author: JOSEPH M. ELLIS, Judge.

text:
    STATE of Missouri, Respondent, v. Jarrod R. McCLEOD, Appellant.
    No. WD 64945.
    Missouri Court of Appeals, Western District.
    March 21, 2006.

      Nancy A. McKerrow, Columbia, MO, for appellant.
    Shaun J. Mackelprang, Assistant Attorney, General Jefferson City, MO, for respondent.
    Before HAROLD L. LOWENSTEIN, Presiding Judge, JOSEPH M. ELLIS, Judge and THOMAS H. NEWTON, Judge.
   JOSEPH M. ELLIS, Judge.

Jarrod R. McCleod appeals from his conviction of one count of possession of a controlled substance with the intent to deliver, § 195.211. For the following reasons, we reverse the trial court’s judgment and remand for further proceedings.

On June 25, 2004, a Federal Express employee, Franky Vanderpool, was working at the Federal Express office in Seda-lia, Missouri, when he discovered a package that was missing some paperwork and did not have an address for the intended recipient aside from the zip code. In accordance with commonly accepted practices at Federal Express, Vanderpool opened the package to see if it contained information on the address of the intended recipient. Inside, Vanderpool found some plant material packaged in shrink-wrap plastic that he thought might be marijuana. Vanderpool notified the Sedalia Police Department of this discovery.

While waiting for the police to arrive, Vanderpool placed an entry on the Federal Express web-site under the package’s tracking number indicating that the package was undeliverable due to an incorrect address. Shortly thereafter, Federal Express teceived a telephone call indicating that Appellant was the intended recipient and providing them with a phone number at which he could be reached to arrange delivery.

Subsequently, Officers Phil Stewart and Daniel Keltner arrived at the Federal Express office to investigate the package. After examining the plant material and determining that it was indeed marijuana, the officers decided to have Federal Express attempt to deliver the package. The officers repackaged the marijuana and asked Vanderpool to call Appellant at the number that had been provided. Vander-pool called and left a message indicating that Federal Express had a package that it believed was intended for Appellant and that they needed for Appellant to pick up the package or provide them with an address for delivery.

About three or four hours later, Vander-pool received a call indicating that Appellant was coming by to pick up the package. Vanderpool called Officer Keltner, who had left the Federal Express office with the package about an hour before, and notified him that Appellant was on his way to pick up the package.

When Appellant arrived at the Federal Express office, one of the employees told Appellant that the package was still on a delivery truck and that they were waiting for it to arrive. Soon thereafter, Officer Keltner arrived through the back door to the office and gave Vanderpool the package. Vanderpool took the package up front and gave it to Appellant after he signed for it.

Appellant walked out to the parking lot and climbed into the driver’s seat of a parked car. As Officer Keltner followed Appellant to the caí', a woman with a small child approached the passenger side door of the car. Officer Keltner opened the driver’s side door of the car and asked Appellant to step out of the car. Appellant quickly climbed over the center console, climbed out through the passenger door, and fled. While chasing Appellant, Officer Keltner repeatedly identified himself as a police officer and ordered Appellant to stop. After about five minutes, Appellant finally stopped running, and Officer Keltner caught and handcuffed him.

Officer Keltner searched Appellant and found a small plastic bag containing marijuana and rolling papers in one of Appellant’s pockets. Upon searching Appellant’s vehicle, Officer Keltner recovered the unopened Federal Express package, rolling papers, and some marijuana “roaches”.

Subsequent testing confirmed that the material in the Federal Express package, the small plastic bag, and the roaches were indeed marijuana. The marijuana in the package weighed 222.74 grams, approximately 7⅜ ounces. The plastic bag contained 6.72 grams of marijuana.

Appellant was subsequently charged by information with one count of possession of a controlled substance with intent to deliver, § 195.211, and one count of possession of drug paraphernalia with intent to use, § 195.233. Appellant was tried by jury and found guilty as charged. The trial court sentenced appellant as a prior offender to a term of five years on the first count to be served concurrently with a thirty-day term on the second count.

In his sole point on appeal, Appellant challenges the sufficiency of the evidence to support his conviction for possession of a controlled substance with intent to distribute. Appellant contends that the evidence failed to support a finding that he knew of the nature and presence of the marijuana inside of the sealed package. He further argues that, even if there were evidence sufficient to establish his knowledge of the contents, the record does not contain evidence that he intended to deliver the marijuana to anyone.

“When a criminal defendant challenges the sufficiency of the evidence to support his conviction, our review is limited to determining whether sufficient evidence was admitted at trial from which a reasonable trier of fact could have found each element of the offense to have been established beyond a reasonable doubt.” State v. Chavez, 128 S.W.3d 569, 573 (Mo.App. W.D.2004). “[T]he function of the reviewing court is not to reweigh the evidence, but to determine if the conviction is supported by sufficient evidence.” State v. Mann, 129 S.W.3d 462, 467 (Mo.App. S.D.2004). “In making that determination, we must view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the verdict and disregard all evidence and inferences to the contrary.” Chavez, 128 S.W.3d at 573.

Section 195.211.1 provides that “it is unlawful for any person ... to possess with intent to ... deliver ... a controlled substance.” “Section 195.010(32) defines the terms ‘possessed’ or ‘possessing a controlled substance’ as ‘a person with the knowledge of the presence and illegal nature of a substance, has actual or constructive possession of the substance.’ ” State v. White, 28 S.W.3d 391, 398 (Mo.App. W.D.2000). Accordingly, “[t]o sustain a conviction for possession of a controlled substance with intent to deliver, the State must prove that appellant had (1) conscious and intentional possession of the substance, either actual or constructive, (2) awareness of the presence and nature of the substance, and (3) the intent to deliver the substance.” State v. Sutherland, 11 S.W.3d 628, 631 (Mo.App. E.D.1999).

Appellant clearly had actual possession of the package. “Actual possession requires that a person ‘has the substance on his person or within easy reach and convenient control.’ ” White, 28 S.W.3d at 398 (quoting § 195.010(32)). The evidence reflects that Appellant went to Federal Express to retrieve the package that was sent to him, he signed for it, and he carried it to the car. The fact that Appellant had the package on his person and clearly exercised control over it establishes actual possession. See State v. McKelvey, 129 S.W.3d 456, 459 (Mo.App. S.D.2004).

“However, ‘[possession without knowledge of such possession is not possession in the legal sense of that word.’ ” State v. Johnson, 81 S.W.3d 212, 215 (Mo.App. S.D.2002) (quoting State v. Mercado, 887 S.W.2d 688, 692 (Mo.App. S.D.1994)). Appellant argues that the record does not contain sufficient evidence to establish that he knew that marijuana was present inside the package.

While Appellant points out that there is no direct evidence that he knew what was contained in the package, “ ‘[p]roof of a defendant’s knowledge of the presence and character of a substance is normally supplied by circumstantial evidence of the acts and conduct of the accused from which it can be fairly inferred he or she knew of the existence of the contraband.’ ” State v. McLane, 136 S.W.3d 170, 173 (Mo.App. S.D.2004) (quoting State v. Elmore, 43 S.W.3d 421, 427 (Mo.App. S.D.2001)). Evidence that the defendant had actual possession of a controlled substance, in and of itself, gives rise to an inference that he or she had knowledge of the presence and character of the controlled substance. State v. Spraggins, 839 S.W.2d 599, 603-04 (Mo.App. E.D.1992). Thus, “[a] prima facie case of knowing possession of a controlled substance is made out by the prosecution showing the defendant’s possession of the substance.” State v. Bell, 719 S.W.2d 763, 765 (Mo. banc 1986). “A defense that defendant was not aware of the controlled substance in his possession merely creates a conflict in the evidence, the resolution of which is for the jury.” Id. “Thus, the state’s uncontradicted evidence showing defendant’s possession of a packet containing marijuana constituted substantial evidence from which a jury could rationally have determined that defendant knowingly possessed the marijuana.” Id.

Moreover, the inference that Appellant was aware that the package contained marijuana is further bolstered by the fact that rolling papers and a small bag of marijuana were found in Appellant’s pocket and the fact that Appellant fled from Officer Keltner. See State v. Dowell, 25 S.W.3d 594, 603 (Mo.App. W.D.2000) (“[E]vidence of the defendant’s contemporaneous possession of other drugs, weapons, money or other drug paraphernalia is relevant and admissible to show that the defendant knowingly and intentionally possessed the controlled substance.”) (internal quotations omitted); State v. Franco-Amador, 83 S.W.3d 555, 558-59 (Mo.App. W.D.2002) (While “[fjlight does not establish a defendant’s guilty knowledge of a particular crime in comparison to other possible charges and is alone insufficient to support a conviction,” a “defendant’s flight is admissible as tending to demonstrate a consciousness of guilt,” and, “[ajlong with other evidence of guilt, flight can be considered in support of a conviction.”) (internal quotations omitted). In addition, Appellant’s decision to pick up the package without providing Federal Express with his address, while not particularly compelling, is consistent with an individual aware that the package contained an illegal substance.

