author: SHERRI B. SULLIVAN, J.

text:
    STATE of Missouri, Plaintiff/Respondent, v. Bernard DICKERSON, Defendant/Appellant.
    No. ED 85215.
    Missouri Court of Appeals, Eastern District, Division One.
    May 24, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 6, 2005.
    Application for Transfer Denied Nov. 1, 2005.
    Lawrence O. Willbrand, St. Louis, MO, for appellant.
    Deborah Daniels, Karen Louis Kramer (co-counsel), Richard Anthony Starnes (co-counsel), Jefferson City, MO, for respondent.
   SHERRI B. SULLIVAN, J.

Introduction

Bernard Dickerson (Appellant) appeals from a judgment of conviction, claiming trial court error in denying his motion to suppress. We reverse.

Factual and Procedural Background

Viewed in the light most favorable to the verdict, the evidence is as follows. On September 9, 2003, at about 8:35 a.m., Missouri State Highway Patrol Corporal Mark Broniec (Broniec) was observing traffic on eastbound Interstate 44 near Sullivan, Missouri. Broniec saw a tan Buick pass him at a high rate of speed, followed and clocked it at approximately 76 miles per hour. He also saw the Buick drive off onto the right shoulder on one occasion, so he stopped the car and approached it.

Broniec first spoke with the driver (Driver). Broniec asked Driver for her license and if the car was a rental car, to which Driver replied it was. Broniec noticed that there was an air freshener hanging from the rear view mirror, which he thought was unusual because the car was a rental car. Broniec saw Appellant lying in the backseat sleeping. As Bro-niec spoke with Driver, Appellant woke up and told Broniec that he had rented the vehicle. Appellant got the rental agreement for Broniec, and Broniec asked Appellant to exit the car and produce his driver’s license so that he could verify that Appellant had rented the car. Appellant presented Broniec a New York driver’s license that identified Appellant.

Broniec spoke separately with Driver and Appellant about their trip. Appellant said that they had flown from New York to Phoenix two days earlier to visit Driver’s cousin Sharon. Driver said that they had visited a different person, taken a different airline, and stayed a different period of time than Appellant had stated. Broniec testified that he found it suspicious that they would fly from New York to Phoenix, an area he believed was a “huge drug source area for the rest of the country,” then leave within a day of arriving by driving instead of flying back.

Broniec called Corporal Gary Schwartz (Schwartz) to come to the scene. Schwartz arrived with a drug dog. Bro-niec said that Appellant became “extremely nervous” upon the arrival of Schwartz and the dog. Broniec said that Appellant tried to grab his license out of Broniec’s hand before Broniec was through with it, raising Broniec’s suspicion even more. After processing the warning for speeding, Broniec explained the warning to Driver, giving both Driver and Appellant their licenses back and telling Driver to drive carefully. Appellant and Driver started to get back in the car. Broniec asked them if they had anything illegal in the car, to which they responded “no.” Broniec then asked for their consent to search the car, which they denied. At that point, Broniec and Schwartz decided to have the drug dog walk around the car. The dog alerted on the trunk of the car, and a subsequent search of the trunk revealed 16-17 pounds of marijuana wrapped up in some pajamas. Driver said that the pajamas belonged to her. Appellant’s clothes were in a backpack next to the marijuana. At that point, Appellant and Driver were arrested.

On July 12, 2004, after trial, Appellant was found guilty of possession with intent to distribute. This appeal follows.

Point on Appeal

Appellant claims that the trial court erred in denying his motion to suppress the evidence relating to the marijuana “over [his] objections” because it was only after the traffic stop proceedings had been terminated that Broniec asked if they had anything illegal and then detained them for a canine search and subsequent seizure. Appellant maintains that this search and seizure was in violation of his constitutional rights.

Preservation and Standard of Review

The State maintains that Appellant’s point only raises a claim regarding the denial of his motion to suppress, and not the denial of his objection to the court’s consideration of the evidence upon submission of the case. However, Appellant’s point also states “over Defendant’s objections.” Thus, Appellant’s point is sufficient to preserve the issue.

We review a trial court’s ruling on a motion to suppress in the light most favorable to the ruling and defer to the trial court’s determinations of credibility. State v. Granado, 148 S.W.3d 309, 311(Mo.banc 2004). In reviewing the evidence, we consider all evidence and reasonable inferences in the light most favorable to the trial court’s ruling. Id. The trial court’s ruling will be reversed only if clearly erroneous. Id.

Discussion

Once the investigation of a traffic stop is concluded, the detainee must be allowed to proceed unless specific, articula-ble facts create an objectively reasonable suspicion that the individual is involved in criminal activity. State v. Barks, 128 S.W.3d 513, 517 (Mo.banc 2004); State v. Watkins, 73 S.W.3d 881, 883 (Mo.App.E.D.2002).

Granado, recently handed down by our state’s Supreme Court, is on point to the instant case. In Granado, a highway patrolman observed Jose M. Granado’s (Gra-nado) vehicle weaving on an interstate highway. Id. at 310. The patrolman stopped Granado. After investigation, Granado received a warning and was told he was free to go. The patrolman then asked Granado if he could search his vehicle. Granado refused to consent to the vehicle’s search. The patrolman had a K-9 unit search anyway and found 36 pounds of marijuana in the vehicle. Id. at 311. Granado moved to suppress the results of the improper search. The trial court overruled the motion. Granado was convicted of possession of a controlled substance with intent to deliver. On appeal, the Supreme Court held that the results of the search should have been suppressed, because the detention extended beyond the time reasonably necessary to effect its initial purpose, and there was no new factual predicate for reasonable suspicion found during the period of lawful seizure that would support the search. Id. at 312.

