author: STEPHEN N. LIMBAUGH, JR., Judge. MICHAEL A. WOLFF, Chief Justice, RONNIE L. WHITE, Judge,

text:
    STATE ex rel. Michael SANDERS, Prosecuting Attorney of Jackson County, Relator, v. The Honorable Margaret L. SAUER, Respondent.
    No. SC 86955.
    Supreme Court of Missouri, En Banc.
    Jan. 31, 2006.

      Raoul C. Stitt, Michael D. Sanders, Office of Jackson County Prosecuting Attorney, Family Support Division, Kansas City, MO, for Relator.
    Edmund T. Shine, Office of the Public Defender, Kansas City, MO, for Respondent.
   Original Proceeding in Prohibition

STEPHEN N. LIMBAUGH, JR., Judge.

Relator, the prosecuting attorney of Jackson County, seeks a writ of prohibition preventing respondent from ordering a custodial parent and child to submit to genetic blood testing in a criminal nonsupport proceeding. This Court granted a preliminary writ, which is now made absolute. Mo. Const, art. V, sec. 4.

The facts of this case are not in dispute. In 1990, the Division of Family Services filed a “Petition for Declaration of Paternity” against Montae Perkins under the Uniform Parentage Act (UPA), secs. 210.817-.852, RSMo 1987. In that proceeding, Perkins signed an entry of appearance, waiver of service, and a “Stipulation Regarding Blood Tests,” in which he agreed to submit to blood testing to determine paternity. Perkins was notified of scheduled blood tests on four different occasions spanning eight months, but he failed to appear for any of the tests. Nor did he ever file an answer to the petition. On October 21, 1991, the court entered a default judgment declaring Perkins to be the father of the minor child. Perkins made no effort to set aside the default judgment or otherwise appeal.

On July 14, 2004, the relator charged Perkins with criminal nonsupport, a class A misdemeanor, alleging failure to provide legally obligated adequate support for his minor child, without good cause, between February 1, 2004, and June 80, 2004. On April 12, 2005, Perkins filed a “Motion for Disclosure of DNA of Custodial Parent and her Child for Good Cause Shown Pursuant to Supreme Court Rule 25.04.” Respondent sustained the motion and ordered the state to produce the custodial parent and child for DNA testing. Relator then filed the petition for writ of prohibition that is the subject of this action. Prohibition is the proper remedy “when a trial court makes an order in discovery that is an abuse of discretion.” State ex rel. Plank v. Koehr, 831 S.W.2d 926, 927-28 (Mo. banc 1992).

The criminal nonsupport statute, section 568.040, RSMo 2000, states in pertinent part:

[A] parent commits the crime of nonsupport if such parent knowingly fails to provide, without good cause, adequate support which such parent is legally obligated to provide for his child or stepchild who is not otherwise emancipated by operation of law....
(1) “Child” means any biological or adoptive child, or any child legitimated by legal process, or any child whose relationship to the defendant has been determined, by a court of law in a proceeding for dissolution or legal separation, to be that of child to parent, (emphasis added).

In the underlying prosecution, relator alleges that the child in question was Perkins’ child because she was “legitimated by legal process.” That phrase has no special definition under section 568.040, but it is clear that under the UPA, the 1990 proceedings involving the petition for declaration of paternity and the resulting judgment constituted a “legal process” that “legitimated” the child. To “legitimate” means “to make lawful; to confer legitimacy; e.g., to place a child born before marriage on the legal footing of those born in lawful wedlock.” Black’s Law DictionaRy 901 (6th ed. 1990). This was established by the judicial determination of the “parent and child relationship,” a term defined in section 210.817(4) as “the legal relationship existing between a child and his natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties, and obligations_” In other words, establishing the parent and child relationship operates to establish the legal relationship between them and does so to the same extent as if the child was born to or adopted by the parents. That is the very essence of legitimation. Indeed, that conclusion gives full effect to the mandate of section 210.841.1, which provides, “The judgment or order of the court determining the existence or nonexistence of the parent and child relationship is determinative for all purposes.”

Perkins does not contest that the child was “legitimated by legal process” under the UPA, but he argues instead that in a criminal prosecution for nonsupport the determination that the child was “legitimated by legal process” must be made on proof beyond a reasonable doubt, not proof that is based on a default judgment in a civil case. Apparently, Perkins demands proof beyond a reasonable doubt that Perkins is, in fact, the biological father of the child, and that in order to controvert the state’s proof on that point, he should be afforded the DNA testing that he now seeks. This argument, however, is based on a misperception of the elements of the crime.

The element in question is paternity. It is not that the defendant is the biological father of the child that matters, but whether the defendant is the father of the child because the child was “legitimated by legal process.” As such, the state need only prove beyond a reasonable doubt that a judgment was entered establishing that the child was “legitimated by legal process;” whether the defendant is truly the biological father of the child is irrelevant. See State ex rel. Dally v. Copeland, 986 S.W.2d 943 (Mo.App.1999) (applying same elements analysis under section 568.040 to civil judgment of paternity incident to a decree of dissolution); State ex rel. State of Missouri v. Campbell, 936 S.W.2d 585 (Mo.App.1996) (applying same analysis).

Furthermore, this case is no different than a number of other situations in which an individual is subject to criminal liability for violation of a civil order. See e.g. 302.321, RSMo (driving while license or driving privilege is canceled, suspended, or revoked is a class A misdemeanor) and 455.085, RSMo (violation of the terms of a civil protective order is a class A misdemeanor). In those cases, as here, the state need only prove the existence of the civil order and its violation beyond a reasonable doubt in order to convict the defendant; not that the underlying facts giving rise to the civil order are true beyond a reasonable doubt. See State v. Schleiermacher, 924 S.W.2d 269, 273 (Mo. banc 1996).

Ultimately, Perkins’ current inability to contest paternity is his own fault. He has blatantly ignored the procedures established by the General Assembly to contest paternity early on, and now, years later, he asks the Court to devise a new procedure to suit his convenience. This the Court will not do, especially where, as here, the result would be to de-legitimize a child.

Under these circumstances, this Court holds that it was an abuse of discretion to order DNA testing. The preliminary writ is made absolute.

STITH, PRICE and RUSSELL, JJ„ concur.

WOLFF, C.J., dissents in separate opinion filed; WHITE, J., concurs in opinion of WOLFF, C. J.

WHITE, J., dissents in separate opinion filed; TEITELMAJST, J., concurs in opinion of WHITE, J.

MICHAEL A. WOLFF, Chief Justice,

dissenting.

As much as I would like to hold the criminal defendant in this case to the 1991 judgment against him, I cannot do so without ignoring the law and the meaning of common English words in the criminal nonsupport statute.

The question is simple: does a judgment of paternity mean that a child has been “legitimated by legal process?”

For purposes of making nonsupport a crime, the statute, section 568.040.2(1) defines “child” as a biological or adopted child, or a child “legitimated by legal process,” or a child whose relationship to the parent has been established in a proceeding for separation or dissolution of marriage. The state’s case against this criminal defendant, Montae Perkins, depends entirely on interpreting the phrase “legitimated by legal process” to include paternity as established by a judgment under the Uniform Parentage Act, sec. 210.817 et seq.

Establishing paternity does not make a child “legitimate.”

“Legitimate,” by the ordinary dictionary definition, means that a child was born in wedlock. The statutory phrase includes a judicial determination of legitimacy, which also means that the child was born in wedlock or later determined to be have been born to a married couple.

It is true that the law has tended to remove the stigma of illegitimacy by treating illegitimate children the same as children born of a marriage. The treatment of illegitimate children the same as other children, for many purposes, does not establish that the definition of the word “legitimate” has been changed.

For example, under the Uniform Parentage Act, adopted by Missouri and relied upon by the principal opinion, “[t]he parent and child relationship extends equally to every child and every parent, regardless of the marital status of the parents.” Sec. 210.818. Likewise, the worker’s compensation statute treats children the same for benefits, “whether legitimate or illegitimate.” Sec. 287.240(4)(b). Similarly, legitimate and illegitimate children are treated the same in child custody laws. The terms of the child custody law “apply to children born out of wedlock and to children born in wedlock, and the terms ‘father and mother’, ‘parent’, ‘child’, shall apply without reference to whether a child was bom in lawful wedlock.” Sec. 452.160.

