author: GEORGE W. DRAPER III, Chief Judge.

text:
    Shirlon LOVELACE, Claimant/Appellant, v. BARNES-JEWISH HOSPITAL and Division of Employment Security, Respondents.
    No. ED 85537.
    Missouri Court of Appeals, Eastern District, Division Five.
    March 29, 2005.
    Shirlon Lovelace, Jennings, pro se.
    Cynthia Ann Quetsch, Jefferson City, MO, for Respondent.
   GEORGE W. DRAPER III, Chief Judge.

Shirlon Lovelace (Claimant) appeals the decision of the Labor and Industrial Relations Commission (Commission) regarding her unemployment benefits. The appeal is dismissed.

A deputy of the Division of Employment Security (Division) found Claimant was disqualified from receiving unemployment benefits because she left work voluntarily without good cause attributable to her work or employer. Claimant filed an appeal with the Appeals Tribunal, who affirmed the deputy’s decision with slight modifications. Claimant then filed an application for review by the Commission. The Commission affirmed the decision of the Appeals Tribunal. The Secretary of the Commission certified that she mailed a copy of the Commission’s decision to Claimant on September 29, 2004. Claimant filed a notice of appeal to this Court on December 3, 2004.

This Court has a duty to determine sua sponte whether it has jurisdiction. Williams v. ESI Mail Pharmacy Service, Inc., 103 S.W.3d 848 (Mo.App. E.D.2003). It appears that Claimant’s notice of appeal to this Court is untimely. The Commission mailed its decision to Claimant on September 29, 2004. The Commission’s decision became final ten days after the date it was mailed to the parties. Section 288.200.2, RSMo 2000. Claimant then had twenty days to appeal the Commission’s final decision. Section 288.210, RSMo 2000. Claimant’s notice of appeal was due on October 29, 2004. Id. Claimant’s notice of appeal, which was filed on December 3, 2004, was untimely under section 288.210.

After reviewing our jurisdiction, we issued an order directing Claimant to show cause why this appeal should not be dismissed as untimely. Claimant has not filed a response. However, in her notice of appeal, she acknowledged that her appeal was untimely. She stated that she received the Commission’s decision, but did not understand that a decision had been made and she received no additional notice about filing an appeal.

An untimely notice of appeal in an unemployment case deprives this Court of jurisdiction to entertain the appeal. Loeffler v. Shop N Save, 121 S.W.3d 261, 261 (Mo.App.E.D.2003). Although Rule 81.07 does allow late notices of appeal in certain cases, this rule does not apply in administrative cases absent specific legislative authority. See, Otte v. Langley’s Lawn Care, Inc., 66 S.W.3d 64, 68 (Mo.App. E.D.2001); Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App. E.D.2000). Section 288.210 fails to make any provision for late filing.

Therefore, Claimant’s failure to file her notice of appeal in a timely fashion, despite her reasons for her lateness, deprives this Court of jurisdiction and our only recourse is to dismiss her appeal.

The appeal is dismissed for lack of jurisdiction.

LAWRENCE G. CRAHAN, J., and GLENN A. NORTON, J., concur.

      . We note, however, that the Commission’s decision clearly stated that it would be final in ten days and that "[w]ithin twenty days after this decision becomes final, an aggrieved parly may secure an appeal to the appropriate Missouri Court of Appeals provided in section 288.210 RSMo. You will not receive additional notice. If you choose to appeal this decision to the Missouri Court of Appeals, a Form 8-D, Notice of Appeal, must be filed with the Commission within thirty days of the date of this Order.” (emphasis added).


source: Caselaw Access Project

author: GEORGE W. DRAPER III, C.J.

license: Public Domain

text:
    Robert SORENSON, Appellant, v. Al LUEBBERS, Superintendent of Farmington Correctional Center, Respondent.
    No. ED 85633.
    Missouri Court of Appeals, Eastern District, Division Five.
    March 29, 2005.
    Robert J. Sorenson, Farmington, MO, for Appellant.
    Michael Joseph Spillane, Jefferson City, MO, for Respondent.
   GEORGE W. DRAPER III, C.J.

Robert Sorenson (Appellant) appeals from a judgment denying his petition for writ of habeas corpus. Appeal dismissed.

We have a duty to initially determine whether we have jurisdiction. If we lack jurisdiction to entertain an appeal, then it should be dismissed. Fischer v. City of Washington, 55 S.W.3d 372, 377 (Mo.App. E.D.2001). Here, Appellant seeks to appeal from the circuit court’s judgment denying his petition for writ of habeas corpus. An appeal does not lie from the denial of a petition for habeas corpus. Blackmon v. Missouri Board of Probation and Parole, 97 S.W.3d 458 (Mo. banc 2003); McDermott v. State, 120 S.W.3d 261, 262 (Mo.App. E.D.2003).

We issued an order directing Appellant to show cause why his appeal should not be dismissed. Appellant has filed a response in which he argues that he has a constitutional right to have the trial court’s ruling reviewed when his rights have been violated. However, even though Appellant may not have the right to appeal the ruling, he has a remedy. A petitioner’s remedy where a petition for writ of habeas corpus is denied is to file a new writ petition in a higher court. Webster v. Purkett, 110 S.W.3d 832, 837 (Mo.App. E.D.2003). Appellant has not filed a new writ petition.

The appeal is dismissed for lack of an appealable judgment.

LAWRENCE G. CRAHAN and GLENN A. NORTON, JJ., concur.


text:
    STATE of Missouri, Plaintiff/Respondent, v. Robert A. PALM, Defendant/Appellant.
    No. ED 85224.
    Missouri Court of Appeals, Eastern District, Division Five.
    March 29, 2005.
    Robert A. Palm, St. Louis, MO, for Appellant.
    Deborah Daniels, Jefferson City, MO, for Respondent.
   GEORGE W. DRAPER III, Chief Judge.

