text:
    STATE of Missouri, Plaintiff/Respondent, v. Jeffrey BOURRAGE, Defendant/Appellant.
    No. ED 85476.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 8, 2005.

      Gwenda Renee’ Robinson, St. Louis, MO, for Appellant.
    Shaun J. Mackelprang, Ronald Salvatore Ribaudo, co-counsel, Jefferson City, MO, for Respondent.
   SHERRI B. SULLIVAN, J.

Introduction

Jeffrey Bourrage (Defendant) appeals from a judgment of conviction of possession of a controlled substance and unlawful use of a weapon. Defendant alleges the trial court plainly erred in failing to sua sponte strike portions of the prosecutor’s rebuttal closing argument, failing to declare a mistrial, or in the alternative, failing to hold an investigative hearing on alleged juror misconduct, finding him to be and sentencing him as a persistent offender, and entering a written sentence and judgment that materially differed from the court’s oral pronouncement of sentence. We affirm and remand for further proceedings.

Factual and Procedural Background

Defendant does not challenge the sufficiency of the evidence to support his conviction. Viewed in the light most favorable to the verdict, the evidence adduced at trial reveals the following. On August 7, 2002, police officer Thomas Kranz (Kranz) pulled over a car that did not have a rear license plate or a temporary tag. Defendant was driving the car. As Kranz got out of his car, he saw Defendant bend over, placing himself out of Kranz’s sight, and then pop up to an upright position. Suspecting Defendant was trying to conceal contraband or a weapon, Kranz asked Defendant to get out and go to the back of his car, which Defendant did.

Kranz asked Defendant if he was carrying a weapon or if there was a weapon in his car, to which Defendant replied, “Nothing in the car.” Kranz patted down Defendant for weapons. While patting down the exterior of Defendant’s shoes, Kranz felt the outline of a handgun. Kranz handcuffed Defendant; removed the concealed handgun, a functioning .22 caliber revolver loaded with four live rounds; arrested Defendant for unlawful use of a weapon and carrying a concealed weapon; and advised Defendant of his Miranda rights. Subsequently, Kranz found two chunks of crack cocaine in a baggie in Defendant’s pants pocket.

At the time of his arrest, Defendant was on probation for two prior felony convictions, one for unlawful possession of a weapon (Cause Number 011-1561) and one for knowingly burning or exploding (Cause Number 011-3243).

Defendant was charged by information as a prior and persistent offender with possession of a controlled substance (Count I), a class C felony in violation of Section 195.202, and unlawful use of a weapon (Count II), a class D felony in violation of Section 571.030.1(1). The case proceeded to a jury trial.

At trial, Defendant testified in his own defense. Defendant denied having possession of either the gun or the drugs and suggested that the items belonged to a pregnant passenger in the car whom Kranz did not arrest. Subsequently, the jury found Defendant guilty as charged.

Defendant filed a motion for judgment of acquittal at the close of the State’s evidence and at the close of all the evidence and a motion for new trial. The trial court denied all three motions. The trial court entered a judgment in accordance with the jury verdict and sentenced Defendant as a prior and persistent offender to eleven years’ imprisonment on Count I and four years’ imprisonment on Count II. During the sentencing hearing, the trial court pronounced that the sentences for Counts I and II were to run concurrent with each other. However, the written sentence and judgment indicates that Count II is to run consecutive to Count I. During the sentencing hearing, the trial court also pronounced that the sentences in this case were to run concurrent with the sentences imposed in Cause Number 011-1561 and Cause Number 011-3243 in the Circuit Court of the City of St. Louis. The written sentence and judgment supports this pronouncement.

Discussion

Defendant raises four points on appeal, each of which seeks plain error review. A claim not properly preserved for appellate review may be considered for plain error at our discretion. Rule 30.20. Under this standard, reversal requires a plain error affecting a substantial right that results in manifest injustice or miscarriage of justice. Id. Plain errors are evident, obvious, and clear, and we determine whether such errors exist based on the facts and circumstances of each case. State v. Johnson, 150 S.W.3d 132, 136 (Mo.App. E.D.2004). Plain error review is to be used sparingly. State v. Knese, 985 S.W.2d 759, 770 (Mo. banc 1999). A defendant bears the burden of demonstrating manifest injustice or miscarriage of justice. State v. Tokar, 918 S.W.2d 753, 770 (Mo. banc 1996).

In his first point on appeal, Defendant argues that the trial court plainly erred in failing to sua sponte strike portions of the prosecutor’s rebuttal closing argument.

To reverse a conviction under plain error review on a claim of improper closing argument, a defendant must establish not only that the argument was improper, but also that it had a decisive effect on the outcome of the trial and would amount to a manifest injustice or miscarriage of justice if the error was left uncorrected. State v. Jones, 128 S.W.3d 110, 113 (Mo.App. E.D.2003). For an argument to have had a decisive effect, there must be a reasonable probability that, in the absence of the argument, the verdict would have been different. State v. Williams, 145 S.W.3d 874, 878-879 (Mo.App. E.D.2004). Statements made during closing argument rarely amount to plain error. Jones, 128 S.W.3d at 113. We especially hesitate to find plain error in the context of closing argument because the decision to object is often a matter of trial strategy, and in the absence of objection and request for relief, the trial court’s options are narrowed to uninvited interference with summation and a corresponding increase of error by such intervention. State v. Edwards, 116 S.W.3d 511, 536 (Mo. banc 2003).

Defendant objects to the following comments made during the prosecutor’s rebuttal closing argument.:

Now, Ladies and Gentlemén, I don’t know why the defendant had the gun, but you can use reason and common sense to figure that guns and drugs go hand in hand. Maybe he’s a drug dealer. I don’t know and I’m not asserting that. Maybe he had it to protect himself while he made sales. Maybe he’s a drug user and maybe he doesn’t like dealing with the type of people he has to go to to get the type of items he had. Maybe he just likes guns. I don’t know and I don’t have to prove it.
Ladies and Gentlemen, we don’t condone drunk driving in our country because putting someone behind the wheel of an automobile while they’re under the influence of alcohol is dangerous. Well, letting someone carry, a weapon and crack cocaine is equally as deadly. You may as well just turn him loose because, if you want him going out there smoking crack cocaine and playing with firearms, that’s really — that’s your call.
Now, you swore to do a duty. Again, [defense counsel] was right about that. And you have to go back and do your duty. And you have to realize that this isn’t some victimless crime. There’s three hundred thirty thousand people in this City, Ladies and Gentlemen ... that are involved with the trade that defendant is involved in for whatever reason in whatever way. Ladies and Gentlemen, these items are small. Do not let their size diminish the importance of what is going on here.
Ladies and Gentlemen, these are just part of a larger problem that are tearing neighborhoods, tearing blocks like the Wells-Goodfellow neighborhood down bit by bit. And, Ladies and Gentlemen, he can come in here and he can tell you whatever he wants, but you have to be reasonable and you have to listen to the believable evidence.

According to Defendant, these comments suggested that Defendant was a drug dealer, that Defendant was one of three hundred thirty thousand people in St. Louis City involved with the drug trade, and that Defendant was part of a larger problem tearing down the neighborhoods. Defendant maintains that the comments were outside the record, implied special knowledge of facts outside the evidence, and appealed to the jury, as a community of conscience, to convict Defendant for a greater, uncharged crime for which Defendant was not on trial.

