time of trial, and lives with his mother. Husband’s claimed expenses were $700.00 per month. Nothing in the record supported a finding that Husband could not meet his needs while contributing to meet Wife’s needs.

Moreover, under the circumstances here, the trial court, in essence, improperly credited the child support award against Husband’s maintenance obligation. As this Court has held, “maintenance is for the needs of the recipient spouse; maintenance is not for child support.” Nichols, 14 S.W.3d at 637. Although Wife was careful to base her claimed expenses on her reasonable needs, as opposed to the needs of her child, the trial court counted the child support as funds available to Wife for support. Child support, however, is not considered income or a “tax-free benefit” to the spouse to be used to meet her reasonable needs.

This case is very similar to Wallace v. Wallace, supra. In Wallace, the wife’s sole income was welfare benefits. Although she had received social security disability benefits due to numerous health problems, her benefits had been discontinued at the time of the trial. The wife had no income-producing property and was awarded two older automobiles, miscellaneous household goods, and $4,600.00 in cash. The trial court disbelieved the wife’s evidence of physical and emotional problems and their effect on her employability. In determining that the trial court abused its discretion by denying the wife maintenance, the Court used language equally applicable here, “[w]hen the evidence is viewed in the light most favorable to the trial court’s decree, and Wife is assumed to be employable, there is no evidence to support a finding that Wife would be able to meet her reasonable needs through such employment.” Wallace, 839 S.W.2d at 358.

After determining that maintenance was appropriate, the Wallace Court next considered the factors set forth in Section 452.335.2. As in this case, the husband held a job at a manufacturing company. He earned $950.00 per month after taxes were deducted. Considering the husband’s ten-year history of gainful employment, the Court determined that “Husband’s present and past earnings are evidence of his ability to provide for his needs and the needs of Wife.” Wallace, 839 S.W.2d at 358. The Court also noted that the “gross and permanent disparity between the parties’ capacity to work and earn is justification for an award of maintenance.” Id. at 359.

The principles articulated in Wallace are applicable here. Wife had a long and documented history of significant disability. Husband had an equally long history of substantial employment. The evidence at trial clearly established that Wife was unable to meet her needs through employment or property and, therefore, was entitled to maintenance. Despite Wife’s entitlement to maintenance, the trial court failed to employ the enumerated factors in Section 452.335.2 in the context of Wife’s entitlement to maintenance. However, rather than calculate the amount and duration of maintenance pursuant to Section 452.335.2, we remand to the trial court for further proceedings.

Conclusion

The judgment is reversed and cause remanded to the circuit court for proceedings consistent with this opinion.

KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ„ Concur.

      . Husband claims the trial court committed plain error when it ordered him to name the couple's child as the sole beneficiary of his life insurance policy and when it ordered him to pay Wife’s medical expenses. However, we do not reach Husband's claims of error because they are not raised as a cross-appeal. See Omaha Indem. v. Pall, Inc., 817 S.W.2d 491, 499 (Mo.App. E.D.1991). Husband has filed a Request for Damages Based Upon Frivolity [sic] of Appeal Pursuant to Missouri Supreme Court Rule 84.19, which we deny.

      . To be eligible for SSI benefits, an individual must be aged, blind, or disabled and have income below a certain level. 42 U.S.C. Section 1382(a)(1).

      . Husband concedes in his brief that the record supports an award of maintenance to Wife in the amount of $1,000.00, $1,077.00, or even $1,400.00/month. Seemingly, in this Court, Husband apparently does not dispute Wife’s entitlement to maintenance, but rather disputes the appropriate amount.

      . These expenses do not include expenses specifically for the minor child.

      . With respect to the determination of the appropriate amount of maintenance, we acknowledge that, pursuant to 42 U.S.C. Section 1382(a), spousal maintenance payments may result in reduced SSI payments. However, SSI benefits are not awarded for the purpose of reducing a spouse’s maintenance obligation.


text:
    STATE of Missouri, Respondent, v. Kenneth J. BARRY, Appellant.
    No. ED 84465.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 15, 2005.
    Amanda R. Schehr, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Kenneth J. Barry (“defendant”) appeals the judgment on his conviction of one count of robbery in the second degree. Defendant claims that the trial court erred in granting the state’s request to strike a member of the venire for cause, and the trial court erred in admitting certain testimony at trial. Defendant also claims that the trial court erred in allowing the prosecutor to improperly comment on defendant’s failure to testify during the state’s closing argument.

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 30.25(b).


author: BOOKER T. SHAW, Judge.

text:
    Sherry WEBB, Respondent, v. DIRECTOR OF REVENUE, State of Missouri, Appellant.
    No. ED 83910.
    Missouri Court of Appeals, Eastern District, Division One.
    March 15, 2005.

      Jeremiah W. (Jay) Nixion, Atty. Gen., Cheryl Caponegro Nield, Jefferson City, MO, for appellant.
    Robert S. Adler, St. Louis, MO, for respondent.
   BOOKER T. SHAW, Judge.

The Director of Revenue (“the Director”) appeals from the trial court’s judgment reinstating the driving privileges of respondent, Sherry D. Webb (‘Webb”). The Director argues the trial court erred in reinstating Webb’s driving privileges because the Director established that Webb was arrested upon reasonable grounds to believe that she was driving a motor vehicle while intoxicated, and Webb refused to submit to a chemical test of her breath. Specifically, the Director argues that while Webb claims she received fifteen, and not twenty, minutes to attempt to contact her attorney, she never controverted the fact that she did not request an attorney before refusing to submit to a chemical test of her breath, which is necessary to trigger the twenty-minute rule under Section 577.041.1, RSMo 2000. We reverse and remand for the trial court to enter judgment consistent with this opinion.

At approximately 1:55 a.m. on February 18, 2002, William Keenan, an officer of the Maryland Heights Police Department, (“Officer Keenan”) observed a purple Pontiac Sunfire traveling west on Dorsett west of McKelvey. The driver made a left turn without signaling and drove into the parking lot of a closed business. The driver pulled into a parking spot and sat for ten to fifteen seconds, backed out of the parking spot, and drove in a circle around the parking lot. Officer Keenan stopped the vehicle as it approached the north exit of the parking lot.

The driver of the Sunfire identified herself by presenting a Missouri identification card, which indicated that her name was Sherry Webb. Webb told Officer Keenan that her driver’s license was in the trunk of the vehicle. Webb almost fell down as she exited the vehicle to retrieve her driver’s license from the trunk. She swayed as she walked and steadied herself by grabbing the vehicle’s fender. She had difficulty using her key to open the trunk. When she removed her purse from the trunk, she handed the entire purse to Officer Keenan rather than removing the driver’s license and handing it to him. Officer Keenan asked Webb to remove her driver’s license from her purse. Webb then told Officer Keenan that her driver’s license was suspended. Webb admitted she had been drinking and predicted that she “would be in trouble” because of previous experiences with the police.

Officer Keenan noted Webb’s breath smelled strongly of alcohol. Her eyes were watery, bloodshot, glassy, and staring. Her pupils were dilated and reacted poorly to light. Webb swayed, wobbled, fell, and had sagging knees when walking and turning. Her speech was slurred and confused, and she mumbled. Webb performed poorly on both the walk-and-turn and one-leg stand sobriety tests. Webb displayed a lack of balance and coordination and an inability to follow instructions.

Based on Officer Keenan’s observations, Officer Keenan believed Webb was intoxicated and arrested her for driving while intoxicated. Webb was then taken to the Maryland Heights police station by Officer Keenan. The Implied Consent form completed by Officer Keenan, which was admitted into evidence at the hearing, stated that Webb received the implied consent warning, declined to attempt to contact an attorney and refused to submit to a chemical test of her breath at 2:15 a.m. Officer Keenan then set up a breath testing instrument and printed a refusal ticket at 2:30 a.m.

At the revocation hearing, Webb was asked by her attorney, “And after [Officer Keenan] advised you of the Missouri Implied Consent Law, did he give you the full 20 minutes to contact an attorney?” Webb testified “no,” and that Officer Keenan gave her only fifteen minutes in which to contact her attorney. She further testified that although she was able to make contact with her previous attorney, she was not able to get in contact with her present attorney, Mr. Adler, and that she did not abandon her attempts to contact him.

