author: PATRICIA BRECKENRIDGE, Judge.

text:
    Mark AUGUR, Appellant, v. NORFOLK SOUTHERN RAILWAY COMPANY, Respondent.
    No. WD 63302.
    Missouri Court of Appeals, Western District.
    Feb. 8, 2005.

      John G. O’Connor, Kansas City, KS, for appellant.
    Cary W. Miller, Kansas City, MO, for respondent.
    Before BRECKENRIDGE, P.J., SMART and HOWARD, JJ.
   PATRICIA BRECKENRIDGE, Judge.

Mark Augur appeals the trial court’s grant of summary judgment in favor of Norfolk Southern Railroad Company on his claim for negligence. Mr. Augur’s claim arose from injuries he sustained while descending a ladder on a railcar owned by Norfolk. At the time of Mr. Augur’s injuries, he was employed by Freight Consolidation Services, Inc. (FCS). On appeal, Mr. Augur claims that the trial court erred in finding that Norfolk relinquished possession of the job-site and control over FCS employees to FCS and, therefore, in granting summary judgment in favor of Norfolk. Mr. Augur also argues that the trial court erred in finding, as a matter of law, that Norfolk did not have a duty to FCS employees as the supplier of a defective instrumentality. Finally, Mr. Augur contends that the trial court erred in finding that Norfolk did not have actual or constructive knowledge of the condition alleged to have caused Mr. Augur’s injuries. Because the trial court lacked jurisdiction over Mr. Augur’s claim, the judgment is reversed and the case is remanded with instructions to dismiss Mr. Augur’s petition.

Factual and Procedural Background

Norfolk Southern Railroad Company owns and operates an inbound automotive distribution facility in Kansas City, known as the Voltz ramp. Norfolk contracted with FCS to load and unload vehicles shipped by rail to the Voltz ramp and place the vehicles in a storage area. Before FCS employees unload the railcars, Norfolk employees transport the railcars to the Voltz ramp and brake the railcars at appropriate intervals. Norfolk employees perform this task in the morning before FCS employees arrive. FCS employees load and unload vehicles from Norfolk rail-cars on a daily basis, five days a week, eight hours a day. The contract between FCS and Norfolk designated FCS as an independent contractor and provides that it is solely responsible for supervising its employees. The contract also requires FCS to pay all expenses and charges involved or incurred in the performance of its obligations under the contract, including the payment of workers’ compensation insurance.

Mr. Augur is an employee of FCS. On October 17, 1994, while Mr. Augur was unloading vehicles at the Voltz ramp, he was climbing down a ladder when his foot got tangled in a lantern that was inappropriately hung from the ladder. Consequently, Mr. Augur lost his balance and fell. Mr. Augur sustained injuries to his left shoulder and lumbar spine. On or about August 24, 1995, Mr. Augur filed a workers’ compensation claim for his injuries. Liberty Mutual Insurance Company, FCS’s insurance carrier, provided coverage for Mr. Augur’s injuries.

On October 15, 1999, Mr. Augur filed a “Petition for Damages” against Norfolk. The petition alleged that Norfolk was negligent in (1) placing the lantern on the ladder; (2) failing to inspect the ladder; (3) failing to remove the lantern from the ladder; and (4) failing to warn Mr. Augur of the presence of the lantern. Thereafter, Norfolk filed a motion for summary judgment,- or in the alternative, motion to dismiss. In its motion, Norfolk claimed that because Mr. Augur’s immediate employer, FCS, carried workers’ compensation insurance that covered Mr. Augur’s injuries, under section 287.040.4, RSMo 2000, Mr. Augur could not bring suit against a remote employer for the same injuries. Alternatively, Norfolk argued that the court lacked subject matter jurisdiction over Mr. Augur’s claim because the workers’ compensation act provides the exclusive remedy for Mr. Augur’s injuries. Specifically, Norfolk alleged that under section 287.040.1, it was a statutory employer of Mr. Augur and, therefore, jurisdiction over Mr. Augur’s claim rests solely with the Labor and Industrial Relations Commission.

In response to Norfolk’s motion for summary judgment, Mr. Augur argued that the protection from liability afforded remote employers by the workers’ compensation act is inapplicable in this case because Norfolk does not operate subject to Missouri workers’ compensation law based on federal preemption. In particular, Mr. Augur claimed that Missouri workers’ compensation claims for injuries to railroad employees are preempted by the Federal Employers’ Liability Act (FELA), 45 U.S.C. sections 51 et seq. In addition, Mr. Augur maintained that Norfolk is not the statutory employer of Mr. Augur because Norfolk failed to prove that loading and unloading vehicles from railcars was part of its “usual business.” The trial court denied Norfolk’s motion for summary judgment without comment.

Norfolk then filed a second motion for summary judgment, or in the alternative, motion to dismiss. Norfolk argued that Mr. Augur, as an employee of an independent contractor covered by workers’ compensation insurance, has no cause of action against Norfolk, as the owner of the premises, because Norfolk neither substantially controlled the details of Mr. Augur’s activities nor controlled the premises on which he was performing his work. Norfolk also claimed that Mr. Augur failed to state a claim because he was unable to establish that Norfolk had actual or constructive notice of the alleged defective condition, that is, a lantern hanging from a railcar ladder.

Thereafter, Mr. Augur filed a “First Amended Petition for Damages” allegedly covering all of the elements of a claim against Norfolk based on Norfolk’s duty as the owner and occupier of land, or alternatively, on Norfolk’s status as the supplier of a dangerous instrumentality. Ten days later, Mr. Augur filed his response to Norfolk’s second motion for summary judgment. In his response, Mr. Augur claimed that a gemiine dispute existed regarding whether Norfolk retained possession and control of the Voltz ramp and whether Norfolk retained the right to control the physical activities of FCS employees. Mr. Augur also argued that Norfolk had a duty to him, not only as a landowner, but also as a supplier of an instrumentality, i.e., the railcar. Specifically, Mr. Augur claimed that Norfolk was required to exercise ordinary care to determine whether the instrumentality was safe and, if the instrumentality was not safe, to repair or warn of the danger. Finally, Mr. Augur argued that circumstantial evidence established that the lantern was likely on the railcar when Norfolk braked the railcar at the Voltz ramp, which was before Mr. Augur was injured.

On August 5, 2003, the trial court granted Norfolk’s second motion for summary judgment, finding no genuine issue as to any material fact. In particular, the trial court found that Norfolk did not have substantial control over Mr. Augur’s physical activities or the details of his work; Norfolk had relinquished to FCS possession and control of that portion of the premises necessary for Mr. Augur to perform his duties; and Norfolk did not have actual or constructive knowledge of the condition alleged to have caused Mr. Augur’s injuries. Mr. Augur filed this appeal.

Points On Appeal

Mr. Augur raises three claims of error on appeal. In his first point, Mr. Augur argues that the trial court erred in granting summary judgment in favor of Norfolk because a genuine issue of fact exists as to whether Norfolk relinquished to FCS possession and control of the Voltz ramp. In his second point, Mr. Augur claims that even if Norfolk did not retain substantial control over FCS employees, the trial court, nevertheless, erred in granting summary judgment in favor of Norfolk because Norfolk owed a duty to FCS employees as the supplier of a defective instrumentality, that being a railcar with a lantern on its ladder. Finally, Mr. Augur contends that the trial court erred in granting summary judgment in favor of Norfolk because it failed to view the evidence in the light most favorable to Mr. Augur in determining that Norfolk did not have actual or constructive knowledge of the condition that caused Mr. Augur’s injuries. While Norfolk disagrees with each of Mr. Augur’s points on appeal, Norfolk alternatively asks this court to affirm the trial court’s judgment on the basis that the trial court lacked subject matter jurisdiction over Mr. Augur’s common law claim. Before reaching the merits of Mr. Augur’s claims, because this court is compelled to determine its jurisdiction, this issue will be addressed first. Stotts v. Progressive Classic Ins. Co., 118 S.W.3d 655, 660 (Mo.App.2003).

Trial Court Lacked Jurisdiction Over Mr. Augur’s Claim

This court’s jurisdiction to review the merits of Mr. Augur’s claim “is predicated on the trial court’s having jurisdiction to enter the judgment appealed.” Brock v. Blackwood, 143 S.W.3d 47, 55 (Mo.App.2004). “[I]f the trial court lacked jurisdiction over this action, then any judgment entered thereon would be void, depriving [this court] of jurisdiction except to reverse the judgment and remand the cause for dismissal by the trial court.” Gov’t e-Management Solutions, Inc. v. Am. Arbitration Ass’n, 142 S.W.3d 857, 860 (Mo.App.2004). Missouri workers’ compensation law provides for the exclusive remedy for injured workers. Section 287.120. If “it appears, by a preponderance of the evidence, that the trial court lacks subject matter jurisdiction because of workers’ compensation exclusivity,” then the motion to dismiss should be granted. Murry v. Mercantile Bank, 34 S.W.3d 193, 195 (Mo.App.2000). Norfolk, as the party raising the defense of exclusivity, must demonstrate, by a preponderance of the evidence, that the trial court lacked subject matter jurisdiction. Id.

Norfolk asserts that the trial court lacked subject matter jurisdiction over Mr. Augur’s claim because Mr. Augur is a statutory employee as defined under section 287.040.1. Therefore, Norfolk claims that Mr. Augur’s injuries lie exclusively in workers’ compensation and jurisdiction over Mr. Augur’s claim rests solely with the Labor and Industrial Relations Commission.

In reply, Mr. Augur claims that, because Norfolk is a railroad company and FELA preempts claims brought by employees of railroad companies, Norfolk does not operate subject to Missouri workers’ compensation law. In particular, Mr. Augur points to section 287.120 of the Missouri workers’ compensation act to support his position. In relevant part, section 287.120.1 provides:

Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of his employment, and shall be released from all other liability therefor whatsoever, whether to the employee or any other person.

(Emphasis added). Mr. Augur claims that because claims brought by employees of railroad companies are preempted by FELA, Norfolk is not an employer “subject to the provisions of’ the workers’ compensation law. Therefore, Mr. Augur argues, Norfolk is not entitled to immunity-under section 287.120 from common law claims.

