author: RICHARD B. TEITELMAN, Judge.

text:
    STATE ex rel. William A. ZOBEL, Relator, v. The Honorable Don E. BURRELL, Judge of The Circuit Court of Greene County, Missouri, et al., Respondents.
    No. SC 86813.
    Supreme Court of Missouri, En Banc.
    July 12, 2005.

      Dale L. Ingram, Kansas City, MO, Pat J. Merriman, Nixa, MO, Price C. Keller, Republic, MO, for Relator.
    J. Daniel Patterson, Darrell L. Moore, Greene County Prosecuting Attorney, Springfield, MO, Ann K. Covington, St. Louis, MO, for Respondents.
   RICHARD B. TEITELMAN, Judge.

In January 2005, the Greene County sheriffs department executed a search warrant on property owned by William Zobel. The warrant was issued pursuant to section 578.018 RSMo (2000). Sheriffs deputies seized approximately 120 severely malnourished and emaciated horses from the property. The horses were impounded and cared for by the Humane Society of Missouri and the Carthage Humane Society at a cost of over $180,000. In March 2005, the Honorable Don E. Burrell (respondent), entered an order which, inter alia, granted permission to the societies to humanely dispose of the horses pursuant to section 578.018. However, Zobel never attempted to prevent the disposition of the horses by posting a bond or security for the care of some or all of the horses as is authorized by section 578.108.2. Instead, Zobel filed a petition for a -writ of mandamus against respondent and the societies, arguing that respondent had no authority to authorize a disposition of the horses. The court of appeals issued a stop order. After opinion by the court of appeals, this Court ordered transfer. Mo. Const, article V, section 10. The stop order is dissolved and the petition is denied.

Section 578.018 establishes procedures regulating the search for and seizure of animals suspected of being abused and neglected. The statute specifically authorizes warrants to “enter private property in order to inspect, care for, or impound neglected or abused animals.” Section 578.018. If animals are seized, the statute provides that a person acting under authority of a warrant shall “be given a disposition hearing before the court through which the warrant was issued, within thirty days of the filing of the request for the purpose of granting immediate disposition of the animals impounded.” Any person acting under the authority of a section 578.018 warrant shall “[p]lace [the] impounded animals in the care or custody of a veterinarian, the appropriate animal control authority, or an animal shelter.” Section 578.018.1(2). The statute allows the owner of the allegedly abused or neglected animal to prevent disposition of the animal by “posting bond or security in an amount sufficient to provide for the animal’s care and keeping for at least thirty days.... ” Section 578.018.2. However, even if a bond is posted, “the authority having custody of the animal may humanely dispose of the animal at the end of the time for which expenses are covered by the bond or security.” Id,

Zobel raises two points before this Court. First, Zobel argues that respondent was without jurisdiction to order disposition of the horses because the order constitutes spoliation of evidence and will cause irreparable harm by adversely affecting his ability to defend himself against pending criminal animal abuse charges. Zobel’s second point is that section 578.018 is unconstitutionally vague and violates equal protection.

I. Spoliation of Evidence

“ ‘Spoliation is the destruction or significant alteration of evidence.’ ” Schneider v. G. Guilliams, Inc., 976 S.W.2d 522, 526 (Mo.App.1998)(quoting Baugher v. Gates Rubber Co., 868 S.W.2d 905, 907 (Mo.App.1993)). A party who intentionally destroys or significantly alters evidence is subject to an adverse evidentia-ry inference under the spoliation of evidence doctrine. Baldridge v. Director of Revenue, 82 S.W.3d 212, 222 (Mo.App.2002). Whether the spoliation doctrine would apply in future criminal proceedings against Zobel is a matter that would be determined by the circuit court hearing that case. The spoliation of evidence doctrine does not apply at this juncture to warrant an extraordinary writ.

II. Constitutionality of section 578.018

Zobel argues that section 578.018 is unconstitutional because the statute is “unduly vague in that it fails to provide sufficient guidance to avoid arbitrary and discriminatory application thereby denying relator the equal protection of the law.” As the party challenging the constitutionality of the statute, Zobel bears the burden of proving the statute unconstitutional. Linton v. Missouri Veterinary Medical Bd., 988 S.W.2d 513, 515 (Mo. banc 1999). Zobel must overcome the presumption of constitutionality by showing that the statute “clearly and undoubtedly” violates some constitutional provision and “palpably affronts fundamental law embodied in the constitution.” Id.

Zobel’s first vagueness challenge centers on his contention that the statute does not adequately define the circumstances in which animals may be taken from the possession of an owner. Zobel maintains that animal “abuse” and “neglect” are vague terms that do not adequately define the proscribed conduct. However, the terms “animal neglect” and “animal abuse” are defined in section 578.009 and section 578.012. “Animal neglect” is defined as the failure “to provide adequate care or adequate control, which results in substantial harm to the animal.” Section 578.009. Animal abuse occurs when an owner “knowingly fails to provide adequate care or control.” Section 578.012. Furthermore, the general assembly has also defined the key terms of “adequate care” and “adequate control.” “Adequate care” is defined as “normal and prudent attention to the needs of an animal, including wholesome food, clean water, shelter and health care necessary to maintain good health in a specific species of animal.” Section 578.005. “Adequate control” means to “reasonably restrain or govern an animal so that the animal does not injure itself, any person, any other animal, or property.” Id.

“The test for vagueness is whether the language conveys to a person of ordinary intelligence a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” State v. Brown, 140 S.W.3d 51 (Mo. banc 2004). Neither absolute certainty nor impossible standards of specificity are required in determining whether terms are impermissibly vague. Id. Assessed against these standards, the statutory definitions of “animal abuse” and “animal neglect” are not void for vagueness. The terms “animal neglect” and “animal abuse” are both premised upon the failure to provide “adequate care” or “adequate control.” The terms “adequate care” and “adequate control” are defined with reference to the basic needs of an animal for food, water, shelter, and restraint from injuring itself, other animals, people, or property. The need for basic food, water and shelter are concepts that are almost universally contemplated and are understandable by persons of ordinary intelligence. The terms “animal abuse” and “animal neglect” as used in section 578.018 are not void for vagueness.

Zobel’s second vagueness argument is that section 578.018 “lacks sufficient guidance so as to avoid arbitrary and discriminatory application.” As discussed above, the statute employs the sufficiently clear terms of “animal abuse” and “animal neglect” to justify impoundment, requires a hearing for immediate disposition of the animals, and permits an owner to prevent the disposition of an impounded animal. What the statute does is grant the circuit courts the discretion necessary to evaluate the innumerable scenarios under which an animal abuse or neglect case may arise. Section 578.018 provides the circuit courts with sufficient guidance to avoid arbitrary and discriminatory application and is not void on that basis.

Zobel’s equal protection argument is also without merit. In an equal protection challenge, the first step is to determine whether the challenged statutory classification operates to the disadvantage of some suspect class. United C.O.D. v. State, 150 S.W.3d 311, 313 (Mo. banc 2004). Zobel does not allege that section 578.018 discriminates based upon a classification nor does he allege that the statute discriminates in its application. Section 578.018 applies to all persons equally without regard to classification and, therefore, does not violate the guarantee of equal protection.

Respondent acted within his jurisdiction in ordering the disposition of the horses pursuant to section 578.018. The stop order is dissolved and the writ petition is denied.

All concur.

      . The extent of the malnourishment and mistreatment is reflected in the attached photographs of several horses seized from Zobel’s property. The Court takes judicial notice of these photographs, contained in State ex rel. William A. Zobel v. The Honorable Don E. Burrell, Jack Merritt, Sheriff of Greene County, Missouri, the Humane Society of Missouri, Inc., and The Honorable Gloria C. Reno, No. SC86677.

      . Zobel’s argument in the circuit court and the court of appeals was that section 578.018 did not vest the circuit court with jurisdiction to order disposition of the horses. Inexplicably, Zobel has abandoned the jurisdictional argument in his briefs before this Court and, instead, presents this Court with two fundamentally different points. Arguably, Zobel's brief could be stricken under Rule 83.08(b), which provides that the substitute brief before this Court "shall not alter the basis of any claim that was raised in the court of appeals brief” and that any material "in the court of appeals brief that is not included in the substitute brief is abandoned.” However, the matter was expedited in the court of appeals and the parties were not permitted to file briefs and, instead, proceeded on their initial pleadings. While this unique situation may save Zobel's points on appeal from the application of Rule 83.08(b), the decision to abandon the arguments presented to the circuit court and the court of appeals nonetheless runs afoul of the premise of orderly litigation that underlies the rule.


source: Caselaw Access Project

author: WILLIAM RAY PRICE, JR., Judge.

license: Public Domain

text:
    Justin Scott BUCHANAN, Appellant, v. Jaclyn Ann BUCHANAN, Respondent.
    No. SC 86662.
    Supreme Court of Missouri, En Banc.
    July 12, 2005.
    Richard L. Schnake, Springfield, MO, for Appellant.
    Douglas C. Fredrick, Springfield, MO, for Respondent.
   WILLIAM RAY PRICE, JR., Judge.

This is a custody dispute that was heard by a visiting judge in Stone County. Justin Buchanan complains that the visiting judge who heard this case lacked authority. The visiting judge was properly assigned to Stone County by this Court and authorized by local rule to hear this case. Father made no objection to the authority of the judge at the hearing. This constituted father’s agreement to the matter being heard by the visiting judge pursuant to local rule. Father also complains that the trial court did not issue written findings in its custody judgment pursuant to section 452.375.6, RSMo 2000. Written findings are required by section 452.375.6 if the court must rule on any issue or sub-issue of custody that the parents do not agree upon. This Court reverses the judgment and remands the case.

I. Introduction

This case was originally assigned to Judge Alan Blankenship, of the 39th Judicial Circuit by the presiding judge, J. Edward Sweeney. Prior to the hearing, Judge Blankenship entered the following in the docket: “Per counsel conflicts provided, case set for 1/2 day hearing on Thursday, September 18, 2003, at 9:00 a.m. Case may be heard by visiting judge Daniel M. Czamanske. Clerk to notify counsel.” At no time did presiding Judge Sweeney appoint Judge Czamanske to this particular case.

