author: LAURA DENVIR STITH, Presiding Judge.

text:
    Beverly Sue RYAN, Clay County Public Administrator As Conservator for the Estate of Brandon Shane Reece, a Minor, Appellant, v. Hamp FORD, et al., Respondent.
    No. WD 56937.
    Missouri Court of Appeals, Western District.
    Feb. 22, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 28, 2000.
    Application for Transfer Denied May 30, 2000.

      John Richard Shank, Jr., Kansas City, for appellant.
    James P. Barton, Kansas City, for respondent.
    Before Presiding Judge LAURA DENVIR STITH, Judge PAUL M. SPINDEN and Judge VICTOR C. HOWARD.
   LAURA DENVIR STITH, Presiding Judge.

Plaintiff-Appellant, the Estate of Brandon Shane Reece (“Brandon”), sued Brandon’s former attorneys at the law firm of Knight, Ford, Wright, Atwill, Parshall & Baker (“Defendants” or “the law firm”). Brandon alleged fraud, breach of fiduciary duty, legal malpractice and a right to a constructive trust based on his former attorneys’ alleged negligent representation of Brandon in his prior personal injury and wrongful death suits against the driver of a car which hit the car in which he was riding, seriously injuring him and killing his mother. The law firm moved to dismiss the instant suit, alleging that because the probate and circuit court’s approval of a settlement of Brandon’s personal injury and tort actions included a finding that the settlement was reasonable, the issue whether they had been negligent in their representation of Brandon in those suits had already been litigated and the doctrines of collateral estoppel and equitable estoppel barred its relitigation here. Brandon appeals.

Because we find that the prior determination that the settlement was reasonable did not determine the issue whether Brandon’s attorneys adequately represented him in those suits, or whether they had a conflict of interest in that representation which worked to his prejudice, and because we find the elements of equitable estoppel have not been pleaded, we find the trial court erred in granting defendants’ motion to dismiss. Accordingly, we reverse and remand to the circuit court for further proceedings consistent with this opinion.

I. STATEMENT OF FACTS

On November 27, 1980, the car in which Brandon Shane Reece and his parents, John Robert Reece and Julia Reece, were riding was involved in a serious car accident with a car driven by Gerald Pendle-ton. The accident caused Brandon severe and permanent injuries and caused the death of Ms mother, Julia. In the years that followed, a number of lawsuits were filed, dismissed, and later re-filed on behalf of Brandon, seeking to establish liability and recover damages from Mr. Pendleton, from Brandon’s father John Robert Reece, and from various medical care providers, based on claims of wrongful death or personal injury.

Although the exact sequence and timing of the filing and dismissal of these suits is not fully clear from the record, the record does show that Mr. Reece and his son, Brandon (by Mr. Reece as conservator), filed a wrongful death action in Cooper County Circuit Court, No. CV184-129CC, seeking $500,000.00 in damages against Mr. Pendleton. On January 8, 1988, Defendant law firm made an entry of appearance for both plaintiffs.

At the time the wrongful death suit was pending, a personal injury suit, No. CV182-86CC, had also been filed by Brandon in Cooper County, Missouri against Ms father (John Robert Reece), Mr. Pen-dleton, and various health care providers. Initially, Mr. Reece did not act as conservator for Brandon in that personal rnjury suit, as he was a defendant m the suit. Sometime prior to May 20, 1988, however, Mr. Reece and Mr. Pendleton were dismissed as defendants from that personal injury smt. As a result, on May 20, 1988, Mr. Reece was re-appointed conservator for Brandon by the Probate Division of the Cooper County Circuit Court. By October of 1988, Brandon’s claims for personal injury agamst the remammg medical care providers were disposed of by a jury verdict for all but one of the defendants, Bradley Lmdsay, who agreed to a settlement.-

On December 2, 1988, Mr. Reece also engaged the Knight-Ford law firm to represent Mm as an mdividual in connection with claims for personal injuries and the death of Ms wife Julia Reece. Mr. Reece had originally believed that Mr. Pendleton held liability coverage of only $500,000 per accident through Ms primary insurer, State Farm Insurance. However, prior to a June 10, 1991, meeting between Mr. Reece and Mr. Ford, the law firm determined that Mr. Pendleton had possible additional liability coverage of $5,000,-000.00 with Granite State Insurance Company and Highlands Insurance Company. As a result of this finding, it was concluded at the June 10 meeting that it was necessary to file another action for the personal injuries of Brandon, this time agamst Mr. Pendleton only, claiming damages m addition to the $500,000.00 in damages originally claimed in the Cooper County wrongful death suit, No. CV184-129CC, as the secondary msurers would not pay until State Farm reached its policy limits. In his capacity as guardian and conservator of Brandon, Mr. Reece therefore hired the law firm on a contingent fee basis to represent Brandon in his claims for personal mjuries against Mr. Pendleton. The law firm then filed the current personal injury smt on June 26, 1991, M Cooper County Circuit Court, No. CV191-89CC, claiming personal injury damages of $10,000,000.00.

So far as the record before us shows, none of the msurers provided a defense for Mr. Pendleton (the insured) in this personal injury action, or in the pending wrongful death smt. The Probate Division of the Cooper County Circuit Court appomted Mr. Abele conservator-ad-litem for Brandon on March 12,1993 in order to consider a proposed contract that would limit recovery on the personal rnjury and wrongful claims to the insurance proceeds pursuant to Section 537.065 RSMo 1986, and also in connection with the pending personal injury and wrongful death cases. On March 16, 1993, Mr. Reece, on Ms own behalf and as conservator for Brandon, and eonservator-ad-litem Douglas Abele agreed to enter into the above contract by which the parties agreed to decrease the damages requested in the personal injury suit from $10,000,000.00 to $5,000,000.00, mcrease the damages requested m the wrongful death suit from $500,000.00 to $5,000,-000.00, and allocate the wrongful death damages 90% to Mr. Reece and 10% to Brandon.

On March 17, 1998, by request of the parties, the Cooper County Circuit Court transferred both the personal injury claim and the wrongful death claim to the Saline County Circuit Court. Two days later, Mr. Reece and Mr. Abele signed a new contingency fee agreement with the Knight-Ford firm to represent Brandon, Mr. Reece, and Mr. Abele in these actions. By March 26,1993, the wrongful death and personal injury actions were consolidated in the Circuit Court of Saline County, and assigned to Judge Ravenhill. The judge held a trial on the merits of the claims, and then entered a judgment in the amount of $5,000,000.00 for the wrongful death claim and $5,000,000.00 for the personal injury claim. Additionally, at trial the plaintiffs requested and the judge ordered that the wrongful death claim be allocated 90% to Mr. Reece and 10% to Brandon Reece.

Within a few days after the judgment, Brandon and Mr. Reece filed a garnishment action against State Farm, Granite and Highlands in Cooper County Probate Court. Ultimately, settlement negotiations ensued between Plaintiffs and Granite and Highlands, who offered a settlement valued at $3,600,000.00 to settle the garnishment action. Mr. Reece and conservator-ad-litem Abele agreed to the amount of the settlement and began to negotiate as to how these funds would be allocated among the parties and their attorneys. They agreed that one-third of the settlement, or $1,200,000.00, would be paid to the Knight-Ford firm immediately for its fees and expenses. Mr. Reece would immediately receive 30% of the remainder of the settlement in cash, or $720,000.00. Seventy percent of the remainder would be allocated to Brandon in a structured settlement which would give him $380,000.00 (just over 15% of the remainder of the settlement) immediately and $6,430.00 per month for life or for 20 years, whichever was longer. These terms were approved by both Judge Askren of the probate court in Cooper County and by Circuit Judge Ravenhill in Saline County.

Five years later, on March 26, 1998, the Estate of Brandon Shane Reece filed a Petition in Saline County against the members of the Knight>-Ford law firm, and an associate of the firm. The pleadings alleged that Hamp Ford, a partner at the firm, and Lawrence Ferguson, an associate at the firm, had acted improperly and negligently in their representation of Brandon and Mr. Reece in the suits against Mr. Pendleton and in the subsequent settlements with the insurers. The Petition alleged three counts of breach of fiduciary duty, three counts of legal malpractice, two counts of fraud, and one count requesting establishment of a constructive trust, in that the attorneys had a conflict of interest in representing both Brandon and his father, had misrepresented that they were acting in Brandon’s best interests, and had breached their obligations to Brandon by favoring his father and their own interests in negotiating the settlements.

The law firm moved to dismiss Plaintiff’s claims on the basis of collateral estoppel and equitable estoppel. Plaintiff requested leave to file an amended Petition but failed either to provide a proposed amended Petition or to indicate the nature of the proposed amendments. After a hearing on November 6, 1998, Judge Ravenhill denied Plaintiffs motion to amend and sustained Defendants’ motion to dismiss with prejudice. This appeal followed.

II. STANDARD OF REVIEW

Collateral estoppel and equitable estoppel are affirmative defenses. Rule 55.08. Sustaining a motion to dismiss based on an affirmative defense requires that the defense be irrefutably established by the pleadings. Murray v. Fleischaker, 949 S.W.2d 203, 205 (Mo.App. S.D.1997). Our review of a motion to dismiss assumes “every fact pleaded in the petition to be true.” Honigmann v. C & L Restaurant Corp., 962 S.W.2d 458, 459 (Mo.App. E.D. 1998). Moreover, “[a] plaintiff is entitled to the benefit of every favorable inference which may reasonably be derived from the facts pleaded.” Id. Although a trial court’s evidentiary findings warrant deference from the appellate courts, that deference does not apply where the law has been applied in error. State ex rel. Igoe v. Bradford, 611 S.W.2d 343, 350 (Mo.App. W.D.1980). We review determinations law de novo. Jordan v. Willens, 937 S.W.2d 291, 293 (Mo.App. W.D.1996).

III. COLLATERAL ESTOPPEL AND EQUITABLE ESTOPPEL DO NOT APPLY

We first note certain issues that are not before us on this appeal. The motion to dismiss was not based on an alleged failure of Plaintiff to adequately state a claim for fraud, malpractice and breach of fiduciary duty to Brandon based on Defendants’ alleged conflict of interest and their alleged failure to fulfill their legal and fiduciary obligations to him in their handling of the wrongful death and personal injury actions. We therefore do not address the sufficiency of those allegations. Similarly, the issue is not now before us whether Plaintiffs will be able to prove, or survive summary judgment on, their allegations of conflict of interest, fraud, breach of fiduciary duty, and legal malpractice, or the effect on those claims of the fact that Brandon had an attorney conservator-ad-litem who monitored his interests in the litigation and approved the settlements.