The Director revoked Webb’s driving privileges for failure to submit to a chemical test of her breath. Webb sought review of this revocation, and a hearing before a commissioner was held on Webb’s petition. The commissioner filed a Notice of Findings and Recommendations of Commissioner, which the trial court endorsed when she entered a judgment for Webb finding “on 2-18-02, the arresting officer did not have probable cause to arrest [Webb] for driving while intoxicated or an alcohol related traffic offense; and [t]hat [Webb] did not refuse to submit to a chemical test of [her] breath.” The trial court ordered “[t]he administrative revocation arising out of the occurrence on 2-18-02 shall be removed from [Webb’s] driving record and [her] driving privileges be reinstated.” (emphasis in original). The Director appeals from this judgment.

The Director’s sole point on appeal asserts the trial court erred in reinstating Webb’s driving privileges because (1) the officer had probable cause to arrest Webb for driving while intoxicated; and (2) Webb refused to submit to a chemical test of her breath.

The trial court’s judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence or it erroneously declares or applies the law. Hinnah v. Director of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002). “However, in license revocation cases, a trial court is not free to disregard unequivocal and uncontradicted evidence that supports Director’s contention.” McCarthy v. Director of Revenue, 120 S.W.3d 760, 761 (Mo.App. E.D.2003). “Moreover, our standard of review does not permit us to disregard uncontroverted evidence supporting the fact that all elements of Director’s case were met.” Id.

The probable cause required for the revocation of a person’s driver’s license is the level of probable cause necessary to arrest a driver for an alcohol-related violation. Brown v. Director of Revenue, 85 S.W.3d 1, 4 (Mo. banc 2002). “That level of probable cause will exist ‘when a police officer observes an unusual or illegal operation of a motor vehicle and observes indi-cia of intoxication upon coming into contact with the motorist.’ ” Id. (citation omitted).

Here, Officer Keenan observed Webb engaging in an unusual and illegal operation of a motor vehicle when he saw her make a left turn without signaling, pull into the parking lot of a closed business, pull into a parking spot, sit in the parking spot for ten to fifteen seconds, back out of the parking spot, and drive in a circle around the parking spot. In addition, Officer Keenan observed several indicia of intoxication when he made contact with Webb. Webb admitted she had been drinking before Officer Keenan stopped her. Webb’s breath smelled of alcohol, her eyes were watery, bloodshot, glassy and staring; her pupils were dilated and reacted poorly to light. She walked in an unsteady fashion, her speech was slurred, confused and mumbling. The Director also presented evidence that Webb performed poorly on field sobriety tests. This is sufficient to warrant probable cause to arrest Webb for driving while intoxicated. See Roberts v. Wilson, 97 S.W.3d 487, 492-93 (Mo.App. W.D.2002).

A driver’s refusal to submit to a chemical test is governed by Section 577.041.1. A refusal to submit to a chemical test means declining on one’s own volition to take the test authorized by Section 577.020, when requested by an officer to do so. Id. at 493. “A qualified or conditional consent or refusal is considered a refusal for purposes of Section 577.041.4(3), except where a driver qualifies a refusal on his or her having an opportunity to contact an attorney.” Id. Section 577.041.1, provides:

If a person when requested to submit to any test allowed pursuant to [S]ection 577.020 requests to speak to an attorney, the person shall be granted twenty minutes in which to attempt to contact an attorney. If upon completion of the twenty-minute period the person continues to refuse to submit to any test, it shall be deemed a refusal.

In order to trigger this twenty-minute period for attempting to contact an attorney, the driver must request to speak to an attorney at the time the driver is asked by the officer to submit to a chemical test. Roberts, 97 S.W.3d at 493. If the driver asks to speak to an attorney after refusing to submit to the chemical test, however, the arresting officer need not give the driver twenty minutes to attempt to contact an attorney. Id.; Eckenrode v. Dir. of Revenue, 994 S.W.2d 583, 585 (Mo.App. S.D.1999).

Here, Webb argues that Officer Keenan failed to give her twenty minutes to contact an attorney. Webb, however, did not testify nor produce any evidence at the hearing that she requested to speak with an attorney before refusing to submit to the chemical test of her breath. The only evidence produced at the hearing indicated that Webb refused to submit to the test at the time Officer Keenan read her the implied consent warning and asked her to submit to the test. Because the request to contact an attorney triggers the twenty-minute rule under Section 577.041.1 when it is made at the same time the driver is asked to submit to the chemical test, Officer Keenan was not required to give Webb twenty minutes to attempt to contact an attorney. See Roberts, 97 S.W.3d at 493; Eckenrode, 994 S.W.2d at 585. Therefore, the trial court erred in finding Webb did not refuse to submit to the chemical test of her breath and reinstating her driving privileges.

We reverse and remand for the trial court to enter judgment consistent with this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

GARY M. GAERTNER, SR., P.J., and SHERRI B. SULLIVAN, J., Concurs.

      . All further statutory references are to RSMo 2000.


author: RONALD R. HOLLIGER, Judge.

text:
    STATE of Missouri, Respondent, v. Steven Ray MURPHY, Appellant.
    No. WD 63784.
    Missouri Court of Appeals, Western District.
    March 15, 2005.

      Ellen H. Flottman, State Public Defender Office, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Deborah Daniels, Office of Attorney General, Jefferson City, for respondent.
   RONALD R. HOLLIGER, Judge.

Steven Murphy was convicted of two counts of second degree burglary and two counts of stealing, following trial to the court. Murphy contends on appeal that the trial court erred in denying his motion to dismiss the charges against him because he was not brought to trial within the statutory deadline for resolution of the detainers lodged against him by Holt County. We reverse the judgment and sentence and remand for further proceedings.

Facts

Murphy was a prisoner in the custody of Kansas authorities in Ellsworth Correctional Facility. Murphy notified the Holt County Circuit Court and the Holt County Prosecutor of his desire to resolve his charges pursuant to the Interstate Agreement on Detainers, Section 217.490, RSMo 2000, on March 3, 2003. There were multiple Missouri counties with detainers lodged against Murphy, in addition to Holt County. Those counties included: Greene, Laclede, Andrew, Carroll, Webster, Pettis, Dallas, Ray, Barry, Clinton, and Cass County, some of which had as many as nine detainers lodged against Murphy. While Holt County had communicated with the Kansas authorities seeking temporary custody of Murphy, he was first sent by Kansas authorities to Greene County on April 3, 2003, to resolve the detainers there. He was then “loaned” from that county to a number of other Missouri counties (how many is not apparent upon the face of the record) to address the charges in those jurisdictions. For much of this time, Holt County was unable to locate Murphy. On at least one instance, Holt County officials received notice from a Missouri county where Murphy was being held, but he was transferred to another county before Holt county officials could place a hold on him. Greene County returned Murphy to Kansas authorities on September 24, 2003, and Holt County was unable to learn his whereabouts until October 2003. Holt County finally took custody of Murphy from Kansas on October 3, 2003.

On December 3, 2003, Murphy filed a motion seeking to dismiss the Holt County charges due to failure to resolve the charges against him within 180 days after county officials received his request for disposition of those charges. The trial court denied that request, finding that, based upon the number of other detainers filed against him in numerous counties, there was no practical way that the Holt County detainers could have been resolved within the statutory deadline. Based upon those circumstances, the trial court concluded that the State had established good cause why it could not bring Murphy to trial on the charges prior to expiration of that deadline.

Murphy was subsequently tried and convicted of two counts of burglary in the second degree and two counts of stealing. He was sentenced to concurrent terms of seven years’ imprisonment on all counts with the sentences consecutive to those from other counties. Murphy appeals.

Discussion

At the outset, we observe that Murphy’s argument before the trial court and in his opening brief on appeal is premised upon the Uniform Mandatory Disposition of Detainers Law (UMMDL), Section 217.450 et seq., RSMo 2000. That act, however, addresses the mechanisms by which a defendant incarcerated in Missouri custody can request disposition of charges lodged against him in other Missouri counties. Here, Murphy was not incarcerated in Missouri, but rather was in the custody of correctional authorities in the State of Kansas. As the State correctly indicates in its brief on appeal, the applicable statutory provision, therefore, was not the UMMDL, but was instead the Interstate Agreement on Detainers Act (IADA), Section 217.490, RSMo 2000. The State claims no prejudice and requests no relief because of counsel’s error. Rather it responds on the merits to Murphy’s motion as though it was brought under the terms of the IADA. Murphy, in his reply brief, requests that we overlook that error and consider his arguments as if they were made under the IADA. Although we would be justified in rejecting Murphy’s appeal for this error we decline to do so.