This Court had temporarily transferred Judge Daniel M. Czamanske to the 39th Judicial Circuit (Stone County) from Platte County for the period of September 15-19, 2003. The transfer order vested in Judge Czamanske “the same powers and responsibilities as a judge of the court or district to which transferred. Such powers and responsibilities shall be confined to designated matters and cases.... ”

The parties appeared before Judge Cza-manske at a dissolution hearing on September 18, 2003, and presented their case. Neither party objected to Judge Cza-manske hearing the case. At the hearing, father (Justin Buchanan) and mother (Jaclyn Buchanan) both agreed to joint custody, but they presented differing parenting plans and disagreed on the child’s residence. At the very beginning of the hearing, the following exchange occurred:

THE COURT: All right. What are the controverted issues we’re going to be hearing this morning?
[Mother’s Counsel]: Custody issues.
[Father’s Counsel]: One custody issue, Your Honor, regarding the residence for the minor child.
THE COURT: Are there other contested issues other than the custody issue?
[Mother’s Counsel]: No, Your Honor.

Judge Czamanske granted joint custody, adopted mother’s proposed parenting plan, and assigned mother’s address to be used as the child’s mailing and educational address. The judgment reads:

The court further finds that the parties are able to cooperate with each other and share the decision-making rights, responsibilities, and authority relating to the health, education, and welfare of said children. The court further finds that the best interests of the said children will be served by granting the care, custody, and control jointly to [Father] and [Mother], as set forth in [Mother’s proposed parenting plan] which is attached hereto and incorporated herein by this reference.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Petitioner and Respondent are awarded joint legal custody, care and control of the minor child of the marriage.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that [Father and Mother are] hereby designated as the minor joint physical custodians and that [Father] is awarded rights of reasonable visitation with the minor un-emancipated children as set forth in [Mother’s proposed parenting plan] which is attached hereto and incorporated herein by this reference.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that [Mother’s] address shall be designated as the mailing address of the minor children for mailing and educational purposes.

II. Authority of Judge Czamanske

Father complains that neither the Supreme Court nor the presiding judge for the 39th Judicial Circuit specifically assigned Judge Czamanske to this case. There is no dispute that Judge Czamanske is an associate circuit judge for Platte County, Missouri.

Article V, section 6 of the Constitution of the State of Missouri provides this Court the authority to “make temporary transfers of judicial personnel from one court or district to another as the administration of justice requires.... ” Article V, section 6 further provides that “[a]ny judge shall be eligible to sit temporarily on any court upon assignment by the supreme court or pursuant to supreme court rule.” Rule 11.01 of the Missouri Rules of Civil Procedure states:

This Court may make temporary transfers of judicial personnel from one court or district to another as the administration of justice requires. A judge transferred temporarily by order of this Court shall not be excused from the judicial duties of the court or district to which the transfer is made during the period of the transfer unless excused by the presiding or chief judge of the court to which transfer was ordered or unless excused by the Chief Justice.

Missouri Rule 11.02 states: “A judge or commissioner so transferred, during the period designated, shall have the same powers and responsibilities as a judge of the court or district to which he is transferred.”

Local Rule 6.6 of the 39th Judicial Circuit provides: “In the absence of any judge of this circuit, any other circuit or

associate circuit judge of this circuit may sit as the judge of the division in which the judge is absent and perform all duties of the absent judge.” Local Rule 4.2 of the 39th Judicial Circuit provides, in relevant part:

Associate circuit judges shall have concurrent jurisdiction in the following cases:
2. All dissolution actions, motions to modify, and proceedings under the Uniform Child Custody Act (UCCJA)....
5. Any case ... by agreement of the parties, may be heard by an associate circuit judge within the circuit without necessity of assignment of such case by the presiding judge to the associate circuit judge.

Judge Czamanske was transferred by order of this Court to serve in the 39th Judicial Circuit, with all the authority of a judge of that circuit, for the week of September 15-19, 2003. See City of Kansas City v. Rule, 673 S.W.2d 21, 24 (Mo. Banc 1984); Lansing v. Lansing, 736 S.W.2d 554, 557-58 (Mo.App.1987). Although Judge Blankenship’s abbreviated docket entry is not entirely clear, it is apparent that he would not be able to sit on this case as scheduled. In his absence, Judge Czamanske was authorized by local rule 6.6 to sit in his place and perform all of Judge Blankenship’s duties regarding this case. Judge Blankenship appears to have contemplated this with his notation that the case “may be heard by visiting judge Daniel M. Czamanske.”

Local rule 4.2 also authorized Judge Czamanske to hear this case. No objection was made at the hearing regarding Judge Czamanske’s authority. By their appearance without objection, the parties agreed to have Judge Czamanske hear this case. Upon such agreement and per local rule 4.2, no further or specific assignment was necessary for this case to be heard by Judge Czamanske.

III. Written Findings

Father argues that because the parties disagreed about the child’s residence and parenting plan, the trial court was required to issue written findings on those issues. Mother maintains that the parties agreed to a joint custody designation, so no written findings were required.

Section 452.375.6 provides:

If the parties have not agreed to a custodial arrangement ... 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.

In Speer v. Colon, this Court emphasized the importance of these written findings in custody proceedings:

Because the parties had not agreed to the 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.

155 S.W.3d 60, 61 (Mo. banc 2005).

Determining custody and custodial arrangements of children in dissolution actions is one of the most important and most sensitive duties of the court. The legislature has mandated written findings detailing the specific relevant factors that made the chosen arrangement in the best interest of the child. Written findings are necessary unless the parties have “agreed to a custodial arrangement.” Section 452.375.6.

Although the parties had agreed that father and mother should have joint custody, they did not agree on the residence address for the child or on a parenting plan. While these may be sub-issues of custody, they were contested and required the court’s resolution. So long as any issue or sub-issue of custody is subject to contest between the parties and resolution by the court, written findings that include discussion of the applicable factors from section 452.375.2 are required. The judgment is reversed, and the case is remanded.

All concur.

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

      . Judge Czamanske would also have authority as either a judge de facto or de jure. Although the parties agreed to have him hear the case, assuming they did not, "In Missouri a special judge is a judge de facto.” Brinkerhoff-Faris Trust & Savings Co. v. Gaskill, 356 Mo. 61, 201 S.W.2d 274, 276 (1947) (citations omitted). "A claimant’s failure to timely object to a de facto judge's conduct of the hearing waives any defect regarding the procedural niceties of her appointment.” Wright v. Sports Associated, Inc., 887 S.W.2d 596, 598 (Mo. banc 1994).

      . Father did not request findings of fact at the hearing. Section 452.375.6 provides that when the parties are not in agreement on a custody arrangement, "the court shall include a written finding in the judgment or order.” As a general rule, in civil cases, Rule 73.01(c) outlines the proper way that this should have been handled. It provides in relevant part:
      The court may, or if requested by a party shall, include in the opinion findings on the controverted fact issues specified by the party. Any request for an opinion or findings of fact shall be made on the record before the introduction of evidence at trial or at such later time as the court may allow. All fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached.
      The difference between custody cases and ordinary cases is that section 452.375.6 puts the burden on the court to issue written findings instead of on the parties as is the general rule.

      . Section 452.375.4 provides the public policy governing custody decisions in Missouri. It provides:
      The general assembly finds and declares that it is the public policy of this state that frequent, continuing and meaningful contact with both parents after the parents have separated or dissolved their marriage is in the best interest of the child, except for cases where the court specifically finds that such contact is not in the best interest of the child, and that it is the public policy of this state to encourage parents to participate in decisions affecting the health, education and welfare of their children, and to resolve disputes involving their children amicably through alternative dispute resolution. In order to effectuate these policies, 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.

      . Subsection 2 of 452.375 states:
      The court shall determine custody in accordance with the best interests of the child. The court shall consider all relevant factors including:
      (1) The wishes of the child's parents as to custody and the proposed parenting plan submitted by both parties;
      (2) The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;
      (3) The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child’s best interests;
      (4) Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;
      (5) The child’s adjustment to the child's home, school, and community;
      (6) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved. If the court finds that a pattern of domestic violence has occurred, and, if the court also finds that awarding custody to the abusive parent is in the best interest of the child, then the court shall enter written findings of fact and conclusions of law. Custody and visitation rights shall be ordered in a manner that best protects the child and any other child or children for whom the parent has custodial or visitation rights, and the parent or other family or household member who is the victim of domestic violence from any further harm;
      (7) The intention of either parent to relocate the principal residence of the child; and
      (8) The wishes of a child as to the child’s custodian....


author: PER CURIAM.

text:
    STATE ex rel. Jeremiah W. NIXON, Attorney General, State of Missouri, Respondent, v. James A. POWELL, Appellant.
    No. SC 86453.
    Supreme Court of Missouri, En Banc.
    July 12, 2005.

      James A. Powell, Northeast Correctional Center, Bowling Green, MO, for Appellant
    Jeremiah W. (Jay) Nixon, Atty. Gen., Paul Harper, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
   PER CURIAM.

James Powell is an offender committed to the custody of the department of corrections. The attorney general filed this action seeking reimbursement for the costs of Powell’s care while incarcerated. The action is governed by the “Missouri Incarceration Reimbursement Act,” sections 217.825 to 217.841. Powell objected to the reimbursement. The circuit court entered judgment for the attorney general after sustaining his motion for summary judgment. Powell appeals, contending the act is invalid because it is unconstitutionally vague and violates due process. This Court has jurisdiction. Mo. Const, article Y, section 3. Finding no error, the judgment is affirmed.

Powell contends the attorney general did not have good cause to believe there were sufficient assets to recover “not less than ten percent of the estimated cost of care ... for two years.... ” Section 217.831.8. When he filed the action, the attorney general knew that Powell had $1,458.57 in his inmate account and was receiving monthly income of $526.00. The parties agree that ten percent of the estimated cost of care is $2,600. In fact, before the action was completed, more than $2,600 was available.

The act does not require that the ten-percent amount be in existence before the action is filed. Section 217.831.3 requires “sufficient assets” to exist. Section 217.827(l)(a)c defines “assets” to include “[a] current stream of income from any source whatsoever....” Given the fixed amount in his account and Powell’s monthly income, the trial court properly found that good cause existed.

