author: PAUL M. SPINDEN, Judge.

text:
    CITY OF EXCELSIOR SPRINGS and Land Clearance for Redevelopment Authority of Excelsior Springs, Respondents, v. ELMS REDEVELOPMENT CORPORATION, Elms Inn Partners, Elms Hotel Associates Limited Partnership, The Elms of Excelsior Springs, Inc., Robert L. and Carol S. Bisbee, Elms Timesharing Intervals, Inc., Elms Hotel Operating Company, James A. Ash, Laramie Insurance Company, the Industrial Development Authority of the City of Excelsior Springs, Boatmen’s First National Bank of Kansas City, Anthony G. Sommers, City of Excelsior Springs, John W. McClelland, Richard E. Morrison, CCDC Financial Corporation, Historic Kansas City Foundation, Pat Vagino, Jessica Vagino, Wendall Swenson, Alice Swenson, Paul E. Bell, Richard Buchli, Robert Burns, Roger A. Fisher, Richard Hernandez, D. Bradford Johnson, Billy Joe Kitterman, Kris W. Leiby, M. Chris Scholdberg, The Department of Revenue of the State of Missouri, Collector for the City of Excelsior Springs, and Collector for Clay County, Defendants, and Linda Snider, Albert Teepen, Barbara Teepen, Dennis Murphy, Lea Muprhy, Robert Carver, Donna Carver, Fred Thorp, and Ruth Thorp, Appellants.
    No. WD 54862.
    Missouri Court of Appeals, Western District.
    March 28, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 2, 2000.
    Application for Transfer Denied June 27, 2000.

      Julie J. Gibson, Angela Green, John Waldeck, Kansas City, for appellants.

      Douglas Richmond, David Barnard, Brian Engel, John McClelland, Kansas City, for respondents.
   PAUL M. SPINDEN, Judge.

Nine members of a class of more than 850 persons who bought a right to stay at the Elms Hotel in Excelsior Springs for one to two weeks a year appeal the circuit court’s decision to deny their motion to set aside its judgment in a condemnation action. The appellants contend that the judgment was void because only nine members of their class received individual notice of the proceedings and because those individuals did not represent their interests adequately. We handed down an opinion on October 20, 1998, reversing the circuit court’s judgment, but we granted the motion of Excelsior Springs’ municipal government and its Land Clearance Redevelopment Authority (LCRA) for a rehearing to clarify our holding. We withdrew our opinion of October 20, 1998, and issued a new opinion on February 2, 1999, reported at 984 S.W.2d 887 (Mo.App.1999).

Now, because of an error in our directions to the circuit court on remand, we recall our mandate, on our own motion, and issue this new opinion. We may recall our mandate to correct errors that occurred in appellate proceedings. State v. Edwards, 983 S.W.2d 520, 522 (Mo. banc 1999). The parties in this case have returned to this court in a companion case, see City of Excelsior Springs v. Elms Development Corporation, 18 S.W.3d 61 (Mo.App. 2000), essentially complaining about the circuit court’s decision concerning the directives of our mandate which we issued in this case. Recalling a mandate on our own motion is unusual, but we do so in this case because the case has not reached a final disposition and the error has been called to our attention. In these unusual circumstances, we recall our mandate to correct this error.

The evidence established that the class consists of persons who paid $5000 to $10,-000 for the right to stay at the Elms Hotel for one to two weeks a year for 30 to 50 years, depending on their individual agreements. Elms Timesharing Intervals, Inc., leased a portion of the hotel in 1983 from Elms Hotel Operating Company and began selling the hotel stay plans, called Gold Key Club memberships. Members paid a lump sum for the Gold Key Club memberships. They stayed in rooms leased to Elms Timesharing Intervals, and their getting a room for a particular time depended on Elms Timesharing Intervals’ having a room available. Neither the week of the year nor a particular room was predetermined. The circuit court and the parties referred to these plans as “time-sharing” arrangements. To resolve this dispute, however, we need only determine whether the Gold Key Club members make a colorable argument that their memberships constituted a property interest.

The hotel quit honoring the members’ right to stay at the hotel in 1996 after Excelsior Springs’ municipal government and LCRA, which the city established to rehabilitate the hotel, obtained the circuit court’s condemnation of the hotel. The city and LCRA concluded that the condemnation terminated the Gold Key Club members’ rights.

The city’s and LCRA’s petition seeking condemnation, filed on August 29, 1995, named nine purchasers of Gold Key Club memberships as representatives of a class of all club members. As ordered by the circuit court, the city and LCRA published notice of the condemnation in an Excelsior Springs local daily newspaper three times during September 1995. The notice described the property and hearing schedule, and it identified the nine representatives of the class of Gold Key Club members. Six of the nine class representatives filed answers to the petition. Only one, Richard Buchli, was assisted by a lawyer. Buchli’s son, a lawyer, appeared for Buchli and clarified that he was representing only his father’s interest. All of the other Gold Key Club members’ averments were identical:

[T]his Defendant is specifically not capable of ascertaining whether or not members of the Gold Key Club should be treated as “class” for purposes of this litigation at this time and, without some specific orders of limitation and protection from this Court, is not financially capable of representing the interests of all of those persons who might be included in such “class.”

The city and LCRA asked the circuit court to certify the Gold Key Club members as a defendant class.

The circuit court held a hearing to consider certifying the class. Only three of the six persons who had filed answers appeared at the hearing, and only Buchli had an attorney. The three persons who had not filed answers appeared, pro se, at the hearing. The circuit court certified the class as meeting the requirements of Rule 52.08(b)(1) but still ordered the city and LCRA to notify each class member individually of the proceedings. The city and LCRA did not obey the circuit court’s order; they did not notify any of the absent Gold Key Club members. At the same hearing, the circuit court condemned the Elms Hotel and the other property in what the city and LCRA called the Elms Neighborhood Redevelopment Area. The circuit court appointed commissioners to appraise the property. The commissioners later assessed the net damage for the condemned property at $675,000. No one filed any exceptions to their report.

On July 31, 1996, the circuit court declared that the city and LCRA were beneficiaries of six deeds of trust encumbering the property in the redevelopment area and that they held a lien against the property for unpaid real estate taxes. In its order, the circuit court said:

... The hens of the ... deeds of trust and unpaid taxes are prior and superior to the interests of all other parties named in the condemnation petition. The outstanding principal balance of the obligations secured by the deeds of trust is in excess of $20 mihion.
... On March 19, 1996, the Commissioners Award pursuant to Section 523.040 RSMo. was duly entered and filed in this cause in the amount of $675,000.00. No exceptions were filed, and the award is now final.
... Since the rights and interest of the City and LCRA in the condemned property are prior and superior to the rights of ah other parties named in the condemnation petition and exceed the total amount of the final award, the City and LCRA should be allowed to credit the amount of the award against the amounts due the City and LCRA under the deeds of trust and liens[.]
... The Courts [sic] finds that no persons or corporations other than the defendants named in the condemnation petition have any interest in the award.