Assuming the prosecutor’s comments were improper, we conclude that Defendant has not met his burden to show that the comments had a decisive effect on the outcome of the trial. We cannot reasonably conclude that the jury ignored Defendant as a witness and impermissibly relied on the prosecutor’s “characterizations” of Defendant to determine who they believed, as suggested by Defendant. Rather, we reasonably presume that the jury weighed Kranz’s testimony against Defendant’s testimony and made a credibility determination, as is their role, to reach their verdict. We also note that the trial court instructed the jury that the attorneys’ arguments are not evidence. We presume the jurors followed this instruction. See State v. Madi son, 997 S.W.2d 16, 21 (Mo. banc 1999). Therefore, we cannot reasonably conclude that in the absence of the prosecutor’s comments, the verdict would have been different. Thus, the prosecutor’s comments did not rise to the level of plain error requiring sua sponte intervention by the trial court. Accordingly, the trial court did not plainly err in failing to sua sponte strike portions of the prosecutor’s rebuttal closing argument. Defendant’s point one on appeal is denied.

In his second point on appeal, Defendant argues that the trial court plainly erred in failing to declare a mistrial, or in the alternative, in fading to hold an investigative hearing on alleged juror misconduct because after the jury had been seated but before it had been sworn, Juror Darren Johnson (Juror Johnson) committed juror misconduct by talking to Defendant about the criminal case for which Defendant was on trial and the State did not affirmatively show that the remaining jurors were not subject to improper influence due to Juror Johnson’s misconduct.

The following proceedings took place in chambers the morning after the jury had been seated but before it had been sworn:

THE COURT:.... Mr. Johnson, tell me what happened last night.
JUROR JOHNSON: Well, I don’t know. I don’t know the fellow. I seen him yesterday.
THE COURT: You’re talking about the defendant in the case?
JUROR JOHNSON: Yes.
THE COURT: So what happened? Did he talk to you last night?
JUROR JOHNSON: Yes, I talked to him. I didn’t know it was him at first.
THE COURT: So what did you talk about?
JUROR JOHNSON: Well, he talked to me about the case.
THE COURT: Talked to you about the case?
JUROR JOHNSON: He shared a little knowledge with me about the case.
THE COURT: What knowledge did he share with you about the case? What do you know about the case? Tell me everything you know about the case right now. I just want to say you’re not in trouble. I just want you to be comfortable with that. I just need to know what was said.
JUROR JOHNSON: Whatever. He just told me about the case, about the drugs, that he’s in trouble for it, and about what he had and this and that.
THE COURT: Where did you have this conversation with him at? Where were you guys?
JUROR JOHNSON: I was leaving, going home yesterday.
THE COURT: And he saw you outside and told you that?
JUROR JOHNSON: Yeah, that’s a yes.
THE COURT: So were you guys on the courthouse steps?
JUROR JOHNSON: No.
THE COURT: Where were you?
JUROR JOHNSON: We were far away from the building.
THE COURT: Really?
JUROR JOHNSON: [Nodded.]
THE COURT: Was he by himself when he was talking to you?
JUROR JOHNSON: Yeah.
[DEFENSE COUNSEL]: One question, Judge. Mr. Johnson, what was he wearing when you had the conversation with him?
JUROR JOHNSON: A T-shirt on.
[DEFENSE COUNSEL]: What kind of T-shirt?
JUROR JOHNSON: I don’t know, just a regular shirt, that’s all.
[DEFENSE COUNSEL]: What color was it?
JUROR JOHNSON: It was a white one.
THE COURT: What else did you learn about the case? Did you learn there were some drugs? Did he talk to you about where it happened at?
JUROR JOHNSON: No.
THE COURT: So where did he say the drugs were? Or did he say he didn’t have the drugs?
JUROR JOHNSON: Basically, he just said the drugs was (sic) found in the car.
THE COURT: All right. Did he say anything else about a weapon or anything? Or a gun?
JUROR JOHNSON: Oh, yeah, he mentioned something to me about the weapon, too.
THE COURT: What kind of gun did he say it was?
JUROR JOHNSON: He didn’t tell me that.
THE COURT: What did he tell you about the gun? Where did he say the gun was found?
JUROR JOHNSON: He just said the weapon was found in the car and there was somebody else riding in the car with him.
THE COURT: All right. Is there anything else you remember?
JUROR JOHNSON: That’s it.
THE COURT: Did he ask you not to let us know?
JUROR JOHNSON: He didn’t tell me not to let you know. He told me to just keep quiet about it. I didn’t think it was necessary for me to be in the court. I don’t know the guy, but he knows me.
THE COURT: He knows you?
JUROR JOHNSON: He doesn’t know my name but he’s probably seen me around the neighborhood before.
THE COURT: All right. Okay, thanks a lot. Do you have any follow-up questions?
[PROSECUTOR]: No.
THE COURT: Any follow-up, [Defense Counsel]?
[DEFENSE COUNSEL]: [Shook head.]
THE COURT: Thank you very much, Mr. Johnson. We appreciate it.

Subsequently, the trial court sua sponte removed Juror Johnson from the jury, replaced him with an alternate, revoked Defendant’s bond, and denied Defendant’s request for a mistrial.

Shortly thereafter, the trial court asked counsel to approach the bench where the court indicated that “there may have been others that have been talked to with respect to this ease.” Therefore, the court addressed the following to the jury:

Ladies and Gentlemen, I need to know at this time whether any of you have had any discussions whatsoever with anyone concerning the issues in this case. If so, please raise your hand. Has anyone had any discussions with you, either a juror or anyone else, with respect to any of the issues in this case?
[No response.]

We conclude that Defendant has not shown that a manifest injustice or a miscarriage of justice resulted from any alleged juror misconduct. Defendant speculates that the communication between Defendant and Juror Johnson could have been observed or overheard by other jurors. However, the evidence reveals that the communication occurred “far away” from the courthouse and that Defendant was alone when he approached Juror Johnson. The evidence also suggests that Juror Johnson was alone when Defendant approached him. Defendant also speculates that Juror Johnson may have conveyed the contents of the communication to other jurors. However, the trial court instructed both the venire panel and the seated jury that they were not to discuss the case amongst themselves, and we presume that Juror Johnson followed these instructions. See Madison, 997 S.W.2d at 21. Further, after promptly removing Juror Johnson from the jury the morning after the communication, the trial court asked the jurors whether any of them had had discussions with anyone about the case, and no juror responded in the affirmative. Plain errors are evident, obvious, and clear. We find none here.

Accordingly, the trial court did not plainly err in failing to declare a mistrial, or in the alternative, in failing to hold an investigative hearing on alleged juror misconduct. Defendant’s point two on appeal is denied.

In his third point on appeal, Defendant argues that the trial court plainly erred in finding him to be a persistent offender under Section 558.016 and in enhancing his punishment in the absence of evidence showing that Defendant’s two pri- or felony convictions occurred at different times and that Defendant was represented by counsel or validly waived counsel at the proceedings resulting in his two prior felony convictions.

Plain error review is appropriate where it appears a defendant has been improperly sentenced as a prior or persistent offender. Johnson, 150 S.W.3d at 136. Section 558.016.3 defines a “persistent offender” as “one who has pleaded guilty to or has been found guilty of two or more felonies committed at different times.”

Section 558.021.1 provides in relevant part that a court shall find a defendant to be a persistent offender if: (1) the information pleads all essential facts warranting a finding that the defendant is a persistent offender; (2) evidence is introduced that establishes sufficient facts pleaded to warrant a finding beyond a reasonable doubt that the defendant is a persistent offender; and (3) the court makes findings of fact that warrant a finding beyond a reasonable doubt by the court that the defendant is a persistent offender. Among the facts the state must prove is that the defendant was represented by counsel at the proceedings on the convictions or that the defendant was advised of that right and voluntarily waived it. State v. Russ, 945 S.W.2d 633, 634 (Mo.App. E.D.1997). The state must prove a defendant’s status as a persistent offender beyond a reasonable doubt. State v. Dixon, 24 S.W.3d 247, 250 (Mo.App. E.D.2000).

