text:
    Elizabeth Ann DENTON, Petitioner-Appellant, v. DIRECTOR OF REVENUE, Defendant-Respondent.
    No. 26640.
    Missouri Court of Appeals, Southern District, Division One.
    Oct. 3, 2005.

      Jeffrey Green, Osage Beach, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., and Cheryl Caponegro Nield, Associate Solicitor, Jefferson City, MO, for Respondent.
   JAMES K. PREWITT, Presiding Judge.

Elizabeth Ann Denton (“Appellant”) appeals the trial court’s judgment affirming the suspension of her driving privileges by the Missouri Department of Revenue (“Respondent”), pursuant to § 302.505, RSMo 2004. There was no testimony at the trial, the parties having stipulated “to submit on the record” various documents presented to the trial court. The facts hereinafter stated come from those documents.

At or around 1:14 a.m. on April 9, 2004, City of Osage Beach Police Officer Alex Little responded to a vehicle-rollover collision. At the scene, Little observed a green Chevy Blazer on its top with two individuals next to the vehicle. The individuals identified themselves as Appellant, age 18, and Trevor Gardner, both of whom indicated Appellant was driving the vehicle at the time of the collision. Appellant stated that she lost control of the vehicle after swerving to avoid a deer in the road.

Little smelled intoxicants on Appellant’s breath and proceeded to administer a horizontal gaze nystagmus test, which Appellant passed. Appellant then consented to a breath test. Upon examination of the vehicle, another officer found marijuana. Appellant and Gardner were arrested for possession of marijuana. At the police station, Appellant passed a walk-and-turn test and a one leg stand test. Appellant admitted to smoking marijuana seventy-two hours prior to the accident and drink-mg alcohol three hours prior to the accident. Little then administered a breathalyzer test, which registered Appellant’s blood-alcohol content (“BAC”) at .02 percent.

Based upon the BAC test results, Appellant’s driving privileges were revoked by the Respondent. At Appellant’s request, an administrative hearing was held on June 24, 2004. Respondent concluded there was “probable cause to believe [Appellant] was driving a motor vehicle while the alcohol concentration in the blood was at or above the limit required by Section 304.505, RSMo, or if under age twenty-one, was stopped while operating a motor vehicle with a blood alcohol content of .02% or more by weight[.]”

Appellant filed a petition for review with the circuit court on July 15, 2004. On September 27, 2004, the court affirmed the decision of the Respondent. Appellant filed Notice of Appeal on October 29, 2004. Appellate review is undertaken pursuant to Rule 84.13(d). The trial de novo, although an appeal of the administrative hearing, is an original proceeding and is not judicial review of the administrative decision. Petet v. State, Dept. of Social Services, 32 S.W.3d 818, 821 (Mo.App. 2000).

Section 302.505.1, RSMo 2004, states:
The department shall suspend or revoke the license of any person upon its determination that the person was arrested upon probable cause to believe such person was driving a motor vehicle while the alcohol concentration in the person’s blood, breath, or urine was eight-hundredths of one percent or more by weight, based on the definition of alcohol concentration in section 302.500, or where such person was less than twenty-one years of age when stopped and was stopped upon probable cause to believe such person was driving while intoxicated in violation of section 577.010, RSMo, or driving with excessive blood alcohol content in violation of section 577.012, RSMo, or upon probable cause to believe such person violated a state, county or municipal traffic offense and such person was driving with a blood alcohol content of two-hundredths of one percent or more by weight.

In point one, Appellant contends the court plainly erred in finding that Appellant failed to pass two of three field sobriety tests “giving rise to probable cause of intoxication” when “the evidence clearly showed that [Appellant] passed all field sobriety tests.” Respondent counters that this “inaccuracy” in the judgment does not negate its “correct result.”

Field sobriety tests are not the only element to determine probable cause of intoxication or drinking of alcohol. Field sobriety tests are not mandatory, as “[t]hey merely are an [aid] to an officer’s other observations in determining whether he has probable cause for an arrest.” Chancellor v. Lohman, 984 S.W.2d 857, 858 (Mo.App.1998).

Probable cause is based on the particular facts and circumstances in each individual case. Hopkins-Barken v. Dir. of Revenue, 55 S.W.3d 882, 885 (Mo.App. 2001). “We consider the information the officer possesses prior to the arrest and the reasonable inferences that can be drawn from that information.” Melvin v. Dir. of Revenue, 130 S.W.3d 11, 14 (Mo.App.2004). “Probable cause to arrest for driving while intoxicated exists when a police officer observes an unusual or illegal operation of a motor vehicle and observes indicia of intoxication upon coming into contact with the driver.” Id. Appellant’s vehicle had flipped over. Appellant “admitted to drinking” and “had a moderate smell of alcohol on her breath with bloodshot and glassy eyes.” There was a sufficient basis for the officer to believe that probable cause existed.

This Court is primarily concerned with the trial court reaching the right result as opposed to the route taken by the trial court to reach that result. Business Men’s Assurance Co. of America v. Graham, 984 S.W.2d 501, 506 (Mo.banc 1999). Point I is denied.

Point II, Appellant’s remaining point, states:

The trial court erred in upholding Defendant/Appellee’s decision in that Ap-pellee failed to meet its burden of proof indicating that Plaintiff/Appellant was in violation of RSMo 302.505 because there was no evidence that a Plaintiff/Appellant under the age of twenty-one was stopped upon probable cause that Plaintiff/Appellant violated a state, county or municipal traffic offense and was driving with a blood alcohol content of two-hundredths of one percent or more by weight.

At a trial de novo, the Director has the burden of proving a prima facie case for the suspension of a driver’s license by a preponderance of the evidence. Neeley v. Dir. of Revenue, 104 S.W.3d 797, 801 (Mo.App.2003). Appellant contends that Respondent failed to prove the three-prong test of § 302.505.1, RSMo 2000 required to suspend Appellant’s license.

There was evidence showing that appellant had been driving the vehicle. At the scene, Appellant said she was operating it, and she admitted to operating it upon later questioning. “It is not necessary for an officer to actually observe a person driving to have probable cause to arrest the person for driving while intoxicated.” McFall v. Dir. of Rev., 162 S.W.3d 526, 531 (Mo.App.2005). An officer has the right to rely upon information received other than personal observations. Id.

Appellant states in conclusion “the timeliness of the blood alcohol test is extremely questionable.” Appellant offers no authority to establish proper timeliness of administering a blood alcohol test. “When a breathalyzer test is used to prove the element of blood alcohol level, there are additional foundational prerequisites.” Hall v. Dir. of Revenue, 72 S.W.3d 231, 232 (Mo.App.2002). “Those prerequisites are: 1) the test was performed by following approved techniques and methods of the Division of Health, 2) the operator held a valid permit, and 3) the equipment and devices were approved by the Division.” Id. Point two is denied.

The judgment is affirmed.

PARRISH, J., and RAHMEYER, J., concur.


source: Caselaw Access Project

author: PHILLIP R. GARRISON, Presiding Judge.

license: Public Domain

text:
    In re the MARRIAGE OF Sarah SWALLOWS and Jeremy Ryan Swallows. Sarah Swallows, Petitioner-Appellant, v. Jeremy Ryan Swallows, Respondent-Respondent.
    No. 26268.
    Missouri Court of Appeals, Southern District, Division One.
    Oct. 3, 2005.

      Daniel R. Schramm, Chesterfield, for appellant.
    Jasper. N. Edmundson, Jr., Amy E. Bo-nifield, Poplar Bluff, for respondent.
   PHILLIP R. GARRISON, Presiding Judge.

Sarah Swallows (“Mother”) appeals from a judgment modifying an earlier decree that dissolved her marriage to Jeremy Ryan Swallows (“Father”) and awarded them joint legal custody of their daughter H.G.S. (“the child”). We reverse the judgment because of the lack of statutorily required findings.

In the dissolution decree, entered on August 21, 2002, the court awarded the parties joint legal custody of the child, born January 3, 2002, with Mother to have primary physical custody, and Father to have specific visitation. Father was allowed supervised visitation with the child each Sunday until her first birthday, thereafter he was allowed supervised visits on alternating weekends and holidays until the child reached the age of eighteen months. After the child reached eighteen months of age, Father’s periods of visitation were to be unsupervised with the same visitation schedule. Father was also given one week of visitation during the summer months after the child reached the age of two years.

On May 15, 2003, Father filed a motion to modify, alleging that there was a substantial change in circumstances in that Mother had refused him visitation with the child on multiple occasions; that Mother had refused to promote a relationship between him and the child; and that he is capable of providing a suitable and proper home for the child. After trial of the issues, the trial court entered the judgment on April 6, 2004, from which this appeal flows. It awarded Father temporary custody of the child for the first two weeks of each month every summer, temporary custody of the child every other week from Friday at 6:00 p.m. to Wednesday at 6:00 p.m., and ordered that each party shall have visitation on alternating years for each holiday. This appeal followed.

Mother relies on three points of error in this appeal. However, as Point I necessitates a reversal and remand, we need not address the remaining issues. In Point I, Mother contends, inter alia, that the trial court erred in failing to address whether the modification was in the child’s best interests, and in failing to make the written findings required under §§ 452.375.2 and 452.375.6 detailing which of the statutory factors supported any implied conclusion that the modification was in the child’s best interests.

In a custody modification case, the appellate court will affirm if the judgment is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. Speer, 155 S.W.3d at 61. In this case we hold that the trial court misapplied the law by failing to make written findings that are required in such proceedings.

The trial court made the following findings in support of its judgment modifying custody:

Now, the Court, being fully advised in the premises, finds from the evidence that there has been such continuing and substantial change of circumstances which would require modification of the judgment, to-wit: [Father] is regularly employed, has a stable and safe home environment and supervised visitation with the minor child is no longer required. The Court also finds that [Mother], who by her own admission believes that a child of this age “belongs with the mother” has, without good cause, consistently refused to promote an ongoing and continuing relationship with the minor child and [Father].

