author: JOHN E. PARRISH, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jibril Bin-Amir WALTON, Defendant-Appellant.
    No. 26038.
    Missouri Court of Appeals, Southern District, Division Two.
    June 23, 2005.

      Ellen H. Flottman, Columbia, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Adriane Dixon Crouse, Asst. Atty. Gen., Jefferson City, for Respondent.
   JOHN E. PARRISH, Presiding Judge.

Jibril B. Walton (defendant) was convicted, following a jury trial, of involuntary manslaughter in the first degree (Count I), § 565.024.1(1), and armed criminal action (Count II), § 571.015.1. He was charged as, found to be, and sentenced as a persistent offender. See § 558.016. This court affirms the judgment of conviction in Counts I and II and the sentence in Count I. The sentence in Count II is reversed and the case remanded for resentencing as to the offense of armed criminal action in conformity with the opinion that follows.

The charge of involuntary manslaughter in the first degree of which defendant was convicted was a lesser-included offense of second-degree murder. Defendant was found guilty of having recklessly caused the death of Billy Junior Jones (victim) on August 18, 2002, in Cape Girardeau County, Missouri. The case was tried in Butler County after change of venue.

Defendant had a confrontation in March 2002 with victim’s cousin, Dennis Williams, and Williams’ friend, Jimmy Walker. Defendant was in an apartment when Williams and Walker kicked in the apartment door. Defendant explained:

[Walker] put a .44 magnum to my head and makes me get on my knees and I got on my knees and I’m trying to talk to him, but then he is getting agitated so I just got quiet and he told me to reach, give, get my money.... So I reached to get my money and it was in my wallet and I was reaching in my pocket and he said, “Quit moving so fast,” which I wasn’t and he was shaking and I thought he was going to shoot me and, huh, I finally got my wallet put on the table and then [Williams] comes out the room and says, “That’s not him, that’s the wrong person.” And, huh, they leave and, huh, I wait—

Defendant did not report the incident to the police. He explained Williams and Walker threatened to kill him and his girlfriend if he reported the incident to the police.

In the early morning hours on August 18, 2002, defendant confronted Williams and tried to fight him. Defendant told the court and jury that Williams backed away; that victim stepped between them and said no one was going to jump his cousin. The police arrived and told everyone to leave. Defendant left and went to a hangout on Jefferson Street. Dartanyus Harris, a friend of victim, was there. Victim and Williams arrived a short time later. Defendant argued with Harris, victim, and Williams, then everyone left. Harris got in victim’s car and rode around. Defendant went home.

Later that morning, defendant left his house and picked up some friends. Defendant took a gun with him. They went to Indian Park in Cape Girardeau to a basketball tournament. Defendant stayed at the park for a while. Defendant’s friends took his car. Later, they returned and picked him up.

Defendant saw victim and Williams in a car. He was driving behind them. Defendant told the court and jury:

I was flagging them, you know, it was, it started drizzling not too long after that, I hit the lights and kept flicking the lights and they didn’t pull over. I honked the horn and they didn’t pull over and I pulled into a gas station ... and I hit the lights and at the stop sign I’m parked like this and they are like this and hit the lights and they still didn’t pull over.

Defendant continued following the car. He passed them, then decided he could not make them stop; .that he would talk to them another time. Defendant drove toward his home. The other car passed him. After the car passed, defendant saw it park. Defendant put his gun on his lap, then parked his car near the other car.

Defendant testified that after attempts at conversation with the people in the other car, Harris reached in the floorboard. Defendant fired his weapon “five dr six” times as Harris was “coming up.” Defendant “sped off.” Defendant handed the gun to his passenger. The passenger threw the gun out of the car into a sewer drain. Defendant went home. Later, at a friend’s house, defendant took shell casings that had been ejected inside his car and threw them in a trash dumpster. Victim was wounded when defendant fired into the car. Harris drove him to a hospital. Victim was pronounced dead 12 hours after arriving at the hospital.

Dr. RusseE Deidiker, a pathologist at Mineral Area Hospital in Farmington, Missouri, performed an autopsy on victim. He found three gunshot wounds to victim. One to the mid-back, one “to the right of the back of the left shoulder,” and one “below the -back of the left arm.” Dr. Deidiker testified that victim “died of gunshot wound to the chest.”

Defendant moved for acquittal at the close of the state’s evidence and at the close of all evidence. The motions were overruled. Following trial, defendant filed a “Motion for Judgment of Acquittal or, in the Alternative, for a New Trial.” It included aUegations that the trial court erred in overruling defendant’s motions for acquittal at the close of the state’s evidence and at the close of all evidence. The motion was denied.

Defendant’s first point on appeal asserts the trial court erred in denying the motions for acquittal and in entering judgment on the verdict of guüty of armed criminal action “in that the mental state of recklessness does not support a charge of armed criminal action.” Defendant argues that the offense of armed criminal action requires a mental state of either purposeful or knowing conduct; that a finding that defendant recklessly shot victim does not satisfy that requirement.

This issue was resolved contrary to defendant’s claim of error in State v. Belton, 153 S.W.3d 307, 310 (Mo. banc 2005). Belton held:

Because section 571.015 [RSMo 1994] specifically provides that it is appEcable to “any felony” committed with a deadly weapon, the culpable mental state of the underlying felony is irrelevant. This conclusion is consistent with section 562.026(2), RSMo Supp.1999, which provides that no culpable mental state is to be imputed to an offense if imputation is clearly inconsistent with the purpose of the statute defining the offense or may lead to an absurd or unjust result. As a result, the culpable mental state of purposely or knowingly as imputed to armed criminal action applies only to the use of the weapon and not to the underlying felony.[]

Id. at 310. Point I is denied.

Point II alleges instructional error. Defendant argues that “[t]he trial court erred in including ‘initial aggressor’ language in Instruction Number 5, the Use of Force in Self-Defense instruction over defense counsel’s objection” because “there was no evidence to support that [defendant] was the initial aggressor and the instruction therefore misled the jury.”

Instruction No. 5 is patterned after MAI-CR3d 306.06. The instruction, as given by the trial court, states:

One of the issues in this case is whether the use of force by the defendant against [victim] was in self-defense. In this state the use of force including the use of deadly force to protect oneself from harm is lawful in certain situations.
A person can lawfully use force to protect himself against an unlawful attack. However, an initial aggressor, that is, one who first attacks another, is not justified in using force to protect himself from the counter-attack that he provoked.
In order for a person to use force in self-defense he must reasonably believe he is in imminent danger of harm from the other person. He need not be in actual danger. If he has such a belief, he is then permitted to use that amount of force that he reasonably believes to be necessary to protect himself.
But a person is not permitted to use deadly force, that is, force that he knows will create a substantial risk of causing death or serious physical injury, unless he reasonably believes he is in imminent danger of death or serious physical injury. And even then, a person may use deadly force only if he reasonably believes the use of such force is necessary to protect himself.
As used in this instruction, the term “reasonable belief’ means a belief based on reasonable grounds, that is, grounds that could lead a reasonable person in the same situation to the same belief. This depends upon how the facts reasonably appeared. It does not depend upon whether the belief turned out to be true or false.
On the issue of self-defense in this case, you are instructed as follows:
If the defendant was not the initial aggressor in the encounter with [victim] and/or Dartanyus C. Harris, and if the defendant reasonably believed that he was in imminent danger of death or serious physical injury from the acts of [victim] and/or Dartanyus C. Harris and he reasonably believed that the use of deadly force was necessary to defend himself, then he acted in lawful self-defense.
The state has the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense. Unless you find beyond a reasonable doubt that the defendant did not act in lawful self-defense, you must find the defendant not guilty.
As used in this instruction, the term “serious physical injury” means physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body.
Evidence has been introduced that [victim] and Dartanyus C. Harris had reputations for being armed and violent, and that the defendant was aware of those reputations. You must consider this evidence in determining whether the defendant reasonably believed he was in imminent danger of harm from [victim] and/or Dartanyus C. Harris.
Evidence has been introduced of the prior relationship between defendant and [victim], and the prior relationship between defendant and Dartanyus C. Harris, including evidence of arguments. You may consider this evidence in determining who was the initial aggressor in the encounter and you may also consider it in determining whether the defendant reasonably believed he was in imminent danger of harm from [victim] and/or Dartanyus C. Harris.
If any threats against defendant were made by [victim] and/or Dartanyus C. Harris and were known by or had been communicated to the defendant, you may consider this evidence in determining whether the defendant reasonably believed he was in imminent danger of harm from [victim] and/or Dartanyus C. Harris.
You, however, should consider all of the evidence in the case in determining whether the defendant acted in lawful self-defense.

(Emphasis added.)

The italicized language in Instruction No. 5 is the “initial aggressor language” that is the subject of defendant’s Point II. Notes on Use 4(a), 5(a), and 7 to MAI-CR3d 306.06 state that the “initial aggressor language” is to be used when there is evidence that a defendant was the initial aggressor. “An initial aggressor is one who first attacks or threatens to attack another.” State v. Hughes, 84 S.W.3d 176, 179 (Mo.App.2002). The state need not present undisputed evidence that defendant was an initial aggressor in order to submit the issue to the jury. Conflicting evidence as to who was the initial aggressor presents an issue of fact for the jury to decide. Id.

There was evidence that defendant was angry about the armed robbery incident that occurred in March 2002 when victim’s cousin attempted to rob defendant; that victim had been prepared to protect the cousin when the cousin was confronted by defendant. At the time of the shooting that resulted in victim’s death, defendant placed a gun in his lap before driving alongside the car in which victim and his friends were sitting. Although defendant described victim’s movement in the car which he found threatening, there was other evidence from which the jury could find defendant’s expressed belief that he was in danger of attack was not reasonable; that, therefore, defendant was the aggressor in the incident that led to victim’s death. Compare State v. White, 738 S.W.2d 590, 593 (Mo.App.1987). Conflicting evidence as to who was the initial aggressor presents a question of fact for the jury to decide. Hughes, 84 S.W.3d at 179. Point II is denied.

Defendant testified at trial. Point III is directed to questions the trial court permitted the prosecuting attorney to ask defendant on cross-examination. Defendant was asked about loaning his gun to a friend who used it to commit a robbery. Point III contends the trial court erred in overruling defendant’s trial attorney’s objection to questions concerning defendant’s gun being loaned to someone else. Defendant argues that the questions by the prosecuting attorney created the impression defendant was a violent person; that this resulted in “inadmissible character and propensity evidence.”