The Gold Key Club members who were not involved in the proceedings apparently did not learn of the condemnation and its effect on their rights until a few months later when Doug Morrision, Elms Resort Hotel’s general manager, sent a letter to them. The letter said:

The City of Excelsior Springs, Missouri and the Land Clearance for Redevelopment Authority of the City of Excelsior Springs, Missouri (“LCRA”) recently completed condemnation of The Elms Hotel and related properties. The interests of Elms Timesharing Intervals, Inc. and the members of The Gold Key Club at the Elms Hotel were terminated in the condemnation action.
The LCRA has assumed operation of the hotel, and intends to transfer ownership to a new developer who will commence a complete renovation. It is presently anticipated that the developer will close the hotel for renovation on or about November 1, 1996. The LCRA cannot accept new reservations for use of units at the hotel either from the Gold Key Club members or through any exchange program with Interval International. To minimize the inconvenience to those who have already made reservations, the LCRA will honor any existing reservations for use of rooms through October 31,1996. Unfortunately, reservations for use of rooms after that date cannot be honored.

On July 31, 1997, 11 Gold Key Club members asked the circuit court to set aside its judgment pursuant to Rule 74.06(b) on the ground that the circuit court’s actions in establishing the class were void or irregular. The circuit court held a hearing on the motion on August 26, 1997, and denied it. In announcing its decision, the circuit court said:

... I see this sort of broken down into two parts even though there are a number of different areas raised by the mov-ants and the responsive pleadings.
The first part which I do find frustrating is that I agree ... with the movants. There was not an attorney representing the class and this [Richard] Buchli[,] or whoever he was[,] was only here on behalf of one party, and there was a lot of confusion about the notice. Perhaps I should have been a lot more definite at the time and been specific about, “you shall mail out written notice to each one of the known timeshare owners and in addition to that publish for the unknown ones.” Frankly, in my mind I thought that’s what was going on. Obviously it’s not what was going on. So over on this one side I find ... what should have happened is that we should have gotten notice out better and we should have probably had an attorney maybe even handling that notice and representing the class....
However, there is another half to this[,] and that’s why I asked them in the first place where do you really want to go with this....
I remember even having testimony and even some rather heated testimony about what this timeshare was. I believe we had testimony that it was air[, as opposed to a specific square footage]. Somebody testified ... that, “I sold air to people; that was what I did.” ...
... But then I started researching the law and listening to arguments and determined basically that that’s sort of what a timeshare really is and that it is a right but not a right as a literal property right.
... I determined that I know why the timeshare people are not spending their time hiring lawyers and coming in here and fighting this because they’re fighting for something they can’t get anything of. They’re fighting for air....

Nine of the movants appealed the circuit court’s denial of their Rule 74.06(b) motion and the judgment condemning the property. The city and LCRA asked us to dismiss the parts of the appeal challenging anything but the circuit court’s denial of the Rule 74.06(b) motion on the ground that the time for appeal had expired and this court lacked jurisdiction. We granted the motion.

The appellants contend that the circuit court erred in refusing to grant their motion to set aside the judgment because they did not have actual notice of the proceedings and were not represented adequately by the class representatives. This, they contend, violated their due process rights guaranteed by Missouri’s and the United States’ constitutions.

Missouri’s constitution guarantees “[tjhat no person shall be deprived of ... property without due process of law” and mandates “[tjhat private property ... not be taken or damaged for public use without just compensation.” The United States’ constitution prohibits a state from depriving “any person of ... property ... without due process of Law,” and prohibits the government from taking private property for public use “without just compensation.” The Fourteenth Amendment to the United States Constitution makes the Fifth Amendment’s “taking” clause applicable to Missouri. Penn Central Transportation Company v. City New York, 438 U.S. 104, 122, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978), and Chicago, Burlington and Quincy Railroad Company v. City of Chicago, 166 U.S. 226, 239, 17 S.Ct. 581, 41 L.Ed. 979 (1897).

The Gold Key Club members were not, by statutory definition, necessary parties to the condemnation action. Section 523.010.3, RSMo 1994, made applicable to this action by § 99.460.1, RSMo 1994, says, “It shall not be necessary to make any persons party defendants in respect to their ownership unless they are either in actual possession of the premises to be affected claiming title or having a title of the premises appearing of record upon the proper records of the county.” The city and LCRA, however, named representatives of the Gold Key Club members as representatives of a class of all club members, apparently because they sought to foreclose any claim the club members had to use the property.

If a party holds a compensable interest in property, two distinct constitutional rights arise; the right to notice and to participate in the condemnation proceeding consistent with due process, and the right to compensation for the value of any property interest taken. Bi-State Development Agency of the Missouri-Illinois Metropolitan District v. Nikodem, 859 S.W.2d 775, 779 (Mo.App.1993). See also Millhouse v. Drainage District No. 4-8 of Dunklin County, 304 S.W.2d 54, 57 (Mo.App.1957).

Although the Gold Key Club members may not have had an interest in specific square footage at the Elms Hotel, they had an interest in the property nonetheless, and the city’s and LCRA’s condemnation action threatened that interest. Property is not merely real property. It encompasses “everything which is the subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal — jeverything that has an exchangeable value or which goes to make up wealth or estate.” Black’s Law DICTIONARY 1216 (6 th ed.1990). “It extends to every species of valuable right and interest, and includes real and personal property, easements, franchises, and incorporeal hereditaments, and includes every invasion of one’s property, rights by actionable wrong.” Id. In Hoffmann v. Kinealy, 389 S.W.2d 745, 752-53 (Mo. banc 1965) (footnotes and citations omitted), the Supreme Court said:

Property is defined as including not only ownership and possession but also the right of use and enjoyment for lawful purposes. In fact, “[t]he substantial value of property lies in its use.” It follows that: “[t]he constitutional guaranty of protection for all private property extends equally to the enjoyment and the possession of lands. An arbitrary interference by the government, or by its authority, with the reasonable enjoyment of private lands is a taking of private property without due process of law, which is inhibited by the Constitution.”

Indeed, the General Assembly, in § 99.320(16) governing LCRA actions, defined “real property” as “property of any nature appurtenant thereto, or used in connection therewith, and every estate, interest and right, legal or equitable, there-⅛[.]”

Because the city’s and LCRA’s action threatened the members’ property interest, due process required that all of the members receive either adequate representation or actual notice of the condemnation action. The absent members received neither.

The only notice which all but the nine named Gold Key Club members received was the notice published in the newspaper. The circuit court declared that the nine named individuals could represent the interests of all of the other club members, but it ordered the city and LCRA to give actual notice to the absent members. Whether the circuit court’s additional step of ordering actual notice to all of the Gold Key Club members was necessary depended on the ability of the nine to represent the interests of the absent club members.

