author: PATRICIA BRECKENRIDGE, Judge.

text:
    CITY OF PLATTSBURG, Respondent, v. Dennis DAVISON, Appellant.
    No. WD 64551.
    Missouri Court of Appeals, Western District.
    Nov. 15, 2005.

      Dennis Davison, Gladstone, MO, pro se.
    Katharine S. Shepherd-Porter, Liberty, MO, for respondent.
    Before HARDWICK, P.J., BRECKENRIDGE and SPINDEN, JJ.
   PATRICIA BRECKENRIDGE, Judge.

Dennis Davison appeals the decision of the circuit court that found him guilty, in a trial de novo, of exceeding the posted speed limit, in violation of Plattsburg Municipal Ordinance 320.010. On appeal, Mr. Davison asks this court to reverse the judgment of the circuit court or, in the alternative, “order a new trial with a change of venue.” This court dismisses Mr. Davison’s appeal because Mr. Davi-son’s brief and the record are so inadequate as to prevent appellate review.

Factual and Procedural Background

On October 14, 2003, Mr. Davison was traveling westbound on Highway 116 in Plattsburg. The posted speed limit on this section of Highway 116 is thirty-five miles per hour. Mr. Davison was stopped and cited by Officer Shannon Hess for traveling forty-seven miles per hour. The ticket was dated the preceding day, October 13, 2003. On the ticket, Mr. Davison was assigned a court date of November 6, 2003. Mr. Davison appeared in Plattsburg Municipal Court and contested the citation. At trial in the municipal court, Mr. Davi-son was found guilty of exceeding the posted speed limit. Mr. Davison appealed this decision to the Circuit Court of Clinton County for a trial de novo. At his trial in circuit court, Mr. Davison claimed that he should not be found guilty because Officer Hess was parked illegally, under section 307.110, RSMo 2000, at the time he observed Mr. Davison violating the speeding ordinance. Additionally, Mr. Davison asserted the citation contained a mistake that undermined the validity of the citation. Specifically, Mr. Davison argued that he should not be found guilty, because the actual date that he was in Plattsburg was October 14, 2003, and not October 13, 2003, as the citation read.

In its ruling, the circuit court found that, even if the requirements of section 307.110 applied to law enforcement vehicles and Officer Hess was illegally parked without the lighting required by the statute, the legality of the officer’s parking had “no bearing upon the issue of [Mr. Davison’s] rate of speed.” Further, although the circuit court found that Officer Hess was mistaken and the correct date of the citation should have been October 14, 2003, the circuit court found this error to be “insubstantial.” The circuit court utilized Rule 55.33 to deem the information amended “to conform to the evidence.” The circuit court then found Mr. Davison guilty of exceeding the posted speed limit and granted Mr. Davison time to file a motion for new trial before imposing sentence.

Instead of filing a motion for new trial, Mr. Davison appealed the judgment of the circuit court to this court. Because the circuit court had not yet imposed a sentence, however, the appeal was premature. Therefore, this court remanded the case back to the circuit court for sentencing. On September 8, 2004, the circuit court sentenced Mr. Davison to pay a fine of $150 and court costs of $24.50, for a total of $174.50. Mr. Davison filed this appeal. Thereafter, the City of Plattsburg filed a motion to strike Mr. Davison’s brief or, in the alternative, a motion to dismiss Mr. Davison’s appeal for failure to comply with Rule 84.04. The City’s motion will be considered in ruling on the case.

Briefing Deficiencies Preclude Review of First Point on Appeal

On appeal, Mr. Davison requests this court to “reverse the decision of the Circuit Court or order a new trial with a change of venue.” Before this court can address the merits of Mr. Davison’s claims, however, the court must address the City’s motion to strike Mr. Davison’s brief or dismiss the appeal.

A brief may be so deficient that this court lacks jurisdiction to hear the appeal. Jenkins v. Manpower on Site at Proctor & Gamble, 106 S.W.3d 620, 623 (Mo.App.2003). A brief is deficient if it fails to comply with Rule 84.04. Id. “Appellate courts require compliance with Rule 84 to ensure they do not become advocates by speculating on facts and arguments that have not been asserted.” Quarles v. Richman Gordman Stores, Inc., 68 S.W.3d 452, 454 (Mo.App.2001). Even when, as here, a party is not represented by counsel, the pro se litigant “is held to the same procedural rules as attorneys and will not receive preferential treatment regarding compliance, despite this [cjourt’s sensitivity to the problems faced by such litigants.” Id.

Under Rule 84.04(d)(l)(A)-(C), an appellant’s Points Relied On must identify the trial court ruling or action being challenged; “state concisely the legal reasons for the appellant’s claim of reversible error;” and “explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.” Mr. Davison’s first point relied on states:

The trial court erred in entering Summary Judgment in favor of the City of Plattsburg because the Court based its decision upon evidence presented that was obtained] during the commission of an unlawful act (RSMO 542.420), in that RSMO 307.110 does apply to police and/or emergency vehicles and the evidence should have been ruled inadmissible.

Mr. Davison’s point relied on identifies the trial court’s ruling or action that he is challenging as the trial court’s summary judgment. No summary judgment was entered by the trial court, so he fails to accurately identify the ruling or action challenged, as required by Rule 84.04(d)(1)(A).

Further, he refers to section 542.420, RSMo Cum.Supp.2004, which relates to the interception of wire communications. This statute has no application to the present case. Here, this court is reviewing the circuit court’s decision finding Mr. Davison guilty of exceeding the posted speed limit. The instant ease in no manner involves wire communications. Because the statute is inapplicable, Mr. Davison fails to “state concisely the legal reasons” supporting his first point relied on and fails to explain how those legal reasons support his claim. Rule 84.04(d)(l)(B)-(C). As a result of these two deficiencies, Mr. Davison’s first point relied on does not comply with Rule 84.04(d)(1).

Under Rule 84.04(e), the brief must also contain an argument section that discusses the point relied on. “An argument should show how the principles of law and the facts of the case interact.” Carroll v. AAA Bail Bonds, 6 S.W.3d 215, 218 (Mo.App.1999). Where “the appellant neither cites relevant authority nor explains why such authority is not available, the appellate court is justified in considering the points abandoned and dismissing] the appeal.” In re Marriage of Spears, 995 S.W.2d 500, 503 (Mo.App.1999).

In his first point on appeal, Mr. Davison appears to argue that the trial court improperly considered inadmissible evidence. Yet, Mr. Davison cites no relevant legal authority explaining why the evidence was inadmissible, i.e., authority that evidence obtained by a police officer who violated section 307.110 or a similar statute is inadmissible. Rather, Mr. Davison cites section 542.420, RSMo Cum.Supp.2004, a statute addressing the interception of wire communications. As noted above, this statute has no application to this case. He also cites section 542.190, which likewise has no application to this case. Moreover, Mr. Davison fails to explain why no relevant legal authority is available to support his argument. Consequently, Mr. Davi-son’s first point on appeal does not comply with Rule 84.04(e).

Rule 84.04(e) also requires “a concise statement of the applicable standard of review for each claim of error.” Mr. Davi-son’s brief does not contain any reference to a standard of review and, therefore, is in further non-compliance with Rule 84.04(e). . Because of these deficiencies, Mr. Davison’s first point on appeal fails to meet the requirements of Rule 84.04. See Hardin v. State, 51 S.W.3d 129, 131 (Mo.App.2001) (dismissing pro se litigant’s appeal because the point relied on did not comply with Rule 84.04(d) and the argument did not include applicable standard of review as required by Rule 84.04(e)).

Deficiencies of Briefing and Record Preclude Review of Second Point on Appeal

In his second point relied on, Mr. Davi-son claims:

The trial court erred in performing its judicial duties without bias or prejudice because its decision was worded falsely, prejudice was selectively evident, and bias toward the Prosecution was evidenced in that its decision contained wording not in evidence, selectively allowed mistaken testimony not to compromise the Officer’s entire testimony, and displayed unprofessional familiarity with the Prosecuting Attorney.

As noted above, in order to comply with Rule 84.04(d)(1)(A)-(C), an appellant’s point relied on must identify the trial court ruling or action being challenged; “state concisely the legal reasons for the appellant’s claim of reversible error;” and “explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.” Mr. Davison’s second point relied on does not identify the trial court ruling or action being challenged, state the legal reasons for his claim of error, or explain why, in the context of the case, the legal reasons support his claim of error. Thus, Mr. Davison’s second point relied on does not comply with Rule 84.04(d)(1).

