author: LAURA DENVIR STITH, Judge.

text:
    Gary BLACK, Appellant, v. STATE of Missouri, Respondent.
    No. SC 85535.
    Supreme Court of Missouri, En Banc.
    Nov. 23, 2004.

      Melinda K. Pendergraph, Office of Public Defender, Columbia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Deborah Daniels, Breck K. Burgess, Asst. Attys. Gen., Jefferson City, MO, for Respondent.
   LAURA DENVIR STITH, Judge.

Gary Black appeals from the denial of post-conviction relief from his conviction and death sentence for the first-degree murder of Jason Johnson. He alleges that his trial counsel was ineffective in failing to impeach four witnesses with prior inconsistent statements that he argues showed that the murder was not the result of deliberation. The motion court found that these failures were not the result of trial strategy, but found no prejudice.

This Court agrees that, in the circumstances of this case, defense counsel’s failure to impeach these key witnesses with their prior statements about the incident in which Mr. Black stabbed the victim was ineffective. It also was so prejudicial as to undermine this Court’s confidence in the outcome of the trial. Accordingly, this Court reverses the judgment. Pursuant to Rule 84.14, the case is remanded for a new trial on all issues. Because of the Court’s resolution of this issue, it does not reach the other issues raised as to the failure to call a blood splatter expert and toxicologist, the failure to request submission of a second-degree murder instruction, or the failure to challenge other evidence or make other motions.

I. FACTUAL BACKGROUND

The victim, Jason Johnson, was black; the movant, Gary Black, and his girlfriend, Tammy Lawson, are white. Mr. Johnson’s death on the evening of October 2, 1998, grew out of movant’s race-based reaction to the victim’s behavior toward Tammy Lawson.

After leaving work on the day of the murder, Mr. Johnson went to a restaurant in Joplin. While the evidence is inconsistent as to how much he had to drink before the incidents leading to his death, it is clear that he had at least two or three beers with his friends, Andrew Martin and Mark Wolfe, over the next few hours. The defense presented evidence that at the time of his death his blood alcohol content (BAC) was .29 and that Mr. Johnson had been “mouthy” to some girls at the restaurant earlier in the evening. All agree that, after drinking at the restaurant, Mr. Martin and Mr. Johnson left in Mr. Martin’s Ford F-150 truck to go to an area nightclub. Mr. Wolfe followed in his Cá-maro. On the way, they stopped at a convenience store, and Mr. Johnson went inside to purchase a can of chewing tobacco and a 40-ounce bottle of beer.

By chance, Mr. Black’s girlfriend, Tammy Lawson, was in the same convenience store and Mr. Johnson stood behind her in the checkout line. She got upset, believing that Mr. Johnson was making a pass at her. Once she left the store and went to Mr. Black’s car, she pointed Mr. Johnson out to Mr. Black as Mr. Johnson left the store holding the beer bottle in a paper bag. She said something, apparently describing the incident. According to her later statement to police, Mr. Black got angry and wanted to confront Mr. Johnson.

Once Mr. Johnson got back in the truck, they drove off, with Mr. Wolfe following. But, this time, Mr. Black and his girlfriend followed too. When she asked what he was going to do, Mr. Black answered that he was “going to hurt that nig_” Mr. Martin stopped the truck at a stoplight at 5th and Joplin, in front of a Joplin nightclub, and began talking to two girls, Michelle Copeland and Gloria Norman, who were standing just outside the driver’s side door. At the same time, Mr. Black and his girlfriend pulled alongside the passenger side of the truck, next to where Mr. Johnson was sitting.

Tammy Lawson later told police that Mr. Black’s anger increased when Mr. Johnson yelled at them, calling her a bitch and a whore, and the two men exchanged words from their vehicles. All further agree that Mr. Black thereafter stabbed and killed Mr. Johnson. But, they do not agree as to how that stabbing occurred. These differences are crucial, Mr. Black argues, for the jury was likely to find that they mark the difference between a murder after deliberation, thus making him guilty of first-degree murder, and a murder committed while seeking to injure the victim, but without deliberation or intent to kill, making him guilty of second-degree murder or voluntary manslaughter rather than first-degree murder.

The State presented testimony from the victim’s friends, Andy Martin and Mark Wolfe, as well as from a witness outside the nightclub, Jamie Brandon, that Mr. Black got out of his car, walked over to the passenger-side window of the truck, reached in the window as the victim tried to open the door, and stabbed the victim in the left side of the neck, severing the jugular vein and nearly severing the carotid artery. As Mr. Black then returned to his car, the victim got out of the truck and staggered after him, throwing the 40-ounce beer bottle at him, bag and all. The victim then got back in the truck, bleeding seriously, and bystanders attempted to help slow the bleeding by applying pressure to the wound. Paramedics arrived and took the victim to the hospital. He underwent surgery, but died three days later, on October 5, 1998. Meanwhile, Mr. Black returned to his car, allegedly telling his girlfriend, “one nig__ down,” and drove off. The State argued that this evidence showed deliberation in that it showed he followed the victim’s truck with the intended purpose of stabbing and killing him, rather than killing him in the course of a fight, without deliberation.

Mr. Black presented a different story. He denied that he deliberated about killing the victim. He said he killed Mr. Johnson in self-defense after the latter tried to hit him with the beer bottle, and that even if not acting in self-defense, the State at most proved second-degree murder in the course of a fight, not a deliberate stabbing. In support, Mr. Black presented the testimony of defense witnesses Gloria Norman and Ronald Friend, who testified that the victim got out of the truck before he began bleeding and that the victim and Mr. Black fought in the street. He also presented evidence that he did not stab the victim until after the latter swung at him with the 40-ounce beer bottle.

This evidence arguably was supported by forensic evidence that once the victim was stabbed, his blood would have spurted out heavily and spattered in a peculiar pattern, so that witnesses would have had to see substantial blood on Mr. Johnson once he was stabbed. If, as the defense witnesses indicated, witnesses did not see blood on Mr. Johnson until after he got out of the truck, then it would undermine the State’s theory that Mr. Black stabbed the victim in the truck, rather than in a fight, and so undermine the State’s claim that the killing occurred as a result of deliberation rather than passion.

The jury was thus left with two very different accounts of the incident — one offered by the defense and one offered by the State through its witnesses Mark Wolfe, Jamie Brandon, Andrew Martin, and defense witness Michelle Copeland. The jury had to pick which witnesses to believe. For this reason, Mr. Black argues, it was essential to impeach the testimony of the witnesses relied on by the State. Defense counsel did impeach State’s witness Andrew Martin in this manner, showing that in his initial statements to police he had said that the victim got out of the pickup before Mr. Martin saw blood on him, and that he saw the blood only as the victim returned to the truck, and that only at trial did he say that the victim began spurting blood while still in the truck.

But, defense counsel failed to impeach the testimony of Mr. Wolfe, Mr. Brandon, and Ms. Copeland, even though counsel did have prior inconsistent statements by these witnesses. Specifically, Mr. Wolfe had told one of the first officers on the scene that he saw Mr. Black and the victim get out of their vehicles and exchange words and saw a brown bag containing the beer bottle hit Mr. Black’s head or arm. He told an investigator that he saw the victim connect with at least one blow to Mr. Black. This is inconsistent with his trial testimony that he saw Mr. Black jab at the victim through the window.

Similarly, Mr. Brandon told an officer at the scene that the men got out of their vehicles and exchanged blows in the middle of the road, which is at odds with his trial testimony that Mr. Black swung his hand through the window and then the victim got out. Michelle Copeland, too, told an investigator that she saw and heard the victim yelling at someone, saw him open the passenger door and get out, and at that time she saw no injury. This contrasts with her trial testimony that the victim remained in the pickup.

Had this evidence been admitted to impeach these witnesses, it also would have been admissible as substantive evidence. Rowe v. Farmers Ins. Co., 699 S.W.2d 423, 428 (Mo. banc 1985); Sec. 491.074, RSMo 2000. Counsel admitted at the post-conviction hearing that she had no trial strategy for failing to impeach these witnesses. While the trial judge was not required to accept this self-analysis, he specifically found that the failure to impeach was not trial strategy.

There was also conflicting evidence as to how much Mr. Johnson, Mr. Wolfe, and Mr. Martin had to drink that night. The defense was able to introduce evidence that the victim’s blood alcohol content was .29, but the State questioned the accuracy of the test result. Defense counsel could have supported its position by impeaching Mr. Martin by showing that, although at trial the latter said the victim got to the restaurant at 6:30 or 7:00 p.m. and just had a few beers, prior to trial he said the victim went directly to the restaurant after getting off work. Mr. Johnson got off work at 4:19 p.m. And, while Mr. Wolfe testified at trial that he was at the restaurant only once that night, in an earlier statement he admitted he was there twice on the night in question.

All of this evidence would have gone to impeach Mr. Martin’s and Mr. Wolfe’s ability to accurately perceive the events and to support the defense claim that the victim was belligerent, but again defense counsel did not use this evidence, and again trial strategy was not involved. Mr. Black argues this evidence, if utilized, would have helped undermine the State’s evidence on the central issue of deliberation, an issue on which the record shows the jury was focused and about which it was confused. Specifically, the record reflects that, during its own deliberations, the jury circled the phrase “cool reflection” in the verdict-director and sent it to the judge along with a note stating, “Judge, please define this phrase.” The judge told the jury to “please read the instructions and enter a verdict in accordance with the forms submitted.” The jury found Mr. Black guilty of first-degree murder. In the second phase of the trial it recommended the death penalty, which the judge imposed.