In a class action, notice is a function of adequate representation: Notice’s function is to ensure effective representation. If a class is cohesive in its interest, minimal notice is required. State ex inf. Ashcroft v. Kansas City Firefighters Local No. Jp2, 672 S.W.2d 99, 120-21 (Mo.App.1984). This is because special defenses or interests are much less likely to crop up in a class having cohesive interests, and this diminishes concern that each member of a class has an opportunity to be present. Id. at 121.

The Gold Key Club members were a cohesive class. Their interests appeared to be uniform as manifested in the identical averments of the six individuals who responded to the city’s and LCRA’s petition. Assuming that these persons were able to represent the class’ interests, the circuit court had little cause for concern that notice was effectuated by publication in a local newspaper. The circuit court, however, was obligated to consider the representatives’ ability to represent the class. Rule 52.08(d) says:

In the conduct of actions to which this Rule applies, the court may make appropriate orders:
(2) requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action[.]

Although Rule 52.08(d) makes notice a discretionary — rather than a mandatory — issue, several commentators have noted that defendant class actions such as this one present special due process concerns and require the court to be more diligent in assuring that the class is adequately and fairly represented. Addressing the special issue of defendant classes in Fed.R.Civ.P.23, the federal counterpart to Rule 52.08, Professor Charles Wright said:

[T]he test for adequate representation of a defendant class is similar to that employed to determine whether a plaintiff will fairly protect the interests of the class members[.] The defendant class member or members named and served by plaintiff must be represented by qualified counsel and they must have common interests with and not be antagonistic towards their fellow class members .... [S]ome courts have noted that closer scrutiny is necessary in determining the adequacy of the representation of a defendant class because of the risk that plaintiff [in selecting the named representatives] will seek out weak adversaries to represent the class. Of course, if there is any evidence that the defendant representative is not able to or will not vigorously defend the action, then the class should not be certified.

7A CHARLES A. WRIGHT, ARTHUR MlLLER and MaRy Kane, FedeRAl Practice and Procedure § 1770 (2d ed.1986). Unwilling class representatives create serious due process concerns. 1 HERBERT B. Newberg and Alba Conte, Newberg on Class Actions § 4.47 (1992).

That the circuit court was concerned that the representatives were unable to represent the class perhaps explains why it ordered actual notice. The representatives demonstrated virtually no inclination to represent anyone’s interest, even their own. The representatives were not willing representatives of the class. The actual notice, however, never occurred, and the circuit court did not appoint an attorney to serve the class.

Moreover, the circuit court may have caused the class representatives to believe that they were not obligated to take any affirmative steps to protect their interests. The circuit court told them:

I’m going to just state my understanding also and that is that those individuals that are in the courtroom as well as the three individuals who are not here, basically they’re not going to have to do anything unless you so desire. Notices to all 800 plus individuals will come from the [e]ity at the [c]ity’s expense. The organization and meetings with the commissioners if the condemnation does proceed down the line will be at the [c]ity’s expense. The fees to be paid to the commissioners will be at the [c]ity’s expense and any other paperwork, court costs, or filings will all be at the [c]ity’s expense. All that the nine individuals will be given a right to or asked to do is if you want to talk to the commissioners in the condemnation and assist them in determining values and be in court if you so desire. After today, there aren’t going to be any more court hearings unless there is a knock-down drag-out on some of the valuations. I don’t anticipate that you’re going to have to do much of anything. It’s going to be all up to the [c]ity and I’ll put it on their backs at their total expense.

The record suggests that these assurances lulled the named Gold Key Club members into believing that their interests were not adverse to the city’s and LCRA’s interests.

Adequacy of representation was clearly lacking. This and the representatives’ unwillingness to serve cause us to conclude that the absent Gold Key Club members were deprived of due process. The circuit court’s failure to assure that the Gold Key Club members’ interests were represented adequately further contributed to the violation of the guarantees of due process. Violating litigants’ due process rights results in a void judgment. Cook v. Polineni, 967 S.W.2d 687, 690 n. 6 (Mo.App.1998).

The circuit court erred, therefore, in not granting the Gold Key Club members’ motion to set aside the judgment. Because the Gold Key Club members were denied the opportunity to be heard, the issue of whether the Gold Key Club memberships were compensable was never adequately litigated in the condemnation proceeding. Both sides point to provisions in the underlying lease agreements and Gold Key Club membership agreements in arguing over the issue of whether the Gold Key Club members had a compensable interest. Given the inadequacy of the Gold Key Club members’ representation, we decline to decide the issue. It is an issue which will have to be resolved in future litigation.

We, therefore, remand the case to the circuit court to set aside the final judgment of condemnation and to reconsider its decision in light of the Gold Key Club members’ interests. It shall conduct such further proceedings as it deems necessary.

VICTOR C. HOWARD, Presiding Judge, and PATRICIA BRECKENRIDGE, Judge, concur.

      . The circuit court did not resolve the issue of what, exactly, the Gold Key Club members’ interest was. It does seem to satisfy the General Assembly’s definition of a "time-share plan" in § 407.600(11), RSMo 1994: ”[A]ny arrangement, plan, scheme or similar device, other than an exchange program, whether by membership, agreement, tenancy in common, sale, lease, deed, rental agreement, license, right-to-use agreement or any other means, whereby a purchaser, in exchange for a consideration, receives one or more time-share periods, or any type of interval or joint ownership in, or a right-to-use, any accommodation or facility for a period of time which is less than a full continuous and uninterrupted year during any given year, and which extends for a period of more than three years, as to each individual time-share development subject to the purchase!.]”

      .They were Paul E. Bell, Richard Buchli, Robert Burns, Roger A. Fisher, Richard Hernandez, D. Bradford Johnson, Billy Joe Kit-terman, Kris W. Leiby, and M. Chris Schold-berg. A city official obtained the names by culling through Elms Timeshare Intervals’ records.

      . They were Buchli, Fisher, Kitterman, Bell, Johnson, and Bums.

      . They were Bell, Buchli, and Burns.

      . They were Hernandez, Leiby, and Schold-berg.

      . They were Linda Snider, Robert Carver, Donna Carver, Dennis Murphy, Lea Murphy, Fred Thorp, Ruth Thorp, Albert Teepen, Barbara Teepen, Ronald Tavernaaro, and Barbara Tavernaaro.

      . They were Linda Snider, Albert Teepen, Barbara Teepen, Dennis Murphy, Lea Murphy, Robert Carver, Donna Carver, Fred Thorp, and Ruth Thorp.

      . Art. I, § 10.

      . Art. I, § 26.

      . Amend. XIV.

      .Amend. V.

      . The city and LCRA make much of Richard Buchli’s participation as a lawyer representing his father and assert that he was the class’s de facto attorney. We disagree. Buchli made clear that he appeared only to represent his father’s interest, and the circuit court did not deem him to be acting for the class. Buchli took no action on the class’s behalf. His remarks on the record suggested that he was unaware that the city and LCRA sought to terminate his father’s rights under the Gold Key Club membership: "I ... think that the potential class members have an interest in this matter which is concurrent with that of the [c]ity and that by helping the class members through this, the [c]ity will also be helped because they will get all the advantage of advertising through these Interval International timeshare exchange groups and all these people that come and talk about the Elms and what a nice place it is to go to.”

