author: MICHAEL A. WOLFF, Judge. STEPHEN N. LIMBAUGH, Jr., Judge,

text:
    Maria KILMER, Individually and as Next Friend of Sara L. Kilmer, Teresa Kilmer and Diana Kilmer, Appellants, v. Hui Chan MUN, Defendant, Stefanina’s Pizzaria & Restaurant, Inc., Respondent.
    No. SC 81853.
    Supreme Court of Missouri, En Banc.
    May 9, 2000.
    Rehearing Denied June 13, 2000.
    James G. Krispin, Clayton, for appellants.
    T. Michael Ward, Russell F. Watters, Amy L. Klingemann, Robert J. Wulff, St. Louis, for respondent.
   MICHAEL A. WOLFF, Judge.

The widow and children of Thomas Kil-mer brought this wrongful death action against Hui Chan Mun, the driver whose car collided with Kilmer’s on the wrong side of a divided highway, and against Stefanina’s, the restaurant that served beer to Hui Chan Mun after he allegedly was obviously intoxicated. The Kilmers’ “dram shop” claim against the restaurant is based on section 537.053.3 , which authorizes a cause of action against a liquor licensee where the sale of alcoholic beverages to an obviously intoxicated person is the proximate cause of injury or death.

However, section 537.053.3 only authorizes a claim where the liquor licensee has been convicted or has received a suspended imposition of sentence for violating section 311.310 by providing liquor to an intoxicated person. Because the prosecuting attorney declined to charge Stefanina’s, the trial court granted the restaurant’s motion for summary judgment. The judge designated the summary judgment in favor of Stefanina’s as final for purposes of appeal.

The Kilmers appealed to this Court challenging the constitutionality of the statutory restriction that requires a conviction in order to maintain a claim under section 537.073.3. We have jurisdiction. Mo. Const, art. V, sec. 3.

We hold that the statutory restriction violates the “open courts” provision of the Missouri Constitution’s Bill of Rights, article I, section 14, which protects the Kil-mers’ right to pursue a remedy for a legally recognized injury. We reverse and remand for further proceedings consistent with this opinion.

Facts

The Kilmers allege that Hui Chan Mun had pitchers of beer at Stefanina’s Pizzeria and Restaurant, an establishment licensed to sell intoxicating liquor, between approximately 10:00 p.m. and midnight on February 26,1998. Hui Chan Mun then allegedly drove his car on the wrong side of the divided U.S. Highway 40. He collided with a car driven by Thomas Kilmer, who died at the scene of the accident.

Hui Chan Mun was subsequently convicted of involuntary manslaughter. Evidence at Hui Chan Mun’s criminal trial was that his blood alcohol content at the hospital two hours after the collision was .13% per weight by volume. The Kilmers filed an affidavit of Dr. Mary Case, the pathologist who testified at the criminal trial. Dr. Case opined that Hui Chan Mun’s blood alcohol content would have been .136%-.142% prior to being served his last drink before the collision and .112%-.118% prior to being served his second-last drink prior to the collision. At these levels, Hui Chan Mun would have exhibited outward signs of intoxication including, diminished judgment, decreased inhibitions, impaired perception, memory and comprehension.

Kilmer’s family asked the St. Charles County prosecuting attorney to charge Stefanina’s with violating section 311.310 which makes it a misdemeanor to servé alcohol to “any person intoxicated or appearing to be in a state of intoxication” by an establishment that is licensed to sell liquor by the drink. Family members requested a criminal charge because they wanted to bring a civil action against Ste-fanina’s under section 537.053. Without a conviction or suspended imposition of sentence of Stefanina’s under section 311.310, an action for damages is barred by section 537.053. The prosecutor declined to charge Stefanina’s.

The Kilmers’ wrongful death lawsuit includes a claim against Stefanina’s alleging that Kilmer’s death was the result of Ste-fanina’s serving alcohol to a patron who was obviously intoxicated. The trial court granted Stefanina’s Motion for Summary Judgment because section 537.053 bars civil dram shop actions absent á conviction pursuant to section 311.310.

The Origin of the “Open Courts” Provision

The Missouri Constitution’s Bill of Rights, article I, section 14, provides: “That the courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character, and that right and justice shall be administered without sale, denial or delay.”

This case presents the question of whether this “open courts” provision states a constitutional right or merely states an ideal to which our system aspires.

An “open courts” provision has been in our state constitution since the first Missouri Constitution of 1820. Its origins are in Magna, Carta, a document that evolved as the basic charter of English liberty after its original version was signed and sealed by King John of England in 1215.

The original language of Magna Carta - “To none will we sell, to none will we deny, delay, right or justice” - reflected the concern that the courts of the era had fallen into disrepute for selling writs. In Lord Coke’s commentary on Magna Car-ta, the text quoted here underwent a “radical change” and was available to American constitutional drafters in a form close to the version now in the Missouri Constitution: “[Ejvery Subject of this Realm, for injury done to him in [goods, land or person], ... may take his remedy by the course of the Law, and have justice and right for the injury done him, freely without sale, fully without any denial, and speedily without delay.”

It may be argued that the original Mag-na Carta language was directed only to courts. However, in the 19th century, when our first constitution was adopted, “the evil was renegade legislatures that had, for example, deprived injured creditors of their judicial remedies against debtors by passing legislation impairing existing contractual obligations.” In Missouri, barriers to a “certain remedy” for an “injury” can be erected by the courts themselves, or by the legislature. An examination both of the history and the language of our constitution supports the conclusion that article I, section 14, “applies against all impediments to fair judicial process, be they legislative or judicial in origin.”

Missouri’s version of the “open courts” provision has been strengthened twice since its adoption in our state’s first constitution of 1820. Missouri’s first constitution put the “open courts” provision in our Bill of Rights, which provided: “That courts of justice ought to be open to every person, and certain remedy afforded for every injury to person, property, or character; and that right and justice ought to be administered without sale, denial, or delay.... “Mo. Const, art. XIII, sec. 7 (1820) (emphasis added.) In the constitution of 1875, the provision reads: “That courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character; and that right and justice should be administered without sale, or delay.” Mo. Const, art. II, sec. 10 (1875) (emphasis added). This version was added by amendment in the Constitutional Convention, but without elaboration as to any change in meaning. See Debates, MissouRI Constitutional Convention 1875, vol. II, 226-27. In the constitution of 1945, the word “should” was changed to “shall.” See Mo. Const, art. I, sec. 14 (1945) quoted above. One might question whether these changes reflect a change in meaning or merely reflect contemporary linguistic conventions. But when the words “ought” and “should” are replaced with the word “shall” it is difficult to escape the conclusion that our drafters changed a passage that could originally have been taken to be mere exhortation to a constitutional provision that is mandatory in tone and substance.

The “Open Courts” Provision and Our Cases

In the past 25 years, the legislature has enacted various provisions affecting claims, remedies and procedures for injured persons who seek redress in court. The challenges based in whole or in part on article I, section 14 have resulted in at least nine decisions whose principal, concurring and dissenting opinions offer a variety of analytical approaches for applying this “open courts” principle. Some of these cases seem irreconcilable.

These modern era cases start with State ex rel. Cardinal demon Memorial Hosp. for Children v. Gaertner, 583 S.W.2d 107 (Mo. banc 1979), where this Court invalidated a requirement that a medical malpractice plaintiff submit his or her claim to a professional liability board for a recommendation prior to filing a lawsuit in court. Even though the procedure invalidated in Cardinal Glennon did not ultimately deny access to the court, the procedural hurdle was held to be enough to violate article I, section 14. A brief review of the cases since Cardinal Glennon will, illustrate some of the inconsistencies.

Schumer v. City of. Perryville, 667 S.W.2d 414 (Mo. banc 1984), invalidated the requirement, as applied to a minor who was legally incapable of bringing his own action, of giving notice of his claim before suing a municipality. Similarly, Strahler v. St. Luke’s Hosp., 706 S.W.2d 7 (Mo. banc 1986), held that the statute of limitations for actions against health care providers, as applied to minors, violated the “open courts” provision because it cut off a minor’s claim before the minor was able to bring suit on his own behalf. In Simpson v. Kilcher, 749 S.W.2d 386 (Mo. banc 1988), this Court upheld the dram shop statute at issue in this case, which requires conviction of a liquor licensee as a pre-condition of bringing suit against a licensee. Harrell v. Total Health Care, Inc., 781 S.W.2d 58 (Mo. banc 1989), upheld a statute that exempted health service corporations from liability for injuries to patients based on the corporation’s negligent selection of a surgeon. Mahoney v. Doerhoff Surgical Services, Inc., 807 S.W.2d 503 (Mo. banc 1991), upheld a statute requiring that a person bringing a claim against a health care provider file an affidavit stating that the plaintiff had obtained a health pare provider’s written opinion as to the merits of the claim. Blaske v. Smith & Entzeroth, Inc., 821 S.W.2d 822 (Mo. banc 1991), upheld a ten-year statute of limitation as to architects, engineers and persons furnishing construction services from liability as a result of a defective or unsafe condition of an improvement to real property. Goodrum v. Asplundh Tree Expert Co., 824 S.W.2d 6 (Mo. banc 1992), held granting of exclusive jurisdiction to the Labor and Industrial Relations Commission to determine whether an employee’s injuries are the result of an accident or intentional act does not violate the “open courts” provision. Adams v. Children’s Mercy Hosp., 832 S.W.2d 898 (Mo. banc 1992), upheld statutory provisions imposing a cap on noneconomic damages, allowing future damages to be paid in installments, and requiring apportionment of fault to include a percentage allocated for released parties. Finally, and most recently, in Wheeler v. Briggs, 941 S.W.2d 512 (Mo. banc 1997), this Court upheld the medical malpractice statute of limitations as applied to a mentally incapacitated person.

Some of the results seem incongruous; for example, Strahler, which invalidated the medical’malpractice statute of limitations as applied to a minor, and Wheeler, which upheld the statute as applied to a mentally incompetent person.