In the instant case, after issuing Driver a warning Broniec returned Driver’s and Appellant’s driver’s licenses. Broniec told Driver to drive safely. At this point the traffic stop had concluded, and Broniec articulated no new factual predicate for reasonable suspicion found during the period of lawful seizure that would support the search. The State maintains that during the stop, Appellant had acted nervous and he and Driver had given conflicting accounts of their activities. However, in Granado, the patrolman also had noted discrepancies given by Gra-nado, who was the driver, and his cousin who was a passenger, and that Granado was very nervous. Id. at 312. In Grana-do, the patrolman testified that when he requested to search Granado’s vehicle, Granado was still free to go at that time. The facts in the instant case are the same. The Granado Court found that a reasonable person would not have felt free to leave in that situation. Id. So long as a person is free to leave, an officer can talk to him, and is free to ask whether he has contraband on his person or in his car; however, such does not mean that an officer is free to involuntarily detain a driver following a traffic stop without reasonable suspicion under the guise of simply engaging in a voluntary conversation. Barks, 128 S.W.3d at 517. This is precisely what happened in the instant case.

Broniec’s seizure of the marijuana was illegal. The trial court should have granted Appellant’s motion to suppress and should not have considered the evidence seized during the search. Appellant’s point on appeal is granted.

In the absence of the seized evidence, there was insufficient evidence to support the conviction. The judgment of the trial court is reversed.

GARY M. GAERTNER, SR., P.J., and BOOKER T. SHAW, J., concur.

      . Broniec testified that he issues a warning rather than a ticket when the speeding is not excessive.


source: Caselaw Access Project

author: GEORGE W. DRAPER III, Chief Judge.

license: Public Domain

text:
    Rose JOYNER, Claimant/Appellant, v. The MAY DEPARTMENT STORES CO. and Division of Employment Security, Respondents.
    No. ED 86085.
    Missouri Court of Appeals, Eastern District, Division Five.
    July 19, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 6, 2005.
    Application for Transfer Denied Nov. 1, 2005.
    Rose Joyner, St. Louis, MO, for Appellant.
    Cynthia A. Quetsch, Jefferson City, MO, for Respondent The May Department Stores Company.
   GEORGE W. DRAPER III, Chief Judge.

Rose Joyner (Claimant) appeals the Labor and Industrial Relations Commission’s (Commission) decision denying her unemployment benefits. Claimant’s notice of appeal to this Court is untimely. As a result, we have no jurisdiction and dismiss Claimant’s appeal.

Claimant applied for unemployment benefits. A deputy of the Division of Employment Security concluded that Claimant was ineligible for unemployment benefits, because she left work voluntarily without good cause attributable to her work. Claimant filed an appeal with the Appeals Tribunal of the Division of Employment Security. The Appeals Tribunal modified the deputy’s determination, but concluded Claimant was disqualified for benefits until she earned wages in insured work equal to ten times her weekly benefit amount. Claimant appealed to the Labor and Industrial Relations Commission (Commission), which affirmed the decision of the Appeals Tribunal. The Secretary of the Commission certified she mailed the Commission’s decision to Claimant on February 18, 2005. Claimant appealed to this Court by filing a notice of appeal with the Commission by mail on March 29, 2005.

Once the Commission’s decision is mailed to the parties, it becomes final ten days thereafter. Section 288.200.2, RSMo 2000. A claimant then has twenty days to appeal a final decision of the Commission. Section 288.210, RSMo 2000. Here, the Secretary for the Commission mailed its decision to Claimant on February 18, 2005. The decision became final ten days later on February 28, 2005. Section 288.200.2. Her notice of appeal was due on Monday, March 21, 2005. Section 288.210; Section 288.240, RSMo 2000. The postmark on Claimant’s notice of appeal was March 29, 2005, which is untimely.

This Court has a duty to examine its jurisdiction sua sponte. Crowden v. General Sign Co., 133 S.W.3d 562, 562 (Mo.App. E.D.2004). We issued an order directing Claimant to show cause why this appeal should not be dismissed. Claimant states that she received the paperwork “way after” the postmarked date. Despite Claimant’s reasons for filing her notice of appeal late, section 288.210 makes no provision for late filing of a notice of appeal. Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App. E.D.2000). An untimely notice of appeal in an unemployment case deprives this Court of jurisdiction to entertain the appeal. Loeffler v. Shop N Save, 121 S.W.3d 261, 261 (Mo.App.E.D.2003).

The Claimant’s appeal is dismissed for lack of jurisdiction.

GLENN A. NORTON, J., and NANNETTE A. BAKER, J., concur.


author: JOHN E. PARRISH, Presiding Judge.

text:
    Gladys GREUTER, Respondent, v. Shirley WETEKAMP, Respondent, and Sharon Dudley, Appellant.
    No. 26090.
    Missouri Court of Appeals, Southern District, Division Two.
    July 20, 2005.
    Motion for Rehearing or Transfer to Supreme Court Denied Aug. 11, 2005.

      R. David Ray, Ray & Fisher, West Plains, for appellants.
    Steven Privette, Willow Springs, for Respondent Greuter.
    James E. Meadows, John C. Holstein, Springfield, for respondent Wetekamp.
   JOHN E. PARRISH, Presiding Judge.