      . In our February 2, 1999, opinion, we erroneously ordered the circuit court “to dismiss that part of the petition which sought to bind the Gold Key Club members in the condemnation action.” The purpose of a condemnation proceeding is " 'to ascertain and acquire title to the land sought for [public] purposes and to foreclose all outstanding claims and interests that are, or may be, asserted thereto by others.’ " City of Columbia v. Baurichter, 713 S.W.2d 263, 266 (Mo. banc 1986) (quoting City of St. Louis v. Barthel, 256 Mo. 255, 166 S.W. 267, 272 (1914)) (emphasis added). Our ordering the circuit court to dismiss the Gold Key Club members from the condemnation proceedings without giving the circuit court the opportunity to determine whether the Gold Key Club members had a compensable interest was wrong. If the Gold Key Club members have a compensable interest, their interest needs to be litigated in the condemnation proceeding.


source: Caselaw Access Project

author: EDWIN H. SMITH, Presiding Judge.

license: Public Domain

text:
    CITY OF EXCELSIOR SPRINGS, Missouri, et al., Appellants, v. ELMS REDEVELOPMENT CORPORATION, et al., Respondents.
    No. WD 57204.
    Missouri Court of Appeals, Western District.
    March 28, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 2, 2000.
    Application for Transfer Denied June 27, 2000.

      Douglas R. Richmond, Michael L. Matu-la, Kansas City, for appellants.
    Angela Green, Julie J. Gibson, Kansas City, for respondents.
    Before: EDWIN H. SMITH, P.J., and HOWARD and HOLLIGER, JJ.
   EDWIN H. SMITH, Presiding Judge.

The City of Excelsior Springs, Missouri, and Land Clearance for Redevelopment Authority of Excelsior Springs, Missouri, appeal the dismissal with prejudice of their condemnation action against the respondents, with respect to the interest they claim in the Elms Resort Hotel (the Elms). The respondents are the certified defendant class, the Timeshare Holders (the class), consisting of the over 800 Gold Key Club members who had purchased, prior to condemnation, the right to stay at the Elms for one to two weeks each year, and the named class representatives.

In their sole point on appeal, the appellants claim that the trial court erred in dismissing with prejudice, on remand, in City of Excelsior Springs v. Elms Redevelopment Corp., 984 S.W.2d 887 (Mo.App.1999) (Elms I), their condemnation action against the respondents, because it exceeded the authority of this court’s mandate therein.

We dismiss for lack of jurisdiction.

Facts

On August 29, 1995, the appellants filed a petition in the Circuit Court of Clay County to condemn the Elms, along with other property located in the area referred to as the Elms Neighborhood Redevelopment Area. The petition named as defendants all the parties who may have had a compensable interest in the subject property, including nine members of the Gold Key Club as representatives of a class consisting of all the club members. On October 17, 1995, the appellants moved to certify the club members as a defendant class, which motion was sustained. Nonetheless, the circuit court ordered that each class member be notified individually, which the appellants failed to do. Six of the nine class representatives filed answers to the appellants’ petition, but only one was assisted by an attorney.

At the same hearing in which the class was certified, the property was condemned and commissioners appointed to appraise it. The commissioners subsequently assessed the condemned property at $675,-000. On July 31, 1996, the circuit court found that the appellants were the only parties with any interest in the award, with judgment being entered accordingly.

The club members who were not involved in the proceedings apparently did not learn of the condemnation and its effect on their rights until a few months later when they were sent a letter by the Elms’s general manager, advising them that their reservations would not be honored after October 31, 1996. This then prompted eleven of the club members to ask the circuit court to set aside its judgment of condemnation as to them, pursuant to Rule 74.06(b), on the ground that the court’s actions in establishing the class were void and irregular, which motion was denied on August 26,1997.

The club members appealed, with their appeal being dismissed as being untimely except with respect to the issue of whether the trial court erred in overruling their Rule 74.06(b) motion. On appeal, the club members claimed that the trial court erred “in refusing to grant their motion to set aside the judgment because they did not have actual notice of the proceedings and were not represented adequately by the class representatives,” which violated their due process rights. Elms I, 984 S.W.2d at 891. In Elms I, this court reversed the judgment of the trial court with respect to the class for a lack of jurisdiction, finding that the condemnation action threatened a property interest of the club members in the subject property and as such, they were entitled to either adequate representation or actual notice of the condemnation action and received neither. Id. at 892. On remand, the trial court was directed not only to “set aside the final judgment of condemnation as it applie[d] to the Gold Key Club members,” but “to dismiss that part of the petition which sought to bind the Gold Key Club members in the condemnation action.” Id. at 894.

On remand, the trial court, after having read Elms I, held a hearing on March 18, 1999, to discuss with the parties what it was mandated to do on remand. The appellants, believing that they could cure the irregularities of the first proceeding, filed a motion for leave to amend their petition for condemnation by naming as class representatives the club members who had filed the appeal in Elms I. After hearing the parties’ arguments, the trial court, although agreeing with the appellants, determined that the express language of this court’s mandate in Elms I required it to dismiss the appellants’ petition with respect to the club members. Accordingly, it overruled the appellants’ motion for leave to amend their petition and ordered the appellants’ petition dismissed with prejudice as to the respondents.

This appeal follows.

I.

In their sole point on appeal, the appellants claim that the trial court erred in dismissing, on remand in Elms I, their condemnation action against the respondents, because in doing so it exceeded its authority as granted to it by this court’s mandate in that case. In essence, what the appellants are contending is that the trial court lacked the jurisdiction to dismiss their petition as to the respondents and, as such, its action was void. Although we agree with the appellants that the trial court lacked the jurisdiction to do what it did, we do so on other grounds.

In Elms I, the class members appealed to this court the judgment of the trial court finding that they did not have an interest in the award with respect to the condemnation of the Elms. Specifically, they claimed that the court erred in deny-mg their motion to set aside the judgment against them because it lacked jurisdiction to enter it in that they were not afforded due process for a lack of notice and adequate representation. Elms I, 984 S.W.2d at 888, 891. This court agreed, and reversed and remanded with directions, stating in its mandate:

Now on this [25 th day of February, 1999,] the judgment is reversed, and the cause is remanded to the Circuit Court of Clay County for further proceedings in conformity with the Opinion of this Court.

Thus, pursuant to this language of our mandate, the trial court, in determining what it was to do on remand, was bound by the directives found in the opinion of the Elms I court. Sumnicht by Sumnicht v. Sackman, 968 S.W.2d 171, 174-75 (Mo.App.1998). In this respect, the opinion stated:

Having determined that the circuit court had no jurisdiction because of lack of due process to bind the Gold Key Club members to the final judgment of condemnation, we remand the case to the circuit court to set aside the final judgment of condemnation as it applies to the Gold Key Club members and to dismiss that part of the petition which sought to bind the Gold Key Club members in the condemnation action. Should the Gold Key Club members decide to pursue their interests, they are free to do so.