On direct appeal, this Court affirmed. Mr. Black then filed this motion for post-conviction relief under Rule 29.15. The motion court denied relief, finding that, while trial strategy was not the reason for counsel’s failure to impeach these witnesses, the failure “to confront Copeland or the other witnesses with a prior claimed inconsistent statement did not result in any prejudice to Mr. Black. Such evidence would have been cumulative and does not form the basis for any error.” Because the death penalty was imposed, appeal of the denial of post-conviction relief was directly to this Court.

II. STANDARD OF REVIEW

An appellate court will affirm the motion court’s denial of a claim of ineffective assistance of counsel under Rule 29.15 unless its findings of fact or conclusions of law are clearly erroneous. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987). A judgment is clearly erroneous when, in view of the entire record, “the reviewing court is left with the definite and firm impression that a mistake has been made.” State v. Landers, 969 S.W.2d 808, 812 (Mo.App. W.D.1998). The findings of the motion court are presumed correct. Wilson v. State, 813 S.W.2d 833, 835 (Mo. banc 1991).

To show ineffective assistance, Mr. Black must show: (1) that his lawyer failed to exercise the customary skill and diligence that a reasonably competent lawyer would have exercised under similar circumstances; and (2) that he was prejudiced by counsel’s failures. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Deck v. State, 68 S.W.3d 418, 425 (Mo. banc 2002). In order to satisfy the second prong of this test, a movant is required to show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. See also Deck, 68 S.W.3d at 426; State v. Brown, 902 S.W.2d 278, 295 (Mo. banc 1995). Where, as here, the issue is impeachment, movant must show that had the witness been impeached, it would have provided a viable defense or otherwise met the Strickland standard. State v. Ferguson, 20 S.W.3d 485, 506 (Mo. banc 2000).

III. COUNSEL WAS INEFFECTIVE IN FAILING TO IMPEACH THE WITNESSES

The State does not contest the trial court’s finding that counsel’s failure to impeach was not trial strategy. Nor does it argue the motion court’s holding that the impeachment evidence was cumulative was correct. But, it does argue that the failure to impeach these witnesses was not prejudicial. This Court disagrees.

As this and other courts have long recognized:

The trial court has broad discretion in determining the admissibility of substantive evidence and in determining the extent and scope of cross-examination, including impeachment of a witness by use of a prior inconsistent statement.

Long v. St. John’s Regional Health Center, 98 S.W.3d 601, 605-06 (Mo-App. S.D.2003); Reno v. Wakeman, 869 S.W.2d 219, 223 (Mo.App. S.D.1993). The trial court’s discretion is not unlimited, however. It must be balanced against the fact that, “[t]he right to cross-examination is essential and indispensable,” State v. Jaynes, 949 S.W.2d 633 (Mo.App. E.D.1997), and “[t]he right to cross-examine a witness who has testified for the adverse party is absolute and not a mere privilege.” Pettus v. Casey, 358 S.W.2d 41, 44 (Mo.1962); Doe v. Alpha Therapeutic Corporation, 3 S.W.3d 404, 423 (Mo.App. E.D.1999). For this reason, a trial judge “has no discretion to prevent any cross-examination at all on a proper subject,” Merk v. St. Louis Public Service Co., 299 S.W.2d 446, 450 (Mo.1957), nor may that judge “exclude relevant and material facts simply because counsel seeks to elicit such facts on cross-examination.” Long, 98 S.W.3d at 606, quoting Reno, 869 S.W.2d at 223.

Missouri courts have harmonized these principles by holding that a judge cannot preclude a defendant from impeaching a prosecution witness with pri- or inconsistent statements if the impeachment does not concern an immaterial or collateral matter. State v. Dunson, 979 S.W.2d 237, 242 (Mo.App. W.D.1998). “A matter is considered to be collateral if the fact in dispute is of no material significance in the case or is not pertinent to the issues developed.” Id. “In contrast, a matter is not collateral if the alleged discrepancy involves a crucial issue directly in controversy or relates to any part of the witness’ account of the background and circumstances of a material transaction, which as a matter of human experience he would have been mistaken about if his story was true.” Id. (internal quotations omitted). “If a fact may be shown in evidence for any purpose independent of contradiction, it is not collateral.” State v. Goodman, 738 S.W.2d 470, 474 (Mo.App. W.D.1987). Furthermore:

As a general rule, a witness may be asked any questions on cross-examination that tend to test accuracy, veracity, or credibility, or shake the witness’ credit by injuring his or her character, [citation omitted] Where a witness’ prior inconsistent statement relates specifically to a paramount issue in the case, the trial court does not have discretion to prevent the impeachment of the witness through the use of that statement.

Long, 98 S.W.3d at 606.

As applied here, this means the trial court would have had no authority to prevent impeachment of the State’s witnesses on matters related to a paramount issue or that affected their accuracy, veracity, or credibility had counsel sought to do so. By their nature, such issues are not collateral.

Nor, if not collateral, can the failure to offer this evidence be justified on the grounds that the evidence was cumulative, as the motion court found. It appears it so ruled because other witnesses had testified to Mr. Black’s version of the incident. But, this does not make this evidence cumulative. “Evidence is said to be cumulative when it relates to a matter so fully and properly proved by other testimony as to take it out of the area of serious dispute.” State v. Kidd, 990 S.W.2d 175, 180 (Mo.App. W.D.1999) (internal quotations omitted). While an appellate court will normally defer to a trial court’s determination as to what evidence fits within this rule, a trial court does not have discretion to reject evidence “as cumulative when it goes to the very root of the matter in controversy or relates to the main issue, the decision of which turns on the weight of the evidence.” Id. Accord, State v. Perry, 879 S.W.2d 609 (Mo.App. E.D.1994).

Perry is instructive as to how to apply the cumulative evidence rule. The State there argued that no prejudice resulted from the trial court’s exclusion of internal police department records impeaching the credibility of some of the State’s key witnesses to defendant’s alleged confession, because defendant’s sister testified to the events that would have been shown by the records. The court rejected this argument, stating:

It borders on the frivolous to contend that the testimony of defendant’s sister, refuted on the stand by Briscoe, is equivalent to the transcript of Briscoe’s statement to the police which stated the very things she denied stating on the stand. Evidence is not to be rejected as cumulative when it goes to the very root of the matter in controversy or relates to the main issue, the decision of which turns on the weight of the evidence.

Perry, 879 S.W.2d at 613.

The evidence defense counsel failed to offer here did not relate to “a matter so fully and properly proved by other testimony as to take it out of the areas of serious dispute.” Kidd, 990 S.W.2d at 180. To the contrary, the impeaching evidence focused on the “very root of the matter in controversy.” Perry, 879 S.W.2d at 613. The evidence of the prior inconsistent statements of Mr. Wolfe, Mr. Brandon, and Ms. Copeland related directly to the central issue of whether Mr. Black acted with deliberation or in a fit of rage or out of self-defense. As the fact that Mr. Black killed Mr. Johnson was conceded, this was the key issue in contention between the parties. Here, as in Perry, it borders on the frivolous to say that presenting defense witnesses as to how the killing occurred was the equivalent of showing that the State’s key witnesses had previously agreed with all or part of defendant’s recounting of that central, controverted fact. The weight of the evidence on this issue was central to the case.

Even more basically, the un-offered pri- or inconsistent statements as to how the death occurred simply are not cumulative of any other evidence, even had they related to a collateral matter. For, while a number of witnesses testified to the events leading to the killing, what Mr. Black says should have been impeached with these prior statements was the accuracy of Mr. Wolfe’s, Mr. Brandon’s and Ms. Copeland’s own perceptions of those events. No other witness had addressed the accuracy of these three witnesses’ perceptions or showed that they had previously given inconsistent statements; indeed, no other evidence could more effectively have impeached their trial testimony than their own prior words. See Lagud v. Kansas City Board of Police Commissioners, 136 S.W.3d 786 (Mo. banc 2004) (prior admission of suspect impeaching his own trial testimony as to his intoxication could not by its nature be cumulative).

Defense counsel also failed to impeach Mr. Martin with his prior statements showing that he, Mr. Wolfe, and the victim had been drinking far more heavily than Mr. Martin admitted on the stand. The State argues that this evidence, at least, was cumulative because other evidence was presented that showed that the victim, Mr. Johnson, had a .29 BAC at the time of his death. But, the State also continued to contest Mr. Johnson’s intoxication, suggesting that the .29 BAC reading was an anomaly and that Mr. Martin’s testimony that they only had a few beers was accurate. In this circumstance, it was ineffective to fail to introduce the prior statements tending to show more extensive drinking, for, “[i]t has long been the rule in Missouri that on cross-examination a witness may be asked any questions which tend to test his accuracy, veracity or credibility or to shake his credit by injuring his character.” Lagud, 136 S.W.3d. at 793. Lagud further held that “intoxication of a witness as of the time the events took place which are the subject of the witness’ testimony is not a collateral issue but bears directly upon the ability of the witness to accurately describe those events.” Id. at 794. It was, therefore, a proper subject of impeachment and not excludable as cumulative or collateral.

IV. PREJUDICIAL EFFECT OF COUNSEL’S INEFFECTIVENESS

In considering the prejudicial effect of movant’s lawyer’s ineffectiveness, “counsel’s actions should be judged by her overall performance, the right to effective assistance of counsel may in a particular case be violated by even an isolated error of counsel if that error is sufficiently egregious and prejudicial.” Deck, 68 S.W.3d at 429 (internal quotations omitted).

