author: NANNETTE A. BARER, Judge.

text:
    Brian P. CALLANAN, Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Respondent.
    No. ED 84911.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 3, 2005.

      Williams E. Roberts, Jefferson City, MO, for appellant.
    William G. Buchholz, Clayton, MO, for respondent.
   NANNETTE A. BARER, Judge.

The Director of Revenue (“Director”) revoked the license of Brian Callanan (“Driver”) after he was pulled over for driving while intoxicated. Driver filed a Petition for Trial De Novo and his case was considered on May 25, 2004. The Commissioner recommended that Driver’s driving privileges should not be revoked because the officer who arrested him did not have probable cause. The Commissioner determined that the police report was not credible or rehable due to inconsistencies of timing notations in the report. The Honorable Barbara Wallace adopted the findings and recommendations of the Commissioner as the judgment of the Court on June 15, 2004. The Director appeals.

Background

The Department of Revenue revoked Driver’s license pursuant to Section 302.505. On May 25, 2004, the Circuit Court took up the matter. The parties submitted the case solely on the Department of Revenue’s records, which showed the following: On January 24, 2004, at approximately 2:05 a.m., Officer Gerald Watkins (“Officer Watkins”) of the St. George Police Department observed a white Dodge pickup driving at an excessive rate of speed on a public street in St. George, Missouri. Officer Watkins watched as the vehicle weaved from side to side and straddled the lane divider markings, and at one point nearly left the road. Officer Watkins followed the vehicle for approximately one quarter of a mile after activating his police siren before the truck finally turned onto the shoulder and stopped.

Officer Watkins’ narrative reports that the driver of the pickup identified himself as Brian P. Callanan. Officer Watkins noted that Driver’s “eyes appeared glassy and watery, and his face was flushed, and he ... appeared intoxicated.” Watkins also noted in his Alcohol Influence Report that Driver’s speech was slurred and confused and that Driver swayed, wobbled and stumbled. Officer Watkins further recorded that Driver admitted that he “had a couple of beers” before driving. Officer Watkins administered four field sobriety tests.

According to Officer Watkins, during the Walk-and-Turn test, Driver failed to maintain a heel-to-toe stance, started before • the instructions were completed, stopped to steady himself, failed to touch heel-to-toe, lost balance and stepped off the line, used his arms for balance, and failed to perform the correct number of steps. During the One Leg Stand test Driver swayed while balancing, used his arms to balance, hopped and ultimately could not do the test because he put his foot down three or more times. Driver skipped several letters when Officer Watkins asked him to recite the alphabet.

Officer Watkins also administered the Horizontal Gaze Nystagmus test, and noted that Driver exhibited lack of smooth pursuit and distinct nystagmus at maximum deviation, with onset before 45 degrees. In addition, Officer Watkins administered a preliminary breath test which was positive for alcohol. Officer Watkins then advised Driver that he was under arrest for driving while intoxicated and weaving and lane straddling. He advised Driver of his rights and of the Missouri Implied Consent Law. Officer Watkins searched Driver, handcuffed him and placed him in the rear of the officer’s car.

According to Officer Watkins’ narrative, he again advised Driver of his rights and the Implied Consent Law upon their arrival at the St. George’s Police Department. Driver agreed to take a breath test at 2:46 a.m. Officer Watkins conducted the test, which indicated that Driver had a blood alcohol concentration by weight (“BAC”) of 0.130%. Officer Watkins issued two citations to driver, one for driving while intoxicated and the other for weaving and lane straddling. He also issued a Notice of Suspension/Revocation. Pursuant to Section 302.505, the Department of Revenue revoked Driver’s license.

On March 31, 2004, Driver filed a Petition for Trial De Novo in the Circuit Court of St. Louis County. At trial, the Director of Revenue submitted Officer Watkins’ Alcohol Influence Report, the checklist and printout from Driver’s breath test, and the maintenance report for the instrument used to conduct the test. The Director also submitted Driver’s driving record, showing that Driver had another alcohol-related contact with law enforcement during the five years prior to his arrest on January 24, 2004. Driver’s counsel did not object, and the Court ■ admitted the records.

Driver did not testify at the trial, and his counsel presented no testimony or evidence disputing that the events that Officer Watkins described in the records actually occurred or that the breath test was improperly administered. Driver’s counsel took issue with the timing of events as recorded by Officer Watkins, asserting that Officer Watkins’ timekeeping was inconsistent. Driver’s counsel asserted that the records indicated that Officer Watkins stopped Driver at 2:05, arrested him at 2:06, interviewed him at 2:07 a.m., administered the Implied Consent warning at 2:46 a.m., and read Driver the Miranda warning at 2:56 a.m.

The Commissioner heard the case and issued her findings and recommendations on May 25, 2004. The Commissioner recommended reinstatement of the driving privileges of Driver after determining that the arresting officer did not have probable cause to arrest Petitioner for driving while intoxicated or an alcohol-related traffic offense because the police report was found not to be credible and/or reliable due to inconsistencies of the officer. The Honorable Barbara Wallace adopted the findings and recommendations of the Commissioner as the judgment of the Court on June 15, 2004. The Director timely appeals this ruling. The Director maintains that this ruling was against the weight of the evidence. The Director states that the ruling should be reversed because the Director made a prima facie case for revocation of driving privileges.

Standard of Review

“The decree or judgment of the trial court will be sustained by this court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously de-dares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). While this court shall defer to the findings of the trial court where credibility of witnesses is involved, there is no need to do so where the disputed question is not a matter of direct contradictions by different witnesses. Hopkins-Barken v. Director of Revenue, 55 S.W.3d 882, 885 (Mo.App. E.D.2001). If the evidence is uncontroverted and the real issue is that of the legal effect of the evidence, there is no need to defer to the trial court’s judgment. Verdoorn v. Director of Revenue, 119 S.W.3d 543, 545 (Mo. banc 2003). Appellate courts do not give any deference to a trial judge’s determination regarding the credibility of witnesses in cases submitted solely upon a written record. Jarrell v. Director of Revenue, 41 S.W.3d 42, 45 (Mo.App. S.D.2001). Our standard of review does not permit us to disregard uncontroverted evidence that support’s Director’s contention that all elements were proved. Id. This court may not affirm the judgment by disregarding all uncontroverted evidence that supports the Director’s determination that all elements for an administrative revocation of driving privileges were proven. Brown v. Director of Revenue, 85 S.W.3d 1, 7 (Mo. banc 2002).

Discussion

At the time of Callanan’s arrest, Section 302.505.1 required suspension or revocation whenever a person is arrested upon probable cause to believe such a person was driving a motor vehicle while blood alcohol concentration in the person’s blood, breath, or urine was .08% by weight. Under Section 302.535.1, the Director has the burden of proof to establish grounds for suspension or revocation. To make a prima facie case for suspension or revocation under Section 302.505-535, the Director must establish by a preponderance of the evidence that: (1) the driver was arrested upon probable cause for driving while intoxicated or for violating an alcohol-related offense; and (2) that the driver was driving with a blood alcohol concentration of at least .08% by weight. Verdoorn, 119 S.W.3d at 545. In this case, the only issue is whether Officer Watkins had probable cause to arrest Driver.