An “employer” for purposes of Missouri workers’ compensation law is defined by section 287.030.1(1) as “[ejvery person, partnership, association, corporation, ... and every other person, including any person or corporation operating a railroad ..., using the service of another for pay[.J” (Emphasis added). Thus, Mr. Augur incorrectly asserts that a railroad company cannot be an “employer” subject to the provisions of the Missouri workers’ compensation act merely because a federal statute may preempt certain claims brought against a railroad company. By expressly listing a railroad company as an “employer” under the workers’ compensation act, the legislature clearly expressed its intent that railroad companies may be subject to the provisions of the act. Section 287.030.1(1). To determine whether a particular railroad company is subject to the act, the scope of Missouri’s workers’ compensation law must be examined. The scope of the act is set forth in section 287.110.1. In particular, subsection 1 provides that the act applies “to all cases within its provisions except those exclusively covered by any federal law.” Section 287.110.1. Thus, any claim against an employer that is exclusively covered by federal law, such as a FELA claim, must be brought under the appropriate federal law. All other claims within the act’s provisions that are not specifically preempted by federal law, however, which could in-elude a claim against a railroad company not preempted by FELA, would fall under the exclusive jurisdiction of the Labor and Industrial Relations Commission. See, e.g., Montgomery v. Terminal R.R. Ass’n of St. Louis, 335 Mo. 348, 73 S.W.2d 236 (1934) (exclusive remedy for injured railroad employee who was not engaged in interstate commerce at time of injury and, therefore, not covered under FELA, is under workers’ compensation act).

In this case, if federal law preempts Mr. Augur’s claim against Norfolk, then Mr. Augur would have been required to bring his claim under the appropriate federal law, that is FELA. Mr. Augur did not bring a FELA claim. On the other hand, if federal law does not preempt his claim, because it is possible for a railroad company to be an “employer” subject to the provisions of the Missouri workers’ compensation act, it must be determined whether, in this case, Norfolk is subject to the provisions of the act. If Norfolk is subject to the provisions of the workers’ compensation act, then Norfolk would be immune from the common law action filed by Mr. Augur and compensation for his injuries would lie exclusively in workers’ compensation and jurisdiction over Mr. Augur’s claim would lie exclusively with the Labor and Industrial Relations Commission. Norfolk argues that it is subject to the provisions of the Missouri workers’ compensation act because Mr. Augur is a statutory employee of Norfolk under section 287.040.1.

Under section 287.040.1, statutory employment exists when “(1) the work is performed pursuant to a contract; (2) the injury occurs on or about the premises of the alleged statutory employer; and (3) the work is in the usual course of business of the alleged statutory employer.” Bass v. Nat’l Super Markets, Inc., 911 S.W.2d 617, 619-20 (Mo. banc 1995). “Where the facts are not in dispute as to the nature of the agreement and the work required by it, the existence or absence of statutory employment is a question of law for the courts to decide.” Id. at 621.

The first element for statutory employment requires that the work be performed pursuant to a contract. The undisputed facts in this case are that Norfolk contracted with FCS for the loading and unloading of vehicles shipped by rail to Norfolk’s Voltz ramp. Therefore, the first element is met. The second element for statutory employment requires that Mr. Augur’s injuries occurred on or about the premises of the alleged statutory employer. Here, Mr. Augur’s injuries occurred while performing the contracted services at the Voltz ramp, property owned and operated by Norfolk. Therefore, the second element is satisfied.

The third- element for statutory employment requires that the work performed by FCS employees be within the usual course of Norfolk’s business. “Usual business,” as used in section 287.040.1, is defined as activities “(1) that are routinely done (2) on a regular and frequent schedule (3) contemplated in the agreement between the independent contractor and the statutory employer to be repeated over a relatively short span of time (4) the performance of which would require the statutory employer to hire permanent employees absent the agreement.” Bass, 911 S.W.2d at 621.

In this case, the work performed under the contract between FCS and Norfolk was routine, scheduled, and repetitive. State ex rel. MSX Int'l, Inc. v. Dolan, 38 S.W.3d 427, 430 (Mo. banc 2001). FCS employees were responsible for loading and unloading vehicles from railcars at the Voltz ramp, and moving vehicles to Norfolk’s storage facility, five days a week, eight hours a day. The agreement was entered into on June 20, 1994, and remained effective through the date Mr. Augur was injured. In addition, had Norfolk not contracted with FCS, it would have been necessary for Norfolk to hire its own employees to load and unload vehicles from its railcars.

Mr. Augur argues, however, that the undisputed facts do not prove that the work performed under the contract was part of the “usual business” of Norfolk. Mr. Augur relies on Parker v. National Super Markets, Inc., 914 S.W.2d 30 (Mo.App.1995). In that case, the plaintiff was a route deliveryman employed by Marion Pepsi to deliver Pepsi products to customers in Marion Pepsi’s service area, including one of the defendant’s stores. Id. at 31. When making a delivery to the defendant’s store, the plaintiff was injured on the defendant’s loading dock. Id. The plaintiff filed suit and received a judgment of $10,400. Id. On appeal, the defendant argued that the plaintiff was a statutory employee of the defendant and, therefore, the court lacked jurisdiction because the injury was covered by workers’ compensation. Id. In affirming the judgment in favor of the plaintiff, the court found that the plaintiffs delivery of Pepsi products to defendant’s store was not in the usual course of the defendant’s business. Id. at 31-32. In so finding, the court stated that there was “no evidence that vendors would have allowed defendant’s employees to make such deliveries, there was no evidence that defendant’s employees had ever made such deliveries, and there was evidence that no deliveries of Pepsi product had ever been made by defendant’s employees.” Id. Mr. Augur contends that because Norfolk did not present any evidence that any of its employees had ever unloaded vehicles from railcars, under Parker, Norfolk failed to prove that the work performed under the contract was part of the “usual business” of Norfolk.

In Parker, however, the court specifically found that the “very nature of the agreement between Marion Pepsi and defendant was that Marion Pepsi supplied its product to the store, unloaded its product and shelved it using its employees.” Id. at 32. Thus, under the terms of the agreement between Marion Pepsi and the defendant, the defendant’s employees could never have performed the work performed by the plaintiff in Parker. In other words, the plaintiffs employer did not allow its product to be delivered or shelved by anyone other than its own employees. That is not the case here. The contract between Norfolk and FCS does not provide that Norfolk employees cannot unload vehicles from its railcars. Thus, Parker is distinguishable.

This court finds the facts of this case more akin to the facts in Dolan. 38 S.W.3d 427. In Dolan, MSX International contracted with Chrysler Corporation to produce sequenced wheel assemblies. Id. at 429. MSX then subcontracted with Logistics Management Services, Inc. (LMS) to supply employees for the manufacturing of the sequenced wheel assemblies. Id. The plaintiff, employed by LMS, sustained injuries while working as a wheel assembler. Id. Following his injuries, the plaintiff filed a workers’ compensation claim against LMS and a common law claim for damages against MSX. Id. The Supreme Court, however, found that MSX was a statutory employer of the plaintiff and, therefore, the trial court lacked subject matter jurisdiction over the plaintiffs common law claim. Id. at 430. In particular, the court found that the work performed by the plaintiff “was routine, scheduled, repetitive, and would have required MSX to hire its own employees but for having contracted with LMS.” Id.

Here, Norfolk contracted with auto companies regarding delivery of vehicles by rail. Norfolk, in turn, subcontracted FCS to load and unload the vehicles from its railcars and to move the vehicles to Norfolk’s storage area. Mr. Augur, an employee of FCS, was injured in the course of unloading vehicles from Norfolk’s rail-cars. The work performed by Mr. Augur was routine, scheduled, repetitive, and would have required Norfolk to hire its own employees but for having contracted with FCS. Id. Thus, the work performed by Mr. Augur was in the usual course of Norfolk’s business. Consequently, Norfolk was a statutory employer and, therefore, if federal law did not preempt Mr. Augur’s claim as discussed above, then Norfolk would be subject to the provisions of the Missouri workers’ compensation act as a statutory employer. Therefore, in the absence of federal preemption, because Norfolk is a statutory employer under section 287.040.1, it “was immune from the common law action filed by [Mr. Augur] by virtue of the worker’s compensation statute.” Id. at 430. In other words, either Mr. Augur’s claim should have been brought as a FELA claim, or, if Mr. Augur’s claim were not preempted by FELA, then jurisdiction over Mr. Augur’s claim would rest solely with the Labor and Industrial Relations Commission because Norfolk is a statutory employer under section 287.040.1. In either case, Norfolk has demonstrated, by a preponderance of the evidence, that the trial court lacked subject matter jurisdiction over Mr. Augur’s claim.

Having determined that the trial court lacked jurisdiction over Mr. Augur’s claim, the judgment is reversed and the case is remanded with instructions to dismiss Mr. Augur’s petition.

All concur.

      . The Voltz ramp is a twenty-five acre location, which is completely enclosed by a fence. The facilüy has three locked gates, which are manned by guards twenty-four hours a day.

      . All statutory references are to the Revised Statutes of Missouri 2000.

      . Resolution of this case, however, does not require this court to decide whether FELA preempts Mr. Augur’s claim.

      . Specifically, section 287.040.1 provides:
      Any person who has work done under contract on or about his premises which is an operation of the usual business which he there carries on shall be deemed an employer and shall be liable under this chapter to such contractor, his subcontractors, and their employees, when injured or killed on or about the premises of the employer while doing work which is in the usual course of his business.

      . The original agreement between Norfolk and FCS was entered into in 1973.