“Where possible, ... [this court’s] preference is to dispose of a case on the merits rather than to dismiss an appeal for deficiencies in the brief.” Podlesak v. Wesley, 849 S.W.2d 728, 731 (Mo.App.1993). “In the interests of justice” this court “may decide points when their basis is cognizable from the argument section of the brief.” Crowe v. Clairday, 893 S.W.2d 400, 402 (Mo.App.1995). Unlike Mr. Davison’s first point, the argument section of Mr. Davison’s second point is sufficient to permit this court to understand the basis of his claim. From Mr. Davison’s argument section, it appears that Mr. Davison’s claims are that the trial court erred because the findings in its judgment were not supported by the evidence; it believed some, but not all, of Officer’s Hess’s testimony; it told Mr. Davison that questions concerning the municipal court were not admissible; it was biased and prejudiced in favor of the prosecutor; and that Officer Hess committed perjury. Consequently, despite the general “admonishment that faulty points relied on can and sometimes do result in dismissals of appealsf,]” this court will examine Mr. Davison’s claims. Id.

Mr. Davison first asserts in his argument that the trial court made the finding that “Mr. Davison testified that the incident actually occurred on October 14, 2003,” when there was no evidence in the record to support this finding. Unfortunately, Mr. Davison did not file, in the record on appeal, a transcript of the circuit court trial. Without a record of the evidence at trial, it is impossible to review his claim that there was no evidence to support the trial court’s finding. It is the appellant’s burden to file a record on appeal that is sufficient to permit the appellate court to review the appellant’s claims of error. Rule 81.12. “In the absence of a sufficient record, there is nothing for this court to review, and the appeal must be dismissed.” Fansher v. Dir. of Revenue, 147 S.W.3d 873, 874 (Mo.App.2004). While Mr. Davison’s argument section permits us to understand his claim, without a proper record, we cannot review it. Accordingly, this claim is dismissed.

Mr. Davison next claims in his argument that the trial court erred when it believed Officer Hess’s testimony as to “the identify of the defendant” and “the number read-out of his radar unit.” He asserts the trial court should not have found this testimony credible since the trial court believed that Officer Hess was mistaken about the date of the incident. In support of this argument, he does not cite any authority. “An argument should show how the principles of law and the facts of the case interact.” Carroll, 6 S.W.3d at 218. Mr. Davison likely did not cite any authority for his claim because the law is to the contrary. “Credibility of the witnesses and the weight to be given to their testimony is for the trial court, which is free to believe none, part, or all of the testimony of any witness.” Coursen v. City of Sarcoxie, 124 S.W.3d 492, 494 (Mo.App.2004). Therefore, the trial court was entitled to disbelieve the part of Officer Hess’s testimony concerning the date of the incident and believe other portions of his testimony. Id. In any event, as with the previous point, Mr. Davison did not file, in the record on appeal, a transcript of the circuit court trial. Without a proper record, this court cannot review Mr. Davison’s claim. Fansher, 147 S.W.3d at 874. Consequently, this claim is dismissed.

Mr. Davison next claims that the trial court was biased and prejudiced in favor of the prosecutor. He argues that the record demonstrates the trial court’s bias and prejudice when the trial court referred to the city prosecutor as “Katie” Shepherd-Porter, rather than “Katharine” Shepherd-Porter. Mr. Davison did file the transcript of the sentencing hearing in the record on appeal. That transcript includes the statement of the trial court that Mr. Davison believes demonstrates the trial court’s bias in favor of the prosecution. The trial court stated, “And City of Platts-burg appears by Katie Shepherd-Porter.” At all other times during the hearing, the trial court referred to the city prosecutor as “Ms. Shepherd-Porter.” The only authority he cites is Rule 2.03, Canon 3B(2), (5), E(a) in support of his claim that the trial court’s conduct is in violation of a judicial canon, but Mr. Davison does not explain how Canon 3B supports his claim or, specifically, how it prohibits the trial court’s conduct. “When a party fails to develop a point relied on in the argument section, it is deemed abandoned.” Lack v. Payne, 151 S.W.3d 862, 867 (Mo.App.2004). While this court can use Mr. Davison’s argument section to understand the basis of his claim, this court cannot become an advocate for Mr. Davison by developing his argument for him. Quarles, 68 S.W.3d at 454. Mr. Davison’s argument section does not provide authority that explains why the trial court’s use of the prosecutor’s nickname amounts to reversible error. Mr. Davison neither explains this absence of authority, nor explains why the facts of this case amount to a violation of Cannon 3B. Mr. Davison may not cite such authority because it is unlikely that the referenced canon is violated by a trial court utilizing an individual’s nickname for the person’s first name, rather than the person’s formal first name, when stating an attorney’s appearance in court. In any event, Mr. Davison has not adequately developed this claim and, consequently, it must be dismissed. Lack, 151 S.W.3d at 867.

Mr. Davison’s last two claims in his second point relied on are that the trial court erred when it told him that questions concerning the municipal court trial were not admissible in the circuit court trial and that Officer Hess committed perjury when he testified at trial that the traffic violation occurred on October 13, 2003, since he had testified in municipal court that the offense occurred on October 14, 2003. These claims cannot be reviewed because Mr. Davison failed to file a transcript of the circuit court trial. “In the absence of a sufficient record, there is nothing for this court to review, and the appeal must be dismissed.” Fansher, 147 S.W.3d at 874.

Finally, Mr. Davison’s second point on appeal fails to provide a statement of the applicable standard of review, as required by Rule 84.04(e). Because of these deficiencies, Mr. Davison’s second point on appeal is dismissed. See Piercy, 97 S.W.3d at 514 (dismissing pro se litigant’s claim where legal file was incomplete, no legal authority was cited and claim was not explained).

“Where possible, ... [this court’s] preference is to dispose of a case on the merits rather than to dismiss an appeal for deficiencies in the brief.” Podlesak, 849 S.W.2d at 731. In this case, however, the deficiencies in Mr. Davison’s brief and the legal record are so substantial that, to conduct any meaningful review, this court “would be forced to speculate ... as to the facts and arguments being relied on[.]” Lemay v. Hardin, 108 S.W.3d 705, 709 (Mo.App.2003). Therefore, this court must decline review. Id. The City’s motion to dismiss Mr. Davison’s appeal is granted. Mr. Davison’s appeal is dismissed.

All concur.

      . All statutory references are to the Revised Statutes of Missouri 2000, unless otherwise indicated.

      . A pro se appellant challenging his conviction for violation of a municipal ordinance must comply with Rule 84.04. City of Kansas City v. Piercy, 97 S.W.3d 513 (Mo.App.2002).

      . Section 542.420, RSMo Cum.Supp.2004, states:
      Whenever any wire communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a state, or a political subdivision thereof if the disclosure of that information would be in violation of sections 542.400 to 542.422.

      . Section 542.190 states:
      No sheriff of a county, mayor of a city or other private person authorized by law to appoint special deputies, marshals or policemen in this state to preserve the public peace and quell public disturbances shall appoint as special deputies, marshals or policemen any person who is not a resident of this state and who has not been a resident of this state for at least three years prior to his appointment.


source: Caselaw Access Project

author: LISA WHITE HARDWICK, Judge.

license: Public Domain

text:
    Charles J. KUNKEL, Jr., et al, Respondents, v. Jerry L. HERTZOG, et al, Appellants.
    No. WD 64412.
    Missouri Court of Appeals, Western District.
    Nov. 15, 2005.

      Elvin S. Douglas, Jr., Esq., Harrison-ville, MO, for appellants.
    Sherwin L. Epstein, Esq., Kansas City, MO, for respondents.
    Before HARDWICK, P.J., BRECKENRIDGE and SPINDEN, JJ.
   LISA WHITE HARDWICK, Judge.

Jerry and Helen Hertzog appeal from a partial summary judgment awarding Charles and Catherine Kunkel $49,000 on a breach of contract claim. We dismiss the appeal for lack of jurisdiction because no final judgment has been entered.

Factual and PROCEDURAL HistoRY

On November 20, 2002, the Kunkels entered into a real estate contract to purchase commercial property, located in Lee’s Summit, Missouri, from the Hertzogs. The purchase price was $550,000, of which the Kunkels paid a $49,000 deposit upon execution of the contract. A closing date was set for December 2, 2002, but the transaction was not completed by that date. The Kunkels thereafter requested a refund of their deposit. The Hertzogs refused any refund, contending the Kunkels forfeited the deposit by failing to make full payment of the contract price by the closing date.

The Kunkels filed a Petition against the Hertzogs in Jackson County Circuit Court, seeking to rescind the contract and recover the $49,000 deposit. The Kunkels claimed the Hertzogs breached the real estate contract by failing to provide a preliminary title report and commitment for title insurance prior to the closing date. Later, the Kunkels amended the petition to add claims for fraudulent misrepresentation and negligent misrepresentation. These additional claims asserted that the Hertzogs falsely stated their intention to provide “title work” in the contract, and that the Kunkels paid the $49,000 deposit in reliance on the misrepresentation.

The Hertzogs filed an Answer denying the allegations of breach of contract and fraudulent/negligent misrepresentation. With regard to the breach of contract claim, the Hertzogs affirmatively alleged that the real estate transaction was not completed because the Kunkels had “advised Defendants that they were unable to obtain financing ... even though the contract was not contingent upon financing.”