On direct examination, defendant’s trial attorney asked defendant about owning a gun. Defendant said he purchased the gun for protection after the March 2002 robbery incident. Defendant purchased the gun in question in July 2002, “roughly a month before the shooting.” Defendant said he purchased the gun “to have a way or protecting [him]self.”

The following questions were asked on cross-examination by the prosecuting attorney and defendant gave the following answers.

Q. Now, you just testified under oath that you got that gun for your protection.
A. Yes, I did.
Q. Are you telling this jury that’s the only reason you got that gun was for your protection?
A. Yes.
Q. You never loaned that gun out for anybody to go do a robbery?
A. I didn’t loan it out for a robbery.
Q. You loaned it to Cornelius Johnson and Trey Alexander, your backseat passenger, and they went and did a robbery, didn’t they?
A. I gave it to Cornelius because of all this going on and he was in danger also. He went against — that was bad judgment and I shouldn’t have gave it to him, but he did that on his own and I told him before I gave him the gun, I said, “Don’t do anything stupid.”
Q. And he went and shot somebody, didn’t he?
A. Yes, he did.
Q. And then he came back—

Defendant’s trial attorney requested a bench conference at that point. He objected to the relevancy of the questions. He complained that the questions were “strictly prejudicial and no probative value to this particular incident.”

The trial judge told defendant’s trial attorney that he brought the matter up on his direct examination of defendant. The trial judge permitted the inquiry to continue, after which the prosecuting attorney inquired of defendant how long he had been without the gun. Defendant replied one night, but not the whole night. He said he did not know how many hours.

Defendant was asked, “So you didn’t have that gun there for your protection when they were out with it, did you?” Defendant answered, “I went to St. Louis.” Defendant said that was the only time he loaned the gun to anyone after getting the gun in July.

“The trial court has broad discretion over the relevancy and admissibility of evidence, and the trial court’s determination on these issues will not be reversed absent an abuse of discretion.” State v. Collins, 962 S.W.2d 421, 424 (Mo.App.1998). The ruling about which defendant complains was not an abuse of discretion. Point III is denied.

Point IV asserts that the trial court committed plain error “in sentencing [defendant] to life imprisonment for armed criminal action because the court incorrectly noted at the sentencing hearing that the range of punishment for armed criminal action was thirty years to life,” whereas the correct range of punishment is three years to life. At the sentencing hearing, the trial judge stated to defendant that because of defendant’s prior criminal activity, the maximum sentence for the involuntary manslaughter conviction was 15 years. See § 558.016.7(3). The judge then stated the range of punishment for armed criminal action was “a minimum of thirty years and maximum of life in prison.” Defendant was sentenced to 15 years for the offense of manslaughter in the first degree and to life in prison for the armed criminal action offense.

Section 571.015.1 declares the range of punishment for armed criminal action to be “imprisonment by the department of corrections and human resources for a term of not less than three years.” This court perceives - the situation of a trial court erroneously stating a range of punishment in which the minimum punishment is in excess to that prescribed by statute to be akin to a trial court erroneously concluding that an offense requires the sentence to be consecutive to another offense. In the latter instances, in armed criminal action cases, sentences have been set aside and the cases remanded for resentencing. See State v. Treadway, 558 S.W.2d 646 (Mo. banc 1977), cert. denied, 439 U.S. 838, 99 S.Ct. 124, 58 L.Ed.2d 135 (1978), overruled on other grounds by Sours v. State, 593 S.W.2d 208, 210 (Mo. banc 1980); State v. Taylor, 67 S.W.3d 713, 716 (Mo.App.2002); State v. Olney, 954 S.W.2d 698, 700-01 (Mo.App.1997). It was plain error to sentence defendant on the basis of an erroneous range of punishment of 30 years to life when the applicable range is not less than three years. Point IV is granted. The sentence for the offense of armed criminal action is reversed. The case is remanded for resentencing on Count II of the amended information. The trial court is directed to exercise its judicial discretion by considering the entire range of punishment for that offense in imposing sentence on Count II.

The judgment of conviction is affirmed. The sentence for Count I is affirmed. The sentence for Count II is reversed and the case remanded for sentencing on Count II consistent with this opinion.

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

      . References to statutes are to RSMo 2000 unless stated otherwise.

      . § 571.015, RSMo 1994, and § 562.026(2), RSMo Supp.1999, were unchanged in the 2000 revision of the statutes.

      . "The statute indicates a minimum sentence of three years but does not state a maximum penally. Thurston v. State, 791 S.W.2d 893, 895 (Mo.App.1990) noted, ‘[t]he absence of a stated maximum penalty merely indicates a legislative intent that a defendant convicted of the offense may be sentenced to any term of years above the minimum, including life. (Emphasis added.)'" State v. Norton, 949 S.W.2d 672, 678 (Mo.App.1997).


source: Caselaw Access Project

author: RONALD R. HOLLIGER, Judge.

license: Public Domain

text:
    In the ESTATE OF John Byron CORBIN, Deceased, Respondent, Cheryl Mullins, Appellant; Eric Corbin, Defendant, v. Donald Hutchison, Personal Representative of the Estate of John Byron Corbin, Respondent, State of Missouri, Respondent.
    No. WD 64661.
    Missouri Court of Appeals, Western District.
    June 28, 2005.
    Rehearing Denied Aug. 2, 2005.

      Stephen Mirakian and Francis M. Hanna, Kansas City, for Appellant.
    Daniel Roy Young, Kansas City, for the Estate.
    Kendall Reid Vickers, Nevada, Donald Hutchinson, Tracy Elaine McGinnis, Jefferson City, for State.
   RONALD R. HOLLIGER, Judge.

Cheryl Mullins appeals the judgment of the circuit court overruling her objections to and approving the amended final settlement in the estate of John Byron Corbin, deceased. She contends that the trial court erred in overruling her objections on the grounds that she did not have standing to raise the objections. Her argument is premised upon the law of the case as established in a prior appeal involving the estate. While we agree that a selective view of the law of the case doctrine supports Mullins’ legal standing to make objections to the proposed final settlement, we conclude that she is barred from bringing those claims due to the same doctrine and that the trial court properly overruled her objections.

Factual and Procedural Background

This is the second appeal arising from probate proceedings concerning the estate of John Byron Corbin, the first appeal to this court being In re Estate of Corbin, 66 S.W.3d 84 (Mo.App.2001) (hereinafter “Corbin I”). We will not engage in a detailed recapitulation of the facts underlying Corbin I. However, a brief summary of the relevant factual and procedural background of the earlier action serves to frame the issues in the present appeal.

The underlying dispute involves an attack upon the residuary devise made in John Byron Corbin’s last will and testament. That residuary clause distributed to the John Byron Corbin Charitable Trust (hereinafter “Trust”), any property not otherwise disposed of via other provisions in the will. Id. at 86. Cheryl Mullins and Eric Corbin, John Byron Corbin’s grandniece and grandnephew, respectively, filed objections to the proposed final settlement of the estate. Id. They argued that the transfer to the trust was invalid on the basis that the Trust was the product of a forged trust instrument. Id. The trial court dismissed the objections to the final settlement on the grounds that they were time-barred. Id. at 89. Mullins and Eric Corbin appealed, and this court subsequently affirmed the trial court’s dismissal. See id. at 94.

Following the appeal in Corbin I, the personal representative again sought approval of the proposed final settlement of the estate. Cheryl Mullins and Eric Corbin again brought objections to the proposed settlement, raising three grounds in opposition. First, they contended that the trust was never signed by the testator, in that the signature on the trust documents was not, in fact, the testator’s signature. Second, they argued that the trust failed due to lack of an inter vivos transfer funding the trust. Lastly, they suggested that the existence of the trust has never been properly proved in the probate action. The Personal Representative responded that both Cheryl Mullins and Eric Corbin were barred from raising these issues under the law of the case doctrine.

On August 3, 2004, the probate court entered its judgment overruling the objections lodged by Mullins and Eric Corbin and approving the amended final settlement of the estate. Mullins, alone, appeals the probate court’s judgment.

Discussion

Mullins raises only one point on appeal, contending that the trial court erred in overruling her objections to the proposed final settlement of the estate because she had standing, as a matter of law, to object to the settlement. She contends that her objections, if taken as true, constituted “a timely and legally cognizable objection to the existence of the trust and to distribution of assets allegedly comprising the trust corpus.” She argues that the three objections raised before the trial court were not time barred and that, as a result, this court’s decision in Corbin I compelled the conclusion that she had standing to raise the objections.

I. Standard of Review

The parties disagree on what standard of review is applicable in the present manner. Mullins argues that the trial court should apply the same standard of review applied in Corbin I. That appeal concerned a dismissal for failure to state a claim. She apparently takes the position that the present matter arises in the same context, contending that we should “grant the pleadings their broadest intendment, treating all facts alleged as true and construing them favorably to the appellants to determine whether the averments invoke substantive principles of law, which would entitle them to relief.” Corbin I, 66 S.W.3d at 92.

Respondents, in turn, argue that the Corbin I standard should not be applied in the present appeal. Instead, they suggest that the trial court’s determination that Mullins lacked standing to object to the final settlement was a final judgment on a jurisdictional issue and that we should employ the standard of review of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Under that standard, we are to affirm the judgment unless there is no substantial evidence to support it, the judgment is against the weight of the evidence, or the trial court misstated or misapplied the law. Id. In support of their position, Respondents rely on In re Robinson, 791 S.W.2d 844 (Mo.App.1990), and In re Estate of Weddle, 84 S.W.3d 144 (Mo.App.2002). Robinson was an appeal from a trial court’s judgment on the merits concerning a claim against a decedent’s estate. 791 S.W.2d at 845. Weddle concerned an appeal from the approval of a final settlement where the trial court summarily denied objections filed without first conducting a hearing to determine whether the objecting individuals qualified as “interested parties” with standing to raise such objections. 84 S.W.3d at 148.

The present appeal is from the judgment approving the proposed final settlement, and it recites that “the objections of Cheryl Mullins and Eric Corbin to the Amended Final Settlement and proposed Order of Distribution is hereby overruled.” This would appear, at first glance, to be a disposition on the merits, making it similar to Robinson. However from the record on appeal, it does not appear that the court conducted any hearing on the issue, but was instead merely ruling upon the Personal Representative’s motion to dismiss the objections filed by Mullins and Eric Corbin. Put another way, it was a disposition on the pleadings, making it similar to Corbin I. It is that standard which we apply to the present appeal.