Traditionally, an illegitimate child could not inherit from the father. State ex rel. Canfield v. Porterfield, 222 Mo.App. 553, 292 S.W. 85, 86 (1927). From an early time, Missouri has treated an illegitimate child whose parents later married the same as a legitimate child for purposes of inheritance. Gates v. Seibert, 157 Mo. 254, 57 S.W. 1065, 1068 (1900); Simpson v. Blackburn, 414 S.W.2d 795, 797 (Mo.App.1967). This process, known as “legitimation by marriage,” is codified in section 474.070: “If a man, having by a woman a child or children, afterward intermarries with her and recognizes the child or children to be his, they are thereby legitimated.”

The probate code also has a process for determining paternity of illegitimate children. An illegitimate child is considered the child of the father, for probate purposes, if either: (1) the parents were married or attempted to marry either before or after the child’s birth; or (2) paternity is established “by an adjudication before the death of the father,” or after the father’s death by clear and convincing evidence. Sec. 474.060. In the probate context, a finding of paternity is sufficient to allow a child to inherit, but does not “legitimate” the child.

The distinction between legitimate and illegitimate children remains in effect as it relates to birth certificates. The state registrar is required to issue a new birth certificate “upon such evidence as required by the department proving that [a] person has been legitimated.” Sec. 193.135.1(2). The evidence required is proof of the parents’ marriage, either before or after birth. 19 CSR 10-10.120(1). Where this proof is unavailable, a “court-ordered legitimation” may be obtained, requiring a court to find that the parents were married. 19 CSR 10-10.120(2).

A review of these statutes and rules demonstrates that “legitimated by legal process” is not defined. However, “legitimate” generally means that the parents were married before, at the time of, or after the birth of the child. Although some of these statutes purport to grant the same rights to legitimate and illegitimate children, there is still a difference between them, as the terminology indicates.

In recent years, the equal treatment of illegitimate and legitimate children has been required by a series of decisions of the United States Supreme Court prohibiting discrimination against illegitimate children. See, Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968); Glona v. American Guarantee & Liab. Ins. Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968); Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977); Weber v. Aetna Cas. & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972). Most pertinently, in 1973, the Supreme Court directly addressed the issue of whether a father could avoid liability for support merely because the children were illegitimate. Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973), held that where a judicially enforceable right to support was granted to legitimate children, it must also be granted to illegitimate children. This Court reached the same position several years earlier, in R. v. R., 431 S.W.2d 152 (Mo.1968), holding that “illegitimate children [have] a right equal to that of legitimate children to require support by their fathers.” Id. at 154. None of these cases addresses the meaning of “legitimated by legal process,” as that phrase is used in the criminal nonsupport statute.

This is a criminal case. The rights vindicated are those of the state, not the child. The equal protection cases, cited above, do not dictate the result reached in the principal opinion because here there is no discrimination against the child.

Under the criminal nonsupport statute, the father of an illegitimate child is “criminally responsible for the support of the child,” as this Court observed in Cobb v. State Sec. Ins. Co., 576 S.W.2d 726, 734 (Mo. banc 1979). That is certainly true in this case. Perkins, the defendant in the trial court, can be held criminally responsible for nonsupport, if the state establishes that he is the biological father of the child.

In this case, however, the state wishes to bypass the task of establishing that Perkins is the biological father of the child and rely solely upon the 1991 judgment, by default, that Perkins is the father of the child. In doing so, the state relies on equating paternity with the statutory phrase “legitimated by legal process.” The 1991 judgment did not legitimate the child. It did establish a support obligation by deeming that Perkins is the father of this child. But when the state seeks a criminal conviction, it must prove the elements of the statute. It cannot rely upon the 1991 judgment for the proposition that the child has been “legitimated by legal process,” so the state must prove that the child is the biological offspring of Mr. Perkins.

Because the issue of biological paternity is something the state must prove, the principal opinion errs in foreclosing the trial judge from ordering DNA testing of the child. I therefore dissent.

RONNIE L. WHITE, Judge,

dissenting.

I concur in the dissenting opinion of Chief Justice Wolff. I write separately only to emphasize how important this case is because it presents a lethal threat to the constitutional fundamental right to liberty in the procedural context of leap-frogging from civil to criminal prosecutions.

The Court’s hyper-technical analysis of what constitutes adjudication of parentage for purposes of prosecuting someone for criminal non-support results, in essence, to the application of collateral estoppel to legal elements of a criminal offense from a determination made in civil dispute where the burden of proof shifts to beyond a reasonable doubt from preponderance of the evidence. I shudder at the logical extension of such a paradigm because it guts the traditional burden placed upon the State to prove the elements of any offense beyond a reasonable doubt. Shall we also eliminate the presumption of innocence?

“The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” “Our society’s belief, reinforced over the centuries, that all are innocent until the state has proved them to be guilty, like the companion principle that guilt must be proved beyond a reasonable doubt, is implicit in the concept of ordered liberty, and is established beyond legislative contravention in the Due Process Clause.” “[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the cíame with which he is charged.” As Justice Scalia has so appropriately emphasized, “[t]he Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense.”

While I staunchly support the public policy of protecting the children of this state, this Court should not forsake the Constitution in a rush to inflict a form of retribution that does absolutely nothing to provide any support for this child. The simplistic and practical solution is oft times obscured by attempts to expediently close the prison cell door. So I ask, with the fundamental rights of due process and liberty at stake, what is the harm of conducting a DNA test to confirm Mr. Perkin’s parentage beyond a reasonable doubt? Where is the harm in holding the State to its burden of proof? I see no abuse of discretion by the trial court. The fact that reasonable minds on this Court have differed proves the legal standard was not breached. I would quash the preliminary writ.

      . All references are to RSMo 2000 unless otherwise indicated.

      . As an adjective, “legitimate” means "lawfully begotten: born in wedlock: having full filial rights and obligations by birth.” As a verb, "legitimate” means "to put (a bastard) in the position or state of a legitimate child before the law by legal means (as the subsequent marriage of the parents).” Webster’s Third New International Dictionary (1993).

      . The State does not argue that the doctrine of issue preclusion — collateral estoppel — applies. That doctrine does not apply to an issue that has not been fully litigated. Oates v. Safeco Ins. Co. of America, 583 S.W.2d 713, 719 (Mo. banc 1979). The prior judgment, which was in essence a default, does not establish biological parentage for preclusion purposes.

      . Coffin v. United States, 156 U.S. 432, 453, 15 S.Ct. 394, 39 L.Ed. 481 (1895).

      . United States v. Salerno, 481 U.S. 739, 763, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (Justices Marshall and Brennan dissenting), citing to, Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288 (1937); Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Taylor v. Kentucky, 436 U.S. 478, 483, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978); Kentucky v. Whorton, 441 U.S. 786, 790, 99 S.Ct. 2088, 60 L.Ed.2d 640 (1979) (Stewart, L, dissenting).

      . Osborne v. Ohio, 495 U.S. 103, 123, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990).

      . Carella v. California, 491 U.S. 263, 265, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989).


source: Caselaw Access Project

author: PATRICIA L. COHEN, Presiding Judge.

license: Public Domain

text:
    Harold SCOTT, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84968.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 3, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 30, 2005.
    Case Transferred to Supreme Court Sept. 20, 2005.
    Case Retransferred to Court of Appeals Jan. 31, 2006.
    Original Opinion Reinstated Feb. 27, 2006.

      Irene C. Earns, Assistant Public Defender, Columbia, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
   PATRICIA L. COHEN, Presiding Judge.

Introduction

Harold Scott (“Movant”) appeals from the judgment of the Circuit Court of the City of St. Louis denying his Rule 29.15 Motion for Post-Conviction Relief. In his appeal, Movant argues that the motion court clearly erred when, without an evi-dentiary hearing, it failed to find that the attorney who represented him at his jury trial on the charge of two counts of first-degree robbery, one count of first-degree assault and three counts of armed criminal action, rendered ineffective assistance. Movant specifically contends that his trial counsel rendered ineffective assistance when counsel failed to demand race-neutral explanations from the State for using five of its six peremptory strikes to exclude African-American venirepersons. Because we hold that the determination of the motion court was not clearly erroneous, we affirm.