In the information, the State alleged:

Defendant is a prior offender under Section 558.016. Defendant is also a persistent offender and is punishable by sentence to an extended term of imprisonment under Sections 558.016 and 557.036 in that Defendant has pleaded guilty to, been found guilty of, or been convicted of two or more felonies committed at different times. The felonies are as follows:
On January 24, 2002, [Defendant pled guilty to the felony [u]nlawful possession of a weapon (011-1561) in the Circuit Court of the City of St. Louis, State of Missouri, and
On January 24, 2002, [Djefendent pled guilty to the felony of [k]knowingly burning or exploding (011-3243) in the Circuit Court of the City of St. Louis, State of Missouri.

At trial during direct examination, Defendant testified as follows regarding his two prior felony convictions:

Q. You have some prior convictions, don’t you?
A. Yes, sir.
Q. You’ve got two of them, right?
A. Yes, sir.
Q. You’ve pled guilty to unlawful possession of a weapon on 1/24/02, right?
A. Yes, sir.
Q. You got a seven-year suspended execution of sentence?
A. Yes, sir.
Q. Two years probation?
A. Yes, sir.
Q. On that same day, 1/24/05, you also pled guilty to knowingly burning or exploding, right?
A. Yes, sir.
Q. And you got a five-year suspended execution of sentence, right?
A. Yes, sir.
Q. And you got two years probation?
A. Yes, sir.

At trial during cross examination, Defendant testified as follows regarding his two prior felony convictions:

Q. Now, you got probation on your first two cases, right?
A. Uh-huh.

After submission to the jury, the trial court found the following:

We’re on the record with respect to the defendant’s prior felony history. The defendant testified under oath and this court finds the testimony to be an admission that, under Cause Number OH-3243, defendant pled guilty to the crime of knowingly burning and/or exploding. Thusly, the court finds that the plea of guilty occurred on or about March 14, 2002. The court finds that the defendant was sentenced to five years in the Missouri Department of Corrections; however, the execution of sentence was suspended and defendant was placed on probation for a term of two years. The record will further reflect that the crime of knowingly burning or exploding is a Class D felony.
The court further finds beyond a reasonable doubt that this defendant admitted that he had been charged with and pled guilty to the crime of criminal possession of a weapon, a Class C felony, under Cause Number 011-1561. The court finds that this plea of guilty occurred, also, on March 14, 2002. The sentence entered against defendant was a seven-year sentence in the Missouri Department of Corrections; however, that sentence was also suspended and the defendant was placed on probation for a term of two years.
The defendant having admitted as much, this court therefore finds beyond a reasonable doubt this defendant to be a prior offender for all statutory purposes including court sentencing.

In the trial court’s written sentence and judgment, the court found beyond a reasonable doubt that Defendant is a prior and persistent offender.

The trial court based its persistent offender finding on Defendant’s admission at trial of having pled guilty to two prior felonies. However, the record, including Defendant’s testimony, includes no evidence that the two prior felonies were committed at different times, as required by Section 558.016.8. Defendant’s admission establishes that he had two prior felony convictions, but his admission does not establish beyond a reasonable doubt that the felonies were committed at different times. See Matthews v. State, 123 S.W.3d 307, 310 (Mo.App. E.D.2003). The State did not present additional testimony or offer into evidence any exhibits demonstrating that the two prior felonies were committed at different times nor did the trial court take judicial notice of the court files for the two prior felony convictions. See, e.g., State v. Reynolds, 161 S.W.3d 887 (Mo.App. E.D.2005); Eakins v. State, 734 S.W.2d 290, 292 (Mo.App. E.D.1987) (the movant’s admission that he had been convicted of two prior felonies was insufficient evidence to show that the felonies were committed at different times without any other evidence to support that conclusion).

Further, we cannot clearly infer from the record that the two prior felonies were committed at different times. Courts may infer the prior felonies were committed at different times when the record, by reason of dates, geography and the nature of the offenses, in the absence of contrary evidence, supports a finding beyond a reasonable doubt that the prior felonies were committed at different times. Russ, 945 S.W.2d at 636. Defendant’s two prior felony convictions occurred in St. Louis City on the same date. See Id. (declining to apply the clear inference principle where both offenses occurred in the same city and the convictions came only a month apart). The State argues that Defendant’s two prior felony convictions were charged in separate indictments or informations, indicating that they were not part of a common scheme or plan, that is, that they were committed at different times. The State cites Rule 23.05 to support its argument. However, Rule 23.05 provides that “[a]ll offenses that are of the same or similar character or based on two or more acts that are part of the same transaction or on two or more acts or transactions that are connected or that constitute parts of a common scheme or plan may be charged in the same indictment or information in separate counts.” (emphasis added). Because the rule is discretionary, we cannot clearly infer that Defendant’s two prior felony convictions were committed at different times simply because they were charged in separate indictments or informations. We also cannot conclude, as the State argues, that the nature of the two prior felonies creates a clear inference that they necessarily were committed at different times. Therefore, although the two prior felonies may have been committed at different times, the record does not show beyond a reasonable doubt that they were.

Where a defendant has been improperly sentenced as a prior or persistent offender, a manifest injustice has occurred, and it is plain error. Dixon, 24 S.W.3d at 250. From the record before us, we conclude that Defendant was improperly sentenced as a persistent offender because the State failed to offer evidence proving beyond a reasonable doubt that Defendant’s two prior felonies were committed at different times. Thus, the trial court plainly erred in finding Defendant to be a persistent offender under Section 558.016 and in enhancing his punishment.

Accordingly, we vacate Defendant’s sentence and remand the case to the trial court for an evidentiary hearing on the issue of Defendant’s persistent offender status and for possible resentencing consistent with the outcome of that hearing. On remand, the State may offer any evidence it may have related to Defendant’s persistent offender status.

In his fourth point on appeal, Defendant argues that the trial court plainly erred in entering a written sentence and judgment that materially differed from the court’s oral pronouncement of sentence in that the written sentence and judgment indicates that Defendant’s sentences are to run consecutively with each other whereas the court’s oral pronouncement of sentence indicated that the sentences were to run concurrently with each other.

When the written sentence differs from the sentence orally imposed, the oral pronouncement controls unless the record shows the oral sentence is not materially different than the written one or the trial court had no discretion to enter a sentence different from the written one. State v. Haughton, 130 S.W.3d 725, 726 (Mo.App. E.D.2004). The State concedes that the trial court plainly erred. However, because we vacated Defendant’s sentence under point three, this point is moot.

Conclusion

The judgment of conviction is affirmed. The case is remanded to the trial court for further proceedings consistent with this opinion.

NANNETTE A. BAKER, P.J., and ROBERT G. DOWD, JR., concur.

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

      . All rule references are to Mo. R.Crim. P.2005, unless otherwise indicated.

      . The alleged error in this point relied on is not preserved for appellate review because Defendant failed to present it in his motion for new trial. See Jones, 128 S.W.3d at 113 (error is not preserved unless it is both objected to throughout trial and included in a motion for new trial).

      . We note that Section 558.021.2 provides in relevant part that the facts warranting a finding that a defendant is a persistent offender are to be found prior to submission to the jury. Although in a footnote Defendant criticizes the trial court for this procedural error, he does not raise the issue in his point relied on nor does he allege any resulting prejudice.

      . We note that a defendant’s admission at trial of prior convictions may properly be relied upon for purposes of enhancement of punishment notwithstanding the absence of evidence that the defendant was represented by counsel or validly waived counsel at the proceedings resulting in those prior convictions. State v. Johnson, 837 S.W.2d 39, 41 (Mo.App. W.D.1992).


source: Caselaw Access Project

author: ROBERT S. BARNEY, Judge.

license: Public Domain

text:
    VALUE LUMBER COMPANY, a Missouri Corporation, and Ira L. DeJarnette, Trustee of the Ira L. DeJarnette Living Trust, Plaintiffs/Respondents, v. George Alan JELTEN and Geraldine Jelten, husband and wife, Defendants/Third-Party Plaintiffs/Appellants, and Charles M. Wofford and Cynthia Wofford, husband and wife, Defendants/Third-Party Plaintiffs, and The Barry County Abstract & Title Co., a Missouri Corporation, Defendant, v. Ira L. DeJarnette, Third-Party Defendant/Respondent.
    No. 26447.
    Missouri Court of Appeals, Southern District, Division II.
    Nov. 8, 2005.

