author: GLENN A. NORTON, Judge.

text:
    In the Interest of K.W., C.L. and M.W.
    No. ED 84769.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 10, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 18, 2005.

      Timothy Melenbrink, Union, MO, for appellant.
    Julie Forman-Jones, Union, MO, for respondent.
    John R. O’Connor, Union, MO, Guardian Ad Litem.
   OPINION

GLENN A. NORTON, Judge.

Mother appeals the judgment terminating her parental rights with respect to K.W., C.L. and M.W. We reverse and remand.

I. BACKGROUND

The Missouri Department of Social Services, Children’s Division, took custody of Mother’s three children — a five-year-old boy, a three-year-old girl and a two-year-old boy — in the summer of 2001. In August of that year, the trial court entered judgment assuming jurisdiction over the children based on inadequate supervision, unsanitary living conditions and the failed efforts of the Division, through various services, to prevent removal (“the jurisdiction judgment”). Mother made progress towards reunification under the social services plan, and, by late spring of 2002, the Division allowed the children to return to Mother for an in-home trial placement. But the children were removed again in July of 2002 on reports of abuse and neglect. The court held evidentiary hearings in the fall of 2002 and spring of 2003— hearings at which Mother and her counsel appeared — and then entered judgment in July of 2003 (“the permanency judgment”). In the permanency judgment, the court concluded that reunification was no longer an appropriate plan, that the parties should proceed towards termination of Mother’s parental rights and that the Division was no longer required to make reasonable efforts towards reunification.

Almost eight months later, in March of 2004, the court held an evidentiary hearing on the juvenile officer’s petition to terminate. At that hearing, a case worker who had been with the Division for only six months, Mother and the foster parent of one of the children testified. In April, the court entered judgment terminating Mother’s parental rights, citing as its grounds for termination sections 211.447.4(2) and 211.447.4(3) RSMo 2000 (“the termination judgment”). Much of the evidence the court cited in support of termination was based on its findings in the permanency judgment regarding the failed in-home trial placement, Mother’s personality disorder and her lack of progress under the social services plan. The court determined that many of these findings remained true at the time of termination and that additional time or services were unlikely to improve Mother’s ability to care for the children. On appeal, Mother challenges the sufficiency of the evidence supporting termination.

II. DISCUSSION

Our standard of review in this case is based on the requirements of section 211.447.5: the trial court must find by clear, cogent and convincing evidence that one or more statutory grounds for termination exists and that termination is in the best interests of the children. See In re P.L.O., 131 S.W.3d 782, 788-89 (Mo. banc 2004). The trial court’s determination that a statutory ground has been proven by clear, cogent and convincing evidence will be affirmed unless no substantial evidence supports it, it is contrary to the weight of the evidence, or it erroneously declares or applies the law. Id. at 789. Evidence is clear, cogent and convincing if it “instantly tips the scales in favor of termination when weighed against the evidence in opposition and the finder of fact is left with the abiding conviction that the evidence is true.” In re K.A.W., 133 S.W.3d 1, 12 (Mo. banc 2004). “In all of these determinations, the reviewing court is deferential to the fact-findings of the trial court and considers all the evidence and reasonable inferences from the evidence in the light most favorable to the judgment.” P.L.O., 131 S.W.3d at 789.

Termination in this case was based on the grounds stated in subdivisions (2) and (3) of section 211.447.4. Subdivision (2) provides that the court may terminate parental rights if the child has been abused or neglected. Subdivision (3) is commonly referred to as the failure to rectify provision. It provides that termination is appropriate if:

The child has been under the jurisdiction of the juvenile court for a period of one year, and the court finds that the conditions which led to the assumption of jurisdiction still persist, or conditions of a potentially harmful nature continue to exist, that there is little likelihood that those conditions will be remedied at an early date so that the child can be returned to the parent in the near future, or the continuation of the parent-child relationship greatly diminishes the child’s prospects for early integration into a stable and permanent home.

Section 211.447.4(3). Because there are constitutional implications when a court severs the sacred parent-child relationship, we must examine the trial court’s findings of fact and conclusions of law closely and strictly construe the statute in favor of preserving that relationship. K.A.W., 133 S.W.3d at 12.

Mother argues that because the court relied on the findings in its earlier judgments, termination was based only on her past conduct, not on her conduct at the time of termination. In K.A.W., the Supreme Court elaborated on a trial court’s obligation to consider the totality of the circumstances before and after the termination petition is filed and “looking to the future.” Id. at 9-10. “An essential part of any determination whether to terminate parental rights is whether, considered at the time of the termination and looking to the future, the child would be harmed by a continued relationship with the parent.” Id. at 9. Therefore, the analysis must be prospective. Id. Under section 211.447, the parent’s behavior in the past and while the children are under the court’s jurisdiction is “good evidence of future behavior.” Id. But past behavior can only support grounds for termination if it is “convincingly linked to the predicted future behavior,” and “[t]here must be some explicit consideration of whether the past acts provide an indication of the likelihood of future harm.” Id. at 9-10. The court may rely on its prior determinations as evidence of the circumstances of the past, but if it does, then those earlier findings must be updated to address the circumstances at the time of termination and their implications for the future:

Findings supporting earlier determinations are not irrelevant, but they must be updated to address the extent to which they describe the time of the termination and the potential for future harm. To that end, a trial court cannot support termination by merely incorporating earlier findings supporting its assumption of jurisdiction or some other earlier disposition.

Id.; see also In re J.M.N., 134 S.W.3d 58, 72 (Mo.App. W.D.2004).

Under K.A.W., it was not error for the court in this case to rely in the termination judgment on its earlier determinations. The findings supporting those determinations were relevant and even may have provided good evidence of Mothers predicted behavior in the future. Although the court stated that those earlier findings remained true at the time of termination, these “updated” findings are, in most instances, not supported by substantial evidence of the circumstances at the time of termination. See K.A.W., 133 S.W.3d at 11. Moreover, the termination judgment lacks the type of prospective analysis required by K.A.W. Namely, there is not a “convincing link” between Mothers past behavior and her predicted future behavior and no “explicit consideration” of whether Mothers past behavior provided an indication of the likelihood of future harm to the children. See id. at 9-10.

A. Abuse and Neglect

Under section 211.447.4(2), the court found that the children had been abused or neglected. Termination for abuse and neglect must be based on conduct at the time of termination. Id. at 10. The court first cited its findings in the jurisdiction judgment and then went on to find that there had been, since that time, five additional reports of concern, two of which occurred during the in-home trial placement. While it mentioned five reports, the court cited only four: (1) Mother’s report that she had allowed her daughter, who was sexually abused as determined in the permanency judgment, to be taken out on her birthday with a grandparent that Mother knew to be a registered sex offender; (2) the daughter’s allegation that Mother had burned her hand on the stove as punishment during in-home trial placement, which the court determined to be true in the permanency judgment; (8) the daughter’s report that she had been locked in a dog cage during in-home trial placement, also addressed in the permanency judgment; and (4) the younger son’s report that Mother had bitten the daughter on her stomach during in-home trial placement, which the record reveals was also addressed in the permanency judgment. The court then made findings under section 211.447.4(2)(a) — (d).

Under section 211.447.4(2)(a) — and its counterpart in section 211.447.4(3)(e) — a parent’s mental condition can support termination, but only if it rises to the level described in the statute:

Sections 211.447.4(2)(a) and 211.447.4(3)(c) provide that a mental or emotional condition must be analyzed in three prongs to make an adequate finding: (1) documentation — whether the condition is supported by competent evidence; (2) duration — whether the condition is permanent or such that there is no reasonable likelihood that it can be reversed; and (3) severity of effect— whether the condition is so severe as to render the parent unable to knowingly provide the child necessary care, custody and control.

Id. at 13. Because the standards are the same, we address the court’s findings under both subdivisions 211.447.4(2)(a) and (3)(c) together.

First, in its consideration of abuse or neglect under section 211.447.4(2), the court found that Mother had completed a psychological evaluation in September of 2002 and, as found in the permanency judgment, had been diagnosed with a permanent or long-term personality disorder. The court described that Mother had unrealistic or inaccurate expectations regarding age-appropriate expectations and responsibilities for her children, did not understand how to appropriately discipline her children and had thoughts and behaviors that deviated from society’s expectations — all of which were addressed in the permanency judgment. Mother’s “sense of entitlement and disregard for the safety of others alarmed the Court then and continues to render [her] unable to knowingly provide her children the necessary care, custody and control.” The court further found that Mother had not made any progress with treatment of her psychological condition.

