author: RONALD R. HOLLIGER, Judge.

text:
    BATES COUNTY REDI-MIX, INC., Appellant, v. Loren D. and Debbie K. WINDLER, d/b/a Windler Backhoe Services, Defendant, Michelle L. Cole, Respondent, and National City Mortgage, d/b/a Commonwealth United, Respondent.
    No. WD 63152.
    Missouri Court of Appeals, Western District.
    Feb. 22, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 29, 2005.

      Lynn K. Ballew, Harrisonville, for appellant.
    Richard Koehler, Butler, Dennis Campbell Owens, Kansas City, for Michelle Cole, respondent.
    John Pursley, Butler, and Jeffrey Weis-man, Earth City, for National City Mortgage, respondent.
   RONALD R. HOLLIGER, Judge.

Bates County Redi-Mix, Inc., (“Bates”) appeals from a judgment denying it a mechanic’s lien against property owned by Michelle Cole. It is undisputed that Bates furnished concrete to the subcontractor of a general contractor hired by Cole. The concrete was improperly installed, rendering the entire foundation unusable and necessitating that it be completely .torn out and replaced. In a case of first impression, Bates asks, as an innocent material-man, to be awarded a lien for its material, even though the material it supplied was never incorporated into the final structure and added no value to the property. We hold that Bates was entitled to a mechanic’s lien upon Cole’s property and reverse and remand with directions that the trial court enter judgment in favor of Bates on its hen claim.

Facts And Procedural Background

Michelle Cole purchased land in Bates County upon which she intended to place a manufactured home. The manufactured home needed to be set upon a basement foundation, and she contracted with Loren Windier, as general contractor, to erect the foundation. Windier, in turn, engaged Mr. Beers as a subcontractor to construct concrete forms and to pour the concrete for the project. Windier also contracted with Bates County Redi-Mix, who would supply the concrete for the basement foundation.

Bates delivered concrete to the construction site on November 15, 1999, and December 2, 1999. Shortly thereafter, it was discovered that the basement foundation was unsuitable for installation of the manufactured home. In places, the basement walls were out of plumb by several inches. In other places, the walls bowed significantly. The basement, as a whole, was also wider than much of the manufactured home. The construction methods introduced dry joints that would be prone to water leakage. There were also parts of the foundation, such as frost footings, and adjacent structures, such as retaining walls, that were not poured at all. Thus, the work performed was both defective and incomplete.

There was no claim that any of these problems were due to the materials supplied by Bates or that those materials were in any way unsuitable. Instead, all of these deficiencies were due to errors made by Beers in setting up the concrete forms for the project and mistakes made by him during the pouring of the concrete into the forms.

Windier and Beers suggested possible ways of correcting the deficiencies in the work. However, Cole concluded that those suggestions would not resolve the problems in a satisfactory manner. Therefore, she instructed Windier to completely remove the foundation. The foundation was completely demolished and transported off Cole’s land. Cole later obtained the services of a different contractor who built a replacement foundation. Cole ultimately placed her manufactured home on the second foundation.

Cole did not pay Windier for either labor or materials for the work on the original foundation. Windier stopped payment on a check provided to Bates for the concrete it supplied and Bates’ services in pumping the concrete. The check, in the amount of $4,065.47, was returned unpaid. Windier subsequently paid Bates a portion of that amount as restitution arising out of criminal charges, leaving an unpaid balance due to Bates in the amount of $2,914.47 for its materials and services.

Bates timely provided Cole notice of its intent to seek a mechanic’s lien on the property for the unpaid balance. It filed suit to perfect its lien on June 2, 2000. The matter proceeded to trial, and the trial court initially entered judgment in favor of Bates. Cole and her mortgagor subsequently filed a motion for new trial. Upon that motion, the trial court concluded that its original judgment was in error and set it aside.

The trial court’s final judgment, issued on July 24, 2003, found that Bates was not entitled to a mechanic’s lien against Cole’s property because the concrete it supplied was completely removed from the property and was not incorporated in any manner in the rebuilt foundation. Bates now appeals.

Discussion

Bates raises two points in the present appeal. In its first point, it argues that the trial court erred in denying its claim for a mechanic’s lien because its lien interest attached to the property at the time it provided materials that were used in the construction of the original basement and foundation on Cole’s property. In its second point, Bates contends that, even if it was not entitled to a mechanic’s lien against the finished structure on Cole’s property, given that none of the Bates-supplied concrete was used in its construction, the trial court erred by refusing to recognize that it had a valid lien against the land itself. We find Bates’ first point to be dispositive.

As a bench-tried case, our review of the trial court’s judgment is conducted under the Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), standard of review. See Ken Cucchi Constr. Inc. v. O’Keefe, 973 S.W.2d 520, 523 (Mo.App.1998). In both points on appeal, Bates contends that the trial court misapplied the law in reaching its judgment. With regard to conclusions of law, we conduct our review independently and do not defer to the trial court. See Barry Serv. Agency Co. v. Manning, 891 S.W.2d 882, 887 (Mo.App.1995). Of course, determining the correct legal conclusion depends upon the operative facts before the court. In determining what the facts before the court were, we view the evidence in the light most favorable to the judgment, disregarding all contrary evidence. See Ken Cucchi Constr., 973 S.W.2d at 524.

Mechanic’s liens were unknown at common law and exist purely as a creature of statute. Section 429.010 provides, in relevant part:

Any person who shall do or perform any work or labor upon, or furnish any material, fixtures, engine, boiler or machinery for any building, erection or improvements upon land, or for repairing the same, ... under or by virtue of any contract with the owner or proprietor thereof, or his agent, trustee, contractor or subcontractor, ... upon complying with the provisions of sections 429.010 to 429.340, shall have for his work or labor done, or materials, ... a lien upon such building, erection or improvements, and upon the land belonging to such owner or proprietor on which the same are situated, ... to secure the payment of such work or labor done, or materials ... furnished[.]

This section has remained substantially unchanged since 1855, save for amendments expanding the classes of claimants covered (such as nurserymen) or other minor, technical, changes. See Chap. 109 Section 1, RSMo 1855. The mechanic’s lien statute is remedial in nature and should be construed as favorably to mechanics and materialmen as their terms permit. Yamnitz v. Polytech, Inc., 586 S.W.2d 76, 84 (Mo.App.1979). Nevertheless, it cannot be extended to facts hot fairly within its general scope. McGuinn v. Federated Mines & Milling Co., 160 Mo.App. 28, 141 S.W. 467, 469 (1911). Its purpose is to guarantee effective security to those who furnish labor and materials for the improvement of the owner’s property. Ladue Contracting Co. v. Land Dev. Co., 337 S.W.2d 578, 584 (Mo.App.1960).

Bates argues that, under Missouri law, its lien attached at the time that the concrete material was delivered and incorporated into the construction of the foundation. More precisely, it argues that the trial court erred in holding that the lien was extinguished by removal of the foundation by the property owner. Implicit in this argument is the contention that, once the materials are incorporated into the construction, the policy of the mechanic’s lien law as applied to an innocent supplier places the risk of loss on the property owner.

Both parties agree with the general principle that, in order for a materials supplier to assert a mechanic’s (or, more properly, materialman’s) hen against property, those materials must have “ ‘actually entered’ or ‘went into’ or were ‘used in’ the construction of the building.” Boyer Lumber, Inc. v. Blair, 510 S.W.2d 738, 745 (Mo.App.1974). To be “used in” the property, it is not essential that the supplied materials become a permanent part of the construction. Id. However, if the supplied materials do not become a permanent part of the structure, then a mechanic’s lien is available only if the use or consumption of those materials was necessary for completion of the finished structure. See id. (quoting Oliver L. Taetz, Inc. v. Groff, 363 Mo. 825, 253 S.W.2d 824, 831 (Mo.1953)). Cole argues, however, that the materials supplied must be integrated into the final structure and thereby improve the land. She relies heavily upon Shine’s Executrix v. Heimburger, 60 MoApp. 174 (Mo.App.1895), and Tallman Co. v. Villmer, 133 S.W.2d 1085 (Mo.App.1939).

In Shine’s Executrix, the issue was whether a subcontractor could obtain a mechanic’s lien for work performed on a brick building destroyed due to a wind storm prior to the building’s completion and rebuilt by another subcontractor (after the first subcontractor refused to perform the work). See 60 Mo.App. at 176. The appellate court reviewed cases from a number of different jurisdictions before reaching the conclusion that, where the building was destroyed during construction and prior to completion and acceptance by the property owner, the property owner should not bear the loss, in the absence of a contract provision to the contrary. See id. at 185. From that premise, the court concluded that the subcontractor was not entitled to a mechanic’s lien against either the land or the structures upon it. See id.

In Tollman, the supplier of a hot water heating plant was unable to claim a hen interest where the hot water heating plant was only partially installed in a building, before being removed and replaced by a substitute unit by the property owner. See 133 S.W.2d at 1088. In the comb’s view, the original heating plant not only failed to become part of the structure, it also held that a lien was unavailable because it did not provide any “benefit or improvement” to the property. See id.

Shine’s Executrix, however, has several factual differences from the case at hand whose potential significance bears further examination. First and foremost, the Shine’s Executrix decision involves a brick subcontractor who also supplied the brick and was, therefore, both a subcontractor and a materialman. There, the court approvingly discussed a rule from other states that, as between the general contractor and the homeowner, the risk of loss from destruction of the building was a matter for contract between the parties and that, in the absence of a risk allocation provision, the general contractor should bear the loss because his contractual obligation to build the house was unconditional. 60 Mo.App. at 184. As the court then noted, its precise question was who should bear the risk as between a subcontractor and the homeowner. See id. at 183-84. And, very importantly, the Court said that the answer was largely not to be found in construction of the mechanic’s hen statute but rather in principles of equity and fairness:

The building, before its completion or acceptance, was destroyed by the act of God [a windstorm]. Mrs. Carroll received no benefit from the work performed by Shine. In equity she ought not to pay for it unless she carried the risk.