      Richard L. Anderson, Branson West, for appellants.
    Deborah K. Dodge, Hall, Ansley, Rodgers & Condry, P.C., Springfield, for respondents.
   ROBERT S. BARNEY, Judge.

This appeal arises from a contract for sale of real properties (“the Contract”) entered into on September 27, 1999, between Plaintiffs and Defendants. The Contract’s terms provided, inter alia, that Plaintiffs agreed to sell certain real estate in Barry County, Missouri, to Defendants Jelten and Defendants Wofford for the sum of $276,000.00. Paragraph 4 of the Contract set out, in part, that the “purchase price is due and payable at closing in the form of [Defendants’] assumption of $83,000.00 of [Plaintiffs’] debt to Liberty Bank (assumption or by ‘Contract for Deed’), and the balance by cash and/or ‘Note and Deed of Trust’ to [Plaintiffs] or assigns.”

Ultimately, when Liberty Bank did not permit the assumption of the outstanding construction loan, and after the parties could not agree on the “Contract for Deed” mentioned in the Contract, Defendants Jelten executed a promissory note dated January 27, 2000, made payable to Value Lumber in the principal amount of $88,000.00, with interest at 9 percent, together with a deed of trust on “Parcel 6” (described in the Contract) as security for the note.

This suit was initiated on March 3, 2000, when Plaintiffs filed their initial petition asserting mutual mistake, a scrivener’s error, and, thus, reformation of the Contract, claiming the purchase price was meant to be $83,000.00 higher than what was represented in the Contract.

While the suit was pending, the Trust and Value Lumber foreclosed on their deed of trust securing the $60,000.00 and $133,000.00 promissory notes, and the Trust purchased the properties secured by the deed of trust at a foreclosure sale.

On December 17, 2001, Plaintiffs filed a second amended petition. In their second amended petition, and for the first time in the litigation, Value Lumber alleged in “Count V — Action on Promissory Note,” that Defendants Jelten had executed a promissory note for $83,000.00 made payable to Value Lumber, but had “failed, neglected and refused to pay said note according to its terms.” Accordingly, Value Lumber prayed for judgment against Defendants Jelten in the principal sum of $83,000.00, together with interest at the Contract rate from January 6, 2000, reasonable attorneys’ fees, costs and disbursements, and interest from the date of judgment.

On September 24, 2002, the trial court granted partial summary judgment in favor of Value Lumber and against Defendants Jelten in the sum of $83,000.00, together with interest at the rate of 9 percent from January 6, 2000. The trial court determined that as to Count V of Value Lumber’s second amended petition there was “no genuine issue of material fact and that [Value Lumber] is entitled to Judgment as a matter of law....” As explained in greater detail, below, the trial court then set out that “execution on the judgment on Count V will be stayed until all counts are fully disposed of by this Court.”

On September 8, 2003, Plaintiffs filed a third amended petition which, inter alia, requested a deficiency judgment against Defendants Jelten in satisfaction of the amounts Defendants Jelten owed on the remaining promissory notes after application of the proceeds from the foreclosure sale. In Count V of the third amended petition, Value Lumber also re-alleged its claim against Defendants Jelten on the $83,000.00 promissory note, replicating Count V of its second amended petition. No mention was made of the trial court’s earlier grant of partial summary judgment, which had been “stayed until all counts [were] fully disposed of by [the trial] Court.”

A bench trial was held on September 24-30, 2003. The matter was tried to the court based on the allegations of the third amended petition, and the answer and affirmative defenses raised in Defendants’ response to the third amended petition, together with Defendants Jeltens’ counterclaim and third-party petition against De-Jarnette.

In its March 30, 2004, final judgment, the trial court made numerous findings of fact. The trial court denied Plaintiffs’ count seeking to reform the Contract and denied Defendants Jeltens’ counter-claim and third-party petition. It also expressly set out that “the previous Order of Partial Summary Judgment in favor of [Value Lumber] and against [Defendants Jelten] in the sum of $83,000.00 together with interest at the rate of 9 [percent] per annum from and after January 9, 2000, be and the same is made final for purposes of appeal.” The trial court also entered judgments allocating credits and awarding a money judgment in favor of Plaintiffs in accordance with their interest in the foreclosed deed of trust. This appeal followed.

Defendants Jelten bring three points on appeal. However, because their first point assists in the disposition of this appeal, we choose only to address it in this opinion.

In their first point, Defendants Jelten allege the trial court’s judgment awarding Value Lumber $83,000.00 plus interest on its the unsecured note should have been offset by $53,442.36, which represented the “unused credit” on the Liberty Bank construction loan per terms of the Contract. They maintain the trial court’s judgment is excessive, unsupported by the evidence and against the great weight of evidence.

As previously related, on September 24, 2002, pursuant to Count V of the second amended petition, the trial court granted partial summary judgment on the promissory note in favor of Value Lumber and against Defendants Jelten “in the amount of $83,000.00 together with interest....” The partial summary judgment was not made appealable. See Rule 74.01(b). Rather, the trial court specifically set out in a docket entry that:

[b]ecause said note is linked with the contracts and transactions in issue and because multiple claims exist between the parties, it would not be sound judicial economy nor appropriate to declare [this partial summary judgment] to be final for purposes of appeal. Further, execution on the judgment on Count V will be stayed until all counts are folly disposed of by this Court.

It is clear that this ruling was based on the operative pleadings in effect at the time of the motion for partial summary judgment, i.e., Plaintiffs’ second amended petition, and Defendants’ response to the second amended petition.

Also, as previously set out, on September 8, 2003, Plaintiffs filed their third amended petition. In particular, in the third amended petition Value Lumber replicated Count V as stated in its second amended petition relating to its claim for $83,000.00 against Defendants Jelten. The record shows that Defendants Jelten filed their answer and affirmative defenses to Count V of the third amended petition.

In our analysis, we observe that while the parties have not questioned this Court’s jurisdiction over the instant appeal, a reviewing court has the duty to determine its jurisdiction sua sponte. Beckmann v. Miceli Homes, Inc., 45 S.W.3d 533, 538 (Mo.App.2001). “ ‘A prerequisite to appellate review is that there be a final judgment.’ ” Boley v. Knowles, 905 S.W.2d 86, 88 (Mo. banc 1995) (quoting Committee for Educ. Equality v. State, 878 S.W.2d 446, 450 (Mo. banc 1994)). “In order for a judgment to be final, it must dispose of all issues in the case and leave nothing for future determination.” Superlube, Inc. v. Innovative Real Estate, Inc., 147 S.W.3d 880, 881 (Mo.App.2004). “Until there is an order dismissing the proceedings or disposing of the cause as final, the trial court retains jurisdiction.” Bauman v. Monia, 905 S.W.2d 127, 128 (Mo.App.1995).

As a general rule, “an amendment to a pleading abandons any prior pleadings not referred to or incorporated into the new pleading.” Beckmann, 45 S.W.3d at 543. Once an amended pleading is filed, it supercedes the pleading which preceded it. Horne, 108 S.W.3d at 145. “An abandoned pleading is not considered for any purpose in the case; it becomes a mere ‘scrap of paper’ insofar as the case is concerned.” In re Estate of Caldwell, 794 S.W.2d 257, 261 (Mo.App.1990).

