author: GARY M. GAERTNER, Presiding Judge

text:
    NATIONSBANK, N.A., n/k/a Bank of America, N.A., Respondent, v. James TEGETHOFF, Jr., et al., Appellants.
    No. ED 76380.
    Missouri Court of Appeals, Eastern District, Division One.
    March 7, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 3, 2000.
    Application for Transfer Denied June 27, 2000.

      Lewis, Rice & Fingersh, L.G., Richard B. Walsh, Jr., Maureen C. Beekley, St. Louis, for appellant.
    William R. Bay, Reginald L. Harris, Thompson Coburn LLP, for Respondent United Way of Greater St. Louis.
    Bryan Cave, LLP, David S. Slavkin, Mark G. Holden, St. Louis, for respondent Bank of America.
   GARY M. GAERTNER, Presiding Judge

Appellants, Virginia A. Thomas, James Tegethoff, Jr., Jill Boulanger, Tracy Tege-thoff, Thomas Tegethoff, James Tegethoff, III, Jean Goggins, Father James Goggins, Daniel Goggins and Julie Sobkoviak, (“beneficiaries”), appeal the judgment of the Circuit Court of the City of St. Louis in favor of respondent, Bank of America, N.A., (“trustee”), wherein the court found the testator did not intend to create an absolute gift of support and instructed trustee that it could consider a beneficiary’s other financial resources in determining whether to encroach upon the trust corpus. We affirm.

The parties stipulated to the facts. Trustee is a corporation duly authorized to act as a trustee in Missouri. Joseph A. Foerstel, (“testator”), died on July 31, 1945. He left his last will and testament dated March 19, 1937. In Article Third of his will, testator named the St. Louis Union Trust Company, herein known as trustee and testator’s wife, Josephine M. Foer-stel, (“Mrs.Foerstel”), as trustees to hold the residue of his estate in trust, (“Residuary Trust”). Under the terms of the Residuary Trust, the trustees were to pay the entire net income to Mrs. Foerstel, and at her death were to hold the trust estate in equal shares for the benefit of testator’s children, Howard R. Foerstel and Virginia A. Foerstel, (n/k/a Virginia A. Thomas), (“Thomas”). Mrs. Foerstel is deceased and Howard R. Foerstel is deceased (without surviving descendants), and Thomas is the sole income beneficiary, currently serving as co-trustee with trustee. Thomas had three children, Joan Copenhaver, Jean Goggins and James Tegethoff, Jr., prior to the death of testator. All of Thomas’ children are currently living and they each have numerous children and grandchildren currently living.

Article FIFTH of testator’s will provides:

I hereby authorize the Trustees to encroach upon the principal of the trust estate for the proper maintenance and support of my said wife, and the education, maintenance, and support of my children, or their descendants, if this becomes necessary in the opinion of the Trustees, or to provide against any emergency which may arise afflicting them, or any of them, occasioned by sickness, accident, ill health, affliction, misfortune or otherwise, and they may make such encroachments from time to time and in such amounts as they may consider reasonable and necessary under the circumstances for the purposes stated.

The interests of testator’s descendants in the Residuary Trust will terminate upon the death of the survivor of his descendants living on the date of his death. Currently such descendants include Thomas and three of her children, Joan Copenhaver, Jean Coggins and James Tegethoff, Jr. Following the termination of the interests of testator’s descendants, the Residuary Trust is to continue for testator’s brother, John Frank Foerstel, for his life, and then for the benefit of his children living on the date of testator’s death, and for the benefit of testator’s second cousins Marcella Carlton and James Carlton or the survivor of such persons. Upon the death of the survivor of such persons, the Residuary Trust is to be continued in perpetuity for the United Way.

On June 9, 1986, Thomas became the sole income beneficiary of the Residuary Trust upon the death of her brother, Howard R. Foerstel.

On May 29,1987, Thomas sent trustee a letter demanding that “in accordance with Article FIFTH of the will, the health, education, maintenance and support needs of [herself, her] children, grandchildren and their descendants be paid from the principal of the trust.” The letter also requested beneficiaries be reimbursed from the principal of the trust for all past bills for their health, education, maintenance and support needs.

On December 11, 1987, Thomas sent trustee a letter making specific demand for principal encroachments covering current and past expenses of the beneficiaries, for the then current year (1987) and previous years as early as 1972. This demand, which was accompanied by documentary evidence of the expenses, totaled over $52,-000.

On March 7, 1988, trustee replied to the December 11, 1987 request after such request was considered by the “Committee on Trust Estates.” In the reply, trustee expressed its difficulty in determining whether the expenses were “necessary,” noting the expenses were in fact paid by each of the respecting beneficiaries, suggesting each had the means to pay for the expenses, and therefore encroachment may not be “necessary” within the meaning of Article FIFTH of the Will. The letter concluded by approving $32,067.26 of the request and not approving encroachment requests for expenses incurred prior to 1985.

On October 27, 1988, Thomas sent another request to trustee, making encroachment requests on behalf of herself, her children and descendants of each of the children, for educational, maintenance, support and medical bills incurred by the beneficiaries. This request totaled $93,-915.92 and included a request for $84,200 for a housing allowance for Thomas.

The Committee of Trust Estates required further information regarding Thomas’ expenses in order to evaluate her request for a housing allowance. On December 30, 1988, an attorney representing Thomas provided such information to the Committee.

On January 26, 1989, trustee denied the request for the above referenced housing allowance stating that two Committees “[have] had a difficult time convincing [themselves] that a beneficiary who receives $82,000 in income per year from a Trust would have a need for an additional $34,000 in housing.” The request was subsequently modified and resubmitted. Thereafter, the Committee approved an encroachment of $50,474.47.

On November 8, 1989, Thomas requested $38,104.42, for educational and medical bills incurred by the beneficiaries. The Committee approved the request without adjustment and did not request additional information from the beneficiaries in making its determination.

On December 17,1990, an encroachment request was made totaling $68,152.80. The Committee did not approve the request due to insufficient information. On May 14, 1991, trustee wrote to Thomas’ attorney requesting additional information, including the 1989 and 1990 income tax returns of each of the requesting beneficiaries, in order for trustee to further examine the circumstances of each of the beneficiaries to determine necessity for the encroachment.

On May 17, 1991, Thomas’ attorney replied stating, “[t]his is the first time your committee has requested tax returns from the descendants.”

Since May 14, 1991, trustee has requested copies of income tax returns of each of the requesting beneficiaries.

On October 30, 1997, trustee filed a petition for instructions, requesting the trial court to instruct it on how much and what kind of information it may request from the beneficiaries of testator’s will in determining whether to honor encroachment requests. Trustee named beneficiaries as defendants. On April 6, 1998, the trial court granted the parties’ request to resolve this action through submission of stipulated facts.

On May 4, 1999, the trial court held Article Fifth did not create an absolute gift of support and thus, permitted trustee to consider a beneficiary’s other financial resources. The trial court further held trustee did not waive its rights to consider such financial resources by its earlier actions of encroaching on the principal of the Residuary Trust without such information. Beneficiaries appealed.

Beneficiaries raise one point on appeal. They allege the trial court erred in finding the testator did not intend to make an absolute gift of support and the court erred in finding trustee could inquire into a beneficiary’s other resources when determining the necessity of encroachment in that testator did not use language evidencing such intent. We disagree.

Our standard of review is that the judgment of the trial court will be sustained unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). Further, “[i]n a case tried on stipulated facts, the only issue on appeal is whether the trial court drew the proper legal conclusions from the stipulated facts.” Carter v. City of Pagedale, 982 S.W.2d 744, 745 (Mo.App. E.D.1998).

In construing a will, the courts will use as a guide the intent of the testator as evidenced in the language of the will read as a whole. Magruder v. Magruder, 525 S.W.2d 400, 405 (Mo.App.StL.D.1975). The limited law in Missouri regarding a trustee’s right to consider the other resources of a beneficiary when a request has been made to invade the principal of a trust, illustrates the primary question succinctly: “Does the will constitute an absolute gift of support and maintenance...?”. Wirikel v. Streicher, 295 S.W.2d 56, 61 (Mo.banc 1956). Or, is the gift of income coupled with a provision that the principal may be invaded in case of need? Id. If the former question is answered affirmatively, then the private income of the beneficiary cannot be considered. Id. However, if the latter question rules, then “the private income of the beneficiary must be considered in determining whether such need exists.” Id. In order to make a determination in these cases, we examine the language of the will and the surrounding circumstances. Id. However, given “the many possible variations in language, circumstances, and properties”, the only general rule available is “the intention of the [testator] must govern in each particular case.” Id.