Id. at 183 (italics added). Here, Cole grabs upon this reference to “no benefit from the work” and urges that, based upon this language, together with other cases referencing an improvement to the value of property, no lien is permitted under the mechanic’s lien statute unless there has been benefit or added value to the property. Clearly, however, the Shine’s Executrix court did not hold that improvement to the value of the property was a statutory element of a mechanic’s lien claim. The lack of benefit to the property, rather, was a consideration in determining whether, under equity principles, a lien already attached should be extinguished. See id.

Shine’s Executrix next considered whether the subcontractor was subject to these same equitable considerations. The court said that “[a]ll the cases concede that a subcontractor is bound to look to the terms of contract between the contractor and the owner” (subject to an exception not relevant here). Id. at 184. From these premises, the court denied his request for a hen on the material or his services:

[WJhere there has been an entire destruction of the building under such circumstances [accidental causes], and none of the old materials have been used in its reconstruction, neither the land nor the new building can be subjected to claims for work done or materials furnished for the first building. To hold otherwise would violate the principle underlying all mechanics lien statutes.

Id. at 185. The question remained, however, whether the same rule would apply to those that were solely materialmen, as opposed to also being a subcontractor providing labor on the project, or whether it would apply to other types of destruction or removal of the materials supplied by the materialman.

Cole’s heavy reliance upon Tollman is, likewise, of limited value. Although the court did say that the lien was properly denied because the materials (a heating plant) did not become a part of the building or add value to it (because it was removed at the direction of the owner when the contractor failed to complete the work), it clearly distinguished its own case from other cases involving materialmen where the material is used, consumed, or depreciated in the construction of the building. Particularly, the court noted the holding in Darlington Lumber Co. v. Westlake Construction Co., 161 Mo.App. 723, 141 S.W. 931, 933 (1911), that, although the materials (lumber used to construct concrete forms) supplied must enter into the construction of the building, they need not become a permanent part of the structure. Tallman, 133 S.W.2d at 1088.

Although relied upon by Bates, Darling-ton is also of limited value to our analysis. Unlike the case at bar, there was no issue in Darlington of defective installation of the construction materials or that the destruction or removal of the materials was for any reason other than normal consumption in the construction process. Most of the other cases cited by both parties (except for cases from other jurisdictions cited by Bates which will be discussed below) state only general principles of mechanic’s hen law and have no direct application to our fact situation. Our own independent research has revealed only a few cases involving material suppliers who were not also contractors or subcontractors performing construction work, as well.

In both Davidson v. Fisher, 258 S.W.2d 297 (Mo.App.1953), and in Kansas City Electrical Supply Co. v. Bomar Electric Co., 581 S.W.2d 411 (Mo.App.1979), a request from a material supplier to impose a lien was denied because of the lack of evidence that the materials were ever used in the construction process. See Davidson, 258 S.W.2d at 302; Bomar, 581 S.W.2d at 413. The question in those cases was whether the materials supplied entered into the construction at all. See Davidson, 258 S.W.2d at 302; Bomar, 581 S.W.2d at 413. There was no issue, therefore, as to whether the materials were defectively installed. Here, there is no dispute that Bates’ concrete was delivered to the job site and was actually used in the construction of a foundation on the property-

In U.S. Water Co. v. Sunny Slope Realty Co., 152 Mo.App. 300, 133 S.W. 371 (1911), the only issue was whether, for filing time purposes, “accrual of indebtedness” referred to accrual against the contractor or the building. The court said:

While the material is sold to the contractor, and while it becomes an indebtedness which accrues against him from the time the sale is completed, yet the very foundation of the lien is that the sale is for the building, and he extends credit to the building. So far as the materialman is concerned, the materialman does not furnish to the subcontractor; he furnishes to the building and he extends credit to the building.

Id. at 372. While this case does not directly address the situation present here, the above statement signifies a distinction between the status and treatment of materi-almen vis-á-vis contractors and subcontractors with regards to mechanic’s liens.

The earliest case that we have discovered suggesting an importance to this distinction, in a more relevant context, is Hydraulic-Press & Brick Co. v. Green, 177 Mo.App. 308, 164 S.W. 250 (1914). Hydraulic-Press supplied brick for construction of a building by Green, the owners’ contractor. When Hydraulic-Press sued for a lien, the owners defended on several grounds, including that the contractor did not properly install some of the brick mortar, the contractor made a mistake in the placement of a wall and it had to be rebuilt, that some bricks were wasted when the wall was torn down, that too many bricks were ordered, and that the contractor was guilty of a variety of other misdeeds in the construction of the building. After the defendants’ pro se victory at trial, Hydraulic-Press appealed, arguing that the court should not have admitted much of the defendants’ evidence about the contractor’s misconduct and that it was entitled to a mechanic’s lien for the reasonable value of the materials it supplied.

The court reversed, saying that “[t]he case appeal’s to have been tried on an erroneous view of the nature of the respective relations of owner and contractor and contractor and materialman.” Id. at 252. After quoting from Section 8122, RSMo 1909, which, in relevant part, is identical to the present Section 429.010, RSMo 2000, the court said:

A materialman who, under contract with the contractor erecting a building under contract with the owner, furnishes materials for use in the building which are so used is entitled to a lien on the premises for the reasonable value of such materials, and to enforce such lien, regardless of the defaults and delinquencies of the contractor in the performance of his contract with the owner.

Id. (emphasis added). The court then held that the only remaining inquiries were whether or not the materials were used in the building and whether materials are used “when they are reasonably consumed in the improvement, regardless of whether or not they are made an integral part of the permanent structure.” Id. at 253. Although Hydraulic-Press is highly instructional on the difference between the relationship of owners with materialman, as opposed to contractors, it, again, did not involve complete destruction or removal of the improvements, since virtually all of the brick supplied by Hydraulic-Press was reused when the wall was rebuilt.

The only other Missouri case involving a materialman and destruction or removal of the improvement is Boyer Lumber, Inc. v. Blair, 510 S.W.2d 738 (Mo.App.1974) (overruled for other reasons in R.L. Sweet Lumber Co. v. E.L. Lane, Inc., 513 S.W.2d 365 (Mo.1974)). Boyer Lumber supplied various building materials for construction of a house. After construction was well along, a fire occurred in the attic, damaging the roof and also burning some paneling that that was stacked on floors but had not yet been installed. Replacement costs for the lumber destroyed were approximately $2,000. The trial court granted Boyer Lumber a mechanic’s lien for over $12,000, including the cost of the replacement paneling. On appeal, there were a number of issues in dispute, including whether the contractor had diverted some of the new material after the fire to other projects and whether all of the material supplied was reasonably necessary for the home’s construction. The appellate court found the evidence sufficient to conclude that the material had been used in the construction and with regard to the burned paneling said, “Although the paneling was not incorporated into the house, it was nevertheless ‘consumed’ in the sense of being used or depreciated before it could have been incorporated into the structure and we believe that in this posture it should be considered as a lienable item.” Id. at 747.

Bates County also points to a number of decisions in other states. It claims that there is a division of opinion among the states largely turning upon whether the state follows the so-called “Pennsylvania Rule.” That rule, it appears from the sources cited, strictly eliminates a mechanic’s lien when the building is destroyed or removed from the land, for whatever reason and without reference to any fault by any party. The sources also suggest that the Pennsylvania Rule is a minority view.

We have discovered no Missouri case expressly referencing the Pennsylvania Rule, but the court in Shine’s Executrix discussed Pennsylvania cases applying that rule and cases from other jurisdictions applying a different rule. 60 Mo.App. at 179-84. The court seemed to find that the essential difference between the two lines of foreign cases depends either upon a policy decision (as in Pennsylvania) or when the lien attaches. The court observed that in New York the lien attached only when the notice of hen was filed, where in other states the hen attached at the time the work was performed or the materials were delivered. See id. at 180-82. Without further explication or discussion of these differences, and perhaps due to the divergent positions taken in the various cases, the Shine’s Executrix court found itself “substantially without a precedent.” Id. at 183.

Our Supreme Court recognized early the danger of relying upon decisions of other states in interpreting Missouri’s mechanic’s lien law. In Henry & Coatsworth Co. v. Evans, 97 Mo. 47, 10 S.W. 868 (1889), the Court said regarding the gradual development of such laws in Missouri from early statehood days that:

Its framers embodied in it some materials acquired from the statutes of other states, and some of the products of their own labor, forming thus a composite structure in many respects unlike the laws elsewhere on the subject. The points of dissimilarity must be clearly borne in mind to avoid the error of applying, to the interpretation of our own statute, decisions of other states construing language quite different.

Id. at 868-69. Although the issue in Henry & Coatsworth Co. was different from that now presented, the same principle must be recognized when arguments are made that Missouri follows (or should follow) the “Pennsylvania Rule” or “New York Rule” or some other rule, or that decisions of other states should be persuasive in the context of Missouri mechanic’s lien law.

Bates argues that we should decline to follow Shine’s Executrix and adopt what it claims to be the majority rule within decisions of other states. Although Shine’s Executrix may be subject to some criticism as to subcontractors, it is distinguishable from the case at hand upon the same equitable principles and concepts of risk of loss that compelled the Shine’s Executrix court to reach its decision. We view Shine’s Executrix as neither adopting the “Pennsylvania Rule” nor any other foreign rule but was, instead, based upon a policy consideration of who should bear the risk of loss under those particular facts. Because the contractor had the opportunity to contractually allocate the risk of accidental destruction to the owner (or even to insure his own risk) the equities favored placing the loss on the contractor, rather than the innocent property owner. The specific subcontractor, in turn, because of his contractual relationship as agent for the general contractor, was subjected to the same duties and risks as the contractor. As to materials provided by a subcontractor, he has an insurable interest in those materials and can protect some portion of his risk. He can also potentially protect the value of his labor by a performance or payment bond.