Sharon Dudley appeals a judgment setting aside a deed executed by her mother, Gladys Greuter, in 1981 that purported to convey a 160-acre farm located in Texas County, Missouri, to Gladys Greuter, Sharon Dudley, and Shirley Wetekamp as joint tenants. This court affirms.

This case was tried before the trial judge without a jury. As such, appellate review is undertaken pursuant to Rule 84.13(d).

The trial court’s judgment will be reversed only if no substantial evidence supports the judgment, if the decision is against the weight of the evidence, or if the judgment erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). When determining whether the evidence is sufficient to support the judgment, appellate courts review the evidence and all reasonable inferences from such evidence in the light most favorable to the trial court’s judgment and disregard all contrary evidence. T.B.G. v. C.A.G., 772 S.W.2d 653, 654 (Mo.banc 1989). On appellate review of a case tried without a jury, due regard shall be given to the opportunity of the trial court to have judged the credibility of witnesses. Rule 84.13(d)(2). The trial court is vested with the discretion to believe or disbelieve all, part, or none of any witness’ testimony. T.B.G., 772 S.W.2d at 654.

Foster v. Village of Brownington, 140 S.W.3d 603, 607 (Mo.App.2004).

Sharon Dudley and Shirley Wetekamp are twin daughters of Gladys Greuter. Mrs. Greuter and her husband, Henry Greuter, who died in 1973, owned the real estate described in the 1981 deed for many years prior to his death. In 1981, Mrs. Greuter requested an attorney, William Gladden, to prepare the deed for the property that is the subject of this action. After the deed was prepared and signed by Mrs. Greuter, she “took it home and rolled it up, put it in a container — it was a metal container, ... a little metal box.” She put the metal box in the bottom of a clothes hamper where she kept her “special papers.” The deed was filed for record and recorded in the deed records of Texas County, Missouri, on July 15, 1991.

Mrs. Greuter was asked the following questions and gave the following answers about the recording of the deed:

Q. Now, Ms. Greuter, did you, yourself, take the deed out of that box and take it over to the courthouse?
A. No, I never.
Q. Did you give anyone permission to take the deed and have it recorded?
A. Not unless I had passed away.
Q. Not unless you passed away. That’s going to be my next question. Did you tell your kids that when you died they should take that deed over and record it?
A. Yes.
Q. And why was it that you didn’t want it recorded until you died?
A. Well, I just wanted everything in my own possession.
Q. Okay. Did you want to be able to tear that deed up or change your mind if you wanted to?
A. I don’t think I had any intentions of ever tearing it up.
Q. But if you wanted to do that, did you—
A. But if I wanted to do that, that was what I would have done.
Q. Okay. Did you want that deed to be put into effect while you were still alive?
A. No.
Q. Who — Do you know who took the deed and recorded it?
A. No, I don’t.
Q. And you didn’t want it recorded, though?
A. I didn’t want it recorded, no.

Mrs. Greuter told the trial court she was “asking the Court to set aside the deed that was recorded, to make it un-recorded, so to speak.” She said she wanted to make a different disposition of her property-

The trial court made findings of fact and entered conclusions of law. It found there was no delivery of the deed with the grant- or’s concurrent intent that the deed operate immediately to convey a present interest in the property. It concluded that Gladys Greuter did not intend for the deed to take effect during her lifetime; that the deed was “void for lack of delivery.” The trial court entered judgment setting aside the deed.

Ms. Dudley presents one point on appeal. She contends the trial court erred in setting aside the deed “for want of delivery.” She argues “the record of evidence was legally insufficient either to meet the burden of proof as to non-delivery, or overcome the legal presumption of delivery created by recording, in that the grantor was also a co-grantee, the deed was duly recorded pursuant to law and thereafter placed in the possession and control of the remaining co-grantees.”

Rhodes v. Hunt, 913 S.W.2d 894 (Mo.App.1995), explains:

A deed, to be operative as a transfer of the ownership of land or an interest or estate therein, must be delivered; it is delivery that gives the instrument force and effect. [Galloway v. Galloway, 169 S.W.2d 883 (Mo.1943) ] at 888[10]. Delivery signifies that all dominion and control over the deed is passed from the grantor to the grantee, or to someone for him, with the intention of transferring the present ownership of land, or an interest or estate therein. Id. at [11].... The intention of the parties, especially of the grantor, is the essence of delivery. Id. at [13]. Such intention may be manifested by acts, words, or both. Id. at [14]. The burden of proving nondelivery is upon the party who seeks to invalidate the deed because of alleged nondelivery. Id. at [17].

Id. at 900.

“[Recording of a deed, even by the grantor, does not in itself operate as a delivery of the deed.” Wilkie v. Elmore, 395 S.W.2d 168, 172 (Mo.1965). Its recording does, however, create a presumption or a prima facie case of delivery. Id. The controlling element, however, in determining delivery of a deed is the intention of the parties, particularly that of the grantor. Underwood v. Gillespie, 594 S.W.2d 372, 375 (Mo.App.1980); LeMehaute v. LeMehaute, 585 S.W.2d 276, 280 (Mo.App.1979).

Mrs. Greuter testified that she did not intend to deliver the deed; that she did not know how it came to be recorded; that she was not the one who recorded it. The trial court heard the testimony. The trial court stated in its findings of fact, “Having reviewed and considered all of the evidence, the Court finds that the evidence is clear, cogent and convincing that Gladys Greuter did not intend for the deed to take effect during her lifetime.” It further found, “The evidence is clear, cogent and convincing that there has not been a delivery of the deed with the concurrent intent by grantor Gladys Greuter that it operate immediately to convey a present interest in the property.” The trial court concluded, “The 1981 deed is void for lack of delivery. Plaintiff Gladys Greuter is entitled to the equitable relief she has requested.”