In its consideration of termination under section 211.447.4(3), the court reiterated that in the permanency judgment it had determined that Mother had a personality disorder, which indicated that her thoughts and behaviors deviated from society’s expectations, that the long-term therapy Mother- needed would surely make it nearly impossible for, her to ready herself for reunification in the near future and that the condition was not reasonably likely to be reversed and prevented her from consistently providing the necessary care to the children. The court concluded that this remained true. It went on to find that, considering Mother’s unwillingness to accept her diagnosis, it was unlikely that additionál services would change her understanding of why this condition prevents her from appropriately caring for the children.

Under both sections 211.447.4(2)(a) and (3)(c), the court relied on its earlier determinations regarding Mother’s mental condition, which showed that the condition was permanent and that it rendered Mother unable to provide the children the necessary care, custody and control. The updated findings — that Mother’s behavior as described in the permanency judgment continued or remained true at the time of termination and rendered her an unfit parent — are not supported by substantial evidence of the circumstances at the time of termination. The only evidence regarding Mother’s expectations and discipline of the children came from the case worker, who answered “no” when asked whether she was aware of anything since the permanency judgment that would lead her to believe that Mother had become more realistic in her expectations or better knew how to appropriately discipline the children. But the case worker had only met with Mother twice — once at a previous court healing and again at the termination hearing — and had only visited Mother and the children together twice during intensive in-home services months before the court took jurisdiction. The case worker was not a psychologist and had conducted no psychological testing of Mother. Her conclusions about Mother, she explained, were based solely on the fact that there was nothing in the case file to indicate that Mother had addressed the issues in the social services plan. Mother testified about her progress under the social services plan. She testified that she had just started working part-time, about four months before, through a temporary service. Before that, she had been caring for her mother who died five months before. She had not yet saved enough money to maintain a home of her own, as required under the social services plan. At the time of the hearing, she was living with her two brothers, paying them rent, and she stated that the children could live there too if she were allowed to have them back. She had applied for a full-time position at work, but likely needed a GED to get that position. She testified that she still had not completed her GED classes, as required by the social services plan, because she did not have a way to get to the classes. Her driver’s license was suspended in 1997 for failure to maintain insurance and she had not been able to save enough money to have it reinstated. Mother stated that she relied on her brother for transportation, and that, while he would be able to take time from his job to drive her children somewhere if need be, he could not do so to take her to her GED classes. Mother told the court that she loved her children and does her best for them as a single parent. She testified that, unlike the last time the children were taken from her, at the time of the termination hearing she had a job that provided enough money to support the children. She realized the mistakes she made in not properly supervising the children and would have her eyes open more. Her goal was to have her own place as soon as possible. This testimony is not substantial evidence supporting the conclusions that, at the time of termination, Mother continued to have unrealistic expectations of her children, did not understand how to appropriately discipline them, demonstrated “deviate” thoughts and behavior, exhibited a “sense of entitlement” and disregarded others’ safety or was unable to knowingly provide her children the necessary care, custody and control at the time of termination.

The only finding on this issue that is supported by evidence of the circumstances at the time of termination was that Mother had not progressed with treatment of her mental condition. The case worker testified that Mother had not asked for any such treatment and that, to the case worker’s knowledge based on the fact that the Division had not paid for any such treatment, Mother had not completed any therapy to overcome the personality disorder. Mother admitted that she was not attending counseling at the time of the hearing and claimed that, although she knew she had been diagnosed with a personality disorder, no one had ever told her that she needed treatment. Mother had seen a counselor a few times in the past, but did not know whether that counselor had been aware of her diagnosis. When the court has, before termination, determined that a parent has a permanent mental condition so severe that it renders the parent unfit and that the condition requires long-term therapy, it could be argued that the parent’s failure to undergo such therapy by the time of the termination hearing raises the inference that her condition remains as severe and debilitating to her ability to parent as it did in the past — even without any other evidence of the parent’s behavior and its impact on the children at the time of termination.

We need not decide whether that is true in this case, however, because regardless of the sufficiency of the evidence to support the conclusions about Mother’s condition at the time of the termination, the implications of Mother’s mental condition on the likelihood of future harm to the children were not adequately addressed. The only forward-looking findings regarding Mother’s mental condition do not explicitly address the potential for future harm to the children: the court found that the long-term therapy Mother needed would make it nearly impossible for her to ready herself for reunification in the near future and that Mother’s unwillingness to accept her diagnosis — which is not supported by the evidence at the termination hearing-made it unlikely that additional services would change her understanding of her condition.

As to the remaining factors under section 211.447.4(2), the' court found that Mother did not suffer from a chemical dependency under section 211.447.4(2)(b). Under section 211.447.4(2)(c) — regarding severe or recurrent acts of physical, emotional, or sexual abuse by the parent or someone else with the parent’s knowledge — the court reiterated its findings from the jurisdiction judgment and the additional reports of concern, as described above. Similarly, under section 211.447.4(2)(d), the court stated that Mother failed to adjust her circumstances to allow the children to return to her custody, care and control and referred to its “above-cited findings” to support the conclusion that Mother repeatedly failed, although physically or financially able, to provide for the children’s needs. Additional time, the court went on, was unlikely to improve Mother’s ability to care for these children.

Assuming that any of the cited additional reports of concern were sufficiently severe abuse or neglect, the only one that might have occurred since the in-home trial placement and that was not based on findings in the permanency judgment was Mother’s report that she allowed daughter to go out with a known sex offender. This finding was based on the case worker’s testimony at the termination hearing that the case file showed Mother had reported this incident to the Division sometime before the case worker began working for the Division (some six months before the termination hearing). There is no other indication as to when the incident occurred- — although it must have occurred, if at all, at a time when Mother had custody of the children, which had not been since July of 2002 before the termination petition was filed. Therefore, termination on this ground was not based on substantial evidence of Mother’s conduct at the time of termination.

Moreover, regardless of when the incidents of abuse and neglect occurred, there is no convincing link between that behavior and Mother’s predicted future behavior and no explicit consideration of whether her past acts of abuse and neglect towards the daughter indicated a likelihood of future harm to all of the children. The only forward-looking statement in the findings under section 211.447.4(2)(c) and (d) — that additional time likely would not improve Mother’s ability to parent — is not convincing because it does not explicitly state why, based on her past behavior, giving Mother additional time would be futile.

In sum, there is not substantial evidence to support the conclusion that termination under section 211.447.4(2) for abuse and neglect was proven by clear, cogent and convincing evidence of the circumstances at the time of termination, and the prospective analysis does not meet the requirements of K.A.W. Point I is granted.

B. Failure to Rectify

Termination for failure to rectify under section 211.447.4(3) must be based on a determination that potentially harmful conditions continue to exist at the time of termination, not just that the conditions that led to jurisdiction persist. Id. at 10. Here, in addition to finding that the conditions leading to the assumption of jurisdiction persisted and that the court’s conclusion in the permanency judgment that Mother had made no significant improvement in her ability to care for the children remained true at the time of termination, the court also found that conditions of a potentially harmful nature continued to exist. Namely, Mother remained unable to appropriately discipline her children, continued to have unrealistic expectations of the children and failed to complete the long-term therapy necessary to overcome many of the obstacles created by her personality disorder. The court went on to find little likelihood that these harmful conditions would be remedied at an early date so that the children could be reunified with Mother in the near future, citing its findings in the permanency judgment that, despite the Division’s exhaustive services and efforts, the children were unable to live with Mother during the in-home trial placement without sustaining injury. The court found that this remained true at the time of termination and that no additional services could be offered.

Finally, the court found that continuation of the parent-child relationship greatly diminished the children’s prospects for early integration into a permanent and stable home. Again referring to its findings in the permanency judgment, the court stated that the children needed a parent who could offer a stable and secure environment in which to thrive and that the biological parents had not demonstrated an ability to perform their parental functions. “To continue to subject the children to temporary living conditions places them at risk of developing bonding and attachment problems. The children’s only chance at a stable and permanent home is to quickly secure same.”

The court then made findings under section 211.447.4(3)(a) — (d). Under section 211.447.4(3)(a), the court considered whether Mother had progressed under the social services plan. It cited its findings in the permanency judgment, which established that Mother had not complied with the terms of the social services plan: her employment was rare, short and sporadic; she had no home of her own; the in-home trial placement failed and caused further harm to the children; and there was little, if any, improvement in Mother’s ability to care for the children. The court went on to find that Mother failed to make progress and that giving her additional time was unlikely to improve her ability to care for the children. The court also found, under section 211.447.4(3)(b), that the permanency judgment established that, after removing the children, the Division made reasonable efforts towards reunification and that no additional services were likely to assist Mother or improve her ability to care for the children. The court’s findings regarding Mother’s mental condition under section 211.447.4(3)(c) were discussed above, and the court found that Mother did not suffer from a chemical dependency under section 211.447.4(3)(d).