Elms I, 984 S.W.2d at 894 (emphasis added) (citation omitted). As to this portion of the court’s opinion, the trial court stated for the record, during the March 18, 1999, hearing to determine the requirements of the court’s mandate:

I’m going to talk strictly about the conclusion [of Elms /]. I agree with counsel for the City and the hotel and Millennium that the appropriate way that this matter should be coming down is setting aside part of the judgment, reopening that part of the judgment regarding the rights of the Gold Key Club members and making sure that they are properly notified, that they have proper representation, and that they have a full hearing in this court and before the commissioners and a full right to establish their financial interest, a determination on that interest and then a subsequent full right to challenge that in a lawsuit before a jury if requested.
I think that’s the way it should happen. Even reading the opinion up until the last paragraph, I think that’s the way it should happen.
But I’ll be perfectly honest. I don’t have any choice. ' The Court of Appeals has written in black and white what I have to do and although I totally disagree with it and four lawyers sitting in this courtroom disagree with it, it says what it says, and I have to do what it says here.

From this, it is clear that the trial court interpreted our mandate in Elms I as requiring it to dismiss on remand the appellants’ petition against the respondents. Given the express directive, “to dismiss that part of the petition which sought to bind the Gold Key Club members in the condemnation action,” we obviously cannot quibble with the trial court’s interpretation of our mandate. However, for the reasons discussed, infra, this does not end our inquiry.

“It is well settled that a trial court, on remand, with respect to the issues addressed by the appellate court on appeal, only has that authority granted to it by the appellate court in its mandate.” Sumnicht, 968 S.W.2d at 174 (citation omitted). “Under Missouri law, where an appellate court remands a cause with direction, the trial court is bound to render judgment in conformity with that mandate. The mandate must be followed without deviation by the trial court.” Bennett v. Huwar, 797 S.W.2d 512, 513 (Mo.App.1990) (citations omitted). Recognizing this fact and given the clear directive in Elms I, cited, supra, the trial court, on remand, despite its well-taken misgivings, dismissed with prejudice the appellants’ petition as to the respondents. However, given the fact that, while this appeal was pending, the mandate in question was recalled and a new opinion issued in Elms I on March 28, 2000, City of Excelsior Springs v. Elms Redevelopment Corp., 18 S.W.Bd 53 (Mo.App. 2000), the mandate on which the trial court relied in dismissing the appellants’ petition against the respondents is void, ab initio. Hence, in determining whether the trial court exceeded its authority on remand by dismissing the appellants’ petition against the respondents, we are required to look at the existing and controlling mandate and opinion of this court.

In the most recent and controlling opinion of this court in Elms I, we direct the trial court on remand “to set aside the final judgment of condemnation and to reconsider its decision in light of the Gold Key Club members’ interests. It shall conduct such further proceedings as it deems necessary.” Elms I, at 61 (footnote omitted). In an accompanying footnote, the court referred to its language in the recalled opinion, stating:

The purpose of a condemnation proceeding is “ ‘to ascertain and acquire title to the land sought for [public] purposes and to foreclose all outstanding claims and interests that are, or may be, asserted thereto by others.’ City of Columbia v. Baurichter, 713 S.W.2d 263, 266 (Mo. banc 1986) (quoting City of St. Louis v. Barthel, 256 Mo. 255, 166 S.W. 267, 272 (1914)) (emphasis added). Our ordering the circuit court to dismiss the Gold Key Club members from the condemnation proceedings without giving the circuit court the opportunity to determine whether the Gold Key Club members had a compensable interest was wrong. If the Gold Key Club members have a compensable interest, their interest needs to be litigated in the condemnation proceeding.

Not only has the “dismissal” language from our prior mandate been deleted, but we now specifically direct the trial court to conduct further proceedings to determine what interest, if any, the class members had in the condemned property. As such, under the present and controlling mandate, not only is the trial court not directed on remand to dismiss the appellants’ petition as to the respondents, but is expressly directed to determine their interest in the property. Hence, in dismissing with prejudice the appellants’ petition against the respondents, the trial court has exceeded the authority granted to it by the present and controlling mandate and opinion of this court in Elms I, rendering, after the fact, its dismissal void. Sumnicht, 968 S.W.2d at 174; Bennett, 797 S.W.2d at 513. Because the action of the trial court in dismissing the appellants’ petition against the respondents is void, we lack jurisdiction to address the merits of this appeal and must dismiss, Bellon Wrecking & Salvage Co. v. David Orf, Inc., 983 S.W.2d 541, 549 (Mo.App.1998); Burch Food Servs., Inc. v. Missouri Div. of Employment Sec., 945 S.W.2d 478, 481 (Mo.App.1997), leaving the trial court to follow our new mandate in Elms I, as it is obligated to do.

Conclusion

The appeal of the circuit court’s dismissal of the appellants’ petition in condemnation against the respondents is dismissed for lack of jurisdiction.

HOWARD and HOLLIGER, JJ., concur.

      . All rule references are to the Missouri Rules of Civil Procedure (1997), unless otherwise indicated.


author: HAROLD L. LOWENSTEIN, Judge.

text:
    STATE of Missouri, Respondent, v. Kimber L. DANIELS, Appellant.
    No. WD 56933.
    Missouri Court of Appeals, Western District.
    March 28, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 2, 2000.
    Application for Transfer Denied June 27, 2000.

      Tara L. Jensen, Asst. Public Defender, for Appellant, Kansas City, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Adriane D. Crouse, Asst. Atty. Gen., Jefferson City, for respondent.
    Before: Presiding Judge HAROLD LOWENSTEIN, Judge JAMES SMART and Judge THOMAS NEWTON.
   HAROLD L. LOWENSTEIN, Judge.

Appellant, Kimber Daniels, was convicted after a bench trial of one count of the felony of armed criminal action (§ 571.015). Appellant had previously plead guilty to a charge of the class B felony of Attempted Robbery in the First Degree (§ 564.011). Appellant was sentenced to three years for the armed criminal action conviction, to run concurrently with an eight-year sentence for the guilty plea of attempted robbery.

Appellant’s convictions arose out of the following incident. While high on crack cocaine, appellant made a brief and unsuccessful attempt to rob a video store in Kansas City on the morning of July 19, 1998. The attempted robbery began when appellant approached a store employee who was working at the counter, came around the counter and demanded money. When ignored, she again demanded money and threatened she had a gun. Appellant repeated that she had a gun, and motioned as though she had it concealed in the small purse she was carrying. In actuality, however, the appellant did not have a gun.

After these threats, the store employee physically confronted the appellant and the two scuffled as the employee pushed her around the counter and towards the front door of the store. During this scuffle, the employee suffered an injury on his wrist consisting of a one-inch deep cut that was three to four inches long. The employee bled extensively from the wrist and was subsequently taken to the emergency room where he received ten stitches from the wound, which left a permanent scar. Also during the scuffle, two of the appellant’s long, polished fingernails were ripped off.

