author: JOSEPH M. ELLIS, Judge.

text:
    CAPITAL ONE BANK, Respondent, v. Denny R. HARDIN, Appellant.
    No. WD 64440.
    Missouri Court of Appeals, Western District.
    Sept. 13, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 1, 2005.
    Application for Transfer Denied Dec. 20, 2005.

      Denny R. Hardin, Kansas City, MO, pro se.
    James M. McNeile, Leawood, KS, for respondent.

      Before JOSEPH M. ELLIS, Presiding Judge, PAUL M. SPINDEN, Judge and VICTOR C. HOWARD, Judge.
   JOSEPH M. ELLIS, Judge.

Denny R. Hardin (“Hardin”) appeals an August 3, 2004 judgment of the Circuit Court of Jackson County against Hardin in favor of Capital One Bank (“Capital One”). The judgment is affirmed.

Hardin’s 65-page pro se brief contains six points relied on. Since at least one of them challenges the sufficiency of the evidence in support of the judgment, “a detailed rendition of the evidence presented at trial is necessary. In accordance with our standard of review, the factual summary is presented in the light most favorable to [Capital One], the prevailing party at trial.” Vintila v. Drassen, 52 S.W.3d 28, 33 (Mo.App. S.D.2001).

Capital One filed suit against Hardin on November 12, 2003, seeking recovery on a breach of contract theory for purchases and cash advances made on a credit card Capital One had issued to Hardin, as well as the associated finance charges, late payment fees, and over-limit fees he had failed to pay. Capital One’s petition alleged that under the terms of the credit card agreement between Hardin and Capital One, Hardin agreed to pay Capital One for all purchases made, services rendered, and cash advanced to or for Hardin (or any other person authorized by him to use the credit card) to obtain goods, services, and credit advances. The petition further alleged that while Capital One had paid the various merchants and banks for Hardin’s purchases and cash advances on his behalf, Hardin had breached the agreement by failing to timely repay Capital One for those expenditures.

Attached to the petition was an October 9, 2003 affidavit executed by Miguelle Everett, a records custodian for Capital One. According to the affidavit, after all credits and set-offs to which Hardin was entitled, the principal balance due Capital One from Hardin as of May 15, 2003 was $1,062.59. Among other things, the affidavit also stated that interest was due on this principal balance at the rate of 25.9% per annum from May 15, 2003; that this balance was not subject to further set-off, credit or adjustment for billing errors; and that upon demand by Capital One, Hardin had failed to pay the balance due without justification or excuse. Everett’s affidavit further stated that under the terms of the credit card agreement, Capital One was entitled to recover reasonable attorney’s fees in the amount of $159.38.

After being served with a summons and Capital One’s petition by private process server on or about January 6, 2004, on January 20, 2004, Hardin entered his appearance as counsel pro se and filed his answer. The same day, he filed a counterclaim, which he styled as “Defendant’s Petition for Damages.” The counterclaim averred that Capital One was attempting, by use of fraud, misrepresentation, and deceit, to extort money from Hardin that he did not owe Capital One. After receiving a timely-requested extension of time to respond to this pleading, Capital One filed a written motion with suggestions in support to dismiss Hardin’s counterclaim on March 19, 2004, in which Capital One averred that the counterclaim failed to state a claim upon which relief could be granted to Hardin due to his failure to plead the circumstances constituting the alleged fraud with particularity as required by Rule 55.15. After considering Hardin’s March 22, 2004 opposition to Capital One’s motion, the trial court granted Capital One’s motion to dismiss Hardin’s counterclaim on April 16, 2004. On the same day, the trial court also overruled Hardin’s “Motion for Summary Judgement Hearing Notwithstanding Jury Verdict,” which raised essentially the same issues as Hardin’s counterclaim except that its aver-ments of fraud were based not only on Capital One’s petition and supporting affidavit, but the documents Capital One had subsequently provided Hardin pursuant to his discovery requests.

The case was eventually set for trial by jury on July 19, 2004. On the morning of trial, Capital One filed a motion in limine which requested the exclusion of “any testimony or evidence [at trial] regarding all affirmative defenses and [Hardin’s] previously stricken counterclaim.” After a long colloquy between Hardin and the trial judge during which the trial court indicated that it was going to grant the motion and explained the specific types of evidence Hardin would be precluded from offering to the jury during trial, Hardin opted to waive his right to a jury trial. There being no objection by Capital One, a bench trial was held instead.

As he explained to the trial court before any evidence was presented, Hardin’s defense theory was three-fold: (1) that he “never signed” a Card Agreement obligating him to repay Capital One for the charges and cash advances he had made on the credit card; (2) that all of the disputed amounts “were fraudulently put on the card [by Capital One] after [he] asked for a cancellation”; and (3) that under Article VI, Section 23 of the Missouri Constitution, “a corporation can’t sue somebody when they don’t pay their bills.”

According to the transcript, Capital One called only one witness at trial, a legal recovery manager for Capital One by the name of Richard Napolitano. Napolitano testified extensively concerning six exhibits, all of which had been produced to Hardin during discovery. They were: a copy of the original credit card solicitation mailed to Hardin in late August 2000 or early September 2000 (Exhibit 1); a copy of the Acceptance Certificate/Application Hardin signed on September 15, 2000 and mailed to Capital One (Exhibit 2); a copy of a Customer Agreement dated 2002, which contained the contract terms and conditions associated with Hardin’s credit card (Exhibit 3); a copy of the Billing Rights Summary associated with Hardin’s credit card account (Exhibit 4); a copy of all of the credit card billing statements sent to Hardin by Capital One over the active history of his account, which was the period from September 26, 2000 through May 14, 2002 (Exhibit 5); and a copy of a Control System History Report which identified various processes that occurred over the history of Hardin’s account, including the results of telephone conversations between Hardin and Capital One’s customer service representatives (Exhibit 6).

Hardin did not object to the admission of Exhibits 1, 2, 4, 5, or 6 as business records of Capital One. However, he did object to the admission of Exhibit 3 on the ground of relevance, arguing that it was dated some two years after Capital One issued his credit card. The trial court sustained the objection, noting that Capital One was free to attempt to lay a proper foundation for its admission. Shortly thereafter, Napolitano testified that even though Exhibit 3 was dated 2002, “with respect to the terms and conditions and with respect to usage of the card, interest rates, interest calculation and default, et cetera,” it was “virtually identical ... to the account agreement” in effect in 2000, when Hardin opened his credit card account. The only difference between the two, Napolitano testified, was the addition of an arbitration clause in October 2001, which was not implicated in this case. Hardin renewed his objection, arguing that there had been no testimony that Capital One ever provided him with a copy of either the 2000 or 2002 Customer Agreements as part of the documents he received when he opened his credit card account with Capital One. The trial court then stated that it would defer ruling on Hardin’s renewed objection until it heard further testimony on that issue. Napolita-no proceeded to testify that throughout the twenty-four years he had been employed by Capital One and its predecessors, it had always been company policy to enclose the Customer Agreement in the same envelope containing the credit cards themselves, and that “a copy of the cardholder agreement is sent to every person that is approved for a credit card.” This time, Hardin objected that since Napolitano did not testify that he personally mailed Hardin a copy of the 2000 or 2002 Customer Agreements, Napolitano’s testimony was “hearsay testimony on what other” Capital One employees might have done, noting that he (Hardin) denied ever having received a Customer Agreement of any kind. Hardin’s hearsay objection was overruled and Exhibit 3 was admitted into evidence.

Napolitano testified about Capital One’s policies on credit limits, finance charges, monthly membership fees, cash advance fees, late payment fees, over-limit fees, returned check fees, account cancellation and default, as well as Capital One’s right to recover reasonable attorney’s fees and prejudgment interest in the event of default, all of which were detailed in the Customer Agreement. He testified that Hardin made his last payment to Capital One on October 15, 2002, after which the remaining balance on his credit card account was $581.05, which was $81.05 over his $500 credit limit. Napolitano stated that due to accumulated finance charges (at the rate of 25.9% per annum applied to defaulted accounts such as Hardin’s) as well as late payment and over-limit fees, which Hardin repeatedly advised Capital One he would refuse to pay but were nevertheless authorized under the terms of the Customer Agreement, this balance had increased to $1,062.59 as of May 15, 2003.

