text:
    STATE of Missouri, Respondent, v. Somer E. PATTON, Appellant.
    No. 26222.
    Missouri Court of Appeals, Southern District, Division Two.
    Jan. 14, 2005.
    Motion for Rehearing and Transfer Denied Feb. 7, 2005.
    Application for Transfer Denied April 5, 2005.

      M. Shawn Askinosie, Springfield, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, for respondent.
   ROBERT S. BARNEY, Judge.

Following a bench trial, Appellant Somer E. Patton (“Defendant”) was convicted of the class D felony of Driving While Intoxicated, section 577.010. Defendant was sentenced to four years in the Missouri Department of Corrections; however, execution of the sentence was suspended and Defendant was placed on five years supervised probation. Defendant raises two points on appeal. She first avers the evidence was insufficient to support her conviction. Secondly, she maintains the trial court plainly erred by not suppressing evidence arising from what she maintains was an illegal traffic stop by police that led to her conviction. We affirm the judgment of the trial court.

“This [Cjourt reviews the sufficiency of the evidence in a court-tried criminal case by applying the same standard used in a jury-tried case.” State v. Agee, 37 S.W.3d 834, 836 (Mo.App.2001). As such, we observe that “[wjitness credibility is a matter for the trial court, and is not within the province of the appellate court in a court-tried criminal case.” State v. Daniels, 18 S.W.3d 66, 68 (Mo.App.2000).

Defendant’s first point of trial court error is premised on the State’s failure to present sufficient evidence to support her conviction. In determining the sufficiency of the evidence, “[tjhis Court accepts as true all evidence tending to prove guilt along with all reasonable inferences that support the guilty finding while all contrary evidence and inferences are disregarded.” State v. Bewley, 68 S.W.3d 613, 617 (Mo.App.2002). Our “review is limited to a determination of whether there is sufficient evidence from which a reasonable finder of fact might have found the defendant guilty beyond a reasonable doubt.” State v. Pasteur, 9 S.W.3d 689, 697 (Mo.App.1999). “We do not weigh the evidence, but determine only whether there was sufficient evidence from which the trial court could have reasonably found Defendant guilty.” State v. Wilson, 846 S.W.2d 796, 797 (Mo.App.1993). “If there is substantial evidence to support the trial court’s findings, its judgment is to be affirmed.” State v. Girdley, 957 S.W.2d 520, 523 (Mo.App.1997).

The record shows that on the evening of April 6, 2003, an officer with the Springfield Police Department, Shawn Clawson (“Clawson”), was parked in an. alleyway near a Springfield liquor store on the corner of National Street and Elm Street. Clawson’s vehicle was parked about 150 feet from a Dodge van that was parked in front of the liquor store. While observing the van, Clawson’s attention was drawn to a female, later identified as Defendant, who was walking across the parking lot toward the van with two other persons. When she was about mid-way across the parking lot, Defendant “began to skip and slap her arms like a bird as she continued towards” the van. Perceiving this behavior to be unusual, Clawson believed Defendant to be intoxicated, especially since she had just exited a liquor store. Clawson observed Defendant enter the vehicle through the driver’s side front door. As the van pulled out, Clawson “saw a person that looked like the same person that skipped across the parking lot” operating the vehicle.

Clawson then followed the van as it entered National Street and turned west onto Elm Street. “As it continued westbound, [the van] moved over to the center of the road outside of its proper lane and drove for approximately ... 100 feet or so down the middle of the road.” While there were cars parked intermittently on both sides of Elm Street, it was Clawson’s observation that it was not necessary to drive the van down the middle of the street; accordingly, he determined that this behavior indicated the driver of the vehicle was impaired or intoxicated. Clawson then activated various colored emergency lights located on his vehicle, attempting to signal the van to stop. However, the van continued westbound. Finally, Clawson turned his vehicle’s spotlight on and the van pulled to the right very abruptly, coming to an immediate stop and elevating the van’s rear bumper.

Clawson “immediately saw a commotion within the van, more than normal, as if people were moving within the van.” He departed his patrol vehicle and approached the van. Illuminating the side of the vehicle with his spotlight, Clawson looked into the driver’s side window and observed a gap between two “captain’s chairs or-or seats” in the front part of the van. The driver’s seat was empty. He then “observed [Defendant] back pedaling through that gap into the back bench seat, which was the first seat back in the passenger compartment,” where she sat “on the lap of a backseat passenger.” He noted that the driver, i.e., Defendant, was the same person he had seen getting into the van in the parking lot of the liquor store.

At trial, Clawson testified that when he requested Defendant’s driver’s license, she responded, “I don’t have a driver’s license, and I know I should not have been driving.” On cross-examination, when asked if he was sure as to who was driving the van, Clawson answered, “I was very sure who the driver was without a shadow of a doubt.”

After Defendant was arrested and transported to the police station, she denied having driven the van that evening. At trial, Michelle Barnhardt (“Barnhardt”) testified on Defendant’s behalf. Barn-hardt asserted that she was the driver of the van that evening and that Defendant had not been driving. Moreover, Barn-hardt insisted that it was she, not Defendant, who had panicked and jumped into the backseat after being stopped by Claw-son. Barnhardt testified that she had obtained her driver’s license only three weeks prior to the event under scrutiny. She readily acknowledged she was driving “in the middle of the road” because she was a new driver, and did so as a safety precaution. Barnhardt also acknowledged she encountered no other vehicles heading in her direction as she drove. Further, Barnhardt stated that she later went to the police station and had written out a report indicating that she was not only the owner of the van in question, but she also had operated the van at the time of the police stop involving Defendant.

Both at trial and in this appeal, Defendant points to a number of inconsistencies in Clawson’s trial testimony and arrest report which she maintains reflect on the credibility of Clawson’s testimony as a whole. Chief among these inconsistencies is the fact that Clawson did not mention in his police report that he had observed Defendant at the liquor store. Furthermore, Defendant quarrels with Clawson’s trial assertions that Defendant informed him that she “[did not] have a driver’s license” and that she “[knew she] should not have been driving.” (Emphasis added.) She relates that this testimony was substantially different from the quote Clawson attributed to Defendant in his police report, where he wrote that Defendant said: “I don’t have a driver’s license, and I know I should not be driving.” (Emphasis added.)

“A person commits the crime of driving, while intoxicated by operating a motor vehicle while in an intoxicated or drugged condition.” State v. Sales, 886 S.W.2d 942, 943 (Mo.App.1994); § 577.010.1. Here, Defendant does not contest the fact that she was intoxicated at the time of the traffic stop in question. Her primary defense is that she simply was not operating the Dodge van when Clawson stopped it on Elm Street on April 6, 2003.

As the State asserts, Defendant appears to be arguing that her evidence was more credible on the issue of who was driving than was the State’s. However, in a court-tried criminal ease, “determination of credibility of witnesses is a matter for the trial court and is not within the province of an appellate court to pass on their credibility.” Wilson, 846 S.W.2d at 798. “It is the duty of the trial court to determine which evidence is more credible and persuasive.” State v. Baumruk, 85 S.W.3d 644, 648 (Mo. banc 2002). “As the trier of fact, the trial judge can believe all or part of a witness’ testimony and reject the rest and can disbelieve testimony even if un-contradicted.” State v. Martin, 850 S.W.2d 421, 422 (Mo.App.1993).

Furthermore, we observe that “ ‘[a] traffic stop may be justified by observation of conduct which may not itself even constitute a traffic violation but merely an unusual operation [of the vehicle].’ ” State v. Malaney, 871 S.W.2d 634, 637 (Mo.App.1994) (quoting State v. Bunts, 867 S.W.2d 277, 280 (Mo.App.1993)). Here, Clawson was justified in stopping the van based purely on the fact that the operator crossed the center line of the road. See State v. Purdy, 766 S.W.2d 476, 477 (Mo.App.1989); § 304.015.2. As the arresting officer, Clawson’s testimony alone was sufficient to support Defendant’s conviction. Martin, 850 S.W.2d at 422.

Based on the evidence presented, we cannot say the trial court erred in determining that Defendant was operating the Dodge van at the time of the traffic stop. Further, Defendant does not contest the fact that she was intoxicated at the time of the arrest. There was sufficient evidence from which the trial court could have reasonably found Defendant guilty of driving while intoxicated. See Wilson, 846 S.W.2d at 798. Point One is denied.

In her second point, Defendant asserts the trial court plainly erred in failing to suppress evidence of the stop because there was insufficient evidence of probable cause for the initial traffic stop.

As evidence of the pre-textual nature of Clawson’s stop, Defendant points to Claw-son’s statement at trial that he followed Defendant in the van after she left the liquor store, because “she may [have been] intoxicated” and that, after the stop, he asked the van’s passengers about the identity of the driver in an attempt “to better [his] case.”