No witness was able to identify how the store employee’s wrist was cut, nor did anyone see any kind of weapon at all on the appellant. The only testimony relating to the store employee’s injury was his own, stating that

“... he vaguely caught a glimpse of silver, real small, something” at one point in the appellant’s hand. He also testified that he could not say for sure that it wasn’t a ring on the appellant’s hand.

After being pushed towards the front door, the appellant attempted to reenter the store. Realizing that she did not have a gun, the store employee threatened to get his gun if she would not leave. After this threat, the appellant fled the store.

Appellant was arrested approximately one hour later. The arresting officer did not find a weapon on the appellant, but did recover her purse from her, which contained nothing that could be construed as a weapon. No object was ever discovered that could have caused the injury to the store employee’s wrist.

At trial, the appellant denied using a knife or a dangerous instrument during the attempted robbery. The appellant was convicted of armed criminal action based on the court’s belief that the attempted robbery “was committed with the assistance and aid of a dangerous instrument.”

STANDARD OF REVIEW

Review of a court-tried criminal case is the same as for a jury-tried criminal case. State v. Owen, 990 S.W.2d 158, 159 (Mo.App.1999). The appellate court accepts the state’s evidence as true and gives the state the benefit of all reasonable inferences, disregarding all evidence to the contrary. Id.; State v. Brewer, 861 S.W.2d 765, 766 (Mo.App.1993). Witness credibility is a matter for the trial court, and is not within the province of the appellate court in a court-tried criminal case. Brewer, 861 S.W.2d at 766. Review is limited to determining if the State introduced evidence sufficient to allow a reasonable fact-finder to find each element of the offense charged beyond a reasonable doubt. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993).

POINT RELIED ON

Appellant claims the trial court erred in overruling her Motion for Judgment of Acquittal at the Close of All Evidence. Appellant argues that the state’s evidence was insufficient to support the court’s finding of guilt beyond a reasonable doubt because the state did not establish that appellant committed a felony through the use, aid or assistance of a dangerous instrument or deadly weapon as required by § 571.015.

Section 571.015.1 governs the crime of armed criminal action and states in part that for a conviction under this statute, a person must have committed a felony “through the use, assistance, or aid of a dangerous instrument or deadly weapon.” The term “dangerous instrument” (which the court based appellant’s conviction on rather than a deadly weapon) is defined in § 556.061(9) as “any instrument, article or substance, which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury.” “Serious physical injury” is defined as “physical injury that creates a substantial risk of death or that caused serious disfigurement or protracted loss or impairment of the function of any part of the body,” pursuant to § 556.061(28).

The general question on appeal before this court is whether the evidence was sufficient to allow a reasonable trier of fact to conclude that in the appellant’s commission of attempting to rob the video store she employed the use, assistance or aid of an instrument, article, or substance capable of causing death or serious disfigurement. Appellant argues that this appeal comes down to three questions:

1) Did appellant have an “instrument” at the crime scene that caused the cut on the store employee’s wrist?
2) If so, does this instrument fit the statutory definition of a “dangerous” instrument?
3) If so, did appellant use the instrument in her commission of attempting to rob the video store?

Ordinary objects can be considered “dangerous instruments” depending on the circumstances under which they are used. See State v. Jackson, 865 S.W.2d 678, 680 (Mo.App.1993). Caselaw has also held that a small knife (four-inch blade), State v. Schuler, 838 S.W.2d 19, 20-21 (Mo.App.1992), or even a “butter knife” (as described by defendant) can be a dangerous instrument if used under certain circumstances. State v. Tankins, 865 S.W.2d 848, 851-52 (Mo.App.1993). “In the absence of proof of its [a knife’s] length, its dangerous qualities must be inferred by its effective cutting features in the hand of the defendant.” People v. Kersey, 154 Cal.App.2d 364, 316 P.2d 52, 53 (1957).

Thus, it is clear to this court that an object, even if never identified, that did indeed make a one inch deep wound is certainly considered a “dangerous instrument” as defined in § 556.061(9).

The case of State v. Kee, 956 S.W.2d 298 (Mo.App.1997), although involving more severe injuries to the victim than the case at hand, addressed the issue of whether there was sufficient evidence for an armed criminal action conviction. In both Kee and in the case at bar, there was no evidence adduced that a dangerous weapon was used in the commission of the crime. In Kee, the appellant assaulted his estranged wife and argued that because no eyewitnesses saw the weapon and because the victim did not know what was used to stab her, that the state did not establish the use of a dangerous weapon beyond a reasonable doubt.

However, the trial court found that because the victim in Kee was admitted to the trauma center, and the emergency room physician testified there were short lacerations consistent with a short stabbing instrument, a legitimate inference could be made that the victim was stabbed with a sharp, knife-like object.

In comparison to the facts in the case at bar, the store employee was taken to the emergency room after the struggle with the appellant, and received ten stitches. Further, there was testimony from bystanders that blood was gushing down his shorts and all over the floor. The size and length of the wound also lead to the legitimate inference that the victim was cut by a “dangerous instrument” in the appellant’s control.

State v. Jones, 679 S.W.2d 927 (Mo.App.1984), is another case containing facts relevant to the case at bar. In Jones, the victim was abducted while jogging and forced to the ground while threatened by a sharp object pressed against her back. Her hands were then tied and her mouth was duct taped. As the defendant tried to force the victim into his car, she tried to escape and was drug along the ground next to the moving car until the defendant lost grip of her shirt.

Although the victim never saw a dangerous instrument, she testified to feeling something sharp against her back when her assailant threatened her and forced her to the ground. A knife was later found, and the defendant was charged with armed criminal action, amongst other charges.

Concerning the armed criminal action charge, the court held; “No prohibition is extent to preclude the State from proving the offense of armed criminal action by circumstantial evidence.” Id. at 929. The court went on to say that the identity of the weapon was “known but to the defendant.” Id. “Nothing in the statute requires the object [dangerous instrument] to be produced.” Id. The court concluded “[t]he circumstances proved are consistent with each other and defendant’s guilt and are inconsistent with any reasonable theory of his innocence. Sufficient evidence exists to prove all elements of the offense of armed criminal action.” Id. at 930.

Appellant’s last attempt to reverse her conviction for armed criminal action argues that even if this court affirms that she did indeed have an instrument and it was a “dangerous instrument,” that she did not use it in her actual attempt to rob the video store, but rather she used the threat of a gun for that purpose. This court finds this argument completely without merit. The appellant’s purpose of being on the premises was to rob the video store. The struggle that ensued between the appellant and the store employee was a consequence resulting from her attempted robbery pursuit. The wound to the employee was also a consequence, and as such, it was all part of the felony of attempted robbery. Point denied.