In the case at bar, an examination of testator’s Article FIFTH supports the trial court’s conclusion that the testator did not intend to give beneficiaries an absolute gift of. support and maintenance. Testator’s Article FIFTH reads, “I hereby authorize the Trustees to encroach upon the principal of the trust estate for the proper maintenance and support of my said wife, and the education, maintenance, and support of my children, or their descendants, if this becomes necessary in the opinion of the Trustees...”. Testator’s words illustrate his intent to give his wife, Mrs. Foerstel, an absolute gift of “proper maintenance and support”, but not his children and their descendants, who are the beneficiaries herein. A contrary reading would result in negating testator’s own language of “if this becomes necessary in the opinion of the Trustees.” It is clear from testator’s own language he intended to give trustees the power to encroach upon the principal to maintain and support his wife, but limited their power to encroach upon the principal for beneficiaries to circumstances when “this becomes necessary.” This intent is further illustrated in testator’s language wherein Article FIFTH states:

...or to provide against any emergency which may arise afflicting them, or any of them, occasioned by sickness, accident, ill héalth, affliction, misfortune or otherwise, and they may make such encroachments from time to time and in such amounts as they may consider reasonable and necessary under the circumstances for the purposes stated.

If testator had intended an absolute gift of support to beneficiaries, the above referenced language would have to be completely ignored and considered surplusage, which would thwart testator’s intention therein. We consider Article FIFTH as a whole, and therefore conclude the gift of income to beneficiaries was coupled with a provision that the principal may be invaded only in cases of need.

The latter conclusion is also supported by the circumstances surrounding the will: testator died in 1945, leaving behind a wife, Mrs. Foerstel, two living children and three grandchildren. By stipulation, we understand that the Residuary Trust is to continue for the testator’s brother and his children living on the date of testator’s death and for two of testator’s cousins or their survivors. Upon the death of the last of the survivors of such persons, the Residuary Trust is to continue in perpetuity for the United Way. All of these factors support the conclusion that testator did not intend to give beneficiaries an absolute gift of support and maintenance. Given this conclusion, we find the private income of beneficiaries must be considered when determining whether need exists.

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

PAUL J. SIMON, J., and JAMES R. DOWD, J., concur.

      . Collectively we will refer to them as beneficiaries and individually by name, as neces-saiy.

      . Trustee's records show no indication of principal encroachment requests prior to when Thomas became the sole income beneficiary.

      . The record does not indicate any details regarding requests after trustee’s May 14, 1991 request of tax returns of each of the requesting beneficiaries.


source: Caselaw Access Project

author: VICTOR C. HOWARD, Judge.

license: Public Domain

text:
    Glenn Leroy BURNETT, Appellant-Respondent, v. Sheryl Lois BURNETT, Respondent-Appellant.
    Nos. WD 56368, WD 56477.
    Missouri Court of Appeals, Western District.
    March 14, 2000.
    Motion for Transfer Denied May 2, 2000.
    Application for Transfer Denied June 27, 2000.

      Kathy Kranitz Sadoun, St. Joseph, for Appellant-Respondent.
    James R. Brown, Bruce B. Brown, Kear-ney, for Respondent-Appellant.
    Before: ULRICH, P.J., and EDWIN H. SMITH and HOWARD, JJ.
   VICTOR C. HOWARD, Judge.

After 31 years of marriage, Glenn and Sheryl Burnett divorced on June 24, 1998. The circuit court’s judgment divided their property and ordered Glenn Burnett (husband) to pay a lump sum amount of $16,-000 in maintenance as follows: $600 per month for ten consecutive months, then $400 per month for ten consecutive months, and finally $300 per month for twenty consecutive months. The maintenance payments were ordered to commence thirty days after the sale of the marital residence. On appeal, Sheryl Burnett (wife) contends that the circuit court erred in limiting the duration of the maintenance, in designating a later starting date for the maintenance payments, and in delineating the maintenance as “nonmodifiable.” Husband cross-appeals, asserting that the circuit court erred in awarding wife any maintenance.

We reverse and remand to the trial court with instructions.

MAINTENANCE AWARD

An appellate court must affirm the circuit court’s award of maintenance unless there is no substantial evidence to support the award, it is against the weight of the evidence, or it erroneously declares or applies the law. Buckner v. Buckner, 912 S.W.2d 65, 68 (MoApp. W.D.1995). We afford the circuit court a great deal of discretion in awarding maintenance. Id. In the absence of a finding that the amount is patently unwarranted and wholly beyond the means of the spouse who pays, this court will not interfere with the circuit court’s award of maintenance. Petty v. Petty, 739 S.W.2d 738, 741 (Mo.App. E.D.1987). Husband, who contends the circuit court erred in awarding any maintenance to wife, bears the burden of proving the maintenance award “shocks” this court’s sense of justice. Allen v. Allen, 927 S.W.2d 881, 885 (MoApp. W.D.1996).

For a circuit court to award maintenance, it must first determine whether the spouse seeking it: (1) lacks sufficient property, including marital property apportioned to him or her, to provide for his or her reasonable needs; and, (2) is unable to support himself or herself through appropriate employment. § 452.335.1, RSMo 1994. This threshold determination must be made before consideration of the commencement date and duration of maintenance under § 452.335.2. Relying on Hosack v. Hosack, 973 S.W.2d 863, 870 (Mo.App. W.D.1998), husband contends that the evidence failed to show: (1) that wife had reasonable needs; (2) that wife lacked sufficient property to provide those needs; and, (3) that wife was unable to support herself through appropriate employment. Although not explicitly stated in the decree, we can imply that the trial court made such findings as are consistent with its maintenance award. Rule 73.01. We view the evidence in a light most favorable to the decree, disregarding contrary evidence and deferring to the trial court, even if the evidence could support a different conclusion. Allen, 927 S.W.2d at 885.

Wife’s Reasonable Needs

The court received sufficient evidence to find that wife had reasonable needs of support. The marriage lasted thirty-one years, and wife quit college after only one year to marry husband. Wife’s Statement of Income and Expenses shows that she has no income and her average monthly expenses total $1,811 (not including an expense for housing). A review of the record indicates that the trial court did not abuse its discretion when it found wife had reasonable needs for support.

Wife’s Property

Both parties submitted conflicting evidence concerning their income, expenses, property and debts. The trial court is in the best position to weigh all the evidence and render judgment based on the evidence. Landry v. Miller, 998 S.W.2d 837, 840 (Mo.App. W.D.1999). It has the discretion to determine a witness’ credibility and to accept, discount, or reject conflicting evidence. McCreary v. McCreary, 954 S.W.2d 433, 439 (Mo.App. W.D.1997). Husband does not argue that the court awarded wife a disproportionate amount of marital property. Rather, he argues that the property she received is sufficient to provide for her reasonable needs. We consider income-producing property to determine whether wife’s property is indeed sufficient to support her needs, Hosack, 973 S.W.2d at 871, while at the same time considering the fact that a spouse need not deplete his or her portion of marital assets for living expenses before an award of maintenance is justified. Witt v. Witt, 930 S.W.2d 500, 503 (Mo.App. W.D.1996).

Wife was awarded several items of personal property including late-model vehicles, a small amount of stock, one-half of husband’s pension plans and other various items. Most of this property wife received was not income-producing property. As to the parties’ real property, at the time of divorce, two parcels of land were jointly owned by the parties. Parcel one, valued at $125,000, consisted of their marital residence. Parcel two consisted of land valued at $47,000. The court ordered that both be sold and the proceeds distributed:

Parcel One: (1) $10,000 paid to wife before any other distribution;
Remaining balance shall be used to pay the marital debt [which the court found to be $24,739.32];
The balance, if any, shall be distributed to petitioner and respondent equally-
Parcel Two: (1) $5,000 paid to wife before any other distribution;
(2) Balance distributed to wife and husband equally.

In 1994, wife inherited $75,000. She testified she used the inheritance to pay the $15,000 mortgage debt on their marital home, to make $16,000 in improvements to abutting land, to make other improvements on their real estate, to pay other debts on their vehicles and credit cards, and to purchase various items of personal property. There was no evidence that any of the inheritance remained available for wife’s use.

Wife testified that her expense statement which reflected expenses of $1,811 did not include an anticipated expense for rent or a mortgage payment which she will have to make when the marital property is sold. Assuming wife will pay $500 per month in rent like husband does, her expenses would be over $2,300 per month. Applying a reasonable rate of return, this is in excess of the income she could receive from the property if invested. Once more, a spouse need not deplete his or her portion of marital assets for living expenses before an award of maintenance is justified. Witt, 930 S.W.2d at 503. We do not believe that the trial court abused its discretion in finding wife did not have sufficient property to meet her reasonable needs.