The State argues that in order to prove prejudice, Mr. Black was required to have called each of the witnesses in question at his post-conviction motion hearing so that he could show what they would have stated had his counsel attempted to impeach them with their prior inconsistent statements. The court noted in rejecting a similar argument in Clay v. State, however, “[t]he 29.15 hearing is not a trial of the charges. Its purpose is to receive evidence touching on the adequacy of counsel’s performance. The [witnesses’] testimony shows that important evidence was available if only counsel had looked for it.” 954 S.W.2d 344, 348 (Mo.App. E.D.1997) (Blackmar, J.). In other words, a movant is not required to reenact how a hypothetical trial would have proceeded had particular evidence been utilized, but to show that counsel knew of the evidence and was ineffective in fading to use it, to movant’s prejudice.

Here, counsel’s failures went to the key issue of deliberation. The record in this case shows that the jury was focused on that issue. The jurors circled the words “cool reflection” in the first-degree murder verdict director and sent the verdict director to the judge with a note stating, “Judge, please define this phrase.” The judge refused to do so, and directed the jury to be guided by the instructions. It returned a verdict of guilty.

A similar situation occurred in Deck, in which this Court had to determine whether error by counsel in failing to object to instructions to the jury regarding whether or not to impose the death penalty was so prejudicial as to require a new trial. In determining that a new trial was required, this Court considered how this missing instruction might have impacted the jury and concluded:

Most tellingly, the jurors ... sent the judge a note stating they were confused about what mitigation meant in Instruction 8 and asking for a legal definition of the term ... While the court’s denial of them requests was proper, the requests show that the jury was focusing on the issue of mitigation and may have been confused by what it meant as used in the instructions.

68 S.W.3d at 431. Deck concluded that the failure was prejudicial.

As in Deck, when the jury here sent a note to the judge indicating confusion by circling the words “cool reflection” in the first-degree murder verdict director, the court did not err in refusing to define the term. Here also, the request shows that the jury was focusing on this issue and was confused by the evidence concerning deliberation.

That evidence was not overwhelming, consisting principally of testimony of State’s witnesses who said Mr. Black reached into the truck and stabbed the victim. On direct appeal, the Court found that this evidence was sufficient to support the verdict. Had that testimony been impeached, little would have remained to support the finding of deliberation. As noted in Clay.

The relative strength or weakness of the prosecution’s case is significant in determining whether any deficiencies in trial counsel’s performance were prejudicial, because the question which must be answered is whether, but for the deficiencies, the result of the trial might have been different.

954 S.W.2d at 346-47.

The unoffered evidence, admissible both for impeachment and as substantive evidence, went to a central, controverted issue on which the jury focused during deliberations. If believed by the jury, there is a reasonable probability that the outcome of the trial would have been different. Accordingly, this Court determines that counsel’s ineffectiveness was so prejudicial as to undermine this Court’s confidence in the outcome of the trial. The motion court therefore erred in overruling the motion for post-conviction relief under Rule 29.15. The judgment is reversed. Pursuant to Rule 84.14, a new trial is ordered on all issues. The case is remanded.

WHITE, C.J., WOLFF, PRICE, TEITELMAN and LIMBAUGH, JJ., and BLACKMAR, Sr.J., concur.

RUSSELL, J. not participating.

      . By way of comparison, a person commits the crime of driving with excessive blood alcohol content if the person operates a motor vehicle with a BAC of .08 or more. Section 577.012, RSMo. Supp.2003.

      . Judge Wolff, in dissent, concluded that this evidence, even unimpeached, was not sufficient to support the verdict and would have remanded for entry of judgment on second-degree murder. State v. Black, 50 S.W.3d 778 (Mo. banc 2001).


source: Caselaw Access Project

author: WILLIAM RAY PRICE, JR., Judge.

license: Public Domain

text:
    Edward GRATTAN and Katherine M. Grattan, Appellants, v. UNION ELECTRIC COMPANY, Respondent.
    No. SC 85851.
    Supreme Court of Missouri, En Banc.
    Dec. 7, 2004.

      Stephen H. Ringkamp, Scott L. Kolker, St. Louis, MO, for Appellants.
    James J. Virtel, Ann E. Buckley, Armstrong Teasdale, LLP, St. Louis, MO, for Respondent.
   WILLIAM RAY PRICE, JR., Judge.

This case arises from an accident in which a garbage truck ran off the road and knocked down an electrical pole. Live wires fell across the roadway and onto a car driven by Mr. Grattan. Mr. Grattan claims that he suffered an electrical shock a number of minutes later. Mr. Grattan sued the electrical utility, Union Electric. Union Electric obtained summary judgment and Mr. Grattan appealed. The judgment is affirmed in part and reversed in part, and the case is remanded.

I.

Mr. Grattan bases his claim against Union Electric on two different theories of negligence. First, that Union Electric failed to insulate or isolate the electric lines where they were likely to come in contact with people. Thornton v. Union Elec. Light & Power Co., 280 Mo.App. 637, 72 S.W.2d 161, 164 (1984). Second, that Union Electric failed to de-energize its wires after they were knocked down. Calderone v. St. Joseph Light & Power Co., 557 S.W.2d 658, 668 (Mo.App.1977).

The trial court granted summary judgment for Union Electric under Clinkenbeard v. City of St. Joseph, 321 Mo. 71, 10 S.W.2d 54 (1928). Clinkenbeard limits the liability of an utility company for the immediate harm that results from a driver leaving the roadway and knocking down a utility pole. Baker v. Empire Dist. Elec. Co., 24 S.W.3d 255, 264 (Mo.App.2000). Clinkenbeard, however, has no application to Union Electric’s duty to shut off the power within a reasonable time after the lines were knocked down.

II.

The purpose of summary judgment is to resolve eases in which there is no “genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Rule 74.04(c)(6). Summary judgment can be an efficient method to resolve disputes, and its use is encouraged in appropriate situations.

Rule 74 sets out a specific and mandatory procedure to determine whether a dispute exists as to any material facts. Rule 74.04(c)(1). In addition to a filed motion, the rule requires a separate and attached statement of facts. This statement “[sjhall state with particularity in separately numbered paragraphs each material fact as to which movant claims there is no genuine issue, with specific references to the pleadings, discovery, exhibits or affidavits.... ” Rule 74.04(c)(1).

Union Electric complied with the procedures outlined in Rule 74. In its statement of undisputed facts, it offered the following.

6. On February 3, 1992, a truck owned by Waste Management of Missouri, Inc., doing business as Environmental Industries, and driven by its employee, Daniel C. Pogue, was heading east on Ladue Road near its intersection with Babler. (Ex. D, Pogue Depo., pp. 7, 30-31).
7. The truck left the road, rolled over, damaged a picket fence and struck a utility pole, breaking it. (Ex. D, Po-gue Depo., pp. 43-45).
12.Mr. Grattan saw the truck overturn, hit a pole, roll over 360 degrees, and come up on its wheels. (Ex. C, Grattan Depo., p. 28). Several other poles broke. (Ex. C, Grattan Depo., pp. 29-30).
13. The top of a pole fell six to seven feet in front of Mr. Grattan’s car, and six wires landed on the car. (Ex. C, Grat-ten Depo., pp. 31-32).
14. Mr. Grattan testified that he reached up to open the T-top of his vehicle with his left hand and there was a flash of bright orange-ish light, and his body jumped and his head hit the T-top. (Ex. C, Grattan Depo., pp. 38-40, 42-44, 47).
18. Mr. Grattan has testified that he believes that when he reached up to touch the T-top lever, he sustained an electrical shock that caused his heart to go into chronic atrial fibrillation, which resulted in his being treated with Amio-darone, which resulted in peripheral neuropathy. (Ex. C, Grattan Depo., pp. 79-82).
20. Mr. Grattan testified that because of the peripheral neuropathy, he was unable to feel [a hiking] wound in the right foot, and the wound did not heal (Ex. E, Grattan Depo., p. 69).
21. An infection in the right foot led to the amputation of Mr. Grattan’s right leg about five inches below the knee. (Ex. C, Grattan Depo., p. 84).
23. The utility pole with which the truck collided ... was located approximately 9 feet 7 inches from the traveled portion of the south side of Ladue Road. See Affidavit of Randy M. Hunt, attached hereto as Exhibit F.
24. The utility pole with which the truck collided, ... had a date of 1963, which indicates that it was installed in 1963 or 1964. (Ex. F, Hunt Aff., ¶¶ 3-4).

Rule 74.04 required the non-movant, Mr. Grattan, to respond to the motion for summary judgment and statement of facts. Rule 74.04(c)(2). “The response shall admit or deny each of movant’s factual statements in numbered paragraphs that correspond to movant’s numbered paragraphs ... [and] shall support each denial with specific references to the discovery, exhibits, or affidavits....” Id. Mr. Grattan responded to Union Electric’s motion for summary judgment with corresponding paragraphs, but did not respond to Union Electric’s statement of facts.

Rule 74.04 states: “A response that does not comply with ... respect to any numbered paragraph in movant’s statement is an admission.” Id. Therefore, for purposes of summary judgment, and as Mr. Grattan probably intended, the factual allegations presented by Union Electric are admitted.

Union Electric also incorporated the following in its statement of facts: “3. A true and correct copy of portions of the deposition of plaintiff Edward M. Grattan taken December 17, 2001, is attached hereto as Exhibit C.” Within the 44 pages attached as Exhibit C, Mr. Grattan states that before he tried to escape he took time to control his breathing with his inhaler. He said that the wires began melting the metal on the top of his car and caused his jacket and the interior of the car to catch fire. Before trying to escape from his car, he also tried to put out flames on his jacket by spitting on it. Mr. Grattan testified that, five to seven minutes after the poles fell, he tried to escape and was shocked.