Given the standard of review, it was not unreasonable for a trier of fact to conclude that the appellant possessed a dangerous instrument during her attempt to rob the video store. Even though the state did not offer evidence that the wound was caused by a sharp, knife-like object, there still remains a reasonable inference that the appellant possessed and used a sharp instrument during the robbery attempt because of the length, and particularly the depth, and the severity of the wound itself. It was not unreasonable for the trial judge to conclude that the one-inch deep and three to four inch long wound on the store employee’s wrist was caused by a sharp instrument in appellant’s hand at the time of the struggle. The evidence was suffi-dent to support the conviction of armed criminal action.

CONCLUSION

The judgment of the trial court is affirmed.

All concur.

      . All statutory reference hereafter refer to RSMo 1994.


author: LAWRENCE E. MOONEY, Judge.

text:
    INVESTORS TITLE COMPANY, Plaintiff-Appellant, v. CHICAGO TITLE INSURANCE COMPANY and Chicago Title and Trust Company, Defendants-Respondents.
    Nos. ED 76232, ED 76296.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 28, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 17, 2000.
    Application for Transfer Denied June 27, 2000.

      Nelson L. Mitten, St. Louis, for appellant.
    Alan C. Kohn, St. Louis, for respondent.
   LAWRENCE E. MOONEY, Judge.

Investors Title Co. (“Plaintiff’) appeals the trial court’s denial of postjudgment interest for the time period from the date of the trial court’s rendition of judgment until this court’s affirmance of the judgment on the merits in Investors Title Co. v. Chicago Title Ins. Co., 983 S.W.2d 533 (Mo.App. E.D.1998). We affirm.

Procedural History

Plaintiff sued Chicago Title Insurance and Chicago Title Trust (“Defendants”) for breach of contract. Chicago Title Insurance counterclaimed. The case was bench tried. On April 7, 1997, the trial court entered judgment in favor of Plaintiff for the principal amount of $3,023,138.00, plus $1,177,394.00 in prejudgment interest. At this time, the court also ruled in favor of Chicago Title Insurance on its counterclaim and awarded it $618,921.53 in damages. This April 7, 1997, judgment will be referred to as the “original judgment.”

Pursuant to Defendants’ motion, on August 1, 1997, the trial court rendered an amended judgment, deleting the award of prejudgment interest to Plaintiff (hereinafter the “amended judgment”). Defendants filed their notice of appeal to this court on August 8, 1997. Plaintiff cross-appealed on August 11, 1997, claiming the trial court erred in denying prejudgment interest. On October 13, 1998, this court affirmed the trial court’s amended judgment in all respects. Investors Title, 983 S.W.2d 533.

Plaintiff later sought postjudgment interest on the award under Section 408.040.1 RSMo. (1994) for the period from April 7,1997, the date of the original judgment, to the date Defendants satisfied the judgment. The trial court denied Plaintiff postjudgment interest during the pen-dency of the first appeal, holding that a judgment creditor is not entitled to interest pending its own appeal. However, the trial court awarded Plaintiff postjudgment interest for the period from October 13, 1998, the date of this court’s affirmance of the amended judgment, until Defendants satisfied the principal amount of the amended judgment on March 22,1999.

Plaintiff timely filed this appeal raising three points of error, all of which relate to the trial court’s denial of postjudgment interest.

Analysis

I.

Two of Plaintiffs points of error challenge the trial court’s refusal to award postjudgment interest during the period from August 11, 1997, the date on which Plaintiff filed notice of its cross-appeal, until October 13, 1998, the date on which this court affirmed the trial court’s amended judgment.

Again, Plaintiff claims post-judgment interest pursuant to Section 408.040.1, which provides that “[¿Interest shall be allowed on all money due upon any judgment or order of any court from the day of rendering the same until satisfaction be made by payment, accord or sale of property...” However, notwithstanding the wording of the statute, where a judgment creditor appeals on the ground of inadequacy from a recovery in his favor, and the judgment is affirmed on appeal, the judgment creditor is not entitled to interest pending such appeal. Jesser v. Mayfair Hotel, Inc., 360 S.W.2d 652, 665 (Mo. banc 1962); Land Clearance For Redevelopment Authority of Kansas City, Mo. v. Kansas Univ. Endowment Ass’n, 831 S.W.2d 649, 650 (Mo.App. W.D.1992); State ex rel. Southern Real Estate & Fin. Co. v. City of St. Louis, 234 Mo.App. 209, 115 S.W.2d 513, 515-516 (1938). The reason for this rule is well stated by the court in Southern Real Estate: “[Wjhere it is the judgment creditor himself who is dissatisfied, and he appeals upon the ground of what he conceives to be the inadequacy of the judgment which was rendered in his favor, then if the judgment is affirmed he is held not to be entitled to interest on the judgment pending the disposition of the appeal, since it was by his own act that the proceeding was delayed and prolonged until such time as judicial sanction of the correctness of the judgment finally culminated in its affirmance by the appellate court.” 115 S.W.2d at 515.

In the case at bar, Plaintiff, the judgment creditor, appealed the adequacy of the trial court’s amended judgment when it filed its cross-appeal claiming the trial court erred in denying it prejudgment interest. This court affirmed the trial court’s amended judgment. Thus, this case falls squarely under the rule of Southern Real Estate, and Plaintiff is accordingly not entitled to interest pending its appeal.

Seeking to avoid this result, Plaintiff argues that Jesser, Southern Real Estate, and Land Clearance are wrongly decided and fail to account for the mandatory nature of the language of Section 408.040.1. On the contrary, the court in Southern Real Estate in interpreting Section 2841 RSMo (1929), an identically worded predecessor to Section 408.040.1, concluded that there was nothing in the language of Section 2841 that precluded its construction in harmony with the general rule that a party who unsuccessfully appeals from a judgment in his favor is not entitled to interest pending his appeal. Id. at 515. The court noted that in enacting Section 2841, the legislature was primarily concerned with compensating a judgment creditor for the judgment debtor’s delay in satisfying the judgment pending appeal. Id. It concluded that the legislature did not contemplate the “unusual situation where it is the judgment creditor himself who appeals the case and is thereby responsible for the delay in its final termination.” Id. at 515-516. Similarly, we see no inconsistency between the rule of Southern Real Estate and the language of Section 408.040.1.

Further, we presume that the legislature, in reenacting a statute in substantially the same terms, has adopted the previous construction given to the statute by the court of last resort, unless a contrary intent clearly appears from the statute. U.S. Cent. Underwriters Agency, Inc. v. Manchester Life & Cas. Management Corp., 952 S.W.2d 719, 722 (Mo.App. E.D.1997). The legislature reenacted Section 408.040.1 after our Supreme Court in Jesser ratified the Southern Real Estate court’s interpretation of Section 2841. Thus, by enacting Section 408.040.1 with language mirroring that of the prior law, we presume that the legislature adopted the Southern Real Estate court’s interpretation of the relevant language.

For the foregoing reasons, we find the reasoning of Southern Real Estate sound and adhere to its holding in this case.