There was substantial evidence to support these findings. The fact that Mrs. Greuter was, in addition to the grantor, a co-grantee, and the fact that the deed was placed within the possession and control of the remaining co-grantees, does not require a determination adverse to that made by the trial court.

Delivery of a deed to one of several grantees, including a grantee who is also a grantor, operates as a delivery to all of them in the absence of a disclaimer. LeMehaute, supra. This rule is applicable only when the intention of the grantor to convey title is not known. Id. The controlling factor in determining whether delivery of title occurred is the intention of the parties, particularly that of the grantor. Id. Further, “[p]lacing an executed and acknowledged deed in a place where the grantee has access and from which he can, without hindrance, transfer it to his possession, but with the intent that the grantee not take it and have it recorded until after the grantor’s death, does not constitute a delivery.” Green v. Stanfill, 612 S.W.2d 435, 437 (Mo.App.1981).

There was evidence, which was believed by the trial court, that the intent to effect delivery of the deed was lacking and that the deed was recorded without authority. The judgment is supported by substantial evidence. It is not against the weight of the evidence. This court finds no erroneous declaration or application of law. The Judgment is affirmed.

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


author: PER CURIAM.

text:
    KAB DEVELOPMENT, INC., Plaintiff/Respondent, v. ST. CHARLES COUNTY, State of Missouri, Defendant/Appellant, and U.S. Bank, Defendant.
    No. ED 85270.
    Missouri Court of Appeals, Eastern District, Division Two.
    July 26, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 6, 2005.
    Application for Transfer Denied Nov. 1, 2005.
    Daniel K. Barklage, Barklage, Brett, Martin, Wibbenmeyer & Hamill, P.C., St. Charles, MO, for respondent.
    Greg H. Dohrman, Assistant County Counselor, St. Charles, MO, for appellant.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

St. Charles County appeals the trial court’s judgment in favor of KAB Development, Inc. in a dispute over the parties’ obligations under an escrow agreement. We find the judgment is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order.

We affirm pursuant to Rule 84.16(b).


author: ROBERT G. DOWD, JR., Judge.

text:
    FORD MOTOR CREDIT CO., Appellant, v. ST. CHARLES COUNTY COLLECTOR OF REVENUE and St. Charles County Assessor, Respondents.
    No. ED 85995.
    Missouri Court of Appeals, Eastern District, Division Two.
    July 26, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 6, 2005.
    Application for Transfer Denied Nov. 1, 2005.

      Mary M. Bonacorsi, St. Louis, MO, for Appellant.
    Charissa L. Mayes, St. Charles, MO, for Respondent.
   ROBERT G. DOWD, JR., Judge.

Ford Motor Credit Company (Ford) brought this suit against the St. Charles County Collector of Revenue and St. Charles County Assessor (collectively referred to as the “County”) pursuant to Section 139.031, RSMo 2000, for recovery of personal property taxes “mistakenly or erroneously” paid and for recovery of personal property taxes paid under protest. On appeal, Ford argues the trial court erred in dismissing its petition because (1) the petition sufficiently stated a claim for relief under Section 139.031.5 in that Ford alleged it paid taxes on property it did not own on January 1, 2003; (2) the petition sufficiently stated a claim for relief under Section 139.031.1-4 in that the petition alleged that Ford paid taxes on the vehicles under protest and was not the owner of the vehicles on January 1, 2003; and (3) Ford’s petition properly stated a claim for refund in that Ford was not the owner of the vehicles on January 1, 2003 and had no duty to exhaust administrative appeals by appealing to the St. Charles County Board of Equalization (Board). We reverse.

As part of its business, Ford owns motor vehicles which it leases to customers in St. Charles County, Missouri. Each year, it pays personal property taxes on all vehicles located in St. Charles County which it owned on January 1 of the taxable year. In 2003, Ford converted its inventory data on vehicles which it leased to Missouri customers and used the newly converted data for 2003 tax assessment purposes in St. Charles County, Missouri. Due to an error in Ford’s inventory data conversion, Ford reported to the St. Charles County Assessor that it owned 258 motor vehicles which it did not own on January 1, 2003. As a result, St. Charles County assessed personal property taxes on vehicles which Ford did not own.

On December 8 and 9, 2003, Ford timely paid personal property taxes on 258 motor vehicles under protest, in the amount of $62,822.30.

Ford filed its Petition in the St. Charles County Circuit Court within 90 days of paying its personal property taxes under protest as provided in Section 139.031.1-4. Additionally, Ford filed its petition within 3 years after “mistakenly or erroneously” paying taxes on property it did not own as provided in Section 139.031.5. Ford’s petition sought a declaration that it was not the owner of the subject vehicles and did not owe taxes on such vehicles which it paid under protest; that it mistakenly or erroneously paid taxes on the subject vehicles within the meaning of Section 139.031.5; that it was not required to appeal assessment of such taxes to the Board; and, that it is entitled to a refund of taxes paid under protest in the amount of $62,822.30 as provided in Section 139.031.

On September 8, 2004, the County filed its motion to dismiss Ford’s petition. As grounds for its motion, the County claimed that Ford was required to exhaust administrative remedies before the Board and that its payment of taxes on the vehicles was not mistaken or erroneous within the meaning of Section 139.031.5. The trial court granted the motion. This appeal follows.

Because Point II is dispositive of this appeal, we need not address the remaining two points.