Despite the inconsistencies, there is a coherent line of reasoning that can be distilled from various opinions over the years that, if followed in this and subsequent cases, will ensure that article I, section 14 retains its vitality while permitting proper deference to legislative enactments. Put most simply, article I, section 14 “prohibits any law that arbitrarily or unreasonably bars individuals or classes of individuals from accessing our courts in order to enforce recognized causes of action for personal injury.” Wheeler, 941 S.W.2d at 515 (Holstein, C.J., dissenting) (emphasis added). The test of “arbitrary or unreasonable” is an important clarification of this Court’s statement in Harrell, 781 S.W.2d at 62, that the “right of access means simply the right to pursue in the courts the causes of action the substantive law recognizes.”

The line of analysis articulated by Judge Holstein in Wheeler is most appropriate for recognizing the power of the legislature to “design the framework of the substantive law” by abolishing or modifying common law or statutorily based claims, yet keeping a meaningful right to a “certain remedy” where the law recognizes a cause of action. Moreover, this line of analysis is most consistent with the results and rationale of the precedents summarized above.

Both the common law and our statutes recognize various legal injuries to person, property and character and provide remedies for such injuries. A statute, as noted, may modify or abolish a cause of action that had been recognized by common law or by statute. See Blaske, 821 S.W.2d 822, and Adams, 832 S.W.2d 898. But where a barrier is erected in seeking a remedy for a recognized injury, the question is whether it is arbitrary or unreasonable.

Section 537.053 Erects an Arbitrary, Unreasonable Barrier

Here, section 537.053.3 recognizes “causes of action ... by or on behalf of any person who has suffered personal injury or death against any person licensed to sell intoxicating liquor by the drink for consumption on the premises ... [to] an obviously intoxicated person if the sale of such intoxicating liquor is the proximate cause of the personal injury or death ...”

The “cause of action,” however, as recognized by the statute can only be asserted where the person licensed to sell intoxicating liquor has been convicted under section 311.310 (including a suspended imposition of sentence) of selling intoxicating liquor where “the sale of such intoxicating liquor is the proximate cause of the personal injury or death.... ”

If the “certain remedy” guaranteed in article I, section 14 “for every injury to person, property or character” has any meaning, the barrier imposed by section 537.053.3 is invalid. The Kilmers assert that they have suffered an injury, as recognized by section 537.053.3, because they pleaded that the death of Thomas Kilmer, their husband and father, directly resulted from the sale of intoxicating liquor to an obviously intoxicated person by defendant Stefanina’s. But there is no certain remedy if the Kilmers’ claim is entirely dependent upon whether or not the county prosecutor has prosecuted and obtained a conviction of their alleged wrongdoer for violating section 311.310 by selling intoxicating liquor to an obviously intoxicated person.

Our earlier case on this subject, Simpson, 749 S.W.2d 386, is premised on the notion that the plaintiffs claim “was not a legitimate one recognized by law because it was specifically prohibited by the legislature.” Id. at 389. But a careful reading of the statute, which is set forth in full in footnote 4, shows that this is not so. There is a recognized cause of action.

The legislature purports to eliminate dram shop liability in section 537.053.1 and 537.053.2, but in actuality it does hot. Section 537.053.1 declares, “It has been and continues to be the policy of this state to follow the common law of England, as declared in section 1.010, RSMo, to prohibit dram shop liability and to follow the common law rule that furnishing alcoholic beverages is not the proximate cause of injuries inflicted by intoxicated persons.” Section 1.010 refers to the common law of England, as it existed in the fourth year of the reign of James the First, which was the year 1607. See Dean v. Lee, 52 S.W.2d 426 (Mo.App.1932). “Proximate cause” was not a term used in the common law of England in the 17th century, and it was not until the 1840s that the concept was firmly established in negligence law. By that time, Missouri was a sovereignty developing its own common law. See Patrick J. Kelley, Proximate Cause and Negligence Law: History, Theory, and the Present Darkness, 69 Wash. U.L.Q. 49, 68-70 (1991); see also Ryan v. New York Central Railroad Co., 35 N.Y. 210 (1866), and Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99 (1928). While the term “proximate cause” probably would have been mysterious to 17th century common law lawyers, the struggle to ascertain the proper form of action in common law pleading had imbedded in it some concerns that today might be discussed in terms of causation. See Scott v. Shepard 96 Eng. Rep. 525 (1773) (discussed in Ryan, 35 N.Y. 210 (1866)).

Subsection 2 of 537.053 declares that the holdings of three cases of the 1980s, dealing with dram shop liability, “be abrogated in favor of prior judicial interpretation finding the consumption of alcoholic beverage, rather than the furnishing of alcoholic beverages, to be the proximate cause of injuries inflicted upon another by an intoxicated person.” (Emphasis added). Were we to accept the statute’s suggestion that we look to prior cases, we would begin with Skinner v. Hughes, 13 Mo. 440 (1850), which held that a dram shop owner who sold intoxicating liquors to a slave without permission from the' slave’s master was liable to the slave’s owner for all damage occasioned by the consumption of the intoxicating liquors. The dram shop liability portion of Skinner has apparently never been overruled. See Moore v. Riley, 487 S.W.2d 555, 558 (Mo.1972); see also Lambing v. Southland 739 S.W.2d 717, n. 2 (Mo. banc 1987); Lambing, 739 S.W.2d at 720 (Blackmar, J., dissenting). Historical references aside, if subsections 1 and 2 of section 537.053 were the whole statute, we would accept the obvious proposition that the legislature had indeed abolished dram shop liability. But, the first two subsections cannot be read in isolation. When we read the third subsection, which is section 537.053.3, as part of the whole statute, it is clear that the legislature did not abolish dram shop liability.

Section 537.053.3 recognizes the cause of action but makes it subject to: (1) a decision by the prosecuting attorney to bring a criminal charge under section 311.310, and (2) a conviction under section 311.310 of the seller of the intoxicating liquor. Where these conditions are met, there is a remedy if the injured party can prove that the sale was the proximate cause of the injury. But where there is no prosecution and conviction, there is no remedy.

Whether an injured party has a remedy under section 537.053 depends entirely upon the decision of the elected county prosecuting attorney. If the county prosecuting attorney decides to prosecute, and obtains a conviction, under section 311.310, then the injured person may file a civil action under section 537.053. If, however, the county prosecuting attorney decides not to prosecute under section 311.310, or if the dram shop operator is not convicted in the criminal case, then the injured party has no redress for the injury that is recognized by section 537.053. The prosecutor’s decision may, of course, be vulnerable to inevitable pressures of local politics or other factors unrelated to the merits, yet is wholly immune from review.

Moreover, the statute on its face denies entirely a remedy to a plaintiff whose wrongdoing drunk driver was a patron who was over-served by a dram shop operator in another state and causes injury in Missouri. For example, assuming a defendant’s conduct is sufficient to support personal jurisdiction, an Illinois dram shop operator who solicits patrons from Missouri would certainly be subject to liability under Missouri law if his patron drove across the border and injured a Missourian, except for the fact that that particular defendant could not be subject to prosecution under section 311. 310 because it is not a Missouri licensee. Thus there is a class of plaintiffs who have suffered a recognized injury but have absolutely no remedy against the wrongdoer because the statute only applies to Missouri licensees.

In this case, a prosecuting attorney, and not the legislative branch, decides whether there is a cause of action under section 537.053.3. This provision violates separation of powers because the determination of whether a civil claim for relief exists is within the province of the legislature, or in the absence of legislative enactment, with the court as a matter of common law. Simpson, 749 S.W.2d 386, upholds this statute against the separation of powers challenge as well as the open courts challenge. That case provided circular reasoning on the separation of powers issue. The only authority relied upon by Simpson is the rule of construction that the “plain, obvious and rational meaning of the statute is always to be preferred to any single ‘curious, narrow, or strained construction.’ ” 749 S.W.2d at 391 (citation omitted). There is nothing “curious, narrow, or strained” about striking down the dependency on the executive branch that section 537.053 creates. The separation of powers problem in section 537.053 can be illustrated by the following questions: Would it be permissible for a statute to delegate to the state supervisor of liquor control the duty of ascertaining which dram shop cases were the most serious in deciding which plaintiffs should have a right to pursue a claim? Or, would it be permissible to delegate the permission to bring the claim to a member of the legislative branch, for example the tavern operator’s state senator? After all, if this function can be delegated to officials of the executive branch, why not to members of the legislative branch? Each of these possibilities invites arbitrary refusals of the right to pursue a claim.

The test this Court applies is whether access to court for a recognized injury is subject to an arbitrary or unreasonable barrier. The prerequisite of a criminal conviction, in order for a plaintiff to proceed with a civil action, is as we have discussed, both arbitrary and unreasonable. Simpson is overruled.

The dissent raises severability under section 1.140 and contends that our conclusion that section 537.053.3 is unconstitutional leaves only subsections 1 and 2, which purport to abolish liability. What the dissent does not appreciate is that the only constitutionally offensive provision of section 537.053.3 is that part requiring a criminal prosecution and conviction as a procedural prerequisite to bringing a cause of action against a licensed seller of liquor by the drink. Properly applying the statutory presumption of severability of an unconstitutional provision of the statute, subsection 3 reads:

Notwithstanding subsections 1 and 2 of this section, a cause of action may be brought by or on behalf of any person who has suffered personal injury or death against any person licensed to sell intoxicating liquor by the drink for consumption on the premises ... if the sale of such intoxicating liquor is the proximate cause of the personal injury or death sustained by such person.

Section 1.140 requires us to preserve the nonoffending portions of the statute, unless we determine that the legislature would not have enacted the valid provisions without the void one. To do so, we would have to assume that the legislature intended no dram shop liability. But in section 537.053.3, the legislature did enact dram shop liability, so it would be wrong for us to assume the legislature intended otherwise. Therefore, consistent with section 1.140, we leave it to the legislature to decide whether the statute, as it remains, should be retained, repealed or modified in some constitutionally appropriate manner.

Conclusion

In summary, the open courts provision is explicitly in our constitution, and though we give deference to legislative enactments, those enactments must yield to constitutional mandates. Claims for injuries are recognized by common law and by statute. The legislature may abolish such recognition. If the legislature had eliminated dram shop liability entirely, the Kil-mer family would have no claim against defendant Stefanina’s, which served liquor to defendant Hui Chan Mun when the latter allegedly was obviously intoxicated. But where there is an injury that is legally recognized, as the dram shop injury is recognized in section 537.053.3, the statute may not erect arbitrary or unreasonable barriers. A person who has an injury recognized by law has a constitutional right to a “certain remedy.” A barrier that subjects a recognized injury to the discretion the prosecuting attorney violates this constitutional provision.