In short, the evidence presented at trial sufficiently supported a finding by the jury that Appellant was aware of the presence and nature of the marijuana contained in the package.

Appellant next contends that, even if the evidence sufficiently established his knowing possession of the marijuana, the evidence did not support a finding that he intended' to deliver the marijuana to anyone else. Appellant points out that he was not found with any of the evidence usually relied upon to establish intent to deliver like the division of the marijuana into several small packages or possession of plastic bags, scales, or a large amount of cash.

In response, the State contends that the amount of marijuana in Appellant’s possession, about 7⅜ ounces, was, in and of itself, sufficient to support a finding that Appellant had the intent to deliver the marijuana. The State argues that the amount of marijuana, along with testimony from officers offering their opinion that the amount was a sales amount, sufficiently supports Appellant’s conviction.

As noted supra, in order for Appellant to be convicted of possession with intent to deliver, the State was required to prove beyond a reasonable doubt that Appellant intended to deliver the marijuana contained in the package. Sutherland, 11 S.W.3d at 631. The State claims that this burden was sufficiently met by showing that Appellant possessed the 7⅜ ounces or so of marijuana but fails to cite to any case law actually supporting that assertion.

In its brief, the State relies upon State v. Gonzalez, 108 S.W.3d 209 (Mo.App. S.D. 2003), contending that Gonzalez held that the sheer quantity of marijuana recovered from the defendant’s bedroom in that ease, 159 grams or about 5½ ounces, was sufficient to prove the defendant’s intent to distribute. The State quotes Gonzalez as stating that “[tjhe ‘sheer quantity of the marijuana’ was ‘sufficient to sustain the conviction and sentence per [the intent to deliver] element.’ ” But the State takes this language out of context. The State selectively fails to mention the fact that Gonzalez also relied upon the fact that “[s]ome of the marijuana in Defendant’s room was individually wrapped as ounces in Ziploc-type bags” and that those bags of marijuana were similar to those found in a car stopped shortly after leaving the apartment where the defendant lived. Id. at 210. In fact, the sentence quoted by the State reads, in full, “The sheer quantity of the marijuana in his room and the baggies used to package a portion thereof were sufficient to sustain the conviction and sentence per that element.” Id. at 212-13 (emphasis added).

The State also claims that United States v. Glenn, 667 F.2d 1269 (9th Cir.1982), held that the defendant’s possession of 185 grams, about 6½ ounces, of marijuana alone was “sufficient to prove intent when fortified by expert testimony that the amount was considerably greater than a person would ordinarily possess for personal use.” In so doing, the State wholly misrepresents the holding in Glenn, which offered no opinion as to whether the amount of marijuana and the expert testimony alone would support a finding of intent to deliver. Instead, the court noted that the following evidence, viewed as a whole, was sufficient to support a finding of intent:

The evidence introduced at trial showed that Glenn possessed approximately 185 grams (between five and six ounces) of marijuana. An expert witness testified that this was considerably more than a person would ordinarily possess for personal use. The marijuana was divided into small packages, as if for sale. Glenn was carrying a 100-gram scale, and a box of plastic sandwich bags suitable for packaging marijuana. In addition, the evidence showed that Glenn had several hundred dollars on his person when he was arrested, although he was unemployed; that he was arrested on payday for Yosemite employees; and that he had written on a Yosemite map several columns of figures which could have been calculations of profit.

Id. at 1272. Thus, Glenn offered no opinion as to whether the amount of marijuana in the defendant’s possession could support a finding of intent to distribute, in and of itself.

The State also attempts to rely upon State v. Salyer, 884 S.W.2d 354, 357 (Mo.App. S.D.1994), which noted that “[possession of a large quantity of a controlled substance is probative of intent to distribute.” In finding that sufficient evidence supported a finding of intent to distribute, the Salyer court relied upon the fact that “[sjome of the marijuana was packaged in ziplock bags of uniform size, and some in sacks containing small baggies,” noting that “[t]he presence of uniform measured quantities is a circumstance indicating a purpose of distribution.” Id. at 356, 357. The court further noted that the defendant’s possession of several pipes designed for smoking marijuana and several hemostats, frequently used for holding marijuana cigarettes, was probative of the defendant’s intent to share the marijuana with others. Id. at 357-58. Like Glenn, Salyer does not provide support for the State’s contention that the possession of approximately 7½ ounces of marijuana, standing alone, is sufficient to support a finding of intent to deliver.

Finally, the State relies upon State v. Fairow, 991 S.W.2d 712 (Mo.App. E.D. 1999). In Fairow, the court held that the defendant’s possession of 402.26 grams, more than 14 ounces, of marijuana in a form not ready for consumption, along with a large amount of cash, supported a finding of intent to distribute. Id. at 714, 715. Accordingly, as was the case with the other cases relied upon by the State, Fai-row did not rest entirely upon the quantity of marijuana that was found in the defendant’s possession. Moreover, Fairow involved almost twice the amount of marijuana present in the case at bar, and the marijuana recovered in Fairow was in a form unsuitable for consumption, a fact specifically relied upon by the court. Id. at 715. The record in the case at bar does not indicate whether the marijuana found in Appellant’s possession was in a form that could be readily consumed. Thus Fairow, too, is readily distinguishable from the case at bar.

Certainly, at some point, the amount of a controlled substance in a defendant’s possession can establish, beyond a reasonable doubt, that the defendant intended to deliver or distribute that substance to others. See State v. Sanderson, 169 S.W.3d 158, 163, 164 n. 3 (Mo.App. S.D.2005); State v. Belton, 108 S.W.3d 171, 176 (Mo.App. W.D.2003). Conversely, “ ‘[p]roof of possession of a small amount of a controlled substance, standing alone, is an insufficient basis from which an intent to distribute may be inferred.’ ” State v. Parrish, 852 S.W.2d 426, 429 (Mo. App. W.D.1993) (quoting United States v. Franklin, 728 F.2d 994, 999 (8th Cir. 1984)); see also State v. May, 71 S.W.3d 177, 185 (Mo.App. W.D.2002) (holding that possession of 50.05 grams of marijuana was insufficient by itself to support a finding that the defendant intended to deliver the marijuana).

“ ‘[P]roof of possession with an intent to distribute or sell should not be based solely upon surmise or suspicion. There must be evidentiary facts which will rationally produce in the minds of jurors a certainty, a conviction beyond a reasonable doubt that the defendant did in actual fact intend to distribute or sell the [controlled substance], not that he might have such intent.’” Jones v. State, 635 So.2d 884, 888 (Miss.1994) (quoting Stringfield v. State, 588 So.2d 438, 440 (Miss.1991)). “Intent to distribute may be inferred solely from the possession of an amount of controlled substance too large to be used by the possessor alone.” United States v. Hunt, 129 F.3d 739, 742 (5th Cir.1997). “On the other hand, a quantity that is consistent with personal use does not raise such an inference in the absence of other evidence.” Id.; see also May, 71 S.W.3d at 185. For the quantity alone to sufficiently support a finding, beyond a reasonable doubt, of intent to deliver or distribute the controlled substance, the amount must be inconsistent with personal use. Hunt, 129 F.3d at 742. Thus, the amount of the controlled substance found in the defendant’s possession must be sufficiently large that a jury could find beyond a reasonable doubt that the drugs are not for the defendant’s personal use and are intended for distribution. See State v. Williams, 464 So.2d 822, 823 (La.Ct.App. 1985) (“[M]ere possession of marijuana is not evidence of intent to distribute unless the quantity is so large that no other reasonable inference can be concluded from the mere possession of the quantity.”).

With regard to Missouri cases that have relied solely upon the amount of marijuana found in the defendant’s possession to support a finding of an intent to deliver, we note that in State v. Sanderson, 169 S.W.3d 158, 163, 164 n. 3 (Mo.App. S.D. 2005), the court stated that ten pounds of marijuana found in ten vacuum-sealed bags was a distribution amount and that “if Defendant is found to have constructively possessed the 10 pounds of marijuana found in the trunk, intent to distribute may be inferred from the amount of the drug that was seized.” In State v. Belton, 108 S.W.3d 171, 176 (Mo.App. W.D.2003), the court held that possession of 820 grams (28.93 ounces, almost 2 pounds) of marijuana in a form unsuitable for consumption supported a finding of intent to distribute.

The amount of marijuana involved in the case at bar is significantly less than the amounts involved in Sanderson or Belton. Furthermore, as noted supra, no evidence was presented indicating that the marijuana found in Appellant’s package was unsuitable for consumption or that the marijuana was divided into smaller packages.