Wife’s Employment

Since the record indicates wife does not have sufficient property to meet her reasonable needs, we examine whether her needs can be met through appropriate employment. Van Skike v. Van Skike, 858 S.W.2d 779, 780 (Mo.App. W.D.1993). Wife testified that she was 52 years old, and she had no income. During the pen-dency of this action, she had to sell several items of personal property and household items to provide for herself. She had a broken leg at the time of trial that would take at least four months to heal. Again, wife dropped out of college to marry husband, and outside of raising their two children, she worked only a brief period during their 31-year marriage.' At the time of trial, she did not possess skills conducive to more than minimum wage employment. Husband alleged that since he filed for divorce, wife had made no effort to seek employment and would not try in the future. Wife testified that she had been trying to find employment for eight months, but nothing was available. Husband did acknowledge that she could not work with the broken leg, but he claims that she will be able to support herself as soon as the leg heals. Again, the trial court is in the best position to judge the credibility of witnesses. McCreary, 954 S.W.2d at 439. The trial court received substantial evidence to support the finding that she was not capable of meeting her reasonable needs through appropriate employment either. Accordingly, the record reveals that the trial court did not abuse its discretion in awarding wife maintenance.

After determining the court did not abuse its discretion in awarding maintenance, we now consider wife’s argument that the circuit court’s limitation on the amount and duration of the maintenance as well as its designated commencement date for maintenance payments amount to reversible error.

In determining the amount and duration of maintenance, the decree indicates the trial court “examin[ed] all relevant factors pursuant to § 452.335.... ” “These factors are neither all inclusive nor mandatory, so that the trial court is not required to specifically address each factor.” Monsees v. Monsees, 908 S.W.2d 812, 818 (Mo.App. W.D.1995). The factors relevant to this case are:

1) The financial resources of [wife], including marital property apportioned to [her], and [her] ability to meet her needs independently ...;
2) The time necessary to acquire sufficient education or training to enable [wife] to find appropriate employment;
3) The comparative earning capacity of each spouse;
4) . The standard of living established during the marriage;
5) The obligations and assets, including the marital property apportioned to [wife] and the separate property of each party;
6) The duration of the marriage;
7) The age, and the physical and emotional condition of [wife];
8) The ability of [husband] to meet his needs while meeting those of [wife]; ... and
10) Any other relevant factors.

§ 452.335.2.

Commencement of Maintenance Obligation

To determine an appropriate maintenance award, courts balance the reasonable needs of the party seeking maintenance against the ability of the other spouse to pay. Theilen v. Theilen, 847 S.W.2d 116, 123 (Mo.App. W.D.1992). A maintenance award does not warrant appellate intervention unless it is “wholly beyond the means of the spouse who pays maintenance.” Id. Husband does not argue that he cannot pay maintenance while meeting his own needs. Evidence showed he earns in excess of $38,000 per year. He testified that he did not “have any problems with paying [wife a couple hundred dollars] maintenance for somewhere between 18 and 36 months.” He also testified that his expenses are $2,761.99 per month, and his gross income was $3,026 per month. Of his expenses, approximately $600 per month represent the marital debt. He was not to begin paying maintenance until after parcel one is sold at which time the marital debt will also be paid out of the proceeds. Until parcel one is sold, the court ordered that wife be allowed to remain residing, rent free, at the marital home. However, she argues that the payment should have started at the time of her injury. Regardless, a balancing of wife’s needs and husband’s ability to pay shows that the trial court did not abuse its discretion in ordering the maintenance payments commence thirty days after sale of the marital residence. However, since we are remanding for further action, see infra, the commencement date may need to be changed depending on the circumstances of the parties and the trial court’s new decree regarding maintenance.

Likewise, given our instructions to the trial court to determine the amount of maintenance in conformance with this opinion, we will not address the parties’ arguments concerning the amount of maintenance originally awarded by the trial court.

Duration of Maintenance Award

In regard to the duration of the trial court’s maintenance award, a maintenance award of limited duration “is justified only where substantial evidence exists of an impending change in the financial condition of the parties.” Allen v. Allen, 961 S.W.2d 891, 896 (Mo.App. W.D.1998). Courts prefer a maintenance award of unlimited duration. Id. “Maintenance should not be prospectively terminated if there is no evidence or reasonable expectation that the circumstances of the parties will be markedly different in the future.” Hicks v. Hicks, 859 S.W.2d 842, 847 (MoApp. W.D.1993).

The record does not establish a sufficient probability that wife will be able - within the forty-month period set by the trial court - to obtain the skills and find a job that ■will enable her to be self-supportive. Polen v. Polen, 886 S.W.2d 701, 704 (Mo.App. W.D.1994). The only facts before the court were that wife had, at one time during the marriage, briefly worked in a jewelry store while husband was laid off. She could not work at the time of trial due to a broken leg. The facts also indicate the most that she can make, at least in the beginning, is minimum wage. She had only one year of college and, except for this brief period of time, had not worked outside the home during their 31-year marriage. To presume that after forty months, when she is around 55 years old, she will have gained sufficient skills and appropriate employment so as to be self-supporting is too speculative to support a maintenance award of limited duration. Id. See also, Hernandez v. Hernandez, 872 S.W.2d 161, 164 (Mo.App. W.D.1994) (finding that after 27 years of marriage, wife’s marketable skills were limited and outdated, and although she was enrolled in college and thought she would graduate in two years, the trial court’s limitation of maintenance to three years was too speculative based on the evidence).

‘Nonmodifiable’ Maintenance

Section 452.335.3 gives the court discretion in including a termination date for maintenance and in designating it as nonmodifiable. However, the statute “ ‘does not bestow unfettered discretion on the trial court.... [A] maintenance order providing that it is “nonmodifiable” must be justified by the facts and circumstances of the particular case.’ ” Allen, 927 S.W.2d at 890 (quoting In re Marriage of Lawry, 888 S.W.2d 84, 90 (Mo.App. S.D.1994)). Because we hold the limited duration of the maintenance award was not justified, we should also consider the trial court’s designation of the maintenance as “nonmodifiable.” “Maintenance is founded on need and may extend only so long as the need exists. [Citation omitted.] Thus, if it is uncertain that future events might obviate the need or basis on which maintenance is predicated, the award should be modifiable.” Allen, 927 S.W.2d at 890. Just as the record indicates it is uncertain that wife’s financial situation will change in order to justify limiting the maintenance award to forty months, it is also uncertain that future events might not also present reason for the maintenance to be modified. It should also be noted that because maintenance is founded on need, “lump sum” maintenance is not appropriate under Missouri law, except as a division of property. Cates v. Cates, 819 S.W.2d 731, 735 (Mo. banc 1991).

We found no evidence to support the existence of an impending change or to support a finding that wife’s financial situation will be markedly different at the end of forty months in order to support the trial court’s award of limited duration maintenance. Test v. Test, 872 S.W.2d 620, 624 (Mo.App. W.D.1994). Likewise, we found no evidence to support an award of nonmodifiable maintenance. For these reasons, we reverse and remand to • the trial court with instructions to determine the amount of modifiable maintenance for an unlimited duration considering all relevant factors including the present circumstances of the parties. The court may take such additional evidence as it deems necessary to make its determination.

Conclusion

There was sufficient evidence before the trial court that wife had reasonable needs, lacked sufficient property to provide for those needs, and was unable to support herself through appropriate employment. Thus, its award of maintenance was supported by evidence. However, the evidence was not sufficient to support the trial court’s limiting of the duration of the maintenance or to support its designation of the maintenance as nonmodifiable. Nor was a lump sum maintenance award appropriate. As a result, we reverse and remand, with instructions as set forth above, the circuit court’s judgment as it relates to maintenance.

ULRICH, P.J., and EDWIN H. SMITH, J., concur.

      . Unless otherwise noted, all statutory refer-enees are to RSMo 1994.


author: PER CURIAM.

text:
    Gerald L. WARREN, Appellant, v. WASHINGTON UNIVERSITY, and Richard D. Wetzel, Respondents.
    No. ED 76366.
    Missouri Court of Appeals, Eastern District, Division One.
    March 14, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 3, 2000.
    Application for Transfer Denied June 27, 2000.
    Robert J. Mauer, Clayton, for appellant.

      Robert T. Haar, Susan E. Bindler, Monica J. Allen, Haar & Woods, LLP, St. Louis, for respondent.
    Before GARY M. GAERTNER, P.J., PAUL J. SIMON, J., and JAMES R. DOWD, J.
   ORDER

PER CURIAM.

Appellant, Gerald L. Warren, appeals the judgment of the Circuit Court of the City of St. Louis, granting respondents’, Washington University and Richard D. Wetzel, motion for summary judgment. We affirm.

We have reviewed the briefs of the parties, the legal file, and the transcripts, and find no error of law. As an extended opinion would serve no jurisprudential purpose, we affirm the judgment pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Plaintiff/Respondent, v. Scott Edward BROWN, Defendant/Appellant.
    No. ED 75803.
    Missouri Court of Appeals, Eastern District, Division Two.
    March 21, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 10, 2000.
    Application for Transfer Denied June 27, 2000.
    Ellen H. Flottman, Asst. Public Defender, Columbia, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Stacy L. Anderson, Asst. Atty. Gen., Jefferson City, for Respondent.
    Before CRANE, P.J., ROBERT G. DOWD, Jr., J., and SULLIVAN, J.
   ORDER

PER CURIAM.

