text:
    STATE of Missouri, Plaintiff-Appellant, v. Jennifer M. RUSH, Defendant-Respondent.
    No. 26396.
    Missouri Court of Appeals, Southern District, Division One.
    April 29, 2005.

      Cynthia R. Black, Webster County Prosecuting Attorney, Marshfield, for appellant.
    Donald R. Cooley, Springfield, for respondent.
   PHILLIP R. GARRISON, Presiding Judge.

The State of Missouri (“the State”) files this interlocutory appeal, pursuant to Section 547.200, following the trial court’s grant of Jennifer M. Rush’s (“Defendant”) motion to suppress evidence seized in connection with the execution of a search warrant. The trial court found that the affidavit used in support of the search warrant failed to establish probable cause for the search. The State argues that the trial court erred in that regard. Further, the State asserts that even if the warrant lacked probable cause, the police officers acted in good faith. Upon review of the record, we reverse the decision of the trial court.

On August 1, 2003, Deputy Rick Hamilton (“Deputy Hamilton”) of the Webster County Sheriffs Department prepared an affidavit requesting a search warrant for Skip Lamkey’s residence (the “Lamkey residence”). Deputy Hamilton’s affidavit, in pertinent part, averred as follows:

I Rick Hamilton, a deputy sheriff for the Webster County Sheriffs Department, have reason to believe that certain evidence of a crime, to wit: Drug Offenses Chapter 195 RSMO is presently concealed at:
A residence located at 1310 Cedar Ridge Road, Strafford, located in Webster County. From Marshfield take Interstate 44 West to the Northview exit, take the exit and go west on the North Outer Road also known as Evergreen Road, go approx. .7 miles to Cedar Ridge Road, turn right on Cedar Ridge Road and continue appr. 1.3 miles to driveway on right. Driveway is directly across from Jarrett Branch Road, continue down driveway to double wide trailer. Residence is known as the [Lamkey residence].
And, in support of my belief states [sic] the following
On 07-29-03 I was contacted by Springfield Police Officer Todd King. King is an officer in the Special Investigations Unit at the Department.
King said he had a proven reliable informant who made the following statements to him
Informant said he was at the [Lamkey residence] on or about 07-27-03. Informant said at the residence he observed what he said was Red Tar Opium in the residence. Informant said he also observed Lamkey and other subjects smoking Opium in the residence.
Informant said Lamkey stated he was cooking methamphetamine on the property.

According to King the informant has provided information on different occasions that led to search warrants being obtained. King said illegal drugs were found and arrests were made from information provided by the informant. King further said the informant has made controlled drug buys for him on different occasions.

On 07-31-03 I talked to the same informant. The informant made the following statements to me:

Informant said on this past weekend he went to the [Lamkey residence]. Informant provided me with driving directions that I drove later that took me directly to the [Lamkey residence]. Informant said at the residence he observed several Reddish/Orange rocks that he said was opium.
Informant said Lamkey and others in the residence were also smoking opium in the residence. Informant said he also saw a bag containing a white powder on a table in the residence. Informant said he recognized the powder as meth. Informant said he also saw subjects in the residence injecting meth into their arms with syringes. Informant said he estimated there to be approx, [one] ounce of meth in the residence.
Informant said he heard Lamkey and a subject named Stanley Harris talking about cooking meth using the Red phosphorus method behind the residence.
Informant said he also observed [two] machine guns in the residence. Informant said Lamkey was bragging about the guns being fully automatic weapons.
Informant said Lamkey offered to sell him some meth and told him he would even have more later in the week if he wanted more.

On 7-31-03 I talked to another confidential informant who made the following statements:

Informant said she was at the [Lam-key residence] this past weekend. Informant said she observed what Lamkey was saying was red tar opium. Informant said the subjects were smoking the opium in the residence. Informant said she also saw a bag containing a white shiny powder she said was methamphetamine.
Informant said she heard Lamkey making statements about Stanley Harris and him cooking meth using the red and black method behind the residence.
Informant said there is an old house behind the residence that Lamkey said was his and was going to bulldoze the house down soon.
I have received information in the past from informants Skip is cooking methamphetamine using the red phosphorus method at his residence located at Straf-ford. I have also received information from a store in Springfield that said a person who identified himself as Skip Lamkey purchased several cases of Matches from the store.
The ends of the matches are used as an ingredient in the manufacture of methamphetamine using the red phosphorus method.