First, with respect to the potentially harmful conditions the court found to exist at the time of termination, there is no substantial evidence, as discussed above, that at the time of termination Mother remained unable to appropriately discipline the children or that she continued to have unrealistic expectations of them. As to the reference again to Mother’s failure to complete the therapy needed to overcome some obstacles created by her personality disorder, there is no explanation as to what obstacles the court was considering or how the failure to address them was a potentially harmful condition to the children at the time of termination or in the future. As a result, the predictions about Mother’s ability to remedy these conditions and the futility of offering additional services are not convincing. Similarly, there was no substantial evidence to support the findings regarding the children’s chance for a stable and permanent home. Although the case worker testified that a continued relationship with Mother decreased the children’s prospects for a stable home, the case worker had spent almost no time with Mother and the children together.

The finding that Mother failed to progress under the social services plan is, in part, supported by evidence of Mother’s behavior at the time of termination. Mother’s own testimony at the hearing showed that, at the time of termination, she had a job — which was, it seems, some progress under the social services plan— had a place to live and was working to save for a place of her own. She still had not completed her GED, still had no transportation and still had not completed counseling. “A lack of effort to comply with a plan, or a lack of success despite effort, can predict future problems.” Id, at 10. But it is not clear how Mother’s employment, education, or living and transportation arrangements were a potential harm to the children at the time of termination or in the future. See In the Interest of C.F.C., 156 S.W.3d 422, 431 (Mo.App. E.D.2005) (reversing and remanding, in part, based on trial court’s failure to discuss how progress, or lack thereof, with social services plan impacted future ability to parent). The findings that additional time and services would not likely improve Mother’s ability to care for the children do not provide a convincing link between the past and the future because, again, the reasons behind these predictions have not been articulated. Nor, because of her limited contact with Mother, does the case worker’s testimony — that no additional services could be provided that would help Mother and that no plan could be formulated to allow for.reunification — provide a substantial basis for the findings regarding the futility of more time and services.

In sum, there is not substantial evidence to support the conclusion that termination under section 211.447.4(3) for failure to rectify was proven by clear, cogent and convincing evidence of potentially harmful conditions existing at the time of termination, and the prospective analysis does not meet the requirements of K.A.W.

We recognize, as did the Supreme Court, that making predictions about the future is difficult. See K.A.W., 133 S.W.3d at 9. Where the circumstances at the time of termination are more firmly established by evidence at the termination hearing, a trial court is more likely to be able to make “convincing links” between the parent’s past behavior and predicted future behavior because the court can cite the parent’s progression of behavior up to that point as support for its predictions about behavior in the future. But where, as here, the trial court is presented with limited evidence of the circumstances after the termination petition was filed and has to rely on testimony from case workers who have had virtually no contact with the parent, the difficult tasks of evaluating the situation as it exists at the time of termination and then convincingly predicting the future are made even more difficult.

Point II is granted.

III. CONCLUSION

The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

CLIFFORD H. AHRENS and NANNETTE A. BAKER, JJ. concurring.

      . The Division did not provide Mother any services after the permanency judgment was entered, and it appears that at that time face-to-face visitation between Mother and the children also ended. It was stipulated that, until that time, Mother had visited the children regularly.

      . The parental rights of the children’s fathers were terminated as well, but they have not appealed. All statutory references are to RSMo 2000.

      . Mother has not challenged the sufficiency of the evidence to support any of the courts earlier findings, nor provided this Court any means by which to review the evidence supporting those findings.

      . We recognize that at the time the trial court held the termination hearing in this case, K.A.W. had not been handed down and that at the time the termination judgment was entered, K.A.W. was a slip opinion only.

      . "Another essential part of any determination whether to terminate parental rights is whether the cited acts or conditions of the parent, and their accompanying impact upon the child, are severe enough to constitute abuse or neglect. Some parental conduct will harm a child without constituting abuse or neglect. It is essential that the trial court determine whether the parent’s acts are of sufficient severity." K.A.W., 133 S.W.3d at 11.

      . This Court recently reversed and remanded a termination decision under section 211.447.4(3), in part, based on the trial court’s failure to discuss how the parent’s progress, or lack of progress, with the social services plan impacted her future ability to parent. See In the Interest of C.F.C., 156 S.W.3d 422, 430-31 (Mo.App.E.D. 2005).

      . Because we find insufficient evidence to support any of the court's stated grounds for termination, we need not reach Mother’s point IV regarding whether termination was in the children's best interests. Likewise, we do not address Mother’s point III regarding admission of the Division's social summary and the court’s refusal to disqualify itself after receiving that document.

      . Our disposition has no bearing on the Division’s custody of the children or the trial court's jurisdiction over them, nor does it foreclose the possibility of future proceedings to terminate Mother’s parental rights.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Soraya GARNER, Respondent, v. Carl GARNER, Appellant.
    No. ED 85277.
    Missouri Court of Appeals, Eastern District, Division One.
    May 10, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 18, 2005.
    Carl Garner, Muskegon, MI, pro se.
    Soraya Garner, Indianapolis, IN, pro se.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J. and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Appellant, Carl Garner (“Father”), appeals from the judgment of the Circuit Court of St. Louis County granting Respondent, Soraya Garner’s (“Mother”), motion to dismiss Father’s motion to modify. We affirm.

We have reviewed the brief of Father and the record on appeal. As an extended opinion would serve no jurisprudential purpose, we affirm the motion court’s order pursuant to Rule 84.16(b). We have, however, provided a memorandum opinion for the use of the parties setting forth the reasons for our decision.

      . Mother did not file a respondent’s brief.


text:
    Ramon Issacc COLLINS, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85191.
    Missouri Court of Appeals, Eastern District, Division One.
    May 31, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 18, 2005.
    Amanda R. Schehr, Assistant Public Defender, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Leslie E. McNamara, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J. and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Appellant, Ramon Issacc Collins (“Mov-ant”), appeals from the judgment of the Circuit Court of St. Francois County denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. After a jury trial, Movant was convicted of committing violence against an employee of the Department of Corrections, section 217.385 RSMo (2000). Movant was sentenced as a prior offender to fifteen years imprisonment. We affirm.

We have reviewed the briefs of the parties and the record on appeal. As an extended opinion would serve no jurisprudential purpose, we affirm the judgment pursuant to Rule 84.16(b). We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision.

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


text:
    STATE of Missouri, Respondent, v. Roy L. BRITT, Appellant.
    No. ED 84137.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 7, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 18, 2005.
    Timothy J. Forneris, 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.

Roy Britt appeals his convictions of trafficking drugs in the second degree and possession of a controlled substance. Britt contends that the trial court erred in not dismissing, sua sponte, his case for lack of jurisdiction since the State purportedly failed to try him within 180-days after his request for disposition of the charges against him, as required under Sections 217.450 through 217.485, R.S.Mo 2000, known as the Uniform Mandatory Disposition of Detainers Law (“UMDDL”).

We have reviewed the briefs of the parties and the record on appeal. Britt has failed to adduce sufficient evidence demonstrating that the State did not bring him to trial within 180-days after his request for disposition and, thus, his claim that the trial court lacked jurisdiction over his case is unavailing. 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).


author: LISA WHITE HARDWICK, Judge.

text:
    Forest G. PARKER, Appellant, v. CITY OF SAINT JOSEPH, Missouri, Respondent.
    No. WD 64000.
    Missouri Court of Appeals, Western District.
    June 28, 2005.

      Jeffrey W. Bruce, Belton, MO, for Appellant.
    Janice E. Farr, Matthew J. Gist, Kansas City, MO, for Respondent.
    Before HARDWICK, P.J., ULRICH and NEWTON, JJ.
   LISA WHITE HARDWICK, Judge.

Forest Parker, a former supervisory employee for the City of St. Joseph, sought judicial review of his employment termination under the contested case provisions of the Missouri Administrative Procedure Act (“MAPA”), § 536.100, RSMo. 2000. The circuit court dismissed the petition for judicial review based on a lack of subject matter jurisdiction. Parker appeals from the court’s determination that he failed to exhaust his administrative remedies. We affirm the dismissal because Parker failed to arbitrate his employment grievance, as required by the City’s administrative procedure.

Factual and Procedural History

Parker was employed by the City of St. Joseph for twenty-two years as the Superintendent of Waste Water Operations. In March 2003, the City’s Director of Public Works notified Parker that his employment was terminated for cause.