The Kunkels filed a motion for partial summary judgment on the breach of contract claim. The court granted the motion and entered a judgment ordering the Hertzogs to refund the $49,000 deposit and pay interest and court costs. Although the judgment did not dispose of all claims in the lawsuit, the court entered an order pursuant to Rule 74.01(b), declaring there was “no just reason for delay and [the Hertzogs] should be permitted to file their appeal” on the breach of contract claim.

JURISDICTIONAL DEFECT

In their sole point on appeal, the Hert-zogs contend the circuit court erred in granting summary judgment on the breach of contract claim because there was a genuine issue of material fact on the affirmative defense of anticipatory repudiation. We cannot address this point, however, without first determining our jurisdiction to review the partial judgment rendered.

Although neither party questions the authority of the trial court to certify the summary judgment as appealable under Rule 74.01, we must consider the issue sua sponte as it affects our jurisdiction. Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997). The existence of a final judgment is a prerequisite for appellate review under Section 512.020, RSMO 2000. Id. An appealable judgment resolves all issues in a case and leaves nothing for future determination. Id. If the circuit court’s judgment is not final, we lack appellate jurisdiction and the appeal must be dismissed. Id.

Rule 74.01(b) provides an exception to the finality rule in cases involving multiple claims. This exception allows the circuit court to enter judgment on less than all claims and certify that there is “no just reason for delay.” Rule 74.01(b). However, the ruling that a partial judgment is final and appealable is not conclusive. Gibson, 952 S.W.2d at 244. “It is the content, substance, and effect of the order that determines finality and appeala-bility.” Id. This court must ultimately decide whether the judgment certified under Rule 74.01 actually qualifies as a final judgment for purposes of appeal. Fischer v. City of Washington, 55 S.W.3d 372, 377 (Mo.App.2001).

A circuit court’s order declaring the finality of particular claims, under Rule 74.01, is only effective when it “disposes of a distinct ‘judicial unit.’ ” Gibson, 952 S.W.2d at 244. Such disposition occurs when the court enters final judgment on a claim, and not a ruling on some of several issues arising out of the same transaction, which does not dispose of the claim. Id. As the Supreme Court explained in Gibson:

An order dismissing some of several alternative counts, each stating only one legal theory to recover damages for the same wrong, is not considered an ap-pealable judgment while the other counts remain pending because the counts are concerned with a single fact situation. It is “differing,” “separate,” “distinct” transactions or occurrences that permit a separately appealable judgment, not differing legal theories or issues presented for recovery on the same claim.

Id. (citations omitted).

Here, the Kunkels asserted claims for breach of contract, fraudulent misrepresentation, and negligent misrepresentation, all of which were based on the real estate transaction that was scheduled to close on December 2, 2002. In the Amended Petition, the facts supporting the Count I breach of contract claim were expressly incorporated in the Count III and IV misrepresentation claims. The circuit court granted summary judgment on the breach of contract claim and then certified the matter for appeal, without dismissing or otherwise addressing the related claims in Counts III and IV.

The pending misrepresentation claims clearly arise from the same set of facts and the same transaction as the breach of contract claim. Accordingly, the circuit court erred in certifying this matter for appeal because the summary judgment did not dispose of a distinct judicial unit. The judgment is neither final nor appealable as long as Counts III and IV remain pending. This court lacks appellate jurisdiction and, thus, the appeal is dismissed.

All concur.

      . The Hertzogs held a right of acquisition on the properly and planned to purchase it at a foreclosure sale on December 2, 2002, and then immediately sell the property to the Kunkels.

      . The Petition also included a conversion claim, which alleged that the Hertzogs failed to deliver key components of a telephone system the Kunkels had purchased from the Hertzogs in October 2002. The conversion claim arose from factual circumstances entirely separate from the real estate transaction, and is not at issue in this appeal.

      . All rule citations are to the Missouri Rules of Civil Procedure (2005), unless otherwise noted.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Leonel LOZANO, Jr., Appellant.
    No. WD 63436.
    Missouri Court of Appeals, Western District.
    Nov. 15, 2005.
    Sarah Weber Patel, Kansas City, MO, for appellant.
    Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before HARDWICK, P.J., BRECKENRIDGE and SPINDEN, JJ.
   ORDER

PER CURIAM.

Leonel Lozano, Jr., was convicted, after a jury trial, of two counts of statutory sodomy in the second degree and one count of attempted statutory sodomy in the second degree, in violation of sections 566.064 and 564.011, RSMo 2000. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment is affirmed. Rule 30.25(b).


text:
    LACLEDE GAS COMPANY, Appellant, v. RENEGADE CONSTRUCTION COMPANY, Respondent.
    No. ED 85442.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 15, 2005.
    Michael R. Gibbons, Kirkwood, MO, for appellant.
    Clinton B. Roberts, Sonya D. Day (co-counsel), Farmington, MO, for respondent.
    Before: NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Laclede Gas Company (“Laclede Gas”) appeals from a directed verdict, in a court tried case, against it and in favor of Renegade Construction Company (“Renegade”) on a claim for damage to its gas line. Laclede Gas claims that it raised a reasonable possibility that Renegade cut the gas line while doing construction, and that the trial court erred in its directed verdict.

No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

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


text:
    LACLEDE GAS COMPANY, Appellant, v. RENEGADE CONSTRUCTION COMPANY, Respondent.
    No. ED 85441.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 15, 2005.
    Michael R. Gibbons, Kirkwood, MO, for appellant.

      Clinton B. Roberts, Sonya D. Day (co-counsel), Farmington, MO, for respondent.
    Before: NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Laclede Gas Company (“Laclede Gas”) appeals from a directed verdict, in a court tried case, against it and in favor of Renegade Construction Company (“Renegade”) on a claim for damage to its gas line. Laclede Gas claims that it raised a reasonable possibility that Renegade cut the gas line while doing construction, and that the trial court erred in its directed verdict.

No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

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


text:
    Scott L. BRAGG, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85335.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 15, 2005.
    Timothy J. Fornens, Assistant Public Defender, St. Louis, MO, for appellant.
    Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before MARY K. HOFF, P.J., CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Scott L. Bragg (“Movant”) appeals from the judgment of the Circuit Court of Cape Girardeau County denying his Rule 24.035 motion for post-conviction relief after an evidentiary hearing. In his appeal, Mov-ant argues that the motion court clearly erred when it found that the record contained a sufficient factual basis to support his guilty plea and conviction. Movant likewise contends that the motion court erred in failing to find that plea counsel rendered ineffective assistance in that: (1) plea counsel’s financial interest in obtaining payment for his services caused him to pressure Movant to plead guilty; (2) plea counsel failed to move for change of judge or change of venue; and (3) plea counsel failed to investigate two witness.

We have reviewed the briefs of the parties and the record on appeal and find the motion court’s decision was not clearly erroneous. An extended opinion would have no precedential value. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision.

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


text:
    EAST END TRANSFER STORAGE, INC., et al., Respondents, v. VANLINER INSURANCE COMPANY, Defendant, and The Travelers Indemnity Company of Illinois, Defendant/Appellant, and American Guarantee & Liability Insurance Company, Defendant/Respondent, and United Vanlines, L.L.C., Defendant, and Unigroup, Inc., Defendant. North American Specialty Ins. Co., Plaintiff/Respondent, v. The Travelers Indemnity Company of Illinois, Defendant/Appellant, and American Guarantee & Liability Insurance Company, Defendant/Respondent, and Vanliner Insurance Company, Defendant, and United Vanlines, L.L.C., Defendant, and Unigroup, Inc., Defendant.
    No. ED 85825.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 15, 2005.
    Theodore J. MacDonald, Jr., St. Louis, MO, Laurence J. Rabinovich (co-counsel), New York, NY, for Travelers Indemnity.
    Russell F. Watters, St. Louis, MO, for No. American Specialty Ins.
    Bradley J. Baumgart, Michael E. Brown (co-counsel), Kansas City, MO, Fairfax Jones (co-counsel), St. Louis, MO, for Am. Guarantee & Liability.
    Robert J. Selsor, St. Louis, MO, for United Vanlines.
    Adrian P. Sulser, St. Louis, MO, for Vanliner Insurance.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

The Travelers Indemnity Company of Illinois (“Travelers”) appeals from a Motion for Summary Judgment the trial court granted to North American Specialty Insurance Company and American Guarantee & Liability Insurance Company.