Hardin’s billing records demonstrated that several of the over-limit and late payment fees he was charged by Capital One over the history of his account were later credited back to him prior to Hardin’s last payment to Capital One on October 15, 2002. During his cross-examination of Na-politano, Hardin attempted to establish that these must have been billing errors, but Napolitano explained that there was “a multitude” of other possible reasons for this, including that “a payment may have crossed in the mail, therefore Capital One felt it reasonable to issue a credit.” Exhibit 6 (the Control System History Report for Hardin’s account) confirmed this, as it indicated that on at least two occasions, Capital One’s customer service representatives had telephonically agreed to issue him $25 credits for otherwise valid over-limit and late payment fees in order to maintain “customer good will.” On redirect, Napolitano testified that such credits were not always indicative of billing errors and it was possible for Capital One to give a cardholder a credit for a late charge or over-limit charge as a courtesy, including when a customer calls and complains about such charges.

During his case in chief, Hardin reiterated that he shouldn’t have to pay Capital One anything “because no agreement exists,” and noted that Napolitano admitted not having any personal knowledge that Hardin ever received one by mail. After acknowledging that he had negotiated with Capital One to receive a credit for some of the over-limit and late fees, Hardin testified that because Capital One refused to correct all of the numerous billing errors it was making, he “had no course of action but to stop paying on the card.” Hardin’s theory was that once he stopped using the card in late September 2002, he was no longer obligated to pay finance charges, over-limit fees, or late fees on the remaining balance, further explaining that he was willing to pay Capital One $500 “to take care of the matter.”

Hardin subsequently conceded that Exhibits 1 and 2 both disclosed information concerning “the miscellaneous fees that Mr. Napolitano testified about.” In particular, they provided that the over-limit and late fees would both be $25. Hardin admitted that Exhibit 2 was “part of the original mailing package” he received from Capital One, that he had signed and returned it to Capital One, and that he was “aware that there were fees under some circumstances.” In pertinent part, Exhibits 1 and 2 also stated, immediately above the signature line: “I have read the Important Disclosures and Miscellaneous Information on the back of the letter and agree to be bound as specified therein.”

At the conclusion of Hardin’s case, the trial court took judicial notice of and permitted Hardin to make legal arguments concerning at least five separate provisions of the Missouri Constitution he claimed absolved him of any contractual liability for his unpaid credit card account debt.

On August 3, 2004, the trial court rendered judgment against Hardin and in favor of Capital One in the principal sum of $994.59, together with the sum of $304.18 in prejudgment interest at the contractual rate of 25.9% per annum from May 15, 2003 through July 19, 2004, with interest continuing to accrue from and after July 19, 2004 at the contractual rate of 25.9% per annum until Hardin’s credit card account debt is paid in full. The trial court also awarded Capital One attorney’s fees in the sum of $159.38, special process server fees, and the costs of its action. Hardin’s timely-filed appeal followed.

Appellate review of this court-tried civil case is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Accordingly, we will affirm the trial court’s judgment against Hardin “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Id. at 32. Moreover, in a court-tried case such as this, the “credibility of the witnesses and the weight to be given their testimony are matters for the trial court, which is free to believe none, part, or all of the testimony.” Norris v. Nationwide Mut. Ins. Co., 55 S.W.3d 366, 369 (Mo.App. W.D.2001). “An appellate court also defers to a trial court’s ability to determine the witnesses’ credibility and to choose between conflicting evidence.” In the Interest of A.H., 9 S.W.3d 56, 59 (Mo.App.W.D.2000). Furthermore, where, as here, neither party has requested findings of fact on a particular disputed issue and none are made as to that issue, “we can assume that the trial court made factual findings consistent with its judgment.” Fitzwater v. Fitzwater, 151 S.W.3d 135, 137 (Mo.App. W.D.2004).

Hardin’s first point relied on reads: THE TRIAL COURT ERRED IN IS-SUEING [sic] A “JUDGMENT” IN FAVOR OF AN “ERRONEOUS PETITION” FILED BY THE RESPONDENTS WITHOUT A “CUSTOMER AGREEMENT”. BECAUSE THE CONSTITUTION OF MISSOURI ARTICLE I, SECTION 8 GRANTS EVERY INDIVIDUAL THE RIGHT TO COMMUNICATE WHATEVER HE WILL AND ESTABLISHES RESPONSIBILITY FOR ALL ABUSES OF THAT LIBERTY, IN THAT THE RESPONDENTS ARE RESPONSIBLE TO PROVE THE ALLEGATIONS OF THEIR PETITION. THE RESPONDENTS HAVE VIOLATED RULE 4-8.4(C) FOR FILING AN “AFFIDAVIT”, “AGREEMENT” AND “PETITION” OF “FRAUD” IN THE COURT. THIS IS REVERSIBLE ERROR BECAUSE THE “JUDGMENT” IS NOT SUPPORTED BY ANY EVIDENCE OF MATERIAL FACT.

As best we can tell from this point and the relevant portions of the argument section following it in his brief, Hardin is complaining that the trial court’s judgment was not supported by substantial evidence because Capital One failed to prove all of the allegations of its petition in that Capital One presented insufficient evidence of a valid Customer Agreement authorizing Capital One to charge him the finance charges, over-limit fees, and late fees he was assessed by Capital One.

As demonstrated by the facts set forth in exhaustive detail supra, it is abundantly clear from the record that Exhibits 1, 2, and 3 and Napolitano’s testimony (not to mention the testimony of Hardin himself) constituted substantial evidence supporting the trial court’s, implicit finding that there was a valid Customer Agreement between Hardin and Capital One containing the contract terms and conditions associated with the credit card, which was both received and accepted by Hardin. Moreover, although Capital One did not introduce into evidence a copy of the 2000 Customer Agreement received and accepted by Hardin, the trial court could reasonably have concluded, on the basis of Napol-itano’s testimony, that the 2000 Customer Agreement received and accepted by Hardin was “virtually identical” in all relevant respects to the account agreement for 2002, which was admitted into evidence as Exhibit 3. Indeed, the transcript shows (and Hardin acknowledges in his brief) that the trial court expressly and specifically credited Napolitano’s testimony in this regard. While Hardin claims in his reply brief that this testimony was wrongly accepted as truthful by the trial court, which should have believed his contrary testimony instead, as explained supra, it was up to the court to determine Napolita-no’s credibility and the weight to be given his testimony. Finally, although Hardin insists that the trial court improperly admitted Exhibit 3 into evidence over his hearsay objection, he cites no authority whatsoever to support his argument and has not explained why such authority is not available. Accordingly, pursuant to Rule 84.04(d)(5), we deem this argument to have been abandoned. Brough v. Ort Tool & Die Corp., 149 S.W.3d 493, 498 (Mo.App. W.D.2004).

With regard to Article I, § 8 of the Missouri Constitution and Rule 4-8.4(c), Hardin appears to be arguing that Capital One’s attorneys libeled him and committed fraud upon the trial court in violation of the Rules of Professional Conduct by knowingly adducing false evidence in support of Capital One’s petition. These claims are not only facially devoid of merit, but are also wholly unsupported by the record and completely irrelevant to this appeal. Indeed, as the trial court specifically (and correctly) explained to Hardin prior to the start of trial: “The Code of Professional Responsibility is not an issue in this case. Either you owe money to Capital One Bank or you don’t. The conduct of the attorneys is not at issue in this case.” See Rule k, Note on Scope (“The fact that a Rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule.”) Point denied.

Hardin’s second point relied on states: THE TRIAL COURT ERRED IN DISMISSING THE APPELLANTS PETITION FOR DAMAGES AND REFUSING THE “TRUTH OF DEFAMATION” AS AN “AFFIRMATIVE DEFENSE”. BECAUSE THE CONSTITUTION OF MISSOURI ARTICLE I, SECTION 8 ALLOWS INDIVIDUALS IN ALL SUITS OF LIBEL AND SLANDER TO GIVE THE TRUTH THEREOF IN EVIDENCE, IN THAT WHEN THE APPELLANT FILED “DENIALS” OF RESPONDENT’S “AVERMENTS” THIS CAUSE WAS ESTABLISHED AS A SUIT OF LIBEL AND SLANDER. APPELLANT HAD THE NATURAL RIGHT OF EQUAL OPPORTUNITY UNDER THE LAW TO PROVE THE FACTS AND DEFEND AGAINST LIBEL AND SLANDER. THIS IS REVERSIBLE ERROR BECAUSE THE COURT VIOLATED RULE 2.03, CANNON [sic] 3B(7) AND DENIED THE APPELLANT HIS RIGHT TO BE HEARD ACCORDING TO LAW.

We discern from this point and the relevant portions of the argument section following it that Hardin is arguing that the trial court’s decision to grant Capital One’s motion to dismiss his counterclaim was erroneous in that it constituted judicial misconduct under Rule 2.03, Canon 3, paragraph B(7) and denied him his rights, under Article I, Section 8 of the Missouri Constitution, to prove that the statements contained in Capital One’s petition, supporting affidavit, and discovery-responses were libelous and defamatory and to prove the truth of his denials of those statements.