Murphy correctly points out that the IADA and UMDDL are closely related to each other. Numerous cases have stated that the two provisions are to be construed in harmony with each other. See, e.g., Dillard v. State, 931 S.W.2d 157, 165 (Mo.App.1996); State ex rel. Clark v. Long, 870 S.W.2d 932, 937 (Mo.App.1994). In some situations, cases construing one provision have been relied upon by cases interpreting the other provision. See, e.g., Meyer v. State, 854 S.W.2d 69, 71 (Mo.App.1993) (citing IADA cases concerning notice to prosecutor with regard to an appellant’s claim under the UMDDL). That said, the cases also recognize that the IADA and the UMDDL do not completely mirror each other. In fact, where the statutes differ, courts have resisted attempts to apply those differences from one act to the other. See Dillard, 931 S.W.2d at 165; Clark, 870 S.W.2d at 937. For example, the UMDDL expressly states that a violation of the UMDDL divests the trial court of jurisdiction, whereas the IADA does not contain a similar provision. Bruce v. State, 998 S.W.2d 91, 94 n. 3 (citing Ellsworth v. State, 964 S.W.2d 455, 456 (Mo.App.1998)).

We will, therefore, consider Murphy’s arguments, premised upon the UMDDL, as if they were made under IADA to the extent that the two provisions mirror each other. We do not, however, reach any grounds for relief that are specific to the IADA, as they have not been preserved for purposes of this appeal. With that determination, we proceed to the merits of Murphy’s appeal.

Pursuant to IADA, a prisoner incarcerated in one state (termed the “sending state”) may seek the disposition of a de-tainer lodged against him in another state (the “receiving state”). The prisoner initiates that process by sending written notice to the prosecuting official and the corresponding court of the jurisdiction in a second state (the “receiving state”), requesting final disposition of the indictment, information, or complaint upon which the detainer is based. Section 217.490, Article III, Subsection 1. The receiving state is then under an obligation to seek transfer of the defendant from the sending state, and then to resolve the criminal charges that are the basis of the retainer within 180 days after receipt of the notice.

"While the Interstate Agreement on De-tainers sets a deadline by which the State must bring a criminal defendant to trial following the defendant’s request to resolve the detainer placed on him, that deadline may be tolled under certain circumstances. For example, Article IV, Section 1 of the IADA provides that the running of the statute will be tolled for periods the court having jurisdiction determines that the defendant is unable to stand trial. State ex rel. Taylor v. McFarland, 675 S.W.2d 868, 871 (Mo.App.1984). The statue can also be tolled when the trial court, for good cause and with the defendant present in person or by counsel in open court, grants a reasonable or necessary continuance. Id. Courts have also held that IADA deadlines may be tolled when the delay in bringing the charge to trial is due to the defendant’s conduct, under the theory that the defendant cannot “manufacture a violation” of the statute and then obtain relief based on that violation. People v. Garner, 224 Cal.App.3d 1363, 274 Cal.Rptr. 298, 304 (1990).

In the proceedings below, Murphy had the initial burden to show that he had complied with the requirements of the IADA. State ex rel. Hammett v. McKenzie, 596 S.W.2d 53, 59 (Mo.App.1980). There appears to be no question that Murphy met his initial burden, here. Once that showing was made, the burden shifted to the State to produce evidence showing that the 180-day period was extended, either for good cause found in open court with the defendant present or as the result of the defendant’s unavailability for trial. Id. Here, the State only argues the latter exception, contending that the 180-day deadline was tolled due to Murphy’s inability to stand trial in Holt County while he was being held in other Missouri counties resolving charges in those other counties.

Murphy’s sole argument on appeal is that the trial court was required to dismiss the charges against him because there was no grant of a continuance in open court, with either him or his counsel present, prior to the expiration of the 180-day deadline. The State does not contend that the statutory deadline was tolled under the continuance provision of the IADA. Instead, the State takes the position that the running of the deadline was tolled from his initial delivery to Greene County until he was brought to Holt County. The State premises its argument upon Article VI of IADA which provides for tolling “whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter.” Section 217.490, Article IV, Subsection 1.

The State relies primarily upon State v. Mason, 679 S.W.2d 268 (Mo. banc 1984), which discusses a defendant’s unavailability, for purposes of tolling the 180-day deadline in the receiving state, while he is facing charges in another state. As a general proposition, that a defendant is being held in another jurisdiction (whether that jurisdiction is another state or the federal government) on pending criminal charges is typically sufficient to render the defendant unable to stand trial in the receiving state, thereby tolling the IADA. See State ex rel. Taylor v. McFarland, 675 S.W.2d 868, 872-73 (Mo.App.1984). “[A] prisoner is entitled to simultaneously request speedy dispositions in more than one jurisdiction and ... the time limitations are tolled while the prisoner is facing trial in another jurisdiction because the prisoner is unavailable for transfer to another jurisdiction while on trial.” Garner, 274 Cal.Rptr. at 304.

Here, we are not faced with unavailability caused by Murphy being held by another state. Instead, the argument is that he was unavailable because he was being held on charges pending in other Missouri counties. Missouri courts have not extended the principles behind State ex rel. Taylor and State v. Mason, however, to permit one county to toll the running of the statutory deadline while the defendant is facing charges in another county. While no Missouri case has directly broached the question of whether a defendant being held by one county is “unable to stand trial” for tolling purposes under the IADA, a related question was raised in State ex rel. Hammett v. McKenzie, 596 S.W.2d 53, 59 (Mo.App.1980). The specific question in Hammett was whether a defendant being held in another county constituted “good cause” for granting a continuance under Article III of IADA.

In Hammett, the defendant was brought to Missouri and was initially facing charges in Franklin County. Id. at 55. While those charges were pending, the defendant was transferred to St. Louis County to address charges arising there. Id. While it appears that the defendant was retransferred to Franklin County pri- or to the passage of the 180-day deadline under IADA, the charges against the defendant were not resolved within the remaining time under the Act. See id. The trial court denied the defendant’s motion to dismiss the Franklin County charges, at which point the defendant sought a writ of prohibition from the Eastern District, which was ultimately granted. Id. at 60.

Under Article III of IADA, a court may extend the deadline for disposing of the charges against a defendant by granting a continuance upon a showing of good cause in open court with the defendant present, either in person or by counsel. The State, in Hammett, argued on appeal that the defendant’s being held in custody in another county facing charges constituted “good cause” sufficient to support a continuance. Id. at 59. The Eastern District rejected this contention. While noting case law that supported a finding of good cause when the defendant was being held by another jurisdiction, the court declined to extend the rationales of those cases to situations where the defendant was being held in a different county in the same state. Id.

While the State ex rel. Hammett v. McKenzie opinion did not decide the issue of tolling under Article VI of the IADA, the court’s reasoning suggests that the mere fact that a defendant is held in another county in the same state does not render the defendant “unable to stand trial” for purposes of tolling the statute. Specifically, the opinion notes that a defendant held in another county in the same state is still subject to legal process within that state.

This type of situation is not unknown in other jurisdictions. In People v. Torres, 60 N.Y.2d 119, 468 N.Y.S.2d 606, 456 N.E.2d 497 (1983), the question was whether the deadline under IADA would be tolled regarding pending charges Queens County for an 84-day period during which the defendant was standing trial in Suffolk County. The State argued that the statute should have been tolled, as the defendant was unavailable to stand trial in Queens County during that period. Id. 468 N.Y.S.2d at 609, 456 N.E.2d at 500. The New York Court of Appeals disagreed, however, concluding that the statute was not tolled. That court relied on evidence in the record that intrastate rivalry and factionalism played a role in delaying the defendant’s return to Queens County, in that Suffolk County refused to comply with Queens County’s request to have the defendant shipped back to the latter county to stand trial prior to the end of the 180-day deadline. Id. 468 N.Y.S.2d at 610, 456 N.E.2d at 501. Another important factor appeared to concern the failure of Queens County authorities to seek enforcement of a court order directing transfer of the defendant to that county. Thus, the opinion appears to rest, at least in part, upon a determination that a showing that a defendant is unable to stand trial, based upon the defendant being held in custody in another county of the same state, cannot be made absent proof that diligent and thorough steps were taken by the appropriate official to secure the presence of the defendant.

