author: KENNETH W. SHRUM, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. John R. CAROLLO, Defendant-Appellant.
    No. 26365.
    Missouri Court of Appeals, Southern District, Division Two.
    Aug. 30, 2005.
    Motion for Rehearing and Transfer Denied Sept. 21, 2005.
    Application for Transfer Denied Nov. 1, 2005.

      Kent Denzel, Columbia, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Ronald S. Ribaudo, Jefferson City, for Respondent.
   KENNETH W. SHRUM, Presiding Judge.

A jury convicted John Carollo (“Defendant”) of second degree murder (§ 565.021) and armed criminal action (§ 571.015). He was sentenced to concurrent terms of life in prison for the murder conviction and twenty years’ imprisonment for the armed criminal action charge. In his only point on appeal, Defendant alleges the trial court erred when it overruled his motion to suppress and admitted into evidence over his objection a statement he made to the police. We affirm.

STANDARD OF REVIEW

“At a suppression hearing, the State bears both the burden of producing evidence and the risk of nonpersuasion to show by a preponderance of the evidence that the motion to suppress should be overruled.” State v. Bradshaw, 99 S.W.3d 73, 76[2] (Mo.App.2003). In reviewing a trial court’s ruling on a motion to suppress, the appellate court considers the record made at the suppression hearing as well as the trial testimony. State v. Haldiman, 106 S.W.3d 529, 533[4] (Mo.App.2003).

Appellate review is limited to a determination of whether substantial evidence exists to support the trial court’s ruling. State v. West, 58 S.W.3d 563, 567[1] (Mo.App.2001). “All facts and reasonable inferences therefrom are to be reviewed in the light most favorable to the order.” State v. Shifkowski, 57 S.W.3d 309, 316[11] (Mo.App.2001). The trial court’s decision will be reversed only if it is clearly erroneous, leaving this court with a definite and firm impression that a mistake has been made. Haldiman, 106 S.W.3d at 533[2].

FACTS

On the morning of May 5, 2001, Defendant and Walter Champion walked into a liquor store in Springfield, Missouri, to buy some beer. Being transient or homeless, the pair typically “hung out” near the store. Another frequent patron of the store was Gilbert Warnick (“Victim”). On that day, all three congregated around the store.

In his videotaped statement to the police, Defendant claimed that Champion and Victim began arguing (as they often did) which escalated to a physical altercation. Defendant tried to break up the fight by separating the combatants. At that point, Victim attempted to attack Defendant and strike him with a rock. To protect himself, Defendant claimed that he first struck Victim with a rock. As Victim was on the ground, Defendant picked up a larger rock and slammed it down on Victim’s head. Defendant then hitchhiked from the area, but Champion remained in the vicinity.

The second rock Defendant used against Victim was actually a piece of concrete weighing 25 to 30 pounds. At 5:45 P.M., Champion went to the liquor store to get help in contacting the police. The evidence indicated that Champion had waited a period of time before reporting the murder.

The condition of Victim’s body was described as being “massively beaten.” The doctor who performed the autopsy opined that Victim suffered a minimum of “eight blows.” The fatal injury was described as follows: Victim’s head was lying flat on the ground and a large amount of force was exerted on the left side of his head causing a blowout to the back of the skull. This was consistent with a large piece of concrete “being dropped down or thrown down” on Victim’s head from the left side. The force that caused the damage was so great that it is “most frequently seen in car wrecks, and ... falls from great heights.”

Almost one year later, Defendant was arrested in Denver, Colorado, for Victim’s murder. Detective Allen Neal traveled to Denver to interrogate Defendant in conjunction with the murder investigation. Once there, Detective Neal interrogated Defendant twice. Prior to the first interrogation, Neal read Defendant his Miranda rights which he voluntarily waived. Defendant denied killing Victim in this first interrogation, which lasted approximately one hour and twenty minutes, ending at 10:30 A.M.

Then, Defendant agreed to take a polygraph examination. Prior to this test, Defendant was asked to sign a waiver of rights form provided by the Denver police. Defendant argues that this form failed to inform him that he had a right to counsel before making a statement, a right to counsel during questioning, and a right to stop the interrogation at any time to talk to an attorney. After the polygraph, Defendant requested to speak with Neal again because he “wanted to tell [Neal] the truth about what happened.”

Prior to the second interview, Neal told Defendant that he still had the “same rights” as he had prior to the polygraph test. During this second interrogation, Defendant related that he struck Victim twice with rocks or concrete. This forty-five minute interrogation ended at approximately 1:00 P.M. Defendant was transported back to Missouri to stand trial for Victim’s murder.

At his criminal trial, Defendant employed two strategies: (1) he acted in self-defense and (2) that Champion repeatedly struck Victim, causing his death, after Defendant left the scene. The first was based on Defendant’s second statement to Neal indicating that Victim attacked him first and was going to attack again even after Defendant hit him once with a rock. The second strategy was based, in part, on the medical evidence indicating that Victim was hit multiple times (at least eight). From Defendant’s statement to Neal, i.e., he only hit Victim twice, the defense asked the jury to infer that Champion delivered the other blows and caused Victim’s death.

Defendant did not testify in his own behalf, and when questioned by the court about his decision, Defendant stated, “I think they’ve [the jury] heard my side of the story through the video [statement to Neal].” The jury rejected Defendant’s “story” and convicted him of second-degree murder and armed criminal action. This appeal followed.

DISCUSSION AND DECISION

In his sole point on appeal, Defendant alleges the trial court committed reversible error when it overruled his motion to suppress and admitted into evidence over his objection the statements he made to Neal during the second interrogation. He claims that this evidentiary ruling violated his state and federal constitutional rights against self-incrimination because Defendant “was not properly advised of his [Miranda] rights before making the statements.”

To further explain, Defendant makes no argument that Neal did not comply with the requirements of Miranda before the first interrogation. He argues that Neal failed to comply with Miranda before the second interview because he told Defendant that he (Defendant) had only the “same rights” that were explained to him prior to the polygraph test. These rights were contained on a form that, Defendant claims, did not include a warning that he had a right to counsel before making a statement, a right to counsel during questioning, and a right to stop the interrogation at any time to talk to an attorney. As such, Defendant argues that the statements must be suppressed for the failure to comply with Miranda.

The first reason Defendant’s argument must fail is that the statements were admissible. Defendant admits that Neal fully complied with the dictates of Miranda prior to the first interview. Because of this, Neal was not required to re-Mirandize Defendant before speaking with him. It is has been repeatedly held that Miranda warnings need not be given each time an accused is questioned or simply because there is a time delay between the interrogation and when the warnings were read. State v. Rodriguez, 877 S.W.2d 106, 110—111[13] (Mo.banc 1994); State v. Bailey, 714 S.W.2d 590, 593[4] (Mo.App.1986); State v. Woodward, 587 S.W.2d 287, 289[3] (Mo.App.1979).

The first interrogation began at approximately 9:00 A.M., immediately after Neal read Defendant his full Miranda rights; the second interrogation began at approximately 12:15 P.M. The three-hour plus time lapse did not require Neal to read Defendant his rights again. Neal could have begun questioning Defendant anew without saying anything about his Miranda rights. Consequently, Neal did more than the law required, i.e., ensuring Defendant still understood his rights and reviewing the Denver form, thus protecting Defendant’s rights to a greater extent. For these reasons, the statements were admissible.

Defendant’s real argument is that Neal told Defendant that he had only the rights contained in the Denver police waiver form. Essentially, Defendant argues that Neal implied that the rights explained to him before the first interrogation no longer applied, and the only rights Defendant enjoyed were those read to him before the polygraph test. When Neal returned for the second interview, he explained to Defendant that he still had the “same rights” as he had in the polygraph room. He never told Defendant that he had only these rights to the exclusion of any others explained to him before the polygraph test. Defendant was an educated man (2 years of college), and it is unreasonable to infer that he would believe that the only rights he had were those contained in the Denver form. We find nothing in the record to indicate Neal conveyed this message. We find Defendant’s characterization of the record to be without merit.

Defendant’s point also fails because of the reasonable trial strategy he employed. Before trial, he was essentially faced with two choices. He could seek to suppress the statements, and if successful, the State would arguably be left with little evidence to prosecute. Even if unsuccessful in this pursuit, he could properly object and take his chances on appeal if he truly believed the statements to be inadmissible. See, e.g., State v. McCullum, 63 S.W.Sd 242, 259-60 (Mo.App.2001).

His second option, however, was the one he chose. That option was to face the statements directly and craft a defense around them. From the opening statement, the defense acknowledged the statements and their truth, attempting to use them to its advantage. The statements provided Defendant with a self-defense claim (Victim was the attacker) and an argument that Champion committed the fatal blows, i.e., Defendant only struck the severely beaten Victim twice. Simply stated, Defendant cannot seek to utilize evidence in the pursuit of reasonable trial strategy, and then, turn around on appeal and claim that same evidence was inadmissible and prejudicial. See, e.g., State v. Collins, 163 S.W.3d 614 (Mo.App.2005), and cases cited therein. Point denied.

The judgment of convictions and sentences is affirmed.

BARNEY, J., and BATES, C.J., concur.

      . All statutory references are to RSMo (2000), unless otherwise indicated.

      . These three rights, however, were explained to Defendant prior to the first interview and were contained in the waiver form he signed at that time.


source: Caselaw Access Project

license: Public Domain

text:
    Willie V. JONES, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 26681.
    Missouri Court of Appeals, Southern District, Division Two.
    Aug. 31, 2005.
    Motion for Rehearing and Transfer Denied Sept. 22, 2005.
    Application for Transfer Denied Nov. 1, 2005.

      Willie V. Jones, Potosi, pro se.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Lacey R. Searfoss, Office of Atty. Gen., Jefferson City, for respondent.
   KENNETH W. SHRUM, Presiding Judge.

Willie V. Jones (“Movant”) seeks post-conviction relief via a Rule 29.15 motion after he was convicted of robbery in the first degree (§ 569.020). After an eviden-tiary hearing, the motion court entered extensive findings of fact and conclusions of law, denying the twelve claims Movant presented for relief. On appeal, Movant attempts to challenge most of those findings. Due to serious briefing deficiencies, this court declines to review Movant’s points relied on and dismisses the appeal. Appeal dismissed.