We are solely called upon to decide whether the court below correctly determined that collateral estoppel or equitable estoppel applied to Plaintiffs claims of fraud, breach of fiduciary duty and malpractice, and barred Plaintiff from further proceeding against Defendants. We turn first to the issue of the applicability of collateral estoppel.

A. Collateral Estoppel Does Not Apply.

The doctrine of collateral estoppel, or issue preclusion, precludes a party from litigating an issue which that party or its privy has previously litigated and lost. It is an affirmative defense, and will be applied only if the party asserting its application shows that: (1) the issue decided in the prior adjudication is identical to the issue as to which collateral estoppel is sought in the present adjudication; (2) the prior adjudication was a final judgment on the merits; (3) the party against whom collateral estoppel is asserted was a party or in privity with a party in the prior adjudication; and (4) the party against whom collateral estoppel is being asserted had a full and fair opportunity to litigate the issue in the prior suit. See, e.g., Oates v. Safeco Ins. Co. of America, 583 S.W.2d 713, 719 (Mo. banc 1979); Egan v. Craig, 967 S.W.2d 120, 124 (Mo.App. E.D.1998); Barton v. Tidlund, 809 S.W.2d 74, 76 (Mo. App. E.D.1991).

Here, Defendants admit that Plaintiff sues for fraud, malpractice, and breach of fiduciary duty, and that these claims were not tried in the underlying tort suit. They claim, however, that the key fact issues which underlay each of Plaintiffs claims are whether the judgment in the wrongful death suit was too high and in the personal injury suit too low, whether Mr. Reece was disproportionately favored over Brandon in the settlement and allocation of damages, and generally whether the settlement was reasonable as to Brandon and whether the attorney’s fees awarded to the law firm were too high. It notes that, in approving the settlement and the allocation of damages, both Judges Asieren and Ravenhill found the settlement and its allocation reasonable. Brandon was a party to those determinations, represented both by his father as conservator, and by Mr. Abele as conservator-ad-litem, as well as by the law firm. In these circumstances, they argue, the trial court properly held that Brandon’s estate was collaterally es-topped from relitigating these issues. And, if the settlements were reasonable, then Defendants could not be guilty of negligence, breach of fiduciary duty or fraud toward Brandon, and the trial court properly dismissed his claims.

While Defendant’s arguments have appeal, they suffer from a flaw which has caused these and similar arguments to be rejected by prior cases. As these courts have noted in similar situations, the issue before the judges who approved the settlement of the underlying suits was whether the settlement was reasonable. In determining that it was reasonable, these courts proceeded on the assumption that counsel for Plaintiff was adequately representing his interests, and they approved the settlement in light of the facts then revealed in discovery. Here, however, Brandon’s estate is alleging that his attorneys made misrepresentations to him and to the conservator-ad-litem, that they had a conflict of interest and were not acting in his best interest but instead in the best interest of his father, and with a view to maximizing their own fees, and that, as a result, the settlement, while reasonable in light of the facts then available to the court, was less than it would have been had Brandon been properly represented and in the absence of the alleged fraud and malpractice.

In a similar situation, Baldridge v. Lacks, 883 S.W.2d 947 (Mo.App.1994), found that collateral estoppel did not apply even though plaintiff gave sworn testimony agreeing to be bound by a court-approved settlement, where she later learned of a conflict of interest on the part of her attorney in negotiating the settlement. The court stated that the issue in the malpractice action was not whether the settlement of the underlying suit was reasonable, but whether her attorneys provided her with competent legal advice in advising her whether to agree to the settlement:

Throughout their argument, defendants mischaracterize plaintiff’s malpractice claim as an attempt to attack the reasonableness of the settlement. Plaintiff’s claim, however, is that defendants failed to provide competent legal advice to her during the prosecution of her divorce action. She is suing to recover for economic loss alleg-edlg sustained as a result. The issues in the present action are whether defendants were negligent in their representation of plaintiff and whether plaintiff was damaged as a result. Plaintiff claims defendants negligently advised her to enter into the separation agreement without first having fully and adequately assessed the nature and extent of the marital estate. These specific issues were not adjudicated at the settlement hearing in the dissolution proceeding, [footnote omitted] Therefore, defendants’ argument of collateral estoppel does not satisfy the threshold requirement that the issues be identical.

Baldridge, 883 S.W.2d at 951 (emphasis added).

The reasoning in Novack v. Newman, 709 S.W.2d 116 (Mo.App. E.D.1985), is also instructive. In that ease, plaintiff hired defendant attorneys to represent him in a medical malpractice action. Before trial, plaintiff settled with his doctors. Subsequently, plaintiff filed a motion to set aside this settlement because defendants misinformed and coerced plaintiff into settling. The trial court denied the motion to set aside the judgment without making findings of facts or conclusions of law. Plaintiff then sued defendants for legal malpractice, alleging that defendants’ negligence caused plaintiff to enter into settlement. Defendants argued that plaintiff was collaterally estopped from so claiming, because in denying the motion to set aside the settlement the court in the underlying action had necessarily determined that plaintiffs attorneys adequately represented him. In rejecting this argument, Novack reasoned that:

In [plaintiffs motion to set aside the settlement,] plaintiff alleged that he signed the settlement as a result of duress and misinformation on the part of his attorneys and testified to that effect at the hearing on his motion to set aside the settlement. This court held that there was no evidence that the defendant-physicians “participated in or knew of the alleged duress imposed by Novack’s counsel.” [Citation omitted].
This court refused to set aside the settlement only as between plaintiff and defendant-physicians. The question of his attorneys’ negligence, which allegedly induced plaintiff to settle, was not determined by this court.
... Here, the issue of attorneys’ coercive conduct, an indispensable element of the present legal malpractice case, was not determined in that prior litigation.

Id. at 119.

Even more similar to the instant case is Cook v. Connolly, 366 N.W.2d 287 (Minn. 1985). Plaintiff Cook filed suit against her attorney, Connolly, who had represented her 10 years earlier in a products liability case while she was a minor. Cook alleged that in the prior tort action Connelly’s failure to plead strict liability caused her to receive an inadequate settlement. The court declined to apply collateral estoppel despite the fact that the court trying the tort action had approved the settlement, on the basis that the court in which the tort action was pending “was evaluating the adequacy of the proposed settlement, not the adequacy of the minor’s legal representation.” Cook, 366 N.W.2d at 290 (emphasis added).

Here, as in Cook, Novack, and Baldridge, Defendants seem to have misconstrued Plaintiff’s theories. Defendants assert that Plaintiff is attacking the judgment and settlement arrived at below by claiming that the judgment and the subsequent $3,600,000 settlement were both too low, and that the attorney’s fees they received were too high. However, Plaintiff is not attempting to set aside the settlement or judgment. Rather, Plaintiff is content to leave the judgment and settlement in place, and is instead suing her attorneys alleging that, but for their fraudulent and negligent counsel, the portion of the settlement Brandon would have received out of the total settlement agreed to would have been greater, and the amount of the total settlement would have been greater. In other words, Plaintiff does not claim any unreasonableness of the judgment or settlement, only that Brandon was inadequately counseled in reaching the same. Whether Plaintiff is able to prove this allegation is an issue for determination on remand. But, for the reasons stated, we hold that collateral estoppel does not bar Plaintiffs action against Defendants.

B. Equitable Estoppel Does Not Apply.

Defendants also argued below, and argue in this Court, that principles of equitable estoppel (sometimes called estoppel by conduct or estoppel en pais), bar Plaintiffs assertion of this suit. Like collateral estoppel, equitable estoppel is an affirmative defense. Defendants note that Owen v. City of Branson, 305 S.W.2d 492, 497 (Mo.App.1957), held the doctrine applies where a party has accepted the benefits of an earlier judgment. Defendants suggest that where, as here, Brandon has accepted the benefit of the settlement by accepting payments under it, he is equitably es-topped from attacking the -judgment or settlement.

We disagree. First, Defendants’ argument is again based on the assertion that Plaintiff is attacking the underlying judgment and settlement. That is not the case. Brandon does indeed accept the benefits of the settlement, and has no intention of trying to have it set aside. He argues simply that the settlement would have been larger and differently apportioned absent Defendants’ fraud, breach of fiduciary duty and legal malpractice. He is not required to renounce the benefits of the settlement he did receive in order to make these claims.

Second, we note that equitable estoppel requires more than proof of acceptance of benefits. Bass v. Rounds, 811 S.W.2d 775 (Mo.App. E.D.1991), held that, in order to invoke the doctrine, a party must show by clear evidence that there was:

a representation made by the party es-topped and relied upon by another party who changes his position to his detriment. Prouse v. Schmidt, 156 S.W.2d 919, 921 (Mo.1941). The representation may be manifested by affirmative conduct, either acts or words, or by silence amounting to concealment of material facts. Id. These facts must be known to the party estopped, and unknown to the other party. Id.The “representation” must be made with the intention that it will be acted upon by the other party, or made under circumstances which imply a reasonable expectation that it will be acted upon. Id.

Id. at 779. Other courts describe the elements of this theory somewhat more succinctly as: “(1) an admission, statement, or act inconsistent with the claim afterwards asserted and sued upon; (2) action by the other party on the faith of the admission, statement, or act; and (3) injury to such other party, resulting from allowing the first party to contradict or repudiate the admission, statement, or act.” Farmland Industries, Inc. v. Bittner, 920 S.W.2d 581, 583 (Mo.App. W.D.1996); Peerless Supply Co. v. Industrial Plumbing & Heating Co., 460 S.W.2d 651, 665 (Mo.1970).

Here, Defendants have failed to allege that Plaintiff made a representation which they relied on to their detriment based on facts known to Plaintiff and not to them and made with the intent that it would be acted upon. Even if they could claim that they relied on the guardian-ad-litem’s acceptance of the settlement and other actions on behalf of Brandon, Brandon is not trying to undo the settlement. He is alleging that Defendants acted inequitably and tortiously in failing to disclose facts and in acting in ways which resulted in a lower settlement than would otherwise have been the case. In other words, he asserts it was Defendants, not Plaintiff, who had the greater knowledge and who allowed Brandon to rely on them to his detriment. Whether or not Plaintiff will be able to prove these allegations we do not know. However, we do hold that Defendants failed to assert the elements of the doctrine of equitable estoppel, and so we must reverse the judgment granted on that ground.