Defendant correctly points out that “[p]olice are allowed to conduct Terry stops of moving vehicles [only] upon a reasonable suspicion that the occupants are involved in criminal activity.” State v. Miller, 894 S.W.2d 649, 651 (Mo. banc 1995); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “If an officer has an articulable suspicion that the driver of a vehicle is committing, or has committed, a traffic violation, then there is sufficient basis for a Terry stop of the vehicle.” State v. Taber, 73 S.W.3d 699, 705 (Mo.App.2002).

Defendant recognizes that she neither filed a motion to suppress Claw-son’s testimony and police report on the basis that her constitutional rights were violated by an illegal arrest, nor did she make any objections at trial to his testimony. “A claim that evidence was obtained in violation of a defendant’s constitutional rights must be raised at the earliest opportunity.” State v. Collins, 72 S.W.3d 188, 194 (Mo.App.2002). “Specifically, a defendant must raise a claim of an unlawful search or seizure by filing a motion to suppress evidence before trial.” Id. See § 542.296.3; Rule 24.05. As explained in, State v. Galazin, 58 S.W.3d 500, 504 (Mo. banc 2001):

In a driving while intoxicated case, the lawfulness of the defendant’s arrest is not an element of the offense. The lawfulness of the arrest is instead a collateral issue, one that does not bear upon guilt or punishment. One purpose of the requirement that unlawful search and seizure claims be made before trial is to avoid delays during trial in determining this issue. Another reason for the requirement is so the basis of the claim of unlawful search or seizure will be known, giving the [S]tate a fair chance to respond and the trial court a fair opportunity to rule on the claim. The rule helps to eliminate the possibility of sandbagging with respect to an issue not relating to guilt or punishment. [Consequently,] [u]ntil the defendant requests, by motion to suppress, that testimony obtained incident to an arrest be excluded due to the unlawfulness of the arrest, the state is not obligated to prove the validity [of the arrest] ... In effect, the accused loses the benefit of the presumption at a hearing on a timely filed motion to suppress that all warrantless searches and seizures are invalid.

Additionally, we note that a “specific objection to evidence at the time the evidence is offered is required to preserve the issues for appellate review, and the failure to object at the earliest opportunity constitutes a waiver of that claim.” Collins, 72 S.W.3d at 194. Accordingly, Defendant seeks plain error review.

“To be entitled to relief under the plain error rule, the defendant must go beyond a mere showing of demonstrable prejudice to show manifest prejudice affecting substantial rights.” Id. “The defendant must demonstrate that manifest injustice or a miscarriage of justice will occur if the error is not corrected.” Id.; see Rule 30.20.

Based on our review of the evidence as recited in Point One, we cannot say Defendant has suffered a manifest injustice or miscarriage of justice sufficient to warrant plain error review of her second point. Point denied.

The judgment of the trial court is affirmed.

PARRISH, P.J., and BATES, C.J., Concur.

      . Defendant was also charged as "a prior and persistent driving while intoxicated offender” pursuant to section 577.023. All statutory references are to RSMo 2000, unless otherwise set out. Rule references are to Missouri Court Rules (2004).

      . The only recognized exception to the requirements regarding pre-trial motions occurs where the defendant had no reason to anticipate that the alleged unlawfully seized evidence would be introduced and defendant was surprised by its introduction. Galazin, 58 S.W.3d at 506. Here, the evidence alleged to be unlawfully obtained is the testimony of the arresting officer regarding Defendant’s intoxicated condition while operating a van. It cannot seriously be argued that Defendant did not reasonably anticipate that Clawson would testify about the factual circumstances surrounding his arrest of Defendant and her intoxicated condition at the time of her arrest. See Galazin, 58 S.W.3d at 506.


source: Caselaw Access Project

author: KENNETH W. SHRUM, Judge.

license: Public Domain

text:
    Mark DeVILLE, Claimant-Respondent, v. HILAND DAIRY COMPANY, Employer-Appellant.
    No. 26188.
    Missouri Court of Appeals, Southern District, Division Two.
    Jan. 27, 2005.
    Motion for Rehearing and Transfer Denied Feb. 22, 2005.
    Application for Transfer Denied April 5, 2005.

      Richard L. Schnake, Kevin H. Dunaway, Neale & Newman, L.L.P., Springfield, for appellant.
    Alexander W. Staab, Kansas City, for respondent.
   KENNETH W. SHRUM, Judge.

The Labor and Industrial Relations Commission (“Commission”) affirmed an award of workers’ compensation benefits to Mark DeVille (“DeVille”). Hiland Dairy Company (“Employer”) appeals, urging reversal by asserting the following: (1) De-Ville was not working when the injury happened; (2) the injury was idiopathic, hence DeVille’s employment was not a substantial factor in causing injury; and (3) Commission’s finding that the injury arose out of DeVille’s employment was an insufficient basis to support the award as a matter of law. This court affirms.

FACTS

In 1986, DeVille began working for Employer as a maintenance worker. His duties involved rebuilding and servicing equipment used by Employer in processing its product which required DeVille to occasionally lift, bend, stretch, he down, and crawl around equipment. Before the injury date, DeVille had no problem with his right knee or performing his job tasks, although he had earlier received left knee treatment.

On December 10, 1997, DeVille injured his right knee while at work. The facts surrounding the injury include the following. After DeVille ate lunch on Employer’s premises, he “clocked back into work.” While walking from the time clock toward his work area, DeVille stopped at a workbench to listen to fellow employees. At trial, DeVille testified as follows:

“I [DeVille] was standing up against the workbench, listening.... And I turned to go to work to my right, and my knee popped.... [As I turned, my] right foot remain[ed] on the ground.... [I was] standing on a concrete floor [that was] rough. The workbench [where I had stopped to listen] is a welding beneh[] [s]o there’s spots on the floor ... [w]here the hot metal had popped up some of the concrete.”

DeVille testified he both heard and felt his right knee pop and immediately felt pain “on the inside of [his] knee.” On cross-examination, he also testified that, when the injury occurred, he was making a normal turning motion, his foot did not catch on anything, and there was nothing he did in connection with his work that caused him to turn in an unusual or violent manner.

Thereafter, DeVille timely filed an accident report with Employer. Ultimately, he received treatment for the right knee injury, including surgery for a torn meniscus. Following a trial on his claim for workers’ compensation benefits, an administrative law judge (“ALJ”) entered an award favorable to DeVille.

In doing so, the ALJ found that De-Ville’s usual and customary duties led to the injury which caused a change in the pathology of his right knee. Further, the ALJ found that DeVille was in the process of moving from one area of the workplace to another, his right foot apparently failed to move when he turned his body to move toward another work area, and the twisting motion was consistent with the injury which occurred as a result of the motion. Concluding, the ALJ determined that the change of pathology to DeVille’s right knee was caused or was substantially contributed to by his work activities.

Based on these and other findings, the ALJ awarded DeVille benefits, including an amount for permanent partial disability. Employer’s appeal from the ALJ’s decision was affirmed by the Commission. Thereon, Employer appealed to this court.

STANDARD OF REVIEW

Section 287.495.1 contains the applicable standard of review. Abel v. Mike Russell’s Standard Serv., 924 S.W.2d 502, 503 (Mo.banc 1996). Two of the four grounds listed in that case are pertinent here:

“1. The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:
“(3) That the facts found by the commission do not support the award;
“(4) That there was not sufficient competent evidence in the record to warrant the making of the award.”

§ 287.495.1.

In reviewing a Commission award, this court “must examine the whole record to determine if it contains sufficient competent and substantial evidence to support the award, i.e., whether the award is contrary to the overwhelming weight of the evidence.” Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23[1] (Mo. banc 2003). “Whether the award is supported by competent and substantial evidence is judged by examining the evidence in the context of the whole record.” Id. We are bound by Commission’s findings of fact. Abel, 924 S.W.2d at 503.

RELEVANT STATUTORY PROVISIONS

In amending Missouri’s Workers’ Compensation Law in 1993, the General Assembly did not change the fundamental principle espoused in section 287.120.1, namely, that employers are liable, irrespective of negligence, to furnish workers’ compensation to employees for personal injuries from accidents “arising out of and in the course of’ employment. Kasl v. Bristol Care, Inc., 984 S.W.2d 852, 853 (Mo.banc 1999).

However, changes were made in section 287.020 in 1993. As amended, section 287.020 focuses on whether there is a com-pensable injury as opposed to whether an accident occurred. Willeford v. Lester E. Cox Med. Ctr., 3 S.W.3d 872, 874 (Mo.App.1999). This is seen in the multiple, but perhaps, redundant references to ‘injury’ in subsections 2 and 3(1)(2)(3). See McCutcheon v. Tri-County Group XV, Inc., 920 S.W.2d 627, 630 (Mo.App.1996).

Under section 287.020.2, “an injury is compensable if it is clearly work related” and “[a]n injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition or disability.” In section 287.020.3(1), the term “injury” is defined to be one “which has arisen out of and in the course of employment.” Also, section 287.020.3(1) provides that “[t]he injury must be incidental to and not independent of the relation of employer and employee.” Section 287.020.3(2) declares that “[a]n injury shall be deemed to arise out of and in the course of employment only if:

“(a) It is reasonably apparent, upon consideration of all the circumstances, that the employment is a substantial factor in causing the injury; and
“(b) It can be seen to have followed as a natural incident of the work; and
“(c) It can be fairly ti'aced to the employment as a proximate cause; and
“(d) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life[.]”