Despite the holding in Shine’s Executrix, the general policy in Missouri mechanic’s lien law has remained that the statutes are to be liberally construed as favorably to materialmen as their terms permit, Refrigeration Supplies, Inc. v. J.L. Mason of Mo., Inc., 872 S.W.2d 105, 107 (Mo.App.1994), subject to the requirement that the lien claimant prove reasonable and substantial compliance with the statutory requirements. Patrick V. Koepke Constr., Inc. v. Woodsage Constr. Co., 844 S.W.2d 508, 512 (Mo.App.1992).

The materialman stands in a far different position than a contractor. He has no contractual relationship with the owner. Because the contractor is the agent of the owner only for purposes of binding the land for payment of the materialman’s debt, the supplier cannot seek a personal judgment against the owner. The materi-alman, unlike the contractor, cannot contractually allocate the risk of loss and would likely be unable to insure most risks, since he parts with his interest in the materials once they are sold and delivered. Further, unless the materials themselves be defective, the materialman is totally innocent and removed from the malfeasance of the contractor (who is chosen by the owner) in the use of the materials and is at least as innocent as the owner in the event of accidental destruction of the building in which the materials had been used.

Again, Henry & Coatsworth touches upon these principles but in a different context. There, a subcontractor sought a lien for the reasonable value of his materials and the owner attempted to defend upon the basis that the aggregate of all liens exceeded the owner’s contract price with the general contractor, and the owner had paid the full contract price to the general who used it to pay other liens. The court said that the risk of recovery from the general contractor has been placed by the legislature upon the owner rather than upon subcontractors who supply materials and labor. 10 S.W. at 872. The court then explained that this allocation of risk was the application “of the familiar legal principle that, when one of two innocent parties must suffer a loss by reason of the fault of a third, that loss should be borne by him who gave the third person power to commit the fault. The aim seems to be to protect those whose material or labor has enhanced the value of property, against the business misfortunes or possible frauds of any middleman, at whose instance they furnished the same.” Id. (citations omitted). We believe that this principle has persuasive application in situations, such as here, where a materialman advances credit to land at the request of a contractor chosen by the owner and the contractor (or his agent) then performs the work deficiently. The owner is in a better position to see that a contractor performs his job properly than the one who supplies the materials. This conclusion is consistent with the statutory intent to protect laborers and material-man.

Given the purpose of the mechanic’s lien law to encourage suppliers to extend credit to the land for improvements to be made, we believe that the proper result is that the innocent materialman be entitled to a mechanic’s lien, even for defectively installed materials that are subsequently removed from the property. We recognize that the owner here is also innocent, as compared to those responsible for the defective installation of the concrete. However, as observed in Farmington Building Supply Co. v. L.D. Pyatt Construction Co., 627 S.W.2d 648, 650 n. 1 (Mo.App.1981), “[g]iven the usual doctrine that where one of two innocent parties must suffer loss[,] the loss should be borne by the one most culpable, this statutory scheme [the mechanic’s lien law] is an anomaly.”

Bates was entitled to its mechanic’s lien upon Cole’s property. The trial court, therefore, erroneously applied the law in rendering judgment in Cole’s favor. The cause is reversed and remanded with directions to enter a judgment for Bates on its lien claim.

THOMAS H. NEWTON, Presiding Judge, and HAROLD L. LOWENSTEIN, Judge, concur.

      . This person’s given name is not apparent on the face of the record.

      . A "dry joint” or "cold joint” is where concrete is poured on top of other concrete that has already begun to set and become firm.

      . The first mechanic’s lien statute was adopted in Maryland to promote and encourage the building of the nation’s capítol. Free-form Pools, Inc. v. Strawbridge Home for Boys, Inc., 228 Md. 297, 179 A.2d 683, 686 n. 1 (1962).

      . The mechanic’s lien law in effect prior to 1855 appears to have been first enacted on December 19, 1821. Under that provision:
      Artisans,' builders, mechanics and those who furnish materials for buildings shall have a lien upon such materials furnished, and to work and labor done on houses and other edifices by them hereinafter erected in whole or in part, each artisan, builder, mechanic and laborer for his own work and each of those who furnish materials, for so much as the said materials are worth or agreed to be paid for.
      1 Territorial Laws, p. 803 (1842) (Chapter 346, Section 1).

      . It appears that the policy reason behind this requirement was to prevent contractors from obtaining material from suppliers for a particular construction project, having the materials delivered to the job site, then covertly transporting those materials to a separate construction site for use in another building. See State v. Gregory, 170 Mo. 598, 71 S.W. 170, 171 (1902).

        . The opinion explains that, while the value of damages against the owner is the reasonable value of the materials, this may or may not be the contract price with the contractor or subcontractor. Id.

      . At least that we have discovered.

      . In one other case, Berkshire Lumber Co. v. J.S. Chick Inv. Co., 168 Mo.App. 342, 153 S.W. 1078 (1913), a lien for materials was granted even though it had been torn out by the owner as "not satisfactory.” Without discussion or citation to any authority the court said that the flooring was of the kind and quality ordered. "If put into the building and then torn out, the loss should not be put upon plaintiff.” Id. at 1079.

      . The difficulty in classifying various states on any of these issues, and particularly upon the present issue, has been recognized by various secondary sources. See generally, 53 Am. Jr.2d Mechanic’s Liens, Section 316; See also Annotation, Destruction, demolition, removal of, or damage to improvement as affecting mechanic's lien, 74 A.L.R. 428 (1931).

      . Shine's Executrix did not consider some of the important differences between a general contractor and a subcontractor. Some specific differences between the general contractor and subcontractor are that the subcontractor usually contracts to perform a specific portion of the work, not a completed building, and has no contractual relationship with the owner which would provide the opportunity for risk allocation.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Manu PATEL, Respondent, v. STATE of Missouri, Appellant.
    No. ED 84479.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 22, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 11, 2005.
    Application for Transfer Denied May 31, 2005.
    Michael J. Gorla, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Manu Patel (“movant”) appeals from the judgment denying his Rule 29.15 motion for post-conviction relief.

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

The judgment of the trial court is affirmed in accordance with Rule 84.16(b).


text:
    Greg H. HOELTING and Stephanie Hoelting, Appellants, v. CITY OF WELDON SPRING, Respondent.
    No. ED 84409.
    Missouri Court of Appeals, Eastern District, Division Two.
    Feb. 22, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 19, 2005.
    Application for Transfer Denied May 31, 2005.
    Harold G. Johnson, St. Ann, MO, for Appellant.
    Robert M. Wohler, O’Fallon, MO, for Respondent.
    Before PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ.
   ORDER

PER CURIAM.

Greg and Stephanie Hoelting (collectively referred to as “the Hoeltings”) appeal the judgment entered following a bench trial in favor of the City of Weldon Spring (‘Weldon Spring”) concerning the special Neighborhood Improvement District (NID) tax assessment as well as their claim for attorney fees. On appeal, the Hoeltings argue the trial court erred (1) in ruling they had to pay Weldon Spring’s NID tax assessment because Weldon Spring failed to show that they received a benefit and (2) in failing to award attorney fees to the Hoeltings. We affirm.

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


text:
    Carolyn R. HOLLOWOOD, Appellant, v. ST. LUKE’S EPISCOPAL-PRESBYTERIAN HOSPITALS, INC., Unity Health System, Inc., and George Tucker, M.D., Respondents.
    No. ED 83747.
    Missouri Court of Appeals, Eastern District, Division One.
    Feb. 22, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 11, 2005.
    Application for Transfer Denied May 31, 2005.

      Michael Waxenberg, St. Louis, MO, for appellant.
    Paul N. Venker, Lisa A. Larkin, Thomas B. Weaver, Cynthia A. Sciuto, St. Louis, MO, for respondent.
    Before SHERRI B. SULLIVAN, P.J., GLENN A. NORTON, J., BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Carolyn R. Hollowood (“Hollowood”) appeals from the trial court’s judgment dismissing her petition against St. Luke’s Episcopal-Presbyterian Hospitals, Inc. (“Hospital”), Unity Health System, Inc. (“Unity”), and George Tucker, M.D. (“Doctor”) with prejudice. Hollowood raises three points on appeal. First, Hollowood claims the trial court erred in dismissing Count I of her petition for wrongful discharge because she stated a claim upon which relief could be granted. Second, Hollowood argues the trial court erred in dismissing Count II of her petition for defamation because Doctor, acting as an agent of Hospital and Unity, published a false statement about her that caused her public ridicule and interfered with her ability to obtain employment. Third, Hol-lowood claims the trial court erred in dismissing her petition with prejudice because she claims she requested leave to amend her petition, but was not offered the opportunity to do so.

We have reviewed the briefs of the parties, the legal file, and the transcript on appeal and find the claims of error to be without merit. An extended opinion reciting the detailed facts and restating the principles of law would have no prece-dential value. The judgment is affirmed pursuant to Rule 84.16(b). The parties have been furnished with a memorandum for their information only, setting forth the reasons for the order affirming the judgment pursuant to Rule 84.14(b).


author: THOMAS H. NEWTON, Judge.

text:
    Stephen M. JOHNSON, Appellant, v. GMAC MORTGAGE CORPORATION, et al.; Defendant, GMAC Bank, Respondent.
    No. WD 63822.
    Missouri Court of Appeals, Western District.
    Feb. 22, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 29, 2005.
    Application for Transfer Denied May 31, 2005.

      Loren W. Moll, Overland Park, KS, for appellant.
    Charles W. German, Kansas City, MO, for Respondent & Defendant.
    Before LISA WHITE HARDWICK, P.J., ROBERT G. ULRICH and THOMAS H. NEWTON, JJ.
   THOMAS H. NEWTON, Judge.

This appeal stems from a failed mortgage loan refinancing transaction. Mr. Stephen M. Johnson contends that respondents GMAC Bank (GMAC) and GMAC Mortgage Corporation (Mortgage Corporation) violated the federal Truth in Lending Act (TILA) and that he properly exercised his right to rescind the loan agreement, triggering their duty to return his money to him and to release the deed of trust over the property. The trial court dismissed all of Mr. Johnson’s claims for relief against respondents, and he now appeals from that judgment of the trial court.