Statement of the Facts and Proceedings Below

Viewed in the light most favorable to the verdict, the evidence adduced at Movant’s trial establishes that on the evening on January 17, 1997, Michael Ely, a manager at a Taco Bell, planned to take store proceeds to the bank to make a deposit. In accordance with company procedure, Ely placed the money into a “to go” bag and gave it to the drive-thru attendant.

Following Taco Bell’s standard security procedure, Ely drove his truck through the drive-thru line so as to appear to be a typical customer. When he got to the drive-thru window, the drive-thru attendant gave Ely the deposit concealed in the “to go” bag. As Ely drove through the drive-thru exit, a black Ford Tempo blocked his way. Movant approached Ely’s car wearing a ski mask and carrying a gun and demanded the deposit bag. When Ely handed over the money, Movant got into the Tempo and sped off.

On April 21, 1997, Movant, and two accomplices prepared to rob Ely a second time. At approximately 9:40 a.m., Ely prepared a deposit, left the restaurant, got in his car, drove through the drive-thru and collected the deposit. Again, when Ely began to exit the drive-thru lane, he saw the same black Ford Tempo blocking the exit. Realizing that a second robbery was about to occur, Ely jumped his car over the curb of the drive-thru lane. When Ely’s car stopped, Movant approached with his gun drawn. Ely’s foot slipped off the brake and, as the car moved toward Movant, Movant fired his gun into the driver side window of Ely’s car. Mov-ant demanded the money, but Ely’s lower body had gone numb and he told Movant he could not move. Movant opened the door and took the deposit money from Ely and got into the Ford Tempo and fled the scene.

On April 29, 1997, investigators traced the Ford Tempo to Movant’s girlfriend who gave police permission to search her house. Police found a gun and ski mask in the trash can. Movant’s girlfriend told the police that both items belonged to Movant and police subsequently arrested Movant on May 8, 1997. Upon arrest, Movant admitted he was involved in both robberies.

Movant, an African-American, was charged with two counts of first-degree robbery, one count of first-degree assault and three counts of armed criminal action. Movant went to trial in August 1998. In the course of selecting the jury, the State used five of its six peremptory challenges to strike African-Americans from the panel. After the parties made strikes for cause, the panel consisted of fourteen African-Americans, nineteen Caucasians and one Asian. Following peremptory strikes the jury consisted of four African-Americans, nine Caucasians and one Asian. Movant’s trial counsel did not raise a Bat- son challenge.

At the close of testimony, the jury found Movant guilty of all charges and the trial judge sentenced Movant to six concurrent terms of thirty years’ imprisonment. We affirmed Movant’s conviction on direct appeal in State v. Scott, 9 S.W.3d 624 (Mo.App. E.D.1999).

Movant filed a Rule 29.15 Motion for Post-Conviction Relief and, years later, appointed counsel filed an Amended Motion for Post-Conviction Relief and request for an evidentiary hearing alleging, in pertinent part, that counsel was ineffective for failing to require the State to show race-neutral explanations when it used five of its six peremptory strikes to strike five African-Americans from the panel. The motion court denied Movant’s Rule 29.15 motion, without an evidentiary hearing finding, inter alia: Movant did not have standing to challenge the State’s exclusion of certain African-American venirepersons because Batson issues are beyond the scope of a Rule 29.15 motion; and Movant did not suffer a violation of his constitutional rights because the jury consisted of several African-American jurors. This appeal followed.

Standard of Review

Our review of the motion court’s denial of post-conviction relief is limited to a determination of whether the motion court clearly erred in finding that counsel was not ineffective. Helmig v. State, 42 S.W.3d 658, 665-66 (Mo.App. E.D.2001). To prove ineffective assistance of counsel, Movant must demonstrate that: (1) counsel’s performance failed to conform to the degree of skill, care and diligence of a reasonably competent attorney, and (2) Movant was prejudiced by counsel’s poor performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Deck v. State, 68 S.W.3d 418, 425 (Mo. banc 2002).

Satisfaction of the first prong of the Strickland test requires Movant to overcome a presumption that the challenged action constituted sound trial strategy. State v. Hall, 982 S.W.2d 675, 680 (Mo. banc 1998). The second Strickland prong necessitates that Movant “show a reasonably probability that, but for counsel’s errors, the result of the proceeding would have been different.” Id. If Movant fails to prove either prong of the Strickland test, we need not consider the remaining prong. Buckner v. State, 35 S.W.3d 417, 420 (Mo.App. W.D.2000).

Discussion

In his sole point, Movant alleges that the motion court erred when it denied his request for an evidentiary hearing and refused to find trial counsel ineffective for failing to demand race-neutral explanations from the State for using five of its six peremptory strikes to exclude African-American venirepersons. In response, the State contends that Movant: (1) failed to plead facts warranting relief; and (2) failed to establish that there was a reasonable probability that but for counsel’s failure to raise the Batson challenges, the outcome of trial would have been different.

As a preliminary matter, we note that claims that trial counsel was ineffective for failing to raise a Batson challenge at trial are cognizable in a Rule 29.15 motion. See State v. Harris, 908 S.W.2d 912, 916 (Mo.App. E.D.1995). Indeed, this court has previously found that, “[fjailure to object to improper jury selection methods could in a proper case constitute ineffective assistance of counsel affecting the fairness of a criminal trial.” State v. Loazia, 829 S.W.2d 558, 569-70 (Mo.App. E.D.1992), citing Kirk v. State, 778 S.W.2d 661, 662 (Mo.App. E.D.1989). It is well-settled that post-conviction relief based on ineffective assistance of counsel is limited to errors which prejudiced a movant by denying that movant the right to a fair trial. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Accordingly, a motion for post-conviction relief based on ineffective assistance of counsel for failing to object to improper jury selection methods is reviewable as long as the movant alleges that counsel’s failure to object affected the fairness of his trial, as opposed to merely alleging that counsel’s inaction precluded his right to appeal. Kirk, 778 S.W.2d at 662.

In this case, Movant cannot succeed in his motion for post-conviction relief not because he improperly challenges his counsel’s failure at trial to object to jury selection on grounds of Batson, but rather because, under the facts presented here, Movant has not established that he suffered any actual prejudice as a result of trial counsel’s failure to raise a Batson challenge to the State’s peremptory strikes.

Generally, the motion court is not obligated to hold an evidentiary hearing on a motion for post-conviction relief unless: (1) Movant alleged facts, rather than conclusions, warranting relief; (2) the facts alleged raise matters not conclusively refuted by the files and record; and (3) the matters complained resulted in prejudice to Movant. Haddock v. State, 75 S.W.3d 872, 876 (Mo.App. W.D.2002). Applying this standard to the case at hand, we hold that the motion court’s denial of Movant’s motion for post-conviction relief without an evidentiary hearing was not clearly erroneous because Movant’s mere allegation of ineffective assistance of counsel was insufficient to trigger the grant of an evidentia-ry hearing and he did not suffer prejudice.

To obtain an evidentiary hearing on a post-conviction relief motion premised on ineffective assistance of counsel, a movant must “allege facts showing that counsel’s performance did not conform to the degree of skill, care and diligence of a reasonably competent attorney and that movant was thereby prejudiced.” Barnett v. State, 103 S.W.3d 765, 769 (Mo. banc 2003). Here, unable to allege actual prejudice, Movant summarily concludes “[wjhether the failure to [hold a Batson hearing] was due to trial court error or deficient performance by counsel, the potential for prejudice is the same.” Notably, Movant refers to “the potential for prejudice” instead of alleging that he suffered actual prejudice.