Appellant was found in possession of approximately 7½ ounces of marijuana. The State has failed to cite to any case in which marijuana in a quantity this small was deemed sufficient, based solely upon the quantity present, to infer the defendant’s intent to deliver. While there is certainly a point at which a defendant is in possession of so much marijuana that there is no reasonable doubt that he intends to sell or otherwise share the marijuana, that point has not been reached in this case. The fact that Appellant was found in possession of approximately 7½ ounces of marijuana is not sufficient, in and of itself, to establish beyond a reasonable doubt that he intended to deliver the marijuana to others. See United States v. Meshack, 225 F.3d 556, 568 (5th Cir.2000) (“[T]he amount of marijuana found, slightly over one pound, can be consistent with personal use and, therefore, does not in and of itself raise an inference of intent to distribute.”); Williams, 464 So.2d at 824 (holding that possession of two pounds of marijuana, without more, was insufficient to support a finding of intent to distribute); State v. Williams, 656 A.2d 975, 978 (R.I. 1995) (“Although one and two-thirds pounds is a substantial amount of marijuana, possession of that amount in and of itself would be insufficient to prove defendant’s intent to deliver it to others.”). While the State also presented testimony from law enforcement officers stating their opinion that this was a “sales amount”, the officers did not testify that this amount was wholly inconsistent with personal use. And the State has not cited, nor have we found, a case where the officer’s opinion testimony, without more, added enough to sustain a conviction based on this small a quantity of marijuana. All such cases involved much larger amounts of marijuana. See United States v. Zuniga-Perez, 69 Fed.Appx. 906, 2003 WL 21386434 (10th Cir.2003) (2,600 pounds of marijuana plus agents testimony that it was more than a personal use amount held sufficient); Blis-sett v. State, 754 So.2d 1242, 1244-45 (Miss.2000) (40-50 pounds of marijuana plus agents’ testimony that it was more than one would keep for personal consumption sufficient); State v. Heiskell, 21 Kan.App.2d 105, 896 P.2d 1106,1111 (1995) (20 pounds of marijuana plus officer’s testimony that it was more than a personal consumption amount held sufficient).

Because the evidence was insufficient to support Appellant’s conviction of possession of a- controlled substance with the intent to distribute, that conviction must be reversed. Since the jury found Appellant guilty of possession of a controlled substance with the intent to deliver under § 195.211, it did not reach a decision on the alternate instruction asking the jury to consider whether Appellant was guilty of possession of over 35 grams of marijuana in violation of § 195.202.2. While the evidence was certainly sufficient to support a conviction of possession of over 35 grams of marijuana, because § 195.202 is not a lesser included offense of § 195.211 and because the jury only needed to find Appellant in possession of 5 grams or more of marijuana to support his conviction under § 195.211.3, May, 71 S.W.3d at 186, the case must be remanded for a new trial to determine if Appellant is guilty of that offense.

All concur.

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

      . The marijuana in the "roaches” weighed 1.33 grams.

      .Appellant does not challenge the sufficiency of the evidence establishing that he exercised dominion and control over the package on appeal.

      ."If actual possession is not shown, constructive possession may be proved when other facts buttress an inference of the defendant’s knowledge of the presence of a controlled substance." State v. Bristol, 98 S.W.3d 107, 111 (Mo.App. W.D.2003).

      . The opinion does not indicate whether this evaluation of the amount came from testimony in the record or the court’s calculation. However, we note that "[ujnder avoirdupois weight, commonly used in this country, one ounce equals 28.349 grams.” State v. Gleason, 813 S.W.2d 892, 896 n. 1 (Mo.App. S.D. 1991). Thus, 185 grams would equal 6.53 ounces. '


source: Caselaw Access Project

author: PATRICIA BRECKENRIDGE, Judge.

license: Public Domain

text:
    Teresa Ann BRUNS, n/k/a Teresa Ann Capraro, Appellant, v. Robert Lee BRUNS, Respondent.
    No. WD 64741.
    Missouri Court of Appeals, Western District.
    March 21, 2006.

      Teresa Ann Capraro, Sedalia, MO, pro se.
    Robert Lee Bruns, Springfield, MO, pro se.
    Before HARDWICK, P.J., BRECKENRIDGE and SPINDEN, JJ.
   PATRICIA BRECKENRIDGE, Judge.

Teresa Ann Bruns, n/k/a Teresa Ann Capraro, appeals the judgment of the trial court finding her in contempt of court and ordering her to pay $1000 in attorney’s fees to her former husband, Robert Bruns, and court costs. On appeal, Ms. Capraro claims the trial court erred in finding her in contempt of court because she was denied due process of law. Ms. Capraro also claims the trial court erred in ordering her to pay attorney’s fees and court costs because the trial court did not consider the financial resources of both parties and the provisions of the parties’ Marital Settlement and Separation Agreement, which precluded the trial court from awarding attorney’s fees to Mr. Bruns. This court dismisses Ms. Capraro’s claims that the trial court erred in finding her in contempt of court, because Ms. Capraro has purged herself of the contempt. This court finds no error in the portion of the trial court’s judgment ordering Ms. Capraro to pay Mr. Bruns attorney’s fees and court costs.

Factual and Procedural Background

On July 14, 1999, the trial court dissolved the parties’ marriage. At that time, the trial court approved the parties’ Marital Settlement and Separation Agreement and ordered the parties to perform the terms thereof. One provision of the Separation Agreement provided that Mr. Bruns would “be entitled to declare [their daughter] as his dependent on his Federal and State Income Tax returns and to claim the accompanying deduction and tax credit, and any other federal or state allowances, in odd numbered years.” Ms. Capraro agreed to “annually execute documents necessary in order for [Mr. Bruns] to receive said deductions and credits.”

Mr. Bruns sent Ms. Capraro a certified letter requesting that she sign the tax documents necessary for Mr. Bruns to take the deductions and credits as agreed for the 2003 tax year. Mr. Bruns made a similar request in person. In March 2004, Mr. Bruns’ attorney sent Ms. Capraro a letter stating that Ms. Capraro had not sent Mr. Bruns the tax documents and warning Ms. Capraro that unless Mr. Bruns received the tax documents from Ms. Capraro no later than April 1, 2004, Mr. Bruns would take legal action.

On August 25, 2004, after failing to receive the signed tax documents from Ms. Capraro, Mr. Bruns filed a motion for contempt. In his motion, Mr. Bruns prayed that the trial court compel Ms. Capraro to sign the tax documents or, in the alternative, enter a monetary judgment for $1714, the amount Mr. Bruns alleged he would lose if he could not take the deduction. Mr. Bruns also sought attorney’s fees of $1500 and court costs. On September 9, 2004, the trial court held a hearing for Ms. Capraro to show cause why she should not be held in contempt of court for failure to comply with the court’s prior order. At the hearing, Mr. Bruns was represented by counsel. Ms. Capraro was not represented by counsel and was not informed of her right to be represented by counsel. During the hearing, Ms. Capraro testified that she had signed and mailed the tax documents to Mr. Bruns. Mr. Bruns, on the other hand, testified that he had not received the tax documents.

The trial court determined that Ms. Ca-praro knew that she was required to provide the tax documents necessary for Mr. Bruns to claim their daughter as a dependent for the 2003 tax year. The trial court did not believe Ms. Capraro’s testimony that she had mailed the tax documents to Mr. Bruns. Further, the trial court found that Ms. Capraro’s failure to provide the documents was “done intentionally and in contempt of the Order of this Court.” Consequently, the trial court found Ms. Capraro in contempt of court. The trial court ordered Ms. Capraro jailed unless she purged herself of the contempt by providing Mr. Bruns with the necessary tax documents within three days of the judgment. The trial court also ordered Ms. Capraro to pay $1000 in attorney’s fees and court costs. Ms. Capraro purged herself of the contempt by executing the tax documents and, then, filed this appeal.

Contempt Appeal Not Reviewable

In her first and third points on appeal, Ms. Capraro claims the trial court erred in finding her in contempt of court because she was denied due process of law. Before reaching the merits of Ms. Capra-ro’s claims, this court must, sua sponte, determine whether it has jurisdiction over the claims raised on appeal. In re Marriage of Werths, 33 S.W.3d 541, 542 (Mo. banc 2000). In order to have jurisdiction, there must be a final, appealable judgment. In the Interest of E.N.K., 126 S.W.3d 458, 461 (Mo.App. W.D.2004). Therefore, this court must examine whether the trial court’s contempt order is ap-pealable.

“Where a contempt order has the purpose of coercing a party to comply with a court order rather than punishing a party to protect, preserve, and vindicate the power and dignity of the court, the order is one for civil contempt.” City of Page-dale v. Taylor, 790 S.W.2d 516, 518 (Mo.App. E.D.1990). Here, the trial court’s contempt order was issued for the purpose of compelling Ms. Capraro to provide Mr. Bruns with the tax documents necessary for Mr. Bruns to claim their daughter as a dependant for the 2003 tax year. Indeed, Ms. Capraro was able to purge herself of the contempt by signing the tax documents. The trial court, therefore, found Ms. Capraro in civil contempt.