After reviewing the application and the affidavit, an associate circuit judge found probable cause and issued a search warrant for Lamkey’s residence at 1310 Cedar Ridge Road. Pursuant to the warrant, police officers searched the home and found drug paraphernalia, marijuana, methamphetamine, opium and assault rifles. Defendant was present at the residence when the search warrant was served. After being read her Miranda rights, Defendant told Deputy Hamilton that Lamkey was her boyfriend and she lived with him at 1310 Cedar Ridge. She also reportedly told him that methamphetamine was in the residence and that it was both hers and Lamkey’s. The State charged Defendant with the class C felony of possession of a controlled substance in violation of Section 195.202.

Defendant filed a motion to suppress the evidence seized at Lamkey’s residence contending the warrant failed to state adequate corroborating evidence from the two informants to establish probable cause to search the premises. The trial court sustained Defendant’s motion and suppressed the evidence. The State then filed this interlocutory appeal.

The State sets forth two allegations of error on appeal: first, the trial court erred in suppressing evidence because sufficient probable cause existed to issue the search warrant; and second, that, even if sufficient probable cause did not exist, the good-faith exception to the exclusionary rule applies.

In reviewing a motion to suppress, we give great deference to the initial judicial determination of probable cause made at the time of the issuance of the search warrant. State v. Baker, 103 S.W.3d 711, 720 (Mo. banc 2003); State v. Middleton, 995 S.W.2d 443, 457 (Mo. banc 1999); State v. Berry, 801 S.W.2d 64, 66 (Mo. banc 1990). We will only reverse if that determination is clearly erroneous. Baker, 103 S.W.3d at 720.

Defendant asserts that our review should be the same as that used by the Western District in State v. Trenter, 85 S.W.3d 662 (Mo.App. W.D.2002). There the court reviewed the trial court’s granting of the motion to suppress for clear error while at the same time giving great deference to the issuing judge’s initial determination of probable cause. Id. at 669. We do not agree that is the appropriate standard here. The review of a trial court’s ruling in a motion to suppress under a clearly erroneous standard is appropriate only in cases involving warrantless searches. State v. Norman, 133 S.W.3d 151, 158-59 (Mo.App. S.D.2004); see State v. Hoyt, 75 S.W.3d 879, 882 (Mo.App. W.D. 2002); State v. Tackett, 12 S.W.3d 332, 336 (Mo.App. W.D.2000); State v. Leavitt, 993 S.W.2d 557, 560 (MoApp. W.D.1999); State v. Glastetter, 819 S.W.2d 774, 775 (Mo.App. E.D.1991).

In cases where an initial judicial determination has been made by a neutral detached magistrate or issuing judge, we reverse only if the initial determination that probable cause exists is clearly erroneous. Norman, 133 S.W.3d at 159. Therefore, we will review giving great deference to the initial judicial determination of probable cause and will reverse only if that determination, based on the totality of the circumstances, is clearly erroneous. Id.

There is a strong preference within the Fourth Amendment for searches conducted pursuant to a warrant. State v. Norman, 133 S.W.3d 151, 157 (Mo.App. S.D.2004). Reviewing courts, therefore, should not quash warrants by construing affidavits in a “hypertechnical rather than a commonsense, manner.” Illinois v. Gates, 462 U.S. 213, 236,103 S.Ct. 2317, 2331, 76 L.Ed.2d 527, 547 (1983). As stipulated in Gates,

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... [concluding]” that probable cause existed.

462 U.S. at 238-39, 103 S.Ct. at 2332, 76 L.Ed.2d at 548. Therefore, to determine whether the initial judge’s determination of probable cause was clearly erroneous, we look at the totality of the circumstances surrounding the search warrant. Baker, 103 S.W.3d at 720; State v. Ford, 21 S.W.3d 31, 34 (Mo.App. E.D.2000). “[P]robable cause must be found within the four corners of the search warrant application and supporting affidavits.” State v. Laws, 801 S.W.2d 68, 70 (Mo. banc 1990); see also Berry, 92 S.W.3d at 830. “[P]robable cause is ‘a fair probability that contraband or evidence of a crime will be found.’ ” Berry, 801 S.W.2d at 66; State v. Dowell, 25 S.W.3d 594, 605 (Mo.App. W.D.2000). The standard is only the probability, rather than a prima facie showing, of criminal activity. Gates, 462 U.S. at 235, 103 S.Ct. at 2330, 76 L.Ed.2d at 546.