Moreover, a movant is entitled to a presumption of prejudice resulting from counsel’s ineffective assistance during the jury selection process only if the movant can show that a biased venireperson ultimately served on the jury. State v. Colbert, 949 S.W.2d 932, 944 (Mo.App. W.D.1997). Movant’s motion is completely devoid of allegations or incidents of juror bias. As a result, the record does not contain any indication that Movant was prejudiced by trial counsel’s failure to raise a Batson challenge. Accordingly, the motion court did not clearly err when it denied his motion for post-conviction relief without an evidentiary hearing. Point denied.

Conclusion

The judgment of the motion court is affirmed.

KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ., concur.

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


author: PER CURIAM:

text:
    Timothy GUERRA, Appellant Pro Se, v. STATE of Missouri, Respondent.
    No. WD 64635.
    Missouri Court of Appeals, Western District.
    Aug. 9, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 4, 2005.
    Application for Transfer Denied Feb. 28, 2006.
    Appellant pro se.
    Jeremiah W. (Jay) Nixon, Attorney General, Andrew W. Hassell, Asst. Attorney General, joins on the briefs, Jefferson City, MO, for Respondent.
    Before JAMES M. SMART, JR., P.J., RONALD R. HOLLIGER, and LISA WHITE HARDWICK, JJ.
   Order

PER CURIAM:

Timothy Guerra appeals the dismissal of his declaratory judgment action. The circuit court, finding that Guerra had an adequate and available remedy in habeas corpus, dismissed his declaratory action for failure to state a claim. Guerra contends that the court erred. Finding no error of law, we affirm by summary order pursuant to Rule 84.16(b). A published opinion would lack jurisprudential value. A memorandum as to the grounds of the decision has been furnished to the parties.


author: PATRICIA BRECKENRIDGE, Judge.

text:
    STATE of Missouri, ex rel. Nick FORTNER, Faye Fortner and Tyler Fortner, by and through his next friend, Nick Fortner, Relators, v. Honorable Dennis A. ROLF, Judge of the Circuit Court of Lafayette County, Respondent.
    No. WD 64974.
    Missouri Court of Appeals, Western District.
    Sept. 30, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 22, 2005.
    Application for Transfer Denied Feb. 28, 2006.

      John B. Neher, Lexington, MO, for rela-tors.
    Steven M. Aaron, Kansas City, MO, for respondent.
    Before BRECKENRIDGE, P.J., SMART and HOWARD, JJ.
   ORIGINAL PROCEEDING IN PROHIBITION

PATRICIA BRECKENRIDGE, Judge.

Relators Nick and Faye Fortner filed a petition for a writ of prohibition in this court, seeking to prohibit Respondent, the Honorable Dennis A. Rolf, from enforcing a partial summary judgment entered against them. The Fortners claim the court lacked jurisdiction to enter the partial summary judgment because they had voluntarily dismissed their petition before the trial court entered its partial judgment. Because the trial court exceeded its jurisdiction in entering a judgment granting partial summary judgment in favor of Fleetwood after the Fortners voluntarily dismissed their ease, the trial court’s judgment is vacated and this court’s preliminary writ of prohibition is made absolute.

Factual and Procedural Background

The Fortners filed suit against Fleet-wood Enterprises, Inc., and several other corporations, which the Fortners claim are subsidiaries of Fleetwood Enterprises, Inc. In February 2003, the Fortners filed their fifth amended petition, asserting nine counts stemming from the Fortners’ purchase of a manufactured home from Fleet-wood. One of the counts, Count VIII, alleged that the Fortners’ son suffered mold sickness and injury as a result of Fleetwood’s failure to repair certain defects in the manufactured home and sought damages for medical expenses associated with the sickness. Each of the other counts against Fleetwood also sought damages for the Fortners’ medical expenses.

In October 2004, Fleetwood filed a motion for partial summary judgment on Count VIII and all claims for damages related to medical expenses asserted in Counts I-IX. On November 30, 2004, the trial court held a hearing on Fleetwood’s motion. On December 20, 2004, the court entered a ruling on its docket sheet, in which the court stated it was “sustain[ing] Defendant’s Motion for Partial Summary Judgment.” The next day, relying on Rule 67.02, the Fortners filed a voluntary dismissal, without prejudice, of their claims against Fleetwood, including Count VIII.

On January 4, 2005, the trial court executed a signed, file-stamped partial judgment in favor of Fleetwood and dismissed, with prejudice, Count VIII of the Fort-ners’ petition and any claims asserted in Counts I-IX that related to medical expenses or mold. Thereafter, the Fortners petitioned this court, seeking a writ of prohibition to set aside the trial court’s January 4th judgment. This court issued a preliminary writ of prohibition.

Trial Court Lost Jurisdiction to Enter Judgment Following Voluntary Dismissal

In their sole point, the Fortners assert the trial court erred in entering partial summary judgment dismissing Count VIII of their petition and all claims related to medical expenses and mold in Counts I-IX because the court lacked jurisdiction to enter the judgment. In particular, the Fortners contend they voluntarily dismissed, without prejudice, all claims against Fleetwood, pursuant to Rule 67.02, before the trial court entered its judgment. The Fortners claim that once they voluntarily dismissed their claims, the trial court lacked jurisdiction to take any further action in the matter.

Before reaching the merits of the Fortners’ petition for a writ of prohibition, this court considers whether the extraordinary remedial writ of prohibition is proper in the circumstances of this case. A writ of prohibition is an extraordinary remedy and “is to be used with great caution and forbearance and only in cases of extreme necessity.” State ex rel. Douglas Toyota III, Inc. v. Keeter, 804 S.W.2d 750, 752 (Mo. banc 1991). As such, the Supreme Court has limited its application to “three, fairly rare, categories of cases.” State ex rel. Riverside Joint Venture v. Mo. Gaming Comm’n, 969 S.W.2d 218, 221 (Mo. banc 1998). One of the categories in which writs of prohibition are proper is when the “trial court exceeded its jurisdiction or abused its discretion to such an extent that it lacked the power to act as it did.” Mo. State Bd. of Registration for Healing Arts v. Brown, 121 S.W.3d 234, 236 (Mo. banc 2003). Therefore, if the Fortners’ jurisdictional claim is correct, a writ of prohibition is appropriate. State ex rel. Fisher v. McKenzie, 754 S.W.2d 557, 562 (Mo. banc 1988).

On December 21, 2004, the Fortners filed a “Voluntary Dismissal Without Prejudice,” under Rule 67.02. Rule 67.02(a) provides a plaintiff the one-time right to voluntarily dismiss a court-tried civil action, without order of the court, anytime “prior to the introduction of evidence” and, in the case of a jury trial, “[pjrior to the swearing of the jury panel for the voir dire examination.” A voluntary dismissal is effective on the date it is filed with the court. Grady v. Amrep, Inc., 139 S.W.3d 585, 590 (Mo.App.2004). And once a plaintiff dismisses a case, under Rule 67.02(a), “ ‘it is as if the suit were never brought.’ ” Givens v. Warren, 905 S.W.2d 130, 132 (Mo.App.1995) (citation omitted). Thereafter, the trial court loses jurisdiction to enter any subsequent orders as to the dismissed action. Kirby v. Gaub, 75 S.W.3d 916, 917 (Mo.App.2002). Thus, if the Fortners properly dismissed their claims under Rule 67.02(a), then they would be correct that the trial court exceeded its jurisdiction in entering its January 4, 2005, judgment, which was entered after the Fortners’ voluntary dismissal. The dispositive question, then, is whether the Fortners’ voluntary dismissal was proper under Rule 67.02(a)(2), i.e., whether it was made prior to the introduction of evidence.

The procedural history relevant to the dispositive issue is that Fleetwood filed a motion for partial summary judgment on October 4, 2004. The Fortners filed a response to Fleetwood’s motion on October 29, 2004. While not included in the record before this court, both Fleetwood’s motion and the Fortners’ response reference exhibits that were filed as attachments to the pleadings, e.g., deposition transcripts, mold test results, and affidavits. On November 30, 2004, the trial court held a hearing on Fleetwood’s motion. The trial court’s docket sheet for this date states, “[t]he Motion for Partial Summary Judgment and Motion to Strike Plaintiffs Cause of Action are taken up and taken under advisement.” On December 14, 2004, a pretrial hearing was held and the parties agreed to waive a jury trial and the matter was set for trial before the court. On December 20, 2004, the trial court’s docket sheet indicates the court sustained Fleet-wood’s motion for partial summary judgment. One day later, relying on Rule 67.02, the Fortners filed a “Voluntary Dismissal Without Prejudice” of all of their claims against Fleetwood. Thereafter, on January 4, 2005, the trial court executed and filed the challenged Final Judgment Dismissing Court VIII and All Claims for Medical Expenses.