For all of these reasons, the judgment of the trial court dismissing Plaintiffs claims with prejudice is reversed and the case is remanded for further proceedings consistent with this opinion.

Judges PAUL M. SPINDEN and VICTOR C. HOWARD, concur.

      . We do note that our Supreme Court held in Klemme v. Best, 941 S.W.2d 493 (Mo. banc 1997), that an attorney may be sued by a client for breach of fiduciary duty, resulting in constructive fraud, where it is alleged that the attorney represented more than one client and had a conflict of interest in that representation. Id. at 495-96. See abo Moffett Bros. Partnership Estate v. Moffett, 137 S.W.2d 507, 345 Mo. 741 (1939); Smith v. Mann, Poger & Winner, P.C., 882 S.W.2d 164 (Mo.App. E.D. 1994) (addressing conflict of interest issues in representing clients and use of a guardian-ad-litem in such situations).

      . Plaintiff also raises the issue whether Brandon should have been permitted to amend his Petition once the court determined that he had failed to state a claim. Because of our resolution of the estoppel issues, we do not reach this question.

      . Defendants try to distinguish the case at bar from Baldridge in that, unlike in the latter case, this case involved a minor, and so the settlement was first submitted for approval to Judge Askren in the Probate Court and, upon his approval, to Circuit Court Judge Ravenhill for approval. The implication is that both judges reviewed this settlement and considered Missouri’s public policy to maximize the protection afforded to minors, whereas the settlement in Baldridge did not involve a con-servatorship and, thus, did not receive the same attention, rendering it a less valid judgment. We do not believe the review by two judges rather than one judge to be significant. In any event, this argument again misses the point that Plaintiff is not attacking these judges’ conclusions that the settlement was reasonable, but rather is raising the issue whether he was adequately counseled in reaching the settlement.

      . Compare Johnson v. Raban, 702 S.W.2d 134 (Mo.App. E.D.1985) (Client lost post-conviction motion alleging ineffective assistance of counsel and was later collaterally estopped in a subsequent malpractice action where there identical issue of counsel’s negligence would have been re-litigated).

      . Defendants attempt to distinguish Cook by noting that, while the opinion in Cook does not indicate what evidence the trial court considered at the time the minor’s settlement was approved, significant evidence was presented below. The evidence that Defendants outline as being introduced only relates to the underlying automobile accident, not the adequacy of Plaintiff's counsel. This evidence may well be relevant in any trial of the issue of adequacy of representation, and, again, we emphasize, we are not called on to decide whether Plaintiff will be able to prove his allegations against Defendants under his claims of breach of fiduciary duty, fraud and legal malpractice. However, whatever may be the case later, the prior determinations as to the reasonableness of the settlement are not determinative of the issue whether Defendants committed the torts alleged by Plaintiff. See Rogers v. Bond, 880 S.W.2d 607, 609 (Mo.App. E.D.1994) ("Collateral estoppel may be applied only to those issues which were necessarily and unambiguously decided”).


source: Caselaw Access Project

license: Public Domain

text:
    David H. MYSZKA, Appellant, v. STATE of Missouri, Respondent.
    No. WD 56589.
    Missouri Court of Appeals, Western District.
    Feb. 22, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 28, 2000.
    Application for Transfer Denied May 30, 2000.

      Andrew A. Schroeder, Asst. Public Defender, Kansas City, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Kristin M. Frazier, Asst. Atty. Gen., Jefferson City, for respondent.
    Before Presiding Judge LAURA DENVIR STITH, Judge VICTOR C. HOWARD and Judge WILLIAM E. TURNAGE.
   LAURA DENVIR STITH, Presiding Judge.

David H. Myszka was convicted of second degree murder and armed criminal action, and those convictions were affirmed on direct appeal in State v. Myszka, 963 S.W.2d 19 (Mo.App. W.D.1998). Mr. Myszka then filed a motion under Rule 29.16 for post-conviction relief, in which he alleged that his trial counsel was ineffective for failing to file a motion requesting a speedy trial and for failing to object to allegedly improper opinion testimony. He also alleged that his appellate counsel was ineffective for failing to raise on direct appeal the trial court’s allegedly erroneous admission of hearsay testimony. Because we find no error in any of the respects alleged, we affirm denial of Mr. Myszka’s motion for post-conviction relief.

I. STATEMENT OF FACTS

Mr. Myszka was sentenced by Judge Ward B. Stuckey to consecutive terms of life imprisonment on his conviction of second degree murder, and 50 years on his conviction of armed criminal action. The facts giving rise to his convictions, considered in the light most favorable to the verdict, are as follows:

On the evening of April 28, 1996, Janice Rodriguez (“decedent”) and her 14-year old son, J.D. were out shopping. After returning home, they watched movies until midnight. At that time, Ms. Rodriguez went to her bedroom and her son rested on the couch, where he intended to sleep, listening to music through his headphones. Movant, decedent’s boyfriend, was already in Ms. Rodriguez’s bedroom.

J.D. had been listening to music for approximately 16 minutes when he heard a noise that sounded like a person vomiting. When he went to check out the noise, he heard Movant warn the decedent that J.D. was approaching. Fearing that he would get into trouble, J.D. returned to his own bedroom. He then heard someone walking through the dining room and the rattling of what sounded like his mother’s key ring. When J.D. looked out of the room he saw Mr. Myszka on the telephone with blood in his ear. J.D. twice demanded that Movant let him see his mother. When Movant did, J.D. saw that she was dead. Mr. Myszka claimed that she committed suicide.

J.D. called the Weston Police Department, spoke with Officer Terry Blanton, and informed him that his mother had committed suicide. When Officer Blanton arrived at the scene, he found the decedent lying on the floor in her bedroom with a .32 Derringer pistol in her left hand. The officer also noticed that Movant’s breath had a strong odor of alcohol and his eyes were red and blurry. Movant was asked to perform a breathalyzer test, but refused.

The death of Ms. Rodriguez was not immediately thought to be a homicide. Later this same morning, however, the medical examiner’s office reported to Chief Larry Winfrey of the Weston Police Department that the gunshot wound to the chest that caused Ms. Rodriguez’s death was suspicious. At about the same time, Movant drove to the decedent’s place of employment, Wadsworth Credit Union, to return her keys to the budding. Other employees at the Union noticed that Mr. Myszka appeared drunk, had a scratch on his face, and had blood in his ear. Because of his apparent intoxication, Lloyd Nuggent and Rich Kowalezk, former colleagues of decedent, drove him back to Weston. When they arrived at Movant’s home, police were at the scene and placed Movant under arrest. One of the arresting officers found a loaded .45 caliber handgun under Movant’s shirt. He was also found with 6 rounds of .32 caliber ammunition in his pocket. A box of .45 caliber ammunition with a sales receipt dated April 28, 1995, was found in the van Movant drove.

When he was questioned later that day, Movant stated that 15 minutes after he and the decedent had gone to bed, she got out of bed, and suddenly hit the floor. When he turned on the light, he saw his girlfriend bleeding badly, and thought she would surely die. As he had said to others earlier that same day, Movant told the police that the decedent had committed suicide.

On April 29, 1995, the day following the arrest, Movant was charged by complaint with unlawful use of a weapon. That charge was dismissed, and, on June 21, 1995, Movant was charged by complaint with one count each of second degree murder, armed criminal action, and unlawful use of a weapon. These charges, too, were dismissed, but were reinstated by indictment on September 18,1995.

Trial counsel, Gary Allen, was appointed to represent Movant and first met with him in December, 1995. Between the time of their first meeting and the trial, Mr. Allen requested two continuances. The case was tried on June 17, 1996. At trial, the State’s firearm expert, Ralph Barney, testified that he test-fired the gun which killed Ms. Rodriquez and learned that if fired from a distance of 20 inches, the gun would leave gun powder residue on the shirt of the person at whom it was fired. Because he found no such residue, he concluded the gun must have been fired from a distance greater than 20 inches. Based on these tests, he was of the opinion that the gunshot wound in this case was inconsistent with suicide. Additionally, Dr. Thomas Young, medical examiner for Jackson, Platte, and Clay counties, stated that he believed that in fight of the autopsy and ballistics reports, it would be nearly impossible for the decedent to have shot herself. Finally, the doctor who performed the autopsy, Dr. Bonita Peterson, testified that, considering that the decedent was right handed, it is unlikely she committed suicide by shooting herself with a gun in her left hand.

Other testimony revealed that, because of Movant’s drinking problem, the decedent had threatened to kick him out of her home. Additionally, Larry Eubank testified that several months prior to the shooting, as partial payment for painting his car, Mr. Eubank had given Movant the .32 Derringer. Finally, Mr. Eubank stated that, when Movant took the gun he said, ‘You could make it look like somebody committed suicide with a gun,” and told Mr. Eubank of a friend who killed his wife and made it look like a suicide.

Movant was convicted by the jury on the charges of second degree murder and armed criminal action, and that conviction was affirmed. State v. Myszka, 968 S.W.2d 19 (Mo.App. W.D.1998). He timely filed a pro se and an amended motion for post-conviction relief under Rule 29.15. The amended motion alleged that Movant’s trial counsel was ineffective for failing, upon Movant’s request, to assert his statutory and constitutional rights to a speedy trial, and that this failure caused Movant to be confined during most of the approximately thirteen and one-half months between the murder and his trial, which in turn caused him to become so anxious that he was unable to testify in his own defense. Post-conviction counsel also alleged that trial counsel was ineffective for failing to object to the testimony of Larry Eu-bank that “I feel partially responsible for this. I gave him the gun. And it’s really hard for me to think about this.” Movant alleged these statements were improper opinion testimony. Finally, post-conviction counsel alleged that Movant’s appellate counsel was ineffective for failing to claim on direct appeal that the trial court erred in allowing, over Movant’s objection, the inadmissible hearsay testimony of the decedent’s son: 1) that his mother threatened to kick Movant out of the house if he did not stop drinking, and 2) that his mother complained about Movant’s drinking when he was not around.

On September 30, 1998 the motion court held an evidentiary hearing on the post-conviction ■ motion. During that hearing, Movant was the sole witness. On October 13, 1998, the court denied Movant’s motion for post-conviction relief. This appeal follows.