Powell claims due process required a post-deprivation hearing to provide an opportunity to show good cause did not exist. This claim was not raised at the first opportunity and is not preserved. Hatfield v. McCluney, 893 S.W.2d 822, 829 (Mo. banc 1995). No plain error occurred as good cause was shown.

Similarly, Powell’s related argument that the statutes are unconstitutionally vague as to what assets should be considered to determine good cause was not raised at the first opportunity and is not preserved. Id. A vagueness challenge is applicable only to the facts at hand. State v. Brown, 140 S.W.3d 51, 55 (Mo. banc 2004). Under the facts of this case, the statutes are not vague.

The statutes also do not require the attorney general to receive a judgment that is equal to or greater than ten percent of the pertinent estimated cost of care. So long as good cause exists that sufficient assets are available (as in this case), the court is to adjudicate the proper amount. The statutes make no reference to any minimum amount that must be recovered.

Powell next argues that substantive due process is violated to the extent the statutes permit his disability/retirement pension benefits to be used for reimbursement for the cost of his care. The established method of substantive-due-process analysis has two primary factors: First, the due process clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in the nation’s history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed. Second, a careful description of the asserted fundamental liberty interest is required. Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997).

Powell provides no authority holding that a disability pension is a fundamental right or liberty deeply rooted in the nation’s history and tradition. He also fails to describe carefully the asserted fundamental liberty interest.

Finally, Powell contends that the incarceration reimbursement act impairs his contract as to his disability pension because the contract contains an anti-alienation provision that the judgment negates. The judgment in this case specifically requires the pension to be paid to Powell in his inmate account; it does not direct payment to another. The judgment only affects the inmate account, not the relation between Powell and the pension payer.

The judgment is affirmed.

All concur.

      . All statutory citations are to RSMo 2000.


author: MARY R. RUSSELL, Judge.

text:
    Karen F. TRIMBLE, d/b/a A-Advanced Bail Bonds, Respondent/Cross-Appellant, v. Timmi Ann PRACNA, Appellant/Cross-Respondent.
    No. SC 86269.
    Supreme Court of Missouri, En Banc.
    July 12, 2005.
    Rehearing Denied Aug. 2, 2005.

      Charles B. Cowherd, Springfield, MO, for Appellant/Cross-Respondent.
    R. Lynn Myers and Richard D. Crites, Springfield, MO, for Respondent/Cross-Appellant.
   MARY R. RUSSELL, Judge.

This appeal and cross-appeal follow a judgment awarding damages for breach of a bail bond contract and fraud on the retrial of a suit brought by bail bondsman Karen Trimble (“Bondsman”) against Tre-veillian Heartfelt (“Accused”) and his former girlfriend, Timmi Ann Pracna (“Girlfriend”). After opinion by the Court of Appeals, Southern District, this Court granted transfer. Mo. Const, art. V, sec. 10. The judgment is affirmed in part, as modified, and reversed in part.

Girlfriend contracted with Bondsman to obtain bail bonds to secure Accused’s release from jail. Girlfriend paid a $7,500 bond fee for the initial two bonds totaling $75,000 and pledged real estate as collateral. As Accused was leaving the jail, he was rearrested on a new fugitive warrant stemming from Idaho parole violations. The bond for this charge was set at $250,000, the contract was amended, and Bondsman posted this bond as well. Ultimately, Accused failed to appear at a court hearing for which the bonds were posted and significant efforts were made to procure his presence in court. Bondsman brought suit to recover under the bond contract.

This case has a chaotic and complex history, including two trials and two appeals before reaching this Court. The procedural history through the first appeal can be found in Trimble v. Pracna, 51 S.W.3d 481 (Mo.App.2001) (hereinafter Trimble I). In Trimble I, the court of appeals remanded the case for a second trial to determine Bondsman’s contract damages and to consider her fraud claims.

I. Second Trial

On remand, the trial court allowed the parties to amend their pleadings, but directed a verdict on liability on Bondsman’s new breach of contract claim based on the holding in Trimble I.

Bondsman submitted two verdict directors to the jury — one for damages for breach of contract and the other for damages for fraud. The jury returned verdicts in Bondsman’s favor, awarding her damages of $144,420 for breach of contract, $28,900 for fraud, and $146,000 as punitive damages on the fraud count. Bondsman was awarded $48,380.70 for attorney fees for the breach of contract claim, expenses of $12,324.67 on that claim, and $5,804.55 for costs. The trial court found that Girlfriend was “entitled to a set-off of $58,500 for amounts already paid” and awarded a credit for the set-off amount. In sum, Bondsman was awarded a total judgment of $152,429.92 on her breach of contract claim and $174,900 on her fraud claim. Both parties now appeal.

II. Did this case present the issue of election of inconsistent theories?

Before addressing the parties’ points, this Court addresses the issue of election of inconsistent theories of recovery. The issue of election of inconsistent theories has caused confusion in this case and others. For that reason, this Court reiterates the doctrine as last discussed in Whittom v. Alexander-Richardson Partnership, 851 S.W.2d 504, 506-07 (Mo. banc 1993).

In Whittom, this Court outlined the distinction between the doctrine requiring election of remedies and the doctrine requiring election of inconsistent theories of recovery. Id. It was noted that the election of remedies doctrine is a doctrine of estoppel, basically providing that where a party has the right to pursue one of two inconsistent remedies and makes an election, institutes suit, and prosecutes it to final judgment, that party cannot thereafter pursue another and inconsistent remedy. Id. at 506. Entirely distinct from the election of remedies is the election of inconsistent theories of recovery. Id. at 506-07. Under this doctrine, a party must elect between theories of recovery that are inconsistent, even though pled together as permitted by Rule 55.10, before submitting the case to the trier of fact. Id. If two counts are so inconsistent that proof of one necessarily negates, repudiates, and disproves the other, it is error to submit them together. Id. at 507. The determination of when two theories are inconsistent is heavily dependent upon the facts of the case. Id. Theories are inconsistent and require an election only if, in all circumstances, one theory factually disproves the other. Id.

There was no issue of inconsistent theories of recovery in this case. A party who fraudulently induces another to contract and then also refuses to perform the contract commits two separate wrongs, so that the same transaction gives rise to distinct claims that may be pursued to satisfaction consecutively. Davis v. Cleary Bldg. Corp., 148 S.W.3d 659, 669 (Mo.App.2004).

In Davis, the court of appeals found that the plaintiffs’ claims for breach of contract and fraudulent misrepresentation were not inconsistent legal theories and, as such, did not require election of remedies or election of recovery. Id. at 669-70. The court stated that the plaintiffs could pursue all of their claims because actual damages for breach of contract and benefit-of-the-bargain damages for fraud were not inconsistent remedies in that they both rest on affirmance of the contract. Id. at 669.

Bondsman could sue Girlfriend for breach of the bargain damages resulting from fraud in inducing her to contract and also recover additional damages, if any, resulting from breach of contract, as both rest on affirmance of the contract. A plaintiff is only entitled to be made whole once, however, and the election of theories doctrines are intended to prevent a plaintiff from recovering more than one full recovery for the same harm. Id. at 670. If a plaintiffs damages for breach of contract and for fraud are the same, then the damage awards merge. Id. Bondsman submitted theories of recovery that were not factually inconsistent, but instead merely included damages that could have overlapped.

The parties disagree as to whether the jury was properly instructed so as to prevent the award of overlapping damages on the breach of contract and fraud claims. This Court need not resolve this issue because, as more fully discussed below, Bondsman failed to prove her fraud claim and is not entitled to recover any of the damages awarded on that claim.

In sum, under the facts of this case, Bondsman was not precluded from submitting both a claim for breach of contract and a claim for fraud so long as she did not seek nor receive double recovery for the same damages. The trial court did not err in submitting both the contract claim and the fraud claim to the jury based on the doctrine of inconsistent theories of recovery. The claims were not inconsistent theories requiring election, and the issue of whether the damages for each claim were kept sufficiently separate and distinct need not be reached.

Having found there was no error in submitting the fraud claim on the grounds of inconsistent theories, the parties’ points of error are now addressed.

III. Should the trial court have granted the motion for judgment notwithstanding the verdict concerning the fraud claim?

Girlfriend argues that the trial court erred in denying her motion for judgment notwithstanding the verdict on Bondsman’s fraud claim because Bondsman failed to prove each essential element of her fraud claim.

A case may not be submitted, and a motion for judgment notwithstanding the verdict should be granted, unless each and every fact essential to liability is predicated upon legal and substantial evidence. Giddens v. Kansas City S. Ry. Co., 29 S.W.3d 813, 818 (Mo. banc 2000). Determining whether evidence is substantial and whether the inferences drawn are reasonable are questions of law. Bd. of Educ. of City of St. Louis v. Elam, 70 S.W.3d 448, 452 (Mo.App.2000).

There are nine essential elements of fraud, and failure to establish any one is fatal to recoveiy. Heberer v. Shell Oil Co., 744 S.W.2d 441, 443 (Mo. banc 1988). Girlfriend argues that Bondsman failed to prove the essential elements of reasonable reliance, materiality, and damages.

Reliance is an essential element of fraud, and Bondsman could not recover for fraud unless she established that she relied on the truth of the representations claimed to be false. Empire Gas Corp. v. Small’s LP Gas Co., 637 S.W.2d 239, 243 (Mo.App. 1982). The reliance must be proven to be reasonable. Brown v. Bennett, 136 S.W.3d 552, 555 (Mo.App.2004). Bondsman can recover for fraud only if she was justified, under the circumstances of this case, in relying upon the misrepresentations that were the basis of her fraud claim. Hanson v. Acceptance Fin. Co., Inc., 270 S.W.2d 143, 149 (Mo.App.1954).

Bondsman alleged that she relied on the following statements made by Girlfriend in deciding to post Accused’s bonds: Accused’s only nickname or alias was “Chance”; Girlfriend had an annual income of more than $100,000; Accused had always appeared for his past court appearances; and Accused was not in violation of his parole by being in Missouri.