Scott Edward Brown (“Defendant”) appeals from a judgment of conviction of Murder in the First Degree, in violation of Section 565.020 RSMo (1994). Defendant alleges trial court error in overruling Defendant’s Motion for Judgment of Acquittal. We have reviewed the briefs of the parties and the record on appeal and conclude there is sufficient evidence from which a reasonable trier of fact might have found the defendant guilty beyond a reasonable doubt. State v. Shinn, 921 S.W.2d 70, 72-73 (Mo.App. E.D.1996). Am extended opinion would have no precedential value. We have, however, provided a memorandum opinion setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Rule 30.25(b).


author: CLIFFORD H. AHRENS, Judge.

text:
    JENKAD ENTERPRISES, INC., Respondent, v. TRANSPORTATION INSURANCE, CO., Appellant.
    No. ED 76437.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 21, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 17, 2000.
    Application for Transfer Denied June 27, 2000.

      Donald L. James, Brown & James, St. Louis, for appellant.
    Don R. Sherman, Lori R. Koch, St. Louis, for respondent.
   CLIFFORD H. AHRENS, Judge.

Transportation Insurance Co. (“Transportation”) appeals from summary judgment entered in favor of Jenkad Enterprises, Inc. (“Jenkad”). The issue on appeal is whether the insurance contract between the parties afforded hired and non-owned automobile (“HNOA”) coverage between August 1, 1994 and August 1, 1995, even though the written policy in effect did not provide such coverage. We find the contract did not include such coverage. We therefore reverse and remand with instructions to enter judgment in favor of Transportation.

Jenkad manufactured pneumatic tools from its incorporation in May, 1990, until its administrative dissolution in August, 1995. Between 1990 and 1994, Transportation provided insurance coverage for Jenkad in the form of a “Manufacturer’s Package,” which included general liability, workers’ compensation, products liability, and fire and extended coverage insurance. The package did not include HNOA insurance.

In late summer of 1994, Jenkad’s comptroller, Daniel Fetsch, met with David Wilson, an authorized agent of Transportation, to discuss the renewal of Jenkad’s policy for the period of August 1, 1994 to August 1, 1995. At this meeting, Wilson recommended that Jenkad purchase HNOA insurance; Fetsch agreed to do so, and Wilson stated that Jenkad was “bound” for HNOA coverage as of August 1, 1994. Although Wilson specifically noted on his written renewal proposal that HNOA coverage should be added to Jen-kad’s policy, when he requested Jenkad’s policy renewal from Transportation, he failed to request the addition of HNOA insurance. Consequently, the policy subsequently issued by Transportation did not include such coverage. Neither Fetsch nor anyone else at Jenkad read the policy and were therefore unaware of the omission.

On November 1, 1994, Gary Mills, an employee of Jenkad, was involved in an automobile collision with a vehicle occupied by Rosemary and Ronald Post. Mills was operating his personal vehicle within the scope of his employment. The Posts were injured and thereafter filed a negligence action against Mills and Jenkad. Jenkad tendered the defense of both suits to Transportation, but Transportation denied coverage and refused to provide a defense on the ground that Jenkad’s policy did not afford coverage for hired and non-owned automobiles. Jenkad ultimately filed a four-count Second Amended Petition against Transportation, seeking: (1) reformation of the written policy to include HNOA coverage; (2) and (3) damages for breach of the duty to defend Jenkad against the Post lawsuits under a reformed policy; and, in the alternative, (4) a declaratory judgment that Transportation was obligated to provide HNOA coverage pursuant to the Fetsch-Wilson oral contract. Both parties moved for summary judgment. The trial court granted Jenkad’s motion and entered summary judgment in its favor; it denied Transportation’s motion. This appeal follows.

Summary judgment is appropriate only where there is no genuine issue as to the material facts and the movant is entitled to judgment as a matter of law. Rule 74.04(c)(3) (1999). As the parties are in agreement as to the material facts, we need only determine whether Jenkad was entitled to judgment as a matter of law, that is, whether the insurance contract between the parties afforded HNOA coverage. As our standard of review is de novo, we give no deference to the trial court’s ruling. See ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.banc 1993).

At the outset, we find it necessary to discuss the nature and effect of the oral contract entered into between Fetsch and Wilson. When Wilson informed Fetsch that Jenkad was “bound” for HNOA insurance, Jenkad and Transportation became parties to an insurance binder. A binder is a contract of temporary insurance, either oral or written, effective at the date of application for permanent insurance and terminating upon the issuance, delivery, and acceptance of the policy, or by a rejection of the application; but if no policy is issued, delivered, and accepted, or the contract is not otherwise terminated, it continues until the time fixed thereby for its termination or a reasonable time has expired. First American Ins. Co. v. Commonwealth Gen. Ins. Co., 954 S.W.2d 460, 468 n. 8 (Mo.App.1997); 2 Couch, Cyclopedia of Insurance Law § 14.3, at 5 (2d ed.1984); 12A Appleman, Insurance Law and Practice § 7227, at 149 & n. 11 (1984). Its purpose is to provide coverage pending an inquiry by the insurer as to the character of the risk it is asked to insure. First American, 954 S.W.2d at 468; 2 Couch, § 14.26, at 48-50. Given the modern use of binders, we reject Jenkad’s contention that Wilson and Fetsch agreed to an oral contract for permanent HNOA insurance rather than a temporary binder.

We emphasize that a binder, being only a temporary contract, does not eliminate the need to apply for permanent insurance. In the present case, it is unclear from the record whether Jenkad made a written application for HNOA insurance. Nevertheless, at a minimum, an oral application for such coverage was made, as Wilson specifically noted on Jenkad’s renewal proposal that HNOA coverage should be added to the policy. Although Wilson failed to submit the application to Transportation, the knowledge of the agent is imputed to the company. American Family Mut. Ins. Co. v. Bach, 471 S.W.2d 474, 479 (Mo.1971). An insurance company, as an artificial legal person, can have no knowledge of any facts except as the knowledge of its various officers and agents is imputed to it. State ex rel. John Hancock Mut. Life Ins. Co. v. Hughes, 152 S.W.2d 132, 134 (Mo.1941). Thus, with imputed knowledge that Jenkad had applied for HNOA insurance, Transportation issued a policy that did not include such coverage.

It has been the law in Missouri for over a century that an insured has a duty to promptly examine its policy to ensure it contains the terms of coverage desired or agreed upon, and if the policy does not, to reject it by promptly notifying the insurer of its dissatisfaction therewith. See American Ins. Co. v. Neiberger, 74 Mo. 167, 173 (1881); Steward v. Mutual Life Ins. Co. of Baltimore, 127 S.W.2d 22, 23-24 (Mo.App.1939). This is because

[A]n application for insurance is merely an offer, which may be accepted or rejected by the company. The sending of a different policy than that applied for constitutes a counteroffer. The insured has a reasonable time to accept or reject the policy and if [the insured] keeps it a reasonable length of time, [the insured] is deemed to have accepted the policy or counteroffer. Where [the insured] keeps the policy an unreasonable length of time, [the insured] accepts it as a counteroffer, although [the insured] does not read it.

Neuner v. Gove, 133 S.W.2d 689, 694 (Mo.App.1939). Although Jenkad may very well have acted reasonably in assuming the policy would include HNOA coverage as provided by the binder, we find no authority which permits us to excuse Jenkad from its obligation to examine the policy. It is undisputed that Jenkad did not object to the omission of HNOA insurance from the policy at any time between delivery and the collision, which occurred approximately eight to ten weeks later. We believe this was more than a reasonable amount of time in which to examine the policy and discover the omission of HNOA coverage. We hold that Jenkad failed to reject the policy within a reasonable time and is therefore deemed to have accepted it as the sole embodiment of the parties’ contract of insurance.

Jenkad is correct that an insured will not be deemed to have accepted a policy that provides coverage other than that applied for where an examination of the policy would not have revealed the discrepancies. See Mills v. Cameron Mut. Ins. Co., 674 S.W.2d 244, 250 (Mo.App.1984); Moreland v. State Farm Fire & Cas. Co., 662 S.W.2d 556, 562 (Mo.App.1983). We do not find this exception to be applicable here, however. In determining whether an insured should be deemed to have accepted a policy, we consider its maturity, experience, and knowledge regarding the subject matter. See Kap-Pel Fabrics, Inc. v. R.B. Jones & Sons, Inc., 402 S.W.2d 49, 58 (Mo.App.1966). As comptroller of Jenkad, one of Fetsch’s duties was to procure insurance. He had acted in such capacity with Jenkad since its incorporation in 1990, and for at least three years with another company prior to that. Clearly, he was knowledgeable and experienced in insurance matters. “More is demanded of a knowledgeable person than of one unfamiliar with the subject matter or inexperienced therein.” Id. We are unpersuaded by Jenkad’s argument that, had Fetsch examined the policy, he would not have been able to discern that it did not provide HNOA coverage. Although the policy certainly was voluminous, an examination of the declaration sheets, which set forth the policy forms and endorsement schedule for each type of coverage afforded, would have revealed no mention of HNOA insurance.