Furthermore, “[a]n interlocutory judgment cannot rest on an abandoned petition.” Shelby v. Slepekis, 687 S.W.2d 231, 236 (Mo.App.1985). An “interlocutory judgment is by definition tentative requiring final action” by the trial court. Id. “An interlocutory summary judgment remains open for reconsideration by the court until such time as a final appealable final judgment is entered.” Horne, 108 S.W.3d at 145; see also Rule 74.01(b). “When the petition under which liability has been determined is abandoned before the judgment matures to finality and a new petition is interposed, the issue of liability is reopened and the prior adjudication lapses.” Shelby, 687 S.W.2d at 236; see also Beckmann, 45 S.W.3d at 544.

Here, after the trial court’s ruling on Value Lumber’s motion for partial summary judgment, Value Lumber filed its third amended petition containing a claim in Count V against Defendants Jelten on the $83,000.00 promissory note. Value Lumber’s filing of a new Count V in its third amended petition served as an abandonment of the second amended petition, the petition upon which the motion for partial summary judgment was based. See In re Estate of Caldwell, 794 S.W.2d at 261. “In effect, therefore, the trial court ... granted partial summary judgment on a superseded and abandoned pleading.” Horne, 108 S.W.3d at 145. Accordingly, no recognizable determination has been made by the trial court as to the issue of liability on the $83,000.00 promissory note or whether Defendants Jelten are entitled to an offset of $53,442.36 against any purported liability under the promissory note under consideration.

Reiterating, “[i]n order for a judgment to be final, it must dispose of all issues in the case.... ” Superlube, Inc., 147 S.W.3d at 881. Here, not all issues in the case were disposed of. Accordingly, we are compelled to dismiss this appeal.

SHRUM, P.J., and BATES, C.J., concur.

      . Plaintiffs, who were the sellers of the real property at issue, are: Value Lumber Company, a Missouri Corporation ("Value Lumber”); Ira DeJarnette, individually ("DeJar-nette’'); and, the Ira DeJarnette Living Trust (“the Trust”), (collectively "Plaintiffs”). Defendants, the buyers of the property at issue, are: George Alan Jelten ("Jelten”) and Geraldine Jelten, his wife, ("Defendants Jelten”); and Charles M. Wofford and Cynthia Wofford, his wife, ("Defendants Wofford”), (collectively "Defendants”).
      Defendants Wofford do not join Defendants Jelten in this appeal. Additionally, Barry County Abstract & Title Company was dismissed from this matter without prejudice and, accordingly, does not appeal.

      . The Contract also set out at paragraph 8 that
      [cjoncurrent with the closing of this agreement, and as part of the consideration of said closing, [Plaintiffs] agree to pay the sum of $20,000.00 to Liberty Bank, on the $103,000.00 construction note and deed of trust on Parcel 6 herein, bringing the principal balance owed to said bank to a sum of $83,000.00, said balance of which [Defendants] will assume and agree to pay (by 'Contract for Deed’). Said loan has an unused credit of $53,442.36 and [Plaintiffs] will provide fund releases and payments on construction bills in a timely fashion as they become due.
      Paragraph 9 set out that
      [performance under this agreement is not contingent upon the approval of Liberty Bank for [Defendants’] assumption of the $83,000[.00] principal balance on Parcel 6 herein. Should said approval not be obtained, [Plaintiffs] agree to continue said $83,000[.00] loan in [Plaintiffs’] name and carry back a 'Contract for Deed' with [Defendants] ....
      Lastly, paragraph 12 expressly stated that
      [c]onveyance shall be by corporation warranty deed and resolution, or by general warranty deed, conveying title which is marketable of record, free from lien or encumbrance, except for the herein mentioned lien in favor of Liberty Bank, the balance of which shall be $83,000.00, less unused credits which [Defendants] will assume and agree to pay as part of this agreement by assumption or 'Contract for Deed.’

      . Defendants Jelten also executed a promissory note, dated September 30, 1999, made payable to Value Lumber in the principal amount of $60,000.00, together with interest at 9 percent; and a promissory note dated October 30, 1999, in the principal amount of $133,000.00, made payable to the Trust containing the same rate of interest. The latter two promissory notes were secured by a separate deed of trust on properties other than "Parcel 6,” as best we discern from the record.

      . Upon foreclosure of the deed of trust, the property serving as security was set for sale on March 8, 2002, at which time Value Lumber purchased the property with a bid of $191,282.85. Defendants Jelten filed a "Notice of Lis Pendens” on March 14, 2002, requesting that the March 8, 2002, foreclosure sale be set aside, because Defendants had not received reasonable notification of the sale. The first sale was then vacated and the successor trustee issued new notices of a future sale. At the second sale on April 19, 2002, the Trust purchased the property for $185,250.00.

      .While the docket sheet in the legal file reveals Defendants Jelten filed their answer to the second amended petition, the record is devoid of a copy of that particular pleading. We note that Rule 81.12(a) provides that the record on appeal "shall contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented....” "Under this rule the appellant must file a transcript and prepare a legal file so that the record contains all the evidence necessary for a determination of questions presented to the appellate court for a decision.” Envt’l Quality Research, Inc. v. Mercantile Trust Nat. Ass’n., 854 S.W.2d 500, 501 (Mo.App.1993).
      Unless otherwise specified, all references to rules are to Missouri Court Rules (2005) and all statutory references are to RSMo 2000.

      . While the trial court made extensive findings, it made no express mention of the "unused credit of $53,442.36” as set out in the Contract.

      . "An interlocutory summary judgment remains open for reconsideration by the court until such time as a final appealable final judgment is entered.” Horne v. Ebert, 108 S.W.3d 142, 145 (Mo.App.2003); Rule 74.01(b). Here, given the circumstances of this case, the trial court’s grant of partial summary judgment "could [have been] added to, amended, or set aside by the court at any time prior to final judgment.” Norwine v. Norwine, 75 S.W.3d 340, 344 (Mo.App.2002).

      . There are narrow exceptions to this rule, none of which are applicable here. See Beckmann, 45 S.W.3d at 543. We also note that abandoned pleadings may be used "as an admission against the interest of the pleader.” Evans v. Eno, 903 S.W.2d 258, 260 (Mo.App.1995). "[A]n admission in an abandoned pleading is not conclusive as to the fact alleged, and does not constitute a judicial admission.” Id.


author: JEFFREY W. BATES, Chief Judge.

text:
    Hugh BRYAN, Plaintiff-Appellant, Ruth Bryan, Plaintiff, v. Joseph W. PEPPERS, and State Farm Mutual Automobile Insurance Company, Defendants-Respondents.
    No. 26338.
    Missouri Court of Appeals, Southern District, Division Two.
    Nov. 8, 2005.

      Steven E. Marsh, Springfield, MO, for Appellant.
    Paul D. Link, Kristoffer R. Barefield, Springfield, MO, for Respondent Joseph W. Peppers.

      Monte Paul Clithero, Springfield, MO, for Respondent State Farm Mutual Automobile Insurance Company.
    No brief filed by this respondent.
   JEFFREY W. BATES, Chief Judge.

Hugh Bryan (“Bryan”) appeals from a judgment entered after a jury trial on his tort claim against Joseph Peppers (“Peppers”). Bryan sustained personal injuries when his truck was rear-ended by Peppers’ vehicle. This collision also gave rise to an uninsured motorist (“UM”) contract claim by Bryan against his insurer, State Farm Mutual Automobile Insurance Co. (“State Farm”). Bryan sought UM benefits from State Farm because a phantom driver allegedly precipitated the automobile accident by stopping suddenly and without warning on the highway ahead of Bryan and Peppers. The trial court severed the UM contract claim and ordered that it be tried after Bryan’s tort claim against Peppers. During the tort trial, Peppers’ lawyer made a comment in opening statement suggesting that Bryan could identify the alleged phantom driver and that this driver probably contributed to cause the collision. Bryan’s request for a mistrial was overruled. The jury ultimately found in favor of Bryan, but he was awarded only $1,720.32 for his injuries. On appeal, Bryan contends, inter alia, that the trial court erred in severing the UM claim and in failing to grant a mistrial after Peppers’ lawyer injected the issue of the phantom driver’s fault during opening statement. Because we find both errors in combination caused substantial prejudice to Bryan, we reverse and remand for a new trial on all issues.