In its second point, Ford argues the trial court erred in dismissing its petition because the petition sufficiently stated a claim for relief under Section 139.031.1-4 in that the petition alleged that Ford paid taxes on the vehicles under protest and was not the owner of the vehicles on January 1, 2003. We agree.

A motion to dismiss for failure to state a claim is solely a test of the adequacy of the plaintiffs petition; therefore, on appeal, we accept as true all well-pled allegations in the petition and liberally grant the plaintiff all reasonable inferences drawn there from. Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993). We do not attempt to weigh whether the alleged facts are credible or persuasive. Id. “Instead, the petition is reviewed in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case.” Id.

Section 139.031.1-4 allows taxpayers to pay disputed taxes under protest and seek a refund of those taxes by filing suit in the circuit court within ninety (90) days after payment of the taxes. Section 139.031.1-4 states as follows:

1. Any taxpayer may protest all or any part of any current taxes assessed against the taxpayer, except taxes collected by the director of revenue of Missouri. Any such taxpayer desiring to pay any current taxes under protest shall, at the time of paying such taxes, file with the collector a written statement setting forth the grounds on which the protest is based. The statement shall include the true value in money claimed by the taxpayer if disputed.
2. Upon receiving payment of current taxes under protest pursuant to subsection 1 of this section or upon receiving notice of an appeal pursuant to Section 138.430, RSMo, the collector shall disburse to the proper official all portions of taxes not disputed by the taxpayer and shall impound in a separate fund all portions of such taxes which are in dispute. Except as provided in subsection 3 of this section, every taxpayer protesting the payment of current taxes shall, within ninety days after filing his protest, commence an action against the collector by filing a petition for the recovery of the amount protested in the circuit court of the county in which the collector maintains his office. If any taxpayer so protesting his taxes shall fail to commence an action in the circuit court for the recovery of the taxes protested within the time prescribed in this subsection, such protest shall become null and void and of no effect, and the collector shall then disburse to the proper official the taxes impounded, and any interest earned thereon, as provided above in this subsection.
3. No action against the collector shall be commenced by any taxpayer who has, for the current tax year in issue, filed with the state tax commission a timely and proper appeal of the protested taxes. Such taxpayer shall notify the collector of the appeal in the written statement required by subsection 1 of this section. The taxes so protested shall be impounded in a separate fund and the commission may order all or any part of such taxes refunded to the taxpayer, or may authorize the collector to release and disburse all or any part of such taxes in its decision and order issued pursuant to Chapter 138, RSMo.
4. Trial of the action in the circuit court shall be in the manner prescribed for nonjury civil proceedings, and, after determination of the issues, the court shall make such orders as may be just and equitable to refund to the taxpayer all or any part of the current taxes paid under protest, together with any interest earned thereon, or to authorize the collector to release and disburse all or any part of the impounded taxes, and any interest earned thereon, to the appropriate officials of the taxing authorities. Either party to the proceedings may appeal the determination of the circuit court.

The purpose of Section 139.031 is to “furnish an adequate and sufficient remedy to the taxpayer, and at the same time to provide an expeditious method by which the various branches of government affected can obtain the revenue necessary. .. .Moreover, the statutory requirement is intended not only to furnish proof that the payment was involuntarily made, but also to warn the tax collector that the tax is claimed to be illegal.” B & D Investment Company, Inc. v. Schneider, 646 S.W.2d 759, 762 (Mo. banc 1983).

Section 139.031 has been used by taxpayers as a means to recover taxes paid under protest and alleged to be void, invalid or unlawful. Id. at 762-763; Breckenridge Hotels Corp. v. Leachman, 571 S.W.2d 251, 251-252 (Mo. banc 1978); Mesker Brothers Industries, Inc. v. Leachman, 529 S.W.2d 153, 155 (Mo. banc 1975).

In this case, Ford filed its petition within 90 days of paying its personal property taxes under protest as provided in Section 139.031.2. Ford’s petition alleged that Ford paid 2003 property taxes on 258 motor vehicles on December 8 and 9, 2003, the amount of such taxes, and that such taxes were paid under protest. It further alleged as the basis for the protested payment that the vehicles were leased, that the leases were terminated prior to January 1, 2003 and that Ford was not owner of the vehicles on January 1, 2003. Ford’s petition contained the necessary allegations to advise the County of the claim and of the relief demanded. Point granted.

Judgment reversed.

PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE, J., concur.

      . Unless otherwise indicated, all further statutory references are to RSMo 2000.

      . Ford supplied the County with a list of all its tangible personal property situated in St. Charles County for ad valorum taxes on February 24, 2003.

      . We briefly note that Ford had no duty or right to exhaust its administrative remedies by appealing to the Board or to the State Tax Commission before filing its petition in circuit court. Under Section 138.430, which provides that ”[e]veiy owner of real property or tangible personal property shall have the right to appeal from the local boards of equalization to the state tax commission ..." the right to appeal tax assessments from the Board to the State Tax Commission is reserved only to an "owner” of assessed property. See also O’Flaherty v. State Tax Com’n of Missouri, 680 S.W.2d 153, 155-156 (Mo. banc 1984) and City of Richmond Heights v. Bd. of Equalization, 586 S.W.2d 338, 341 (Mo. banc 1979)(holding that only the property owner has the right to appeal property tax assessments under Missouri law). We further note that under Sections 138.030 and 138.040, the powers and duties of the Board and State Tax Commission are limited to valuation and not to issues of property ownership. Here, since Ford alleged in its petition that it was not the owner of the 258 vehicles on which it was assessed, it was not obligated to exhaust administrative appeals. Furthermore, the powers of the Board and State Tax Commission would not have extended to determining Ford’s ownership of said vehicles.