Jenkad’s acceptance of the policy is fatal to its claim for summary judgment. Where an insured accepts a policy as a counteroffer to its application, it assents to the policy’s terms and cannot thereafter seek to have the policy reformed on the ground of mutual mistake. See generally Steward, 127 S.W.2d 22; Galemore v. Haley, 471 S.W.2d 518 (Mo.App.1971). Moreover, acceptance of a policy terminates a binder and any temporary coverage provided thereby. 2 Couch, § 14.3 at 5. Accordingly, the only contract of insurance between Jenkad and Transportation in effect on November 1, 1994, the date of the collision, was that set forth in the written policy, which did not provide HNOA insurance. The trial court erred in granting Jenkad’s motion for summary judgment.

“This is a hard case as to the insured, in that it is apparent that [it] applied for insurance, including [HNOA] insurance, and the company issued to [it] a policy without any such provision and without notifying [it] that [the company] had refused to grant [it] that kind of insurance, otherwise than giving [it] such notice as a reading of the policy would contain. However, we cannot relieve [it] ... of the results of [its] negligence in failing to read the policy.” Neuner, 133 S.W.2d at 694.

The judgment of the trial court is reversed and the case is remanded with an order that judgment be entered in favor of Transportation.

RICHARD B. TEITELMAN, P.J., concurs.

LAWRENCE E. MOONEY, J., concurs.

      . Hired and non-owned automobile coverage provides liability insurance in the event an employee of the insured is involved in an automobile accident while acting within the scope of employment but in a vehicle that is not owned by the insured.

      . Transportation freely admits that Wilson had authority to bind insurance contracts. An agent with authority to execute a written binder also has authority — at least apparent authority — to enter into an oral binder. Chailland v. M.F.A. Mut. Ins. Co., 375 S.W.2d 78, 82 (Mo. 1964).

      . The record does not reveal the exact date the policy was delivered to Jenkad, only that it was sometime in August, 1994.

      . Jenkad’s petition ostensibly seeks reformation on the ground of mutual mistake. "Reformation of an instrument is proper when it is shown by clear, cogent, and convincing evidence that the instrument fails to reflect a valid underlying agreement between the parties due to fraud, mutiial mistake, or such other grounds as will satisfy the requirements for equitable relief.” United Postal Sav. Ass’n v. Norbob Enter., Inc., 792 S.W.2d 898, 901 (Mo.App.1990). A mutual mistake is one that is common to both parties, that is, the written instrument reflects what neither party intended. Walters v. Tucker, 308 S.W.2d 673, 675 (Mo.1957).


author: MARY RHODES RUSSELL, Chief Judge.

text:
    David G. KENNEDY, M.D., and David G. Kennedy, M.D., P.C., Plaintiffs/Appellants, v. MICROSURGERY AND BRAIN RESEARCH INSTITUTE and Gregory J. Bailey, M.D., Defendants/Respondents.
    No. ED 76513.
    Missouri Court of Appeals, Eastern District, Division Five.
    March 21, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 3, 2000.
    Application for Transfer Denied June 27, 2000.

      Al W. Johnson, Romondous A. Stover, Carl W. Becker, St. Louis, for appellant.
    Joseph H. Mueller, Leo Y. Garvin, St. Louis, for respondents.
   MARY RHODES RUSSELL, Chief Judge.

David G. Kennedy, M.D. and David G. Kennedy, M.D., P.C. (collectively “Dr. Kennedy”) appeal the trial court’s judgment granting the motion to dismiss of Microsurgery and Brain Research Institute and Gregory J. Bailey, M.D. (collectively “Dr. Bailey”) in Dr. Kennedy’s action for slander, injurious falsehood, and injunctive relief. The trial court granted the motion on the basis that Dr. Kennedy’s action was barred by the statute of limitations. We find that Dr. Kennedy’s claim was filed less than two years after the damages were sustained and capable of ascertainment and, therefore, not barred, We reverse and remand.

Dr. Kennedy performed surgery on George Conway (“patient”) in March 1995, and continued to treat him until April 1996. In June 1996, patient’s wife informed Dr. Kennedy that patient was currently seeing another doctor because his insurance company would no longer pay for Dr. Kennedy’s medical services. Dr. Kennedy also spoke with patient, who reiterated the same explanation.

Dr. Kennedy heard nothing further until patient filed a medical malpractice lawsuit against Dr. Kennedy in October 1997. In his petition, patient alleged, inter alia, that the surgery Dr. Kennedy performed on him was unnecessary.

Patient’s wife, in a September 1998 deposition, testified that Dr. Bailey informed them between May 1 and September 15, 1996, that Dr. Kennedy had performed “unnecessary” surgery on patient. Dr. Bailey further stated that Dr. Kennedy had done so solely for “monetary” purposes.

Dr. Kennedy filed suit against Dr. Bailey, six weeks after learning of the statements. The suit filed in October 1998, alleged claims for slander, injurious falsehood, and injunctive relief. Dr. Bailey filed a motion to dismiss, alleging that Dr. Kennedy’s petition failed to state a cause of action, and that the claims were barred by the statute of limitations. The trial court dismissed Dr. Kennedy’s petition, basing its decision upon the statute of limitations issue. This appeal followed.

In his first point on appeal, Dr. Kennedy argues the trial court erred in dismissing his petition as untimely in that the facts demonstrate he instituted suit less than two years after his damages were ascertained which is within the limitations period provided in section 516.140 RSMo 1994.

Our review of the dismissal of a petition as being time-barred by the expiration of the applicable statute of limitations requires an examination of the pleadings, allowing them their broadest intendment, regarding all facts alleged as true, and construing the allegations in favor of the plaintiff. Dice v. Darling, 974 S.W.2d 641, 643 (Mo.App.1998). When an affirmative defense is asserted, such as a statute of limitations, the petition may not be dismissed unless it clearly establishes on its face, and without exception, that the action is barred. Id. For an affirmative defense to be sustained upon a bare motion to dismiss, the defense must be irrefutably established by the plaintiffs pleadings. Lehnig v. Bornhop, 859 S.W.2d 271, 272 (Mo.App.1993).

There is no dispute that the two-year statute of limitations provided in section 516.140 applies to Dr. Kennedy’s claim for slander. The issue is when that statute began to run.

In Missouri, a statute of limitations is generally triggered not by the discovery of damage, but by the commencement of the right to sue. Business Men’s Assur. Co. v. Graham, 984 S.W.2d 501, 507 (Mo. banc 1999). These two events do not necessarily coincide. Id. The triggering of the commencement of the right to sue is when the damage is sustained and becomes capable of ascertainment. Id. Damages are ascertained when the fact of damage appears, not when the extent or amount of damage is determined. Thurston v. Ballinger, 884 S.W.2d 22, 26 (Mo.App.1994).

Dr. Kennedy argues his damages were not ascertainable until September 1998 when he received a copy of patient’s wife’s deposition in which she had testified to Dr. Bailey’s allegedly defamatory statements. Until that time, Dr. Kennedy was prohibited from ascertaining his damage as patient and his wife gave misleading explanations as to why they switched doctors. Dr. Kennedy filed suit within six weeks of ascertaining his damage. Therefore, he concludes his claim is not time-barred.

Dr. Bailey counters that the statute of limitations for slander and libel claims begins to run at the time of publication, as that is when the damages are capable of ascertainment. Dr. Kennedy filed suit more than two years after the statements were made and failed to plead an exception that would toll the statute of limitations. Therefore, he maintains Dr. Kennedy’s claim is time-barred.

Both parties rely on Jones v. Pinkerton’s Inc., 700 S.W.2d 456 (Mo.App.1985). In Jones, the plaintiff was dismissed by his employer in November 1974 following the employer’s receipt of an investigative report compiled by Pinkerton’s. Jones asked for an explanation of his termination and was told his employment application was incomplete. He inquired again about his termination on two separate occasions but was given no further explanation. Finally, Jones received a service letter dated January 9, 1975, which revealed the fact of Pinkerton’s investigation and report. The report itself revealed that Pinkerton’s consciously sought to keep Jones from discovering its investigation. 700 S.W.2d at 457.

Jones sued Pinkerton’s on January 6, 1977, contending the report libeled him. Pinkerton’s moved for summary judgment arguing that the libel action was barred by the statute of limitations. It stated that the action accrued for statute of limitations purposes when the report was delivered to Jones’ employer sometime before his termination in November 1974. The trial court sustained the motion and entered judgment for Pinkerton’s. Id.

The appellate court reversed. The court acknowledged that a plaintiffs reputation interest is invaded at the time of publication of the allegedly defamatory statements and arguably that is the time when damage is sustained. Id. at 458. The analysis does not end there, however, as section 516.100 states that a cause of action shall be deemed to accrue “when the damage resulting therefrom is sustained and is capable of ascertainment.” Id.