II. STANDARD OF REVIEW

We will affirm the motion court’s denial of a claim of ineffective assistance of counsel under Rule 29.15 unless its findings of fact or conclusions of law are clearly erroneous. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987); State v. Lay, 896 S.W.2d 693, 701 (Mo.App. W.D. 1995); State v. Landers, 969 S.W.2d 808, 812 (Mo.App. W.D.1998); Meade v. State, 779 S.W.2d 659, 660 (Mo.App. E.D.1989). A judgment is clearly erroneous when, in light of the entire record, “the reviewing court is left with the definite and firm impression that a mistake has been made.” Landers, 969 S.W.2d at 812. The findings of the motion court are presumed correct. Id.; Wilson v. State, 813 S.W.2d 833, 835 (Mo. banc 1991).

The movant, by a preponderance of the evidence, bears the burden of proof to establish ineffective assistance of counsel. Rule 29.15(i); State v. Nunley, 923 S.W.2d 911, 922 (Mo. banc 1996); Landers, 969 S.W.2d at 812. See also Armstrong v. State, 983 S.W.2d 643, 647 (Mo-App. S.D. 1999); State v. Selvy, 921 S.W.2d 114, 118 (Mo.App. S.D.1996). To meet this burden, Movant must satisfy a two-pronged test. First, Movant must show that his or her lawyer failed to exercise the customary skill and diligence that a reasonably competent lawyer would have exercised under similar circumstances. Second, Movant must show that he or she was prejudiced by counsel’s failures. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Sanders, 738 S.W.2d at 857.

With respect to the first prong, there is a strong presumption that counsel was competent. Landers, 969 S.W.2d at 812; State v. Suter, 931 S.W.2d 856, 866 (Mo.App. W.D.1996). With respect to the second prong, Movant must show that, but for counsel’s incompetence, the outcome would have been different. State v. Brown, 902 S.W.2d 278, 295 (Mo. banc 1995); State v. Ashley, 940 S.W.2d 927, 933 (Mo.App. W.D.1997).

Where, as here, a claim is made that appellate counsel was ineffective, in order to prevail on that aspect of the appeal, “strong grounds must exist showing that counsel failed to assert a claim of error which would have required reversal had it been asserted and which was so obvious from the record that a competent and effective lawyer would have recognized it and asserted it.” State v. Graham, 969 S.W.2d 759 (MoApp. W.D.1998), quoting, Reuscher v. State, 887 S.W.2d 588, 591 (Mo. banc 1994).

III. NEITHER MOVANT’S TRIAL COUNSEL NOR HIS APPELLATE COUNSEL WERE INEFFECTIVE

A. Failure to File a Motion for a Speedy Trial.

Movant claims trial counsel was ineffective in failing to file a motion for speedy trial when requested to do so by Movant, and that this resulted in prejudice to him because, had the request been made, the trial would have occurred earlier and he would have chosen to testify. Because of the delay, he claims, he became so nervous that he chose not to testify, and this hurt his defense.

As Movant acknowledges, in order to determine whether a defendant has been deprived of a right to speedy trial, a court will consider four factors: “the length of the delay, the reason for the delay, the defendant’s assertion of his right to a speedy trial, and the prejudice to the defendant.” State v. Bolin, 643 S.W.2d 806, 813 (Mo. banc 1983), citing, Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972). The length of the delay is usually measured from the time a defendant is arrested. Id.; State v. Joos, 966 S.W.2d 349, 353 (Mo.App. S.D.1998). And, as noted in Bolin, “ ‘[t]he length of the delay is to some extent a triggering mechanism’ and that ‘[u]ntil there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.’” Bolin, 643 S.W.2d at 813, quoting, Barker, 407 U.S. at 534, 92 S.Ct. 2182.

Missouri courts have held that a delay of 8 months or more is presumptively prejudicial. State v. Joos, 966 S.W.2d at 352; Dillard v. State, 931 S.W.2d 157, 162 (Mo.App. W.D.1996); State v. Farris, 877 S.W.2d 657, 660 (Mo.App. S.D.1994). Here, Mr. Myszka was arrested and charged with unlawful use of a weapon in April 1995, and was first charged with the murder on June 21, 1995. He was tried on June 17, 1996. This delay from charge to trial was more than 8 months. Therefore, we must proceed to determine whether the other three factors would have weighed in favor of finding a speedy trial violation.

The third factor is whether Defendant asserted his right to speedy trial. Section 545.780 makes assertion of that right a prerequisite to a claim of violation of defendant’s speedy trial right. Sec. 545.780 RSMo 1994. See also State v. Perry, 954 S.W.2d 554, 565 (Mo.App. S.D. 1997); Farris, 877 S.W.2d at 660. Here, of course, all agree that his counsel failed to ever request a speedy trial. However, his argument that this prejudiced him presumes that had he requested a speedy trial, he would have been tried more quickly, or else his case would have been dismissed for failure to comply with speedy trial requirements in light of the other two speedy trial factors — the cause of the delay and the prejudice due to the delay. This presumption is not supported by the record.

Mr. Myszka or his counsel were responsible for much of the delay, and delay caused by a defendant is weighed heavily against him. State v. Ivester, 978 S.W.2d 762, 765 (Mo.App. E.D.1998); State v. Robinson, 696 S.W.2d 826, 832 (Mo.App. W.D.1985). Here, Mr. Myszka chose to represent himself until December 1995, at which point counsel was appointed for him. He failed to move for a speedy trial prior to that time, and does not allege any impropriety in failing to proceed to trial prior to counsel’s appointment. Certainly, he cannot claim counsel was ineffective in failing to move for a speedy trial before counsel was appointed.

At the time counsel was appointed in December 1995, trial was set for January 4, 1996, just a few weeks later. Movant does complain that counsel moved for a continuance from that date until April 1, 1996, without his permission. He says that this delay should not be counted against him since he did not agree to it. He concedes, however, that his counsel’s motion said he did not object to the delay, and that he agreed to the second request for continuance from April 1, 1996 until June 17, 1996. Moreover, prior to trial, he never complained that counsel had requested a continuance without his permission.

In these circumstances, even were it true that counsel did not discuss the January to April 1996 continuance with him, that delay is still attributable to the defense rather than to the court or the prosecution, and thus would have weighed heavily against a claim of violation of his speedy trial rights. That makes sense, for Movant’s real complaint, of course, is that counsel allegedly did not consult him before requesting a continuance, not that his speedy trial rights were violated. While failure to follow his client’s instructions or to consult with his client about continuances may be relevant to other claims of ineffective assistance, he cites no case, and we are aware of none, which would suggest that these circumstances provide a reason not to count that delay against him for speedy trial purposes.

''.Second, the trial court was free to disbelieve &5vant’s claim that he did not agree to the initial continuance. After all, counsel had just been appointed, and made this request because of his unfamiliarity with Mr. Myszka and his case due to the recent appointment, and because he believed that such a short period of preparation would not allow him time to adequately prepare to defend such a serious charge. In his motion, Mr. Allen stated that Mov-ant was in custody and did not object to the continuance. Not only did Movant not express any disagreement with this request to the court, but he admits he agreed to another continuance from April to the trial date of June 17, 1996. On these facts, the trial court was free to disbelieve Movant’s claim that he did not agree to the first three months continuance, and in fact the judge did say that he found Defendant’s testimony as a whole not to be credible.

And, even had Movant not agreed to the January to April continuance, counsel’s reason for requesting it was valid, since he needed the time to prepare a defense. Our courts have recognized that a continuance is not unreasonable when counsel is not prepared for trial, “regardless of defense counsel’s awareness of the motion for a speedy trial.” Sams v. State, 980 S.W.2d 294, 297 (Mo. banc 1998). Here, in addition, we have the fact that Movant failed to allege he ever apprised trial counsel of the anxiety he now claims to have suffered due to those continuances. Aware of his own lack of knowledge of the case, and unaware of any particular reason why a three month delay would cause undue anxiety to Movant, counsel was not unreasonable in requesting this continuance, and it is proper to count it against Movant.

Because all of the delay following appointment of counsel could be attributed to Movant or to valid reasons why counsel needed a continuance in order to prepare Movant’s defense, the filing of a request for speedy trial would not have had any appreciable effect on Movant’s trial date and counsel cannot be held ineffective in failing to file a speedy trial motion.

Finally, Movant failed to show that undue prejudice - the fourth prong of the speedy trial test—resulted from the alleged delay. He says that it caused him to be more anxious. He claimed that, had he not been under such anxiety, he would have told the jury that he and the decedent were planning to go camping, that for protection he customarily takes his gun with him on camping trips, and that, while packing the gun, it discharged, accidentally hitting and killing Ms. Rodriguez. However, he made no such assertion when both Mr. Allen and the court questioned him regarding his decision to waive his right to testify. In fact, the following exchange occurred at that point:

THE COURT: You understand if you want to testify now I’ll give you that opportunity to reopen your case and testify.
DEFENDANT: I do not wish to testify, Your Honor. Thank you for your offer.

And, if the January to April continuance were the cause of so much anxiety, why did he agree to an additional two months delay, and how except based on speculation could we find that his undue anxiety was due to the first three months of continuance, rather than to the last two months of continuance? Finally, even if we presume that some additional anxiety resulted, “anxiety and concern exist in every criminal case, but ‘that alone does not establish prejudice where, as here, the defendant neither asserts nor shows that the delay weighed particularly heavily on him in specific instances.’ ” State v. Woodworth, 941 S.W.2d 679, 694 (Mo.App. W.D. 1997); State v. Joos, 966 S.W.2d at 353; State v. Fleer, 851 S.W.2d 582, 597 (Mo. App. E.D.1993). While Movant claims he suffered anxiety, he offered no medical or other evidence to support this claim other than his own testimony

The trial judge could well find based on this evidence alone that, had the pressure and anxiety caused by Movant’s incarceration during the initial continuance been so trying on his ability to testify as to his innocence, he would not have agreed to the April 1, 1996, continuance, or would have raised this issue at trial, when waiving his right to testify, or when questioned after trial as to whether he was satisfied with counsel’s representation. The trial court in fact did find Movant not to be credible.

For all of these reasons, the court below did not abuse its discretion in denying the claim of ineffective assistance based on failure to move for a speedy trial and based on the seeking of two continuances.