II. The Law of the Case Doctrine

Both parties appear to agree that resolution of this matter turns upon application of the law of the case doctrine. Each disagrees, however, as to the effect that doctrine has in the context of the factual and procedural history of this case. Respondents claim that Mullins’ arguments before the probate court are barred under the doctrine as an attempt to relitigate the facts and issues determined in the first appeal. Mullins, in turn, argues not only that her position is not barred under the doctrine but also takes the position that the doctrine firmly establishes her right to raise objections to the final settlement of the estate.

The law of the case doctrine applies in situations of successive adjudications arising from the same facts and issues. Shahan v. Shahan, 988 S.W.2d 529, 533 (Mo. banc 1999). The doctrine provides that an adjudication precludes reliti-gation of those facts and issues. State ex rel. Alma Tel. Co. v. Pub. Serv. Comm’n, 40 S.W.3d 381, 388 (Mo.App.2001). Mullins takes the position that “holdings in earlier litigation become binding only to the extent that they were ‘“presented and decided ’ in the earlier litigation.” Her position is an incomplete statement of the law of Missouri, however. The Supreme Court has consistently held that the law of the case doctrine extends not only to issues expressly, presented and decided in prior litigation, but also “all matters that arose before the first adjudication and might have been raised but were not.” Williams v. Kimes, 25 S.W.3d 150, 154 (Mo. banc 2000) (emphasis added) (quoting State v. Johnson, 22 S.W.3d 183, 189 (Mo. banc 2000)); Shahan, 988 S.W.2d at 533; Norris v. Bristow, 361 Mo. 691, 236 S.W.2d 316, 319 (1951). The “failure to raise points in a prior appeal means that a court later hearing the case need not consider them.” Williams, 25 S.W.3d at 154.

This Court has described the law of the case doctrine as “ ‘more than merely a courtesy: it is the very principle of ordered jurisdiction by which the courts administer justice.’ ” Hankins v. Hankins, 864 S.W.2d 351, 353 (Mo.App.1993). This is not to say that the doctrine' is not without exception, however. The law of the case doctrine is a rule of policy and convenience, and courts have discretion to refuse to apply the doctrine in certain circumstances. Alma Tel., 40 S.W.3d at 388. For example, where the first adjudication was based upon a mistaken fact, the doctrine should not be applied. Id. Another exception is when the law has changed since the original adjudication. Id. A court may also have discretion to refuse to apply the doctrine when adherence to the original adjudication would result in a manifest injustice to a party. Id.

Additionally, this district has held that application of the doctrine may be inappropriate after a remand when the issues and evidence presented in proceedings subsequent to the original adjudication “are substantially different from those vital to the first adjudication and judgment.” Id. One such circumstance occurs when the factual underpinnings of the original adjudication changed after that adjudication. See State ex rel. Anderson Motor Serv. Co. v. Pub. Serv. Comm’n, 234 Mo.App. 470, 134 S.W.2d 1069, 1075 (1939), adopted by State ex rel. Anderson Motor Serv. Co. v. Pub. Serv. Comm’n, 348 Mo. 613, 154 S.W.2d 777 (1941). The other circumstance involves introduction of new facts and issues following a general remand. Pinkston v. Ellington, 845 S.W.2d 627, 629 (Mo.App.1992).

III. Application of the Doctrine

Keeping these principles in mind, the threshold question we must ask is whether the issues Mullins raises in the present appeal were decided in Corbin I or could have been raised in that action. If so, then the law of the case doctrine would generally bar her from relitigating those issues unless one of the grounds discussed above applies for refusing to apply the doctrine to the case at bar.

As outlined above, the central claim raised by Mullins and Eric Corbin in Cor-bin I was that the residuary devise lapsed on the grounds that the devisee was an inter vivos trust that was the result of a forged trust document. On appeal, this court acknowledged that Mullins and Eric Corbin were originally “interested persons” entitled to object (having standing) to the final settlement of the estate. Corbin I 66 S.W.3d at 91. We reached this conclusion on the basis that, if the Trust was not properly created, the residuary clause of the will would lapse, and that, as a result, they would be entitled to shares in the residue of the estate via intestate succession. See id.

Our analysis did not stop there, however. Specifically, we held that the status of Mullins and Eric Corbin as “interested persons” persisted so long as their claim remained viable under the applicable statute of limitations. Id. Again, that claim was that the trust was invalid because the trust document had been forged, a claim based on fraud. Id. Under the applicable statute of limitations, the latest date that the issue could have been raised was December 31, 1995. Id. at 93. Given that the first time Mullins and Eric Corbin challenged the Trust was November 12, 1999, this court held that the claim was time-barred under the statute of limitations. Id. Consequently, we concluded that they no longer had standing to contest the final settlement based upon the fraud issue alleged. Id.

Mullins, in the present appeal contends that the probate court erred in dismissing her objections to the final settlement because it was the law of the case that she had standing to object to that settlement on the grounds that she was an “interested person” because, if her objections were sustained, the trust would be invalid. This, in turn would cause the residuary clause in the will to lapse, rendering her entitled to a share of the residue of the estate through intestate succession. The propositions Mullins relies upon are, indeed, part of the law of this case. See Corbin I, 66 S.W.3d at 90-91. However, as we discuss below, that same doctrine operates to bar her from raising her present objections to the proposed final settlement.

Mullins argues that she is entitled to raise the following three objections to the proposed final settlement: (1) that the Trust was not properly funded during the testator’s lifetime and, therefore, never came into existence and could not be the recipient of a testamentary disposition in the testator’s will; (2) that the trust documents were never properly admitted into the probate proceeding; and (3) that the signature on the trust documents is not the testator’s signature. Our first question is whether any of these objections were raised in the course of Corbin I.

Mullins’ third objection appears to be nothing more than a reformulation of the issues presented in Corbin I. As outlined above, Mullins, together with Eric Corbin, argued in Corbin I that the trust documents had been forged. While the merits of that issue were not directly addressed in Corbin I, this court held that such a challenge was time-barred. In the present appeal, while she does not expressly argue that the signature was a forgery, she alleges that the signature on the documents is not that of the testator. This is nothing more than a recasting of her claims in Corbin I, as the central issue to each claim concerned the authenticity of the John Corbin’s signature on the trust documents.

Mullins’ remaining claims are that the trust documents were never properly introduced in the probate proceeding and that the trust was not properly funded during the testator’s lifetime and, therefore, never came into existence. These issues were apparently not raised in the proceedings leading to Corbin I. While not litigated in Corbin I, there appears to be no question that these two issues could have been raised and litigated in the prior proceeding. Thus, they would also fall within the law of the case doctrine, which bars not only matters that were raised and decided in the prior adjudication, but also any matters that could have been raised in that prior proceeding. Williams, 25 S.W.3d at 154.

As outlined above, courts have discretion to decline to apply the doctrine in situations where the facts and issues presented “on remand are substantially different from those vital to the first adjudication and judgment.” Alma Tel., 40 S.W.3d at 388. See also Norris v. Bristow, 361 Mo. 691, 236 S.W.2d 316, 319 (1951). A distinguishing factor, here, is that the there was no remand in Corbin I. Instead, the dismissal of the objections in Corbin I was affirmed by this court. The matter is back before this court merely due to the fact that the probate proceedings were still pending and because the personal representative filed an amended final settlement to which Mullins, again, objected.

This situation is also unlike those circumstances, as in State ex rel. Anderson Motor Service Company v. Public Service Commission, 234 Mo.App. 470, 134 S.W.2d 1069 (1939), in which, in the time between the first and subsequent appeal, “the facts have changed or new facts have occurred which may alter the legal rights or relations of the litigants.” Id. at 1075. Here, there have been no additional factual developments in the case since the decision in Corbin I that have bearing on the issues raised in the present appeal. Indeed, the facts presented by Mullins below were in existence at the time she litigated the claims in Corbin I, but apparently elected not to raise them.

As stated above, the law of the case doctrine not only bars a party from relit-igating claims that were raised and decided in a prior adjudication, but also all other matters that the party could have raised in that prior proceeding but did not. Williams, 25 S.W.3d at 154. Of the three objections she sought to raise before the circuit court, one is merely a recasting of her objection in Corbin I. The remaining objections could have been raised in that earlier proceeding but were not. Mullins presents no persuasive reason why that principle should not apply to any of those objections, here. We, therefore, deny Mullins’ sole point on appeal and affirm the judgment below.

THOMAS H. NEWTON, Presiding Judge, and LISA WHITE HARDWICK, Judge, concur.

      . Additional factual detail regarding the histoty of this case prior to the first appeal may be found in the Corbin I opinion.


author: GEORGE W. DRAPER III, Chief Judge.

text:
    Freddie ELL, Claimant/Appellant, v. PROFESSIONAL RECOVERY, INC., and Division of Employment Security, Respondents.
    No. ED 86022.
    Missouri Court of Appeals, Eastern District, Division Five.
    June 28, 2005.

      Cardina F. Johnson, St. Louis, MO, for appellant.
    Cynthia A. Quetsch, Jefferson City, MO, for Professional Recovery, Inc.
   GEORGE W. DRAPER III, Chief Judge.

Freddie Ell (Claimant), appeals the decision of the Labor and Industrial Relations Commission disqualifying him from unemployment benefits for seven weeks. The appeal is dismissed as moot.

Claimant lost his job with Professional Recovery, Inc. and applied for unemployment benefits. On February 24, 2004, a deputy determined that Claimant had been discharged for misconduct connected with his work. Therefore, the deputy determined that Claimant was disqualified from receiving unemployment benefits for seven weeks from January 18, 2004. Claimant did not immediately appeal and he began receiving his unemployment benefits on March 20, 2004.

On September 2, 2004, Claimant filed an appeal to the Appeals Tribunal. He asserted he had good cause for an untimely appeal because he had never received a copy of the deputy’s decision. On November 16, 2004, the Appeals Tribunal found good cause for Claimant’s failure to file a timely appeal under section 288.070.8, RSMo 2000, but affirmed the deputy’s determination denying benefits for seven weeks. Claimant appealed to the Labor and Industrial Relations Commission, which affirmed the Appeals Tribunal. Claimant now appeals to this Court.