Robert A. Palm (Defendant) was convicted of resisting arrest. The court suspended imposition of sentence and placed Defendant on probation for two years with conditions. Defendant has now filed his notice of appeal from this judgment of conviction. We dismiss the appeal.

In criminal cases, the right of appeal is limited to final judgments. Section 547.070, RSMo 2000. A judgment is final for purposes of appeal when the judgment and sentence are entered. State v. Welch, 865 S.W.2d 434, 435 (Mo.App. E.D.1993). Where imposition of sentence is suspended, the judgment is not final and a defendant may not appeal it. State v. Lynch, 679 S.W.2d 858, 860 (Mo. banc 1984); See also, State v. Larson, 79 S.W.3d 891, 892 (Mo. banc 2002). Here, the court suspended imposition of Defendant’s sentence. As a result, there is no final, appealable judgment.

This Court has a duty to examine its jurisdiction sua sponte. State v. Faudi, 141 S.W.3d 83, 84 (Mo.App. E.D.2004). Where there is no final, appealable judgment, we have no jurisdiction to consider the appeal. State v. Blalock, 119 S.W.3d 185, 186 (Mo.App. E.D.2003).

We issued an order to Defendant directing him to show cause why his appeal should not be dismissed. Defendant filed a response, which primarily addresses the merits of his case. However, he asks this Court not to follow the Missouri Supreme Court’s opinion in Lynch, pointing out the opinion was only 4-3 and referring to the dissenting opinion. However, this Court, which is a court under the superintending authority of the Missouri Supreme Court, is bound by the decisions of that Supreme Court. Mo. Const. Art. V, Sec. 2 (1945). As to the merits of Defendant’s case, the appropriate remedy when the imposition of sentence is suspended is by a writ of mandamus. State v. Mohammed, 131 S.W.3d 848 (Mo.App. E.D.2004).

Defendant’s appeal is dismissed without prejudice for lack of a final, appealable judgment.

GLENN A. NORTON and LAWRENCE G. CRAHAN, JJ., concur.


text:
    Shawn MOORE, Appellant, v. Al LUEBBERS, Respondent.
    No. ED 85427.
    Missouri Court of Appeals, Eastern District, Division Five.
    March 29, 2005.

      Shawn P. Moore, Farmington, MO, for Appellant.
    Deborah Daniels, Jefferson City, MO, for Respondent.
   GEORGE W. DRAPER III, C.J.

Shawn Moore (Appellant) appeals from a judgment denying his petition for writ of habeas corpus. Appeal dismissed.

Initially, this Court must determine whether it has jurisdiction. If we lack jurisdiction to entertain an appeal, then it should be dismissed. Fischer v. City of Washington, 55 S.W.3d 372, 377 (Mo.App. E.D.2001). Here, Appellant seeks to appeal from the circuit court’s judgment denying his petition for writ of habeas corpus. An appeal does not lie from the denial of a petition for habeas corpus. Blackmon v. Missouri Board of Probation and Parole, 97 S.W.3d 458 (Mo. banc 2003); McDermott v. State, 120 S.W.3d 261, 262 (Mo.App. E.D.2003).

We issued an order directing Appellant to show cause why his appeal should not be dismissed. Appellant has filed a response in which he primarily argues the merits of his appeal. Appellant also argues that he is entitled to an appeal, because he has a constitutional right to have the trial court’s unjust ruling redressed. Appellant offers no legal authority for his unique proposition. However, even though Appellant may not have the right to appeal the ruling, he has a remedy. A petitioner’s remedy where a petition for writ of habeas corpus is denied is to file a new writ petition in a higher court. Webster v. Purkett, 110 S.W.3d 832, 837 (Mo.App. E.D.2003). Appellant has not filed a new writ petition.

The appeal is dismissed for lack of an appealable judgment.

LAWRENCE G. CRAHAN and GLENN A. NORTON, JJ., concur.


author: PER CURIAM.

text:
    Vera PALMER, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84735.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 29, 2005.
    Timothy J. Forneris, St. Louis, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel N. McPherson, Jefferson City, MO, for Respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN, J., and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Vera Palmer appeals the judgment denying her Rule 29.15 motion to vacate, set aside, or correct her judgment and sentence for murder in the first degree and armed criminal action. We have reviewed the briefs of the parties and the record on appeal and find no error of law. An extended opinion would have no precedential value. We have, however, provided the parties with a memorandum setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).

      . We affirmed the judgment and sentence in State v. Palmer, 113 S.W.3d 692 (Mo.App.2003).


text:
    Christopher MARLOW, Respondent, v. DIRECTOR OF REVENUE, Appellant.
    No. ED 84741.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 29, 2005.
    Glen D. Webb, Jefferson City, MO, for appellant.
    Jesse W. Ullom, Chesterfield, MO, for respondent.
    Timothy W. Jones, Kelly J. Ford, Chesterfield, MO, Co-counsel for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J. and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

The Director of Revenue appeals the judgment reinstating Christopher Mar-low’s driving privileges, arguing that the uncontroverted evidence supported a finding that the officer had probable cause to arrest Marlow for driving while intoxicated.

The judgment is supported by substantial evidence and is not against the weight of the evidence. No error of law appears. An extended opinion would have no prece-dential value. We have, however, provided the parties a memorandum setting forth the reasons for our decision. We affirm the judgment under Rule 84.16(b).

      . Marlow's motion to strike the appendix included in the Director's reply brief is denied as moot.


author: PATRICIA BRECKENRIDGE, Judge.

text:
    STATE of Missouri, Respondent, v. In the Interest of S.A.N., Appellant.
    No. WD 63532.
    Missouri Court of Appeals, Western District.
    March 29, 2005.

      Robert E. Stephens, Kansas City, MO, for appellant.
    James E. Herbertson, Kansas City, MO, for respondent.
    Before HOLLIGER, P.J., BRECKENRIDGE and ELLIS, JJ.
   PATRICIA BRECKENRIDGE, Judge.