Modification of a child custody decree is governed by § 452.410.1, RSMo (2000). That statute provides a two-step process that courts must follow when determining whether or not to modify an earlier custody order. In re Marriage of Eikermann, 48 S.W.3d 605, 608-609 (Mo.App. S.D. 2001). It provides in pertinent part:

the court shall not modify a prior custody decree unless it has jurisdiction under the provisions of section 452.450 and it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child.

Section 452.410.1, RSMo (2000). By providing that the court “shall not” modify a prior custody decree unless it “finds,” among other things that the modification is necessary to serve the best interests of the child, § 452.410.1, RSMo (2000), requires that the court make such a finding. See Puisis v. Puisis, 90 S.W.3d 169, 173 (Mo.App. E.D.2002). No such explicit finding is contained in the judgment here.

Additionally, in the instant case, the parties did not agree to a custodial arrangement regarding the child. Where the parties have not agreed to a custodial arrangement, § 452.375.6 provides, in pertinent part:

the court shall include a written finding in the judgment or order based on the public policy in subsection 4 of this section and each of the factors listed in subdivisions (1) to (8) of subsection 2 of this section detailing the specific relevant factors that made a particular arrangement in the best interest of the child.

Section 452.375.2 provides that the court shall determine custody in accordance with the best interests of the child, and in doing so shall consider all relevant factors including eight that are specifically enumerated in that section.

The Supreme Court of Missouri has held, in a case involving a modification of custody, that where the parties did not agree to a custodial arrangement, “the trial court was required to include in its judgment a written finding based on the public policy in section 452.375.4 and the factors listed in section 452.375.2(1) to (8) detailing the specific relevant factors that made the chosen arrangement in the best interest of the [child].” Speer, 155 S.W.3d at 61. There, the court found that the judgment did not comply with § 452.375.6 “because it failed to make the required written findings detailing the specific relevant factors that supported its judgment.” Id. at 62. In so holding, the court noted that § 452.375.6 does not mandate the need for a written finding on all of the factors listed, but “the relevant factors must be detailed.” Id; see also Buchanan v. Buchanan, 167 S.W.3d 698, 702 (Mo. banc 2005). The reason for such requirement is to assure that all pertinent considerations are described by the trial court so as to allow for more meaningful appellate review. State ex rel. State of Kansas Soc. & Rehab. Serv. v. R.L.P., 157 S.W.3d 268, 275 (Mo.App. S.D.2005).

Father argues that the judgment in this case met the statutory requirements, even if it did not contain the explicit findings mentioned above, because its contents reflect that the trial court considered relevant factors that correspond to those enumerated in § 452.375.2(2), (3) and (4). In support, he cites Stevens v. Stevens, 977 5.W.2d 305 (Mo.App. W.D.1998), in which the trial court’s judgment did not contain a specific reference to the factors listed in § 452.375.2 and in fact made no findings bearing on custody. There, the appellate court affirmed the judgment, saying that the record contained evidence that would support findings under § 452.375.2(6) and (8). Id. at 308-309. Stevens, however, involved a judgment entered before the amendment of § 452.375 to include subsection 6. It was also decided prior to Speer and Buchanan, both of which make it clear that § 452.375.6 requires written findings detailing the specific relevant factors that made the chosen arrangement in the best interests of the child. Here, the trial court made no finding that the judgment entered as to custody was in the child’s best interests. Likewise, it failed to detail the specific relevant factors that it concluded would make this arrangement in her best interests. For those reasons, we must reverse the judgment and remand the case to the trial court for further proceedings consistent with this opinion.

In doing so, we note that Mother also contends that the trial court misapplied the law in finding a requisite change of circumstances justifying the modification under § 452.410, RSMo (2000), in that it relied primarily on findings that Father, the non-custodial parent, was regularly employed, had a stable and safe home environment and no longer required supervised visitations. She points out that § 452.410.1, RSMo (2000), provides that a party seeking modification must show that a “change has occurred in the circumstances of the child or his custodian.” She also cites cases such as Searcy, 8 S.W.3d at 117, and Eikermann, 48 S.W.3d at 609, for the proposition that while the status of the non-custodial parent is relevant in determining whether modifications would be in the best interests of the child, it is irrelevant to the issue of whether there has been a requisite change in circumstances of the child or his custodian as required by § 452.410.1, RSMo (2000). Here, however, Father and Mother had been awarded joint legal custody in the original proceeding. As such, they were custodians under § 452.410.1, RSMo (2000). See Jantz v. Brewer, 30 S.W.3d 915, 918 (Mo.App. S.D.2000); Nichols v. Ralston, 929 S.W.2d 302, 305 (Mo.App. S.D.1996); Clark v. Clark, 805 S.W.2d 290, 294 (Mo.App. E.D.1991).

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

BATES, C.J., and RAHMEYER, J„ concur.

      . "We note that 'primary physical custody' is not among the four types of custody dispositions recognized by § 452.375.5, which are: (1) joint physical custody; (2) sole physical custody; (3) third-party custody; and (4) visitation. Failure to use proper nomenclature in describing the type of custody being awarded to a parent is confusing to litigants and impedes proper appellate review.” In re Marriage of Copeland, 148 S.W.3d 327 n. 1 (Mo. App. S.D.2004). "Missouri’s statutory scheme does not allow for an order granting ‘primary physical custody.' ” Speer v. Colon, 155 S.W.3d 60, 62 (Mo. banc 2005).

      . All references to statutes are to RSMo Cum. Supp. (2004) unless otherwise indicated.

      . The parties appear to implicitly agree that this was a modification of custody under § 452.410, RSMo (2000), rather than visitation under § 452.400, RSMo (2000).

      . Although the court found "continuing and substantial change of circumstances” supporting the modification, § 452.410, RSMo (2000), requires that "a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child.” While that statute does not specifically require a change of circumstances which is "substantial and continuing,” the Supreme Court of Missouri held in Searcy v. Seedorff, 8 S.W.3d 113, 117 (Mo. banc 1999), that a party seeking to modify custody must establish that a "substantial ‘change in circumstances of the child or his custodian’ has occurred.” We are constitutionally bound to follow the latest Supreme Court of Missouri decision. State ex rel. FAG Bearings Corp. v. Perigo, 8 S.W.3d 118, 123 (Mo.App. S.D. 1999).

      . Section 452.375.4 declares the public policy of Missouri to be that it is in the best interest of the child to have frequent, continuing and meaningful contact with both parents after they have separated or dissolved their marriage, and to encourage parents to participate in decisions affecting the health, education and welfare of their children. In order to effectuate those policies, that section provides that the court "shall determine the custody arrangement which will best assure both parents participate in such decisions and have frequent, continuing and meaningful contact with their children so long as it is in the best interests of the child.”

      . The supreme court also noted that effective January 1, 2005, Rule 78.07(c) was amended to require that, "[i]n all cases, allegations of error relating to the form or language of the judgment, including the faitee to make statutorily required findings, must be raised in a motion to amend the judgment in order to be preserved for appellate review.” Id. at 62 n. 9. This judgment was entered prior to that amendment.

      . We are unable to conclude that the requirement of detailed findings about the specific relevant factors that make a chosen custody arrangement in the best interests of the child is fulfilled by merely making a finding relating to evidence that would be relevant to that inquiry. This is especially true when the finding is made in the context of a change of circumstances, the first prong of the inquiry for modification under § 452.410.1, RSMo (2000).


author: PER CURIAM.

text:
    In The Interest of S.S.C., B.M.C., A.L.C., and J.V.C.; Plaintiff, K.C. (Mother) and J.C. (Father), Appellants, v. Missouri Children’s Division, Respondent.
    Nos. WD 65064, WD 65112.
    Missouri Court of Appeals, Western District.
    Oct. 4, 2005.

      Neal R. Quitno, Nevada, MO, Guardian Ad Litem for S.S.C., B.M.C., A.L.C., and J.V.C.
    David Slaby, Nevada, MO, for Appellant K.C.
    Judy R. Ullmann, Nevada, MO, for Appellant, J.C.
    Nichole L. Loethen, Jefferson City, MO, for Respondent.
    Before VICTOR C. HOWARD, P.J., JAMES M. SMART and THOMAS H. NEWTON, JJ.
   ORDER

PER CURIAM.

K.C. (mother) and J.C. (father) appeal the termination of their parental rights of their children, S.S.C., B.M.C., A.L.C., and J.V.C.

For the reasons explained in the memorandum furnished to the parties, we affirm. Rule 84.16(b).


text:
    Walter J. TYNDAL, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85636.
    Missouri Court of Appeals, Eastern District, Division Five.
    Oct. 4, 2005.
    Amanda R. Schehr, St. Louis, MO, for appellant.
    Deborah Daniels, Karen L. Kramer, Lacey R. Searfoss, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Walter J. Tyndal (hereinafter, “Mov-ant”) appeals from the trial court’s judgment denying his Rule 29.15 post-conviction motion without an evidentiary hearing. Movant was convicted of one count of possessing a prohibited article in a correctional facility pursuant to Section 217.360.1 RSMo (2000). Movant was sentenced to serve fifteen years imprisonment. This Court affirmed Mov-ant’s conviction. State v. Tyndal, 131 S.W.3d 862 (Mo.App. E.D.2004).

Movant raises two points on appeal. Movant argues the motion court clearly erred in denying his allegations of ineffective assistance of counsel without an evi-dentiary hearing in that his trial counsel: (1) failed to investigate and call witnesses that would support Movant’s claim of innocence; and (2) failed to effectively impeach the correctional officer who testified against Movant with contradictions contained in the officer’s report.