The Kilmers may pursue their remedy. We reverse the trial court’s judgment, and remand the cause for further proceedings.

PRICE, C.J., WHITE and HOLSTEIN, JJ., concur;

LIMBAUGH, J., dissents in separate opinion filed;

COVINGTON and BENTON, JJ., concur in opinion of LIMBAUGH, J.

STEPHEN N. LIMBAUGH, Jr., Judge,

dissenting.

I respectfully dissent.

The majority misapplies the open courts provision to afford plaintiffs a cause of action for dram shop liability that the statute does not permit, and in the process overrules Simpson v. Kilcher, 749 S.W.2d 386 (Mo. banc 1988), without giving Simpson the courtesy of addressing its compelling rationale, much less paying any consideration to the principles of stare de-cisis.

I.

I have no disagreement with the majority’s statement of the law regarding Missouri’s “open courts” provision, so far as the statement goes. As the' majority explains, “article I, section 14, ‘prohibits any law that arbitrarily or unreasonably bars individuals or classes of individuals from accessing our courts in order to enforce recognized causes of action for personal injury,’ ... yet it does not prohibit the legislature from modifying] or abolish[ing] a cause of action that had been recognized by the common law or by statute.” (citations omitted). I would add to these principles, although perhaps it is implicit in them, that statutes imposing procedural bars to access are to be distinguished from statutes that change the common law by the elimination or limitation of a cause of action, and that only the former are impermissible. Adams v. Children’s Mercy Hospital, 832 S.W.2d 898, 905 (Mo. banc 1992).

A.

The majority misapplies these principles by holding that the conviction requirement of section 537.053.3 arbitrarily and unreasonably bars individuals from accessing our courts in order to enforce the statutorily recognized cause of action for dram shop liability. In my view, the conviction requirement is a substantive element of the statutory cause of action rather than a procedural bar. This same idea, as stated in Simpson v. Kilcher, 749 S.W.2d at 389, is that the conviction requirement “is not a precondition to access to the courts - it is a condition to the existence of a cause of action.” The language of the statute shows this clearly:

Notwithstanding subsections 1 and 2 of this section, a cause of action may be brought by or on behalf of any person who has suffered personal injury or death against any person licensed to sell intoxicating liquor by the drink for consumption on the premises who, pursuant to section 311.310, RSMo, has been convicted, or has received a suspended imposition of the sentence arising from the conviction, of the sale of intoxicating liquor to a person under the age of twenty-one years or an obviously intoxicated person if the sale of such intoxicating liquor is the proximate cause of the personal injury or death sustained by such person.

Section 537.053.3.

The structure of the statute, which was the basis of the Simpson Court’s analysis and which, inexplicably, the majority makes no effort to address, consists of four substantive elements or conditions to the cause of action:

A. plaintiff suffered personal injury or death,
B. defendant was licensed to sell intoxicating liquor by the drink,
C. pursuant to section 311.310, RSMo, defendant was convicted, or received a suspended imposition of sentence of the sale of intoxicating liquor ... to an obviously intoxicated person, and
D. the sale of such intoxicating liquor was the proximate cause of the personal injury or death sustained by plaintiff.

In order to find the statute constitutionally infirm by characterizing the conviction requirement as a procedural bar rather than a substantive element, the majority necessarily rewrites the statute to delete element “C,” the conviction requirement, from the cause of action proper. Only then does the conviction requirement stand independent from the elements of the cause of action and thus allow the majority to challenge it as a procedural bar.

B.

Even if the conviction requirement is somehow independent from the elements of the cause of action proper, it still does not follow that the requirement is a “procedural” bar that impermissibly denies access to the courts. To be sure, the conviction requirement is a precondition to the cause of action, but it is a substantive precondition that is not dependent on any procedural requirement that plaintiff must satisfy. Indeed, there can be no procedural requirement, or procedural bar, to a cause of action that has not yet accrued, and here the cause of action cannot accrue until the substantive precondition of a criminal conviction is met.

Examples of procedural bars that violate the open courts provision, as set out in the majority opinion, include 1) State ex rel. Cardinal Glennon Memorial Hosp. for Children v. Gaertner, 583 S.W.2d 107 (Mo. banc 1979), in which this Court invalidated a requirement that a medical malpractice plaintiff submit his or her claim to a professional liability board for a recommendation before filing a lawsuit in court; 2) Schumer v. City of Perryville, 667 S.W.2d 414 (Mo. banc 1984), in which this Court invalidated the requirement, as applied to a minor who was legally incapable of bringing his own action, of giving notice of his claim before suing a municipality; and 3) Strahler v. St. Luke’s Hosp., 706 S.W.2d 7 (Mo. banc 1986), in which this Court held that the two-year statute of limitations for actions against health care providers, as applied to minors, violated the open courts provisions by cutting off a minor’s claim before the minor was able to bring suit on his or her own behalf. In each of these cases, and contrary to the case..at hand, the statute required plaintiff to undertake some unreasonable or arbitrary, or even impossible act or procedure in order to perfect the cause of action after it had already accrued. In Cardinal Glennon, plaintiff could not file his cause of action before presenting the case to a professional liability board for review; in Schumer and Strahler, plaintiffs, who were minors, were required to bring their cause of action within a statute of limitations that expired before they attained majority. Furthermore, in each of these cases, and unlike the case at hand, the unconstitutional procedural bar kept plaintiffs from bringing suit on a cause of action that had already accrued. There is simply no con--nection between the conviction requirement in this case and the kinds of unconstitutional procedural requirements in these earlier cases.

II,

The majority’s analysis of the secondary issues regarding separation of powers and equal protection is equally unpersuasive. The separation of powers claim, as I understand it, is that the legislative department wrongfully delegated to executive department prosecutors the authority to determine the existence of the cause of action for dram shop liability. This delegation purportedly occurs by virtue of the fact that prosecutors ultimately decide whether to file or refuse to file charges that might result in a criminal conviction under section 311.310 - the conviction requirement of section 537.053.3. As with the open courts claim, the majority is unwilling to acknowledge that the conviction requirement is a substantive element of the cause of action. The cause of action is set entirely by the legislature, and prosecutors take no part in dictating the elements of that cause of action. Furthermore, there is no legislative delegation of power to the prosecutors for the purpose of allowing them to dictate, at least in part, if and when a cause of action exists. The role of prosecutors in securing criminal convictions under section 311.310 is solely to fulfill their statutory duty under section 56.060, RSMo 1994, to file charges for violating the criminal laws of this state. Regarding the alleged equal protection violation, I need only reiterate the Simpson Court’s reasoning that the conviction requirement’s purpose - “[to confine] the liability of liquor licensees to those cases where conduct is so flagrant it becomes objectively provable by criminal conviction” - provides a rational basis for that element of the cause of action. Simpson v. Kilcher, 749 S.W.2d at 392.

III.

Assuming, arguendo, that section 537.053.3’s conviction requirement is, in fact, an open courts, separation of powers or equal protection violation, plaintiffs still are left without a cause of action. The conviction requirement cannot be severed from section 537.053.3 so to leave the'balance of the section intact, and yet severance is essential to the majority’s recognition of a statutory cause of action that is not limited by the conviction requirement. Whether the conviction requirement is a substantive element of the cause of action for dram shop liability, as I see it, or an unconstitutional procedural bar to the cause of action, as the majority sees it, the legislature made abundantly clear that the only “recognized” cause of action is a cause of action limited by the conviction requirement. If the conviction requirement is unconstitutional, then there is no cause of action at all.

The severability issue is governed by section 1.140, RSMo 1994, which states:

The provisions of every statute are severable. If any provision of a statute is found by a court of competent jurisdiction to be unconstitutional, the remaining provisions of the statute are valid unless the court finds the valid provisions of the statute are so essentially and inseparably connected with, and so dependent upon, the void provision that it cannot be presumed the legislature would have enacted the valid provisions without the void one; or unless the court finds that the valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.

In this case, the legislative intent on which the severability issue depends is found in sections 537.053.1 and 537.053.2, the two other sections of the dram shop statute. In fact, these sections are express statements of legislative intent, and they are couched in words as clear and forceful as possible:

1. Since the repeal of the Missouri Dram Shop Act in 1934 (Laws of 1933-34, extra session, page 77), it has been and continues to be the policy of this state to follow the common law of England, as declared in section 1.010, RSMo, to prohibit dram shop liability and to follow the common law rule that furnishing alcoholic beverages is not the proximate cause of injuries inflicted by intoxicated persons.
2. The legislature hereby declares that this section shall be interpreted so that the holdings in cases such as Carver v. Schafer, 647 S.W.2d 570 (Mo.App.1983); Sampson v. W.F. Enterprises, Inc., 611 S.W.2d 333 (Mo.App.1980); and Nesbitt v. Westport Square, Ltd., 624 S.W.2d 519 (Mo.App.1981) be abrogated in favor of prior judicial interpretation finding the consumption of alcoholic beverages, rather than the furnishing of alcoholic beverages, to be the proximate cause of injuries inflicted upon another by an intoxicated person.

Despite the legislative intent, or rather the legislative mandate, that there will be no dram shop liability in Missouri except for the limited cause of action in section 537.053.3, the majority severs the limitation and holds that a cause of action exists, nonetheless. The effect of severing the limitation on the cause of action for dram shop liability is to convert the cause of action to one with essentially the same elements as the court-made action that first appeared in the early 1980s and that the legislature now expressly disallows.

Using the terminology of section 1.140,1 would hold that the valid provisions of section 537.053.3 (the cause of action for dram shop liability) are so essentially and inseparably connected with, and so dependent upon, the void provision, (the conviction requirement) that it cannot be presumed the legislature would have enacted the valid provisions without the void one, and further, that the valid provisions of section 537.053.3, standing alone, are incomplete and incapable of being executed in accordance with the legislative intent. Under section 1.140, therefore, and assuming that the conviction requirement is an open courts, separation of powers, or equal protection violation, the provisions of section 537.053.3 must be stricken in their entirety.