For the same reasons that the Code of Professional Responsibility is not an issue in the case, as noted swpra, the Code of Judicial Conduct, and consequently, the conduct of the trial judge, is likewise not an issue in this appeal. “This Rule 2 is designed to provide guidance to judges and candidates for judicial office and to provide a structure for regulating conduct through disciplinary agencies.” Rule 2.01, Preamble. Instead, Rule 2 “is to be construed so as not to impinge on the essential independence of judges in making judicial decisions.” Id.

Moreover, these claims are facially devoid of merit, wholly unsupported by the record, and/or entirely irrelevant to this appeal. Accordingly, they are deemed abandoned due to Hardin’s failure to cite relevant supporting authority of any kind or to explain why none was available. Brough, 149 S.W.3d at 498. Point denied.

Hardin’s third point relied on declares: THE TRIAL COURT ERRED IN DISMISSING ALL FACTS AND LAW PRIOR TO THE TRIAL BY JURY AND ERRED BY RULING THESE COULD NOT BE PRESENTED TO THE JURY. BECAUSE THE CONSTITUTION OF MISSOURI ARTICLE I, SECTION 8 ESTABLISHES THE “PROVINCE OF JURY” AS IN ALL SUITS FOR LIBEL THE JURY, UNDER THE DIRECTION OF THE COURT “SHALL DETERMINE THE LAW AND FACTS,” IN THAT THE COURT ACTED “BIASED AND PREJUDICIAL” TO DENY THE APPELLANT A “JURY VERDICT” OF THE ISSUES OF THIS CAUSE OF ACTION. THIS IS REVERSIBLE ERROR BECAUSE THE COURT DENIED THE APPELLANT HIS RIGHT TO BE HEARD ACCORDING TO LAW IN VIOLATION OF RULE 2.03, CANNON 3B(7) AND DENIED THE APPELLANT DUE PROCESS OF LAW.

The basis for Point III is, at best, unclear. However, it appears that Hardin is arguing that the trial court erred in granting Capital One’s motion in limine. It is patently obvious that the trial court’s ruling on this motion was entirely correct, as Hardin’s counterclaim for fraud had previously (and properly) been dismissed and the record plainly shows that Hardin’s answer to Capital One’s petition pled no affirmative defenses. See Brizendine v. Conrad, 71 S.W.3d 587, 593 (Mo. banc 2002). Point denied.

Hardin’s fourth point relied on reads: THE TRIAL COURT ERRED BY FAILING TO COMPLY WITH THE LAWS OF THE STATE OF MISSOURI AND THE SUPREME COURT RULES THAT GOVERN JUDICIAL CONDUCT. BECAUSE RULE 2.03, CANNON 2(A) REQUIRES A JUDGE TO RESPECT AND COMPLY WITH THE LAW, IN THAT THE LAWS GOVERNING THIS CAUSE OF ACTION WERE PRESENTED, DENIED, DISMISSED AND' RULED INADMISSIBLE BY THE JUDGE WHO ACTED WITH MALICE, INTENT AND KNOWLEDGE TO VIOLATE THESE LAWS. THE ATTORNEYS OF RECORD VIOLATED RULE 4-8.4(f) BY MANIPULATING THESE VIOLATIONS, BUT THE FINAL JUDGMENT WAS SIGNED BY THE JUDGE. THIS IS REVERSIBLE ERROR BECAUSE A COURT WITHOUT LAWS HAS NO AUTHORITY OR JURISDICTION TO ISSUE ANY “JUDGEMENT”.

In this Point, Hardin seems to be arguing that the trial court erred and committed judicial misconduct in: (1) dismissing his counterclaim; (2) overruling his motion for summary judgment; and (3) granting Capital One’s motion in limine. However, as we observed supra, neither the Rules of Professional Conduct nor the Code of Judicial Conduct have anything to do with this appeal. Moreover, we have already held that the trial court did not commit any legal error in deciding any of those issues against Hardin. Point denied.

Hardin’s fifth point relied on asserts: THE TRIAL COURT ERRED BY GRANTING THE RESPONDENTS A JUDGMENT OF VALUE WITHOUT AN AUTHENTIC CUSTOMER AGREEMENT IN VIOLATION OF APPLICABLE LAWS. BECAUSE THE CONSTITUTION OF MISSOURI ARTICLE VI, SECTION 23 PROHIBITS GRANTING A THING OF VALUE TO OR IN AID OF ANY CORPORATION, IN THAT THE CORPORATION AND ATTORNEYS OF RECORD HAVE CONSPIRED TO VIOLATE THE NATURAL RIGHTS OF APPELLANT AND THE LAWS OF THIS STATE FOR THEIR FINANCIAL PROFIT. THIS IS REVERSIBLE ERROR BECAUSE THE JUDGMENT IS NOT SUPPORTED BY ANY LAW OR EVIDENCE OF FACT AND LACKS THE CUSTOMER AGREEMENT TO SHOW A BINDING RELATIONSHIP BETWEEN THE LITIGANTS.

Although expressed much more clearly this time around, part of Point V raises the same issue as Point I. As that issue has already been ruled against him, we proceed to consider the remainder of Point V, in which Hardin argues that the trial court’s judgment in favor of Capital One was erroneous because Article VI, § 23 of the Missouri Constitution “prohibits granting a thing of value to or in aid of any corporation.”

As to this aspect of Hardin’s appeal, the transcript is particularly revealing:

MR. HARDIN: You said you would give me a chance to discuss the law.
THE COURT: I will let you do that. Step down and tell me what portions of the Constitution you want me to take judicial notice of.
(Mr. Hardin left the witness stand.)
MR. HARDIN: I have mine earmarked, Your Honor. I believe Article VI, Section 23 applies in this case directly. It [Capital One] is a corporation seeking a judgment of value from this Court. In Article VI, Section 23, it states: “No county, city or other political corporation or subdivision of the state shall own or subscribe for stock in any corporation or association, or lend its credit or grant public money or thing of value to or in aid of any corporation, association, or individual, except as provided in this constitution.” I contend it is not allowed for a corporation to come before this Court and seek a judgment of value against me.
THE COURT: Do you have any case law that says, interpreting this provision of the Missouri Constitution, that corporations are prohibited from suing people for money?
MR. HARDIN: I have under federal law, Your Honor, that a corporation is an artificial person without rights.
THE COURT: Well, but my question for you is: Do you have any case law? MR. HARDIN: Of this particular one, no, I do not, Your Honor.
THE COURT: All right. Well, I’ll take judicial notice of the provision of the-Constitution you’re talking about.

As Hardin’s brief likewise contains no relevant supporting authority for his position, we deem this claim, which also happens to be facially devoid of any merit whatsoever, to have been abandoned. Brough, 149 S.W.3d at 498. Point denied.

Hardin’s sixth and final point relied on states:

THE TRIAL COURT ERRORED BY “COOPERATING” WITH THE ATTORNEYS OF RECORD TO “ABOLISH” THE CONSTITUTION OF MISSOURI. BECAUSE THE CONSTITUTION IS THE “SUPREME LAW” OF THIS STATE AND THE JUDGE WAS READ PASSAGES THAT PROHIBIT THE ACTS BEING CARRIED OUT IN COURT, JUDGE MANNERS “ABOLISHED” THE CONSTITUTION FOR THE ATTORNEYS AND ESTABLISHED THE “MISSOURI TERRITORY” AND WITHOUT THE LAW, “AUTHORITY” OR “JURISDICTION” SANCTIONED THE ILLEGAL ACTS OF THE CORPORATION. BECAUSE OF THE CONDUCT OF JUDGE MANNERS THE “STATE OF MISSOURI” HAS FAILED TO EXTEND “NATURAL RIGHTS” TO ONE OF ITS CITIZENS AND FAILED IN ITS CHIEF DESIGN.

