author: PATRICIA L. COHEN, Judge.

text:
    ALEA LONDON LIMITED, Appellant, v. BONO-SOLTYSIAK ENTERPRISES, d/b/a Laclede Street Bar & Grill, Kenneth Weger, and Theresa Weger, Respondents.
    No. ED 85316.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 17, 2006.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 2, 2006.
    Application for Transfer Denied April 11, 2006.

      Laurel Stevenson, Nikki Cannezzaro, Springfield, MO, for Appellant.
    Frank N. Carter, Jr., St. Louis, Elkin L. Kistner, Adam R. Lorenz, Clayton, MO, for Respondent.
   PATRICIA L. COHEN, Judge.

Introduction

Alea London Limited appeals from a judgment in favor of Bono-Soltysiak Enterprises d/b/a Laclede Street Bar and Grill (“Laclede Street”), Kenneth Weger and Theresa Weger (“the Wegers”) on Alea London’s First Amended Petition for Declaratory Judgment and/or Reformation and Judgment on an Insurance Policy. We affirm.

Statement of the Facts and Proceedings Below

Alea London, a surplus lines insurer based in London, England, commenced covering Laclede Street on December 20, 2001. Evidence of the coverage was contained in a document faxed by Jaeger + Haines, Alea London’s Arkansas broker and general agent, to Midwest Agency, Laclede Street’s insurance broker. This document contained, among other things, a written description of the amount of the coverage, the premium, and the liability limits. In addition, the document specifically referenced a “condition”: “Excludes Assault & Battery.”

On January 3, 2002, Michael Metzger, a Laclede Street patron, fatally stabbed Michael Weger in the parking lot of Laclede Street. Mr. Metzger was later convicted of involuntary manslaughter and armed criminal action in connection with Mr. Weger’s death. On January 16, 2002, Jae-ger + Haines issued the policy to Laclede Street. The policy identified the effective coverage period as December 20, 2001 to December 20, 2002. The business description found on the common declarations page identified Laclede Street as a restaurant. Likewise, the premium section of the declarations page classified Laclede Street as a restaurant “with no sale of alcoholic beverages — without dance floor.”

The January 16 policy included a liquor liability exclusion which provided as follows:

“Bodily injury” or “property damage” for which any insured may be held liable by reason of:
(1) Causing or contributing to the intoxication of any person;
(2) The furnishing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol; or
(3) Any statute, ordinance or regulation relating to the sale, gift, distribution or use of alcoholic beverages.
This exclusion applies only if you are in the business of manufacturing, distributing, selling, securing or furnishing alcoholic beverages.

The policy also contained an attached “Combination Endorsement — 1” (“the Endorsement”) which materially altered the policy by, among other things, deleting and replacing the “Expected or Intended Injury” exclusion in the main body of the policy, and provided as follows:

Exclusion — Assault or Battery
Exclusion a. of Coverage A (Section 1) is deleted and replaced with the following: “Bodily injury” or “property damage”:
(1) expected or intended from the standpoint of any insured;
(2) arising out of assault or battery, or out of any act or omission in connection with the prevention or suppression of an assault or battery; or
(3) arising out of charges or allegations of negligent hiring, training, placement or supervision.

On August 22, 2002, Mr. Weger’s parents, Kenneth and Theresa Weger, filed a wrongful death suit against Laclede Street. Upon being tendered the defense of the lawsuit, Alea London issued a reservation of rights letter agreeing to undertake defense of the lawsuit. Shortly thereafter, Alea London filed a Petition for Declaratory Judgment seeking a determination that the Alea London policy issued to Laclede Street subsequent to Mr. Weger’s death did not cover the Wegers’ claims. Alea London attached the policy at issue to its Petition. Alea London thereafter moved for summary judgment. Following the trial court’s denial of summary judgment, Alea London filed a First Amended Petition, added allegations that it made a mistake in classifying Laclede Street as a “restaurant which did not serve any alcohol” and sought reformation of the policy to show “the proper business description as a restaurant serving less than 75% alcoholic beverages.”

At trial, Alea London proffered an expert witness, Peter Hans, to discuss the significance and effect of, among other things, the assault and battery exclusion contained in the Endorsement. Mr. Hans testified that the Endorsement contained language that was standard, but acknowledged there were multiple versions of assault and battery exclusions used in the surplus lines industry. By contrast, Lac-lede Street offered testimony through its expert, William Hagar, that the language in the Endorsement was not “mainstream” and was “draconian.” In addition, Dean Brown, the Midwest Agency broker who obtained the Alea London policy, testified that the surplus lines industry used several different types of assault and battery exclusions and the binder provided no direction regarding which assault and battery exclusion would be used in the policy. Moreover, the trial court heard testimony that Laclede Street subsequently obtained a surplus lines policy that did not contain the type of restrictive exclusion described in the Endorsement.

Following the trial, the trial court issued a judgment in favor of Laclede Street and the Wegers. The trial court determined that the written document faxed by Jaeger + Haines to Midwest Agency constituted a binder of coverage for Laclede Street for the period of December 20, 2001 until December 20, 2002. The trial court concluded, as a matter of law, that the binder was the “operative insurance contract,” acknowledging, however, that in general, a binder may be governed by the terms of a later issued policy “only if the policy in question is a ‘standard ... of policy,’ ” [sic] citing Pape v. Midi-America Preferred Insurance Co., 738 S.W.2d 882, 884 (Mo.App. W.D.1987). The trial court declined to incorporate the language contained in the Endorsement into the binder on the grounds, in essence, that the evidence adduced at trial was insufficient to establish that such an exclusion was a standard policy term in the surplus lines industry. The trial court further found that the assault and battery term included in the binder was ambiguous and should be construed against Alea London. Finally, the trial court determined that the binder did not contain a liquor liability exclusion and that the policy, as written, “rendered the alcohol liability exclusion a nullity.”

The trial court considered and rejected Alea London’s request for reformation of the contract. In particular, the trial court noted that there was no evidence adduced at trial that Laclede Street participated in or contributed to the “mistake.” This appeal followed.

Standard of Review

We affirm the judgment of the trial court when there is no substantial evidence to support it, it is against the weight of the evidence or the trial court erroneously declared or applied the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). See also, Knipp v. Truck Ins. Exchange, 857 S.W.2d 281, 284 (Mo.App.W.D.1993)(stating coverage disputes tried to the court are governed by Murphy v. Carron). , We defer to the trial court’s factual findings, giving due regard to the trial court’s opportunity to judge the credibility of witnesses. Peet v. Randolph, 157 S.W.3d 360, 363 (Mo.App.E.D.2005). We review the evidence and reasonable inferences in the light most favorable to the judgment, disregarding contrary evidence and inferences. Consumer Finance Corp. v. Reams, 158 S.W.3d 792, 795 (Mo.App.W.D.2005). With respect to resolution of contractual ambiguities, we are faced with a question of law and our review is de novo. Leventhal v. Trustmark Ins. Co., 39 S.W.3d 46, 50 (Mo.App.E.D.2001).

Discussion

A. Construction of the Binder

Alea London contends in its first point that the trial court erred in disregarding the terms, conditions and exclusions contained in the Alea London policy issued on January 16, 2002. More specifically, Alea London contends the later-issued policy “contains the entire agreement between the parties.” Laclede Street and the Weg-ers contend, inter alia, that: (1) the assault and battery exclusion contained in the policy was not part of the binder because it was not a standard or usual term; (2) the reference in the binder to a “condition” which “excludes assault and battery” was ambiguous and should be construed against Alea London; and (3) the liquor liability exclusion did not apply to Laclede Street because the policy expressly classified Laclede Street as a restaurant.

Missouri courts recognize that parties may enter into a temporary contract of insurance, known as a binder. Hay v. Utica Mut. Ins. Co., 551 S.W.2d 954 (Mo.App.Spring.Dist.1977). A binder may be “sketchy and informal in comparison with the policy contemplated for issuance and delivery in the future, [but] it is a contract of insurance in praesenti, subject only to the conditions which it itself imposes.” Couch on Insurance 3d Section 13:1. When a loss occurs after coverage has been bound but before the issuance of a policy, the question of the scope of coverage is resolved by determining the amount of coverage contemplated by the binder. See Hay, 551 S.W.2d at 957 (“suit here is based on the binder not on the policy”); Pape, 738 S.W.2d at 882 (“the issue in the case and the dispute between appellants and respondent was the amount of coverage which the insurance binder provided for silverware”); World Trade Center Properties L.L.C. v. Hartford Fire Ins. Co., 345 F.3d 154, 169 (2nd Cir.2003)(a binder is “an enforceable contract in its own right”) Thus, the trial court did not err when it considered the binder to be the “operative insurance contract” for purposes of determining coverage with respect to the claims in the Wegers’ lawsuit.

Certain binders expressly incorporate by reference the terms of the policy to be issued. See Pape, 738 S.W.2d at 883. (“The binder also included the following statement: This insurance is subject to the terms, conditions and limitations of the policyfies) in current use by the Company.”) When a binder expressly incorporates policy conditions by reference, there is no question that, to the extent terms sought to be incorporated are standard or “usual,” the binder should be interpreted to include such terms. Id. Thus, when construing the contents of the binder, courts first look to “the specific terms contained in the binder or incorporated by reference” and then, only to the extent necessary as a “gap-filler,” turn to the policy to ascertain “usual” terms or those required by statute. World Trade Center, 345 F.3d at 169 (applying New York law). As one court succinctly summarized in a recent opinion, “... if terms may fairly be characterized as ‘usual’ or ‘stereotypical,’ they form a part of the policy even if not referred to in the binder; if not, not.” Progressive Cas. Ins. Co. v. C.A. Reasegu-radora Nacional de Venezuela, 802 F.Supp. 1069, 1076 (S.D.N.Y.1992), rev’d on other grounds, 991 F.2d 42 (2d Cir. 1993). Likewise, as another court recently stated:

In the insurance context, when a loss occurs after a binder has been issued, but before a policy is written, the insurer is bound to provide coverage in line with its standard policies referenced in the binder, or policies standard throughout the industry.

Pine Ridge Realty, Inc. v. Massachusetts Bay Ins. Co., 752 A.2d 595, 599 (Me.2000). (citations omitted) (emphasis added).