Here, there has only been a showing that Murphy was being held in an unknown number of Missouri Counties during essentially all of the 180-day period from the date Murphy’s request for disposition was received by Holt County officials. The record is fairly opaque regarding the question of how much of Murphy’s initial period in Missouri was actually spent resolving charges in other counties. We do not know exactly what happened during Murphy’s initial transfer to Missouri. We do not know how many counties he was lent to for prosecution, nor how diligently each charge was pursued and disposed (whether by trial, plea, or dismissal). Most importantly, we do not know if there was any period of time that he would have been available for transfer to Holt County. There is also very little evidence regarding attempts by Holt County officials to secure Murphy’s transfer to that county to resolve the pending charges. The only evidence of any attempt to secure Murphy’s transfer to Holt County was one attempt to place a hold on him in Barry County that apparently arrived too late to be honored.

On the record before us, we find Hammett and Torres to be persuasive. However, we recognize that the unavailability issue was not adequately developed in the proceedings below, because Murphy raised his motion to dismiss under the UMDDL, which does not include an express provision similar to Article VI of IADA. Thus, the State could not have been expected to have developed a record on this issue. Therefore, we reverse the judgment and remand the matter to the trial court for a determination of whether dismissal of the charges against Murphy are required under IADA. If Murphy contends that there are other grounds for dismissal under IADA, those grounds should also be addressed by the trial court. Depending on its findings, the trial court shall either dismiss the charges against Murphy or accord him a second allocution, resentence him, and enter a new judgment. See State v. Carroll, 543 S.W.2d 48, 51 (Mo.App.1976).

HAROLD L. LOWENSTEIN, Presiding Judge, and JOSEPH M. ELLIS, Judge, concur.

      . We note, in passing, that the UMDDL permits some of these grounds for tolling, but does not contain others. Under the UMDDL the 180-day deadline may be extended: (1) for good cause shown in open court, (2) if the parties stipulate to a continuance, or (3) notice of a proposed continuance is provided to the defendant’s attorney and he is provided an opportunity to be heard. Section 217.460, RSMo. Unlike IADA, the UMDDL does not contain an express provision permitting tolling of the statute when the defendant is unable to stand trial.

      . “The terms of the agreement cause decisions of other states which are a party to the agreement to be particularly valuable in its construction." State v. Smith, 686 S.W.2d 543, 547 (Mo.App.1985).

      . The court did, however, conclude that the statute would be tolled for that portion of the 84-day period that constituted the period necessary for consideration and determination of the defendant’s omnibus motion. See Torres, 468 N.Y.S.2d 606, 456 N.E.2d at 501. It reversed and remanded for a determination of that period, and if that was not sufficient to bring the case within compliance of the IADA, then the charges against the defendant were to be dismissed. See id.

      .The Torres opinion also suggests that such steps would also be necessary to establish “good cause” for a continuance that would extend the IADA deadline. Id. 468 N.Y.S.2d at 610, 456 N.E.2d at 501.

      . While the Holt County Sheriff testified regarding some of the information available to his office concerning Murphy’s activities and whereabouts during his initial transfer to Missouri, that information was largely incomplete because the Sheriff's secretary handled those contacts and she had been out sick for three weeks prior to trial.


text:
    Kenneth VAUGHN, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 84242.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 15, 2005.
    Jo Ann Rotermund, St. Louis, MO, for appellant.
    Deborah Daniels, Shawn Naccarato (co-counsel), Jefferson City, MO, for respondent.

      Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J„ and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Kenneth Vaughn appeals from the judgment denying his Rule 24.035 motion for post-conviction relief without an evidentia-ry hearing. He alleged his plea counsel provided ineffective assistance by failing to adequately investigate two potential defenses.

Having reviewed the briefs of the parties and the record on appeal, we conclude the motion court did not clearly err. Rule 24.035(k). An extended opinion would have no precedential value. We have, however, provided the parties a memorandum setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


text:
    In the Matter of the Care and Treatment of James PURK, Appellant, v. STATE of Missouri, Respondent.
    No. WD 62361.
    Missouri Court of Appeals, Western District.
    March 22, 2005.
    Emmett D. Queener, Columbia, MO, for appellant.
    James R. Layton, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before HOWARD, P.J., ULRICH and BRECKENRIDGE, JJ.
   ORDER

PER CURIAM.

James Purk appeals the judgment of the probate division finding him to be a sexually violent predator and committing him to the custody of the Department of Mental Health. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The probate division’s judgment is affirmed. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Jeffrey MURRAY, Appellant.
    No. WD 62370.
    Missouri Court of Appeals, Western District.
    March 22, 2005.
    Rebecca Lynn Kurz, Appellate Defender and Frank Smith III, Co-Counsel, Kansas City, MO, for appellant.

      Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before EDWIN H. SMITH, C.J., HOLLIGER and HARDWICK, JJ.
   Order

PER CURIAM.

Jeffrey Murray appeals the judgment of his convictions, after a jury trial in the Circuit Court of Jackson County, of murder in the second degree, § 565.021; and armed criminal action (ACA), § 571.015. As a result of his convictions, he was sentenced to consecutive terms of life imprisonment in the Missouri Department of Corrections.

The appellant raises two points on appeal. In Point I, he claims that the trial court plainly erred in failing to exclude, sua sponte, evidence and closing argument concerning the victim’s good character because it was irrelevant and improper in that he did not put his character in issue in the case. In Point II, he claims that the trial court plainly erred in failing to exclude, sua sponte, evidence and closing argument concerning the appellant’s past treatment for behavioral problems because it was evidence and argument of uncharged bad acts that was neither legally nor logically relevant in that it was used to show that he “did not act in self-defense, but was acting in conformity with his as-saultive character.”

We affirm pursuant to Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Johnathan M. GAZAWAY, Appellant.
    No. WD 62994.
    Missouri Court of Appeals, Western District.
    March 22, 2005.
    Patrick W. Peters, Kansas City, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before HOWARD, P.J., ULRICH and BRECKENRIDGE, JJ.
   ORDER

PER CURIAM.

Johnathan M. Gazaway appeals his convictions and sentences for first degree assault, under section 565.050, RSMo 2000, armed criminal action, under section 571.015, RSMo 2000, and unlawful use of a weapon, under section 571.030.1(1), RSMo 2000. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment is affirmed. Rule 30.25(b).


author: JOSEPH M. ELLIS, Judge.

text:
    SD INVESTMENTS, INC., Respondent, v. MICHAEL-PAUL, L.L.C., Appellant.
    No. WD 63228.
    Missouri Court of Appeals, Western District.
    March 22, 2005.

      William M. Quitmeier, Kansas City, Mo, for appellant.
    Patrick J. Doran, Kansas City, Mo, for respondent.
    Before ROBERT G. ULRICH, Presiding Judge, JAMES M. SMART, JR., Judge and JOSEPH M. ELLIS, Judge.
   JOSEPH M. ELLIS, Judge.

On February 19, 1999, SD Investments, Inc. entered into a lease agreement with Michael-Paul, L.L.C. to rent a piece of commercial property located at 101 Southwest Boulevard in Kansas City, Missouri. The lease agreement contained a purchase option providing that, during the term of the lease, SD Investments had the option to purchase the building for $275,000.00 plus the costs of any improvements made to the property after April 1,1999.

On April 25, 2000, SD Investments sent a letter to Michael-Paul, notifying Michael-Paul of its intent to exercise the option to purchase the property on May 1, 2000. On May 2, 2000, an attorney representing SD Investments sent a letter to Michael-Paul stating that SD Investments had exercised its option to purchase the property. Subsequently, Michael-Paul refused to transfer ownership of the property to SD Investments and attempted to terminate the lease agreement.

On June 10, 2000, SD Investments filed its Petition for Equitable Relief and in the Alternative for Damages in the Circuit Court of Jackson County, Missouri. In that petition, SD Investments claimed Michael-Paul had breached the Lease Agreement by failing to honor the option clause and sought specific performance of that clause and/or a declaration of SD Investments’ rights under that clause. In its answer, Michael-Paul denied that SD Investments had any option to purchase the property or that it was capable of exercising any such option.

On June 21, 2000, Michael-Paul filed a Petition for Declaratory or Other Relief in the Circuit Court of Jackson County, asking the court to declare the lease invalid. Subsequently, the two petitions were consolidated into one case.

The trial court heard the matter on November 30, 2000. On January 24, 2001, the trial court entered judgment in favor of SD Investments. In relevant part, the court found that, pursuant to the lease agreement, SD Investments had a valid and enforceable option to purchase the property. The court concluded that SD Investments had properly exercised the option to purchase the property and further found that Michael-Paul’s refusal to accept SD Investments’ exercise of the purchase option constituted a breach of the lease agreement and that Michael-Paul thereby wrongfully prevented SD Investments from acquiring title to the property. The court ordered Michael-Paul to “transfer good and clear title” to the property to SD Investments and for SD Investments to pay the amount of $275,000.00 minus the amount of any rent payments that were paid to Michael-Paul after June 1, 2000.