Bondsman asserts that her testimony provided substantial evidence that she relied on these representations. The record reveals, however, that Bondsman’s testimony was contradictory and did not show that she reasonably relied on Girlfriend’s statements in deciding to post the bonds.

Girlfriend indicated on the bond application that Accused was on probation or parole, but Bondsman did not contact his parole officer before posting the bonds. Bondsman testified that before she posted bond for Accused, the assistant prosecutor spoke with her to ask that she not post Accused’s bonds because he “had a rap sheet as long as [she] was tall” and was likely to flee.

Bondsman, who had been a licensed bonding agent since 1989, admitted that she “felt like [Accused] would run.” She testified that she had Girlfriend execute a quitclaim deed for the collateral property before posting the $250,000 bond because she wanted to be able to sell the property to satisfy expenses if Accused failed to appear in court. During cross-examination, Bondsman admitted that she did “risk/reward analysis” in deciding to post the bonds — the risk that Accused would run versus the reward of the bond premium. She acknowledged that she decided to post the bonds based on Girlfriend’s collateral and good credit report.

Bondsman’s contradictory testimony did not provide substantial evidence that she reasonably relied on Girlfriend’s representations in deciding to post Accused’s bonds.

One of Bondsman’s fraud instructions differed from her other fraud instructions in that it alleged fraud based on Girlfriend’s statement that she would pay all bounty hunter fees and expenses. Bondsman alleged that Girlfriend’s promises to pay caused her to incur bounty hunter costs and, in particular, caused her to spend money and time she would not have otherwise spent. Bondsman, however, failed to present substantial evidence that she relied on Girlfriend’s oral promises to pay in incurring bounty hunter costs.

Bondsman and Girlfriend orally discussed bounty hunter bills after Accused’s disappearance raised questions about the veracity of both defendants. Although Bondsman testified that she relied on Girlfriend’s telling her, “I will make sure that all the bills get paid,” she also stated that she “would have incurred a lot of expenses regardless because [her] obligation to [the court] is to find [Accused].” Additionally, Girlfriend’s oral statements regarding payment of the bounty hunter costs were superfluous insofar as she was already bound under the terms of the contract to pay for the bounty hunter fees and expenses. See Anglin Eng’g Co. v. J.E. Barry Co., Inc., 912 S.W.2d 633, 639 (Mo.App.1995) (fraud not shown where oral promise to pay was superfluous because there was already contractual obligation to pay).

Inasmuch as Girlfriend was already bound to pay the costs under the contract, and Bondsman would have incurred the costs under her obligations to the court, Bondsman failed to establish she materially relied on Girlfriend’s oral promises to pay in incurring bounty hunter costs.

Because Bondsman did not establish the essential element of reliance needed to support her fraud claims, the trial court erred in overruling Girlfriend’s motion for judgment notwithstanding the verdict on the fraud claims. The portion of the judgment awarding damages for fraud is reversed.

Given this Court’s conclusion that Bondsman failed to make a submissible case for fraud, Girlfriend’s points alleging that the trial court erred in submitting two of the fraud instructions to the jury are also meritorious, but do not require further discussion.

IV. Did the trial court err in awarding attorney fees?

Both parties argue the trial court erred in awarding attorney fees. The parties agree that attorney fees were payable under paragraph 2 of the bond contract, but disagree as to how the fees should have been calculated.

In relevant part, paragraph 2 of the bond contract states:

[Girlfriend agrees] [t]o indemnify [Bondsman] against all ... attorney fees ... which [Bondsman] may sustain or incur in making such bond, prosecuting or defending any action brought in connection therewith, and enforcing any of the agreements herein contained, and specifically in enforcing any collateral or indemnifying agreement as well as any expense in locating [Accused] and producing him in Court. If upon failure of the Parties to comply with any of the terms or conditions of this agreement and should it be necessary for [Bondsman] to refer this agreement to an Attorney for collection, the Parties agree to pay an attorney fee in the amount of 33 1/2 % whether or not such action proceeds to judgement.

The trial court found that Bondsman was “entitled under the terms of the bail-bond/indemnity contract to recover her expenses plus attorney fees in the amount of 33.5 [percent] of the total judgment received on the contract claim.” It ordered Girlfriend to pay $48,380.70 as attorney fees on the $144,420 contract damages award. The trial court expressly found that Bondsman was “not entitled to any recovery of fees calculated at an hourly rate.”

Girlfriend asserts that the trial court erred in awarding attorney fees because it did not credit her for the $58,500 that she paid under the contract before Bondsman hired an attorney. She argues the contract is ambiguous as to how attorney fees are to be calculated where, as here, there has been a “set-off” for monies paid under the contract separate from the legal action. She asserts that the trial court correctly used the 33.5 percent calculation, but should have applied it only to the monies that Bondsman collected with the assistance of an attorney.

Bondsman contends that the contract is not ambiguous regarding attorney fees when the purpose of the contract as a whole — to ensure that she is made whole in the event of breach — is considered. She asserts that the trial court erred in using the 33.5 percent calculation because her attorney fees were payable under the first sentence of paragraph 2, which permitted recovery of “all” attorney fees for prosecuting and defending the bond contract.

The determination of attorney fees is within the sound discretion of the trial court and should not be reversed unless the award is arbitrarily arrived at or is so unreasonable as to indicate indifference and lack of proper judicial consideration. State ex rel. Laszewski v. R.L. Persons Const., Inc., 136 S.W.3d 863, 873 (Mo.App.2004). Where a party’s claim to attorney fees is based upon a contract the court must adhere to the terms of the contract and may not go beyond it. Harris v. Union Elec. Co., 766 S.W.2d 80, 89 (Mo. banc 1989). The purpose of contract construction is to ascertain the intent of the parties and to give effect to that intent, which is determined based on the contract alone unless the contract is ambiguous. J.E. Hathman, Inc. v. Sigma Alpha Epsilon Club, 491 S.W.2d 261, 264 (Mo. banc 1973).

A contract is ambiguous if its terms are susceptible of more than one meaning so that reasonable persons may fairly and honestly differ in their construction of the terms. Eisenberg v. Redd, 38 S.W.3d 409, 411 (Mo. banc 2001). Where a contract is fairly open to two or more interpretations, it will be construed against the party who prepared the contract. Graue v. Mo. Prop. Ins. Placement Facility, 847 S.W.2d 779, 785 (Mo. banc 1993).

The attorney fee language in paragraph 2 is ambiguous. This case could be considered under the “any action” language of the first sentence or it could be treated as a “collection” action under the second sentence insofar as Bondsman is using this case to collect the monies owed under the contract. Because paragraph 2 is ambiguous as to how attorney-fees should be calculated, the trial court did not abuse its discretion in construing paragraph 2 against Bondsman, who drafted the contract, and awarding her attorney fees based on 33.5 percent of her contract damages. Before the trial court calculated the attorney fees, however, it should have credited Girlfriend for the $58,500 that she paid Bondsman before Bondsman hired an attorney. That sum was not collected with the assistance of an attorney and should not have been considered in calculating the attorney fees owed.

Attorney fees should have been calculated as 33.5 percent of the $85,920 contract damages that Bondsman collected with the assistance of an attorney, resulting in an award of $28,783.20 for attorney fees. This Court, pursuant to Rule 84.14, enters the judgment the trial court ought to have given and modifies the judgment to order Girlfriend to pay Bondsman $28,783.20 for attorney fees.

This Court finds no error as to the other issues raised by the parties and gives them only cursory discussion.

V. Did the trial court err in sustaining the closing argument objections?

Girlfriend alleges that the trial court erred in repeatedly sustaining Bondsman’s objections to Girlfriend’s closing arguments regarding the $25,000 balance due on the bond premium. She argues that the trial court erred in informing the jury that she owed the balance as a matter of law, and she asserts that whether she owed the balance was a disputed fact for the jury to determine.

Generally, the trial court’s rulings on closing arguments are reviewed for abuse of discretion. Nelson v. Waxman, 9 S.W.3d 601, 606 (Mo. banc 2000). When defendants are jointly and severally liable on a contract, each is individually liable for the entire amount of the plaintiffs damages. Cohn v. Dwyer, 959 S.W.2d 839, 845-46 (Mo.App.1997).

At the commencement of the trial, the jury was read established facts, without objection, indicating that Girlfriend and Accused were liable on the bail bond contract. The only thing left for the jury to determine on the contract claim was the amount of contract damages owed by both defendants together, not individually. Considering that each defendant was liable on the contract, and thereby responsible for the entire amount of Bondsman’s damages under the contract, the trial court did not err in sustaining Bondsman’s objections.

Girlfriend further argues that the trial court erred during closing by giving the jury a verbal instruction that it was the court’s job to determine damages. This argument is without merit because the judge’s comments were merely a ruling in response to an objection, and the requirement that jury instructions be in writing has no application to the necessary and proper rulings the court makes on objections to arguments. O’Donnell v. St. Louis Pub. Serv. Co., 246 S.W.2d 539, 545 (Mo.App.1952).

VI. Should the withdrawal instruction have been submitted?

Girlfriend alleges that the trial court erred in refusing to submit her withdrawal instruction in that it would have “eliminated the false issue of bounty hunter fees not actually paid or incurred” by Bondsman. Whether to give a withdrawal instruction is a matter within the discretion of the trial court. Anglim v. Mo. Pac. R.R. Co., 832 S.W.2d 298, 308 (Mo. banc 1992). A withdrawal instruction may be given when evidence on an issue has been received, but there is inadequate proof given for final submission of the issue to the jury. Arnold v. Ingersoll-Rand Co., 908 S.W.2d 757, 764 (Mo.App.1995).

Girlfriend argues that while Bondsman showed evidence of expenses related to bounty hunters, she failed to show she paid any bounty hunter fees. Although Bondsman admitted that no bounty hunters were paid a fee for capturing Accused, evidence was presented regarding costs associated with the bounty hunters listed in Girlfriend’s withdrawal instruction. The record shows that the terms “fees” and “expenses” were intermingled at trial, such that an instruction telling the jury to not consider bounty hunter fees could have misled them also not to consider bounty hunter expenses. There was sufficient evidence presented from which the jury could decide that Bondsman suffered damages under the bond contract due to hiring the bounty hunters listed in Girlfriend’s withdrawal instruction. Girlfriend has failed to show that the trial court abused its discretion in refusing to instruct the jury not to consider the evidence related to these bounty hunters. This Court finds no error.