The rationale for limiting implied terms to those that are “usual” or “stereotypical” was cogently articulated in Hilt Truck Lines, Inc. v. Riggins, 756 F.2d 676, 678 (8th Cir.1985):

... if binders are always to be read as including all of the limitations and exclusions that may turn up in the written policy when eventually issued, and if this rule is applied even to written policies issued after the occurrence of a loss, then the oral contract can be rendered completely nugatory by the unilateral act of one party to it, the insurance company.

Moreover, courts that recognize that it is appropriate to condition a binder by “limitations usual to the contemplated” coverage do so because of an assumption that “many policy clauses are either stereotypes or mandated by public regulation.” Westchester Resco Co., L.P. v. New England Reinsurance Corp., 648 F.Supp. 842, 845 (S.D.N.Y.1986). Here, however, we are dealing with a surplus lines insurer whose policies are not regulated by the State of Missouri and may “customize rates and forms for each risk insured.” See fn. 1, supra. Thus, the existence of “stereotypes” and/or standard forms which are part of a regulated commercial general liability policy and support the implication of standard terms into the binder, are not necessarily the norm in the surplus lines industry.

1. Does the binder term “Condition: Excludes Assault & Battery” exclude coverage for claims asserted in the Weg-ers’ lawsuit?

The trial court properly determined that the “Condition: Excludes Assault & Battery” term contained in the binder did not exclude coverage for claims asserted in the Wegers’ lawsuit. As an initial matter, the trial court correctly refused to expressly incorporate the Endorsement into the binder because the binder did not contain express language subjecting it to the language in the policy. Moreover, the binder itself was not silent; it specified a term referencing a limit on assault and battery coverage. However, even assuming it was proper to consider the later-issued policy in an effort to supply meaning to the “sketchy” binder term, “Condition: Excludes Assault & Battery,” the trial court properly refused, under the circumstances of this case; to use the language in the Endorsement as a guide to the intended coverage.

The trial court heard extensive testimony on forms used both by Alea London and the surplus lines industry. The trial court made a specific finding that the Alea London expert who testified that the relevant language in the Endorsement was typical was not credible. We are required to defer to the trial court’s credibility findings. See Brawley v. McNary, 811 S.W.2d 362, 365 (Mo. banc 1991). Moreover, the record contains evidence that the Endorsement was not mainstream and was “draconian.” Given the trial court’s refusal to credit testimony describing the Endorsement as “typical” or “usual,” there was no basis to incorporate the Endorsement into the binder. Pape 738 S.W.2d at 886. See also, Hilt Truck Lines, 756 F.2d at 678-79 (where insurer failed to adduce evidence that exclusion in policy was “usual” for industry, the court properly refused to include the exclusion in the binder).

Having determined that the trial court properly refused to incorporate the Endorsement into the binder, we consider whether the trial court erred when it construed the binder term “Condition: Excludes Assault & Battery” as ambiguous. In general, where the. language of an insurance policy is ambiguous, it must be construed against the insurer. Gulf Ins. Co. v. Noble Broadcast, 936 S.W.2d 810, 814 (Mo. banc 1997). Moreover, “[provisions restricting coverage are particularly construed most strongly against the insurer.” Meyer Jewelry Co. v. General Ins. Co. of Am., 422 S.W.2d 617, 623 (Mo.1968). As we have recently reiterated, “an ambiguity exists when there is duplicity, indis-tinctiveness or uncertainty in the meaning of the language used in the policy. Language is ambiguous if it is reasonably open to different constructions.” State Farm Mut. Auto. Ins. Co. v. Esswein, 43 S.W.3d 833, 840-41 (Mo.App.E.D.2003). With respect to the construction of binders in particular, a binder which is ambiguous should be construed in favor of the insured. Couch on Insurance 3d Section 13:6; Turner v. Worth Ins. Co., 106 Ariz. 132, 472 P.2d 1, 3 (1970). Moreover, even in circumstances, unlike here, where a standard policy term is incorporated into the binder, if “the terms of a binder conflict with the terms of the standard policy, an ambiguity arises, and the binder and policy will be construed together, with the most liberal provision, in favor of the insured, controlling.” Pine Ridge Realty, 752 A.2d at 599.

Both parties adduced evidence at trial regarding the meaning of the term “Condition: Excludes Assault & Battery.” Assuming that the term expresses an intent to exclude assault and battery from coverage, the record establishes that the surplus lines industry employed at least two exclusions which potentially exclude coverage for assault and battery. The first type of exclusion excludes coverage for acts expected or intended from the standpoint of the insured. This would typically exclude acts of the insured’s employees, rather than patrons. Indeed, this type of exclusion is found in the body of the policy issued to Laclede Street. The second type of exclusion is much broader and excludes liability from injuries expected or intended by the insured as well as injuries arising from assault and battery regardless of who committed the act or whether expected or intended by the insured. This exclusion was found in the Endorsement which was attached to the policy and deleted and replaced the less restrictive language found in the policy. The binder language is insufficient to indicate which version of an assault and battery exclusion applies. Because we construe ambiguous terms against the insurer, we conclude that the binder term does not preclude coverage for the claims asserted by the Wegers.

In arguing that the binder term is not ambiguous, Alea London focuses on the meaning of the words “assault and battery” as used in the binder and in the Endorsement. In particular, Alea London relies on several cases involving summary judgments appealed after a trial court construed an “assault and battery” exclusion used by Capital Indemnity insurance company. See Capitol Indem. Corp. v. Callis, 963 S.W.2d 247 (Mo.App. W.D.1997). In the Capital Indemnity cases, courts construed a very detailed assault and battery exclusion that contained its own set of definitions. In contrast here, neither the Endorsement nor the binder contained similar language.

Alea London also points to Peck v. Alliance Gen. Ins. Co., 998 S.W.2d 71 (Mo.App. E.D.1999) as support for the proposition that all assault and battery exclusions reach negligence claims. We do not read Peck as determining this question. Nor do we decide the question here. Suffice it to say that, depending on the particular language used in an assault and battery exclusion, some policies may exclude coverage for negligence claims and some may not, hence, the ambiguity created here regarding the meaning of the binder term.

2. Does the liquor liability exclusion in the policy exclude coverage for the claims asserted in the Wegers’ lawsuit?

Alea London contends that because the Wegers’ claims arose out of Laclede Street’s negligence in serving alcohol to Mr. Metzger, the liquor liability exclusion contained in the January 16 policy excludes coverage. There is no question that the binder neither expressly referenced liquor liability coverage nor employed language subjecting the binder to terms in the policy. However, Alea London argues that because the liquor liability exclusion was part of the policy, the trial court erred in refusing, as a matter of law, to incorporate it into the binder.

As we have discussed above, to warrant incorporation into the binder, there must be evidence adduced at trial that the policy term at issue is a standard or typical term. See Pape, 738 S.W.2d at 886. While .we disagree with Laclede Street and the Wegers’ declaration that Pape can never be applicable to a surplus lines binder, we conclude that where, as here, the record lacks sufficient credible proof that the term sought to be incorporated is standard or typical, it is not proper to incorporate a policy term into a binder.

Because we conclude that incorporating the liquor liability exclusion into the binder is not appropriate in the absence of evidence that the specific exclusion asserted here is typical or standard in the surplus fines industry, we do not need to reach Alea London’s argument that the liquor liability exclusion covers Laclede Street even though Alea London classified Laclede Street as a restaurant not serving alcohol in the policy. However, we do note that the unambiguous language of the policy provided that the liquor liability exclusion applied only to insureds in the “business of manufacturing, distributing, selling, serving or furnishing alcoholic beverages.” Furthermore, the policy expressly described Laclede Street as a restaurant on its common declarations page and further classified Laclede Street on its “coverage part declarations” page as “restaurants — with no sale of alcoholic beverages — without dance floor.” If we construe this language as unambiguous, as Alea London urges, and incorporate the exclusion into the binder, the rules of construction are inapplicable and we must enforce the policy as written. Mansion Hills Condominium Ass’n. v. American Family Mut. Ins. Co., 62 S.W.3d 633, 637 (Mo.App. E.D.2001). Furthermore, where there is no ambiguity, extrinsic evidence is inadmissible to determine the intent of the parties. Daniels Exp. and Transfer Co. v. GMI Corp., 897 S.W.2d 90, 92 (Mo.App. E.D.2003). Because the exclusion, as written and construed, with reference to the policy as a whole, does not exclude coverage of “liquor liability” claims against insureds who do not sell alcohol, as Alea London classified Laclede Street, Alea London cannot rely on the exclusion to deny coverage.

Although Alea London acknowledges the problem caused by its clam-sifícation of Laclede Street as a restaurant (and attempts to redress the problem through reformation of the policy), it argues that the policy should be interpreted to exclude coverage because Laclede Street “had no reasonable expectation that the insurance contract between Alea London and Laclede would provide coverage for Liquor Liability.” The “reasonable expectation rule of construction” provides that “the objective reasonable expectations of adherents and beneficiaries to insurance contracts will be honored even though a thorough study of policy provisions would have negated these expectations.” Robin v. Blue Cross Hosp. Service, Inc., 637 S.W.2d 695, 697 (Mo. banc 1982). However, as Alea London concedes, citing Shelter Mut. Ins. Co. v. Flint, 837 S.W.2d 524, 529 (Mo.App. W.D.1992), the reasonable expectations rule cannot be used to construe unambiguous policy terms. Thus, whether Laclede Street expected liquor liability coverage is not a relevant consideration here.

B. Reformation

In its final point on appeal, Alea London contends that the trial court erred in denying Alea London’s request to reform the policy it issued thirteen days after Mr. Weger’s death. The trial court refused to reform the policy on several grounds: (1) no proof of fraud or material mistake; (2) estoppel; and (3) the binder did not include a liquor liability exclusion and therefore reformation is a “useless academic exercise.”

Because we have concluded that Alea London failed to adduce evidence that the liquor liability exclusion was a standard or typical term, thus precluding its incorporation into the binder, reformation of the policy would not result in the exclusion of liquor liability coverage. Thus, we do not need to reach the propriety of the trial court’s analysis and conclusions.