The probable cause required for the suspension or revocation of a driver’s license is the level of probable cause necessary to arrest a driver for an alcohol-related violation. Brown v. Director of Revenue, 85 S.W.3d at 4. That level of probable cause will exist, when a police officer observes an unusual or illegal operation of a motor vehicle and observes indi-cia of intoxication upon coming in contact with the motorist. Id. Probable cause, for the purposes of Section 302.505, will exist when the surrounding facts and circumstances demonstrate to the senses of a reasonably prudent person that a particular offense has been or is being committed. Id.

The level of proof necessary to show probable cause under Section 302.505 is substantially less than that required to establish guilt beyond a reasonable doubt. Id. There is a “vast gulf’ between the quantum of information necessary to establish probable cause and the quantum of evidence required to prove guilt beyond a reasonable doubt. Id. The trial court must assess the facts by viewing the situation as it would have appeared to a prudent, cautious, and trained police officer. Id.

In two analogous cases, this court has found facts were sufficient to create reasonable grounds and probable cause to believe the driver was intoxicated. In one case, the police officer pulled the driver over after observing her vehicle weaving on the highway and leaving the roadway. Soest v. Director of Revenue, 62 S.W.3d 619, 621 (Mo.App. E.D.2001). When the officer stopped the driver, the officer noticed that the driver had watery eyes. Id. at 620. The driver also admitted to drinking a beer several hours earlier. Id. at 621. The officer administered the horizontal gaze nystagmus test, which showed impairment. Id. at 620. This court held that these facts constituted reasonable grounds to believe that the driver was intoxicated. Id. at 621.

This court also found probable cause in another similar case. Thurman v. Director of Revenue, 745 S.W.2d 260 (Mo.App. E.D.1988). In that case, the police officer stopped Thurman after he observed his vehicle weaving on the road. Id. at 262. Thurman’s eyes were bloodshot and his speech was slurred. Id. Thurman was unable to satisfactorily complete several field sobriety tests. Id. This court held that these facts were sufficient to show probable cause, and that “a finding of no probable cause based upon the evidence before the court would have been erroneous.” Id.

In the case at hand, the court found the officer could not have had probable cause to arrest Driver. However, Officer Watkins indicated in his report that he observed Driver traveling at an excessive rate of speed, weaving, straddling the dividing line, nearly leaving the roadway, and continuing on even after Officer Watkins activated his emergency eqúipment. Once Officer Watkins stopped the vehicle and identified Callanan as the driver, Watkins noted that he exhibited slurred speech; confusion; watery, bloodshot, and glassy eyes; and a swaying, stumbling and wobbling gait. Driver admitted before being arrested that he had consumed a couple of beers that evening. Officer Watkins also noted that Driver was unable to fully and satisfactorily perform any of the field sobriety tests as instructed, and that a portable breath test indicated the presence of alcohol.

Driver maintains, however, that timing notations in the alcohol influence report rebut the argument of the Director and negate probable cause. If the director presents evidence to establish the elements of the prima facie case, a presumption arises that the driver was intoxicated. Verdoorn, 119 S.W.3d at 546. The driver must present “some evidence” that the driver’s blood alcohol level did not exceed the legal limit. Id. Merely pointing out inconsistencies in the Director or Revenue’s case is not sufficient. Id. Director’s establishment of a prima facie case shifts the burden of production onto the driver to adduce evidence that his blood alcohol level did not exceed the legal limit. Id.

Driver argues that the alcohol influence report states that the time of initial contact was 2:05 a.m. and the time of arrest was 2:06 a.m. He maintains that the officer could not have gained probable cause in the one minute from contacting Driver to arresting him. However, a careful look at the alcohol influence report reveals a different interpretation of the time notations. The report indicates that 2:05 a.m. was the “time of initial contact.” The 2:06 a.m. notation is in the box titled “arrest/stop.” The “interview start time” at 2:07 a.m. At 2:56 a.m. Driver was advised that he was under arrest, and informed of his rights.

It is clear that Officer Watkins did not arrest Driver at 2:07 a.m., but that at 2:07 a.m. he pulled Driver over to conduct a stop. He then began to interview Driver. All of this occurred before Driver was advised that he was being arrested. Officer Watkins’ narrative also indicates that this was the sequence of events. The interpretation of the time sequence urged by Driver, that Officer Watkins arrested Driver one minute after first observing him, is not supported by the evidence.

Even if this time sequence is inconsistent, we cannot hold that Officer Watkins did not have probable cause. Mere inaccuracy in timekeeping cannot rebut the Director’s prima facie case. Officer Watkins’ account of the actual events of the morning in question is uncontradict-ed. Erratic driving, slurred speech, unsteady gait, and poor performance on the field sobriety tests, coupled with his admission of drinking gave Officer Watkins probable cause to support Driver’s arrest. Driver’s assertions regarding mere inconsistencies in Officer Watkins’ timekeeping do not meet the standard that the Supreme Court reaffirmed in Verdoom for rebuttal of the Director’s prima facie case.

We find that Officer Watkins had probable cause to arrest Driver for driving while intoxicated and the trial court erred as a matter of law when it ruled otherwise. Accordingly, we reverse the trial court’s judgment and remand to the trial court to enter judgment reinstating the revocation of petitioner’s license.

CLIFFORD H. AHRENS, P.J., and GLENN A. NORTON, J., concur.

      . All statutory references are to RSMo.2004 unless otherwise indicated.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Rick COLEMAN, Respondent, v. HUSSMANN CORPORATION, Appellant.
    No. ED 85104.
    Missouri Court of Appeals, Eastern District, Division One.
    May 3, 2005.
    E. Thomas Líese, St. Louis, MO, for appellant.
    Robert W. Meyers, St. Louis, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Hussmann Corporation (“Employer”) appeals from the decision of the Labor and Industrial Relations Commission (“the Commission”) finding Rick Coleman (“Employee”) sustained 40% permanent partial disability in each elbow. Employer claims the Commission erred in making independent findings that differed from the Administrative Law Judge’s findings.

We have reviewed the briefs of the parties, the legal file, and transcripts on appeal. The Commission’s decision is supported by competent and substantial evidence on the record. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003). An extended opinion reciting the detailed facts and restating the principles of law would have no prece-dential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for the order affirming the Commission’s decision pursuant to Rule 84.16(b).


text:
    Keelan PAYNE, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 84861.
    Missouri Court of Appeals, Eastern District, Division One.
    May 3, 2005.
    Maleaner R. Harvey, St. Louis, MO, for appellant.
    Deborah Daniels, Jefferson City, MO, for respondent.
    Before SHERRI B. SULLIVAN, P.J., BOOKER T. SHAW, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Keelan Payne (Movant) appeals from the judgment denying his motion for post-conviction relief under Rule 24.035 without an evidentiary hearing. Movant asserts the motion court clearly erred in denying his claim that his counsel was ineffective, because he promised Movant that if he entered a blind plea he would only receive a seven or eight-year sentence and would also receive drug treatment.

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


text:
    Randy ADAMS, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84780.
    Missouri Court of Appeals, Eastern District, Division One.
    May 3, 2005.
    Michelle Murphy Rivera, St. Louis, MO, for appellant.
    Deborah Daniels, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Randy Adams (“Movant”) appeals from the motion court’s judgment denying his post-conviction motion pursuant to Rule 29.15 without an evidentiary hearing, alleging ineffective assistance of counsel. Mov-ant was convicted of one count of possessing a prohibited article in a correctional facility pursuant to Section 217.360.1, RSMo 2000. Movant was sentenced to serve fifteen years imprisonment. This Court affirmed Movant’s conviction. State v. Adams, 120 S.W.3d 232 (Mo.App. E.D.2003).