At the time the Fortners filed their voluntary dismissal, both parties had introduced evidence related to Fleetwood’s motion for summary judgment. As noted above, however, in a court-tried case, a plaintiff may only voluntarily dismiss an action, without court order, “prior to the introduction of evidence.” Rule 67.02(a)(2). Thus, this court must determine whether the admission of evidence on Fleetwood’s motion for summary judgment precluded the Fortners from voluntarily dismissing their action, without a court order.

The Missouri Supreme Court has previously considered the meaning of the phrase “prior to the introduction of evidence,” as it pertains to a voluntary dismissal, in Garrison v. Jones, 557 S.W.2d 247, 249 (Mo. banc 1977). Under a prior version of the rule, the Court held that the “stage of the proceedings described in [then] Rule 67.01[, now Rule 67.02(a),] as ‘prior to the introduction of evidence’ refers to the introduction of evidence at the trial of the cause on the merits,” and it “does not refer to hearings on pretrial motions or the introduction of evidence with respect to such motions.” (emphasis added). Id. After the Supreme Court’s ruling in Garrison, the Supreme Court amended Rule 67.01, which is now Rule 67.02(a), effective January 1, 1981, to clarify that “prior to the introduction of evidence” meant the introduction of evidence “at the trial.” The Committee Note after the amended Rule stated that “at the trial” “was added to make it clear that the introduction of evidence at a pretrial hearing does not affect the right of voluntary dismissal.”

In 1994, the Supreme Court once again amended the rules governing dismissals of actions. In particular, the Court moved prior Rule 67.01, governing voluntary dismissals, to Rule 67.02. Under amended Rule 67.02, effective January 1, 1994, plaintiffs retained the one-time right to voluntarily dismiss an action, without court order, “prior to the introduction of evidence at the trial.”

In 2002, the Supreme Court again amended Rule 67.02(a), effective July 1, 2002. The only change to the rule with this most recent amendment was to the first sentence of the rule. Before the latest amendment, the first sentence of Rule 67.02(a) read, “Except as provided in Rule 52, a civil action may be dismissed by the plaintiff without order of the court anytime prior to the introduction of evidence at the trial.” The first sentence of Rule 67.02(a) now reads: “Except as provided in Rule 52, a civil action may be dismissed by the plaintiff without order of the court anytime: (1) Prior to the swearing of the jury panel for the voir dire examination, or (2) In cases tried without a jury, prior to the introduction of evidence.” With the most recent amendment to Rule 67.02(a), the Supreme Court created a different point in the proceedings, depending on whether the case is a court-tried case or a jury-tried case, after which, a plaintiff no longer maintains the absolute right to voluntarily dismiss an action. Such a distinction between court-tried cases and jury-tried cases was never previously made in Missouri with respect to a voluntary dismissal of a cause of action.

In a jury-tried case, current Rule 67.02(a)(1) clearly establishes that the point at which a plaintiff no longer retains the absolute right to voluntarily dismiss an action is when the jury panel is sworn for voir dire examination. In court-tried cases, however, Rule 67.02(a) retains the standard for a voluntary dismissal from previous versions of the rule, “prior to the introduction of evidence,” but the qualifying phrase, “at the trial,” has been deleted. As noted, in Garrison, the Supreme Court interpreted the phrase, “prior to the introduction of evidence,” to mean “the introduction of evidence at the trial of the cause on the merits.” 557 S.W.2d at 249. That ruling is controlling unless this court finds, that by deleting the phrase, “at the trial,” in the latest amendment to Rule 67.02(a), the Supreme Court intended to overrule Garrison to the extent it holds that “prior to the introduction of evidence” means evidence adduced only “at the trial” on the merits. Under such an interpretation, because evidence had already been introduced with respect to Fleetwood’s motion for summary judgment at the time the Fortners filed their voluntary dismissal, the Fortners’ dismissal under Rule 67.02(a)(2) would have been filed too late to be effective without a court order.

Interpreting Rule 67.02(a) in this manner could potentially create a wide disparity between the point in time in which a plaintiff may voluntarily dismiss a case, without a court order, depending on whether the case is a court-tried case or a jury-tried case. For example, in a jury-tried case, by the time a jury panel is sworn for voir dire examination, it is possible that both the plaintiff and the defendant in the case would have introduced evidence related to various pre-trial matters. Nevertheless, because the case is proceeding to a jury trial, the plaintiff would retain , the absolute right to voluntarily dismiss the action right up to the point the jury panel is sworn for voir dire examination. Under the standard for court-tried cases, however, if the rule were interpreted to preclude a voluntary dismissal after the introduction of evidence, regardless of whether the evidence is introduced “at the trial,” a plaintiff would have a potentially much shorter window of opportunity to voluntarily dismiss an action than they would have under a jury-tried case. Moreover, it is problematic that, at the point in time in which a plaintiff chooses to voluntarily dismiss an action, the parties may not have indicated to the trial court whether the case was to be court-tried or jury-tried. Under Rule 69.01, the presumption is that a civil action is to proceed as a jury-tried case until the parties waive their right to trial by jury. An interpretation of Rule 67.02(a) to preclude voluntary dismissal if there has been the presentation of evidence on pretrial motions for court-tried cases would create the undesirable situation where plaintiffs have the incentive to manipulate the length of time in which they could voluntarily dismiss an action by delaying waiver of a jury trial until right before trial.

Consequently, this court finds that even though the Supreme Court deleted the phrase “at the trial” from Rule 67.02(a)(2), it did not intend to overrule Garrison to the extent that it held that “prior to the introduction of evidence” means evidence introduced only “at a trial” on the merits. To interpret the rule in a manner that would preclude a plaintiff from voluntarily dismissing a case after the introduction of evidence concerning pre-trial matters for court-tried cases, but to permit a voluntary dismissal up until the point the jury panel is sworn for voir dire examination in jury-tried cases, would create an absurd result. Cf. Leiser v. City of Wildwood, 59 S.W.3d 597, 603-04 (Mo.App.2001) (discussing general rule that court will not interpret statute in manner that would lead to an absurd result). Interpreting “prior to the introduction of evidence” to mean the introduction of evidence “at the trial,” is consistent with the standard for jury-tried cases where the point in time at which a plaintiff loses the absolute right to voluntarily dismiss a case is immediately prior to the beginning of trial, i.e., when the jury panel is sworn for voir dire examination. Rule 67.02(a)(1). Thus, this court finds that “prior to the introduction of evidence” in Rule 67.02(a)(2) means “prior to the introduction of evidence” at the trial.

Fleetwood argues that it would be unjust to allow the Fortners to dismiss their cause of action and refile their case because, before the Fortners dismissed their case, the trial court granted Fleetwood partial summary judgment. Fleetwood asserts that the Fortners should not be able to avoid this unfavorable ruling by a voluntary dismissal. They argue, in effect, that evidence presented for summary judgment should be treated like evidence “at the trial.” There is some authority for the proposition that the introduction of evidence at a hearing on a motion for summary judgment may constitute the introduction of evidence “at the trial” for purposes of a plaintiffs right to subsequently file a voluntary dismissal. See Smith v. A.H. Robins Co., 702 S.W.2d 143, 146 (Mo.App.1985). In Smith, however, the trial court’s ruling on the plaintiffs motion for summary judgment resulted in a final “disposition of the case on the merits” as related to the particular defendant that filed the motion for summary judgment. 702 S.W.2d at 146.