DISCUSSION AND DECISION

Employer first argues there was not sufficient competent evidence to support the award because DeVille admitted that he was not working when the injury occurred. Relying on the fact that an injury “must be incidental to and not independent of the relation of employer and employee” (§ 287.020(3)(1)), Employer asserts that DeVille made three critical admissions that mandate reversal. Specifically, Employer points to DeVille’s testimony that (1) nothing he did in performing his job caused him to turn right, (2) nothing he did connected with his work caused him to turn in an unusual, violent, or odd way, and (3) nothing he did in performing his job caused him to twist in any unusual fashion that produced the knee pop. Summarily stated, Employer argues DeVille’s twisted knee “just happened[;]” “[it] had nothing to do with his work,” and he could have been “anywhere talking to anyone.”

Historically, it has been recognized that an employee does not have to be directly engaged in the task with which he is primarily charged as a condition precedent to recovering workers’ compensation benefits. Daniels v. Krey Packing Co., 346 S.W.2d 78, 83 (Mo.1961). Nor is it necessary that the activity leading to the injury be a part of an employee’s specific job description. Davison v. Florsheim Shoe Co., 750 S.W.2d 481, 484[8] (Mo.App.1988). The rule in Missouri is that an injury is said to have occurred “in the course of employment” if it “occurs within the period of employment, at a place where the employee may reasonably be” and “while [he is either] reasonably fulfilling the duties of his employment or is engaged in doing something incidental thereto.” Williams v. Transp. Int’l, Inc., 752 S.W.2d 501, 504[1] (Mo.App.1988) (emphasis supplied). In Moore v. St. Joe Lead Co., 817 S.W.2d 542, it was stated:

“Incidental activities include the inevitable acts of human beings in ministering to their personal comfort while at work, such as warmth and shelter, heeding a call of nature, satisfying thirst and hunger, washing, resting or sleeping and preparing to begin or quit work.”

Id. at 543.

Activities held to be “incidental to and not independent of the relation of employer and employee” (§ 287.020(3)(1)) include those in Drewes v. Trans World Airlines, Inc., 984 S.W.2d 512, 514 (Mo.banc 1999) (employee injured while eating lunch); Cox v. Tyson Foods, Inc., 920 S.W.2d 534, 537 (Mo.banc 1996) (employee injured while walking across employer’s parking lot toward workplace during a paid break); Culberson v. Daniel Hamm Drayage Co., 286 S.W.2d 813, 817 (Mo.1956) (employee injured when he fell asleep during lunch break and failed to awaken at the end thereof); and Moore, 817 S.W.2d at 543 (employee injured while taking an unauthorized rest break by sitting on railroad track). The Moore court reasoned that “[t]he location of the accident was on the employer’s premises where the employee might reasonably be expected to be and he was engaged in an incidental activity, resting, at the time of the accident.” Id. at 543[1].

We find DeVille’s activity at the time of injury (turning to resume his post lunch break walk to his assigned work area after he had stopped to listen to a conversation between fellow employees) is essentially indistinguishable from the “eating lunch,” “parking lot walk,” “post lunch break nap,” and “unauthorized rest” activities found to be incidental activities in Drewes, Cox, Culberson, and Moore, respectively. Relying on these cases, we hold DeVille was engaged in activity incidental to his employment at the time he sustained his injury. We reject Employer’s arguments to the contrary.

Employer’s point relied on also maintains Commission erred in awarding De-Ville benefits because his “injury [was] idiopathic, purely independent of the relation between DeVille and [Employer], and hence DeVille’s employment was not a substantial factor in causing the injury.”

The Workers’ Compensation Law does not cover an event entirely idiopathic in nature. Kasl, 984 S.W.2d at 854. This follows because section 287.020.3(2)(d) states that to be compensable, the injury cannot come from a hazard or risk “unrelated to” employment. Id. “Among such hazards are ‘idiopathic’ conditions, those ‘peculiar to the individual: innate.’ ” Id. Stated otherwise, because of the limiting language of section 287.020.3(2)(d), “injuries on the job, resulting from an idiopathic condition peculiar to the employee, are not covered.” Id.

Evidentiary support is required to successfully claim an event is entirely idiopathic, i.e., the event results from some cause personal to the individual, such as a physical defect or disease. Wheaton v. Reiser Co., 419 S.W.2d 497, 502 (Mo.App.1967). See also Drewes, 984 S.W.2d at 514. Here, Employer presented no such evidence.

To the contrary, there was evidence DeVille had no right knee problems or restrictions before December 10, 1997. On that day, as DeVille “pivoted” to the right to go toward his work area — pivoting in the sense that his right foot did not move — he heard and felt a pop in his right knee and experienced pain on the inside thereof. Orthopedic physician Seagrave treated DeVille surgically for his right knee injury. He found the medial meniscus in this knee had been torn and concluded that DeVille “sustained a twisting injury to his right knee on 12/10/97 when he was at work.”

In a similar vein, Dr. David Rogers did a pre-surgery evaluation of DeVille’s right knee from which he concluded that DeVille had sustained a probable medial meniscus tear “when he was at work and twisted on the knee.” Such evidence hardly bespeaks a finding that DeVille’s injury was an idiopathic one. Any finding to this effect could be based only on speculation and surmise. From the foregoing, it is at once apparent that Employer has failed to sustain its burden to show by substantial evidence that this was an idiopathic injury. We reject Employer’s argument to the contrary.

Finally, Employer urges reversal of Commission’s award because “as a matter of law, the Commission’s holding that the injury arose out of DeVille’s employment because DeVille had to walk from where he was standing to his own work area is an insufficient basis on which to award benefits.” Continuing, albeit in conclusory fashion, Employer argues:

“DeVille’s injury ... is purely ‘independent of the relation of employer and employee.’ [§ 287.020.3(1) ]. The employment was not ‘a substantial factor in causing the injury.’ [§ 287.020.3(2)(a) ]. Because DeVille concededly was not even working, the injury was not ‘a natural incident of the work’ [§ 287.020.3(2)(b) ], and it cannot ‘be fairly traced to the employment as a proximate cause.’ [§ 287.020.3(2)(c) ]. Instead, the injury could have happened at any time and any place, whether at Hiland Dairy or elsewhere, including DeVille’s home, a store, or in the Division’s hearing room itself. The injury thus stemmed from ‘a hazard or risk unrelated to the employment to which [DeVille] would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.’ [§ 287.020.3(2)(d) ].”

To the extent this argument reprises Employer’s first two claims of Commission error (DeVille was not working and the injury was idiopathic), we previously analyzed and rejected them. We did so by holding that (1) DeVille’s activity, i.e., clocking in on Employer’s premises, walking toward his work area, stopping to listen to conversations of fellow employees, and then turning to resume his post lunch break walk to his work post, was incidental to his employment, and (2) there was no evidence that this was an idiopathic event.

To answer the rest of Employer’s claim that DeVille’s injury did not, as a matter of law, arise out of his employment, we need look only at Drewes, 984 S.W.2d 512. There, Drewes (the injured employee) was carrying her lunch through a break room, when she fell and injured her ankle. The principal issues in Drewes — as here — involved whether the accident arose out of employment and whether it occurred in the course of employment. As to the latter issue (course of employment), the court found “Drewes was tending to her personal comfort by carrying her lunch, when she fell. Her activity, eating lunch, was incidental to her employment.” Id. at 514[4].

To resolve the former issue (whether injury arose out of Drewes’ employment), the Supreme Court of Missouri looked at the four factors in section 287.020.3 and concluded:

“First, Drewes’ act of carrying her lunch to the table was a ‘substantial factor’ in causing her injury. Second, the Commission found no evidence of an idiopathic condition ‘innate or peculiar’ to Drewes. Nor was there any evidence that the injury came from a hazard or risk that was ‘unrelated to’ Drewes eating lunch. Necessarily, Drewes was not ‘equally exposed’ outside of her employment to the risk of falling during her lunch break.”

Id.

Drewes is factually distinguishable from this case only in that Drewes was walking toward a lunch table when she fell and injured herself, whereas DeVille was pivoting on his right leg as a prelude to walking toward his work area, and in doing so, twisted his knee and injured himself. In our view, this is a distinction without a difference. Based on Drewes we find that (1) DeVille’s act of turning to the right and “twisting” his knee as he started toward his work area was a “substantial factor” in causing his injury; (2) no idiopathic condition, innate or peculiar to DeVille, was proven; (3) no evidence existed that the injury came from a hazard or risk that was “unrelated to” DeVille’s employment activity as described; and (4) necessarily, De-Ville was not “equally exposed” outside of his employment to the risk of twisting his knee as he turned to leave the fellow employee conversation site and walk to his work area. Therefore, DeVille’s accident arose out of his employment. We reject Employer’s claims to the contrary. Point denied.