Finally, Rule 74.04 allows the non-mov-ant to expand the alleged facts in the record, “in consecutively numbered paragraphs and supported in the manner prescribed [above].” Rule 74.04(c)(2). Although, Mr. Grattan did not follow this procedure, he did attach a portion of the deposition of Dr. Robert E. Nabours, one of his expert witnesses, as a response to Union Electric’s assertion that “5. As a matter of law, Union Electric only owes a duty to insulate or isolate its energized fines to prevent injury that is reasonably foreseeable.” Mr. Grattan’s response stated: “5. Deny, as Defendant also has a duty to exercise the requisite care to keep charged fines insulated and isolated, which includes de-energizing fallen electrical fines in a timely fashion. (Erbes v. Union Elec. Co., 353 S.W.2[d] 659, 664 (Mo.1962); Exhibit 1, Deposition of Dr. Robert E. Nabours, pp. 58-62, 69, 75-76, 86-88).”

Dr. Nabours stated that he had no criticism of the placement of Union Electric’s poles along the highway. In Dr. Nabours’ opinion, however, the power in the fines should have been shut off within 60 seconds of the accident. He explained that the fallen fines had breakers attached to them that if tripped three times within 175 seconds would cut the power. He also offered to provide a reference showing that, often in the United States, these systems are set to cycle within 45 seconds. He opined that Union Electric’s sensors may not have been sensitive enough to notice the downed power fines, which, in his opinion, would explain why the lines remained active up to eight minutes after the accident.

Because there was no objection by Union Electric to the trial court about this additional testimony and because the citation given was sufficient to put the court and the parties on notice, this evidence is considered even though it was cited as a response to a legal conclusion and not in the statement of facts.

III.

The trial court granted summary judgment for Union Electric on the basis of this Court’s holding in Clinkenbeard v. City of St. Joseph, 321 Mo. 71, 10 S.W.2d 54 (1928). In that case, the City of St. Joseph had a street that was considerably wider on one side of the intersection than on the other; the street bottlenecked at the intersection. Id. at 55. A man drove straight through the intersection, over the curb, and off the road to hit an electric pole. Id. at 54-57. The Court held that he could not recover when the light pole fell on him because he was not in a place that he was entitled to be. Id. at 62. The Court couched its decision in terms of the duty and breach elements of negligence, not causation. It held that if the evidence does not show that defendant was “guilty of actionable negligence with respect to the matters charged and averred in the petition, it becomes unnecessary for us to discuss and rule the question of plaintiffs ... negligence as a matter of law.” Id. at 63.

The law in this area has been developed by the appellate courts. In Rothwell v. West Cent. Elec. Co-op., Inc., a man lost control of his vehicle and hit a pole nine feet from the roadway. 845 S.W.2d 42, 42-43 (Mo.App.1992). He was later electrocuted by the lines that fell. Id. The court held that the electric company was not liable to the driver because the accident occurred “entirely and wholly outside the traveled and improved roadway....” Id. In Noe v. Pipe Works, the court held “[t]here is no question that Noe left the paved portion of the road.... [T]he utility pole, no matter how close it may have been to the road, was wholly outside of the improved portion of the road and did not interfere with those making normal use of the road.” 874 S.W.2d 502, 504 (Mo.App.1994).

In Godfrey v. Union Elec. Co., a drunk driver hit a utility pole three feet from the pavement. 874 S.W.2d 504, 505 (Mo.App.1994). His passenger sued the electric company. “Godfrey was injured only because the vehicle in which he was a passenger left the travelled portion of the road. As a matter of law, Godfrey [could not] establish that Union Electric owed him any duty of protection from the type of injury he suffered.” Id.

Clinkenbeard remains the law and applies to the case at hand. Generally, a utility company cannot be held liable for injuries that immediately occur when motor vehicles leave the road and crash into poles causing either the pole or electric lines to fall.

IV.

Mr. Grattan’s first claim is that Union Electric failed to insulate, isolate, or maintain its lines so as to protect him from contacting them. A duty to insulate wires is well established. Gladden v. Mo. Pub. Serv. Co., 277 S.W.2d 510, 515 (Mo.1955) (citations omitted). A “[s]upplier of electricity must exercise the highest degree of care to keep [its] wires in such condition as to prevent injury to others who lawfully may be in close proximity to those wires.” Erbes v. Union Elec. Co., 353 S.W.2d 659, 664 (Mo.1962).

“If ... it is impossible to fully insulate wires ..., then certainly the exercise of the highest degree of care requires that such wires be so isolated that they will not be likely to cause injury to persons in places where they may lawfully [and] reasonably [be] expected.” Gladden, 277 S.W.2d at 515. An electric company with high powered lines “is in duty bound either to insulate such wires or place them beyond the range of contact with persons rightfully using such streets, highways, or places, and to exercise the utmost care to keep them so.” Erbes, 353 S.W.2d at 664. “[Especially where high-tension wires are suspended over the streets of populous cities or towns, for here the danger is great, and the care exercised must be com-mensúrate with it.” Id. at 665; 18 Am. Jur., Electricity, Sec. 48, pp. 445, 446.

“The principle established in Clinken-beard ... applies to injuries from fallen lines.” Baker v. Empire Dist. Elec. Co., 24 S.W.3d 255, 264 (Mo.App.2000). Mr. Grattan claims that the electric company failed to insulate or isolate these wires from the general population. Clinkenbeard shields Union Electric from any immediate harm caused by their displacement by a driver leaving the traveled roadway. No other specific evidence or theory was presented indicating negligence by Union Electric regarding the insulation or isolation of these power lines. The judgment is affirmed on this claim.

V.

Mr. Grattan’s second claim is that Union Electric was negligent in failing to shut off the power to its lines. This claim arises from a duty unrelated to the insulation and isolation of wires or the method by which the wires were displaced.

A.

When wires become dangerous, a utility has a duty to protect the public by fixing the problem within a reasonable time. Goddard v. St. Joseph Light & Power Co., 379 S.W.2d 565, 569 (Mo.1964); see L.S. Tellier, Annotation, Liability of Electric Company to One Other Than Employee, Arising From Its Failure to Shut Off Current, 32 A.L.R.2d 244(1c) (2004). In Goddard, this Court noted:

So long as the line ... was standing in its proper place, the power company had fulfilled its duty to persons in the vicinity. When the line, through no fault of the power company, was removed from its proper location, a new duty did not arise until the company had had a reasonable opportunity to remedy the situation, (emphasis added).

379 S.W.2d at 569.

A “reasonable opportunity” after actual notice of dangerous lines is a short period of time. Calderone v. St. Joseph Light & Power Co., 557 S.W.2d 658, 663 (Mo.App.1977); see City of Madison v. Thomas, 130 Ga. 153, 60 S.E. 461, 463 (1908); Lexington Util. Co. v. Parker’s Adm’x, 166 Ky. 81, 178 S.W. 1173, 1175 (1915); Lutolf v. United Elec. Light Co., 184 Mass. 53, 67 N.E. 1025, 1027 (1903); Robbins v. Thies, 117 N.J.L. 389, 189 A. 67, 70 (1937); Osborne v. Tenn. Elec. Power Co., 158 Tenn. 278, 12 S.W.2d 947, 948 (1929). In Calderone v. St. Joseph Light & Power Co., an electric company’s agent was told that a problem existed with a specific line. 557 S.W.2d at 663. “[That] he had it within his power ... to discontinue the deadly current to the live wire suspended over the highway within fifteen seconds after notice but for reasons of his own failed to do so, proves a jury issue on the negligent causation of a foreseeable injury.” Id. As demonstrated in Calder-one, actual notice of a downed wire makes the analysis simple.

If the electric company has not received actual notice that its lines are down, the utility must still discover the danger and cut the power within a reasonable time. The language of Goddard, contains no notice requirement. 379 S.W.2d at 569. Notice or a lack thereof, of course, affects the amount of time allowed as a “reasonable opportunity” to remedy the problem.

Other states have a similar rule. “[I]n the exercise of the highest degree of care ... [the utility company] would have known of the existence of the short in the line within a few minutes and should, in the exercise of ordinary and reasonable care, have either repaired the break or shut off the electricity ... Roehrman v. D.S. & O. Rural Elec. Co-op. Ass’n, 174 Kan. 498, 256 P.2d 872, 877-78 (1953). It was a question of fact for the jury whether the defendant, having notice by means of instruments in its plant, was negligent in failing sooner to locate a break and prevent harm coming from it. Drimel v. Union Power Co., 139 Minn. 122, 165 N.W. 1058 (1918); see Gibson County Elec. Membership Corp. v. Hall, 32 Tenn.App. 394, 222 S.W.2d 689, 693 (1947).

Knowledge of the actual trouble ... is not necessary. Once general knowledge is made to appear, it must then be determined whether appellant did in fact act in accordance with standard or approved practices ... and ... that degree of care which was commensurate with the existing and ... reasonably probable risks and dangers.

Adams v. Atlantic City Elec. Co., 120 N.J.L. 357, 199 A. 27, 30 (1938). Beginning when the wires fell, Union Electric had a duty to discover the danger and shut off the power within a reasonable time.

B.