S.A.N. appeals from a judgment entered by the Circuit Court of Jackson County, Juvenile Division, (“juvenile court”) sustaining the juvenile officer’s petition, which alleged that S.A.N. committed acts which, if S.A.N. were tried as an adult, would be the crime of deviate sexual intercourse, in violation of section 566.062, RSMo 2000. On appeal, S.A.N. claims that the juvenile court erred in finding that he committed acts for which he would have been criminally liable if tried as an adult because the juvenile officer failed to present sufficient evidence that the prohibited touching was done for the purpose of sexual gratification, a required element under sections 566.062, RSMo 2000, and 566.010, RSMo Cum.Supp.2004. Because the record in this case is insufficient to allow this court to review S.A.N.’s claim, the appeal is dismissed.

Factual and Procedural Background

On the evening of July 16, 2003, J.R. (“Mother”) and her husband (“Father”) took two of their seven children to drill team practice. While they were gone, Mother and Father’s five other children, including the eight-year-old victim, S.T., remained at home under the supervision of S.T.’s cousin. S.A.N., a neighbor of the family, was also there. At one point during the evening, while S.T. was alone in her parent’s bedroom watching television, S.A.N. joined S.T. in the bedroom. S.A.N. sat down on the bed next to S.T., placed his hand on S.T.’s leg, reached underneath S.T.’s shorts and underwear, and placed his finger in her vagina. After the incident, S.A.N. left the room. S.T.’s cousin saw S.A.N. leave the room and, when he went into the bedroom, he found S.T. crying.

When S.T.’s parents returned, S.T. told Father that she had something red in her underwear. Father told her to go see Mother. When Mother examined S.T., she found blood in her pants and on her vagina. S.T. told Mother that S.A.N. had touched her. After calling the police, Mother took S.T. to Children’s Mercy Hospital.

On July 17, 2003, the juvenile officer filed a petition against S.A.N., alleging that S.A.N. committed acts which, if S.A.N. were tried as an adult, would be the crime of deviate sexual intercourse, in violation of section 566.062, RSMo 2000. On October 28, 2003, following trial, the juvenile court commissioner found that the evidence sustained the facts alleged in the petition, the court had jurisdiction over S.A.N., and S.A.N. was in need of the care and treatment of the court. The commissioner’s written findings and recommendations were transmitted to the family court administrative judge, who adopted the commissioner’s findings and recommendations and entered judgment. The juvenile court committed S.A.N. to the custody of the juvenile officer for placement in a residential facility and ordered him to complete a sexual offender’s program. S.A.N. filed this appeal.

Insufficient Record on Appeal

In his sole point on appeal, S.A.N. claims that the juvenile court erred in finding that he committed acts for which he would have been criminally liable if tried as an adult, i.e., he had deviate sexual intercourse with S.T. Specifically, he asserts that the juvenile officer failed to present sufficient evidence that the prohibited touching was done for the purpose of sexual gratification, a required element under sections 566.062, RSMo 2000, and 566.010, RSMo Cum.Supp.2004. At trial, the juvenile officer argued that the evidence supported the element of intent to sexually arouse because S.A.N. told S.T. not to tell anyone. In addition, the juvenile court commissioner noted, on the record, that there was “testimony that [S.T.] was told not to tell anybody.” S.A.N. argues, however, that S.T. did not testify that she was told not to tell and was not even asked whether S.A.N. told her not to tell.

This court agrees with S.A.N. that, in the record presented on appeal, there is no evidence that S.T. testified that S.A.N. told her not to tell anyone. Nor does the record on appeal reflect that any other witness provided such evidence. The record on appeal, however, does not include all of the evidence that was presented at the hearing. Specifically, the record on appeal does not include the videotape of S.T.’s interview with the Child Protection Center social worker. This videotape was offered by the juvenile officer, admitted into evidence, and played during the hearing. Without this evidence, this court is left to speculate as to whether it supports or contradicts S.A.N.’s claim on appeal. This court, however, is “ ‘bound by the record on appeal and cannot speculate as to what evidence may have been presented below which is not reflected by the record.’ ” In re Marriage of Michel, 142 S.W.3d 912, 927 (Mo.App.2004) (citation omitted).

S.A.N., as the appellant, “bears the burden of providing a record on appeal that allows for meaningful appellate review.” Fansher v. Dir. of Revenue, 147 S.W.3d 873, 874 (Mo.App.2004). Rule 81.12(a) states that “[t]he record on appeal shall contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented ... to the appellate court for decision.”

Specifically, this court “cannot review evidentiary sufficiency claims without knowing the evidence presented!)]” Fansher, 147 S.W.3d at 874 (citation omitted). Without all of the evidence that was presented to the juvenile court, this court is unable to properly review S.A.N.’s claim that the evidence was insufficient to establish that the prohibited touching was done for the purpose of sexual gratification. “In the absence of a sufficient record, there is nothing for this court to review, and the appeal must be dismissed.” Id. Accordingly, S.A.N.’s appeal is dismissed.

All concur.

      . S.A.N. was sixteen years old at the time of the incident.

      . Section. 566.062.1, RSMo 2000, provides: "[a] person commits the crime of statutory sodomy in the first degree if he has deviate sexual intercourse with another person who is less than fourteen years old.” Section 566.010(1), RSMo Cum.Supp.2004, defines deviate sexual intercourse as:
      [A]ny act involving the genitals of one person and the hand, mouth, tongue, or anus of another person or a sexual act involving the penetration, however slight, of the male or female sex organ or the anus by a finger, instrument or object done for the purpose of arousing or gratifying the sexual desire of any person!.]