In this case, the trial court’s ruling with respect to Fleetwood’s motion for summary judgment was merely a partial summary judgment ruling. Such a ruling is interlocutory absent “an express determination [by the court] that there is no just reason for delay.” Rule 74.01(b). Without such a determination, such rulings are subject to being added to, amended, or set aside by the court at any time before final judgment. Norwine v. Norwine, 75 S.W.3d 340, 344 (Mo.App.2002). Therefore, because the trial court’s ruling regarding Fleetwood’s motion for summary judgment did not result in a “disposition of the case on the merits,” Smith is not controlling. While it may seem unfair that the Fortners can use a voluntary dismissal to avoid a partial summary judgment, it would be more inequitable to have rulings on partial summary judgments preclude a voluntary dismissal in a court-tried case, but not in a jury-tried case.

Therefore, because the Fortners voluntarily dismissed their cause of action “prior to the introduction of evidence” at trial, their dismissal, under Rule 67.02(a)(2), was effective on the date it was filed, i.e., December 21, 2004. Kirby, 75 S.W.3d at 917. At that point in time, the trial court lost jurisdiction to enter any subsequent orders. Id. Accordingly, the trial court exceeded its jurisdiction in entering its January 4, 2005, judgment granting partial summary judgment in favor of Fleetwood.

The trial court’s January 4, 2005, judgment is vacated and this court’s preliminary writ of prohibition is made absolute.

All concur.

      . On December 8, 2004, the Fortners dismissed, without prejudice, Count VII of their petition, which sought damages for negligence against Community Bank of Pettis County, which made a construction loan to the Fortners to purchase the manufactured home at issue in this case. This dismissal is not challenged and Community Bank is not involved in this proceeding.

      . The Fortners subsequently re-filed their petition in Jackson County.

      . On December 14, 2004, the parties agreed to waive a jury trial. Therefore, subsection (a)(1) of Rule 67.02 is inapplicable in this case because it concerns the dismissal of a case tried before a jury. See Rule 67.02(a)(1).

      . The trial court’s January 4, 2005, judgment purportedly "dismissed with prejudice” Court VIII of the Fortners’ petition and any claims asserted in Counts I-IX that related to medical expenses or mold. If the trial court had jurisdiction to enter its January 4th judgment, because the matter was before the trial court on Fleetwood’s partial motion for summary judgment, the proper disposition should have been a granting of partial summary judgment in favor of Fleetwood on the relevant claims, rather than a dismissal with prejudice.

      . In Missouri, a motion for summary judgment has been labeled a pretrial motion. See, e.g., Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 860 (Mo. banc 1993); ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 380 (Mo. banc 1993).

      . Rule 67.01, effective January 1, 1981, until January 1, 1994, provided:
      A civil action may be dismissed by the plaintiff without prejudice without order of court any time prior to the introduction of evidence at the trial. After the introduction of evidence is commenced, a plaintiff may dismiss his action without prejudice only by leave of court or by written consent of the adverse party. Leave of court shall be freely granted when justice so requires. A party who has once so dismissed a civil action and thereafter files another civil action upon the same claim shall be allowed to dismiss the same without prejudice only (1) upon filing a stipulation to that effect signed by the opposing party; or (2) on order of the court made on motion in which the ground for said dismissal shall be set forth.
      (Emphasis added).

      . Rule 67.02(a), effective January 1, 1994, until July 1, 2002, provided:
      Except as provided in Rule 52, a civil action may be dismissed by the plaintiff without order of the court anytime prior to the introduction of evidence at the trial. A party who once so dismisses a civil action and thereafter files another civil action upon the same claim shall be allowed to dismiss the same without prejudice only (1) upon filing a stipulation to that effect signed by the opposing party or (2) on order of the court made on motion in which the ground for dismissal shall be set forth.
      (Emphasis added).

      . Rule 52, governing “Parties,” is inapplicable in this case.

      . The time frames for voluntarily dismissing a civil action in the current version of Rule 67.02(a) are like the time frames as to when double jeopardy attaches in a criminal case. For example, "in a jury trial, jeopardy attaches when the jury is impaneled and sworn; in a court-tried case, jeopardy attaches upon the introduction of evidence.” State v. Stein, 876 S.W.2d 623, 625 (Mo.App.1994).


author: PER CURIAM.

text:
    Jared D. MEYER, Respondent, v. Orlyn LOCKARD, Jr., MD., et al., Appellants.
    No. WD 64761.
    Missouri Court of Appeals, Western District.
    Nov. 22, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 31, 2006.
    Application for Transfer Denied Feb. 28, 2006.
    D. Bruce Keplinger, Overland Park, KS, for appellants.
    Joseph A. Morrey, St. Joseph, MO, Edward D. Robertson, Jr, Anthony L. Dewitt, Mary D. Winter, Co-Counsels, Jefferson City, MO, Co-Counsels for respondent.
    Before HAROLD L. LOWENSTEIN, P.J., JOSEPH M. ELLIS and THOMAS H. NEWTON, JJ.
   ORDER

PER CURIAM.

Dr. Orlyn Lockard appeals the trial court’s order denying his post-trial motion seeking judgment notwithstanding the verdict or a new trial.

For the reasons stated in the memorandum provided to the parties, we affirm. Rule 84.16(b).


author: JOSEPH M. ELLIS, Judge.

text:
    Natalie RECTOR, Appellant, v. Cheryl KELLY, Respondent, Division of Employment Security, Respondent.
    No. WD 64963.
    Missouri Court of Appeals, Western District.
    Nov. 22, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 31, 2006.
    Application for Transfer Denied Feb. 28, 2006.

      Le Anne Wiseman, Columbia, MO, for appellant.

      David G. Brown, Columbia, MO, for respondent Kelly.
    Alan J. Downs, Jefferson City, MO, for respondent Division of Employment Security.
    Before RONALD R. HOLLIGER, Presiding Judge, ROBERT ULRICH, Judge, and JOSEPH M. ELLIS, Judge.
   JOSEPH M. ELLIS, Judge.

Natalie Rector appealed the Division of Employment Security’s (“Division’s”) August 19, 2004 determination that she was ineligible to receive unemployment compensation benefits until she earns wages for insured work equal to ten times her weekly benefit amount. The Division’s Appeals Tribunal determined that her notice of appeal was defective and, in effect, dismissed her appeal, and that determination was affirmed by Order of the Labor and Industrial Relations Commission (“Commission”) on December 9, 2004. Rector now appeals the Commission’s decision to this court.

Our review of the Commission’s decision in this unemployment compensation matter is governed by section 288.210 of the Missouri Employment Security Law, which provides, in relevant part:

The findings of the commission as to the facts, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the appellate court shall be confined to questions of law. The court, on appeal, may modify, reverse, remand for rehearing, or set aside the decision of the commission on the following grounds and no other:
(1)That the commission acted without or in excess of its powers;
(2) That the decision was procured by fraud;
(3) That the facts found by the commission do not support the award; or
(4) That there was no sufficient competent evidence in the record to warrant the making of the award.

Decisions of the Commission “which are clearly the interpretation or application of the law, as distinguished from a determination of facts, are not binding upon us and fall within our province of review and correction.” Merriman v. Ben Gutman Truck Serv., Inc., 392 S.W.2d 292, 297 (Mo.1965) (internal quotation marks omitted). Therefore, we “independently review such questions without giving any deference to the Commission’s conclusions.” CNW Foods, Inc. v. Davidson, 141 S.W.3d 100, 102 (Mo.App. S.D.2004).

“The Commission’s factual findings, on the other hand, are treated deferentially.” Id.; § 288.210. As to such findings, “the reviewing court does not substitute its judgment for that of the [C]ommission[.]” Merriman, 392 S.W.2d at 296. Rather, “[ajbsent fraud, the Commission’s factual findings are conclusive on appeal if they are supported by competent and substantial evidence upon the whole record and are not clearly against the overwhelming weight of the evidence.” CNW Foods, 141 S.W.3d at 102. Overall, then, “[t]he scope of this Court’s review on appeal of unemployment compensation cases is limited to whether the Commission’s decision is supported by competent and substantial evidence, and is authorized by law.” Perry v. Tiersma, 148 S.W.3d 833, 835 (Mo.App. S.D.2004).