The record concerning the timeliness within which Union Electric shut off the power to the lines at issue is sparse. Mr. Grattan testified that five to seven minutes after the poles fell, he was electrocuted as he tried to escape his car. Dr. Nabours testified that Union Electric had a system in place that, if tripped three times within 175 seconds, would automatically stop the power. Dr. Nabours also accepts Union Electric’s statement that the circuit for the wires in question was working and locked out at 175 seconds. Dr. Nabours further testified, without specific examples, that often in the United States, these systems are set to cycle in 45 seconds, and that Union Electric’s system should have been set to 60 seconds. At his deposition, Dr. Nabours could not provide any such examples, although he offered to do so at a latter time. He then testified that Union Electric’s sensors may not have been sensitive enough to have detected the lines that fell on Mr. Grattan’s car and that Union Electric should have used different relays on its lines.

For the purpose of this motion, Union Electric did not challenge the opinion testimony of Dr. Nabours pursuant to the requirements of Section 490.05(1) or (3), RSMo.2000. Neither did it come forward with evidence of its own regarding the standard of care observed in the utility industry or evidence of the system it used to detect and shut off power when dangerous conditions arise on its lines. Nor did Union Electric present evidence of whether its system was operating correctly or at what point the system actually shut down the power. Instead, Union Electric contends that Dr. Nabours conceded that the difference in time between the system it utilized and the systems he advocated would not have produced a different result. The portion of Dr. Nabours’ deposition contained in the record, however, is not complete on this point.

Q. It’s just your criticism of UE that it didn’t have, in your judgment, the right kinds of relays on the system and ... and you’re also criticizing the fact that its cycles would go for 180 seconds instead of 60 seconds?
A. Well, yes, that’s right.
Q. Okay.
A. Those are my criticisms.
Q. All right. But if I understand you correctly, even if Ameren [UE] had a 60 cycle, 60 total span ... before there’s a permanent lockout, the same thing could have happened?
MR. KOLKER: Object to the form.
Q. Because we know more than three minutes....

Nabours Depo. p. 88.

Union Electric is only entitled to summary judgment if it shows “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Rule 74.04(c)(6). The present record does not establish that Union Electric has met this burden. Union Electric may renew its motion upon a more complete record at a later time.

The judgment of the trial court is affirmed in part and reversed in part, and the case is remanded.

WHITE, C.J., WOLFF, STITH, TEITELMAN, and LIMBAUGH, JJ., and CALLAHAN, Sp.J., concur.

RUSSELL, J., not participating.

      . Union Electric is now known as Ameren UE.

      . This apparently is in conflict with Mr. Grat-tan’s testimony that he was shocked five to seven minutes after the poles fell and with other testimony by Dr. Nabours that Mr. Grattan was shocked up to eight minutes later.

      . (1) In any civil action, if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

      (3) The facts or data in a particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reasonably reliable.
      Section 490.065 (1) and (3), RSMo.2000.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Jonathan NIXON, Appellant.
    No. ED 83436.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 28, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 30, 2004.
    Nancy A. McKerrow, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Jefferson City, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN, J., and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Jonathan Nixon appeals the judgment entered pursuant to the jury’s verdict convicting him as a prior offender of one count of assault in the first degree, two counts of kidnapping, one count of first degree robbery, two counts of armed criminal action, and one count of burglary in the first degree, for which he was sentenced to consecutive terms of imprisonment totaling 155 years.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. An extended opinion would serve no jurisprudential purpose. We have, however, provided a memorandum opinion for the use of the parties only-setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 30.25(b).


text:
    STATE of Missouri, Plaintiff/Respondent, v. Deena FERGUSON, Defendant/Appellant.
    No. ED 83315.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 28, 2004.
    Application for Transfer to Supreme Court Denied Nov. 30, 2004.
    Michael A. Gross, Craig L. Kessler, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Linda Lemke, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Deena Ferguson (Defendant) appeals from the trial court’s judgment and sentence imposed after a jury found her guilty of two counts of first-degree statutory sodomy, in violation of Section 566.062 RSMo 2000. The trial court sentenced Defendant to two concurrent terms of imprisonment for ten years.

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. No error of law appears. An extended opinion would serve no jurisprudential purpose. The parties have been furnished with a memorandum for their information only setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 30.25(b).


text:
    The MASONIC TEMPLE ASSOCIATION OF ST. LOUIS, Respondent, v. COMPASS SQUARE & STAR, INC., Appellant, and Jeremiah W. (Jay) Attorney General, Respondent.
    No. ED 83383.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 12, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 30, 2004.

      Alan E. DeWoskin, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Sarah E. Ledgerwood, Jefferson City, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN, J., and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Appellant Compass, Square and Star, Inc., (“Charity”), appeals the judgment awarding declaratory relief in the form of a resulting trust in favor of Masonic Temple Association of St. Louis (“Temple”), appointing a receiver to collect and manage all funds donated to Charity and granting Temple’s petition for an accounting. Temple cross-appeals against the Attorney General claiming the trial court erred in denying an award of attorney’s fees to be paid by the Attorney General to Temple.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. An extended opinion would serve no jurisprudential purpose. We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 84.16(b).


text:
    David LEADBETTER, Claimant/Respondent, v. CONTRACT PAINTING SERVICES, INC., Employer/Appellant, and Federated Mutual Insurance Company, Insurer/Appellant.
    No. ED 84153.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 19, 2004.
    Michael T. Londoff, Ryan R. Cox, The Londoff Law Firm, L.L.C., St. Charles, MO, for respondent.
    Edward J. Bippen, Amelung, Wulff & Willenbrock, P.C., St. Louis, MO, for appellant.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

In this workers’ compensation case, employer, Contract Painting Services, Inc., and insurer, Federated Mutual Insurance Company, appeal from the Temporary Award of the Labor and Industrial Relations Commission, with one member dissenting, determining that claimant, David Leadbetter, met his burden of proving that he sustained an injury arising out of and in the course of his employment and ordering the employer to pay past medical expenses and past temporary total disability benefits and to provide additional medical treatment and benefits. We affirm the judgment pursuant to Rule 84.16(b). The findings and conclusions of the Commission are supported by competent and substantial evidence on the whole record and no error of law appears. An extended opinion would have no precedential value. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

We affirm the order of the Commission pursuant to Rule 84.16(b).


text:
    Gretchen Ann MAIXNER, Respondent, v. Robert J. MAIXNER, Appellant.
    No. ED 84346.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 19, 2004.
    Brian N. Burns, St. Louis, MO, for appellant.
    Lawrence G. Gillespie, Gillespie, Hetlage & Coughlin, L.L.C., Clayton, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Robert J. Maixner (Husband) appeals from the trial court’s judgment granting Gretchen Ann Maixner (Wife) a full order of protection against Husband. Husband argues the trial court erred in granting Wife’s petition for a full order of protection because: 1) there was no order of protection in force against Husband when he sent a non-threatening Christmas card to Wife and their children; thus, Husband was free to send such communications to them from prison; and 2) insufficient grounds existed for granting a full order of protection.

We have reviewed the briefs of the parties and the record on appeal and no error of law appears. No precedential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order. The judgment is affirmed pursuant to Rule 84.16(b).


text:
    In the Interest of J.S., C.S., C.S. and D.W.
    No. ED 84308.
    Missouri Court of Appeals, Eastern District, Division One.
    Oct. 19, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 9, 2004.
    Mary D. Fox, St. Louis, MO, for Appellant.
    Donna L. Head, St. Louis, MO, for Respondent.

      Elaine Ann Pudlowski, Guardian Ad Li-tem, St. Louis, MO, for Juveniles.
    Before GARY M. GAERTNER, SR. P.J., ROBERT G. DOWD, JR., J. and SHERI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Appellant, Margie Ann Brown (“Mother”) appeals from the amended judgment of the Family Court of the City of St. Louis terminating the parental rights of Mother to four of her children, J.S., C.S., C.S., and D.W., pursuant to section 211.447 RSMo 2000. We affirm.

We have reviewed the brief 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.


text:
    STATE of Missouri, Respondent, v. Antonio ANDERSON, Appellant.
    No. ED 83636.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 19, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 9, 2004.
    Susan S. Kister, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa M. Kennedy, Jefferson City, MO, for respondent.
   ORDER

PER CURIAM.

Antonio Anderson (“defendant”) appeals the judgment on his conviction of murder in the first degree and armed criminal action. Defendant claims that the trial court erred in overruling his objection to a witness’s identification of him from a photo lineup, and the court erred in sustaining the state’s objection to testimony regarding the nature of withdrawal from heroin.

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

The judgment of the trial court is affirmed in accordance with Rule 30.25(b).


author: KATHIANNE KNAUP CRANE, Judge.

text:
    James Steven COVERT, Petitioner/Appellant, v. Carol Russell FISHER, Director of Revenue, for the State of Missouri, Respondent/Respondent.
    No. ED 83943.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 19, 2004.
    Rehearing Denied Dec. 9, 2004.

      Alan Kimbrell, Chesterfield, MO, for appellant.
    Shelly A. Kintzel, Jefferson City, MO, for respondent.
   KATHIANNE KNAUP CRANE, Judge.

Petitioner appeals from the judgment of the circuit court upholding the suspension of petitioner’s driver’s license by the Director of Revenue (the director) pursuant to Section 302.505 RSMo (2001 Supp.). The suspension was based on petitioner’s arrest for driving a golf cart while intoxicated on the streets of a private subdivision. On appeal, petitioner contends that the circuit court erred in upholding the suspension because the golf cart was not a motor vehicle, and also erred in taking judicial notice of other persons’ use of golf carts. We affirm.