“A party held to be in civil contempt has two options: (1) purge [herself] of the contempt by complying with the court’s order, making the case moot and unappealable; or (2) appeal the order, but only after the court’s order is enforced by incarceration or otherwise.” Lieurance v. Lieurance, 111 S.W.3d 445, 446 (Mo.App. E.D.2003). Here, Ms. Capraro chose the first option. In her brief, Ms. Capraro admits she “purged herself of the contempt portion of the trial court’s judgment” on September 10, 2004. “An appellate court will not review contempt proceedings where the contemnor has complied with the order or has purged” herself. Yeager v. Yeager, 622 S.W.2d 339, 343 (Mo.App. E.D.1981). The part of the trial court’s judgment finding Ms. Ca-praro in contempt is, therefore, not ap-pealable. McGee v. McGee, 25 S.W.3d 489, 490 (Mo.App. E.D.2000). Ms. Capra-ro’s first and third points, challenging the portion of the trial .court’s judgment finding her in civil contempt, are unappeala-ble and, therefore, are dismissed.

No Error in Awarding Attorney’s Fees to Mr. Bruns

In her second point on appeal, Ms. Capraro claims the trial court abused its discretion in awarding Mr. Bruns attorney’s fees and court costs because the trial court failed to consider both parties’ incomes and the provisions of the Separation Agreement. This court can consider the merits of this claim of error, because “[t]he attorney’s fees and costs awarded to the respondent are a different matter entirely” from the contempt order; an award of attorney’s fees and costs “is not a portion of the civil contempt order itself which is solely to coerce compliance.” Pagedale, 790 S.W.2d at 518. While the contempt order cannot be appealed, that part of the trial court’s judgment relating to attorney’s fees and court costs is appealable. See McGee, 25 S.W.3d at 490-491.

In her claim that the trial court failed to consider the incomes of the parties in awarding attorney’s fees to Mr. Bruns, Ms. Capraro assumes that the authority for the award of attorney’s fees is section 452.355. Section 452.355.1 allows for the recovery of costs associated with “maintaining or defending any proceeding pursuant to sections 452.300 to 452.415 and for attorney’s fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding and after entry of a final judgment.” Section 452.335.2 allows the recovery of attorney’s fees for “any proceeding in which the failure to pay child support pursuant to a temporary order or final judgment is an issue.” Mr. Bruns’ motion was for contempt, which is neither a “proceeding pursuant to sections 452.300 to 452.415,” nor a proceeding for failure to pay child support.

The trial court’s ability to award attorney’s fees in Chapter 452 contempt cases, like in other civil contempt cases, is based on the trial court’s own inherent powers, and not pursuant to section 452.355. Saab v. Saab, 637 S.W.2d 790, 792 (Mo.App. E.D.1982). Under its inherent powers, “[t]he circuit court has authority to assess attorney’s fees in civil contempt cases for willful disobedience of a court order.” McNeill v. McNeill, 708 S.W.2d 751, 754 (Mo.App. E.D.1986). “These fees may be assessed against the violator as part of the expenses and costs incurred by the complainant in the prosecution of the contempt proceedings.” Id. A trial court’s award of attorney’s fees in a. civil contempt action will be reversed only when the trial court has abused its discretion. Yeager, 622 S.W.2d at 343.

Here, the evidence supporting the trial court’s exercise of its inherent power to award attorney’s fees is Mr. Bruns’ testimony at the hearing that both he and his attorney sent Ms. Capraro letters requesting that she provide the tax documents. Mr. Bruns also testified that he asked Ms. Capraro for the documents in person. In her testimony, Ms. Capraro acknowledged receiving the requests from Mr. Bruns. She testified, however, that she sent the documents to Mr. Bruns at his California address because she did not know that Mr. Bruns had moved back to Missouri. Mr. Bruns testified that Ms. Capraro was aware that he had moved back to Missouri.

The trial court determined that Ms. Ca-praro was not credible in her assertion that she had signed and mailed the forms to Mr. Bruns, lout, rather, that Ms. Capra-ro had “intentionally and in contempt of the Order of [the trial c]ourt failed to send Mr. Bruns the documents.” “This court defers to the trial court’s credibility determinations and the trial court is free to believe all, part or none of any witness’ testimony.” Hewlett v. Hewlett, 845 S.W.2d 717, 719 (Mo.App. W.D.1993). The trial court was entitled to believe Mr. Bruns and disbelieve Ms. Capraro. There is substantial evidence in the record to support the trial court’s award of attorney’s fees to Mr. Bruns, so the trial court did not abuse its discretion in its award of attorney’s fees.

Because the trial court did not abuse its discretion in awarding Mr. Bruns attorney’s fees for Ms. Capraro’s contempt under its inherent powers, Ms. Capraro’s argument that the trial court failed to consider the parties’ incomes, as required by section 452.355, need not be considered. Even if this court were to examine the merits of Ms. Capraro’s claim, Ms. Capra-ro would not prevail. “The trial court’s decision as to a request for award of attorney’s fees is presumptively correct.” Williams v. Williams, 55 S.W.3d 405, 418 (Mo.App. W.D.2001). Absent some evidence to the contrary, the trial court is presumed to have considered all relevant factors in awarding attorneys fees. Sullivan v. Sullivan, 159 S.W.3d 529, 542 (Mo.App. W.D.2005). Nothing in the record indicates that the trial court did not consider all relevant factors, including the parties’ incomes, in awarding Mr. Bruns attorney’s fees under section 452.355.

Ms. Capraro also claims, on appeal, that the parties’ Separation Agreement precludes the award of attorney’s fees to Mr. Bruns. In support of her claim, Ms. Capraro cites a section of the Separation Agreement that states:

In the event that either party to this Agreement brings an action for failure to perform any of the obligations imposed by the Agreement on him or her, or for enforcement or clarification of the Agreement, the prevailing party in such action shall have the right to recover his or her attorney’s fees and litigation costs reasonably expended in prosecuting or defending the action. However, no attorney fees shall be so recovered by a party filing an action unless that party seeking to recover said attorney fees and costs shall have mailed to the breaching party written notice of the alleged failure to perform and said alleged failure was not cured within ten (10) days after the date of mailing said notice by certified mail to the alleged breaching party’s business or residence address.

Ms. Capraro argues that this language conditioned the award of attorney’s fees on proof that Mr. Bruns sent a certified letter to her and gave her ten days to cure any alleged breach. Ms. Capraro further argues that, because there is no evidence in the record of the date Mr. Bruns sent a certified letter informing her that she was in violation of the Separation Agreement or demonstrating the contents of the letter, the clause precludes an award of attorney’s fees to Mr. Bruns. Without knowing the date on which the letter was sent or its contents, Ms. Capraro argues this court cannot know whether she was provided ten days in which to cure the breach, as required by the Separation Agreement.

Mr. Bruns testified that he sent Ms. Capraro a certified letter as required by the Settlement Agreement. Without objection, he testified that his letter asked Ms. Capraro to execute the necessary IRS forms to permit him to claim their daughter as a dependent. He stated he even enclosed the necessary form, Form 8332, in the letter. He also admitted into evidence, as Exhibit A, the unopened envelope, containing the letter, which had been returned as unclaimed. At the hearing, Ms. Capraro testified as follows:

[MR. BRUNS’ COUNSEL]: And you got a notice, did you not, that you were sent a letter by certified mail, return receipt requested at [your home] address?
[MS. CAPRARO]: Yeah.
[MR. BRUNS’ COUNSEL]: In fact, they sent the first notice on November 22, 003 and the second notice on December 5, 2003; is that right?
[MS. CAPRARO]: (No audible response)
[MR. BRUNS’ COUNSEL]: So they gave you two attempts to pick it up?
[MS. CAPRARO]: Yeah. That’s probably right. My daughter was in Columbia having a baby during that time so I was in Columbia while she was having a C-section, so I didn’t get to check my mail due to that.

Ms. Capraro’s acknowledgment that she was given two chances to pick up the letter, November 22, 2003, and December 5, 2003, and her statement that her daughter was “having a baby during that time” could reasonably be found by the trial court to be evidence that the certified letter was sent prior to November 22, 2003. This court “presume[s] all fact issues were found in accordance with the judgment.” Clippard v. Pfefferkorn, 168 S.W.3d 616, 618 (Mo.App. E.D.2005). Additionally, Mr. Bruns testified, without objection, as to the contents of his certified letter, and Ms. Capraro failed to include EJxhibit A in the record on appeal. “All evidentiary omissions in the record on appeal are presumed to support the trial court’s decision.” Runny Meade Estates, Inc. v. Datapage Technologies Int’l, Inc., 926 S.W.2d 167, 168 n. 2 (Mo.App. E.D.1996). This court may assume omitted portions of the record are unfavorable.to Ms. Capraro. Id. Thus, Ms. Capraro’s failure to provide the necessary record on appeal, i.e., Exhibit A, causes this court to assume that the exhibit would be unfavorable to her. Id. Under this standard, Mr. Bruns’ testimony, coupled with Ms. Capraro’s admissions, provides sufficient evidence from which the trial court could have determined that a certified letter was sent to Ms. Capraro by November 22, 2003. The hearing on Mr. Bruns’ motion for contempt was not until September 9, 2004. Thus, Ms. Capraro was given the proper notice and had more than the ten days required by the Settlement Agreement to cure her breach. Consequently, the trial court’s decision complies with the terms of the Settlement Agreement. Ms. Capraro’s second point is denied.