This Court affirmed the trial court’s judgment on August 27, 2002. SD Invs., Inc. v. Michael-Paul, L.L.C., 90 S.W.3d 75, 86 (Mo.App. W.D.2002). After the Missouri Supreme Court denied transfer, this Court’s mandate issued on December 31, 2002.

On April 15, 2003, SD Investments filed a Motion to Enforce Judgment alleging that Michael-Paul was refusing to transfer good and clear title to the property as required by the judgment and was insisting upon merely providing SD Investments with a deed without making provision for existing liens and claims against the property. SD Investments asked the trial court to order Michael-Paul to transfer good and clear title to the property to SD Investments as required by the original judgment. SD Investments also asked the court to allow it a credit for the $4,000.00 security deposit that Michael-Paul was improperly refusing to return.

On April 24, 2003, Michael-Paul filed its “Cross-Motion to Enforce Judgment and Suggestions in Opposition to Plaintiffs Requests.” In that motion, Michael-Paul asserted that, under equitable and contract principles, SD Investments should be required to pay all of the property taxes that accrued after SD Investments exercised its option on April 25, 2000. Michael-Paul claimed that, because SD Investments was given a credit against its purchase price for the rent payments that had been made after April 25, 2000, and, therefore, enjoyed the use of the property rent-free, SD Investments should also bear the responsibility of paying the taxes on the property. Michael-Paul further asserted that SD Investments was obligated to pay 80% of the annual property taxes under the terms of the lease. For similar reasons, Michael-Paul asserted that SD Investments should be required to pay a special tax bill for sidewalk replacement that had been assessed against the property. Michael-Paul also claimed that the $4,000.00 security deposit that had been paid by SD Investments should be deemed to be nonrefundable and that SD Investments should not receive a credit for that amount.

The trial court heard argument on the parties’ motions on May 29, 2008. Subsequently, the trial court entered its “Order and Judgment” ordering enforcement of the prior judgment. The court noted that the parties had stipulated that SD Investments was entitled to a $48,000.00 credit against the purchase price for rent that was paid by SD Investments after April 25, 2000. In addition, the trial court found that the $4,000.00 security deposit was refundable under the terms of the lease and that SD Investments was entitled to a credit against the purchase price in that amount. Accordingly, the trial court found that SD Investments was entitled to a total credit of $52,000.00 against the purchase price for a net purchase price of $233,000.00. The trial court further found that its prior judgment required the transfer of good and clear title and that Michael-Paul was required to pay the property taxes that had been previously assessed against the property in order to comply with the court’s order because they were an encumbrance on the title. The trial court also ordered Michael-Paul to pay 40% of the special tax bill for sidewalk and curb improvements. Finally, the court ordered the parties to make all reasonable efforts to expedite the closing on the property, which, in the absence of exigent circumstances, was to occur within forty-five days of the filing of the order.

Michael-Paul appeals from that judgment, challenging the trial court’s determinations related to the property taxes and the special tax bill for sidewalks. Michael-Paul contends the trial court erred in ordering it to pay the property taxes and 40% of the special tax because principles of equity require that SD Investments make those payments after having been granted a credit for the rent it paid on the property.

Prior to addressing Michael-Paul’s claims, we must consider whether the trial court had subject matter jurisdiction over the issues raised in the parties’ motions. “Subject matter jurisdiction cannot be waived, nor can the parties by agreement confer subject matter jurisdiction upon the court.” Brady v. Pace, 108 S.W.3d 54, 61 n. 5 (Mo.App. S.D.2003). “Consequently, the question of subject matter jurisdiction can be raised at any time by the parties, or by this Court sua sponte.” Id.

In the case at bar, the trial court’s judgment became final and was affirmed by this Court on appeal. “Once a judgment becomes final under Rule 81.05, the trial court loses jurisdiction to entertain any further motions, unless another Rule provides otherwise.” Dangerfield v. City of Kansas City, 108 S.W.3d 769, 773 (Mo.App. W.D.2003). The parties have cited to no rule that would allow the trial court to regain jurisdiction over the judgment. “ ‘A judgment entered without jurisdiction is void.’ ” Schobert v. Pelfresne, 91 S.W.3d 692, 694 (Mo.App. S.D.2002) (quoting In re Marriage of Jeffery, 53 S.W.3d 173, 176 (Mo.App. E.D.2001)). Moreover, once this Court issues its mandate, the trial court only has the authority to alter its judgment to the extent that such authority has been granted to the trial court in this Court’s mandate. City of Excelsior Springs v. Elms Redevelopment Corp., 18 S.W.3d 61, 64 (Mo.App. W.D.2000).

In the case at bar, this Court did not even remand the matter back to the trial court. Thus, the judgment was final, and the trial court lacked any authority to alter its prior judgment or to entertain any new matters related to this case. “Any orders or adjudications in a cause subsequent to the mandate must be confined to those necessary to execute the judgment.” Howard Constr. Co. v. Teddy Woods Constr. Co., 844 S.W.2d 29, 30 (Mo.App. W.D.1992) (quoting City of St. Charles v. Schroeder, 510 S.W.2d 202, 203 (Mo.App. E.D.1974)); See also State ex rel. County of St. Charles v. City of St. Peters, 876 S.W.2d 46, 47-48 (Mo.App. W.D.1994).

In that vein, “ ‘[cjourts have inherent power to enforce their own judgments and should see to it that such judgments are enforced when they are called upon to do so.’” Multidata Sys. Int’l Corp. v. Zhu, 107 S.W.3d 334, 339 (Mo.App. E.D.2003) (quoting Lake Thunderbird Prop. Owners Ass’n, Inc. v. Lake Thunderbird, Inc., 680 S.W.2d 761, 763 (Mo.App. E.D.1984)). However, this power has significant limitations. “The trial court’s inherent enforcement power applies to the judgment as originally rendered; the trial court’s power to modify a judgment ceases when the judgment becomes final.” Missouri Hosp. Ass’n v. Air Conservation Comm’n of State of Missouri, 900 S.W.2d 263, 267 (Mo.App. W.D.1995). Thus, the trial court was precluded from altering, modifying, or changing its judgment, but it was not prevented from enforcing its judgment as originally entered. Zhu, 107 S.W.3d at 339.

With regard to the trial court’s order directing Michael-Paul to pay the property taxes, the trial court clearly had the authority to issue such an order in order to enforce its prior judgment. Under the original judgment, Michael-Paul was ordered to “transfer good and clear title” to SD Investments. “ ‘[G]ood record title,’ without words of limitation, means that the proper records shall show an un-incumbered, fee-simple title, the legal estate in fee, free and clear of all valid claims, liens, and incumbrances.” Black’s Law Dictionary 693 (6th ed.1990). Similarly, “clear title” means “[g]ood title; marketable title; one free from incum-brance, obstruction, burden, or limitation.” Black’s Law Dictionary 252 (6th ed.1990). Unpaid property taxes are an encumbrance against the property. See Beatty v. State Tax Comm’n, 912 S.W.2d 492, 497 (Mo. banc 1995); See also Black’s Law Dictionary 527 (6th ed.1990) (defining “encumbrance” to include accrued and unpaid taxes). The trial court properly found that, in order for good and clear title to be transferred to SD Investments, Michael-Paul had to pay the back taxes on the property, which were encumbering the title. Thus, in ordering Michael-Paul to pay the property taxes, the trial court was merely acting to enforce its prior judgment.

The trial court acting to enforce its prior judgment, however, had no authority to consider Michael-Paul’s newly raised claims that equity and/or the language of the lease required that the property taxes be paid by SD Investments. Thus, to the extent that the trial court’s judgment addressed Michael-Paul’s equitable and contract claims related to the property taxes, the trial court lacked subject matter jurisdiction over those claims, and that portion of the judgment is void. Christian Health Care of Springfield West Park, Inc. v. Little, 145 S.W.3d 44, 56 (Mo.App. S.D.2004).

We must next consider whether the trial court had the authority to order Michael-Paul to pay 40% of the special tax bill for sidewalk and curb improvements and SD Investments to pay 60% of the special tax bill. In its Cross-Motion to Enforce Judgment, Michael-Paul averred that “a special tax bill for sidewalk replacement ha[d] been issued against the subject property in the amount of $30,202.09.” That special tax bill resulted from the City of Kansas City, while the original appeal was pending, making repairs to the sidewalk adjacent to the property after neither the property owner nor the tenant complied with the City’s demand that the repairs be made. Michael-Paul asked the trial court to order SD Investments to pay the special tax bill, contending that SD Investments was responsible for the maintenance and repair of the sidewalks under the terms of the lease and had failed to timely make the repairs demanded by the City.