      . Norfolk also claims that, under section 287.040.4, because Mr. Augur's immediate employer, FCS, carried workers’ compensation insurance, which covered Mr. Augur’s injuries, Mr. Augur cannot bring suit against Norfolk, a remote employer, for the same injuries. Section 287.040.4 provides in relevant part, "[n]o such employer shall be liable as in [section 287.040] provided, if the employee was insured by his immediate or any intermediate employer.” Thus, "section 287.040.4 deals with the determination of who pays under the worker’s compensation act.” Dolan, 38 S.W.3d at 430. Specifically, section 287.040.4 "serves to prioritize the obligations of contractors and subcontractors by determining the order of liabilities when more than one party is potentially liable for payment of workers’ compensation benefits.” Chouteau v. Netco Constr. Co., 132 S.W.3d 328, 335 (Mo.App.2004). In this case, Mr. Augur’s immediate employer, FCS, was insured for Mr. Augur’s injuries, and Mr. Augur has already received workers’ compensation benefits under FCS’s insurance policy. Mr. Augur, nevertheless, argues that even if Norfolk operates subject to the workers’ compensation act, Norfolk should not be able to claim the benefits of section 287.040.4 because the statute's purpose is to prevent employers from circumventing the requirements of the act by hiring independent contractors to perform work the employer would otherwise perform. By the terms of its contract with FCS, however, Norfolk required FCS to carry its own workers’ compensation insurance. In doing so, Norfolk availed itself of section 287.040.4, and has not circumvented the requirements of the act. Id. at 336. Rather, in its contract with FCS, Norfolk sought to ensure that all of FCS's employees were covered by workers’ compensation insurance. The cost of this provision was paid by Norfolk in terms of the contracted price between FCS and Norfolk. Thus, Norfolk is not liable to Mr. Augur in workers' compensation as a remote employer under section 287.040.4 because Mr. Augur’s immediate employer already compensated Mr. Augur for his injuries.


source: Caselaw Access Project

author: LISA WHITE HARDWICK, Judge.

license: Public Domain

text:
    BANK OF BELTON, Respondent, v. BOGAR FARMS, INC. et al., Defendant, J & M Development of Cass County, Inc. & Janie Bogar, Appellants.
    No. WD 63310.
    Missouri Court of Appeals, Western District.
    Feb. 8, 2005.

      Lynn K Ballew, Harrisonville, MO, for appellant.
    Kelly A. Campbell, Kansas City, MO, for respondent.
    Before SMART, P.J., ELLIS and HARDWICK, JJ.
   LISA WHITE HARDWICK, Judge.

This appeal arises from a judgment allowing the Bank of Belton (Bank) to pierce the corporate veil of J & M Development of Cass County, Inc. (J & M), based on a determination that J & M was the alter ego of the Bank’s insolvent debtor, Bogar Farms, Inc. (Bogar Farms). We reverse the judgment because the evidence was insufficient to prove that asset transfers between J & M and Bogar Farms was the proximate cause of any financial injury to the Bank.

Factual and Procedural History

The Bank obtained a judgment for contract damages of $179,821.18 against Bo-gar Farms and Michael Bogar (collectively, Bogar defendants) after they defaulted on three loan agreements. Because Bogar Farms was insolvent, the Bank filed an additional claim against J & M seeking to prove that it was the alter ego of Bogar Farms because the two corporations had “overlapping” ownership, commingled funds, and substantial asset transfers between themselves.

The Bank’s alter ego claim alleged that Michael Bogar owned 100% of the Bogar Farms stock, while his wife, Janie Bogar, owned all of J & M’s stock. The petition further alleged that Mr. Bogar transferred funds between the corporations to “shield assets” and “escape liability” under the loan agreements. Based on the alleged alter ego relationship of Bogar Farms and J & M, the Bank requested the court to pierce the corporate veil and hold J & M jointly liable for the judgment against the Bogar defendants.

The Bank and J & M agreed to submit the alter ego claim on stipulated facts. Based on the stipulations, the court found that Michael Bogar dominated and controlled J & M such that J & M had no separate identity from Bogar Farms, and that Michael Bogar used that control to engage in financial transfers in contravention of the Bank’s legal right to recovery under the loan agreements. The court further found the Bank was “damaged” by the transfer of assets between the alter ego corporations because Bogar Farms was insolvent and unable to meet its' obligations under the loan agreements. Accordingly, the court entered judgment allowing the Bank to pierce the corporate veil of J & M and levy and execute upon J & M’s assets for judgment entered against the Bogar defendants.

Piercing the Corporate Veil

J & M raises five points challenging the court’s determination to pierce the corporate veil based on the stipulated facts. We need only address the second point, as it is dispositive. In Point II, J & M contends the stipulated facts are insufficient to prove the Bank was damaged by the alter ego relationship and, therefore, the Bank is not entitled to pierce the corporate veil.

The standard of review in this bench-tried case based on stipulated facts is set forth in Schroeder v. Horack, 592 S.W.2d 742, 744 (Mo. banc 1979). Contrary to J & M’s “assertion that our review is governed by Murphy v. Carron, 536 S.W.2d 30, 31 (Mo. banc 1976), the only question before this court is whether the trial court drew the proper legal conclusions from the facts stipulated.” Schroeder, 592 S.W.2d at 744.

Missouri law recognizes narrow circumstances for piercing the corporate veil, and courts do not take this action lightly. Patrick V. Koepke Constr., Inc. v. Paletta, 118 S.W.3d 611, 614 (Mo.App.2003). Ordinarily, the separate legal identities of two corporations will be protected. Collet v. Am. Nat’l Stores, Inc., 708 S.W.2d 273, 283 (Mo.App.1986). However, situations do arise when one corporation shows such domination and control over another that the latter corporation becomes a mere adjunct or “alter ego” of the first. Id. at 283-84 If this alter ego relationship is used to accomplish a fraud or unlawful purpose, then courts can disregard the separate formal corporate structures, thereby piercing the corporate veil to hold the dominant corporation liable for the debts its adjunct corporation. Id. at 284.

A three-part test applies in determining whether to pierce the corporate veil. The Bank must demonstrate that: (1) J & M exercised such complete control and domination over Bogar Farms that Bogar Farms had no separate mind, will or existence with regard to the financial transactions at issue; (2) J & M used its control and domination over Bogar Farms to commit fraud or violations of legal duties in contravention of the Bank’s rights; and (3) J & M’s control of Bogar Farms and breach of duty proximately caused injury to the Bank. 66 Inc., v. Crestwood Commons Redevelopment Corp., 998 S.W.2d 32, 40 (Mo. banc 1999).

The third element of this test is at issue in Point II of the appeal. J & M contends the stipulated facts are insufficient to show that its alleged control and domination was the proximate cause of Bogar Farms’ insolvency and the Bank’s inability to collect from Bogar Farms.

The parties stipulated that Michael Bo-gar “controlled” both J & M and Bogar Farms. Under Mr. Bogar’s control, the corporations made several mutually beneficial financial transactions or transfers during the relevant period of November 1998 through August 2000. The facts state that the total amount of transfers from Bogar Farms for the benefit of J & M was $55,581.19, and that J & M transferred $66,719.78 of its assets back to pay the debts of Bogar Farms. The parties expressly stipulated that these transfers resulted in Bogar Farms receiving $11,188.59 more than it had paid out for J & M’s benefit. The parties further stipulated that Bogar Farms is insolvent and the Bank is damaged because it has an uncol-lectible judgment against Bogar Farms.

Although the stipulated facts are sufficient to show the Bank was injured from Bogar Farms’ inability to pay the judgment, there are no facts to prove J & M exercised such control and domination over Bogar Farms as to cause the insolvency. The Bank argues on appeal that “the transfer of assets to [J & M] depleted available assets” and left Bogar Farms “undercapitalized, such that it defaulted on its loans to the Bank.” However, the facts clearly establish that J & M provided more money to Bogar Farms than it received from Bogar Farms. The Bank’s argument completely ignores the $11,188.59 windfall to Bogar Farms from its alleged dominant corporation.

Michael Bogar may have controlled both corporations, but the facts do not indicate that he used J & M to deplete Bogar Farms’ assets. None of the stipulated facts provide a causal link between the monies exchanged by the corporations and the insolvency or undercapitalization of Bogar Farms. Regardless of whether the facts show an alter ego relationship, there is no evidence to indicate the Bank was injured as a result of any financial transactions between J & M and Bogar Farms.

Based on the stipulated facts, the trial court failed to draw the proper legal conclusion on the third element required to pierce J & M’s corporate veil. The facts do not demonstrate that J & M’s control over Bogar Farms was the proximate cause of the insolvency and the Bank’s resulting inability to collect its debt from Bogar Farms. Accordingly, the court erred in granting relief on the alter ego claim. The judgment against J & M is reversed.

All concur.

      . The judgment also awarded the Bank attorney’s fees in the amount of $78,902.

      . Bogar Farms benefited J & M primarily by making a down payment and some installment payments on land purchased by J & M. J & M benefited Bogar Farms by applying its sales proceeds to Bank debts owed by Bogar Farms.


text:
    NAUTILUS INSURANCE COMPANY, Respondent, v. I-70 USED CARS, INC., Darren Bertrand, Robert Nelson, Ricky Ridgeway, Defendants, Forrest Holtkamp, Defendant Ad Litem in the Interest of Marty Holtkamp, Deceased, and Progressive Specialty Insurance Company, Appellants.
    Nos. WD 63202, WD 63203.
    Missouri Court of Appeals, Western District.
    Feb. 8, 2005.

      Susan Ford Robertson, Jeffrey 0. Pars-hall, Co-Counsel, Columbia, MO, for appellant Progressive Specialty Insurance Company.
    Kurt P. Valentine, Jefferson City, MO, for appellant Holtkamp.
    Teresa A. Drew, St. Louis, for respondent Nautilus Insurance Company.
    Michael A. Dallmeyer, Jefferson City, MO, for defendant 1-70 Used Cars, Inc.
    David A. Oliver, Columbia, MO, for defendant Bertrand.
    L.G. Copeland, Columbia, MO, for defendant Nelson.
    Before BRECKENRIDGE, P.J., SMART and HOWARD, JJ.
   PATRICIA BRECKENRIDGE, Judge.

Forrest Holtkamp, defendant ad litem in the interest of Marty Holtkamp, deceased, and Progressive Specialty Insurance Company, who is Marty Holtkamp’s automobile insurer, appeal the trial court’s entry of a directed verdict in favor of Nautilus Insurance Company on Nautilus’ petition for declaratory judgment. Nautilus had sought a declaration of no coverage under a garage operations insurance policy issued to 1-70 Used Cars, Inc., for an accident that occurred when a car owned by I-70 Used Cars and driven by Rickey Ridge-way collided with a car driven by Marty Holtkamp. The trial court found that Mr. Ridgeway was not covered under the policy.