We have reviewed the briefs of the parties, the legal file, and the transcript and find the motion’s court decision was not clearly erroneous. White v. State, 939 S.W.2d 887, 904 (Mo. banc 1997); Rule 29.15(k). An opinion reciting the detailed facts and restating the principles of law would have no precedential value. The judgment is affirmed pursuant to Rule 84.16(b).


author: SHERRI B. SULLIVAN, J.

text:
    HUSSMANN CORPORATION, Plaintiff/Appellant, v. UQM ELECTRONICS, INC., Defendant/Respondent.

    No. ED 85673.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 4, 2005.

      Mark Jonathan Bremer, David Andrew Castleman — co-counsel, St. Louis, MO, for appellant.
    Michael H. James, Paul N. Rechen-berg — co-counsel, Chesterfield, MO, for respondent.
   SHERRI B. SULLIVAN, J.

Introduction

Hussmann Corporation (Hussmann) appeals from a trial court judgment sustaining a motion to dismiss based upon res judicata and collateral estoppel filed by UQM Electronics, Inc. (UQM) and dismissing with prejudice a petition filed by Hussmann against UQM alleging breach of contract, breach of express warranty, breach of implied warranty of merchantability, and breach of implied warranty of fitness for particular purpose. The judgment also denied as moot a motion for summary judgment filed by Hussmann. We affirm.

Factual and Procedural Background

Hussmann manufactures and retails commercial refrigeration units. UQM custom manufactures electronic parts. In May 2000, the parties entered into a contract under which UQM agreed to custom manufacture electronic ballasts designed by Hussmann for lighting Hussmann’s refrigeration units. The contract specified scheduled quantities and delivery dates. By August 2000, UQM had failed to deliver the agreed upon quantities by the due dates because UQM did not receive sufficient component microchips necessary for manufacturing the electronic ballasts from its supplier. Accordingly, Hussmann can-celled the contract on August 29, 2000.

On June 10, 2002, in the circuit court of St. Louis County, UQM filed a Petition for Damages and Other Relief, thereafter amended, against Hussmann alleging breach of contract for inventory damages and lost profits and quantum meruit. Subsequently, Hussmann filed a four-count counterclaim alleging breach of contract, breach of express warranty, breach of implied warranty of merchantability, and breach of implied warranty of fitness for particular purpose. Thereafter, Huss-mann filed a motion for summary judgment in its favor on UQM’s amended petition and on its counterclaim against UQM.

On January 12, 2004, Hussmann filed a Conditional Dismissal Stipulation stating:

In the event the Court grants [Huss-mann’s] motion for summary judgment with respect to [UQM’s] claims against [Hussmann], [Hussmann] stipulates that its counterclaims against [UQM] be voluntarily dismissed without prejudice pursuant to Rule 67.02.

On January 16, 2004, the trial court entered a judgment (Previous Judgment) sustaining Hussmann’s motion for summary judgment regarding UQM’s claims against Hussmann and dismissing UQM’s claims with prejudice. The Previous Judgment also denied Hussmann’s motion for summary judgment regarding its counterclaim, but found that a commercial impracticability existed, and therefore it dismissed with prejudice any of Hussmann’s claims for damages affected by commercial impracticability. The Previous Judgment additionally dismissed without prejudice all other claims of Hussmann, per the Conditional Dismissal Stipulation filed by Huss-mann. Neither party appealed the Previous Judgment.

On May 21, 2004, in the circuit court of St. Charles County, Hussmann filed a four-count Petition For Breach of Contract (Petition) against UQM alleging breach of contract, breach of express warranty, breach of implied warranty of merchantability, and breach of implied warranty of fitness for particular purpose. The Petition sought to recover damages not affected by commercial impracticability, namely, scheduled quantities and non-deliveries due pre-contract cancellation. Alternatively, the Petition sought to recover all of Hussmann’s damages, namely, all scheduled quantities and non-deliveries due under the contract, on the theory that the trial court had no jurisdiction to dismiss any of Hussmann’s claims with prejudice in the Previous Judgment because of Hussmann’s Conditional Dismissal Stipulation. UQM filed an Answer to the Petition.

Subsequently, Hussmann filed a Motion for Summary Judgment. Thereafter, UQM filed a Motion to Dismiss Hussmann’s Petition, along with a memorandum of law in support of its motion, arguing that res judicata and collateral estoppel barred re-litigation of the claims alleged in Hussmann’s Petition.

On December 17, 2004, the trial court entered a judgment (Current Judgment) sustaining UQM’s Motion to Dismiss because the Previous Judgment “dismissed these same counterclaims with prejudice” and therefore Hussmann is “barred from refiling these actions on the basis of res judicata and collateral estoppel.” Accordingly, the Current Judgment dismissed Hussmann’s Petition with prejudice. The Current Judgment also denied as moot Hussmann’s Motion for Summary Judgment.

Discussion

Hussmann raises three points on appeal. In its first point, Hussmann argues that the trial court erred in dismissing Huss-mann’s claims based on res judicata in that the trial court was without jurisdiction to adjudicate Hussmann’s claims in the Previous Judgment because Hussmann filed the Conditional Dismissal Stipulation.

We review this point de novo. E.C.E., Inc. v. Jeffrey, 104 S.W.3d 420, 423 (Mo.App. E.D.2003).

Preliminarily, we note that Huss-mann’s argument essentially is a collateral attack on the Previous Judgment in that it attempts to impeach the Previous Judgment in a proceeding not instituted for the express purpose of annulling the Previous Judgment. See Travis v. Contico Int’l, Inc., 928 S.W.2d 367, 369 (Mo.App. E.D. 1996). Generally, collateral attacks upon final judgments are not allowed in part because of the need for finality and certainty in judicial decisions. Taylor v. Taylor, 47 S.W.3d 377, 384 (Mo.App. W.D. 2001). However, a void judgment may be collaterally attacked at any time in any proceeding in which it is sought to be enforced or in which its validity is questioned by anyone with whose rights or interests it conflicts. Id. A void judgment is one in which the court was without jurisdiction to enter the judgment. J.L.M. v. R.L.C., Jr., 132 S.W.3d 279, 284 (Mo.App. W.D.2004). A void judgment is a legal nullity. Travis, 928 S.W.2d at 370. A void judgment can have no conclusive effect, either as res judicata or as an es-toppel, because the proceeding that culminated in the void judgment was itself without integrity. Wright v. Mullen, 659 S.W.2d 261, 263 (Mo.App. W.D.1983).

Accordingly, we now proceed in determining whether or not the trial court was without jurisdiction to adjudicate Huss-mann’s claims in the Previous Judgment in light of the Conditional Dismissal Stipulation filed by Hussmann. Hussmann argues that the Conditional Dismissal Stipulation was a voluntary dismissal under Rule 67.02(a) and that as such, the trial court lost jurisdiction to make any ruhngs affecting Hussmann’s claims.

We disagree that the Conditional Dismissal Stipulation was a voluntary dismissal under Rule 67.02(a). To become effective, a voluntary dismissal under Rule 67.02(a) requires no further action, and in fact, prohibits any further action, of the trial court. Freeman v. Leader Nat. Ins. Co., 58 S.W.3d 590, 595-596 (Mo.App. E.D. 2001). On the contrary, to become effective, the Conditional Dismissal Stipulation filed by Hussmann depended upon the trial court taking further action, namely, granting Hussmann’s motion for summary judgment with respect to UQM’s claims against Hussmann. Further, a voluntary dismissal under Rule 67.02(a) becomes effective as of the date it is filed. Freeman, 58 S.W.3d at 595. The Conditional Dismissal Stipulation could not have become effective as of the date it was filed because its effectiveness depended upon when the trial court ruled on Hussmann’s summary judgment motion. Thus, the Conditional Dismissal Stipulation filed by Hussmann did not cause the trial court to lose jurisdiction to adjudicate Hussmann’s claims in the Previous Judgment. The Conditional Dismissal Stipulation was, as its title indicates and as referred to by the trial court in the Previous Judgment as the basis for dismissing Hussmann’s claims without prejudice, a “stipulation,” not a voluntary dismissal under Rule 67.02(a).

Whether or not the trial court properly applied the Conditional Dismissal Stipulation, as a stipulation, in the Previous Judgment is an issue concerning the validity of the Previous Judgment, not associated with the court’s jurisdiction. The validity of a judgment may only be impeached in an action by a formal appeal. Travis, 928 S.W.2d at 369. An erroneous judgment is subject to attack only through direct appeal, not through a collateral proceeding. J.L.M., 132 S.W.3d at 284. Hussmann did not appeal from the Previous Judgment. Accordingly, Hussmann’s point one on appeal is denied.

In its second point on appeal, Hussmann argues that even if res judicata applies, the trial court erred in dismissing Hussmann’s claims because the Previous Judgment left intact any claims for damages not affected by commercial impracticability and Huss-mann’s claims for damages for pre-termi-nation non-deliveries are not so affected in that UQM failed to give Hussmann the required notice of impracticability under Sections 400.2-615 and 400.2-616.

We review this point de novo. E.C.E., Inc., 104 S.W.3d at 423.

As summarized by Hussmann, Hussmann’s argument is that even if commercial impracticability existed, it did not legally excuse UQM’s pre-termination nondeliveries because UQM did not provide notice as required under Section 400.2-615. This argument essentially attacks the Previous Judgment by claiming trial court error in finding a commercial impracticability existed because UQM provided no statutory notice. An erroneous judgment is subject to attack only through direct appeal, not through a collateral proceeding. J.L.M., 132 S.W.3d at 284. Again, Hussmann did not appeal from the Previous Judgment. Accordingly, Hussmann’s point two on appeal is denied.

In its third point on appeal, Hussmann argues that the trial court erred in denying Hussmann’s Motion for Summary Judgment because as a matter of law and undisputed fact, UQM breached a valid and enforceable contract and Hussmann’s minimum resulting pre-termination damages are arithmetically ascertainable.