The Jones court concluded that the existence of the libel and any damage to his reputation were not ascertainable by Jones. The actions of his employer and Pinkerton’s prevented him from becoming aware of the report. Therefore, these actions erected an “intervening screen” hiding any wrong to Jones. Until he received the service letter dated January 9, 1975, Jones had no notice of his cause of action, and the statute of limitations was tolled until that notification. Id. at 459. The court emphasized it was not equating “capable of ascertainment” with a discovery test. Id. Rather, it was developing the principle that a statute is tolled when factors outside the plaintiffs control prevent his knowing either that he has suffered a legal wrong or that he has been damaged because of a legal wrong. Id. at 460.

We believe the principle enunciated in Jones is applicable to the instant case. Dr. Bailey made the allegedly defamatory statements between May 1 and September 15, 1996. The actions of patient and his wife in telling Dr. Kennedy they had switched doctors because of insurance problems erected an “intervening screen” hiding any wrong against Dr. Kennedy. As did the plaintiff in Jones, he attempted to obtain an explanation but received misleading answers. Dr. Kennedy was not aware he had suffered any legal wrong until he received a copy of patient’s wife’s deposition in which she revealed Dr. Bailey’s statements. Therefore, the statute was tolled until that time.

Dr. Bailey erroneously maintains Dr. Kennedy is required to plead that Dr. Bailey actively concealed the statements he allegedly made concerning Dr. Kennedy. We discern no such requirement. Rather, the statute of limitations is tolled when factors outside the plaintiffs control prevent his ascertainment of any legal wrong. See Jones, 700 S.W.2d at 459; Finnegan v. Squire Publishers, Inc., 765 S.W.2d 703, 706 (Mo.App.1989). The defendant does not necessarily have to be the one preventing ascertainment.

Dr. Kennedy’s petition sufficiently shows that the actions of patient and his wife, which were outside Dr. Kennedy’s control, prevented Dr. Kennedy from ascertaining he had been slandered. It further shows that Dr. Kennedy filed his lawsuit well within the two-year limitations period of when he became informed of the statements. Therefore, the trial court erred in dismissing Dr. Kennedy’s petition as untimely. Point I is granted.

In his second point Dr. Kennedy argues that in the event we find his slander claim barred by section 516.140, a different statute of limitations should apply to his claim for injurious falsehood. As we have found that his petition was timely filed, we need not address Dr. Kennedy’s second point.

Dr. Bailey further argues that regardless of our resolution of the statute of limitations issue, the trial court did not err in dismissing Dr. Kennedy’s petition because the alleged defamatory statements are opinions rather than actionable facts.

In reviewing an action sustaining a motion to dismiss, we will affirm the dismissal if it can be sustained on any ground stated in the motion regardless of whether the trial court relied on that ground. Hoag v. McBride & Son Inv. Co., Inc., 967 S.W.2d 157, 172 (Mo.App.1998); Property Exchange & Sales, Inc. v. King, 822 S.W.2d 572, 573 (Mo.App.1992).

Defamation analysis is comprised of two components. Pape v. Reither, 918 S.W.2d 376, 380 (Mo.App.1996). First, the court must determine whether the alleged statement is defamatory at all. Id. Such a determination is a question of law. Id. at 379. Statements which falsely impute conduct incompatible with one’s business, trade, or profession are defamatory per se. Id. at 380. The words used must impute a lack of knowledge, skill, capacity, or fitness to perform one’s duties, or fraud, want of integrity, or misconduct in the line of one’s calling. Nazeri v. Missouri Valley College, 860 S.W.2d 303, 311 (Mo. banc 1993).

According to Dr. Kennedy’s petition, Dr. Bailey stated to both patient and his wife that Dr. Kennedy performed unnecessary surgery and did so for monetary purposes. Such statements certainly impute lack of skill and want of integrity on Dr. Kennedy’s part. Therefore, under the first prong of defamation analysis, the alleged statements are defamatory.

Once the statement is found to be defamatory, the court inquires as to whether one or more privileges, such as the one applicable to statements of opinion, shelters the defaming party from legal action. Pape, 918 S.W.2d at 380. This determination is also a question of law. Diez v. Pearson, 834 S.W.2d 250, 252 (Mo.App.1992). The decision as to whether the alleged defamatory statements constitute statements of fact or expressions of opinion must be made not only on the basis of the words themselves, but also after consideration of all relevant attending circumstances. Henry v. Halliburton, 690 S.W.2d 775, 789 (Mo. banc 1985).

We conclude that this matter is not sufficiently developed at this stage in the proceedings for us to make a decision as to whether the statements are statements of fact or expressions of opinion. The record consists of Dr. Kennedy’s petition and Dr. Bailey’s motion to dismiss, along with memorandums in support of each. There are no depositions, affidavits, or other supporting documents which could expound on the circumstances surrounding Dr. Bailey’s making of the statements, allowing an informed decision on the matter. Therefore, we are unable to rule that Dr. Bailey’s statements are protected by the opinion privilege at this stage of the proceedings.

The judgment of the trial court is reversed and the case is remanded for further proceedings consistent with this opinion.

LAWRENCE G. CRAHAN, J., and ROBERT E. CRIST, Sr.J., concur.

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


text:
    Phillip D. WASHINGTON, Petitioner/Respondent, v. Ernestine WASHINGTON, Respondent/Appellant.
    No. ED 76924.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 21, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 10, 2000.
    Application for Transfer Denied June 27, 2000.

      Elbert A. Walton, Jr., St. Louis, for appellant.
    Bruce Eastman, Florissant, for respondent.
   WILLIAM H. CRANDALL, Jr., Presiding Judge.

Wife, Ernestine Washington, appeals from the trial court’s grant of husband’s, Phillip D. Washington, motion for rehearing and a modification of the decree after entry of an earlier judgment modifying the decree of dissolution of the parties’ marriage and finding husband in contempt. We reverse.

The decree of dissolution was entered on January 28, 1998. In September 1998, husband filed a motion to modify with regard to child custody and support and wife filed a counter motion to modify with regard to the same. Wife also filed a motion for contempt against husband for failure to pay child support, removal of the children to the State of Illinois, and failure to pay debts and turn over property as ordered in the decree. The trial court issued an order to show cause to husband. On February 10, 1999, the family court commissioner issued findings and recommendations, modifying the original decree and finding husband in contempt.

On February 11, 1999, a judge approved and adopted the findings and recommendations of the commissioner. On February 16, 1999, notice of the judgment was sent to the parties.

On March 15, 1999, husband filed a motion for rehearing or to amend judgment. On June 7, 1999, the trial court granted a rehearing. On August 27, 1999, the trial court entered a judgment modifying the decree. Wife appeals.

In her first point, wife contends the court was without jurisdiction to grant a rehearing with respect to the February 11, 1999 judgment and to enter the August 27, 1999 judgment. She argues the court was deprived of jurisdiction to rule on the motion for rehearing because of husband’s failure to file his motion within fifteen days after the mailing of the notice that the judgment was filed or because of the court’s failure to rule on the motion within 45 days of the husband’s filing his motion.

The case before us is a family court matter heard before a commissioner pursuant to chapter 487, RSMo (Cum.Supp.1998). Rule 129 governs practice and procedures before commissioners hearing family law matters. Rule 129.01. Rule 129.02 provides, “This Rule 129 is promulgated pursuant to the authority granted this Court by article V, section 5 of the Constitution of Missouri and supersedes all statutes and existing court rules inconsistent therewith.” A judge may either adopt or reject the findings and recommendations of the commissioner and enter a judgment of the court. Rule 129.09. Moreover, Rule 129.13 states in relevant part:

(a) Unless waived by the parties in writing, a party to a case or proceeding heard by a commissioner, within fifteen days after the mailing of notice of the filing of the judgment of the court, may file a motion for rehearing by a judge of the court....
(b) The judge shall rule on the motion for rehearing promptly. If the motion for rehearing is not ruled on within forty-five days after the motion is filed, it is overruled for all purposes.

In the case at bar, the court adopted the findings and recommendations of the family court commissioner as a judgment on February 11, 1999. On February 16, 1999, notice of the filing of the judgment was mailed to the parties. At that time, pursuant to Rule 129.13, either party could have filed a motion for rehearing within 15 days of the mailing of the notice. Husband, however, filed a motion for rehearing on March 15, 1999, more than 15 days after the mailing of the notice. Husband’s motion was therefore untimely under 129.13(a) and the court was without jurisdiction to rule on the motion. Thus, the order on June 7, 1999 granting a rehearing was without force or effect.

Even assuming the motion for rehearing was timely filed, pursuant to Rule 129.13(b) the court was required to rule on the motion within 45 days after the date it was filed or it was considered overruled for all purposes. In the case at bar, the motion for rehearing was filed on March 15, 1999, yet the trial court did not rule on the motion until June 7, 1999. Because the court did not rule on the motion within 45 days of its filing, the motion was overruled for all purposes and the court was without jurisdiction to rule on the motion. Wife’s first point is granted.