When a movant appeals the denial of a Rule 29.15 motion, the appellate brief shall comply with Rule 84.04. Rule 30.06; State v. Broseman, 947 S.W.2d 520, 524 n. 3 (Mo.App.1997). Although Movant appeals pro se, he is bound by the same standards of compliance with briefing principles as apply to attorneys. State v. Dodd, 944 S.W.2d 584, 587[4] (Mo.App.1997).

It should be noted that the Missouri Supreme Court has adopted the policy that, as a general rule, a case should be decided upon its merits rather than on technical deficiencies of a brief. Christeson v. State, 131 S.W.3d 796, 799 n. 5 (Mo.banc 2004). However, when a brief is so deficient that it fails to give notice to the appellate court and to the other party as to the issues presented, the brief impedes disposition on the merits, and the appeal may be dismissed. Id. This latter proposition is in harmony with Rule 30.20 which states, inter alia, “Allegations of error that ... are not properly briefed on appeal shall not be considered by the appellate court” except for certain errors not applicable here. Further, “plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.” Rule 30.20.

Additionally, these foregoing principles must be tempered by two elementary rules of appellate practice. The first is lifted from the seminal case of Thummel v. King, 570 S.W.2d 679 (Mo. banc 1978):

“It is not the function of the appellate court to serve as advocate for any party to an appeal.... When counsel [or pro se litigants] fail in their duty by filing briefs which are not in conformity with the applicable rules and do not sufficiently advise the court of the contentions asserted and the merit thereof, the court is left with the dilemma of deciding the case (and possibly establishing precedent for future cases) on the basis of inadequate briefing and advocacy or undertaking additional research and briefing to supply the deficiency. Courts should not be asked or expected to assume such a role.”

Id. at 686[9,10],

The second idea, which is extremely appropriate here, is the fact that the motion court’s judgment must be presumed correct, and the movant has the burden to establish error, via adequate points and arguments, warranting relief. State v. Landers, 969 S.W.2d 808, 812 (Mo.App.1998).

With the aforementioned in mind, we turn to Movant’s brief. In Points I through V, notwithstanding the fact that the points are utterly defective, we note that Movant is attempting to present for review alleged trial court errors. Nowhere in these points or arguments does Movant allege that his trial counsel was ineffective, i.e., the essence of a post-conviction claim. Alleged trial court errors must be raised on direct appeal and are not cognizable in post-conviction proceedings. Middleton v. State, 103 S.W.3d 726, 740[26] (Mo.banc 2003); Griffin v. State, 794 S.W.2d 659, 661 (Mo.banc 1990). Moreover, as best we can discern, these issues were never presented to the motion court for determination as an exception to the foregoing rule. As such, this court would have no jurisdiction to consider the alleged errors even if the general rule were relaxed. Wright v. State, 125 S.W.3d 861, 866[7] (Mo.App.2003). Consequently, Points I-V must be dismissed.

It appears that Movant’s main post-conviction claims are presented via his sixth point. The point is actually la-belled “Argument VI” and provides the following: “Appellant was denied post-conviction relief in the 29.15 proceedings with findings of facts and conclusions of law contrary to clearly established law.” The “point” then lists the various constitutional provisions that were allegedly violated.

Under this point, Movant presents five subpoints which appear to be his main contentions on appeal. These subpoints, however, are conclusory in that they merely state why trial counsel was allegedly ineffective. In no conceivable fashion could this court construe the points as challenging the findings of fact and conclusions of law of the motion court. The main point is obviously multifarious and defective. Moreover, the subpoints fail to (1) identify the trial court ruling being challenged, (2) state the legal reasons for the claim of reversible error, and (3) explain in summary fashion why those legal reasons support the claim of error. Consequently, nothing is preserved for appellate review. See State v. Hackler, 122 S.W.3d 132, 134[35] (Mo.App.2003); Warren v. State, 2 S.W.3d 128, 130 (Mo.App.1999).

Perhaps, if this were the only deficiency, this court would exercise its discretion to review for plain error under Rule 30.20. We decline to do so, however, because of the patent inadequacy of Movant’s arguments beneath the subpoints. He provides virtually no transcript citations in the argument sections. The law he provides is general at best, and he makes no attempt to show how the law applies to the facts of his case. Further, it does not appear that Movant even attempts to demonstrate how the motion court’s judgment was erroneous. In essence, Movant has found some general case law, cited it, and conclusorily asserted that his case fits within the general propositions. For this court to review Movant’s subpoints, we would have to don the hat of an advocate. This we will not do. Thummel, 570 S.W.2d at 686.

Although we generally desire to decide a case upon its merits, Movant’s brief is so deficient that it impedes the disposition of the merits. As such, this court dismisses the appeal. Christeson, 131 S.W.3d at 802 n. 5.

Movant’s appeal from the motion court’s judgment denying post-conviction relief is dismissed.

BARNEY, J., and BATES, C.J., concur.

      . All rule references are to Supreme Court Rules (2004), unless otherwise indicated. All statutory references are to RSMo (2000), unless stated differently.

      .One exception exists to this rule. When constitutional issues are not raised on direct appeal, the movant, in order to raise them in post-conviction proceedings, must show "exceptional circumstances that demonstrate these issues could not have been addressed in the direct appeal of his criminal case.” Griffin, 794 S.W.2d at 661[1]. Movant makes no such argument here.

      . For instance, Movant’s second subpoint reads: “Trial counsel failed to elicit testimony as to the exact amount of money stolen.”

      . As an example, Movant's "Claim I” states: "Trial counsel was ineffective for not filing a motion to suppress Movant’s letter." In the argument section, he never addresses the court's ruling on this point. The court found that there was no legal basis to suppress the letter. Movant provides no case law showing why the letter should have been suppressed. His conclusory assertions that reasons for suppression exist are utterly frivolous.


author: PHILLIP R. GARRISON, Presiding Judge.

text:
    HAULERS INSURANCE COMPANY, INC., Plaintiff-Respondent, v. Rodger P. WYATT, Sr. and Jerry Wyatt, d/b/a Wyatt’s Auto Sales, Rodger P. Wyatt, Jr., and Rhonda Meyer, Defendants, and Christopher Meyer, Defendant-Appellant.
    No. 25871.
    Missouri Court of Appeals, Southern District, Division One.
    Sept. 2, 2005.
    Motion for Rehearing or Transfer Denied Sept. 26, 2005.
    Application for Transfer Denied Nov. 1, 2005.

      Leonard P. Cervantes, Jennifer Sutt-moeller, Cervantes & Associates, St. Louis, for appellant.
    Jeffrey P. Hine, Kimberly S. Price, Os-burn, Hiñe, Kuntze, Yates & Murphy, LLC, Cape Giradeau, for respondent.
   PHILLIP R. GARRISON, Presiding Judge.

Haulers Insurance Company (“Haulers”) filed a declaratory judgment suit against Christopher Meyer (“Appellant”) and others to determine the applicable liability limits under an “Amended Garage Coverage Form” insurance policy (“the policy”) issued by it. On this appeal, Appellant contests the entry of a summary judgment in favor of Haulers. We affirm.

Rodger P. Wyatt, Jr. (“Wyatt”) was driving a vehicle owned by Wyatt’s Auto Sales when it collided with a motorcycle operated by Appellant and on which his wife, Rhonda Meyer (“Ms. Meyer”) was a passenger, causing injuries to both of them. Appellant filed a personal injury lawsuit against Wyatt, individually, and Jerry Wyatt and Rodger P. Wyatt, Sr., d/b/a Wyatt’s Auto Sales (“Wyatt’s Auto Sales”). Haulers had issued its policy to Wyatt’s Auto Sales providing automobile liability insurance coverage on the vehicle driven by Wyatt. Neither party contends that the vehicle driven by Wyatt at the time of the accident was not covered by the policy. Rather, the issue is the amount of applicable coverage.

The Amended Garage Coverage Form Declarations page of Hauler’s policy contained the following:

ITEM TWO
SCHEDULE OF COVERAGES AND COVERED AUTOS
This policy provides only those coverages where a charge is shown in the premium column below. Each of these coverages will apply only to those “autos” shown as covered “autos”. “Autos” are shown as covered “autos” for a particular coverage by the entry of one or more of the symbols from the COVERED AUTO Section of the Garage Coverage Form next to the name of the coverage. Entry of a symbol next to LIABILITY provides coverage for “garage operations.”

Under the Covered Autos section of the policy, the number “22” is the symbol for “Owned ‘Autos’ Only” and the number “27” is the symbol for “Specifically Described ‘Autos.’ ”

In describing the liability coverage for “ ‘Garage Operations’ — Other than covered ‘autos,’ ” the policy provided:

We will pay all sums an “insured” legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies caused by an “accident” and resulting from “garage operations” other than the ownership, maintenance or use of covered “autos.”
... Our duty to defend or settle ends when the applicable Liability Coverage Limit of Insurance — “Garage Operations” — Other than Covered “Autos” has been exhausted by payment of judgments or settlements.

The policy also described liability for “Garage Operations” — Covered “Autos” as:

We will pay all sums an “insured” legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies, caused by an “accident” and resulting from “garage operations” involving the ownership, maintenance or use of covered “autos.”
Our duty to defend or settle ends when the Liability Coverage Limit of Insurance — “Garage Operations” — Covered “Autos” has been exhausted by payment of judgments or settlements.

The policy also contains provisions concerning the limits of the insurance coverages. One section under “Limit of Insurance” is titled “Aggregate Limit of Insurance — ‘Garage Operations’ — Other than Covered ‘Autos’ ” and provides:

For “garage operations” other than the ownership, maintenance or use of covered “autos”, the following applies:
Regardless of the number of “insureds”, claims made or “suits” brought or persons or organizations making claims or bringing “suits”, the most we will pay for the sum of all damages involving “garage operations” other than “auto” is the Aggregate Limit of Insurance — “Garage Operations” — Other Than Covered “Autos” for Liability Coverage shown in the Declarations.
Damages payable under the Aggregate Limit of Insurance — “Garage Operations” — Other Than Covered “Autos” consist of damages resulting from “garage operations”, other than the ownership, maintenance or use of the “autos” indicated in Section I of this Coverage Form as covered “autos[J”
Damages payable under the Each “Accident” Limit of Insurance — “Garage Operations” — Other Than Covered “Autos” are not payable under the Each “Accident” Limit of Insurance — “Garage Operations” — Covered “Autos. ”
Subject to the above, the most we will pay for all damages resulting from all “bodily injury” and “property damage” resulting from any one “accident” is the Each “Accident” Limit of Insurance— “Garage Operations” — Other Than Covered “Autos” for Liability Coverage shown in the Declarations.
The Aggregate Limit of Insurance— “Garage Operations” Other Than Covered “Autos” applies separately to each consecutive annual period and to any remaining period of less than 12 months[.] (emphasis added).