B. Failure to Object to Improper Opinion Testimony.

Next, Movant argues that trial counsel provided ineffective assistance of counsel when he failed to object to the testimony of a prosecution witness, Larry Eubank. At trial, Mr. Eubank testified that when he gave Movant the .32 Derringer, Movant said, “You could make it look like someone committed suicide with a gun,” and that a friend of his had made it look like his wife had committed suicide. Mr. Eubank also stated, “I feel partially responsible for this. I gave him the gun. And it is really hard for me to think about this.” Movant argues these statements were improper opinion testimony that usurped the function of the jury to decide guilt or innocence. We disagree.

First, it is clear that the testimony of Mr. Eubank to which Movant now objects did not constitute opinion testimony concerning Movant’s guilt or innocence. Mr. Eubank merely repeated Movant’s' statements and then expressed his deep regret that he in fact supplied the gun that admittedly was used to cause the death of Ms. Rodriguez. His words would have been appropriate regardless whether the death caused by the gun were found to be the result of murder, accident, or suicide, for the regret was as to the fact he had supplied the instrumentality for her death, not as to how it had been used or by whom. Consequently, Mr. Eubank’s statements did not constitute improper opinion testimony as to Movant’s guilt or innocence. Thus, the jury’s function to decide guilt or innocence was not usurped Mr. Eubank.

Secondly, Movant raised this same issue on direct appeal. We found it was not properly preserved, but reviewed for plain error, and found admission of this testimony did not constitute manifest injustice. State v. Myszka, 963 S.W.2d 19, 26-7 (MoApp. W.D.1998). “[A] finding of no manifest injustice under the ‘plain error’ standard on a direct appeal serves to establish a finding of no prejudice under the test for ineffective assistance of counsel provided in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” State v. Clark, 913 S.W.2d 399, 406 (Mo.App. W.D.1996). See also State v. Chapman, 936 S.W.2d 135, 141-42 (Mo.App. E.D.1996). Consequently, even were the failure to object to this evidence serious enough to constitute ineffective assistance (and we do not so hold), Movant has failed to make a sufficient showing of prejudice to- satisfy the second prong of the Strickland test. See Strickland, 466 U.S. at 697, 104 S.Ct. 2052; Meade, 779 S.W.2d at 661 (both holding a court may proceed directly to determine whether movant is entitled to remand based on error without separately addressing appropriateness of counsel’s conduct). Point denied.

C. Failure to Raise Preserved Error on Direct Appeal.

In- his final point, Movant argues that his appellate counsel was ineffective for failing to raise on direct appeal the preserved claim that the trial court erroneously admitted hearsay testimony. Decedent’s son, J.D., stated at trial that the decedent had threatened to kick Movant out of the house if he did not stop drinking, and that his mother complained about Movant’s drinking when Movant was not around.

As noted earlier, in order to show that counsel was ineffective, Movant must satisfy the two-pronged test set forth in Strickland. First, he must show that his lawyer failed to exercise the customary skill and diligence that a reasonably competent lawyer would have exercised under the same or similar circumstances. Second, he must show that he was prejudiced by counsel’s failures. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Where, as here, the allegation of ineffectiveness is as to appellate counsel, in order to prevail:

strong grounds must exist showing that counsel failed to assert a claim of error which would have required reversal had it been asserted and which was so obvious from the record that a competent and effective lawyer would have recognized it and asserted it.

Graham, 969 S.W.2d at 759. Accord, Reuscker, 887 S.W.2d at 591.

Here, we find that even if the allegedly objectionable admission of these statements had been raised by Mr. Wei on direct appeal, reversal would not have been required. This Court has held that, “[a] defendant suffers no prejudice and cannot complain about the admission of evidence over objection where similar evidence is admitted without objection.” State v. Nastasio, 957 S.W.2d 454, 459 (Mo.App. W.D.1997). At trial, Mr. Jimmy Brooks, an acquaintance of Movant’s from Alcoholics Anonymous, also testified, without objection, that, “Movant said Janice was getting ready to kick him out, if he don’t quit his drinking.” In light of Mr. Brooks’ testimony, we find that Movant suffered no prejudice from the failure to raise this issue on appeal, as, if raised, it would not have required reversal. Movant is therefore not entitled to post-conviction relief. See Strickland, 466 U.S. at 697, 104 S.Ct. 2052; Meade, 779 S.W.2d at 661.

For all of these reasons, the trial court’s denial of Movant’s motion for post-conviction relief under Rule 29.15 is affirmed.

Judges VICTOR C. HOWARD and WILLIAM E. TURNAGE concur.


author: PER CURIAM.

text:
    Daniel W. LOEHR, Appellant, v. STATE of Missouri, Respondent.
    No. 75673.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 22, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 27, 2000.
    Application for Transfer Denied May 30, 2000.
    Dave Hemingway, Asst. Sp. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Barbara K. Chesser, Asst. Atty. Gen., Jefferson City, for respondent.
    Before RICHARD B. TEITELMAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Movant Daniel W. Loehr (“Movant”) appeals the denial of his Rule 29.15 motion for post-conviction relief. Movant asserts the trial court erred in failing to render findings on his challenge to the state’s breach of the jury-waiver agreement. Movant also asserts the trial court erred in failing to grant an evidentiary hearing on the state’s breach of the jury-waiver agreement. Finally, movant contends the trial court erred in failing to conduct a hearing on post-conviction counsel abandonment.

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

The judgment of the trial court is affirmed in accordance with Rule 80.25(b).


author: GARY M. GAERTNER, Presiding Judge.

text:
    BOATMEN’S TRUST COMPANY, et al., Appellant, v. Janet S. LONG, et al., Respondent.
    No. ED 76078.
    Missouri Court of Appeals, Eastern District, Division One.
    Feb. 22, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 27, 2000.
    Application for Transfer Denied May 30, 2000.

      Frank Susman, Susman, Schermer, Rimmel & Shifrin, L.L.C., St. Louis, for appellant.
    W. Stanley Walch, Mike W. Bartolacci, Thompson Coburn LLP, St. Louis, for respondent.
   GARY M. GAERTNER, Presiding Judge.

Appellants, Nancy H. Gillespie and Gregory D. Hartley, (“appellants”), appeal the judgment of the Circuit Court of the City of St. Louis, granting motion for summary judgment in favor of respondents, Janet S. Long, Frank B. Long, III, George S. Long, Christopher P. Long, and Anthony D. Long, (“respondents”). We affirm.

Respondent, Janet S. Long, (“wife”), was the first wife of decedent, Frank B. Long, Jr., (“husband”). Wife and husband were married on November 8, 1948. They had four children, respondents, Frank B. Long, III, George S. Long, Christopher P. Long, and Anthony D. Long.

The parties separated on June 29, 1969, after wife learned that husband was having an extramarital affair with Mary Hartley, whom husband later married in 1971. On August 8, 1969, wife filed a petition for separate maintenance from husband. An order granting wife separate maintenance pendente lite was entered on September 15, 1970, with modifications remaining in effect until final judgment was entered. On May 15, 1971, wife and husband entered into a separation agreement, which partially provided:

Section 6. Will and Testamentary Disposition of Husband
Husband agrees that, subject to any subsequent marital rights, the assets of his estate shall be equally divided among the aforesaid four children of the parties who shall survive him. To this end, husband will keep in effect at all times a will which provides that all the assets of his estate are to be divided equally among aforesaid children. Husband agrees not to dispose of his estate in any other manner prior to his death except by inter vivos gifts or other appropriate means to said four children. The definition of “estate” as used in this Section 6 shall mean the same as that for “gross estate” as used for federal estate tax purpose in Section 2031-2044 Internal Revenue Code of 1954 as amended.

As part of the separation agreement, wife also agreed to amend her petition to seek dissolution of her marriage from husband. The parties also stipulated that the separation agreement may be introduced as evidence in the divorce proceeding. The stipulation further provided:

In the event a decree of divorce is granted plaintiff, this Agreement may be referred to in such decree, and any such decree may incorporate such provisions of such Agreement as the Court has power to include in a decree of divorce, and such provisions shall be merged in the decree and become a part thereof, and that the attached form of decree is agreeable to the parties herein in the event a divorce is granted to the plaintiff.

The separation agreement was admitted into evidence during the divorce proceeding. The divorce decree entered by the trial court on August 6, 1971, referenced it only as to the payments for maintenance and child support. The divorce decree did not reference husband’s promise to leave his estate to his four children.

On October 15, 1971, husband married Mary Hartley, (“Mary”). At that time, Mary had two children, the appellants. Mary died on December 8, 1995. On February 12, 1996, husband executed a trust. In his trust, husband disinherited his four natural children.

A Disinheriting Children. Grantor (husband) currently has four children, namely: FRANK B. LONG III, GEORGE S. LONG, CHRISTOPHER P. LONG and ANTHONY D. LONG. Grantor intends to leave these children nothing under this trust. Wherever it shall read “children,” “descendants” or “heirs” in this trust, it shall exclude these children and their descendants.

Husband also executed a will dated February 12, 1996. In his will, husband devised and bequeathed his entire probate estate to the trust. Husband also disinherited his four natural children in the will. Appellants are named the beneficiaries of the trust upon husband’s death. Husband did not reference the separation agreement either in his trust or in his will.

On February 18, 1996, husband died. At that time the value of the assets in his trust and probate estate as reported on his Federal Estate Tax return was $898,-658.17. Husband’s individual retirement account, (“IRA”), accounted for approximately 42% of this amount. Husband worked for OB-GYN Associates as a physician. When husband retired in 1985, he transferred the funds he had accumulated during his working years in the OB-GYN Associates profit sharing plan to an IRA.

After husband’s death, respondents found out that husband had reneged on his promise in the separation agreement. On June 17, 1996, respondents filed a four-count petition in equity. Count I pleaded specific performance combined with either reformation of the trust agreement or imposition of a constructive trust. Count II pleaded a breach of contract based on husband’s failure to make a will in accord with the separation agreement. Count III pleaded an alternative breach of contract theory. Count IV pleaded an action based on fraudulent transfer premised on the language of the separation agreement. On July 10,1996, appellants filed their answer, affirmative defenses and cross-claim. In their cross-claim against Boatmen’s Trust Company, appellants allege a claim of fraudulent misrepresentation. Both respondents and appellants filed motions for summary judgment. The trial court sustained respondents’ motion for summary judgment as to count I of their petition, and dismissed counts II, III, and IV without prejudice. The trial court denied appellant’s motion for summary judgment and cross-claim against Boatmen’s Trust Company. Appellants appeal.