text:
    Richard F. KASTAN, et al., Respondents, v. LAWLESS HOMES, INC., Appellant.
    No. ED 83825.
    Missouri Court of Appeals, Eastern District, Division One.
    July 26, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 24, 2005.
    Application for Transfer Denied Nov. 1, 2005.
    Joseph Vincent Keady Jr., Clayton, for appellant.
    Steven E. Spoeneman, St Louis, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Lawless Homes, Inc. (“Lawless”) appeals from the trial court’s judgment after a jury trial in favor of Richard F. Kastan and Vickie L. Briner (“Homeowners”) on their claims for fraudulent misrepresentation, breach of contract and punitive damages. Lawless argues the trial court erred in: (1) granting Homeowners’ request for a jury trial because their petition requested equitable relief; (2) denying Lawless’s motion for judgment notwithstanding the verdict and submitting the claim of misrepresentation and request for punitive damages to the jury because they failed to prove the elements of fraud, they waived their claims and did not prove their claim for punitive damages by clear and convincing evidence; (3) denying Lawless’s motion for remittitur because the award of punitive damages did not comport with the necessary guideposts satisfying due process; (4) admitting certain testimony at trial because it went beyond the allegations in the pleadings, lacked foundation and was more prejudicial than probative; and (5) denying Lawless’s motion for mistrial and/or new trial for all the above reasons and the award of punitive damages was excessive.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. No error of law appears. No precedential or jurisprudential purposes would be served by an opinion restating the detailed facts and the principles of law. The parties have been furnished with a memorandum for their purposes only explaining the reasons for this order affirming the judgment pursuant to Rule 84.16(b).


author: ROBERT S. BARNEY, Judge. KENNETH W. SHRUM, J,

text:
    Carlos L. JOHNSON, Appellant, v. STATE of Missouri, Respondent.
    Nos. 26428, 26533.
    Missouri Court of Appeals, Southern District, Division Two.
    Aug. 1, 2005.
    Motion for Rehearing or Transfer Denied Aug. 22, 2005.

      Jo Ann Rotermund, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shawn Naecarato, Asst. Atty. Gen., Jefferson City, for respondent.
   ROBERT S. BARNEY, Judge.

Appellant Carlos L. Johnson (“Movant”) appeals from the motion court’s denial of his amended motion to vacate, set aside or correct judgment and sentence filed pursuant to Rule 24.035. In his sole point on appeal, Movant maintains the motion court erred in denying his 24.035 motion “because there was no factual basis for [his] identical guilty pleas to two sales of a controlled substance on the same date.”

On February 5, 2002, Movant was charged by Amended Information in case number 754109 with one count of the class B felony of sale of a controlled substance, a violation of section 195.211. The Amended Information charged that “on or about August 24, 2001, in the County of Pemiscot, State of Missouri, [Movant] sold crack cocaine, a controlled substance, to a confidential informant, knowing that it was a controlled substance.”

On that same day, a second case was filed against Movant in Pemiscot County. This second case, filed as case number 754102, also charged Movant with one count of the class B felony of sale of a controlled substance and charged that “on or about August 24, 2001, in the County of Pemiscot, State of Missouri, [Movant] sold crack cocaine, a controlled substance, to a confidential informant, knowing that it was a controlled substance.”

On June 18, 2002, pursuant to a plea agreement, Movant pled guilty to the two charges of selling a controlled substance with the understanding that the State, inter alia, would recommend Movant receive two concurrent twelve year sentences which were also to run concurrent with a seven-year probation violation sentence in another case. At the guilty plea hearing, the following exchanges occurred between the plea court and Movant:

The Court: [Movant], your lawyer tells me today you want to plead guilty to the two charges of sale of a controlled substance that is contained in this case file; is that correct?
Movant: Yes, ma’am [sic].
The Court: [Movant], do you understand that each of these two separate charges of sale of a controlled substance, each of them were Class B felony offenses, and each of them carry a range of punishment of a term in the Department of Corrections of not less than 5, nor more than 15 years; do you understand that range of punishment for each of these two charges?
Movant: Yes, sir.
The Court: And, do you also understand that you don’t have to plead guilty to either one or both of these charges here today, and if you wished to proceed with your previously entered pleas of not guilty, you have the right to have a trial ... and the State’s burden at a trial would be to prove each and every element of each of these two offenses.... Movant: Yes, sir.
The Court: Do you also understand that you do have the right to be represented by your lawyer at all stages of these proceedings ... if one or both of these charges were to go to trial....
Movant: Yes, sir.
The Court: Do you also understand that ... if I accept your pleas of guilty to each of these two respective Count II charges of sale of a controlled substance, as to each of these two charges, you’re gonna give up and waive all your Constitutional rights....
Movant: Yes, sir.
The Court: And, keeping that in mind, are you asking me to accept each of your two respective pleas of guilty here today and follow the [State’s] recommendation?
Movant: Yes, sir.

The plea court then read to Movant the charge outlined in the Amended Information in case number 754102 and Movant “admitted] to the Court [he] committed th[at] act” and that he was “in fact guilty of th[at] crime.” Thereafter, the plea court read to Movant the Amended Information in case number 754109 and Movant agreed that he had committed that crime as well.

The plea court then accepted Movant’s guilty pleas in the two above-mentioned cases. In its identical docket entries for both cases, the plea court noted that it found “the plea to be voluntary with full understanding of the charge; constitutional rights and range of punishment explained ... Allocution granted.”