Pursuant to grievance procedures in Section 15 of the City Personnel Code, Parker appealed the Director’s decision to the City’s Personnel Board. Following a hearing, the Personnel Board concluded the decision to remove Parker from his supervisory position was just and reasonable. However, the Board recommended to the City Manager that Parker be demoted to a non-supervisory position instead of being terminated.

After review of the Board’s recommendation, the City Manager upheld the employment termination and notified Parker of his right to pursue arbitration. The City Personnel Code provides that “[t]he decision of the arbitrator on the appeal shall be final and conclusive, except that any decision pertaining to pay, retirement benefits, or the expenditure of money, shall be subject to City Council approval by Ordinance.” § 15.2.6.2. Parker timely filed for arbitration of his grievance.

Prior to the arbitration hearing, Parker also filed a Petition for Judicial Review in the Circuit Court of Cole County. The City moved to dismiss the petition for lack of subject matter jurisdiction because Parker failed to exhaust his administrative remedy of arbitration under the Personnel Code. The circuit court granted the motion to dismiss, and Parker appeals.

Point on Appeal

In his sole point on appeal, Parker contends the circuit court erred in determining that he failed to exhaust all administrative remedies under the City’s Personnel Code. The court concluded it did not have subject matter jurisdiction because arbitration was the final step of the City’s administrative grievance procedure, and Parker prematurely sought judicial review of his employment termination before the arbitration was conducted. Parker argues the City made its final administrative decision when the City Manager terminated his employment. He asserts the arbitration requirement violated his right to immediate and direct judicial review of the City’s final decision, as provided in the Missouri Constitution, Art. V, § 18, and MAPA, § 536.100. Thus, he contends the circuit court could not require him to arbitrate before seeking judicial review of the City’s employment termination decision.

The exhaustion of administrative remedies is a jurisdictional requirement for judicial review under MAPA, § 536.100. “The purpose of exhaustion is to prevent premature interference with agency processes so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record that is adequate for judicial review.” Doody v. State, Dep’t of Soc. Servs., Div. of Child Support Enforcement, 993 S.W.2d 563, 565 (Mo.App.1999). Exhaustion occurs when every step of the administrative procedure has been completed and the agency renders a final decision. Maynes Const. v. City of Wildwood, 965 S.W.2d 949, 952 fn. 1 (Mo.App.1998). “A decision is final if the agency arrived at a terminal, complete resolution of the case.” Hayward v. City of Independence, 967 S.W.2d 650, 652 (Mo.App.1998).

When exhaustion is required and a party fails to pursue all administrative remedies, the circuit court is without subject matter jurisdiction and the only recourse is to dismiss the cause. Golden Rule Ins. Co. v. Mo. Dep’t of Ins., 56 S.W.3d 471, 474 (Mo.App.2001). The propriety of the circuit court’s jurisdiction is “solely an issue of law[,]” which we review de novo. McCoy v. Caldwell County, 145 S.W.3d 427, 428 (Mo. banc 2004).

Parker relies on Asbury v. Lombardi, 846 S.W.2d 196 (Mo. banc 1993), in arguing that he could not be required to arbitrate in order to exhaust his administrative remedies. In Asbury, the constitutionality of the grievance procedure in the State Personnel Law, § 36.390.9, RSMo 1986, was at issue. Id. at 198. The statute permitted aggrieved state employees to appeal final decisions of the Personnel Advisory Board to either the Administrative Healing Commission (AHC) or the circuit court, but not both. Id. at 199. The Supreme Court determined the statutory procedure was unconstitutional because any appeal to the AHC would preclude judicial review. Id. at 202.

The arbitration procedure in the City’s Personnel Code does not preclude judicial review. The Code provision stating that the arbitrator’s decision “shall be final and conclusive” indicates only that arbitration is the terminal step in the administrative procedure. The Asbury decision recognized that additional levels of administrative review may be required, as long as judicial review is immediately available once the agency decision is final. Id. Under the Personnel Code, Parker would be entitled to judicial review immediately after the arbitration decision is rendered and the City Council approves or disapproves any compensation awarded. Accordingly, the City’s grievance procedure does not violate his constitutional or statutory right to have the employment termination decision directly reviewed by the courts.

Parker further argues that a decision from an outside arbitrator is not one from an agency or administrative officer, as is required to invoke jurisdiction for judicial review. That issue was addressed in Roberts v. City of St. Joseph, 637 S.W.2d 98, 101-02 (Mo.App.1982), where we recognized that grievance procedures requiring arbitration as a final step in the public sector is a trend favored by the courts. As mandated by the City’s Personnel Code, the selection and vesting of arbitration power in an outside arbitrator constitutes the arbitrator as a “public body.” Id. at 103. We find nothing improper about the use of an arbitrator here, because the City retains ultimate authority to approve or disapprove any compensation awarded and Parker retains the right to judicial review once the administrative procedure is completed.

The circuit court correctly determined that Parker failed to exhaust his administrative remedies under the City’s grievance procedure. The dismissal of the Petition for Judicial Review is affirmed, as the court did not have subject matter jurisdiction.

All concur.

      . Art. V., § 18 provides in relevant part: “All final decisions, findings, rules and orders on any administrative officer or body existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights, shall be subject to direct review by the courts as provided by law[J”

      . Section. 536.100 provides in relevant part: "Any person who has exhausted all administrative remedies provided by law and who is aggrieved by a final decision in a contested case ... shall be entitled to judicial review thereof ...”

      . The City argued on appeal that this case would not be subject to judicial review as a contested case following the City Manager's decision because Parker did not have a hearing (before the City Personnel Board) at which his legal rights were determined, as required by McCoy, 145 S.W.3d at 428-29. The City concedes, however, that once the arbitration procedure is completed, this would be a contested case subject to judicial review.


author: JAMES K. PREWITT, Judge.

text:
    Harry SIMMONS, Claimant-Appellant, v. BOB MEARS WHOLESALE FLORIST, Employer-Respondent, and Florist Mutual Insurance Company, Insurer-Respondent.
    No. 26673.
    Missouri Court of Appeals, Southern District, Division One.
    July 12, 2005.

      Patricia A. Keck, Keck & Carter, L.L.C., Springfield, MO, for appellant.
    Patrick J. Platter and Jeffrey C. Goodnight, Neale & Newman, L.L.P., Springfield, MO, for respondent.
   JAMES K. PREWITT, Judge.

This is an appeal from the Labor and Industrial Relations Commission (“Commission”). Harry Simmons (“Appellant”) sought worker’s compensation benefits for injuries he suffered while employed at Bob Mears Wholesale Florist (“Employer”). Employer and its insurer, Florist Mutual Insurance Company (“Insurer”), contend that Appellant’s injuries did not arise from his employment. The Division of Workers’ Compensation (“Division”), through an Administrative Law Judge (“ALJ”), awarded compensation to Appellant. The award was reversed by the Commission.

Appellant was employed by Employer five years prior to the accident. Appellant handled Employer’s sales accounts in Arkansas and Missouri. Appellant testified that on August 20,1993, he drove to Mountain Home, Arkansas in Employer’s vehicle. After visiting customers in Mountain Home, Appellant stopped at a liquor store and picked up a half-pint of Jack Daniels whiskey before leaving at 1:30 p.m. that afternoon. Appellant testified that he drove toward Forsyth, Missouri, where he had customers. En route, Appellant stopped at a pull-off on Highway 125 to drink the whiskey. This detour lasted thirty minutes. Appellant recalls leaving the pull-off area but did not remember anything after driving back onto the highway. At 3:25 p.m., Appellant’s vehicle left Highway 76, tore down seventy-five feet of fencing, struck a tree, and caught on fire. The Missouri Highway Patrol Accident Report (“Accident Report”) indicated that Appellant was asleep at the time of the accident, and a physician determined that Appellant suffered from “alcohol intoxication” when he was admitted to St. John’s Hospital in Springfield, Missouri for treatment of his injuries.

Appellant sustained a broken pelvis, broken fibula, burns and cuts over his legs, nerve damage to his elbow, concussion, broken nose, and injuries to his left shoulder. Appellant filed a Claim for Compensation on October 20,1993. Employer and Insurer denied that the accident occurred within the scope of Appellant’s employment, contended that Employer was not responsible for expenses and disability payments, and disputed the nature and extent of injuries. On December 8, 2003, an ALJ found Appellant was within the scope of employment at the time of the accident and that his injuries arose out of and in the course of employment. The ALJ found that “alcohol was not the proximate cause of the accident” and rated Appellant’s disability at “15% permanent partial disability to the body as a whole, less the 15% penalty.”