Another section under “Limit of Insurance” is titled “ ‘Garage Operations’ — Covered ‘Autos’ ” and provides:

For “accidents” resulting from “garage operations” involving the ownership, maintenance or use of covered “autos”, the following applies:
Regardless of the number of covered “autos”, “insureds”, premiums paid, claims made or vehicles involved in the “accident”, the most we will pay for the total of all damages and “covered pollution cost or expense” combined, resulting from any one “accident” involving a covered “auto” is the Each “Accident” Limit of Insurance — “Garage Operations” — Covered “Autos” for Liability Coverage shown in the declarations. Damages and “covered pollution cost or expense” payable under the Each “Accident” Limit of Insurance — “Garage Operations” — Covered “Autos” are not payable under the Each “Accident” Limit of Insurance — “Garage Operations” — Other Than Covered “Autos.” (emphasis added).

The policy defines “accident” as “continuous or repeated exposure to the same conditions resulting in ‘bodily injury’ or ‘property damage.’ ”

Haulers filed a declaratory judgment suit against Wyatt and Wyatt’s Auto Sales as well as Appellant and Ms. Meyer, seeking a determination that its policy provided a single limit of $500,000 for the accident in question to satisfy both Appellant’s and Ms. Meyer’s claims arising from the accident. In his answer to that suit, Appellant contended that there was $1,500,000 coverage for the claims arising from the accident. Haulers and Appellant each filed motions for summary judgment. The trial court granted Haulers motion for summary judgment, and in its judgment, held that, as a matter of law, the policy language was unambiguous and provided a maximum total of $500,000 coverage for the accident in question. With reference to the contentions of Appellant, the court held that the $1,500,000 aggregate limit of coverage did not apply to an automobile accident involving a “covered auto.” This appeal followed.

Our review of a motion for summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment is proper when there is no genuine issue of material facts, and the moving party is entitled to a judgment as a matter of law. First Nat. Bank of Annapolis, N.A. v. Jefferson Ins. Co. of New York, 891 S.W.2d 140, 142 (Mo.App. S.D.1995). “The propriety of summary judgment is purely an issue of law.” ITT Commercial Fin. Corp., 854 S.W.2d at 376. “When considering appeals from summary judgments, the [appellate court] will review the record in the light most favorable to the party against whom judgment was entered.” Id.

In the first of his two points on appeal, Appellant contends that the trial court erred as a matter of law in granting Hauler’s motion for summary judgment thereby declaring that the applicable limits of its coverage was $500,000 rather than $1,500,000. He argues that the policy should be construed in favor of the policyholder because it is ambiguous with respect to the amount of coverage in three ways. First, the Amended Garage Coverage Form Declarations page identifies two amounts of coverage under the Liability/Coverages section — a limit “per accident” of $500,000 and a limit “other than auto only aggregate” of $1,500,000. Second, Appellant claims the policy is ambiguous because the terms “other than auto only,” “aggregate,” or “other than auto only aggregate” are not defined in the policy and are thus ambiguous. Third, in describing the limits of insurance, the policy contains no reference to “other than auto only.”

Whether an insurance policy is ambiguous is a question of law. Martin v. U.S. Fidelity and Guar. Co., 996 S.W.2d 506, 508 (Mo. banc 1999). When we interpret the language of an insurance policy, “we give the language its plain meaning, which is the meaning that would ordinarily be understood by a layperson who bought the policy.” Tapley v. Shelter Ins. Co., 91 S.W.3d 755, 757 (Mo.App. S.D.2002), When there is “duplicity, indistinctness or uncertainty in the meaning of the words used in the insurance policy,” there is an ambiguity. Id. Ambiguous provisions of an insurance policy are construed against the insurer. Am. Standard Ins. Co. of Wisconsin v. May, 972 S.W.2d 595, 602 (Mo.App. W.D.1998). However, this court will not distort unambiguous policy language to create an ambiguity. Am. Motorists Ins. Co. v. Moore, 970 S.W.2d 876, 878 (Mo.App. E.D.1998). An ambiguous phrase is not considered in isolation, but rather in the context of the entire policy. Am. Standard Ins. Co. of Wisconsin, 972 S.W.2d at 602.

Haulers argues that the policy is not ambiguous, and that Appellant’s interpretation of the policy is not supported by the policy language. It asserts that terms are not rendered ambiguous simply because they are not defined in the definitions section of the policy. Haulers argues that the term “other than auto only,” is clear in and of itself because the average person understands that an insurance policy covering garage operations would cover “matters related to automobiles and matters not related to automobiles,” hence the inclusion of the phrase “other than auto only.” Haulers also points out that the policy differentiates between accidents involving covered autos and accidents resulting from garage operations other than ownership, maintenance or use of a covered auto.

Although the policy provisions in question are not models of clarity, we do not find them to be ambiguous under the standards set forth above. The Amended Garage Form Declarations Page lists a “per accident” limit of $500,000 and an “other than auto only aggregate” limit of $1,500,000. The parties do not dispute that the automobile involved in the accident was covered by the policy. With reference to coverage for “ ‘Garage Operations’ other than covered ‘auto,’ ” set out above, the policy clearly describes it as damages “caused by an ‘accident’ resulting from ‘garage operations’ other than the ownership, maintenance or use of covered ‘autos.’ ” The same section also clearly describes the coverage for “ ‘Garage Operations’ — Covered ‘Autos’ ” as covering damages resulting from “ ‘garage operations’ involving the ownership, maintenance or use of covered ‘autos.’ ” Likewise, the policy also clearly describes what is meant by an aggregate limit in “Aggregate Limit of Insurance — ‘Garage Operations’ — Other than Covered ‘Autos’” as the most the company will pay for damages resulting from operations other than ownership, maintenance or use of covered autos. When these provisions are read together, it is clear that the policy language “other than auto only aggregate” means that there is a $1,500,000 aggregate limit for accidents that do not involve the ownership, maintenance or use of a covered automobile and that “[o]ther than auto only” refers to accidents not involving a covered automobile. “Aggregate” is not an unusual or technical word, and it is not used as such in the policy.

While we have not been directed to, nor has our research revealed, a Missouri case on point, our decision finds support in the South Carolina case of George v. Empire Fire and Marine Ins. Co., 336 S.C. 206, 519 S.E.2d 107 (1999), which interpreted a policy similar to that in the instant case. In George, an accident occurred involving an automobile covered by a garage operations insurance policy. 519 S.E.2d at 109. That policy defined “Garage Operations” with essentially the same language as in the policy under consideration in this case. Id. at 111. The declarations page of the George policy designated, by numerical code, what were “Covered Autos” under the liability coverage. Id. It also subdivided the coverage amounts for liability arising from garage operations into two categories: the statutory minimum of 15/30/5 for “auto only,” and $1,000,000 for “other than auto only.” Id. The trial court’s entry of summary judgment declaring that the policy provided for $1,000,000 in coverage was reversed by the South Carolina Court of Appeals. The appellate court held that the accident was properly classified as “Garage Operations,” but “must be further subclassified as ‘Auto Only’ because liability under the policy arose solely because of the ownership, maintenance, or use of a ‘covered auto,’ ” thus limiting the coverage to the statutory minimum. Id. at 112.

In George, the trial court had also held that the policy was ambiguous because the terms “auto only” and “other than auto only” were not specifically defined in the policy. Id. The appellate court held, however, that the policy was not ambiguous, reasoning that the declarations page only extends liability coverage to certain covered autos that were listed by numerical references on the declarations page; “the only reasonable interpretation of ‘Garage Operations — Auto Only” is ‘Garage Operations — Covered Autos,’ because the declarations page limits liability coverage to ‘Covered Autos.’ ” It said:

It would be illogical to read the policy so as to classify an accident involving the use of only a covered automobile as “Garage Operations Other than Auto Only.” The policy’s use of the term “Auto Only” clearly means “Covered Autos.” To interpret the policy otherwise would attempt to extend coverage to non-covered autos which clearly was not intended by any of the parties. The policy is not ambiguous.

Id. at 113.

The accident in this case involved the use of a covered automobile. Therefore, the $1,500,000 aggregate coverage for “other than auto only AGGREGATE” does not apply. Hence, the “per accident” limit of $500,000 is the applicable liability limit. Appellant’s first point is therefore denied.

In his second point relied on, Appellant alternatively claims that the trial court erred in granting Hauler’s motion for summary judgment because the insurance policy is clear on its face in that the declarations page provides for $1,500,000 in coverage for the claims of Appellant and Ms. Meyer. Appellant asserts that the limits contained in Hauler’s Declarations page should govern because the Limit of Insurance — “Garage Operations” — Covered “Autos” does not reflect a different intention than that expressed on the Declarations page and therefore, the “other than auto only aggregate” limit of $1,500,000 should apply.

In support of this contention Appellant cites Jackson v. Gen. Accident Ins. Co., 720 S.W.2d 428 (Mo.App. E.D.1986). In Jackson, the insurance policy in question listed a limit of $50,000 for underinsured motorists on its declarations page. Id. at 429. However, the limit of liability schedule in the policy was left blank. Id. The plaintiff contended that because the limits of liability were left blank on the schedule, there was no maximum limit of liability for underinsured motorist coverage. Id. The court found that there was no ambiguity in the policy and the limit on the declarations page controlled. Id. The court stated, “It is not reasonable to conclude that the blanks left in the Schedule section reflect a different intention than that clearly expressed on the Declarations page.” Id.

Appellant’s rebanee on Jackson is misplaced. If Jackson is at all relevant to this case, it stands for the proposition that the amount bsted on the declarations page can control. 720 S.W.2d at 429. However, the Amended Garage Coverage Form Declarations has two amounts bsted: $500,000 per accident and $1,500,000 other than auto only aggregate. Perhaps Jackson would offer support if the $500,000 per accident limit were not bsted on the policy declarations form. But that is not the case. Furthermore, we have already determined, in our discussion of Appellant’s first point, that the policy unambiguously provides for $500,000 in coverage per accident involving a covered automobile. Appellant’s second point is denied.