Generally, an order denying a motion for summary judgment is not a final judgment and therefore is not reviewable on appeal. Fischer v. City of Washington, 55 S.W.3d 372, 381 (Mo.App. E.D.2001). In some instances, however, the denial of a motion for summary judgment may be reviewable on appeal where the merits of that motion are intertwined with the propriety of an appealable order granting summary judgment to another party. Id; Kaufman v. Bormaster, 599 S.W.2d 35, 38 (Mo.App. E.D.1980). We need not determine whether such instance applies here, as we have already determined that the trial court did not err in granting UQM’s Motion to Dismiss and thus reviewing the denial of Hussmann’s Motion for Summary Judgment is moot. Accordingly, Hussmann’s point three on appeal is denied as moot.

Conclusion

The judgment of the trial court is affirmed.

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

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

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

      . Section 400.2-615 provides in relevant part:
      (a)Delay in delivery or nondelivery in whole or in part by a seller who complies with paragraphs (b) and (c) is not a breach of his duty under a contract for sale if performance as agreed has been made impracticable....
      (b) ...
      (c) The seller must notify the buyer seasonably that there will be delay or nondelivery. ...


text:
    Kendrick WAGNER, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 85736.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 4, 2005.

      Jessica Hathaway, St. Louis, MO, for appellant.
    Deborah Daniels, Alison K. Brown — co-counsel, Jefferson City, MO, for respondent.
   SHERRI B. SULLIVAN, J.

Introduction

Kendrick Wagner (Movant) appeals from the motion court’s judgment dismissing with prejudice his motion for post-conviction relief pursuant to the escape rule. We dismiss the appeal pursuant to the escape rule.

Factual and Procedural Background

On October 9, 2003, Movant pled guilty to possession of a controlled substance (modafmil), a class C felony in violation of Section 195.202. At the plea hearing, Movant requested that sentencing be continued until December 12, 2003. The State’s sentencing recommendation was: “If [Movant] appears on time for sentencing on December 12th, the State would recommend that [Movant] be sentenced to six years in the Missouri Department of Corrections.” Before accepting Movant’s guilty plea, the plea court told Movant:

As a contingency on your plea of guilty here today, in the event that you do not show up for sentencing for any reason on December 12th, 2003, at nine a.m., or if you pick up another criminal offense prior to the sentencing, do you understand that I will not follow any former plea agreement that you have entered into with the State of Missouri and that you will permit me to sentence you to the full range of punishment, up to seven years incarceration? Do you understand that?

Movant stated that he understood the court’s conditions and that he accepted them as part of his plea agreement. After accepting Movant’s plea of guilty, the court deferred sentencing until December 12, 2003, and reminded Movant not to “pick up any more cases and show up on December 12th. Okay?” Movant replied, ‘Tes.”

Movant did not appear for sentencing on December 12, 2003. A warrant for Mov-ant’s arrest was issued, and on January 14, 2004, the warrant was executed. On January 30, 2004, the sentencing court entered a judgment and sentenced Movant to seven years’ imprisonment.

On March 31, 2004, Appellant timely filed a pro se motion for post-conviction relief pursuant to Rule 24.035. The motion court appointed counsel and subsequently granted counsel additional time to file an amended motion. On October 6, 2004, counsel timely filed an amended motion. The amended motion challenged the constitutionality of Sections 195.202 and 195.017 and alleged ineffective assistance of counsel in not advising Movant of a viable defense and an insufficient factual basis to support a plea based on the constitutional challenge.

Subsequently, Movant filed a memorandum of law regarding application of the escape rule in which Movant explained that he “did not show up on December 12, due to his own negligence in failing to arrange for transportation that day.” On December 9, 2004, the motion court entered a judgment dismissing with prejudice Movant’s amended motion due to the escape rule in that Movant “failed to appear for sentencing on December 12, 2003 and was not taken into custody until January 13, 2004.” Movant appeals from the dismissal.

Discussion

In his point on appeal, Movant argues that the motion court clearly erred and abused its discretion by invoking the escape rule to dismiss Movant’s amended motion based on Movant’s failure to appear for sentencing because (1) Sections 195.202 and 195.017 are unconstitutional; (2) the delay caused by Movant’s failure to appear for sentencing was a “mere” forty-nine days and there was no evidence in the record of any relationship between the escape and prejudice to the criminal justice system; and (3) the issue of Movant’s failure to appear was dealt with in the sentencing court through the imposition of an additional year of imprisonment.

The escape rule is a judicially-created doctrine that operates to deny the right of appeal to a defendant who escapes justice. Nichols v. State, 131 S.W.3d 863, 865 (Mo.App. E.D.2004). The escape rule applies to appeals on the merits as well as to motions for post-conviction relief under Rules 29.15 and 24.035. Id. The escape rule can be invoked to dismiss post-conviction appeals regardless of whether the motion court reaches the merits of a movant’s claim or dismisses the motion based on its application of the escape rule. Id. The escape rule applies to errors that occur prior and up to the time of escape, but errors occurring after recapture remain appealable. Id. In applying the escape rale, the relevant inquiry is whether the escape adversely affected the criminal justice system, and if so, then dismissing the appeal is appropriate. Id. Application of the escape rule is within our sound discretion. Id. A defendant’s failure to appear for sentencing constitutes an “escape” under the rule. State v. Crump, 128 S.W.3d 642, 643 (Mo.App. E.D.2004).

We conclude that Movant’s failure to appear at sentencing adversely affected the criminal justice system. His failure to appear required the sentencing court to issue a warrant for his arrest and required law enforcement resources to be employed to execute the warrant. See e.g., Harvey v. State, 150 S.W.3d 128, 129 (Mo.App. E.D.2004); Kemper v. State, 129 S.W.3d 439, 440 (Mo.App. E.D.2004). Movant’s escape also resulted in a forty-nine day delay in sentencing, a time frame to which we have previously applied the escape rule. See, e.g. State v. Bailey, 848 S.W.2d 611, 612 (Mo.App. E.D.1993) (forty-nine day delay in sentencing). Further, we are unmoved by Movant’s explanation for failing to appear for sentencing and find it an affront to the dignity of the courts, especially in light of the repeated warnings that the plea court gave Movant at the plea hearing. Movant did not seek a continuance of his sentencing based on his lack of transportation. Additionally, Mov-ant’s sentence was within the range of punishment available to the sentencing court. Application of the escape rule is not dependent on the alleged merits of a movant’s underlying claim; if so, the rule would not serve its purposes. Application of the escape rule responds to Movant’s flouting the authority of the courts from which he was seeking relief. Finally, we note that the claims raised in Movant’s amended motion do not concern alleged errors occurring after his recapture. Accordingly, Movant’s failure to appear for sentencing waives his right to appeal.

Conclusion

Movant’s appeal is dismissed pursuant to the escape rule.

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

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

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

      . Although not required in Missouri, it would be helpful for the trial court to make findings as to why it applied the escape rule.


text:
    Michael R. REED, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85448.
    Missouri Court of Appeals, Eastern District, Division One.
    Oct. 4, 2005.
    Lisa M. Stroup, Assistant Public Defender, St. Louis, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before MARY K. HOFF, P.J., CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Michael Reed (“Movant”) appeals from the judgment of the Circuit Court of the City of St. Louis denying his Rule 24.035 motion for post-conviction relief after an evidentiary hearing. In his appeal, Mov-ant argues that the motion court clearly erred when it failed to find that plea counsel rendered ineffective assistance when he: (1) misinformed Movant as to the amount of time Movant would have to serve as a result of pleading guilty; (2) misinformed Movant as to the applicability of Section 558.019.3 RSMo 2000; and (3) badgered Movant into pleading guilty.

We have reviewed the briefs of the parties and the record on appeal and find the motion court’s decision was not clearly erroneous. An extended opinion would have no precedential value. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision.

We affirm the award pursuant to Rule 84.16(b).


text:
    Lynne BATTISTA, et al., Appellant, v. ESTATE OF Elliot ROGERS, et al., Respondent.
    No. ED 85415.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 4, 2005.
    Daniel H. Legear Jr., St. Louis, MO, for appellant.
    Leland C. Smith II, St. Charles, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Donna Gardner (“Gardner”) appeals from the trial court’s judgment entered upon a jury verdict invalidating the purported last will and testament of her stepfather Elliot Scott Rogers (“Testator”). On appeal, Gardner argues that the trial court erred in entering judgment in accordance with the jury’s verdict because Testator’s natural daughters, Lynne Battista and Christine Rogers (“Contestants”), failed to present substantial evidence of Testator’s lack of testamentary capacity at the time he executed his will. We affirm.

We have reviewed the briefs of the parties and the record on appeal and no error of law appears. The trial court’s judgment is supported by substantial evidence on the record. No precedential or jurisprudential purpose would be served by an opinion reciting the detailed facts and restating the general principles of law. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order affirming the judgment pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Larry WEEDEN, Appellant.
    No. ED 84995.
    Missouri Court of Appeals, Eastern District, Division One.
    Oct. 4, 2005.
    Maleaner Harvey, St. Louis, MO, for appellant.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Lacey R. Searfoss, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before MARY K. HOFF, P.J. and CLIFFORD H. AHRENS, J. and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Larry Weeden (Defendant) appeals from the trial court’s judgment and sentence imposed after the trial court found him guilty of: one count of first-degree robbery, in violation of Section 569.020 (Count I); one count of possession of a controlled substance, in violation of Section 195.202 (Count III); one count of unlawful use of a weapon, in violation of Section 571.030 (Count IV); and one count of resisting arrest, in violation of Section 575.150 (CountV).

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 applicable to this case would have no jurisprudential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 30.25(b).

      . All subsequent statutory references are to RSMo 2000, unless otherwise noted.

      . The trial court found Defendant not guilty of one count of armed criminal action, Section 571.015.


author: NANCY STEFFEN RAHMEYER, Judge.

text:
    Mark L. COMPTON, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 26708.
    Missouri Court of Appeals, Southern District, Division One.
    Oct. 5, 2005.