Appellate review of motion for summary judgment is essentially de novo. ITT Commercial Finance v. Mid-Am. Marine, 854 S.W.2d 871, 376 (Mo.banc 1998). Appellate courts review the record in the light most favorable to the party against whom judgment was entered. Id. “Summary judgment is particularly appropriate if the issue to be resolved is the construction of a contract that is unambiguous on its face.” Simul Vision Cable v. Continental Cablevision, 983 S.W.2d 600, 603 (Mo.App. E.D.1999).

Appellants raise two points on appeal. Appellants argue the trial court erred when it granted respondents’ motion for summary judgment, because: (1) husband’s IRA was not included within the term “estate” as defined in the separation agreement; and (2) the separation agreement was merged into the divorce decree by the parties’ stipulation of facts and pleadings, and it is unenforceable as a judgment, since it was never revived pursuant to section 516.350, RSMo 1994.

In their first point, appellants argue that husband’s IRA is not included within the term “estate” as defined in the agreement because all IRAs were non-existent in 1971. They further argue that husband’s retirement plan (the precursor to his IRA) and all forms of retirement plans were expressly excluded from the term gross estate as defined in sections 2031-2044 of the 1954 Internal Revenue Code. We disagree.

The court determines the intent of the parties from the contract alone, where the contract is not ambiguous. Simul Vision Cable, 983 S.W.2d at 604 “Whether a contract is ambiguous is a question of law.” Min section 6 of the separation agreement, husband promised to leave his estate at his death to his four natural children. The agreement further provided that “the definition of ‘estate’ as used in this section 6 shall mean the same as that for ‘gross estate’ as used for Federal estate tax purposes in section 2031-2044 Internal Revenue Code of 1954 as amended.”

The language used is plain and unambiguous and we infer the parties’ intention from the contract alone. The Internal Revenue Code of 1954 was the current code when the parties entered into the agreement. The parties contemplated the possibility of amendments to the code pri- or to the completion of the agreement by adding the words “as amended.” In light of this fact, the parties indicated their intention to use the current amendment when the final contemplated contingent event (i.e., transfer of husband’s estate to his four children after his death) happened. The parties agreed that husband would will his estate, at his death, to his four natural children. Husband agreed not to transfer his assets out of his name from the time the agreement was entered into until his death. The words “as amended” were added by the parties to guarantee that husband’s estate, would be determined by the definition of “gross estate” at the time of his death.

Husband’s IRA was established after his retirement in 1985. In 1971, husband did not own an IRA as it was not possible because the Federal tax law had not yet created such accounts. The funds that husband used to fund his IRA after his retirement, already existed in the form of assets comprising his funds in the OB-GYN Associates’ profitsharing plan. When husband retired in 1985, OB-GYN Associates distributed the full proceeds of his profit-sharing account to him, and he rolled these assets over into an IRA in his name, with the Van Kampen American Capital U.S. Government Fund A.

When husband died in February 1996, included among his assets was the IRA, which at that time, by definition of gross estate, included IRA’s. 26 U.S.C. sections 2031, 2033, and 2039. Additionally, husband’s IRA was reported on his Federal estate tax return and included as part of his gross estate for federal estate tax purposes. We find husband’s IRA was part of his gross estate when he died. Thus, husband’s IRA is included in the term “estate” as used in the separation agreement.

In their second point, appellants argue that the separation agreement was merged into husband and wife’s decree of divorce by the parties’ stipulation of facts and pleadings. Therefore, appellants argue that the separation agreement was unenforceable as a judgment because it was never revived pursuant to section 516.350. We disagree.

Section 452.325 allows the courts to enter judgments ordering parties in dissolution proceedings to comply with the terms of their separation agreements. Section 452.325 was enacted in 1973, effective January 1, 1974. Prior to the effective date, rights that could only be created by separation agreements remained contractual, even if incorporated into a divorce decree. Nelson v. Nelson, 516 S.W.2d 574, 578 (Mo.App.1974). Divorce laws in existence prior to the enactment of the 1973 Dissolution of Marriage Act are decisive in divorce judgments obtained prior to the effective date of January 1, 1974. Humphrey v. Humphrey, 597 S.W.2d 673, 674 n. 1 (Mo.App.W.D.1980). “Prior to- the enactment of the Dissolution of Marriage Act, a separation agreement ... was enforceable only in a separate action under traditional contractual remedies.” Lay v. Lay, 912 S.W.2d 466, 467 (Mo.banc 1995).

In the case at bar, wife and husband divorced in 1971. They drafted and presented the trial court a separation agreement. The trial court in its divorce decree referenced the separation agreement only as to certain payments. It did not reference the provisions of section 6 of the separation agreement. The 1973 Dissolution of Marriage Act does not apply to divorce decree entered in 1971. The law that existed at that time allows parties to bring separation agreement actions in contract, rather than to enforce them as judgments. Thus, appellants’ allegation regarding whether the parties stipulated and pleaded that the separation agreement was part of the divorce decree is not legally relevant to the determination of this case. The trial court correctly concluded that section 6 of the separation agreement remained contractual in nature under the law as it existed in 1971. Therefore, we need not reach the issue of whether this action is barred by section 516.350 because the action here is in contract and not to enforce the divorce decree.

Based on the foregoing, the judgment of the trial court is affirmed.

PAUL J. SIMON, J., and JAMES R. DOWD, J., concur.

      . Boatmen’s Trust Company was joined as a nominal party in its dual capacities as the successor trustee of husband’s revocable trust and as a personal representative of Frank’s probate estate.

      . IRA was created in 1974. 26 U.S.C. section 408(a) added by title II, section 2002(b) of Pub.L. 93-406, September 2, 1974; effective December 31, 1974.


text:
    STATE of Missouri, Respondent, v. Jeffrey ROSE, Defendant-Appellant.
    No. ED 75780.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 22, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 6, 2000.
    Application for Transfer Denied May 30, 2000.
    Richard H. Sindel, Clayton, for appellant.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Stacy L. Anderson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before RICHARD B. TEITELMAN, P.J., CLIFFORD H. AHRENS and LAWRENCE E. MOONEY, JJ
   ORDER

PER CURIAM.

Defendant Jeffrey Rose appeals from the judgment entered on a jury verdict finding him guilty of second-degree assault, for which he was sentenced to a one-year jail term.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. However, the parties have been furnished with a memorandum opinion, for their information only, setting forth the facts and reasons for this order.

We affirm the judgment pursuant to Rule 30.25(b).


author: HOFF, Judge.

text:
    Carl HARP, Claimant, v. MALONE FREIGHT LINES, INC., Employer.
    No. ED 75799.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 22, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 27, 2000.
    Application for Transfer Denied May 30, 2000.

      Brown & James, P.C., Johnson, T. Michael Ward, Bart B. Zuckerman, St. Louis, for employer.
    Swindle and Nunnery, Dale E. Nunnery, Doniphan, for claimant.
   HOFF, Judge.

Malone Freight Lines, Inc. (Malone) appeals from the decision of the Labor and Industrial Relations Commission (Commission) that Carl Harp (Carl) was Malone’s employee under Section 287.020.1 RSMo 1994. We affirm.

Dan Harp (Dan) owns a truck and is in the business of transporting freight on behalf of contract or common carriers. Malone and Dan entered into an Independent Operating Agreement (operating agreement) designating Dan as an independent contractor. As part of the agreement, he contracted the use of his truck and equipment to Malone, an interstate common and contract carrier.

Dan suggested his brother, Carl, call Malone regarding employment. Carl called Malone and filled out an Application for Lease/Independent Contract Operator Information which included an agreement (lease application and agreement). The application included Carl’s employment record for the past ten years, his driving record, educational background, military status, and general information. At Malone’s direction, for about three days Carl watched instructional films, took Department of Transportation tests, and submitted to a drug test for Malone. After completing the paperwork and the tests, Carl received a Malone driver’s card.

Carl then began hauling loads for Malone. The truck Carl used was owned by Dan, and the trailers he pulled were owned by Malone. Carl was required to contact Malone two or more times a day by using an 800 number. If he did not contact Malone, he received a financial penalty. While working for Malone, Carl was not allowed to make any personal trips. When Carl picked up a load, he received an advance from Malone to pay for his fuel. To pay Carl, Malone deposited money into Dan’s account. Dan kept a percentage of that money for supplying the truck, and sent Carl the remainder of that money.

On July 9, 1996, Carl injured his neck while delivering a load for Malone. He called Malone to report his injury and subsequently filed a worker’s compensation claim.

The Administrative Law Judge (ALJ) held Carl was an employee of Malone and entered a temporary or partial award in Carl’s favor and against Malone. In a unanimous decision, the Commission adopted the ALJ’s temporary and partial award. This appeal followed.

Usually a temporary or partial award may not be appealed. Cdhall v. Cahall, 963 S.W.2d 368, 371 (Mo.App. E.D. 1998). “However, appellate review on the issue of liability in a workers’ compensation case is permissible although an award is denominated ‘temporary or partial.’ ” Id. Because the only issues raised on appeal address Malone’s liability, we have jurisdiction over this appeal from a temporary or partial award.

In its first point, Malone argues the Commission erred in concluding Carl was Malone’s employee because Section 287.020.1 exempts over-the-road drivers of trucks leased to common carriers, regardless of whether or not the driver owns the truck, from the statutory definition of “employee.” Specifically, Malone contends the Commission erred when it held the exemption does not apply to the driver of a contracted vehicle who has no ownership interest in that vehicle. Malone argues the statutory language indicates the legislature intended to exempt any over-the-road driver who operates trucks leased or contracted to contract and common carriers. Therefore, Malone argues, Carl should be excluded from the definition of “employee.” Carl- responds, if the legislature intended for him to be exempt, the statute would say simply “operator” rather than “owner and operator.”

Section 287.020.1 states:

The word “employee” as used in this chapter shall be construed to mean every person in the service of any employer, as defined in this chapter, under any contract of hire, express or implied, oral or written, or under any appointment or election.... The word “employee” shall not include an individual who is the owner and operator of a motor vehicle which is leased or contracted with a driver to a for-hire common or contract motor vehicle carrier operating within a commercial zone as defined in section 390.020 or 390.041, RSMo, or operating under a certificate issued by the transportation division of the department of economic development or by the interstate commerce commission.