In her second point, wife contends the trial court erred in failing to specify the grounds for the order granting a rehearing. In view of our holding that the trial court lacked jurisdiction to grant the motion for rehearing, this issue is rendered moot.

The order of the trial court purporting to grant a rehearing on husband’s motion is null and void, as is the August 27, 1999 judgment modifying the decree of dissolution. The judgment modifying the decree of dissolution and finding husband in contempt, as originally entered on February 11, 1999, remains in full force and effect. The judgment of the trial court which purports to grant husband a rehearing and the August 27, 1999 modification of the decree is reversed.

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

      . Husband styled his motion a motion for "new trial” and the court granted a “new trial.” Consistent with Rule 129, however, we use the term "rehearing” when referring to the motion or the court’s ruling.

      . We do not reach the issue of whether under Rule 75.01 the court on its own motion could have granted a rehearing within thirty days of entry of judgment, because that issue is not before us.


author: HAROLD L. LOWENSTEIN, Judge.

text:
    CENTRAL MISSOURI ELECTRIC COOPERATIVE, Respondent, v. Richard WAYNE and Ruth Balke, Appellants.
    No. WD 56762.
    Missouri Court of Appeals, Western District.
    March 21, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 2, 2000.
    Application for Transfer Denied June 27, 2000.

      See also 966 S.W.2d 15.

      George S. Miller, Christopher L. Heig-ele, Gladstone, for appellant.
    Mark T. Kempton, J. Christopher Span-gler, Sedalia, for respondent.
    Before Presiding Judge SPINDEN, Judge LOWENSTEIN and Judge ULRICH.
   HAROLD L. LOWENSTEIN, Judge.

FACTS

This appeal stems from both a summary judgment in favor of the respondent, Central Missouri Electric Cooperative (CMEC), on its Petition for Damages for electric power supplied to the Balkes, and a directed verdict in favor of CMEC on Appellants’, Richard and Ruth Balke’s, counterclaim for damages sustained due to CMEC’s wrongful termination of electrical power.

CMEC is a rural electric cooperative. It serves farms, residences, schools, and industries in rural, central Missouri. Richard and Ruth Balke operate a dairy farm in Cole Camp. Richard, age forty-nine, has lived on the farm his entire life. Balke lives there with his wife, three of his four children, and his mother, who has lived on the family farm since 1930. CMEC had supplied electrical power to the Balke farm since 1971.

In 1982, CMEC replaced an existing transformer on the property with a larger transformer because of the expansion of the Balke dairy operation. After the installation, the Balkes began experiencing over-voltage problems, which eventually damaged electrical equipment on their farm. As a result, the Balkes’ dairy herd was damaged due to mastitis.

After several years of complaints, on March 2, 1991, CMEC discovered that the transformer, which was installed in November 1982, was transmitting over-voltages. After this discovery, CMEC told Mr. Balke, ‘We’re gonna take that transformer off and we’re gonna send it down to Arkansas and get it tested out. If it tests out defective, we’re gonna pay you for your losses.” Subsequently, it was removed and the transformer was found to be defective.

Months passed without the Balkes’ claims resulting from the defective transformer being paid. In January 1992, the Balkes received an unusually low electric bill of only $24.00. When they inquired about the bill to CMEC, they were told that they would not be required to pay any electrical bill until CMEC investigated the low bill issue. Following that conversation, the Balkes did not pay any electric bills nor did they read their meter.

However, on May 27,1992, CMEC billed the Balkes for service for February through June 1992. In June, 1992, Mr. Balke sent a return letter expressing his dissatisfaction and explaining the financial difficulties the family was experiencing due to the electrical problems. Mr. Balke also sent a statement of his own for the damages caused since 1982 that had never been paid by CMEC.

Upon receipt of Mr. Balkes’ letter, CMEC requested by phone that the Balkes meet with the co-op’s general manager. Mr. and Mrs. Balke went to CMEC and attended a meeting sometime between June 1 and June 11, 1992. At that time, the general manager stated that the Balkes were good people, CMEC felt bad, and they owed the Balkes damages and should have taken care of the situation a long time ago. Further, the general manager requested that the Balkes talk to CMEC’s lawyer, Adam Fischer, to make matters “more legal.”

Accordingly, Mr. and Mrs. Balke went to Adam Fischer’s office in Sedalia. Mr. Fischer informed the Balkes that CMEC was going to see that the Balkes got paid for their damages, but that it could not be done that day. He further stated that “we can just waiver your power bill and then when you get paid, you can pay us.” Fischer assured Balke that it was a deal, and the two men shook hands on the agreement.

From that day on, and for over the next five years, the Balkes never read their meter, never received an electric bill from CMEC, nor did they ever receive a delinquency notice. They were never turned over to a collection agency, and all the while the power supply from CMEC continued unabated. Further, the Chairman of the Board of Directors of CMEC, who was CMEC’s designated representative at the trial, admitted that there “must have been some arrangement” in order for this situation to have existed for over five years.

The Balkes filed suit against CMEC on July 2,1992, because their claims for damages to their dairy business and head, dating back from November 1982 to March 1992, had never been paid. The case went to trial in November of 1996, and resulted in a judgment in favor of the Balkes in the amount of $783,333.00. CMEC then appealed to this court. See Balke v. Central Missouri Elec. Co-op., 966 S.W.2d 15 (Mo.App.1997). This court reversed and remanded that case and a settlement was eventually reached subsequent to the filing of this appeal.

However, during the pendency of the appeal by CMEC on the Balkes’ judgment for damages to the herd and business, CMEC, through its attorney Adam Fischer, requested that the Balkes sign a “Partial Assignment of Proceeds” that would give CMEC preference over the Balkes’ other creditors who would be paid out of the November 1996 judgment. CMEC threatened to discontinue electric service to the Balke farm unless the agreement was executed. The Balkes refused to sign the assignment due to their belief that they already had an agreement with CMEC, and also due to the fact that this prior agreement had been “in operation” for the past five years. Mr. Balke explained his decision as follows; “We only had so much money and I did not think it was fair to pay the people that caused me the problem before I paid the people that backed me.”

On June 2, 1997, CMEC workers appeared on the Balkes’ farm and disconnected the electricity supply. The workers however, did not tell the Balkes the electric service to the farm was being shut off.

Although Mr. Balke had requested a reconnection, the Balkes were forced to live with no electricity for over 480 days and their appliances were electric. They had no running water, no stove, no refrigeration for food, no fights, no bathing facilities, etc. One child had to move out of the house due to the condition, while the rest of the family had to borrow from neighbors and depend on creek or rainwater and kerosene lanterns or flashlights. The Balkes’ high school aged son had to attempt to do his homework by lantern or flashlight. The family did bring in generators, although they eventually failed due to constant use.

The Balkes’ clothes had to be washed in cold water. No air conditioner or fans could be used which lead to mildew collecting. The mildew created a “stench” in the house.

The farm could not operate without electricity to pump water. The cattle had to be moved to neighbors’ farms in order for them to get water. Mr. Balkes’ sister who had grown up on the farm returned and described the living conditions as “absolutely devastating, humiliating, [and] inhumane.”

On July 24, 1997, CMEC filed this suit against the Balkes, alleging that they had refused to pay for electrical service from July 1,1992 through June 1,1997. CMEC prayed for approximately $20,000. The Balkes filed an answer containing several affirmative defenses, as well as a counterclaim for wrongful termination of electrical power. Their counterclaim set forth that a prior agreement had been made acknowledging that the Balkes would not have to pay for their electricity until the previous damages had been paid to the Balkes by CMEC. The trial court granted summary judgment to CMEC on its petition for damages for service provided and after commencement of the trial for the Balkes’ counterclaim, directed a verdict for CMEC.

POINTS RELIED ON

Appellate review of a directed verdict entails an examination as to whether the Balkes’ evidence made a submissible claim of wrongful termination of electrical service when viewing the evidence and reasonable inferences therefrom in the light most favorable to the Balkes. Parra v. Bldg. Erection Serv., 982 S.W.2d 278, 282 (Mo.App.1998). Directing a verdict is a drastic measure and a presumption is made in favor of reversing the trial court’s grant of a directed verdict unless the facts and any inferences from those facts are so strongly against the Balkes as to leave no room for reasonable minds to differ as to a result. Friend v. Holman, 888 S.W.2d 369, 371 (Mo.App.1994).

I. DIRECTED VERDICT IN FAVOR OF CMEC ON BALKES’ COUNTERCLAIM

The trial court directed a verdict in favor of CMEC at the close of the Balkes’ case. The Balkes’ argue they presented substantial evidence that established a pri-ma facie case for the tort of wrongful termination of electrical service. They further argue that the trial court erred in concluding that it was essential to their claim to prove that the agreement (that CMEC would not collect utility charges against the Balkes until the liability for the improper transformer and the damages flowing from the service had been determined) between the Balkes and Adam Fischer was a legally enforceable contract.