We affirm the motion court’s grant of summary judgment in favor of Respondent.

PREWITT and RAHMEYER, JJ., concur.

      . Ms. Meyer also filed a separate personal injury lawsuit against Wyatt and Wyatt’s Auto Sales.

      . Although Ms. Meyer contended in her answer to the suit against her that there was coverage in the amount of $1,500,000, she filed a motion for summary judgment claiming that there was $500,000 coverage for her claim and $500,000 for Appellant’s claim.

      . George also involved the issue of reformation of the policy language because of mutual mistake and an illegal provision under South Carolina law. Id. at 113-114. The appellate court found a genuine issue of material fact precluding summary judgment on the reformation issue. Id. at 115. The Supreme Court of South Carolina granted certiorari to determine the reformation issue only, and reversed. George v. Empire Fire and Marine Ins. Co., 344 S.C. 582, 545 S.E.2d 500, 502, 506 (2001). It did not disturb the appellate court’s finding on the interpretation issue. Id. at 501-506.


author: PER CURIAM.

text:
    Patti BRADY, Appellant, v. WAL-MART ASSOCIATES, INC., Defendant, Division of Employment Security, Respondent.
    No. WD 64583.
    Missouri Court of Appeals, Western District.
    Sept. 27, 2005.
    Patti Brady, Mayview, MO, pro se.
    Cynthia A. Quetsch, Jefferson City, MO, for respondent.
    Before NEWTON, P.J., LOWENSTEIN and BRECKENRIDGE, JJ.
   ORDER

PER CURIAM.

Patti Brady appeals the Labor and Industrial Relations Commission’s decision denying her claim for unemployment benefits. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment is affirmed. Rule 84.16(b).


author: KENNETH W. SHRUM, Judge.

text:
    In the Interest of V.F.S., V.F.S., Appellant, v. State of Missouri, Respondent.
    No. 26387.
    Missouri Court of Appeals, Southern District, Division Two.
    Sept. 27, 2005.

      Roscoe H. Miller, Carthage, for appellant.
    No brief filed for respondent.
   KENNETH W. SHRUM, Judge.

The juvenile division of the McDonald County circuit court (“juvenile court”) found V.F.S. guilty of delinquent conduct within the meaning of section 211.031.1C3). The juvenile court sustained the juvenile officer’s petition that alleged V.F.S. committed the class A misdemeanor of endangering the welfare of a child in the second degree (§ 568.050). V.F.S. appeals the juvenile court’s judgment. § 211.261; Rule 120.01. The sole issue on appeal is whether there was sufficient evidence to prove V.F.S. committed the alleged underlying crime. We reverse.

We will affirm a juvenile court’s judgment unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. In the Interest of D.M.Y., 892 S.W.2d 792, 793-94 (Mo.App.1995). In reviewing the sufficiency of the evidence, we view the evidence and the reasonable inferences drawn therefrom in the light most favorable to the judgment while disregarding all evidence and inferences to the contrary. N.J.K v. Juvenile Officer, 139 S.W.3d 250, 259[14] (Mo.App.2004).

The petition filed with the juvenile court alleged that, on March 30, 2004, V.F.S. committed the crime of second-degree child endangerment when he “delivered some over the counter pills to another student which in turn caused a drug overdose which resulted to an admission to the hospital for emergency treatment.” At the hearing on the petition, only one witness testified, Greg Leach. Leach was an assistant principal at the local high school at the time of this incident.

Leach’s testimony filled only four pages of transcript. He stated that, on March 30, a coach told him that a student (“Victim”) “told some girls he was under the influence of drugs, and was freaking out.” Eventually, Victim told Leach “he had gotten — that [V.F.S.] had given him some pills.” Leach called an ambulance and Victim was taken to the hospital.

V.F.S. told Leach: “Well, I gave him some — [Victim] gave me some money, I bought him some pills. I bought him Cori-cidin Cough & Cold and some Dramamine, and he took those this morning.” At the conclusion of Leach’s testimony, the attorneys presented arguments to the juvenile court.

V.F.S.’s lawyer moved for dismissal of the petition because the juvenile officer failed to prove (1) Victim was under seventeen years of age, (2) V.F.S. knew Victim’s age, and (3) V.F.S. was aware that giving Victim over-the-counter medication would harm him. The juvenile officer’s attorney responded as follows:

“Judge, I think just by the act of this — the Defendant asking for money to go buy drugs implies the fact that he knew this kid was going to take a bunch of drugs. And, very possibly, it goes from there that the logical progression of fact is that this Md is going to take a bunch of drugs and he very possibly could overdose. I think we have carried our burden of proof.”

The judge ended the colloquy by saying: ‘Well, I don’t know how you can’t see if somebody asks you for drugs and you go buy some that theyre not going to rub them in their armpit, they’re going to take them.” Thereon, the court sustained the juvenile officer’s petition.

In its “Order and Judgment of Disposition Regarding Delinquency/Status,” the court noted it previously assumed jurisdiction over V.F.S. pursuant to section 211.031.1(3), i.e., the juvenile officer alleged V.F.S. violated a state law, namely, second-degree child endangerment (§ 568.050.1(2)). To adjudicate V.F.S. delinquent, the juvenile officer was required to adduce sufficient proof that he committed the underlying offense. C.L.B. v. Juvenile Officer, 22 S.W.3d 233, 236-37 (Mo.App.2000); T.L.G. v. Juvenile Officer, 900 S.W.2d 239, 241 (Mo.App.1995).

A person commits the crime of endangering the welfare of child in the second degree if he or she “knowingly encourages, aids or causes a child less than seventeen years old to engage in any conduct which causes or tends to cause the child to come within the provisions of [section 211.031.1(2)(d)].” § 568.050.1(2). Under section 211.031.1(2)(d), the juvenile court of a county retains exclusive jurisdiction over a child in that county who is found to be in need of care and treatment because “[t]he behavior or associations of the child are otherwise injurious to his or her welfare or to the welfare of others.”

One element of the crime of second-degree child endangerment is proof that the accused actually knew that the child was under the age of seventeen. State v. Hopkins, 873 S.W.2d 911, 912 (Mo.App.1994). From this, it necessarily follows that another element requiring proof is that the child was actually under the age of seventeen.

Here, the most that can be said about Victim’s age is that he was in high school. This fact does not prove that Victim was under the age of seventeen. Moreover, there is absolutely no evidence indicating that V.F.S. knew Victim’s age. Due to this failure of proof, the judgment must be reversed. Id.

The judgment of the juvenile court is reversed and V.F.S. is ordered discharged from the effects of that disposition.

BATES, C.J., and GARRISON, J., Concur.

      . All statutory references are to RSMo (2000), unless indicated otherwise.

      . All rule references are to Supreme Court Rules (2004), unless stated differently.


author: ROBERT S. BARNEY, Judge.

text:
    Robert C. HARLING, Appellant, v. STATE of Missouri, Respondent.
    No. 26838.
    Missouri Court of Appeals, Southern District, Division Two.
    Sept. 29, 2005.

      Amy M. Bartholow, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, for respondent.
   ROBERT S. BARNEY, Judge.

Appellant Robert C. Harling (“Movant”) appeals from the motion court’s denial without an evidentiary hearing of his amended motion to vacate, set aside or correct judgment and sentence filed pursuant to Rule 24.035. On appeal, Movant maintains that his guilty plea to the charge of first degree robbery, a violation of section 569.020.1(4), was invalid in that there was an inadequate factual basis upon which to find that he “threatened the use of what appeared to be a deadly weapon or dangerous instrument.” We affirm the judgment of the motion court.

On September 20, 2000, Movant was charged by Felony Information with committing the class A felony of robbery in the first degree in that he “forcibly stole U.S. currency and Missouri Lottery tickets in the charge of [gas station clerk] Teressa Prince, and in the course thereof [Movant] threatened the immediate use of what appeared to be a deadly weapon or dangerous instrument.”

On October 5, 2001, Movant appeared before the plea court in order to plead guilty to the aforementioned charge. In establishing the factual basis for Movant’s guilty plea, the State asserted that on July 4, 2000, Movant entered “the Express Lane convenience store at 1821 West Grand in Springfield, Greene County, Missouri.” Movant approached the clerk, who “noticed that [Movant] had his hand down the front of his pants as if he were holding a weapon ...,” and “told her this was a robbery, would she like to make it a homicide.” After informing Movant that he could take whatever he wanted from the store as long as he did not hurt her, the clerk was able to flee from the building and contact the police. When the police arrived, they apprehended Movant at the scene and found on him “some lottery tickets, cash, and also the purse that belonged to [the clerk].” Movant agreed that the facts as recited by the State were correct. Movant also acknowledged that he had been advised of all of his constitutional rights; that he understood his rights; and that he and his attorney had discussed the case at length.

Thereafter, the plea court accepted Mov-ant’s guilty plea; found that Movant understood the nature of the charges against him; that he understood the consequences of entering his plea; and that his plea was entered voluntarily.

On December 21, 2001, Movant was sentenced to seventeen years imprisonment with the execution of that sentence suspended pending Movant’s compliance with the terms of his probation, which included his placement in Talbot House, a mental health treatment facility.

Subsequently, the plea court was notified on June 12, 2002, that Movant had violated one of the terms of his probation by being terminated from treatment at Talbot House and, accordingly, Movant’s probation was revoked on November 7, 2002. Execution of his originally imposed sentence followed.

Movant filed a pro se Rule 24.035 motion on February 13, 2003, and his court appointed counsel filed an amended Rule 24.035 motion on May 21, 2003. In dismissing Movant’s amended motion without an evidentiary hearing, the motion court found there was a sufficient factual basis upon which to premise Movant’s conviction. Specifically, the motion court found that “[a]ll that was necessary was the reasonable perception of a weapon” and that Movant’s threats aimed at the gas station clerk were sufficient to prove that he committed the crime of first degree robbery. This appeal followed.

Appellate review of the denial of a Rule 24.035 motion for post-conviction relief is limited to a determination of whether the motion court’s findings of fact and conclusions of law are clearly erroneous. Rule 24.035(k); Ross v. State, 48 S.W.3d 667, 669 (Mo.App.2001). “The findings and conclusions are deemed erroneous if after reviewing the record, this [C]ourt is left with the definite and firm belief that a mistake has been made.” Saffold v. State, 982 S.W.2d 749, 752 (Mo.App.1998). We presume that the motion court’s findings and conclusions are correct. Butts v. State, 85 S.W.3d 132, 134 (Mo.App.2002).