The respondent Division of Employment Security (DES) has filed a motion to dismiss Claimant’s appeal. DES contends that Claimant’s case is now moot because Claimant has received all of his unemployment benefits and even if he won his appeal, he could not receive any additional money. Claimant has not filed a response to the motion to dismiss.

This case is similar to Hill v. Venator Group Retail, Inc., 138 S.W.3d 746 (Mo.App. E.D.2003), and Rockett v. Radar, Inc., 97 S.W.3d 535 (Mo.App. E.D.2003). In those cases, the claimants had received the maximum amount of their unemployment benefits for the benefit year. Hill, 138 S.W.3d at 747; Rockett, 97 S.W.3d at 536-37. The cases were dismissed as moot because even if the claimants prevailed on appeal, they could not receive any additional unemployment benefits. Hill, 138 S.W.3d at 747; Rockett, 97 S.W.3d at 537.

Here, Claimant also cannot receive any additional unemployment benefits. The Division included with its motion to dismiss the affidavit of David Strange, Chief of Benefits of the Division. He states that Claimant has been paid the maximum amount of his unemployment benefits and that, even if he wins his appeal, he will not be paid any additional money on his claim. The record on appeal' shows that after Claimant served his seven week disqualification period, he began receiving benefits on the week of March 20, 2004. He received those benefits through the week of September 18, 2004 for a total payment of $6,500. Claimant’s maximum benefit amount for the benefit year is $6,500. Therefore, even if this court were to reverse the decision of the Commission, Claimant could not receive any additional benefits. If a claimant has received all of his entitled unemployment benefits, then the case is moot. Hill, 138 S.W.3d at 747; Rockett, 97 S.W.3d at 537.

The appeal is dismissed.

LAWRENCE G. CRAHAN and GLENN A. NORTON, JJ., concur.


author: LISA WHITE HARDWICK, Judge.

text:
    Terril Lee JOHNSON, Respondent, v. MISSOURI DEPARTMENT OF CORRECTIONS, Appellant.
    No. WD 64175.
    Missouri Court of Appeals, Western District.
    June 30, 2005.

      Lisa J. Berry, Jefferson City, MO, for appellant.
    Amy M. Bartholow, Columbia, MO, for respondent.
    Before BRECKENRIDGE, P.J., LOWENSTEIN and HARDWICK, JJ.
   LISA WHITE HARDWICK, Judge.

The Department of Corrections appeals from a summary judgment declaring that the minimum prison term provisions of Section 558.019 do not apply to Terril Johnson’s fourteen-year sentence for armed criminal action. For reasons explained herein, we affirm the judgment.

On November 25, 2002, Johnson pled guilty to charges of first-degree robbery, Section 569.020, and armed criminal action, Section 571.015. The court sentenced him to consecutive terms of ten years for robbery and fourteen years for armed criminal action.

Based on Johnson’s conviction for first-degree robbery as a “dangerous felony” under Section 558.019.3, the Department of Corrections determined that he must serve at least 85% of his ten-year sentence before becoming eligible for parole. The Department also determined that the minimum term requirements of Section 558.019.2(3) applied to Johnson’s sentence for armed criminal action because he had at least three previous prison commitments for felony offenses unrelated to his current offense. The Department’s ruling required Johnson to serve at least 80% of his fourteen-year sentence for armed criminal action before becoming eligible for parole.

Johnson sought a declaratory judgment in the Circuit Court of Cole County that the Department had erroneously applied the minimum prison term provisions to his sentence for armed criminal action. He later filed a summary judgment motion arguing that, under the plain language of the statute, the offense of armed criminal action was excluded from the requirements of Section 558.019. The circuit court agreed and granted summary judgment in Johnson’s favor.

In its sole point on appeal, the Department contends the circuit court erred in granting summary judgment because the minimum prison term provisions of Section 558.019 can be applied to convictions for armed criminal action. Both parties agree that there are no factual issues in dispute. The appeal exclusively raises a question of law regarding the statutory interpretation of Section 558.019 and its relationship to Section 571.015, the armed criminal action statute.

Our review of the summary judgment is de novo, without deference to the circuit court’s ruling. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment is appropriate when there are no genuine issues of material fact, and the movant is entitled to judgment as a matter of law. Rule 74.04(c)(6).

In reviewing the statutes at issue, our role is to ascertain the legislative intent from the language used and to give effect to the words based on them plain and ordinary meaning. Nunn v. C.C. Midwest, 151 S.W.3d 388, 396 (Mo.App.2004). The legislature is presumed to have intended what the statute says; consequently, when the legislative intent is apparent from the words used and no ambiguity exists, there is no room for statutory construction. Garda-Huerta v. Garcia, 108 S.W.3d 684, 687 (Mo.App.2003). When interpreting a penal statute, however, we must construe any ambiguity “against the government or party seeking to exact statutory penalties and in favor of persons on whom such penalties are sought to be imposed.” J.S. v. Beaird, 28 S.W.3d 875, 877 (Mo. banc 2000).

Section 558.019 sets forth the minimum prison terms that certain convicted felons may' be required to serve before becoming eligible for parole, conditional release, or other early release by the Department. In subsection 1, the statute provides that it “shall not affect those provisions of ... section 571.015, RSMo, which set minimum terms of sentences!)]” § 558.019.1. In subsection 2, the statute further states that the minimum prison terms are “applicable to all classes of felonies except those ... otherwise excluded in subsection 1 of this section.” § 558.019.2.

The offense of armed criminal action, as defined in Section 571.015, is specifically identified as an exception to the general minimum prison term requirements in Section 558.019. The armed criminal action statute includes its own minimum terms, requiring convicted persons to serve at least three years before reaching eligibility for parole or early release from prison. § 571.015.1. Any person convicted of a second offense of armed criminal action must serve a term of at least five years, and a third offense requires serving a minimum ten-year sentence. § 571.015.2-3.

The Department argues that the general minimum term provisions of Section 558.019 can be applied in this case because they do not conflict with or “affect” the minimum sentence requirements for armed criminal action under Section 571.015. Because Johnson was sentenced to serve fourteen years for armed criminal action, the armed criminal action statute requires him to serve at least three years of that sentence, while the general minimum term provisions of Section 558.019.2(3) would require him to serve 80% or 11.2 years of that sentence. The Department contends Section 558.019 only precludes a reduction of the minimum sentence for armed criminal action. Thus, it argues the armed criminal action statute is not “affected” when the general statute imposes a greater minimum sentence.

The Department’s argument is based on the language in subsection 1 of Section 558.019, which states that the general minimum term provisions “shall not affect” the minimum terms set forth in the armed criminal action statute. The dictionary defines “affect” in at least two ways that may be applicable in this context: “1: to act upon[;] a: to produce an effect ... upon ... b(1): to produce a material influence or alteration in ... b(2): to have a detrimental influence on[.]” Webster’s New Third International Dictionary 35(1993).

The Department’s interpretation of Section 558.019 invokes the narrowest part of this definition, which seems to indicate that the armed criminal action statute would only be detrimentally affected if its three-year minimum sentence was reduced by applying the general minimum terms. Alternatively, if the broader definition is considered, Section 558.019 could be interpreted to mean that the general minimum prison terms would “affect” the armed criminal action statute if it altered or had any material influence by either increasing or decreasing the three-year minimum. In Johnson’s case, it is clear that the minimum sentence for armed criminal action would be altered by application of the 80% minimum; instead of serving a minimum three year sentence, he would be required to serve a minimum of 11.2 years. Thus, application of the general minimum prison term would materially affect his minimum sentence for armed criminal action.

Given other language in Section 558.019, we find it reasonable that the legislature intended the broader definition of the term “affect” to apply in this context. The statute indicates that the general minimum prison terms should not affect the sentences for first degree murder, § 565.020, persistent sexual offenders, § 558.018, or armed criminal action, § 571.015, because each of those statutory offenses includes its own minimum sentence. § 558.019.1. The language suggests the legislature saw no need to apply different minimum terms than those already specified in the statutes for those particular offenses.

The provisions of Section 558.019.1 also must be read in conjunction with subsection 2, which states that the minimum prison terms apply to all classes of felonies except those “excluded” in subsection 1. Baldwin v. Dir. of Revenue, 38 S.W.3d 401, 405 (Mo. banc 2001) (“Statutory provisions relating to the same subject matter are considered in pañ materia and are to be construed together,” so as to be read “consistently and harmoniously”). The plain and ordinary meaning of the term “excluded” suggests that any of the felonies referenced in subsection 1 are “shut out” are “bar[red] from ... consideration.” Webster’s New Third International Dictionary 793 (1993). As noted, armed criminal action is one of the felonies referenced in subsection 1. When construed in pari materia, these two subsections indicate the legislature’s intention to exclude armed criminal action from the general minimum terms of Section 558.019 because the armed criminal action statute sets forth its own minimum standards.

The Department further argues that we are bound by the precedent in Harry v. Kemna, 81 S.W.3d 635 (Mo.App.2002), and State v. Hutton, 825 S.W.2d 883 (Mo.App.1992), both of which applied Section 558.019 to sentences for armed criminal action. These cases are not relevant due to statutory changes. Both cases applied the law as it stood prior to 1994, when armed criminal action was classified as a “dangerous felony” under Section 556.061.8 and, therefore, was subject to the general minimum prison terms Section 558.019.2. The legislature removed armed criminal action from the list of dangerous felonies in 1994. See Section 556.061.8, RSMo 1994. Accordingly, armed criminal action is no longer subject to the minimum term provisions of Section 558.019.2 that apply to dangerous felonies.

The circuit properly determined that the Department could not apply Section 558.019 to increase Johnson’s minimum sentence for armed criminal action from three years to 11.2 years. Johnson was entitled to a declaratory judgment as a matter of law. The summary judgment is affirmed.

All concur.

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

      . The use of the term "affect” in Section 558.019 could be deemed ambiguous in light of the two plausible definitions. We have determined there is no ambiguity because other language in the statute clarifies the legislative intent. However, even if we were to engage in statutory construction, we would still apply the broader definition of "affect” because any ambiguities must be construed in favor of Johnson, against whom the Department seeks to impose a greater minimum sentence. Beaird, 28 S.W.3d at 877.


author: HAROLD L. LOWENSTEIN, Judge.

text:
    Karen MACE, Personal Representative of the Estate of Gladys Alma Rupard, Respondent, v. David LOETEL, Appellant.
    No. WD 64154.
    Missouri Court of Appeals, Western District.
    June 30, 2005.