In the case of Haynam v. Laclede Elec. Co-op., Inc., the Supreme Court of Missouri set out the elements for a cause of action for wrongful termination of electrical service. 827 S.W.2d 200 (Mo.1992). The elements are: (1) the defendant is engaged in the discharge of a public enterprise or service, (2) the plaintiffs fall within the class of persons whom defendant was obligated to serve, (3) plaintiffs have performed all conditions precedent entitling them to electrical service, (4) defendant wrongfully refused or neglected to supply súch service to the plaintiffs, and (5) the plaintiffs have been damaged. Id. at 203, citing Ellyson et ux. v. Missouri Power and Light Co., 59 S.W.2d 714, 716 (Mo.App.1933). The Court went on to hold that absent a contrary provision in a contract, the fourth element coüld be proven by showing the defendant negligently or intentionally failed to supply the electrical service. Id. at 203-04.

The trial court granted CMEC’s motion for directed verdict on the basis that appellants failed to establish the third and fourth elements of their cause of action. As to the third element (plaintiffs having performed all the conditions precedent entitling them to electrical service), the trial court held that because appellants did not prove a legally enforceable contract existed between Adam Fischer and the Balkes, which would thereby excuse them from having to pay their electric bill, that they failed to perform the condition precedent of paying their electric bill.

Although it was undisputed that the Balkes had not paid their electrical bill for almost five years, this court holds that fact ' should not in itself result in the legal conclusion that they had not fulfilled all conditions precedent to entitle them to electrical service.

The Balkes produced substantial evidence that there was a “special arrangement” made between the Balkes and Adam Fischer. It is illogical to conclude that although the Balkes had paid no bills, received no bills, received no delinquency notices, nor had they been turned over to a collection agency in five years, that there was not some sort of arrangement made with Adam Fischer and that CMEC obviously knew of its existence. Even more substantial is the fact that the Balkes’ electric supply was never disconnected in that five year time period.

It is beyond reason to conclude that no arrangement was made similar to the one the Balkes testified about. The trial court granted CMEC’s motion for directed verdict on the basis that even if some arrangement existed, then the Balkes’ cause of action failed as they did not prove there was any consideration for the arrangement to make it a legally enforceable contract.

The Balkes’ counterclaim was filed as an action for the tort, rather than the breach of contract, of wrongful termination of electrical service because they pled under a willful, wanton and malicious standard and prayed for punitive damages. As a result, there is no requirement of a legally enforceable contract pursuant to the Hay-nam elements listed above. See Haynam, supra. If the counterclaim was plead as a contract action, the trial court’s result would be correct. However, this counterclaim was plead as a tort, and accordingly, there is no contract requirement.

Moving on to the fourth element in the tort of wrongful termination of electrical service, the trial court held there was not substantial evidence admitted to show CMEC intentionally disconnected the Balkes’ electricity.

Caselaw has held there is a duty as a matter of law on an electric company to protect its customers from foreseeable damage from failure of electrical service, as consumers dependency upon electric companies is almost total. See Nat’l Food Stores, Inc. v. Union Elec. Co., 494 S.W.2d 379 (Mo.App.1973). Several cases have discussed the “willful and wanton” nature of the termination of electricity. See Rose v. Missouri Public Service Co., 586 S.W.2d 767 (Mo.App.1979); DeLong v. Osage Valley Elec. Co-op. Ass’n., 716 S.W.2d 320 (Mo.App.1986). However, DeLong most resembles the situation at hand.

The DeLongs were members of a co-op similar to CMEC. When they complained that there must have been a malfunction in their meter, the co-op replaced the meter and sent the old one to be tested. Subsequently, the DeLongs received a higher bill than normal. When confronted about the high bill, the co-op informed the De-Longs that the meter had been tampered with. As a result, the DeLongs were told they would have to pay half of the outrageously high bill plus a $1,000.00 deposit for continued service by the end of the day or their electricity would be disconnected. The second half of the bill would be due the next month. The DeLongs could not come up with the amount of money needed that day, and despite an attorney’s attempt to come to a resolution on the DeLong’s behalf, the co-op terminated electrical service two hours before the close of that same business day. The DeLongs’ damages were a loss of approximately $100.00 worth of perishable food. The trial court enjoined the co-op’s conduct the next day, returning the supply of electricity to the DeLongs.

Although the DeLongs’ relationship with their co-op was contractual, the court held that tort liability can arise from such a relationship. DeLong, 716 S.W.2d at 322. (citations omitted). The court further stated that the DeLongs clearly had the option to sue in tort or in contract. Id. (citations omitted). As a result, a pleading that “the defendant wantonly and maliciously disconnected electric service of the plaintiffs” was proper. Id. at 325. The DeLong court went on to state that pled in this manner, the tort of wrongful termination of electrical service “denotes the intentional doing of an act in utter disregard of the consequences.” See id. citing Ervin v. Coleman, 454 S.W.2d 289, 291 (Mo.App.1970) (overruled on other grounds); Voss v. Am. Mut. Liability Ins. Co., 341 S.W.2d 270, 279 (Mo.App.1960) (citations omitted).

Analogous to the case at bar, it is clear to this court that CMEC intentionally and knowingly disconnected the Balkes’ electric service when they were fully aware that at least six people (including one age 87) resided in the house, and that the farm was completely dependent on electricity. CMEC intentionally acted “in utter disregard of the consequences” the Balkes would have to face due to the termination of their electricity, all for the mere benefit of receiving a higher creditor status than the Balkes’ other creditors. Furthermore, the Balkes never denied that they would pay the bill once they were compensated for the prior damage suit, and the agreement between Mr. Fischer and Mr. Balke already guaranteed CMEC payment of the bill. However, even more substantial is that the Balkes had no electricity for over 480 days, compared to the few hours the DeLongs were without electricity.

In further support of this position, this court has previously held that “[tjermi-nation may be wrongful where the ... payment demanded may not yet be due....” DeLong, 716 S.W.2d at 326 quoting De Salme v. Union Elec. Light & Power Co., 232 Mo.App. 245, 102 S.W.2d 779, 783 (1937). Adam Fischer made a special arrangement with the Balkes confirming they would not have to pay their electric bill until they received compensation from CMEC related to the previous damages. The Balkes had not received any compensation for those damages when Fischer requested the Balkes’ sign the “Partial Assignment of Proceeds.” As a result, CMEC intentionally turned off the Balkes’ electricity when Mr. Balke refused to sign the assignment. The termination of electricity occurred prior to receipt of any compensation by the Balkes, as was agreed to pursuant to the terms of the arrangement that had been made between Adam Fischer and Mr. Balke. Moreover, this arrangement had already been “in operation” for the past five years. The fourth element of the tort of wrongful termination of electrical service was met when CMEC intentionally abated the electric supply to the Balke farm.

This court finds that the Balkes’ counterclaim was plead as the tort of wrongful termination of electricity, and as such there was no requirement for a legally enforceable contract. Further, there was substantial evidence admitted to show that CMEC intentionally terminated the Balkes’ electrical service in violation of their payment agreement previously made with Adam Fischer. The trial court erred in granting respondent’s motion for directed verdict, and this point is hereby reversed and remanded for a new trial.

II. SUMMARY JUDGMENT IN FAVOR OF CMEC

This court’s standard of review of summary judgment is essentially de novo. Rustco Prod. Co. v. Food Com, Inc., 925 S.W.2d 917, 921 (Mo.App.1996). The propriety of the grant of summary judgment is purely an issue of law, and this court need not defer to the trial court’s order. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376-7 (Mo. banc 1993).

Appellants’ second contention on appeal is that the trial court erred in granting summary judgment in favor of CMEC on its petition for past electric services due. Although the Balkes put forth several reasons why the summary judgment was error, this court forms its decision based on their point arguing that respondent did not address nor prove the non-viability of the affirmative defenses. Among others, the Balkes’ answer contained the affirmative defenses of estoppel and waiver.

Due to CMEC’s disregard to address the Balkes’ affirmative defenses, it neglected to show that the affirmative defenses failed as a matter of law pursuant to Rule 74.04(c). “[W]here the defendant has raised an affirmative defense, a claimant’s right to judgment depends just as much on the non-viability of that affirmative defense as it does on the viability of the claimant’s claim.” ITT Commercial Finance Corp., 854 S.W.2d at 380.

“Therefore, a claimant moving for summary judgment in the face of an affirmative defense must also establish that the affirmative defense fails as a matter of law.” Id. “[T]he claimant may defeat an affirmative defense by establishing that any one of the facts necessary to support the defense is absent.” Id.

CMEC admittedly did not respond to appellants’ affirmative defenses listed in their answer. As such, the affirmative defenses’ viability was not negated, resulting in a genuine dispute of material facts. Therefore, the trial court’s summary judgment was granted in error. The summary judgment of the trial court in favor of CMEC is hereby reversed.

CONCLUSION

The trial court is reversed on both points. The case is remanded for trial.

All concur.