However, even if we were to consider whether the trial court erred in refusing to reform the policy, we would affirm the trial court’s determination. As an initial matter, it is well-settled that reformation of a contract is an extraordinary equitable remedy and should be granted with great caution and only in clear cases of fraud or mistake. Elton v. Davis, 123 S.W.3d 205, 212 (Mo.App. W.D. 2003). As our Supreme Court has held, an entitlement to reformation must be shown by “clear, cogent, convincing evidence, beyond a preponderance of the evidence and so as to leave no room for reasonable doubt....” American Family Mut. Ins. Co. v. Bach, 471 S.W.2d 474, 477 (Mo.1971).

Alea London contends that its classification of Laclede Street as a restaurant not serving alcohol reflects a mutual mistake. Alea London concedes, however, that, prior to the issuance of the policy, Laclede Street conveyed to Alea London information from which Alea London could conclude that Laclede Street served alcohol. As defined in Williston on Contracts kth ed. “[a] mutual mistake occurs when both parties, at the time, of contracting, share a misconception about a basic assumption or vital fact upon which they based their bargain.” 27 Williston on Contracts, kth ed., Section 70:107, p. 536. Moreover, “[w]hether parties are laboring under a mútual mistake is normally a question of fact.” Id. at Section 70:904, p. 503. Here, there was no proof adduced that either party shared a mistaken assumption upon which the contract was based.

By contrast, a unilateral mistake is a mistake on the part of only one of the parties and is generally not an adequate basis for reformation. Kopff v. Economy Radiator Service, 838 S.W.2d 449, 452 (Mo.App. E.D.1992). There is no dispute that Alea London drafted the policy and classified Laclede Street as a restaurant which did not serve alcohol, despite receiving accurate information regarding the nature of Laclede Street’s business. Moreover, when Laclede Street became aware of the classification in September 2002 receiving and after reading, for the first time, the Alea London policy, it communicated the inaccuracy. Nevertheless, Alea London failed to modify the policy to reflect what it now seeks. Indeed, Alea London filed suit based on the policy and only sought to reform the policy after the trial court denied summary judgment.

“The law permits reformation of instruments to reflect the true intention of the parties when the error has arisen by the unilateral mistake of one party and that mistake is accompanied by clear and convincing evidence of some sort of fraud, deception or other bad faith activities by the other party that prevented or hindered the mistaken party in the timely discovery of the mistake.” 27 Williston on Contracts Ith ed., Section 70:104, p. 520. See also, Jenkad Enterprises, Inc. v. Transportation Insurance Co., 18 S.W.3d 34, 39 (Mo.App. E.D.2000) (reformation on the ground of mutual mistake not appropriate where insured failed to timely examine the policy even though both insurer and insured knew policy did not reflect the insurance coverage bound for); EBSCO Industries, Inc. v. Royal Ins. Co., 775 So.2d 128, 131 (Ala.2000) (where insurer failed to remove insured from policy despite mutual agreement that insured would no longer be covered, mistake was unilateral and insufficient to support reformation). Here, Alea London adduced absolutely no evidence, let alone clear and convincing evidence, that Laclede Street acted in bad faith, committed fraud or deceived Alea London. Moreover, Laclede Street did nothing to hinder Alea London in the discovery of its error. It is well settled that “[ejquity will not relieve against mistake when the complaining party had within his reach the true state of facts, and, without being induced by the other party, neglected to avail himself of his opportunities of information.” Croy v. Zalma Reorganized School Dist. R-V, 434 S.W.2d 517, 522 (Mo.1968). Point denied.

Conclusion

The judgment of the trial court is affirmed.

MARY K. HOFF, P.J., and CLIFFORD H. AHRENS, J., Concur.

      . A surplus lines insurer is a "non-admitted insurer” within the meaning of Section 384.015 RSMo.2000. Non-admitted insurers are not licensed to do business in Missouri. Surplus lines insurance has been described as a "last resort for the placement of liability or property insurance on unusual risks.” Eric Mills Holmes & Mark S. Rhodes, Holmes' Appleman on Insurance 2d Treatise Guide, Section 2.17 at 325-26 (1996). A recent journal article described surplus lines insurance as follows:
      Surplus lines have traditionally filled a critical void by providing coverage that the admitted market could not because of restrictions on rates and forms. Surplus insurers are not bound by those restrictions and are free to customize rates and forms for each risk insured.

      Moreover, surplus insurers are not held to the same disclosure requirements as admitted insurers, making it more difficult for consumers to determine the exact nature of the risks assumed when purchasing from a surplus carrier.
      K. Michael Fandel, David M. Byers & Paul M. Hummer, Recent Developments in Excess, Surplus Lines, and Reinsurance Law, 36 Tort & Ins. LJ. 301 (Winter 2000).

      . The trial court found that there was no evidence that the policy was delivered to Lac-lede Street. The trial court also found that Laclede Street was not supplied with a certificate in compliance with Section 384.036.4 RSMo. informing the insured of, among other things, the exclusions and endorsements which "would regularly be included in the policy.”

      . The Wegers alleged, among other things, that their son was "attacked and stabbed to death by a patron of [Laclede Street’s].” The Wegers also alleged that Laclede Street was negligent in at least three ways: (1) permitting excessive underage drinking on its premises; (2) permitting brawling and fighting on its premises; and (3) failing to provide adequate security to prevent hostile acts towards its customers. In addition to compensation for their injuries, the Wegers also sought punitive damages.

      .. Several times in its brief, Alea London states that because this dispute arises out of the interpretation of an insurance contract, our review is de novo, citing Southeast Bakery Feeds v. Ranger Ins. Co., 974 S.W.2d 635, 638 (Mo.App. E.D.1998). Southeast Bakery was an appeal of a summary judgment and thus our review was de novo. In addition, as we stated in Southeast Bakery, "where the underlying facts are not in question, disputes arising from the interpretation and application of insurance contracts are matters of law for the court.” Id. (emphasis added). Here the appeal follows a trial on the merits.

      . Because Alea London's first three points are intertwined, we consider them together.

      . At trial Alea London apparently argued that the document Jaeger + Haines faxed to Midwest Agency did not constitute a binder. Alea London acknowledges here that "there is no dispute that [it] agreed, over the telephone, to bind coverage for Laclede ...” Other than referring to the faxed document as a “claimed binder,” Alea London does not contend that the trial court erred in concluding that the faxed document constituted a binder.

      . Although in its point relied on Alea London argues that the "policy contains the entire agreement between the parties,” it appears to acknowledge in the body of its argument, the significance of the Pape decision, which looks first to the binder and then to the policy terms, if standard or usual.

      . Alea London appears to argue, somewhat disingenuously, that because it may use a standard form, at its option, and because Missouri has enacted legislation that relates to the procurement of surplus lines coverage, it should be treated identically to an admitted insurer. However, nowhere does Alea London state that it is bound by statutory restrictions on rates and forms in the same fashion as admitted insurers.

      . Laclede Street and the Wegers argue that use of the term "Condition” is itself confusing and creates an ambiguity because the term "condition” used in an insurance context, describes an act necessary to obtain or preserve coverage and therefore has a different meaning than the term "exclusion.” See Empire Fire and Marine Ins. Co. v. Dust, 932 S.W.2d 416, 418 (Mo.App. E.D.1996) ("an exclusion does not provide coverage, it only limits the obligation undertaken by the policy”). Alea London disagrees that the term "Condition,” as used in the binder, is ambiguous but nevertheless points us to Webster’s dictionary to resolve the issue. The record, however, supports Laclede Street’s contention that "condition” is a term referring to an action an insured must take to preserve its rights to coverage under a policy. In any event, we do not agree that the use of the word "Condition” in conjunction with the phrase "Excludes Assault & Battery” is alone sufficient to create any ambiguity.

      . According to Holmes’ Appleman on Insurance 2d, assault and battery exclusions are "[o]ne of the most frequently litigated subjects in liability insurance law ... The litigation typically concerns not only the interpretation and construction of the assault and battery exclusion but also the exclusion's validity, its applicability to persons or entities covered by the exclusion, and its applicability to the discrete conduct at issue.” 21 Holmes’ Apple-man on Insurance 2d Section 133.1, p. 198. While broadly worded assault and battery exclusions may well exclude the type of claims asserted by the Wegers, more narrowly worded exclusions may not. There is particular disagreement over whether assault and battery exclusions cover acts committed by patrons, rather than insured employees and whether, depending on the particular policy language at issue, negligence claims are excluded. See Validity, Construction, and Effect of Assault and Battery Exclusion in Liability Insurance Policy at Issue, 44 A.L.R.5th 91.

      . In its reply brief, Alea London states: "This liquor liability exclusion was part of the standard commercial general liability policy form customarily used by Alea London and additionally used throughout the industry.” However, Alea London provides us with no citation to the record for this statement and our own review does not reveal any testimony to this effect. This belated acknowledgement of the significance of such a factual finding is an insufficient basis for a finding that the liquor liability exclusion was standard or typical.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Charles KETCHUM, Respondent, v. COMMERCIAL INSTALLATION & CONSTRUCTION CO., and Missouri Printing Industry Trust, Appellants, and Lawrence O. Willbrand, Cross-Appellant.
    Nos. ED 86444, ED 86491.
    Missouri Court of Appeals, Eastern District, Division Two.
    Jan. 24, 2006.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 2, 2006.
    Application for Transfer Denied April 11, 2006.

      Jeffrey Michael Proske, Mary Anne Lindsey (co-counsel), St. Louis, MO, for appellants.
    Lawrence 0. Willbrand, St. Louis, MO, for respondent Ketchum.
    Dana M. Ellison, St. Louis, MO, for respondent Treasurer of MO.
    Lawrence 0. Willbrand, St. Louis, MO, pro se, cross-appellant.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Commercial Installation and Construction Co. and Missouri Printing Industry Trust appeal the Labor and Industrial Commission’s (Commission’s) award of permanent total disability benefits to Charles E. Ketchum (Ketchum). On appeal, Commercial argues that the Commission erred as a matter of law and exceeded its jurisdiction when it awarded Ketchum permanent total disability benefits. Ket-chum’s attorney, Lawrence 0. Willbrand (Willbrand), cross-appeals the Commission’s limitation of his attorney’s fees award.

Considering the whole record, the Commission’s decision is supported by sufficient, competent and substantial evidence. We have reviewed the briefs of the parties and the Record on Appeal, and we find no error of law in this case. Thus, a written opinion would have no precedential value. The judgment is affirmed pursuant to Rule 84.16(b)(4).

      . Appellants will collectively be referred to as “Commercial.''