The special tax assessed against the property was referenced in the Title Commitment and constituted a burden against the title. Accordingly, the trial court had the authority to order Michael-Paul to pay the special tax bill in order to allow good and clear title to pass to SD Investments as provided in the trial court’s judgment. In so doing, the trial court was merely exercising its inherent power to enforce the judgment.

As was the case with the property taxes, however, the trial court lacked the authority to entertain Michael-Paul’s claims that SD Investments had a contractual and/or equitable obligation to pay the special tax. The trial court’s authority was limited to enforcing its judgment ordering Michael-Paul to convey good and clear title to the property to SD Investments. The trial court had no authority to consider who should be responsible for the payment of the special tax or to divide that obligation between the parties. These issues were not raised or litigated in the underlying action and were not referenced directly or indirectly in the judgment. Accordingly, the trial court erred in ordering SD Investments to pay a portion of the special tax and should merely have ordered Michael-Paul to satisfy that obligation in order to convey good and clear title to the property to SD Investments. To the extent that the trial court’s Order and Judgment addressed Michael-Paul’s claims, that portion of its judgment is void.

Moreover, all of the provisions of the judgment that are challenged by Michael-Paul on appeal relate to its contractual and equitable claims, over which the trial court lacked jurisdiction. This Court’s jurisdiction derives from the jurisdiction of the trial court, and if the trial court does not have jurisdiction to consider the merits of a claim, this Court lacks jurisdiction to consider an appeal therefrom. State ex rel. Pulliam v. Reine, 108 S.W.3d 148, 153 (Mo.App. W.D.2003); Schobert, 91 S.W.3d at 694. Because the circuit court lacked jurisdiction over the matters challenged by Michael-Paul on appeal, this Court lacks jurisdiction over those claims, and Michael-Paul’s appeal must be dismissed. Pulliam, 108 S.W.3d at 153.

In short, the trial court did not err in ordering Michael-Paul to pay the property taxes owed on the property in order to enforce its judgment requiring Michael-Paul to convey good and clear title to the property to SD Investments. To the extent the judgment addressed Michael-Paul’s contractual or equitable claims that SD Investments should pay some or all of those taxes, that portion of the judgment is void. Likewise, the trial court had the authority to order Michael-Paul to pay the special tax encumbering the property to enforce its prior judgment, but lacked any authority to consider Michael-Paul’s contractual and equitable claims that SD Investments should be responsible for paying that tax. Accordingly, the trial court should have simply ordered Michael-Paul to pay the special tax bill in order for Michael-Paul to provide good and clear title to the property to SD Investments, and the portion of its judgment addressing Michael-Paul’s contractual and equitable claims and ordering SD Investments to pay a portion of the special tax is void. We further note that, while the provisions of the trial court’s judgment related to the security deposit paid by SD Investments are not challenged on appeal, the trial court lacked jurisdiction to address those issues as well, and that portion of the judgment is also void.

In conclusion, the trial court lacked jurisdiction to take any action other than to enforce its original judgment. “Rule 84.14 permits the appellate court to enter the judgment that the trial court should have entered under the circumstances of the case.” Leone v. Leone, 917 S.W.2d 608, 612 (Mo.App. W.D.1996). We, therefore, exercise our discretion to modify the trial court’s judgment to reflect that Michael-Paul is obligated to pay all of the special tax bill in addition to all property taxes accrued prior to the date on which title is or was effectively transferred to SD Investments in order to provide SD Investments with good and clear title to the property as required by the trial court’s original judgment.

All concur.

      . In its brief, Michael-Paul notes that “[a]s a part of the appeal process, Appellant has conceded its liability for the deposit and the post-option rental payments, thereby condensing the issues in this case to that of the county real property taxes and the sidewalk assessment.”

        . Black’s Law Dictionary uses "incumbrance" and "encumbrance" interchangeably. Indeed, in defining "incumbrance", Black’s states, "See Encumbrance.” Black's Law Dictionary 768 (6th ed.1990). While we quote Black's as utilizing the "incumbrance" spelling, this Court will use the more widely recognized "encumbrance” spelling in this opinion where we are not quoting another source.

      . This Court offers no opinion as to whether the issues that Michael-Paul attempted to raise in its Cross-Motion to Enforce Judgment might properly be raised in a separate action. We merely hold that it was improper for the trial court to address those issues in exercising its power to enforce the judgment.

      . From the briefs, it appears that the parties may have settled this issue.


text:
    STATE of Missouri, Respondent, v. Ray A. JOHNSON, Appellant.
    No. WD 63927.
    Missouri Court of Appeals, Western District.
    March 22, 2005.
    Stephen Sherman Wyse, Columbia, MO, for appellant.
    Carol Ann England, Fulton, MO, for respondent.
    Before EDWIN H. SMITH, C.J., HOWARD and HOLLIGER, JJ.
   Order

PER CURIAM.

Appellant Ray A. Johnson (“Johnson”) appeals from a jury conviction in the Circuit Court of Callaway County for speeding in excess of 75 miles per hour in an area limited to 70 miles per hour in violation of Section 304.010 RSMo 2000. Johnson argues four points on appeal. In Point I, Johnson argues the trial court erred in overruling Johnson’s objection to Lieutenant Greg Word’s estimation of the distance between the speed blocks and Johnson’s speed. In Point II, Johnson Argues the trial court erred in overruling Johnson’s objection to the State’s question to Corporal Matthew Broniee on re-direct examination about the word “radar” written on the back of the citation issued to Johnson. In Point III, Johnson argues the trial court erred in overruling Johnson’s motion for judgment of acquittal because no reasonable juror could find that the State had proven Johnson’s guilt beyond a reasonable doubt. In Point IV, Johnson argues the trial court erred in sustaining the State’s objection to Johnson’s closing argument that the State had presented no reliable evidence that any road construction or re-marking of the temporary speed blocks may have occurred between the time of the citation and the time of measuring the distance between the speed blocks.

We have reviewed the parties’ briefs and the record on appeal. No error of law appears. A written opinion would serve no jurisprudential purpose. We have, however, prepared a memorandum for the use of the parties only, setting forth the reasons for our decision.

We affirm the judgment pursuant to Rule 30.25(b).


text:
    Victoria Ruth (Muller) BROCK, Appellant, v. Frederick J. MULLER, Respondent.
    No. WD 64482.
    Missouri Court of Appeals, Western District.
    March 22, 2005.
    Lawrence E. Kinnamon, Jr., St. Joseph, MO, for Appellant.
    Michael A. Insco, St. Joseph, MO, for Respondent.
    Before: PAUL M. SPINDEN, P.J., VICTOR C. HOWARD and THOMAS H. NEWTON, JJ.
   ORDER

PER CURIAM.

Ms. Victoria Ruth (Muller) Brock appeals the trial court’s judgment giving sole legal and physical custody of her six-year-old daughter to the child's father, Mr. Frederick J. Muller.

For the reasons set forth in the memorandum provided to the parties, we affirm the trial court’s judgment. Rule 84.16(b).


author: W. FRANK CRAWFORD, P.J., W.S.,

text:
    C. Dwight GRAHAM, et al. v. THE GENERAL SESSIONS COURT OF FRANKLIN COUNTY, et al.
    Court of Appeals of Tennessee, Western Section, at Nashville.
    Aug. 4, 2004 Session.
    Oct. 5, 2004.
    Joel H. Moseley, Sr., of Nashville, for Appellants C. Dwight Graham and Hucka-bee Bonding Company.
    Ben P. Lynch and Patrick Lynch of Winchester, for Appellees, The General Sessions Court of Franklin County, Tennessee, The Honorable Floyd D. Davis, and The Honorable Mike D. Foster.
   OPINION

W. FRANK CRAWFORD, P.J., W.S.,

delivered the opinion of the court,

in which DAVID R. FARMER, J. and HOLLY M. KIRBY, J., joined.

Professional bondsmen sued the general sessions court, the general sessions judge, and the sheriff, seeking a declaratory judgment that an order of the general sessions court concerning bonds for some offenses is invalid as contrary to the statutes of the State of Tennessee and the Tennessee Constitution. The trial court entered judgment for the defendants, and plaintiff appeals. We reverse.