      J. Michael Murphy, Liberty, for appellant.
    Steven D. Wolcott, Liberty, for respondent.
    Before BRECKENRIDGE, P.J., LOWENSTEIN and HARDWICK, JJ.

      . Rupard's bank records she wrote a check to "cash” for $2,700 on April 1, 2001 and Loetel made a deposit in the same amount on April 11, 2001. Similarly, Rupard wrote a check to "cash” on April 11, 2001, for $1,200 and Loetel deposited $1,200 into his account on April 12, 2001.

   HAROLD L. LOWENSTEIN, Judge.

Karen Mace, personal representative of Gladys A. Rupard’s estate, filed a petition for discovery of assets, Section 473.340, alleging that David Loetel unlawfully obtained money from Rupard prior to her death. The trial court entered judgment against Loetel, finding that he acquired $83,500 as “the result of either undue influence or fraudulent acts.” Loetel now appeals.

Facts

Rupard was a ninety-four year-old widow who was befriended by Loetel, fifty-five, late in life. Loetel had been familiar with the Rupard family since the early 1970s, as his parents weré professional acquaintances with Rupard and her late husband. After Rupard’s daughter passed away in 1996 or 1997, Loetel called to express his condolences and their relationship began to develop.

Shortly after Loetel’s call, Rupard invited him to go to dinner with her and his mother. Loetel continued to spend time, alone, with Rupard after this' outing. For instance, Loetel would take Rupard out to dinner or bring food to her apartment. He took her to the mall, to the doctor, and to the bank. Although he did not conduct any transactions for her while at the bank, Loetel paid Rupard’s bills by writing out checks for her signature. Loetel also occasionally picked up groceries for Rupard and ran other miscellaneous errands.

Over the course of their relationship, Rupard transferred money to Loetel. The exact nature of these transfers, whether they were gifts or loans, is at issue in this case. Rupard transferred $40,000 to Loe-tel for what he claimed to be a birthday gift two months before his birthday. She also wrote an undetermined amount of checks to “cash,” none of which were recorded in her checkbook register, and transferred them to Loetel.

Suspicion grew regarding Loetel’s influence over Rupard and Rupard’s unexplained diminution of assets. When friends and family expressed their concern, however, Rupard discontinued seeking their assistance with financial matters. For example, Dr. Donald Kuenzi was a long-time personal friend of the Rupard family. After Rupard’s husband passed away, Dr. Kuenzi advised Rupard on investing her assets. When critical of Ru-pard and Loetel’s “arrangement,” Rupard stopped seeing Dr. Kuenzi both on a social and advisory basis. Likewise, Rupard stopped seeking guidance from her grandchildren after they questioned her monetary transfers to Loetel.

Rupard’s former attorney, Thomas Han-kins, was also concerned over what he understood to be this “very negative” relationship. Rupard contacted Hankins to revise her will on two occasions. In doing so, Rupard’s proposed changes were handwritten onto a copy of an existing will. These revisions contained not only Ru-pard’s handwriting, but also that of Loetel, and granted Loetel a greater portion of her estate. However, when Rupard met with Hankins outside of Loetel’s presence, his proposed changes were disregarded and Loetel was actually excluded as a beneficiary. Rupard told Hankins that Loetel was “just paying attention to [her] for [her] money.” She also told Hankins’ legal secretary that funds “missing” from her bank account were the subject of a police investigation instituted by the Division of Aging.

Rupard passed away on March 7, 2002. After her death, the respondent, Mace, brought a petition to discover assets, seek-mg to recover the assets she believed to have been 'wrongfully taken by Loetel. The trial court agreed and entered judgment in favor of Rupard’s estate for $83,500.

STANDARD OP REVIEW

On review of a court-tried case, this court will sustain the trial court’s judgment “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The standard of proof in a discovery of assets proceeding is that of “clear, convincing, and cogent evidence.” In re Estate of Passman v. Graves, 537 S.W.2d 380, 384 (Mo. banc 1976). As a result, in order for the trial court’s judgment to be supported by substantial evidence, the evidence must also be clear, cogent, and convincing.

Discussion

In entering judgment against Loetel, the trial court found that “the transfer of funds from Gladys Rupard to David Loetel was the result of either undue influence or fraudulent acts by David Loetel.” Because this court holds that Loetel did exert undue influence over Rupard, it need not address whether his actions were also fraudulent.

I. Undue Influence

Loetel complains that there was insufficient evidence to support the trial court’s finding of undue influence. Undue influence is defined as overpersuasion, coercion, force, or deception that deprives an individual of her free agency. Robertson v. Robertson, 15 S.W.3d 407, 413 (Mo.App.2000). A presumption of undue influence arises when substantial evidence shows: “(1) a confidential and fiduciary relationship; (2) benefaction to the fiduciary; and (3) some additional evidence from which undue influence may be inferred.” Estate of Gross v. Gross, 840 S.W.2d 253, 257 (Mo.App.1992). Here, the evidence offered by Mace entitled her to this presumption.

With respect to the first prong, a confidential relationship exists when one “relies upon and trusts another in regard to handling property and business affairs, thereby creating some fiduciary obligation.” Id. (quoting Godsy v. Godsy, 504 S.W.2d 209, 212 (Mo.App.1973)). Proof regarding the handling of business affairs is not strictly necessary, however, as long as the contestant proves that the deceased took the individual alleged to have exercised undue influence into his or her confidence. McIntosh v. Dowdy, 625 S.W.2d 162, 164 (Mo.App.1981). Moreover, the parties’ relations do not have to be “technically fiduciary”; indeed, a confidential relationship exists even when the parties’ relations are “merely informal, whenever one trusts in and relies on the other.” Gross, 840 S.W.2d at 257-58. (quoting Hodges v. Hodges, 692 S.W.2d 361, 377 (Mo.App.1985)).

Confidential Relationship

In this case, the evidence as a whole establishes that a confidential relationship existed between Rupard and Loe-tel. Rupard trusted Loetel enough to give him a key to her apartment. See Vancil v. Carpenter, 935 S.W.2d 42, 45 (Mo.App.1996) (listing beneficiary having key to decedent’s home as evidence of a confidential relationship). Loetel also wrote out checks for Rupard in helping her pay bills and his handwriting appeared in her checkbook register. See id. (finding confidential relationship where defendant “filled out checks for [the deceased] which [the deceased] would then sign and turn over to the payee”). Loetel’s handwriting also appeared on revisions to her will, wherein Loetel would receive more from Rupard’s estate than already provided. Lastly, Loetel acted, at one time, as Ru-pard’s attorney-in-fact pursuant to a power of attorney. Id. (“The existence of a power of attorney is significant evidence that a confidential relationship has developed.”). Prong one is, therefore, satisfied.

Benefaction

Loetel does not challenge proof of the second prong. Although the exact amount is disputed, Loetel testified that he received at least $40,000 from Rupard. This admission constitutes sufficient evidence of benefaction to Loetel.

Additional Evidence of Undue Influence

Third, the record is replete with additional evidence from which undue influence may be inferred. As mentioned above, Loetel attempted to make revisions to Rupard’s will. However, when Rupard met with her attorney concerning the requested revisions, outside of Loetel’s presence, she stated that she did not want the changes granting Loetel a greater percentage to be made and, accordingly, they were not. Rupard also told her attorney that Loetel was “just paying attention to [her] for [her] money.” On one occasion, Rupard told Loetel that she did not want to see him any longer.

In addition, Rupard also told a granddaughter that she was using her as an excuse not to loan any more money to Loetel although she continued to do so. The $40,000 sum that Loetel claims Ru-pard gave him for his birthday was given to him in June when, in fact, his birthday was in August. When friends and relatives expressed concern to Rupard about Loetel’s influence, she excluded them from further assisting her with her financial affairs and/or revoked their status as attorneys-in-fact. Because the record contains sufficient evidence to support a presumption of undue influence, which presumption was not overcome by the appellant’s evidence, the trial court did not err in entering granting judgment in favor of Rupard’s estate. Point denied.

II. Judgment Amount

Loetel next contends that there was insufficient evidence to support the entire'amount of the judgment. He claims that Mace did not offer clear, cogent, and convincing evidence to substantiate her allegation that he received the entire $83,500 from Rupard. This court agrees.

At trial, Loetel testified that he deposited checks received from Rupard into a specific account. Mace, therefore, introduced demonstrative exhibits that summarized relevant activity in Loetel and Ru-pard’s respective bank accounts. Based on a comparison of the dates and amounts involved when funds were withdrawn from Rupard’s account and when she wrote checks to “cash,” to the dates and amounts of deposits made into Loetel’s account, the respondent argued Loetel received the $83,500 Rupard was missing. This argument is problematic for two reasons.

First, although Loetel admitted he received money from Rupard, including the $40,000 check, the legal conclusion that he received the remaining judgment amount of $43,500 is based largely upon speculation. Specifically, the dates and amounts from the withdrawal/deposit comparisons are not exact. Only in two instances are the transactions similar enough to actually prove Loetel received additional funds from Rupard. Aside from these instances, which total $8,900, the only similarities are that (1) Loetel’s deposits were made within at least eighteen days after Rupard withdrew funds, and (2) the transactions totals differ by a cumulative sum of approximately $13,400.

Secondly, no evidence was offered that could have otherwise explained the discrepancy between these transactions. No one testified that they had actually ever seen Rupard give Loetel money, so as to account for the delayed deposits and/or diminished sums. Moreover, Loetel testified that he neither spent a portion of the money before making any of the deposits in question nor received a sum of cash back. As a result, the mere similarity between the transactions does not constitute the clear, cogent, and convincing evidence needed to prove Loetel received the entire $83,500. Because Loetel admitted he received $40,000 and the record only supports a finding that he deposited $3,900 of funds withdrawn from Rupard’s account, the amount of the judgment is amended to $43,900.

This court affirms the judgment of the trial court in favor of Mace but, pursuant to Rule 84.14, enters judgment in favor of the respondent, Mace, in the modified amount of $43,900.00.

All concur.

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

      . These ages represent Rupard and Loetel’s respective ages at the time of Rupard’s death.

      . Loetel was an attorney-in-fact, acting jointly with one of Rupard's granddaughters.