On September 12, 2002, Movant filed a pro se “Motion to Vacate, Set Aside or Correct the Judgment and Sentence.” Thereafter, Movant was appointed counsel, who then filed an amended motion on October 3, 2003. After Movant waived evi-dentiary hearing on the motion, the motion court took the “case under advisement upon file and records.”

On June 14, 2004, the motion court issued its Findings of Fact and Conclusions of Law in which it overruled Movant’s motion for post-conviction relief as to the two cases in question. In its findings, the motion court noted that in case number 754102 the State had attached to the Amended Information filed in the plea court, a probable cause affidavit by a police officer assigned to the Bootheel Drug Task Force. This affidavit, as recited in the motion court’s findings, set out that on August 24, 2001, “a confidential informant told [the officer] that [he] had purchased $100.00 worth of crack from [M]ovant at Casey’s parking lot in Caruthersville. The officer further stated that he ‘conducted surveillance relevant to this purchase and a field test on the drug purchased tested positive for cocaine base.’” The motion court went on to detail that a probable cause affidavit was also filed by the same police officer along with the Amended Information filed in case number 754109. In that affidavit, the officer stated that a confidential informant “purchased $100.00 worth of crack cocaine from [M]ovant ‘at 18th St. riding a bike in Caruthersville, Mo.’ ” According to the motion court, the elements of the crimes in both cases “were explained to [M]ovant as to each sale, and the plea court complied with Rule 24.02(e). Merely because the cases were taken up together, does not change the fact that a factual basis was established for each separate sale.” Accordingly, the motion court found that Movant did not meet his “burden of proving his claims that there was only one sale” and Movant was not entitled to relief upon his double jeopardy claim.

This appeal by Movant followed.

Appellate review of the denial of a Rule 24.035 motion for post-conviction relief is limited to a determination of whether the motion court’s findings of fact and conclusions of law are clearly erroneous. Rule 24.035(k); Ross v. State, 48 S.W.3d 667, 669 (Mo.App.2001). “The findings and conclusions are deemed erroneous if after reviewing the record, this court is left with the definite and firm belief that a mistake has been made.” Goings v. State, 1 S.W.3d 600, 601 (Mo.App.1999) (quoting Saffold v. State, 982 S.W.2d 749, 752 (Mo.App.1998)). We presume that the motion court’s findings and conclusions are correct. Butts v. State, 85 S.W.3d 132, 134 (Mo.App.2002).

Rule 24.02(e) provides that “[t]he court shall not enter a judgment upon a plea of guilty unless it determines that there is a factual basis for the plea.” Prior to accepting a plea of guilty, the trial court must “determine facts which defendant admits by his plea and that those facts would result in defendant being guilty of the offense charged.” Hoskin v. State, 863 S.W.2d 637, 639 (Mo.App.1993). “A defendant is not required to admit or to recite the facts constituting the offense in a guilty plea proceeding, so long as a factual basis for the plea exists.” Brown v. State, 45 S.W.3d 506, 508 (Mo.App.2001). “ ‘A trial court is not required to explain every element of a crime to which a person pleads guilty so long as the defendant understands the nature of the charge.’ ” Daniels v. State, 70 S.W.3d 457, 461 (Mo.App.2002) (quoting State v. Taylor, 929 S.W.2d 209, 217 (Mo. banc 1996)). The recital of a factual basis for the charge helps to ensure the guilty plea is knowing and voluntary. Carmons v. State, 26 S.W.3d 382, 384 (Mo.App.2000). This Court’s “ ‘focus is on whether the plea was made intelligently and voluntarily [and not on] whether a particular ritual is followed or every detail explained.’ ” Daniels, 70 S.W.3d at 461 (citation omitted). Furthermore, “[r]elief under [Rule 24.02(e)] is available only for an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice.” Schuerenberg v. State, 98 S.W.3d 922, 923-24 (Mo.App.2003). “Absent an abuse of discretion, this Court defers to the trial court’s determination as to whether a prisoner’s guilty plea was voluntary.” Jenkins v. State, 9 S.W.3d 705, 708 (Mo.App.1999).

The present matter is akin to that found in Jones v. State, 117 S.W.3d 209 (Mo.App.2003), where this Court determined that the Jones movant’s guilty plea to the charge of second-degree assault lacked a factual basis in the record of the plea hearing. There, in its findings relating to movant’s Rule 24.035 motion, the motion court “referred to the complaint filed in the underlying criminal case” and then quoted in its findings certain facts contained in the original complaint. Id. at 213. “However, [the complaint] was not read nor was reference made to it during the guilty plea hearing.” Id. Thereafter, the motion court also considered a pre-sentence investigation report which “was not a part of the sentencing hearing in the underlying criminal case nor d[id] the record on appeal in this case reveal it was part of the files and records on which this case was submitted to the motion court.” Id. As a result, the Jones court found that:

Matters not part of the guilty plea hearing are dehors the record. Just as an appellate court may not consider matters dehors the record ... neither may trial courts charged with complying with Rule 24.02 in determining whether to accept pleas of guilty rely on matters dehors the record. The factual basis for the plea of guilty must be gleaned from the record of the guilty plea hearing.

Jones, 117 S.W.3d at 213 (internal citations omitted).