Rule 24.035 provides that a movant will receive an evidentiary hearing unless “the files and records of the case conclusively show that the movant is entitled to no relief....” Rule 24.035(h). In order for a Rule 24.035 movant to be entitled to an evidentiary hearing, the movant must satisfy three requirements: “(1) he must allege facts and not conclusions, which, if true, would warrant relief; (2) the allegations must not be refuted by the record; and (3) the matters of which he complains must have resulted in prejudice to his defense.” Azbell v. State, 144 S.W.3d 863, 869 (Mo.App.2004). “The motion court need not conduct an evidentiary hearing if it determines ‘the motion and the files and records of the case conclusively show that the movant is entitled to no relief.’ ” Copas v. State, 15 S.W.3d 49, 55 (Mo.App.2000) (quoting Rule 24.035(h)).

Rule 24.02(e) provides that “[t]he court shall not enter a judgment upon a plea of guilty unless it determines that there is a factual basis for the plea.” Prior to accepting a plea of guilty, the trial court must “determine facts which defendant admits by his plea and that those facts would result in defendant being guilty of the offense charged.” Hoskin v. State, 863 S.W.2d 637, 639 (Mo.App.1993). “If the facts presented to the court during the guilty plea hearing do not establish the commission of the offense, the court should reject the guilty plea.” Carmons v. State, 26 S.W.3d 382, 384 (Mo.App.2000). “A defendant is not required to admit or to recite the facts constituting the offense in a guilty plea proceeding, so long as a factual basis for the plea exists.” Brown v. State, 45 S.W.3d 506, 508 (Mo.App.2001). The recital of a factual basis for the charge helps to ensure the guilty plea is knowing and voluntary. See Carmons, 26 S.W.3d at 384. This Court’s “focus ‘is on whether the plea was made intelligently and voluntarily [and not on] whether a particular ritual is followed or every detail explained.’” Daniels v. State, 70 S.W.3d 457, 461 (Mo.App.2002) (citation omitted). Furthermore, “[r]elief under [Rule 24.02(e)] is available only for an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice.” Schuerenberg v. State, 98 S.W.3d 922, 923-24 (Mo.App.2003). “Absent an abuse of discretion, this Court defers to the trial court’s determination as to whether a prisoner’s guilty plea was voluntary.” Jenkins v. State, 9 S.W.3d 705, 708 (Mo.App.1999).

Here, Movant contends the trial court failed to elicit a sufficient factual basis to prove that he “threatened the use of what appeared to be a deadly weapon or dangerous weapon.” Movant cites State v. Reed, 670 S.W.2d 545 (Mo.App.1984), in support of his contention that having one’s hand in one’s pocket during a robbery without additional evidence is insufficient to support a conviction for first-degree robbery. Id. at 547. However, Reed is distinguishable from the facts of the instant case.

In Reed, the perpetrator neither stated he had a weapon nor did the victim infer he had a weapon. Indeed, the perpetrator in Reed made no gesture indicating possession of a weapon. However, “fflt is unnecessary for the victim of robbery in the first degree to assure that the perpetrator of the crime has the means to inflict serious injury or deadly harm.” State v. Archer, 814 S.W.2d 315, 317 (Mo.App.1991). “The fact that a victim perceives there to be a weapon that remains unseen is sufficient whether or not, in fact, such a weapon exists.” Id. “Whether or not the object that is perceived as a deadly weapon or dangerous instrument is in fact capable of producing harm is unimportant. ...” Id. “[T]he thrust of the robbery first degree statute is to encompass those situations where the victim is placed either in unusually great danger or fear of bodily injury.” State v. Humphrey, 789 S.W.2d 186, 189 (Mo.App.1990). It has long been held that section 569.020.1(4) “is concerned with the fear generated by that which may be neither a deadly weapon nor a dangerous instrument but which is utilized so as to give the appearance of being such.” Id.

We determine the factual basis laid by the State clearly showed that Movant made statements to the clerk indicating he possessed a weapon and threatened the victim with the immediate use of a dangerous instrument, i.e., “this is a robbery, would you like to make it a homicide.” Additionally, Movant “had his hand down the front of his pants,” thereby appearing to be concealing a dangerous instrument or a deadly weapon, such that he threatened to turn a simple robbery into a homicide. The fact that no actual weapon was recovered is inconsequential as is the fact that Movant did not actually harm the store clerk. He threatened the life of the clerk and acted as if he was holding a gun or other weapon in his pants. There was a sufficient factual basis established at the plea hearing to support Movant’s subsequent conviction and sentence for the crime of robbery in the first degree. Mov-ant’s guilty plea was knowingly and voluntarily entered in the plea court and the motion court, in denying Movant’s request for an evidentiary hearing, was correct in finding that his Rule 24.035 motion was “refuted by the record.”

The judgment of the motion court is affirmed.

GARRISON, J., and BATES, C.J., concur.

      . Unless otherwise stated, all rule references are to Missouri Court Rules (2004) and all statutory references are to RSMo 2000.

      . Section 569.020.1 states:
      A person commits the crime of robbeiy in the first degree when he forcibly steals property and in the course thereof he, or another participant in the crime,
      (1) Causes serious physical injury to any person; or
      (2) Is armed with a deadly weapon; or
      (3) Uses or threatens the immediate use of a dangerous instrument against any person; or
      (4) Displays or threatens the use of what appears to be a deadly weapon or dangerous instrument.


text:
    Cotenia LAMBERT, Plaintiff-Appellant, v. Richard HOLBERT, Defendant-Respondent.
    No. 26705.
    Missouri Court of Appeals, Southern District, Division Two.
    Sept. 29, 2005.

      Terry A. Tolbert, Tolbert, Beadle & Musgrave, LLC, Springfield, Thomas W. Rynard, Blitz, Bardgett & Deutseh, L.C., Jefferson City, for appellant.
    Timothy Mudd, The Mudd Law Firm, Kansas City, for respondent.
   KENNETH W. SHRUM, Presiding Judge.

This suit by Cotenia Lambert (“Plaintiff’) against Richard Holbert (“Defendant”) seeks damages allegedly caused by Defendant’s negligent use of a motor vehicle. After Defendant’s repeated failure to answer interrogatories — the last failure occurring despite an order that he file answers — the court (at Plaintiffs request) sanctioned Defendant by striking his pleadings and entering an “interlocutory order of default.” Later, the court held a damage hearing. Following that hearing, the trial court awarded Plaintiff $100,000.

Three days after the money judgment was entered, Defendant moved to set it aside. In part, Defendant relied on Rule 74.06(b) to support his request. The court found Defendant had not been given notice of the two hearings that preceded the judgment; accordingly, it sustained Defendant’s motion to set aside the judgment. Plaintiff appeals. We affirm.

STANDARD OF REVIEW

We review a judgment that has been based on Rule 74.06(b) for an abuse of discretion. Estep v. Atkinson, 886 S.W.2d 668, 675 (Mo.App.1994). “[JJudicial discretion is abused when a trial court’s ruling is clearly against the logic of the circumstances then before it and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” Id. at 675[7]. “Questions of law, however, are reviewed de novo.” State v. Cook, 104 S.W.3d 808, 811[5] (Mo. App.2003).

FACTS AND PROCEDURAL HISTORY

Plaintiff filed her petition on November 3, 2003. She alleged Defendant negligently followed too close, that he rear-ended her vehicle, and she was injured and damaged thereby. Defendant’s answer, filed December 1, denied any negligence on his part.

The parties then exchanged discovery requests (interrogatories and production of documents) and apparently both parties filed timely responses. On May 24, 2004, Plaintiff filed a second set of interrogatories. Defendant did not answer within the time prescribed by Rule 57.01, nor did he answer after Plaintiffs lawyer wrote letters requesting compliance.

Finally, on September 1, 2004, Plaintiff moved for an order compelling discovery. In part, Plaintiff’s motion asked “that the Court intervene and order that the discovery be answered and responded to.” The motion’s prayer for relief was that the court enter an order compelling Defendant to answer within twenty days. Moreover, the motion sought an order striking Defendant’s pleadings.

The court heard Plaintiffs motion to compel discovery on September 14, 2004. It sustained that motion and ordered Defendant to respond within twenty days. No ruling was made on the part of Plaintiffs September 14 motion that sought sanctions.

When Defendant still did not answer or respond — despite the court order — Plaintiff filed a second motion in which she again asked that Defendant be sanctioned. This motion was filed October 15, 2004. In it, Plaintiff asked the court to strike Defendant’s pleadings and for an interlocutory default judgment. The October 15 sanctions motion was noticed up for hearing on October 26, 2004. A certificate of service on this motion recited that it was sent to Defendant’s lawyer, Tim Mudd (“Mudd”).

The hearing was held October 26, per the notice, but neither Defendant nor his lawyer appeared. Thereon, the court entered a “judgment and interlocutory order of default” in which it struck Defendant’s pleadings and ruled for Plaintiff as a sanction for Defendant’s failure to comply with the discovery order.

On November 1, 2004, the trial judge scheduled a damage hearing for November 23. A docket entry on that date directed Plaintiffs attorney to notify “any other parties.” On November 4, 2004, a docket entry was made that rescheduled the damage hearing for November 9. Again, the court directed Plaintiffs lawyer to notify “the other parties.”

The damage hearing was held November 9, 2004, but neither Defendant nor his lawyer appeared. After hearing evidence, the trial court entered judgment for Plaintiff. The judgment incorporated the interlocutory order and awarded Plaintiff damages of $100,000.

On that same date (November 9), the court faxed a copy of the judgment to Mudd. Three days later, Mudd filed a motion to set aside the judgment, claiming (among other things) that the judgment was irregular or void under Rule 74.06(b). As a basis for his argument, Mudd claimed (via sworn affidavit) that he never received a copy of Plaintiffs October 15, 2004, sanctions motion, i.e., the one where Plaintiff asked for an order striking Defendant’s pleadings and an interlocutory default judgment. Mudd further swore that he never received notice of the October 26 hearing or the November 9 hearing. At the “motion to set aside judgment” hearing, Mudd reaffirmed these claims of lack of notice, again by sworn testimony.