Because Ms. Capraro purged herself of contempt, her appeal of the provisions of the trial court’s judgment holding her in contempt is not appealable, and, therefore, is dismissed. Further, since the trial court did not err in ordering Ms. Capraro to pay $1000 of Mr. Bruns attorney’s fees and court costs, that portion of the trial court’s judgment is affirmed.

All concur.

      . A contempt order is not final and, therefore, appealable, until it is enforced. In re Marriage of Tibbs, 177 S.W.3d 855, 856-857 (Mo.App. E.D.2005).

      . While there are some cases that involve both an award of attorney’s fees under section 452.355 and civil contempt, these cases also involve either a proceeding for failure to pay child support, or a proceeding under sections 452.300 to 452.415. See In re Marriage of Crow, 103 S.W.3d 778, 783 (Mo.2003); Adams v. Adams, 51 S.W.3d 541, 549 (Mo.App. W.D.2001); Mcllroy v. Simmons, 832 S.W.2d 949, 952 (Mo.App. E.D.1992).


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Melvin R. HIX, Appellant.
    No. WD 63886.
    Missouri Court of Appeals, Western District.
    March 21, 2006.
    Gary E. Brotherton, Columbia, MO, for Appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for Respondent.
    Before EDWIN H. SMITH, C.J., THOMAS H. NEWTON, and RONALD R. HOLLIGER, JJ.
   ORDER

PER CURIAM.

Mr. Melvin R. Hix was convicted for possession of methamphetamine, hydroco-done, dextroproxyphene, and marijuana in violation of section 195.202 and possession of drug paraphernalia in violation of section 195.233. Mr. Hix appeals the convictions and sentences challenging the sufficiency of the evidence and the constitutionality of the jury selection procedure.

For reasons set forth in the memorandum provided to the parties, we affirm. Rule 30.25(b).

      . All statutory references are to RSMo (1994) and the Cumulative Supplement (1998), unless otherwise indicated. Mr. Hix was originally charged in 1998 in two separate documents and later a first amended consolidated information was filed in 2003 consolidating all charges. (LF 12-17, 27).


text:
    STATE of Missouri, Respondent, v. Daniel R. MASON, Appellant.
    No. WD 65054.
    Missouri Court of Appeals, Western District.
    March 21, 2006.
    James Roy Brown, Kearney, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Office of Attorney General, Jefferson City, for Respondent.
    Before PATRICIA A. BRECKENRIDGE, Presiding Judge, VICTOR C. HOWARD, Judge, and RONALD R. HOLLIGER, Judge.
   ORDER

Daniel Mason appeals his conviction for the class C felony of receiving stolen property, Mo.Rev.Stat. §' 570.080 (2000). His sole point on appeal contends that the trial court erred in denying his motion to suppress statements and other evidence allegedly obtained in violation of the Fourth and Fifth Amendments to the United States Constitution. We have reviewed the briefs of the parties and the record on appeal and find no error of law. A written opinion reciting the detailed facts and restating the applicable principles of law would have no precedential or jurisprudential value. The parties, however, have been furnished with a memorandum 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).


text:
    Shawn M. SUMMERS, Appellant, v. STATE of Missouri, Respondent.
    No. WD 65342.
    Missouri. Court of Appeals, Western District.
    March 21, 2006.
    Rosalyn Koch, Columbia, MO, for appellant.
    Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before HAROLD L. LOWENSTEIN, Presiding Judge, JOSEPH M. ELLIS, Judge and THOMAS H. NEWTON, Judge.
   ORDER

PER CURIAM.

Shawn Summers appeals from the denial, without an evidentiary hearing, of his Rule 24.035 motion for post-conviction relief from his conviction on one count of second-degree trafficking. After a thorough review of the record, we conclude that the judgment is based on findings of fact that are not clearly erroneous and that no error of law appears. An extended opinion would have no precedential value; however, a memorandum explaining our reasoning has been provided to the parties.

Judgment affirmed. Rule 84.16(b).


author: ROBERT G. ULRICH, Judge.

text:
    Eugene JENNINGS, et al., Appellants, v. CHATSWORTH APARTMENTS PROJECT LTD., et al., Respondents.
    Nos. WD 65358, WD 65377.
    Missouri Court of Appeals, Western District.
    March 21, 2006.

      Frank P. Barker, III, Independence, MO, for appellants, Jennings, Kulphongpa-tana, and Hughes, Jr.
    Robert Harold Shaw, Platte City, MO, for Appellant, Smith.
    Stuart Eliot Bodker, Kansas City, MO, for Respondent.
    Before JAMES M. SMART, P.J., ROBERT G. ULRICH and LISA WHITE HARDWICK, JJ.
   ROBERT G. ULRICH, Judge.

Eugene Jennings, John Kulphongpata-na, and the Estate of Robert Hughes, Sr. (Hughes Estate) (collectively “Plaintiffs”) filed their declaratory judgment action naming as defendant James K. Smith, Personal Representative of the Estate of Richard Smith, deceased (Smith Estate). Plaintiffs also sued Chatsworth Apartments Project, Ltd., a Missouri limited partnership (Chatsworth Missouri), for failure to satisfy a promissory note dated March 1, 1995. Whether Chatsworth Missouri is subject to the provisions of a February 1, 1980, promissory note is the controlling issue in this case. If it is not, Chatsworth Missouri is not subject to the terms of the 1995 Note, which was an attempt to “renew” the 1980 Note. The Smith Estate cross-claimed against Chats-worth Missouri; the same March 1, 1995, Note constitutes the subject of the cross-claim. Chatsworth Missouri filed counterclaims against Plaintiffs. Chatsworth Missouri filed its motion for summary judgment, Rule 74.04, on Counts II (promissory note) and III (seeking equitable lien, constructive trust and/or resulting trust) of Plaintiffs’ Amended Petition, and the court granted the motion, entering summary judgment. All other pending counts were dismissed without prejudice. Plaintiffs’ and Smith Estate’s notices of appeal were timely filed.

Facts

Eugene Jennings and Eugenio S. Concepcion, Jr., as general partners, and limited partner Chatsworth Kansas, a Kansas limited partnership, formed Chatsworth Missouri on February 11, 1980. Chats-worth Kansas acted through Lirio Concepcion, a general partner of Chatsworth Kansas. Chatsworth Kansas was formed simultaneously with Chatsworth Missouri.

Chatsworth Missouri was formed to purchase and operate the Chatsworth Apartments located in St. Joseph, Missouri. An Offering Memorandum, which contained a “Confidential Information Memorandum,” was circulated among the prospective general and limited partners. The Offering Memorandum articulated that the purpose of Chatsworth Missouri was to own and operate a HUD housing project located in St. Joseph, Buchanan County, Missouri, named the Chatsworth Apartments, which consisted of five acres of real estate, nine buildings containing 90 apartment units, parking facilities, a swimming pool, and storage areas. Chatsworth Missouri purchased the property from Chatsworth Apartments, Ltd., a Missouri limited partnership (Seller). The parties to the sale signed a purchase agreement that provided for a total payment of $1,900,000. ■ The total purchase price included assumption of a $1,400,000 FHA insured mortgage at 7% interest with a thirty-seven year term to conclusion; earnest money of $5000; a $270,000 cash payment upon HUD approval at closing; and delivery at closing of a $225,000 note by Chatsworth Missouri due in 1986. The February 1, 1980, $225,000.00 note (1980 Note) stated “FOR VALUE RECEIVED, the undersigned, EUGENIO S. CONCEPCION, JR., as an individual, ... ”, and was signed by Eugenio Concepcion as follows:

MAKER: Eugenio S. Concepcion, Jr., as an individual
s/Eugenio S. Concepcion, Jr.

The 1980 Note also stated: “This Note is given in partial payment for the purchase of the Chatsworth Apartments project, located in St. Joseph, Missouri, which project was purchased from the Payee (Seller) hereunder by a limited partnership, in which Maker is a general partner.” Chatsworth Missouri acquired the apartment complex under the terms stated, and the property was titled in its name. Chatsworth Missouri took possession of the property and operated it as a business.

Although Eugene Jennings and Eugenio Concepcion were the General Partners of Chatsworth Missouri, the partnership agreement provided that Eugenio Concepcion was the Managing General Partner with broad powers. The partnership agreement provided that:

(b) Subject to the other ‘provisions of this Agreement, Concepcion shall be the Managing General Partner. Except as expressly otherwise set forth elsewhere in this Agreement, the Managing General Partner (acting for and on behalf of the General Partners and the Partnership), in extension and not in limitation of the rights and powers given by law or by the other provisions of this Agreement, shall, in his sole discretion, have the full and entire right, power and authority in the management of the Partnership business to do any and all acts and things necessary, proper, convenient or advisable to effectuate the purposes of the Partnership.

Additionally, the partnership agreement specifically provided that the Managing General Partner was vested with the power to borrow money for and in behalf of the partnership. The agreement stated:

In the event that additional funds are required by the Partnership for any purpose relating to the business of the Partnership or for any of its obligations, expenses, costs or expenditures, including operating deficits, the Partnership may borrow such funds as are needed from any Partner or other Person or organization, including the General Partners, for such period of time and on such terms as the Managing General Partner and the lender may agree and at the rate of interest then prevailing for comparable loans ...