Mr. Holtkamp raises four points on appeal, and Progressive raises one point. One of Mr. Holtkamp’s points alleges that the evidence supporting coverage was sufficient to withstand Nautilus’ motion for directed verdict. Mr. Holtkamp’s remaining points and Progressive’s sole point allege that the judgment was not supported by the evidence and was against the weight of the evidence. This court finds that the judgment was not the entry of a directed verdict but was a decision on the merits and should be reviewed as any other court-tried case. The trial court’s finding that Mr. Ridgeway was operating the car- outside the scope of the permission granted by the named insured and, therefore, was not covered by Nautilus’ policy was supported by sufficient evidence and was not against the weight of the evidence. The judgment is affirmed.

Factual and Procedural Background

Mr. Ridgeway was in the business of cleaning vehicles and operated an unincorporated business called Detail Service. His base of operations was an address in Columbia. In the first week of May 2000, Mr. Ridgeway went to 1-70 Used Cars in Columbia and made an offer to its owner, Norman Dietzel, to detail cars for $40 per car. Mr. Dietzel understood the word “detail” to mean totally clean the car, including “the inside, engine, truck and exteri- or.” Mr. Ridgeway gave Mr. Dietzel his business card, which indicated that Mr. Ridgeway’s business was in Columbia. The two men agreed that Mr. Ridgeway would take the cars and bring them back clean the same day, and then Mr. Dietzel would pay Mr. Ridgeway. Mr. Ridgeway told Mr. Dietzel that he was going to take the cars to his Columbia address, and Mr. Dietzel believed that Mr. Ridgeway performed all of his detail work in Columbia.

Mr. Dietzel did not consider Mr. Ridge-way to be an employee, representative, or agent of 1-70 Used Cars, and Mr. Ridge-way understood that he was not an employee of 1-70 Used Cars. Mr. Dietzel did not give Mr. Ridgeway any instructions on how to detail cars, nor did he give him any supplies or tell him where to detail the cars. Mr. Ridgeway had experience in detailing cars, knew what materials he needed, and had bought the materials before he offered to detail cars for Mr. Diet-zel.

Mr. Ridgeway took the first ear he detailed for 1-70 Used Cars to his Columbia address, cleaned it inside and out, and returned it the same day. Mr. Dietzel paid him $40. On another occasion, Mr. Dietzel gave Mr. Ridgeway a second car to detail. Mr. Ridgeway took this second car to his Columbia address, cleaned it, and returned it the same day. Mr. Dietzel paid Mr. Ridgeway $40. Mr. Dietzel did not give Mr. Ridgeway permission, on either of these two occasions, to drive the cars for his personal use, nor did Mr. Ridgeway use the cars to pick up the supplies needed to detail the cars.

Within the same week, Mr. Ridgeway obtained a third car from Mr. Dietzel to detail. Mr. Ridgeway obtained the car, a 1988 Oldsmobile, at about 2:00 or 3:00 in the afternoon of May 4, 2000. Mr. Ridge-way told Mr. Dietzel he would take the car, detail it, and return it by the time the dealership closed that evening, which was 6:00. According to Mr. Dietzel, Mr. Ridgeway had permission to drive the Oldsmobile to wherever he cleaned it and bring it back to the dealership. Mr. Diet-zel did not give Mr. Ridgeway permission to drive the Oldsmobile for personal use, including allowing others to ride in the car, nor did Mr. Dietzel give Mr. Ridgeway permission to drive the car outside of Columbia or to drink alcohol and drive the car. Mr. Ridgeway did not ask Mr. Diet-zel’s permission to have another person in the car or to take the car outside of Columbia, nor did he advise Mr. Dietzel that he needed to use the car to obtain additional supplies to detail the car. Mr. Diet-zel understood that Mr. Ridgeway would take the car to his place of operations in Columbia, detail it, and return it to 1-70 Used Cars that evening.

After picking up the car from 1-70 Used Cars, Mr. Ridgeway took it to his Columbia address, detailed it, and then drove it to Centraba. In Centraba, he bought some beer and went to the home of an acquaintance, Bob Nelson. While at Mr. Nelson’s home, Mr. Ridgeway started drinking the beer. Mr. Ridgeway and Mr. Nelson left and drove to the home of Glen and Annette VanVactor in Mexico, Missouri. Mr. Ridgeway was unable to remember whether he was drinking during the drive from Centraba to Mexico. Mr. Ridgeway sociabzed and drank beer at the VanVactors’ home in Mexico for over forty-five minutes before he and Mr. Nelson left, with Mr. Ridgeway driving.

Shortly after leaving, however, Mr. Ridgeway realized that he had left his cigarettes and alcohol at the VanVactors’ home. He turned around in the middle of the street to go back and, in doing so, hit a fence owned by Andrea Wilier. Ms. Wilier and a friend were outside at the time. After smelling alcohol on his breath and hearing Mr. Ridgeway’s slurred speech, Ms. Wilier asked Mr. Ridgeway if he had been drinking. Mr. Ridgeway admitted that he had. When Ms. Wilier asked Mr. Ridgeway why he turned around in the middle of the street, Mr. Ridgeway told her that he and his girlfriend were in a fight and he thought he saw her going the opposite direction, so he was trying to turn around to follow her.

Mr. Ridgeway then drove back to the VanVactors’ home and picked up his cigarettes and alcohol. According to Mr. Ridgeway, when he left the VanVactors’ home the second time, sometime between 8:30 and 9:00 p.m„ he was driving to a shop in Mexico owned by his friend, Forrest Zeltner, for the purpose of obtaining supplies to repair the headliner in the Oldsmobile. Mr. Zeltner was not aware, however, that Mr. Ridgeway was coming to obtain those suppbes. Moreover, in his deposition, which was admitted into evidence, Mr. Dietzel stated that he did not recab having a conversation with Mr. Ridgeway regarding Mr. Ridgeway’s repairing the Oldsmobile’s headliner. Indeed, Mr. Diet-zel did not recall what kind of condition the Oldsmobile’s headliner was in before he gave the car to Mr. Ridgeway to detail.

About five minutes after he left the Van-Vactors’ home the second time, Mr. Ridge-way, who was driving approximately sixty to seventy miles per hour, ran a stop sign and hit a truck. The cobision kiUed the driver of the truck, Marty Holtkamp, and injured Mr. Ridgeway and Mr. Nelson. After hitting the truck, the Oldsmobile bounced off of the truck and hit a house that was owned by Darren Bertrand.

An officer who arrived at the accident scene smebed the odor of an intoxicating beverage inside the Oldsmobile and on Mr. Ridgeway’s person and noticed that Mr. Ridgeway’s speech was slurred, his movements were slow, he was having difficulty following simple instructions, and he was combative. Additionally, the officer found several open beer bottles in the Oldsmobbe and the empty packaging from a twelve-pack of beer.

After the accident, Nautbus Insurance Company, 1-70 Used Cars’ insurer, filed a petition for declaratory judgment, naming as defendants the estate of Marty Holt-kamp, Mr. Ridgeway, Mr. Nelson, Mr. Bertrand, and 1-70 Used Cars. In its petition, Nautbus asked the court for a decía-ration that the garage operations insurance policy Nautilus issued to 1-70 Used Cars did not cover the accident. In particular, Nautilus cited the policy provision that defines who is an insured under the policy:

SECTION II — LIABILITY COVERAGE
A. Coverage
1. Who Is An Insured
a. The following are “insureds” for covered “autos”:
(1) You for any covered “auto”.
(2) Anyone else while using with your permission a covered “auto” you own, hire or borrow except:
(c) Someone using a covered “auto” while he or she is working in a business of selling, servicing, repairing, parking or storing “autos” unless that business is your “garage operations”.

Nautilus claimed that Mr. Ridgeway was not an employee, representative, or agent of 1-70 Used Cars at the time of the accident or at anytime prior to the accident, was not operating the Oldsmobile with the permission of 1-70 Used Cars at the time of the accident, and was in the business of servicing and repairing cars. For these reasons, Nautilus claimed that Mr. Ridgeway was not an insured under the policy and the accident was excluded from coverage. Progressive, who provided uninsured motorist coverage to Marty Holtkamp, was granted leave to intervene. Nautilus filed a motion for summary judgment, which was overruled.

A trial without a jury was held on June 4, 2003, and the court entered judgment on July 9, 2003. In its judgment, the court found that Mr. Ridgeway did not have express or implied permission to use the Oldsmobile for his personal use and, even if he did have some form of permission to drive the car, his actions constituted a material deviation from that permission. Additionally, the court found that Mr. Ridgeway fell under the policy’s exclusion from coverage for contractors who are in the business of “selling, servicing, repairing, parking or storing” the cars outside of 1-70 Used Cars’ “garage operations.” Mr. Holtkamp and Progressive filed this appeal.

Standard of Review

In one of his points, Mr. Holtkamp argues that the trial court erred in entering a directed verdict in favor of Nautilus because the evidence was sufficient to withstand such a verdict. Mr. Holtkamp contends that he made a submissible case for coverage and asks that this court reverse the directed verdict and remand the case to the trial court for a jury trial.

Mr. Holtkamp misunderstands the procedural posture of this case. Although Nautilus, the plaintiff, demanded a jury trial in its petition, it appears that the parties later agreed to a trial without a jury. On the day of the trial, Nautilus presented evidence to the court and rested. The court then asked each of the defendants if they wished to present evidence. Mr. Holtkamp offered the deposition testimony of Mr. Dietzel and rested. The court asked the remaining defendants if they wished to present any evidence, and they declined. The court then asked Nautilus if it had any further evidence. At that point, Nautilus filed a motion for a directed verdict, which the court took with the case.

In its judgment, the court stated that it was granting Nautilus’ motion for a directed verdict. In this court-tried case, however, there was “no verdict to direct.” Roberts v. Wilson, 97 S.W.3d 487, 491 (Mo.App.2002). The trial court’s judgment was a verbatim adoption of Nautilus’ proposed findings of fact and conclusions of law. This procedure, although not per se erroneous, has been routinely criticized in numerous cases. See, e.g., Massman Constr. Co. v. Mo. Highway & Transp. Comm’n, 914 S.W.2d 801, 804 (Mo. banc 1996); Nolte v. Wittmaier, 977 S.W.2d 52, 57 (Mo.App.1998); Stelling v. Stelling, 769 S.W.2d 450, 452 (Mo.App.1989). In this case, the adopted language in the judgment appears to have created confusion as to the procedural posture of the case. Nevertheless, because the judgment indicates that the trial court properly applied the law and exercised the “ ‘necessary judicial consideration’ ” of the dispositive issue before it, any irregularities in the judgment are not grounds for reversal. See id. at 452-58.