The Commission’s award is affirmed.

PARRISH, P.J., and BARNEY, J., concur.

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


text:
    Evelyn JOLLY, Natural Mother and Next Friend of Ashley Rae Jolly, minor, Plaintiff-Appellant, v. Steven R. CLARKSON, Defendant-Respondent.
    No. 26118.
    Missouri Court of Appeals, Southern District, Division Two.
    Jan. 28, 2005.
    Application for Transfer Denied Feb. 22, 2005.
    Application for Transfer Denied April 5, 2005.

      Donald W. Ingram, Allman, Ingram, Wilson <& Akers, L.L.C., Branson, MO, for appellant.
    Richard L. Schnake, Neale & Newman, L.L.P., Springfield, MO, for respondent.
   KENNETH W. SHRUM, Judge.

Plaintiff seeks reversal of a judgment that rejected her effort to void two beneficiary deeds made by Rollen H. Clarkson (“Grantor”). Plaintiff claims Grantor lacked the requisite mental capacity to make the deeds. Grantor’s son (“Defendant”) was the beneficiary named in the deeds. Plaintiff maintains the trial court used the wrong “mental capacity standard” to decide this case adversely to her. Plaintiff also urges reversal because the trial court failed to make requested findings of fact that Plaintiff claims were relevant. This court affirms.

Plaintiff is the mother of Ashley Rae Jolly (“Ashley”) who was bom February 5, 1991. Plaintiff was not married when Ashley was born. After Grantor died intestate on November 15, 2000, the probate division of the Taney County circuit court ruled Grantor was Ashley’s father. That adjudication is final and unappealed.

In addition to Ashley, Grantor sired other children, namely Defendant, born November 1, 1956 (legitimate), and Sue Burdette (“Sue”), born November 5, 1948 (illegitimate).

On two separate occasions in 1995, Grantor executed and recorded beneficiary deeds. These deeds described various tracts of land owned by Grantor. Defendant was named as beneficiary in both instruments, and Grantor’s designation of Defendant as beneficiary was not revoked before Grantor’s death.

In 2003, Plaintiff, acting as Ashley’s next friend, sued Defendant seeking a declaration that the subject beneficiary deeds were void. She alleged Grantor was not of “sound mind” when he made the deeds in that he “(1) was not able to know the persons who were the natural object of his bounty, as he did not recognize Ashley as his daughter, or he (2) could not intelligently weigh and appreciate his natural obligations to Ashley.”

Evidence in this case came from Plaintiff, her daughter Ashley, Grantor’s son (Defendant), Grantor’s daughter (Sue), and Michael Merrell (Grantor’s attorney). Detailed accounts of this evidence are given later as we analyze Plaintiffs various claims of trial court error. Suffice it to say, Plaintiffs primary evidentiary effort was to prove Grantor never openly acknowledged Ashley as his daughter.

After making extensive findings of fact and conclusions of law, the trial court ruled Plaintiff had not met her burden of proving Grantor lacked the requisite mental capacity to make the subject deeds. This appeal followed.

STANDARD OF REVIEW

As with most other non-jury cases, review of a suit to set aside a deed because of alleged mental incapacity of the grantor is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976). Robertson v. Robertson, 15 S.W.3d 407, 411 (Mo.App.2000). Thus, the judgment is to be affirmed unless it is not supported by substantial evidence, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Id. An action to set aside a deed is an extraordinary proceeding in equity requiring evidence to support that result that is clear, cogent, and convincing. Id. at 419[6]. A judgment in a case such as this is presumed correct and the appellant has the burden of proving it erroneous. Id. at 411[2], We defer to the trial court’s assessment of credibility. Id. at 411[3].

DISCUSSION AND DECISION

Plaintiffs first point maintains the trial court erred when it did not void the subject deed. She argues the court used the wrong standard of mental capacity in making its adjudication. Specifically, Plaintiff claims the court mistakenly used the standard of mental capacity required of the grantor of a deed given for consideration, whereas it should have used the standard of mental capacity required of the grantor of a deed in which no consideration is given, i.e., a gift deed.

One premise underlying Plaintiffs first point is that the applicable mental capacity test for the grantor of a beneficiary gift deed should be the same as that applied to the execution of wills. Although this court finds no Missouri case so holding when the challenged instrument is a beneficiary deed, that certainly is the rule often expressed when the questioned conveyance is by warranty or quit claim deed. See, e.g., McFarland v. Brown, 193 S.W. 800, 804 (Mo.1917).

The requisite mental capacity that a grantor must have to make a valid gift deed has been expressed as follows:

“The law differentiates between the mental capacity required of grantor making a deed as a part of the arms-length business transaction and the mental capacity required when grantor is receiving but the satisfaction of heart and mind which comes from benefiting those near and dear to him. In the latter instance if he has sufficient mental capacity to know the extent of his property, his relatives and their respective claims on his bounty, the demands of the law have been satisfied.”

McCoy v. McCoy, 360 Mo. 199, 227 S.W.2d 698, 704 (1950) (emphasis supplied). See also Jones v. Thomas, 218 Mo. 508, 117 S.W. 1177, 1186-87 (1909); Robertson, 15 S.W.3d at 415. No logical reason exists for using a different mental capacity standard for the maker of a beneficiary gift deed than for the maker of other gift deeds. We hold, therefore, that the mental capacity test espoused in McCoy attends here.

With this finding made, we look further into Plaintiffs “wrong mental capacity standard” claim. In developing this argument, Plaintiff concedes there is case law holding that the mental capacity required to make a valid business deed is higher than that required to make a valid gift deed. See, e.g., Storm v. Marsh, 418 S.W.2d 179, 185 (Mo.1967); Gruetzmacher v. Hainey, 373 S.W.2d 45, 50[4] (Mo.1963). However, Plaintiff in her reply brief says that “begs the question.” She maintains that the gift deed grantor mental capacity standard has elements not in the business deed grantor standard, specifically, the gift deed grantor must have sufficient mental capacity to (1) know the persons who are the natural objects of his bounty and (2) “intelligently weigh and appreciate his natural obligations to those persons and know [he was] giving his property to the persons mentioned in the [deed]” at that time. See In re Estate of Hague, 894 S.W.2d 684, 688 (Mo.App.1995) (holding these are two factors in a four-part testamentary capacity analysis).

With this as her premise, Plaintiff then uses Points II, III, and IV in her brief to argue that the trial court’s alleged error (using the wrong standard) is obvious in that the trial court’s findings of fact and conclusions of law addressed only two of the factors in the Hague analysis, i.e., a finding that Grantor “understood the ordinary affairs of life and knew the nature and extent of his property at the time the ... deeds were executed.” According to Plaintiff, the trial court’s error lies in the fact it made no findings on the two additional parts of the Hague analysis, i.e., the two factors first mentioned above.

We pause here to note Plaintiff timely requested that the trial court make findings of fact on these controverted issues. Such a request is authorized by Rule 73.01(c). Plaintiff’s second, third, and fourth points urge reversal and remand because the trial court did not honor that request. Since deciding the Rule 73.01(c) issues first will either render Point I moot, or shorten our analysis of Point I, we address Points II, III, and IV at this time.

Rule 73.01 governs eases tried without a jury. In pertinent part, subsection (c) thereof provides that “[i]f a party so requests, the court shall ... prepare and file a brief opinion containing a statement of the grounds for its decision ... and shall[ ] include in the opinion findings on the controverted fact issues specified by the party.”

Ordinarily, a case will be remanded for production of findings if the court did not comply with a properly drafted and timely filed findings request filed per Rule 73.01(c). Hammons v. Ehney, 924 S.W.2d 843, 850[17] (Mo.banc 1996); In re Marriage of Flud, 926 S.W.2d 201, 204 (Mo.App.1996). However, there is an exception to this rule. Specifically, an appellate court can affirm a judgment without remand despite a trial court’s noncompliance with Rule 73.01(c) if the trial court record supports affirmance. Hammons, 924 S.W.2d at 850[17]. “This is based upon the idea that the complaining party has failed to show prejudice.” Id. Alleged error only leads to reversal if it is both error and prejudicial. Bank of America, N.A. v. Stevens, 83 S.W.3d 47, 56 (Mo.App.2002). Rule 84.13(b), Supreme Court Rules (2004).

Our examination of this record will be made with the above principles in mind, as well as the following. Plaintiff has the burden of proving Grantor lacked the mental capacity to make a valid deed at the very time the deeds were signed. McCoy, 227 S.W.2d at 704; Schneider v. Johnson, 207 S.W.2d 461, 466[4] (Mo.1948); Lastofka v. Lastofka, 339 Mo. 770, 99 S.W.2d 46, 54 (1936). Moreover, “the proof to justify setting a deed aside must be clear, cogent and convincing.” Robertson, 15 S.W.3d at 415[17]. This means that the court should be “clearly convinced of the affirmative of the proposition to be proved.” Id. “Evidence, to be clear and convincing, must instantly tilt the scales in the affirmative when weighed against the evidence in opposition and the fact finder’s mind is left with an abiding conviction that the evidence is true.” Id. at 415[18].