      . Under Rule 110.04, juvenile proceedings are "governed by the practice and procedure customary in equity, and by Rules 41 through 101 to the extent not inconsistent with these rules.” See also In the Interest of D.I.B., 704 S.W.2d 217, 218 (Mo. banc 1986) ("The Rules of Civil Procedure generally apply to juvenile proceedings.”).


text:
    In the Interest of A.J.M. and R.J.M. A.M., Appellant, v. The Greene County Juvenile Office, Respondent.
    Nos. 26457, 26459.
    Missouri Court of Appeals, Southern District, Division One.
    March 30, 2005.

      Christopher A. Hazelrigg, Springfield, for appellant.
    William C. Prince, Springfield, for respondent.
    Before GARRISON, P.J., PREWITT, J., and RAHMEYER, J.
   ON MOTION FOR REMAND

PER CURIAM.

A.M., alleged biological father of minor children A.J.M. and R.J.M., appeals from the judgments of the Circuit Court of Greene County terminating his parental rights as to each child. We remand for a new trial.

Petitions to terminate the parental rights of A.M. as to A.J.M. and R.J.M. were filed by the Greene County Juvenile Office and were later consolidated for hearing. The trial court terminated A.M.’s parental rights as to both children. A.M.’s appeals in this court, case numbers 26457 and 26459, have been consolidated.

The transcript ordered by A.M. and filed with this court is not complete as it does not include approximately one hour and fourteen minutes of testimony. A.M. filed a motion to remand the appeals, claiming that the missing testimony is due to a malfunction with the sound recording equipment. He also filed an affidavit from the Central Transcribing Service stating that the transcript could not be completed due to the malfunctioning equipment.

The unrecorded testimony was part of that given by DFS worker Cassie Geith-man and all of that given by DFS worker Jason Kearbey. A.M. claims that he is prejudiced by the missing record because the two witnesses gave testimony regarding his compliance with a treatment plan required before reunification with the two children. He also claims that the missing testimony could provide additional grounds for appeal. A.M. contends that he exercised due diligence in preparing a complete transcript and his inability to do so is not a result of his fault or negligence.

Rule 81.12(a) requires a record of all proceedings and where the transcript is incomplete, this court cannot determine what evidence was considered and received by the trial court. Loitman v. Wheelock, 980 S.W.2d 140, 141 (Mo.App. E.D.1998). ‘Where a party is free from fault or negligence, has exercised due diligence in seeking to prepare the record on appeal, and his right of appeal is prejudiced because a transcript of the proceedings in the trial court cannot be prepared, a new trial should be granted.” Jackson v. Director of Revenue, 60 S.W.3d 707, 708 (Mo.App. S.D.2001) (quoting Dykes v. McNeill, 735 S.W.2d 213, 213-14 (Mo.App.S.D.1987)); see also Lynn v. Plumb, 808 S.W.2d 439, 440 (Mo.App. S.D.1991). Here, it was through no fault or negligence of A.M. that the transcript was unable to be completely prepared, and his right of appeal could be prejudiced by the missing testimony. Therefore, we must reverse the judgments of the trial court and remand for a new trial.


author: NANCY STEFFEN RAHMEYER, Judge.

text:
    Stephen BULLARD, Plaintiff-Appellant, v. Steven HOLT, Jasper County Collector of Revenue, and Teresa M. Schirmer/Johnson, Defendants-Respondents.
    No. 26296.
    Missouri Court of Appeals, Southern District, Division One.
    March 30, 2005.
    Cobb Young, Joplin, for appellant.
    Steven Holt, Jasper County Collector of Revenue, Carthage, Teresa M. Schirmer/Johnson, Joplin, pro se.
   NANCY STEFFEN RAHMEYER, Judge.

The titled owner of property located at 2704 Jackson, Joplin, Missouri (“the property”), which was sold by the Jasper County Collector, brought suit against the purchaser of the property alleging he had not been given proper notice of his right to redeem the property and that inadequate consideration was paid for the property. The trial court found in favor of the purchaser, Teresa M. Schirmer-Johnson (“Johnson”), and against the titled owner, Steven Bullard (“Bullard”). Bullard brings two points on appeal, both concerning the alleged lack of notice of his right to redeem the property.

The parties stipulate to most of the relevant facts; they agree the appeal is an issue of law for the trial court. We produce the following timeline to assist in understanding the sequence of events:

Jul 1983 Bullard and his wife, Brenda, purchased the property as rental property; Bullard never lived there; the mortgage company paid the real estate taxes throughout the fifteen-year mortgage.
Jun 1989 Bullard’s marriage dissolved and he became the sole owner of the property per the dissolution decree; Brenda was awarded the marital home, where she continues to reside.
1992 Bullard moved to Wisconsin and filed a change of address form with the post office; Maynard Realty managed and rented the property.
1995 Bullard moved to Minnesota.
Jul 1998 Mortgage paid in full; Bullard does not receive any tax statements because they were sent to his former Joplin address of 1992.
Aug 2000 Johnson purchased the property at a tax sale for $3100; Maynard Realty still managed property with sign in yard; Johnson contacted Maynard about purchasing the property from Bullard; tenants continued to occupy the property, rent paid to Bul-lard.
May 2001 Maynard sold assets to Brosh-ears Realty; Bullard listed the property for sale with Broshears Realty, which placed a “For Sale” sign in the yard; the property listings ranged from $50,000.00 to $59,000.00; the sign remained on the property until after Broshears was notified of Johnson’s interest in the property.
Aug 2, 2002 After a title search, Johnson sent notice by certified mail regarding purchase to Bullard at Bullard’s former Joplin address; Johnson determined how to send notice to the three remaining people in the title search by looking in the phone book; she called directly two of the three others listed in the title search and called the “Board of Administration” to ascertain whether there was a teacher by the name of Brenda Bullard employed with the district when Johnson discovered Brenda Bullard may be a teacher in Joplin; Bullard did not receive the notice, nor did Brenda, who has remarried and uses the name “Davis.”
Aug 20, 2002 Two and one-half weeks later, Johnson received from the post office the undelivered notice that was sent to Bullard.
Dec 2002 Johnson received a deed from the Jasper County Collector for the property.
Apr 2003 Suit filed by Bullard to set aside the tax deed.