      William J. Swift, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Asst. Atty. Gen., Jefferson City, MO, for respondent.
   NANCY STEFFEN RAHMEYER, Judge.

Mark Compton (“Movant”) appeals the denial of his Rule 24.035 motion following an evidentiary hearing on the matter. Movant was charged by information with tampering in the first degree, a violation of section 569.080, and resisting arrest, a violation of section 575.150; he pled guilty to both charges. He claims the pleas were not knowingly, intelligently, and voluntarily made because his counsel failed to investigate his history of mental illness, which would have provided the defense that he was not guilty by reason of mental disease or defect. The trial court denied Movant’s claim on the basis that Movant would not have had a viable defense of mental disease or defect because he voluntarily consumed alcohol prior to the offenses, the voluntary use of alcohol is not a defense in Missouri, and Movant knew at the time of the offense his actions were wrong. We agree and affirm the judgment of the trial court.

Movant stole a vehicle that belonged to a correctional officer and was parked in front of the Taney County Sheriffs Department on October 28, 2002; when pursued by officers he sped away, forcing vehicles into the shoulder to avoid head-on collisions when he crossed traffic in the wrong lane. He continued to speed, failed to stop for a solid red traffic light, and then skidded into a ditch on the wrong side of the roadway. Movant did not voluntarily exit the vehicle, but spun the tires and roared the engine. Movant’s eyes were watery, bloodshot, and glassy, he smelled of alcohol, and he had poor balance; a subsequent blood alcohol test showed he had a blood alcohol content (BAC) of .163%.

When arrested, Movant claimed he did not want to get wet because of the rain and he was refused a ride home by anyone at the sheriffs department. Specifically, he stated:

Tell the car I almost hit, the one that honked his horn when I was in his lane, I’m really sorry. I’m stupid, I shouldn’t have done it. If you f— would have given me a ride home I wouldn’t have taken the car. I’m really sorry, I shouldn’t have done it. I drank too much, I drank a quart of Vodka! If I damaged the car, tell the guy I’ll pay for all damages.

Movant now claims that had his counsel sufficiently investigated his previously diagnosed condition of bipolar disorder, she would have advised him that he had a defense, supportable by substantial evidence, that he was not guilty by reason of mental disease. He argues that this disorder triggered aggression in him because he had been harassed by correctional officers in the jail immediately prior to taking the van. In fact, he claims that he decided to tear up the van in anger over the officers’ treatment of him.

The impulsiveness, which Movant claims caused the incident, and his subsequent arrest do not provide a basis for a defense under section 552.030.1. Section 552.030.1 provides that a person can only be found not guilty by reason of mental disease or defect if the person was incapable of knowing and appreciating the nature, quality, or wrongfulness of his conduct. Movant does not argue, nor did he show at trial, that he did not understand the nature, quality, or wrongfulness of his conduct at the time of the offense. His statements to the police officers indicate that he knew taking the patrol car was wrong; his statements at the hearing indicate that he took the van in anger to get back at the officers for their supposed mistreatment of him. Neither of those reasons provide a defense that he was not guilty by reason of mental disease or defect. Even assuming Movant’s claim that he has a bipolar disorder is true, he fails to provide any evidence that the disorder causes him to be incapable of knowing and appreciating the nature, quality, or wrongfulness of his conduct.

Furthermore, Movant admits that he was voluntarily intoxicated and that he probably would not have committed the crime had he not been so. Section 562.076.3 provides that evidence of voluntary intoxication is not admissible to negate the mental state of an offense. State v. Goodwin, 43 S.W.3d 805, 816 (Mo. banc 2001). Voluntary intoxication cannot provide an insanity defense absent a separate mental disease that results in diminished capacity without the voluntarily ingested drugs. State v. Rhodes, 988 S.W.2d 521, 526 (Mo. banc 1999). It is clear that Missouri law provides that a person is criminally hable if the state proves all the necessary elements of the crime beyond a reasonable doubt despite the intoxication; in effect, Missouri has defined all its criminal offenses so as to render voluntary intoxication legally irrelevant. Mouse v. State, 90 S.W.3d 145, 149 (Mo.App. S.D. 2002).

Movant’s trial counsel was not ineffective for failing to investigate a defense that had no merit. Before counsel will be faulted for fading to investigate, a movant must show that the evidence at issue would be material and admissible to establish a reasonable doubt as to defendant’s guilt. State v. Twenter, 818 S.W.2d 628, 635 (Mo. banc 1991); see also State v. Middleton, 854 S.W.2d 504, 517 (Mo.App. W.D.1993). He did not. The judgment is affirmed.

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

      . All rule references are to Missouri Court Rules (2005), unless otherwise specified.

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


text:
    David Paul GREGORY, Petitioner-Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Respondent-Appellant.
    No. 26757.
    Missouri Court of Appeals, Southern District, Division One.
    Oct. 5, 2005.
    Jeremiah W. (Jay) Nixon, Attorney General, Erin M. Menley, Asst. Attorney General, Jefferson City, MO, for appellant.

      Dennis P. Wilson, Dexter, MO, for respondent (no brief filed).
   NANCY STEFFEN RAHMEYER, Judge.

The Director of Revenue (“Director”) appeals the reinstatement of driving privileges to David Paul Gregory after they had been suspended by Director pursuant to section 302.505.

Director brings one point on appeal; she claims that Gregory presented no evidence to contradict or otherwise rebut the prima facie case established by Director based on Gregory’s strong odor of alcohol, his glassy and bloodshot eyes, his admission to an officer that he had drunk “quite a few beers,” his statement to the EMT that he had drunk about ten beers, his admission to driving a vehicle after drinking, and his blood alcohol content (BAC) result of .126 percent. Gregory did not testify at the trial, nor did he file a brief in this court. The only evidence at trial was the officer’s testimony and the admission of Director’s Exhibit A, which included Department of Revenue records and the narrative of the arresting officer.

In order for Director to revoke or suspend driving privileges for an alcohol-related offense, Director must prove by a preponderance of the evidence that (1) the person was arrested upon probable cause to believe he was committing an alcohol related driving offense and (2) that the person driving had a BAC of .08 percent by weight. Section 302.505.1; Middlemas v. Director of Revenue, State of Missouri, 159 S.W.3d 515, 517 (Mo.App. S.D.2005). The trial court found that Director failed to meet the required burden of proof to suspend Gregory’s driving privileges because Gregory was not arrested for driving while intoxicated (DWI) and the officer, by his own testimony, acknowledged that he did not have probable cause to arrest him for driving while intoxicated. Although the trial court did not make a specific finding as to Gregory’s BAC, Director’s Exhibit A, indicating that Gregory’s BAC was .126 percent, was admitted without objection. As noted, Gregory presented no evidence to raise a genuine issue of fact as to the validity of the BAC test results. Likewise, there is no issue as to whether Gregory was arrested, therefore, at issue then is whether Gregory was arrested upon probable cause to believe he was committing an alcohol-related driving offense.

The judgment of the trial court will be upheld unless it is not supported by substantial evidence, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Hinnah v. Director of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002). Our standard of review does not permit us to disregard uncontroverted evidence that supports Director’s contention that all the elements were proved. Myers v. Director of Revenue, 9 S.W.3d 25, 28 (Mo.App. E.D.1999); Hopkins-Barken v. Director of Revenue, 55 S.W.3d 882, 885 (Mo.App. E.D.2001). In other words, we need not defer to the trial court’s findings when the evidence is uncontroverted and the case is virtually one of admitting the facts or when the evidence is not in conflict. Marsey v. Director of Revenue, 19 S.W.3d 176, 177 (Mo.App. E.D.2000). Furthermore, it is important to note that once Director makes a prima facie case, the burden of production shifts to the driver even though Director retains the burden of proof throughout the proceedings. Verdoom v. Director of Revenue, 119 S.W.3d 543, 546 (Mo. banc 2003).

“Probable cause exists when the facts and circumstances warrant a person of reasonable caution to believe that an offense has been or is being committed, based on the circumstances as they appear to a prudent, cautious and trained police officer.” Walker v. Director of Revenue, 137 S.W.3d 444, 446 (Mo. banc 2004). A cursory look at Director’s Exhibit A indicates several indicia of intoxication. Gregory was involved in a motor vehicle accident between 2:00 a.m. and 3:00 a.m., when he hit a tree; he was transported by ambulance to Missouri Southern Healthcare in Dexter, Missouri. He stated he had not consumed any alcoholic beverages since the accident but he indicated to the emergency personnel that he had consumed about ten beers. When the officer contacted Gregory, he indicated he had been drinking, and “had quite a few” and admitted he should not have been driving and took his eyes off the road when the accident occurred. Prior to arrest, the officer observed a strong odor of alcohol on Gregory and noted bloodshot and glassy eyes.

The evidence from the exhibit alone containing admissions of Gregory, the observations of the officer, and the statements of the medical personnel provide probable cause for a reasonably prudent police officer to believe that Gregory was committing an alcohol-related driving offense. Here, the trial court also had the benefit of the officer’s testimony. The officer testified as follows: Gregory advised that he had been in an accident just after he left his girlfriend’s house; they had been having some personal problems and he had been drinking. Gregory stated, “I had quite a few. I shouldn’t have been driving. I was trying to get home. I took my eyes off the road. I looked up and I was sliding toward a tree.” There was a strong odor of an alcoholic beverage from Gregory’s breath as he spoke to the officer; Gregory’s eyes were bloodshot and glassy; and Gregory indicated that he had not had anything to drink subsequent to the accident.

In the judgment, the trial court stated, “the officer by his own testimony acknowledged that he did not have probable cause to arrest [Gregory] for driving while intoxicated”; however, the officer was asked about probable cause for a DWI on direct examination:

Q. So that evening of July 29, 2003, an arrest for driving while intoxicated was not made on this Mr. Gregory; is that right?
A. That is correct.
Q. Did you feel that you have probable cause to believe he was DWI that night?
A. Yes, I did.
Q. Okay. The only actual arrest that had occurred was for leaving of the scene?
A. That’s correct.