As stated, however, I would not reach the severance issue because I would hold, in the first instance, that the conviction requirement is not unconstitutional. For that reason I would affirm the judgment of the trial court.

      . All statutory references are to RSMo 1994, unless otherwise indicated.

      . The facts are summarized from the pleadings, affidavits and other evidence that were before the trial court on Stefanina's motion for summary judgment. For the purpose of this opinion, we assume the facts to be true, though all facts are subject to proof at trial.

      . The criminal statute, section 311.310, which gives rise to the civil cause of action in section 537.053, provides:
      Any licensee under this chapter, or his employee, who shall sell, vend, give away or otherwise supply any intoxicating liquor in any quantity whatsoever to any person under the age of twenty-one years, or to any person intoxicated or appearing to be in a state of intoxication, or to a habitual drunkard, and any person whomsoever except his parent or guardian who shall procure for, sell, give away or otherwise supply intoxicating liquor to any person under the age of twenty-one years, or to any intoxicated person or any person appearing to be in a state of intoxication, or to a habitual drunkard, shall be deemed guilty of a misdemeanor, except that this section shall not apply to the supplying of intoxicating liquor to a person under the age of twenty-one years for medical purposes only, or to the administering of such intoxicating liquor to any person by a duly licensed physician. No person shall be denied a license or renewal of a license issued under this chapter solely due to a conviction for unlawful sale or supply to a minor when serving in the capacity as an employee of a licensed establishment.

      . The full text of section 537.053 is as follows:
      1. Since the repeal of the Missouri Dram Shop Act in 1934 (Laws of 1933-34, extra session, page 77), it has been and continues to be the policy of this state to follow the common law of England, as declared in section 1.010, RSMo, to prohibit dram shop liability and to follow the common law rule that furnishing alcoholic beverages is not the proximate cause of injuries inflicted by intoxicated persons.
      2. The legislature hereby declares that this section shall be interpreted so that the holdings in cases such as Carver v. Schafer, 647 S.W.2d 570 (Mo.App.1983); Sampson v. W.F. Enterprises, Inc., 611 S.W.2d 333 (Mo.App.1980); and Nesbitt v. Westport Square, Ltd., 624 S.W.2d 519 (Mo.App. 1981) be abrogated in favor of prior judicial interpretation finding the consumption of alcoholic beverages, rather than the furnishing of alcoholic beverages, to be the proximate cause of injuries inflicted upon another by an intoxicated person.
      3. Notwithstanding subsections 1 and 2 of this section, a cause of action may be brought by or on behalf of any person who has suffered personal injury or death against any person licensed to sell intoxicating liquor by the drink for consumption on the premises who, pursuant to section 311.310, RSMo, has been convicted, or has received a suspended imposition of the sentence arising from the conviction, of the sale of intoxicating liquor to a person under the age of twenty-one years or an obviously intoxicated person if the sale of such intoxicating liquor is the proximate cause of the personal injury or death sustained by such person.

      . See State ex rel. Cardinal Glennon Memorial Hospital for Children v. Gaertner, 583 S.W.2d 107, 110 (Mo. banc 1979); DeMay v. Liberty Foundry Co., 327 Mo. 495, 37 S.W.2d 640 (1931).

      . This is paragraph 40 of Magna Carta or The Great Charter of King John ás published in Vernon’s Mo. Ann. Stat. vol. 1 (1970).

      . David Schuman, The Right to a Remedy, 65 Temp. L. Rev. 1197, 1199 (1992).

      . Schuman, supra note 7, at 1199, n. 14 and accompanying text.

      . See, e.g., Meech v. Hillhaven West Inc., 238 Mont. 21, 776 P.2d 488 (1989).

      . Schuman, supra, note 7, at 1201.

      . Mo. Const, art. V, sec.3, gives the legislature some power with regard to matters of pleading, practice and procedure.

      . Schuman, supra note 7, at 1203.

      .Missouri is not alone in this regard. An Oregon concurring opinion, interpreting Oregon’s version of the "open courts” provision, notes that the Oregon Supreme Court "has written many individually tenable but inconsistent opinions" about the provision. Hale v. Port of Portland, 308 Or. 508, 783 P.2d 506, 518 (1989) (Linde, J., concurring).

      . Earlier cases are cited and discussed in Martin M. Loring, Constitutional Law: Statutorily Required Mediation as a Precondition to Lawsuit Denies Access to the Courts, 45 Mo. L.Rev. 319, n. 25 (1980): “The Missouri Supreme Court has not enunciated any consistent rules of law in its interpretation of [arti-ele 1, section 14] although a variety of fact situations have been found to deny or not to deny access to the courts.” The author reviewed several cases and concluded that the terms this Court used do not “delineate any precise standards of analysis.” Id.

      . Harrell, 781 S.W.2d at 62.

      . See footnote 24, infra.

      . The concept of reasonableness served as the basis for the plurality and the dissenting opinions in Strahler, 706 S.W.2d at 13 (Blackmar, J., dissenting), 14-15 (Donnelly, J., dissenting) and 18 (Welliver, J., dissenting). The plurality opinion by Judge Billings concluded that the statute of limitations for a minor was "too severe an interference with ... the right of access to the courts to be justified by the state's interest in remedying a perceived medical malpractice crisis." Id. at 12. In Mahoney, 807 S.W.2d 503, the Court upheld a statutorily required affidavit in an action against a health care provider against a challenge that the requirement was unreasonable. In answer, our Court said the requirement "is an exercise of legislative authority rationally justified by the end sought....” Id. at 510. See also Wheeler, 941 S.W.2d at 515 (Holstein, C.J., dissenting).

      .The term "cause of action” is used interchangeably with "claim” or "claim for relief.” The latter terms, which are used in our pleading rules, see Rule 55.05, replaced "cause of action,” which was the phrase used in code pleading. 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure section 1216 (1990). Missouri’s rules retain the requirement of pleading "facts,” so "cause of action” and "claim for relief" are both understood to mean the essential factual elements which, if proved, would entitle the pleader to a remedy under the applicable law.

      . In sections 537.053.1 and 537.053.2 the legislature’s purported abrogation of dram shop liability is premised, at least in part, on its notion that "proximate cause” does not exist in such cases. In section 537.053.3, which recognizes a dram shop claim, the statute requires the claimant to show that the sale of liquor was the "proximate cause” of the injury. The statute does not define "proximate cause,” which would be an appropriate legislative function, but rather finds that it does not exist in certain cases, which seems to be distinctly a judicial function. Proximate cause is commonly defined by the courts as that cause that, in a natural and continuous sequence, unbroken by any efficient intervening cause, produced the result complained of, and without which the result would not have occurred. See Krause v. U.S. Truck Co., 787 S.W.2d 708, 710 (Mo. banc 1990). In the Missouri Approved Instructions, the term “proximate cause” is not used; juries are instructed on causation to find whether the plaintiff's injury was the direct result of the defendant's breach of duty, and more than one cause may be found. In the context of dram shop liability, the death of plaintiffs’ decedent may have been the direct result of the negligence of the intoxicated driver as well as the wrongdoing of the tavern operator in serving liquor to an obviously intoxicated person. See MAI 19.01, 33.03 and Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852 (Mo. banc 1993).

      . Simpson, 749 S.W.2d 386, is premised on the notion that section 537.053 is within the prerogative of the legislature because it is an abolition of dram shop causes of action, and the creation of an entirely new cause of action in section 537.053.3. In overruling Simpson, we do not adopt, nor need we reach, the contention of the Simpson dissenting opinion that a legislature’s abolition of common law or statutory causes of action is subject to scrutiny under article I, section 14, and that , there must be an adequate alternative remedy. Kilcher, 749 S.W.2d at 394. See also footnote 23, infra. Our analysis in this case is premised simply on the fact that the legislature in section 537.053.3 recognizes a dram shop injury. The critical issue thus is whether the barriers to the remedy for that recognized injury are arbitrary or unreasonable. For the purposes of our analysis, it does not matter whether the recognized injury is a product of the longstanding common law or a recent statutory enactment.

      . This of course could be described, as well, as a violation of the constitutional guarantee of equal protection of the laws. See Mo. Const, art. I, sec. 2. A statute that creates arbitrary classifications that are irrelevant to the achievement of the statute’s purpose may be struck down because the arbitrary classifications violate equal protection. See Kansas City v. Webb, 484 S.W.2d 817 (Mo. banc 1972), and cases cited therein. But in this case, the arbitrary denial of a remedy for a recognized injury can be addressed under the "open courts” provision without reaching the equal protection issue.

      . Because the statute, section 537.053, applies only to commercial liquor licensees, our holding does not overrule Andres v. Alpha Kappa Lambda Fraternity, 730 S.W.2d 547 (Mo. banc 1987), where we declined to establish liability of a social host. It also should be noted that Thomas Kilmer was not the patron, but rather was allegedly an innocent victim of the dram shop owner's patron which is the basis for asserting that the dram shop is also liable. While the statute does not exclude liability of a dram shop operator for injuries or death suffered by a patron, it would seem exceedingly difficult to make a submissible case on behalf of a plaintiff whose own consumption of alcohol was the cause of his injuries. See Andres, 730 S.W.2d at 553 (Blackmar, J., concurring).

      . Section 1.140 provides:
      The provisions of every statute are severa-ble. If any provision of a statute is found by a court of competent jurisdiction to be unconstitutional, the remaining provisions of the statute are valid unless the court finds the valid provisions of the statute are so essentially and inseparably connected with, and so dependent upon, the void provision that it cannot be presumed the legislature would have enacted the valid provisions without the void one; or unless the court finds that the valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.