As to this aspect of Hardin’s appeal, the transcript once again gives a clear indication of the constitutional arguments he made at trial, and the admirable patience exercised by the trial judge:

MR. HARDIN: Article VII, Section 11, is an oath of office that all civil authorities are bound by — an oath of office to defend and uphold this Constitution. We come to Article III, Section 40, Your Honor. It states that the General Assembly is prohibited in [subsection] number 25, legalizing the unauthorized or invalid acts of any officer or agent of this State or of any County or municipality. [Subsection] 28 states that the General Assembly is prohibited from granting any law granting to any corporation or association or individual any special or exclusive right, privilege or immunity, or to any corporation, association or individual the right to lay down a railroad track.
THE COURT: What do railroad tracks have to do with this case?
MR. HARDIN: Nothing. But granting them the right or privilege to come before this Court to seek a judgment is in violation of the Constitution.
THE COURT: How is that any different than the right of individuals to come to Court?
MR. HARDIN: Individuals have rights, corporations don’t.
THE COURT: Well, I disagree with your interpretation of the law. Do you have any other provisions you want me to take notice of?
MR. HARDIN: Yes. Article XI, Section 3. Article XI, Section 3 is the primary motivation of the attorneys before the Court today, and that is to exercise the police powers of this State on behalf of this corporation to seize my private assets. I believe there would be a gross violation of my Fourth Amendment right to be free of seizure.
THE COURT: Anything else?
MR. HARDIN: The corporation, as used in this Article, shall be construed to include all joint stock companies and associations having any powers or privileges not possessed by individuals or partnerships. And I believe Capital One Bank falls directly under these laws.
THE COURT: Anything else?
MR. HARDIN: Oh, yes. The Constitution of Missouri, Article I, Section 28 prohibits the taking of private property for private use. Since this a corporation, I contend it’s taking my money for its own use. Other than that, I have nothing else, Your Honor.
THE COURT: All right.

Hardin’s brief contains no relevant supporting authority of any kind for his various constitutional arguments, which are also facially devoid of any conceivable merit. Since Point VI has been abandoned, it is denied as well. Id.

Ordinarily, our analysis would end here, but, pursuant to Rule 84.19, Capital One has requested an award of damages against Hardin for prosecuting a frivolous appeal.

Rule 84.19 states: “If an appellate court shall determine that an appeal is frivolous it may award damages to the respondent as the court shall deem just and proper.” While there is “no hard and fast rule as to what constitutes a frivolous appeal ... and the issue must be considered on a case-by-case basis, the test generally used is whether the appeal presents any justiciable question and whether it is so readily recognizable as devoid of merit on the face of the record that there is little prospect of success.” Vanschoiack v. Adkins, 854 S.W.2d 432, 435 (Mo.App. W.D.1993). To put it another way, “[t]he issues presented on appeal must be at least fairly debatable in order to avoid assessment of damages for frivolous appeals.” Id.; see also Woodley-Griggs Boiler Repair, Inc. v. Sanders, 626 S.W.2d 410, 413 (Mo.App. W.D.1981). In applying this standard, “the focus should be upon the prospect for success of an appeal considering the record made in the trial court,” which “may disclose that an appellant in the trial court raised issues wholly unsupported by the facts or obviously contrary to legal principles. Such actions in the trial court are relevant as bearing upon the appellant’s evaluation of the prospects of the success of an appeal.” Burns v. DeWitt & Assoc., Inc., 826 S.W.2d 884, 888 (Mo.App. S.D.1992).

The purpose of sanctions under Rule 84.19 is two-fold: “(1) to prevent congestion of appellate court dockets with meritless cases which, by their presence, contribute to delaying resolution of meritorious cases and (2) to compensate respondents for the expenses they incur in the course of defending these meritless appeals.” Johnson v. Aldi, Inc., 971 S.W.2d 911, 912 (Mo.App. E.D.1998). Nevertheless, “[w]e will award damages under Rule 84.19 only with great caution lest we chill others from filing meritorious appeals.” Id. at 912. Therefore, “[ajwarding damages for a frivolous appeal is a drastic measure which the court reserves for those cases in which an appeal on its face is totally devoid of merit.” Colgan v. Washington Realty Co., 879 S.W.2d 686, 691 (Mo.App. E.D.1994).

After carefully considering all of these justifications and concerns, we can only conclude that the present appeal is an appropriate object of Rule 84.19 sanctions. As we have repeatedly observed throughout this opinion, Hardin’s allegations of trial court error are utterly devoid of any precedential support, thereby wasting scarce appellate judicial resources and delaying this court’s consideration of meritorious cases. See Johnson, 971 S.W.2d at 913; Whitman v. Livingston, 541 S.W.2d 61, 64 (Mo.App. W.D.1976). Moreover, Capital One was forced to incur attorney’s fees in the course of defending an unwarranted appeal which had no legitimate basis in fact or in law and was “so manifestly and palpably devoid of merit as to be completely untenable.” Nimrod v. State, 14 S.W.3d 103, 110 (Mo.App. W.D.2000).

In reaching this conclusion, we have also taken into consideration several other case-specific factors. First, Hardin’s initial brief was stricken by this court on its own motion for failure to comply with Rule 84.04 and, although we have exercised our discretion to decide the case on its merits because the issues presented were able to be deciphered, his second brief also failed to comply with Rule 84.04. See Vanschoiack, 854 S.W.2d at 435. We likewise note that because Hardin has had a prior civil appeal dismissed by this court since his pro se brief failed to comply with Rule 84.04, Hardin v. State, 51 S.W.3d 129 (Mo.App. W.D.2001), he is well aware of the requirements for filing a legally suitable brief.

Second, in his reply brief, Hardin does not respond to the merits of Capital One’s request for damages under Rule 84.19. See Carbray v. Floro, 868 S.W.2d 168, 169 (Mo.App. E.D.1994) (noting, in deciding to assess sanctions in the amount of $2,000, that the appellant “has not filed any response to [respondent’s] motion for damages for frivolous appeal.”) Instead, he retorts that “in reality the Respondents’ original petition is frivolous,” alleges that Capital One’s conduct “is organized crime carried out under the color of law for the financial profit of the corporation and the attorneys of record,” and claims that; if the trial court’s judgment was to be affirmed by this court, “the Judges of the Missouri Comb of Appeals will ... join them in their criminal conduct.”

Third, Hardin’s reply brief makes it quite clear that he intends to pursue further (and no doubt equally frivolous) appeals, as he states: “Appellant is ready to go the distance.It can be done in this court or the next, or the next, but Appellant will not stop [until] this criminal fraud is stopped.”

When considered as a whole, the record demonstrates that Hardin was disposed to appeal despite the fact that his claims of error were not justiciable but, instead, were “so readily recognizable as devoid of merit on the face of the record that there is little prospect of success.” Vanschoiack, 854 S.W.2d at 435. Accordingly, Capital One’s request for an award of damages against Hardin for frivolous appeal pursuant to Rule 84.19 is granted in the sum of $2,000.

The judgment of the trial court is affirmed in its entirety, but the cause is remanded to the trial court with directions to enter a judgment against Hardin and in favor of Capital One in the amount of $2,000 as damages for frivolous appeal. Presto Roofing, 916 S.W.2d at 798; Mullen v. Kennard, 674 S.W.2d 202, 205 (Mo.App. W.D.1984).

All concur.

      . Hardin’s brief explicitly states that ‘‘[t]he facts of this day will be given from the Appellant's point of view." For this and other reasons, before submission of this cause, Capital One filed a motion, which we took with the case, requesting that Hardin’s appeal be dismissed for his failure to comply with several different provisions of Rule 84.04, including those governing the statement of facts (Rule 84.04(c)), the points relied on (Rule 84.04(d)), and the argument (Rule 84.04(e)) contained in an appellant’s brief. While Capital One's complaints appear to be well founded, in the interest of deciding this appeal on its merits rather than dismissing it on procedural grounds, we have done the best we can to decipher Hardin’s brief, albeit with considerable difficulty.

      . The record shows that the trial court awarded Capital One the principal amount of $994.59 rather than the $1,062.59 prayed for by Capital One in its petition because it found that Capital One failed to adduce any evidence it had disclosed to Hardin that the over-limit and late fees were going to be increased from $25 (the charge specified in Exhibits 1 and 2) to $29 (the charge which, according to Hardin’s billing statements, apparently took effect some time in October 2001). In response to a question from the court at the close of the evidence concerning this $68 discrepancy, counsel for Capital One conceded that although he believed Hardin had received such notice, he "did not have any evidence at this time to show that, in fact, a notice had been sent to Mr. Hardin on the change in the fees.”

      . The argument section of Hardin’s brief corresponding to Point I contains many arguments which do not relate to the errors alleged in that point. We will not consider these arguments, as they are not properly presented for our review. See Rule 84.04(e) (which provides, in relevant part, that "[t]he argument shall be limited to those errors in-eluded in the 'Points Relied On’ ”); Schmidt v. Warner, 955 S.W.2d 577, 584 (Mo.App. S.D.1997) ("Issues to which an appellant alludes only in the argument portion of his brief are not presented for review.”) The same applies to similar extraneous arguments which appear throughout Hardin's brief as to his other five points relied on.

      . Article I, § 8 provides, in part, "that every person shall be free to say, write or publish, or otherwise communicate whatever he will on any subject, being responsible for abuses of that liberty; and that in all suits and prosecutions for libel or slander the truth thereof may be given in evidence; and in suits and prosecutions for libel the jury, under the direction of the court, shall determine the law and the facts.”