In relevant part the Commission stated: “this statute clearly limits the exclusion to individuals who are both owners and operators of the leased motor vehicle. Since [Carl] had no ownership interest in the truck which he was driving for Malone, this section cannot be applied to exclude him as a possible employee.”

Decisions of the Commission which are clearly the interpretation or application of law, as distinguished from a determination of fact, are not binding upon us and fall within our province of review and correction. Burgess v. NaCom Cable Co., 923 S.W.2d 450, 452 (Mo.App. E.D.1996).

We find that this is a case of first impression because the parties have not directed us to and we have not found a Missouri case that has addressed this issue. In matters of statutory construction, the intent of the legislature controls. Christian Disposal, Inc. v. Village of Eolia, 895 S.W.2d 632, 633 (Mo.App. E.D. 1995). To determine the legislature’s intent, we look to the language of the statute and the plain and ordinary meaning of the words employed. Id. Because the statute excludes only those who are a truck “owner and operator” (emphasis added) the plain and ordinary meaning of the phrase does not exclude a driver who is an operator but not an owner of the leased or contracted truck.

“Missouri law requires the Workers’ Compensation Act to be construed liberally with a view to the public welfare ... so as to extend its benefits to the largest possible class and restrict those excluded to the smallest possible class.” Leslie v. School Services and Leasing, Inc., 947 S.W.2d 97, 99 (Mo.App. W.D. 1997). Additionally, the law favors a construction of a statute which avoids unjust or unreasonable results. Maryland Cas. Co. v. General Elec. Co., 418 S.W.2d 115, 118 (Mo. banc 1967). If we construe the statute as Malone interprets it, all operators of leased or contracted vehicles would be excluded from the statutory definition of employee, which would exempt the largest possible class from benefits. This interpretation is unjust and unreasonable. Carl does not fall within the statutory exclusion. Point one denied.

In its second point, Malone contends the legislature’s amendment of the statute altered the employment status of owner-operators of leased or contracted vehicles, making those vehicles’ owners independent contractors and severing any employment relationship between carriers and drivers hired by such a vehicle’s owner. Therefore, Malone argues, Carl should be considered an “employee” of the truck’s owner, Dan, rather than an employee of Malone. Because no evidence exists in this case to establish Carl was hired by Dan, we do not address Dan’s relationship to Carl or the statute’s effect on that relationship. Point two denied.

In its third point, Malone contends the Commission erroneously concluded Carl is Malone’s employee because the application of the controllable services test shows that Carl is not Malone’s employee. Specifically, Malone points out: (1) it did not instruct Carl how to deliver the load, how to do his job, or what route to take; (2) Carl is in a separate and distinct occupation than Malone because Carl is in Dan’s business of hauling property while Malone is in the brokerage business; (3) “over-the road” truck driving requires a specialized license, and therefore Carl is a specialist; (4) Malone did not supply the tools and instruments needed to perform work because Dan supplied the truck and additional equipment, and Malone only supplied the trailer; (5) some of Carl’s driving was done on behalf of other transportation brokers; (6) Malone never directly paid Carl but paid Dan who then paid Carl; and (7) in the operating agreement with Dan, Malone expressed no employer-employee relationship existed between itself and the driver, and Carl did not know the status of his relationship with Malone.

An appellate court will defer to the judgment of the Commission on factual disputes regarding inferences and evidence and will not substitute its own judgment. Walls by Walls v. Allen Cab Co., Inc., 903 S.W.2d 937, 940 (Mo.App. E.D.1995). When passing on the sufficiency of evidence, we must review the record in the light most favorable to the findings to determine whether there is sufficient competent evidence to support the Commission’s conclusions. Staggs v. Venetian Harbor Co., 813 S.W.2d 883, 885 (Mo.App. E.D. 1991).

“Where the evidence shows that a person to whom a service is rendered has a right to control the performance of the person who renders the service, the relationship of employer and employee is essentially established.” Ceradsky v. Mid-America Dairymen, Inc., 583 S.W.2d 193, 196 (Mo.App. W.D.1979).

The factors to determine if a “right to control” exist are: (1) the extent of control,(2) the actual exercise of control, (3) the duration of the employment, (4) the right of discharge, (5) the method of payment, (6) the degree to which the alleged employer furnished equipment, (7) the extent to which the work is the regular business of the alleged employer, and (8) the employment contract.

Hutchison v. St. Louis Altenheim, 858 S.W.2d 304, 305 (Mo.App. E.D.1993).

We defer to the Commission’s findings and agree with the Commission’s conclusion that the controllable services test shows Carl was an employee of Malone. Malone did instruct Carl how to deliver the load by requiring him to contact the dispatcher on the 800 number daily, and by giving him detailed instructions on where and when to pick up and deliver loads. Malone furnished all the necessary tools and supplies for Carl except the truck which was supplied by Dan for Malone. Carl was directed by Malone to call Malone, not Dan, if he had a breakdown or accident. Carl drove exclusively for Malone for the five months prior to his injury. Malone did pay Carl indirectly through Dan, however Malone still required Carl to submit load information before he was paid, and Malone advanced Carl money before each trip. Additionally, Malone’s regular business included obtaining the transportation of goods by leased or contracted vehicles.

Finally, the fact the lease application and agreement between Carl and Malone did not expressly reference an employer-employee relationsMp is not conclusive. Section 287.020.1 defines an “employee” as “every person ... under any contract of Mre, express or implied, oral or written.... ” Under its terms, tMs statute does not require an employment relation-sMp to be express or written. It is “well settled law that the relation of employer and employee may be implied or presumed from the acts of the parties, or from circumstances which according to the ordinary course of dealing and understanding of men show an intent to create such relationship.” Mercer v. Rowe Ford Sales, 446 S.W.2d 167, 171 (Mo.App. E.D.1969). We find an employment relationship existed between Malone and Carl despite the fact the lease application and agreement between Carl and Malone lacked any express language acknowledgmg such a relationship.

Malone also contends the operating agreement between Dan and Malone gave Dan the exclusive right to control any work performed by Carl because Dan, Malone urges, paid all operatmg expenses, hired, fired and paid Carl, set wages, hours and worMng conditions, and paid for benefits such as workers’ compensation coverage. As shown above, Dan did not control Carl’s work. Malone instructed Carl how to deliver the loads by giving him detailed instructions and requiring him to contact Malone daily. Malone gave Carl advances before each load, and it was Malone who could terminate Carl by canceling the lease application and agreement upon a thirty-day notice.

Finally, Malone relies on Porter v. Erickson, 851 S.W.2d 725 (Mo.App. S.D. 1993), and contends Porter is similar to this case. The Porter court found the carrier did not control the work of the driver, and therefore the driver was not carrier’s employee. Id. at 735. Malone contends its level of control over Carl is virtually identical to the degree of control exercised by the carrier M Porter.

However, our case is factually distinguishable from Porter because Malone had more control over Carl than the carrier had over the driver in Porter. In Porter, the driver could drive another truck for another carrier; the carrier had no right to select the route driven by the driver; the carrier was not obligated to pay the hotel bill of the driver, and the driver did not have to call the carrier each day. Id. at 733-34. Not only did Carl have to call Malone on its 800 number daily, but he was fined by Malone if he failed to do so. Carl worked solely for Malone and did not drive another truck for another carrier. Moreover Malone gave Carl detailed instructions regarding where and when to pick up the loads. Therefore, this case is not analogous to Porter. Point three de-Med.

We find the Commission correctly concluded Carl was an employee of Malone.

Judgment affirmed.

WILLIAM H. CRANDALL, P.J. and JAMES A. PUDLOWSKI, S.J., Concur.

      . We do not mean to be disrespectful by referring to the parties by their first name, we do this to distinguish between Carl and Dan Harp.

      . All subsequent statutory citations are to RSMo 1994, unless otherwise indicated.


author: CRANE, Presiding Judge.

text:
    In the Matter of the ESTATE OF Che-Brielle WALKER. Anthony Ramirez, Plaintiff/Appellant, v. Che-Brielle Walker, a.k.a. Che-Brille Walker, Defendant/Respondent.
    No. ED 75834.
    Missouri Court of Appeals, Eastern District, Division Two.
    Feb. 29, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 11, 2000.
    Application for Transfer Denied May 30, 2000.

      Anthony B. Ramirez, St. Louis, pro se.
    Cynthia Smuda, St. Louis, for appellant.
    Daniel M. Roddy, St. Louis, for respondent.
   CRANE, Presiding Judge.

Attorney-conservator of minor’s estate petitioned the probate division of the circuit court (hereinafter “court”) for compensation for work performed by himself and his assistants in the interest of the estate. He sought $125.00 per hour for all of the time he personally spent on the estate. The court determined that some of the attorney-conservator’s hours were applicable to legal services and some of his hours were applicable to administrative services and awarded him $90.00 per hour for legal services and $45.00 per hour for administrative services. On appeal conservator contends that the court erred in 1) differentiating between his professional and non-professional services and compensating for these services at different rates, 2) finding that a just and reasonable rate for legal services was ninety dollars per hour, and 3) failing to make requested findings of fact and conclusions of law on material controverted issues. We affirm.

Che-Brielle Walker, a minor, obtained a settlement in a medical malpractice suit. The judge then sitting in the probate division of the circuit court insisted that an attorney be appointed as conservator. The minor’s mother and the minor’s attorney in the malpractice case selected attorney Anthony B. Ramirez (conservator) from a list of attorneys experienced in probate matters to act as conservator for the minor’s estate. Conservator then petitioned the court that he be appointed. On December 3, 1991 the court issued letters of conservatorship to conservator for the care and custody of the minor’s estate.

In 1992 conservator filed a petition for compensation requesting $2,047.50 as fees for services, which included 19.2 hours for his time as an attorney at $90.00 per hour and 7.1 hours for his legal assistant at $45.00 per hour. The court allowed the amount requested. In 1994 conservator filed an amended petition for compensation requesting $13,700.75 as fees for services, which included 79.155 hours of his time at a rate of $125.00 per hour and 63.45 hours of his legal assistants’ time at $60.00 per hour. The court allowed $9,978.75 which reflects an allowance of $90.00 per hour for the conservator’s time and $45.00 per hour for the legal assistants’ time.