      . The following chart is a replication of Mace's evidence that compared debits in Rupard’s account to credits in Loetel’s account.

        GLADYS RUPARD'S CHECKS
      Date of Check Amount of Check Date of Deposit Amount of Deposit
      02/26/01 $2,700.00 02/26/01 $2,000.00
      03/13/01 $2,700.00 03/16/01 $3,119.91
      04/01/01 $2,700.00 04/11/01 $2,700.00
      04/11/01 $1,200.00 04/12/01 $ 1200.00
      04/21/01 $2,700.00 NONE
      05/14/01 $2,700.00 NONE
      06/22/01 $2,700.00 NONE
      07/21/01 $2,700.00 07/24/01 $9,619.19
      08/17/01 $1,700.00 NONE
      09/01/01 $1,700.00 NONE
      GLADYS RUPARD’S BANK WITHDRAWALS
      Date of Debit Amount of Debit Date of Deposit Amount of Deposit
      09/26/00 $2,500.00 10/04/00 $4,340.00
      11/07/00 $4,500.00 11/25/00 $5,300.00
      12/18/00 $4,500.00 NONE
      01/21/01 $4,500.00 NONE
      02/18/01 $1,700.00 02/26/01 $2,000.00
      03/18/01 $ 800.00 NONE
      06/21/01 $1,700.00 NONE


author: CLIFFORD H. AHRENS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. George ESTES, Appellant.
    No. ED 84950.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 30, 2005.

      Rosalynn Koch, Columbia, MO, for appellant;
    Jeremiah W. (Jay) Nixon, Atty. Gen., Ronald S. Ribaudo, Jefferson City, MO, for respondent.
   CLIFFORD H. AHRENS, Presiding Judge.

George Estes (“defendant”) appeals the judgment on his conviction of one count of possession of a controlled substance with the intent to sell. Defendant claims that the trial court erred in allowing evidence of an uncharged crime, and in improperly reciting his sentence in the judgment. We affirm in part and remand in part.

Defendant was charged with one count of possession of a controlled substance with the intent to sell, in violation of section 195.211 RSMo (Cum.Supp.2003) . Pri- or to trial, defendant filed a motion in limine to exclude evidence of an uncharged controlled drug buy by a confidential informant. The trial court overruled this portion of defendant’s motion in limine. After trial, a jury found defendant guilty of possession of greater than five grams of marijuana with the intent to sell. Defendant filed a motion for judgment of acquittal notwithstanding the verdict and alternative motion for new trial. The motion was denied, and the trial court subsequently sentenced defendant to ten years’ imprisonment. The present appeal followed.

In his first point on appeal, defendant argues that the trial court erred in denying his motion in limine to exclude evidence of an uncharged crime.

At trial, testimony was presented from two detectives who were members of a narcotics investigations unit regarding an undercover drug buy with an informant. Detective David Lederle testified that he received information from a confidential informant that defendant was selling drugs. Detective Lederle had the informant contact defendant, and a meeting was arranged. The informant was provided with money to purchase drugs, and he was taken to the designated location to meet defendant. Defendant left his residence and rode a bicycle to meet the informant. A “hand transaction” took place between defendant and the informant, and Detective Lederle later recovered marijuana from the informant. Based upon this incident, a search warrant was issued for defendant’s residence, and the search ultimately yielded evidence to support the charge of possession of a controlled substance with the intent to sell.

Although defendant acknowledges he did not object to this evidence at trial, he claims that there is an exception to the general rule requiring him to object. According to defendant, the challenge to the admission of this evidence is preserved for review because an objection would have been futile, and the court understood that such objection was not waived. However, as the state correctly notes, defendant does not cite any authority to support this argument. Defendant does cite cases which stand for the proposition that where it is “mutually understood that [defendant] did not intend to repudiate his prior objection,” the court will acknowledge its “continued validity.” State v. Baker, 103 S.W.3d 711, 717 (Mo. banc 2003). There is no indication in the record before us that a mutual understanding existed regarding defendant’s objection to evidence of the controlled buy. Defendant did not object to the admission of testimony concerning the controlled buy during trial, and therefore, the alleged error regarding admission of the evidence has not been preserved for our review.

We may review the issue for plain error. We reverse the ruling of the trial court for plain error only where it results in a miscarriage of justice or a manifest injustice. State v. Smith, 11 S.W.3d 733, 738 (Mo.App.1999).

Generally, evidence of an uncharged crime is not admissible for the purpose of showing the propensity of a defendant to commit the crime with which he is charged. State v. Naasz, 142 S.W.3d 869, 878 (Mo.App.2004). However, where the evidence is part of the sequence of events that surrounds the charged offense, evidence of an uncharged crime may be admissible to present a complete and coherent picture of the events. Id. Evidence of uncharged conduct will be allowed under this exception to the general rule only where its probative value outweighs its prejudicial effect. Id. The balance of the effect of the evidence and its value is within the sound discretion of the trial court. Id.

Here, the evidence of the controlled buy was part of the sequence of events which led to the securing of a search warrant for deféndant’s residence. The search of the residence yielded a large amount of marijuana, which was the basis of the possession of a controlled substance with the intent to sell charge for which defendant was on trial. It could certainly be argued that the testimony regarding the controlled buy presented a complete picture of the events surrounding the search which led to the charged offense. As a result, the trial court acted within its discretion in allowing such testimony.

Additionally, as the state notes, evidence of defendant’s sale of marijuana was relevant to prove the element of intent for the charged offense. It was a reasonable inference from defendant’s sale of marijuana to the confidential informant that he intended to sell the marijuana found in his residence as well.

Thus, no manifest injustice or miscarriage of justice occurred as a result of the admission of testimony regarding the controlled buy. Point denied.

In his second and final point, defendant claims that the trial court erred in entering a judgment of guilt which recited the conviction of a Class A felony because he was charged and convicted of a Class B felony. Defendant requests that we remand the causé for correction of the judgment and sentence.

The state concedes this point. We agree that the trial court plainly erred in its written sentence which recited that defendant had been convicted of a Class A felony. Thus, the cause must be remanded to the trial court for entry of sentence and judgment reflecting defendant’s conviction of a Class B felony.

The judgment of the trial court is affirmed in part and remanded in part with instructions to enter a written sentence and judgment reflecting defendant’s conviction and sentence for the Class B felony of possession of a controlled substance with the intent to sell. In all other respects the judgment is affirmed.

GLENN A. NORTON and NANNETTE A. BAKER, JJ., concur.

      . We need not engage in a detailed recitation of the underlying facts, as the parties are familiar with them. We will; however, discuss the facts as they relate to the issues on appeal.


author: PATRICIA L. COHEN, Presiding Judge.

text:
    K-O ENTERPRISES, INC., a Missouri Corporation d/b/a O’Brien Swimming Pool Service and Mark O’Brien, Individually, and as a Minority Shareholder of K-O Enterprises, Inc., Appellants, v. Kevin J. O’BRIEN, Respondent.
    No. ED 84960.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 30, 2005.

      Ira M. Potter, St. Louis, MO, for appellant.
    James D. Bass, Clayton, MO, for respondent.
   PATRICIA L. COHEN, Presiding Judge.

Introduction

The claims underlying this appeal arose when Kevin O’Brien terminated his brother, Mark O’Brien, from K-O Enterprises, Inc. (“K-O”), a closely held family business. Mark appeals two summary judgment orders entered by the Circuit Court of St. Louis County in favor of his brother, Kevin. Specifically, Mark appeals the court’s order granting summary judgment in favor of Kevin on: (1) K-O’s claims against Mark for specific performance of a stock purchase agreement; and (2) Mark’s individual and derivative claims, purportedly on behalf of K-O, and against Kevin, for an equitable accounting, conversion and fraud. We affirm in part and reverse and remand in part.

Statement of the Facts and Proceedings Below

In 1987, Kevin developed a swimming pool service business. By 1989, the business had grown such that Kevin hired his brother, Mark, to work as his employee. In 1992, Kevin incorporated the swimming pool business as K-O Enterprises, Inc. K-0 is a Missouri Corporation doing business as O’Brien Swimming Pool Service.

In 1994, Kevin agreed to sell up to twenty-five percent (25%) interest in K-O to Mark. Kevin stipulated that the purchase would take place over a three (3) year period pursuant to the terms of a Stock Purchase Agreement (“the Agreement”). On January 1, 1995, K-O and Mark entered into the Agreement which governed not only the terms for the stock purchase, but also delineated transfer restrictions and buy-out requirements. Ultimately, Mark acquired twenty-five percent (25%) interest in K-O while Kevin retained the remaining seventy-five percent (75%) majority interest.

Pursuant to the Agreement, K-O’s value was to be determined every other fiscal year. However, the value of Mark’s stock could be determined by either party at any time. Likewise, the Agreement contained a provision that would activate in the event that Mark left K-O. Under the Agreement, K-O had the right to purchase Mark’s stock “[u]pon the termination of [Mark’s] employment for any reason, regardless of who initiated Mark’s termination.” However, if upon a termination of Mark’s employment, the value of the stock had not been determined within twelve (12) months preceding such termination, the stock value “shall be its fair market value as of the end of the fiscal year preceding his ... termination of employment ... as determined under the business valuation by the accountant then providing the accounting service to [K-O] using regularly accepted accounting principles consistently applied. The determination of the accountant shall be final and binding on the parties.”

On or about December 27, 2001, K-O, through Kevin, terminated Mark’s employment. There had been no determination of the value of K-O within the twelve (12) months preceding Mark’s termination and, in fact, no valuation had taken place since January 1, 1995, the date the Agreement was signed.

In January of 2002, Scott Alton, who was providing accounting and tax services to K-O at the time, performed a valuation of K-O. Alton used, what both he and Kevin contend are, the “regularly accepted accounting principles consistently applied,” to' perform the business valuation. Ultimately, Alton determined that the value of K-O on December 31, 2000, the end of the fiscal year preceding Mark’s termination, was $131,316.00. Moreover, Alton determined that due to Mark’s twenty-five percent minority interest in the Company and the lack of marketability of shares in a closely held corporation, Mark’s interest should be discounted by one-third for a total of $21,886.00.

On Api'il 23, 2002, K-0 tendered a check in the amount of $5,471.50 and, in accordance with the Agreement, a promissory note in the amount of $16,415.00. Mark, however, did not accept the check and refused to tender the K-0 stock in accordance with the Agreement. Instead, Mark, individually and in his capacity as a K-0 shareholder, filed suit against Kevin seeking an equitable accounting, claiming that Kevin had converted property, money and assets from K-O, and engaged in fraudulent acts.