      . The Second Injury Fund was originally a party in this case. However, the Commission did not find Second Injury Fund liability, and neither is this liability an issue on appeal.


text:
    STATE of Missouri, Respondent, v. Thomas ZEIGLER, Defendant/Appellant.
    No. ED 85998.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 24, 2006.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 2, 2006.
    Application for Transfer Denied April 11, 2006.
    John C. Pleban, Lynette M. Petruska, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel N. McPherson, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY and BOOKER T. SHAW, JJ.
   ORDER

PER CURIAM.

The defendant, Thomas Zeigler, appeals his conviction for assault in the second degree, in violation of section 565.060 RSMo. (2000); possession of a controlled substance (cocaine base), in violation of section 195.202; and possession of a controlled substance (marijuana), in violation of section 195.202. In four points on appeal, the defendant alleges there was insufficient evidence to convict him on any of the charges. Finding no error, we affirm.

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

We affirm the trial court’s judgment pursuant to Rule 30.25(b).


author: ROBERT S. BARNEY, Judge.

text:
    STATE of Missouri, Appellant, v. Terry Lynn SIMMONS, Respondent.
    No. 27089.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 22, 2006.
    Michael L. Ash, Stockton, for appellant.
    Alex Reiter, Nevada, for respondent.
   ROBERT S. BARNEY, Judge.

The State of Missouri (“Appellant”) files an interlocutory appeal, pursuant to section 547.200.1(3), RSMo 2000, resulting from the trial court’s grant of a motion to suppress the results of a blood test submitted by Terry Lynn Simmons (“Respondent”) in the course of Respondent’s arrest and subsequent charge for driving with excessive blood alcohol content, a violation of section 577.012. Appellant raises one point of trial court error, discussed below. We reverse and remand.

The record reveals that on January 1, 2004, Respondent’s vehicle was pulled over by Missouri State Highway Patrol Trooper Rob Savage (“Trooper Savage”) for driving with “no light illuminating the rear plate.” See § 307.075, RSMo 2000. While talking to Respondent, Trooper Savage “noticed an alcoholic beverage odor coming from the vehicle” and he noticed Respondent’s “eyes were watery and bloodshot.” Respondent admitted to Trooper Savage that he had “two beers” that evening. Trooper Savage requested that Respondent perform a series of field sobriety tests. On the horizontal gaze' nystagmus test, Respondent “showed all six signs of nystag-mus” and on the one leg stand test Respondent “put his foot down three times....” Trooper Savage then gave Respondent a portable breath test which measured Respondent’s blood alcohol concentration at 0.95 percent by weight. Trooper Savage then informed Respondent of his Miranda rights and placed Respondent under arrest for Driving While Intoxicated (“DWI”), a violation of section 577.010.

When Trooper Savage arrived at the El Dorado Springs Police Department with Respondent, he read to Respondent the implied consent form and Respondent agreed to take a breathalyzer test. See § 577.020. Trooper Savage prepared the Datamaster machine and instructed Respondent to blow into it; however, “[a]fter a real short period of time [Trooper Savage] noticed up on the monitor [of the Datamaster] it said pump error and the machine didn’t seem to be operating properly” even though Respondent was blowing into it as instructed. Trooper Savage told Respondent to stop blowing in the machine and he turned the machine off to reset it. When the machine re-started, Trooper Savage had Respondent try to blow into it again. According to Trooper Savage, “as soon as [Respondent] started blowing just instantly it came up and said pump error again, so I went ahead and stopped him again.” Trooper Savage informed Respondent that “the machine was not working ...” and that it would be easier to go to the hospital and take a blood sample than to go to another police station to take a breathalyzer test.

Trooper Savage then transported Respondent to Cedar County Memorial Hospital for a blood test. At the hospital, Trooper Savage again “asked [Respondent] if he understood his rights concerning supplying a sample of his blood.” Respondent stated that he understood his rights and would supply a sample. After the nurse drew Respondent’s blood, Trooper Savage transported him back to the police station. Respondent was then charged with DWI.

Prior to trial on Respondent’s DWI charge, Respondent filed a motion to suppress the results of the blood test. In his motion, he argued he submitted to three tests (the two attempts on the Datamaster and the one blood test) thereby satisfying the provisions of section 577.020.2, which specifically sets out that “the implied consent to submit to the chemical tests listed in subsection 1 of this section shall be limited to not more than two such tests arising from the same arrest, incident or charge.” Accordingly, Respondent maintained the third test administered to him, the blood test, constituted an unreasonable search and seizure which violated his constitutional rights. The trial court sustained Respondent’s motion to suppress the results from the third test and Appellant appealed that ruling.

This Court subsequently dismissed Appellant’s interlocutory appeal for failure “to take further steps to secure appellate review within the periods of time allowed.” Appellant dismissed the then pending charge against Respondent.

On December 14, 2004, Appellant filed another information against Respondent, this time charging him with the Class B misdemeanor of driving a motor vehicle with excessive blood alcohol content. See § 577.012. Respondent again filed a motion to suppress the results of the blood test and a hearing was held on June 24, 2005. Following the hearing, the trial court made the following docket entry:

Court having been duly informed by counsel that a previous case [the DWI case] was filed by [Appellant] against [Respondent]. In that case the judge had granted a motion to suppress the ‘3rd test’ (a blood test) of the [Respondent], Apparently [Respondent] had been stopped and informed of the implied consent law. [Respondent] was asked to take a breath test. [Respondent] complied with that request and the date master [sic] breath machine recorded a ‘pump error.’ The officer turned the machine off and turned the machine back on, waited 15 minutes and [Respondent] was required to take the test again and [Respondent] blows again like he is supposed to. The machine malfunctioned again ‘pump error.’ [Respondent] was requested to do a blood test and one was taken. The court in [the DWI case] suppressed the evidence as to the ‘3rd test’ the blood test. [Appellant] attempted to take an appeal but the appeal ... was dismissed. [Appellant] then dismisses the DWI case ... [Appellant] then files a case against the same [Respondent] for excessive BAC on December 14, 2004, ... which is this case. The same issue as to the ‘3rd test’ is the issue before this court. It would appear that collateral estoppel would prevent this court from ruling differently on the admissibility of the ‘3rd test’ the blood test and this court will follow the ruling of the court on that issue and will suppress the evidence as to the ‘3rd test’ the blood test since the previous court ruled that the 2 tests attempted on the malfunctioning breath machine were the 2 tests allowed under the implied consent law.

This appeal followed.

In its sole point on appeal, Appellant maintains the trial court abused its discretion in sustaining Respondent’s motion to suppress the results of the blood test. Specifically, Appellant maintains that the language of section 577.020.2 “contemplates the submission to two separate [types of] chemical test[s] arising out of the same arrest ...” and does not limit the testing to two actual tests.

“A trial court’s ruling on a motion to suppress may be reversed only if it is clearly erroneous.” State v. Shaon, 145 S.W.3d 499, 504 (Mo.App.2004). “Appellate review is limited to a determination of whether the trial court’s ruling is supported by sufficient evidence from the record as a whole.” Id. In our review, “this [C]ourt considers all facts and reasonable inferences in the light most favorable to the challenged order.” Id. “This [C]ourt may not substitute its discretion for that of the trial court when reviewing an order suppressing evidence.” Id.

Under the Implied Consent Law, section 577.020, Respondent was required to submit “to not more than two ... tests [of his breath, blood, saliva or-urine] arising from the same arrest, incident or charge.” § 577.020.2

In our analysis we are guided by the precepts and principles found in Smock v. Dir. of Revenue, 128 S.W.3d 643 (Mo.App.2004); Baldridge v. Dir. of Revenue, 82 S.W.3d 212 (Mo.App.2002); and Snow v. Dir. of Revenue, 935 S,W.2d 383 (Mo.App. 1996). In Smock, driver consented to a chemical breath test but either was unable or unwilling to provide a breath sample sufficient to register as a “valid” test on the machine, despite the fact that the machine “display[ed] a blood alcohol content ... reading of .137 percent.” Smock, 128 S.W.3d at 645. A subsequent attempt by driver proved futile, because driver was either unable or unwilling to submit a breath sample sufficient to register as a valid test. Id. Driver was then requested to submit to a blood test which she refused. Id. The Director revoked driver’s driving privileges pursuant to section 577.040.2 for refusing to submit to a chemical test for intoxication. Id. Driver filed a petition for judicial review pursuant to section 577.041.4 and the trial court reinstated her driving privileges. Id. On appeal, this Corut reversed the trial court’s decision based on its misapplication of the law and remanded the matter for further action. Smock, 128 S.W.3d at 648.

In this Court’s opinion in Smock we observed that “the fact that [the implied consent law] allows an officer to request more than one chemical test of a suspected intoxicated driver is beyond serious dispute.” Id.% hat 647. We also observed that “[i]n no Missouri case, and certainly not in the language of [s]ection 577.020.2, is there to be found a caveat supporting a trial court’s determination that an officer who requests a second statutorily allowed test following an initial Valid’ test does so outside the bounds of the implied consent statute.” Id. (Emphasis added). This Court also set out that section 577.020 “clearly allows for two chemical tests of a driver.” Id. at 648. We also stated that “[t]he legislature has chosen, for whatever reason, not to include in the implied consent provision any qualification based upon whether a driver submits to and is successful in completing an initial test, only to refuse a request for a second test.” Id.

Likewise, in Baldridge, driver attempted three times to blow into the breath machine. Baldridge, 82 S.W.3d at 216-17. On the third try, while the machine’s “blow light was flashing periodically,” the machine “recorded a blood alcohol content of .015 [percent].” Id. at 216. The testing officer, however, did not believe the accuracy of the test because he thought driver was intentionally letting air escape and there, was evidence of recent marijuana use on the part of driver. Id. at 216-17. Driver was then requested to take a urine test, which he refused. Id. The Western District of this Court determined that the testing officer was “permitted to request,” as the Court termed it, “a second test,” and that the “Director’s evidence established that [driver] refused to submit to a chemical test.” Id. at 221.