VII. Did the trial court err in awarding a “set-off”?

Bondsman argues in her cross-appeal that the trial court erred in giving Girlfriend a set-off of $58,500-against the contract damages award for monies Girlfriend had previously paid Bondsman under the contract. In reviewing the trial court’s decision, this Court is primarily concerned with the correctness of the trial court’s result, not the route taken by the trial court to reach that result. Business Men’s Assurance Co. of Am. v. Graham, 984 S.W.2d 501, 506 (Mo. banc 1999). The trial court’s judgment as to the $58,500 will be affirmed under any reasonable theory supported by the evidence, even if the reasons advanced by the trial court are wrong or insufficient. Id.

The goal of awarding damages is to compensate a party for a legally recognized loss, but although a party should be fully compensated for its loss, it should not recover a windfall. Ameristar Jet Charter, Inc. v. Dodson Int’l Parts, Inc., 155 S.W.3d 50, 54 (Mo. banc 2005). As such, the trial court did not err in crediting Girlfriend for the $58,500 that Bondsman admitted she had already paid under the contract. Finding that the trial court did not err on these grounds, this Court need not address the parties’ arguments challenging the method in which this issue was presented in the second trial.

VIII. Should the cost of the transcript have been awarded?

Bondsman argues that the trial court erred in failing to award her the cost of the transcript for the first appeal. Awarding costs and expenses is within the sound discretion of the trial court and should not be reversed absent a showing that the trial court abused its discretion. See Clancy v. Herman C.G. Luyties Realty Co., 321 Mo. 282, 10 S.W.2d 914, 915 (Mo.1928). Where a contract provides for the payment of expenses incurred in the enforcement, of a contract provision, the trial court errs if it fails to award expenses to the prevailing party. Luck “E” Strike Corp. v. First State Bank of Purdy, 75 S.W.3d 828, 835 (Mo.App.2002). The trial court did not fail to award expenses to Bondsman as required under the contract, and Bondsman has failed to show that the cost of the transcript was not included in the more than $18,000 costs and expenses the trial court awarded. The trial court did not err in failing to specifically award the cost of the transcript.

IX. Conclusion

The judgment as to the contract claim is affirmed as modified. The judgment as to the fraud claim is reversed in total, as Bondsman failed to make a submissible case for fraud. In all other respects, the trial court’s judgment is affirmed.

All concur.

      . Defendant Heartfelt defaulted on the first petition and is not a party to this appeal.

      . [$144,420 (damages) + $66,509.92 (fees, expenses, costs) ]-$58,500 ("set-off” credit) = $152,429.92 (both defendants are jointly and severally liable for this sum).

      . $28,900 (actual damages) + $146,000 (punitive damages) = $174,900 (only Girlfriend is liable for this sum).

      . Neither party raises the issue of inconsistent theories, but this issue was the focus of the court of appeals opinion.

      . The nine essential elements are: (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker’s knowledge of its falsity, or ignorance of its truth; (5) the speaker's intent that it should be acted on by the person and in the manner reasonably contemplated; (6) the hearer’s ignorance of the falsity of the representation; (7) the hearer’s reliance on the representation being true; (8) the hearer’s right to rely thereon; and (9) the hearer’s consequent and proximately caused injury. Heberer v. Shell Oil Co., 744 S.W.2d 441, 443 (Mo. banc 1988).

      . After Accused absconded, Bondsman demanded $58,500 from Girlfriend, and Girlfriend wired Bondsman that money. Girlfriend alleges that Bondsman did not show that this money was collected because of failure to comply with the contract terms or necessitated the assistance of an attorney. This sum is discussed in greater detail in the disposition of Bondsman’s cross-appeal issues.

      . [$144,420 total contract damages] — [$58,-500 paid prior to action] = $85,920.


text:
    In the Matter of the Care and Treatment of Albert BERNAT, Appellant, v. STATE of Missouri, Respondent.
    No. SC 86595.
    Supreme Court of Missouri, En Banc.
    July 12, 2005.
    Emmett D. Queener, Office of the Public Defender, Columbia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Trevor S. Bossert, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
   PER CURIAM.

Albert Bernat raped an eighteen-year-old girl. He pleaded guilty and was sent to prison. He was paroled. His parole was revoked after he allegedly sexually assaulted another woman, although he was acquitted of raping her. He was returned to prison. Prior to his final release, the state sought to commit him to secure confinement as a sexually violent predator. A jury concluded Bernat was a sexually violent predator. Bernat appeals. The case was transferred to this Court by the court of appeals. Because jurisdiction of this appeal is in the court of appeals, the case is retransferred.

In each case this Court must determine its jurisdiction before reaching the merits of an appeal. The state constitution limits this Court’s “exclusive appellate jurisdiction” to the kinds of cases set out in article V, section 3. State v. Olvera, 969 S.W.2d 715 (Mo. banc 1998). Such jurisdiction includes cases involving the validity of a statute.

In this appeal, Bernat’s only issue suggesting that jurisdiction is in this Court is that the state should have been prevented from calling him as a witness or using his right to remain silent against him as this violated his constitutional right to equal protection of the law. Bernat was not called as a witness, but the state encouraged the jury to draw an adverse inference from his failure to testify.

Bernat does not raise a direct claim that the pertinent sexually violent predator statutes are invalid. Rather, he notes that section 632.335.2(4), RSMo 2000, gives the right to remain silent to those subject to the general involuntary civil commitment law. He urges this same right be extended to those subject to the sexually violent predator statutes. His constitutional claim is that the court failed to extend this right — not that the statute is invalid for failing to include this right. Such a claim does not involve the validity of a statute.

As this case does not involve the validity of a statute, the court of appeals has jurisdiction of this appeal. The case is retrans-ferred. Mo. Const, article V, section 11.

All concur.

      . Sections 632.480 to 632.513, RSMo Supp. 2004.


text:
    Sandra MULIKEY, Plaintiff/Appellant, v. Diogenes JONES, Defendant/Respondent.
    No. ED 84599.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 19, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 28, 2005.
    Spencer E. Farris, St. Louis, MO, for appellant.
    Denis C. Burns, St. Louis, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN and MARY K. HOFF, JJ.
   ORDER

PER CURIAM.

The plaintiff, Sandra Mulikey, appeals the trial court’s judgment entered upon a jury verdict for the defendant, Diogenes Jones, in this personal-injury action arising from a motor-vehicle collision. The plaintiff alleges the trial court erred in denying her motion for directed verdict on the issue of liability, and in excluding evidence that she did not have health insurance.

We have reviewed the parties briefs and the record on appeal and find no error. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties, however, have been furnished with a memorandum, for their information only, setting forth the reasons for this order.

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


text:
    Michael ATHANASIADES, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85428.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 17, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 28, 2005.
    Michael Athanasiades, Mineral Point, pro se.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Stephen D. Hawke, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN and MARY K. HOFF, JJ.
   ORDER

PER CURIAM.

Michael Athanasiades appeals from the circuit court’s dismissal of his Rule 74.06(d) motion to set aside a judgment in a prior Rule 29.15 proceeding. We have reviewed the parties’ briefs and the record on appeal, and find no error. An opinion reciting the detañed facts and restating the principles of law would have no prece-dential value.

We affirm the judgment pursuant to Rule 84.16(b)(5).


text:
    STATE of Missouri, Respondent, v Christopher WHITE, Appellant.
    No. ED 84232.
    Missouri Court of Appeals, Eastern District, Division One.
    May 31, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 25, 2005.
    Gwenda R. Robinson, St. Louis, MO, for appellant.
    Deborah Daniels, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Defendant Christopher White (‘White”) appeals from the trial court’s judgment entered upon his convictions by a jury of one count of murder in the first degree, in violation of Section 565.020, RSMo 2000, one count of assault in the first degree, in violation of Section 565.050, RSMo 2000, and two counts of armed criminal action, in violation of Section 571.015, RSMo 2000. White was sentenced to life imprisonment without the possibhity of parole on the murder conviction and a concurrent sentence of life imprisonment for the corresponding armed criminal action count, fifteen years imprisonment for assault in the first degree to run consecutive to the previous sentences, and life imprisonment for the corresponding armed criminal action count to run concurrent to the sentence for assault and consecutive to all other sentences.

On appeal, White argues the trial court: (1) lacked jurisdiction to enter judgment and sentence him because White was entitled to be discharged under the Uniform Mandatory Disposition of Detainers Law (“UMDDL”); (2) erred in overruling his objections to self-defense instructions number 11 and 18; and (3) erred and abused its discretion in sustaining the State’s objections to the cross-examination of two of their witnesses.

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. An extended opinion reciting the detailed facts and restating the principles of law would have no prece-dential value. 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 30.25(b).

      . White’s motion for leave to supplement the record on appeal is granted.


text:
    STATE of Missouri, Respondent, v. Albert L. WILLIS, Jr., Appellant.
    No. WD 63767.
    Missouri Court of Appeals, Western District.
    May 31, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 2, 2005.
    Andrew C. Webb, Sedalia, MO, for appellant.
    Deborah Daniels, Jefferson City, MO, for respondent.
    Before BRECKENRIDGE, P.J., LOWENSTEIN and HARDWICK, JJ.
   ORDER

PER CURIAM.

Albert L. Willis appeals his conviction for two counts of possession of a chemical with the intent to create a controlled substance, Section 195.420, and one count of driving with while suspended, Section 303.370. Willis raises six points on appeal, three of which challenge the trial court’s denial of his motion to suppress evidence and three that claim there was insufficient evidence to sustain his conviction. Affirmed. Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Joshua S. DUNKIN, Appellant.
    No. WD 63749.
    Missouri Court of Appeals, Western District.
    June 7, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 2, 2005.
    William Edgar Shull, Jr., Liberty, MO, appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel N. McPherson, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before JAMES M. SMART, JR., P.J., RONALD R. HOLLIGER, and LISA WHITE HARDWICK, JJ.
   Order

PER CURIAM.