Employer and Insurer then filed an application for review with the Commission, requesting a reversal of the benefits awarded to Appellant. The Commission concluded that the accident did not arise out of the course of employment, that Appellant “was on an alcohol related frolic, in violation of [Employer] policy, ... left the course of employment and had not returned ... when the accident occurred.” The Commission reversed the ALJ’s decision on November 2, 2004. In its decision, the Commission found:

Employee would not have been on that particular highway except for the fact that he knew that there was less traffic and a recreational area where he would not get caught drinking his alcohol. He deviated from Employer’s business and was serving only his own purpose at the time of the accident.
Because he was drinking alcohol and was unfamiliar with the highway, which admittedly was not a driver-friendly highway, he wrecked. Had he not deviated from his work to go hide and drink he would not have been on that particular highway and more than likely would not have been involved in the accident.
Employee was on an alcohol related frolic, which was entirely personal. He was in violation of Employer’s policy. He was not in a location that he would travel to return to the warehouse in Springfield nor was he headed in the correct direction to continue to Forsyth. He left the course of his employment and had not returned to the course of his employment when the accident occurred. No benefits are awarded.

Appellant filed Notice of Appeal to this Court on November 19, 2004. In his first point, Appellant contends the Commission erred in not awarding benefits, because he was in the course of his employment when the injury arose. Upon review of the Commission’s award, this court examines “the evidence in the context of the whole record” to determine whether “sufficient competent and substantial evidence” supports the award. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo.banc 2003). We defer to the Commission on issues of credibility of the witnesses. Lane v. G & M Statuary, Inc., 156 S.W.3d 498, 506 (Mo.App.2005). Claimant has the burden of showing that the accident arose out of and in the course of employment. Kerns v. Midwest Conveyor, 126 S.W.3d 445, 453 (Mo.App.2004).

“Arising out of’ and “in the course of’ employment are two separate tests, and both must be met before an employee is entitled to compensation. Abel by and through Abel v. Mike Russell’s Standard Service, 924 S.W.2d 502, 503 (Mo.banc 1996). To meet the test of an injury “arising out of’ the employment, the injury must be a natural and reasonable incident of the employment, and there must be a causal connection between the nature of the duties or conditions under which employee is required to perform and the resulting injury. Pullum v. Hudson Foods, Inc., 871 S.W.2d 94, 97 (Mo.App.1994), overruled on other grounds by Hampton, 121 S.W.3d at 228. To arise out of the employment, the injury must be incidental to and not independent of the employment relationship. Drewes v. Trans World Airlines, Inc., 984 S.W.2d 512, 514 (Mo.banc 1999).

An injury is “in the course of’ the employment when it occurs within the period of employment at a location where employee would reasonably be while engaged in fulfilling the duties of employment or something incidental thereto. Pullum, 871 S.W.2d at 97. “In the course of employment” refers to the time, place and circumstances of an employee’s injury. Johnson v. Evans & Dixon, 861 S.W.2d 633, 635 (Mo.App.1993), overruled on other grounds by Hampton, 121 S.W.3d at 229. Each case must be decided on its own facts and circumstances. Pullum, 871 S.W.2d at 97.

In response to cross-examination, Appellant agreed that his work day on August 20, 1993, ended at one o’clock p.m. He said it was “vaguely possible” that his trip to Forsyth was to “goof off.” Appellant admitted he never took Highway 76 as a part of his regular route to Forsyth. Appellant agreed it would be inappropriate to “call upon a retailer” with alcohol on his breath.

Injuries have been held to be compensa-ble “where an employee’s acts were reasonably incidental to commencement of employee’s work and were also for the benefit of the employer.” Bybee v. Ozark Airlines, 706 S.W.2d 570, 572 (Mo.App.1986). Based upon the evidence on the record, the Commission was justified in finding that Appellants actions were a personal “frolic” with no benefit to Employer and outside the course of employment.

Since it has been determined that the Commission had evidence sufficient to find that the accident occurred outside the course of employment, there is no need to discuss Appellants second point regarding the Commissions determination that alcohol was the proximate cause of the accident, if it did so find, or the possible effect of 287.120.6, RSMo 2000.

The award denying compensation is affirmed.

GARRISON, P.J., and RAHMEYER, J., concur.

      . The reduction of fifteen percent was under § 287.120.6(1) "for an injury ... sustained in conjunction with the use of alcohol.”

      . Section 287.120.6, RSMo 2000, covers reduction or denial of worker’s compensation where accidents involve alcohol and non-prescribed, controlled drugs.


author: GARY M. GAERTNER, Presiding Judge.

text:
    James BOLDEN, Respondent, v. SCHNUCKS MARKETS, INC., Appellant.
    No. ED 85408.
    Missouri Court of Appeals, Eastern District, Division One.
    July 12, 2005.

      Mary Anne Lindsey, Robert N. Hender-shot, St. Louis, MO, for Appellant.
    Nicholas B. Carter, St. Louis, MO, for Respondent.
   GARY M. GAERTNER, Presiding Judge.

Appellant, Schnucks Markets, Inc. (“Employer”), appeals the “Temporary Award Allowing Compensation” of the Labor and Industrial Relations Commission (“the Commission”). The Commission found that Respondent, James Bolden (“Employee”), is entitled to temporary total disability benefits and additional medical care/surgical intervention. We dismiss this appeal.

Claimant was hired by Employer on December 14, 1998. During this employment, Claimant worked in the maintenance department. Claimant’s job entailed emptying trash, cleaning walls, moving supplies, scrubbing floors, etc. On August 22, 2002, while working at a Schnucks in La-due, Claimant was standing on top of a dairy cooler moving supplies from a pallet onto the top of the cooler. After moving the supplies, Claimant stepped onto a ladder to come down. Claimant slipped off the ladder, and fell approximately 10 feet to the ground.

For the next two weeks, Claimant continued to perform his duties. However, on September 6, 2002, Claimant told his assistant manager about the accident and the back pain he was experiencing. That same day, he received treatment at the emergency room in St. Mary’s Hospital. On September 17, 2002, Claimant returned to work with the restriction that he was not to lift anything weighing over ten pounds. One week later, Claimant, while continuing to receive treatment for his back problems, resumed performance of full duty work. Claimant’s employment for Employer ended on August 21, 2008.

On December 11, 2002, Claimant filed a claim for compensation alleging that he injured his lower back and body as a whole on August 22, 2002 during the course and scope of employment. On December 13, 2002, Claimant filed an amended claim alleging that he injured his lower back, thoracic spine, and body as a whole. In its answer, Employer admitted that Claimant sustained accidental injury on or about August 22, 2002, for which all necessary compensation benefits and medical aid were provided. On May 4, 2004, Administrative Law Judge Edwin J. Kohner (“the ALJ”) held a hearing on Claimant’s amended claim.

On June 14, 2004, the ALJ issued his “temporary or partial” award. The ALJ denied Claimant’s request for an anterior lumbar interbody fusion and temporary total disability. However, the ALJ did order that an independent medical examination be conducted pursuant to section 287.210 RSMo 2000 to determine whether pain management treatment was necessary as a result of the accident.

On July 1, 2004, Employer filed its application for review with the Commission contending that the ALJ exceeded his authority in appointing Dr. Anthony Guarino (“Dr.Guarino”), pursuant to section 287.210, for the purpose of determining whether pain management was appropriate for Claimant. Claimant did not file a cross-appeal in an attempt to challenge the ALJ’s denial of his request for an anterior lumbar interbody fusion and temporary total disability. On November 3, 2004, the Commission issued its “Temporary Award Allowing Compensation.” The Commission held that the ALJ’s order for a medical examination did not comply with section 287.210, because the ALJ failed to indicate who was to pay for the examination and report prepared by Dr. Guarino. The Commission went on to find that Claimant was entitled to temporary total disability at the rate of $241.66 per week, beginning on September 29, 2003, “and to continue until such time as further award or order is issued addressing temporary total disability.” Additionally, the Commission found additional medical care/surgical intervention is necessary to cure and relieve Claimant from the affects of his injury. The Commission remanded the case for further proceedings as appropriate and stated that its award “is temporary or partial in nature, is subject to further order and shall be kept open until a final award can be made.” This appeal by Employer followed.

In its only point on appeal, Employer argues the Commission exceeded its jurisdiction under the Workers’ Compensation Act in reversing the ALJ’s award concerning temporary total disability benefits and future medical treatment, because the Employer’s application for review filed with the Commission raised only the issue of whether the ALJ erred in ordering an independent medical examination pursuant to section 287.210.