Both General Partners had full authority to manage and control the partnership’s business affairs, however. The partnership agreement provided that either the General Partners or the Managing General Partner could delegate some or all of their rights, powers, and obligations.

Robert L. Hughes, Sr. had an ownership interest in Hughes Development Company, the company that managed the property for Chatsworth Missouri, performing the day-to-day business and property management operations of the apartment complex. Although Hughes Development Company managed the property, General Partner Eugene Jennings performed the management acts and functions of Chatsworth Missouri almost exclusively for the period from inception in 1980 through 1997 or 1998. During this period Mr. Jennings caused the various financial reports, HUD reports, and tax returns to be prepared. Eugenio Concepcion knew of and consented to Mr. Jennings performing the management duties of Chatsworth Missouri, and Eugenio Concepcion did not actively participate in the management of Chats-worth Missouri during the period 1980 through 1997 or 1998.

Chatsworth Missouri prepared and distributed annual audited financial statements of its operations. All of these statements identified the $225,000 note as Chatsworth Missouri’s obligation. Each annual statement identified the accrued interest owed on the $225,000 note. Every annual statement was reviewed and signed by Eugene Jennings and Eugenio Concepcion and mailed to the U.S. Department of Housing and Urban Development.

Eugene Jennings, John Kulphongpata-na, Robert L. Hughes, Sr., and Gene Smith purchased the $225,000 1980 Note from Seller for the sum of $142,000 in August 1980. The $225,000 note was not in default when it was sold to them. The 1980 Note defaulted for years 1980, 1981, and 1982, and the owners of the note sued Eugenio Concepcion. Chatsworth Missouri was not named a party defendant, and judgment was taken against Eugenio Concepcion, only, in the amount of the 1980 Note, plus interest and costs.

Eugenio Concepcion declared Chapter 7 Bankruptcy in 1988 and was discharged as a bankrupt. Eugene Jennings filed for bankruptcy on or before March 1, 1995. The partnership agreement makes provision for the event of a General Partner filing for bankruptcy. The agreement states:

Upon the bankruptcy, death, dissolution or adjudication of incompetence of a General Partner, such General Partner shall immediately cease to be a General Partner and his interest shall without further action be converted to a Limited Partnership Interest. Such conversion of a General Partnership Interest to a Limited Partnership Interest shall not affect any rights, obligations or liabilities of the bankrupt, deceased, dissolved or incompetent General Partners existing prior to the bankruptcy, death, dissolution or incompetence of such person as a General Partner (whether or not such rights, obligations or liabilities were known or had matured).

Eugene Jennings, as a General Partner of Chatsworth Missouri, executed a new note on March 1, 1995, naming Chatsworth Missouri as the maker, in the face amount of $451,453 plus interest at 10% per an-num, payable on demand to Eugene Jennings, John Kulphongpatana, Robert Hughes and Gene Smith (1995 Note). The 1995 Note contained a novation clause “discharging and releasing” Eugenio Concepcion from liability on the 1980 Note. The clause stated:

This is a renewal and extension of a certain promissory note dated February 1, 1980 in the original principal amount of Two Hundred Twenty-five Thousand Dollars ($225,000.00) made by Eugenio S. Concepcion, Jr. and payable to Chats-worth Apartments (Seller), a Limited Partnership. This Renewal Note is intended to, and shall constitute a novation of the February 1, 1980 promissory note attached hereto as Exhibit 1, and shall discharge and release the Maker of the February 1, 1980 Promissory Note. (Emphasis added)

The 1995 Note amount was in the sum of the unpaid original principal on the 1980 Note of $225,000, plus the unpaid accrued interest on the 1980 Note to December 31, 1994, of $226,453.00, for the total sum of $451,453.00 plus interest at 10% per an-num. Chatsworth Missouri’s 1994 audited financial statement included the accrued interest as of December 31, 1994. Chats-worth Missouri’s audited financial statements for the period 1995 through 2001 show the 1995 Note as the obligation of Chatsworth Missouri.

Plaintiffs filed suit against Chatsworth Missouri claiming that the limited partnership had defaulted on the 1995 Note. Defendant Chatsworth Missouri filed its Motion for Summary Judgment on Counts II (1995 promissory note) and III (equitable claim) of Plaintiffs’ Amended Petition contending that both the 1980 and the 1995 promissory notes were unenforceable against Chatsworth Missouri because the 1980 Note was executed by Eugenio Concepcion only as an individual and not as General Partner of Chatsworth Missouri, observing that the notation on the 1980 Note above the signature line was “Eugenio S. Concepcion, Jr. as an individual.” The court accepted Chatsworth Missouri’s argument and granted its Motion for Summary Judgment on March 4, 2005, holding that Chatsworth Missouri could not be held hable under the promissory note obligations because Chatsworth Missouri did not sign the 1980 Note and, therefore, because the only consideration for the 1995 Note was the extension and renewal of the 1980 Note, the claim against Chatsworth Missouri failed for lack of consideration. The court later amended its judgment on March 11, 2005, to include denial by summary judgment of Appellant Smith Estate’s cross-claim, recognizing that this claim made the same assertions, as did Plaintiff’s Counts II and III. The parties then dismissed all other pending counts of the action without prejudice, and these appeals followed.

Appellants’ Jennings, Kulphongpatana, Hughes Estate and Smith Estate’s Point on Appeal

The trial court’s judgment asserted two grounds for finding for Chatsworth Apartments. It determined that the par-ol evidence rule precluded introduction of evidence regarding the partnership’s ratification of the 1980 Note post execution and that section 400.3-401, RSMo 1978, barred recovery against Chatsworth Missouri as a non-signatory to the 1980 Note. The court ruled, therefore, the 1995 Note lacked consideration because the terms of the 1980 Note were unenforceable against the partnership.

Appellants, Jennings, Kulphongpatana, Hughes Estate, and Smith Estate (cross-claim), assert that the trial court erred in holding that the parol evidence rule would bar introduction of evidence of Chatsworth Missouri’s subsequent ratification of the 1980 Note and, because of its holding, awarding summary judgment to the limited partnership. They contend that the rule does not bar evidence of transactions subsequent to the time of execution of a written contract when those transactions alter the terms of the prior written agreement. They claim that the evidence submitted in their response to Chatsworth Missouri’s motion for summary judgment was sufficient to demonstrate ratification of the 1980 Note by Chatsworth Missouri, and, therefore, a genuine issue of material fact exists that precludes the partnership’s entitlement to summary judgment. These assertions of disputed fact that Appellants claim demonstrate ratification of the 1980 Note include Chatsworth Missouri’s actions after execution of the 1980 Note, the partnership’s receipt of all the benefits derived from the 1980 promissory note obligation, Chatsworth Missouri’s acknowledgment of the 1980 Note as its obligation for several years and its acknowledgement of the succeeding 1995 Note as its obligation on its annual audited financial statements of operations from 1980 through 2001, and payments made by Chatsworth Missouri toward the obligations represented by the two promissory notes. Although Appellants do not raise as a separate point that the court erred in its application of section 400.3-401, RSMo 1978, they do argue in the single point raised that Chats-worth Missouri’s ratification of the 1980 Note abrogates the provisions of the statute, which provides that one who did not sign a promissory cannot be held to its terms.

Chatsworth Missouri responds in its brief that the parol evidence rule was properly applied by the court and precludes introduction of evidence that it ratified the 1980 Note because such evidence would be offered to alter the clear unambiguous intent of the document. It also claims that section 400.3-401, RSMo 1978, is applicable.

Standard of Review

The standard of review of the trial court’s summary judgment is declared in ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371 (Mo. banc 1993). In ITT, the court stated:

When considering appeals from summary judgments, the Court will review the record in the light most favorable to the party against whom judgment was entered. Facts set forth by affidavit or otherwise in support of a party’s motion are taken as true unless contradicted by the non-moving party’s response to the summary judgment motion. We accord the non-movant the benefit of all reasonable inferences from the record.
Our review is essentially de novo. The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially. The propriety of summary judgment is purely an issue of law. As the trial court’s judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court’s order granting summary judgment, (citations omitted)

Id. at 376. The entire record is examined to determine whether any issue of material fact exists and whether the moving party is entitled to judgment as a matter of law when reviewing a grant of summary judgment. Country Mut. Ins. Co. v. Matney, 25 S.W.3d 651, 654 (Mo.App. W.D.2000). “To succeed on summary judgment, a defendant must show: (1) undisputed facts negating any of plaintiffs’ required elements; (2) the plaintiffs, after adequate time for discovery, cannot produce evidence sufficient to find one of plaintiffs’ required elements; or (3) there is no genuine dispute as to each fact necessary to support a properly-pleaded affirmative defense.” Chouteau Auto Mart, Inc. v. First Bank of Mo., 55 S.W.3d 358, 360 (Mo. banc 2001) (emphasis omitted).