Bullard bases his argument regarding inadequate notice on both a statutory and a constitutional foundation. We find Bullard’s first point regarding the appropriate statutory notice to be persuasive. Bullard argues that section 140.405 mandates that a letter be sent by certified mail to a person’s “last known available address” and that Johnson did not comply with the statute when she sent a notice to an address she knew was not the address of the property owner.

Bullard points to the uncontroverted evidence that Johnson saw the Maynard Realty and Broshears Realty signs in the property yard, observed renters in the property by her inspections, and she even talked to Maynard about her interest in purchasing the property. During the period of time beginning from when she “purchased” the property at the tax sale until she received the tax deed, Johnson was aware that the owner of the property received rent from the tenants. After Johnson received the collector’s deed, she promptly went to the owner of Broshear’s Realty to request the keys to the property. Bullard produced evidence that his correct address was contained in the real estate company’s records and a representative of the real estate company testified he would have notified Bullard immediately had he received any notice.

Johnson argued, and the trial court agreed, that notice pursuant to the statute was satisfied with the mailing of a notice to the address listed by the Jasper County Collector of Revenue. Johnson claimed she had no further statutory or constitutional duty to provide notice to Bullard. She admitted that she made no further effort to notify Bullard even though the post office returned as undeliverable her “notice” to Bullard.

The trial court, relying upon James v. Mullen, 854 S.W.2d 577, 578 (Mo.App. W.D.1993), and Hutchison v. Cannon, 29 S.W.3d 844 (Mo.App. S.D.2000), found that Johnson had complied with what was required by the statute by sending notice to Bullard’s last known available address. The court stated the term “last known available address” meant the address on the tax records and none other. The trial court did not address the constitutional issue as requested by Bullard in his request for Findings of Fact and Conclusions of Law nor indicate that Johnson was to use any reasonable means to actually notify Bullard.

We shall begin our analysis with James. The issue in James was whether section 140.405 required the purchaser to send notice to the owners of the property. James, 854 S.W.2d at 578. The purchaser contended he was not required by the statute to send any notice to anyone because there was no mortgage, deed of trust, or lien filed on the property. Id. The holding in the case was that section 140.405 required notice to be sent by certified mail within the time set out in the statute to the owner of the property as shown by the public records at the time the collector’s deed was sought. Id. The issue of where the notice was to be sent to the owner was not addressed by the parties or decided by the court.

Likewise, in Hutchison, the purchaser of the property did not send any notice pursuant to section 140.405 on the theory that the only address he had for the owner of the property was the one on the tax receipts. Hutchison, 29 S.W.3d at 846. Since the purchaser knew the owner did not reside at the property address, he reasoned sending notice there would have been futile. Id. at 847. The purchaser checked with neighbors and looked in the telephone book, but was unable to locate an alternative address for the owner. Id. at 846. This Court found that the version of section 140.405 applicable to the transactions required that the owner of the property, as shown by the public records at the time the collector’s deed is sought, be sent notice. Id. at 847.

Contrary to the trial court’s conclusion of law in the present case that the Hutchi-son court indicated that the notice must be sent only to the address as listed on the tax records, this Court specifically noted:

In the instant case, Cannon said that the only address he had was from earlier tax receipts, which he said was the address for the property in question. Based on that, he argues that a notice to Hutchi-son at that address would have been futile. We note, however, that nothing in the evidence spoke to whether the postal service had a forwarding address for Hutchison on file.
Assuming, without deciding, that the address which Cannon had was the ‘last known available address’ for Hutchison, (FN5) the fact remains that he did not follow the mandatory requirement of § 140.405 by sending a notice by certified mail to that address. The statute does not say that the purchaser shall send the notice only if he considers it to be a valid address, or only if he believes it will actually reach the owner. Instead the legislature has clearly and distinctly spoken by requiring that the notice be sent to the last known available address.

Id. In footnote number five, this Court further stated:

We know from an attachment to a motion for summary judgment which was filed with the trial court that the power of attorney executed by Hutchison specifically described real estate which included the property in dispute here. Since the exhibits introduced at trial have not been filed with this court, we do not know whether the title search performed by Cannon would have disclosed the fact that Hutchison had empowered his attorney in fact to have full control of the property, and that such person would presumably know Hutchi-son’s address. We also do not decide whether records in the recorder’s office such as the power of attorney and other conveyances involving Hutchison, which contained his address, should have been searched to determine the ‘last known available address.’

Id.

As noted, this Court indicated the purchaser in Hutchison did not show whether the title search would have disclosed the power of attorney, which had been recorded in the Recorder’s Office, or whether records of other conveyances involving the owner should have been searched to determine the “last known available address.” At no time did this Court indicate whether a purchaser complies with the statute by only sending notice to the address on the tax records when the purchaser has actual notice that the address is incorrect and when the correct address is readily attainable. We do so now.

In order to satisfy the statutory requirement that notice be given to the owner at the “last known available address,” we hold that the purchaser must use due diligence to notify the owner at the last known “available” address. What that means is that the word “available” in section 140.405 encompasses the concept that reasonable efforts should be used to notify the owner that someone else is claiming an interest in the property. We acknowledge that due diligence will be a factual question that varies from case to case, but we have no problem holding, under the facts of this case, that the purchaser did not make any reasonable effort to notify the titled owner of the property about her claimed interest in the property.