Gregory did not cross-examine the officer. Clearly, Director made her prima facie case and the officer’s testimony does not satisfy Gregory’s burden of production.

We, therefore, reverse the circuit court’s judgment and remand the case with directions to enter a judgment sustaining Director’s suspension of Gregory’s license.

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

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

      . "Failure of a party having knowledge of the facts and circumstances vitally affecting the issues on trial to testify in his own behalf raises a strong presumption that such testimony would have been unfavorable and damaging to such party.” State ex rel. Div. of Family Services v. Brown, 897 S.W.2d 154, 158-59 (Mo.App. S.D.1995). Although the failure of Gregory to testify cannot be treated as independent evidence of a fact otherwise unproven, it can be considered in measuring the credibility or probative force of the evidence presented. Stringer v. Reed, 544 S.W.2d 69, 74 (Mo.App.Spfld.D.1976).


author: E. RILEY ANDERSON, J„

text:
    STATE of Tennessee v. David Kyle GILLEY.
    Supreme Court of Tennessee, at Nashville.
    June 7, 2005 Session.
    Sept. 30, 2005.

      Alfred H. Knight and Roger T. May, Nashville, Tennessee, for the Appellant, David Kyle Gilley.
    Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Joseph F. Whalen, Associate Solicitor General; William C. Whitsell, Jr., District Attorney General; and J. Paul Newman, Assistant District Attorney General, for the Appellee, State of Tennessee.
   OPINION

E. RILEY ANDERSON, J„

in which PRANK F. DROWOTA, III, C.J., and ADOLPHO A. BIRCH, JR., JANICE M. HOLDER, and WILLIAM M. BARKER, JJ„ joined.

We granted review of this interlocutory appeal to address the admissibility of prior acts of physical abuse committed by the defendant against the victim and others under Rule 404(b) of the Tennessee Rules of Evidence. The trial court ruled prior to trial that the State’s evidence of the defendant’s prior acts was admissible in part and inadmissible in part. After granting an interlocutory appeal as requested by both the defendant and the State, the Court of Criminal Appeals held that prior acts of physical abuse committed by a defendant against a victim are per se admissible at trial and that there is no longer a requirement for such a prior act to be relevant to a contested issue. After our review of the record and applicable authority, we hold (1) that the trial court and the Court of Criminal Appeals erred in granting interlocutory review of the trial court’s pretrial ruling on the admissibility of the evidence under Rule 404(b), and (2) that the Court of Criminal Appeals erred in holding that prior acts of physical abuse committed by a defendant against a victim are per se admissible at trial. As a result, the Court of Criminal Appeals’ judgment is reversed, and the case is remanded to the trial court for further proceedings.

Background

On May 31, 1984, at approximately 6:00 p.m., the partially-nude body of the victim, Laura Salmon, was found at the Hoover Rock Quarry in Rutherford County, Tennessee. The victim had died from multiple blows to her head with rocks. A description of a person seen in the victim’s car that same afternoon around 4:45 p.m. matched the defendant, David Kyle Gilley.

The defendant was interviewed by law enforcement officers after the victim’s body was found. He told officers that he had known the victim while both attended Oakland High School in Murfreesboro, Tennessee, in 1982 and 1983, and that he and the victim had dated for two years. The defendant said that he had never been to the rock quarry with the victim, and he denied involvement in the victim’s death. The defendant was not arrested or charged at that time.

In 2000, law enforcement officers who had reopened the investigation talked to Michelle Davenport. Davenport told officers that she had sexual relations with the defendant at the Hoover Rock Quarry in the summer of 1984. The defendant began to get rough, held her hair, and pinned her down with his arm across her chest. When Davenport told the defendant to stop, he became angry and asked if she wanted to “end up like” the victim. The defendant then told Davenport that he had killed the victim, who had been his girlfriend. Davenport told a family member and a friend about this incident, but she did not tell law enforcement officers until they interviewed her in 2000.

When the defendant was interviewed by law enforcement officers in November of 2000, he denied that he had ever been to the rock quarry with the victim. He told officers that he and the victim had a sexual relationship but that he “was never physically violent with her....” He stated that the victim once “chipped her tooth when she jumped on me,” and that they would often “scream and holler.”

DNA testing was performed on the victim’s clothing and a pair of blue jeans that had been covering the victim’s body. Although DNA testing of semen from the victim’s vagina and panties excluded the defendant, DNA testing of semen found on the blue jeans matched the defendant. The blue jeans were the same size as those worn by the defendant.

In March of 2001, the defendant was indicted for the premeditated first degree murder of the victim. Prior to trial, the State filed a notice of proposed evidence, consisting of over twenty witnesses who would testify about prior acts of physical abuse committed by the defendant against the victim or others. The evidence involved incidents that allegedly occurred while the defendant and the victim were in high school in 1982 and 1983, and while the victim attended college at Middle Tennessee State University (“MTSU”) in 1983 and 1984. The defendant filed a motion to exclude the evidence of prior acts under Rule 404(b) of the Tennessee Rules of Evidence.

Following a two-day hearing on the motion to exclude prior to trial, the trial court ruled that the following evidence of incidents occurring between 1982 and 1984 would be admissible at trial: (1) the testimony of Lourene Mackey, the victim’s mother, as to the defendant’s assaults against the victim; (2) the testimony of Connie Shelton, Melinda Edwards, and Terri Brown McCrary regarding an incident in which the defendant pulled the victim’s hair and pushed her face into the hood of a car; (3) the testimony of Melinda Edwards that the defendant shoved the victim into a locker; (4) the testimony of Mary Lester that the defendant repeatedly drove by MTSU to stare at the victim and had once twisted the victim’s arm; and (5) the testimony of Kim Roberts that the defendant dragged the victim down a stairwell at MTSU. The trial court found clear and convincing evidence of these incidents and further concluded that the evidence was relevant to show the defendant’s “motive,” “intent,” “hostility,” and “settled purpose” to harm the victim.

In contrast, the trial court concluded that evidence of the defendant’s other alleged prior acts would not be admissible at trial for the following reasons: (1) the testimony of Michelle Davenport “describing the nature of her encounter with the defendant” at the rock quarry in 1984 was “highly prejudicial”; (2) the testimony of Marty Milan that he saw the defendant twist the defendant’s wife’s arm in 1985 was not “so similar or so unique” as to show the defendant killed the victim; (3) the testimony of Laurie Carr that the defendant slammed her face into a car after she ended a relationship with him in 1990 was not “so similar or so unique” as to show the defendant killed the victim; (4) the testimony of Barbara Smith that the defendant stalked her and broke into her home was not “so similar or so unique” as to show the defendant killed the victim; (5) the testimony of Scott Mason that he heard the defendant slap the victim was not supported by clear and convincing evidence, and its probative value was outweighed by its unfair prejudicial effect; (6) the testimony of Bill Tenpenny that he saw the victim crying after being slapped by the defendant was cumulative, and its probative value was outweighed by its prejudicial effect; (7) the testimony of Reed Ridley that the defendant caught the victim’s arm in a car window and then dragged her through a parking lot was cumulative, and its probative value was outweighed by its prejudicial effect; and (8) the testimony of John Jolley that he saw the defendant shove the victim one month before the murder was cumulative, and its probative value was outweighed by its prejudicial effect.

After the motion hearing and prior to trial, the trial court and the Court of Criminal Appeals granted an interlocutory appeal of the evidentiary rulings as requested by both the defendant and the State pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. The Court of Criminal Appeals concluded that evidence of prior physical abuse committed by a defendant against the victim of a violent crime is per se admissible to establish the defendant’s hostility toward the victim, malice, intent, and settled purpose to harm the victim. The court also indicated that such evidence need not be relevant to a material issue at trial. Although the Court of Criminal Appeals upheld nearly all of the trial court’s rulings admitting and excluding the testimony, it observed that the trial court had erred in concluding prior to trial that some of the testimony was cumulative, as such a finding necessarily requires analysis of the evidence at trial.

We granted this appeal.

Analysis

Interlocutory Appeal

Before addressing the merits of the issues, we begin our review by examining an unusual procedural issue that appears from the record: whether the trial court and the Court of Criminal Appeals correctly granted interlocutory review of the trial court’s evidentiary rulings in this criminal case.

An interlocutory appeal requires the permission of both the trial court and the appellate court. See Tenn. R.App. P. 9(b) and (c). In determining whether to grant interlocutory review, the courts must consider

(1)the need to prevent irreparable injury, giving consideration to the severity of the potential injury, the probability of its occurrence, and the probability that review upon entry of final judgment will be ineffective; (2) the need to prevent needless, expensive, and protracted litigation, giving consideration to whether the challenged order would be a basis for reversal upon entry of a final judgment, the probability of reversal, and whether an interlocutory appeal will result in a net reduction in the duration and expense of the litigation if the challenged order is reversed; and (3) the need to develop a uniform body of law, giving consideration to the existence of inconsistent orders of other courts and whether the question presented by the challenged order will not otherwise be reviewable upon entry of final judgment.

Tenn. R.App. P. 9(a) (emphases added).

An interlocutory appeal is an exception to the general rule that requires a final judgment before a party may appeal as of right. See Tenn. R.App. P. 3(d) (“An appeal as of right is an appeal that does not require permission of the trial or appellate court.”). As a result, interlocutory appeals to review pretrial orders or rulings, i.e., those entered before a final judgment, are “disfavored,” particularly in criminal cases. United States v. MacDonald, 435 U.S. 850, 853, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978). The United States Supreme Court has cautioned that interlocutory review of pretrial rulings can create piecemeal appellate litigation and the “encouragement of delay [that] is fatal to the vindications of the criminal law.” Id. at 853-54 (quoting Cobbledick v. United States, 309 U.S. 323, 325, 60 S.Ct. 540, 84 L.Ed. 783 (1940)).