      . While our cases speak of the legislature's prerogative to abolish a cause of action, we do not find an instance where the legislature has abolished a claim in its entirety. Cases that contain such language include Blaske, 821 S.W.2d at 832-833, which upheld a statute of limitations, and Adams, 832 S.W.2d at 905, which upheld a statutory cap on non-economic damages. In both instances, the . injured party is able to recover for his injury, subject to the limitation as to time and damages, respectively. In this case, of course, if the legislature were to abolish dram shop liability in its entirety, a plaintiff would still have a cause of action against the allegedly drunk and presumably negligent driver. Similarly, a statute that grants immunity to a class of defendants, as section 354.125 does for health services corporations, does not eliminate an injured person’s claim against others who may be liable for his injury. See Harrell, 781 S.W.2d 58. Nor does the constitutional principle apply to grants of sovereign immunity for the state and its political subdivisions. See State ex rel. Board of Trustees of the City of North Kansas City Memorial Hosp. v. Russell, 843 S.W.2d 353 (Mo. banc 1993) (Hospital operated by city had immunity from suit, but plaintiff allowed to bring suit against others). Cases from other jurisdictions are collected and discussed in Schuman, supra, note 7, at 1205-1213.

      . We express no opinion on the merits of the Kilmers’ claim that the restaurant served an obviously intoxicated patron which directly resulted in the death of Thomas Kilmer. That, of course, must still be proved at trial.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Damon L. CALDWELL, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 76036.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 21, 1999.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 17,2000.
    Mary S. Choi, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., John M. Morris, III, Susan K. Glass, Asst. Atty. Gen., Jefferson City, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., and ROBERT G. DOWD, Jr., and SHERRI B. SULLIVAN, JJ.
   ORDER

PER CURIAM.

Damon L. Caldwell (Movant) appeals the denial of his Rule 29.15 motion for postconviction relief without an evidentiary hearing. Movant contends the motion court erred in denying his postconviction motion without an evidentiary hearing because Movant’s trial counsel was ineffective for cross-examining a State’s witness that opened the door to prejudicial hearsay. We affirm.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion would have no precedential value nor serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Plaintiff-Respondent, v. Dwayne HINKLE, Defendant-Appellant.
    No. ED 75460.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 21, 1999.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 17, 2000.
    David C. Hemingway, Asst. Sp. Public Defender, St. Louis, for appellant.
    Joyce Dee Hays, Cir. Atty., Catherine V. Fee, Asst. Cir. Atty., St. Louis, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., and ROBERT G. DOWD, Jr., and SHERRI B. SULLIVAN, JJ.
   ORDER

PER CURIAM.

Dwayne Hinkle (Hinkle)- appeals from the judgment upon his conviction by a jury of two counts of assault in the third degree, Section 565.070, RSMo 1994, a Class A misdemeanor, for which he was sentenced to two consecutive jail sentences of 180 days. Hinkle claims the trial court plainly erred when it (1) allowed the State to produce evidence of uncharged misconduct, (2) allowed the State to argue in closing arguments that Hinkle should be convicted to prevent him from committing further crimes, and (3) allowed the case to go to the jury notwithstanding Hinkle’s ineffective assistance of counsel. We affirm.

We have reviewed the briefs of the parties, the legal file and the transcript. An opinion would have no precedential value nor serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth reasons for this order pursuant to Rule 30.25(b).


author: GARY M. GAERTNER, Presiding Judge. JAMES R. DOWD, Judge,

text:
    In re the Marriage of Roger W. WILLIAMS, Appellant, v. Marilyn E. WILLIAMS, Respondent.
    No. ED 75710.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 28, 1999.
    Rehearing Denied May 24, 2000.
    See also, 982 S.W.2d 720.

      Cordell & Cordell, P.C., Michael P. Cohan, Creve Coeur, for appellant.
    Deborah J. Tomich, Jane E. Tomich, St. Charles, for respondent.
   OPINION

GARY M. GAERTNER, Presiding Judge.

Appellant, Roger W. Williams, (“husband”) appeals the judgment of the Circuit Court of St. Charles County, dissolving his marriage to Marilyn E. Williams, (“wife”). We affirm.

Husband and wife were married on November 29, 1974 and separated on May 26, 1995. The marriage was dissolved in 1997. They had one child of the marriage and she was born on July 16, 1979. Wife was 54 years old at time of the dissolution proceeding and was a certified public accountant. Husband was 64 years old and had worked for McDonnell Douglas Corporation until his retirement in 1992.

When husband retired in September 1992, he elected to purchase a joint surviv- or annuity option to insure that his wife would continue to receive benefits after his death. In order to purchase this election, husband agreed to have his monthly pension benefit reduced by $623.32 from $2513.37 to $1890.05. At the age of 65 years, husband will receive a total monthly pension benefit of $1990.05 ($1890.05 base benefit + $100.00 additional for life). The non-marital portion of husband’s pension is $300.00, leaving the marital portion of the monthly benefit at $1690.05. Based on this, the trial judge divided the marital property equally, giving the wife $845.00 and the husband $1145.05 ($845.05 marital share + $300.00 non-marital share). In addition, the trial court ordered the parties to hand over certain custodial accounts and bonds each held in trust for the daughter when she turns eighteen on July 16, 1997. Husband appeals.

In a court tried case, appellate courts will affirm the judgment of the trial court if it is supported by substantial evidence, it is not against the weight of the evidence, it does not erroneously declare the law, or it does not erroneously apply the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). “All evidence and permissible inferences therefrom are considered in the light most favorable to the trial court’s decision, and all contrary evidence and inferences are disregarded.” Chen v. Li, 986 S.W.2d 927, 931 (Mo.App. E.D.1999) (quoting In re Marriage of Gilmore, 943 S.W.2d 866, 871 (Mo.App. S.D.1997)).

The husband raises two points on appeal. The husband argues that the trial court erred: 1) in dividing the marital portion of his pension plan, such that both parties bear the cost of the election of the joint survivor option equally, and 2) in ordering husband and wife to hand over certain custodial accounts and bonds because the trial court lacked “authority to make such orders.”

With regard to his first point, husband argues that the trial court erred in finding that there was no evidence offered to demonstrate that the election was revocable. Husband argues that the parties had stipulated that the election was revocable. A review of the record reveals that the husband did not present evidence indicating his intention to revoke or not to revoke the election. At trial, husband stated that the election has been made and the parties discussed and stipulated that the trial court had the authority to change the election. Black’s Law Dictionary defines revocation as “an annulment, cancellation, or reversal.” BLACK’S LAW DICTIONARY 1321 (7 th ed.1999). We note that revoking the election is different from changing the election. The trial court clearly understood it could change the election but correctly noted that no evidence was presented as to the revocation issue. The joint survivorship annuity option document provided did not stipulate whether the election was revocable or not. Thus, the trial court did not err in finding that there was no evidence offered to prove the election was revocable.

Husband further argues the trial court’s division of the marital portion of his pension incorrectly applies the law, is an abuse of discretion, is against the weight of the evidence and is not supported by the evidence. He argues, although the trial court stated that it intended to make the division of the pension benefits substantially equal, the trial court erred in failing to make his wife bear the entire cost of the election of the joint annuity survivorship option. Husband alleges:

Given Husband’s 14.9-year life expectancy at age 65, see, Table, 42 V.A.M.S. 387, each of the parties will receive marital benefits from the pension plan totaling approximately $151,000 during Husband’s lifetime. On the basis of those same tables, Wife can expect to receive an additional $303,912 in monthly benefits following Husband’s death. Thus, the trial court awarded approximately ¾ of the pension benefits to Wife, assuming the parties live for their actuarially expected lifetimes.

And by not taking such into consideration in its division of the pension, the trial court therefore did not carry out its intention to divide the pension equally. As the trial' court noted;

Following Husband’s argument, Wife should then receive only $533.37 from Husband’s pension ([ ($2513.37 original benefit + $100.00 additional benefit— $300.00 non-marital portion) divide by 2] — $623.32 = $533.37), while Husband would receive $1456.69 ([ ($2513.37 original benefit + $100,00 additional benefit — $300.00 non-marital portion) divide by 2] + $300.00 non-marital portion = $1456.69).

Husband relies on Conaway v. Conaway, 899 S.W.2d 574 (Mo.App. W.D.1995); and Weiss v. Weiss, 702 S.W.2d 948 (Mo.App. W.D.1986). We disagree.

“The trial court has. wide discretion in dividing marital property.” Gambrel v. Gambrel, 943 S.W.2d 314, 315 (Mo.App. E.D.1997). Appellate courts defer to the trial court’s marital property division unless such division exhibits abuse of discretion or is improper. Tate v. Tate, 920 S.W.2d 98, 103 (Mo.App. E.D.1996). Pension benefits are considered marital property and are subject to division in a dissolution proceeding. Baker v. Baker, 804 S.W.2d 763, 765 (Mo.App. E.D.1990). However, retirement benefits accumulated prior to the marriage are not marital property and are not divisible. Gambrel, 943 S.W.2d at 315. Generally, the date of dissolution is the correct date for valuing property. Tate, 920 S.W.2d at 104 (citing Conaway, 899 S.W.2d at 575).

Missouri does not have a rule that requires the spouse who is entitled to a proportionate share of the other spouse’s survivor benefit option, to solely pay for the cost. In Conaway, the trial court determined that the wife is entitled to a proportionate share of the husband’s pension benefits. Conaway, 899 S.W.2d at 576. The wife requested the survivor benefit option and testified she would be willing to pay for the cost of the option. Id. The trial court refused to award her the survivor benefit option in her husband’s pension plan and the wife appealed. Id. The Court of Appeals reversed in part and held wife was entitled to the same proportionate share of the survivor benefit option, at her own cost. Id.

In Weiss, the, trial court ordered the husband to elect the survivor annuity benefit option at the request and imploration of his wife. Weiss, 702 S.W.2d at 953. The trial court ordered the husband to designate the wife as the beneficiary. Id. at 952. The court also, using a flexible approach in its division of the pension benefits, reduced the wife’s share of the husband’s pension plan, to offset the reduction in monthly benefits that would occur by reason of election of the survivor annuity benefit option. Id.

In Campbell v. Campbell, 668 S.W.2d 580, 583 (Mo.App. W.D.1984), the Court of Appeals affirmed the trial court’s judgment which ordered the husband to nominate his wife as the recipient of a potential survivor’s annuity under his pension plan. The trial court also ordered the husband to pay $681 to preclude a reduction of benefits at age 62. Id. The decree also provided that the husband might deduct one-half of that amount from the maintenance payments. Id. The trial court’s order had the effect of allocating the cost of the benefit to both husband and wife.