We conclude that Mr. Johnson’s TILA claims are not barred by the applicable statute of limitations because these claims relate back to his previous pleadings. We also conclude that Mr. Johnson stated a claim for relief against respondents in the declaratory judgment, quiet title, and conversion counts of his second amended petition. The trial court’s decision is reversed and remanded for further proceedings.

I. Factual and Procedueal Background

On September 7, 2002, Mr. Johnson filed a petition against Mortgage Corporation, GMAC, Advantage Investors Mortgage (AIM), and Darrell G. Jarman. In his petition, Mr. Johnson alleged that he had received a mailing from AIM in February 2002 that advertised AIM’s mortgage lending and refinancing services. Mr. Johnson alleged that he responded to the mailing because he was interested in refinancing his house and paying off first and second mortgage loans on the house. Mr. Johnson alleged that AIM never furnished him with any written estimate of the interest rate, monthly payment, applicable fees and the like, but that AIM did make several verbal representations: that the interest rate on the new loan would not exceed 6.5%; that the monthly payment would not exceed $1,102; and that the “[flees and closing costs would not exceed normal and customary charges.”

Mr. Johnson further alleged that he appeared for closing on March 28, 2002, only to learn the following: that the lender would not be AIM but GMAC; that the loan actually carried an interest rate of 7.375%; that the monthly payment actually would be $1,268.43; and that fees and points would exceed $8,000. Mr. Johnson alleged that he had “no interest in proceeding with the deal” at this point, but went ahead and signed the loan documents. He further alleged that he decided to cancel the loan the very next day, signing the cancellation notice that day, sending it via FedEx to the address shown on the cancellation notice, .and confirming that it had been delivered to GMAC on April 1, 2002.

Mr. Johnson alleged that his cancellation of the loan voided the deed of trust and the loan agreement under the applicable truth in lending laws, but that GMAC ignored his cancellation notice, proceeded to pay off his previous first and second mortgages, and then recorded the deed of trust, despite his efforts to contact GMAC and resolve the situation. He further alleged that a GMAC representative demanded payment on the loan and threatened that his credit would be harmed if he failed to pay, so he agreed to make payment on the GMAC loan.

Mr. Johnson asserted eight claims in his original petition: a claim for fraud against AIM and Jarman (count one); a claim for fraud against GMAC and Mortgage Corporation (count two); a claim for violations of the Missouri Merchandising Practices Act against AIM, GMAC, and Mortgage Corporation (count three); a claim for slander of title against GMAC (count four); a claim for declaratory judgment against GMAC (count five); a claim for prima facie tort against AIM, GMAC, and Mortgage Corporation (count six); a claim for conversion against GMAC (count seven); and a claim for punitive damages against all of the defendants (count eight).

On December 3, 2002, Mr. Johnson filed a first amended petition. The first amended petition added a claim against GMAC for failure to release the deed of trust (count nine), but was otherwise identical to the original petition.

Mortgage Corporation and GMAC then moved to dismiss counts two through nine of Mr. Johnson’s first amended petition for failure to state a claim. The circuit court granted the motion for reasons that will be addressed as pertinent below. The court further granted Mr. Johnson leave to file an amended petition.

On July 21, 2003, Mr. Johnson filed a second amended petition. In that petition Mr. Johnson did not reassert his claims for fraud, slander of title, prima facie tort, punitive damages, and release of the deed of trust. Instead, he added claims against AIM and GMAC for violations of TILA (counts one and two) and a claim against GMAC to quiet title (count four). In his TILA counts, Mr. Johnson requested damages for the TILA violations. He also revised his claims for declaratory judgment (count five) and conversion (count six) against GMAC. He revised his Missouri Merchandising Practices Act claim (count three) by dropping Mortgage Company and GMAC from that claim.

GMAC filed a motion to dismiss counts two, four, five, and six of Mr. Johnson’s second amended petition. The trial court granted the motion in its entirety.

Mr. Johnson raises five points on appeal. First, he argues that the trial court erred in dismissing his first and second amended petitions because he stated a claim for relief under TILA. Second, he argues that he stated a claim for declaratory judgment in his first and second amended petitions based upon violations of TILA. Third, he argues that he stated a claim to quiet title in his second amended petition based upon violations of TILA. Fourth, he argues that he stated a claim for violations of TILA in his second amended petition because those allegations related back to the filing of his first amended petition so that the statute of limitations does not bar what otherwise would be untimely TILA claims. And fifth, he argues that he stated a claim for conversion in his first and second amended petitions because GMAC was not entitled to any payment under TILA and he made payments to GMAC for a specific purpose but GMAC diverted those payments to another use.

II. Standard of Review

This court reviews de novo the grant of a motion to dismiss, examining the pleadings to determine whether they invoke principles of substantive law. See Koger v. Hartford Life Ins. Co., 28 S.W.3d 405, 409-10 (Mo.App. W.D.2000). As the Missouri Supreme Court has said:

A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiffs petition. It assumes that all of plaintiffs averments are true, and liberally grants to plaintiff all reasonable inferences therefrom. No attempt is made to weigh any facts alleged as to whether they are credible or persuasive. Instead, the petition is reviewed in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause of action that might be adopted in that case.

Bosch v. St. Louis Healthcare Network, 41 S.W.3d 462, 464 (Mo. banc 2001) (quoting Nazeri v. Mo. Valley Coll., 860 S.W.2d 303, 306 (Mo. banc 1993)).

III. Analysis

A. Neither Mr. Johnson’s Original Petition Nor his First Amended Petition is Properly Before this Court.

Before considering Mr. Johnson’s points on appeal, this court must determine which pleadings are properly before it for review. In several of his points, Mr. Johnson is asking this court to review the dismissal of both his first and second amended petitions. Respondents argue that this court may not consider any issue pertaining to Mr. Johnson’s first amended petition because Mr. Johnson abandoned that pleading when he filed his second amended petition. We agree.

By filing an amended pleading, a plaintiff generally abandons his former pleadings and those pleadings may not be considered for any purpose afterward. Beckmann v. Miceli Homes, Inc., 45 S.W.3d 533, 543 (Mo.App. E.D.2001); see also Lightfoot v. Jennings, 363 Mo. 878, 254 S.W.2d 596, 597 (1953) (where trial court dismisses some but not all claims in pleading, appeals court cannot consider issues arising from that pleading because they were abandoned by amended pleading and are not appropriately before the court). This rule is valid “when the original pleading and the amended pleading are addressed to the same defendant or arise from a dismissal with leave to amend.” R.C. v. Southwestern Bell Tel. Co., 759 S.W.2d 617, 619 (Mo.App. E.D.1988). When a court dismisses a petition with leave to amend, the plaintiff has a choice between standing on the original petition and appealing the dismissal or making the amendment and proceeding to trial on the amended petition. Id. Because the plaintiff in this situation has a choice between appealing or amending, “[i]t is reasonable that the pleading a plaintiff elects to go to trial on is the one that forms the basis for appeal.” Id.

But when “the reason for dismissal is not eorrectible by an amended pleading and the case remains pending against other defendants, the court and the parties should not be required to engage in useless procedural gestures in order to preserve the propriety of the dismissal for review.” Id. at 619-20. In that situation, the general abandonment rule does not apply. Beckmann, 45 S.W.3d at 543.

Mr. Johnson’s second amended petition arises from the trial court’s dismissal of counts two through nine of his first amended petition with leave to amend. This is exactly the situation that R.C. identifies as proper for application of the general abandonment rule. 759 S.W.2d at 619 (“That rule has validity when the original pleading and the amended pleading are addressed to the same defendant or arise from a dismissal with leave to amend.”).

Furthermore, many of the defects cited by the trial court in its dismissal order were at least potentially “eorrectible.” If they were “eorrectible,” then it would not have been “useless” for Mr. Johnson to make corrections to them and re-assert them in his second amended petition. Cf. Gittemeier v. Contractors Roofing & Supply Co., 932 S.W.2d 865, 869 (Mo.App. E.D.1996) (“Gittemeier appeals from summary judgments granted as to four of his claims. Summary judgments are final and may be appealable if so designated. No amendment to Gittemeier’s petition could cure the summary judgment order by the trial court.”); Prayson v. Kansas City Power & Light Co., 847 S.W.2d 852, 853, 859-60 (Mo.App. W.D.1992) (where trial court concluded that claim for direct liability against power company was barred by case law and where court denied plaintiffs motion for leave to file second amended petition with this count, plaintiffs did not abandon the count by failing to include it in third amended petition, because it would have been a useless procedural gesture to do so since the trial court merely would have denied their motion again based upon its misunderstanding of the case law); Blum v. Airport Terminal Servs., Inc., 762 S.W.2d 67, 71 (Mo.App. E.D.1988) (plaintiffs did not abandon right to appeal trial court’s dismissal of decedent’s employer from wrongful death action where trial court granted motion to dismiss employer from lawsuit on ground that court lacked subject matter jurisdiction because workers’ compensation law furnished the exclusive remedy against the employer and the reason for the dismissal was not eorrecti-ble by amendment).

Likewise, Mr. Johnson abandoned his original petition by filing his first amended petition. See, e.g., Welch v. Cont’l Placement, Inc., 627 S.W.2d 319, 321-22 (Mo.App. W.D.1982).

We therefore conclude that Mr. Johnson has abandoned his prior pleadings such that they cannot be considered for any purpose here. Accordingly, we review only the dismissal of Mr. Johnson’s second amended petition.

B. The Doctrine of “Relation Back” Saves the TILA Claims in Mr. Johnson’s Second Amended Petition from the Bar of the Statute of Limitations

In his fourth point, Mr. Johnson argues that the trial court erred in dismissing the TILA claims in his second amended petition because those claims “related back” to the filing of his original petition and his first amended petition and, therefore, were not barred by the statute of limitations. Because this point could be dispositive, we address it first.

The parties agree that TILA claims are subject to a one-year statute of limitations. See 15 U.S.C. § 1640(e) (“Any action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation.”). The parties further agree that Mr. Johnson’s TILA claims in this case would be untimely unless they “relate back” to the filing of the original petition or the first amended petition.