Travelers raises three points on appeal. First, Travelers claims that the trial court erred by relying on Travelers Truckers Policy Endorsement 20 01 because neither the vehicle owned by Vincent Fister, Inc. (“Fister”) nor the vehicle owned by East End Transfer & Storage, Inc. (“East End”) qualified for coverage under that endorsement. Second, it claims that the trial court erred by ruling that the vehicles owned by Fister and East End, two of Travelers’ agents, failed to qualify as “covered autos” under the Travelers commercial automobile policy (“Contingent Policy”). Finally, Travelers argues .that the trial court erred by failing to give proper effect to Travelers truckers policy (“Truckers Policy”) endorsements, which made it clear that the Fister and East End vehicles did not qualify as covered autos under its Truckers Policy. We find no error and affirm.

No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

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


text:
    STATE of Missouri, Respondent, v. Rickey M. FISHER, Appellant.
    No. WD 64392.
    Missouri Court of Appeals, Western District.
    Nov. 15, 2005.
    John T. Kay, Prosecuting Attorney, California, MO, for Respondent.
    Virgil D. Rodgers II, Tipton, MO, for Appellant.
    Before SPINDEN, P.J., and HOWARD and HOLLIGER, JJ.
   Order

PER CURIAM.

Appellant Rickey M. Fisher (“Fisher”) appeals from a misdemeanor conviction by jury in the Circuit Court of Moniteau County for careless and imprudent driving, in violation of section 304.012, RSMo 2000. Fisher argues two points on appeal. In Point I, Fisher argues that the trial court erred in overruling his objection to evidence concerning approved driving routes by Fisher’s employer, because Fisher’s approved driving routes were immaterial, in that they did not tend to prove any element of the offense of careless and imprudent driving. In Point II, Fisher argues that the trial court erred by accepting a verdict form on which the number of the verdict director was left blank, in that it cannot be determined if the jury found the necessary elements of the offense.

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

We affirm the judgment pursuant to Rule 30.25(b).


author: NANCY STEFFEN RAHMEYER, Judge.

text:
    MISSOURI STATE CREDIT UNION, Plaintiff-Respondent, v. Danny J. WILSON and Carole J. Wilson, Defendants-Appellants.
    No. 26347.
    Missouri Court of Appeals, Southern District, Division One.
    Nov. 21, 2005.

      Tyee S. Smith, Waynesville, for Appellants.
    Duane E. Schreimann, Michael J. Schmid, Jefferson City, for Respondent.
   NANCY STEFFEN RAHMEYER, Judge.

Danny J. Wilson and Carole J. Wilson (“Defendants”) appeal a judgment entered against them on a credit card debt. In 1996, Defendants entered into an initial Open-End Loan Liner Credit Plan Agreement (“Credit Agreement”) with Missouri State Credit Union (“Credit Union”). This agreement was a master or umbrella agreement and the initial credit agreement provided that “[pjroperty given as security under this Plan or for any other loan will secure all amounts you owe the credit union now and in the future.” Subsequent to the agreement, Defendants obtained two loans. Under an Open-End Voucher and Request Agreement dated March 11, 1999, Credit Union advanced to Defendants $36,000, loan # 62613006, for purchase of a pickup truck. Defendants granted Credit Union a security interest in the pickup truck. On July 14, 1999, Defendants applied for and received from Credit Union a VISA Gold credit card.

Defendants defaulted on both loans and received two separate notices of right to cure default, one for the auto loan and one for the credit card account. Unable to cure the default, Defendants surrendered the pickup truck. The Credit Union sent a letter to Defendants after they had surrendered the truck, notifying them that they had 15 days from the date of the letter to cure the default on the delinquent auto loan and redeem the vehicle before the Credit Union sold the truck. The notice was dated December 9, 2001, and referenced only the auto loan by number. Eleven days later, the Credit Union sold the truck.

Credit Union sued Defendants in a two-count Petition: for a deficiency on the auto loan after a credit for the proceeds of the sale of the pickup truck and for the balance due on the credit card debt. The court held that, pursuant to section 400.9-614, the notice letter on the sale of the pickup truck was insufficient and, therefore, Credit Union was barred from recovering the deficiency on the auto loan; however, the trial court found Defendants liable on the credit card debt. The trial court treated the two loans separately and stated that pursuant to section 400.9-601(a)(1) a secured party “[m]ay reduce a claim to judgment, foreclose, or otherwise enforce the claim, security interest, or agricultural lien by any available judicial procedure.”

It is undisputed that the Credit Union failed to give the proper notice to Defendants regarding the sale of the truck and the finding on the deficiency judgment for the truck debt has not been challenged in this appeal. Defendants claim that the failure of the Credit Union to follow procedures in one loan affects the disposition of all loans secured by the same collateral; therefore, the question before us is whether the inadequate notice to Defendants on the debt secured by the truck forecloses collection efforts on any other debt secured by the same collateral.

Defendants contend the trial court incorrectly applied or interpreted section 400.9-615, which provides how the proceeds of a disposition of foreclosure are distributed. Defendants argue that the proceeds from the sale of the truck should have been applied to all the loans in default secured by the pickup truck; therefore, a single deficiency judgment should have been entered, which would have included the balance due on the credit card. Defendants conclude that if the balance due on the credit card were to be included in the deficiency judgment, then Credit Union would also be barred from recovering it under the “absolute bar” rule. The “absolute bar” rule prohibits a creditor from recovering a deficiency judgment after the sale of collateral on a defaulted loan where the creditor has not properly notified the debtor of the sale of the collateral. RWR, Inc. v. DFT Trucking, Inc., 899 S.W.2d 875, 878 (Mo.App. S.D.1995).

The parties agree that this is a case of first impression in Missouri as Missouri courts have not specifically addressed whether a creditor is obligated to apply proceeds from a foreclosure sale to all loans in default secured by the same collateral pursuant to a master or umbrella loan agreement. Both parties claim the resolution of the matter is governed by section 400.9-601(a), which provides in pertinent part,

(a) After default, a secured party has the rights provided in this part and, except as otherwise provided in section 400.9-602, those provided by agreements of the parties. A secured party:
(1) May reduce a claim to judgment, foreclose, or otherwise enforce the claim, security interest, or agricultural lien by any available judicial procedure;

and section 400.9-615(a), which provides in pertinent part,

(a) A secured party shall apply or pay over for application the cash proceeds of disposition under section 400.9-610 in the following order to:
(2) The satisfaction of obligations secured by the security interest or agricultural lien under which the disposition is made.

Both parties concede that the first half of the clause in section 400.9-615(a)(2) mandates that proceeds be applied to the satisfaction of obligations secured by the piece of collateral sold; however, Credit Union argues that the second half of that clause, “under which the disposition is made,” mandates that the proceeds only be applied to the loan for which the foreclosure sale occurred, whereas Defendants claim that the proceeds must be applied to any and all loans secured by collateral.

“Construction of a statute is a question of law.” Delta Air Lines, Inc. v. Director of Revenue, 908 S.W.2d 353, 355 (Mo. banc 1995). The purpose of statutory construction is to determine the legislature’s intent in enacting the statute and to give effect to that intent. State ex rel. Riordan v. Dierker, 956 S.W.2d 258, 260 (Mo. banc 1997). Statutes are read in their plain, ordinary, and usual sense. Bosworth v. Sewell, 918 S.W.2d 773, 777 (Mo. banc 1996). “To determine whether a statute is clear and unambiguous, this [Cjourt looks to whether the language is plain and clear to a person of ordinary intelligence.” Russell v. Missouri State Emples. Retirement Sys., 4 S.W.3d 554, 556 (Mo.App. W.D.1999). “The court will only look past the plain and ordinary meaning of a statute when the language is ambiguous or leads to an illogical result.” Id.

It is clear that the absolute bar rule does not affect the debtor’s liability on a debt distinct from that in connection with which the collateral was sold. McKesson Corp. v. Colman’s Grant Village, Inc., 938 S.W.2d 631, 635 (Mo.App. E.D.1997). In McKesson, the creditor, McKesson Corporation, filed an action against debtor and the guarantors of two promissory notes and an open account. Id. at 632. After selling collateral securing the two promissory notes, the McKesson Corporation sued defendants to obtain a deficiency judgment and to recover the outstanding balance on the open account. Id. On appeal, the guarantors argued that failure to give adequate notice barred the recovery of any deficiency judgment and recovery of the outstanding balance on the open account. Id. at 633. Although the court reversed the trial court’s award of a deficiency judgment on the promissory notes, the court rejected guarantors’ argument with respect to the open account debt, stating that previous cases cited by guarantors did not address the specific situation where the note and account obligations are separate. Id. at 635. The court went on to say nothing indicated that the open account was secured by the same collateral and affirmed the judgment against the guarantors on the open account debt. Id. In McKesson, the court stated that strict compliance with notice provisions is enforced because deficiency judgments after repossession of collateral are in derogation of common law because deficiency judgments were unheard of at common law. Id. at 633.