Lastly, in Snow, the driver agreed to take a breath test and then attempted three times to blow into the breath analysis machine while complaining she could not perform the test because of her asthma. Snow, 935 S.W.2d at 385. After the machine failed to make a printout on the third attempt, driver was requested to submit to a blood test which she ultimately refused when she arrived at the hospital for the blood test. Id. at 384. Her driving privileges were revoked. Id. She then filed a petition for review and the trial court ordered the revocation for refusal to submit to a chemical test be stricken from her record. Id. On appeal to this Court we noted that “[s]ection 577.020.1 provides that ‘any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent to a chemical test or tests of his breath, blood, saliva or urine for the purposes of determining the alcohol content of his blood.’ ” Id. at 385 (quoting § 577.020.1). Furthermore, we observed that “[a] person who comes within the provisions of [section] 577.020 does not have a choice of which chemical test he will take.” Id. We also determined that “[section 577.020 allows an officer to request more than one of the statutory tests” and in view of driver’s refusal to submit to a blood test after “she either did not or could not properly perform the breathalyzer test,” her driving privileges had been improperly reinstated. Id. at 386.

As in Smock, Baldridge, and Snow, Respondent in the present matter was called upon to submit to more than one chemical test of his blood. Based on the principles established by the foregoing cases, the officer conducting the test had the right to request such “a second statutorily allowed test ...” following Appellant’s two, prior incomplete breath tests. Smock, 128 S.W.3d at 647. Accordingly, Respondent was required under the Implied Consent Law, section 577.020, to submit to the statutorily permitted chemical test of his blood. Snow, 935 S.W.2d at 385-86.

The trial court’s judgment and order suppressing the results of Respondent’s blood test is clearly erroneous. Shaon, 145 S.W.3d at 505. It is reversed and the matter is remanded for further proceedings consistent with this opinion.

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

      . Section 547.200, RSMo 2000 sets out, in pertinent part:
      1.An appeal may be taken by the state through the prosecuting or circuit attorney from any order or judgment the substantive effect of which results in:

      (3) Suppressing evidence; or

      3. The appeal provided in subsection 1 of this section shall be an interlocutory appeal, filed in the appropriate district of the Missouri court of appeals, unless the proceedings involve a charge of capital murder or murder in the first degree, pursuant to the provisions of section 565.001 or 565.003, RSMo, in which case notices of appeal shall be filed in the supreme court of Missouri.
      Unless otherwise stated, all statutory references are to RSMo Cum.Supp.2005.

      . Section 577.012 states:
      1. A person commits the crime of "driving with excessive blood alcohol content” if such person operates a motor vehicle in this state with eight-hundredths of one percent or more by weight of alcohol in such person’s blood.
      2. As used in this section, percent by weight of alcohol in the blood shall be based upon grams of alcohol per one hundred milliliters of blood or two hundred ten liters of breath and may be shown by chemical analysis of the person’s blood, breath, saliva or urine. For the purposes of determining the alcoholic content of a person’s blood under this section, the test shall be conducted in accordance with the provisions of sections 577.020 to 577.041.
      3.For the first offense, driving with excessive blood alcohol content is a class B misdemeanor.
      We note that this is the second such interlocutory appeal resulting from Respondent’s alcohol-related arrest which took place on the evening of January 2, 2004. As explained below, Respondent was first charged with driving while intoxicated, proscribed by section 577.010. Subsequent to a hearing on Respondent's motion to suppress the results of a blood test taken pursuant to section 577.020, the trial court sustained Respondent's motion to suppress the test results and Appellant dismissed the charges against Respondent. Appellant then charged Respondent with operating a vehicle with excessive blood alcohol content, a violation of section 577.012, the charge which underlies this appeal.

      . Trooper Savage did not have Respondent perform the walk-and-tum test, because Respondent explained he suffered from gout in the left foot.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Section 577.020 sets out, in pertinent part: 1. Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent to, subject to the provisions of sections 577.020 to 577.041, a chemical test or tests of the person's breath, blood, saliva or urine for the purpose of determining the alcohol or drug content of the person’s blood pursuant to the following circumstances:
      (1) If the person is arrested for any offense arising out of acts which the arresting offi-
      cer had reasonable grounds to believe were committed while the person was driving a motor vehicle while in an intoxicated or drugged condition;

      2. • The implied consent to submit to the chemical tests listed in subsection 1 of this section shall be limited to not more than two such tests arising from the same arrest, incident or charge.

      . In its appeal, Appellant does not raise the issue of the trial court’s reliance upon the doctrine of collateral estoppel in sustaining Respondent’s motion to suppress; however, the doctrine has no application to the instant matter because Respondent has not previously been tried and acquitted for this same offense. It has long been held that ”[c]ollat-eral estoppel ... does not even begin to come into play unless the defendant has been acquitted in the first trial.” State v. Moton, 476 S.W.2d 785, 790 (Mo.1972). "In a criminal context, [collateral estoppel] means that once the state has tried the defendant for a criminal act and defendant has been acquitted, he cannot later be tried for an offense which contains an element necessarily determined in favor of defendant in the prior case.” State v. White, 931 S.W.2d 825, 828-29 (Mo.App.1996).

      . See State v. Smith, 134 S.W.3d 35, 39 (Mo. App.2003) (holding that the Implied Consent Law “allows law enforcement officers to obtain blood in circumstances in which a warrant or actual consent may otherwise be required”).


author: ALMON H. MAUS, Senior Judge.

text:
    SMART CEMETERY, Plaintiff-Appellant, v. BELL HOLDINGS, L.L.C., and Stanley E. Bell, Registered Agent, and Stanley E. Bell, Individually, Defendants-Respondents.
    No. 26927.
    Missouri Court of Appeals, Southern District, Division One.
    March 6, 2006.

      Paul F. Sherman, of Mann, Walter, Bishop & Herman, P.C., Springfield, MO, for Appellant.
    S. Jacob Sappington, Blackwell Sanders Peper Martin, L.L.P, Springfield, MO, for Respondents.
   ALMON H. MAUS, Senior Judge.

By its petition in this action, the plaintiff, Smart Cemetery, sought to quiet title and recover damages against defendants Stanley Bell and Bell Holdings, L.L.C., his development company. No one has raised an issue as to the capacity of Smart Cemetery to sue. See Rule 55.13.

The basic issue in this case is whether or not an agreement to settle a dispute which is the subject of a pending action may be enforced by a motion in that action. In this case, the trial court sustained the defendants’ motion to enforce a settlement agreement and dismissed the action. Smart Cemetery appeals that judgment. The underlying dispute concerns a tract of land on the south side of Smart Cemetery.

Smart Cemetery is a long-established country cemetery in the southeast corner of the Northeast Quarter (NE — ⅛) of the Southwest Quarter (SW — ⅜) of Section Twenty-Four (24), Township Twenty-Seven (27), Range Twenty-Four (24) in Christian County, Missouri. It is on the east side of Smart Road, a north-south road. It is approximately 395 feet north and south and 350 feet east and west. During the time relevant to this case, it has been enclosed by a chain link fence. A tract of 132 feet north and south and 208 feet east and west, south of the cemetery, had been used for cemetery purposes which included access to the cemetery from Smart road, parking, maintaining a pile of dirt for cemetery use, and a small storage building.

Defendant Stanley Bell is a real estate developer. Defendant Bell Holdings, L.L.C., is his development company. In February 2003, Bell purchased land described as “The East Half (E 1/2) of the Southwest Quarter (SW 1/4) of Section Twenty Four (24), Township Twenty-Seven (27), Range Twenty-Four (24), containing Eighty (80) acres, more or less, except four acres off the North Forty Acres deeded as a cemetery situate in Christian County, Missouri.” Bell then platted this land as Cranbrook subdivision. The plat was presented to the Zoning Commission of Christian County. A public hearing was held at which one or more of the trustees of Smart Cemetery appeared and claimed it encroached upon property the cemetery owned. Nevertheless, the plat was approved by the Zoning Commission.

The plat provided a right of way of 50 feet for a public road which extended through the subdivision and entered Smart Road south of Smart Cemetery. There were to be ditches 2-1/2 feet in width on either side of the road. The construction of the road and ditches would occupy virtually all of the land south of the cemetery that had been used for access to the cemetery, parking and the storage building.

While there is no bilateral testimony to establish the same, Bell apparently had an understanding with the cemetery board concerning the implementation of the subdivision. Without objection or contradiction, Bell testified that he dealt with all of the cemetery board of trustees. He dealt with Robert Gunnett (alleged in the petition to be president of the Cemetery), Christine Crow (who signed the agreement), and another individual. Bell stated that he donated to Smart Cemetery 30 feet of land to the south of the cemetery, subject to the platted road, and 30 feet of land to the east of the cemetery, so that they could use that area as a parking lot and an entrance area. He sold other land on the north side of the cemetery to Smart Cemetery at slightly less than his cost. This area was to provide room for additional graves. He thought he had resolved their concern about the development of the subdivision.

Smart Cemetery filed its original petition in this action on March 3, 2004. Bell had heard of that filing, but had not been served when his crew entered the disputed area, graded the same and destroyed the storage building and started to construct the new road. He was then served with the summons and petition in this action. He stopped the work upon service. He filed a motion to dismiss the action.

Daniel Garbee was a road foreman for the Billings Special Road District. His duties required him to work on the Cran-brook subdivision. He was called by workers on the project to see if there was something he could do so that construction of the new road could continue. He drafted an agreement to resolve the controversy. He saw Bell sign it. He gave it to one of the members of Smart Cemetery’s Board of Trustees to be signed by the Board. The following is a copy of that agreement.

Reference to — Dispute between Smart cemetery & Cranbrook Subdivision.
Party # 1 being Smart cemetery members
Party #2 being Cranbrook subdivision developer Prepared by, Danny Gar-bee, B.S.R.D. foreman, a non partial party working in conjunction with Chris-tain [sic] county commission to present both sides with a clearer view of how subdivision will affect both parties.
Party # 1 has agreed to accept the land that that [sic] party # 2 deeded to them,
Party # 1 agreed to drop restraining order, and any. other means that will halt or prevent construction project from continuing with county approved project,
Party # 2 agreed to leave deeded propertys [sic] as shown on latest plat. This party also agreed to work with B.S.R.D. on providing adequate entrances to the cemetery from new road. This party also agreed to replace dirt for maintaining grounds which was removed during road construction.
I Danny Garbee after meeting with both parties feel this is a fair and reasonable solution to correct dispute [sic] between parties.