      . Rule 4-8.4(c) provides that it is professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation. ’'

      . Rule 2.03, Canon 3, paragraph B(7) states, in part: "A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law.”

      . Capital One requests this relief at the conclusion of its brief. "The preferred procedure for raising the issue of a frivolous appeal is by separate motion. However, Rule 84.19 grants us the authority to address the issue, regardless of the manner it is raised.” Dale v. Hardy, 835 S.W.2d 444, 447 (Mo.App. W.D.1992) (internal citations omitted). See also Westem District Special Rule XXIX (effective April 1, 2004) (providing that although any party claiming an amount for attorney’s fees on appeal "must file a separate written motion before submission of the cause,” Rule XXIX "shall not apply to claims for damages under Rule 55.03 or Rule 84.19.”)

      . For cases involving similar circumstances, see Presto Roofing Co. v. Hammons, 916 S.W.2d 797, 798 (Mo. banc 1996) (awarding corporate respondent $2,000 as damages for the filing of a frivolous appeal by pro se appellants); Mullen v. G.M.A.C., 919 S.W.2d 7, 9 (Mo.App. W.D.1996) (awarding $150 in damages for frivolous appeal where pro se appellant’s petition for fraud against corporate defendant was not properly pled and was correctly subject to being dismissed under Rule 55.15 for failure to plead all the required elements of fraud with particularity and where both original and second briefs filed by appellant were deficient); Birt v. Consol. Sch. Dist. No. 4, 829 S.W.2d 538, 544 (Mo.App. W.D.1992) (awarding damages for frivolous appeal in the amount of $3,221 where appellant "raised claims without basis in law and contrary to well established principle and policy of the legal system”); Swanigan v. Crockett, 713 S.W.2d 41, 43 (Mo.App. E.D.1986) (assessing $981.83 as damages for frivolous appeal against an appellant who asserted only that the trial court should have believed the appellant rather than the respondent and argued a point directly contradicted by the appellant’s in-court admissions).


source: Caselaw Access Project

author: GLENN A. NORTON, Judge.

license: Public Domain

text:
    S & P PROPERTIES, INC., Appellant, v. CITY OF UNIVERSITY CITY, Respondent.
    No. ED 85520.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 13, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 25, 2005.
    Application for Transfer Denied Dec. 20, 2005.

      John Mulligan, Jr., St. Louis, MO, for respondent.
    Richard Fischer, St. Louis, MO, for appellant.
    David Knieriem, Clayton, MO, Co-counsel for appellant.
   OPINION

GLENN A. NORTON, Judge.

S & P Properties, Inc. filed a petition challenging the validity of and methods of enforcement used under University City’s refuse collection ordinances and seeking a refund of amounts paid under the ordinances. The trial court granted the City’s motion to dismiss for failure to state a claim upon which relief can be granted, and S & P appeals. We affirm.

I. BACKGROUND

The allegations in S & P’s petition are as follows. S & P purchased property in University City. The City’s refuse collection ordinances authorize the imposition of a special tax bill to act as a lien on property if refuse collection fees are not paid. Under these ordinances, the City demanded payment of the outstanding balances on tax bills relating to refuse collection for the property S & P purchased and would not provide occupancy permits or inspections until the balances were paid. S & P paid some portion of the balance on those tax bills.

S & P filed suit against the City. In the first count of the petition, S & P sought a declaration that the ordinances are unconstitutional and unlawful. In the second count, it alleged that the taxes were collected mistakenly or erroneously and sought a refund under section 139.031.5 RSMo 2000. In the third count, S & P claimed that, under section 88.814, the City erred in treating the refuse collection fees as a special tax bill and in collecting taxes from S & P and sought a refund. Finally, in the last count S & P sought a refund under the doctrine of unjust enrichment. The City filed a motion to dismiss for failure to state a claim upon which relief can be granted, which the court granted without further explanation. S & P appeals.

II. DISCUSSION

A motion to dismiss for failure to state a claim is solely a test of the adequacy of the plaintiffs petition; therefore, on appeal, we accept as true all well-pled allegations in the petition and liberally grant the plaintiff all reasonable inferences drawn therefrom. Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo.banc 1993); see also Freeman v. Leader National Insurance Co., 58 S.W.3d 590, 596 (Mo.App. E.D.2001). This Court does not attempt to weigh whether the alleged facts are credible or persuasive. Nazeri, 860 S.W.2d at 306. “Instead, the petition is reviewed in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case.” Id. Where, as here, the court does not state a reason for its dismissal, we assume the reason for dismissal is in the motion to dismiss and will affirm based on any grounds therein. Berkowski v. St. Louis County, 854 S.W.2d 819, 823 (Mo.App. E.D.1993).

A. Declaratory Judgment

S & P sought a declaration that the City’s refuse collection ordinances conflict with the United States Constitution, the Missouri Constitution, Missouri statutes and the City’s charter and ordinances. To state a claim for declaratory relief, the plaintiff must: (1) present a justiciable controversy; (2) demonstrate a legally protected pecuniary or personal interest directly at issue and subject to immediate or prospective consequential relief; (3) show that the issue is ripe; and (4) demonstrate that he does not have an adequate remedy at law. Lane v. Lensmeyer, 158 S.W.3d 218, 222 (Mo. banc 2005). In its motion to dismiss, the City argued, among other things, that S & P had an adequate remedy in the tax protest procedures in section 139.031.1-.4. Those sections allow for a taxpayer to pay taxes under protest and then bring an action for recovery of those taxes. Section 139.031.1-.4. The payment under protest must be accompanied by a written statement setting forth the grounds on which the protest is based. See section 139.031.1. The reasons for protest stated in the accompanying statement — including statutory validity and constitutional challenges — then can be adjudicated. See, e.g., Armco Steel v. City of Kansas City, 883 S.W.2d 3, 5 (Mo. banc 1994) (challenging statutory validity and constitutionality through protest payment); see also Metal Form Corp. v. Leachman, 599 S.W.2d 922, 924-25 (Mo. banc 1980) (limiting appellate review to those issues specifically raised in the protest statement). We agree that S & P had an adequate remedy for addressing the validity and constitutionality of the refuse collection ordinances because it could request a refund after payment under protest of the taxes it believed were imposed and collected illegally and unconstitutionally. See Lane, 158 S.W.3d at 222.

An action for declaratory judgment is inappropriate if an issue can be raised by other means. Id. at 223. S & P has not shown that requesting a refund under section 139.031.1-.4 would not fully redress the validity or constitutionality of the ordinances or be an adequate remedy. See id. S & P’s petition’s count seeking declaratory judgment therefore did not state a claim upon which relief can be granted.

B. Refund under Section 139.031.5

Although it did not pay under protest and seek a refund under sections 139.031.1-.4, S & P did allege that the taxes imposed by the City under its ordinances were mistakenly or erroneously levied against it and sought refund under section 139.031.5. In its motion to dismiss, the City correctly argued that section 139.031.5 only applies to taxes levied by “county collectors of taxes, and the collector of taxes in any city not within a county” and that University City is not a county or a city outside of a county. In response, S & P cites Crest Communications v. Kuehle for the proposition that “an equitable action for refund will lie in some cases to prevent a city from exceeding the assessed valuation placed on property by the county.” 754 S.W.2d 563, 568 (Mo. banc 1988). That holding is limited to its facts, which are completely different than the facts alleged in S & P’s petition. See Lane, 158 S.W.3d at 222 (stating that Crest has been limited to its facts). S & P did not plead that the City imposed a tax in excess of the valuation made by the county; its allegations in this count related to the taxes imposed by the City, which S & P did not — and cannot — allege is a county or a city not within a county. Therefore, S & P failed to state a claim for a refund under section 139.031.5.

C. Refund under Section 88.814

S & P also sought a refund under section 88.814. Section 88.814.2 provides that “[i]n any action brought on any special tax bill the court may correct any error in the amount of the tax bill.” In its motion to dismiss, the City contended that S & P failed to state a claim because section 88.814 provides no legal basis for relief in this case. We agree, but not for the particular reason the City asserts.

The City argues that section 88.814 only applies to special tax bills for the public improvements outlined in section 88.812, which does not include refuse collection. But claims under section 88.814 are not that restricted. Rather, section 88.812 provides for the creation of special tax bills for specified public improvements, while section 88.814.2 provides for the correction of an error in any special tax bill. Section 88.814 does not refer to section 88.812 except with respect to requests for a public hearing about taxes levied on property, which is not at issue here. Section 88.814.3. There is no authority for the proposition that an action to correct an error in a tax bill under section 88.814 is restricted to the types of tax bills enunciated in section 88.812.