The McKesson court was not presented with facts at issue in this case where Defendants executed an umbrella credit agreement with the Credit Union and later applied for separate loans, which were secured by the same item of collateral. The Defendants defaulted within the same time period, but the notice of foreclosure sent to the Defendants referenced only the auto loan. Clearly, Credit Union could have brought suit for the deficiency judgment on the auto loan without bringing suit for the credit card debt. Credit Union could have sued for a deficiency judgment on the auto loan and subsequently brought an action on the credit card debt. It is mere coincidence that Defendants defaulted on both of the loans at the same time and Credit Union combined both actions into one suit. In other words, Credit Union had a separate remedy for each separate debt and treated the debts as separate in its notices to Defendants regarding the redemption of the pick-up. The policy of strict compliance with the notice provisions does not make sense on purchases made with a credit card where no additional collateral was provided.

We find persuasive the reasoning set forth in Knights of Columbus Credit Union v. Stock, 814 S.W.2d 427, 433 (Tex.App.1991), in which the court found that cross-collateralization does not transform three separate loans into one loan. Id. at 431-32. The debtors had executed a similar umbrella credit agreement with the credit union and later applied separately for three loans all secured by the same piece of collateral, and the debtors defaulted on all three loans. Id. at 429. The court found that notice from the credit union identified that the proceeds of the foreclosure sale applied to only one loan and could “find no UCC provision authorizing the cancellation of all contractual security interests because of a failure of notice to the debtor of proposed disposition of some collateral.” Id. at 431, 433. The court stated that its holding penalized the. creditor for failing to provide adequate notice to the debtor on the one loan and one item of collateral; however, “[i]t does not reward the defaulting debtor by providing a windfall avoidance of personal liability on all loans owed to the creditor.” Id. at 432. Likewise, in Milliorn v. Finance Plus, 973 S.W.2d 690, 693 (Tex.App.1998), the Texas court cited the decision in Knights of Columbus holding that a calculation of deficiency judgment should not include a loan which was not listed on the notice of sale of collateral.

Section 400.9-601 provides a secured creditor with options in which the creditor can proceed; specifically, section 400.9-601(a)(1) provides that after default a secured party “[m]ay reduce a claim to judgment, foreclose, or otherwise enforce the claim, security interest, or agricultural lien by any available judicial procedure.” If we were to hold that the proceeds from the disposition of collateral must be applied to all loans in default which are secured by that collateral, then secured creditors would not have the choice provided for in section 400.9-601. We hold that when there are two separate loans secured by the same collateral, the creditor may reduce a claim to judgment, foreclose, or otherwise enforce the claim, security interest, or agricultural lien by any available judicial procedure without affecting its claim in the second loan. We recognize there might have been a different result in this case had both loans been referenced in Credit Union’s notification of the right to cure the default prior to the sale of the truck, however, such is not the issue before us. The judgment is affirmed.

PREWITT, P.J., and PARRISH, J., concur.

      . The issue of whether proper attachment and perfection occurred so that the pickup truck actually cross-collateralized both loans was not before this Court. Credit Union admitted at trial that the pickup cross-collateralized both loans.

      . All references to statutes are to RSMo 2000, unless otherwise specified.


author: EDWIN H. SMITH, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Mardell Lynn JANUARY, Appellant.
    No. WD 64109.
    Missouri Court of Appeals, Western District.
    Nov. 22, 2005.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Margaret M. Johnston, Assistant State Public Defender, Columbia, MO, for Appellant.
    Before SMITH, C.J., and ULRICH and BRECKENRIDGE, JJ.
   EDWIN H. SMITH, Chief Judge.

Mardell January appeals the judgment of her convictions, after a jury trial in the Circuit Court of Ray County, of second-degree burglary, § 569.170, and stealing, § 570.030. As a result of her convictions, she was sentenced, as a prior and persistent offender, § 558.016, to concurrent prison terms of eight years in the Missouri Department of Corrections.

The appellant raises two points on appeal. In Point I, she claims that the trial court plainly erred in giving Instruction No. 9, the State’s verdict director for Count II, stealing, § 570.030, which was patterned after MAI-CR 3d 324.02.1 (6-27-03), because it failed, as required by Note on Use 5, to instruct the jury on a claim-of-right defense. In Point II, she asserts the same claim of error that she asserts in Point I, except as to the Count I offense, burglary. In addition, she claims in Point II that the trial court plainly erred in failing to give a special negative defense instruction, instructing the jury to consider whether the requisite mens rea of the offense of burglary had been negated, because there was evidence in the record, which if believed by the jury, demonstrated that the appellant did not knowingly enter unlawfully the structure from which the items of property in the underlying stealing offense were taken.

We reverse and remand for a new trial.

Facts

On November 24, 2003, the appellant was charged in the Circuit Court of Ray County, in a second-amended information, in Count I with the class C felony of burglary in the second degree, in violation of § 569.170, which reads, in pertinent part: “A person commits the crime of burglary in the second degree when he knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein.” The State alleged in Count I that on February 25, 2003, the appellant: “either acting alone or knowingly in concert with others, entered unlawfully in a building, located at 34030 West 204th Street, and owned or possessed by Missouri United Methodist Camping and Retreat Ministry, for the purpose of committing stealing therein.” In Count II, she was charged "with the class C felony of stealing, in violation of § 570.030, which reads, in pertinent part: “A person commits the crime of stealing if he or she appropriates property or services of another with the purpose to deprive him or her thereof, either without his or her consent or by means of deceit or coercion.” The State alleged in Count II that on February 25, 2003, the appellant:

either acting alone or knowingly in concert with others, appropriated three chainsaws, Coleman [a]ir compressor, Craftsman 18V cordless drill, Makita Hypoid saw, plunge router, Makita Disc grinder, and a Homelite yard sweeper vacuum, of a value of at least five hundred dollars, which property was owned by Missouri United Methodist Camping and Retreat Ministry, and [the appellant] appropriated such property without the consent of Missouri United Methodist Camping and Retreat Ministry and with the purpose to deprive them thereof.

The appellant was charged as a prior and persistent offender, pursuant to § 558.016. In that regard, the State alleged that she had been convicted previously of attempted robbery in the second degree, possession of a controlled substance, forgery twice, and attempted forgery.

On February 25, 2003, the appellant and Brad Hisek (B.Hisek), an acquaintance of hers, drove, in the appellant’s vehicle, to the ‘Wilderness Camp” (the Camp), which was owned by the United Methodist Church Camping and Retreat Ministry. B. Hisek’s father, Dennis Hisek (D.Hisek), the Camp’s executive director, resided at the Camp, which is a 320-acre facility located in a rural area of Ray County, at 34030 W. 204th Street. B. Hisek was charged in the same incident with the same offenses as the appellant. However, rather than going to trial, he pled guilty to both offenses. He testified for the State at the appellant’s trial.

B. Hisek testified that his purpose for going to the Camp on February 25, 2003, was to ask his father for the money for a bus ticket back home to San Antonio. He stated that his “fiancé was needing [him] home [San Antonio], so [he] told [himself he] was going to get there.” He asked the appellant to give him a ride to the Camp because he did not have any transportation.

When they first arrived, B. Hisek did not drive up to the actual campsite, but stopped at a bridge and walked up, leaving the appellant behind. He testified at the appellant’s trial:

Very first thing I did was I stopped at the — there’s a bridge by the camp that’s like a big old steel pipe thing. I stopped there and I toted away in the car while I walked up to the camp to see my father there. I was going to let her walk there so he wouldn’t think anything suspicious. So, I did that and I came back, and then I, I drove the car up to the camp and waited to .see if he was going to be showing.

They parked by the Camp shop, where its tools and equipment were stored.

To gain entry to the shop, B. Hisek “slid” through a “dog hole” or door. He testified that he was not in a position to see if the appellant was watching him when he entered the shop, but that she “probably” could have if she were looking while sitting in her vehicle. He testified that he did not tell her what he was going to do once inside the building, but did tell her to keep “buss,” slang for “watch out.” Once in the shop, B. Hisek gathered up three chainsaws and put them in the main tool room. At that time, he heard a car coming and the appellant stepping out of her vehicle and saying, “Someone’s coming.” He then ran outside and shut the door.

The “someone” that was coming turned out to be B. Hisek’s father, D. Hisek. He was leaving the Camp to attend a Rotary meeting and noticed a vehicle parked by the Camp’s shop. He was not expecting anyone and did not recognize the vehicle, so he drove over to the shop to investigate. As he approached, he saw a man walking toward him. At first he did not recognize the man as being his son. As the man got closer, however, he realized who it was. He was surprised to see him since B. Hisek was not allowed on Camp property, and they were not on good terms. According to D. Hisek, B. Hisek was not allowed on Camp property “[b]ecause of the problems [he and his wife had] had with him in the past and some of the things that [he’d] done.” When D. Hisek arrived, the appellant immediately got back into her vehicle and was never introduced to D. Hisek.