Essentially, “a motion for directed verdict in a court-tried case submits the issue for a decision on the merits” and, therefore, this court considers such a motion “to be a motion for a judgment pursuant to Rule 73.01.” Cadle Co. v. Shearer, 69 S.W.3d 122, 124 (Mo.App.2002). Thus, this court will review the case on its merits, under the standard set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Roberts, 97 S.W.3d at 491. The trial court’s judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy, 536 S.W.2d at 32.

Mr. Holtkamp and Progressive argue that the trial court’s judgment is not supported by substantial evidence and is against the weight of the evidence. In determining whether the judgment is supported by substantial evidence, this court views the evidence and any inferences therefrom in the light most favorable to the trial court’s judgment, disregarding all contrary evidence and inferences. Barrows v. Firstar Bank, 103 S.W.3d 386, 390 (Mo.App.2003). In reviewing the evidence, this court “should defer to the trial court in judging the credibility of witnesses and resolving conflicting evidence.” Blackburn v. Habitat Dev. Co., 57 S.W.3d 378, 385 (Mo.App.2001). “ ‘The power to set aside a trial court’s judgment on the ground that it is against the weight of the evidence should be exercised with caution and with a firm belief that the decree or judgment is wrong.’ ” Brizendine v. Conrad, 71 S.W.3d 587, 590 (Mo. banc 2002) (quoting Searcy v. Seedorff, 8 S.W.3d 113, 116 (Mo. banc 1999) (internal citations omitted)).

No Permission for Personal Use

Mr. Holtkamp and Progressive first argue that the trial court’s finding that, at the time of the accident, Mr. Ridgeway was using the Oldsmobile without the permission of Mr. Dietzel is not supported by substantial evidence and is against the weight of the evidence. The court found that Mr. Ridgeway was using the Oldsmobile for his personal use at the time of the accident, and he had neither express nor implied permission to do so. Mr. Holtkamp and Progressive argue that the evidence shows that Mr. Ridgeway was not using the car for his personal use but, rather, was using it for a business purpose. Thus, before addressing the scope of permission granted Mr. Ridgeway, this court must first determine whether, at the time of the accident, Mr. Ridgeway was using the car for business or personal use.

The evidence showed that, after Mr. Dietzel and Mr. Ridgeway agreed that Mr. Ridgeway would detail the Oldsmobile, Mr. Ridgeway drove the car to his Columbia address and detailed it. Mr. Ridgeway then drove the car to Centraba, where he bought beer. Next, he drove to Mr. Nelson’s house and drank some of the beer. From there, he drove himself and Mr. Nelson to the VanVaetors’ home in Mexico, where he drank more beer and socialized for over forty-five minutes before leaving, with Mr. Ridgeway driving. After they left the VanVaetors’ home, Mr. Ridgeway realized he had forgotten his cigarettes and beer at the VanVaetors’. He turned the car around in the middle of the street and, in the process, hit a fence. When asked by the owner of the fence why he was turning around in the middle of the street, Mr. Ridgeway said he was trying to follow his girlfriend. Mr. Ridgeway returned to the VanVaetors’ and retrieved his cigarettes and beer. The accident occurred approximately five minutes after he left the VanVaetors’ home the second time.

Mr. Holtkamp and Progressive argue that the record shows that Mr. Ridgeway drove to Mexico for the business purpose of obtaining materials to fix the headliner in the Oldsmobile. Mr. Ridgeway testified in his deposition, which was admitted into evidence, that he agreed with Mr. Dietzel that he would fix the headliner. Mr. Dietzel testified that he probably did agree to Mr. Ridgeway’s fixing the headliner. According to Mr. Ridgeway, he went to Mexico for the purpose of going to an upholstery shop owned by his friend, Mr. Zeltner, to buy cloth to replace the headliner and to get assistance from Mr. Zeltner. He testified that he went to the VanVaetors’ home because he thought another acquaintance lived there, and this other acquaintance knew Mr. Zeltner. He further testified that he was actually on his way to the upholstery shop when the accident occurred.

The trial court was not required to believe that Mr. Ridgeway was driving to the upholstery shop when the accident occurred. The accident occurred between 8:30 and 9:00 p.m., and Mr. Zeltner was not aware that Mr. Ridgeway was coming to his shop. Moreover, the trial court was not required to believe that Mr. Ridge-way’s purpose for driving to Mexico was to obtain material to repair the headliner. “The trial court is free to believe or disbe-beve all, part or none of the testimony of any witness.” Schuster v. Shelter Mut. Ins. Co., 857 S.W.2d 381, 386 (Mo.App.1993). “The trial court may disbelieve testimony even when uncontradicted.” Id. The trial court was free to disbelieve Mr. Ridgeway’s testimony, and this court will defer to the trial court’s decision to do so. Blackburn, 57 S.W.3d at 385. When Mr. Ridgeway’s testimony is disregarded, the evidence, in the light most favorable to the judgment, shows that Mr. Ridgeway used the car for personal, rather than business, use.

The next issue, then, is whether Mr. Ridgeway had Mr. Dietzel’s permission to use the Oldsmobile for personal use. The issue of permissive use of an automobile “is a question of fact which may be satisfied by a showing of either express or implied permission.” State Farm Mut. Auto. Ins. Co. v. Scheel, 973 S.W.2d 560, 567 (Mo.App.1998). “Permission is express if it is of an affirmative character, directly and distinctly stated, clear and outspoken, and not merely implied or left to inference.” Shelter Mut. Ins. Co. v. See, 46 S.W.3d 65, 67 (Mo.App.2001).

The evidence, in the light most favorable to the trial court’s judgment, is that Mr. Dietzel gave Mr. Ridgeway the keys to the Oldsmobile and told him to detail it. In response, Mr. Ridgeway told Mr. Dietzel he would detail the car and return it that evening. This conversation indicates that Mr. Dietzel gave Mr. Ridge-way express permission to use the Oldsmobile on May 4, 2000, for the purpose of detailing it and returning it to 1-70 Used Cars that evening. Mr. Dietzel did not give Mr. Ridgeway express permission for any other use of the car.

Having found that Mr. Dietzel did not give Mr. Ridgeway express permission to drive the car for his personal use, this court next looks at whether such permission was implied. Implied permission is permission that is “not verbally expressed, but provable by circumstantial evidence.” Kemp v. MFA Mut. Ins. Co., 468 S.W.2d 700, 704 (Mo.App.1971). “Implied permission is determined from the facts and circumstances of the case and usually arises from a course of conduct of the parties over a period of time.” See, 46 S.W.3d at 67. “Implied permission may be the result of a common practice or course of conduct whereby the owner acquiesces in the practice of another operating his automobile.” Id. In determining whether implied permission exists in a situation where a car “ ‘is loaned for a specific purpose but used for some other purpose, a general permission or a comprehensive permission is much more readily to be assumed if the use of the vehicle is for social rather than business purposes’ ” and where the employer-employee relationship does not exist. Winterton v. Van Zandt, 351 S.W.2d 696, 701 (Mo.1961) (quoting 7 Appleman, INSURANCE Law & PractiCE, section 4368 (Supp.1961)). See also Kemp, 468 S.W.2d at 704 (stating that “implied permission is easier to find where the relationship between the parties is social rather than business; where the driver is not acting as an employee at the time of the accident and where the automobile is used for non-business rather than business or commercial purposes”).

In this case, although Mr. Ridgeway was not an employee of Mr. Dietzel’s or 1-70 Used Cars, the relationship between the two men was strictly business, analogous to that of an employer and an independent contractor. There is no evidence that they had any kind of personal or non-business relationship. Mr. Dietzel had never met or heard of Mr. Ridgeway until Mr. Ridge-way came to 1-70 Used Cars and offered to detail cars, which were inventory of the business of 1-70 Used Cars, for a fee. Mr. Ridgeway told Mr. Dietzel that he would take the cars to his Columbia address, which was listed on Mr. Ridgeway’s business card. Mr. Dietzel accepted Mr. Ridgeway’s business proposal. The two men agreed that Mr. Ridgeway would take the cars and bring them back clean the same day, and then Mr. Dietzel would pay Mr. Ridgeway for his detailing service.

Mr. Dietzel gave Mr. Ridgeway the keys to cars to detail on three occasions. On the first two occasions, Mr. Ridgeway drove the cars straight to his Columbia address, detailed them, and returned the cars to 1-70 Used Cars when he was finished detailing them. Mr. Ridgeway testified that he did not use either of those two cars to pick up supplies, and there is no evidence that Mr. Ridgeway used either of the first two cars for personal use. According to Mr. Dietzel, Mr. Ridgeway returned those two cars within the appropriate three-to-five-hour period that it takes to detail a car, and both cars were detailed to Mr. Dietzel’s satisfaction. Mr. Ridge-way used the first two cars solely for the business purpose of detailing them, and there is no evidence of a common practice or course of conduct indicating that Mr. Dietzel acquiesced in Mr. Ridgeway’s using the cars for his personal use. Cf. Ohio Cas. Ins. Co. v. Safeco Ins. Co., 768 S.W.2d 602, 604 (Mo.App.1989) (finding employees had implied permission to use an employer’s van for night of drinking and driving from course of conduct whereby the van had previously been used, with employer’s knowledge, by employees for personal reasons during the day and evening hours).

Mr. Holtkamp and Progressive argue, however, that Mr. Dietzel’s failure to place any explicit restrictions on Mr. Ridgeway’s use of the cars was evidence that Mr. Ridgeway had implied permission to use the cars for his personal use. In support of this argument, Mr. Holtkamp and Progressive cite Cameron Mutual Insurance Co. v. Bollinger, 834 S.W.2d 848, 851 (Mo.App.1992) and Universal Underwriters Insurance Co. v. Michael, 781 S.W.2d 119, 123 (Mo.App.1989). In those cases, the court noted that permission can be derived from both positive and negative factors, and “[t]he absence of an explicit restriction is a strong indication that the use is permissive.” Bollinger, 834 S.W.2d at 851-52. See also Michael, 781 S.W.2d at 123.