These cases do not establish a rule that the spouse designated as a beneficiary of a survivor’s benefit option bears the entire cost. Rather, this determination is left to the trial court’s discretion, taking into consideration all the relevant factors surrounding the distribution of marital property.

In the case at bar, unlike in the above cases where the trial court ordered the husbands to elect the survivor benefit options for their wives, husband, prior to the dissolution, voluntarily chose to elect the survivor benefit option for his wife. On the date of the trial, both husband and wife had already elected the option and had received the reduced benefit for three and one-half years. Husband requested the trial court to allocate the cost of the survivor benefit option solely to the wife. The trial court, exercising its discretion, rejected husband’s request and held that Conaway and Weiss were inapplicable.

At the time of the dissolution, the value of the marital portion of the monthly benefit was $1690.05. Tate demonstrates that the date of the dissolution is the correct date for valuing property. The trial court took the pension as it was on the date of dissolution and split the marital portion of the pension benefit equally, awarding the wife $845.00 and the husband $845.05. Such division had the effect of apportioning the cost of the option between the husband and the wife. However, as we noted above, there is no rule requiring the spouse who benefits from the election to solely pay for it and the trial court has discretion on how to allocate the cost. Therefore, the trial court’s division was substantially equal. Husband’s argument regarding equitable distribution of the pension benefit is without merit because the trial court exercised its discretion when it apportioned the cost of the option to both parties and split the monthly benefit equally.

With regard to the second point, husband argues:

The trial court erred in ordering the parties to hold the “daughter’s custodial accounts and bonds” in trust for their daughter until her eighteenth birthday and thereafter to deliver said bonds and custodial accounts to their daughter because, to the extent said property was given to their daughter pursuant to the Uniform Transfers to Minors Act or was held in trust for their daughter, it was not property of the parties, and to the extent the funds were held in joint tenancy with the daughter, they could not be awarded to her unless she was joined as a party, but she was not so joined.

The husband relies on Daniels v. Daniels, 675 S.W.2d 29 (Mo.App.1984). We disagree.

The Daniels case is inapplicable to this case. In Daniels, the trial court ordered husband and wife to hold certain certificates of deposit in trust for their child and that they should deliver them to child upon request to pay for college and other educational costs. Id. at 86. This Court noted the order created a twofold problem.

First, the record is not clear whether some or all of these certificates are held by the husband and wife as trustees for their daughter or whether the husband, wife and daughter held these certificates as joint owners. If the husband and wife are trustees for the daughter, that part of the court’s order effecting the trusteeship is void. Placing the certificates in trust divested the settlers, the husband and wife, of their interest in the funds so transferred.... If the daughter is a joint owner of any of the certificates, she must be joined as a party, and the joint interests of the daughter, husband and wife properly evaluated and distributed.

Id.

In the present case, the record supports the trial court’s finding that the parties held certain custodial accounts and bonds in trust for their daughter. The trial court ordered: “Daughter’s custodial accounts and bonds ... shall continue to be held by the parties in trust for Daughter until her eighteenth birthday on July 16, [1997], at which time each party shall deliver the bonds and custodial accounts in their respective possessions to daughter.” The trial court did not create or modify the terms of the trust. The record does not indicate that the parties and their daughter are joint owners. Thus, the Daniels ease is not applicable to the present case.

Additionally, the Uniform Transfers to Minors Act is not applicable to this case because the record does not indicate that the trust was set up in accordance to Section 404.047, RSMo 1994. Thus, the trial court did not err in its order.

Based on the foregoing, the judgment of the trial court is affirmed.

PAUL J. SIMON, J., concurs.

JAMES R. DOWD, J., dissents in a separate opinion.

JAMES R. DOWD, Judge,

dissenting.

I concur with the majority’s holding in Point II that the trial court did not err in ordering husband and wife to hand over the custodial accounts and bonds to their daughter when she turns eighteen. I respectfully dissent from the majority’s conclusion that the trial court did not abuse its discretion in dividing the marital portion of husband’s pension plan. I would reverse.

The trial court refused to assign the cost of the survivor option to wife because “the parties had elected the joint survivor option over two and a half years before their separation. There was no evidence offered that the election was revocable.” Therefore, it wrote, husband was “receiving exactly what he expected to receive on retirement.” It reasoned that equity prevented it from allocating the cost of the option to wife because of the uncertainty as to revocability.

The trial court concluded that the division of the marital property was “fair and equitable, if not absolutely equal.” This statement implies that the division is almost equal. Indeed, the trial court’s findings would support an- almost equal division. The trial court’s order does not mention marital misconduct or any other reason why there should be an unequal division. The problem is that the division is not even close to equal. Under the decree, Husband is paying $30,0 per month for wife to receive the benefit of the survivor option. This exceeds 25 percent of the amount he would receive from the marital share of the pension plan if he did not have to pay for the option. Over the course of husband’s life, he will pay $53,-640 for wife alone to receive the benefit. This division of the marital portion of the pension plan is neither fair nor equitable. Here, the trial court’s decree forces husband to pay half the cost of an option which, by definition, can only benefit wife. Yet, the trial court made no findings justifying an uneven division of the marital portion of the pension.

Moreover, there is no logical reason for making a distinction between the survivor benefit elected before or after divorce. Husband was willing to bear the cost of the benefit while married to wife. There is no logical reason for forcing him to bear this cost after the marriage has been dissolved. The trial court reasoned that he was “receiving exactly what he expected to receive on retirement”; of course, when he made this election, he was also expecting to be married to wife on retirement. His choice of the benefit while married should have no effect on the division of the pension plan at the time of the divorce. Furthermore, when asked by the trial court whether the court could modify the pension plan and the survivor benefit, wife’s trial counsel admitted: “I believe you do have the authority and jurisdiction to do that. And I do believe that McDonnell Douglas would accept such a qualified domestic relations order. They’re simply waiting for directions from the Court.” Indeed, the trial court provides no explanation for its reliance on husband’s electing the option before the divorce.

As noted by the majority, our standard of review is limited to determining if the trial court has abused its discretion in dividing the marital property. Gambrel, 943 S.W.2d at 315. I agree with the majority that the trial court had the discretion to divide the marital assets unequally. On the other hand, I believe that the trial court abused this discretion. It did so by refusing to properly allocate the expense of the survivor benefit at all because of a mistaken belief that “it would instead be inequitable to ignore the fact that ... [hjusband has already retired and has already made his election ” (emphasis added). Pension rights and liabilities, if they are marital property, must be allocated at dissolution. Section 452.330.1. The trial court allocated the entire benefit of the survivor option to the wife while refusing to allocate the entire cost to her because it did not think that it could do so. It made no findings to justify the wife receiving the full benefit of the option while the husband is forced to pay for half of its cost.

Our standard of review does not mean this Court affirms every division of marital property. Rather, we must reverse if the division of the property is not fair and equitable. Pursuant to our Rule 84.14 authority to give such judgment as the trial court ought to give and to finally dispose of the case, I would amend the judgment and order wife to bear the cost of the survivor option.

      . Husband was within 3 weeks of his 65 th birthday.

      . The record does not support that husband presented this allegation or evidence before the trial court. Appellate courts do not review matters complained of on appeal, which are not present in the record. State ex rel. Callahan v. Collins, 978 S.W.2d 471, 474 (Mo.App. W.D.1998). Appellate courts cannot review issues never offered in evidence nor included in the transcript on appeal. Wofford v. Wofford, 991 S.W.2d 194, 196 (Mo.App. W.D.1999). Thus, our review is limited to the record on appeal. Also, we agree with the dissent that we could take judicial notice of life expectancy and annuity tables even though not introduced into evidence, but we decline to review husband’s allegation regarding the trial court’s failure to take into consideration the differences between his life expectancy and the wife’s life expectancy, because the record demonstrates that it was not raised before the trial court.

      . Husband’s life expectancy is 14.9 years as noted in 42 V.A.M.S. XII (Supp.1999). We may judicially notice these tables even though not introduced into evidence. Baker v. Baker, 804 S.W.2d 763, 765 (Mo.App.1990).


text:
    STATE of Missouri, Plaintiff/Respondent, v. Jerry BRANDON, Defendant/Appellant.
    No. ED 75586.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 11, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 17, 2000.
    Gwenda R. Robinson, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Barbara K. Chesser, Asst. Public Defender, Jefferson City, for respondent.
    Before CRANDALL, P.J. and KAROHL, J. and HOFF, J.
   ORDER

PER CURIAM.

Jerry Brandon (Defendant) appeals the judgment entered after a jury found Defendant guilty of murder in the first degree, Section 565.020.1 RSMo 1994, armed criminal action, Section 571.015, forcible rape, Section 566.030, and forcible sodomy, Section 566.060. The trial court found Defendant was a prior offender under Section 558.016, and imposed consecutive terms of life in prison without probation and parole for murder in the first degree, fifteen years for armed criminal action, and life in prison for forcible rape and forcible sodomy.

Defendant contends the trial court plainly erred by: (1) overruling Defendant’s motion for judgment of acquittal at the close of all evidence because there was insufficient evidence to support his conviction on the forcible rape, and murder in the first degree counts; (2) failing to take curative action when the prosecutor elicited evidence of uncharged crimes and prior bad acts of Defendant; (3) failing to grant a mistrial, or strike and instruct the jury to disregard inadmissible evidence which established that blood drawn from Defendant after the charged crimes tested negative for cocaine; (4) issuing a written response to a jury question which coerced a guilty verdict on the forcible rape and criminal action counts; and (5) failing to grant a mistrial or strike and instruct the jury to disregard the prosecutor’s prejudicial indirect reference to Defendant’s right not to testify in rebuttal argument.

We have reviewed the briefs of the parties, the legal file, and the record on appeal, and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential or jurisprudential value. Judgment affirmed in accordance with Rule 30.25(b).

      . All subsequent statutory cites are to RSMo 1994.


text:
    In the Interest of J.D.R., J.D.R., and J.D.T., Minors, Petitioners/Respondents, v. S.T., Respondent/Appellant.
    No. ED 76878.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 7, 2000.
    Rehearing Denied May 24, 2000.
    Douglas S. Pribble, St. Louis, for appellant.
    Rita M. Montgomery, St. Louis, for respondent.
    Before WILLIAM H. CRANDALL, Jr., P.J., KATHIANNE KNAUP CRANE, J., and ROBERT E. CRIST, Sr. J.
   ORDER

PER CURIAM.