Here, lawyer Merrell testified he prepared the April 7, 1995, beneficiary deed and that it was notarized in his office on that date. He had no recollection, however, of preparing the September 11, 1995, deed and noted that it was not notarized in his office. Neither the person who prepared the September 1995 deed, nor the notary public who notarized it, nor any other person who saw or talked with Grantor on September 11, was called as a witness.

Regarding the April 7 deed, Merrell testified he had “meetings” with Grantor before it was prepared; that he “discussed [with Grantor] alternatives for his estate plan[;]” and Grantor then “brought in deeds” which Merrell used to prepare the April 7 beneficiary deed. When Merrell was asked about Grantor’s appearance at those meetings, Plaintiffs counsel objected to the relevancy of such evidence, stating: “We conceded in our pleadings that [Grantor] understood the ordinary affairs of life and ... knew the nature and extent of his property. We’re not quarrelling with that.” At this point, defense counsel withdrew the question and quickly ended his examination of Merrell. On cross-examination, Merrell was asked if Ashley’s name was brought up during his dealings with Grantor. Merrell answered, “The name did not come up at all.”

Merrell’s testimony, standing alone, is not clear, cogent, and convincing evidence that, as of the date each deed was signed, Grantor lacked the mental capacity to understand the objects of his bounty and “intelligently weigh and appreciate his natural obligations” to those persons. To the extent Plaintiff intends to argue to the contrary, such argument is rejected.

On the other hand, evidence before and after the date the deeds were signed is relevant in deciding if Grantor had the requisite mental capacity to execute them on a given day. Robertson, 15 S.W.3d at 415. In apparent reliance on this principle, Plaintiff tried to show Grantor’s mental incapacity by evidence of Grantor’s denials of paternity, his failure to adequately support Ashley, and his failure to mention Ashley to attorney Merrell during their “estate planning” discussions.

To illustrate, Plaintiff repeatedly testified that Grantor often expressed doubts whether Ashley was his child. According to Plaintiff, Grantor’s avowed reason for denying paternity was that he had undergone a vasectomy. We are not persuaded, however, that evidence of Grantor’s frequent denials of paternity proved his mind was so weak and impaired that he forgot about Ashley when the deeds were made, or that he lacked the mental capacity to know Ashley was a person claiming to be his daughter. In part, we rely on Milum v. Marsh ex rel. Lacey, 53 S.W.3d 234 (Mo.App.2001), to reach this conclusion.

In Milum, a daughter was named in her deceased father’s will, but received no bequest thereunder. She challenged the will, claiming he lacked testamentary capacity to make the instrument. The evidence was that decedent was married to the mother when the child was conceived, yet he reacted negatively to the pregnancy and throughout his life denied paternity. When decedent and the child’s mother divorced, he was adjudged the father of the child. Despite a decree that ordered decedent to pay child support, he never did so, nor did he ever visit or otherwise contact his daughter. In his will, decedent characterized his child as the “daughter of my ex-wife[,]” noted that she “used my name in the past,” and declared he was mentioning her “so that it will not be thought that she was forgotten.” Id. at 239. This recital ended by leaving her nothing. Id. In challenging the will, the daughter alleged decedent “did not know the person [her] who was the natural object of his bounty and did not appreciate his natural obligations to that person[;]” consequently, he lacked testamentary capacity. Id, We rejected that argument, holding that decedent’s consistent denial of paternity and lack of contact with and support for her “is not sufficient [evidence] to rebut [decedent’s] case of testamentary capacity.” Id.

In relying on Milum, we do not ignore Plaintiffs argument that factual distinctions between it and this case render it inapposite. Thus, the will at issue in Mi-lum specifically recited that the decedent knew a person existed who claimed to be his daughter, whereas the beneficiary deeds here contain no such recital about Ashley. However, unlike Milwm where the deceased father always denied paternity, there is evidence in this record to support a finding that Grantor knew Ashley was his daughter to whom he owed moral and legal obligations, and he acknowledged this fact in private (particularly to Plaintiff), yet used his vasectomy claim and selective denials of paternity as a ploy to avoid his moral and legal responsibility to Ashley and Plaintiff. For instance, when Ashley was five years old, Plaintiff told Ashley that Grantor was her father. In making that disclosure Plaintiff also told Ashley that Grantor “didn’t want anyone to know that.” This is an implicit, albeit private acknowledgement by Grantor to Plaintiff that he recognized Ashley as his daughter.

At trial, Plaintiff testified Grantor never acknowledged paternity, yet a document Plaintiff signed at the Division of Child Support Enforcement (“DCSE”) contradicted that testimony. The administrative agency claim form posed this question: “Has the alleged father ever claimed the [child] as his?” Plaintiff answered, ‘Tes.” Apparently, the trial court resolved this factual inconsistency adversely to Plaintiff, which was its prerogative. Greentree Properties, Inc. v. Kissee, 92 S.W.3d 289, 292 (Mo.App.2002).

The affidavit of Sue Burdette, Grantor’s other illegitimate daughter, contained this testimony:

“I remember telling [Grantor] that he must treat Ashley right. [Grantor] would say, ‘She might be mine,’ and I told him, Tou know good and well that she is your daughter.’ I would get frustrated with him because he would ‘flip flop’ back and forth on the issue of his paternity.
“I did have conversations with [Plaintiff] where we discussed [Grantor’s] acknowledgment of Ashley as his daughter. [Plaintiff] told me [Grantor] understood that Ashley was his daughter but he did not want any formal legal proceedings started to prove it.”

This is another unambiguous admission by Plaintiff (this time to Sue) that Grantor knew and comprehended that Ashley was his daughter.

Grantor’s apparent goal of avoiding “formal legal proceedings” regarding Ashley (as related by Plaintiff to Sue) is confirmed by the following. In October 1998, Ashley needed dental work performed. That need prompted Plaintiff to seek financial assistance from the Division of Family Services (“DFS”). Her DFS application triggered referral to the DCSE. When DCSE notified Grantor of Plaintiffs claim that he was Ashley’s father, Grantor dealt with the matter by telling Plaintiff he would help get Ashley’s teeth fixed if Plaintiff would discontinue the DCSE case. Plaintiff agreed, the DCSE case was dropped, and Grantor paid for Ashley’s dental work.

The following also bears on the issue of Grantor’s mental capacity, i.e., his awareness of Ashley as his daughter and his responsibilities to her. Grantor occasionally gave Ashley money, as well as other gift items; he talked with Ashley about her future and what she wanted to do with her life; he frequently took Ashley with him as he did farm chores and other activities; Grantor accepted gifts from Ashley, on some of which she wrote, “to Dad, love you[;]” Grantor kept a “growth chart” for Ashley at his home, i.e., where he kept track of how tall she grew from year to year; and Grantor named Ashley as beneficiary on a $10,000 insurance policy.

Other relevant evidence included the fact that Ashley often called Grantor “Dad” and he usually responded to that salutation, whether in private or public. Moreover, Grantor had photographs of Ashley in his bedroom.

Finally, in conversations with Defendant, Grantor stated he might have children other than Defendant. Moreover, Defendant testified he had seen a photograph of Sue at Defendant’s house that contained the word “Dad.” According to Defendant, the photograph prompted this conversation with Grantor:

“I said ‘Boy, you’ve got kids coming out of the woodwork now, haven’t you,’ and he laughed ... and said ‘Yeah, you never know who’s going to come up next,’ or something to that nature. He didn’t acknowledge it. He didn’t deny it, but he was chuckling about it, and insinuated to me that, ‘Yeah, I might have even more.’ ”

All of the foregoing is evidentiary support for the trial court’s implicit finding that Grantor had sufficient mental capacity (1) to know Ashley was his daughter, (2) to know Ashley had claims on his bounty, and (3) to intelligently weigh and appreciate his natural obligations to Ashley. This and other evidence in the record also supports the inference that Grantor’s mental capacity to make valid beneficiary deeds continued to the date he signed each deed.

Accordingly, although the trial court erred in not making the requested findings of fact, no prejudice resulted because the trial court record supports affirmance. See Hammons, 924 S.W.2d at 850. Evidence of Grantor’s selective denials of paternity does not compel a finding that he lacked mental capacity to make a deed, especially when the denial evidence was contradicted by evidence that he privately acknowledged Ashley as his daughter and treated her, at least in some respects, as his daughter. See Milum, 53 S.W.3d at 239. Points II, III, and IV are denied.