It is dated March 29, 2004. It is signed by three persons designated “Cemetery members” and signed by defendant Bell. Garbie was not a lawyer. Neither party consulted with their attorney before signing the agreement. This agreement was admitted into evidence, without objection, as “Exhibit A.”

On April 27, 2004, the defendants filed a motion to enforce that agreement and to dismiss the action with prejudice. Smart Cemetery did not file a response to this motion. However, a search in the Recorder’s office had disclosed a warranty deed dated December 6, 1906, which conveyed to Smart Cemetery three-fourths of one acre, an oblong square in the northwest quarter of the southeast quarter of the southwest quarter, section 24, Township 27, range 24. This is substantially the disputed tract.

On July 4, 2004, Smart Cemetery filed its first amended petition which is the same as the original petition except it claimed the disputed area by acquired title instead of its original claim of ownership by adverse possession. A hearing on the motion to enforce the settlement agreement was held on November 1, 2004.

On December 2, 2004, the trial court made findings of facts substantially similar to the facts stated above. The trial court entered judgment sustaining the defendants’ motion to enforce the settlement agreement, and it dismissed Smart Cemetery’s claims against the defendants, with prejudice. Smart Cemetery’s motion under Rule 74.06 seeking relief from that judgment was overruled. Smart Cemetery appeals from that judgment.

On appellate review of the judgment, this court accepts the findings of the trial court if supported by the evidence. The judgment is to be affirmed unless no substantial evidence supports it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Brizendine, v. Conrad, 71 S.W.3d 587, 590 (Mo.banc 2002). This court is obligated to review only those points relied upon by the Appellant as stated in its brief. Greene County Concerned Citizens v. Bd. of Zoning Adjustment of Greene County, 878 S.W.2d 246, 255 (Mo.App. S.D.1994); In re Care and Treatment of Burgess, 72 S.W.3d 180, 184 (Mo.App. S.D.2002).

Having stated the scope of review, at the outset, it is appropriate to observe that it is established that an agreement to settle a lawsuit may be enforced by a motion in that lawsuit. Vulga-mott v. Perry, 154 S.W.3d 382, 387 (Mo.App. W.D.2004). “Although there is no rule defining the process for enforcing an agreement settling a pending case, one court-approved procedural device is a motion to enforce settlement.” McKean v. St. Louis County, 964 S.W.2d 470, 471 (Mo.App. E.D.1998).

Rule 84.04(d)(1)(B) mandates that a “Point Relied On” in an appellate brief shall “state concisely the legal reasons for the appellant’s claim of reversible error.” Smart Cemetery’s first point is stated in a rambling, disjointed manner. It could be found to violate that Rule and to present nothing for appellate review. However, to clarify the interests of the parties, this court will interpret the same as presenting the basic complaint that the trial court erred in enforcing Exhibit A (the settlement agreement) because it is not authorized by Smart Cemetery in the manner required by § 432.010, RSMo 2000 (the Statute of Frauds) and it found Smart Cemetery bound by “an indefinite, unre-cordable, unnotarized document wholly without authorized signature by Plaintiff Cemetery itself or by written proof of the authority of another to sign on plaintiff cemetery’s behalf as required by the Statute of Frauds.”

Initially, it is noted that Smart Cemetery failed to raise the statute of frauds as a defense in its pleadings or at the hearing on the defendants’ motion to enforce the settlement agreement. Its claim that the agreement violates the Statute of Frauds has been waived. Norden v. Friedman, 756 S.W.2d 158, 162 (Mo.banc 1988) (stating that statute of frauds defense is waived when not- raised in the pleadings or at trial); Rule 55.08. Point I may be denied on this basis.

Even if this court assumes that Smart Cemetery did not waive the statute of frauds defense, it should first be observed that a written instrument need not be notarized and recordable to satisfy the Statute of Frauds. Nothing in the statutes, nor in any cases, requires an opposite conclusion. The remaining assertion is that Exhibit A does not satisfy the Statute of Frauds because it is “wholly without authorized signature by Plaintiff Cemetery itself or by written proof of the authority of another to sign on behalf of Plaintiff.” This point calls into question the nature of the entity “Smart Cemetery.” The original petition alleges it “is an unincorporated organization having a ‘Board of Trustees’ of which Robert Gunnett is the President.” The amended petition alleges it “is a cemetery association commenced on or before 1887, having a ‘Board of Trustees.’ ” This amendment apparently recognizes § 214.390, which in part provides that “Cemeteries existing at the time of the adoption of sections 247.270 to 314.410 shall hereafter be operated subject to the provisions of sections 214.270 to 214.410.” These sections were enacted in 1961. Apparently, Smart Cemetery elected to operate as an endowed association through trustees. § 214.280.

The record reflects that Smart Cemetery has three trustees on its board. Bell dealt with all three of these trustees. The record also shows that the trustees were presented with Exhibit A, and that they approved it. All three trustees signed Exhibit A. Those signatures certainly satisfy the statute of frauds. Point I is therefore denied.

Point II claims that there is no consideration to support the agreement expressed in Exhibit A. An extended discussion is not necessary. Suffice it to say, that the document expresses a compromise of claims to the land south of the cemetery. “[T]he rule is that the compromise of a doubtful claim is good consideration for a contract.” Hauk v. First Nati Bank of St. Charles, 680 S.W.2d 771, 775 (Mo.App. E.D.1984).

Smart Cemetery’s third and final point is that the trial court erred in enforcing Exhibit A because the record establishes the parties labored under a mutual mistake of material fact at the time of signing the agreement. It contends that the area south of the cemetery had been deeded to Bell, when after the execution of that agreement it was discovered that it had been deeded to Smart Cemetery.

For a mutual mistake to avoid a contract, it must be a mistake of a material fact. Byrd v. Liesman, 825 S.W.2d 38, 40 (Mo.App. S.D.1992). The mistake Smart Cemetery asserts is the parties’ lack of knowledge that the area south of the cemetery had in fact been deeded to the cemetery. This mistake is not material. Both parties were aware that Smart Cemetery claimed to own the same, whether by adverse possession, as first claimed, or by deed, is immaterial. Point III is denied.

The judgment is affirmed.

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

      . All references to statutes herein are to RSMo 2000, unless otherwise noted.

      . Although not addressed by either party, if the dispute between Smart Cemetery and the defendants is one of a boundary dispute, the Statute of Frauds is inapplicable. If a dispute regarding ownership of land involves a boundary dispute, the statute of frauds does not apply to bar enforcement of an agreement to settle the dispute. Meyer v. Lipe, 14 S.W.3d 117, 119 (Mo.App. E.D.2000). However, this court does not resolve Point I on the basis of there being a boundary dispute.


text:
    STATE of Missouri ex rel. Jeremiah W. (Jay) NIXON, et al., Appellant, v. SUMMIT INVESTMENT COMPANY, LLC, and Ronald D. Westenhaver, Respondents.
    No. 27274.
    Missouri Court of Appeals, Southern District, Division Two.
    March 20, 2006.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Timothy P. Duggan, Asst. Atty. Gen., Jefferson City, for appellant.
    Faye M. Coultas, Coultas & Green, L.L.C., Osage Beach, for respondents.
   ROBERT S. BARNEY, Judge.

Appellants appeal the trial court’s entry of a judgment of dismissal in their action against Summit Investment Company, LLC, and Ronald D. Westenhaver (“Wes-tenhaver”) (collectively “Respondents”) in which Appellants alleged violations of several provisions of the Missouri Clean Water Law, sections 644.011 through 644.141, et seq. In their sole point of trial court error, Appellants argue the trial court abused its discretion in dismissing their case for failure to prosecute without prejudice. Specifically, Appellants maintain they were “ready to proceed to trial ...” at the time the trial court “unfairly allowed [Respondents] to avoid a trial setting ... by procrastinating [their] discovery ...” such that the trial court “unreasonably assessed fault against [Appellants] for undue delay in bringing the case to trial.”

The record reveals that on January 5, 2001, Appellants filed suit in four counts against Respondents alleging that certain residential subdivisions constructed by Respondents did not have adequate wastewa-ter treatment systems as required by the Missouri Clean Water Law and certain DNR provisions. Appellants variously requested civil penalties, costs and injunctive relief.

In 2003 and during the course of settlement negotiations in this matter, the parties signed a proposed consent judgment. By its terms, the consent judgment essentially set out that Respondents had failed to comply with sections 644.051 and 644.076.1, as well as 10 CSR 20, in the construction of the six subdivisions at issue, and that Respondents agreed to pay $64,000.00 in civil penalties in three installments. Although the consent judgment was never formally approved by the trial court, in keeping with the proposed consent judgment, we discern from our review of the record and from remarks made by Respondents’ counsel during oral argument, that Respondents delivered to the Missouri Attorney General two checks constituting fines/or penalties in the amounts of $24,000.00 and $20,000.00. in 2003.

The record also reveals that by agreement of the parties, on June 9, 2003, the trial court entered a preliminary injunction which, inter alia, ordered Respondents to “comply with all applicable requirements of the Missouri Clean Water Law and Regulations,” and also set out that the DNR “shall review and process, in a timely manner, all permit applications and related documentation” for subdivisions being developed by Respondents.

On February 20, 2004, Respondents requested the trial court set a hearing date to consider approving the consent judgment. A hearing date was set for March 9, 2004; however, the trial court’s docket entry reflects that on that date the matter “was passed at request of [p]arties to be renoticed for hearing.” (Emphasis added).

Thereafter, Respondents served Appellants with “Interrogations [sic] and Document Production Requests” on August 16, 2004. On April 13, 2005, Appellants sent a notice to Respondents to take Westenhaver’s deposition, based on their belief that Respondents were violating the preliminary injunction.

On April 19, 2005, Respondents filed a motion to dismiss Appellants’ cause of action for failure to prosecute per section 510.140. Appellants then filed a notice of intent to request a trial setting.

In opposing Appellants’ request for a trial setting, Respondents set out in their responsive motion that pursuant to Twenty-Sixth Judicial Circuit Rule 86.1 “[discovery [was] not complete in this matter, so that a trial setting is not possible.... ” Additionally, Respondents also set out that “[s]ince [Appellants] have taken no other action before this Court to move this matter to resolution, [Appellants] have failed to prosecute their cause of action, and the matter must be dismissed.”