Mother, S.T., appeals from the judgment of the trial court terminating her parental rights to her three children, J.D.R., J.D.R. and J.D.T.

We have reviewed the record on appeal and find the judgment of the trial court is supported by substantial evidence and is not against the weight of the evidence. No error' of law appears. An opinion would have no precedential value. The judgment is affirmed. Rule 84.16(b).


text:
    IRONITE PRODUCTS CO., INC. & Gas Sweetner Associates, Inc., d/b/a Sulfatreat Company, Respondents, v. Alvin SAMUELS and Mark Samuels, Appellants.
    No. ED 76474.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 18, 2000.

      Charles S. Kramer, St. Louis, for appellants.
    Michael H. Wetmore, Omri E. Praiss, St. Louis, for respondents.
   WILLIAM H. CRANDALL, Jr., Presiding Judge.

The case comes to this court for a second time. In the first appeal, this court reversed the trial court’s judgment entered for this declaratory judgment action. Ironite Products Co., Inc. v. Samuels, 985 S.W.2d 858 (Mo.App. E.D.1998). Alvin Samuels and Mark Samuels (collectively, the Samuels) filed a motion with the trial court, requesting leave to reopen the case and for a revised judgment in accordance with this court’s mandate and opinion. The trial court denied the Samuels’ request to reopen the case and entered a revised judgment. The Samuels appeal. We affirm.

In 1972, Irwin Fox and Alvin Samuels formed Ironite Products Co., Inc. (Ironite) to market a chemical product for oil drilling. “The articles of incorporation set forth all of the required guidelines for operation of Ironite.” Id. at 859. Irwin Fox and Alvin Samuels also entered into the following oral agreements in 1972 (1972 oral agreements): Irwin Fox would run the Sales/Marketing Division in St. Louis, Missouri and Alvin Samuels would work in New Orleans, Louisiana in the Research and Development/Technical Services Division; the two would share decision making responsibilities and take equally from the company; if successful the two would ask their sons to join them in their respective offices; and the two divisions would be equal. The 1972 oral agreements were never reduced to writing. Irwin Fox and Alvin Samuels later incorporated Gas Sweetner Associates, Inc. d/b/a Sulfatreat Co. (Gas Sweetner) to market the same chemical product to' the natural gas industry. Ironite and Gas Sweetner were separate entities in name and market only, and the two companies were functional equivalents. Id. at 859-60.

In 1989, Irwin Fox and Alvin Samuels agreed that the companies were stable and each invited one son to join them pursuant to the 1972 oral agreements. Richard Fox began working in the St. Louis office while Mark Samuels began working from the New Orleans office. About this time, Richard Fox requested that both Ironite and Gas Sweetner enter into written agreements regarding structure, operation and succession issues. Both families agreed to the request. Richard Fox drafted the documents to embody the prior incorporation instruments and the oral agreements. On September 7, 1990, the shareholders of Ironite and Gas Sweetner (collectively, the Companies) adopted bylaws that empowered the Board of Directors to manage the Companies’ business affairs and to fix the salaries of the officers without limitation. The shareholders also entered into Restrictive Stock Agreements for the Companies. After speaking informally with a Louisiana attorney about the bylaws and Restrictive Stock Agreements, Alvin Samuels modified the documents by making handwritten changes. The Fox shareholders accepted the changes. All parties signed the incorporation documents, bylaw agreements and restrictive stock covenants and these became the controlling corporate guidelines. Id. at 860-61.

Thereafter, the relations between the two families declined. In August 1993, Alvin Samuels wrote to Irwin Fox and Richard Fox suggesting they would benefit from an “objective tie-breaking director” in making business decisions for the Companies. Alvin Samuels subsequently brought an action seeking the appointment of a provisional director. Later in 1993, Irwin Fox died in an automobile accident and Richard Fox assumed his father’s presidency of the Companies. On April 6, 1994, the court appointed a provisional director. A month later the director voted to unequally compensate Alvin Samuels and Richard Fox. Alvin Samuels protested, but before any action was taken, the director resigned. Clifford L. Goetz officially replaced the first provisional diréctor on January 1,1996. Goetz would later vote to unequally compensate Alvin Samuels and Richard Fox and to move Mark Samuels from New Orleans to the St. Louis office. In January 1997, the Samuels brought an action in New Orleans, naming Richard Fox and the Companies as defendants. Based on the “parties long-standing agreement,” the Samuels sought equal compensation for Alvin Samuels and Richard Fox and retention of Mark Samuels in the New Orleans office. The parties to this suit agreed that the Samuels would dismiss their Louisiana action and that the disputes would be resolved as part of an action in the Circuit Court of the County of St. Louis. The Companies then filed the present action seeking a declaratory judgment that the Companies’ Board of Directors had authority to make decisions by exercising its business judgment in the best interest of the Companies. ’ Id. at 861.

After trial, the court entered judgment and declared, among other things, that Alvin Samuels and Richard Fox were to be equally compensated and that Mark Samu-els was entitled to work in the Companies’ New Orleans office. The Companies appealed and this court reversed. Id. In the first point on appeal, the Companies argued that the trial court erred in ruling that Richard Fox and Alvin Samuels must be equally compensated. Id. This court agreed and held that under the parol evidence rule the trial court erred in permitting evidence of the 1972 oral agreements to contradict the Companies’ 1990 bylaws. Id. at 861-62. This court also agreed with the Companies’ second point that the Board of Directors had the authority to reorganize the Companies’ structure and could relocate Mark Samuels to the St. Louis office. Id. at 862-63. The opinion provided that “For the various reasons discussed herein, we reverse and remand.” Id. at 861. After the opinion was issued, the Samuels filed a motion for rehearing arguing this court “overlooked or misinterpreted” the following “material matters of both law and fact”: (1) the trial court’s ruling that the Companies’ actions after executing the 1990 written documents es-topped the Companies from denying the obligation to maintain the equal authority and salary structure for the division heads or the right of Mark Samuels to work in New Orleans; (2) the 1990 written agreements were not integrated agreements and, therefore, would not preclude consideration of parol evidence by the trial court; (3) the term “technical services” in the 1990 written agreements did not have a meaning that could be determined without consideration of intent or context and, therefore, the trial court was not precluded from considering parol evidence; (4) a contract should be construed to give every provision meaning whenever possible; (5) the trial court’s ruling that its judgment was based on three separate, independent contracts that did not contradict each other; and (6) the trial court’s “specific finding” that the Companies’ actions did not constitute valid business judgments. This court denied the Samuels’ motion. The Missouri Supreme Court denied the Samu-els’ later filed application for transfer. This court then issued the mandate that stated the trial court’s judgment was “reversed in accordance with this Court’s opinion.”

After the mandate was issued, the Sam-uels filed a motion with the trial court requesting leave to reopen the case and for a revised judgment in accordance with this court’s mandate and opinion. The trial court denied the Samuels’ request to reopen the case and entered a revised judgment. The court declared, among other things, that the Board of Directors could determine the amount of compensation, in unequal amounts, to be paid to the Companies’ officers and that the Board of Directors had the authority to have Mark Samuels work five days a week in St. Louis. The Samuels appeal, raising three points.

In their first point, the Samuels argue that the trial court erred in denying them request to reopen the case. The trial court stated in its denial, “After considering [the Samuels’] request, this court believes it has no discretion, authority or jurisdiction to reopen this case on general remand to issue a revised judgment with findings on the issues not addressed” by this court’s opinion. The Samuels contend that after a general remand a trial court has discretion to reopen a case. This court’s mandate stated that the trial court’s judgment was “reversed in accordance with this Court’s opinion” and provided no other directions except regarding costs.

A general remand leaves all issues open to consideration for the trial court after remand. McDonough v. Liberty Mutual Insurance Co., 968 S.W.2d 771, 773 (Mo.App. E.D.1998). However, the mandate is not to be read and applied in a vacuum. Frost v. Liberty Mutual Insurance Co., 813 S.W.2d 302, 305 (Mo. banc 1991); Id. The opinion is part of the mandate and must be used in interpreting the mandate. Id. Accordingly, proceedings on remand should be in accordance with the mandate and the result contemplated in the appellate court’s opinion. Id. Furthermore, a general remand “has the effect of a direction to proceed in accordance with the holdings entered by the opinion of the appellate court as the law of the case.” Outcom Inc. v. City of Lake of St. Louis, 996 S.W.2d 571, 574 (Mo.App. E.D.1999).

The law of the case doctrine governs successive appeals involving the same issues and facts. Bellon Wrecking & Salvage Co. v. David Orf, Inc., 983 S.W.2d 541, 546 (Mo.App. E.D.1998); McClelland v. Ozenberger, 841 S.W.2d 227, 231 (Mo.App. W.D.1992). Under this doctrine, the appellate decision becomes the law of the case in a subsequent proceeding in the same cause and precludes re-examination of issues decided in the original appeal. McClelland, 841 S.W.2d at 281. This rule applies to matters decided by the appellate court’s opinion, either directly or by implication. Missouri Board of Pharmacy v. Tadrus, 926 S.W.2d 132, 137 (Mo.App. W.D.1996).

In the first appeal, this court agreed with the Companies’ argument that the trial court erred in ruling that Richard Fox and Alvin Samuels must be equally compensated. Ironite Products Co., 985 S.W.2d at 861-62. This court held that under the parol evidence rule the trial court erred in permitting evidence of the 1972 oral agreements to contradict the Companies’ bylaws that “clearly stated” that compensation for the Companies’ officers was at the discretion of the Board of Directors. Id. In their motion to reopen the case and for a revised judgment, the Samuels stated they wanted to reopen the case:

for the sole purpose of introducing one new exhibit relating to the parol evidence finding ... The parol evidence ruling of [this court] is based on a defense and theory never pled by the Plaintiff Companies, never argued at trial, and never discussed. It is based on the fact that the cold record appeared to indicate that the Companies[’] bylaws were a later agreement, when in actuality the pertinent provision relied upon by [this court] was merely a restatement of bylaws that .were executed PRIOR to the 1972 agreement with AI Samuels. The Samuels would seek leave to introduce the prior bylaws, and to make that point known, prior to [the trial] court issuing its revised judgment. Upon adopting this approach, this court would then be in a position to determine whether this new evidence takes the revised judgment out of the realm of the law of the case, due to the existence of new and probative additional evidence.