In ruling on Defendant’s motion, the trial judge stated:

“I will remind Mr. Tolbert [Plaintiffs lawyer] that, that this surprised me that a notice was sent and that Mr. Mudd was not here on that Motion for Sanctions because he’s been in this court many, many times. He’s always prompt and present when he’s supposed to be here. And if there’s something that comes up he’s quick to call if he’s in Kansas City and can’t get here to let us know he won’t be here on a certain date.
“And I suspected we’d be right in here and told you so that we’d be right in here doing this because that’s not like Mr. Mudd and I don’t think he would, would ignore that. If he got the notice he would be here or deal with it in some way.
“And whether there were answers overdue or responses to production overdue or anything like that with a trial setting in June of next year ... I’m quite confident in my own mind just knowing you Mr. Mudd that you would have been here taking care of this thing had you gotten notice.
“So I don’t believe that notice was ever received by Mr. Mudd to be here. And as I expressed to Mr. Tolbert in open court, we’d be back here just like this for me to be setting it aside and so that’s what I intend to do is to set aside both the judgment on November 9 and also the interlocutory judgment on October 26.”

The judge then sustained Defendant’s motion to set aside the judgment. In doing so, the court did not disclose the basis for its decision. Plaintiff appeals.

DISCUSSION AND DECISION

Plaintiff’s second point maintains the trial court abused its discretion if it used Rule 74.06(b) to set aside the judgment because “Defendant had appropriate notice and opportunity to defend against the sanctions imposed, and the Defendant was not prejudiced by any lack of notice of the hearing on damages.” The essence of Plaintiffs argument is that Defendant had adequate notice because he was notified via the September 1 motion and the trial court’s September 14 order that (1) Plaintiff had filed a motion to compel discovery, (2) the motion sought sanctions under Rule 61.01 if Defendant failed to comply, and (3) the court ordered him to comply within twenty days.

Rule 61.01 provides for various sanctions if a party to a lawsuit fails to comply with appropriate discovery requests. Generally, “[i]f a party fails to answer interrogatories ... the court may, upon motion and reasonable notice to other parties, make such orders in regard to the failure as are just.” Rule 61.01(b) (emphasis supplied). For instance, a court is authorized to issue “[a]n order striking the pleadings or parts thereof ... or render a judgment by default against the disobedient party.” Rule 61.01(b)(1).

Here, Plaintiff initially tried to have Defendant sanctioned for discovery rule violations when she filed her September 1, 2004, motion for an order compelling discovery. Although this motion included a request that Defendant’s pleadings be stricken, the court never ruled that part of the motion. It merely ordered Defendant to make discovery within twenty days. Whether the trial court intended to overrule that part of Plaintiffs September 1 motion that requested sanctions, or whether its failure to rule that part of the motion was merely an oversight, is unanswered by this record. Arguably, the trial court’s failure to rule that part of Plaintiff’s motion constituted a denial. See Sturgis v. Sturgis, 663 S.W.2d 375, 384[17] (Mo.App.1983).

In any event, it is clear that the request for sanctions as contained in the September 1, 2004, motion was never revisited, nor was that motion the basis for the sanction that was ultimately imposed. When Plaintiff and her lawyer appeared in court for the sanction hearing held on October 26, 2004, they — and the trial court— took up the sanction motion filed October 15, 2004. This is the motion that Defendant’s lawyer swore he never received; an averment that the trial judge found to be true. By proceeding in this fashion, Plaintiff waived or abandoned any claim of entitlement to sanctions under its September 1 motion — the one that Defendant admittedly knew about — and ultimately obtained a judgment via a proceeding held without notice to Defendant. See Harrington v. Harrington, 153 S.W.3d 315, 319 (Mo.App.2005) (holding wife abandoned her attempts to seek sanctions against husband and husband was not placed on notice that those issues would be raised again by guardian ad litem).

A judgment entered without notice to an adversely affected party who has filed responsive pleadings can be set aside as irregular and voidable, if not inherently void, under Rule 74.06(b)(3)-(4). Kreutzer v. Kreutzer, 147 S.W.3d 173, 176 n. 6 (Mo.App.2004); Clark v. Clark, 926 S.W.2d 123, 128[5] (Mo.App.1996). This follows from several fundamental principles of law.

An irregular judgment is one rendered contrary to a proper result, i.e., it is materially contrary to established forms and modes of procedure for the orderly administration of justice. In re Marriage of Dooley, 15 S.W.3d 747, 753 n. 4[9] (Mo.App.2000). A judgment procured without complying with the notice and service requirements of the rules of civil procedure is irregular by definition, i.e., it is one achieved in a manner materially contrary to the law’s established procedures for the orderly administration of justice.

It has also been held that a judgment may be void if rendered in violation of the service requirements of Rule 43.01. Am. Econ. Ins. Co. v. Powell, 134 S.W.3d 743, 746[1] (Mo.App.2004). Other cases have held that the failure to give adequate notice results in a violation of that person’s due process rights, Cody v. Old Republic Title Co., 156 S.W.3d 782, 784[6] (Mo.App.2004), Powell, 134 S.W.3d at 746-47, and “[a] violation of a litigant’s due process rights results in a void judgment.” Baxi v. United Technologies Automotive, 122 S.W.3d 92, 96[9] (Mo.App.2003).

Here, Defendant alleged in his post-judgment motion that he never received a copy of Plaintiffs second motion for sanctions (filed October 15, 2004), nor did he receive notice of the two proceedings that followed, i.e., the October 26 and November 9 hearings relating to the October 15 sanctions motion. Mudd provided an affidavit to this effect and also testified to the lack of notice at the hearing to set aside the judgment. The trial court obviously believed Mudd, which was the court’s prerogative. We must defer to this factual determination. Cook, 104 S.W.3d at 811[4], Consequently, we find no abuse of discretion when the trial court chose to believe Mudd as this was not clearly against the logic of the circumstances and is not so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Estep, 886 S.W.2d at 675[7],

Once the trial court chose to believe Mudd’s testimony that he had no notice of either the October 15, 2004, filing, or the October 26, 2004, hearing or the November 9, 2004, hearing, the question of the proper remedy remained. Due to the lack of notice, the judgment entered here was either irregular or void. Kreutzer, 147 S.W.3d at 179 n. 6; Clark, 926 S.W.2d at 128[5]. As such, the trial court properly set aside its judgment under Rule 74.06(b).

In so holding, we do not ignore the cases relied upon by Plaintiff in arguing her second point. Those cases, however, are distinguishable.

In State ex rel. Willens v. Gray, 757 S.W.2d 656 (Mo.App.1988), the defendant (Willens) served the plaintiff (Baker) with interrogatories that Baker failed to answer. The court ordered Baker to answer within ten days, and affirmatively “stated that a failure to answer would result in appropriate court-imposed sanctions.” Id. at 657. Later, Willens filed a motion to dismiss the suit because Baker continued to ignore (1) the discovery request, (2) the court’s order directing that Baker answer, and (3) the threatened sanctions. Shortly thereafter, the court dismissed Baker’s suit without notifying Baker that it was doing so. Id.

In a subsequent prohibition case, one of the issues was whether dismissal of the first suit came after Baker had notice and an opportunity to be heard. The eastern district answered that affirmatively, saying:

“Baker ... contends that the order made on July 11, in which he was granted ten days to answer the interrogatories, simply stated that the failure to do so would result in appropriate court-imposed sanctions. Baker argues that this did not give him notice that his petition would be dismissed This contention overlooks the fact that the motion for sanctions filed on August 1 requested the court to impose sanctions by dismissing the action. Dismissal is one of the sanctions provided by Rule 61.01(b)(1) for failure to answer interrogatories. Thus, Baker was placed on notice August 1 that the sanction of dismissal of his petition was being sought. On August 9 the court dismissed his cause of action. Clearly, Baker had notice and opportunity to be heard before his suit was dismissed.”

Id. at 658.

Unlike the Willens case (where undisputed facts disclosed Baker had notice that dismissal of his suit was being sought as a sanction for failure to answer interrogatories), Plaintiffs September 1 motion to compel discovery — which requested that Defendant be sanctioned by having her pleadings stricken — was never ruled. Instead, the sanction imposed resulted from a separate proceeding about which Defendant never received notice. These facts distinguish this case from Willens.

Plaintiff also relies on Bums v. Terminal R.R. Ass’n, 835 S.W.2d 535 (Mo.App.1992), as support. There, the court dismissed, ex parte, the plaintiffs’ case for failing to comply with discovery. Id. at 537. Before the dismissal, however, the court ordered compliance within twenty days of its order, of which the plaintiff had notice. Moreover, the court’s order recited that upon failure to comply “with all or part of its order, plaintiffs’ [petition] will be dismissed with prejudice at [plaintiffs’] cost, without further order of this Court.” Id. (emphasis supplied). The Burris court held that the plaintiffs had ample notice because they received notice of the hearing on the motion for sanctions and the resultant order. Id. at 538. The trial court’s order in Burris specifically warned the plaintiffs that dismissal would result if they failed to comply. Id. at 537. That is not our case. The order here merely told Defendant to comply within twenty days and made no mention of sanctions. Moreover, as repeatedly pointed out, the sanction here came via a new and different motion about which Defendant was unaware.

The final case Plaintiff relies upon is Bell v. Bell, 987 S.W.2d 395 (Mo.App.1999). There, the defendant failed to comply with the trial court’s first order compelling discovery. The plaintiff then filed a motion for sanctions to which the defendant received notice. The resultant order gave the defendant three days to comply, and if not, then he would be precluded from producing any records at trial not given to the plaintiff in discovery. Id. Also, in the motion for sanctions, the plaintiff asked the court to strike the defendant’s pleadings. Again, the defendant failed to comply. On the day of trial, the plaintiff asked the court to strike the pleadings and preclude the introduction of any documents by the defendant. The court granted plaintiffs oral motion. Id. at 400.

On the issue of striking the pleadings, the Bell court held that the notice given on the day of trial was adequate to comply with due process. Id. at 401. It noted the defendant was aware for three months that this was a sanction the plaintiff was seeking. Id. The court also noted the defendant demonstrated a continuous frustration of the judicial process throughout the history of the case via his failures to comply with discovery. Id. These facts significantly distinguish Bell from this case.