Defendant argues the affidavit lacked probable cause because it was based upon information from unnamed informants without corroboration by independent police investigation. Common sense is a key ingredient in considering the absence or presence of probable cause. State v. Hampton, 959 S.W.2d 444, 451 (Mo. banc 1997). Deputy Hamilton’s affidavit was not signed by the informants and, therefore, the statements attributed to the informants are hearsay. See State v. Cornelius, 1 S.W.3d 603, 606 (Mo.App. S.D.1999). Probable cause can be established based on hearsay if there is a substantial basis for crediting it. Ford, 21 S.W.3d at 35. We have noted in the past that “[tjips by informants found to be reliable in the past are sufficient information alone to support an issuing judge’s finding of probable cause.” Cornelius, 1 S.W.3d at 606 (quoting State v. Vega, 875 S.W.2d 216, 218 (Mo.App. E.D.1994)).

Furthermore, “[w]hen the information upon which the warrant is based comes from one who claims to have witnessed a ciime ... the information carries with it indicia of reliability and is generally presumed to be reliable.” Baker, 103 S.W.3d at 720 (quoting State v. Dawson, 985 S.W.2d 941, 950 (Mo.App. W.D.1999)). Missouri courts have found sufficient probable cause when an informant’s personal knowledge is corroborated by other sources. Bemy, 801 S.W.2d at 66; see also Cornelius, 1 S.W.3d at 606.

In the instant case, there are several grounds upon which the hearsay in question can properly be credited. First, the first informant was found to be a reliable informant, one whom officers had used in the past for controlled drug buys and who had provided information which lead to search warrants being obtained and arrests being made. The informant provided the same information to Deputy Hamilton as he did to Officer King about the presence of red tar opium and methamphetamine at the Lamkey residence. The informant reportedly told Deputy Hamilton that while he was at the Lamkey residence, he heard Lamkey and Stanley Harris discussing cooking methamphetamine there. The reliable informant also provided driving directions to the Lamkey residence. These directions, which Deputy Hamilton followed, led to the residence known as the Lamkey residence.

The second informant corroborated the first informant’s information about criminal activity at the Lamkey residence. This informant was reported to have said that she observed red tar opium and methamphetamine in the Lamkey residence and that Lamkey and Stanley Harris made statements about cooking methamphetamine.

Deputy Hamilton had also received information in the past from informants that Lamkey was producing methamphetamine using the red phosphorus method at his residence located at Strafford. This information was coupled with the tip from a Springfield business owner that an individual, identifying himself as Skip Lámkey, had purchased several cases of matches from the store. Investigator Hamilton noted in the affidavit that the ends of matches are used as an ingredient in the manufacture of methamphetamine using the red phosphorus method. The fact the hearsay reports in the affidavit came from multiple sources and all tend to establish the same things, that methamphetamine, as well as opium, could be found there, further suggests that each independent source was credible.

We hold that under the totality of the circumstances, the issuing judge had a substantial basis for concluding there was a fair probability that contraband would be found at the Lamkey residence. We cannot find that the issuing judge’s determination that probable cause existed in this case was clearly erroneous. Since the supporting affidavit stated sufficient probable cause to support the issuance of the search warrant, we need not address whether the good faith exception is applicable as this was not an otherwise defective search warrant. Laws, 801 S.W.2d at 71; Norman, 133 S.W.3d at 162. The trial court’s grant of Defendant’s motion to suppress is reversed and the cause remanded for the trial court to proceed in a manner not inconsistent with this opinion.

PREWITT, J., and RAHMEYER, J., concur.

      . References to statutes are to RSMo (2000) unless otherwise indicated.

      . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


source: Caselaw Access Project

author: NANCY STEFFEN RAHMEYER, Judge.

license: Public Domain

text:
    Robert M. WYPER and Marian R. Wyper, Plaintiffs-Appellants, v. CAMDEN COUNTY, et al., Defendants-Respondents.
    No. 26294.
    Missouri Court of Appeals, Southern District, Division One.
    April 29, 2005.