Discussion

The trial court’s rationale in entering summary judgment for Defendant Chats-worth Missouri on Plaintiffs’ Count II and III was that the 1980 Note was the obligation of Eugenio Concepcion individually and not that of Chatsworth Missouri, and the consideration for the 1995 Note was Chatsworth Missouri’s obligation to pay the 1980 Note. Because Chatsworth Missouri was not obligated to pay the 1980 Note by reason of section 400.3-401, RSMo 1978, as it was not a signatory to the Note, the 1995 Note lacked consideration, and, therefore, Chatsworth Missouri is not liable to pay it. The court found that the 1980 Note is not ambiguous and that the terms of the note are understood by the note’s language alone. Applying the rule that parol evidence shall not be considered where a contract is clear and unambiguous, the court determined evidence regarding whether Chatsworth Missouri ratified the 1980 Note was parol evidence and declined to consider it.

In its motion for summary judgment and now on appeal, Chatsworth Missouri asserts that Plaintiffs are barred from raising the issue of the partnership’s ratification of the 1980 Note, claiming that Plaintiffs failed to plead that the partnership ratified the note. In Green v. City of St. Louis, 870 S.W.2d 794 (Mo. banc 1994), the Missouri Supreme Court stated, “A court should not grant summary judgment based upon affirmative defenses that are raised for the first time in the summary judgment motion if the court would not have permitted the defendant to amend the answer to include the defenses.” Id. at 797. Plaintiffs’ claim that Chatsworth Missouri ratified the 1980 Note, while not an affirmative defense, is an assertion Plaintiffs made and, therefore, must be pleaded and ultimately proven as a theory of recovery for them to be successful. A party may amend his pleadings at any time by leave of court, and such leave should be freely given. Asmus v. Capital Region Family Practice, 115 S.W.3d 427, 432 (Mo.App. W.D.2003); Rule 55.33(a). The trial judge has broad discretion to permit amendment of the pleadings at any stage of the proceedings, even after verdict. Id. And although the right to amend is not absolute, leave is to be freely given if justice requires. Green, 870 S.W.2d at 797. The factors the trial court should consider in determining whether to permit amendment of a pleading include: (1) the hardship to the moving party if the request is denied; (2) the reasons for failure to include the matter in a designated pleading; and (3) the injustice or prejudice caused the opposing party if the request is granted. See Id. In Green, the Court was aware that the defendant city failed to follow the procedure articulated in Rule 55.33(a) for amending its answer and asserting an affirmative defense. The city nevertheless contended that its affirmative defenses should be allowed through a motion for summary judgment, for reasons of judicial expediency and cost-effectiveness. This Court agreed with the principle of judicial expediency and cost-effectiveness asserted as general policy by defendant and said that it would not automatically charge a trial court with error in allowing an affirmative defense to be raised for the first time in a motion for summary judgment. It stated that the factors the trial court should consider are those used in determining whether to permit amendment of an answer. Id.

The trial court in the case sub judi-ce, understanding the status of the Plaintiffs’ pleadings, considered the issue as though it were properly raised. The trial court, having considerable discretion to permit amendment of Plaintiffs’ pleadings, effectively permitted their amendment, at least for the summary judgment motion, for the purpose of considering whether evidence of ratification of the 1980 Note by Chatsworth Missouri should be permitted as a question of contested fact. The issue is considered on appeal.

The trial court’s judgment considered and determined the impact of section 400.3-401 RSMo 1978, on Plaintiffs’ claim. The parties do not question that section 400.3 — 401(1), RSMo 1978, was the law when the 1980 Note was signed or that it is the correct applicable statute in this case. The statute stated: “No person is hable on an instrument unless his signature appears thereon.” The court determined, and the fact is not contested, that Chatsworth Missouri did not sign the note. Ergo, the court determined, Chatsworth Missouri is not liable for the terms of the note.

Because the 1980 Note was a negotiable instrument, it was subject to the Uniform Commercial Code as adopted by Missouri. § 400.3-104, RSMo 1978. The statute, existing in 1980 when the note was signed, is controlling. Cartwright v. Wells Fargo Armored Services, 921 S.W.2d 165, 167 (Mo.App. W.D.1996)(unless a statute clearly indicates that it is to be applied retrospectively, Article I, Section 13 of the Missouri Constitution prohibits its retroactive application unless the statute is merely procedural or remedial rather than substantive in effect). Section 400.3-401(1), RSMo 1978, was applicable to the issue considered. Although section 400.3-401(1) denied liability for an entity that did not sign a promissory note, the statute did not affect liability for the underlying transaction quite apart from the instrument securing the obligation. KAM v. White, 675 S.W.2d 459, 461 (Mo.App. S.D.1984). The court in KAM noted that Official Uniform Commercial Code Comment 1 explained the effect of the statute, stating:

Nothing in this section is intended to prevent any liability arising apart from the instrument itself. The party who does not sign may still be liable on the original obligation for which the instrument was given, or ... even on an oral guarantee of payment where the Statute of Frauds is satisfied.

Id. The court further observed, “Missouri cases have recognized that the underlying obligation may provide the basis for a cause of action quite apart from an instrument securing the obligation.” Id. (citing Burk v. Walton, 337 Mo. 781, 86 S.W.2d 92, 94 (1935), and Reifeiss v. Barnes, 192 S.W.2d 427, 430 (Mo.App.1946)).

In the case sub judice, Chatsworth Missouri did not sign the 1980 Note. The 1980 Note was not signed by someone with the intent and authority to obligate Chats-worth Missouri. Because Chatsworth did not sign the 1980 Note, Section 400.3-401, RSMo 1978, in effect when the note was signed, proscribes a court compelling Chatsworth Missouri to pay it. Suit was brought to enforce the terms of the 1995 Note. The suit does not assert a claim against Chatsworth Missouri regarding the underlying purchase agreement for which the 1980 Note, signed by Eugenio Concepcion in his individual capacity, was partial consideration. Both counts II and III of Plaintiffs’ petition sought judgment against Chatsworth Missouri for defaulting on the 1995 Note, for which and in which Chats-worth Missouri’s liability for the 1980 Note was the stated consideration. Chatsworth Missouri had no liability for the 1980 Note when it was signed and by statute acquired none. The 1980 Note was the only consideration for the 1995 Note. The basic elements of an agreement are an offer, acceptance of that offer, and consideration to support the contract. Citibank (South Dakota), N.A. v. Wilson, 160 S.W.3d 810, 813 (Mo.App. W.D.2005). The trial court correctly determined the 1995 Note lacked consideration to make a binding agreement, and, therefore, Chatsworth Missouri was not liable for the 1995 Note.

Ratification

Plaintiffs claim that the court erred in concluding that the only way Chatsworth Missouri could become hable for the terms of the 1980 Note was by signing it, which it did not do. They claim that Chatsworth Missouri is liable despite the provisions of section 400.3-401, RSMo 1978, because it ratified the 1980 Note. They claim that ratification effectively negates the provisions of the statute, and they assert that the court errantly failed to consider extrinsic evidence because the parol evidence rule does not bar evidence that Chats-worth Missouri ratified the 1980 Note and obligated itself to its terms. Plaintiffs acknowledge that the parol evidence rule bars introduction of prior or contemporaneous agreements to alter the terms of the 1980 Note, but they assert that the rule does not bar the introduction of evidence of subsequent transactions for the purpose of altering the terms of the note. Plaintiffs cite George F. Robertson Plastering Co. v. Magidson, 271 S.W.2d 538 (Mo.1954), and Warrenton Campus Shopping Center, Inc. v. Adolphus, 787 S.W.2d 852 (Mo.App. E.D.1990), as support for their position that the law recognizes that by ratifying an agreement for which it was not originally obligated, an entity can become obligated to the agreement’s terms. Thus, they assert that evidence of events subsequent to the signing of the 1980 Note are admissible to prove that Chatsworth Missouri ratified the promissory, note and is obligated to pay it, and, thus, because Chatsworth Missouri’s legal obligation to the terms of the 1980 Note is the consideration for the 1995 Note, Chatsworth Missouri is bound by the terms of the 1995 Note.

Magidson involved an equitable mechanics lien suit in which plaintiff sought a lien for $10,003.20, the amount claimed to be due for lath and plaster work on an apartment building in St. Louis. Defendant, Oakland Realty Company, was the owner of the property, and defendant Ma-gidson was the general contractor. The parties had entered into a contract that included payment for work done by Plaintiff on a construction project of cost plus 10% overhead and 10% profit. The principal issue for determination was whether plaintiff was limited to the contract price or whether it could recover the full amount it claimed for labor and material used, on the cost plus basis. The plaintiff claimed that the contract had been abrogated, and the trial court found that the parties had abandoned the contract. The trial court determined that the plaintiff furnished and installed its materials, both lathing and plastering, and furnished the labor for installation on a quantum meruit basis. Id. at 539. The defendant asserted before the trial court and on appeal before the Supreme Court that the contract controlled and that, because the parties had a contract, the parol evidence rule precluded introduction of extrinsic evidence. The Court in Magidson, determining that the trial court had not erred in permitting extrinsic evidence of events post execution of the written contract, stated:

The parol evidence rule forbids the admission of parol evidence of prior or contemporaneous agreements to alter, vary or contradict a written contract but it does not prohibit parol evidence of an agreement, entered into subsequent to the time when the written contract was executed, to alter or abrogate the written contract. We must, therefore, hold that this evidence was admissible; and that it was substantial evidence that the original written contract was abandoned and the work done under a different agreement than made, (internal citations omitted)

Id. at 541-42.