On May 10, 2005, the Hon. Bruce Col-yer, entered a docket entry dismissing Appellants’ case “for failure to prosecute ... without prejudice.” Appellants then seasonably moved that the interlocutory order of dismissal be set aside. The Hon. Greg Kays heard argument on the issue from both parties on August 9, 2005. After taking the case under advisement, the trial court then entered its “Judgment of Dismissal” on August 15, 2005, noting in a docket entry dated August 12, 2005, that the trial court “d[id] not find [the prior] entry of dismissal to be an ‘abuse of discretion.’ Court does find it to be interlocutory [and] does file a [judgment] of dismissal.” This appeal followed.

We note at the outset that Respondents have filed a motion to dismiss this appeal. They argue that because the underlying dismissal was without prejudice, there is no final, appealable judgment. Appellants counter by asserting that because they could not refile their action in the same court due to the two-year statute of limitations set out in section 516.890, the judgment at issue is, indeed a final, appeal-able judgment. We agree with Appellants.

In the present matter, the trial court specifically dismissed the petition “without prejudice.” “Generally, if a cause is dismissed without prejudice, it is not a final, appealable judgment.” Rhone v. Horton, 139 S.W.3d 199, 200 (Mo.App. 2004); see also Dehner v. Dehner, 967 5.W.2d 684, 685 (Mo.App.1998) (holding that “[a] dismissal without prejudice for failure to prosecute is not a final judgment”). This is because “when an action is dismissed without prejudice, a plaintiff may cure the dismissal by filing another suit in the same court....” Snelling v. Masonic Home of Missouri, 904 S.W.2d 251, 252 (Mo.App.1995). “Rule 67.01 permits a party to bring another civil action for the same cause that has been dismissed without prejudice unless the civil action is otherwise barred.” Elrod v. Stewart, 163 S.W.3d 587, 591 (Mo.App.2005).

However, “[a]n exception to this general rule is that an appeal can be taken where the dismissal has the practical effect of terminating the litigation in the form presented by the plaintiff.” State ex rel. Dos Hombres-Independence, Inc. v. Nixon, 48 S.W.3d 76, 79 (Mo.App.2001). Further, an action is otherwise barred when the dismissal without prejudice operates to preclude a party from bringing another action for the same cause and may also be res judicata of what the judgment had actually decided. Chromalloy American Corp. v. Elyria Foundry Co., 955 S.W.2d 1, 3 (Mo. banc 1997). Additionally, “[w]hen the effect of the order is to dismiss a plaintiffs action and not merely the pleading, then the dismissal is appealable.” Doe v. Visionaire Corp., 13 S.W.3d 674, 676 (Mo.App.2000). “ ‘If the dismissal was such that a refiling of the petition at that time would be a futile act, then the order of dismissal is appealable.’ ” State ex rel. Dos Hombres-Independence, Inc., 48 S.W.3d at 79 (quoting Helms v. Am. States Ins. Co., 886 S.W.2d 220, 221 (Mo.App. 1994)). “Applying these exceptions, dismissals without prejudice have been held appealable in such cases where the dismissal was based on statutes of limitations ...” issues. Doe, 13 S.W.3d at 676.

In the present matter, Appellants filed suit against Respondents in 2001 for actions which occurred in 1999 and 2000. The applicable statute of limitations for such actions is two years per section 516.390. See Div. of Labor Stds., v. Walton Constr. Mgmt. Co., 984 S.W.2d 152, 156 (Mo.App.1998) (affirming the trial court’s dismissal of the State’s petition for penalties arising from a violation of the prevailing Wage law because of the running of the two-year statute of limitations). Accordingly, here, following the dismissal without prejudice by the trial court, Appellants would have been precluded from bringing another action for the same cause against Respondents. See id.; Chromal-loy, 955 S.W.2d at 3; see also Doe, 13 S.W.3d at 676. Therefore, the trial court’s judgment is appealable.

Turning now to Appellants’ sole point on appeal, premised on the trial court’s abuse of discretion in sustaining Respondents’ motion to dismiss on the basis of failure to prosecute. We observe that “[a] trial court has inherent power, in the exercise of sound judicial discretion, to dismiss a case for failure to prosecute with due diligence, and a dismissal on that ground will not be disturbed on appeal unless such discretion was abused.” Cain v. Buehner and Buehner, 839 S.W.2d 695, 697 (Mo.App.1992).

Judicial discretion is abused when a trial court’s ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration; if reasonable people can differ about the propriety of the trial court’s action, it cannot be said the trial court abused its discretion.

Id. at 697-98. While “[w]e recognize that the courts of this state have a dislike for dismissals for failure to prosecute and prefer dispositions on the merits ... there is a presumption that the trial court’s decision is correct, and the appellant has the burden of demonstrating an abuse of discretion.” Waldorf Inv. Co. v. Farris, 918 S.W.2d 915, 919 (Mo.App.1996) (internal citation omitted).

We are mindful that trial courts must be able to control and expedite their dockets. But, it is of greater importance that the court’s work ‘should be done with care and discernment and that the court should be ever diligent and zealous in its unremitting efforts to attain the ends of justice.’

Feet v. Randolph, 103 S.W.3d 872, 877 (Mo.App.2003) (quoting Laurie v. Ezard, 595 S.W.2d 336, 338 (Mo.App.1980)). “The court’s discretion to dismiss a case for failure to prosecute ‘is not a mental discretion, but a legal discretion, to be exercised in conformity with the spirit of the law, and in a manner to serve the ends of substantial justice.’ ” Id. (quoting Laurie, 595 S.W.2d at 337). “As a matter of policy Missouri law favors the disposition of cases upon the merits, when possible.” Id. “This is because ‘the purpose of all courts is to do justice, and justice is best served when all litigants have a chance to be heard.’ ” Id. (quoting Laurie, 595 S.W.2d at 337).

Although delay in prosecuting an action does not, of itself, justify dismissal for failure to prosecute, it is a factor to be considered. Watkins Inv. Co. v. William B. Tanner Co., 684 S.W.2d 929, 936 (Mo.App.1985). “In making its decision to dismiss, the trial court may consider not only the length of delay, but attendant circumstances.... A fair test is whether the moving party had reasonable opportunity to bring the action to trial.” State ex rel. State Hwy. Comm’n of Missouri v. Milnes, 573 S.W.2d 727, 728 (Mo.App.1978) (internal citations omitted). “ ‘To dismiss a case for prior inactivity while it was being pursued could cause many cases to be dismissed which should not be.’ ” Burkett v. Kansas City Missouri School Dist. 955 S.W.2d 567, 568 (Mo.App.1997) (quoting Laurie, 595 S.W.2d at 338). However, “a lengthy period of delay may be enough to warrant dismissal if the party has been warned that he must act with more diligence.” Watkins, 684 S.W.2d at 937. “ ‘[0]nly in an unusual situation should a ease be dismissed for prior inactivity ... at a time when it appeared to be prosecuted toward trial.’ ” Waldorf Inv. Co., 918 S.W.2d at 920 (quoting Laurie, 595 S.W.2d at 338).

In the present matter, Appellants filed suit against Respondents on January 5, 2001. Thereafter, in addition to filing various legal documents with the trial court, the parties negotiated complicated issues involving water and sewage disposal and treatment systems relating to several lots and homes in the Lake of the Ozarks region for over two years. These activities ended with the parties approving and signing the proposed consent judgment previously mentioned. Based on the consent judgment, Westenhaver agreed, inter alia, to comply with the terms of the “Order Granting [Appellants’] Motion for Preliminary Injunction,” and, as best we discern, made two penalty payments in 2003 in an effort to comply with the parties’ proposed consent judgment. Then, on February 20, 2004, Respondents requested a hearing date of March 9, 2004, seeking the trial court’s approval of the consent judgment. However, the matter was continued from that date and was not re-set by either party. Subsequently, on August 16, 2004, Respondents served Appellants with interrogatories and other additional discovery requests. On April 13, 2005, Appellants noticed Westenhaver for a deposition. Five days later, Respondents filed their motion to dismiss Appellants’ cause of action for failure to prosecute.

Based on the foregoing, we determine the trial court abused its discretion in dismissing this matter for failure to prosecute. The record clearly shows that while neither party appears to have been exceedingly diligent in bringing this matter to trial, “steps were being taken toward [a resolution] at the time of [the trial court’s] dismissal.” Laurie, 595 S.W.2d at 338. In the present matter, negotiations had been on-going, agreements had been reached, and there were outstanding discovery requests pending at the time the trial court granted Respondents’ request for a dismissal. Nothing in the record suggests the trial court had warned the parties 'about a possible dismissal of Appellants’ cause of action.

Also, as best we discern, Respondents were not being prevented by the terms of either the proposed consent judgment or the preliminary injunction from engaging in their home development business, pror vided they did so in a lawful manner. “ ‘In determining whether to dismiss a dormant case, we believe that the time a case has been on file and its prior inactivity may be considered. However, to dismiss a case for ... inactivity while it was being pursued could cause many cases to be dismissed which should not be.... ’ ” Waldorf Inv. Co. v. Farris, 918 S.W.2d at 920 (quoting Laurie, 595 S.W.2d at 338). We perceive that this is one of those cases. Point granted.

The order of dismissal is reversed, and the cause is remanded for further proceedings consistent with this opinion.

SHRUM, P.J., and GARRISON, J. concur.

      . Appellants in this matter include the Missouri Attorney General, the Missouri Department of Natural Resources ("DNR”), and the Missouri Clean Water Commission.
      Unless otherwise stated, all statutory references are to RSMo 2000 and all rule references are to Missouri Court Rules (2005).

      . Section 510.140 states:
      For failure of the plaintiff to prosecute or to comply with this code or any order of court, a defendant may move for dismissal of an action or of any claim against him. After the plaintiff has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, or in the event that the motion is granted and the resulting judgment is later held erroneous, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.

      . Twenty-Sixth Judicial Circuit Local Rule 36.1 states that “Circuit cases filed in the office of the circuit clerk WHICH ARE AT ISSUE AND IN WHICH DISCOVERY IS COMPLETE may be set for trial.” (Emphasis in original).

      . No transcript of the dismissal motion was submitted for this Court's review.