      Tracy Hunsaker Gilroy, St. Louis, for Appellants.
    Susan Ford Robertson, Jeffrey O. Pars-hall, Columbia, for Respondents.
   NANCY STEFFEN RAHMEYER, Judge.

Robert M. Wyper and Marian R. Wyper (“Wypers”) are the record owners of 160 acres of rural property in Camden County, Missouri. Wypers’ family has owned the Wyper property since 1907 when David Wyper acquired it via a Homestead Certificate. A private wagon road, which subsequently became a gravel roadway known as Rural Route 7-42, traversed through the middle of the 160-acre tract and continued through to neighboring properties from the inception of the ownership of the property to the present time. Camden County has maintained the road, the accompanying draining ditches and the accompanying grader ditches at all times since at least 1950. The parties concede that the road was established as a public road pursuant to section 228.190; however, there was no evidence of any legal descriptions of the road ever being recorded. While doing their estate planning, Wypers obtained a title report on the property. The report, dated October 21, 1999, revealed that Camden County did not have an easement of record that reflected the boundaries of its right-of-way traversing through Wypers’ property. Wypers recognized the dilemma of trying to place fences or deed land without a properly recorded description of the road. There has never been a sale pending on the property and the property was not for sale at the time of the trial.

In an effort to resolve the legal title to the property, Wypers requested that Camden County Commissioners provide a survey or legal description of the roadway. Camden County refused to do so, claiming that it was unclear as to the location and description of its right-of-way through the Wypers’ property. Wypers then commissioned a legal survey of the apparent area of Camden County’s claimed right-of-way in hope that Camden County would agree to such boundaries and recordation of the same. When Camden County refused to agree, Wypers filed a lawsuit for claims, including: Count I, claiming inverse condemnation by Camden County in refusing to provide a legal description or conduct a survey of the public road; Count III, a claim for declaratory judgment whether Camden County has a duty to provide a legal description of the public roadway; and Count V, a suit for damages against Camden County for alleged clouded title due to the failure to provide a legal description.

The trial court found for Camden County on Count I, the inverse condemnation claim, stating that Wypers failed to prove any damages and that an action for inverse condemnation was barred by the statute of limitations. In response to Count III, the request for a declaratory judgment, the Court found the road to be a public road and no violations by Camden County of any statutory provisions, specifically including section 228.190. As to the request for damages, the trial court again found no evidence of damages for any claimed cloud to the title. The court further found that where the evidence leaves a description of the property uncertain, trial courts had the authority to order a survey and tax the survey as costs. As such, the trial court used the legal description for the road that Wypers provided at trial. The court ordered the survey done by Wypers to be taxed as costs, but ordered Wypers to pay the costs; it denied Wypers’ claim for attorneys’ fees.

Wypers bring two points on appeal. First, they appeal the implicit finding of the trial court that Camden County did not have an obligation to provide Wypers with a survey and legal description, which formed the basis of the adverse decisions on both Count I and Count III; they further appeal the failure of the court to award damages, to Wypers for either Camden County’s inverse acquisition of Wypers’ property or the cloud on the title for the refusal to survey or legally describe the road in question.

An inverse condemnation action lies if a public entity with condemning authority appropriates property for public use. State ex rel. State Hwy. Comm’n v. Swink, 537 S.W.2d 556, 558 (Mo. banc 1976); Missouri Real Estate & Ins. Agency, Inc. v. St. Louis County, 959 S.W.2d 847, 849 (Mo.App. E.D.1997) (“Inverse condemnation is a cause of action against a government agency to recover the value of property taken by the agency, though no formal exercise of the power of eminent domain has been completed.”). Even if Camden County’s actions did amount to an inverse condemnation, we do not agree the failure of the county to provide a legal description to a previously established road was a taking by the State, which would subject the county to an action for inverse condemnation.