The Appellants, G. Dwight Graham and Huckabee Bonding Company, Inc., are professional bonding companies certified and approved by the Circuit Court of the Twelfth Judicial District to act as surety on bail bonds pursuant to the provisions of Tenn.Code Ann. § 40-11-122(3). Appellants challenge a provision of a June 4, 2002 order by the Franklin County General Sessions Court decreeing that all bonds set by that court in the amount of $4400 or less shall be granted bond by the signature of two property owners living in Franklin County, Tennessee, and that property tax receipts and signatures of the parties shall be sufficient for release from custody. The Appellants contend this provision of the June 4, 2002 order is contrary to the statutory scheme and unconstitutional. Agreeing that the order is contrary to statute, we reverse the judgment of the trial court.

I. BACKGROUND

The facts from which this appeal arises are undisputed. On June 4, 2002, the General Sessions Court of Franklin County entered an order which reads, in relevant part, as follows:

ORDER
Upon oral request by two parties for a Habeas Corpus Petition for two persons in the Franklin County Jail in Winchester, Tennessee on June 2, 2002. One of these persons had two Franklin County property owners with sufficient net worth at Franklin County Jail to obtain their release and was refused by the Franklin County Sheriffs Department.
A second party was at the Franklin County Jail on June 2, 2002 with sufficient cash money to make a bond for a defendant and was likewise refused.
After reviewing T.C.A. 40-11-114 through T.C.A. 40-11-122, the Court finds that there is a tremendous amount of confusion concerning bonding procedures.
The Court further finds that it is impossible to determine from the information furnished to the General Sessions Court of Franklin County which of the bail bonding companies are on the approved list and are in good standing pursuant to T.C.A. 40-11-124 and T.C.A. 40-11-125, or the local rules of the court.
The Court does not receive information concerning conditional forfeitures, final forfeitures or the total amount of bonds outstanding on any bonding company.
It is therefore, ORDERED, JUDGED AND DECREED that the Sheriff and his employees of Franklin County Tennessee shall not accept a bond made by a professional bondsman until the Sheriff receives in writing from the Clerk’s Office of Franklin County a certificate that the bondsman is not in default pursuant to the bond approval statute and the local rules of court.
It is further ORDERED, JUDGED AND DECREED that all bonds set by the General Sessions Court of Franklin County in the amount of $4400 or less, shall be granted bond by the signature of two property owners living in Franklin County Tennessee. Property tax receipts and signatures of parties shall be sufficient for release from custody.
It is farther ORDERED, JUDGED AND DECREED that any defendant being held in Franklin County Jail may make a cash bond in the amount of the bond previously set and said defendant is to be released. Money may be paid directly to clerk’s office during normal business hours or to the sheriffs department after hours. Money to be receipted and accounted for according to Franklin County financial procedures.

Appellants contend that at least 49 defendants were released pursuant to the June 4 order, and they further allege that four of those defendants would have used one of the Appellants, C. Dwight Graham, as their bondsman in order to secure release from custody. Thus, the standing of the Appellants is based on the fact that “the June 4th Order resulted in the petitioners losing fees on bonds on which they otherwise would have acted as surety.”

On September 12, 2002, Appellants filed a complaint seeking declaratory judgment and relief from the challenged provision of the June 4th order. On June 20, 2003, Appellants filed a motion for summary judgment. After a hearing held July 22, 2003, their motion for summary judgment was denied by an order entered on August 19, 2003. On August 27, 2003, Appellants filed a motion to alter or amend the August 19 order. The court entered an Amended Final Judgment on September. 2, 2003. On September 11, 2003, Appellants filed their notice of appeal, and on September 18, 2003, they filed an amended notice of appeal.

II.ISSUE ON APPEAL

The sole issue on appeal in this case is whether the trial court erred in upholding the provision of the June 4, 2002 order of the Franklin County General Sessions Court ordering that “all bonds set by the General Sessions Court of Franklin County in the amount of $4400 or less, shall be granted bond by the signature of two property owners living in Franklin County Tennessee. Property tax receipts and signatures of parties shall be sufficient for release from custody.”

III.STANDARD OF REVIEW

This case presents only a question of law, and there are no disputed facts. As such, our review of the trial court’s order is de novo upon the record with no presumption of correctness accompanying the trial court’s conclusions of law. See Tenn. R. Appl. P. 13(d); Waldron v. Delffs, 988 S.W.2d 182, 184 (Tenn.Ct.App.1998); Sims v. Stewart, 973 S.W.2d 597, 599-600 (Tenn.Ct.App.1998).

IV.ANALYSIS

Appellants argue that when all the sections of the Release from Custody and Bail Reform Act of 1978 (“the Act”), T.C.A. §§ 40-11-101-40-11-144 (2003), are considered together, “a clear system or scheme emerges,” and that the June 4, 2002 order is contrary to this statutory scheme. The Appellants also contend that the June 4, 2002 order violates Article I, § 15, and Article II, § 31 of the Tennessee Constitution.

The court’s role in statutory interpretation is to ascertain and to effectuate the legislature’s intent. Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593 (Tenn.1999). In giving effect to the legislative intent, the court should not unduly restrict or expand the statute’s coverage beyond its intended scope. State v. Butler, 980 S.W.2d 359 (Tenn.1998). The legislative intent must be ascertained from the natural and ordinary meaning of the language used in the context of the entire statute without any forced or subtle construction which would extend or limit its meaning. State v. Butler, supra. “When the words of a statute are plain and unambiguous, the assumption is ‘that the legislature intended what it wrote and meant what it said.’ ” Worley v. Weigels, Inc., 919 S.W.2d 589, 593 (Tenn.1996)(quoting McClain v. Henry I. Siegel Co., 834 S.W.2d 295, 296 (Tenn.1992) (citations omitted)).

Before addressing the arguments of the Appellant, we will briefly review the provisions of this statutory scheme that are relevant to this appeal. The Act delineates the authority of general sessions judges and trial court judges to release defendants pending trial. All defendants, with the exception of capital defendants “where the proof is evident or the presumption great,” are bailable. (T.C.A. § 40-11-102). Defendants may be released upon their own recognizance, upon conditions of release, or upon admission to bail. (T.C.A. § 40-11-102). When bail has been set, any sheriff or magistrate, or any other officer with authority to admit the defendant to bail, may take bail and release the defendant. (T.C.A. § 40-11-106). It is the authority of the sheriff or judicial commissioner to determine the sufficiency of the surety and validity of any bond, and the sheriff or judicial commissioner’s decision to take bail or refuse to take bail is reviewed under an abuse of discretion standard. (T.C.A. § 40-11-106). A defendant may be released pending trial upon the defendant’s own recognizance if the appearance of the defendant can be reasonably assured, in light of several factors set out in the statute. (T.C.A. § 40-11-115). If the defendant does not qualify for release upon recognizance, the magistrate may place conditions upon release — “the least onerous conditions reasonably likely to assure the defendant’s appearance in court” — including releasing the defendant into the care of a qualified person or organization, imposing reasonable restrictions on the defendant’s activities, movements, associations and residences, or imposing any other reasonable restrictions including the deposit of bail. (T.C.A. § 40-11-116). If it is not shown that conditions on a release on recognizance will reasonably assure the defendant’s appearance as required, the magistrate shall require that bail be given in lieu of conditions of release. (T.C.A. § 40-11-117). A defendant may be released from custody upon deposit of a sum of cash equal to the amount of the bail established by the court. The statute provides factors to be considered in determining the amount at which bail should be set, which should be “as low as the court determines is necessary to reasonably assure the appearance of the defendant at trial,” including the length of defendant’s residence in the community, the defendant’s reputation, character, and mental condition, the defendant’s family ties and relationships, and other factors. (T.C.A. § 40-11-118). In lieu of a deposit of bail as provided in T.C.A. § 40-11-118, a defendant may execute a bail bond secured by:

(1) Real estate situated in this state with nonexempt unencumbered equity owned by the defendant or the defendant’s surety worth one and one-half (1½ ) times the amount of bail set. If the bail bond is secured by real estate, the defendant or the defendant’s surety shall execute a deed of trust conveying the real estate in trust to the clerk who shall immediately file the deed of trust in the office of the register of the county in which the real estate is situated. The costs of preparation of the deed of trust and recordation shall be paid by the defendant;
(2) A written undertaking signed by the defendant and at least two (2) sufficient sureties, and approved by the magistrate or officer. Such sureties under this section shall not be professional bondsmen or attorneys; or
(3) A solvent corporate surety or sureties or a professional bail bondsman as approved, qualified or regulated by §§ 40-11-101-40-11-144 and part 3 of this chapter. No bond shall be approved unless the surety thereon appears to be qualified.