The purchaser, Johnson, had actual knowledge that the tax records did not have an accurate address for the titled owner when the notice was returned to her. She had actual notice that two different real estate companies were working for the owner and the property had been listed for sale. She knew that the property was continuously being rented and was not abandoned. She went so far as to express an interest in purchasing the property to one of the property managers. In contrast, Johnson used some diligence to notify a title company and trustee who appeared on the title search. She made one phone call to notify Brenda Bullard and sent the notice to a “Bullard” in the phone book, yet she made no effort to actually locate or to provide notice to the actual owner. Johnson had a legal obligation to notify Bullard where his legal rights to property were being affected; that obligation included using a reasonable effort to give him actual notice.

Although we do not reach Bullard’s second point, that the failure to use due diligence violated the Fourteenth Amendment of the United States Constitution, we do find that our holding is consistent with elementary principles of due process. See Estate of Broadhurst, 737 S.W.2d 504, 507 (Mo.App. S.D.1987) (“ ‘An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated under all the circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to present their objection.’ ”) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). Clearly, under the facts of this case, Johnson did not send notice to the last known available address pursuant to section 140.405. The judgments in favor of defendants are reversed; the case is remanded to the trial court to enter orders consistent with this opinion.

GARRISON, P.J., and PREWITT, J., concur.

      . Section 140.405 requires the purchaser of property at a delinquent land tax auction to give notice of the intent to acquire a deed at a tax sale to "any person who holds a publicly recorded deed of trust, mortgage, lease, lien or claim upon that real estate of the ... right to redeem.” All statutory references are to RSMo 2000 unless otherwise indicated.

      . Lest there be any misunderstanding, we are not saying that notice to an owner via the address listed in tax records is insufficient notice as a matter of law. Under the facts of a particular case, sending the notice to the address listed in the tax records may comply with the requirements that the purchaser use due diligence to provide notice.


author: JEFFREY W. BATES, Chief Judge.

text:
    CITY OF GAINESVILLE, Missouri, a municipal corporation, Plaintiff-Respondent, v. MORRISON FERTILIZER, INC., a Missouri corporation, Defendant, Lawrence A. Freeman and Mary C. Freeman, husband and wife, Russell Biby and Linda Biby, husband and wife, Defendants-Appellants, and Robert L. Merrell and Dot Aleene Merrell, husband and wife, Defendants.
    No. 26194.
    Missouri Court of Appeals, Southern District, Division Two.
    March 30, 2005.

      Jacob Y. Garrett, West Plains, MO, for appellants Freeman and Biby.
    John W. Bruffett, Ava, MO, respondent’s attorney.

      No brief filed by respondent City of Gainesville.
   JEFFREY W. BATES, Chief Judge.

In April 1998, the City of Gainesville, Missouri (“City”), filed a petition to quiet title in the Circuit Court of Ozark County, Missouri. The defendants in the action were Morrison Fertilizer, Inc.; Robert and Dot Merrell; Lawrence and Mary Freeman; and Russell and Linda Biby. The petition requested that title to four parcels of real property adjoining the City’s airport be quieted in the City. Defendants were alleged to be the record owners of the aforementioned pieces of property, which were individually identified by legal description in the petition. The City alleged that it had acquired ownership of each piece of property through adverse possession because it had openly, notoriously and adversely occupied and used these four tracts of land since 1951 as part of the municipal airport.

The case was tried in June 1999. At that time, all of the defendants were represented by the same attorney. Prior to the presentation of evidence, the defendants’ attorney moved to dismiss the City’s petition on the ground that quieting title to the disputed tracts of land in the City, through adverse possession, would be an unconstitutional “taking” without just compensation. This motion was the only mode by which this issue was raised at trial. Defendants did not file a counterclaim asking for payment of just compensation in the event the trial court ruled in favor of the City on its quiet title action. The trial court took the motion to dismiss under advisement with the case. In February 2004, the trial court entered an amended judgment denying the motion to dismiss and quieting title to all of the disputed tracts of land in the City.

The Freemans and Bibys (hereinafter collectively referred to as “Appellants”) present one point for decision in their appeal. They contend the trial court erred by relying on adverse possession to quiet title in the City because that ruling violates art. I, § 26. This section states, in pertinent part, that “private property shall not be taken or damaged for public use without just compensation.”

In this court-tried case, our review is governed by Rule 84.13(d). We must affirm the trial court’s judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Lee v. Hiler, 141 S.W.3d 517, 520 (Mo.App.2004). We review the evidence and all reasonable inferences in the light most favorable to the judgment and disregards all contrary evidence and inferences. Arndt v. Beardsley, 102 S.W.3d 572, 574 (Mo.App.2003). Since the trial court was not asked to provide findings of fact, all fact issues will be considered on appeal as having been found in accordance with the result reached. Rule 73.01(c); Golden Delta Enter. v. City of Arnold, 151 S.W.3d 119, 121-22 (Mo.App. 2004); Coursen v. City of Sarcoxie, 124 S.W.3d 492, 495 (Mo.App.2004).

We begin our analysis by noting that public entities in this state can acquire title to real property by adverse possession. See, e.g., Terry v. City of Independence, 388 S.W.2d 769, 770-71 (Mo. 1965) (municipality); Southern Reynolds County School Dist. v. Callahan, 313 S.W.2d 35, 38 (Mo.1958) (school district); Szombathy v. City of Berkeley, 280 S.W.2d 834, 836 (Mo.1955) (municipality); Basye v. Fayette R-III School Dist. Bd. of Educ., 150 S.W.3d 111, 116 (Mo.App.2004) (school district); Rector v. Missouri Dep’t of Natural Res., 685 S.W.2d 225, 227 (Mo.App. 1984) (state agency). “The elements necessary to establish title to property by adverse possession are: (1) the possession must be hostile and under claim of right; (2) possession must be actual; (3) possession must be open and notorious; (4) possession must be exclusive; and (5) possession must be continuous for the requisite period.” Lacy v. Schmitz, 639 S.W.2d 96, 99 (Mo.App.1982). The required statutory period is ten years. § 516.010; Rector, 685 S.W.2d at 227.