Here, both the defendant and the State sought review of the trial court’s rulings under Rule 404(b) of the Tennessee Rules of Evidence. Rule 404(b) states that evidence of “other crimes, wrongs or acts is not admissible to prove the character of a person or to show action in conformity with the character trait,” but that such evidence “may ... be admissible for other purposes.” The rule includes the following conditions:

(1) The court upon request must hold a hearing outside the jury’s presence;
(2) The court must determine that a material issue exists other than conduct conforming with a character trait and must upon request state on the record the material issue, the ruling, and the reasons for admitting the evidence;
(3) The court must find proof of the other crime, wrong, or act to be clear and convincing; and
(4) The court must exclude the evidence if its probative value is outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b).

The safeguards in Rule 404(b) ensure that defendants are not convicted for charged offenses based on evidence of pri- or crimes, wrongs or acts. State v. James, 81 S.W.3d 751, 758 (Tenn.2002). Where the procedures “are substantially followed, the trial court’s decision will be given great deference and will be reversed only for an abuse of discretion.” Id. at 759; see also State v. DuBose, 953 S.W.2d 649, 652 (Tenn.1997).

With regard to the procedures under Rule 404(b), the Court of Criminal Appeals held that the trial court erred in finding that a portion of the State’s proposed evidence was cumulative, to other evidence. The intermediate court explained that such a conclusion “must be made during the trial” because “[p]roof is not cumulative in a trial until the trial has begun.” Although Rule 404(b) does not preclude the trial court from conducting a hearing or ruling prior to trial, we share the Court of Criminal Appeals’ view that the Rule 404(b) criteria — in particular, the existence of a material issue at trial and the balancing of the probative value and unfair prejudice — require consideration of the evidence presented at trial. Thus, trial courts must be cognizant that if pretrial evidentiary rulings are made, they may need to be reconsidered or revised based on the evidence presented at trial.

We further conclude, however, that the trial court and the Court of Criminal Appeals erred in granting the defendant’s request for an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure for several reasons. First, interlocutory review was not necessary to prevent irreparable injury to the defendant because the trial court’s rulings under Rule 404(b) can be challenged in an appeal as of right' if the defendant is convicted. Second, the interlocutory appeal was not likely to prevent needless, expensive and protracted litigation; not only can the rulings under Rule 404(b) be challenged on direct appeal, they are afforded great deference and may be reversed only if the appellate court concludes that the trial court abused its discretion.' Moreover, interlocutory review of the trial court’s rulings under Rule 404(b) increases the potential for piecemeal litigation since the appellate court’s decision may (a) hinder the trial court’s flexibility to revise its rulings depending on the evidence presented at trial or (b) result in another requested appeal should the trial court depart from the appellate court’s decision based on the evidence presented at trial. Finally, because the trial has yet to begin, an interlocutory appeal to review evidentiary rulings would be largely advisory in nature and would not develop a uniform body of law.

We likewise conclude that the trial court and the Court of Criminal Appeals also erred in granting the State an interlocutory appeal, though the question is somewhat closer. Unlike the defendant, the State is not assured appellate review of the trial court’s ruling; if the State’s evidence is excluded and the defendant is acquitted, for instance, the State has no appeal as of right. That alone, however, does not end the inquiry. For instance, it is doubtful that granting the State an interlocutory appeal was necessary to prevent needless, expensive and protracted litigation; as noted above, the trial court’s rulings under Rule 404(b) are afforded great deference and are reversible only if the trial court abused its discretion. Finally, as also stated above, an appellate court decision at this stage would be tantamount to an advisory ruling and would not be necessary to achieve uniformity in the law.

In sum, we conclude that the trial court and the Court of Criminal Appeals erred in granting interlocutory review over the trial court’s rulings under Rule 404(b) because the criteria in Rule 9 of the Tennessee Rules of Appellate Procedure were not met.

Rule lp0b(b) — Prior Acts of Physical Abuse

Although we have cpncluded that the trial court and the Court of Criminal Appeals erred in granting this interlocutory appeal, we must address one substantive issue in the interest of judicial efficiency. The defendant complains that the Court of Criminal Appeals created a per se rule for the admissibility of evidence of physical abuse committed by a defendant against the victim. The State replies that the intermediate court reached the correct result even though it concedes the court’s use of the term “per se” was “unfortunate.”

As discussed above, Rule 404(b) contains several safeguards to the admission of a defendant’s prior crimes, "wrongs, or acts. One safeguard requires the trial court to “determine that a material issue exists other than conduct conforming with a character trait” and to “state on the record the material issue, the ruling, and the reasons for admitting the evidence.” These required findings are vital in ensuring that defendants are not convicted for a charged offense based on their character or their alleged propensity to engage in particular conduct. James, 81 S.W.3d at 758. There are no exceptions in Rule 404(b) for cases involving evidence of a defendant’s prior acts of physical abuse committed against a victim.

Notwithstanding the language in Rule 404(b), the Court of Criminal Appeals stated that evidence of prior physical abuse committed by a defendant against a victim is “seemingly per se admissible” under State v. Smith, 868 S.W.2d 561 (Tenn.1993). In Smith, evidence of prior violent acts committed by the defendant against the victims was admitted in the defendant’s trial for first degree murder. On appeal, this Court observed that the evidence “was admitted not to prove the Defendant acted in accord with this character but as part of the proof establishing his motive for the killings.” Id. at 574. This Court also observed that the probative value of the evidence was not outweighed by the danger of unfair prejudice. Id.

Our decision in Smith did not establish a per se rule allowing the admission of evidence of prior acts of physical abuse committed by a defendant against a victim, nor did our decision abandon the requirement that such evidence must be relevant to a material issue at trial. To the contrary, we stated that the evidence was relevant to the defendant’s motive. Id. at 574. Moreover, the evidence of motive was also circumstantial evidence of identity, which was a material issue at trial in light of the defendant’s alibi defense. See id. at 568; see also Neil Cohen et al., Tennessee Law of Evidence § 4.04(9), p. 4-84 (4th ed. 2000) (“Although motive itself is rarely an issue in a case, it is often circumstantial proof of some other important matter, such as identity, intent, or lack of accident.”). Given these principles, the Court of Criminal Appeals’ broad interpretation of Smith was error.

Accordingly, because there is no per se rule of admissibility under Rule 404(b) for prior acts of abuse committed by a defendant against a victim, the trial court must, on remand, consider the admissibility of the State’s proposed evidence by applying the specific safeguards set forth in Rule 404(b).

Conclusion

After our review of the record and applicable authority, we hold (1) that the trial court and the Court of Criminal Appeals erred in granting interlocutory review of the trial court’s pretrial ruling on the admissibility of the evidence under Rule 404(b), and (2) that the Court of Criminal Appeals erred in holding that prior acts of physical abuse committed by a defendant against a victim are per se admissible at trial. As a result, the Court of Criminal Appeals’ judgment is reversed and the case is remanded to the trial court for further proceedings. Costs of the appeal are taxed equally between the defendant, David Kyle Gilley, and the State.

      . Although this case has not yet been tried, the summary of evidence is taken from a transcript of the juvenile court transfer proceedings against the defendant, David Kyle Gilley, which is in the record on appeal.

      . An "extraordinary” appeal, which is granted by permission of an appellate court, is also an exception to an appeal as of right. Tenn. R.App. P. 10.


author: DAVID R. FARMER, J.,

text:
    Mattie P. PATTERSON, Surviving Spouse of Larry Patterson, Deceased v. Muhammad ARIF.
    Court of Appeals of Tennessee, at Memphis.
    Jan. 19, 2005 Session.
    Feb. 14, 2005.
    Application for Permission to Appeal Denied by Supreme Court Aug. 29, 2005.

      William T. Winchester, Memphis, Tennessee, for the appellant, Mattie P. Patterson.
    Jerry 0. Potter and Katherine M. Anderson, Memphis, Tennessee, for the appellee, Muhammad Arif, M.D.
   OPINION

DAVID R. FARMER, J.,

delivered the opinion of the court,

in which W. FRANK CRAWFORD, P.J., W.S., and HOLLY M. KIRBY, J., joined.

The trial court awarded summary judgment to Defendant physician and dismissed Plaintiffs action upon finding it was one for medical malpractice and that Plaintiff had failed to offer competent expert proof of negligence as required by Tennessee Code Annotated § 29-26-115. Plaintiff appeals, asserting the trial court erred in determining the action was not one for ordinary negligence and that the alleged negligence of Defendant was not within the common knowledge exception. We affirm.

On March 28, 2003, Mattie Patterson (Ms. Patterson) filed a wrongful death cause of action against Dr. Muhammad Arif (Dr. Arif), a licensed physician whose office is on Knight Arnold Road in Memphis. In her complaint, Ms. Patterson alleges that on April 1, 2002, she telephoned Dr. Arifs office because her husband, Larry Patterson (Mr. Patterson), was experiencing shortness of breath. She alleges that Dr. Arifs staff instructed her to bring Mr. Patterson to his medical office and told her that Mr. Patterson could not be admitted to the hospital from home. Ms. Patterson submits she and her son, Larry Patterson, Jr. (“Son”), took Mr. Patterson to Dr. Arifs office and that Son requested that Mr. Patterson be given oxygen and be admitted to the adjoining Delta Medical Center. According to Ms. Patterson’s complaint, Dr. Arif instructed them to take Mr. Patterson to St. Francis Hospital, which is miles away from Dr. Arifs office. Ms. Patterson alleges that Dr. Arifs nurse took Mr. Patterson’s blood pressure but administered no other care. Ms. Patterson further submits that she and Son assisted Mr. Patterson to the car without a wheelchair or any assistance from Dr. Arif and that, as they were exiting the parking lot, Mr. Patterson stopped breathing. Ms. Patterson and Son immediately took Mr. Patterson to the Delta Emergency Room, where Mr. Patterson was diagnosed to be in full cardiac arrest. He was resuscitated, but remained comatose. After five hours, Mr. Patterson suffered another arrest and died. Ms. Patterson asserts that on the day Mr. Patterson died, Dr. Arif stated to her that he “did not realize [Mr. Patterson] was that bad.” In her complaint, Ms. Patterson alleges that Dr. Arif breached his duty of care to Mr. Patterson and that this breach was the direct and proximate cause of Mr. Patterson’s cardiac arrest and death. She prayed for a trial by jury and damages in the amount of $1,000,000.