On May 11, 2002, at approximately 7:04 p.m., Corporal John Oliveras of the Missouri State Highway Patrol responded to a report of an accident with injuries on Deborah Drive at Judith Circle in the Las Bresas Lake subdivision in Franklin County, Missouri. Upon arriving at the scene, Corporal Oliveras observed an overturned golf cart partially on and partially off the roadway at the intersection of Deborah Drive and Judith Circle. He saw children being attended by firefighters and EMS personnel. He determined that the golf cart may have struck a sign on the side of the road, had overturned, and had ejected the driver and several children, and that petitioner had been pinned under the driver’s side of the cart. The golf cart was a 1997 Easy-Go model with an internal combustion engine, steering wheel, accelerator pedal, brake pedal and roll bar.

Corporal Oliveras spoke with petitioner, who was on a gurney in the back of an ambulance. Corporal Oliveras testified that petitioner said he had been “riding” in the golf cart with his four-year-old son on his lap and three or four other passengers. He had “turned in” and hit a sign. When Corporal Oliveras asked petitioner if he had been drinking, petitioner responded that he had “a couple of beers.” Corporal Oliveras observed that petitioner’s eyes were bloodshot and watery, there was a strong odor of intoxicants on petitioner’s breath, and his speech was slurred and somewhat difficult to understand.

Corporal Oliveras performed a horizontal gaze nystagmus test on petitioner. He asked petitioner to recite the alphabet, and petitioner said he did not know it. He did not administer any other field sobriety tests because petitioner was in the ambulance and the paramedics wanted to leave. Corporal Oliveras concluded that petitioner had been driving while intoxicated. Corporal Oliveras told petitioner he was under arrest for operating a motor vehicle while intoxicated, and another officer would contact him when he arrived at the hospital.

Corporal Oliveras testified that police have jurisdiction to patrol the Las Bresas Lake subdivision. Emergency vehicles, mail delivery vehicles, and members of the public may freely drive into the subdivision. On cross-examination, he testified that the subdivision roads are private roads, maintained by the subdivision and not by the state or the county, but are “open for use.”

Trooper Ryan Barr proceeded to the emergency room at St. John’s Mercy Hospital where he contacted petitioner. Trooper Barr informed petitioner of his Miranda rights and his rights under the Implied Consent Law. Trooper Barr asked petitioner the questions from the Alcohol Influence Report. Petitioner agreed to a blood alcohol test at Trooper Barr’s request, which was performed by a qualified phlebotomist. Petitioner’s blood test results showed .16% blood alcohol by weight.

The director thereafter suspended petitioner’s driver’s license pursuant to Section 302.505 RSMo (2001 Supp.), and the suspension was upheld after a hearing. Petitioner filed a petition for a trial de novo in the Circuit Court of Franklin County pursuant to Section 302.311 RSMo (2000), requesting the court to set aside the suspension of petitioner’s driving privileges. After a hearing, the trial court denied petitioner’s request, finding that the arresting officer had probable cause to arrest petitioner, and that petitioner had a blood alcohol content of .08% or more by weight.

On appeal, we review the trial court’s judgment, not the administrative order revoking driving privileges. Barlow v. Fischer, 103 S.W.3d 901, 905 (Mo.App.2003). In so doing, we will affirm the trial court’s judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Verdoom v. Director of Revenue, 119 S.W.3d 543, 545 (Mo. banc 2003); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the judgment and disregard all evidence and inferences to the contrary. Bain v. Wilson, 69 S.W.3d 117, 120 (Mo.App.2002). We defer to the trial court’s credibility determinations. Verdoorn, 119 S.W.3d at 545. However, we do not defer to the trial court’s judgment if the real issue is the legal effect of the evidence. Id.

We may affirm the judgment in a court-tried case if it is sustainable on any ground, not just the ground given. Lough v. Rolla Women’s Clinic, 866 S.W.2d 851, 852 (Mo. banc 1993). If the result is correct, we do not need to agree with the trial court’s reasoning in order to affirm, and we will affirm even if the trial court gives a wrong or insufficient reason. Fix v. Fix, 847 S.W.2d 762, 766 (Mo. banc 1993); Graue v. Mo. Property Ins. Placement, 847 S.W.2d 779, 782 (Mo. banc 1993).

In order to make a prima facie case for the suspension of a person’s driver’s license pursuant to Section 302.505, the director must establish by a preponderance of the evidence that (1) the driver was arrested upon probable cause for an alcohol-related offense; and (2) at the time of the arrest, the driver’s blood alcohol content was at least eight-hundredths of one percent or more by weight. Section 302.505.1 RSMo (2001 Supp.); Verdoorn, 119 S.W.3d at 545. The director has the burden to establish the grounds for suspension or revocation by a preponderance of the evidence. Verdoorn, 119 S.W.3d at 545. After the director establishes probable cause for the arrest and an alcohol level in excess of the legal limit, a presumption of intoxication arises. Id. The driver may then rebut the prima facie case with evidence that his alcohol concentration did not exceed the legal limit. Id. The driver’s burden is one of production, not of persuasion. Id. at 546. The director retains the burden of proof throughout the proceeding. Id.

For his first point petitioner asserts that the trial court erred in upholding his suspension “because the golf cart was not a motor vehicle in that golf carts are not used on highways.” We disagree.

Petitioner’s license was suspended under section 302.505 because he was “driving a motor vehicle” while intoxicated. Section 302.010(9) RSMo (2000) defines “motor vehicle,” as used in Chapter 302, as “any self-propelled vehicle not operated exclusively upon tracks except motorized bicycles, as defined in section 307.180, RSMo.” Because there is no dispute that the golf cart was “self-propelled,” was not operated exclusively on tracks, and was not a motorized bicycle, we focus on whether it was a “vehicle.” See Stonger ex rel. Stonger v. Riggs, 85 S.W.3d 703, 707 (Mo.App.2002) (riding lawnmower). “Vehicle” is defined as “any mechanical device on wheels, designed primarily for use, or used on highways, except motorized bicycles, vehicles propelled or drawn by horses or human power, or vehicles used exclusively on fixed rails or tracks, or cotton trailers or motorized wheelchairs operated by handicapped persons.” Section 302.010(23) RSMo (2000). The golf cart is a mechanical device on wheels. Although it is not designed primarily for use on highways, it will fit into the definition if it was “used” on a “highway.” Stonger, 85 S.W.3d at 708. Actual use on a highway at the time of the culpable event will satisfy the definition. Id. Thus, a self-propelled mechanical device on wheels, not designed primarily for use on highways, is a motor vehicle, if it was being used on a “highway” at the time its driver was intoxicated.

Petitioner’s argument under this point assumes, without citation of supporting authority, that the golf cart was not being used on a “highway” at the time its driver was intoxicated. The law does not support this assumption.

“Highway” is defined in Chapter 302, regulating drivers licenses, as “any public thoroughfare for vehicles, including state roads, county roads and public streets, avenues, boulevards, parkways, or alleys in any municipality[.]” Section 302.010(6) RSMo (2000). This definition originally appeared in Section 3, L.1921, 1st Ex. Sess., p. 76, a new chapter that regulated motor vehicle registration, ownership, operation, equipment, use, safety and traffic on the highways. Id. at Section 2. Over the years, as the legislature enacted more expanded provisions governing motor vehicles and separated these provisions into different chapters, it continued to define “highway” in identical language. See Section 7759 RSMo (1929); Section 8367 RSMo (1939); Sections 301.010(4) and 302.010(3) RSMo (1949); Sections 301.010(6), 302.010(9), and 304.025 RSMo (1959); Sections 301.010(9), 302.010(7), and 304.025 RSMo (1969); Sections 301.010(9), 302.010(7), and 304.025 RSMo (1978); Sections 301.010(13), 302.010(6), and 304.025 RSMo (1986); Sections 301.010(18), 302.010(6), and 304.025 RSMo (1994).

At present, in addition to Chapter 302, section 301.010(19) RSMo (2000) contains the identical definition of “highway” for Chapter 301, which governs registration and licensing of motor vehicles; for sections 304.010-40 and 304.120-.260 RSMo (2000), which govern traffic regulations; and for sections 307.010-.175 RSMo (2000), which govern vehicle equipment regulations. Section 304.025 also contains the identical definition of “highway” for sections 304.014-.026 RSMo (2000), which govern rules of the road.

In 1930 the Missouri Supreme Court construed the word “highway,” as defined in Section 3, L.1921, 1st Ex.Sess., p. 77, to apply to any roads of the state where the public is accustomed to travel. Phillips v. Henson, 326 Mo. 282, 30 S.W.2d 1065, 1068 (1930). It held that the word “highways” was used in the statute “in its popular rather than its technical sense, and was intended to include all highways traveled by the public, regardless of their legal status.” Id. The court quoted from an Arkansas Supreme Court case, construing a statute prohibiting drunkenness on a “public highway, street, park, or thoroughfare,” as follows:

The word ‘highway,’ as used in this statute, was intended to embrace any road or thoroughfare used and traveled by the public, even though the same was not laid out by the county court and technically designated as a public road or highway. ‘Highway’ is used in its popular rather than its technical sense, and is synonymous with ‘road’, which is ‘an open way of public passage for vehicles, persons, and animals.’ Webster’s New International and Funk & Wag-nall’s Diets.
There was testimony in the record tending to show that the appellant was in an intoxicated condition on a ‘road’ leading from the church house at Mt. Maria, which was being traveled by the public, and also on the street in Mur-freesboro. This testimony was sufficient to sustain the charge as far as the word ‘highway’ is concerned, for a ‘street’ is ‘a public highway.’ Webster’s New International Diet. The road was being used by the public.