We return now to Plaintiffs Point I assertion that the court’s alleged use of the wrong mental capacity standard mandates reversal. Plaintiffs insistence that the trial court never considered whether Grantor had sufficient mental capacity to understand the objects of his bounty and intelligently weigh and appreciate his natural obligations to those persons is fully refuted by two conclusions of law that the trial court put in its judgment:

“The mere fact that a grantor does not recognize a parent-child relationship does not of itself render a grantor without mental capacity to execute a deed. See Webb v. St. Louis County National Bank, 551 S.W.2d 869 (Mo.App. E.D.1977).
“Our Southern District Court of Appeals has specifically held that the denial of paternity by the natural father of a child is not sufficient to prove a lack of testamentary capacity. Milum v. Marsh, 53 S.W.3d 234.... The court in Milum [held] that ‘the denial of paternity as her sole proof that Appellant did not have testamentaiy capacity ... is not sufficient....’ Id. at 239.”

We conclude from this that the trial court fully understood what mental incapacity elements Plaintiff had to prove, knew the legal standard, and correctly applied it. We reject Plaintiffs arguments to the contrary.

Accordingly, we find the trial court did not commit reversible error when it ruled that Plaintiff “failed to meet her burden of proof, by clear and convincing evidence, that [Grantor] lacked the requisite mental capacity to validly execute the beneficiary deeds.” Point I is denied. The judgment of the trial court is affirmed.

BARNEY, J., and BATES, C.J., Concur.

      . This remark responds to Defendant’s argument that since the business deed grantor’s mental capacity must be higher than that of a gift deed grantor, Plaintiff could not have been prejudiced when the trial court used the higher mental capacity standard in reaching its conclusion.

      . As to each beneficiary deed, Plaintiff requested that these findings of fact be made:
      "When [Grantor] executed [each] beneficiary deed dated [specifying the dates of each] did ...
      "A. he recognize Ashley ... as one of the natural objects of his bounty, and
      "B. if he recognized Ashley ... as one of the natural objects of his bounty, could he intelligently weigh and appreciate his natural obligations to Ashley....?”

      . All rule references are to Supreme Court Rules (2003), unless otherwise indicated.

      . The Hammons court cautioned, however, that when a trial court fails to make findings of fact requested per Rule 73.01(c), "[a]n appellate court may not reverse a decision below upon its own determination of facts.” 924 S.W.2d at 850.

      . Rule 84.13(b) reads: “No appellate court shall reverse any judgment unless it finds that error was committed by the trial court against the appellant materially affecting the merits of the action."

      . According to Plaintiff, Grantor told her it was a $10,000 life insurance policy. However, after Grantor died, Plaintiff learned it was only an accident policy. Since Grantor’s death was not an accidental one, no benefit was paid.

      . Only one incident was mentioned in evidence where Grantor asked Ashley not to address him as "Dad.”


author: JAMES K. PREWITT, Judge.

text:
    John VERBRUGGE, Plaintiff-Appellant, v. ABC SEAMLESS STEEL SIDING, INC., and ABC Seamless, Inc., Defendants-Respondents.
    No. 26169.
    Missouri Court of Appeals, Southern District, Division One.
    Jan. 31, 2005.
    Petition for Rehearing and Transfer Denied Feb. 22, 2005.
    Application for Transfer Denied April 5, 2005.

      J. Patrick Sullivan, Sullivan Law Office, P.C., Branson West, MO, for Appellant.
    Gail L. Fredrick, Douglas C. Fredrick, Fredrick, Rogers & Vaughn, P.C., Springfield, MO, for Respondent ABC Seamless Steel Siding, Inc.
    Randy R. Cowherd, Lucas C. Smith, Haden, Cowherd, Bullock & McGinnis, L.L.C., Springfield, John Cowherd, Mount Vernon, MO, for Respondent ABC Seamless, Inc., a/k/a ABC, Inc.
   JAMES K. PREWITT, Judge.

John Verbrugge appeals from a judgment finding in favor of ABC Seamless Steel Siding, Inc. (“Franchisee”) and ABC Seamless, Inc. (“ABC”) on claims of breach of contract and warranty, respectively. The trial court found that Ver-brugge’s claim of damages and breach of contract against Franchisee was time-barred and that his claim of damages and breach of warranty against ABC must be denied because there was no credible evidence that ABC had breached any express or implied warranty, regardless of its affirmative defense that the claims against it were time-barred.

Facts

ABC Seamless Siding & Windows, Inc. (“Original Franchisee”) was a franchisee of ABC and located in Springfield, Missouri. On November 23, 1993, Verbrugge entered into a contract with Original Franchisee to install seamless siding, soffits, fascia, vents, guttering, and downspouts on Ver-brugge’s home. The total contract price was $10,744, and Verbrugee paid a down payment of $1,744 to Original Franchisee at the time the contract was signed.

In April of 1994, the ABC franchise was transferred from the Original Franchisee to Franchisee, a company owned by Jim Little, located in Nixa, Missouri. The installation, which took place in March and April of 1994, was completed by Franchisee. There was no dispute that Little’s company, Franchisee, hired the installers for the work on Verbrugge’s home and that the $9,000 balance on the contract was paid to Franchisee. Franchisee “did the work for the other corporation.”

At or around the time the installation work was completed and final payment made, Verbrugge received two warranty documents. Both warranties listed March 4, 1994, as the installation date. The first warranty was a “Lifetime Transferable Non-Prorated Limited Warranty,” a warranty on the materials installed, which was signed by Gerald Beyers as president of ABC. The warranty contained a statement that “[t]he Manufacturer does not warrant installation nor defects caused by installation.” The second warranty was an “Exclusive Twenty Year 100% Labor Warranty,” which listed only Franchisee at the Nixa address and was not signed by any officer of ABC.

The work on Verbrugge’s home was completed on or about April 2, 1994, and on or about April 7, 1994, Verbrugge notified Little of defects in materials and/or defects in the workmanship. Verbrugge sent Little a written communication listing eight to ten complaints, one of which was that a ladder or scaffolding had fallen against the side of the house causing a dent in the siding. Little had the dented area replaced with new paneling. Little hired someone to address Verbrugge’s complaints over a three-day period, after which Little thought Verbrugge was satisfied.

According to Verbrugge, less than a month after the completion of the installation, he also started noticing leaks. After consulting with “a group of building professionals[,]” Verbrugge determined that the leaks were caused by the manner in which a J-channel was installed. “[T]he siding goes up against the J-channel to help hold it.” The J-channel also functions to hide the siding and aid in water runoff, but the channel allegedly was installed in such a way that water would run directly into the house, causing flooding in the basement. Verbrugge later installed new doors, put in his own J-channel, and began an “every three month” caulking schedule for the windows, which alleviated the leaking. Verbrugge also complained to Little that the fascia was “very wavy.” However, that was something Verbrugge decided to “liv[e] with.”

In addition to the written communication to Little in April, 1994, there were other communications between Verbrugge and Little, including various phone calls, and a letter dated May 20, 1994. This letter outlined what actions, according to Verbrugge, Little and Little’s employees had or had not taken with respect to the alleged damages noted above. The May, 1994 letter threatened legal action if Little did not “fix [Verbrugge’s] siding within 14 days of receipt of this letter.”

Verbrugge later encountered problems with the gutters; instead of the water going into a downspout, the gutters would overflow. The weight and stress eventually led to a collapse of a portion of the gutter system. Verbrugge noticed the problems with the gutters “developing over time.” He noted in a letter to Little dated April 23, 1995, that he had “discovered the rain gutters were improperly installed [and] ... [ran] uphill, away from the downspouts.” According to Ver-brugge, however, he “knew about the dent, the guttering, the fascia and the leaking in April of 1994[J”

Little did not recall receiving the April, 1995 letter and indicated that that period of time was “about the time we closed the company[.]” According to Verbrugge, since Little could no longer be contacted because he “was out of business,” Ver-brugge decided to contact Beyers, the president of ABC.

The first time Verbrugge contacted ABC was in 1997. Verbrugge phoned Beyers in July, 1997, and followed up with a letter dated August 4, 1997. Ver-brugge’s phone call and letter to ABC was ABC’s only notification of Verbrugge’s dispute with Franchisee, as Little indicated that he never contacted ABC. Verbrugge testified that his complaints related only to “the installation work done by the franchisee’s employees, not with the quality of the materials, and that he was not claiming that any of the materials provided by ABC were defective.”

Verbrugge filed a petition in damages against Franchisee and ABC on July 14, 1999. The two-count petition included a breach-of-contract claim against Franchisee and a breach-of warranty claim against ABC. In its answer, ABC raised several affirmative defenses, including that the claims against it were barred by a four-year statute of limitations and that ABC did not warrant the workmanship or labor performed by Franchisee. Franchisee also filed an answer and was later granted leave to amend that answer to assert affirmative defenses, which included that the claims were barred by two separate statutes of limitations.

The trial court denied a motion for summary judgment filed by ABC, and the matter proceeded to trial. In its judgment entered February 3, 2004, the trial court found in favor of Franchisee and ABC on Verbrugge’s claims of breach of contract and warranty, respectively. The trial court found that Verbrugge’s claim of damages and breach of contract against Franchisee was time-barred and that his claim of damages and breach of warranty against ABC must be denied because there was no credible evidence that ABC had breached any express or implied warranty, regardless of its affirmative defense that the claims against it were timebarred.

This appeal followed.