We only have jurisdiction in workers’ compensation cases as expressly conferred by statute. Korte v. Fry-Wagner Moving & Storage Co., 922 S.W.2d 395, 397 (Mo.App. E.D.1996). Pursuant to section 287.495, an appeal from the “final award of the commission” to the appellate court is authorized. Id., quoting Hillenburg v. Lester E. Cox Medical Ctr., 879 S.W.2d 652, 655 (Mo.App. S.D.1994). However, no statutory authority exists for an appeal from a temporary or partial award made pursuant to section 287.510. Abrams v. Ohio Pacific Exp., 819 S.W.2d 338, 343 (Mo.banc 1991). Even if an order of the Commission may arguably have been entered without jurisdiction, this does not make the order appealable if it is not a final award. Chapman v. Didion & Sons Foundry Co., 63 S.W.3d 305, 307 (Mo.App. E.D.2001).

The two situations in which appellate courts will treat the Commission’s award as a final award for purposes of an appeal despite the award’s designation as temporary are: 1) where an award designated temporary is not in fact entered pursuant to section 287.510, but is an award of permanent total disability pursuant to section 287.200; and 2) where an employer claims it is not liable for paying any compensation we may review the issue of the employer’s liability. Korte, 922 S.W.2d at 398 (emphasis added). Under the second exception, a court can review the issues on which liability turns, such as notice or whether an employee’s injuries are work-related. Id.

In this case, the Commission made it clear in its opinion that it issued a temporary award pursuant to section 287.510 rather than an award of permanent total disability pursuant to section 287.200. Thus, the first exception recognized in Korte clearly does not apply here.

As for the second exception, at the hearing before the ALJ, Employer stipulated that: 1) Claimant suffered an injury arising out of and in the course of his employment for Employer; 2) Employer had notice of the injury; and 3) a timely claim for compensation was filed. Employer also stipulated that Claimant has received $6,708 in medical aid from Employer. Under these circumstances, it is apparent that Employer is disputing the extent and duration of liability, rather than all liability. See Sidton v. Vee-Jay Cement Contracting Co., Inc., 937 S.W.2d 334, 336 (Mo.App. E.D.1996), and Jennings v. Crestside Heating & Cooling, 142 S.W.3d 843, 846 (Mo.App. E.D.2004). Thus, the Commission’s temporary award cannot be considered a final award for purposes of appeal. Point denied.

Therefore, we dismiss this appeal based on lack of jurisdiction to hear the claim.

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

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


author: LAWRENCE E. MOONEY, Presiding Judge.

text:
    Randy EPPERSON and David Epperson d/b/a Jordan Home Tek Roofing and Construction, Appellants, v. Allen EISE, Respondent.
    No. ED 85012.
    Missouri Court of Appeals, Eastern District, Division Four.
    July 12, 2005.

      Bruce R. Bartlett, Maryland Heights, MO, for appellants.
    Steven E. Spoeneman, St. Louis, MO, for respondent.
   LAWRENCE E. MOONEY, Presiding Judge.

Randy and David Epperson, who engaged in business as Jordan’s Home-Tek Roofing and Construction, appeal the trial court’s denial of their motions to set aside the judgments entered against them. Because the trial court’s judgments were not default judgments, but rather judgments on the merits that were entered without evidence of the Eppersons’ liability being adduced, we reverse and remand.

The history of this litigation need not be recounted in detail. The Eppersons sued Allen Eise seeking damages for breach of contract arising from their roofing of Eise’s home. Eise counterclaimed alleging numerous counts, including a violation of Missouri’s Merchandising Practice Act. Both the Eppersons and Eise filed answers denying the claims lodged against them. The Eppersons then filed an amended petition, and Eise filed an amended counterclaim, adding additional counts and naming Bruce Bartlett, the Ep-persons’ attorney, as a counterclaim defendant. The Eppersons and Eise each then filed motions to dismiss the claims against them.

Trial was scheduled for June 14, 2004. Twelve days prior to this date, the Epper-sons and Eise filed a joint motion for continuance of the trial because, as stated in the motion, the Eppersons had obtained new counsel and because attorney Bartlett needed to have counsel enter on his behalf. This motion was never called for hearing, or ruled on by the trial court. The cause was called for trial on the appointed trial date. Eise’s attorney appeared, but neither the Eppersons, nor attorney Bartlett, nor anyone on their behalf, appeared. Eise’s attorney dismissed the counterclaim against attorney Bartlett without prejudice. The court dismissed with prejudice the Eppersons’ petition for failure to prosecute because neither they nor anyone on their behalf had appeared or contacted the court and because the Eppersons had previously dismissed their case without prejudice. Further, the trial court also entered a judgment granting a “default and inquiry” on all counts of Eise’s counterclaims, with evidence of damages to be adduced two days hence.

In the intervening day, the Eppersons’ attorney learned of the court’s orders and filed a motion to set aside the “default,” which the court denied. On June 16th, evidence of damages was adduced and on July 8, 2004, the court entered its judgment against the Eppersons for damages and attorneys’ fees for violation of Missouri’s Merchandising Practices Act. As to the remaining counts Eise had filed against the Eppersons, the trial court found no additional damages. The Epper-sons moved to set aside the court’s July 8th judgment, which the trial court also denied. The Eppersons appeal.

On appeal the Eppersons claim that the trial court erred in refusing to set aside the interlocutory and final “default” judgments and in its assessment of damages. We need only consider the trial court’s entry of its two judgments, as it is disposi-tive of the appeal.

Although the underlying judgments are characterized as default judgments, they are not, but rather, they are judgments on the merits. As held by our Supreme Court, “[t]he rule continues to be that where a party ... files a petition, then files an answer to a cross-petition, but fails to appear for trial, the judgment is not a default judgment, but, rather, it is a judgment on the merits.” Cotleur v. Danziger, 870 S.W.2d 234, 237 (Mo. banc 1994). Here, the Eppersons filed a petition, answered the initial counterclaim, and, after the amended counterclaim was filed, moved to dismiss the action against them. This motion to dismiss was still pending at the time of the trial date. Under these circumstances, the judgments entered against the Eppersons are not default judgments but, rather, are judgments on the merits. See Id.; see also, Wilson v. Wilson, 925 S.W.2d 218, 219 (Mo.App. E.D.1996).

As judgments on the merits, the trial court’s judgments in this case cannot stand. It is well established that, as a general rule, a judgment must be supported by legally adduced evidence. Schindler v. McCluskey, 58 S.W.3d 48, 50 (Mo.App. E.D.2001) citing 49 C.J.S. Judgments § 48 (1997). Pleadings are not self-proving. Schindler, 58 S.W.3d at 50. When there is no evidence to support a judgment, the judgment must be reversed and remanded. Id. citing Swallows v. Holden, 723 S.W.2d 576, 578 (Mo.App. S.D.1987). Such is the case here. The court entered judgment against the Eppersons for violation of Missouri’s Merchandising Practices Act without any evidence of their liability being adduced. Eise and the trial court apparently assumed that an order of “default and inquiry” was sufficient to establish the liability of the Eppersons. It is not. Eise needed to adduce evidence of the Eppersons’ violation of the act and this was not done. Because there is no evidence of the Eppersons’ liability to support the court’s judgments, the judgments cannot stand.

In conclusion, because the judgments were judgments on the merits that were entered without any evidence of the Ep-persons’ liability to support the court’s judgments, the judgments cannot stand. Therefore, the denial of the Eppersons’ motions to set aside is reversed and the court’s judgments against the Eppersons on Eise’s counterclaims are set aside. The cause is remanded for further proceedings consistent with this opinion.

LAWRENCE G. CRAHAN and MARY K. HOFF, JJ., concur.

      . The Eppersons' petition was amended, in part, to add Randy Epperson as a party plaintiff, in addition to David Epperson, doing business as Jordan's Home-Tek Roofing & Construction.

      . This motion was filed by Eise’s attorney and an attorney Blanchard on behalf of the Epper-sons. Attorney Blanchard allegedly had been contacted and brought into the case by Mr. Bartlett, though he never formally entered his appearance.

      . The Eppersons do not contest the dismissal of their petition in their appeal.

      . As the Eppersons did not contest the dismissal of their petition in their appeal, that portion of the court’s judgment is not set aside.


author: JEFFREY W. BATES, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jeremiah E. PITTMAN, Defendant-Appellant.
    No. 26203.
    Missouri Court of Appeals, Southern District, Division Two.
    July 13, 2005.

      Rosalynn Koch, Columbia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Leslie E. McNamara, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
   JEFFREY W. BATES, Chief Judge.