Id., quoting Simmons v. State, 149 Ark. 348, 232 S.W. 597, 599 (1921). The court held that evidence of automobile and other vehicular traffic on the street “would warrant a finding that the street was traveled by the public generally and was a highway within the meaning of the statute.” Phillips, 30 S.W.2d at 1068.

In Crocker v. Jett, 93 S.W.2d 74 (Mo.App.1936), we applied and quoted Phillips to reject a defendant’s claim that there was no evidence that he was operating an automobile on a “public highway,” as required by section 7775 RSMo (1929) (operation of motor vehicles) and defined in section 7759 RSMo (1929), because there was evidence that the highway in question was a “public traveled road.” Id. at 76. In Kelly v. Lahey, 232 S.W.2d 177 (Mo.App.St.L.1950), we again applied this rule and quoted Crocker to hold that a privately-owned bridge was a “highway,” as that term was used in section 8383 RSMo (1939) and defined in section 8367 RSMo (1939). Kelly, 232 S.W.2d at 181. See also Eoff v. Senter, 317 S.W.2d 666, 671 (Mo.App.1958) holding that the word “highways,” as used in Section 304.010 RSMo (1949) and defined in section 301.010 RSMo (1949), was intended to include “all highways traveled by the public regardless of their legal status.”

In State ex rel. Audrain County v. City of Mexico, 355 Mo. 612, 197 S.W.2d 301 (1946), the Supreme Court considered the use of the word “highways” in section 8366 RSMo (1939), regulating the use of motor vehicles on the public highways, as defined in section 8367 RSMo (1939). Id at 303. In considering whether the city of Mexico could regulate parking on streets owned by a county as its private property, it cited City of Clayton v. Nemours, 353 Mo. 61, 182 S.W.2d 57 (1944), for the principle that “[t]he law of the road extends to all public highways, de jure or de facto, embracing ways on private property if used for public travel.” Id. at 304, 182 S.W.2d 57. See also McTeer v. Clarkson Const. Co., Inc., 807 S.W.2d 174, 177-78 (Mo.App.1991) (construing “highway” as used in section 304.010.1 RSMo (1978)).

In City of Clayton, which the courts in Audrain County and McTeer cited, the Missouri Supreme Court held that the word “public,” when applied to highways in the context of governmental police power to regulate parking on a privately-owned street used by the public, describes use, not ownership. 182 S.W.2d at 60. It explained:

In determining whether a way is a public or private highway, the use to which the way is put; i.e., whether public or private, is of greater importance than its ownership, its mode of creation or its designation as public or private; because it would tend to create confusion and danger to the traveling public if privately owned highways open to and used by the general public enforced their own rules of the road, free from legitimate public regulation, upon travelers leaving the publicly owned highways and entering upon the privately owned ways; for instance, a requirement of operation on the left hand side of the way et cetera. Consequently: ‘The law of the road extends to all public highways, however created, and may also be applicable to roads not public highways, if used for travel.’ 40 C.J.S., Highways, p. 256, Section 236, subsec. b.

Id.

The fact that the legislature has kept the definition of “highway,” which Phillips construed in 1930, to the present day, re-enacting it numerous times in motor vehicle and drivers license statutes, indicates that it adopted the construction the courts have given to this definition.

A familiar rule requires that where the legislature, after a statute has received a settled judicial construction by the courts of last resort, re-enacts it, or carries it over without change, or reincorporates the exact language theretofore construed, it will be presumed that the legislature knew of and adopted this construction.

Duckworth v. United States Fidelity & Guaranty Co., 452 S.W.2d 280, 286 (Mo.App.1970). See also Citizens Elec. v. Dir. of Dept. of Rev., 766 S.W.2d 450, 452 (Mo. banc 1989); Jantz v. Brewer, 30 S.W.3d 915, 918 (Mo.App.2000). When the legislature continues to re-enact the same language, and only changes the statute’s number, it intends for the statute to carry the interpretation previously given it by the courts. Bunker v. Rural Elec. Co-op., 46 S.W.3d 641, 645 (Mo.App.2001). See also State ex rel. Steed v. Nolte, 345 Mo. 1103, 1107-08, 138 S.W.2d 1016, 1019 (Mo.1940). “It is a rule of statutory construction that, where one statute is patterned after another, and the earlier statute has been theretofore construed, it is presumed such construction was contemplated in the later enactment.” Bennett v. Langworthy, 49 F.2d 574, 576 (8th Cir.1931) (construing identical definitions).

In this case the definition of “highway” reenacted by the legislature in Section 302.010(6) RSMo (2000) has consistently been interpreted to apply to any street used for public travel, even if the street is privately owned. Accordingly, the fact that the streets on which petitioner was driving the golf cart were “private” streets maintained by the subdivision does not prevent the streets from being considered “highways” as that term is used in Chapter 302 when there is evidence that the streets were open for use and used by the public. Point one is denied.

For his second point petitioner argues that the trial court erred in taking judicial notice of another person’s use of golf carts on highways. This point is moot in light of our holding that petitioner’s own use of a golf cart on Deborah Drive and Judith Circle satisfied the statutory definition. Point two is denied.

The judgment of the trial court is affirmed.

PATRICIAL. COHEN, P.J., and ROBERT G. DOWD, JR., J., concur.


text:
    Donald B. HEQUEMBOURG, Petitioner/Appellant, v. Sharon L. HEQUEMBOURG, Respondent.
    No. ED 83555.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 30, 2004.
    Donald E. Heck, St. Louis, MO, for appellant.
    Patricia K. Susi, Clayton, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., WILLIAM H. CRANDALL, JR., J., KATHIANNE KNAUP CRANE, J.
   ORDER

PER CURIAM.

Donald Hequembourg appeals from the judgment entered by the trial court ordering him to pay Sharon Hequembourg $9797.82 in unpaid child support. We affirm.

We have reviewed Mr. Hequembourg’s brief and the record on appeal and find no error. No jurisprudential purpose would be served by a written opinion. The parties, however, have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed. Rule 84.16(b).

      . Ms. Hequembourg did not file a brief in response.


text:
    Marcia Nadine THURMAN, Individually and as Personal Representative of the Estate of Karl E. Thurman, Deceased and as Successor Trustee of the Karl E. Thurman Trust, Tom Thurman and Karladine Thurman-Graves, Plaintiffs/Respondents, v. Mary Evelyn RUFENER, Deceased, And Nellie M. Thurman, Deceased, by Their Substitute Defendant and Successor Substitute Defender, Defendants/Appellants.
    No. ED 83380.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 30, 2004.
    Steven E. Raymond, Shelbyville, MO, for appellant.
    W. Bevis Shock, St. Louis, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., WILLIAM H. CRANDALL JR., J., and LAWRENCE G. CRAHAN, J.
   ORDER

PER CURIAM.

Lois Eleanor Neff (“Neff’) as personal representative of the Estate of Nellie Maude Thurman (“Mother”) and of the Estate of Mary Evelyn Rufener (“Sister”) appeals from the judgment of the trial court that certain assets were not partnership assets at the time of the death of Karl Thurman (“Karl”) on August 14, 1996. Neff also argues that the trial court erred in determining that Karl did not breach his fiduciary duty to Mother and Sister. Neff further contends that the trial court erred in not ordering an accounting for the approximately forty year period prior to the death of Karl on August 14, 1996, and finding that she was estopped from asserting that Karl stole from Mother and Sister for over forty years.

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

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


text:
    Garfield WHITE, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 83796.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 30, 2004.

      Jessica Hathaway, St. Louis, MO, for appellant.
    Deborah Daniels, Lisa M. Kennedy, co-counsel, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J„ and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Garfield White (Appellant) appeals from the trial court’s judgment denying without an evidentiary hearing his Rule 29.15 motion for postconviction relief. We have reviewed the briefs of the parties and the record on appeal and conclude that the trial court did not clearly err in denying Appellant’s motion without an evidentiary hearing. An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).

      . All rule references are to Mo. R.Crim. P.2004, unless otherwise indicated.


text:
    In the Interest of A.M.W.
    No. ED 84420.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 30, 2004.
    Adrienne L. Sehaeffer-James, Philip E. Adams, Clayton, MO, for appellant.
    Barbara L. Greenberg, Clayton, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN and MARY K. HOFF, JJ.
   ORDER

PER CURIAM.

Father appeals the trial court’s judgment terminating his parental rights to his minor daughter, A.M.W. Father alleges the trial court erred because there was insufficient clear, cogent, and convincing evidence to terminate his parental rights under Section 211.447.2 RSMo.2000, Section 211.447.4(1)(b), Section 211.447.4(2), and Section 211.447.4(3), and to establish that termination was in the best interest of the child.

We have reviewed the parties’ briefs and the record on appeal. The trial court’s finding that Father failed to provide support for the child and, therefore, that grounds for termination exist under section 211.447.4(2), is supported by substantial clear, cogent, and convincing evidence. And, the trial court’s finding that termination was in the best interest of the child is supported by substantial evidence. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value nor serve any jurisprudential purpose. The parties, however, have been furnished with a memorandum, for their information only, explaining the reasons for our decision.

The judgment terminating Father’s parental rights as to A.M.W. is affirmed. Rule 84.16(b).

      . All further statutory references are to RSMo.2000.