In his sole point on appeal, Movant claims his trial counsel was ineffective for failing to investigate and call as witnesses two other inmates who were allegedly present during the altercation that led to the confiscation of the prohibited item from Movant. Movant claims these witnesses would have provided him with a complete defense to the charge and would cast doubt upon a correctional officer’s testimony with respect to the circumstances surrounding the confiscation of the prohibited item.

We have reviewed the briefs of the parties, the legal file, and the transcript and find the motion’s court decision was not clearly erroneous. White v. State, 939 S.W.2d 887, 904 (Mo. banc 1997); Rule 29.15(k). An opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for the order affirming the judgment pursuant to Rule 84.14(b). The judgment is affirmed pursuant to Rule 84.16(b).


text:
    Warren BENNING, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84775.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 3, 2005.
    Amanda R. Schehr, Assistant Public Defender, St. Louis, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.

    Before PATRICIA L. COHEN, P.J., CLIFFORD H. AHRENS, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Warren Benning (“Movant”) appeals from the Judgment and Order of the Circuit Court of St. Charles denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. In his appeal, Movant contends that the motion court erred when it denied his Rule 29.15 motion without an evidentiary hearing because Movant pleaded facts which, if true, would warrant post-conviction relief based upon ineffective assistance of trial counsel.

We have reviewed the briefs of the parties and the record on appeal and find the motion court’s decision was not clearly erroneous. Helmig v. State, 42 S.W.3d 658, 665-66 (Mo.App. E.D.2001). An extended opinion would have no precedential value. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision.

We affirm the award pursuant to Rule 84.16(b).


text:
    Marion L. HYSON, Plaintiff/Counterclaim Defendant/Respondent, v. James W. JONES, and Defendant/Appellant, Shirley Ferguson, Defendant/Crossclaim Defendant, and James J. Below and Mary Below, Defendants/Counterclaimants/ Crossclaimants/Appellants, and James J. Below and Mary Below, Defendants/Counterclaimants/ Crossclaimants/Appellants, v. Phyllis Schwab, Personal Representative of the Estate of Beulah Green, Crossclaim Defendant.
    No. ED 84751.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 3, 2005.
    James E. Spain, Poplar Bluff, MO, Attorney for James W. Jones; James J. Below and Mary Below.
    Tom K. O’Loughlin II, Counsel, and Erica Dawn Koetting, Co-Counsel, O’Lough-lin, O’Loughlin & Koetting, L.C., Cape Girardeau, MO, Attorney for Marion L. Hyson.
    Chris N. Weiss, Lichtenegger Law Firm, Jackson, MO, Attorney for Phyllis Schwab.
    Before LAWRENCE E. MOONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARY K. HOFF, J.
   ORDER

PER CURIAM.

James W. Jones (Jones), James J. Below, and Mary Below (Belows) appeal the trial court judgment entered, after a non-jury trial, in favor of Marion L. Hyson (Hyson) on Hyson’s petition to set aside a Will and related Deeds and other instruments executed by Beulah Green (Decedent) in favor of Jones on the ground of undue influence. In its judgment setting aside the Will and decreeing that title to the real estate was subject to administration by the probate court handling Decedent’s estate, the trial court also denied the request for relief the Belows sought in their counterclaim and in them crossclaim regarding Deeds and a Deed of Trust executed by Jones in favor of the Belows.

We have reviewed the briefs of the parties, the legal file, and the record on appeal, and find the claims of error to be without merit. The judgment of the trial court is supported by substantial evidence and is not against the weight of the evidence. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. The judgment is affirmed in accordance with Rule 84.16(b).

The parties have been furnished with a memorandum, for their information only, setting forth the reasons for the order affirming the judgment pursuant to Rule 84.16(b).


text:
    NATIONAL TAX ASSISTANCE CORPORATION, Plaintiff/Respondent, v. Emanuel WASHINGTON, Defendant/Appellant, and Maxine Washington, et al., Defendants.
    No. ED 84945.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 3, 2005.
    Jennifer A. Bierman, Gallop, Johnson & Neuman, L.C., St. Louis, MO, for respondent.
    Emanuel Washington, Party Acting Pro Se, Florissant, MO, for appellant.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Defendant, Emanuel Washington, acting pro se, appeals from the trial court’s entry of summary judgment in favor of plaintiff on plaintiffs ejectment action. No error of law appears. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for our order affirming the judgment pursuant to Rule 84.16(b).

Plaintiffs motion to dismiss defendant’s brief is denied as moot. Defendant’s motion to dismiss plaintiffs motion is denied.


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

text:
    STATE of Missouri, ex rel. FAMILY SUPPORT DIVISION and Tinikia Damon, Individually and as Next Friend of Javon Weatherspoon, Relators, v. Hon. Calea STOVALL-REID, Judge of Division 14, City of St. Louis Circuit Court, Respondent, and Joseph Weatherspoon, Respondent.
    No. ED 85930.
    Missouri Court of Appeals, Eastern District, Writ Division Three.
    May 3, 2005.

      Marta H. Tilney, St. Louis, MO, for relator.
    Maribeth McMahon, City Counselor’s Office, St. Louis, MO, for respondent.
    Joseph Weatherspoon, St. Louis, MO, pro se.
   ROBERT G. DOWD, JR., Presiding Judge.

The State of Missouri, Family Support Division, and Tinikia Damon (Mother), (collectively referred to as Relators), sought our preliminary order in prohibition to prevent enforcement of the Honorable Judge Calea Stovall-Reid’s (Respondent) order requiring Mother and her son (Child) to submit to genetic testing. The order was entered during a hearing on Relators’ application for order to show cause why Joseph Weatherspoon (Father) should not be held in contempt for failing to honor the terms of a 1995 judgment of paternity and support when Father made an oral motion for genetic testing. We issued a preliminary order in prohibition. We now make our preliminary order absolute because Respondent exceeded her jurisdiction in ordering Mother and Child to submit to genetic testing when the issue of Father’s paternity is barred by res judica-ta.

Mother gave birth to Child on January 16, 1995. In May of 1995, The State of Missouri and Mother, individually and as next friend of Child, filed a petition under the Uniform Parentage Act, Sections 210.817 to 210.852, RSMo 2000, for a declaration of Father’s paternity and order of support. Father was served with the petition. Father failed to answer or otherwise plead in the case. Notice of the hearing for August 4, 1995, was mailed to Father in July of 1995. A default judgment was entered on August 4, 1995, declaring Father to be the father of Child, and ordering Father to pay child support in the sum of $50.00 per month and to pay state debt of $200.00. The judgment included an affidavit in support of default judgment, an affidavit of state debt, and a Form 14 child support calculation.

In March of 2000, the Family Support Division moved to modify the child support order. Father was served and again failed to respond. The judgment was modified, increasing Father’s child support obligation to $317.00 per month.