Rule 55.33(c) sets forth the doctrine of “relation back” in this state. In pertinent part, it says: “Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.” This rule abrogates the old “same evidence” and “theory of law” tests in favor of the “conduct, transaction, or occurrence” test. Mogley v. Fleming, 11 S.W.3d 740, 750 (Mo.App. E.D.1999). “The language, ‘conduct, transaction or occurrence,’ as used in Rule 55.33(c), is accorded broad and liberal construction.” Id, (internal quotation marks and citation omitted).

Citing cases involving pleading and relation back under the wrongful death statute, respondents argue that the claims do not relate back here given the trial court’s ruling that Mr. Johnson’s first amended petition did not state a cause of action against GMAC. And respondents further argue that Mr. Johnson cannot now challenge the trial court’s ruling on the first amended petition here because — as noted already — he abandoned his first amended petition when he filed his second amended petition. See Butler v. Circulus, Inc., 557 S.W.2d 469, 481-82 (Mo.App.1977).

We agree that Mr. Johnson cannot challenge the trial court’s ruling as to the claims raised in his original and first amended petitions; we do not agree, however, that his TILA claim cannot relate back. While Smith v. Tang, 926 S.W.2d 716, 719 (Mo.App. E.D.1996), states that “[a]n amendment will relate back to the original petition so as to save the action from the statute of limitations only when the original plaintiff had the legal right to sue and stated a cause of action at the time the suit was filed,” this principle is derived from a line of eases whose initial pleadings were filed under the wrongful death statute by plaintiffs who had no right to maintain the action, had no standing to sue under the statute, and were not parties authorized to sue under the strict wording of the statute. See State ex rel. Jewish Hosp. of St. Louis v. Buder, 540 S.W.2d 100, 107 (Mo.App.1976); see also Nelms v. Bright, 299 S.W.2d 483, 487 (Mo. banc 1957) (stating that “[a] party suing under the [wrongful death] statute ... must bring himself in his pleading and proof strictly within the statutory requirements necessary to confer the right. Otherwise his petition states no cause of action, and his proof is insufficient to sustain his judgment.”). The focus in such cases is on the plaintiff and his or her ability to bring the action in the first place. Without the authority conferred by the wrongful death statute, there is no cause of action.

Here, Mr. Johnson did have the authority to file his claims, and his ability to do so is not subject to conditions imposed by the legislature as they are with respect to an action for wrongful death. That a court subsequently determined he had no cause of action on the basis of the allegations in his pleading is entirely distinguishable. We are mindful that our supreme court construes relation back liberally and that Rule 55.33(c) is derived from Rule 15(c) of the Federal Rules of Civil Procedure, which “is based on the concept that a party who is notified of litigation concerning a given transaction or occurrence has been given all the notice that statutes of limitations are intended to afford.” Koerper & Co., Inc. v. Unitel Int’l, Inc., 739 S.W.2d 705, 706 (Mo. banc 1987) (internal quotation marks and citations omitted). The Koerper case overruled Miller v. Werner, 431 S.W.2d 116 (Mo.1968) and implicitly rejected the analysis of Rule 55.33(c) as announced in Welch, 627 S.W.2d at 321-22, which followed the old analysis under cases like Miller. We also note that long before Rule 55.33(c) was adopted, we had a general doctrine that amended petitions relate back to the filing of the original petition, regardless of whether the original petition has been abandoned. In Philip Gruner & Bros. Lumber Co. v. Hartshorn-Barber Realty & Bldg. Co., 171 Mo.App. 614, 154 S.W. 846, 851 (1913), we observed that the doctrine was a legal fiction that should be resorted to for the promotion of justice and the lawful intention of the parties, “by giving effect to acts or instruments which, without it, would be invalid.” Id.

Accordingly, we need only determine whether Mr. Johnson’s TILA claims arose from the conduct, transaction, or occurrence outlined in his original and first amended petitions. Mr. Johnson brought suit in September 2002, mere months after the transaction giving rise to his claims arose. In that petition, Mr. Johnson alleged that his cancellation of the loan was made under “applicable truth in lending laws.” It cannot be said that respondents lacked the notice that statutes of limitation are intended to afford.

C. Mr. Johnson’s Second Amended Petition Stated a Claim for Relief by Way of Declaratory Judgment

Mr. Johnson’s first amended petition requested that the trial court issue a judgment “declaring that the deed of trust mortgage lien is void and that the instrument is of no legal force or effect.” When the trial court dismissed this count it found that Mr. Johnson had failed to state a claim because he had not alleged “that he has tendered or offered to tender back the money GMAC Bank paid toward the prior mortgage loans” and that “[t]his is a necessary element of a claim to rescind.” Mr. Johnson then filed his second amended petition, in which he re-asserted a count for declaratory judgment, requesting that the court issue a judgment “declaring the rights of the parties in and to the security instrument [with GMAC].” When the trial court dismissed this count, it found that it “attempts to restate the plaintiffs previously dismissed count for rescission by renaming it as a cause for declaratory judgment” and that “[a]s such, tender is still an essential element of the plaintiffs claim that remains unstated.”

Mr. Johnson contends that the trial court erred in dismissing these counts of his first and second amended petitions because he was not seeking the equitable remedy of rescission but a declaration of what rights, if any, GMAC had under the deed of trust.

Respondents, on the other hand, contend that Mr. Johnson’s first amended petition is not properly before this court, having been abandoned, and that neither the first amended petition nor the second amended petition alleged sufficient facts to state a claim that the deed of trust was void, because a lender is not required to release a deed of trust unless the borrower tenders or offers to tender repayment of the benefits received.

We have already determined that Mr. Johnson’s first amended petition is not before this court. Therefore, the question before us is solely whether Mr. Johnson has stated a claim for declaratory relief in his second amended petition. Neither party has furnished this court with any helpful authority to determine whether the declaratory judgment count in the second amended petition states a claim for relief.

Respondents simply argue that “the majority of cases ... hold that a creditor is not required to release its security interest upon receiving a notice of rescission unless the obligor tenders or offers to tender repayment.” Riopta v. Amresco Res. Mortgage Corp., 101 F.Supp.2d 1326, 1331 (D.Hawai’i 1999). This may be true, but it is not the same thing as saying that Mr. Johnson must plead tender or an offer of tender to maintain his declaratory judgment action.

15 U.S.C.A. 1635(b) governs the process of unwinding this transaction. It says:

When an obligor exercises his right to rescind under subsection (a) of this section, he is not liable for any finance or other charge, and any security interest given by the obligor, including any such interest arising by operation of law, becomes void upon such a rescission. Within 20 days after receipt of a notice of rescission, the creditor shall return to the obligor any money or property given as earnest money, down payment, or otherwise, and shall take any action necessary or appropriate to reflect the termination of any security interest created under the transaction. If the creditor has delivered any property to the obligor, the obligor may retain possession of it. Upon the performance of the creditor’s obligations under this section, the obligor shall tender the property to the creditor, except that if return of the property in kind would be impracticable or inequitable, the obligor shall tender its reasonable value. Tender shall be made at the location of the property or at the residence of the obligor, at the option of the obligor. If the creditor does not take possession of the property within 20 days after tender by the obli-gor, ownership of the property vests in the obligor without obligation on his part to pay for it. The procedures prescribed by this subsection shall apply except when otherwise ordered by a court.

15 U.S.C.A. § 1635(b) (emphasis added).

Although the security interest “becomes void” upon rescission, the first circuit has explained that a lender need not relinquish its interest until an “appropriate decision maker” has determined that proper grounds for rescission actually exist:

Neither the statute nor the regulation establishes that a borrower’s mere assertion of the right of rescission has the automatic effect of voiding the contract. Section 1635(b) states that, “[w]hen an obligor exercises his right to rescind,” the creditor’s security interest “becomes void.” The natural reading of this language is that the security interest becomes void when the obligor exercises a right to rescind that is available in the particular case, either because the creditor acknowledges that the right of rescission is available, or because the appropriate decision maker has so determined.

Large v. Conseco Fin. Servicing Corp., 292 F.3d 49, 54-55 (1st Cir.2002).

Otherwise, “a borrower could rescind a transaction without any statutory justification simply by alleging that the statutory requirements for rescission had been met.” Id. at 55. But this does not mean that the borrower must plead tender to maintain his action; it merely means that if the borrower does not tender, then the lender does not have to release the security interest until a court can determine whether statutory grounds for rescission actually exist.

Mr. Johnson alleges that he duly notified GMAC of his rescission within three days but that GMAC never acknowledged that he had exercised his right to rescind and never took the action necessary to reflect termination of the security interest. Indeed, Mr. Johnson alleges that GMAC recorded the security interest despite his notice of rescission. Mr. Johnson further alleges that GMAC violated TILA’s disclosure provisions. This court must accept these allegations as true for purposes of determining whether Mr. Johnson stated a claim for relief. See Bosch, 41 S.W.3d at 464.

Accepting these allegations as true, we conclude that Mr. Johnson has stated a claim for declaratory relief here.

We are not persuaded by respondents’ arguments to the contrary that Mr. Johnson must plead tender or an offer of tender. At common law, tender by the borrower is indeed a prerequisite to stating a claim for rescission. Williams v. Homestake Mortgage Co., 968 F.2d 1137, 1140 (11th Cir.1992). Under TILA however, this is not true:

The sequence of rescission and tender set forth in § 1635(b) is a reordering of common law rules governing rescission. ... Under § 1635(b), ... all that the consumer need do is notify the creditor of his intent to rescind. The agreement is then automatically rescinded and the creditor must, ordinarily, tender first. Thus, rescission under § 1635 placets] the consumer in a much, stronger bargaining position than he enjoys under traditional rules of rescission.... Furthermore, because rescission is such a painless remedy under the statute (placing all burdens on the creditor), it acts as an important enforcement tool, insuring creditor compliance with TILA’s disclosure requirements.