T.C.A. § 40-11-122.

Although Appellants suggest a number of ways in which the June 4, 2002 order violates the statutory scheme, we will focus on two of those arguments, the first of which we find to be dispositive of this case, and the second of which we find illuminating as to the legislative intent behind T.C.A. § 40-11-101 et seq. First, Appellants contend that the June 4 order purports to take away the authority of the sheriff or judicial commissioner to determine the sufficiency of the surety, a power set out in T.C.A. § 40-ll-106(b)(l). The relevant part of the statute reads as follows:

§ 40-11-106. Officers taking bail; powers and duties; appeal and review
(b)(1) Under the provisions of this part, it is the responsibility of the sheriff or judicial commissioner to determine the sufficiency of the surety and validity of any bond, and once a sheriff or judicial commissioner has taken bail under the provisions of this subsection (b), such action shall be presumed to be valid. Once a sheriff or judicial commissioner has taken bail or' refused to take bail, the jurisdiction of the court having jurisdiction of the offense shall be limited to the issue of whether the sheriff or judicial commissioner has abused discretion. A surety which meets the requirements of § 40-11-122(1) or (2) shall be deemed sufficient if it is certified by the circuit court clerk of the county where the defendant resides to the sheriff, magistrate, or other appropriate officer in the county where the defendant was arrested, confined or legally surrendered.

We agree with the Appellants that the June 4, 2002 order is in derogation of the authority granted to the sheriff or judicial commissioner “to determine the sufficiency of the surety and validity of any bond.” The statutory scheme of T.C.A. § 40-11-101 et seq. clearly contemplates that while the judge or magistrate will determine whether defendants will be released upon their own recognizance, upon conditions, or upon admission to bail, it is within the authority of the sheriff or judicial commissioner to determine the sufficiency of a surety or validity of a bond. T.C.A. § 40-11-106. Although Appellees do not address the argument of Appellants concerning the application of T.C.A. § 40-11-106, we find this provision of the statute to be dispositive of this case. Under the unambiguous language of the statute, the discretion rests with the sheriff to determine the sufficiency of a surety. Under the June 4, 2002 order, the General Sessions court assumed a responsibility that properly rests with the sheriff or judicial commissioner. The blanket granting of appearance bonds by the General Sessions court, without the sheriffs or judicial commissioner’s discretionary determination of the sufficiency of a surety or the validity of the bond, directly contravenes the statutory language. We therefore find that the trial court erred in upholding this order.

While we find that T.C.A. § 40-11-106 is dispositive of this case, we will address a second argument of the Appellants because we find that it further illuminates the clear intent of the legislature in granting to sheriffs or judicial commissioners the authority for determining the sufficiency of sureties. Appellants contend that the order violates the statutory scheme by circumventing the statute’s restrictions (described in T.C.A. § 40-11-122 and T.C.A. § 40-11-123) on what kinds of security may be accepted, in lieu of a cash deposit, to execute a bail bond. The statutes prescribing the acceptable forms of security for bail bonds, and the qualifications of sureties, read, in relevant part, as follows:

40-11-122. Bail bond secured by real estate or sureties.—
In lieu of the bail deposit provided for in § 40-11-118, any defendant for whom bail has been set may execute a bail bond which may be secured as provided in this section. The bail bond may be secured by:
(1) Real estate situated in this state with nonexempt unencumbered equity owned by the defendant or the defendant’s surety worth one and one-half (1 ½ ) times the amount of bail set. If the bail bond is secured by real estate, the defendant or the defendant’s surety shall execute a deed of trust conveying the real estate in trust to the clerk who shall immediately file the deed of trust in the office of the register of the county in which the real estate is situated. The costs of preparation of the deed of trust and recordation shall be paid by the defendant;
(2) A written undertaking signed by the defendant and at least two (2) sufficient sureties, and approved by the magistrate or officer. Such sureties under this section shall not be professional bondsmen or attorneys; or
(3) A solvent corporate surety or sureties or a professional bail bondsman as approved, qualified or regulated by §§ 40-11-101-40-11-144 and part 3 of this chapter. No bond shall be approved unless the surety thereon appears to be qualified.
40-11-123. Sufficiency of sureties— Evidence.—
(a) Each of the sureties shall be worth the amount expressed in the undertaking, subject to the execution; but the court, magistrate or officer in taking bail may allow more than two (2) sureties to justify severally in amounts less than that expressed in the undertaking, if the whole qualification is equivalent to two (2) sufficient sureties.
(b) The district attorney general, or the court, magistrate or officer, may examine the sureties on oath touching their sufficiency, in such manner as the district attorney general, or the court, magistrate or officer may deem proper. The court or magistrate may also receive other testimony, either for or against the sufficiency of sureties.

Appellants correctly point out that only three classes of sureties are sanctioned by T.C.A. § 40-11-122: “(1) ‘solvent corporate surety or sureties,’ (2) an approved, qualified, or regulated ‘professional bail bondsman,’ and (3) ‘at least two (2) sufficient sureties’ who are ‘approved by the magistrate or officer.’ ” The use of the third class of sureties triggers the application of T.C.A. § 40-11-123, governing the sufficiency of sureties and the evidence for or against their sufficiency that may be taken. Appellees argue that the challenged order of June 4, 2002 does not violate T.C.A. § 40-11-123:

Although T.C.A. § 40-ll-123(a) does state that sureties shall be worth the amount expressed in the undertaking, T.C.A. § 40-ll-123(b) states that the manner in which the court determines the sufficiency of the surety can be accomplished in any way that the court deems proper. It appears from the natural and ordinary meaning of the statutory language that the court, magistrate, or officer has discretion in determining the manner in which the sufficiency of surety is proven.

The Appellees are mistaken in suggesting that T.C.A. § 40-11-123 allows the court to determine “the sufficiency of the surety ... in any way the court deems proper.” T.C.A. § 40-ll-123(a) sets out specific requirements for the worth of sureties whose signatures will secure the release of a defendant. The statute mandates that the sureties “shall be worth the amount expressed in the undertaking, subject to execution,” but that the court, magistrate or officer may allow more than two sureties to justify severally in amounts less than that expressed in the undertaking if the sum of their justifications “is equivalent to two (2) sufficient sureties.” T.C.A. § 40-ll-123(b) solely concerns the evidence that may be taken concerning the sufficiency of the surety, and does not purport to take away from the sheriff or judicial commissioner the discretion, granted in T.C.A. § 40 — 11—106(b)(1), to determine the sufficiency of the surety and validity of any bond pursuant to the statute. The provision of T.C.A. § 40-ll-123(a), to the effect that the sureties must be worth the amount of the undertaking, “subject to execution,” has a clear purpose: to ensure that, in the event of forfeiture, that the bail bonds will be collectible in the event of forfeiture. The summary process contemplated by the challenged order of June 4, 2002 would clearly not ensure that the bail bond would be collectible in the event of forfeiture. The signatures and property tax receipts of two property owners living in Franklin County would not ensure that the amount of the bail bond would be collectible. As the Appellants correctly point out, “[pjroperty ownership does not establish, in and of itself, that the surety is worth the amount of the bail bond. Mortgages, liens, unpaid property taxes, and debts to the state and federal government may completely eliminate all equity in the property.” The evidence heard in accordance with T.C.A. § 40-ll-123(b) would assist the sheriff or judicial commissioner in determining whether sureties are, in fact, worth the amount of the bail bonds for which they are providing security. The mere fact that T.C.A. § 40-ll-123(b) allows the court to hear evidence on the sufficiency of sureties, does not remove the function of determining the sufficiency of a surety from the discretion of the sheriff or judicial commissioner. Because the June 4, 2002 order purported to remove this function from the discretion of the sheriff or judicial commissioner, we find that the order violates T.C.A. § 40-11-101 et seq. In light of our decision on these statutory grounds, we pretermit any discussion of the issue of the constitutionality of the challenged order.

V. CONCLUSION

Finding that the challenged provision of the June 4, 2002 order violates the statutory scheme of T.C.A. § 40-11-101 et seq., we reverse the trial court’s final judgment denying the Appellants’ motion for summary judgment. Costs of this appeal are assessed to the Appellee, the General Sessions Court of Franklin County.

      . The other provisions of the June 4, 2002 order are not at issue in this appeal.