In August of 2004, ten years after the entry of the paternity and child support judgment, Relators filed an application for order to show cause in an effort to enforce the judgment and find Father held in contempt. The application alleged Father was delinquent in child support payments in the sum of $5,787.67 as of July 19, 2004. The circuit court issued an order to show cause ordering Father to appear. Father entered his appearance in the contempt proceedings and the case was set for trial. At no time did Father file a motion or proceeding in equity to attack the underlying judgment of paternity and child support.

At the trial on February 24, 2005, Rela-tors presented evidence, including testimony of Mother, that Father had made child support payments in the amount of $12,963.13, but was delinquent in child support in the amount of $7,988.97 as of February 18, 2005. At the trial, Father made an oral motion for paternity genetic testing. Respondent granted Father’s motion, ordered genetic testing, and stayed proceedings on Relators’ show cause motion until the new trial date.

Relators request a writ of prohibition from this court. Relators argue Respondent exceeded her jurisdiction in ordering genetic testing because the issue of paternity had been fully adjudicated and any issue of Father’s paternity is barred by res judicata. We agree.

Generally, a writ of prohibition is issued when it falls within one of three categories: (1) where there is a usurpation of judicial power because the trial court lacks either personal or subject matter jurisdiction; (2) where there exists a clear excess of jurisdiction or abuse of discretion such that the trial court lacks the power to act as contemplated; or (3) where there is no adequate remedy by appeal. State ex rel. Nixon v. Campbell, 120 S.W.3d 225, 227 (Mo.App. E.D.2003). We may restrain an attempt to exercise jurisdiction in a matter barred by res judicata by writ of prohibition. State ex rel. Barnett v. Mullen, 125 S.W.3d 896, 898 (Mo.App. E.D.2004).

Res judicata means “a thing adjudicated” and is a common law doctrine that precludes relitigation of a claim formerly made. Id. (citing Chesterfield Village v. City of Chesterfield, 64 S.W.3d 315, 318 (Mo. banc 2002)). Res judicata prevents a party from re-litigating issues judi-eially determined in a previous action, even when the judgment was entered by default. Barnett, 125 S.W.3d at 898. Here, Father was adjudged to be Child’s father in the 1995 action between himself, Mother, and Child. A finding or implication of paternity in a support order is res judicata on the issue of paternity in subsequent proceedings between parties and each of them is bound by the prior paternity determination. Id.; Miller v. Hubbert, 804 S.W.2d 819, 820 (Mo.App. E.D.1991). The 1995 action resolved Father’s paternity and Father is bound by the prior paternity judgment.

In her response, Respondent contends the 1995 default judgment is void because of improper service, improper notice, and a defective affidavit in support. However, the 1995 default judgment is still in effect. There has been no action by the parties to have a court declare the 1995 default judgment void or to set it aside. Therefore, the 1995 judgment bars Father from questioning paternity.

Respondent exceeded her jurisdiction in ordering genetic testing of Mother and Child. Accordingly, we order that our preliminary order of prohibition now be made absolute and direct Respondent to quash the order compelling Mother and Child to undergo genetic testing.

Preliminary writ made absolute.

CLIFFORD H. AHRENS, and MARY K. HOFF, JJ., concur.


author: PATRICIA L. COHEN, Presiding Judge.

text:
    STATE of Missouri, Appellant, v. Laura WILLIAMS, Respondent.
    No. ED 85402.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 3, 2005.

      Anne C. McCartney, St. Louis, MO, for appellant.
    Richard D. McNelley, St. Louis, MO, for respondent.
   PATRICIA L. COHEN, Presiding Judge.

Introduction

The State of Missouri appeals from an Order of the Circuit Court of the City of St. Louis granting Defendant Laura Williams’s (“Defendant”) motion to suppress two out-of-court statements, one oral and one written, that the State introduced in the criminal case against Defendant. We affirm in part and reverse in part. Because this is an interlocutory appeal that the State has brought pursuant to Section 547.200.1(3), R.S.Mo.2000, we remand for further proceedings.

Statement of Facts

Viewed in the light most favorable to the trial court’s ruling, the evidence adduced at trial establishes that on June 6, 2003, City of St. Louis police officers Korey Kline and Martinous Walls drove to Defendant’s residence at 3760 Gravois to execute a search warrant. While the officers were outside the residence conducting surveillance, Defendant exited the residence with her three-year-old daughter and left in her car. The officers followed Defendant for a couple of blocks before pulling her over. Thereafter, they informed Defendant of the search warrant, handcuffed Defendant pursuant to procedure, placed her and her daughter in the patrol car, and returned to the residence. Three other officers met them there.

Upon entering the residence, the officers placed Defendant on the floor of an interi- or hallway, still handcuffed. Two adults and two juveniles, including Defendant’s son, were in the residence. Police informed them of the search warrant and placed the adults in handcuffs.

In the course of searching Defendant’s bedroom, Officer Kline found four prescription bottles made out to other persons containing hydroeodone. Moreover, while searching a hall closet, Officer Walls uncovered a box containing four empty prescription bottles and a fifth bottle containing a red viscous liquid with crushed pills.

At trial, Officer Walls testified that he advised Defendant of what he found in the closet and,

[a]t that point [Defendant] spontaneously stated that she knows what I’m saying about the bottle and she said that she’s not a drug dealer. That she buys the pills basically for a dollar a pill and she mixes them up to get high with them. She says that’s what she doe's. She gets high. She doesn’t deal drugs.

Following Defendant’s statement, Officer Walls arrested her and advised her of her Miranda rights for the first time.

After searching the house for approximately two hours, officers escorted Defendant to a patrol car and transported her to a police station. At the station, Defendant agreed to complete a “warning and waiver form.” The form included, among other things, a listing of the Miranda warnings. Officer Walls testified at trial that he read Defendant her rights from the form and Defendant acknowledged her understanding of her rights, initialing them line by line. Defendant then proceeded to make and sign the following written statement:

I, Laura Williams, want to make the following statement. The pills that were found in my house is for my own personal use [sic]. I did not sell any type -of drug. I buy peoples [sic] prescription [sic] for a dollar a pill.

Defendant was charged, under Section 195.202, R.S.Mo 2000, with two counts of the class C felony of possession of a controlled substance, hydroeodone and codeine. Prior to trial, Defendant moved to suppress her oral and written statements, denying having made the oral statement and contending that her written confession was made in response to a promise by Officer Walls that she could go home and get help in a drug treatment program if she admitted to using the pills.

The trial court heard Defendant’s motion to suppress prior to trial and initially denied it. However, during the State’s case, the trial court reconsidered its earlier ruling on the motion. At a recess, the trial court raised its concerns to counsel that Defendant was not properly Mirandized before making her oral statement to police and requested authority on that issue. Upon further consideration, the trial court entered an order reversing its original denial of Defendant’s motion to suppress and granting a mistrial:

The court finds that under the circumstances, the first oral statement was obtained by the police as the fruit of the functional equivalent of an ‘interrogation’ which was not preceded by Miranda warnings. The confronting by police of a handcuffed defendant with illegal substances found in the search amounted, in this court’s view, to the functional equivalent of an interrogation wherein a reasonable defendant might reasonably feel that they are being interrogated by police regarding the allegation of illegal use of a controlled substance. Since her oral statement was not preceded by Miranda warnings, it should be suppressed. Likewise, the written statement is the fruit of the tainted oral statement and should be suppressed.
The Court hereby grants a mistrial, on its own motion, absent any fault of either party, as there is no other adequate remedy to guarantee either party a fair trial.