Nonetheless, S & P’s assertion that the City “erred in treating the refuse collection fees as a special tax bill and in collecting said taxes from [S & P]” does not state a claim upon which relief can be granted under section 88.814. Section 88.814 does not say anything about the types of fees that can be treated as special tax bills or the ways in which special tax bills are collected. Further, section 88.814 does not provide a legal basis for the relief sought by S & P, namely, a refund of the taxes it paid. That statute relates only to errors in the amount of the tax bill and only provides for the correction of those amounts and for a public hearing. Section 88.814. Moreover, the attorney fees that S & P seeks in this count are recoverable only by one seeking to enforce a special tax bill. Section 88.814.2.

S & P argues that, under Nicolai v. City of St. Louis, dismissal of a petition is improper if interpretation of a statute is required. 762 S.W.2d 423, 425 (Mo. banc 1988). The holding in Nicolai, however, applied only to the petitioner’s pursuit of a declaratory judgment, which S & P does not request in this count of its petition. It is proper to construe the relevant statute to determine the propriety of granting a motion to dismiss in this case because a declaration of rights is not the relief sought. See Bachtel v. Miller County Nursing Home District, 110 S.W.3d 799, 801 (Mo.banc 2003).

D. Unjust Enrichment

S & P also sought a refund on the grounds that the City was unjustly enriched by the money S & P had paid. The City argued that it was immune from liability under the doctrine of sovereign immunity and that S & P did not plead the elements of unjust enrichment.

The City’s reliance on sovereign immunity is misplaced. Section 537.600 codifies and limits the common law of sovereign immunity to only tort actions. See Gavan v. Madison Memorial Hospital, 700 S.W.2d 124, 126-27 (Mo.App. E.D.1985). S & P did not plead a tort action in this count; it pled unjust enrichment, which is based on an implied contract. See White v. Camden County Sheriffs Department, 106 S.W.3d 626, 634 (Mo.App. S.D.2003).

Nevertheless, this count failed to state a claim on which relief can be granted because S & P has an adequate statutory remedy available in the protest procedures of section 139.031.1-.4, as discussed above. “[T]axes, once paid, can only be recovered through proper statutory proceedings, and ... the statutes must be adhered to.” Ackerman Buick, Inc. v. St. Louis County, 771 S.W.2d 343, 345 (Mo.banc 1989) (affirming dismissal of unjust enrichment claim seeking recovery of taxes paid because taxpayer could pay under protest and then seek refund).

The trial court did not err in dismissing the petition because the facts alleged in the petition do not meet the elements of a cause of action on any of its four counts. See Nazeri, 860 S.W.2d at 306. All points are denied.

III. CONCLUSION

The judgment is affirmed.

CLIFFORD H. AHRENS, P.J., and NANNETTE A. BAKER, J., concurring.

      . All statutory references are to RSMo 2000.

      . The full text of section 88.814 is as follows:
      1. Any error made in issuing any tax bill may be corrected by the clerk of the city, town or village who issued it, or his successor in office, either by interlineations in it, or by issuing a new tax bill in lieu of the erroneous one, but when a tax bill is corrected by interlineations the date of making same shall be certified to by the clerk on the margin or back of the bill.
      2. In any action brought on any special tax bill the court may correct any error in the amount of the tax bill, and in any case where it is shown that the work done was not as good as required by the contract, the court may give judgment for the reasonable value of the work chargeable against the land described in the special tax bill; and in all actions to enforce any special tax bill the court shall fix and allow a reasonable attorney fee to the plaintiff’s attorney for his services in the prosecution of said action and tax the same as costs in the proceeding.
      3. In all cases where work is done or improvements made and the cost thereof is assessed as a special tax, any owner of property upon which such tax is levied may request, and the legislative body of such city, town or village shall grant, a public hearing to determine whether such assessment is excessive or is levied at a greater sum than was stated in the notices required by section 88.812, RSMo. The legislative body is hereby empowered to adjust or reduce such assessment which is determined to be excessive or levied at a greater sum than was stated in the notices. If such adjustments or reductions result in the collection of special taxes insufficient to pay the costs of work done or improvements made, the city, town or village may pay the difference between costs accrued and special taxes collected out of general revenue.


author: CLIFFORD H. AHRENS, Judge.

text:
    STATE of Missouri, Respondent, v. Orlando MONDAINE, Appellant.
    No. ED 85168.
    Missouri Court of Appeals, Eastern District, Division One.
    Sept. 13, 2005.
    Application for Transfer to Supreme Court Denied Oct. 25, 2005.
    Application for Transfer Denied Dec. 20, 2005.

      Jessica Hathaway, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Ronald S. Ribaudo, Jefferson City, MO, for respondent.
   CLIFFORD H. AHRENS, Judge.

Orlando Mondaine (“defendant”) appeals the judgment on his conviction of one count of possession of a controlled substance and one count of trespass in the first degree. Defendant claims the state faded to present sufficient evidence to support his conviction of first degree trespassing. He also argues that the trial court improperly admitted evidence of heroin found during a search incident to his arrest for trespassing. Finding no error, we affirm.

On November 9, 2002, detectives Theodore Bynum and Denise Strittmatter, with the City of St. Louis Police department, responded to a call regarding individuals selling drugs at the property located at 4061 and 4063 McRee. When the detectives arrived at the address, they observed defendant sitting on the front steps of the building. Both detectives stated that “no trespassing” signs were posted on the property. The detectives began conducting an interview with defendant, and Jacqueline Martin, the owner of the property approached them. She informed the officers that defendant did not have permission to be on her property, and she did not want him there. Defendant admitted that he did not live in the building. Detective Strittmatter testified at trial that she believed defendant said something about being in the neighborhood to visit friends; however, Detective Bynum stated that no one in the building responded to him. Defendant was placed under arrest, and Detective Bynum conducted a search incident to the arrest. Detective Bynum located what he believed to be black tar heroin in defendant’s pocket. Defendant was charged with one count of possession of a controlled substance and one count of trespass in the first degree. A jury found defendant guilty of both counts. Defendant filed a motion for judgment of acquittal notwithstanding the jury’s verdict and an alternative motion for new trial, which was denied. Defendant now appeals.

In his first point on appeal, defendant claims that the trial court erred in denying his motion for judgment of acquittal because the state failed to adduce sufficient evidence to support his conviction of first degree trespass. Specifically, defendant argues there was no evidence to show a “no trespassing” sign was posted on the property, what the sign said, if the sign was legible or clear, and whether defendant was aware of the sign. Defendant also claims that the steps to the multifamily apartment building were “presumptively open to the public.”

“In reviewing a sufficiency of the evidence claim, we determine whether sufficient evidence permits a reasonable trier of fact to find guilt.” State v. McCoy, 90 S.W.3d 503, 505 (Mo.App.2002); (citing State v. Storey, 901 S.W.2d 886, 895 (Mo.banc 1995)). We view the evidence and the inferences therefrom in the light most favorable to the verdict. Id.

Pursuant to section 569.140 RSMo (2000) .

1. A person commits the crime of trespass in the first degree if he knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure or upon real property.
2. A person does not commit the crime of trespass in the first degree by entering or remaining upon real property unless the real property is fenced or otherwise enclosed in a manner designed to exclude intruders or as to which notice against trespass is given by:
(1) Actual communication to the actor; or
(2) Posting in a manner reasonably likely to come to the attention of intruders.
3. Trespass in the first degree is a class B misdemeanor.

In the present case, both detectives responding to the call at 4061 and 4063 McRee testified that there were “no trespassing” signs posted on the property. According to Detective Strittmatter, the signs were in front of the residence. Jacqueline Martin, the owner of the property, also testified that she had “no trespassing” signs on the property. Although there was no evidence presented regarding the size of the signs, they were placed in front of the residence, and they read “no trespassing,” according to the testimony presented at trial. Defendant was sitting on the front steps of the property, and therefore, it is a reasonable inference that the signs were posted in a “manner reasonably likely” to come to his attention, as required by section 569.140.

Defendant also argues that there was insufficient evidence of the “unlawfulness” of his presence on the steps of the building because they could be considered a public place. In support of his contention, defendant cites a New York case in which the Criminal Court of the City of New York found that a hallway of a multi-unit dwelling must be considered a public place within the purview of New York penal law’s trespass statute. People v. Outlar, 177 Misc.2d 620, 623, 677 N.Y.S.2d 430 (N.Y.City Crim.App.1998). He also relies upon St Louis County v. Stone, 776 S.W.2d 885 (Mo.App.1989) for this proposition. Both cases are distinguishable.