Dr. Arif answered the complaint on April 29. In his answer, Dr. Arif denied Ms. Patterson’s allegations of breach of the standard of care and further denied that any actions or omissions on his part proximately caused Mr. Patterson’s death. On November 4, Dr. Arif filed a motion for summary judgment and statement of undisputed facts. In his statement, Dr. Arif stated that, based on his professional opinion, he complied with the applicable standard of care. Ms. Patterson responded to Dr. Arifs motion on January 2, 2004. In her response, she submitted the action was one for wrongful death based on ordinary negligence and medical malpractice. She stated, “the ordinary negligence issue does not require a medical expert to raise a disputed material issue.” Ms. Patterson did not file an expert affidavit, but attached Son’s affidavit to her response. In March 2004, Dr. Arif filed an expert affidavit again denying breach of the standard of care. On June 21, 2004, the trial court granted Dr. Arifs motion for summary judgment and dismissed Ms. Patterson’s complaint. In its order, the trial court found Ms. Patterson’s action was one for medical malpractice and that Ms. Patterson did not offer competent expert proof that Dr. Arif had breached the standard of care as required in a medical, malpractice action under Tennessee Code Annotated § 29-26-115. Ms. Patterson filed a timely notice of appeal to this Court on July 6, 2004.

Issues Presented

Ms. Patterson raises the following issues for our review:

(1) Whether the trial court erred in granting summary judgment for the Defendant by finding that this case was not a case of ordinary negligence, but was a medical malpractice case which required expert testimony.
(2) Whether the trial court erred in granting summary judgment for the Defendant by finding that the actions and omissions of the Defendant were not within the ordinary knowledge of a layperson.

Standard of Review

Summary judgment is appropriate only when the moving party can demonstrate that there are no disputed issues of material fact, and that it is entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.1998). The party moving for summary judgment must affirmatively negate an essential element of the nonmoving party’s claim, or conclusively establish an affirmative defense. McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn.1998).

When a party makes a properly supported motion for summary judgment, the burden shifts to the nonmoving party to establish the existence of disputed material facts. Id. A mere assertion that the non-moving party has no evidence does not suffice to entitle the moving party to summary judgment. Id. In determining whether to award summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor. Staples v. CBL & Assocs., 15 S.W.3d 88, 89 (Tenn.2000). The court should award summary judgment only when a reasonable person could reach only one conclusion based on the facts and the inferences drawn from those facts. Id. Summary judgment is not appropriate if there is any doubt about whether a genuine issue of material fact exists. McCarley, 960 S.W.2d at 588. We review an award of summary judgment de novo, with no presumption of correctness afforded to the trial court. Guy v. Mut. of Omaha Ins. Co., 79 S.W.3d 528, 534 (Tenn.2002).

Analysis

Ms. Patterson’s argument before this Court, as we perceive it, is two-fold. First, she asserts that this is not a medical malpractice case, but one for ordinary negligence. Second, she asserts that, if this is a malpractice action, expert testimony was not required to establish breach of the standard of care because “[i]t is within the common knowledge of a layperson that a physician, or his staff, who is called by a patient experiencing shortness of breath, should advise that patient to call an ambulance or go to an emergency room.” We disagree with both assertions.

Medical malpractice is but one particular type of negligence. Gunter v. Lab. Corp. of America, 121 S.W.3d 636, 639 (Tenn.2003). Tennessee Code Annotated section 29-26-115 codifies the common law elements of negligence insofar as they are to be applied to medical malpractice actions. Id. When a negligence claim arises from injuries which result from negligent medical treatment, the action is one for medical malpractice. Id. at 640. In Gunter, the Tennessee Supreme Court articulated the analysis to be used in Tennessee to distinguish claims for medical malpractice from claims for ordinary negligence. The Gunter court held,

when a claim alleges negligent conduct which constitutes or bears a substantial relationship to the rendition of medical treatment by a medical professional, the medical malpractice statute is applicable.

Id. at 641.

In light of the allegations as put forth in Ms. Patterson’s complaint, this action is clearly one for medical malpractice. The actions and omissions which Ms. Patterson’s alleges as negligence on the part of Dr. Arif, namely, Dr. Arifs failure to direct Mr. Patterson to go immediately to the nearest emergency room, were undis-putedly related to the rendition of the medical treatment sought by Mr. Patterson. Dr. Arifs actions were clearly based on medical decisions. Accordingly, the action is governed by Tennessee Code Annotated section 29-26-115.

Ms. Patterson asserts, however, that the she was not required to offer expert proof of Dr. Arifs breach of the standard of care because it is “within the common knowledge of a layperson that a person experiencing shortness of breath is experiencing a medical emergency ... [and] should go, or be taken to, an emergency room.” She accordingly asserts that the “common knowledge” exception to the statutory requirement that medical negligence must be established by expert testimony is applicable in this case.

The “common knowledge” exception to the general rule is applicable when “the medical negligence is as blatant as a ‘fly floating in a bowl of buttermilk’ so that all mankind knows that such things are not done absent negligence.” Murphy v. Schwartz, 739 S.W.2d 777, 778 (Tenn.Ct.App.1986) (quoting German v. Nichopoulos, 577 S.W.2d 197 (Tenn.App.1978)). In Murphy v. Schwartz, Ms. Murphy suffered a stroke while at home and was taken by ambulance to the Madison County General Hospital. Id. She was left unattended and unrestrained on a cot in the emergency room, fell from the cot, and suffered injuries. Id. Additionally, the defendant physicians allegedly failed to treat her properly for the injuries which resulted from the fall. Id. Defendants in Murphy filed a motion for summary judgment with an affidavit of one of the defendant physicians that he “was familiar with the medical standard of care in the community and that neither the affiant or the other doctor defendant at any time fell below the community standard of care in the examination or treatment of Mrs. Murphy.” Id. Plaintiffs in Murphy failed to offer expert proof of negligence, and the trial court awarded summary judgment to the defendants. Id. Upon appeal, plaintiff asserted the “common knowledge” exception, arguing that

it is plain and patent medical negligence to leave a stroke victim unattended or unrestrained in an emergency room, and therefore no medical affidavits are required. Further, the failure to treat plaintiffs dislocated shoulder for a period of four days under the circumstances is also plain medical malpractice which requires no medical expert proof to show.

Murphy v. Schwartz, 739 S.W.2d 777, 778 (Tenn.Ct.App.1986). This court affirmed summary judgment for the defendants, holding,

we would be hard put to say that the plaintiffs fact create a “common knowledge to the world” exception to the rule, when there is medical expert proof in the record to the effect that under plaintiffs fact there is no medical negligence.
The real issue created by this appeal is not whether the plaintiffs, by lay opinion, show blatant buttermilk fly floating negligence; but, whether the plaintiff may refute admissible expert opinion evidence by lay opinion evidence. Plaintiffs may not do so.

Id. at 779.

As in Murphy, in the case before us, there is expert proof in the record that there was no medical negligence. Further, we cannot say that it is within the common knowledge of the layperson that a person suffering shortness of breath, without more, and Ms. Patterson does not allege additional symptoms, should be taken immediately to the emergency room. Indeed, this obviously was not within the common knowledge of Ms. Patterson or Son. Ms. Patterson may not refute Dr. Arifs expert opinion regarding a decision made in the course of rendering medical care with lay opinion evidence in this case.

Holding

In light of the foregoing, we affirm the trial court’s award of summary judgment to Dr. Arif. This cause of action sounds in medical malpractice, and Ms. Patterson failed to offer competent expert proof, as required by section 29-26-115, to refute the expert proof offered by Dr. Arif. Costs of this appeal are taxed to the Appellant, Mattie Patterson, and her surety, for which execution may issue if necessary.

      . Tennessee Code Annotated 29-26-115 provides:
      (a)In a malpractice action, the claimant shall have the burden of proving by evidence as provided by subsection (b):
      (1) The recognized standard of acceptable professional practice in the profession and the specialty thereof, if any, that the defendant practices. in the community in which the defendant practices or in a similar community at the time the alleged injury or wrongful action occurred;
      (2) That the defendant acted with less than or failed to act with ordinary and reasonable care in accordance with such standard; and
      (3) As a proximate result of the defendant's negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred.
      (b)No person in a health care profession requiring licensure under the laws of this state shall be competent to testify in any court of law to establish the facts required to be established by subsection (a), unless the person was licensed to practice in the state or a contiguous bordering state a profession or specialty which would make the person’s expert testimony relevant to the issues in the case and had practiced this profession or specialty in one (1) of these states during the year preceding the date that the alleged injury or wrongful act occurred. This rule shall apply to expert witnesses testifying for the defendant as rebuttal witnesses. The court may waive this subsection when it determines that the appropriate witnesses otherwise would not be available.
      (c) In a malpractice action as described in subsection (a), there shall be no presumption of negligence on the part of the defendant; provided, there shall be a rebut-table presumption that the defendant was negligent where it is shown by the proof that the instrumentality causing injury was in the defendant’s (or defendants’) exclusive control and that the accident or injury was one which ordinarily doesn’t occur in the absence of negligence.
      (d) In a malpractice action as described in subsection (a), the jury shall be instructed that the claimant has the burden of proving, by a preponderance of the evidence, the negligence of the defendant. The jury shall be further instructed that injury alone does not raise a presumption of the defendant’s negligence.
      Tenn.Code Ann. § 29-26-115(Supp.2004).