The legal basis for both Wypers’ points is that, pursuant to chapter 228 and section 59.880, Camden County had a legal obligation to provide a survey and legal description of the roadway. Reliance upon section 59.330 and section 228.190 is misplaced. Sections 59.330.1(1) and 59.330.2 provide that a conveyance of property rights must be recorded and must contain a legal description. There has been no conveyance. Chapter 228 provides the mechanisms for an entity to establish a public road. Specifically, section 228.060 requires that when a county finds it necessary to establish a road, the county commission shall direct the county engineer to view, mark out, and survey such road and report his proceedings in the premises together with his survey and plat of said road to the county commission. Wypers argue that had the provisions of section 228.060 been complied with, then Wypers would not have had to expend monies to obtain a recordable legal description.

Although Wypers argue that the establishment of the road was a compelled conveyance of property rights from Wypers to Camden County, they acknowledge that the conveyance occurred over ten years ago. They also admit that the statute of limitations is ten years for inverse condemnation. See Shade v. Missouri Hwy. and Transp. Comm’n, 69 S.W.3d 503, 513 (Mo.App.W.D.2001) (holding that the statute of limitations for real property inverse condemnation actions is ten years). The trial court found that the road was established in 1950; that finding has not been challenged in this appeal. Even so, Wypers contend that Camden County had a duty to legally describe its right-of-way even if suit for the inverse condemnation occurred outside the statute of limitations. They circumvent the ten-year statute of limitations with the argument that the real taking at issue in this case was the refusal to obtain and record a legal description of the roadway.

Wypers claim it is a taking because without the legal description of Camden County’s right-of-way, the Wypers cannot provide clear title to their own property. It may be that Wypers could not provide a clear title; however, the question before us is not if it would have been commendable for Camden County to cooperate with property owners in their county to provide their county residents with a legal description of the road so as to provide a clear legal title. The question before us is whether the trial court erred when it found that Camden County did not have a legal obligation to provide a legal description and record when an inverse condemnation case was brought well after the statute of limitations period had expired. We can find no authority for the proposition that Camden County must do so, nor were Wypers able to do so. Because the legislature has not seen fit to mandate that the counties must pay for a legal description for all public roadways in such situations, we will not judicially mandate such a provision.

The facts are that Camden County did not bring any action to establish a public road; that road had been established at least as early as 1950, and probably before that. The case was brought to the court by the Wypers on an inverse condemnation claim and a declaratory judgment action to determine whether Camden County had a duty to provide a legal description. Camden County did not violate any of the provisions of either section 59.330 or chapter 228 when it failed to deliver or record a legal description of the previously established roadway. The trial court did not err in so finding. Point I is denied.

Wypers’ second point claims the trial court erred in not awarding damages to Wypers for Camden County’s inverse acquisition of and damaging of Wypers’ property rights by Camden County’s refusal to survey or legally describe its claimed or established right-of-way. Wy-pers note that even after the survey was completed at Wypers’ expense, Camden County refused to consent to the recording of the legal description obtained by Wy-pers. Their premise is that Camden County had a duty to provide a legal description of its claimed roadway and Wy-pers were damaged by Camden County’s refusal to do so. Further, because Camden County would not provide that legal description at Wypers’ request, Wypers claim that damages did not occur until the refusal by Camden County to provide the legal description, which occurred in 2000. Therefore, Wypers argue that the statute of limitations did not begin to run until the fact of damage or alleged taking is determined. Wypers rely upon an equitable argument that it was unreasonable of Camden County to refuse to record the survey and, therefore, the court should have awarded damages.

Again, we need not reiterate our analysis from Point I, other than to say if Camden County did not have a legal obligation to provide a recordable legal description in this claim, then damages may not follow for an inverse condemnation claim. Furthermore, the court found Wy-pers did not prove any cloud in its title, thus no damages could follow on that claim. Keeping in mind that the procedural vehicle upon which the trial court made its decision was a suit by the Wypers for inverse condemnation, a declaratory judgment setting forth the rights of the parties, and a suit for damages for a clouded title, we do not find any abuse of discretion in the trial court’s order assessing the costs of the survey to Wypers and refusing to order that Wypers’ attorneys’ fees be paid by the County.