In both Outlar and Stone, the courts were faced with factually distinct scenarios. Both cases involved allegations of trespass in a common area. The court in Outlar, found that the hallway of a multi-unit dwelling was considered a public place for purposes of trespass. 177 Misc.2d at 623, 677 N.Y.S.2d 430. In Stone, the alleged trespass occurred in a parking lot and in a common area inside a building open to the public. The court found that under those circumstances there was insufficient evidence of trespass because as a public place, the defendants entered with implied consent of the owners, and there was no evidence that the defendants engaged in conduct to revoke the implied consent. 776 S.W.2d at 889.

In the present case, defendant was not in a common hallway, and he was not in a building open to the public. He was sitting on the front steps of a residence. There was no evidence to indicate that the steps were a common area of the building, and therefore, we cannot agree that the steps were “presumptively open to the public.”

As previously discussed, there were “no trespassing” signs located in the front of the residence, and therefore, there was sufficient evidence from which a reasonable jury could find that defendant’s conduct amounted to first degree • trespass pursuant to section 569.140. Point denied.

In his second and final point on appeal, defendant argues that the trial court erred in failing to suppress and in admitting evidence of heroin discovered during a search of his person incident to his arrest for trespassing. Defendant claims the arrest failed to meet the standard of a “reasonable seizure” of a person pursuant to the constitution of Missouri.

We note that during trial, defendant did not object to the admission of the heroin, and in fact, defendant affirmatively stated, “[n]o objection,” when the state moved for its admission. “Missouri courts have consistently held that stating ‘no objection’ when evidence is introduced precludes direct appellate review of the admission.” State v. Baker, 103 S.W.3d 711, 716 (Mo.banc 2003); (citing See e.g. State v. Starr, 492 S.W.2d 795, 801 (Mo.banc 1973)). However, in the present case, after counsel stated “[n]o objection,” to the admission of the evidence, the trial court ruled on the motion to suppress sua sponte. The court stated that it would “overlook” the failure to object to the admission of the evidence and denied the motion to suppress. Therefore, we will review the issue on the merits.

Defendant claims evidence of heroin found on his person was inadmissible because it was obtained by an unreasonable seizure. He argues that the “minor trespass that the police had probable cause to believe he was guilty of did not warrant the indignities and intrusions of a full custodial arrest....” He urges us to adopt a standard of reasonableness for an officer to arrest a person for a nonviolent misdemeanor or infraction.

According to defendant, the United States Supreme Court in Atwater v. City of Lago Vista, 532 U.S. 318,121 S.Ct. 1536, 149 L.Ed.2d 549 (2001), encouraged states to examine their laws and craft a more restrictive standard of the type defendant suggests for the seizure of persons.

In Atwater, the Supreme Court reviewed a Fourth Amendment claim made regarding a custodial arrest for a seat belt offense. While the court recognized in that case, the physical incidents of arrest were “gratuitous humiliations” imposed by the' police officer, it noted that Fourth Amendment inquiries are not well served by a sensitive case-by-case determination. 532 U.S. at 346-47, 121 S.Ct. at 1553. Atwater proposed a “modern arrest” rule which would forbid custodial arrest, even upon probable cause, when the conviction would not result in jail time, or there is no showing of a compelling need for immediate detention. Id. at 346, 121 S.Ct. 1536. In rejecting this proposed rule, the court noted that Atwater’s suggested rule promised “very little in the way of administra-bility.” Id. at 350,121 S.Ct. 1536.

As defendant acknowledges, the Supreme Court in Atwater held that where a police officer has probable cause to believe a suspect committed even a minor criminal offense, he may arrest the offender without violating the Fourth Amendment. Nevertheless, defendant argues that, pursuant to the court’s decision in Atwater, several states limited police discretion based upon the provisions in their own constitutions. Defendant- points to cases from Montana, Nevada and Minnesota in which courts determined that the exercise of police discretion in seizing persons must be reasonable based upon the states’ constitutional provisions protecting citizens of the state from unreasonable searches and seizures. See State v. Bauer, 307 Mont. 105, 36 P.3d 892 (2001), State v. Bayard, 119 Nev. 241, 71 P.3d 498 (2003), and State v. Askerooth, 681 N.W.2d 353, 357 (Minn.2004).

Pursuant to the Fourth Amendment of the United States Constitution, the people are protected against unreasonable searches and seizures. “‘Missouri’s constitutional “search and seizure” guarantee, article I, section 15, is co-extensive with the Fourth Amendment.’ ” State v. Tackett, 12 S.W.3d 332, 337 (Mo.App.2000); (quoting State v. Deck, 994 S.W.2d 527, 534 (Mo.banc 1999), cert denied, 528 U.S. 1009, 120 S.Ct. 508, 145 L.Ed.2d 393 (1999)). Because Missouri’s constitutional protection against unreasonable searches and seizures has been held to co-exist with that of the Fourth Amendment, we do not believe Missouri’s constitution provides greater protection than that of the Fourth Amendment. Thus, we are not persuaded by defendant’s argument regarding other jurisdictions which have determined their own state constitutions, coupled with legislation in the state, provide greater protection in this regard.

Defendant also seeks adoption of his proposed standard for arrests for minor offenses, by relying upon dicta in Atwater, in which the court noted that many jurisdictions had imposed statutes which provided more restrictive safeguards to limit warrantless arrests for minor offenses. 532 U.S. at 352, 121 S.Ct. at 1556. However, Missouri has not imposed such statutory limitations upon warrantless arrests. Pursuant to section 544.216, a law enforcement officer may arrest a person without a warrant when he sees the person violating any law of this state, or has reasonable grounds to believe the person has violated any law of this state, including a misdemeanor or infraction, (emphasis added)

Atwater provides that, “[i]f an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.” 532 U.S. at 354, 121 S.Ct. at 1557. Missouri statutes do not impose a more restrictive standard, and therefore, we do not believe such a limitation is required in the present case.

A warrant is not required for a search incident to a lawful arrest. Tackett, 12 S.W.3d at 337. Here, defendant acknowledges that the officers had “reasonable grounds” to believe that he was committing “some variety” of trespass. Where a lawful arrest is made, a search of the person is reasonable under the Fourth Amendment. Id. at 338. Pursuant to a valid arrest, a police officer may search the defendant’s person and may seize items found pursuant to such an arrest. Id. In the instant case, defendant was searched incident to a lawful arrest, and the heroin was discovered in his pocket. As a result, the trial court did not err in admitting evidence of heroin found on defendant’s person incident to his arrest for trespass. Point denied.

The judgment of the trial court is affirmed.

MARY K. HOFF, P.J., and BOOKER T. SHAW, J. concur.

      . All further statutory references are to RSMo (2000).


text:
    STATE of Missouri, Respondent, v. Dennis Leon ORTON, Appellant.
    No. ED 84812.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 13, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 25, 2005.
    Application for Transfer Denied Dee. 20, 2005.

      Karen L. Kramer, Jefferson City, MO, for respondent.
    Nancy A. McKerrow, Columbia, MO, for appellant.
   OPINION

GLENN A. NORTON, Judge.

Dennis Leon Orton appeals the judgment entered on his convictions for tampering in the second degree and resisting arrest. We affirm.

I. BACKGROUND

Orton was kicked out of a bar by its owners and was seen later that evening “rolling” beneath vehicles in the parking lot of the bar. That night and the next morning, the bar owners discovered that several of their vehicles’ tires, both at the bar and at their home, had been slashed.

One night about a month later, Orton was caught in the bushes at the bar owners’ home. Four men chased Orton from the bar owners’ home, but lost track of him and then went to Orton’s home. Orton’s daughter reported to the police that four men were lurking around her home and that Orton was missing and had been drinking excessively. The men told the investigating officer who responded to the daughter’s call that they had seen Orton at the bar owners’ home. The officer searched around the bar owners’ home and found that the bushes had been trampled and that there would have been ample light for the men to have identified Orton when he was in the bushes.

By the time Orton arrived at his home, several officers had gathered to search for him. He was screaming and using profanity, demanding to know why the officers were on his driveway. The investigating officer asked Orton if he wanted to go to the police station to discuss what had happened at the bar owners’ home. Orton responded that he was not going anywhere unless he was under arrest. The officer testified that he told Orton, “you are under arrest for an investigative hold while I find out what’s going on.” The officer further testified that the investigative hold was for stalking, based on the observations he had made at the bar owners’ home. The officer asked him to put his hands behind his back. Orton refused and made a threatening motion towards the officer, so the officer tackled him. Several officers got involved, and Orton struggled until he was subdued with pepper spray and handcuffed.