Discussion

Verbrugge raises two points in his appeal, which we will address in order.

Point I — Claim against Franchisee barred by § 516.120, RSMo 2000

In his first point, Verbrugge argues that the trial court erred in its determination that the breach-of-contract claim against Franchisee was barred by the five-year statute of limitations stated in § 516.120, RSMo 2000. According to Ver-brugge, the damages were not “capable of ascertainment” until 1997, when the last item of damage, the collapse of the guttering, occurred.

Verbrugge asks that we consider both § 516.100, RSMo 2000, and § 516.120, RSMo 2000 in our review. Section 516.100, RSMo 2000, indicates the period of limitation prescribed and states:

Civil actions, other than those for the recovery of real property, can only be commenced within the periods prescribed in the following sections, after the causes of action shall have accrued; provided, that for the purposes of sections 516.100 to 516.370, the cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment, and, if more than one item of damage, then the last item, so that all resulting damage may be recovered, and full and complete relief obtained.

Under § 516.120, RSMo 2000, among the actions that shall be commenced within five years are those actions “upon contracts!;.]” § 516.120(1), RSMo 2000.

As this was a non-jury trial, our review is under Rule 73.01. Oliver v. Blackwell, 2 S.W.3d 160, 160 (Mo.App.1999). That rule requires that the trial court’s judgment be sustained, unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. In re Marriage of Lafferty, 788 S.W.2d 359, 361 (Mo.App.1990).

Under Missouri law, the applicable statute of limitations does not commence until the fact of damage is ascertainable. Birdsong v. Christians, 6 S.W.3d 218, 229 (Mo.App.1999). However, the fact of damage may be ascertainable “even if the exact amount of damage cannot be verified or if some additional damage may arise at a future time.” Id. The term “capable of ascertainment” has been interpreted to signify “the moment plaintiffs damages are substantially complete.” Business Men’s Assur. Co. of America v. Graham, 984 S.W.2d 501, 507 (Mo.banc 1999) (internal citation omitted).

Verbrugge testified that a gutter collapsing and “hanging down in front of [a] window .... was one of the last straws ... [that led to him] to decide to file the lawsuit.” Verbrugge also testified that he “knew about the dent, the guttering, the fascia and the leaking in April of 1994[.]”

In his brief and in oral argument by his counsel, Verbrugge appears to primarily rely upon Linn Reorganized School Dist. No. 2 of Osage County v. Butler Mfg. Co., 672 S.W.2d 340 (Mo.banc 1984). We agree that the analysis of § 516.100 therein contained is controlling and gives merit to Point I. Linn Reorganized School Dist. quotes from Davis v. Laclede Gas Co., 603 S.W.2d 554, 556 (Mo.banc 1980), which appears to adopt the view articulated in Developments in the Law — Statutes of Limitation, 63 Harv.L.Rev. 1177, 1205 (1950), that Missouri’s “capable of ascertainment” language recognizes that the limitations period does not commence from technical breach but from the existence of a practical remedy. Linn Reorganized School Dist., 672 S.W.2d at 343.

Thereafter, the Linn Reorganized School Dist. court concludes that under the circumstances of that case:

[I]f the wrong done is of such a character that it may be said that all of the damages, past and future, are capable of ascertainment in a single action so that the entire damage accrues in the first instance, the statute of limitation begins to run from that time. If, on the other hand, the wrong may be said to continue from day to day, and to create a fresh injury from day to day, and the wrong is capable of being terminated, a right of action exists for the damages suffered within the statutory period immediately preceding suit.

Id.

As a practical matter, the full extent of the damages could not have been ascertained until the collapse of the guttering, which occurred in 1997. That something may happen does not mean it will.

Although the “ascertainment” of when there is more than one item of damages under § 516.100 has created confusion, we believe its purpose was to prevent a party from having to file suit before there could be a practical determination of the extent of damages. To deny Ver-brugge’s claim may force others in similar situations to bring premature actions which might not be necessary or create disputes as to future occurrences which may or may not occur. The past is often difficult to ascertain, much less the future. We hold that on these facts, as a matter of law, Vergrugge’s claim is not time-barred. Point I has merit.

As it may be relevant upon any re-trial, we proceed to discuss the issues presented in Point II.

Point II — Ambiguity of warranties

In his second point, Verbrugge contends that the trial court erred in denying the breach-of-warranty claim against ABC. According to Verbrugge, ABC did have responsibility under the labor and workmanship warranty because both that warranty and the materials warranty were ambiguous and, therefore, should be construed against the maker.

Our general standard of review is as stated in Point I, that we will sustain the trial court’s judgment unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Lafferty, 788 S.W.2d at 861.

We can find nowhere in the record that the issue of any alleged ambiguity of the warranties was before the trial court. In general, an issue not advanced before the trial court is not preserved for appellate review. Scism v. Scism, 844 S.W.2d 506, 507 (Mo.App.1992). Appellate courts rarely grant plain-error review in civil cases. Davolt v. Highland, 119 S.W.3d 118, 135 (Mo.App.2003). We reserve such review for cases in which hatred, passion or prejudice has been produced, resulting in a manifest injustice or miscarriage of justice. Buatte v. Schnuck Mkts., Inc., 98 S.W.3d 569, 573 (Mo.App.2002).

Even under a gratuitous plain-error review here, we cannot find that the trial court erred. We agree with the trial court that there was substantial evidence to show that the only warranty applicable to ABC was the first one in which it provided a warranty on the materials installed. Little testified that ABC’s only role in the business was to supply material. ABC did nothing else; it provided no labor and no machinery. Thus, the second warranty, the one under which a warranty was provided for labor and workmanship, related to Franchisee and not to ABC, as was indicated on the warranty itself where only the Franchisee’s name, address and phone number were listed. Further, the first warranty, which was signed by Beyers, as president of ABC, did appropriately disclaim any warranty of ABC as manufacturer of the installation or any defects caused by installation. See Karr-Bick Kitchens & Bath, Inc. v. Gemini Coatings, Inc., 932 S.W.2d 877, 879 (Mo.App.1996).

Point II is denied.

Conclusion

The judgment as to the issues presented in Point II is affirmed. Otherwise, the judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

GARRISON, P.J., and RAHMEYER, J., concur.

      . In its Answer to Petition in Damages, Respondent ABC Seamless, Inc. states that its proper corporate name is "ABC, Inc.”

      . Franchisee was organized in April, 1994. Jim Little had had an ownership interest and had been a silent partner in Original Franchisee, but Franchisee was "his company.”

      . Franchisee had also raised the affirmative defense that the claims against it were time barred under § 400.2-725, RSMo 2000, which states a four-year statute of limitations in contracts for sale. The trial court determined that this was a contract action covered by § 516.120, RSMo 2000, and that determination is not challenged on appeal.

      . Although, not an issue here, Linn Reorganized. School Dist. also notes that in a contract case, the limitations period does not start until time for correction of defects has passed. 672 S.W.2d at 344. See also Loeffler v. City of O’Fallon, 71 S.W.3d 638 (Mo.App.2002).


author: RAHMEYER, J.

text:
    Damien F. MCMANEMIN, Plaintiff-Appellant, v. John MCMILLIN, M.D., et al., Defendant-Respondent.
    No. 26004.
    Missouri Court of Appeals, Southern District. Division One.
    Feb. 1, 2005.
    Motion for Rehearing and Transfer Denied Feb. 23, 2005.
    Application for Transfer Denied April 5, 2005.

      Thomas Ducey, of Belleville, IL, for Appellant.
    Kent O. Hyde, Shannon A. Vahle, of Springfield, MO, for Respondent.
   RAHMEYER, J.

Damien F. McManemin (“Appellant”) filed a suit against John McMillan, M.D., (“Respondent”), Notami Hospitals of Missouri, d/b/a Springfield Community Hospital, and Fred Potts, II, M.D., for medical negligence on August 7, 1997. After a tortured procedural history, on April 2, 2003, the court struck Appellant’s pleadings for discovery violations and entered judgment for Respondent. Appellant brings one point of error with three sub-points, claiming the trial court abused its discretion in granting judgment for Respondent. The judgment is affirmed.

The parties agree that Rule 61.01(d) allows the trial court to strike pleadings, dismiss the action or render a judgment by default if a party fails to produce documents and tangible things as requested under Rule 58.01. It is also agreed that interrogatories and a request for production were propounded to Appellant. “The existence of prejudice and the determination of appropriate sanctions against a rule violator rest primarily in the sound discretion of the trial court.” Hilmer v. Hezel, 492 S.W.2d 395, 396 (Mo.App. E.D.1973). Although Appellant graces us only with the facts that occurred on or after February 26, 2003, the events occurring prior to that time are significant in an analysis of the reasonableness of the trial court’s decision to strike Appellant’s pleadings.