In Missouri, litigants bear the expense of their own attorneys’ fees as provided in the American Rule; however, attorneys’ fees may be recovered if the situation falls within one of the following categories: (1) recovery pursuant to a contract or provided by statute; (2) recovery as damages in collateral litigation; or (3) reimbursement to balance the benefits. Chapman v. Lavy, 20 S.W.3d 610, 614 (Mo.App. E.D.2000). Since no contract or statute provides for the recovery of attorneys’ fees in the instant case and there is no claim of collateral litigation, any recovery of attorneys’ fees must be as reimbursement to balance the benefits. The equitable balancing of benefits is permissible only in very unusual circumstances. Id. “Missouri courts have construed unusual circumstances ‘to mean an unusual type of case or unusually complicated litigation.’ ” Stephenson v. First Missouri Corp., 861 S.W.2d 651, 658 (Mo.App. W.D.1993) (quoting Dugger v. Welp, 646 S.W.2d 907, 909 (Mo.App. E.D.1983)).

Wypers did not bring a recognizable claim for relief against Camden County. The court did not err in refusing to award attorneys’ fees as damages or in failing to award attorneys’ fees for the bringing of the action. Point II is denied. The judgment is affirmed.

GARRISON, P.J., and PREWITT, J., concur.

      . A petition to relocate or change a public road, which included conveyances of right-of-way by individual landowners but did not include Wypers or their predecessors in title, was filed in 1947.

      . Section 228.190 states in pertinent part:
      [a]ll roads in this state that have been established by any order of the county commission, and have been used as public highways for a period of ten years or more, shall be deemed legally established public roads; and all roads that have been used as such by the public for ten years continuously, and upon which there shall have been expended public money or labor for such period, shall be deemed legally established roads....
      All statutory references are to RSMo 2000 unless otherwise indicated.

      . The Respondents to this appeal are Camden County; Commissioners of Camden County, Orbie Wallace, Thom Gumm and Steve West; and Linda Sweatt, Collector of Revenue of Camden County; and Eddie Whitworth, Assessor of Camden County. For ease of discussion, we refer to Respondents collectively as Camden County. Count II, a suit against Southwestern Bell for refusal to provide a legal description, was settled and is not at issue in this appeal. Likewise, Count IV, a request for relief against Camden County, the county assessor, and the county collector, requesting amendment of the legal description of Wypers’ property to reflect the public roadway and a refund of any taxes paid, was not appealed. Count V, the suit for damages for clouded title, also alleged an action against Southwestern Bell, but that action was settled.

      . Although it is not clear from their point relied on, it appears Wypers include their attorneys’ fees as damages.

      . That finding has not been challenged in this appeal.

      . Respondents filed a motion to dismiss the appeal as not being timely filed. The motion is denied. The initial Judgment was entered on April 9, 2004; however, an Amended Judgment was entered on May 6, 2004. Although Respondents claim the Amended Judgment was simply an order nunc pro tunc, it is clear that a substantive provision was removed from the original order in the second judgment. Orders nunc pro tunc cannot change anything resulting from judicial discretion because such a change constitutes a substantive change. See Pirtle v. Cook, 956 S.W.2d 235, 239-43 (Mo. banc 1997). Appellants timely appealed the May 6, 2004 Amended Judgment.


author: KENNETH W. SHRUM, Judge.

text:
    Tamir Anthony HILL, Movant-Appellant, v. STATE of Missouri, RespondentRespondent.
    No. 26476.
    Missouri Court of Appeals, Southern District, Division Two.
    April 29, 2005.

      Mark A. Grothoff, Columbia, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Alison K. Brown, Office of Atty. Gen., Jefferson City, for Respondent.
   KENNETH W. SHRUM, Judge.

Tamir Anthony Hill (“Movant”) seeks post-conviction relief via a Rule 29.15 motion after he was convicted of murder in the second degree (§ 565.021) and armed criminal action (§ 571.015). Movant’s Rule 29.15 motion charged two instances of ineffective assistance of appellate counsel. First, he alleged ineffectiveness in failing to raise a sufficiency of the evidence point on appeal, and second, he alleged ineffectiveness for the failure to urge reversal due to jury instruction error. Movant also alleged his trial attorney rendered ineffective assistance when he failed to impeach the testimony of an eyewitness with an alleged prior inconsistent statement.

After reviewing the records and files of the criminal and post-conviction cases, the motion court found they conclusively showed Movant was entitled to no relief. Accordingly, it issued findings of fact and conclusions of law as provided in Rule 29.15(j) and dismissed Movant’s case. This appeal followed. We affirm.