Orton was charged with three counts of tampering in the second degree, two counts of stalking and one count of resisting arrest. After a jury trial, he was found guilty of one count of tampering in the second degree and of resisting arrest. He appeals.

II. DISCUSSION

A. Lesser Included Offense

The trial court refused to give Orton’s tendered jury instruction on property damage in the second degree, which he claimed was a lesser included offense of tampering in the second degree. We review the refusal to give a tendered instruction for abuse of discretion. Quinn v. Lenau, 996 S.W.2d 564, 569 (Mo.App. E.D.1999).

A lesser included offense is one that “is established by proof of the same or less than all the facts required to establish the commission of the offense charged.” Section 556.046.1(1) RSMo Cum.Supp.2004. Orton was charged with tampering in the second degree, which is committed if a person “[tjampers with property of another for the purpose of causing substantial inconvenience to that person or to another.” Section 569.090 RSMo 2000. Property damage in the second degree is committed if a person “knowingly damages property of another.” Section 569.120. Orton asserts that, under the facts of this case, “knowingly damages property of another” is equivalent to “tampers with property of another” and that the only additional element required to prove tampering in the second degree is that the defendant acted with the purpose to cause substantial inconvenience to another. While Orton’s act of slashing tires might amount to both tampering with and damage to another’s property, “[t]he elements of the two offenses must be compared in theory, without regard to the specific conduct alleged” to determine if one is a lesser included offense of the other. State v. Derenzy, 89 S.W.3d 472, 474 (Mo.banc 2002). To “tamper” is “to interfere with something improperly, to meddle with it, displace it, make unwarranted alterations in its existing condition, or to deprive, temporarily, the owner or possessor of that thing.” Section 569.010. Under this definition, one can tamper with another’s property without damaging it. The facts necessary to prove tampering in the second degree do not necessarily also establish property damage in the second degree. Therefore, property damage in the second degree is not a lesser included offense of tampering in the second degree, and the trial court did not abuse its discretion by refusing Orton’s instruction.

Point denied.

B. Resisting Arrest

Orton argues that there was insufficient evidence that he was being arrested for an offense and, therefore, he cannot be guilty of resisting arrest. We disagree.

When reviewing the sufficiency of the evidence to support a criminal conviction, this Court gives great deference to the jury. State v. Cartwright, 17 S.W.3d 149, 152 (Mo.App. E.D.2000). We do not ask ourselves whether we believe that the evidence at trial established guilt beyond a reasonable doubt. Id. Instead, the question is whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. Chaney, 967 S.W.2d 47, 52 (Mo. banc 1998). In answering that question, we view the evidence in the light most favorable to the verdict, give the State the benefit of all reasonable favorable inferences and disregard all contrary evidence and inferences. State v. Grim, 854 S.W.2d 403, 405 (Mo.banc 1993).

A person resists arrest when (1) he knows or reasonably should know a law enforcement officer is making an arrest and (2) he resists the arrest by using or threatening violence or physical force (3) for the purpose of preventing the officer from effecting the arrest. Section 575.150. While the resisting arrest statute does not require that the arrest be for any particular offense, the Missouri Approved Instructions require the State to show that the officer was arresting the defendant for a specified offense. MAI-CR3d 329.60 (9-1-99); see also State v. Mansfield, 748 S.W.2d 949, 953 (Mo.App. E.D.1988). Here, the jury was properly instructed that it had to find that Orton was being arrested for stalking. Moreover, there was sufficient evidence that stalking was the basis of the arrest. The arresting officer testified at trial that the arrest was for an investigative hold for stalking based on the information he gathered at the bar owners’ home. The officer was presumably referring to the twenty-hour hold statute, which provides that a person arrested without a warrant for suspicion of committing an offense can be held for no longer than twenty hours without being charged. See section 544.170 RSMo Cum. Supp.2004; State v. Manwarren, 139 S.W.3d 267, 270 (Mo.App. S.D.2004) (referring to arresting defendant for “twenty-hour investigative hold”). Orton claims that at the time of the arrest, the officer only told him that he was under arrest for an investigative hold and that this is not an offense. But there is no authority for the proposition that to support a resisting arrest charge, the State must prove that the officer informed the defendant of the exact offense for which he was being arrested.

The cases on which Orton relies, where the defendants’ resisting arrest convictions were overturned, are distinguishable. In State v. Johnson, the State failed to allege in the indictment or the instruction the offense for which the defendant was arrested. 741 S.W.2d 70, 73 (Mo.App.S.D.1987). Here, there is no argument that the indictment or instruction was deficient.

Orton also suggests that the State is required to prove the degree of the offense for which he was arrested, citing State v. Furne, 642 S.W.2d 614, 616 (Mo.banc 1982) and DeClue v. State, 3 S.W.3d 395, 399 (Mo.App. E.D.1999). Those cases involved felony resisting arrest charges. For resisting arrest to amount to a felony, the State must prove either that the offense for which the defendant was arrested was a felony or that the defendant resisted arrest “by fleeing in such a manner that the person fleeing create[d] a substantial risk of serious physical injury or death to any person.” Section 575.150.5 RSMo Cum.Supp.2004. Otherwise, resisting an arrest is a misdemeanor. Id. Orton was charged with and convicted of misdemean- or resisting arrest. There is no authority to support the proposition that to convict on misdemeanor resisting arrest, the State must prove that the defendant was arrested for a misdemeanor. On the contrary, the degree of the offense for which the defendant was being arrested must be proven only when the resisting arrest charge is a felony. Here, evidence that Orton was being arrested for the particular offense of stalking was sufficient, and proof of the degree of the offense was not necessary.

Orton’s reliance on State v. Long is also misplaced. In Long, the defendant’s resisting arrest conviction was reversed because he resisted the police officer before the officer contemplated arresting him. 802 S.W.2d 573, 576-77 (Mo.App. S.D.1991). “The offense of resisting arrest cannot occur unless a law enforcement officer actually contemplates an arrest.” Id. at 575-76 (citing section 575.150 RSMo 1986). Here, the officer told Orton that he was under arrest, and then he resisted.

Point denied.

III. CONCLUSION

The judgment is affirmed.

CLIFFORD H. AHRENS, P.J., and NANNETTE A. BAKER, J., concurring.

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

      . Because Orton failed to establish that the tendered instruction was a lesser included offense, we do not reach his arguments regarding the basis for acquittal of the higher offense and conviction of the lesser included offense. See State v. Hibler, 5 S.W.3d 147, 150 (Mo. banc 1999) ("If an offense is an ‘included offense’ of ‘the offense charged,’ then the issue is whether there is a basis to: 1) acquit of the offense charged, and 2) convict of the included offense." (emphasis added) (citing section 556.046.2 RSMo 1994)).


author: PER CURIAM.

text:
    Steven DITTMAIER, Plaintiff/Appellant, v. Earlene HEMPHILL, Defendant/Respondent.
    No. ED 84804.
    Missouri Court of Appeals, Eastern District, Division One.
    Sept. 13, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 25, 2005.
    Application for Transfer Denied Dec. 20, 2005.

      Cervantes & Associates, Leonard P. Cervantes, Jennifer Suttmoeller, St. Louis, MO, for appellant.
    Crystal Y. Smith, St. Louis, MO, for respondent.
    Before MARY K. HOFF, P.J. and CLIFFORD H. AHRENS, J. and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Steven Dittmaier (Dittmaier) appeals from the trial court’s judgment, entered in accordance with a jury verdict in favor of Earlene Hemphill (Hemphill) on Dittmaier’s claim for negligence per se premises liability. Dittmaier claims the trial court erred in its giving of two jury instructions.

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential or jurisprudential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our decision. Judgment affirmed in accordance with 84.16(b).


text:
    STATE of Missouri, Respondent, v. Peter LUDWELL, Appellant.
    No. WD 64268.
    Missouri Court of Appeals, Western District.
    Sept. 20, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 1, 2005.
    Application for Transfer Denied Dec. 20, 2005.
    Elizabeth U. Carlyle, Lee’s Summit, MO, for appellant.
    Theresa E. Crayon, Kansas City, MO, for respondent.
    Before JOSEPH M. ELLIS, Presiding Judge, PAUL M. SPINDEN, Judge and VICTOR C. HOWARD, Judge.
   ORDER

PER CURIAM.

Peter Ludwell appeals from his conviction by jury of one count of assault in the third degree, § 565.070.1(2). Ludwell was sentenced to a term of one year in the Jackson County Department of Corrections. No jurisprudential purpose would be served by a formal written opinion; however, a memorandum explaining the reasons for our decision has been provided to the parties.

Judgment affirmed. Rule 30.25(b).