Joshua Dunkin was convicted by a jury of first-degree burglary, second-degree assault, and armed criminal action. Having carefully considered the contentions on appeal, we find no grounds for reversing the decision. Publication of a formal opinion would not serve jurisprudential purposes or add to understanding of existing law. The judgment is affirmed. Rule 30.25(b).


author: JOSEPH M. ELLIS, Judge.

text:
    Michael A. DAVIS, Appellant Pro Se, v. Gary B. KEMPKER, Respondent.
    No. WD 64237.
    Missouri Court of Appeals, Western District.
    June 21, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 2, 2005.

      Michael A. Davis, Cameron, pro se.
    Matthew Briesacher, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before ROBERT G. ULRICH, Presiding Judge, JAMES M. SMART, JR., Judge and JOSEPH M. ELLIS, Judge.
   JOSEPH M. ELLIS, Judge.

Michael Davis is a prisoner in the Missouri Department of Corrections (MDOC). Following his conviction for offenses occurring in 1989, Davis began his incarceration in June 1991. The MDOC staff initially classified him as a level 5 offender, assigning him to a level 5 correctional center. In January and February of 1999, the MDOC staff recommended Davis’ transfer from a level 5 correctional center to a level 4 facility and reclassified Davis’ custody score to a level 4. Pursuant to this reclassification, MDOC transferred Davis from a level 5 institution to a level 4 institution, Moberly Correctional Center.

On January 1, 2003, MDOC revised its classification policies. Under the new classification system, Davis’ classification score was reclassified from a level 4 to 5. However, MDOC created a “Reclassification Grandfather Clause,” allowing offenders with “exceptional institutional adjustment” the opportunity to be placed at a correctional center consistent with the offender’s previous classification. Under this grandfather provision, Davis is eligible to be reclassified from a level 5 to a level 4 offender. The new classification policies also reclassified Moberly Correctional Center from a level 4 correctional center to a level 3.

Davis filed a “Petition to Proceed In Forma Pauperis” pursuant to § 506.366 on January 23, 2004, with the Circuit Court of Randolph County. On February 4, 2004, the circuit court granted this petition, granting him leave to proceed in forma pauperis, according to the provisions of the Prisoner Litigation Reform Act (PLRA).

On February 20, 2004, Davis filed a “Petition for Declaratory and Injunctive Relief,” seeking a declaration that the revised MDOC classification policies were unconstitutional and requesting injunctive relief to prevent MDOC from applying the new classification provisions to Davis. On April 13, 2004, Gary Kempker (Respondent), Director of MDOC, filed his answer to Davis’ petition. In his answer, Respondent claimed, among other affirmative defenses, that venue was not proper in the Circuit Court of Randolph County and that Davis failed to state a claim upon which relief may be granted. Respondent, contemporaneously with his answer, filed a “Motion for Judgment on the Pleadings,” asking the court to dismiss the case for failure to state a claim upon which relief can be granted pursuant to Rule 55.27(a).

On April 21, 2004, the circuit court granted Respondent’s motion for judgment on the pleadings. Davis filed his “Petitioner’s Motion For Relief From Judgment or Order and Petitioner’s Motion for Change of Venue” on May 3, 2004, which the court denied on May 4, 2004. In his motion, Davis asked the court to set aside its judgment or order, and he requested the court enter an order transferring the cause to the Circuit Court of Cole County. He stated that, in response to Respondent’s motion to dismiss, he “must agree with the respondent that Venue is not proper with this Court.’ ” Davis appeals.

Initially, we must address Respondent’s claim that this court lacks jurisdiction over this appeal. Respondent claims that Davis failed to timely file his notice of appeal, and, therefore, this Court lacks jurisdiction. For the following reasons, we determine that this Court has jurisdiction to hear this cause.

On April 21, 2004, the Circuit Court of Randolph County denied Davis’ motion for declaratory and injunctive relief. Davis filed a timely motion for relief from the judgment on May 3, 2004, which the court denied on May 4, 2004. The circuit court date stamped Davis’ notice of appeal as received on June 1, 2004, and it formally filed his notice of appeal on June 3, 2004.

Pursuant to Rule 81.04(a), a notice of appeal must be filed no later than ten days after the judgment or order appealed from becomes final. Rule 81.05(a)(1) provides that, if no timely authorized after-trial motion is filed, a judgment or order becomes final thirty days after its entry. If, as in the present case, a party files a timely and authorized after-trial motion, the judgment becomes final at the date of the last motion’s ruling or thirty days after the entry of judgment, whichever date is later. Rule 81.05(a)(2)(B).

Respondent argues that Davis’ notice of appeal was due no later than May 21, 2004, thirty days after the circuit court’s entry of judgment, pursuant to Rule 81.05(a)(2)(B). Respondent claims that Davis filed his notice of appeal on June 3, 2004, and, therefore, this Court lacks jurisdiction. Davis points out that he filed a motion for relief from the judgment on May 3, 2004. The circuit court denied this motion on May 4, 2004. Rule 81.05(a)(2)(B) states that the judgment becomes final on “the date of ruling of the last motion to be ruled or thirty days after the entry of judgment, whichever is later.” (emphasis added). The date of the ruling of the last motion in the present case is May 4, 2004, the date the circuit court denied Davis’ motion for relief from the judgment. Applying Rule 81.05(a)(2)(B), we compare the “date of ruling of the last motion,” here May 4, 2004, with the date “thirty days after the entry of judgment,” here May 21, 2004, and use “whichever is later” as the date “the judgment becomes final.” May 21, 2004 is the later date, so the judgment became final on May 21, 2004.

Rule 81.04(a) specifies that “the notice of appeal shall be filed not later than ten days after the judgment or order appealed from becomes final.” Applying this rule, the notice of appeal was required to have been filed by May 31, 2004. However, as Davis correctly argues, Rule 44.01(a) states the rule for computing the time prescribed by the Missouri Court Rules, including a description of the computation of the last day of the designated time period:

The last day of the period so computed is to be included, unless it is a Saturday, Sunday, or a legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday nor a legal holiday.

We take judicial notice of the fact that Monday, May 31, 2004, was a legal holiday, Memorial Day, which falls on the last Monday in the month of May.

Applying Rule 44.01(a), the last day of the prescribed time period fell on a legal holiday, so the time period for Davis to file his notice of appeal ran until the next day, Tuesday, June 1, 2004. Davis mailed his notice of appeal and his motion to proceed on appeal in forma pauperis on May 27, 2004. The record reflects that the Circuit Court of Randolph County received Davis’ notice of appeal on June 1, 2004, as evidenced by a date stamp on his notice of appeal from the court clerk. Davis’ motion to proceed informa pauperis was also received by the Circuit Court on June 1, 2004.

While the court received Davis’ notice of appeal on June 1, 2004, the last day for Davis to timely file his notice of appeal, it did not formally file the notice of appeal until June 3, 2004, after the court granted his motion to proceed in forma pauperis.

Davis argues that he timely presented his notice of appeal to the circuit court for filing, because the circuit court received his notice of appeal the last day his notice could be timely filed. As the Missouri Supreme Court explained in Labrier v. Anheuser Ford, Inc.:

The filing is the actual delivery of the paper to the clerk without regard to any action that he may take thereon. Thus, it may be said to be the general rule that the deposit or lodgment of the instrument for filing, in the proper office and its acceptance for that purpose by the proper officer constitutes a filing within the meaning of the law. A paper or document is said to be filed when it is delivered to the proper officer and lodged by him in his office.

621 S.W.2d 51, 54 (Mo. banc 1981) (internal quotations and citations omitted). However, Rule 81.04(c) expressly provides that a trial court clerk shall not accept or file a notice of appeal unless one of three conditions is met: (1) the docket fee is deposited with the trial court clerk; “(2) [t]he appellant is not required by law to pay the docket fee; or (3)[a]n order permitting the appellant to prosecute the appeal informa pauperis accompanies the notice of appeal.” In this case, Davis did not pay the docket fee, a docket fee was required, and he did not have an order from the court permitting him to proceed in forma pau-peris as of June 1, 2004. The court received his petition to proceed in forma pauperis on June 1, 2004, the last day for him to timely file his notice of appeal, but the court order granting his petition to proceed in forma pauperis is dated June 3, 2004, two days after the specified time limit to file a notice of appeal.

Although a notice of appeal typically will not be considered filed until the docket fees are paid, an exception applies “when an appellant has done ‘all he could do’ by timely tendering his notice of appeal and request to file as a poor person.’” State v. Lawrence, 139 S.W.3d 573, 575 (Mo.App. E.D.2004) (quoting State v. Mitchell, 128 S.W.3d 518, 520 (Mo.App.2003)).

In such instances, the timeliness of the notice of appeal will not be defeated simply because the court does not grant the informa pauperis motion within the time for filing the appeal. In these circumstances, the granting of leave to appeal informa pauperis causes the filing date for the notice of appeal to relate back to the date on which it was first tendered for filing.

Id. (internal citations omitted) (italics added).

Since the circuit court received Davis’ notice of appeal and his petition to proceed in forma pauperis within the prescribed time period, Davis had done all that he could do to comply with Rule 81.04. The order of the trial court granting Davis leave to proceed in forma pauperis dated June 3, 2004, and the clerk’s filing of the notice of appeal on that date relate back to the date that the notice of appeal was tendered to the circuit court, June 1, 2004, the last day for Davis to timely file his notice of appeal. Therefore, Davis’ notice of appeal was timely filed. Accordingly, this court has jurisdiction over Davis’ appeal.

In his first point on appeal, Davis challenges the circuit court’s denial of his motion for change of venue. Davis’ claims in this regard are wholly without merit. In response to the court’s order granting Respondent’s motion for judgment on the pleadings, Davis filed a “Petitioner’s Motion for Relief from Judgment or Order and Petitioner’s Motion for Change of Venue.” In that motion, Davis requested that the court transfer his cause to the Cole County Circuit Court. The circuit court summarily denied this motion.