Unlike the sanctioned party in Bell, here Defendant generally complied with discovery until the issue arose surrounding the second set of interrogatories. More than that, however, Plaintiff abandoned her September 1, 2004, sanction request and obtained her judgment via a motion about which Defendant was unaware. This makes the Bell analysis wholly inapposite here.

On this record, we find that the $100,000 judgment was entered without notice to Defendant and was, therefore, clearly irregular and voidable, if not inherently void, under Rule 74.06(b)(3)-(4). Kreutzer, 147 S.W.3d at 179 n. 6; Clark, 926 S.W.2d at 128[5]. The trial court did not abuse its discretion when it set aside the $100,000 judgment per rule 74.06(b). Point denied.

Judgment affirmed.

GARRISON and BARNEY, JJ„ concur.

      . All rule references are to Supreme Court Rules (2004), unless otherwise indicated.

      . See Zurheide-Hermann, Inc. v. London Square Dev. Corp., 504 S.W.2d 161, 165 (Mo.1973)(certificate of service only creates rebuttable presumption); Jarrell v. Dir. of Revenue, 41 S.W.3d 42, 45-47 (Mo.App.2001)(appellate court defers to trial court’s resolution of contradictory facts whether presented via testimony or documents). The only contrary evidence was the certificate of service on Plaintiff’s motion for sanctions and an affidavit presented from an assistant in Tolbert's law firm that the motion was mailed.

      . Having found that Rule 74.06(b)(3)-(4) and relevant facts amply support what the trial court did, i.e., setting aside the $100,000 judgment, we need not address Plaintiffs claims that, on this record, the trial court abused its discretion if it relied on Rules 74.06(b)(1) or 74.05 to set aside the judgment.


author: JAMES K. PREWITT, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Cecil Clayton JOHNSON, Defendant-Appellant.
    No. 26864.
    Missouri Court of Appeals, Southern District, Division One.
    Sept. 29, 2005.

      S. Kathleen Byrnes-Ales, Carthage, for appellant.
    No brief filed by respondent.
   JAMES K. PREWITT, Presiding Judge.

Cecil Clayton Johnson (“Appellant”) appeals the decision of the trial court denying his request to withdraw his guilty plea entered on December 20, 2004.

On July 20, 2004, Amanda Johnson filed a complaint alleging Appellant violated an ex parte order by entering her Neosho, Missouri home to take “food and his clothing.” On August 9, 2004, Appellant was charged on these allegations. On September 21, 2004, Appellant failed to appear at a pre-trial conference, and a warrant was issued. Appellant was arrested on December 16, 2004. On December 20, 2004, Appellant waived his right to counsel and entered a plea of guilty. Appellant was sentenced to one year in the Newton County jail.

On January 4, 2005, Appellant requested leave to withdraw his guilty plea on grounds that his waiver of counsel and guilty plea “were not knowingly and voluntarily entered, in that he previously invoked his right to counsel ... and had been appointed counsel to represent him.” The trial court denied his request on January 18, 2005. Appellant filed Notice of Appeal on February 28, 2005.

Appellant maintains that the trial court erred in denying his request because

“the manner of taking his guilty plea violated [his] rights to due process and counsel, ... resulting in manifest injustice.” Rule 29.07(d) provides: “A motion to withdraw a plea of guilty may be made only before sentence is imposed or when imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.”

When Appellant was initially arraigned, he entered a plea of not guilty and requested a public defender. The court assigned Kathleen Byrnes-Ales, who represented Appellant at a pre-trial conference on September 7, 2004 and filed a “Request for Discovery” on September 20, 2004; one day before he failed to appear. Byrnes-Ales submitted Appellant’s “Request for Leave to Withdraw Plea of Guilty” on January 3, 2005 and represents Appellant on this appeal. Section 600.044, RSMo 2000 states that a public defender who “undertakes to represent an eligible person shall continue to do so at every stage of the case or proceeding, ... until the defender is relieved of his [or her] duties by the director or is permitted by a court to withdraw.” Nothing in the record indicates Appellant requested Byrnes-Ales’ withdrawal.

“[A]n accused is constitutionally entitled to assistance of counsel at all critical stages of prosecution.” Liebeck v. State, 910 S.W.2d 373, 376 (Mo.App.1995). When a defendant waives this right, he must knowingly and intelligently do so. Section 600.051.1, RSMo 2000. The waiver must be signed before and witnessed by the judge. Id. Appellant’s ‘Waiver of Counsel,” dated December 20, 2004 (the date of Appellant’s sentencing) contains the information required by § 600.051.1(l)-(6), RSMo 2000, Appellant’s signature, and the judge’s signature.

After knowingly and intelligently waiving counsel, a defendant “should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with his eyes open.’ ” State v. Artis, 146 S.W.3d 460, 462 (Mo.App.2004), quoting Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). “The defendant should be given such advice on the record as is necessary to establish he or she is acting voluntarily, knowingly and intelligently in waiving counsel.” State v. Kilburn, 941 S.W.2d 737, 739 (Mo.App.1997). “Because this is a matter of constitutional right, a simple waiver of counsel form, without a record of hearing, is insufficient.” City of St. Peters v. Hodak, 125 S.W.3d 892, 895 (Mo.App.2004). Absent an inquiry on the record showing Defendant understood the ramification of the waiver of counsel, the imposition of jail time is unconstitutional. Id.

The record before us on appeal fails to support a finding that defendant knowingly and intelligently waived his right to counsel. “If the record does not disclose that the defendant’s waiver of his right to counsel was a knowing and intelligent one, the presumption arises that it was not.” State v. Davis, 934 S.W.2d 331, 334 (Mo.App.1996). It was error for the trial court to proceed without performing the required procedure on the record.

The judgment is reversed and the cause remanded with directions to the trial court to set aside Appellant’s plea of guilty, and thereafter to proceed consistent with this opinion.

PARRISH and RAHMEYER, JJ., concur.

      . The State ("Respondent”) did not file a brief with this court. While no penalty is prescribed for failure to file a brief, we are required to decide the case without the benefit of that party’s authorities and points of view. State v. Berry, 92 S.W.3d 823, 826 n. 2 (Mo.App.2003).

      . Section 455.050.1(2), RSMo 2000, permits ex parte orders to protect petitioner from abuse and includes temporarily enjoining the respondent from entering the premises of the dwelling unit of the petitioner. Section 455.085.7, RSMo 2000, creates a class A misdemeanor for the violation of the terms and conditions of these protective orders if the alleged violator has not previously pleaded or been found guilty of the same offense within five years of a subsequent violation.

      .An order denying a motion to withdraw a guilty plea is an appealable order. Hamilton v. State, 865 S.W.2d 374, 376 (Mo.App.1993). See also Brown v. State, 66 S.W.3d 721 (Mo. banc 2002).


author: NANCY STEFFEN RAHMEYER, Judge.

text:
    Don LITTLEFIELD and Vera Littlefield, his wife, Plaintiffs-Appellants, v. James Matthew EDMONDS and Beth Ann Edmonds, his wife, Defendants-Respondents.
    No. 26836.
    Missouri Court of Appeals, Southern District, Division One.
    Sept. 29, 2005.

      Abe R. Paul, Pineville, for appellants.
    Bruce A. Copeland, Joplin, for respondents.
   NANCY STEFFEN RAHMEYER, Judge.

Plaintiffs, Don and Vera Littlefield, purchased seventy-seven acres at a foreclosure sale on September 16, 1993. The seventy-seven acres were subject to a recorded deed of trust; Woodrow and Charlotte Edmonds, the parents of Defendant James Matthew Edmonds, were the grantors of the deed of trust. Plaintiffs brought claims in a court-tried case to ascertain the parties’ rights and responsibilities, and subsequently brought this appeal from an adverse judgment. We affirm the judgment.

In November of 1981, Woodrow and Charlotte Edmonds executed a promissory note for the amount of $118,300.00 and a deed of trust to Federal Land Bank; they pledged as collateral real estate including the seventy-seven acres that are the subject of this suit and additional acreage, which included eighty acres and their home place. In May of 1987, Woodrow Edmonds sold one hundred seventeen acres to Earl Carroll. At the time of this transaction, the seventy-seven acre tract was sold subject to the deed of trust entered into by Woodrow and Charlotte Ed-monds with the Federal Land Bank and a warranty deed in which Woodrow Ed-monds promised to continue paying on the deed of trust entered into with the Federal Land Bank. Woodrow Edmonds and Earl Carroll also executed a new deed of trust, representing a loan from Woodrow Ed-monds to Earl Carroll. Pursuant to the terms of the warranty deed, Woodrow Ed-monds continued making payments on the original deed of trust entered into with the Federal Land Bank. When Earl Carroll defaulted under the terms of his deed of trust to Woodrow Edmonds, Woodrow Ed-monds held a foreclosure trustee’s sale where the one hundred seventeen acres were sold to Plaintiffs for the sum of $40,000.00.

At trial, there was no evidence of the fair market value of the forty acres or of the seventy-seven acres subject to the deed of trust. Plaintiffs admitted they knew about the Federal Land Bank deed of trust prior to the sale and understood that a deed of trust could be foreclosed if the underlying note was not paid and the deed of trust was not released; they even adjusted their bid at the foreclosure sale to account for the existence of the Federal Land Bank deed of trust. Immediately after the purchase of the property, Plaintiffs tried to sell a part of the seventy-seven acre tract to the school district but could not because of a “cloud on title”; the selling price to the school was not in the record.

After the foreclosure, Defendants attempted to take back the seventy-seven acre tract by first approaching Federal Land Bank seeking a partial release of all the property subject to the lien except the seventy-seven acres; however, the release was not approved by the bank. Subsequently, James Matthew Edmonds paid the note to the Federal Land Bank and was assigned the note and deed of trust; he subsequently executed the partial deed of release on the eighty-acre home place, but left in place the deed of trust on the seventy-seven acres. No payments were made on the assigned Federal Land Bank note after May 1, 1993, nor was any demand ever made to the Senior Edmonds on the note. The interest accrued and at the time of trial a balance of $202,217.49 remained. Plaintiffs claimed to have expended $26,584.00 in improvements to the seventy-seven acres.