      . Respondent’s Request for Leave to Supplement Legal File is granted.


text:
    Gregg A. SANFORD, Jr. & Gabrial Daniel Kauffman, by Their Next Friend, Gregg A. Sanford, Sr., Appellants, v. Kristy E. KAUFFMAN, Respondent.
    No. ED 84112.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 30, 2004.
    Richard K. Zerr, Burke, Zerr, Wulff & Briscoe, LLP, St. Charles, MO, for appellant.
    Frank A. Conard, Busch & Conard, St. Charles, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J. and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Appellants, Gregg A. Sandford, Jr. (“Father”) and Gabrial Daniel Kauffman (“Child”), by their next friend, Gregg A. Sanford, Sr., appeal from the judgment entered by the Circuit Court of St. Charles County granting respondent, Kristy E. Kauffman (“Mother”), sole legal custody of Child, granting Mother and Father joint physical custody of Child, and ordering Father to pay Mother $278 per month in child support until January 7, 2005 when the amount becomes $270 per month. 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.


text:
    William L. BRADLEY, Petitioner/Appellant, v. Emily L. BRADLEY, Respondent/Respondent.
    No. ED 84074.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 7, 2004.

      Joseph R. Aubuchon, Daniel Eugene Leslie, co-counsel Union, MO, for Appellant.
    Sidney A. Thayer Jr., Washington, MO, for Respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

William L. Bradley (Husband) appeals from a trial court judgment entered in a dissolution action. Husband alleges trial court error in the division of marital property, the denial of retroactive and prospective child support, the parenting plan approved and ordered by the court, the finding that an Antenuptial Agreement was unenforceable, and the award of attorney’s and guardian ad litem fees. We have reviewed the briefs of the parties and the record on appeal and conclude that the trial court did not abuse its discretion as to Husband’s allegations of error. An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).


text:
    STATE of Missouri, Respondent, v. David J. DEHART, Appellant.
    No. ED 83904.
    Missouri Court of Appeals, Eastern District, Division Four.
    Dec. 7, 2004.
    Timothy Forneris, Office of Missouri Public Defender, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Jefferson City, MO, for respondent.
    Before LAWRENCE E. MOONEY, C.J., LAWRENCE G. CRAHAN, J., and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Defendant David J. Dehart appeals the judgment entered pursuant to a jury verdict finding him guilty of one count of first degree robbery and one count of armed criminal action for which he was sentenced, as a prior and persistent offender, to concurrent terms of imprisonment of twenty years for each count.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. A detailed opinion would be of no precedential value. We have, however, provided the parties with a brief memorandum opinion, for their information only, explaining the reasons for our decision. The judgment is affirmed pursuant to Rule 30.25(b).


text:
    Theresa K. ZARVOS, Appellant, v. James N. ZARVOS, Jr., Respondent.
    No. ED 83319.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 7, 2004.
    Lawrence G. Gillespie, Gillespie, Hetlage & Coughlin, L.L.C., Clayton, MO, for appellant.
    Daniel R. Schramm, Daniel R. Schramm, L.L.C., Chesterfield, MO, Marta J. Papa, Marta J. Papa, P.C., St. Louis, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Appellant, Theresa Zarvos (‘Wife”), appeals from the judgment of the Circuit Court of St. Louis County ordering Respondent, James Zarvos, Jr. (“Husband”), to pay Wife $1,000 per month for statutory maintenance, but abating said amount for the first seven months. The court also divided all marital property and provided that each party would be responsible for the payment of his or her respective attorney’s fees. 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.


text:
    Charles INCE, et al., Appellants, v. Charles MONEY, et al., Respondents.
    No. ED 83780.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 7, 2004.
    Charles and Linna Ince, Arnold, pro se.
    Ray Diekhaner, Hillsboro, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Charles and Linna Ince (“the Inces”) appeal from the trial court’s judgment granting Charles and Lorene Money’s (“the Moneys”) motion to dismiss with prejudice their two-count petition for breach of contract and negligence relating to defects in the construction of their home. The Inces argue the trial court erred in holding their petition was barred by the five-year statute of limitations.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no prece-dential value. The trial court’s judgment is affirmed pursuant to 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 Rulé 84.16(b).


author: SHERRI B. SULLIVAN, J.

text:
    ST. CHARLES COUNTY DEPARTMENT OF CORRECTIONS, Respondent, v. Anthony TIPTON, Appellant.
    No. ED 84360.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 7, 2004.
    See also 138 S.W.3d 740.
    Mark Hanson Zoole, St. Louis, MO, for appellant.
    Beverly E. Temple, St. Charles, MO, for respondent.
   SHERRI B. SULLIVAN, J.

Introduction

Anthony Tipton (Tipton) appeals from a trial court judgment denying his Motion to Enforce Judgment seeking to enforce the monetary portion of a decision of the Merit System Commission of St. Charles County (the Commission) requiring St. Charles County Department of Corrections (the DOC) to reinstate Tipton to his position with the DOC. The trial court concluded that it was without jurisdiction to grant the relief that Tipton was seeking. We reverse and remand for further proceedings.

Factual and Procedural Background

The DOC employed Tipton as a corporal. In November 2000, the DOC terminated Tipton’s employment. Tipton appealed his termination of employment to the Commission, which reversed the termination and reinstated Tipton to his position with the DOC. The reinstatement was with full back pay and benefits, including sick pay, accrued vacation, pension service computations or vesting rights, dating back to the date of termination, along with any other benefit of employment, including all “increases in pay due to step or COLA increases since the date of termination.” The Commission’s decision, entered on June 22, 2001, also stated:

Pursuant to Section 115.370.B.l.d(2)(b), Ordinances of St. Charles County Missouri, Anthony Tipton is hereby ordered to submit to the Department of Corrections and to the Merit System Commission, within thirty (30) days of the date of this decision, all documents necessary to determine his income from other sources since his dismissal on November 20, 2000.

Tipton did not submit such documents to either the DOC or the Commission by the date specified in the Commission’s decision.

Subsequently, the DOC filed a petition for review with the trial court, and the court granted a motion to stay the Commission’s decision pending the final disposition of the review proceedings. The trial court affirmed the Commission’s decision on May 20, 2002. The DOC then appealed to this Court, and pursuant to Rule 81.09, the appeal again stayed the execution of the Commission’s decision. We affirmed the Commission’s decision in a per curiam order on July 29, 2003. St. Charles County Dept. of Corrections v. Tipton, 138 S.W.3d 740 (Mo.App. E.D. 2003). On August 12, 2003, Tipton submitted the documents as ordered in the Commission’s decision and on August 13, the DOC reinstated Tipton to his position with the DOC; however, the DOC has not provided Tipton with full back pay and benefits, as ordered in the Commission’s decision.

Subsequently, Tipton filed a Motion to Enforce Judgment with the trial court seeking to enforce the monetary portion of the Commission’s decision. The trial court entered a judgment denying Tipton’s motion, concluding that the court was without jurisdiction to grant the relief that Tipton was seeking because “no ‘judgment’ was ever rendered for a sum certain for which execution would lie.” The court stated that it was Tipton’s “failure to comply with the order to submit the documents necessary for him to obtain a judgment in a sum certain for which he could obtain execution which has caused his situation.” Tipton appeals from the judgment.

Discussion

Tipton raises two points on appeal, arguing in both that the trial court erred in denying his Motion to Enforce Judgment based upon the court’s lack of jurisdiction.

We conclude that the trial court erred in determining that it had no jurisdiction to consider Tipton’s Motion to Enforce Judgment because no judgment was ever rendered for a sum certain for which execution would he. The Commission’s decision, affirmed by the trial court, included a sum certain to be determined by the method for calculating a back pay award as provided in the St. Charles County ordinance cited in the decision (Section 115.370.-B.l.d(2)).

Further, although that section requires the aggrieved party to furnish necessary documents for calculating the award, the section does not require a specific time frame for providing such documents. The Commission’s decision ordered Tipton to submit the documents within thirty days of the date of the decision. However, the case essentially was stayed since the entry of the Commission’s decision due to the review and appeal processes. Tipton submitted the documents within thirty days of the entry of our opinion, just prior to the DOG reinstating Tipton to his position with the DOC. Had the appeal process proven successful for the DOC, Tipton need not have submitted the documents. Further, even if Tipton had submitted the documents within thirty days of the Commission’s decision, the documents would have been incomplete because the DOC did not reinstate Tipton to his position until after the completion of the appeal process. Therefore, we find no prejudice resulted to the DOC by Tipton’s failure to submit the documents within thirty days of the Commission’s decision.

Under Rule 74.09, the trial court has jurisdiction to consider Tipton’s Motion to Enforce Judgment. In so doing, the court need not determine the exact amount of back pay due Tipton; rather, the court may simply order the Commission to comply with its decision and to calculate accordingly the amount of back pay due Tip-ton, as it is authorized to do under St. Charles County ordinance Section 115.370.B.l.d(2), and any other damages awarded in the Commission’s decision.

Conclusion

The judgment of the trial court is reversed and remanded for further proceedings.

GARY M. GAERTNER, SR., P.J., and BOOKER T. SHAW, J., concur.

      . All rule references are to Mo. R. Civ. P.2004, unless otherwise indicated. Rule 81.09 provides in relevant part that an appeal by a county stays the execution of a case.

      . The issues on appeal addressed the procedures for and validity of Tipton’s termination of employment, not the monetary portion of the Commission’s decision.

      . The DOC's Motion to Strike Portions of Tipton’s Supplemental Legal File/Record on Appeal is denied.