Kevin answered Mark’s Petition and raised several affirmative defenses. In response to Mark’s claims, Kevin asserted, inter alia, that Mark lacked the legal capacity and/or standing to bring his action because: (1) upon his termination, Mark lost his right to hold K-0 stock; (2) the conduct and actions Mark challenged occurred prior to the time Mark became a K-0 shareholder; (3) Mark had unclean hands; (4) waiver, estoppel and laches barred relief; and (5) Mark’s Petition was barred by the “business judgment rule.”

Following the filing of Mark’s suit, K-0 filed suit against Mark seeking specific performance of the buy-out clause of the Agreement. Mark filed an Answer asserting that specific performance was inappropriate because of Kevin’s “wrongful, fraudulent and inequitable conduct” and unclean hands. Thereafter, K-0 filed a Motion for Summary Judgment on its Petition for Specific Performance asserting that, under the Agreement, Mark was required to sell his shares after K-O’s accountant properly determined the value of Mark’s stock because, as per the Agreement, that determination was both final and binding.

In response to K-O’s Motion for Summary Judgment, Mark contended that Alton did not have valuation experience and that his deposition testimony disclosed problems with the valuation. Moreover, Mark alleged that no true financial statements existed for K-0 and therefore the valuation was based on unedited income statements as well as trial balances furnished by K-O. Mark used statements from Alton’s deposition to demonstrate that Alton: (1) was unaware of whether any industry-wide method existed as to how to determine the value of a company; and (2) failed to consider unrecorded profits coming from cash and trade transactions the inclusion of which would have materially affected the valuation.

Mark also relied on Kevin’s deposition to establish issues of material fact. In his deposition testimony, Kevin admitted that: (1) K-0 paid for Kevin’s wife’s personal car; (2) he did not utilize any mechanism for entering trade transactions into K-O’s accounting system; and (3) he used trade credits for personal use, friends and charitable donations without providing the data on such transactions to Alton. Further, Kevin acknowledged receiving cash from customers while failing to provide any record of such transactions or entering them into K-O’s accounting system. He also admitted using K-0 employees to finish his basement during normal working hours.

As additional proof of remaining issues of material fact, Mark incorporated an Affidavit from John H. Brandvein, a C.P.A. with thirty-two (32) years of experience in accounting and valuations. Among other things, Brandvein concluded that Alton’s valuation: (1) did not reflect the standards of value as required by regularly accepted accounting principles; (2) did not make the necessary adjustments as required by the PPC’s Guide to Business Valuation (the authoritative text among valuation professionals); (3)- did not acknowledge and adjust for any non-business or personal expenses; (4) and did not recognize and include the effect of all cash receipts or the value of labor and materials. Ultimately, Brandvein concluded that, utilizing only the information available to him, an accurate valuation of K-0 was approximately $600,000.

The court granted K-O’s Motion for Summary Judgment on its Petition for Specific Performance and ordered Mark to tender his shares of stock to K-0 within ten (10) days of his receipt of the check and promissory note.

Following the grant of summary judgment in favor of K-0 and Kevin on their suit, Kevin and K-0 filed a Motion for Summary Judgment as to Mark’s suit. In their motion, Kevin and K-0 argued that: (1) Mark did not have standing to bring a lawsuit derivatively on behalf of K-0 because he was no longer a shareholder; (2) Mark was never denied access to the books and records; and (3) Mark was aware of, and benefited from, K-O’s accounting practices.

Mark filed a response stating that he was unaware that Kevin did not account for cash flows from cash/barter transactions and that Kevin had sole responsibility for overseeing and administering K-O’s recordkeeping. Mark also stated that he relied on Kevin to include all earnings and expenses in K-O’s financial books and records. Mark alleged the existence of a genuine issue of material fact with respect to: (1) the nature and extent of Mark’s knowledge of K-O’s accounting practices; (2) whether Kevin’s conduct was illegal, ultra vires and a breach of fiduciary duty; and (3)- Mark’s individual standing to prosecute his claims.

The court granted Kevin’s Motion for Summary Judgment on Mark’s individual and derivative claims. Mark appeals both summary judgment Orders in favor of Kevin.

Standard of Review

Our review of summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We will uphold the grant of summary judgment on appeal if the movant is entitled to judgment as a matter of law and no genuine issues of material fact exist. Id. at 377. “[A] ‘genuine issue’ exists where the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts.” Id. at 382. We view the record in the light most favorable to the party against whom judgment was entered, according that party all reasonable inferences that may be drawn from the record. Id. at 376. We accept as true facts contained in affidavits or otherwise in'support of a party’s motion unless contradicted by the non-moving party’s response to the summary judgment motion. Id.

Where the party who filed the motion for summary judgment is the claimant in the underlying case, to make a prima facie case for summary judgment, he must state with particularity all the undisputed material facts necessary to establish each element of his claim, referencing pleadings, discovery or affidavits.to demonstrate the lack of a genuine issue of material fact. Rule 74.04(c)(1); ITT, 854 S.W.2d at 380. Once the movant has established a right to" judgment as a matter of law, the non-movant must demonstrate that one or more of the material facts asserted by the movant was not in dispute is, in fact, genuinely disputed. ITT, 854 S.W.2d at 376. The non-moving party may not rely on mere allegations and denials of the pleadings, but must use affidavits, depositions, answers to interrogatories, or admissions on file to demonstrate the existence of a genuine issue for trial. Id. A motion for summary judgment need not rest on unassailable proof and is not precluded by “the slightest doubt resting on a scintilla of evidence.” Martin v. City of Washington, 848 S.W.2d 487, 492 (Mo. banc 1993). Mere doubt and speculation do not create an issue for trial. Id. at 492.

Discussion

I. Specific Performance

In his first point on appeal, Mark asserts that the trial court erred when it granted summary judgment on K-O’s claim for specific performance of the Agreement. Specifically, Mark contends that material facts remain in dispute as to whether the valuation performed by Alton was proper and accordingly, the court erred when it summarily granted specific performance.

It is well-settled that, “[i]n an action for specific performance, the right to sue is triggered by the failure of a party to do that which is contracted for, in accordance with the procedure established by the contract.” Carondelet Health System, Inc. v. Royal Gardens Assoc., 943 S.W.2d 669, 672 (Mo.App. W.D.1997). Accordingly, as the party seeking summary judgment on its petition for specific performance, K-0 needed to prove not only that there was no genuine issue of material fact that it performed (or tendered performance of) its portion of the contract but that Mark breached the terms of the Agreement.

As an initial matter, we note that the Agreement governs both K-0 and Mark’s obligations in the event of Mark’s termination and the procedures by which K-0 stock would be valued. Pursuant to the Agreement, K-O’s value was to be determined every other fiscal year, yet the value of Mark’s stock could be determined by either party at any time. Likewise, K-0 retained the right to purchase Mark’s stock “[u]pon the termination of [Mark’s] employment for any reason, regardless of who initiated Mark’s termination.” However, if upon a termination of Mark’s employment, the value of the stock had not been determined within twelve (12) months preceding such termination, the stock value “shall be its fair market value as of the end of the fiscal year preceding his ... termination of employment ... as determined under the business valuation by the accountant then providing the accounting service to [K-0] using regularly accepted accounting principles consistently applied. The determination of the accountant shall be final and binding on the parties.”

K-0 filed its motion for summary judgment alleging that it had met all of its obligations under these applicable provisions. Specifically, K-0 asserted that there was no genuine issue of material fact that K-0 terminated Mark’s employment and that because there had been no determination of the value of K-0 within the twelve (12) months preceding Mark’s termination, K-O’s accountant, Alton, performed a valuation of K-0 using, the “regularly accepted accounting principles consistently applied.” Based on the value Alton calculated, K-0 tendered Mark a check for partial payment of his share and a promissory note for the remainder.

In order to demonstrate a genuine issue of material fact, Mark focuses on whether Alton used “regularly accepted accounting principles consistently applied” in calculating the value of K-0 and thus Mark’s share. Mark contends that his summary judgment response demonstrates Alton faded to use “regularly accepted accounting principles.” Additionally, Mark asserts that Alton lacked valuation experience and that his valuation was unreliable because it was based on inaccurate figures.

More specifically Mark alleged that no true financial statements existed for K-0 and therefore Alton’s valuation was based on unedited income statements as well as trial balances furnished by K-O. In support of his assertions, Mark relied on admissions from Alton’s deposition to demonstrate that Alton: (1) was unaware of whether any industry-wide method existed as to how to determine the value of a company; and (2) failed to consider unrecorded profits coming from cash and trade transactions the inclusion of which would have materially affected the valuation.

To further support his contention that a genuine issue of material fact' existed as to whether Alton’s valuation properly utilized all necessary information, Mark referred to portions of Kevin’s deposition in which Kevin admitted: (1) K-0 paid for Kevin’s wife’s personal car; (2) he did not utilize any mechanism for entering trade transactions into K-O’s accounting system; and (3) he used trade credits for personal use, friends,' and charitable transaction without providing the data on such transactions to Alton. Kevin acknowledged receiving cash from customers while failing to provide any record of such case or entering it into K-O’s accounting, system. Kevin also admitted to using K-0 employees to finish his basement during normal working hours.

Mark’s most compelling proof of remaining issues of material fact was an Affidavit from John H. Brandvein, a- C.P.A. with thirty-two (32) years of experience in accounting and valuations. Brandvein concluded that Alton’s valuation: (1) did not reflect the standards of value as required by regularly accepted accounting principles; (2) did not make the necessary adjustments as required by the PPC’s Guide to Business Valuation (the authoritative text among valuation professionals); (3) did not acknowledge and adjust for any non-business or personal expenses; (4) and did not recognize and include the effect of all cash receipts or the value of labor and materials. Ultimately, Brandvein concluded that, utilizing only the information available to him, an accurate valuation of K-0 was approximately $600,000. In light of these allegations, Mark met his burden of showing that the propriety of the method used to value the stock was, in fact, a genuinely disputed issue for trial.