In the present matter, the two Amended Information sheets mentioned at the plea hearing recite facts that are identical and indistinguishable from one another. While the motion court’s findings refer to two probable cause affidavits, which the motion court sets out were attached to the Amended Informations in the two underlying criminal cases, these probable cause affidavits relied upon by the motion court are not mentioned in the transcript from the plea hearing; nor is there any indication from our review of that transcript that the probable cause affidavits were even before the plea court. While our focus is not on “ “whether a particular ritual is followed or every detail explained,’ ” there remains a requirement that there be a factual basis established for a guilty plea prior to the plea court’s acceptance of such a plea. Daniels, 70 S.W.3d at 461 (citation omitted). As previously related, this Court is confined to solely studying the record of the plea hearing and “a record that will withstand appellate scrutiny is required. No such record was made in this case.” Jones, 117 S.W.3d at 213. We determine that the motion court improperly relied upon the probable cause affidavits which were matters dehors the record when it determined there was a factual basis for Movant’s plea.

In the present matter, as in Jones, the requirements of Rule 24.02(e) were not met, and the motion court’s denial of Mov-ant’s Rule 24.035 motion as to case number 754109 and case number 754102 was clearly erroneous. The motion court’s judgment is reversed. Jones, 117 S.W.3d at 213. We set aside the convictions based on the two guilty pleas in question, and remand them to the plea court in order that a factual basis may be established before accepting the pleas tendered pursuant to the plea agreement. Hoskin, 863 S.W.2d at 640.

SHRUM, J., concurs in separate opinion.

BATES, C.J., concurs.

KENNETH W. SHRUM, J,

concurring.

I concur. I write separately to emphasize that a factual basis for the guilty plea must exist before the court enters a judgment upon the plea. Price v. State, 137 S.W.3d 538, 542 (Mo.App.2004). Nothing in Rule 24.02(e) “requires that a factual basis be established before a guilty plea is accepted.” Id. Obviously, “[t]he ideal method to establish a factual basis would be via a colloquy between the court and the defendant.” Id. at n. 4. Certainly, the guilty plea hearing would provide such an ideal venue, but this is not required by the rule.

When the plea court relies on matters outside the plea hearing to establish a factual basis, the court should specifically point to the matters it relies upon that are contained in the record. Id. In the case sub judice, the plea court was allowed to rely on matters such as probable cause affidavits, but only when they were contained the record. They were not; consequently, when the majority opinion relies upon Jones, it does so because the only record made was that of the guilty plea hearing. As stated by the majority, nothing in this opinion should be read as contradictory to that stated in Price.

      . Section 195.211.1 states in pertinent part that, “it is unlawful for any person to distribute, deliver, manufacture, produce or attempt to distribute, deliver, manufacture or produce a controlled substance or to possess with intent to distribute, deliver, manufacture, or produce a controlled substance."

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

      . The probable cause affidavits mentioned in conjunction with both of the underlying cases at issue were not filed with this Court.

      . We note that in Price v. State, 137 S.W.3d 538 (Mo.App.2004), this Court held that "a sentencing court’s subjective determination regarding a factual basis can be made anytime before the judgment is entered and 'from anything that appears on the record..’ ” Id. at 542 (quoting U.S. v. Fountain, 777 F.2d 351, 356 (7th Cir.1985)). “The only requirement is that 'the factual basis, whatever its source, appear clearly on the record.' ” Id. (quoting U.S. v. Adams, 961 F.2d 505, 512 (5th Cir.1992)). Furthermore, “this appearance must come before a judgment is entered on the guilty plea.” Id. By our reliance on Jones we do not sub silentio overrule Price. We are simply noting that the only record established in the instant matter is that from the guilty plea hearing. The State concedes as much. As such, the record presented does not comport with the requirements of Rule 24.02(e).


text:
    Elaine RIEGLE, Plaintiff/Appellant, v. Michael H. PAFFRATH and Barbara A. Paffrath, d/b/a Michael H. Paffrath, General Contractor and Michael H. Paffrath Contractor, Inc., A Missouri Corporation. Defendants/Respondents.
    No. ED 84834.
    Missouri Court of Appeals, Eastern District, Division Four.
    Aug. 9, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 13, 2005.
    Application for Transfer Denied Nov. 1, 2005.
    Michael A. Gross, St. Louis, Lawrence J. Altman, Chesterfield, MO, for Appellant.
    Daniel E. Wilke, Wilke & Wilke, P.C., St. Louis, MO, for Respondent.
    Before LAWRENCE E. MOONEY, P.J., and MARY K. HOFF, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Elaine Riegle (Riegle) appeals the judgment entered by the trial court in favor of Michael H. Paffrath and Barbara A.L. Paf-frath d/b/a Michael H. Paffrath General Contractor, and Michael H. Paffrath Contractor, Inc., (the Corporation) (collectively Defendants) after a jury trial on Riegle’s breach of contract and breach of implied warranty claims against the Corporation; after the trial court directed a verdict in favor of Defendants on Riegle’s fraudulent misrepresentation and negligent misrepresentation claims at the close of Riegle’s evidence; and after the trial court directed a verdict in favor of Michael and Barbara on Riegle’s breach of contract and breach of implied warranty claims. Riegle appeals the judgment only to the extent the trial court granted directed verdicts in favor of Defendants and not to the extent the jury found in favor of the Corporation.

We have reviewed the briefs of the parties, the legal file, and the record on appeal, and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. Judgment affirmed in accordance with Rule 84.16(b).

The parties have been furnished with a memorandum for their information only, setting forth the reasons for the order affirming the judgment pursuant to Rule 84.16(b).

      . For convenience, when we need to refer to one of the individual Paffraths we will use his or her first name only. By doing so, we do not mean to be disrespectful.