Id. (internal citation and quotation marks omitted); see also Large, 292 F.3d at 55 (“Rescission under the TILA is ‘automatic’ in the sense that, in contrast to common law rescission, the borrower need not first return the loan proceeds received under the agreement to effect a rescission.”).

Under TILA, therefore, “the tender back of consideration received is not a prerequisite to rescission. Section 1635(a) requires only that the obligor exercise his right of rescission by notifying the creditor within the prescribed time limit of his intent to rescind.” Rachbach v. Cogswell, 547 F.2d 502, 505 (10th Cir.1976).

This is not to say that the trial court lacks the power to condition an order of rescission upon tender by the obligor. As respondents point out, numerous courts have held that the courts may condition an order of rescission upon such tender. See, e.g., Fed. Deposit Ins. Corp. v. Hughes Dev. Co., 938 F.2d 889, 890 (8th Cir.1991) (“TILA generally provides that the creditor shall perform first (i.e., return monies paid by the debtor and release its security interest); however, the Act gives courts discretion to devise other procedures, including conditioning rescissions upon the debtor’s prior return of the principal.” (citation omitted)); Yamamoto v. Bank of New York, 329 F.3d 1167, 1171 (9th Cir.2003) (indicating that ninth circuit has recognized trial court’s discretion to so condition rescission); Riopta, 101 F.Supp.2d at 1331-32, 1334-35 (borrowers not entitled to summary judgment on claims that lender violated TILA by refusing to release its security interest upon receiving notice of rescission because majority of cases “hold that a creditor is not required to release its security interest upon receiving a notice of rescission unless the obligor tenders or offers to tender repayment” and courts have authority to condition grant of rescission upon such tender if equity requires it).

This power reflects another goal of the statutory rescission process:

to return the parties most nearly to the position they held prior to entering into the transaction. The addition of the last sentence of § 1635(b), stating that “[t]he procedures prescribed by this subsection shall apply except when otherwise ordered by a court,” ... is a reflection of this equitable goal.

Williams, 968 F.2d at 1140.

Nor is it to say that the trial court may not determine whether proper grounds exist for termination after the borrower has notified the lender of the exercise of the right to rescind but before the court grants the remedy of rescission. See, e.g., Large, 292 F.3d at 55-56 (“Rescission under the TILA is ‘automatic’ in the sense that, in contrast to common law rescission, the borrower need not first return the loan proceeds received under the agreement to effect a rescission.... Contrary to what the Larges suggest, however, the use of the word ‘automatic’ in Williams presupposes that the grounds for rescission have been established, either by agreement or by an appropriate decision maker.”).

Also, the respondents have not identified any authority requiring the borrower to plead — in the first instance — that the borrower has tendered or offered to tender. Cf. Quenzer v. Advanta Mortgage Corp., 288 B.R. 884, 888 (D.Kan.2003) (tender may “may be an appropriate condition attached thereto under certain circumstances because of the equitable nature of the statutory remedy” but it is “not mandated” as a prerequisite to rescission).

All of this is consistent with the manner in which the Missouri Supreme Court has interpreted a previous version of TILA. See Ehlert v. Ward, 588 S.W.2d 500 (Mo. banc 1979). In that ease the borrower sought to rescind her credit transaction for sundry violations of TILA and accompanying regulations. Id. at 501. Based upon these violations, the Missouri Supreme Court held that the borrower “was entitled to rescind the credit transaction” and that the trial court “erred in not granting her the requested relief of rescission, including the return of all monies paid by her to respondent and the cancellation of the promissory note and the deed of trust upon her property.” Id. at 503. The court simply concluded that the trial court could condition the granting of such relief upon the tender of the principal proceeds of the loan. Id. at 504. Ehlert does not require the borrower to plead tender in a TILA action, however.

Likewise, none of the other cases cited by respondents require the borrower to plead tender or an offer of tender to be entitled to exercise the right of rescission. Like Ehlert, they merely hold that the courts may condition the grant of rescission upon tender. See Yamamoto, 329 F.3d at 1171; Large, 292 F.3d at 55; Fed. Deposit Ins. Corp., 938 F.2d at 890; Rudisell v. Fifth Third Bank, 622 F.2d 243, 254 (6th Cir.1980) (“Since Congress clearly intended to give a right to rescind to persons in appellants’ situation, this Court feels it must grant them that right. However, since appellants have kept the aluminum siding, this Court feels that appellants should tender the reasonable value of the property they received since they cannot give back what they actually received.... The rescission and return of monies paid to appellee is thus conditioned upon the return to appellee by appellants the reasonable value of the property received.”); Riopta, 101 F.Supp.2d. at 1331-32, 1334—35.

Or they hold that a lender does not forfeit its rights to the property until the borrower first tenders the proceeds. See Mayfield v. Vanguard Sav. & Loan Ass’n, 710 F.Supp. 143, 148 (E.D.Pa.1989) (holding that borrower was entitled to rescind loan agreement based upon lender’s violations of TILA but that lender would not be deemed to have forfeited proceeds of loan absent tender by the borrower); Bustamante v. First Fed. Sav. & Loan Ass’n, 619 F.2d 360, 365 (5th Cir.1980) (dealing with TILA forfeiture provision and holding that the forfeiture provision is not triggered without tender by borrower). This is consistent with the language of the statutory forfeiture provision, which says, “If the creditor does not take possession of the property within 20 days after tender by the obligor, ownership of the property vests in the obligor without obligation on his part to pay for it.” 15 U.S.C.A. § 1635(b) (emphasis added). Thus, while tender by the borrower may not be a prerequisite to exercising the right to rescind, it does appear to be a prerequisite to forfeiture.

Forfeiture is not the issue presented here, however. The issue presented here is simply whether Mr. Johnson has pled enough to entitle him to a declaration of rights in the security instrument. Because that is the issue and because the court may condition any decision requiring respondents to release the security interest upon tender if equity demands it, respondents’ concerns about Mr. Johnson obtaining a “windfall” or a “free house” are misplaced. The trial court can address those concerns. See, e.g., Ray v. Citifinancial, Inc., 228 F.Supp.2d 664, 667 (D.Md.2002) (“Within the meaning of the law, ‘rescission’ does not mean an annulment that is definitively accomplished by unilateral pronouncement. Rather, it contemplates a remedy that restores the status quo ante. If a party has a legal or equitable right to annul a transaction, he may do so, but only upon returning any benefit he has received.”).

D. Mr. Johnson Stated a Claim to Quiet Title

In his second amended petition, Mr. Johnson added a count for quiet title against GMAC. In that count, he alleged that GMAC might claim some right, title or interest in his property under the deed of trust. He further alleged that GMAC’s security interest in his property was void because of his “valid and lawful cancellation of the loan” under TILA. He asked the court to quiet title to the property in him, free of any claim by GMAC.

The trial court dismissed this count as well because the court found that “Defendant GMAC has not asserted a claim to a fee title interest but rather relies on a hen interest based on valid consideration.”

Section 527.150 governs quiet title actions. It says:

1. Any person claiming any title, estate or interest in real property, whether the same be legal or equitable, certain or contingent, present or in reversion or remainder, whether in possession or not, may institute an action against any person or persons having or claiming to have any title, estate or interest in such property, whether in possession or not, to ascertain and determine the estate, title and interest of said parties, respectively, in such real estate, and to define and adjudge by its judgment or decree the title, estate and interest of the parties severally in and to such real property.
2. And upon the trial of such cause, if same be asked for in the pleadings of either party, the court may hear and finally determine any and all rights, claims, interest, hens and demands, whatsoever of the parties, or of any one of them, concerning or affecting said real property, and may award full and complete relief, whether legal or equitable, to the several parties, and to each of them, as fully and with the same force and effect as the court might or could in any other or different action brought by the parties, or any one of them, to enforce any such right, claim, interest, hen or demand, and the judgment or decree of the court when so rendered shall be as effectual between the parties thereto as if rendered in any other, different or separate action prosecuted therefore.

§ 527.150.

Contrary to the trial court’s ruling, it should not matter that GMAC “has not asserted a claim to a fee title interest” because section 527.150 does not apply just to fee title interest but to any “interest” in such property. And section 527.150.2 further specifically mentions “hens.”

Nonetheless, respondents maintain that Mr. Johnson likewise has failed to state a claim for rehef on his quiet title claim because he has not alleged either tender or an offer of tender. Respondents reason that GMAC had no duty to release the deed of trust until Mr. Johnson either tendered or offered to tender repayment, and, therefore, Mr. Johnson cannot show that GMAC’s interest was invalid.

The parties agree that Mr. Johnson’s quiet title claim is very similar to his declaratory judgment claim. Indeed, the Missouri Supreme Court has said that the judgment in a quiet title action under section 527.150 is “essentially a declaratory judgment and such actions impose on the court the same duty, namely to make a declaration of rights regardless of which party is entitled to it.” Evans v. Brussel, 300 S.W.2d 442, 444 (Mo.1957); see also Winter v. Northcutt, 879 S.W.2d 701, 706 (Mo.App. S.D.1994) (citing Evans and suggesting that “there may be little, if any, difference between an action to quiet title and an action for declaratory judgment”).

Thus, the analysis of Mr.- Johnson’s quiet title claim is substantially the same as the analysis of his declaratory judgment claim. For the same reason that we conclude Mr. Johnson has stated a claim for declaratory relief, we likewise conclude that he has stated a claim to quiet title. Mr. Johnson has alleged that GMAC violated TILA and he has alleged that he duly rescinded the loan agreement. When a borrower exercises his right to rescind under TILA, “any security interest given by ... [him], including any such interest arising by operation of law, becomes void upon such a rescission.” 15 U.S.C.A. § 1635(b). And within twenty days after receiving notice of rescission, the lender must — among other things — “take any action necessary or appropriate to reflect the termination of any security interest created under the transaction.” Id. The borrower’s obligation to tender does not arise until the lender has fulfilled its obligations. Id.