Plaintiffs brought suit requesting: (1) a declaration of judgment that the Federal Land Bank deed of trust of November 16, 1981, be deemed no longer actionable as a lien against the property of the Plaintiffs; (2) a permanent injunction prohibiting Defendants from foreclosing on the seventy-seven acres, alleging that Defendants had fraudulently concealed from Plaintiffs Defendants’ status as lien holders resulting from Defendants’ purchase of the Federal Land Bank note and deed of trust; and (8) that the court bar any action by Defendants to foreclose on the seventy-seven acres pursuant to the Federal Land Bank deed of trust under the doctrine of estop-pel. Plaintiffs argue on appeal that they should have been granted judgment because Defendants concealed from Plaintiffs their status as lien holders of the Federal Land Bank note and deed of trust. They further claim they were unaware that no payments were made on the underlying note for the deed of trust.

The court found no contractual or fiduciary relationship between Plaintiffs and Defendants; it further found no transaction occurred between them which would have created a duty on the part of Defendants to provide Plaintiffs with information that was otherwise accessible to Plaintiffs. The court further noted that Plaintiffs had the ability to ascertain the transactions and all facts material to the transactions claimed in their petition but failed to use reasonable diligence to do so; it specifically found that any claimed reliance that Woodrow Edmonds would pay the balance of the promissory note owed to Federal Land Bank by Plaintiffs was not justified nor sufficient to establish any of the elements of proof necessary to their claim for relief.

Plaintiffs now bring three claims of error. Plaintiffs first claim that the trial court erred “as a matter of law” in its findings of fact that Plaintiffs failed to prove fraud “by silence” on the part of Defendants in taking an assignment and allowing the note to go into default without notifying Plaintiffs of their intent to default on the note. The thrust of Plaintiffs’ argument is that they had every right to rely on the performance of Woodrow Ed-monds to pay the balance due on the Federal Land Bank deed of trust because he had a good reputation in the community for paying his bills, and if he had not paid, the remaining eighty-acre tract subject to the initial deed of trust would have been exposed to foreclosure.

Generally, Plaintiffs must prove nine elements to establish fraud: (1) a representation of fact; (2) the falsity of the representation; (3) the materiality of the representation; (4) knowledge by the speaker of the representation’s falsity or ignorance by the speaker of its truth or falsity; (5) an intention by the speaker that the representation be acted on by the hearer; (6) the hearer’s ignorance of the truth or falsity of the representation; (7) reliance by the hearer on the representation; (8) the right of the hearer to rely on the speaker’s truthfulness; and (9) injury to the hearer as a result of the hearer’s reliance on the representation. State ex rel. PaineWebber, Inc. v. Voorhees, 891 S.W.2d 126, 128 (Mo. banc 1995). It is undisputed that Defendants had no communication at any time with Plaintiffs and they did not inform Plaintiffs of the note or assignment of the payments. It is further undisputed that Woodrow Edmonds made no representations to Defendants regarding payments on the note or the assignment of the deed of trust although the assignment and the release were recorded.

Plaintiffs did not claim any facts concerning a direct representation but instead rely upon a concealment. To recover under a concealment theory, Plaintiffs must show that Defendants had a duty to disclose information to Plaintiffs. This duty can be shown by the existence of unequal positions, as in a relationship of trust from confidential relationship or some demonstrably superior knowledge on the part of one party that is not within the fan- and reasonable reach of the other. Van Booven v. Smull, 938 S.W.2d 324, 328 (Mo.App. W.D.1997). A plaintiff seeking to recover for fraudulent concealment must show all of the following: (1) the fact was not within the fair and reasonable reach of the plaintiff; (2) the plaintiff was unable to discover the concealed information; and (3) plaintiff exercised reasonable diligence. Keefhaver v. Kimbrell, 58 S.W.3d 54, 60 (Mo.App. W.D.2001).

Although Plaintiffs claim concealment of a plan to recover the seventy-seven acres, Plaintiffs never explain in their argument what duty Defendants had to Plaintiffs to disclose the plan to them. They do not claim, nor could they claim, a confidential relationship between the parties when Plaintiffs purchased the property at a trustee’s sale. Likewise, they completely failed in their attempt to prove they did not have the access to the information that the note had been assigned to Defendants.

At trial, Defendants offered evidence of the original deed of trust entered into by Defendants, the warranty deed entered into by the Defendants and Earl Carroll, the deed of trust entered into by Woodrow Edmonds and Earl Carroll, the trustee’s deed of sale arising from the default of Earl Carroll, and the assignment of note and deed of trust that was assigned to Defendants. Each of these documents was properly recorded in the McDonald County Recorder of Deeds office. In fact, Plaintiffs admitted at trial that the record of Defendants’ purchase of the Federal Land Bank note and deed of trust was reasonably within their reach and they could have discovered it. Instead, they rely on their inability to ascertain Defendants’ “plan” to reclaim the seventy-seven acres to support their claim that Defendants had superior knowledge to Plaintiffs. They further rely on the fact that after Woodrow Edmonds died, Defendants did not respond to a letter sent by Plaintiffs’ attorney to ascertain the status of the lien on their property. Plaintiffs’ reliance is misplaced.

An alleged “plot” to regain them property cannot create a duty from Defendants to Plaintiffs. To prevail, Plaintiffs must have shown some confidential or contractual relationship between Plaintiffs and Defendants or some information that was not within the fair and reasonable reach of Defendants. The court correctly found, as a matter of law, no contractual relationship existed between Plaintiffs and Defendants, and further that Defendants owed no fiduciary duty to Plaintiffs. Keeping in mind that Plaintiffs purchased the property at a trustee’s sale, and not from a warranty deed, that Plaintiffs purchased the property fully aware of the deed of trust, and that all of the records indicating the assignment were discoverable by Plaintiffs, the trial court did not err in its findings of fact and in its ultimate conclusion that Plaintiffs failed to prove their claim of fraud. Point I is denied.

Next, Plaintiffs claim the trial court erred as a matter of law in its findings of fact that Defendants’ foreclosure on the assigned note was not barred by lach-es. Although Plaintiffs explain the equitable doctrine of laches, they fail to indicate how laches applies to this legal remedy of foreclosure brought by the holder of an assigned note brought well within the statute of limitations. “Equity may not be invoked to destroy an existing legal right.” Place v. P.M. Place Stores Co., 950 S.W.2d 862, 866 (Mo.App. W.D.1996). Furthermore, the general rule is that laches will not bar the assertion of a claim when the statute of limitations pertaining to that claim has not run. Hughes v. Neely, 332 S.W.2d 1, 6 (Mo.1960); Empiregas, Inc. of Palmyra v. Zinn, 833 S.W.2d 449, 451 (Mo.App. E.D.1992).

Plaintiffs’ use of laches is unwarranted here as Defendants have not threatened to foreclose on the seventy-seven acre tract of land. “[Ljaches is purely a creation of equity, and is only to be invoked by the defendant in a case where the plaintiff appeals to equity and seeks the enforcement of an equitable right.” Kellogg v. Moore, 271 Mo. 189, 196 S.W. 15, 16 (Mo.1917) (emphasis added). In fact, as noted by the trial court, Plaintiffs may still bar foreclosure of the seventy-seven acre tract by satisfying the note evidenced by the Federal Land Bank deed of trust. Plaintiffs claim that Defendants’ claim for foreclosure was stale in that Defendants could have foreclosed in 1994 when the first payment was not made. As between Plaintiffs and Defendants, who are the assignees of a deed of trust in which Plaintiffs were not parties, we do not find any exception to the general rule that laches does not bar the legal remedy. Point II is denied.

Finally, Plaintiffs claim the trial court erred as a matter of law in its findings of fact because Plaintiffs proved by a preponderance of evidence that Defendants should be barred from asserting their remedy of foreclosure as a result of the doctrine of equitable estoppel. Plaintiffs’ argument under this point mirrors their argument in Point II, that it would be unfair to permit Defendants to assert rights belatedly because Plaintiffs had become disadvantaged by the changed conditions. To support a claim of estoppel, a representation must be made by the party estopped and relied upon by another party, who changes his position to his detriment. Bass v. Rounds, 811 S.W.2d 775, 779 (Mo.App. E.D.1991). The representation may be manifested by affirmative conduct, either words or acts, or by silence amounting to concealment of material facts. Id. In addition, the petitioning party must show these facts were known to the party estopped, and unknown to the other party. Id. While a court of equity can grant relief, relief will be barred if the party asserting estoppel had within its reach the means of ascertaining the true state of facts and neglects to utilize those opportunities for information. Cozart v. Mazda Distributors, Inc., 861 S.W.2d 347, 352-53 (Mo.App. S.D.1993).

As noted earlier, no affirmative conduct occurred amounting to a representation made by Defendants to Plaintiffs, thus, Plaintiffs must show concealment of material facts, which presupposes a duty on the part of Plaintiffs. No relationship existed between Plaintiffs and Defendants and no facts mandate a duty. Furthermore, Plaintiffs did not produce evidence demonstrating they changed their position in any way. Plaintiffs admitted that they would have made all of the improvements even if they had known that the note had been assigned. Even if Plaintiffs would not have made the improvements to the property, they did not change their position regarding a foreclosure. Plaintiffs do not claim they would have made the payments on the deed of trust had they known of the nonpayment of the loan; they only claim they lost the opportunity to do so.

Finally, under the facts of this case, we find no reason to invoke the equitable principles of estoppel in the legal action for foreclosure. Plaintiffs purchased land at a foreclosure sale for a price reflecting the purchase of forty acres with no hens and seventy-seven acres with a substantial lien of $89,368.60. Plaintiffs made an informed choice, knowing that a deed of trust existed on the seventy-seven acres that was at risk of foreclosure if the lien was not paid. There was no evidence indicating any detriment to Plaintiffs. Plaintiffs had no right to rely on the belief that Woodrow Edmonds would pay the lien. Plaintiffs could have negotiated with Woodrow Edmonds to pay a fair value for the one hundred seventeen acres; however, they chose to gamble that the payments were being made and used the seventy-seven acres as their own for ten years. The doctrine of equitable estoppel is inapplicable. Point III is denied.

The judgment is affirmed.

PREWITT, P.J., and PARRISH, J., concur.

      . Plaintiffs also purchased a forty-acre tract, which was not encumbered by a deed of trust and is not the subject of this lawsuit.

      . Charlotte Edmonds was deceased by this time.

      .The record does not reflect the sale price of the one hundred seventeen acres.

      . We do not reach the remaining elements of fraud, but we have serious doubts that reli-anee on a fact that a debtor normally pays his debts creates any reasonable reliance.