      . Rule 67.03 states:
      A defendant may move for an involuntary dismissal of the civil action for lack of jurisdiction, for prematurity of action, for failure to substitute a party for a decedent and for such other dismissals as are allowed by these Rules 41 through- 101. Defendant may also move for an involuntary dismissal of the civil action for failure of the plaintiff to prosecute or to comply with these Rules 41 through 101 or any order of the court. Any involuntaiy dismissal shall be without prejudice unless the court in its order for dismissal shall otherwise specify.

      . Section 516.390 states:
      If the penalty is given in whole or in part to the state, or to any county or city, or to the treasury thereof, a suit therefor may be commenced, by or in behalf of the state, county or city, at any time within two years after the commission of the offense, and not after.

      . Rule 67.01 states:
      A dismissal without prejudice permits the party to bring another civil action for the same cause, unless the civil action is otherwise barred. A dismissal with prejudice bars the assertion of the same cause of action or claim against the same party.


text:
    Denis Brian GURTZ, Appellant, v. Kathy Irene GURTZ, Respondent.
    No. 27134.
    Missouri Court of Appeals, Southern District, Division Two.
    March 20, 2006.

      Ralph W. Muxlox, II, Richland, for appellant.
    Wayne Gifford, Waynesville, for respondent.
   ROBERT S. BARNEY, Judge.

Appellant, Denis Brian Gurtz (“Husband”), appeals the trial court’s “Judgment of Dismissal” of his “Petition for Declaratory Judgment and Other Relief,” wherein he sought to reduce Respondent’s, Kathy Irene Gurtz’s (“Wife”), interest in his “retired military pay” which had been previously granted to her in a judgment and decree dissolving their marriage. Husband also sought reimbursement from Wife for certain amounts previously paid Wife under their dissolution judgment and decree. The trial court agreed with Wife that Husband’s petition failed to state a cause of action, because the petition sought to modify a prior dissolution judgment and decree which distributed them marital property and that the trial court had no jurisdiction to make such a modification. Husband now raises one point of trial court error. We affirm.

The record reveals that at the time Wife filed for dissolution of the parties’ marriage Husband was in the United States Army. Husband filed an entry of appearance in the dissolution action but participated no further in that matter. On May 11, 2002, the trial court entered a judgment and decree dissolving the parties’ marriage which, in part pertinent to our review, awarded Wife “FORTY TWO AND ONE HALF PERCENT (42.5%) of [Husband’s] Military Retirement through [the] Department of the United States Army.” The dissolution decree also ordered Husband to pay Wife non-modifiable maintenance in monthly installments of $305.00 and required that Husband “provide [a] Survivor Benefits Plan designating [Wife] as the beneficiary on said [military] retirement.”

As best we discern from the record, approximately three months prior to the filing of his “Petition for Declaratory Judgment and Other Relief’ and prior to November 1, 2004, Husband’s non-disability portion of his retired military pay amounted to $1,061.66, from which Husband paid Wife “approximately $451.20 as her 42.5 [percent] share of [Husband’s] military retired pay.”

On January 20, 2005, Husband filed his “Petition for Declaratory Judgment and Other Relief.” In his petition, Husband asserted that on September 22, 2004, he received a letter from the Department of Veteran’s Affairs notifying him that he “had received an increase in his service connected compensation and that his overall or combined disability rating would be sixty percent....” This increase in his disability rating, Husband alleged, meant there would be a decrease in his “military retired pay” in which Wife had an interest, and as a result of the “increase in his service related compensation ...,” as of November 1, 2004, Husband would only be receiving $350.66 per month in military retired pay instead of $1061.66 per month. Accordingly, Husband asserted he should only be required to pay Wife $149.00 per month which is 42.5 percent of $350.66. Husband requested that the trial court enter a “judgment declaring the rights of the parties,” and prayed that if the trial court found in his favor, he should be reimbursed by Wife for the overpayments made since the time of the change in his benefits.

On February 28, 2005, Wife filed a motion to dismiss Husband’s petition. She maintained then, as she does now on appeal, that Husband faded to state a cause of action because the trial court could not modify its previously entered order distributing the parties’ marital properties, including that portion of the military retirement pay previously awarded to her. Following a hearing, the trial court dismissed Husband’s petition.

In its judgment of dismissal, the trial court found that “pursuant to [In re Marriage of Strassner, 895 S.W.2d 614 (Mo.App.1995) ], the distribution of marital property constitutes a final order not subject to modification, and once it has been divided, a pension may not be redivided after in [sic] have changed, regardless of a change in [Husband’s] disability status in this case.”

Now in his sole point on appeal, Husband maintains the trial court erred in dismissing his petition for failure to state a claim

because the petition did state a cause of action for declaratory relief in that: (a) federal statute and case law establish that military disability benefits are not subject to distribution to a former spouse; and (b) unlike [In re Marriage of Strassner ], the [parties’] dissolution judgment did not prohibit [Husband] from reducing his retirement pay or indemnifying [Wife] for any breach thereof, and therefore (c) when [Husband’s] disability rating was increased from ten percent to sixty percent [Husband’s] non-disability military retired pay was reduced from $1,061.66 per month to $350.66 per month, and this caused, by operation of law, a corresponding reduction in [Wife’s] 42.5 [percent] of [Husband’s] non-disability military retired pay from $451.20 per month to $149.00 per month.

(Emphasis added).

“We review de novo the grant of a motion to dismiss, examining the pleadings to determine whether they invoke principles of substantive law.” Weems v. Montgomery, 126 S.W.3d 479, 484 (Mo.App.2004). In our review of a motion to dismiss for failure to state a claim upon which relief can be granted, we test the adequacy of the petition, assuming all averments are true and liberally granting all reasonable inferences therefrom. Hammond v. Mun. Corr. Inst., 117 S.W.3d 130, 133 (Mo.App.2003). We do not weigh the facts, but review the petition in an “almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case.” Id. (internal citations omitted). We will affirm the trial court’s ruling so long as it could be sustained on any of the grounds asserted by the movant. Wineteer v. Vietnam Helicopter Pilots Ass’n, 121 S.W.3d 277, 282 (Mo.App.2003).

Military non-disability retirement pension benefits received, for service which occurred during marriage, are considered marital property. In re Marriage of Berger, 950 S.W.2d 307, 311 (Mo.App.1997). “An award of a military pension is a property division and not a maintenance award.” In re Marriage of Strassner, 895 S.W.2d at 618. “ ‘The fact that entitlement to retirement benefits depend upon contingencies and by their nature are speculative — both as to future entitlement thereto, and as to amounts — does not deprive them of their character as marital property.’ ” In re Marriage of Berger, 950 S.W.2d at 311 (quoting Fairchild v. Fairchild, 747 S.W.2d 641, 643 (Mo.App.1988)).

A military retiree may receive ‘retired pay.’ A veteran who becomes disabled as a result of military sendee is eligible for disability benefits calculated according to the seriousness of the disability and the degree to which the veteran’s ability to earn a living has been impaired. To prevent double dipping a disabled military retiree may receive disability benefits, which are tax exempt, only to the extent he or she waives a corresponding amount of retired pay. The Uniformed Services Former Spouses’ Protection Act (USFSPA) authorizes state courts to treat “disposable retired pay” as marital property. Missouri considers military non[-]disability retirement benefits received for service during marriage as marital property.... The United States Supreme Court has interpreted [the USFSPA] to preclude an award to a former spouse of any amounts of retired pay which do not fall within the definition of ‘disposable retired pay.’

In re Marriage of Strassner, 895 S.W.2d at 616 (internal citations omitted) (emphasis added); see also Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989) (overruled in part on remand by In re Marriage of Mansell, 217 Cal.App.3d 219, 265 CaLRptr. 227 (Cal.Ct.App.1989)); 10 U.S.C. § 1408.

Husband’s military retired pay or pension is, thus, marital property subject to division, while his “[disability benefits received [as] a retired member of the armed services [are] not marital property.” In re Marriage of Bowman, 972 S.W.2d 635, 638 (Mo.App.1998); see also 10 U.S.C. § 1408(a)(4)(B).

It is undisputed that a trial “ ‘court’s order as it affects distribution of marital property shall be a final order not subject to modification... Kolar v. Kolar, 114 S.W.3d 440, 442 (Mo.App.2003) (quoting § 452.330.5). After entering an order distributing marital property, a “trial court retains control over its judgment for a period of thirty days.... ” Wandfluh v. Wandfluh, 716 S.W.2d 420, 422 (Mo.App.1986). Subject to the filing of certain after-trial motions, “[a]fter that thirty days ... the judgment becomes final and it is beyond the power of the court to alter or vacate the judgment.” Id; see also Rules 75.01 and 81.04(a).

Here, in its previously entered judgment and decree dissolving the parties’ marriage, the trial court distributed the parties’ marital property, including Husband’s non-disability military pension, which was properly included as marital property. See In re Marriage of Berger, 950 S.W.2d at 311. Husband did not appeal the trial court’s dissolution decree within thirty days nor did he file any recognizable after-trial motion to set aside or modify the trial court’s judgment. As such, the trial court’s marital property distribution contained in its dissolution decree became final. See Wandfluh, 716 S.W.2d at 422. A trial “court’s order as it affects distribution of marital property shall be a final- order not subject to modification .... ” § 452.330.5. The trial court therefore had no jurisdiction to consider a modification of its previously entered judgment and decree of dissolution as related to previously distributed marital properties. In re Marriage of Strassner, 895 S.W.2d at 618; see Kolar, 114 S.W.3d at 442. “[0]nce it has been divided as part of a final decree, a pension may not be redivided after circumstances have changed.” In re Marriage of Strassner, 895 S.W.2d at 618. As such, Husband’s petition failed to “invoke[] principles of substantive law” and the trial court properly dismissed his action. Weems, 126 S.W.3d at 484. Husband’s petition failed to state a cause of action for which relief could be granted. Point denied.

The judgment of the trial court is affirmed.

GARRISON, J., and BATES, C.J., concur.

      . It should be noted that orders “intended to be qualified domestic relations orders affecting pension, profit sharing and stock bonus plans pursuant to the U.S. Internal Revenue Code shall be modifiable only for the purpose of establishing or maintaining the order as a qualified domestic relations order or to revise or conform its terms so as to effectuate the expressed intent of the order.” § 452.330.5. We find nothing in the present record to suggest that the parties’ decree of dissolution created a qualified domestic relations order.
      Unless otherwise stated, all statutory references are to RSMo 2000 and all rule references are to Missouri Court Rules (2005).