Davis filed the petition for declaratory and injunctive relief, and, as the petitioner, he chose to file the action in Randolph County. Under Missouri law, venue is “a mere personal privilege which may be waived by the party entitled to assert it.” Bellon Wrecking & Salvage Co. v. David Orf, Inc., 983 S.W.2d 541, 547 (Mo.App. E.D.1998) (quoting Osage Homestead, Inc. v. City of New Florence, 713 S.W.2d 51, 52 (Mo.App. E.D.1986)). Moreover, venue must be challenged at the earliest opportunity, and “[a]ny action related to the merits of the cause will waive objection to venue unless a prior challenge has been filed.” State ex rel. Uptergrove v. Russell, 871 S.W.2d 27, 29 (Mo.App. W.D.1993). In other words, “[v]enue may be waived when a defendant makes no motion or pleading on the issues but otherwise subjects himself to the jurisdiction of the court.” In re Marriage of Ottmann, 764 S.W.2d 153, 154 (Mo.App. W.D.1989).

In the case sub judice, Davis chose to bring his action in Randolph County, subjecting himself to the jurisdiction of the court. Respondent filed his Answer, in which he objected to venue, as well as a Motion for Judgment on the Pleadings. Davis made no claim regarding the impropriety of venue. Some two months after Davis filed his Petition, the trial court granted Respondent’s Motion for Judgment on the Pleadings. It was only after the trial court entered judgment against him that Davis complained about erroneous venue. Under these circumstances, Davis waived any objection to venue that he might have otherwise had. Point I is denied.

In his second point, Davis claims the circuit court erred in granting Respondent’s motion for judgment on the pleadings. In summary, Davis alleges that Respondent violated constitutional prohibitions against the enactment of ex post facto laws in the creation and application of a revised Classification Users Manual, which resulted in the reclassification of his offender level and transfer to a high security center. He asserts that the classification revisions impose an increased punishment, making them collateral consequences of his conviction more severe than at the time of the commission of the crimes and the time of his conviction, pursuant to § 561.016 R.S.Mo. (1986).

Both the United States and Missouri constitutions forbid ex post facto laws. Fults v. Missouri Bd. of Prob. & Parole, 857 S.W.2d 388, 390 (Mo.App. W.D.1993) (citing U.S. Const. art. I, § 9, cl. 3, and art. I, § 10, cl. 1; Mo. Const, art I, § 13). “Ex post facto laws are laws which are retrospective and which disadvantage the affected offender ‘by altering the definition of criminal conduct or increasing the punishment for the crime [.]’ ” Miller v. Mitchell, 25 S.W.3d 658, 663 (Mo.App. W.D.2000) (quoting Lynce v. Mathis, 519 U.S. 433, 441, 117 S.Ct. 891, 896, 137 L.Ed.2d 63 (1997)). The ex post facto prohibitions apply to the legislature, but may also be applied to “an agency’s duly-promulgated substantive regulations, as they have the force and effect of laws.” Id.

Unlike an agency’s rules and regulations, however, an agency’s policies or procedures do not constitute enacted laws. Rather, an agency’s policies and procedures are “statements of enforcement policy.” Thus, “[i]f the law is unchanged and no legislative regulations are promulgated, a mere change in enforcement methods, priorities, or policies, written or unwritten — a change within the scope of the executive branch’s discretion in enforcing the laws passed by [the legislature] — does not activate the prohibition against ex post facto laws.” When “all that has changed is the vigor with which criminal laws are being enforced,” as opposed to the criminal laws themselves, the notice protection afforded by the ex post facto clauses is not impinged.

Id. (quoting Prater v. U.S. Parole Comm’n, 802 F.2d 948, 954 (7th Cir.1986)). If the change is merely procedural and the punishment is not increased, there is no infringement on the prohibition against ex post facto laws. State v. Brown, 867 S.W.2d 530, 538 (Mo.App. W.D.1993).

In this case, the Department of Corrections revisions to its offender classification manual are not legislation or agency regulation, and the ex post facto clauses are not impinged. The 2003 revisions to the classification policies do not impose a change to the criminal laws themselves, only a change in the “methods, priorities, or policies” of MDOC’s classification system, altering the way MDOC classifies an offender, and, based upon this classification, within which institution an offender may be housed.

Davis claims that MDOC should not be permitted, under the new classification system, to transfer him from Moberly Correctional Center to a high security institution. A prisoner’s administrative transfer from one penal institution to another penal institution does not constitute an increase in his level of punishment. “An inmate enjoys no constitutional right to remain in a particular institution and generally is not entitled to due process protections prior to an administrative transfer.” Cooper v. State, 818 S.W.2d 653, 655 (Mo.App. W.D.1991). “Once a conviction has extinguished a person’s interest in remaining free from the custody of the state, the state has the authority to place that person in any institution that will satisfy the state’s penological objectives.” Dudley v. Shaver, 770 S.W.2d 712, 714 (Mo.App. W.D.1989) (emphasis added). Because Davis’ conviction resulted in his custody in a state penal institution, the state has the authority to place him in any institution. See Id. We also note that, even under the revised manual’s grandfather clause, Davis, as a level 4 offender, lacks eligibility to be housed at Moberly Correctional Center, a level 3 correctional center, under the revised classification system. The trial court did not error in finding the issues in favor of Respondent on these claims. Point II is denied.

In his third point, Davis claims the circuit court erred in its application of the Prisoner Litigation Reform Act (PLRA), requiring him to pay the full filing fee and all court costs when bringing this civil action. He further asserts that the enactment of the PLRA impinges upon the ex post facto clauses of the United States and Missouri constitutions, alleging that the requirement that he pay the full filing fee and court costs imposes additional collateral consequences of conviction in violation of § 561.016. At the outset of this appeal, Davis filed a motion to proceed on appeal in forma pauperis pursuant to § 506.366. The court granted his motion, ordering that funds be withdrawn from his correctional center account on a monthly basis until the filing fee is paid in full, pursuant to the PLRA.

In 1997, Missouri enacted the Prisoner Litigation Reform Act, §§ 506.360 to 506.390. Section 506.366 provides:

An offender seeking to bring a civil action or to appeal a judgment in a civil action without the prepayment of fees or security due to indigency shall submit a request to the court to proceed without the prepayment of fees. The request shall include a certified copy of the offender’s correctional center account statement, which shall be provided by the department of corrections for the six-month period immediately preceding the filing of the petition or notice of appeal.

(emphasis added). By its plain language, the PLRA applies to civil actions or to an appeal of judgment in a civil action. Sections 506.369 and 506.372 provide for the partial payment of court costs in monthly installments until all the fees are paid in full.

The PLRA was not in effect at the time the crimes were committed, nor at the time he was sentenced. However, as discussed in the previous point, an ex post facto violation does not occur if a change in law is procedural in nature and the punishment is not increased. Brown, 867 S.W.2d at 538. As the United States Supreme Court has explained, “the inhibition upon the passage of ex post facto laws does not give a criminal a right to be tried, in all respects, by the law in force when the crime charged was committed.” Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344, 356 (1977) (internal quotations omitted).

In State ex rel. Nixon v. Taylor, 25 S.W.3d 566 (Mo.App. W.D.2000), a prisoner claimed that the enactment of the Missouri Incarceration Reimbursement Act (MIRA) violated the prohibition against the imposition of ex post facto laws in requiring incarcerated individuals to reimburse the state for the expense of incarceration. Id. at 567. At the time of the prisoner’s offenses, MIRA was not in effect. Id. This Court noted that MIRA did not focus on the prisoner’s past crimes, nor was it enacted to provide additional punishment. Id. at 568. In addition, a statute does not impose ex post facto penalties unless enacted for a punitive purpose. Id. “If the law in question is focused on the past crime, then it is likely intended as a punishment, while if the focus is upon the benefit from which the person is barred, it is not, even though the impact on the individual may be harsh.” Id. (internal quotations omitted).

In the present case, the PLRA does not present an ex post facto violation. Like MIRA, the PLRA does not focus on a past crime, nor did the legislature enact the changes for a punitive purpose. The PLRA relates to the nonpunitive objective of requiring prisoners to cover the court costs associated with their civil actions or appeals from judgments in civil actions. Here, “[t]he crime for which the present defendant was indicted, the punishment prescribed therefor, and the quantity or the degree of proof necessary to establish his guilt, all remained unaffected by the subsequent statute.” Dobbert, 432 U.S. at 294, 97 S.Ct. at 2298-99 (internal quotations omitted). The provisions of the PLRA are procedural in nature and do not increase a prisoner’s punishment and, therefore, do not violate the prohibition against ex post facto laws. See Wilson v. Yaklich, 148 F.3d 596, 606 (6th Cir.1998). Point III denied.

ON MOTION FOR REHEARING OR TRANSFER

An Order affirming the trial court’s judgment, with a memorandum explaining the reasons provided to the parties, was issued in this case on March 29, 2005. A Motion for Rehearing or, in the Alternative, Application for Transfer was timely filed. ' The Motion for Rehearing was denied, and the Application for Transfer to the Supreme Court was denied, on May 3, 2005. On the same date, however, the Court on its own motion withdrew the Order opinion of March 29, 2005, and the case was resubmitted to the same panel without additional briefing or argument. We did so to address Davis’ pending “Motion for Order Vacating Payment of Full Filing Fee and for Order Directing Reimbursement for All Excessive Filing Fees Paid.”

In the latter motion, Davis alleges that the circuit court improperly ordered him to pay the entire filing fee for both his initial “Petition for Declaratory and In-junctive Relief’ and this appeal. A review of the record reveals that the trial court initially granted Davis leave to proceed in forma pauperis pursuant to the provisions of the Prisoner Litigation Reform Act, § 506.360 el seq., and ordered Davis to pay an initial partial filing fee of $9.25. Thereafter, the trial court entered a second order as to the fees on appeal in which it declined to set an initial partial filing fee. Yet, in both instances, the court ordered that funds be withdrawn from Davis’s correctional center account, pursuant to the PLRA, and forwarded monthly until the entire filing fees were paid in full. Davis asserts that the PLRA does not require an indigent inmate to pay the full filing fee.