I. Facts and Procedural History

On April 13, 1997, Bryan was driving his truck on Highway 65 south of Branson, Missouri. The road was straight and flat with clear visibility ahead. Bryan brought his truck to a stop because the cars in front of him were not moving. Bryan heard something behind him and looked into his rear-view mirror. He saw Peppers’ truck, which had a U-Haul trailer attached to it, approaching “too fast and smoke coming out from underneath the tires where they were obviously trying to stop.” Peppers’ truck struck the rear end of Bryan’s truck at approximately 8 to 10 miles per hour. Bryan was jolted by the impact, but he did not believe he had been hurt very badly at that time. Bryan got out of his truck and came back to check on the condition of Peppers and his two children, who were passengers in Peppers’ vehicle. None of them were injured. After Bryan and Peppers talked for a few minutes and exchanged information, they both left the scene of the collision.

The first night after the accident, Bryan began having pain in his right elbow. The muscle relaxers he was prescribed for this injury reduced, but did not entirely eliminate, his right elbow pain. A few months later, he began to experience tingling and numbness in his right hand. In April 1999, Bryan was evaluated by Dr. Tom Briggs, a neurosurgeon. After conducting a number of tests, Dr. Briggs concluded Bryan’s symptoms were caused by a spinal cord contusion he suffered during the collision. In June 1999, Dr. Briggs recommended that Bryan undergo neck surgery to improve the function of his right hand and prevent further deterioration of his condition. In June 2000, Bryan had a diskectomy and surgical fusion of the C5-C7 vertebrae in his neck, which cured the pain in his elbow and the numbness in his hand. Bryan incurred approximately $33,000 in medical bills for treatment received after the accident.

In April 2001, Bryan and his wife filed a lawsuit against Peppers and State Farm asserting a tort claim and a contract claim, respectively, against the defendants. In Bryan’s tort claim, he alleged that he sustained personal injuries and property damage when Peppers negligently collided with the rear end of Bryan’s truck. In Bryan’s contract claim, he sought to recover UM benefits from State Farm. Bryan alleged that State Farm provided UM coverage because an unknown motorist, meeting the policy’s definition of a “phantom” driver, negligently made a sudden and unexpected stop or turn on Highway 65 and thereby caused the collision which injured Bryan. In Peppers’ answer, he denied causing the collision and asserted comparative fault on the part of Bryan. In State Farm’s answer, it alleged that the collision was solely Peppers’ fault and that Bryan breached certain policy provisions that required him to report a claim involving a phantom driver.

In November 2001, Peppers filed a motion to sever the tort claim against him for a separate trial. The motion alleged that trying the tort and contract claims together “would irretrievably litter the entire trial with matters of insurance,” and “any evidence, remark or arguments by [Bryan] which might tend to inflame the jury with respect to [the UM counts] would substantially prejudice Peppers with regard to the wholly separate and distinct tort claims against him.” In December 2001, the trial court granted the motion to sever and ordered that Bryan’s tort claim against Peppers be tried first. The court did not state the grounds for its ruling.

In February 2004, Bryan’s tort claim went to trial. In Bryan’s opening statement, his attorney did not mention the phantom driver at all; he merely told the jury that Bryan had “come up on a line of cars that’d stopped in traffic” and was “waiting for the traffic up ahead to clear.” In Peppers’ opening statement, his attorney told the jury that Peppers noticed that Bryan’s truck was stopped “and that there’s cars in front of him stopped, evidently, because someone is making a left-hand turn across the highway.” After discussing Bryan’s injuries and medical treatment for some time, Peppers’ counsel returned to the topic of how the accident occurred. He characterized it as a minor, low-speed collision that caused little damage to the vehicles and then made the following statement:

Another interesting tidbit, it was — when [Bryan] comes back and checks on my guy, on Mr. Peppers, he comes back and says — hands him a piece of paper with a license plate number on it. Tells Mr. Peppers that that car that was making that turn up in front, they’ve probably contributed to this accident and—

Bryan’s counsel immediately objected and asked for a bench conference. He moved for a mistrial because this statement “gets back to the State Farm aspect, the uninsured motorist thing, and that was something I thought had been made clear that we weren’t going to go into, going into this case.” Peppers’ counsel denied that his statement referred to the uninsured motorist claim or the phantom motorist. Bryan’s counsel argued that a mistrial was required because the jury would not be able to disregard a statement, attributed to Bryan, that “here’s the license number of the fellow that I believe — I believe contributed or caused this accident....” In considering the request for a mistrial, the court stated that “my memory was that there was something about the license number of the left-turning car that you had alluded to, [Bryan’s counsel], this left-turning car, and I didn’t hear anything about who caused the accident.” After further colloquy, Peppers’ counsel then stated, “I didn’t mention the left-turning car. I mentioned that he was stopped for the — a line of cars, anyway....” The court denied the motion for mistrial and ordered Peppers’ counsel to “get off this subject.”

When the case was submitted to the jury, causation and the amount of damages were the only disputed issues. There was no contention that Bryan was at fault, and Peppers’ counsel conceded in closing argument that his client had been negligent. The jury returned a verdict in favor of Bryan and awarded him $1,720.32 for his personal injuries and $1,250 for property damage. The trial court entered a judgment in Bryan’s favor against Peppers and expressly determined that there was no just reason for delay.

This appeal followed. Bryan contends the trial court erred in: (1) severing the UM claim; (2) denying his motion for mistrial; (3) denying his motion for a new trial on damages; and (4) denying his motion for additur. Because we find Bryan’s first and second points to be dispositive, we address only these issues. Given the interrelated nature of the two points, we review them together.

II. Analysis

Preliminarily, we must address our jurisdiction to decide this appeal. As a general rule, a judgment is not final for purposes of appeal unless it disposes of all parties and all issues in the case and leaves nothing for future determination. American Family Mut. Ins. Co. v. Lindley, 112 S.W.3d 449, 451 (Mo.App.2003). Bryan’s petition asserted a tort claim against Peppers and a contract claim against State Farm. The trial court’s judgment only resolves Bryan’s tort claim against Peppers. The severance of Bryan’s contract claim against State Farm for later resolution did not constitute an “adjudication” of the claim so as to make the judgment against Peppers alone final for purposes of appeal. See Colton, McMichael, Lester, Auman, Visnovske, Inc. v. Mueller, 877 S.W.2d 702, 703-04 (Mo.App.1994).

An exception to the general rule that a judgment must dispose of all claims and all parties to be appealable, however, is found in Rule 74.01(b). City of Kansas City v. Woodson, 130 S.W.3d 7, 10 (Mo.App.2004). When more than one claim is presented or multiple parties are involved, Rule 74.01(b) authorizes a trial court to “enter a judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay.” So long as the judgment disposes of a distinct judicial unit (i.e., one complete claim as to one party) and the trial court expressly determines there is no just reason for delay, the judgment is final for purposes of appeal. Precision Investments, L.L.C. v. Cornerstone Propane, L.P., 119 S.W.3d 611, 614 (Mo.App.2003); Moreland v. Farren-Davis, 995 S.W.2d 512, 516 (Mo.App.1999). Here, the judgment completely disposed of Bryan’s tort claim against Peppers, and the trial court expressly determined there was no just reason for delay. Accordingly, we have jurisdiction over Bryan’s appeal. Boley v. Knowles, 905 S.W.2d 86, 88 (Mo. banc 1995); Sisk v. Union Pacific Ry. Co., 188 S.W.3d 799, 806 (Mo.App.2004).