On May 20, 1997 conservator filed a petition for compensation requesting $14,-978.25 as fees for services, which included 70.65 hours of his time at a rate of $125.00 per hour, 42.35 hours of another lawyer’s time at $90.00 per hour, and 51.90 hours of his legal assistants’ time at $45.00 per hour. The court allowed $7,611.75 for all of these services. Conservator filed a motion for rehearing. In September, 1997 the court heard the testimony on conservator’s motion. Three attorneys who represent fiduciaries in probate matters testified to their hourly rates and the hourly rates of other attorneys in the same field, and one testified to the hourly rate allowed by the court in another case. They each gave an opinion that conservator’s claim was reasonable and that the work conservator performed was in the nature of an attorney’s work.

At the hearing conservator gave the court affidavits of the minor’s mother and the minor’s attorney in the medical malpractice claim. In her affidavit, the minor’s mother gave background information and consented to the payment of conservator’s fee. The minor’s medical malpractice attorney gave background information about the proceedings leading up to conservator’s appointment. Conservator later filed an affidavit of one of the attorneys who had testified, in which the attorney argued, without citation to legal authority, that an attorney-conservator should be paid that attorney’s professional rates for all time expended as a conservator.

Conservator testified to the circumstances surrounding his appointment, the nature of the work he did for the estate, and his information that other attorneys had been compensated at $110.00 per hour by the court. Six months later conservator filed two exhibits, a copy of Missouri Supreme Court Rule 4-1:5 and a copy of the 1997 Missouri Bar Economic Survey, and a request for findings of fact and conclusions of law.

The court subsequently issued an order and judgment finding its award of $7,611.75 was just and reasonable for the services in question. In its findings of fact, the court first found that $90.00 per hour was just and reasonable for normal legal services and $45.00 per hour was just and reasonable for administrative services. The court found that conservator’s exhibits revealed that conservator had personally expended only 45.9 hours (not 70.65 as requested), of which 16.8 hours were legal services and 29.1 hours were administrative services. It found that the other attorney’s time summaries revealed 17.5 hours of legal services and 24.85 hours of administrative services. It allowed $90.00 per hour for the time the two attorneys spent on legal services and $45.00 per hour for the time the two attorneys spent on administrative services. This allowance, with some other minor adjustments, resulted in the fee award of $7,611.75 which conservator now appeals.

1. Differentiation Between Legal and Administrative Services

For his first point conservator contends that the court erred in distinguishing his professional services from his non-professional services and in compensating for those services at different rates. He argues that all of the services he rendered should have been compensated at a professional rate because the court specifically requested that an attorney serve as conservator, it appointed an attorney to so serve, and, on two of his prior requests for compensation, the court had paid the professional rate for all of his services, and attorneys had testified to the nature of his legal work.

Compensation for services as a conservator is governed by Section 475.265 RSMo (1994), which provides:

A guardian or conservator shall be allowed such compensation for his services as guardian or conservator, as the court shall deem just and reasonable. Additional compensation may be allowed for his necessary services as attorney and for other necessary services not required of a guardian or conservator. Compensation may also be allowed for necessary expenses in the administration of his trust, including reasonable attorney fees if the employment of an attorney for the particular purpose is necessary. In all cases, compensation of the guardian or conservator and his expenses including attorney fees shall be fixed by the court and may be allowed at any annual or final accounting; but at any time before final settlement the guardian or conservator or his attorney may apply to the court for an allowance upon the compensation or necessary expenses of the guardian or conservator and for attorney fees for services already performed. If the court finds that the guardian or conservator has failed to discharge his duties as such in any respect, it may deny him any compensation whatsoever or may reduce the compensation which would otherwise be allowed. The court may consider ties of blood, marriage or adoption, in making allowances of compensation to guardians and conservators.

Section 475.265 commits the determination of a conservator’s compensation to the court. The allowance of fees falls within the court’s administrative authority and is within the court’s discretion. Accordingly, we review the court’s award of compensation under this statute solely for abuse of discretion. In re Switzer, 201 Mo. 66, 98 S.W. 461, 465 (1906).

Under this statute an attorney-conservator may be allowed additional compensation for necessary services rendered as an attorney that are not required of a conservator. 5C BorRon, Probate Law and Practice Section 2088, p. 194 (1992). “However, an attorney-conservator should not be paid at legal.rates for non legal services.” Id. at n. 3. The court may properly pay an attorney-conservator or the attorney for the conservator less than a professional rate where the services rendered do not involve legal questions and require no greater skill than that possessed by the ordinary business person. In re Steele’s Estate, 97 Mo.App. 9, 70 S.W. 1075, 1076 (1902). The same rule applies with respect to work performed by attorneys for decedents’ estates. See In re Estate of Bacheller, 437 S.W.2d 132, 140 (Mo.App.1968); In re Claus’ Estate, 167 S.W.2d 372, 374 (Mo.App.1943).

Conservator argues that the fact that the prior judge sitting in this division of the court insisted that an attorney serve as conservator meant that he was chosen for his professional expertise because he could provide more valuable service than a lay person and that his compensation should reflect that added value. Section 475.130.1 provides in part: “If a conservator of the estate has special skills or is appointed on the basis of representations of special skills or expertise, he is under a duty to use those skills in the conduct of the protectee’s affairs.” However, this statute does not require that a conservator, who is hired because he or she is also an attorney, is entitled to be compensated at professional rates for work which does not require those special skills.

Conservator also argues that the fact that the court allowed him the professional rate for all of his services on his two prior petitions for compensation requires the court to continue to do so. We disagree. It was within the court’s discretion to find that $90.00 per hour was a just and reasonable fee for conservator’s services as identified in those prior requests.

The trial court did not abuse its discretion in allowing conservator $90.00 an hour for legal services performed and $45.00 an hour for administrative services performed. Point one is denied.

2. Determination of Just and Reasonable Fees for Legal Services

Conservator next contends that the court erred in finding that a just and reasonable fee for conservator’s legal services was $90.00 an hour. Conservator argues that this is not a reasonable rate of compensation. He asserts that the court arbitrarily set a fee schedule, .ignored his evidence that attorneys who practice probate law in the metropolitan area charge from $125.00 per hour to $175.00 per hour, did not take into account the proper factors for determining a reasonable fee, and did not take into account the fact that the minor’s mother consented to the fee of $125.00 per hour. We disagree that the court abused its discretion in determining that $90.00 per hour was just and reasonable for the legal services conservator rendered to this estate.

Section 475.265 RSMo (1994) provides that the court shall allow such compensation for services to a conservator as it shall deem just and reasonable. This compensation is to be based upon “ ‘all circumstances of the guardianship, inelud-ing the size of the estate, the productiveness of the estate, the disbursements from the estate, the nature and difficulty of the services performed, and what is a customary charge for similar services in the community.’ ” Houston v. Zaner, 683 S.W.2d 277, 280 (Mo.App.1984) (quoting 5 Maus, Probate Law and Practice, Section 1969, pp 319-320). See also 5C BORRON, supra, Section 2088, p. 194.

In this case, the court had before it conservator’s detailed billing sheets showing time spent and services performed for the estate. Conservator presented evidence of the size and productiveness of the estate, the disbursements from the estate, and the nature and difficulty of the services performed. Several probate attorneys testified to their customary charges and the charges in the community. The court, however, has the ultimate duty to determine under the individual facts of each case what a reasonable and just fee is in light of all of these factors. It, too, is an expert on the nature and value of attorney’s fees and is not bound by the conservator’s evidence of prevailing fees, other attorneys’ opinions of what is a reasonable fee, or the consent of the minor’s family. “[Cjourts are themselves experts on the question of attorneys’ fees and the judge who personally tries a case and is acquainted with all the issues involved is in a position to fix the amount of attorneys’ fees without the aid of evidence.” Jafarian-Kerman v. Jafarian-Kerman, 424 S.W.2d 333, 340 (Mo.App.1967). From its own files, the proceedings on the case, and its experience in this area, the court could evaluate all of the relevant factors and determine what a reasonable and just fee was for this specific case.

The court did not abuse its discretion in determining $90.00 per hour to be “just and reasonable” for conservator’s professional services in this case. Point two is denied.

3. Requested Findings of Fact

For his third point conservator contends that the court erred by not making findings of fact or conclusions of law on every issue identified in conservator’s request. Conservator argues that Rule 73.01(a)(3) requires the court to make each of the findings conservator requested. We . disagree.

Assuming for the purposes of this argument that the court had an obligation in this case to make findings of fact upon specific request, it was only required to enter findings on controverted fact issues. McMickle v. McMickle, 862 S.W.2d 477, 483 (Mo.App.1993). In this case conservator sought findings of fact on many issues which were not controverted, would not control the outcome, were open ended and not specific, or were not fact issues. Findings are not required in these situations. Id. at 483-84.

The court issued a three-page judgment which contained findings of fact. It recited the background facts leading to the creation of the minor’s estate and the selection and appointment of conservator. It addressed conservator’s 1997 petition for compensation. It recited that the court had reviewed the exhibits detailing the services, divided the services into two categories, professional and administrative, determined the rates it deemed just and reasonable for the two categories of work, and determined the number of hours it deemed applicable to legal services and the number of hours it deemed applicable to administrative services. The court incorporated and attached conservator’s billing exhibits which the court had marked up to show, for every item billed by the two attorneys, how much time it determined was legal and how much time it determined was administrative. It totaled the hours in each category and multiplied the hours by the applicable rates. The court’s findings allow full appellate review of the issues raised on appeal. See McMickle, 862 S.W.2d at 484. Point three is denied.

The judgment is affirmed.

LAWRENCE E. MOONEY, J. and SHERRI B. SULLIVAN, J., concur.

      . Conservator agrees that 45.9 hours is correct.

      . Conservator does not explain why Rule 73.01(a)(3) applies to his motion for reheáring in the probate division of the circuit court or to his petition for payment under the probate code. The civil rules are not generally applicable to actions governed by the probate code, Rule 41.01(a)(2), and Rule 73.01(a)(3),(b) is not among the exceptions. Rule 41.01(b). The court did not order that Rule 73.01(a)(3) be made applicable to this proceeding. Conservator does not cite a statute or other basis for making either Section 510.310 RSMo (1994) or Rule 73.01(a)(3) specifically applicable to this proceeding. See discussion in In re Estate of Desterbecque, 800 S.W.2d 142, 145-147 (Mo.App.1990); 1 Mo. Estate Administration Section 1.15 (Mo. Bar 4th Ed.1999).