There is no question that the PLRA is applicable here. Section 506.366 provides that “[a]n offender seeking to bring a civil action or to appeal a judgment in a civil action without the prepayment of fees ... shall submit a request to the court to proceed without the prepayment of fees.” The request must include the inmate’s Department of Corrections (DOC) account statement for the six month period immediately preceding the filing of the petition or notice of appeal. Id. Section 506.369.1 states that if the court determines that an inmate who submits a request pursuant to § 506.366, supra, is unable to pay the full amount of court costs, the court shall assess a partial payment of the fee using one of two alternate formulas based on the figures contained in the inmate account statement. Finally, Section 506.372 provides that “[i]f the court has entered an order for payment of fees in installments pursuant to section 506.369, the offender shall make monthly payments to the department of corrections of twenty percent of the preceding month’s income credited to the offender’s account until the fees are paid in full.” The statute then provides that MDOC forward such payment for deposit in the general revenue fund until the fees are paid in full. Id.

Davis relies on State ex rel. Nixon v. Moore, 108 S.W.3d 813 (Mo.App. W.D.2003). In that case, inmate Moore argued that the trial court erred in ordering him to pay the full filing fee for his appeal. Id. at 820. The trial court had ordered Moore to pay an initial partial filing fee of $19.64 and, when that was paid, ordered him to pay the remaining balance of the filing fee. Id. This Court held that the trial court erred in ordering Moore to pay the remaining amount of the filing fee. Id. In doing so, the Court relied on the opening paragraph of § 506.369, which states: “If the court ... determines that an offender is unable to pay the full amount of court costs due with respect to a case, the court shall assess a partial payment....”

Unfortunately, the parties in Moore did not refer the court to § 506.372, immediately following § 506.369 on which the court relied. Section 506.372 specifically references § 506.369: “If the court has entered an order for payment of fees in installments pursuant to section 506.369, the offender shall make monthly payments to the department of corrections of twenty percent of the preceding month’s income credited to the offender’s account until the fees are paid in full.” (emphasis added.) When §§ 506.369 and 506.372 are read together, it becomes clear that the legislature was setting out a procedure whereby inmates who are not financially capable of paying the entire filing fee up front can make installment payments on the fee. However, the inmate is required to keep making payments until the entire fee is paid. To the extent Moore can be read as holding otherwise, it should no longer be followed.

For the foregoing reasons, Davis’ motion asking for an order vacating full payment of the filing fee and directing that he be reimbursed for the payment of excessive fees is denied.

The judgment of the trial court is affirmed.

All concur.

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

      . Appellate courts take judicial notice of calendars, legal holidays, and dates on which a particular day of the week fell. State ex rel. Mo. Highway & Transp. Comm’n v. Overall, 73 S.W.3d 779, 782 (Mo.App. E.D.2002).


author: ROBERT G. ULRICH, Judge.

text:
    Gene GRAFTON, Appellant, v. CITY OF PLATTSBURG, Respondent.
    No. WD 64485.
    Missouri Court of Appeals, Western District.
    June 21, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 2, 2005.

      Gene Grafton, Plattsburg, MO, for Appellant Pro Se.
    Mark A. Hubbard, Platte City, MO, for Attorney for Respondent.
    Before EDWIN H. SMITH, C.J., HAROLD L. LOWENSTEIN and ROBERT G. ULRICH, JJ.
   ROBERT G. ULRICH, Judge.

Gene Grafton appeals the judgment of the Clinton County Circuit Court affirming a decision of the City of Plattsburg Board of Zoning Adjustment (“Board”). In his pro se appeal, Mr. Grafton alleges three errors in the decision of the Board to allow a salvaging operation to continue on specified lots within the city limits that had been zoned as residential. Mr. Grafton claims the trial court’s judgment was not supported by the evidence because (1) the Administrator lacks authority to change the Zoning Regulations; (2) no evidence was presented of ownership; and (3) Mr. Grafton was not allowed to introduce a warranty deed demonstrating ownership.

The appeal is dismissed.

Statement of Facts

In a letter dated October 30, 2003, the Zoning Administrator of the City of Platts-burg notified Mr. Grafton of decisions made regarding an ongoing zoning dispute. The letter informed Mr. Grafton that pursuant to Section XII of the City Zoning Regulations, a salvage operation that had existed for many years was allowed to continue on residential Lots 22, 32, 34, 39, and 41 of the original town of Plattsburg. The letter noted that the City was “unable to make a clear determination regarding the specifics of past salvage locations and the timing of such operations,” and thus the non-conforming use was allowed to continue.

On November 17, Mr. Grafton appealed the decision of the City Zoning Administrator to the Board. Mr. Grafton contended, inter alia, that the salvage operations had been illegally conducted and were thus improperly grandfathered as a non-conforming use. The Board heard Mr. Grafton’s appeal on January 15, 2004, at which time the appeal was denied.

On February 2, 2004, Mr. Grafton filed a petition for review in the Clinton County Circuit Court appealing the Board’s decision pursuant to section 89.110, RSMo 2000. The trial court held a hearing on July 13, 2004, and on August 16, 2004, entered judgment denying the appeal. This timely appeal followed. Mr. Grafton claims in three points that (1) the circuit court erred in finding that evidence supports the Board’s decision, (2) the circuit court’s judgment was not supported by the evidence because Mr. Gardner failed to produce evidence that he owned the three properties at issue, and (3) the court erred when it did not allow him to introduce as evidence a certified copy of a warranty deed.

Rule 84.04

Mr. Grafton’s first brief on appeal was stricken for failing to comply with Rule 84.04, and Mr. Grafton filed an amended brief. Though Mr. Grafton is a pro se litigant, he is still bound by the same procedural rules as a party represented by counsel, and he is entitled to no indulgences that a represented party would not be. State ex rel. Morgan v. Okoye, 141 S.W.3d 410, 411 (Mo.App. W.D.2004). “This principal is not grounded in a ‘lack of sympathy but rather it is necessitated by the requirement of judicial impartiality, judicial economy, and fairness to all parties.’ ” Id. (quoting Kline v. Casey’s Gen. Stores, Inc., 998 S.W.2d 140, 141 (Mo.App. S.D.1999)).

Mr. Grafton’s amended brief still fails to meet the standards required by Rule 84.04. Unless a party substantially complies with the requirements of the rule, the court risks speculating on facts and arguments or advocating on behalf of the party. Id. Rule 84.04(e) requires that the argument section “include a concise statement of the applicable standard of review for each claim of error” and that arguments “shall be limited to those errors included in the ‘Points Relied On.’ ” An argument section should discuss the points on appeal, and “show how the principles of law and the facts of the case interact.” Jenkins v. Manpower On Site at Proctor & Gamble, 106 S.W.3d 620, 624 (Mo.App. W.D.2003) (quoting Carroll v. AAA Bail Bonds, 6 S.W.3d 215, 218 (Mo.App. S.D.1999)).

Mr. Grafton’s arguments relate only marginally to the legal contentions voiced within his points on appeal. Instead his arguments attempt to present alternative evidence that was not considered by the Board, including his own observations and perceived motivations of the Board. Mr. Grafton cites to no legal precedent within his arguments, and he provides no support for his contentions. “It is the appellant’s obligation to cite appropriate and available precedent if [the appellant] expects to prevail.” Id. “If a party fails to support a contention with relevant authority or arguments beyond conclusions, the point is considered abandoned.” Cooper v. Bluff City Mobile Home Sales, Inc., 78 S.W.3d 157, 164 (Mo.App. S.D.2002).

Procedural Posture

Mr. Grafton’s three points on appeal contest the circuit court’s judgment and not the Board’s decision. An appellate court independently reviews the findings and conclusions of the Board itself, and not the judgment of the trial court. State ex. rel. Teefey v. Bd. of Zoning Adjustment of Kansas City, 24 S.W.3d 681, 684 (Mo. banc 2000). Review is limited in scope to determining “whether the Board’s action is supported by competent and substantial evidence upon the whole record or whether it is arbitrary, capricious, unreasonable, unlawful,-or in excess of its jurisdiction.” Id. (quoting Hutchens v. St. Louis County, 848 S.W.2d 616, 617 (Mo.App. E.D.1993)). Section 89.110, RSMo, authorizes the circuit court, when it deems appropriate, to “take , additional evidence ... which shall constitute a part of the proceedings upon which a determination of the court shall be made.” Mr. Grafton informs in his brief that the court conducted a hearing and that it declined to permit him to introduce as evidence a deed to property. Mr. Grafton’s third point claims the circuit court erred in not accepting evidence. A transcript of the hearing is not provided, however. Without a transcript of the hearing, the issue Mr. Grafton attempts to raise on appeal cannot be considered because the record is incomplete and the means for determining the accuracy of Mr. Grafton’s claim, and whether the circuit court breached its discretion in not permitting the introduction of evidence, is not determinable on appeal. The transcript of the hearing of the City of Platts-burg Board of Zoning Adjustment, however, which was provided, contains evidence that lots 22, 32, and 41 of the City of Plattsburg have been used as a depository for discarded objects in the operation of a salvage business for in excess of at least forty or fifty years, a time antecedent of the zoning ordinance pertaining to salvage operations within the city limits. Although the record provided appears to contain competent and substantial evidentiary support for the Board’s decision to deny Mr. Grafton’s appeal contesting the “grandfathering” of the salvage business on the stated properties, the appeal is dismissed for the reasons noted.

EDWIN H. SMITH, C.J. and LOWENSTEIN, J. concur.


text:
    STATE of Missouri, Respondent, v. Timothy A. DICKENS, Appellant.
    No. ED 84460.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 21, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 28, 2005.

      Gwenda A. Robinson, Assistant Public Defender, St. Louis, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Timothy Dickens (“Defendant”) appeals from the trial court’s judgment entered in the Circuit Court of the City of St. Louis upon his conviction by a jury of one count of sexual assault, two counts of forcible sodomy and one count of forcible rape. In his appeal, Defendant contends that the trial court erred when it: (1) overruled his motions for judgment of acquittal because the State failed to prove forcible compulsion with respect to the charges of forcible sodomy and forcible rape and lack of consent with respect to the charge of sexual assault; and (2) failed to make a sufficient inquiry after learning that a juror overheard a conversation regarding Defendant’s bad temper and past “problems.”

We have reviewed the briefs of the parties and the record on appeal and 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 precedential value. We have, however, provided a memorandum for the use of the parties only setting forth the reasons for our decision.

We affirm pursuant to Rule 30.25(b).