As they do in their discussion of the declaratory judgment count, respondents contend that GMAC had no duty to release the deed of trust until Mr. Johnson agreed to tender. That may be true, but it also misses the point. The courts that have so ruled have not held that a borrower fails to state a claim for relief if he does not allege tender. They have simply held that a lender need not release its security interest until a court has an opportunity to determine whether the borrower actually has asserted statutory grounds for rescinding the loan agreement. See Riopta, 101 F.Supp.2d at 1331; Large, 292 F.3d at 54-55.

Thus,. if Mr. Johnson asserted proper statutory grounds for rescission here, then GMAC’s security interest would be void and the trial court would be obligated to quiet title in favor of Mr. Johnson. See Stottle v. Brittian, 459 S.W.2d 310, 313 (Mo.1970). We therefore conclude that Mr. Johnson has alleged facts putting GMAC’s security interest in issue based upon his claim that he rescinded the loan agreement after GMAC violated TILA. Cf. State ex rel. Mo. Highway & Transp. Comm’n v. London, 824 S.W.2d 55, 59 (Mo.App. E.D.1991) (“If title has been properly put in issue, a judgment of dismissal without determination of title is error. This is true even if plaintiff fails to establish his claim of title. However, an adjudication of title must be based upon some evidence sufficient to put title in issue.”) (internal citations omitted).

E. Mr. Johnson Stated a Claim for Conversion

Mr. Johnson’s first amended petition included a count for conversion alleging that GMAC “used threats and coercion to obtain two payments” from him, that at the time GMAC did so it “was aware that [he] did not owe money to GMAC” and that he paid the money to GMAC for a specific purpose but that GMAC “converted the money to its own use.” When it dismissed this count, the trial court said that “[a] claim for conversion of money is generally improper” and that “[a]n exception exists ‘in narrow circumstances’ where ‘the plaintiff [has] delivered funds to the defendant for a specific purpose and the defendant [has] diverted them for another and different purpose of the defendant.’” (quoting Knight v. M.H. Siegfried Real Estate, Inc., 647 S.W.2d 811, 817 (Mo.App. W.D.1982)).

Mr. Johnson’s second amended petition included a revised count for conversion, alleging that he had “paid money to GMAC at the specific request of GMAC and upon representations made by GMAC that he was making payments on his account,” that at the time GMAC made its requests and representations, GMAC “was aware that [he] did not owe money to GMAC under the terms of the loan that [he] had timely and lawfully cancelled pursuant to his rights under [TILA] and that [he] did not have an account with GMAC,” that he paid money to GMAC “for his escrow payments and the money was to be used for the payment of real property taxes and home owner’s insurance premiums” and that “GMAC did not establish an escrow account, failed to credit the money to any escrow account and instead converted the money to its own use.” The court dismissed this count as well, finding that Mr. Johnson “has yet failed to plead tender of the proceeds to defendant GMAC in an effort to rescind the transaction” and that “[t]he failure to effect tender causes plaintiffs Second Amended Petition in that regard to be fatally defective.”

Mr. Johnson contends that the trial court erred in dismissing these counts because “the facts state a claim for conversion in that under TILA, the defendant was not entitled to any payment, and the plaintiff paid money to the defendant to fund an escrow account and the defendant never established an escrow but rather took the money for its own use and purposes; tender is not a precondition for plaintiffs recovery under a conversion theory.”

As with many of his other claims, Mr. Johnson has abandoned the conversion claim in his first amended petition by replacing it with a new conversion claim in his second amended petition, which was filed with leave of the court. We therefore review only the dismissal of the conversion claim in his second amended petition.

As the trial court recognized and as the parties agree, conversion generally is not a proper theory where the claim involves money, as opposed to a specific chattel. See Biermann v. Gus Skaffar Ford, Inc., 805 S.W.2d 314, 318 (Mo.App. S.D.1991). As the trial court also recognized and as the parties further agree, this rule is subject to a “narrow exception” in cases where the plaintiff delivers funds to the defendant for a specific purpose only to have the defendant divert those funds to another and different purpose of the defendant. Knight, 647 S.W.2d at 817.

Mr. Johnson has alleged that he made two payments to GMAC for the specific purpose of funding his escrow account and assuring that taxes and insurance were paid. And he alleges that GMAC failed to establish an escrow account or to credit the money to any escrow account. Although respondents contend that Mr. Jones’ purported purpose in making the payments — to fund the escrow account — is at odds with Mr. Johnson’s cancellation of the loan agreement, the two positions are not necessarily mutually exclusive: Mr. Johnson could have decided to make the payments even as he sought to rescind the agreement because he saw that GMAC was not taking any action to unwind the agreement and wanted to make sure that the taxes and insurance were paid during the dispute and that his credit was not damaged.

We believe that these allegations are sufficient for a conversion claim. Again, we do not believe that tender is a necessary element of this claim. Mr. Johnson’s conversion claim is predicated upon respondents’ failure to comply with the statutory requisites of TILA, not the common law. When a borrower rescinds under TILA, he is “not liable for any finance or other charge” and the lender must return “any money or property given as earnest money, down payment, or otherwise” within twenty days of receiving notice of rescission. 15 U.S.C.A. § 1635(b).

If Mr. Johnson properly exercised his right to rescind in this case, then respondents had no right to receive payment from him and could be subject to liability for converting his money to their own use. Because Mr. Johnson’s claim is premised upon respondents’ violation of TILA, rather than the common law, we do not believe that Mr. Johnson must plead tender here. That distinguishes his case from the case relied upon by respondents. See Haas v. Town & Country Mortgage Co., 886 S.W.2d 225, 228 (Mo.App. E.D.1994) (where borrower essentially sought rescission of loan agreement at common law, mortgage lender had no duty to refund money until borrowers also tendered title to the property because rescission of contract involves restoration of status quo, unless parties have agreed otherwise, and lender was not hable for conversion), overruled on other grounds by Bell v. May Dep’t Stores Co., 6 S.W.3d 871 (Mo. banc 1999).

IV. Conclusion

For the reasons explained above, we reverse the judgment of the trial court dismissing Mr. Johnson’s TILA claims and reverse the judgment of the trial' court dismissing the declaratory judgment, quiet title, and conversion counts of his second amended petition. The case is remanded for further proceedings consistent with this opinion.

LISA WHITE HARDWICK, P.J., and ROBERT G. ULRICH, J. concur.

      . According to the trial court’s judgment granting the motion to dismiss, Mr. Johnson voluntarily dismissed his claims against AIM, disposing of counts one and three of his second amended petition. The trial court’s judgment further reveals that, defendant Darrell Jarman had failed to file an answer but that Mr. Johnson had not sought a default judgment against Mr. Jarman.

      . Based upon the reasoning employed by the trial court in its dismissal order, counts two, four, five, and nine were eorrectible. In dismissing each of those counts, the court identified what it believed to be necessary elements or facts that Mr. Johnson had failed to allege, suggesting that if he were able to allege those elements or facts in an amended petition, the problems might be eorrectible. On the other hand, the reasons given by the court for dismissing counts three, six, seven, and eight suggest that those counts were not eorrecti-ble.

      . Mr. Johnson’s second amended petition does not seek rescission of the transaction. Instead, it seeks damages for respondents' alleged TILA violations. This is an important distinction because rescission actions are governed by a separate three-year limitations period. See 15 U.S.C.A. § 1635(f). Claims for damages arising from TILA violations, on the other hand, are governed by the one-year limitations period in 15 U.S.C.A. § 1640(e), which both parties agree applies here. Mr. Johnson contends that the violations of TILA occurred between February 12, 2002, and June 17, 2002. Mr. Johnson concedes that he did not file his second amended petition— asserting the TILA claims — until July 21, 2003, over one year after the occurrence of the alleged violations.

      . Unless otherwise indicated, all rules refer to Missouri Court Rules (2004).

      . In Welch, 627 S.W.2d at 321, this court, applying the abandonment doctrine, determined that a claim advanced out of time in an amended petition could not relate back so as to save the claim from the statute of limitations. We relied on language in several cases indicating that an abandoned petition may not be considered for any purpose, but failed to consider that those cases did not involve statute of limitations issues. Moreover, the cases cited in Welch were based themselves on cases that, while recognizing the abandonment doctrine, also recited that "the amended petition relates back to the institution of the suit.” State ex rel. Fechtling v. Rose, 239 Mo.App. 178, 189 S.W.2d 425, 428 (1945). See also Cindrick v. Scott, 226 Mo.App. 153, 42 S.W.2d 957, 959 (1931) (“When plaintiff filed his amended petition, he necessarily abandoned the first petition and the case was for trial- on such amended petition ..:, and such amended petition related back to the institution of the suit.”) (internal citations omitted); and Philip Gruner & Bros. Lumber Co. v. Hartshorn-Barber Realty & Bldg. Co., 171 Mo.App. 614, 154 S.W. 846, 851 (1913) (“[T]he general doctrine seems to be established that the amended petition relates back to the filing of the original petition.”).

      . Unless otherwise indicated, all statutory references are to RSMo. (2000).


text:
    Lonnie D. SNELLING, Plaintiff/Appellant, v. STATE of Missouri, et al., Defendants/Respondents.
    No. ED 85322.
    Missouri Court of Appeals, Eastern District, Division Two.
    Feb. 22, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 5, 2005.
    Application for Transfer Denied May 31, 2005.
    Lonnie Snelling, St. Louis, pro se.
    Tiffany B. Kieffer, Assistant Attorney General, St. Louis, MO, for respondents Calvin, Dierker & State of Missouri.
    John F. Medler, Jr., St. Louis, MO, for respondent Southwestern Bell Telephone.
    Dana K. Joyce, Robert S. Berlin, Jefferson City, MO, for respondent Missouri Public Service Commission.
    Before KATHIANNE KNAUP CRANE, P.J., WILLIAM H. CRANDALL, JR., and NANNETTE A. BAKER, JJ.
   ORDER

PER CURIAM.

Plaintiff appeals from a judgment dismissing his petition with prejudice for failure to state a claim. No error of law appears. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). No jurisdictional purpose would be served by a written opinion. However, the parties have been furnished 'with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment is affirmed in accordance with Rule 84.16(b).