Adolphus involved a corporation that sued for money due under a written sales contract for the purchase of a shopping center. Some rental payments in the shopping center were based on a percentage of the tenant’s profits and were only computed once a year. The contract contained a provision entitling the appellant corporation to a pro-rata share of these payments. The roof of the property was damaged, however, and the buyer would not have accepted the property in its condition without a compromise to alter the sales contract provision that affected appellant seller’s right to receive a pro-rata share of tenant profit payments. When tenant rents became due several months after the sale, appellant seller demanded the pro-rata share of the tenant profits per the sales agreement, and respondents refused. Appellant sued for recovery. The jury found for respondents, and appellant appealed. Among the holdings of the Eastern District was that the parole evidence rule did not exclude evidence that the seller waived the pro-rata share of rents in exchange for the purchasers’ acceptance of the shopping center with a faulty roof. The court stated:

The parol evidence rule prohibits use of oral evidence to contradict or change the terms of a written, unambiguous and complete contract absent fraud, common mistake, accident or erroneous omission. The rule only prohibits evidence of contrary agreements made prior to or contemporaneously with the contract; it does not prohibit evidence of agreements entered into after the contract was executed. Thus, the parol evidence rule does not apply where a party admits the terms of the contract existed as written, but attempts to show the contract has been abrogated or replaced by a subsequent agreement, (internal citations omitted)

Id. at 855.

The holdings of the courts in Magidson and Adolphus were that evidence of agreements subsequent to the written contract each party entered into was admissible to show that the initial contract had been abrogated or altered by the parties. Thus, the courts in the two cases determined that evidence of a new agreement, entered into subsequent to the time when the original written contract was executed, was not excluded by the parol evidence rule. Ma-gidson, 271 S.W.2d at 541-42.

In Clear v. Missouri Coordinating Board for Higher Education, 23 S.W.3d 896 (Mo.App. E.D.2000), a case that considered whether an agreement can affect a third party if that party ratifies a contract between others, the Eastern District stated:

An individual who was not originally bound by an agreement will become bound if he or she ratifies the agreement. An individual ratifies an agreement if he or she either expressly or by implication confirms or adopts the agreement with knowledge of its contents. The implication may be made even though the individual did not intend to ratify, (citations omitted)

Id. at 901.

Both the Magidson and Adolphus courts considered whether the parol evidence rule applied where actions of the parties subsequent to the original agreement abrogated the original agreement. The parol evidence rule did not apply because the proffered evidence related to post agreement events and not to events that occurred before or at the time of the original agreement.' Clear considered the issue of ratification of an agreement by one not originally obligated by the agreement’s terms. All three cases are distinguishable from the case sub judice for at least two reasons. The holdings in these cases involved contracts that were not promissory notes, and, for that reason, section 400.3-401, RSMo 1978, would not have been applicable. The case now before this court involves a promissory note signed February 1, 1980, by Eugenio Concepcion individually and not acting for or in behalf of Chatsworth Missouri. The 1980 Note was not an agreement entered into between Plaintiffs and Chatsworth Missouri. Plaintiffs later purchased the 1980 Note. Section 400.3-401, RSMo 1978, applied and precluded the claim that Chatsworth Missouri could become liable for the terms of the 1980 Note because it was not a signatory to it. Although the statute precludes successfully suing Chats-worth Missouri to enforce the terms of the 1980 Note, the statute does not preclude suit on the underlying purchase agreement, provided Chatsworth Missouri were liable under the provisions of that agreement. Section 400.3-401 bars Plaintiffs’ theory of recovery against Chatsworth Missouri — that the partnership ratified the 1980 Note.

Plaintiffs acknowledge that no Missouri case that deals with ratification considers Section 400.3-401(1). They cite North Carolina Nat’l Bank v. Wallens, 31 N.C.App. 721, 230 S.E.2d 690 (1976), as the only case that they are aware of that considers the provision of the UCC section, adopted as North Carolina law, “No person is liable on an instrument unless his signature appears thereon.” Id. at 691. In Wallens, the trial court dismissed the plaintiffs pleading that defendants had unconditionally guaranteed and assumed primary liability for any debts of a named partnership, that plaintiff loaned the partnership a named sum, and that the defendants executed a promissory note on behalf of the partnership. The partnership name did not, however, appear on the note. The court concluded that the trial court erred in dismissing the pleading because plaintiff was entitled to recovery, even without the partnership’s signature on the note, if it proved that the signing party was acting on behalf of the partnership in procuring the loan and was authorized to so act, or that the partners, with knowledge of the transaction, thereafter ratified the acts of their partner. Id. at 691. North Carolina is a notice-pleading jurisdiction unlike Missouri, which is a fact pleading state. The court determined that plaintiffs pleading was sufficient as written to provide notice to the defendants that potential liability had to be based on something other than that of a party to the note. The court said, “That a nonsigner is ordinarily not liable on an instrument which he had not signed ‘does not mean that a nonsigner may not be liable under some principle of law. It only means that the liability of the nonsigner is not as a party to the instrument.’” Id. at 692. The court noted that, the statute “does not affect the liability of a nonsigner in connection with an original obligation for which the instrument was later given on other circumstances relating to the same transactions.” Id. Thus, the North Carolina court determined that plaintiffs petition provided sufficient notice to defendants that they were defending against liability for the underlying transaction and not the note, which had not been signed by the defendants as partnership. Nothing in the Wallens case is inconsistent with the ruling in this case.

The statute precludes recovery against Chatsworth Missouri for the 1980 Note, and, therefore, the 1995 Note for the reasons discussed. Chatsworth Missouri, by an authorized agent, did not sign the Note as section 400.3-401 required for it to become hable on the Note. To hold otherwise would conflict with the then expressed intent of the General Assembly.

Therefore, the trial court’s summary judgment is affirmed.

SMART, P.J. and HARDWICK, J. concur.

      . Chart of Ownership Interest in Chatsworth Missouri and Chatsworth Kansas
      Limited Partnerships
      Chatsworth Apartments Project, Ltd. (Missouri), a Missouri limited partnership (Chats-worth Missouri) — formed February 11, 1980. General Partners:
      ° Eugene Jennings, CPA (1/2 of 1% or unit)
      ° Eugenio Conception, MD (husband of Lirio Concepcion)(l/2 of 1% or unit)
      Limited Partner:
      ° Chatsworth Kansas Limited Partnership, Kansas limited partnership (99% interest in Chatsworth Missouri)
      Chatsworth Kansas Ltd., a Kansas limited partnership (Chatsworth Kansas) — formed contemporaneously with Chatsworth Missouri.
      General Partners:
      ° Lirio Conception (wife of Eugenio Concepcion)(l/2 of 1% or unit)
      ° John Kulphongpatana (1/2 of 1% or unit)
      Limited Partners (99% interest in Chats-worth Kansas):
      ° Fourteen physician limited partners
      ° Eugene Jennings
      ° Estate of Robert Hughes


text:
    Thomas A. McLAUGHLIN, Appellant, v. OKLAHOMA SOUTHERN TRANSPORT, INC. and Douglas Lee McSparen, Respondents.
    No. WD 65430.
    Missouri Court of Appeals, Western District.
    March 21, 2006.
    Randolph M. Hammock, Canoga Park, CA, for Appellant.
    Tracy M. Vetter, Kansas City, MO, for Respondent.
    Before: EDWIN H. SMITH, C.J., THOMAS H. NEWTON, and RONALD R. HOLLIGER, JJ.
   ORDER

PER CURIAM.

Mr. Thomas A. McLaughlin appeals the circuit court’s rulings on a motion to amend the petition and a motion in limine to exclude a videotape deposition.

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


text:
    Kenneth RAY, Appellant, v. HP MANAGEMENT INC. d/b/a Nashua General Store, Respondent.
    No. WD 65488.
    ■ Missouri Court of Appeals, Western District.
    March 21, 2006.
    Larry D. Coleman, Raytown, MO, for Appellant.
    Stephanie G. Hazelton, Kansas City, MO, for Respondent.
    Before JAMES M. SMART, P.J., ROBERT G. ULRICH and LISA WHITE HARDWICK, JJ.
   ORDER

PER CURIAM.

Reverend Kenneth Ray appeals the judgment, following trial to the court, finding in favor of H.P. Management, Inc. on Reverend Ray’s claims of unjust enrichment and conversion. In' his sole point on appeal, Reverend Ray claims the trial court misapplied the law and entered judgment against the weight of the evidence with respect to his two claims. Reverend Ray’s point is denied, and the judgment is affirmed. Rule 84.16(b).