After exchanging brief greetings, D. Hi-sek advised B. Hisek that before he came to visit at the Camp, he had to call and make an appointment. B. Hisek testified that he told his father that he needed help and asked him for money to purchase a bus ticket to return to San Antonio. D. Hisek told him, “No, son. I’ve got to go.” D. Hisek further advised B. Hisek that he would have to leave. D. Hisek waited and followed B. Hisek and the appellant out of the Camp to make sure that they left. B. Hisek was driving. After leaving the Camp, D. Hisek went in one direction while B. Hisek and the appellant went in another. Within minutes, however, B. Hi-sek and the appellant headed back to the Camp. B. Hisek told appellant that he was angry with his father because he did not have time to talk to him. He told her, “I’m going to go.” He testified that: “I already had all the tools and everything inside the sectioned part of the shop ready to go by the air compressor. And I said, ‘We’re going to go back and pick it up.’ ” B. Hisek testified that he would not have stolen the items if his father had agreed to finance his bus ticket back to San Antonio.

After arriving back at the Camp, B. Hisek pulled up to the shop and opened the hatchback on the appellant’s car. He and the appellant then entered the shop and removed three chainsaws, an air compressor, a cordless drill, a saw, a plunge router, a grinder, and a lawn vacuum. They ran into the shop and ran back out, putting the items in the appellant’s vehicle, “real fast.” The appellant helped B. Hisek carry out the stolen items and load them into her car. Although B. Hisek testified that he told the appellant that the items were his, he assumed that she knew they were not because she knew of his criminal record and that he was angry with his father.

After leaving the Camp, B. Hisek and the appellant drove to Excelsior Springs, where they stopped at a pawnshop for the appellant to pawn the grinder for $10. Pete Quinn, the proprietor of the pawnshop refused the other property. The only reason why Quinn took the grinder in pawn was because B. Hisek convinced him he needed gas money to get back to Kansas City. Because B. Hisek did not have any acceptable identification, the appellant gave Quinn her driver’s license to complete the transaction.

After getting gas, B. Hisek and the appellant drove to Kansas City, where they found a pawnshop to pawn the three chainsaws for approximately $100. Once again, the appellant provided the necessary identification to complete the transaction and signed the pawn ticket. As to the lawn vacuum and cordless drill, the appellant later sold them to an acquaintance in exchange for drugs.

Upon returning to Camp from his Rotary meeting, D. Hisek spoke to the maintenance man, Steve Bales. He told him that B. Hisek had been there and that he should check to make sure nothing was missing from the shop. Shortly thereafter, Bales called D. Hisek and reported that three chainsaws, a leaf blower, a Mak-ita grinder, a cordless drill, a small Skil saw, a 27-gallon Coleman air compressor, and a router were missing. The three chainsaws were valued at $1200 to $1500, the air compressor at $400, the cordless drill at $150, and the leaf blower at $100.

D. Hisek and Bales contacted several pawnshops in the area, including the pawnshop in Excelsior Springs where B. Hisek had pawned the grinder for $10. In a conversation with Quinn, the proprietor, D. Hisek learned that the appellant and a “black man” had recently been in the shop, and had pawned the grinder and had attempted to pawn other items of property described as being stolen from the Camp. B. Hisek is an African American. D. Hi-sek called the Ray County Sheriffs Department and reported the thefts. Within a few days, D. Hisek accompanied Deputy John Davis of the Ray County Sheriffs Department to various pawnshops in Excelsior Springs and Kansas City, where they recovered the grinder and three chainsaws, which were returned to the Camp. The rest of the items that were stolen were never recovered.

The appellant’s case proceeded to a two-day jury trial, commencing on January 21, 2004. The appellant presented testimony from Stephen Ray Murphy, who was an inmate in the Carroll County jail where B. Hisek was awaiting trial. Murphy testified that B. Hisek told him about his case and how he stole from his father. He also told him that the appellant had helped him take the items, but that he had told her that the property was his. Murphy also testified that B. Hisek told him that a day or two after taking the property from the Camp, he stole the appellant’s car, checkbook, and credit cards, resulting in his being charged in Kansas. Murphy testified that B. Hisek told him that because he was angry at the appellant for reporting his stealing from her, resulting in his being charged in Kansas, he told the authorities that the appellant was a knowing and willing participant in the theft and burglary at the Camp.

At the instruction conference, at the close of all the evidence, the State submitted its verdict director for Count II, stealing, Instruction No. 9, "which was patterned after MAI-CR 3d 324.02.1. The appellant objected to the trial court’s giving this instruction on the basis that it did not require the jury to find a culpable mental state. The objection was overruled. The State also submitted its verdict director for Count I, second-degree burglary, Instruction No. 7, which was patterned after MAI-CR 3d 323.54, which was the verdict director for Count I, second-degree burglary. The appellant did not object to the giving of that instruction.

On January 22, 2004, the jury returned guilty verdicts on both counts. The appellant did not file a motion for new trial. The trial court, having previously found the appellant to be a prior and persistent offender, as charged, sentenced her to concurrent prison terms, in the Missouri Department of Corrections, of eight years on Count I for second-degree robbery and eight years on Count II for stealing.

This appeal follows.

Standard of Review

The appellant concedes that she did not properly preserve, for appellate review, her claims of instructional error in Points I and II, as to Instruction No. 9 in Point I and Instruction No. 7 in Point II, in that she failed to object to the trial court’s giving those instructions, and she failed to present these claims in a motion for new trial. See Rule 28.03; State v. Smith, 154 S.W.3d 461, 464 (Mo.App.2005). She, therefore, requests plain error review, pursuant to Rule 30.20.

Rule 30.20 provides, in pertinent part, that “[w]hether briefed or not, plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or a miscarriage of justice has resulted therefrom.” The plain error rule should be used sparingly and does not justify a review of every alleged trial error that has not been properly preserved for appellate review. State v. Carr, 50 S.W.3d 848, 853 (Mo.App.2001). In determining whether to exercise its discretion to provide plain error review, the appellate court looks to determine whether on the face of the appellant’s claim substantial grounds exist for believing that the trial court committed clear and obvious error, which resulted in manifest injustice or a miscarriage of justice. State v. Dudley, 51 S.W.3d 44, 53 (Mo.App.2001). “Plain” error, for purposes of Rule 30.20, is error that is evident, obvious, and clear, and results in manifest injustice or a miscarriage of justice. State v. Hibler, 21 S.W.3d 87, 96 (Mo.App.2000).

If the appellate court chooses to exercise its discretion to conduct plain error review, the process involves two steps. First, the court must determine whether the trial court committed error, affecting substantial rights, that was evident, obvious and clear. Id. As in the case of our review for “regular” error, not every obvious error found in plain error review mandates reversal. State v. Barnaby, 91 S.W.3d 221, 225 (Mo.App.2002). In the case of review for “regular” error, to be reversible, the error found must have prejudiced the appellant. State v. Taylor, 67 S.W.3d 713, 715 (Mo.App.2002). Likewise, in the case of review for plain error, the error found must have prejudiced the appellant, except that such prejudice must rise to the level of manifest injustice or a miscarriage of justice. State v. Cole, 71 S.W.3d 163, 170 (Mo. banc 2002). Thus, even if obvious and clear error is found in the first step of the review, the second step of plain error review requires the court to determine whether manifest injustice or a miscarriage of justice resulted therefrom. Hibler, 21 S.W.3d at 96.

I.

In Point I, the appellant claims that the trial court plainly erred in giving Instruction No. 9, the State’s verdict director for Count II, stealing, § 570.030, which was patterned after the applicable MAI-CR, MAI-CR 3d 324.02.1, because it failed, as required by Note on Use 5, to instruct the jury on a claim-of-right defense, as provided in § 570.070, based on the appellant’s contention that there was evidence adduced at trial sufficient to inject the issue. Specifically, she claims that she carried her burden of injecting the issue of a claim-of-right defense, requiring the jury to be instructed on that issue in that there was evidence adduced at trial, which if believed by the jury, demonstrated that she had an honest belief that she had a right to appropriate or take the allegedly stolen property. We agree.

To succeed on her claim of instructional plain error in this point, the appellant has the burden of proving not only that Instruction No. 9 was clearly and obviously in error for failing to instruct on the issue of a claim-of-right defense, but that the error resulted in manifest injustice or a miscarriage of justice. Id. Instructional error, even if clear’ and obvious, is rarely found to result in manifest injustice or a miscarriage of justice, requiring reversal for plain error. State v. Roe, 6 S.W.3d 411, 415 (Mo.App.1999). Instructional plain error requires reversal only where the trial court has so misdirected or failed to instruct the jury that it is readily apparent to the appellate court that it affected the jury’s verdict. State v. Deck, 994 S.W.2d 527, 540 (Mo. banc 1999).

When addressing alleged instructional error in a criminal case, we begin with the proposition that if there is an MAI-CR instruction made applicable by the law or the Notes on Use, the trial court is required to instruct the jury in accordance with that instruction. Rule 28.02(c). The failure to give an instruction in accordance with the applicable MAI-CR or Notes on Use is error, the prejudicial effect to be judicially determined. Rule 28.02(f).