As they pertain to this appeal, the facts of this case are undisputed. On August 19, 2004, a Deputy of the Division mailed Rector a copy of his determination that, pursuant to the applicable provisions of Chapter 288, Rector was ineligible to receive unemployment compensation benefits until she earns wages for insured work equal to ten times her weekly benefit amount since she had voluntarily left her work as an office manager on June 8, 2004 without good cause attributable to the work or her employer, co-Respondent Cheryl Kelly.

On September 15, 2004, Rector’s attorney, Le Anne Wiseman, faxed a letter to the Appeals Tribunal, which was received and file-stamped “Received” by the Appeals Tribunal the same day. The letter, which was printed on firm stationery via computer software and stated that Wise-man represented Rector “regarding her claim for unemployment compensation,” set forth Rector’s name and Social Security Number, as well as the name of Rector’s former employer. It also stated: “By this letter we appeal the deputy’s decision of August 19, 2004 and request an in-person hearing.” At the bottom, the letter stated: “Thank you for your assistance. Sincerely yours, Le Anne Wiseman.” Although there were several blank lines between “Sincerely yours” and “Le Anne Wiseman,” the letter was not signed by Wiseman. On September 22, 2004, Wise-man faxed a second letter to the Appeals Tribunal, which was also received and file-stamped “Received” by the Appeals Tribunal that same day. This letter was identical to the first one except that Wiseman had signed her name within the several blank lines between “Sincerely yours” and “Le Anne Wiseman.” Later the same day (September 22, 2004), Wiseman faxed a third letter to the Appeals Tribunal, in which she apologized for any inconvenience that may have been caused by her “clerical mistake” in not signing the September 15, 2004 letter.

After conducting an evidentiary hearing, a Referee of the Division’s Appeals Tribunal found that under section 288.070.4, Rector had thirty calendar days from August 19, 2004 (i. e., until September 20, 2004) to file a timely appeal of the Deputy’s determination. Although Wiseman’s letter of September 15, 2004 was timely filed under section 288.070.4, the Referee found that it was not a valid notice of appeal because it had not been signed by Wiseman. Furthermore, the Referee found that even though Wiseman’s second (September 22, 2004) letter to the Appeals Tribunal was signed by her, it was received after the September 20, 2004 deadline and Rector had failed to show “good cause” for an extension of time to file a late notice of appeal under section 288.070.8. The Referee provided the following basis for this particular finding:

The claimant timely received the determination [of the Deputy denying her claim for benefits]. Her attorney filed a late appeal notwithstanding clear, unambiguous, unequivocal instructions on the determination that the appeal must be signed. The claimant is bound by the actions of her agent. The Division did nothing wrong. The claimant, via her agent, did not act reasonably. Nothing was beyond the claimant’s control, again via her retained agent. The Appeals Tribunal concludes the claimant lacks good cause to extend the thirty-day period for filing the appeal.

The Referee concluded that Rector’s notice of appeal “was not timely filed” and, as such, the Deputy’s determination to deny her unemployment compensation benefits had become final on September 20, 2004.

Rector then filed an application for review with the Commission, in which she contended that in effectively dismissing her appeal, the Appeals Tribunal committed a reversible error of law. The Commission affirmed the decision of the Appeals Tribunal, expressly “adopt[ing] the decision of the Appeals Tribunal as the decision of the Commission in this matter.” This appeal followed.

In her sole point on appeal, Rector argues that the Commission erred as a matter of law in concluding that (1) although timely filed under section 288.070.4, Wise-man’s letter of September 15, 2004 was not a valid notice of appeal because it was not signed by Wiseman; and (2) even though Wiseman’s second (September 22, 2004) letter to the Appeals Tribunal was signed by Wiseman, it was received after the September 20, 2004 deadline and Rector had failed to show “good cause” for an extension of time to file a late notice of appeal under section 288.070.8.

Although it presents a matter of first impression, we confine our analysis to the first of these two claims, because if Wise-man’s letter of September 15, 2004 did constitute a legally adequate notice of appeal despite the fact that it was not personally signed by Wiseman in her own hand, it was timely filed under section 288.070.4 and it would be unnecessary for us to determine whether Rector also showed “good cause” for an extension of time to file a late notice of appeal under section 288.070.8.

Respondents argue that because Wiseman neglected to sign it, Wiseman’s letter of September 15, 2004 was a nullity, thereby depriving the Appeals Tribunal of jurisdiction to do anything but dismiss Rector’s appeal absent a showing of “good cause” for an extension of time. In support of this argument, they rely on 8 CSR 10-5.010 (2004), which applies to appeals from a Deputy to the Appeals Tribunal. Subsections (3)(A), (B), and (C) of this regulation provide, in their entirety:

(A) Any signed, legible written notice filed by a party in accordance with these regulations, which expresses disagreement with or otherwise indicates a desire to appeal a determination or re-determination, in the absence of a reconsideration by the deputy, shall constitute an appeal. An appeal must be signed by the claimant, the claimant’s authorized agent, the employing unit (including any officer or employee of it), or by a licensed attorney representing either the claimant or employing unit. A person acting as a claimant’s authorized agent shall submit an authorization signed by the claimant as soon as that authorization occurs. The authorization must include the name, social security number and signature of the claimant and a statement that the named agent is acting on behalf of the claimant.
(B) Any party may file an appeal by using a printed appeal form available from the Division of Employment Security. Use of the form is not mandatory; however, whatever instrument is used, it should also include the following information:
1. Name and Social Security account number of each claimant, if any, involved;
2. Name of the employer, if any, involved;
3. Date, issue number and subject matter of the determination;
4. Statement of the reasons for disagreement with the determination; and
5. Signature of the appellant.
(C) Failure to include all of the information listed in subsection (3)(B) may result in invalidation of the purported appeal or unnecessary delay in processing the appeal and scheduling the hearing.

Although they cite no authority whatsoever for this claim other than the regulation itself, Respondents assert that 8 CSR 10-5.010(3)(A)-(C) must be rigidly and fully complied with as an absolute jurisdictional prerequisite to review of a Deputy’s determination by the Appeals Tribunal, and, therefore, Wiseman’s September 15, 2004 letter was properly determined to be an invalid notice of appeal since it was not signed by either Rector or Wiseman. We disagree.

To begin with, it is readily apparent that the signature-related provisions of 8 CSR 10-5.010(3)(A)-(C) are not essential to the achievement of the substantive functions of a notice of appeal, most of which, naturally, involve notification.

Whatever its form, the notice of appeal has several functions. First, it advises the clerk of the court appealed from that a party will seek review or trial de novo and that the transcript and other court papers must be forwarded to the superi- or court. Second, it notifies respondent of the appeal and, when served upon or waived by him, brings respondent under the jurisdiction of the appellate court. Third, it triggers a stay of execution. Finally, it notifies the superior court of the transfer to it of the jurisdiction of the case.

City of Lake Winnebago v. Sharp, 652 S.W.2d 118, 122 (Mo. banc 1983) (internal citations omitted).

Wiseman’s unsigned letter of September 15, 2004 was clearly sufficient to satisfactorily accomplish all four of these functions. It was more than adequate to: (1) advise the Deputy that Rector was seeking review of his determination denying her claim for unemployment benefits and that the transcript and other papers pertaining to the case needed to be forwarded to the Appeals Tribunal; (2) notify Respondents of the appeal and bring them within the jurisdiction of the Appeals Tribunal upon receipt; (3) trigger a stay of execution of the Deputy’s decision; and (4) notify the Appeals Tribunal of the transfer, from the Deputy to the Appeals Tribunal, of jurisdiction over the case. Therefore, despite being unsigned, Wiseman’s September 15, 2004 letter “accomplished every one of the purposes of the most formal and complete ... notice of appeal.” Id. at 123.