On January 21, 1999, one and a half years after the suit was filed, Respondent filed discovery requests, including interrogatories and a request for production. Respondent filed a motion to compel Appellant to respond to discovery requests on March 22, 1999; the court sustained the motion on September 2, 1999. The Order instructed Appellant to fully and completely comply with the discovery requests within twenty days of the Order or Appellant’s pleadings against Respondent would be stricken and judgment entered against Appellant. Appellant did not respond to the discovery requests and on October 22, 1999, the trial court entered judgment in favor of Respondent as a discovery sanction.

Shortly after his pleadings were struck, on November 9, 1999, Appellant filed the following answers to Interrogatory Nos. 25 and 26:

25. Were any of the following items completed by you or anyone' acting on your behalf as a result of the occurrence alleged in your pleadings?
(a) Photographs, other than those identified previously in your answer to these interrogatories;
(b) Pictures, drawings, or diagrams or written descriptions of any kind;
(c) Video tapes or films; and
(d) Recordings, other than those identified previously in your answers to these interrogatories.
ANSWER: Yes. Of conversations with [Respondent].
26. For each affirmative answer to the items in the preceding interrogatory, state:
(a) Precise identification of each item;
(b) Date, time and place of completion and the name and address of pér-son(s) completing same;
(c) The name and address of the custodian thereof; and
(d) Whether the person(s) completing same was expressly employed by you or anyone acting in your behalf for this purpose prior to that time and whether you claim it to be a work product.
ANSWER:
a. Tape recording of statements made by [Respondent].
b. Of visits after release from hospital.
e. Attorney, Thomas Ducey[.]
d. No.

Appellant responded to Request for Production No. 5 for any “statements” made by Respondent as follows: “[Appellant has] no statements other than the recordings previously identified which do not meet legal definition of a statement nor does [Appellant] at this time have any statements made by [Respondent’s] servants, agents and employees[.]”

Approximately eight months later, on July 31, 2000, Appellant filed a motion to set aside the judgment entered against him; the trial court sustained the motion on December 4, 2000. The case was again set for trial, this time to commence on April 28, 2003. Although Appellant acknowledged the existence of statements of Respondent in discovery answers and did not claim them as work product, as of February 26, 2003, Respondent had not received any of the documents listed in Interrogatory No. 25 and requested in Request for Production No. 5. Respondent filed a motion to compel the production of the recorded statements of himself which were identified in the interrogatory answers and contemporaneously filed a notice that the motion would be set for hearing on March 5, 2003. In his motion to compel, Respondent noted that “[Appellant] claim[s] that the recordings do not meet the legal definition of a statement,” but also noted the Supreme Court Rule 56.01(b)(3) definition which included stenographic, mechanical, electrical, audio, video or other recordings as a “statement.” Respondent requested sanctions, including the striking of pleadings, dismissing the action and judgment by default, pursuant to Rule 61.01(d).

The day before the motion to compel was to be heard, Appellant filed a motion to continue the hearing because of a scheduling conflict of a trial which would last three or four weeks. Appellant requested that the hearing be set for “sometime mid March, 2003”; however, he did not file a notice of when his motion for continuance would be heard. On March 5, 2003, no one appeared on Appellant’s behalf and the motion to compel was sustained, giving Appellant ten days to produce the recorded statements of Respondent. Counsel for Respondent faxed correspondence to Appellant’s counsel that same date notifying him of the Court’s ruling on the motion to compel. Appellant admits to receiving the letter, but claims a defect in not receiving the actual court order sustaining the motion to compel. Appellant thereafter did not produce the statements.

On March 21, 2003, Respondent filed a motion for sanctions and a notice of hearing for April 2, 2003, which was the date that a pre-trial conference had been set. Appellant contends in his argument that he filed a motion for a continuance due to scheduling conflicts by faxing the motion to the trial judge and Respondent’s counsel on the day before the hearing; the motion for continuance is not shown as being filed, nor was a date set for a hearing on the motion. In the motion itself, Appellant requested a continuance of the hearing on Respondent’s First Motion in Limine for the reason that the Motion in Limine was set without notice to counsel; the motion for continuance did not address the pending motion for sanctions. The court entered judgment in favor of Respondent on April 2, 2003, as a result of Appellant’s failure to produce and comply with the Court’s order compelling Appellant to produce the recorded statements of Respondent. It is from this dismissal that Appellant appeals.

Appellant argues that the tape recordings of conversations with Respondent were not subject to production and that it was Respondent’s obligation to seek a ruling on that contention. Aside from the problem with Appellant’s answers to Interrogatory No. 26, where he denied the statements were work product, that argument was never properly placed before the trial court. At no time did Appellant properly raise a work product defense to the court, nor did the trial court ever rule on that contention. In his point relied on, Appellant did not posit trial court error regarding any ruling whether the “statements” were in fact protected by any work product claim. We therefore assume, as the trial court was free to do, that the tape recordings were subject to proper discovery requests to which Appellant never responded.

In his point relied on, Appellant claims he was not given reasonable notice of the hearings in which his pleadings were to be stricken; second, he claims there was no evidence that his conduct showed a contumacious and deliberate disregard for the authority of the court; and, third, there was no evidence that [Respondent] suffered prejudice because of any noncompliance with discovery. The facts do not support Appellant’s contentions.

Keeping in mind that Appellant’s claim of error concerns the grant of sanctions on April 2, 2003, our analysis is whether proper notice was given on March 21, 2003, for a hearing set on April 2, 2003. Although Appellant contends he was not given reasonable notice because opposing counsel knew Appellant’s counsel was not available, his contention has no merit. A pretrial conference was set for April 2, 2003, for a trial date of April 28, 2003; the notice for the motion for sanctions was set for the pre-trial date. The motion for continuance was not faxed to the court until the day before the hearing. Appellant provides no cases to support any theory that the notice was not reasonable in time; his theory is that he was not given an opportunity to present his views because he could not be present. Although in his argument he claims that the “[Respondent] set motions ... when he knew the attorney for the [Appellant] was in trial,” Appellant presented no evidence that Respondent knew Appellant was unavailable when the matter was set for hearing.

Appellant is actually arguing that, after Respondent and the court were informed of the unavailability of Appellant’s counsel for the pretrial conference, it was unreasonable to have a hearing on the motion for sanctions. In other words, the trial court abused its discretion when it failed to continue the hearing of a motion that was not filed, which did not address the merits of the motion to compel or for sanctions, which was faxed to the court the day before the pretrial conference, and which was never properly “noticed up.” We find no abuse of discretion. Appellant was given adequate notice on March 21, 2003, that a motion for sanctions would be argued before the court on April 2, 2003. He was given an opportunity to be heard and chose not to avail himself of that opportunity.

Appellant’s second subpoint alleges trial court error in entering judgment against him because his behavior was not contumacious and in disregard for the authority of the court. We note the earlier dismissal for failure to respond to discovery requests and the time delay in requesting the dismissal be set aside. Again, with a trial date in the near future, the failure of Appellant’s counsel to appear for a pretrial conference along with the failure to produce a properly requested recording provides a basis for the trial court to find Appellant’s actions to be contumacious and with deliberate disregard for the trial court’s authority. See Norber v. Marcotte, 134 S.W.3d 651, 660 (Mo.App. E.D.2004) (incomplete, unverified, and unorganized production of documents warrants sanctions including judgment against the producer of the documents); see also Amick v. Horton, 689 S.W.2d 369 (Mo.App. S.D.1985) (the failure to answer interrogatories despite four warnings by an attorney and two orders by the court manifests contumacious and deliberate disregard for the trial court’s authority). Appellant’s second subpoint has no merit.

Appellant’s final subpoint argues that there was no evidence that Respondent suffered prejudice because of Appellant’s alleged non-compliance with discovery and is also without merit. Again, we note that the trial was to start twenty-six days after the pretrial conference and, yet, Respondent had not received any of his own purported statements. Respondent cannot show the extent of prejudice to him because the statements have never been produced. We find no abuse of discretion in the trial court’s finding that Respondent was prejudiced by the failure of Appellant to comply with discovery. Point denied.

The judgment is affirmed.

GARRISON, P.J., and PREWITT, J„ concur.

      . The remaining defendants are not parties to this appeal. Appellant's wife was also a plaintiff, but is not a party to this appeal.

      . The trial court found no just reason for delay and designated the judgment final pursuant to Supreme Court Rule 74.01(b). All rule references are to Supreme Court Rules (2003), unless otherwise stated.

      . The original petition was filed on January 24, 1995, with a trial setting for September 3, 1996. Appellant voluntarily dismissed the petition on August 7, 1996, but refiled on August 7, 1997. The docket sheet from Greene County indicates the case was filed in Greene County on May 13, 1998, on a change of venue from Jackson County, Missouri. Respondent filed an Answer and a Motion for Summary Judgment prior to the filing of discovery requests.

      . A transcript of a tape recording is a statement within the terms of Rules 56.01 and 57.01(b). Combellick v. Rooks, 401 S.W.2d 460, 464 (Mo. banc 1966).

      . See Combellick v. Rooks, 401 S.W.2d at 464, (defendant was prejudiced by the use of a previous transcript of a police court recording after plaintiff failed to disclose its contents in answers to interrogatories).