This interlocutory appeal followed.

Standard of Review

We sustain a trial court’s ruling on a motion to suppress unless there is insufficient evidence to support the ruling. State v. Clemons, 946 S.W.2d 206, 218 (Mo. banc 1997). In reviewing the sufficiency of the evidence, “we consider all evidence and reasonable inferences in the light most favorable to the trial court’s ruling.” Id. at 218. We will not reverse the trial court’s judgment if it is “plausible in light of the record viewed in its entirety;” even where we believe we would have weighed the evidence differently had we been sitting as the trial court. State v. Thomas, 989 S.W.2d 605, 606 (Mo.App. E.D.1999) (internal citation omitted). When, however, the issue to be decided involves the constitutional protection against forced self-incrimination, we defer to the trial court’s determinations of witness credibility and findings of fact, but consider the court’s conclusions of law de novo. State v. Werner, 9 S.W.3d 590, 595 (Mo. banc 2000).

Discussion

In its sole point on appeal, the State argues that the trial court erred in suppressing Defendant’s oral and written statements to police because: (1) Defendant made her oral statement spontaneously, not as a result of an interrogation, and, thus, Miranda warnings were unnecessary; and (2) Defendant made her written statement after she had been warned of and waived her Miranda rights. Moreover, the State posits that even if we were to find that the trial court properly suppressed Defendant’s pre-warning, oral statement, her post-warning, written statement should not have been suppressed because any taint from the oral statement was too attenuated to affect her later written statement. We find that the trial court properly suppressed Defendant’s oral statement, but agree with the State that the trial court improperly suppressed Defendant’s written statement.

A. Oral Statement

The United States Supreme Court has explained that the Miranda safeguards apply whenever an individual is: (1) in custody; and (2) subjected to express questioning or its functional equivalent. Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). The Supreme Court defined “the functional equivalent” of questioning as “any words or actions on the part of the police ... that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Id., 446 U.S. at 301, 100 S.Ct. at 1689-90 (emphasis added) (internal footnote omitted). . In determining whether police action is the functional equivalent of questioning, the focus is on the perceptions of the suspect, not the intent of the officer. Id. The definition of interrogation extends “only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.” Id. (emphasis in original).

In this case, it is undisputed that Defendant was in custody at the time she made the oral statement to police. The issue is whether Defendant was “subjected to. questioning or its functional equivalent” in violation of Miranda at the time she made the oral statement. See Rhode Island v. Innis, 446 U.S. at 298-301, 100 S.Ct. at 1688-90. The record before us contains sufficient evidence from which the trial court could have reasonably concluded that Defendant made her oral statement in response to the “functional equivalent” of questioning by Officer Walls.

Here, the evidence before the trial court was that Officer Walls confronted Defendant about the controlled substances he found in her closet as she sat handcuffed on a hallway floor, in the vicinity of, among others, her two children and five police officers. While the trial court found no evidence of coercion, it can be fairly concluded, under the circumstances, that Officer Walls should have known that confronting Defendant about the controlled substances was reasonably likely to elicit an inculpatory or exculpatory response from Defendant and, thus, that Defendant was subjected to the “functional equivalent” of questioning. Moreover, it can be fairly inferred from Defendant’s oral statement, as recounted by Officer Walls at trial, that Defendant perceived that Officer Walls was interrogating her about her use of the controlled substances. Indeed, according to Officer Walls’s testimony, Defendant, upon being confronted by Officer Walls, stated, inter alia, that she knew what he was “saying about the bottle” and that she was not a drug dealer. Accordingly, we find that the trial court did not err in suppressing Defendant’s oral statement.

B. Written Statement

Having determined that the trial court properly suppressed Defendant’s first, pre-warning statement, we now turn to whether the trial court properly suppressed Defendant’s second, post-warning statement as the product of the invalid first statement.

In support of its contention that Defendant’s written statement is admissible, the State relies on Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), which held that a suspect who has answered unwarned, uncoerced questions may validly waive his rights and provide admissible statements after being informed of the Miranda warnings. In response, Defendant directs our attention to Missouri v. Seibert, — U.S. -, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), which clarified Elstad and declared, in a plurality opinion, that Miranda warnings delivered mid-questioning, and after an unwarned confession had been obtained, could not effectively accomplish their purpose, rendering the post-warning statements inadmissible. Because we agree with the State that this case is more like Elstad than Seibert, we find that the trial court erred in suppressing Defendant’s written statement.

In Seiberi, the Supreme Court disapproved of a two-step interrogation technique where police deliberately failed to inform a murder suspect of the Miranda warnings in an attempt to elicit a confession. Upon eliciting a confession, the police offered the suspect a twenty-minute coffee break and then successfully sought to have the suspect repeat the confession in a second, post-warning interview. The Court presented the controlling question as whether “a reasonable person in the suspect’s shoes” would have understood the Miranda warnings as presenting “a genuine choice whether to follow up on the earlier admission.” Seibert, 124 S.Ct at 2612 (plurality opinion).

The Seibert Court distinguished the situation presented in Elstad. In Elstad, the suspect made an initial incriminating statement in his home. Police then transported the suspect to the police station, where he received the Miranda warnings and admitted his involvement in a crime. Elstad, 470 U.S. at 301, 105 S.Ct. at 1289. In contrasting the two cases, the Supreme Court listed a series of factors bearing on whether Miranda warnings delivered mid-questioning could be effective enough to achieve their purpose. These factors included:

the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first.

Seibert, 124 S.Ct. at 2612. The Supreme Court went on to explain that, in Elstad,

it was not unreasonable to see the occasion for questioning at the station house as presenting a markedly different experience from the short conversation at home; since a reasonable person in the suspect’s shoes could have seen the station house questioning as a new and distinct experience, the Miranda warnings could have made sense as presenting a genuine choice whether to follow up on the earlier admission.

Id.

Considering the record before us, we find that the present case is more factually analogous to Elstad than to Seibert. As with the situation in Elstad, a reasonable person in Defendant’s shoes could have viewed the questioning at the police station as a new and distinct experience from the earlier, pre-warning questioning at her residence and, thus, Defendant could have viewed the Miranda warnings at her home and again at the police station as presenting her with a meaningful choice whether to follow up on her initial admission. See Seibert, 124 S.Ct. at 2612. Defendant made the written statement over two hours after the initial statement, considerably longer than the twenty-minute delay that separated the interrogation sessions criticized in Seibert. Moreover, unlike in Seibert, the trial court did not find, and the record does not reveal, that Officer Walls used a multi-stage interrogation strategy “adapted to undermine the Miranda warnings.” Id. Additionally, we note the factors supporting the trial court’s suppression of Defendant’s initial oral statement as the product of the functional equivalent of questioning, including the presence of her children and numerous other officers at the house, were not present at the police station.

, Accordingly, we find that the trial court erred in suppressing Defendant’s post-warning, written statement.

Conclusion

The trial court’s ruling suppressing Defendant’s initial, oral statement made to police without Miranda warnings is affirmed. However, we reverse the trial court’s ruling suppressing Defendant’s subsequent, post-warning written statement. The cause is remanded for further proceedings.

KATHIANNE KNAUP CRANE, J., Concurs. .