Second, we agree with Rector that, contrary to the Commission’s legal conclusion, 8 CSR 10-5.010(3) does not clearly, unambiguously, or unequivocally mandate that either the appellant or his or her licensed attorney-representative sign the notice of appeal as a jurisdictional condition precedent to review of a Deputy’s determination by the Appeals Tribunal. While 8 CSR 10-5.010(3)(A) does state that the notice of appeal “must be signed by the claimant, the claimant’s authorized agent, the employing unit (including any officer or employee of it), or by a licensed attorney representing either the claimant or employing unit,” 8 CSR 10-5.010(3)(B), the remainder of the regulation is inconsistent, because it says only that the notice of appeal “should ” include such a signature, 8 CSR 10-5.010(3) (B) and (3)(B)(5), and that an appellant’s failure to include this information “may” result in either the “invalidation of the pm-ported appeal” or an “unnecessary delay in processing the appeal and scheduling the hearing.” 8 CSR 10-5.010(8) (C) (emphasis added throughout). In this regard, the Missouri Supreme Court’s decision in Sharp is directly on point:

If doubt exists as to the mandatory nature of a direction as to the use of a given method of perfecting an appeal, then use of that mode cannot be compulsory and exclusive. Under these circumstances, then, any reasonable method calculated to accomplish the purposes of the rule while establishing a record should suffice. A party ought not to suffer after a good faith attempt to comply with a rule, which is not mandatory by its terms, by use of a method which satisfactorily accomplishes the aim of the rule. In these cases, therefore, the filing of any form or set of forms indicating the [appealing party or parties’] intent to pursue their respective statutory rights to seek [an appeal] in their cases should suffice.

652 S.W.2d at 122-23. Accordingly, “[e]ven though unsigned,” as was the case with the notices of appeal considered by the Court in Sharp, Wiseman’s September 15, 2004 letter was “timely filed in a good faith attempt to perfect [Rector’s] appeal[ ] in accordance with the suggestions of the rules.” Id. at 123.

Third and finally, in a broader sense, it has long been the law of this state that “[a] notice of appeal which can reasonably be construed as an attempt in good faith to appeal from a final judgment or appealable order shall be deemed sufficient.” Weller v. Hayes Track Lines, 355 Mo. 695, 197 S.W.2d 657, 660-61 (1946). This rule reflects the important policy underlying Missouri’s judicial system that because “[c]ases should be heard on the merits if possible,” the statutes and rules governing the orderly administration of justice “should be construed liberally in favor of allowing appeals to proceed.” Sherrill v. Wilson, 653 S.W.2d 661, 663 (Mo. banc 1983). Indeed, our Supreme Court very recently reaffirmed this principle: “Cases should be heard on the merits if possible, and court rules should be construed liberally to allow an appeal to proceed.” Berger v. Cameron Mut. Ins. Co., 173 S.W.3d 639, 641, 2005 Mo. LEXIS 389, at *3 (Mo. banc 2005) (citing Sherrill, 653 S.W.2d at 663). “ ‘Consequently, it is the duty of an appellate court freely to exercise its jurisdiction to provide a review on the merits in every instance that it may properly do so.’” Sharp, 652 S.W.2d at 122 (quoting Weller, 197 S.W.2d at 659).

For these reasons, our Supreme Court has expressly held that “[technical adherence to the formal averments of a notice of appeal is not jurisdictional, and the averments are to be liberally construed to permit appellate review so long as the opposing party is not misled to his or her irreparable harm.” L.J.B. v. L.W.B., 908 S.W.2d 349, 351 (Mo. banc 1995) (emphasis added). Applying these principles in the case sub judice, it is clear that the Commission’s order is erroneous and unauthorized by law and must be reversed despite 8 CSR 10-5.010(3)’s vague and uncertain suggestion of a mandatory signature requirement.

The various cases relied on by Respondents in their briefs, which we need not discuss in any detail because they concern signature requirements on pleadings (not notices of appeal), do not convince us to hold otherwise. It is enough to say that the only cases cited by Respondents that even indirectly touch on the issue of what a timely-filed notice of appeal must contain — Sheets v. Labor & Industrial Relations Commission, 622 S.W.2d 391 (Mo.App. W.D.1981), and Duzer v. Industrial Commission, 402 S.W.2d 616 (Mo.App. E.D.1966) — are readily distinguishable. In Sheets, the respondents did not, as here, “contend for the [mandatory] effect of any of the literal language” of the regulation in question (a predecessor to the current version of 8 CSR 10-5.010(3)), 622 5.W.2d at 392 n. 1, which this court proceeded to hold did not authorize the actions taken by the Appeals Tribunal anyway. Id. at 393-94. Furthermore, as correctly noted in Rector’s reply brief, Duzer and its progeny were overruled by the Missouri Supreme Court in Clay v. Labor & Industrial Relations Commission, 908 S.W.2d 351, 353 (Mo. banc 1995), where the Court held that “its lifting a phrase from an entire law to defeat judicial review of the denial of unemployment benefits contravenes the legislature’s intentions.”

For the foregoing reasons, the Commission’s decision is reversed and the cause is remanded with directions that Rector’s appeal to the Appeals Tribunal be reinstated for a determination on its. merits.

All concur.

      . All statutory references are to RSMo 2000.

      . As applicable here, section 288.070.4 states: "Unless the claimant or any interested party within thirty calendar days after notice of such determination is either delivered in person or mailed to the last known address of such claimant or interested party files an appeal from, such determination, it shall be final.”

      . The relevant portion of section 288.070.8 states that "the thirty-day period mentioned in [§ 288.070.4] may, for good cause, be extended."

      . It is unclear whether the “[signature of the appellant” (8 CSR 10-5.010(3)(B)(5)) constitutes '‘information” so as to fall within the phrase "all of the information listed in subsection (3)(B)” under 8 CSR 10-5.010(3)(C). It is also unclear whether the signature of a licensed attorney representing the claimant may be considered the "[signature of the appellant” under 8 CSR 10-5.010(3)(B)(5).

      . In their briefs, Respondents do not even allege, much less demonstrate, that they were "misled to [their] irreparable harm” by opposing counsel's failure to sign her September 15, 2004 letter to the Appeals Tribunal.

      . While most of the cases we have cited involved the policy and principle behind Rule 81.08(a), which governs the contents of notices of appeal from final judgments of Missouri trial courts, we can perceive no good reason why they should not apply equally to notices of appeal filed with administrative bodies like the Appeals Tribunal.

      . Whether Wiseman’s unsigned September 15, 2004 letter would have been sufficient if 8 CSR 10-5.010(3) had clearly, unambiguously, and unequivocally provided that a signed notice of appeal is a mandatory jurisdictional prerequisite for review of a Deputy’s determination by the Division’s Appeals Tribunal is not before us. Such an analysis would require us to determine whether the General Assembly has delegated to the Division the implied authority to impose such a highly restrictive yet largely if not completely unnecessary requirement by way of administrative regulation, and also whether the imposition of such a regulatory requirement by the Division would be contrary to the statutory and common law governing appeals to the Appeals Tribunal. In any event, the case sub judice does not require us to resolve those issues.


text:
    William C. SALMON, Appellant, v. STATE of Missouri, Respondent.
    No. WD 63616.
    Missouri Court of Appeals, Western District.
    Nov. 22, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 31, 2006.
    Application for Transfer Denied Feb. 28, 2006.

      Phillip R. Gibson, Kansas City, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lacey R. Searfoss, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
    Before EDWIN H. SMITH, C.J., and LOWENSTEIN and ELLIS, JJ.
   Order

PER CURIAM.

William C. Salmon appeals from the motion court’s order overruling, after an evi-dentiary hearing, his Rule 29.15 motion for post-conviction relief, alleging ineffective assistance of counsel. After a jury trial in the Circuit Court of Boone County, the appellant was convicted of first-degree murder, in violation of § 565.020, and sentenced to life imprisonment, without the possibility of parole, in the Missouri Department of Corrections.

The appellant raises what he asserts is one point on appeal. He claims that the motion court erred in denying his Rule 29.15 motion, after an evidentiary hearing, because the evidence presented at the motion hearing clearly established that he received ineffective assistance of trial counsel for defense counsel’s: (1) failure to adequately rebut the State’s DNA evidence; (2) failure to present exculpatory evidence; and (3) failure to adequately prepare him to testify at trial.

We affirm pursuant to Rule 84.16(b).