The circumstances of Bollinger and Michael, however, are far different than those in this case. In Bollinger, the court found that the driver, who performed farm labor for the named insureds, had implied permission to use the named insureds’ farm truck for his personal use because the named insureds did not put any restrictions on his use. 834 S.W.2d at 850-52. The court based this finding, however, on such facts as: the driver was not acting as an ordinary employee, because he was a friend of the named insureds’ son and was living with the named insureds; the named insureds were aware that the driver had been using the truck for his personal use; and, on the night of the accident, the named insureds saw the driver using the truck for his personal use, issued no restrictions on his using the truck, and specifically gave him permission to continue driving the truck that night. Id. at 851. Here, the relationship between Mr. Ridge-way and Mr. Dietzel was strictly business, and there was no evidence indicating that Mr. Ridgeway had a history of using the cars he had detailed for his personal use or that Mr. Dietzel was aware that Mr. Ridgeway was using the Oldsmobile for his personal use.

Likewise, in Michael, this court held that the friend of a car dealership’s employee had implied permission to use the dealership’s demonstrator car. 781 S.W.2d at 122-24. This court noted that the dealership had given the demonstrator car to the employee with express permission to drive it for business and personal use with the sole restriction that travel be limited to the Kansas City metropolitan area; the employee had “broad and unfettered” discretion to let others drive the car; the friend was driving the car at the specific request of the employee, who was too intoxicated to drive; and one of the dealership’s vice-presidents testified that he would delegate permission to drive the demonstrator car to the person who was with an intoxicated employee. Id. Thus, the dealership in Michael expected, if not encouraged, its employees to use and let others use the demonstrator cars for personal and business use and, in that particular instance, expected someone other than the intoxicated employee to drive the car. In this case, Mr. Dietzel gave Mr. Ridge-way express permission to use the car only for a business use and there was no evidence that he expected or encouraged Mr. Ridgeway to use the car for his personal use.

Nevertheless, Mr. Holtkamp argues that Mr. Ridgeway’s personal use of the car was expected and foreseeable because Mr. Dietzel was aware that Mr. Ridgeway did not have a car of his own. Mr. Holtkamp notes that “[t]he absence of a prohibition against an expected or foreseeable or natural use may be strongly indicative that such use is permissible.” Kemp, 468 S.W.2d at 705. When asked if he knew how Mr. Ridgeway got to 1-70 Used Cars, Mr. Dietzel said he did not recall. This evidence does not support a finding that Mr. Dietzel was aware that Mr. Ridgeway did not have a car of his own. Even if Mr. Dietzel did know that Mr. Ridgeway did not have a car of his own, however, Mr. Ridgeway’s using the Oldsmobile to drive to Centralia to buy beer and socialize with a friend before driving the friend to Mexico to socialize with more friends was not an expected, foreseeable, or natural use under the circumstances. Mr. Ridgeway did not have implied permission to drive the car for his personal use.

The trial court’s finding that Mr. Ridge-way was operating the car outside the scope of the permission granted by the named insured and, therefore, was not covered by Nautilus’ policy was supported by sufficient evidence and was not against the weight of the evidence. The judgment is affirmed.

All concur.

      . Rule 73.01(b) provides only for the defendant, at the close of plaintiff’s evidence, to “move by motion for a judgment on the grounds that upon the facts and the law the plaintiff is not entitled to relief.” In this case, the plaintiff, Nautilus, moved for a directed verdict. In Dynamic Computer Solutions, Inc. v. Midwest Marketing Insurance Agency, L.L.C., 91 S.W.3d 708, 714 (Mo.App.2002), this court stated that it did not “read Rule 73.01 as precluding a motion in a judge-tried case for a judgment for the plaintiff at the close of the plaintiff's case based on conclusive evidence and the applicable law.” That is because there are "instances where the facts on which the plaintiff was relying for recovery were not legally subject to dispute by and were conclusive on the defendant, entitling the plaintiff to judgment as a matter of law.” Id. That Nautilus made the motion at the close of all of the evidence instead of at the close of its case further justifies treating the judgment as a decision on the merits and reviewing the case like any other court-tried case.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Theodore S. WIGGINS, Appellant.
    No. WD 63055.
    Missouri Court of Appeals, Western District.
    Feb. 8, 2005.
    Andrew A. Schroeder, Kansas City, MO, for appellant.
    Deborah Daniels, Jefferson City, MO, for respondent.
    Before PAUL M. SPINDEN, P.J., VICTOR C. HOWARD and THOMAS H. NEWTON, JJ.
   ORDER

PER CURIAM.

Mr. Theodore S. Wiggins appeals from the judgment of the trial court, which sentenced him to prison after a jury found him guilty of one count of robbery in the first degree, a class A felony under section 569.020, RSMo 2000; five counts of armed criminal action under section 571.015, RSMo 2000; one count of tampering in the first degree, a class C felony under section 569.080, RSMo 2000; and four counts of assault in the first degree, a class B felony, under section 565.050, RSMo 2000.

For the reasons set forth in the memorandum provided to the parties, we affirm the judgment of conviction. Rule 30.25(b).


text:
    James COTTER, et al, Appellant-Respondent, v. WARD ROANOKE CORPORATION, et al, Respondent-Appellant, Bonnie Cotter, Appellant-Respondent.
    Nos. WD 63104, WD 63105.
    Missouri Court of Appeals, Western District.
    Feb. 8, 2005.
    Douglas J. Patterson, Overland Park, KS, for Appellant-Respondent.
    Leland H. Corley, Kansas City, for Respondent-Appellant.
    Before RONALD R. HOLLIGER, Presiding Judge, PAUL M. SPINDEN, Judge, and JOSEPH M. ELLIS, Judge.
   ORDER

James Cotter, Betty Cotter and Steven M. Schneider (“Appellants”) appeal from a judgment awarding the Ward Roanoke Corporation (“The Corporation”) late fee penalties because of delinquent assessment payments and attorney fees. The Corporation cross appeals the amount of attorney fees awarded.

We have reviewed the briefs of the parties and the record on appeal, and find no error of law. A written opinion reciting the detailed facts and restating the applicable principles of law would have no prec-edential or jurisprudential value. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment of the trial court is affirmed. Rule 84.16(b). The case is remanded, however, solely for consideration of the Corporation’s motion for attorney’s fees.


text:
    Donna TIMMERMAN, Appellant, v. Emil Phillip TIMMERMAN, Respondent.
    No. WD 63185.
    Missouri Court of Appeals, Western District.
    Feb. 8, 2005.
    Lesa L. Bonnett, Macon, MO, for appellant.
    Cynthia A. Suter, Moberly, MO, for respondent.
    Before SPINDEN, P.J., HOLLIGER and HARDWICK, JJ.
   ORDER

PER CURIAM.

Donna Timmerman appeals from the judgment dissolving her marriage to Emil Phillip Timmerman. She contends the trial court erred in awarding the parties joint legal and physical custody of their children and in granting Mr. Timmerman the substantial majority of the parenting time. Upon review of the record, we find no abuse of the trial court’s discretion in the custody determination and, therefore, affirm the judgment. Because a published opinion would have no precedential value, we have provided the parties with a Memorandum explaining the reasons for our decision.

Affirmed. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Marq WHITE, Appellant.
    No. WD 62336.
    Missouri Court of Appeals, Western District.
    Feb. 8, 2005.
    Nancy A. McKerrow, Columbia, MO, for appellant.
    Deborah Daniels, Jefferson City, MO, for respondent.
    Before SMART, P.J., ELLIS and HARDWICK, JJ.
   ORDER

PER CURIAM.

Marq White appeals from his jury conviction on charges of first-degree murder and armed criminal action. He contends the trial court erred in excluding impeachment evidence against a prosecution witness. Upon review of the record, we find no prejudicial error and affirm the convictions. The parties have been provided with a Memorandum explaining the reasons for our decision, because a published opinion would serve no jurisprudential purpose.

The judgment of the trial court is affirmed. Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Steven CHRISTIASON, Appellant.
    No. WD 62964.
    Missouri Court of Appeals, Western District.
    Feb. 8, 2005.
    Craig A. Johnston, Columbia, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before HOWARD, P.J., ULRICH and BRECKENRIDGE, JJ.
   ORDER

PER CURIAM.

Steven Christiason appeals his conviction and fifteen-year sentence for statutory sodomy in the first degree under section 566.062, RSMo 2000. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment is affirmed. Rule 30.25(b).


text:
    Ann OKAFOR, Appellant, v. Carolyn BOYD, Respondent.
    No. WD 62974.
    Missouri Court of Appeals, Western District.
    Feb. 8, 2005.
    David L. Neuhaus, Kansas City, MO, for appellant.
    Susan K. Glass, Assistant Attorney General, Virginia H. Murray, Co-Counsel, Jefferson City, MO, for respondent.
    Before ELLIS, C.J., LOWENSTEIN and BRECKENRIDGE, JJ.
   ORDER

PER CURIAM.

Ann Okafor appeals the trial court’s grant of summary judgment in favor of her former supervisor, Carolyn Boyd, on her claim for defamation. Since a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment is affirmed. Rule 84.16(b).


text:
    Jerri Kylene (Jones) GOULD, Appellant, v. Richard Alvin JONES, Respondent.
    No. WD 63675.
    Missouri Court of Appeals, Western District.
    Feb. 8, 2005.
    Patrick Erwin White, Kansas City, MO, for Appellant.
    Michael Joseph Svetlic, Kansas City, MO, for Respondent.
    Before EDWIN H. SMITH, C.J., ELLIS and HOWARD, JJ.
   ORDER

PER CURIAM.

Jerri Kylene Gould appeals from a judgment of the Circuit Court of Jackson County modifying its decree dissolving her marriage to the respondent, Richard Alvin Jones, with respect to its award of child custody. In its dissolution decree, the trial court awarded the appellant sole physical custody of the parties’ daughter. In its judgment of modification, the trial court modified its dissolution decree by awarding the parties joint physical custody of their daughter, with the respondent’s address being designated as the child’s for educational and mailing purposes.