ROBERT G. DOWD, JR., J., Concurs.

      . Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (holding that custodial interrogation by police must not occur prior to a suspect being informed of his or her right to counsel and against self-incrimination).

      . While Defendant was also charged with one count of possession of drug paraphernalia, the State elected not to proceed on this charge.

      . The Supreme Court noted in its opinion that: ''[b]y 'incriminating response' we refer to any response — whether inculpatory or exculpatory — that the prosecution may seek to introduce at trial.” Rhode Island v. Innis, 446 U.S. at 302 n. 5, 100 S.Ct. at 1690 n. 5 (emphasis in original).

      . Notably, Defendant denies even making the initial oral statement and does not claim that her written statement was the product of the oral statement. Rather, in the pretrial suppression hearing, Defendant testified that she made the written statement in response to a promise by Officer Walls that she could go home and get drug treatment if she admitted to using the pills. The trial court was not persuaded by Defendant’s attempt to suggest that her written statement was coerced. We defer to the trial court’s determination of witness credibility and findings of fact. State v. Werner, 9 S.W.3d at 595.

      . The parties both cite to State v. Seibert, 93 S.W.3d 700 (Mo. banc 2002). In this opinion, we focus on the United States Supreme Court's decision in Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), which affirms State v. Seibert.


text:
    John BEVINEAU, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85271.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 3, 2005.
    Gwenda R. Robinson, St. Louis, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Asst. Attorney General, Jefferson City, MO, for Respondent.
    Before PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ.
   ORDER

PER CURIAM.

John Bevineau (Movant) appeals the denial of his Rule 29.15 motion for postcon-viction relief without an evidentiary hearing. In the underlying conviction, Movant was found guilty by a jury of second-degree murder, Section 565.021, RSMo 2000, and armed criminal action, Section 571.015, RSMo 2000, for which he was sentenced to terms of life imprisonmént and ten years, to be served consecutively. On appeal, Movant contends the motion court erred in denying his Rule 29.15 motion without an evidentiary hearing because Movant’s trial counsel was in effective for failing to raise a Batson challenge to the State’s peremptory strikes of four African-American venirepersons.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion would have no precedential value nor serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order pursuant to Rule 84.16(b).


text:
    Scott HARPER, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85225.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 3, 2005.
    Gwenda R. Robinson, St. Louis, MO, for appellant.
    Deborah Daniels, Leslie McNamara (co-counsel), Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J. and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Scott Harper appeals the judgment denying his Rule 24.035 motion without an evidentiary hearing.

We have reviewed the parties’ briefs and the record on appeal. The judgment of the motion court is based on findings of fact that are not clearly erroneous. No error of law appears. An extended opinion would have no precedential value. The parties have, however, been provided a memorandum setting forth the reasons for our decision in accordance with our local Rule 405. We affirm the judgment under Rule 84.16(b).


author: GEORGE W. DRAPER III, Chief Judge.

text:
    Jody WOLFF, Plaintiff/Respondent, v. Christine WIBRACHT, Defendant/Appellant.
    No. ED 85049.
    Missouri Court of Appeals, Eastern District, Division Five.
    May 3, 2005.
    Jon R. Sanner, Clayton, MO, Joel D. Monson, St. Louis, MO, for Appellant.
    Richard W. Fischer, St. Louis, MO, for Respondent.
   GEORGE W. DRAPER III, Chief Judge.

Christine Wibracht (Appellant) appeals from the trial court’s judgment in favor of Jody Wolff (Respondent). Because there is no final, appealable judgment, we dismiss the appeal.

Respondent filed a four-count petition against Appellant for fraud, rescission, and negligence in the sale of a residential home that Respondent purchased from Appellant. Respondent later dismissed her claim of negligence and the case went to trial on the fraud and rescission claims. After a bench trial, the court entered judgment in favor of Respondent for damages of $22,500 “plus attorney fees and costs, which fees and costs shall be assessed by the Court after a separate hearing.” Appellant filed this appeal.

In response to Appellant’s appeal, Respondent has filed a motion to dismiss the appeal. Respondent asserts that the court has not entered an order on the attorney’s fees and costs and therefore, the judgment is not final and appealable. Appellant has not filed a response to the motion.

An appellate court only has jurisdiction over final judgments that dispose of all parties and claims in the case and leave nothing for future determination. American Family Mut Ins. Co. v. Lindley, 112 S.W.3d 449, 451 (Mo.App. E.D.2003). Any adjudication of fewer than all claims or all parties does not terminate the action, which makes it subject to revision by the trial court at any time until final judgment. Rule 74.01(b); Goodson v. National Sports and Recreation, Inc., 136 S.W.3d 98, 99 (Mo.App. E.D.2004). The purpose of the rule requiring a final judgment is to avoid piecemeal presentation of cases on appeal. Markham v. Fajatin, 123 S.W.3d 315, 316 (Mo.App. E.D.2003).

Here, the trial court’s judgment expressly states that it is awarding attorney fees and costs, which fees and costs shall be assessed after a separate hearing. According to the record, this hearing has not taken place rior has the trial court determined the amount of attorney fees and costs. “A judgment that requires external proof or another hearing to dispose of disputed issues involved in the litigation is not final for purposes of appeal.” Gunter v. City of St. James, 91 S.W.3d 724, 727 (Mo.App. S.D.2002); Sassmann v. Kahle, 18 S.W.3d 1, 2 (Mo.App. E.D.2000). Accordingly, the trial court’s judgment is not final and appealable.

Respondent’s motion to dismiss is granted. The appeal is dismissed without prejudice for lack of a final, appealable judgment.

LAWRENCE G. CRAHAN, J., and GLENN A. NORTON, J.

      . The original petition also named Appellant's husband, Steven Wibracht, who died before the case was tried and judgment entered. A suggestion of death was filed, but no party was ever substituted for Steven Wibracht. The trial court's judgment purported to also enter judgment against Steven Wibracht. Without substitution of a party for him, the trial court should have dismissed the claim against him. Meadows v. Jeffreys, 929 S.W.2d 746, 749 (Mo.App. S.D.1996). His death, however, did not affect the continuation of the action against Appellant, nor her subsequent appeal. See, Loven v. Davis, 783 S.W.2d 152, 154 (Mo.App. S.D.1990). Because this appeal is being dismissed for lack of a final, appealable judgment, the trial court may wish to clarify this issue. The original lawsuit also named two other defendants, who were later dismissed.

      . The trial court did not make a determination under Rule 74.01(b) that "there is no just reason for delay" in the appeal.


author: JEFFREY W. BATES, Chief Judge.

text:
    SURREY CONDOMINIUM ASSOCIATION, INC., Plaintiff-Appellant, v. Imogene WEBB, Individually and as Personal Representative of Delbert Webb, Deceased, Defendant-Respondent.
    No. 25986.
    Missouri Court of Appeals, Southern District, Division Two.
    May 5, 2005.

      Richard L. Schnake, Springfield, MO, for Appellant.
    David L. Smith, Branson, MO,, for Respondent.
   JEFFREY W. BATES, Chief Judge.

Surrey Condominium Association, Inc. (“the Association”) sued Imogene and Delbert Webb (“the Webbs”) to recover unpaid maintenance fees for the years 2001 and 2002 in the amount of $9,700 and to enforce an assessment hen against their condominium. Delbert was deceased when the Association’s petition was filed, so Imogene was substituted for Delbert in her capacity as the personal representative of Delbert’s estate. To simplify matters, we will refer to both parties-defendant as Imogene.