Jeremiah Pittman (“Defendant”) was charged by information with the class C felony of tampering with a witness. See § 575.270. Following a jury trial, Defendant was convicted of this offense and sentenced by the trial court to serve four years in prison. Defendant presents two points on appeal. In Point I, Defendant claims the trial court erred in preventing Officer Mark Ringgold (“Ringgold”), the witness allegedly threatened by Defendant, from being cross-examined about arranging Defendant’s quick release from jail so he could work as a police informant. In Point II, Defendant claims the trial court erred in denying his motion for a judgment of acquittal because the evidence was insufficient to prove that Defendant was guilty of witness tampering. We affirm the judgment of the trial court. To better facilitate our discussion of the issues, we will address Defendant’s points in reverse order.

Point II — Sufficiency of the Evidence

In Defendant’s second point relied on, he contends the trial court erred in denying his motion for judgment of acquittal filed at the close of the State’s evidence. The trial court’s denial of the motion was error only if there was insufficient evidence to convict Defendant of the charged offense. See State v. Bass, 81 S.W.3d 595, 614 (Mo.App.2002). Here, the State charged Defendant with tampering with a witness in violation of § 575.270.1. This subsection of the statute states:

A person commits the crime of tampering with a witness if, with purpose to induce a witness or a prospective witness in an official proceeding to disobey a subpoena or other legal process, or to absent himself or avoid subpoena or other legal process, or to withhold evidence, information or documents, or to testify falsely, he: (1) Threatens or causes harm to any person or property; or (2) Uses force, threats or deception; or (3) Offers, confers or agrees to confer any benefit, direct or indirect, upon such witness; or (4) Conveys any of the foregoing to another in furtherance of a conspiracy.

In reviewing the sufficiency of the evidence to prove this charge, we only determine whether the State produced substantial evidence from which a reasonable jury could have found Defendant guilty beyond a reasonable doubt. State v. Bruce, 53 S.W.3d 195, 198 (Mo.App.2001); State v. Webber, 982 S.W.2d 317, 324 (Mo.App.1998). “Substantial evidence is evidence from which the trier of fact could reasonably find the issue in harmony with the verdict.” State v. Gomez, 863 S.W.2d 652, 655 (Mo.App.1993). It is the jury’s function to weigh the evidence and determine issues of witness credibility. See State v. Rose, 86 S.W.3d 90, 105 (Mo.App.2002). Therefore, “we accept as true all evidence favorable to the State, including all favorable inferences drawn therefrom, and we disregard all evidence and inferences to the contrary.” State v. Bright, 963 S.W.2d 423, 429 (Mo.App.1998). We have summarized the evidence presented at trial in accordance with these principles.

In May 2001, Ringgold was working for the Springfield Police Department as an undercover narcotics officer. Ringgold had been given a cell phone to use while working as an undercover officer so persons whom he was investigating for drug offenses would have a way to contact him. On May 31st, Ringgold purchased drugs from Defendant, who was known by the “street name” of Matt. Ringgold paid Defendant $580 for the drugs. After this initial encounter, Ringgold spoke with Defendant two or three more times by telephone.

On September 24, 2002, Ringgold met Elwin Jenkins (“Jenkins”) and purchased narcotics from him for $240. During that meeting, Ringgold gave Jenkins his cell phone number so they could arrange future drug transactions. Thereafter, Ring-gold spoke with Jenkins five or six times by telephone.

On the 30th or 31st of September, 2002, Ringgold drove to a gas station to purchase more drugs from Jenkins. When Jenkins arrived, he had several passengers in his vehicle. Several persons in Jenkins’ car got out and went inside the store. Defendant was one of Jenkins’ passengers. When Jenkins came back outside, he approached Ringgold’s vehicle. Jenkins stated that one of his friends had said Ringgold “was a snitch with the police department.” Ringgold denied the accusation, but Jenkins did not sell Ringgold any drugs that night. Soon after this incident, Ringgold received a threatening telephone call. This was the first such call he had received while working on over 200 narcotics investigations.

At some point, Defendant was arrested and charged with distribution of a controlled substance, based upon his sale of drugs to Ringgold on May 31, 2001. Defendant’s preliminary hearing on this charge was set for October 23, 2002. Ringgold was subpoenaed to testily as a witness against Defendant at this hearing. In order to preserve Ringgold’s undercover identity, he was dressed in jeans and a T-shirt. This was the same attire he typically wore during undercover operations. While Ringgold was sitting on a bench outside of the courtroom and waiting to be called as a witness, three individuals approached and sat down on the opposite end of the bench. Ringgold recognized Defendant and Jenkins, but he did not know the third person. Both Defendant and Jenkins accused Ringgold of being “a snitch or informant.” Ringgold did not reply to the accusation or disclose that he was actually a police officer. Ringgold was not required to testify because Defendant waived his preliminary hearing. His next court appearance was scheduled for November 1, 2002.

Ringgold left the courthouse at approximately 10:30 a.m. and returned to the narcotics unit office. At about 11:30 a.m., Ringgold received a call on his cell phone while he was in the break room with approximately 10 other police officers. The caller hung up when Ringgold answered, and the caller ID feature of Ringgold’s cell phone did not register a number to show who had called.

At 11:51 a.m., Ringgold received a second call. He attached a microcassette recorder to the phone and was able to record a portion of the call, which lasted about 10 seconds. During that short conversation, the caller threatened to put Ringgold “in a f_meat locker.”

When Ringgold received a third call a couple of minutes later, he was able to record all of it. During that call, three or four people spoke to Ringgold via a speakerphone. Ringgold was able to identify Defendant, Jenkins and another individual named Timothy Ruble (“Ruble”) by them voices. The tape-recording of this call was admitted in evidence and played for the jury. The conversation lasted about 10 minutes. During this call, the following statements were made to Ringgold:

1. “I’m gonna put your ass in a f_body bag and your gonna meet the grim reaper m_ f_,.”
2. “[Y]ou better look over your shoulder for real man, I’m not playing with you.”
3. “We know where you live now.”
4. “[w]hat were you doing in court, snitching, right....”
5. “It’s amazing that people call me up, my boy Matt calls me up, tells me he’s got this snitch in court, give me your number, but uh yeah, watch yourself.”
6. “I’m gonna pick my teeth with your m_f_bones, I swear to God.”
7. “Dog you know, whenever you go into court next time ... [a]nd I get my charges dropped, you feel me.”
8. “Gonna kill your little family, dog, just like Capone.... ”
9. “[Y]ou remember white boy walking up there in the gas station, you know what I’m saying, I said you was a snitch....”
10. “Well, I’ll just put it like this dog, don’t get into your car too quick.”
11. “Don’t worry m f , we’re on the way.”

Ringgold identified Jenkins as the person who said he would put Ringgold in a body bag and pick his teeth with Ringgold’s bones (statements 1 and 6, supra). Pittman made the statement that Ringgold had better look over his shoulder (statement 2, supra). Ringgold could not identify who made the other statements listed above.

At the conclusion of the third call, Ringgold made arrangements to have Defendant arrested for tampering with a witness. When Defendant arrived at the police department around 1:30 p.m., he was interviewed by Ringgold after being given a Miranda warning and signing a waiver form. Defendant admitted that he participated in the calls, and he prepared and signed a handwritten document which stated:

I was cooking steaks, and I heard the speaker phone on, so I came in there, and they said it was the informant. So I asked him how much he liked being a snitch and how much he got paid for it. I was mainly just clowning on him. It was a joke, but I did not threaten him.

Ringgold testified, however, that people in the drug culture do not joke about being a snitch. Typically, snitches are threatened with death, and informants are always concerned about their safety when they provide information to the police. During the third phone call, one of the persons on the speakerphone made a reference to his charges being dropped the next time Ring-gold went into court. Ringgold described this as a reference to the fact that charges against a suspect will be dropped if an informant refuses to testify.

As noted above, the issue for us to decide is whether the State presented substantial evidence from which a reasonable jury could have found Defendant guilty beyond a reasonable doubt of the crime of tampering with a witness. The elements which the jury had to find in order to return a verdict of guilty were contained in Instruction No. 5, the State’s verdict-directing instruction. It is set out in full below:

INSTRUCTION NO. 5

A person is responsible for his own conduct and he is also responsible for the conduct of other persons in committing an offense if he acts with the other persons with the common purpose of committing that offense or if, for the purpose of committing that offense, he aids or encourages the other persons in committing it.