Here, the appellant was charged, in Count II, with the class C offense of stealing, in violation of § 570.030. Note on Use 1 of MAI-CR 3d 324.02.1 provides that this instruction is the mandatory MAI-CR for that offense. Note on Use 5 of that instruction requires, if supported by the evidence, that a paragraph be added to the instruction, as paragraph fourth, instructing the jury on the claim-of-right defense, found in § 570.070. Section 570.070 reads, in pertinent part:

1. A person does not commit an offense under section 570.030 if, at the time of the appropriation, he
(1) Acted in the honest belief that he had the right to do so; or
(2) Acted in the honest belief that the owner, if present, would have consented to the appropriation.

The optional claim-of-right-defense paragraph of the instruction, as provided in Note on Use 5 of MAI-CR 3d 324.02.1, reads:

Fourth, that defendant did not honestly believe [Insert one or both of the following. Omit brackets and number.]
[1] that he had a right to (take) (obtain) (use) (transfer) (conceal) (retain) such (property) (services) (,) (, or)
[2] that ([name of owner]) (the owner), if present, would have consented to the (taking) (obtaining) (using) (transferring) (concealing) of such (property) (services)[.]

Section 570.070.2 provides that defendant shall have the “burden of injecting the issue” of claim-of-right defense. The “burden of injecting the issue” in § 570.070.2 means that the issue Of the claim-of-right defense of § 570.070 will be submitted to the trier of fact if supported by the evidence. § 556.051(1); State v. Quisenberry, 639 S.W.2d 579, 583 (Mo. banc 1982).

The appellant contends that she introduced sufficient evidence on the issue of a claim-of-right defense, requiring the trial court, in accordance with Note on Use 5 of MAI-CR 3d 324.02.1, to instruct the jury on that issue, such that, in order to convict her of stealing, as charged, the State should have had the burden of proving at trial that she did not have an honest belief that she had a right to take the alleged stolen property. The State contends that the appellant did not carry her burden of injecting the issue of the claim-of-right defense such that the trial court did not err, plain or otherwise, in failing to instruct on that issue. We disagree.

Since the burden of injecting the issue of the appellant’s claim-of-right defense was on her, in accordance with § 570.070.2, .the trial court was not required to instruct the jury on that issue, unless it was supported by the evidence. § 556.051(1); Quisenberry, 639 S.W.2d at 583. Pursuant to § 570.070, to inject the issue of a claim-of-right defense, the appellant had the burden of adducing evidence that would demonstrate that she had an honest belief that she had a right to take the property that was allegedly stolen. Quisenberry, 639 S.W.2d at 583; State v. Smith, 684 S.W.2d 576, 580 (Mo.App.1984). In that regard, the defendant must adduce evidence “from which in the context of the entire case, the honesty of his belief can reasonably be inferred.” Smith, 684 S.W.2d at 580. In the absence of any evidence from which it can reasonably be inferred that the property in question was taken under a claim of right, the trial court does not err in not instructing on that issue. Quisenberry, 639 S.W.2d at 583. Likewise, the trial court does not err in not instructing on the claim-of-right defense if the only evidence supporting its submission is the testimony of the defendant concerning his subjective belief as to his right to take the property in question. Id.

In contending that the appellant did not inject the issue of a claim-of-right defense, requiring the trial court to instruct the jury on that issue, the State is essentially arguing that the trial court could consider its evidence of alleged facts that demonstrated that the appellant did not have an honest belief that she had a right to take the property in question. In other words, the State is contending that the trial court was not required to view the evidence in a light most favorable to the appellant in determining whether she had properly injected the issue of the claim-of-right defense, but could consider facts that were in dispute. Of course, this would require the trial court to assume the traditional role of the jury of determining disputed facts, including making credibility calls. Logically, weighing the competing evidence as to the issue of whether the appellant had an honest belief that she had a right to take the alleged stolen property would be for the jury in determining the ultimate issue of the claim-of-right defense, once instructed upon.

The State’s approach, having the trial court determine and weigh the facts in deciding whether to instruct on a claim-of-right defense, ignores the general distinction between the burden of injecting an issue and the burden of proving an issue. For example, in determining whether a defendant has carried his burden of injecting the issue of self-defense, in accordance with § 563.031.4, it is well settled that the evidence must be viewed in a light most favorable to the defendant. Vogel v. State, 31 S.W.3d 130, 141 (Mo.App.2000). Logically, the same standard would apply in any case involving the “burden of injecting the issue”; otherwise, despite the definition of that concept applying equally throughout the criminal code, pursuant to § 556.051, its actual application would be different from case to case.

The Vogel standard, viewing the evidence in a light most favorable to the defendant in determining whether he has carried his burden of injecting an issue in a case, is consistent with § 570.070 and Note on Use 5 of MAI-CR 3d 324.02.1, both of which only require the introduction of evidence of an honest belief. It is also consistent with the cases holding that the evidence must be more than a mere assertion of the defendant’s subjective belief, as to his right to take the alleged stolen property, to warrant an instruction on a claim-of-right defense.

In support of its contention that the appellant did not inject the issue of a claim-of-right defense, the State cites three cases, Quisenberry, 639 S.W.2d at 582-83; State v. Hontz, 655 S.W.2d 590, 592 (Mo.App.1983); State v. Kramer, 809 S.W.2d 50, 52 (Mo.App.1991), for the proposition that where a defendant asserts he or she had an honest belief, and that assertion flies in the face of the surrounding facts of the taking, the trial court does not err in failing to instruct on a claim-of-right defense. However, none of the cases the State cites stand for that proposition.

In Quisenberry, the Court explained that the claim-of-right instruction had to be instructed upon if supported by evidence and held that the trial court was correct in omitting the claim-of-right instruction because neither the defendant nor the State presented any evidence to support it. 639 S.W.2d at 583. As to the other two cases cited by the State, the appellate courts upheld the trial court’s rejection of the defendants’ requests for claim-of-right instructions because they were supported solely by the defendants’ own subjective statements, “without confirmation from attendant facts and circumstances lending ‘color’ to the claim.” Hontz, 655 S.W.2d at 592. Hence, none of the cases cited by the State stand for the proposition that in determining whether the defendant has carried his burden of injecting the issue of a claim-of-right defense, the trial court is to consider and weigh all the evidence in the record. Taken together, the holdings of the cases cited suggest only that to inject the issue of a claim-of-right defense, there must be evidence in the record, which if believed by the jury, supports the fact that the defendant had an honest belief he had a right to take the property in question and that the issue is not injected if the only evidence is the defendant’s uncorroborated “subjective conclusion” that he had such a belief. Quisenberry, 639 S.W.2d at 582-83; Hontz, 655 S.W.2d at 592-93; Kramer, 809 S.W.2d at 52.

Accepting the fact that, in determining whether the evidence was sufficient to satisfy the appellant’s burden of injecting the issue of a claim-of-right defense, we are to view the evidence in a light most favorable to the appellant, the issue then becomes in this case whether there was sufficient evidence adduced at trial from which the jury could have reasonably inferred that the appellant had an honest belief of her right to take the Camp’s property, which the State alleged she stole, along with B. Hisek. In contending that the evidence was sufficient to require the trial court to instruct the jury, in the State’s verdict director for stealing, Instruction No. 9, on a claim-of-right defense, the appellant points to the testimony of B. Hisek and Murphy. In that regard, Murphy testified that B. Hisek had advised him that he had told the appellant that they were at the Camp to retrieve items of property that belonged to him. B. Hisek admitted at trial, under questioning by both the State and defense, that he had told the appellant that the items of property that were stolen were his. Murphy also testified that B. Hisek had told him that he implicated the appellant in the burglary and theft from the Camp to get even with her for reporting to the police that he had stolen from her. This evidence alone was sufficient for the jury to infer, if believed, that she had an honest belief that she had a right to take the alleged items of stolen property from the Camp. As such, the trial court was obligated to instruct the jury in Instruction No. 9 on the issue of a claim-of-right defense.

Although required, the State’s verdict director for stealing faded to instruct the jury on the issue of the appellant’s claim-of-right defense, by adding the mandated language of MAI-CR 3d 324.02.1, as paragraph fourth. The appellant did not object to the giving of Instruction No. 9 for the failure to instruct on the issue of her claim-of-right defense. The appellant’s failure to object to the giving of Instruction No. 9, without the mandated claim-of-right-defense language of MAI-CR 3d 324.02.1, however, did not waive plain error review. This is so in that it is well settled that: “Even if no objection is made, the failure to instruct upon a defense supported by the evidence is plain error affecting substantial rights.” State v. Westfall, 75 S.W.3d 278, 281 (Mo. banc 2002) (emphasis added). In fact, “once [the defendant] injected self-defense into the case, the trial court was required to instruct on self-defense, even in the absence of a request for such an instruction, and even if such an instruction was offered but not in proper form. Id. at 281 n. 9 (emphasis added).