In her sole point on appeal, the appellant claims that the trial court erred in modifying its child custody order, pursuant to § 452.377.12, by awarding the parties joint physical custody of their daughter, based on the court’s finding that the appellant failed to comply with the mandatory notice provisions of § 452.377 before relocating to Texas on February 17, 2003, without a court order, because the court’s finding erroneously applied the law and was against the weight of the evidence.

We affirm pursuant to Rule 84.16(b).


text:
    James Michael RAGAN, Appellant, v. STATE of Missouri, Respondent.
    No. WD 63630.
    Missouri Court of Appeals, Western District.
    Feb. 8, 2005.
    Kent Denzel, Assistant State Public Defender, Columbia, MO, for Appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before HOWARD, P.J., ULRICH and BRECKENRIDGE, JJ.
   ORDER

PER CURIAM.

Appellant James M. Ragan (Ragan) appeals from the denial of his motion to vacate, set aside, or correct judgment and sentence under Rule 24.035 in the Circuit Court of Cole County. Ragan argues three points on appeal. In Point I, Ragan argues the circuit court erred in denying Ragan’s Rule 24.035 motion without an evidentiary hearing because Ragan claimed his guilty plea was not voluntarily entered in that counsel failed to carry out his promise to argue for a reduced sentence because he would have to serve 85 percent of any sentence imposed. In Point II, Ragan argues the circuit court erred in denying Ragan’s Rule 24.035 motion without an evidentiary hearing because Ragan claimed he was pressured to plead guilty by the victim’s mother in order to spare the victim from having to testify at trial, and plea counsel, despite knowing this, faded to step in when Ragan told the court' he had not been pressured. In Point III, Ragan argues the circuit court clearly erred in failing to enter specific findings of fact and conclusions of law on all claims in Ragan’s motion in that Ragan alleged that counsel failed to argue for mitigation at sentencing that Ragan pleaded guilty in order to spare the victim from having to testify at trial and if counsel had made this argument, there is a reasonable probability that the court would have imposed a lesser sentence. We have reviewed the parties’ briefs and the record on appeal. No error of law appears. A written opinion would serve no jurisprudential purpose. We have, however, prepared a memorandum for the use of the parties only, setting forth the reasons for our decision.

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


text:
    STATE of Missouri, Respondent, v. Howard C. WALTERS, Appellant.
    No. WD 63142.
    Missouri Court of Appeals, Western District.
    Feb. 8, 2005.

      Traci Leah Fann, Kansas City, MO, for Appellant.
    Angela Claire Hasty, Assistant Prosecuting Attorney, Kansas City, MO, for Respondent.
    Before: HOWARD, P.J., ULRICH and BRECKENRIDGE, JJ.
   ORDER

PER CURIAM.

Appellant Howard Walters (‘Walters”) appeals from the Circuit Court of Jackson County’s judgment that forfeited $36,740.00 in United States currency seized from Walters’ home by Kansas City Police Officers to Respondent State of Missouri (“State”) pursuant to section 195.140.2(2) RSMo 2000. In Point I, Walters argues the circuit court erred in admitting hearsay testimony. In Point II, Walters argues the circuit court erred in admitting evidence about financial and personal family matters, which were not elements of the action brought by the State against Walters. In Point III, Walters argues the circuit court erred in admitting the testimony of Detectives Espeer and Campo because the testimony lacked foundation and because the testimony of Detective Espeer was speculative. In Point IV, Walters argues the circuit court erred in denying Walters’ motion for directed verdict in that the State failed to prove that the money seized was derived from criminal activity.

We have reviewed the parties’ briefs and the record on appeal. No error of law appears. A written opinion would serve no jurisprudential purpose. We have, however, prepared a memorandum for the use of the parties only, setting forth the reasons for our decision.

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


text:
    Jamel SUMMERS (29.15), Appellant, v. STATE of Missouri, Respondent.
    No. WD 63272.
    Missouri Court of Appeals, Western District.
    Feb. 8, 2005.
    Susan Lynn Hogan, Appellate Defender, Kansas City, MO, for Appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before EDWIN H. SMITH, C.J., ELLIS and HOWARD, JJ.
   ORDER

PER CURIAM.

Jamel Summers appeals from the motion court’s order overruling, after an evi-dentiary hearing, his Rule 29.15 motion for post-conviction relief. After a jury trial in the Circuit Court of Jackson County, the appellant was convicted of four counts: Count I, robbery in the first degree, § 569.020; Count II, armed criminal action (ACA), § 571.015; Count III, assault in the first degree, § 565.050; and Count TV, ACA. As a result of his convictions, the appellant was sentenced on Counts I and II to consecutive prison terms in the Missouri Department of Corrections of thirty and twenty years and to concurrent terms of thirty and twenty years on Counts III and IV, to run concurrently with the sentences on Counts I and II.

The appellant raises two points on appeal. In both points, he claims he received ineffective assistance of counsel. He claims that the motion court erred in overruling his Rule 29.15 motion for post-conviction relief for ineffective assistance of counsel, after an evidentiary hearing, because the evidence at the motion hearing conclusively established that he received ineffective assistance of counsel for trial counsel’s: (1) failure to call certain witnesses to testify at trial; and (2) refusal to allow him to testify at trial.

We affirm pursuant to Rule 84.16(b).


text:
    Conrad METZ, Appellant, v. STATE of Missouri, Respondent.
    No. WD 63249.
    Missouri Court of Appeals, Western District.
    Feb. 8, 2005.
    Rebecca L. Kurz, Kansas City, MO, for Appellant.
    Deborah Daniels, Jefferson City, MO, for Respondent.
    Before: NEWTON, P.J., LOWENSTEIN and HOLLIGER, JJ.
   ORDER

PER CURIAM.

Defendant-Appellant Conrad Metz appeals the motion court’s denial of his Rule 29.15 motion for post-conviction relief. This court has reviewed the briefs of the parties and the record on appeal. Finding no reversible error, this court affirms the denial of the post-trial motion. Because a published opinion reciting the facts and restating the applicable principles of law would have no precedential value, this court affirms by summary order under Rule 84.16(b).

Affirmed. Rule 84.16(b).


author: CHARLES D. SUSANO, JR., J.,

text:
    Patricia Henderson JOLLEY, et al. v. Wanda K. HENDERSON.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    Feb. 5, 2004 Session.
    June 29, 2004.
    Permission to Appeal Denied by Supreme Court Dec. 20, 2004.

      James B. Johnson, Nashville, Tennessee, and Kevin B. Wilson, Chattanooga, Tennessee, for the appellant, Patricia Henderson Jolley.
    Harry K. Hays, Chattanooga, Tennessee, for the appellant, Howard E. Henderson, Jr.
    Robin L. Miller, Chattanooga, Tennessee, for the appellee, Wanda K. Henderson.
   OPINION

CHARLES D. SUSANO, JR., J.,

delivered the opinion of the court,

in which HERSCHEL P. FRANKS, P.J., and D. MICHAEL SWINEY, J., joined.

This is a will contest case. Patricia Henderson Jolley and Howard E. Henderson, Jr. (collectively “the Contestants”) appeal the chancery court’s judgment that they do not have standing to contest their father’s will. The Contestants contend that the chancery court erred in addressing the issue of their standing and in other ways. They argue that their stepmother, Wanda K. Henderson (“the Executrix”), failed to raise the standing issue and, as a consequence, waived it. They also rely on alleged procedural errors and contend that they do have standing. We affirm.

I.

Howard E. Henderson, Sr. (“the Testator”) died on July 10, 1999, at the age of 74. The Testator left behind a will dated May 21, 1998 (“the 1998 will”), and four prior wills dated as follows: May 15, 1997 (“the 1997 will”); April 26, 1985 (“the 1985 will”); March 30, 1977 (“the 1977 will”); and June 14, 1975 (“the 1975 will”). The last will in time and the 1997 will do not leave any property to the Contestants. The 1975, 1977, and 1985 wills each bequeath $10 to each of the Testator’s children.

Five days after the Testator’s death, the Executrix filed a petition in Part 2 of the Hamilton County Chancery Court (“the Probate Court”), seeking to probate the 1998 will in common form. Part 2 has been vested with probate jurisdiction in Hamilton County since the enactment by the General Assembly of Chapter 201, Public Acts of 1955. The Probate Court entered an order the next day admitting the 1998 will to probate. On August 15, 1999, the Executrix filed a new petition, seeking to probate the 1998 will in solemn form. Nearly three months later, the plaintiff, Howard E. Henderson, Jr., appearing pro se, filed an objection to the Executrix’s petition.

On November 29, 1999, the Probate Court entered a judgment admitting the 1998 will to probate in solemn form. Mr. Henderson then filed a notice of appeal to the Court of Appeals. Approximately eight months later, on July 20, 2000, the plaintiff, Patricia Henderson Jolley, filed a Rule 60.02 motion in the Probate Court, seeking to set aside the judgment admitting the 1998 will to probate in solemn form.

On August 10, 2000, the Executrix filed a response in the Probate Court, contending that the Rule 60.02 motion should not be granted because, according to the response, Tennessee law has established that a trial court does not have jurisdiction to hear a Rule 60 motion while an appeal is pending. The Probate Court agreed and entered an order denying the motion on the ground that it was “without jurisdiction to entertain such a motion as this matter is on appeal [to] the Eastern Section of the Court of Appeals.” In response, Ms. Jolley filed a motion with this court requesting that we remand the case to the trial court so she could pursue her Rule 60.02 motion there. On December 8, 2000, we granted her motion. On April 4, 2001, the Executrix filed a second response in the Probate Court, this time contending that Ms. Jolley did not have standing to contest the Testator’s will.

On June 14, 2001, the Probate Court held a hearing on Ms. Jolley’s Rule 60.02 motion. The Probate Court apparently granted the motion that day because Ms. Jolley filed a notice of contest the same day, and Mr. Henderson filed a notice of contest the following day. Ms. Jolley then filed a complaint to contest, contending that the purported will was, inter alia, “the product of undue influence.” On June 20, 2001, the Probate Court entered its order, stating that it granted the Rule 60.02 motion “because of the existence of excusable neglect.” The Probate Court, in a separate order, transferred the case to Part 1 of the Hamilton County Chancery Court for trial of the will contest.