K-0 argues that Mark’s reliance on Brandvein’s Affidavit to prove the existence of a genuine issue of material fact is misplaced because Brandvein is not K-O’s accountant and his Affidavit focuses on Generally Accepted Accounting Principles (“GAAP”) despite the fact that K-0 and Mark did not agree to use to the use of GAAP or an outside business valuation expert. In support of its contention, K-0 argues that the parties expressly agreed that the business valuation would be completed by “the accountant then providing accounting services to [K-O] using regularly accepted accounting principles consistently applied.” Essentially, K-0 contends that GAAP or “Generally Accepted Accounting Principles” are distinguishable from “regularly accepted accounting principles.”

In support of this contention,' K-0 relies on Lake Cable, Inc. v. Trittler, 914 S.W.2d 431 (Mo.App. E.D.1996). While K-0 correctly states the outcome of the Lake Cable trial and its disposition on appeal, K-O’s reliance on Lake Cable is misplaced. Although the facts of Lake Cable are similar to the facts in the present case, there are several crucial distinguishing factors. Specifically, the pertinent language of the agreement in Lake Cable is quite different from the Agreement between Mark and K-0. While the parties in Lake Cable agreed that “[b]ook value shall be determined by general accounting principals [sic] consistently applied in accounting for the corporation’s operations [,]” K-0 and Mark never referenced a “book value” or that accounting principles would be those employed in accounting for K-O’s operations. (Emphasis added). To the contrary, K-0 and Mark agreed that the “value of the stock shall be its fair market value as of the end of the fiscal year preceding his ... termination of employment ... as determined under the business valuation by the accountant then providing the accounting service to [K-0] using regularly accepted accounting principles consistently applied.” (Emphasis added).

Most importantly, the trial court in Lake Cable ordered specific performance, and we affirmed on appeal, only after the parties received a full trial on the merits. Indeed, the court afforded both parties a full and fair opportunity to present testimony at trial regarding various possible interpretations of the valuation provision in the agreement. In this case, however, by granting summary judgment on K-O’s specific performance claim, the trial court deprived Mark of the opportunity to present evidence to the trier of fact on the appropriateness of the accounting principles applied by Alton.

Under these circumstances, and in light of the fact that we review the record in the light most favorable to Mark, we believe the propriety of the valuation method applied was sufficiently raised in response to K-O’s motion for summary judgment on its Petition for Specific Performance and remains a genuine issue of material fact to be resolved at trial. Point granted.

II. Derivative and Individual Shareholder Claims

Mark next asserts that the trial court erred when it granted summary judgment on Mark’s suit against Kevin. Specifically, Mark contends that he has standing to bring his claims both derivatively and individually. In response, Kevin argues: (1) Mark does not have individual standing to bring his claims against K-0; and (2) in light of our holding in Schwartz v. Custom Printing Co., 926 S.W.2d 490 (Mo.App. E.D.1996), Mark lost standing to bring a shareholder derivative suit the day he was terminated.

We first address Mark’s individual standing to bring suit. As a general matter, “corporate shareholders cannot in their own right and for their personal benefit maintain an action for the recovery of corporate funds or property improperly diverted or appropriated by the corporation’s officers and directors” because the injury is to the corporation and not the shareholders individually. Place v. P.M. Place Stores Co., 950 S.W.2d 862, 865 (Mo.App. W.D.1996). Likewise, an action based on acts relating to a corporation’s capital stock as a whole is a corporate cause of action that can only be sued for derivatively. Id. Here, the underlying allegation in each of Mark’s three counts against Kevin is that Kevin misappropriated corporate assets and opportunities belonging to K-O. Accordingly, Mark did not have standing as an individual to bring suit for the corporate assets and opportunities belonging to K-O.

We next address Mark’s standing to bring his suit as a shareholder derivative action. Kevin asserts that Mark lost any standing he had to bring his claims against Kevin derivatively when K-O, by and through Kevin, terminated Mark’s employment. In support of his assertion, Kevin relies on Schwartz, supra.

In Schwartz, the plaintiff brought suit after his termination seeking specific performance of a “Common Stock- Agreement” and claiming breach of fiduciary duty individually and derivatively, on behalf of the corporation. The plaintiffs employment was governed by both an employment contract as well as a “Common Stock Agreement” which provided, in pertinent part, that whenever plaintiffs employment ceased, for any reason, his shares of stock were to be sold back to the corporation. Schwartz, 926 S.W.2d at 492. The corporation terminated plaintiff and he filed suit against the corporation. Id. In his second amended petition, which was the subject of his appeal, plaintiff alleged several causes of action including, inter alia, a shareholder derivative claim for breach of fiduciary duty. Id.

On appeal, we affirmed the trial court’s grant of summary judgment on plaintiffs shareholder derivative claim holding that, in that case, plaintiff lacked standing to file a derivative action because under the terms of the Common Stock Agreement, plaintiff lost his right to hold shares in the corporation as soon as he was terminated. Id. at 494. Specifically we found, “[plaintiffs] standing as a shareholder — and the concomitant right to bring a shareholder derivative action — was abolished on July 12, 1991[,]” the date of his termination.' Id. Kevin asserts that in light our holding in Schwartz, Mark lost his standing to bring a shareholder derivative action the day he was terminated.

Mark argues that under Rule 52.09, the Missouri Rule governing Derivative Actions by Shareholders, Mark was only required to be a shareholder at the time of Kevin’s alleged wrongdoing and therefore his ultimate termination is irrelevant to his derivative suit. Mark’s assertion is contrary to our holding in Schwartz and unpersuasive. Consistent with Schwartz, Mark lost his standing to bring suit as of the date he was no longer a shareholder of K-O. See also, PVI, Inc. v. Ratiopharm GmbH, 253 F.3d 320, 328 (8th Cir.2001) (because the plaintiff no longer held “an equitable ownership interest in [the corporation], under Missouri law [plaintiff] could not bring a shareholders’ derivative suit on behalf of [the corporation].”). Accordingly, because Mark had neither individual nor derivative standing to bring suit against Kevin, the court properly granted Kevin’s Motion for Summary Judgment. Point denied.

Conclusion

The judgment of the trial court is affirmed in part and reversed and remanded in part.

KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ., concur.

      . On January 1, 1995, K-O was valued at $170,000.

      . In his second and third points on appeal, Mark alleges that the trial court erred when it granted summary judgment on K-O’s Petition for Specific Performance because: (1) K-0 failed to assert material facts to negate his affirmative defenses to K-O’s Petition for Specific Performance; and (2) K-0, by and through Kevin, engaged in inequitable conduct thus denying it the benefit of the equitable remedy of specific performance. In light of our determination that summary judgment was inappropriate because there remains a genuine issue of material fact to be resolved at trial, we decline to address Mark’s Point II and Point III.

      . In his final point on appeal, Mark alleges that the trial court erred when it granted summary judgment on Mark’s Petition for an equitable accounting, conversion and fraud because there exists a genuine issue of material fact as to whether Mark ratified Kevin's alleged wrongful conduct. In light of our determination that Mark lacked standing to bring this suit, we do not address Mark’s final point.


text:
    Shirley TRUEL, Claimant/Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondent.
    No. ED 86224.
    Missouri Court of Appeals, Eastern District, Division Five.
    June 30, 2005.
    Shirley Truel, Union, MO, for Appellant.
    Cynthia A. Quetsch, Jefferson City, MO, for Respondent.
   GEORGE W. DRAPER III, Chief Judge.

Shirley Truel (Claimant) appeals from the Labor and Industrial Relations Commission (Commission) decision dismissing her application for review as untimely. We dismiss the appeal for lack of jurisdiction.

A deputy of the Division of Employment Security (Division) determined that Claimant was ineligible from receiving unemployment benefits, because she had not earned five or ten times her weekly benefit since the filing date of a previous unemployment claim. Claimant appealed to the Appeals Tribunal, which dismissed her appeal. The Appeals Tribunal mailed its decision to Claimant on January 26, 2005. Claimant filed an application for review with the Commission on February 26, 2005. The Commission dismissed the application for review, concluding it was untimely under section 288.200, RSMo 2000. Claimant now appeals to this Court.

Claimant has only thirty (30) days from the mailing of the Appeals Tribunal decision to file an application for review with the Commission. Section 288.200.1. Here, the Appeals Tribunal certified that it mailed its decision to Claimant on January 26, 2005. Therefore, Claimant’s application for review to the Commission was due thirty days later, on February 25, 2005. Section 288.200.1. Claimant’s application for review to the Commission was postmarked February 26, 2005. Therefore, Claimant’s application for review was untimely.

Respondent has filed a motion to dismiss Claimant’s appeal. Claimant has not filed a response to this motion. However, in her notice of appeal to this Court, Claimant asserted that Saturdays and Sundays should not be considered in counting the thirty days. She also asserted that the Court should consider the mail takes two to three days to be delivered.

The timely filing of an application for review in an unemployment case is jurisdictional and requires strict compliance. Guebert v. Professional Installers, Inc., 128 S.W.3d 615, 615 (Mo.App.E.D.2004). Because of the strict compliance required to meet the time deadlines, the statutes do provide some assistance in complying with those requirements. First, although Claimant’s assertion that Saturdays and Sundays should not be considered in counting the thirty days has no merit, if the last day for filing an application for review falls on a Saturday, Sunday or legal holiday, “the filing shall be deemed timely if accomplished on the next day which is neither a Saturday, Sunday, nor a legal holiday.” Section 288.240, RSMo 2000. Here, the last day for filing Claimant’s application for review was Friday, February 25, 2005. Therefore, this provision in section 288.240 is inapplicable.

In addition, when an application for review is mailed, it is “deemed to be filed as of the date endorsed by the United States post office on the envelope or container in which such paper is received.” Section 288.240. Therefore, the time of mailing is considered in determining when an application for review is filed. Here, Claimant’s application for review was postmarked February 26, 2005, which is untimely. There are no other provisions in the statute that would provide exceptions for Claimant’s untimely filing. The unemployment statutes do not provide any mechanism for filing a late application for review with the Commission. Crowden v. General Sign Co., 133 S.W.3d 562, 563 (Mo.App. E.D.2004).

Claimant’s failure to file a timely application for review divests the Commission, and ultimately this Court, of jurisdiction. Moore v. Northview Village, Inc., 125 S.W.3d 347, 348 (Mo.App. E.D.2004). Respondent’s motion to dismiss is granted.

The Claimant’s appeal is dismissed for lack of jurisdiction.

GLENN A. NORTON and NANNETTE A. BAKER, JJ„ concur.