In Bryan’s first point on appeal, he contends the tidal court erred in ordering the severance and separate trial of the UM claim against State Farm. We review this ruling for an abuse of discretion. Collins v. Hertenstein, 90 S.W.3d 87, 106 (Mo.App.2002); Guess v. Escobar, 26 S.W.3d 235, 239 (Mo.App.2000). A trial court abuses its discretion when its ruling “is clearly against the logic of the circumstances, is arbitrary and unreasonable, and indicates a lack of careful consideration.” State ex rel. Ford Motor Co. v. Messina, 71 S.W.3d 602, 607 (Mo. banc 2002). Bryan argues the trial court abused its discretion because a severance of the UM claim was not warranted for any of the reasons set forth in Rule 66.02 and he was prejudiced by the ruling. We agree.

We begin by noting that “[t]he policy of the law is to try all issues arising out of the same occurrence or series of occurrences together.” Bhagvandoss v. Beiersdorf, Inc., 723 S.W.2d 392, 395 (Mo. banc 1987); Collins, 90 S.W.3d at 106-07; Guess, 26 S.W.3d at 239; see also Rule 66.01(b) (allowing consolidation of civil actions involving common questions of law or fact). Rule 52.05, which governs who may be joined as defendants in one action, is consistent with this important policy. In pertinent part, this rule states as follows:

All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrences or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities.

Rule 52.05(a). In the case at bar, Bryan’s claims against Peppers and State Farm arose out of the same occurrence: the automobile collision that injured Bryan. His petition alleged that the personal injuries he suffered in this collision were caused by the combined negligence of Peppers and an unknown, uninsured motorist. Bryan’s claim against Peppers sounds in tort. Automobile Club Inter-Insurance Exchange v. Farmers Ins. Co., Inc., 646 S.W.2d 838, 840 (Mo.App.1982). Bryan’s claim against State Farm sounds in contract. Gaunt v. State Farm Mut. Auto. Ins. Co., 24 S.W.3d 130, 136 (Mo.App.2000); Hollis v. Blevins, 927 S.W.2d 558, 568 (Mo.App.1996). The joinder of a tort claim and a contractual UM claim arising out of the same automobile collision is authorized by Rule 52.05(a). See State ex rel. Farmers Ins. Co., Inc. v. Murphy, 518 S.W.2d 655, 662 (Mo. banc 1975) (approving the joinder of such claims in a single lawsuit). In Murphy, our Supreme Court noted that its interpretation of Rule 52.05(a) “is in harmony with the philosophy of permissive joinder which is to promote judicial economy, expedite final disposition of litigation and prevent inconsistent results due to multiple separate lawsuits. Any situation wherein it would be unwise or unfair to try all claims asserted at the same time can be handled pursuant to Rule 66.02.” Id.

Since Murphy was decided, it does not appear that any Missouri appellate court has addressed the issue of exactly what circumstances make it unwise or unfair to try tort and UM claims arising out of a single automobile collision together. The parties have cited no such authority, and we have found none in our independent research. To determine whether the trial court’s order granting separate trials of the tort and UM claims can be sustained, we must examine the text of Rule 66.02. It states:

The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues.

Thus, a trial court may, in its discretion, order separate trials “for reasons of convenience, to avoid prejudice or for reasons of judicial economy.” Shady Valley Park & Pool, Inc. v. Fred Weber, Inc., 913 S.W.2d 28, 36 (Mo.App.1995).

In the case at bar, the trial judge did not explain why he ordered separate trials of the tort claim against Peppers and the UM claim against State Farm. Certainly, the court’s decision cannot be upheld on the grounds that it promoted convenience or judicial economy. As noted above, Bryan’s petition alleged that the injuries he suffered in the automobile collision were caused by the combined negligence of Peppers and an unidentified, uninsured motorist. In order to recover from Peppers, Bryan would have to prove Peppers’ negligence, causation and damages. See, e.g., MAI 17.16 [1973 Revision] (submitting rear-end collision). In order to recover from State Farm, Bryan would have to prove the uninsured status of the unidentified motorist, his or her negligence, causation and damages. See MAI 31.11 [1996 Revision] (the. verdict-director submitted against a UM insurer when the uninsured motorist has not been joined as a defendant). Since the liability of Peppers and the unidentified motorist arises from a single collision, the evidence necessary to sustain each liability claim is virtually the same. The lay and medical testimony bearing on causation and establishing the nature and extent of Bryan’s damages is identical because the jury would use MAI 4.01 [2002 Revision] to determine damages on both the tort and UM claims. See MAI 31.10 [1978 Revision], As MAI 31.10 [1978 Revision] explains, “[i]t is the function of the jury to assess the plaintiffs damages and the [uninsured motorist] tort-feasor is hable for the total amount. Use MAI 4.01 or other applicable damage instruction. When the insurance company is found liable, the amount of the judgment against it is a matter of law to be determined by the court.” Bearing in mind that Peppers blamed the collision solely on the conduct of the unidentified motorist and State Farm blamed the collision solely on Peppers, the order to sever the two claims was very inconvenient to Bryan and failed to promote judicial economy. First, severance created the risk that the verdicts on liability and/or damages in the two trials would be inconsistent. Second, severance put Bryan to the additional difficulty and expense of trying the same basic case two times. Third, severance would inevitably cause considerable delay in finally resolving Bryan’s claims against Peppers and State Farm. Thus, the trial court’s severance order actually created the very ill effects our Supreme Court sought to eliminate by allowing the joinder of tort and UM claims in the first instance. See Murphy, 518 S.W.2d at 662.

In the court below, Peppers’ only reason for requesting a severance was to avoid prejudice. He claimed that a joint trial of the tort claim and the UM claim would inject the existence of his liability insurance into the case and that the mere mention of the UM claim would cause him substantial prejudice. Since the trial court gave no explanation for its ruling, we presume the court based its decision on the grounds presented in Peppers’ motion. See Johnson v. Brown, 154 S.W.3d 448, 450-51 (Mo.App.2005); Meekins v. St. John’s Regional Health Center, Inc., 149 S.W.3d 525, 529 (Mo.App.2004). We find Peppers’ arguments untenable.

First, Peppers contends that trying the tort claim against him at the same time as the UM claim would have injected the existence of his liability insurance into the case. To support this argument, Peppers cites Means v. Sears, Roebuck & Co., 550 S.W.2d 780 (Mo. banc 1977), for the proposition that “the improper injection in a jury tried case that the defendant was covered by liability insurance constitutes error....” Id. at 787. Frankly, we are unable to understand how this precedent aids Peppers because he concedes that the jury would not have been informed that he had liability insurance; rather, “being forced to sit at the defense table with State Farm would have the same prejudicial effect.” We are not persuaded that a jury would infer Peppers had liability insurance simply because of his status as an individual defendant in a case in which Bryan was asserting a separate UM claim against his own insurance company. Since 1986, the maintenance of financial responsibility has been mandatory for the owners and operators of vehicles registered, or required to be registered, in this state. § 303.025 RSMo CuimSupp. (2004). “Most owners and operators of vehicles undertake to satisfy the requirement by purchasing a motor vehicle liability policy.” First Nat. Ins. Co. of America v. Clark, 899 S.W.2d 520, 522 (Mo. banc 1995); see also § 303.190 RSMo (2000). Therefore, we presume jurors know that most owners and operators of motor vehicles have liability insurance coverage, particularly since proof of insurance must be furnished to register a vehicle. See § 303.026.2 RSMo (2000). It seems highly unlikely, however, that a jury composed of laymen would possess the high level of legal knowledge necessary to understand why it is permissible for a plaintiff to sue his insurance company directly when bringing a first-party claim, but it is impermissible to sue a liability insurer directly when bringing a third-party claim. See, e.g., Duncan v. Andrew County Mid. Ins. Co., 665 S.W.2d 13, 19 (Mo.App.1983) (recognizing that an insured may sue his insurer directly on a first-party claim because “the parties occupy a contractually adversary or creditor-debtor status as opposed to standing in a fiduciary relationship”); State Farm Mut. Auto. Ins. Co. v. Allen, 744 S.W.2d 782, 785-86 (Mo. banc 1988) (tort claimants must sue tort-feasor and cannot bring a direct action against his or her liability insurer); Desmond v. American Ins. Co., 786 S.W.2d 144, 145 (Mo.App.1989) (the general rule is that an injured party cannot proceed in a direct action against an insurance company providing liability coverage for an insured who allegedly caused the harm sustained by the claimant). Absent such a sophisticated level of understanding, the fact that Bryan sued Peppers individually, rather than bringing a direct action against an insurance company providing liability coverage to him, would more likely lead the jurors to infer that Peppers had no insurance.