After a bench trial, the court decided the Association’s maintenance fees and the assessment lien were void and unenforceable. Judgment was entered in Imogene’s favor, and the lien was removed from her property. The Association has appealed. It argues the trial court’s ruling permits Imogene to avoid paying her fair share of common expenses. We disagree. The Association sued Imogene to recover unpaid maintenance expenses. Because the Declaration of Condominium (“Declaration”) does not authorize the assessment of maintenance fees against a unit owner like Imogene, we affirm.

The Surrey condominium project was developed by Surrey Vacation Resorts, Inc., and consisted of 28 units. The Declaration was filed with the Taney County Recorder of Deeds on May 4, 1993. This document recognizes and describes two forms of condominium ownership: (1) unit ownership; and (2) interval ownership. Thus, a potential buyer interested in one of the condominiums could buy a whole unit and become a “Unit Owner,” or buy one or more unit weeks of ownership in a particular unit and become a “Unit Week Purchaser.”

The difference between these forms of ownership is important because it affects the type of assessments that can be levied against each class of owners pursuant to the Declaration. Article VII of the Declaration states that both Unit Owners and Unit Week Purchasers must pay their pro rata share of the common expenses of The Surrey Condominium.' This provision also states: “The Unit Week Purchaser’s share of the Common Expenses in his Unit shall be further broken down in accordance with his percentage of ownership interest in the Unit, and shall be assessed as a part of the maintenance fee.” Article VIII of the Declaration is entitled, “Maintenance Fee for Units Committed to Interval Ownership.” It states, in pertinent part, as follows:

In order to fund the Common Expenses of The Surrey Condominium and its Common Areas, all Unit Week Purchasers shall pay a “maintenance fee” which includes, but is not limited to, the following:
The particular Unit Week Purchaser’s share of Common Expenses;
Repair and upkeep of Units for normal wear and tear (example — repainting interior walls);
Repair and replacement of furniture, fix-toes, appliances, carpeting and utensils, and reserves necessary therefor;
Casualty and/or liability insurance on the contents of the Unit and the interior of the Unit;
Personal property, real estate, and any other applicable taxes;
Charges for membership in an exchange organization known as Resort Condominiums International or its successor;
Any other expenses incurred in the normal operation and maintenance of the Unit which cannot be attributed to a particular Unit Week Purchaser.
Said fee shall be prorated among all Unit Week Purchasers upon terms and conditions which will reflect a fair and equitable allocation of expenses of the regime as between Unit Week Purchasers. The maintenance fee and prorata allocation thereof shall be assessed and collected by the Association or its designated agent pursuant to a Management Agreement as provided in Article XXII herein....

Article XIV of the Declaration is entitled “Assessments” and states, in pertinent part, as follows:

The Association, through its Board of Directors, shall have the power to fix, determine, assess and levy from time to time the sums, assessments and maintenance fees necessary and adequate to provide for the Common Expenses of The Surrey Condominium. The procedure for the determination of all such assessments shall be as set forth in the Bylaws of the Association and this Declaration, and the Exhibits attached hereto.
The Common Expenses shall be assessed against each Unit Owner as provided for in Article VII of this Declaration. In the case of a Unit committed to interval ownership the maintenance fee shall be assessed against each Unit Week Purchaser as provided for in Article VIII of this Declaration.

In May 1993, the Webbs bought Unit No. 1 at the condominium project for $105,000. This unit was the first one sold in that development. The Webbs were Unit Owners because they purchased the whole ownership interest in Unit No. 1. As Unit Owners, the Webbs were responsible for maintaining and repairing the interior of their unit. They also paid their own utilities, property taxes and insurance on their belongings inside the unit.

From May 1993 through the end of 1999, the Webbs paid an assessment of $60 per month for common area maintenance. On January 1, 2000, this fee was raised to $400 per month. Imogene thought the fee had increased too much, and she refused to pay it. She spoke to a Surrey representative about the matter and was told that her fee increased because her unit had been recarpeted and refurnished. That statement, however, was in error because only units committed to interval ownership had been refurbished. Imogene offered to pay the $60 per month she had been paying since 1993, but the Association refused to accept it.

The parties were unable to resolve the issue, and in January 2002, the Association filed a “Statement of Assessment Lien” with the Taney County Recorder’s Office. This lien notice stated, in pertinent part, that:

[The Association] ... with a view towards availing itself of the benefit of the Declaration of Condominium for the Surrey Condominium ... and in particular, the provisions of Article VIII, for the establishment of maintenance fees, and the provisions of Article XIV, for the assessment, and establishment of a lien for the unpaid and assessed maintenance fees, hereby files an account of those assessments being due in the amount of $4,850.00 for assessments and fees with reference to and provided for, and under the provisions of the Declaration of Condominium for Surrey Condominium, for [Unit No. 1 owned by the Webbs].

In April 2002, the Association sued Imogene to recover unpaid maintenance fees for the years 2001 and 2002 in the amount of $9,700. This sum was comprised of two years’ unpaid maintenance fees in the amount of $4,800, plus a $50 per year late payment penalty for not paying the maintenance fees within 60 days. The petition alleged, in pertinent part, as follows:

7. That the Declaration of Condominium for the Surrey Condominium, includes a plan to cover the expenses that are common to the development, and in particular, at Article VII declares that all unit owners and unit week purchasers shall share in the cost of the common expense and that pursuant to Article VIII, all such owners, shall pay a maintenance fee, and that the maintenance fee shall be assessed and collected by the association or its designated agent....
12. That said maintenance fees and dues, have been assessed as pertaining to these Defendants, in the amount of Nine Thousand Seven Hundred Dollars and No Cents ($9,700.00) as of the 1st day of January, 2002. A copy of said assessment, and account therefore [sic], is attached hereto and marked as Exhibit “A”.

Exhibit A contained the following description of the unpaid charges: (1) “MAINT FEE 2001”; (2) “LATE FEE MAINTENANCE”; (3) “MAINT FEE 2002”; and (4) “LATE FEE MAINTENANCE[.]” The amount of the charges is as set forth above.

At the trial, condominium project manager Jason Henrichson (“Henrichson”) testified that the Declaration required Unit Owners, as well as Unit Week Purchasers, to pay maintenance fees. Henrichson also explained how Imogene’s maintenance fees of $400 per month were calculated. Hen-richson said the Association prepared an anticipated budget for the upcoming year that was divided into two categories: timeshare expenses and common area expenses. Imogene’s assessment was derived by calculating a “weekly” assessment for each expense subcategory included in the general category of “common area expenses” and then multiplying the charge by 52 (for 52 weeks of ownership of Unit No. 1). Thus, Imogene’s assessment was calculated as if she were a Unit Week Purchaser. Her assessment also included a number of anticipated charges that appeared to relate, either primarily or exclusively, to services, benefits or expenses incurred for Unit Week Purchasers.