A week later, the Executrix filed in the Probate Court a motion to dismiss and/or for summary judgment “based [up]on [the] Contestants’ lack of standing to contest” the 1998 will. Ms. Jolley subsequently filed an amended complaint to include an additional averment that the 1997 will was also invalid due to the Executor’s alleged undue influence.

On August 22, 2001, the Chancery Court, Part 1, determined that the Probate Court was the appropriate court to make a determination regarding the issue of standing. It decreed as follows:

Therefore, in view of the foregoing, it is hereby ORDERED that the Motion for Summary Judgement filed by Mrs. Henderson, the Executrix, is REMANDED to the Probate Division of the Chancery Court for Hamilton County so that the Probate Court can make a determination of whether the contestants, Ms. Jolley and Mr. Henderson, Jr., have standing to proceed with their Will Contest.

On September 19, 2001, the Executrix filed a motion in the Probate Court requesting that the court act on her motion for summary judgment. Ms. Jolley filed a response to the Executrix’s motion, contending that the motion should be denied because, in the language of the response:

1. The [Executrix] has never filed a motion for summary judgment in this Court;
2. The Probate Court’s jurisdiction over this case terminated when its Order to the case to Chancery Court became final on July 21, 2001; and
3. Jurisdiction has not been re-conferred in this Court in accordance with Rule 60 of the Tennessee Rules of Civil Procedure.

Over a year-and-a-half later, on April 23, 2003, the Honorable Howell N. Peoples, the Hamilton County Chancellor who presides over Part 2 of the Chancery Court, which, as previously noted, is the Probate Court, entered an order on the Executrix’s motion to dismiss and/or for summary judgment, incorporating by reference his memorandum opinion filed January 7, 2003. In the order, Chancellor Peoples granted the Executrix’s motion “due to the Contestants’ lack of standing to contest the will” of their father. In the memorandum opinion, Chancellor Peoples found that

[i]t is undisputed that [the Contestants] take nothing under the will dated May 21, 1998, which they seek to contest. It is also undisputed that [the Contestants] take nothing under the will of [the Testator] dated May 15, 1997. It is also undisputed that [the Contestants] receive only $10.00 each under the earlier wills of [the Testator] dated April 26, 1985, March 30,1977, and June 14, 1976.
Under the undisputed facts, [the Contestants] would take nothing under the pri- or will of [the Testator] dated May 15, 1997, which would govern the distribution of the estate if the contested will were held to be invalid.

Both the April 23, 2003, order and the January 7, 2003, memorandum opinion indicate that the decrees are those of “Part 1” of the Chancery Court, rather than Part 2, the Probate Court.

II.

The Contestants raise the following issues:

1.Did the Executrix waive her right to raise the issue of the Contestants’ standing to challenge the 1998 will?
2. Did the Chancery Court, Part 1, have jurisdiction to remand the subject will contest case to the Probate Court so the latter court could rule on the issue of the Contestants’ standing?
3. Did the Probate Court have jurisdiction on remand to address the issue of the Contestants’ standing?
4. Did the Contestants lack standing to challenge the 1998 will?

The issues raised by the Contestants present questions of law. Hence, our review is de novo on the record below with no presumption of correctness attaching to the trial court’s decision. Southern Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn.2001).

III.

A.

The first issue raised is whether the Executrix waived her right to raise the issue of standing. The Contestants argue that “the issue of standing was not properly raised in the Probate Court while it had jurisdiction over the case.” We disagree. On April 4, 2001, the Executrix filed a response in the Probate Court to the Contestants’ then-pending Rule 60.02 motion, contending that the Contestants lacked standing to contest the 1998 will. The order transferring the case to Part 1 of Chancery Court was not entered until June 20, 2001, nearly three months after the Executrix raised the issue of standing in her response. From all of this, we conclude that the Executrix properly raised the issue of standing in the Probate Court. It is clear that, while this case was still pending in the Probate Court, the Contestants were put on notice that their standing was being challenged.

B.

The next issue raised is whether the Chancery Court, Part 1, had jurisdiction to remand the will contest case to the Probate Court for the purpose of giving that court an opportunity to rule on the issue of standing.

In Rassas v. Schaefer, C/A No. 89-266-II, 1990 WL 263 (Tenn. Ct.App. M.S., filed Jan. 5, 1990), the probate court failed to rule on the issue of whether the contestant had standing to contest the will. Id. at *7. Instead, the probate court consolidated “the issues of standing to contest and validity of all three wills” and certified the case to the circuit court. Id. at *9. The Court of Appeals in Rassas found that the probate court failed to follow the correct procedure, finding that “[t]he question of standing should have been decided by the [pjrobate [c]ourt.”

The Contestants in the instant case argue that “[t]he Probate Court lost its original jurisdiction over the matter and because the Executrix did not contest standing in the Probate Court, the Executrix may only obtain relief from the Transfer Order under [Tenn. R. Civ. P. 60].” Thus, the Contestants contend that Chancery Court, Part 1, erred when it remanded the case because the Executrix “waived” her right to attack standing.

We disagree with the Contestants’ argument and assessment of the procedural history in the instant case. We remanded this case to afford Ms. Jolley an opportunity to pursue her Rule 60.02 motion. In response to the Rule 60.02 motion, the Executrix filed a response in the Probate Court contending that Ms. Jolley does not have standing to contest the Testator’s will. Without ruling on whether the Contestants had standing, the Probate Court had certified the case to the Chancery Court, Part 1, for a will contest. Upon finding that the Probate Court had failed to rule on the issue of standing, the Chancery Court, Part 1, remanded the case to the Probate Court for a determination of that issue. Therefore, we hold that the Chancery Court, Part 1, had jurisdiction to remand this case to the Probate Court for a ruling on the issue of standing. A remand is precisely what the Court of Appeals ordered in Rassas. Furthermore, we can conceive of no logical reason why one part of Chancery Court cannot remand a case to another part of the same court so the latter can address a preliminary issue that had been properly raised in the court to which the remand is made. To hold otherwise is to triumph form over substance.

C.

The Contestants’ next issue questions whether the Probate Court had jurisdiction on remand to address the issue of standing.

In Rassas, we discussed a probate court’s jurisdiction to decide the issue of standing. We determined in Rassas that neither Tenn.Code Ann. § 32-4-101 nor case law “give[s] clear and unequivocal guidance as to the jurisdiction to determine the issue of standing of a would-be will contestant.” Rassas, 1990 WL 263, at *8. Nevertheless, we held that “standing should be determined by the probate court as a part of the process of deciding whether a certifiable contest exists.” Id. at * 8. We noted in Rassas that “exceptional circumstances” could justify a “deviation from this rule.” Id. at *9.

The Contestants contend the Probate Court erred (1) in exercising jurisdiction over the standing issue and (2) in entering an order under the designation of Part 1 of the Chancery Court.

We have previously held in this opinion that the Chancery Court, Part 1, had jurisdiction to remand this case to the Probate Court for a determination of the standing issue. It logically follows that the Probate Court had jurisdiction, on remand, to address the issue of the Contestants’ standing. It is obvious to us that the placing of the designation of “Part 1” on a Probate Court order and memorandum opinion was nothing more than an oversight. The fact of the matter is that the Chancellor who presides over the Probate Court, ie., Chancellor Peoples, signed both the order and memorandum opinion. It is abundantly clear to us that he signed both as the Chancellor of the Probate Court. Again, we would note that form cannot be allowed to trump substance.

D.

The last issue raised is whether the Contestants, in fact, lack standing to challenge the Testator’s 1998 will. We hold that they do.

It is well-settled “that before the appellant may go forward with a will contest he [or she] must show that he [or she] would take a share of the decedent’s estate if the probated will were set aside.” In re Estate of West, 729 S.W.2d 676, 677-78 (Tenn.Ct.App.1987). A bequest “of a substantial nature is required” in order to have standing in a will contest. In re Estate of Spivey, No. 01A01-9407-CH-00309, 1994 WL 697884, at *2 n. 2 (Tenn. Ct.App., filed Dec. 14, 1994). For example, a one dollar bequest is “a de minimis interest” and is not “sufficient” to give the will contestant standing. Id. In order to have standing, “a contestant must have a substantial interest which is to be served by his [or her] contest.” Cowan v. Walker, 96 S.W. 967, 970, 117 Tenn. 135, 148 (1906).

As previously noted, the Testator disinherited each of the Contestants in his 1998 and 1997 wills. The Contestants point to the fact that the Testator made a $10 cash bequest to each of them in the 1985, 1977, and 1975 wills. As a consequence of this, the Contestants argue that they had a “substantial interest” in the earlier wills that is sufficient to give rise to standing.

We disagree. The Contestants’ interest in the 1985, 1977, and 1975 wills is de minimis and thus insufficient to confer standing. There is no difference between $1 and $10 in the context of the matter under discussion. Both are de minimis. Therefore, we hold that the Probate Court did not err in finding that the Contestants lack standing to contest their father’s 1998 will.

IV.

The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellants, Patricia Henderson Jolley and Howard E. Henderson, Jr. This case is remanded for collection of costs assessed below, pursuant to applicable law.

      . Christine Ann Henderson, a third sibling, is not a party to this case.

      . As pertinent to the facts of this case, Tenn. R. Civ. P. 60.02 provides as follows: On motion and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect;....

      . The Testator relied on the case of Spence v. Allstate Ins. Co., 883 S.W.2d 586, 596 (Tenn.1994).

      . Tenn.Code Ann. 32-4-101 (2001 & Supp. 2003) states that
      [i]f the validity of any last will or testament, written or nuncupative, is contested, then the court having probate jurisdiction over such last will or testament must enter an order sustaining or denying the contestant’s right to contest the will. If the right to contest the will is sustained, then the court must:
      (1) Require the contestant to enter into bond, with surety, in the penal sum of five hundred dollars ($500), payable to the executor mentioned in the will, conditioned for the faithful prosecution of the suit, and in case of failure therein, to pay all costs that may accrue thereon; and
      (2) Cause a certificate of the contest and the original will to be filed with the appropriate court for trial.
      As used in this section, the term “the appropriate court for trial’' means the court elected by the contestant, in the notice of contest, to conduct a trial upon the validity of the will.