Second, Peppers contends that the mere mention of the UM claim at his trial would cause him substantial prejudice. We reject the notion that having an insurance company as a co-defendant is so inherently prejudicial that an individual defendant in the. same case is entitled to a separate trial. If the identity of the uninsured motorist who allegedly precipitated this collision had been known, Bryan could have joined that person as an individual defendant in this action, along with State Farm. See, e.g., Peltzman v. Beachner, 900 S.W.2d 677, 679 (Mo.App.1995). The uninsured motorist would be liable to Bryan for the full measure of damages, while State Farm would only be liable up to the limits of its UM policy. Id. The jury deciding the case would assess total damages, for which the uninsured motorist would be personally hable, without the jury ever knowing how much of that sum might be paid by State Farm’s policy. Gaunt, 24 S.W.3d at 137; MAI 31.10 [1978 Revision]; MAI 36.13 [1980 Revision], As the notes on use for MAI 36.13 explain:

The jury verdict does not determine the amount of the judgment against the uninsured motorist insurance carrier. If the jury verdict is against both the uninsured motor vehicle operator and the insurance company, the court should enter a judgment against the operator in the amount of the jury verdict against him and enter a judgment against the insurance company in an amount in accordance with the policy limits and the verdict.

We believe this prescribed mode of trying claims against an uninsured motorist and a UM carrier in one action refutes Peppers’ assertion that having a UM insurer as a co-defendant is somehow so inherently prejudicial to an individual defendant that he or she is entitled to a separate trial.

We conclude that the trial court’s decision to sever Bryan’s UM claim for a separate trial was an abuse of discretion. The ruling was not authorized for any reason set forth in Rule 66.02, and it was clearly contrary to the logic of the circumstances. In our view, the trial court’s decision to sever Bryan’s UM claim did not reflect a careful consideration of the issue and was, therefore, arbitrary and unreasonable. Furthermore, the ruling caused substantial prejudice to Bryan for the reasons previously discussed. Bryan’s first point is granted.

Bryan’s second point asserts trial court error in denying his request for a mistrial. We review the trial court’s ruling for abuse of discretion. Harmon v. Hamilton, 903 S.W.2d 610, 615 (Mo.App.1995). Peppers persuaded the trial court that a severance of Bryan’s UM claim was required, in part, because the tort claim against Peppers was so wholly separate and distinct that any discussion of the UM claim would cause him substantial prejudice. After obtaining a severance on that basis, Peppers’ counsel directly injected the issue of the uninsured motorist’s responsibility for the collision into the tort trial. Counsel’s comment suggested Bryan could identify the motorist who had probably caused the collision to occur. We believe the jurors could have interpreted this remark to mean that Bryan either' had, or would, make a claim against that driver similar to the one being asserted against Peppers. Bryan’s counsel immediately moved for a mistrial. It appears this request was denied because the trial court and Peppers’ counsel were laboring under a misapprehension about what had been said in opening statement and by whom. The trial court’s comments during the bench conference demonstrate its ruling was influenced by an incorrect belief that Bryan’s counsel somehow broached this topic in his own opening statement.

In sum, Peppers was granted a severance, at least in part, because he claimed that any remark about the UM claim during the trial of the tort claim would cause substantial prejudice to him. After obtaining the requested severance on that basis, Peppers’ counsel then voluntarily, bluntly injected the issue of the uninsured motorist’s fault into the tort trial via his opening statement comment. If a remark by Bryan concerning the severed UM claim would be substantially prejudicial to Peppers, why would Bryan not be equally prejudiced by Peppers’ comment? Under these unusual circumstances, it was an abuse of discretion for the trial judge to deny Bryan’s request for a mistrial. The court’s contrary ruling was unreasonable and so clearly against the logic of the circumstances that it reflects a lack of careful consideration of the issue.

Peppers argues that Bryan was not prejudiced by the remark because the small verdict demonstrates the jury did not believe that all of the damages claimed by Bryan were directly caused by the collision. We do not know why the jurors reached the verdict they did. The argument advanced by Peppers is one possible explanation, but so is Bryan’s competing argument that the verdict resulted from the suggestion that he either had, or would, pursue additional claims for the same damages against another party. Bryan’s second point is granted.

The trial court’s judgment is reversed, and the case is remanded for a new trial on all issues.

SHRUM, P. J., and BARNEY, J., Concur.

      . Bryan’s wife was included as a plaintiff because she was thought to be a co-owner of the damaged truck. When it was later discovered that Bryan was the sole owner of the truck, his wife was dismissed from the case.

      . We do not question the good faith of the judge and Peppers’ counsel in trying to remember and describe, on the spur of the moment and without the benefit of a transcript, what the parties’ counsel had said in their opening statements. Nevertheless, our review of the record demonstrates that neither the trial court nor Peppers' counsel accurately summarized what had been said.

      . All references to rules are to the Missouri Court Rules (2005).

      . It is not necessary for Bryan to identify and successfully sue the unknown motorist in order to recover UM benefits from State Farm. See Hollis v. Blevins, 927 S.W.2d 558, 568 (Mo.App.1996) (recognizing that an insured has no obligation to assert a tort claim against the uninsured motorist/tort-feasor prior to filing suit against the insured’s own UM carrier); § 379.203.1 RSMo (2000) (stating that legal entitlement to recover damages from an uninsured motorist exists even though that motorist’s identity cannot be established and whether or not there was physical contact between the uninsured motor vehicle and the insured’s motor vehicle).

      . Although a UM claim is classified as a contract action, tort principles also play an important role in successfully pursing such a claim. See State ex rel. Smith v. Gray, 979 S.W.2d 190, 193 (Mo. banc 1998) (to obtain UM benefits, an insured must prove a contractual basis for recovery and causal negligence on the part of the uninsured motorist); MAI 31.10 ("[u]ninsured motorist insurance cases combine tort liability and contract liability into one action”).

      . It is possible, however, to find examples of cases in which tort claims against individual motorist/defendants and a contract claim against a UM carrier, based on the conduct of an unidentified uninsured motorist, have been successfully tried together. See, e.g., Gaunt v. State Farm Mut. Ins. Co., 24 S.W.3d 130, 133 (Mo.App.2000); Hollis v. Blevins, 927 S.W.2d 558, 561 (Mo.App.1996).

      . Assuming Bryan could prove the aforementioned allegations, Peppers and the unidentified motorist would be joint tort-feasors because their independent acts coalesced to cause a single, indivisible injury to Bryan. See State ex rel. Smith v. Gray, 979 S.W.2d 190, 193 (Mo. banc 1998); Bryant v. Frank, 765 S.W.2d 731, 733-34 (Mo.App.1989); Automobile Club Inter-Insurance Exchange v. Farmers Ins. Co., Inc., 646 S.W.2d 838, 840 (Mo.App.1982).

      . Alternatively, State Farm might have been able to force the joinder of the uninsured motorist if the terms of its policy so provided. See State ex rel. MFA Ins. Co. v. Murphy, 606 S.W.2d 661, 662 (Mo. banc 1980).

      . While we would be very reluctant to reverse the trial court's judgment based on this error alone, the errors identified in Bryan's first and second points, considered together, require a reversal and remand for a new trial.