Using the 2001 assessment as an example, Henrichson testified that the anticipated “common area expenses” totaled $188,890. Included as a part of the common area expenses, however, was a subcategory titled “reserve fund.” This expense subcategory comprised $54,742 (29%) of the total common area expenses. Hen-richson testified that money from this fund was used to physically remodel the interval ownership units. Funds from this expense subcategory were used to pay for new paint, wallpaper, carpeting, furniture, beds and mattresses in the time-share units. Henrichson admitted Imogene received no benefit from these expenditures. Imogene’s allocated share of this expense subcategory was $1,218 per year.

The condominium developer also held an elaborate party once a week for “timeshare people.” The purpose of this weekly party was to promote the sale of unit weeks to new buyers and create a “fun atmosphere” for prospective and existing Unit Week Purchasers. The cost of these events was included in an expense subcategory called “hospitality” under the common area expenses. In 2001, this “hospitality” subcategory comprised $6,972 (3.7%) of the total common area expenses. Imogene’s allocated share of this expense was $271.96 per year.

Another common area expense subcategory was called Merchant Fee/Charge Card. In 2001, this expense subcategory comprised $4,164 (2.2%) of the total common area expenses. Until 2000, when the assessment dispute arose, Imogene always paid her assessment by check. Henrich-son agreed it was unreasonable to charge Imogene this fee because it was only to apply to those who paid their maintenance fees by credit card. Imogene’s allocated share of this expense was $162.76 per year.

Finally, the common area expenses included a subcategory called “reserve for uncollectibles.” In 2001, this “expense” subcategory comprised $24,634 (13%) of the total common area expenses. This category was included to reflect anticipated uncollectible maintenance fees for the upcoming year. The purpose of this subcategory was to make the other owners “take up the slack for any owner that doesn’t pay their fair share of the assessments.” Imogene’s allocated share of this expense was $962 per year.

After considering the evidence, the trial court ruled that the maintenance fees assessed by the Association against Imogene and the resultant assessment lien were void and unenforceable. This appeal followed.

In this court-tried case, our review is governed by Rule 84.13(d). We must affirm the trial court’s judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Ridgway v. TTnT Dev. Corp., 126 S.W.3d 807, 812 (Mo.App.2004). The trial court’s judgment is presumed correct, and the Association has the burden of proving it erroneous. See Lee v. Hiler, 141 S.W.3d 517, 520 (Mo.App.2004); Wingate v. Griffin, 610 S.W.2d 417, 419 (Mo.App.1980). An appellate court reviews the evidence and all reasonable inferences in the light most favorable to the judgment and disregards all contrary evidence and inferences. Lee, 141 S.W.3d at 520. “Judging credibility and assigning weight to evidence and testimony are matters for the trial court, which is free to believe none, part, or all of the testimony of any witnesses.” Savannah Place, Ltd. v. Heidelberg, 122 S.W.3d 74, 86 (Mo.App.2003). We defer to the trial court’s superi- or opportunity to assess the witnesses’ credibility. Mortenson v. Leatherwood Constr., Inc., 137 S.W.3d 529, 531 (Mo.App.2004). Since the trial court made no specific findings of fact or conclusions of law because none were requested, we consider all fact issues as having been determined in accordance with the result reached. Rule 73.01(c); Tucker v. Tucker, 124 S.W.3d 16, 18 (Mo.App.2004). Finally, we are primarily concerned with the correctness of the trial court’s result, not the route taken by the trial court to reach that result. Business Men’s Assur. Co. of America v. Graham, 984 S.W.2d 501, 506 (Mo. banc 1999). Therefore, we will affirm the trial court’s judgment under any reasonable theory supported by the evidence. Jackson v. Cannon, 147 S.W.3d 168, 173 (Mo.App.2004).

In the Association’s lone point on appeal, it argues the judgment-is based on a misapplication of the law and is not supported by the evidence because Imogene is not being required to pay her fair share of the common expenses. On appeal, however, the Association is bound by the position it took in the trial court and will not be heard on a different theory. See, e.g., id. at 171-72; Erwin v. City of Palmyra, 119 S.W.3d 582, 587 n. 3 (Mo.App.2003). The theory the Association pled and tried below was that Imogene owed “maintenance fees” for the years 2001 and 2002. Accordingly, we confine our review to whether the trial court erred in rejecting this theory of recovery. See Heffernan v. Reinhold, 73 S.W.3d 659, 663 (Mo.App.2002) (review on appeal is limited to theories properly advanced before the trial court).

A condominium association may only exercise its powers within the constraints of its condominium declaration. Eagan v. Mueller, 809 S.W.2d 411, 413 (Mo.App.1991). In the case at bar, our review of Articles VII, VIII and XIV of the Declaration convinces us that the Association can only assess a maintenance fee against a Unit Week Purchaser. Imogene was a Unit Owner, not a Unit Week Purchaser. Moreover, the trial court could have found from the evidence presented that the Association was assessing a “maintenance fee” against Imogene, based on the various component charges that were included in her assessment. For example, Article VIII of the Declaration specifies that, in- addition to true common expenses, the “maintenance fee” assessed against a Unit Week Purchaser can include his or her pro rata share of the cost of repainting the unit, replacing furniture and carpeting, etc. Imogene’s assessment was calculated using a “reserve fund” charge, which included anticipated expenses for refurbishing interval ownership units. As a Unit Owner, Imogene received no benefit from such expenditures. The same is true of the charges included in her assessment for time-share sales parties, credit-card fees and liability for other interval owners’ uncollected maintenance fees. The trial court could have found that all of these charges constitute charges for services, benefits or liabilities relating either primarily or exclusively to Unit Week Purchasers.

Because the Association may exercise its authority to levy and collect assessments only in the manner provided in the Declaration, it did not have the authority to assess a maintenance fee against a Unit Owner like Imogene. Therefore, the trial court correctly applied the law when it decided the Association’s maintenance fees and its assessment hen were void. See Eagan, 809 S.W.2d at 413. Furthermore, this decision rested on a substantial evi-dentiary foundation and was not against the weight of the documentary and testimonial evidence presented at trial. Accordingly, the trial court’s judgment is affirmed.

PARRISH, P.J., and BARNEY, J., Concur.

      . The use of given names, rather than surnames, is for the sake of clarity; no disrespect is intended.

      . Common expenses are defined in Article I, § 5, to include: "(1) all expenses incident to the administration, maintenance, repair and replacement of the Common Areas, the exteri- or of all Units and payment of insurance premiums, including fire and casualty insurance on all Units and the Common Areas, and public liability insurance, after excluding therefrom any and all expenses which are the responsibility of a Unit Owner or Unit Week Purchaser; and (2) expenses determined by the Association to be common expenses.” These common expenses are allocated based upon the fractional relationship which a certain unit's total interior square footage bears to the entire interior square footage of all units comprising the condominium project.

      . Delbert had died on November 14, 1999.

      . Originally, there were three other Unit Owners besides the Webbs. The other 24 units were committed to interval ownership. By the year 2000, however, Imogene was the only remaining Unit Owner in the development.

      . All references to rules are to Missouri Court Rules (2005).

      . Murphy interpreted the provisions of former Rule 73.01(c). The provisions of that rule were transferred, in essentially the same form, to Rule 84.13(d) effective January 1, 2000.

      . In view of the fact that the Association can and does seek to collect unpaid maintenance fees by turning the accounts over to collection agencies, pursuing the claims in court and enforcing the Association's lien rights, we fail to understand how these delinquent accounts can constitute common area expenses that other owners can be forced to pay.