In State v. Westfall, the defendant had the “burden of injecting the issue” of self-defense in the case, just as the appellant had the “burden of injecting the issue” of the claim-of-right defense in this case. This court, relying on the law of State v. Westfall, held in State v. Beck, 167 S.W.3d 767, 777 (Mo.App.2005), that there is no waiver of plain error even where the defendant requested the instruction at trial that he challenges on appeal. In State v. Beck, the defendant had the “burden of injecting the issue” of self-defense in the case. The claim-of-right defense, like self-defense, is a special negative defense. Quisenberry, 639 S.W.2d at 583 n. 8. Logically then, the rule of Westfall and Beck would apply equally to the special negative defenses of self-defense and the claim-of-right defense. Hence, in this case, the fact that the appellant did not object to Instruction No. 9, for failure to instruct on the special negative defense on which she was relying for acquittal, a claim-of-right defense, does not mean she waived plain error review. Thus, the question becomes whether the trial court’s failure to instruct on a claim-of-right defense, in Instruction No. 9, resulted in manifest injustice or a miscarriage of justice to the appellant.

As noted, supra, to demonstrate manifest injustice or a miscarriage of justice as to her claim of instructional plain error in this point, the appellant must show that the jury was so confused or misdirected by the failure of the trial court to instruct it on the issue of a claim-of-right defense that its verdict would have been different. In that regard, she contends that because the trial court failed to instruct in Instruction No. 9 on the issue of a claim-of-right defense, as mandated, the jury was misdirected as to what the State had to prove in order to convict her of stealing, mandating reversal of her conviction. Specifically, she contends that the jury was not instructed on the contested negative-defense-proof element of the State’s case — that she did not have an honest belief that she had a right to take the alleged stolen items of property — and as such the jury was misdirected as to what the State had to prove to convict. We agree.

A “verdict-directing instruction must contain each element of the offense charged and must require the jury to find every fact necessary to constitute essential elements of [the] offense charged.” State v. Doolittle, 896 S.W.2d 27, 30 (Mo. banc 1995). Thus, as a general rule, an instructional error that results in the State being relieved of proving a disputed element of its case is plain error, requiring reversal. Id.; State v. White, 92 S.W.3d 183, 192-93 (Mo.App.2002). Otherwise, in violation of due process, the State could obtain a conviction without the jury deliberating on and determining a contested proof element.

Once the issue of the claim-of-right defense is injected in the case, as here, the State has the additional burden of proving, beyond a reasonable doubt, that the appellant, in taking the items from the Camp, was not acting with an honest belief that they belonged to B. Hisek. § 556.051.2; Note on Use 5 of MAI-CR 3d 324.02.1; State v. Davis, 71 S.W.3d 659, 665 (Mo.App.2002). Thus, in such cases, in addition to proving the standard elements of the offense itself, the State has the burden of proving the special-negative-defense-proof element, concerning a claim-of-right defense. Logically then, the requirement of State v. Doolittle, that a “verdict-directing instruction must contain each element of the offense charged and must require the jury to find every fact necessary to constitute essential elements of [the] offense charged,” 896 S.W.2d at 30, would apply equally to the special-negative-defense-proof element, as to a claim-of-right defense properly injected in the case.

As a general proposition:

[a]n appellate court will be more inclined to reverse in cases where the erroneous instruction ‘did not merely allow a wrong word or some other ambiguity to exist, [but] excused the State from its burden of proof on [a] contested element of the crime.’ Additionally, this court has previously held that where a verdict director effectively omits an essential element of the offense, such an instruction rises to the level of plain error if the evidence in the case fails to establish the existence of the omitted element ‘beyond serious dispute.’

State v. Harney, 51 S.W.3d 519, 533-34 (Mo.App.2001). This general proposition, as to the failure to instruct on the proof elements of the actual offense, has been applied to the failure to instruct on a special negative defense. In State v. Westfall, discussed, supra, the Supreme Court held that the failure to instruct upon self-defense was plain error affecting substantial rights, requiring reversal. 75 S.W.3d 278, 281 (Mo. banc 2002). Likewise, in State v. Reynolds, 72 S.W.3d 301, 305-06 (Mo.App.2002), the court, quoting State v. Morrow, 41 S.W.3d 56, 59 (Mo.App.2001), held that: “Manifest injustice results when a defendant meets his burden of injecting the issue of self-defense into the case but the trial court does not submit an instruction on the issue to the jury regardless of whether the defendant requests the instruction.” Logically, this same reasoning would apply to the special negative defense of a claim-of-right defense such that if the issue of whether the appellant had an honest belief that she had a right to help B. Hisek take the stolen items from the Camp was in serious dispute at trial, then the trial court committed reversible plain error in failing to instruct on that defense.

There is no question from the record that the issue of whether the appellant took the alleged stolen items of property with an honest belief that she had a right to do so was in dispute, requiring the trial court to instruct the jury, in the State’s stealing verdict director, Instruction No. 9, on a claim-of-right defense. Instruction No. 9 reads:

As to Count II, if you find and believe from the evidence beyond a reasonable doubt:
First, that on or about February 25, 2003, in the County of Ray, State of Missouri, the defendant Mardell Lynn January took three chainsaws, a Coleman Air compressor, a Craftsman 18V cordless drill, a Makita Hypoid saw, a plunge router, a Makita Disc grinder, and a Homelite yard sweeper vacuum, property owned by Missouri United Methodist Camping and Retreat Ministry, and
Second, that defendant did so without the consent of Missouri United Methodist Camping and Retreat Ministry, and
Third, that defendant did so for the purpose of using or disposing of it in such a way that made recovery by the owner unlikely, and
Fourth, that the property so taken had a combined value of at least five hundred dollars,
then you will find the defendant guilty under Count II of stealing.
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant Mardell Lynn January not guilty of that offense.

The instruction, obviously, fails to instruct on the issue of a claim-of-right defense. And, there is nothing in the instruction or record to suggest that the jury, absent a written instruction on that issue, would have otherwise considered, in returning its guilty verdicts, whether the State had carried its burden of proving, beyond a reasonable doubt, that the appellant did not have an honest belief that she had a right to take the alleged stolen items of property, such that the State, in violation of due process, was allowed to convict the appellant of stealing, without being required to prove an essential element of that offense. This alone is sufficient for us to find manifest injustice and a miscarriage of justice in order to reverse the appellant’s conviction for stealing for instructional plain error. Accordingly, we must reverse.

In holding as we do, we are cognizant of the fact that there are numerous facts in the record that could likely persuade a jury that the appellant, in taking the items from the Camp, was not acting with an honest belief that they belonged to B. Hi-sek. However, that is an issue for the jury. The question here was whether we could be assured, in ensuring the appellant the requisite right to due process, that the jury was hot misled or confused by the trial court’s instructions, specifically Instruction No. 9, as to its sworn duty, in order to convict her as charged, with stealing, to consider and find that the State had carried its burden of proving, beyond a reasonable doubt, that in taking the stolen items from the Camp, she was not acting with an honest belief that they belonged to B. Hisek.

Reversal for instructional plain error requires a remand for a new trial. White, 92 S.W.3d at 193. And, inasmuch as the appellant’s conviction for burglary in Count I was predicated on her conviction for stealing in Count II, in reversing her stealing conviction and remanding for a new trial on the stealing offense, we necessarily must reverse her conviction for burglary and remand for a new trial, Quisenberry, 639 S.W.2d at 582 n. 2, rendering moot the appellant’s Point II, in which she attacks her burglary conviction on the same basis that she attacked her stealing conviction in Point I, such that we need not address it.

Conclusion

The judgment of the circuit court convicting the appellant of burglary, Count I, and stealing, Count II, is reversed, and the case remanded to the court for a new trial in accordance with this opinion.

ULRICH and BRECKENRIDGE, JJ., concur.

      . All statutory references Eire to RSMo 2000, unless otherwise indicated.

      . All rule references are to the Missouri Rules of Criminal Procedure, 2004, unless otherwise indicated.

      . There are two situations under § 570.070 that indicate a claim-of-right defense is appropriate. The appellant is claiming that she alleged circumstances that allowed her to use the claim-of-right defense outlined in § 570.070.1(1), where a defendant has a claim-of-right defense if he or she "[a]cted in the honest belief that he [or she] had a right to [appropriate the property of another.]”

      . A special negative defense is a defense:
      (1) upon which the defendant does not carry the burden of proof, (2) supported by enough evidence arising during the whole case to raise a reasonable doubt of defendant’s guilt, and (3) which presents a positive fact or set of circumstances, as distinguished from a bare denial or converse, which, if found, would negate one or more essential elements of an offense, or which would, if found, constitute a legal defense.

        State v. Davis, 71 S.W.3d 659, 665 (Mo.App.2002).