Based on the result reached below, the trial court found that the City proved each of the foregoing elements as to all four disputed parcels of land. Appellants have not challenged this ruling on appeal. Viewed in a light most favorable to the judgment, the City acquired title by adverse possession to the land formerly owned by Appellants many years prior to the institution of the City’s quiet title action.

Appellants base their assault on the judgment upon art. I, § 26. They argue that allowing a municipality to acquire ownership of land by adverse possession violates the constitutional prohibition against private property being “taken ... for public use without just compensation.” We find this argument to be without merit.

We first address the issue of whether acquiring real estate for a municipal airport constitutes a “public use” of the property. We conclude that it does. While municipalities in this state do not possess an inherent right to exercise the power of eminent domain, this authority can be delegated to them by the legislature. City of Kansas City v. Hon, 972 S.W.2d 407, 410 (Mo.App.1998). Section 305.170 specifically authorizes a municipality to acquire property for the establishment, construction and operation of an airport. The acquisition of real property for a municipal airport is a public use. Hon, 972 S.W.2d at 414; § 305.190. Therefore, the dispositive question here is whether a municipality’s acquisition of such property by adverse possession constitutes a constitutional taking of the property so as to require that just compensation be paid.

We find the answer to this question in Barker v. St. Louis County, 340 Mo. 986, 104 S.W.2d 371 (1937). In Barker, the Supreme Court considered the constitutionality of a state statute which barred a landowner from claiming damages for the taking of his or her property for a public road or bridge unless the claim was filed within 20 days after the last day of publication of a notice describing the location of the road or bridge. The court described the issue thusly: “[t]he constitutionality of that part of section 7840, R.S.1929, Mo.St. Ann. § 7840, p. 6740, permitting private property to be taken for public use, without just compensation, by nonaction (short of the general statute of limitations) of the owner, is the question.” Id. at 372. The court cited with approval the following quotation from 2 Lewis, Eminent Domain (3rd ed.) § 966:

Where the constitution either expressly, or as interpreted by the courts, requires compensation to be first made for property taken for public use, a law which casts the initiative upon the owner and requires him to prosecute his claim for compensation within a time limited or be barred, is invalid. Where under such a constitution property is appropriated to public use without complying therewith, the owner’s right to compensation is not barred, except by adverse possession for the prescriptive period.

Id. at 374. In holding the 20-day time limit for filing claims allowed by § 7840 unconstitutional, the court was careful to distinguish a general statute of limitations from the much shorter time period being invalidated in Barker:

What we say here has no effect on cases where a landowner, by some affirmative action, waives his right to compensation or is barred by the general statute of limitation. In view of the very clear and mandatory directions of our Constitution on taking private property for public use, we do not think that the twenty days’ provision in section 7840, R.S.1929 (Mo.St.Ann. § 7840, p. 6740), can be said to be a statute of limitations in such sense as to bar a landowner who fails to file a claim within the time prescribed.

Id. at 377. Because the court overruled one of its prior decisions that had approved the 20-day time limit in § 7840, the court made its ruling prospective, except as to the plaintiff in Barker. In explaining why that was done, the court once again was careful to point out that the owner of private property would not be entitled to compensation if he lost title to his land due to adverse possession:

We hold that the effect of the present decision, holding section 7840, R. S.1929 (Mo.St.Ann. § 7840, p. 6740), void in part, and overruling the Petet Case, in so far as it conflicts with our ruling here, shall be prospective only and not retroactive, except as to plaintiff. He has borne the burden of bringing about a result which will, in the future, give assurance to the property owner that his property cannot be taken for public use except by compliance with section 21, art. 2, of the Constitution, or by adverse possession for the prescriptive period.

Id. at 379. Thus, we interpret Barker to hold that a public entity’s acquisition of private property for a public use by adverse possession extinguishes the former owner’s constitutional right to receive just compensation.

The holding in Barker is consistent with those found in a number of cases from other states interpreting their own constitutional provisions that are identical, in all pertinent respects, to art. I, § 21. See, e.g., Weidner v. Dep’t of Transp. & Pub. Facilities, 860 P.2d 1205, 1212 (Alaska 1993); Commonwealth v. Stephens, 407 S.W.2d 711, 712 (Ky.1966); Stickney v. City of Saco, 770 A.2d 592, 603 (Me.2001); Rogers v. Marlin, 754 So.2d 1267, 1278 (Miss.App.1999); State ex rel. A.A.A. Inv. v. City of Columbus, 17 Ohio St.3d 151, 478 N.E.2d 773, 774-75 (1985); Reitsma v. Pascoag Reservoir & Dam, LLC, 774 A.2d 826, 837-38 (R.I.2001); Petersen v. Port of Seattle, 94 Wash.2d 479, 618 P.2d 67, 70 (1980). The Stephens case from Kentucky contains a simple, yet cogent, explanation of the rationale underlying this principle of law:

It was the view of the Chancellor that under sections 13 and 242 of our Constitution the state and other governmental units are prohibited from taking property without paying just compensation therefor, and to permit the acquisition of title by adverse possession would violate these provisions. This overlooks the fact that after the running of the statute of limitation, the original owner is no longer in a position to assert title to the property and it has effectively vested in the adverse possessor. Thus it may be said that since the original owner has lost his claim of title, the state is no longer taking his property.... It has been suggested that the owner is helpless to prevent encroachment on this property by the Commonwealth so as to stop the running of the limitation period against him.... However, the property owner does at least have a remedy in the form of a reverse condemnation proceeding against the state.... This remedy we deem sufficient to protect the landowner’s rights.

Stephens, 407 S.W.2d at 712 (citations omitted).

We agree with the analysis in Stephens that a public entity is no longer “taking” private property after it acquires title by adverse possession. We also agree that an owner of private property in Missouri has an adequate remedy, in the form of a timely-filed inverse condemnation action, if his or her property is taken by a public entity without payment of just compensation.