If you find and believe from the evidence beyond a reasonable doubt:

First, that Officer M. Ringgold was a witness in State v. Jeremiah Pittman 302CF8599, and
Second, that such proceeding was an official proceeding, and
Third, that on or about the 23rd day of October, 2002, in the County of Greene, State of Missouri, the defendant and the other person or persons made a telephone call to Officer M. Ringgold where Officer M. Ringgold was told
“I’m gonna put your ass in a f_body bag.”
“You better look over your shoulder, for real man, I’m not playing with you”
“I’m gonna pick my teeth with your m_f_bones, I swear to God”
Fourth, that in so doing, the defendant and the other person or persons threatened to kill Officer Ringgold and
Fifth, that the defendant so acted with the purpose to influence M. Ringgold to •withhold information in connection with such official proceeding, and
Sixth, that this official proceeding was a prosecution for a drug felony,

then you are instructed that the offense of tampering with a witness has occurred, and if you further find and believe from the evidence beyond a reasonable doubt:

Seventh, that with the purpose of promoting or furthering the commission of that tampering with a witness, the defendant acted together with Elwin Tyler Jenkins and other person(s), in committing the offense,

then you will find the defendant guilty of tampering with a witness.

However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.

As used in this instruction, the term “official proceeding” means any cause, matter or proceeding where the laws of this state require that evidence considered therein be under oath or affirmation and includes the felony case State v. Jeremiah Pittman 302CF8599.

At trial, Defendant admitted the First, Second and Sixth paragraphs of this instruction, so only paragraphs Third, Fourth, Fifth and Seventh were in dispute.

In Defendant’s second point on appeal, he challenges the sufficiency of the evidence to prove that he was guilty of witness tampering. Defendant concedes the evidence proved that Ringgold was threatened, but “there was no showing that [Defendant] acted with a common purpose to intimidate the officer and prevent his testimony in a court proceeding.” We disagree.

In late September 2002, Defendant was with Jenkins when he first learned that Ringgold might be an informant. Jenkins immediately backed out of a planned drug sale, and Ringgold received his first-ever threatening telephone call shortly after-wards. Jenkins and Defendant both came to the Greene County Courthouse on October 23, 2002. When they saw Ringgold and realized he was there to testify against Defendant, they again accused Ringgold of being a snitch. The series of three threatening phone calls to Ringgold took place within an hour after he left court. He received these calls on the cell phone he used to set up drug deals, and he had given that phone number to Jenkins. The specific threats against Ringgold’s life that were submitted in paragraph Third of Instruction No. 5 all took place during the third phone call to Ringgold. Defendant admitted he participated in this call, which was made immediately after Defendant discovered Ringgold was a witness against Defendant in a felony drug possession case. Ringgold had not yet testified, and further proceedings in the case were scheduled to occur nine days later. Defendant and Jenkins both participated in making the threats against Ringgold’s life. Defendant was identified as the person who said, “you better look over your shoulder for real man, I’m not playing with you.” Jenkins was identified as the person who made the other two statements submitted in paragraph Third. The jury could infer that they did so to induce Ring-gold not to testify because: (1) they had both sold drugs to Ringgold; (2) they knew he could testify against each one of them; and (3) they knew charges against a drug suspect could be dismissed if an informant refused to cooperate with the prosecutor.

In sum, the State presented substantial evidence to support each disputed element of Instruction No. 5. Based on that evidence, a reasonable jury could have found beyond a reasonable doubt that Defendant was guilty of tampering with a witness because he and Jenkins threatened Ring-gold for the purpose of intimidating him and thereby dissuading him from testifying against Defendant in his pending criminal trial or against Jenkins in any future criminal proceedings involving him. Defendant’s second point is denied.

Point I — Exclusion of Evidence During Cross-examination

In Defendant’s first point on appeal, he claims the trial court erred when it sustained objections to Defendant’s proposed cross-examination of Ringgold concerning Defendant’s release from jail to work as a confidential informant for the police after being arrested for witness tampering. Defendant argues this line of cross-examination should have been permitted because it was relevant to rebut Ringgold’s testimony that he feared for his safety after the phone call from Defendant and to show that Defendant did not intend to threaten Ringgold. The additional facts necessary to understand and decide this point are set forth below.

Prior to trial, the State filed a motion in limine to exclude any references to Defendant’s opportunity to work for the police. At the hearing on the motion, Defendant’s counsel alleged that Defendant had been released to work as a confidential informant for the police on the same day he had been arrested. Counsel contended such evidence would be relevant to show Ringgold did not take the threats made during the phone calls seriously, which would help the jury determine whether the statements were really intended as threats. The trial court sustained the State’s motion because the judge did not “think the later use of [Defendant] as an informant is going to shed any information at all on his intent at the time the call was made.”

During Ringgold’s cross-examination, defense counsel asked the trial court to reconsider its ruling on the motion in li-mine “prohibiting cross-examination and testimony on [Defendant’s] release from the jail and later attempt or nonattempt at cooperation with Officer Ringgold.” Counsel offered a variety of reasons why he believed such testimony would be relevant. The trial court adhered to its prior ruling because the information defense counsel sought to elicit was neither logically nor legally relevant; it shed no light on what Defendant or the other speakers intended when they made the statements on the tape-recording.

During cross-examination, defense counsel elicited testimony from Ringgold that he laughed when Jenkins said he was going to pick his teeth with Ringgold’s bones. On redirect examination, Ringgold testified that he laughed because he did not want to show any fear to the callers or in front of his fellow police officers in the break room. Ringgold explained that “a way for [him] to deal with that fear would be through humor, and that’s why [he] would laugh at times.”

Prior to re-cross examination, defense counsel approached the bench and asked to impeach Ringgold by showing that he secured Defendant’s release from jail. Counsel argued that the State had opened the door to the issue of Ringgold’s state of mind by inquiring about Defendant’s fear during the phone call. The trial court ruled that Ringgold’s state of mind was not relevant and stated that he would not permit defense counsel to go beyond the events that actually occurred during the recorded telephone call.

After this ruling, Ringgold was asked a few more questions by the prosecutor and defense counsel. The witness was then excused without defense counsel making any offer of proof concerning the specific testimony he sought to elicit from Ring-gold.

Defendant argues that, pursuant to the doctrine of curative admissibility, he should have been permitted to pursue his proposed cross-examination of Ringgold because the State opened the door to the admission of this testimony. This point fails because Defendant failed to make an offer of proof concerning the evidence he claims the trial court erroneously excluded.

When a trial court sustains an objection to proffered evidence, the party offering the evidence must demonstrate its relevancy and materiality by way of an offer of proof to preserve the matter for appellate review. State v. Hall, 117 S.W.3d 744, 752 (Mo.App.2003); State v. Dodd, 10 S.W.3d 546, 556 (Mo.App.1999). The offer of proof must state facts that are specific and sufficiently detailed to establish the admissibility of the evidence sought to be introduced. State v. Hunter, 957 S.W.2d 467, 470 (Mo.App.1997). Mere statements and conclusions of counsel are insufficient. State v. Hurtt, 836 S.W.2d 56, 59 (Mo.App.1992). “The preferred method of making an offer of proof is to question the witness on the stand out of the jury’s hearing.” Dodd, 10 S.W.3d at 556; see Hunter, 957 S.W.2d at 470. In the absence of an offer of proof, we have no way of knowing exactly what testimony defense counsel intended to elicit from Ringgold. An appellate court is not able to determine the legal issue of admissibility without knowing “exactly what evidence was excluded.” State v. Pisciotta, 968 S.W.2d 185, 189 (Mo.App.1998); see Hall, 117 S.W.Sd at 752. Defendant’s first point is denied because the issue it presents is not preserved for appellate review. State v. Kinder, 942 S.W.2d 313, 329 (Mo. banc 1996); State v. Harris, 870 S.W.2d 798, 809 (Mo. banc 1994).

The judgment of the trial court is affirmed.

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

      . All references to statutes are to RSMo (2000).

      . The court ordered this sentence to run consecutively to a five-year sentence imposed upon Defendant for committing the class B felony of distribution of a controlled substance. Both terms of imprisonment were imposed by the trial court during a consolidated sentencing hearing.

      . A street name is a nickname that a person in the drug culture uses to hide his identity.

      . Ruble was another individual from whom Ringgold had purchased controlled substances.

      . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The speaker stated, "Dog you know, whenever you go into court next time ... And I get my charges dropped, you feel me.”

      . Counsel argued this proposed line of cross-examination was relevant for five reasons: (1) to provide greater context into how serious this threat was; (2) to impeach Ringgold's testimony on direct examination; (3) to elicit testimony that no other threats took place after the telephone calls on October 23rd; (4) to show that Defendant was rearrested because he was not producing, rather than any fear on Ringgold's part; and (5) to rebut the inference that Defendant’s immediate arrest occurred because the threat was serious.