Plaintiffs motion to strike the legal file filed jointly by defendants Judge Robert H. Dierker, Judge Michael B. Calvin, and the State of Missouri, and plaintiffs motion to strike defendant Southwestern Bell Telephone, L.P.’s motion to dismiss appeal and brief are denied.

Southwestern Bell Telephone, L.P.’s motion to dismiss the appeal and brief is denied as moot.


author: PATRICIA L. COHEN, Presiding Judge.

text:
    Patrice JOHNSON, as a Personal Representative of George Bolden, Willie Victory, Ernestine Petty, Irene Washington, Sandra Washington, Juan Washington, Tina Brandy, Melvin Dunlap, and Sidney Dunlap, Appellants, v. BFI WASTE SYSTEMS OF NORTH AMERICA, INC., and Jimmy Bergner, Respondents, and City Of St. Louis, Defendant.
    No. ED 84343.
    Missouri Court of Appeals, Eastern District, Division Two.
    Feb. 22, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 19, 2005.
    Application for Transfer Denied May 31, 2005.

      Daniel J. Gauthier, Clayton, MO, Gerald L. Warren, St. Louis, MO, for appellants.
    Donald L. O’Keefe, Jr., St. Louis, MO, for respondent.
    Edward J. Hanlon, St. Louis, MO, for defendant.
   PATRICIA L. COHEN, Presiding Judge.

Plaintiffs and intervening plaintiffs (collectively “Plaintiffs”) filed suit for wrongful death against BFI Waste Systems of North America, Inc., BFI’s driver, Jimmy Bergner (collectively “BFI”), and the City of St. Louis after a BFI truck, driven by Mr. Bergner, struck and killed Justine Bolden (“Decedent”) as she crossed a street in the City of St. Louis. On June 14, 2001, a jury awarded Plaintiffs 1.9 million dollars, allocating fifty-five percent fault ($1,045,000) against BFI, forty percent fault ($760,000) against the City of St. Louis, and five percent fault against Decedent.

Following trial, Plaintiffs filed a number of post-trial motions, resulting in several amended judgments. In particular, the Amended Judgment of July 3, 2001, reallocated to BFI a portion of the verdict which was uncollectible (by virtue of Section 537.610, R.S.Mo 2000) against the City of St. Louis. The July 3 Amended Judgment increased the amount of the June 14 judgment against BFI by $605,000, for a total judgment against BFI of $1,650,000. On December 6, 2001, the trial court entered a judgment apportioning the damages among the individuals entitled to recover.

BFI and its driver appealed. This Court affirmed and issued a mandate on January 31, 2003. See Johnson v. BFI Waste Sys. of N. Am., Inc., 92 S.W.3d 157 (Mo.App. E.D.2002). Thereafter, BFI and its driver satisfied the judgment and post-judgment interest of $176,979.45, accruing from December 6, 2001. Following satisfaction of the judgment, Plaintiffs sought a trial court order requiring BFI to pay post-judgment interest as of June 14, 2001, the date of the jury verdict. BFI objected and filed a motion to strike Plaintiffs’ claim for additional post-judgment interest, arguing that post-judgment interest was due from December 6, 2001. The trial court agreed and struck Plaintiffs’ claim for additional post-judgment interest.

Plaintiffs appeal the trial court’s order and judgment with respect to post-judgment interest, arguing that Section 408.040(1), R.S.Mo 1987, and Section 512.160(4), R.S.Mo 1943, support the conclusion that post-judgment interest accrues from June 14, 2001, the date of the jury verdict, rather than December 6, 2001, the date of the judgment apportioning damages. BFI argues that Rule 74.01(1) and Section 573.095.3, R.S.Mo 2000, control the resolution of this issue. We agree and accordingly hold that the trial court did not err in rejecting Plaintiffs’ claim for post-judgment interest from June 14, 2001.

Standard of Review

When we consider an appeal challenging the interpretation and application of a statute, our review is de novo. Psychiatric Healthcare Corp. of Mo. v. Dep’t of Soc. Servs., 100 S.W.3d 891, 899 (Mo.App. W.D.2003). Accordingly, we review the trial court’s judgment independently, without deference to the trial court’s conclusions. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).

Discussion

Plaintiffs argue, in their sole point on appeal, that they are entitled to post-judgment interest from June 14, 2001, the date the jury returned its verdict. BFI contends that because this is a wrongful death case, no judgment was rendered for purposes of post-judgment interest until the trial court apportioned damages among the Plaintiffs, pursuant to Section 537.095.3. BFI posits that because the trial court entered the judgment apportioning damages on December 6, 2001, post-judgment interest runs from that date.

In support of their argument, Plaintiffs rely primarily on Section 408.040.1. Section 408.040.1 provides that “interest shall be allowed on all money due upon any judgment or order of any court from the day of rendering the same....” The purpose of Section 408.040.1 R.S.Mo 2000, “is to compensate a judgment creditor for the judgment debtor’s delay in satisfying the judgment pending the judgment debtor’s appeal.” Moore v. Bi-State Dev. Agency, 132 S.W.3d 241, 243 (Mo. banc 2004). More specifically, “post-judgment interest is awarded on the theory that it is a penalty for delayed payment of the judgment.” Green Acres Enterprises, Inc. v. Freeman, 876 S.W.2d 636, 641 (Mo.App. W.D.1994).

As an initial matter, it is quite clear that the June 14 judgment rendered upon the verdict is not the trial court’s judgment for purposes of post-judgment interest. Notably, Section 408.040.1 does not provide that interest is due upon the jury’s verdict, but rather specifies that the interest shall be allowed on money which is due upon a judgment. The statute’s focus is clearly upon identifying the judgment which creates a debt or right to collection. As the Supreme Court has held, “due,” in the context of Section 408.040.1, means “time for payment.” Kennard v. Wiggins, 353 Mo. 681, 183 S.W.2d 870, 872 (1944). Where, “under said judgment there could be no process for collection of money,” such judgment does not trigger the running of post-judgment interest. Id. There is no dispute here that the June 14 judgment does not create a debt that could be collected. Indeed, although Plaintiffs seek post-judgment interest as of June 14, they calculate interest on the amount identified in the July 3 judgment.

Plaintiffs also rely on Section 512.160.4, which provides, in pertinent part, that:

[Wjhen such judgment shall be affirmed for part of the sum of which judgment was rendered by the trial court, such part of said judgment shall bear lawful interest from the date of the rendition of the original judgment in the trial court.

The “such judgment” referred to in Section 512.160 is clearly the trial court judgment which is affirmed by the appellate court. Thus, in this case, the judgment which “shall bear lawful interest” pursuant to 512.160.4 is not the June 14 judgment upon the verdict, but rather the judgment which was affirmed.

In the instant matter, the judgment which we affirmed in the first appeal was the trial court’s final and appealable judgment. To determine which of the many “judgments” in this case was the final and appealable judgment, we look first to Section 537.095. Section 537.095 provides in pertinent part:

In any action for damages under section 537.080, the trier of the facts shall state the total damages found, or upon the approval of any settlement for which a petition or application for such approval has been filed, the court shall state the total settlement approved. .The court shall then enter a judgment as to such damages, apportioning them among those persons entitled thereto in proportion to the losses suffered by each as determined by the court.

Section 537.095.3, R.S.Mo 2000. In a wrongful death case, prior to the entry of a judgment apportioning damages pursuant to Section 537.095, “there can be no final judgment.” Woods v. Cory, 149 S.W.3d 912, 914 (Mo.App. S.D.2004). The judgment in this case, which states the total damages and apportions them among those persons entitled thereto, was rendered on December 6, 2001. Accordingly, the December 6, 2001 judgment is the final and appealable judgment.

Plaintiffs’ reliance on Stacy v. Truman Medical Center, 836 S.W.2d 911 (Mo. banc 1992), and Crystal Tire Co. v. Home Serv. Oil Co., 507 S.W.2d 383 (Mo.1974), is not persuasive. Both Stacy and Crystal Tire rely on Section 510.340, R.S.Mo, which governs motions for new trial and provides, in pertinent part, that “[t]he judgment shall be entered as of the day of the verdict.” Rule 78.04, which also governs motions for new trial, was amended in 1994 to delete the phrase “which judgment shall be entered as of the date of the verdict.” As the Western District has explained, “the deletion of the phrase indicates that the jury verdict no longer controls the filing deadline ...” for filing after trial motions. Nandan v. Drummond, 5 S.W.3d 552, 555 n. 1 (Mo.App. W.D.1999). Given that the “date of the verdict” language no longer applies for purposes of calculating the timing of a post-trial motion, it is improper to rely on this language for purposes of post-judgment interest.

Stacy and Crystal Tire also predate the 1994 amendment to Rule 74.01. Prior to 1995, Rule 74.01 provided that “judgment” includes a decree and any order from which an appeal lies. In 1994, Rule 74.01(a) was amended to include additional language, as follows: “A judgment is rendered when entered. A judgment is entered when a writing signed by the judge and denominated ‘judgment’ or ‘decree’ is filed.” The purpose of the amendment was to clarify when a “judgment was a final judgment for purposes of appeal.” City of St. Louis v. Hughes, 950 S.W.2d 850, 853 (Mo. banc 1997). Thus, it is clear that the “date of the verdict” does not control the entry of the judgment. Rather, there is no judgment unless the requisites set forth in Rule 74.01(a) are met.

Finally, the legislature defines judgment as “the final determination of the rights of the parties in an action.” Section 511.020, R.S.Mo; City of St. Louis, 950 S.W.2d at 853. It is quite clear here that only after the trial court rendered the December 6 judgment, pursuant to Section 537.095, were the rights of the parties finally determined. Accordingly, the trial court rendered its judgment on December 6 and post-judgment interest properly ran from that date. Point denied.

Conclusion

The trial court’s judgment is affirmed.

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

      . The amendments were effective on January 1, 1995. January 1, 1995.