The purpose of the Samuels’ arguments to the trial court and on appeal is to demonstrate that this court erred in the parol evidence holding. The Samuels argue that reopening the case “would reveal that certain material factual assumptions which underlie this Court’s application [of the parol evidence rule] on the cold appellate record are not in fact present in the case at bar.” The Samuels contend that the evidence on remand would show that the “five criteria” for application of the parol evidence rule are not present in this case. The Samuels also contend that the interests of justice and fair adjudication favor reopening the case.

’ Under the law of the case doctrine, a “‘former adjudication is not only the law of the case as to all questions directly raised and passed upon but it is also the law of the case as to matters which arose prior to the first appeal and which might have been raised thereon but which were not raised or presented.’ ” Bellon Wrecking & Salvage Co., 983 S.W.2d at 546 (quoting Norris v. Bristow, 361 Mo. 691, 236 S.W.2d 316, 319 (1951)); See Shahan v. Shahan, 988 S.W.2d 529, 533 (Mo. banc 1999); Lehnig v. Bornhop, 896 S.W.2d 714, 715 (Mo.App. E.D.1995). Evidence received, with or without objection, that violates the parol evidence rule must be ignored and a decision must be made on the writing alone. Ironite Products Co., 985 S.W.2d at 862. The parol evidence rule is a rule of law and not a rule of evidence. Id. If the Samuels had evidence demonstrating that the parol evidence rule was not applicable, then they could have presented it at trial and are not permitted to introduce this evidence for the first time after remand.

The trial court stated in its revised judgment that under the Companies’ bylaws the Board of Directors has the authority and discretion to determine the compensation to be paid to the Companies’ officers. The trial court’s judgment and denial of the Samuels’ request to reopen the case was precluded by the law of the case doctrine and was consistent with this court’s mandate and opinion. The Samuels’ first point is denied.

The Samuels argue in their second point that the trial court erred when it denied their request to restate in the revised judgment its “original finding” that the Companies’ attempts to force Mark Samu-els to relocate to St. Louis “failed the business judgment test.” In the first appeal, this court agreed with the Companies’ argument that the Board of Directors had the authority to reorganize the Companies’ structure and could relocate Mark Samuels to the St. Louis office. Ironite Products Co., 985 S.W.2d at 862. In addressing the issue, this court held that the Board of Directors was required to use its best independent discretion and judgment when making decisions, and that we would not interfere with these decisions absent fraud, illegal conduct or an irrational business judgment. Id. This court then found that Clifford Goetz and Richard Fox articulated rational reasons to relocate Mark Samuels to the St. Louis office. Id. We concluded by stating that the Board of Directors’ reorganization was a proper use of the Board of Directors’ business judgment. Id. at 863. If the trial court stated in its revised judgment that the Companies’ attempts to relocate Mark Samuels to St. Louis did not constitute a valid business judgment, this would be contrary to this court’s first opinion.

The crux of the Samuels’ argument is that this court had an “ Expressed Mistaken View of the Record” in the first opinion. In the first opinion, this court stated:

We will not interfere with the decisions of the Board of Directors absent fraud, illegal conduct, or an irrational business judgment. Neidert v. Neidert, 637 S.W.2d 296, 301 (Mo.App. S.D.[1982]). In making decisions, the Board of Directors is required to use its best independent discretion and judgment. Id. Goetz and Richard [Fox] both articulated rational reasons to relocate Mark [Samuels] to the Saint Louis office and to implement the organizational changes of the Companies. We will not interfere with that decision, despite a possible detriment to the corporations.
There is no allegation that the Board of Directors perpetrated iraud or made an irrational business judgment. The only accusation is that the Board of Directors lacked the authority to implement its decisions.

Ironite Products Co., 985 S.W.2d at 862. The Samuels contend that this court’s statement that “There is no allegation that the Board of Directors perpetrated fraud or made an irrational business judgment” was a mistake of fact. On a second appeal, an appellate court has discretion to refuse to apply the law of the case doctrine where there is a mistake, a manifest injustice or an intervening change of law. State v. Graham, 13 S.W.3d 290, 293 (Mo. banc 2000); Student Loan Marketing Ass’n. v. Raja, 914 S.W.2d 825, 830-31 (Mo.App. W.D.1996).

The Samuels cite the following conclusions of law by the trial court:

27. The vote of Director Goetz designed to put the attempted transfer of Mark Samuels and restructure of the Companies at issue in court, is not a proper basis for directorial decision.
28. In the usual case raising questions regarding discretion and business judgment, the actions of the directors and officers of a Corporation, which are within their authority and are made in good faith, uninfluenced by any other consideration other than the best • interest of the Corporation, are ■ not subject to challenge. The Courts will not interfere with the discretion of directors so long as their direction was exercised in a fair and honest manner.
29. In this case, the evidence at trial indicated no such honest belief or fair motivation lies behind the Companies[’] and Richard Fox’s attempt to transfer Mark Samuels to St. Louis, MO, and his attempt to restructure the Companies. The Court has found no evidence of any real company need or reason to transfer Mark Samuels to St. Louis, MO.

We note that in the next paragraph, number 30, the trial court concluded that the agreements that provided for Mark Samu-els to work in New Orleans and documents that provided for corporate and salary structure to be maintained, “obviate the need for inquiry into the business judgment of the directors in that regard.” (emphasis added). Accordingly, the trial court’s conclusions in paragraphs 28 and 29 notwithstanding, the court concluded in paragraph 30 it was unnecessary to decide whether a decision to relocate Mark Samu-els was a valid business judgment.

“The business judgment rule vests the directors and shareholders with wide latitude in making judgments that affect the running of the corporation.” Herbik v. Rand, 732 S.W.2d 232, 235 (Mo.App.1987). Here, the trial court never concluded that the Board of Directors perpetrated fraud or made an irrational business judgment. A director’s motivation is different than whether there was' a rational basis for a decision. A poor judgment, however motivated, does not equate to fraud or irrationality. The trial court did conclude that there was “no evidence of any real need or reason” or an “honest believe or fair motivation” for the decision to transfer Mark Samuels to St. Louis. However, this court specifically found that Clifford Goetz and Richard Fox articulated rational reasons to relocate Mark Samuels. Ironite Products Co., 985 S.W.2d at 862. Contrary to the Samuels’ assertion, this court’s first opinion was not based on an “Expressed Mistaken View of the Record,” regarding an allegation of fraud or irrationality. Furthermore, the Samuels raised this argument in their motion for rehearing that this court denied. See McClelland, 841 S.W.2d at 231. The Sam-uels’ second point is denied.

The Samuels argue in their third point that the trial court erred in failing to include in the revised judgment certain findings it made prior to this court’s opinion. The Samuels contend that the following three findings should have been included, in the revised judgment; the Companies’ agreements with Mark Samuels were existing and enforceable, the Companies were estopped from claiming that the 1990 documents prepared by Richard Fox “did not carry forward” the agreements with Alvin Samuels and Mark Samuels, and the Companies waived the claims they were asserting in this case. The Samuels raised these arguments in their original brief. The law of the case doctrine applies to matters decided by the appellate court’s opinion, either directly or by implication. Tadrus, 926 S.W.2d at 187. If the trial court were to include these findings in its revised judgment, this would be contrary to this court’s holdings in the first opinion. The trial court did not err in not including these findings in the revised judgment and the Samuels’ third point is denied.

The judgment of the trial court is affirmed.

MARY K. HOFF, J. and ROBERT E. CRIST, S.J., Concur.

      . The bylaws of the Companies both provide in Article IV, Section Nine, “Salaries: The salaries of the officers shall be fixed from time to time by the Board of Directors and no officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the corporation.”

      . The Samuels also requested, as an alternative to rehearing, an application for transfer to the Missouri Supreme Court.

      . To the extent the trial court’s judgment could be interpreted to suggest that a trial court never, under any circumstances, has authority to consider new evidence after a general remand, we disagree. Regardless, a correct result will not be set aside even if a trial court gave a wrong or insufficient reason for its judgment. Harvey v. Village of Hillsdale, 893 S.W.2d 395, 398 (Mo.App. E.D.1995). In this case, the trial court properly denied the Samuels’ request.

      . The Samuels list the following as the "five criteria:” (1) the written document is a subsequent agreement; (2) the two agreements are on the same subject and were adopted for the same purpose and there was no separate consideration; (3) the subsequent written agreement is an integrated agreement; (4) the earlier agreement would be inconsistent with or would alter the subsequent writing; and (5) the subsequent written agreement is unambiguous.

      . The Samuels also cite certain other findings by the trial court that they claim support the trial court’s "finding” that the Board of Directors did not exercise valid business judgment. .

      . The Companies' motion for sanctions and damages for frivolous appeal is denied.


text:
    STATE of Missouri, Respondent, v. Johnathon IRONS, Appellant.
    No. ED 75484.
    Missouri Court of Appeals, Eastern District, Division One.
    April 25, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 24, 2000.
    Nancy A. McKerrow, Asst. Public Defender, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Anne E. Hawley, Asst. Atty. Gen., Jefferson City, for respondent.
    Before GARY M. GAERTNER, P.J., PAUL J. SIMON, J., & JAMES R. DOWD, J.
   ORDER

PER CURIAM.

Defendant, Johnathon Irons, was charged, tried before a jury and convicted of assault in the first degree, Section 565.050 RSMo 1994, armed criminal action, Section 571.015 RSMo 1994, and burglary in the first degree, Section 569.190, RSMo 1994. Defendant was sentenced to terms of twenty-five years for the assault and twenty-five years for the armed criminal action to be served consecutively. Defendant was also sentenced to a term of fifteen years for the burglary to be served concurrently with the two prior sentences.

We have reviewed the briefs and the record on appeal and find that no jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. However, the parties have been furnished with a brief memorandum for their information only, setting forth the reasons for this order.

We affirm the judgments of the trial court in accordance with Rule 30.25(b).