Plaintiff also argues that we should follow Scullin Steel Co. v. PACCAR, Inc., 748 S.W.2d 910 (Mo.App. E.D.1988) and Ohlendorf v. Feinstein, 670 S.W.2d 930 (Mo.App. E.D.1984), two cases in which appealing judgment creditors were allowed to obtain postjudgment interest under Section 512.160(4) RSMo. (1994). We decline to do so. Section 512.160(4), like Section 408.040.1, presumes that the judgment debtor will be the appealing party and does not appear to contemplate the situation where it is the judgment creditor who has appealed. The rule of Southern Real Estate is thus equally applicable to cases decided under Section 512.160(4). However, neither the Scullin Steel nor the Ohlen-dorf court mentions Southern Real Estate or its progeny and therefore do not dissuade us from the holding of Southern Real Estate.

Next, Plaintiff contends that the logic of Martin v. Mid-America Farm Lines, Inc., 769 S.W.2d 105 (Mo. banc 1989) should have some bearing on this case. Martin interprets Section 287.160.2, a provision of the Workers’ Compensation Law allowing interest on workers’ compensation awards. The Martin court, alluding to the mandatory nature of Section 287.160.2, held that a claimant is entitled to such interest, notwithstanding the fact that the claimant contested the amount of the original award on appeal. Id. at 112. However, Martin decides the narrow question of interest due on workers’ compensation awards under a specific provision of the Workers’ Compensation Law, a law clearly having no applicability to the case at bar. Further, the Martin court pointed out that cases regarding the payment of interest on ordinary civil judgments were inapplicable, because Martin was a case brought under the Workers’ Compensation Law. We believe the converse to be true as well.

Plaintiff further asserts that it was Defendants’ action in appealing and posting an appeal bond that caused the delay in the payment of the judgment, not Plaintiffs filing of a cross-appeal. In making this argument, Plaintiff wrongly focuses on Defendants’ acts, rather than on its own acts in delaying potential payment of the judgment. Regardless of Defendants’ own appeal, Defendants could not have satisfied the judgment against them so long as Plaintiffs appeal was pending. Land Clearance, 831 S.W.2d at 651.

Finally, Plaintiff argues Defendants could have avoided paying postjudgment interest had they simply paid the principal amount of the judgment while the issue of prejudgment interest was pending on appeal. We disagree. Under such circumstances, Defendants could not have obtained a satisfaction of judgment as Plaintiff claims because, again, the judgment creditor’s appeal renders full satisfaction of the judgment impossible. Id.

In sum, by filing its notice of cross-appeal, Plaintiff forfeited the right to claim postjudgment interest under the holding of Southern Real Estate. Accordingly, the trial court did not err in denying post-judgment interest for the period of time from the date Plaintiff filed notice of its cross-appeal until this court’s affirmance of the amended judgment. Points denied.

II.

In its final point on appeal, Plaintiff claims it is entitled to postjudgment interest during the period of time from April 7, 1997, the date of entry of the original judgment, to August 11, 1997, the date on which it filed its cross-appeal, because during this period, Plaintiff took no action to appeal or otherwise prevent satisfaction of the trial court’s judgment. We are unpersuaded.

First, we note that under no circumstances would Plaintiff be entitled to interest back to April 7, 1997, the date on which the trial court entered its original judgment, because the original judgment quite simply is not the trial court’s judgment. Rather, pursuant to former Rule 73.01(a)(5), the trial court’s judgment is the amended judgment entered on August 1,1997.

Further, we disagree with Plaintiffs contention that because the trial court failed to put the label of “judgment” on its amended judgment, the amended judgment is not a judgment for purposes of appeal under Rule 74.01(a). The amended judgment is the judgment from which the parties took their first appeal. This court’s affirmance of the amended judgment in the first appeal conclusively establishes pursuant to the doctrine of the law of the case that such judgment is final for purposes of appeal under 74.01(a). See Bellon Wrecking & Salvage Co. v. David Orf, Inc., 983 S.W.2d 541, 546 (Mo.App. E.D.1998) (holding that implicit in the previous appellate court decision dismissing appeal for lack of a final, appealable judgment was the holding that trial court had jurisdiction to enter final judgment in the case, and thus the question of the trial court’s jurisdiction was conclusively established for purposes of a second appeal). Thus, Plaintiff is not entitled to interest back to April 7, 1997, the date of the original judgment.

Moreover, assuming that Plaintiff is claiming entitlement to postjudgment interest for the ten-day period between the date the trial court rendered the amended judgment and the date on which Plaintiff filed notice of its cross-appeal, we find the claim meritless. In support of its case, Plaintiff emphasizes that the Land Clearance court stated that a judgment creditor is not entitled to interest pending the appeal. Plaintiff argues that from the date judgment was entered in this case until the date Plaintiff filed notice of its cross-appeal, its appeal was not pending, and thus it is entitled to interest for this period. This argument contorts the essential holding of Land Clearance, which is that a judgment creditor who appeals, thereby preventing a judgment debtor from satisfying the judgment against it, should not be entitled to claim postjudgment interest.

We have found no case expressly deciding an appealing judgment creditor’s entitlement to interest for the short period of time from the rendition of judgment until notice of appeal. However, in all cases where postjudgment interest prior to affir-mance is denied, it is denied in total, and no distinction is drawn between the time before and after the judgment creditor files its notice of appeal. If Plaintiff had not filed an appeal, it would be entitled to postjudgment interest back to the date of the amended judgment; however, because Plaintiff chose to appeal, it completely forfeited its right to claim postjudgment interest prior to affirmance. Point denied.

The judgment is affirmed.

RICHARD B. TEITELMAN, P.J., and CLIFFORD H. AHRENS, J., concur.

      . The facts of the underlying suit are irrelevant to the issues in this appeal.

      .We acknowledge that the logic of Southern Real Estate has been criticized in at least one case where the judgment debtor was the first to file his appeal. Wisman v. Cleveland Ry. Co., 67 N.E.2d 5, 10 (Ohio Com.Pl.1945). The Wisman court noted that it cannot be said that the judgment creditor delayed payment of the judgment by filing a cross-appeal, having been made helpless by the appeal of the defendants. The court there held that the order in which the appeals were filed is of vital importance to the determination of the case and refused to adopt the holding of Southern Real Estate. However, unlike the Wisman court, we are bound to follow Missouri precedent, which makes clear that the order of appeals is not conclusive, and an appealing judgment creditor, whether he be first or last to the courthouse, cannot claim postjudgment interest. Southern Real Estate, 115 S.W.2d at 516.

      . Section 512.160(4) states, "Upon the affir-mance of any judgment or order, or upon the dismissal of any case, the appellate court may award to the respondent such damages not exceeding ten percent of the amount of the judgment complained of as may be just, and when such judgment was rendered by the trial court, such part of said judgment shall bear lawful interest from the date of the rendition of the original judgment in the trial court.”

      . Martin has been superseded by statute. See Tidwell v. Kloster Co., 8 S.W.3d 585, 590 (Mo.App. E.D. 1999).

      . Now Rule 78.07(c) (2000).