An action for inverse condemnation lies if a public entity with condemning authority does not actually condemn a parcel of property, but nevertheless appropriates the property for public use. See State ex rel. State Hwy. Comm’n v. Swink, 537 S.W.2d 556, 558 (Mo. banc 1976); see also Missouri Real Estate & Ins. Agency, Inc. v. St. Louis County, 959 S.W.2d 847, 849 (Mo.App.1997) (inverse condemnation is a cause of action against a governmental agency to recover the value of property taken by the agency, though no formal exercise of the power of eminent domain has been completed); L & T Inv. Corp. v. State, ex rel. Missouri Hwy. and Transp. Comm., 927 S.W.2d 509, 510 (Mo.App. 1996) (same holding). The statute of limitations for bringing an inverse condemnation action is ten years, which is the same as the period of limitations for acquiring title to property by adverse possession. See Shade v. Missouri Hwy. and Trans. Comm’n, 69 S.W.3d 503, 513 (Mo.App. 2001). Thus, the failure of a public entity to initiate a condemnation proceeding does not leave a private property owner without a remedy. An owner can receive the just compensation guaranteed by art. I, § 26 by filing an action for inverse condemnation before the expiration of the ten-year statute of limitations for adverse possession established by § 516.010.

In the case at bar, Appellants did not commence an action for inverse condemnation before the ten-year statute of limitations expired. Therefore, they lost title to their land by adverse possession. Once that occurred, their right to receive just compensation pursuant to art. I, § 26 was extinguished. Accordingly, the trial court properly denied the motion to dismiss the City’s quiet title action. The judgment of the trial court is affirmed.

PARRISH, P.J., and SHRUM, J., concur.

      . All references to state constitutional provisions are to the Missouri Constitution of 1945, unless otherwise specified.

      . All references to rules are to the Missouri Court Rules (2004).

        .Murphy interpreted the provisions of former Rule 73.01(c). The provisions of that rule were transferred, in essentially the same form, to Rule 84.13(d) effective January 1, 2000.

      . All references to statutes are to RSMo (2000), unless otherwise specified.

      . Appellants question the City’s ability to acquire title by adverse possession because § 516.090 prohibits a municipality from losing land by adverse possession. This argument was rejected long ago by the Supreme Court of Missouri in Dudley v. Clark, 255 Mo. 570, 164 S.W. 608 (1914). There, the court was interpreting § 1886 RSMo (1909), which is textually identical to § 516.090. The court held that § 1886 was directed to preventing land acquired by a public, pious or charitable entity from being lost by limitation, "not to forbidding it gaining title by limitation.” Id. at 613. Dudley is still controlling on this point of law. See Basye v. Fayette R-III School Dist. Bd. of Educ., 150 S.W.3d 111, 116 (Mo.App.2004) (citing Dudley to support the court’s holding that § 516.090 does not prevent public entities from gaining title to real property by adverse possession).

      . At &at time, the constitutional prohibition against taking or damaging private property for public use without just compensation was found in art. II, § 21 of the Missouri Constitution of 1875.


text:
    In the Interest of A.J.M., R.J.M. and L.M.H. C.H.M. Appellant, v. The GREENE COUNTY JUVENILE OFFICE, Respondent.
    Nos. 26488 to 26490.
    Missouri Court of Appeals, Southern District, Division One.
    March 30, 2005.
    Larry B. Moore, Springfield, for Appellant.
    William C. Prince, Springfield, for Respondent.
    Before GARRISON, P.J., PREWITT, J., and RAHMEYER, J.
   ON MOTION FOR REMAND

PER CURIAM.

C.H.M., natural mother of minor children A.J.M., R.J.M., and L.M.H, appeals from the judgments of the Circuit Court of Greene County terminating her parental rights as to each child. We remand for a new trial.

Petitions to terminate the parental rights of C.H.M. as to A.J.M., R.J.M., and L.M.H. were filed by the Greene County Juvenile Office and were later consolidated for hearing. The trial court terminated C.H.M.’s parental rights as to all three children, and C.H.M.’s appeals in this court, case numbers 26488, 26489, and 26490, have been consolidated.

The transcript ordered by C.H M. and filed with this court is not complete as it does not include approximately one hour and fourteen minutes of testimony. C.H.M. filed a motion to remand the appeals, claiming that the missing testimony is due to a malfunction with the sound recording equipment. She also filed an affidavit from the Central Transcribing Service stating that the transcript could not be completed due to the malfunctioning equipment.

The unrecorded testimony was part of that given by DFS worker Cassie Geith-man and all of that given by DFS worker Jason Kearbey. C.H.M. claims that she is prejudiced by the missing record because the two witnesses gave testimony regarding her compliance with a treatment plan required before reunification with the three children. She also claims that the missing testimony could provide additional grounds for appeal. C.H.M. contends that she exercised due diligence in preparing a complete transcript and her inability to do so is not a result of her fault or negligence.

Rule 81.12(a) requires a record of all proceedings and where the transcript is incomplete, this court cannot determine what evidence was considered and received by the trial court. Loitman v. Wheelock, 980 S.W.2d 140, 141 (Mo.App. E.D.1998). “Where a party is free from fault or negligence, has exercised due diligence in seeking to prepare the record on appeal, and his right of appeal is prejudiced because a transcript of the proceedings in the trial court cannot be prepared, a new trial should be granted.” Jackson v. Director of Revenue, 60 S.W.3d 707, 708 (Mo.App. S.D.2001) (quoting Dykes v. McNeill, 735 S.W.2d 213, 213-14 (Mo.App. S.D.1987)); see also Lynn v. Plumb, 808 S.W.2d 439, 440 (Mo.App. S.D.1991). Here, it was through no fault or negligence of C.H.M. that the transcript was unable to be completely prepared, and her right of appeal could be prejudiced by the missing testimony. Therefore, we must reverse the judgments of the trial court and remand for a new trial.