STANDARD OF REVIEW

Appellate review of a motion court’s disposition of a Rule 29.15 motion is limited to deciding “whether the findings and conclusions of the [motion] court are clearly erroneous.” Rule 29.15(k). A motion court’s findings and conclusions are clearly erroneous only if a full review of the record leaves the appellate court with a definite and firm impression that a mistake has been made. Franklin v. State, 24 S.W.3d 686, 689 (Mo.banc 2000).

“In determining the effectiveness of trial and appellate counsel, Missouri courts use the test established in Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984).” Neely v. State, 117 S.W.3d 731, 735 (Mo.App.2003). To prevail on a claim of ineffective assistance of trial counsel, a movant must show: First, that counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances; and, second, that counsel’s deficient performance prejudiced the defense. Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064-65. If a movant fails to satisfy either prong of the Strickland test, then an appellate court need not consider the other, and the claim must fail. Neely, 117 S.W.Bd at 735.

When discussing ineffective assistance of trial counsel, prejudice is shown where “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would be different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. When referring to ineffective assistance of appellate counsel, “a movant must show a reasonable probability that, but for counsel’s unreasonable failure to raise the issue, [he or she] would have prevailed in his [or her] appeal.” Neely, 117 S.W.3d at 735.

As here, when no evidentiary hearing is held, the record must conclusively show that the movant is entitled to no relief. Rule 29.15(h); Brooks v. State, 51 S.W.3d 909, 913 (Mo.App.2001).

FACTS

On March 12, 2001, a Springfield, Missouri, police officer pulled over a car that contained Movant, Melvin Parrow (“Par-row”), Jesse Tao Sio (“Sio”), and Chris Ackfeld (“Ackfeld”). Before the stop, Movant saw the police cruiser turning to follow. Because of that, Movant threw his handgun out of the car before the stop. Ackfeld also threw out some marijuana. After investigating, the police found the vehicle’s driver had a valid license; consequently, the officer allowed Movant and his companions to go on their way. Once the police left, the group drove back to the general area where they discarded the gun and drugs.

Once there, Movant began searching for the items while Parrow, Sio, and Ackfeld remained in the car. Movant found the gun but not the marijuana. While searching, Movant was approached by Terrón Finley (“Victim”), and the two began arguing in front of a private residence. During the argument, Movant drew his gun and pointed it at Victim. At that point, Victim pulled his own gun and opened fire on Movant.

Aftér a round of gunfire by both parties, Victim retreated by running toward the backyard of the subject house. Movant also moved toward the backyard, running along the side of the house opposite to the side where Victim retreated. Once Mov-ant made his way to the rear of the house, he shot Victim in the back. Victim died from a loss of blood shortly thereafter.

At Movant’s criminal trial, numerous witnesses.testified, and differing accounts of the shooting were presented to the jury. The differences included contrary accounts of whether it was Victim or Defendant who first brandished a gun. However, all witnesses agreed on one fact, namely, Victim fired the first shots. Based on that, the trial court instructed the jury to acquit Movant if they found- he acted in self-defense. The court, however, refused to give a “defense of others” instruction proffered by Defendant. Movant now claims his appellate lawyer was ineffective in failing to raise this refusal as a claim of trial court error in his direct appeal. Additional facts are given below when relevant to our discussion of issues presented by this appeal.

Point I: Ineffective Appellate Counsel-Sufficiency of Evidence

Movant’s first point maintains the motion court clearly erred in denying him post-conviction relief because the record shows his appellate counsel was ineffective for not urging reversal on the ground there was insufficient evidence to support a second-degree murder conviction. The argument section of Movant’s brief summarizes his claim as follows:

“There was insufficient evidence presented by the state to establish that [Movant] did not act with sudden passion from adequate cause. Rather, the undisputed fact that [Victim] shot at [Movant] first confirms that [Movant’s] subsequent actions occurred under the influence of sudden passion arising from adequate cause. There was no evidence refuting sudden passion, even accepting the state’s theory that [Movant] shot [Victim] while he was retreating.”

As we understand it, Movant is arguing there was no evidence as to who was the initial aggressor and it is undisputed that Victim fired the first shots. With that as his premise, Movant asserts his return of gunfire could only be viewed as an act of sudden passion arising from adequate cause. Implicit in this argument is the recognition that manslaughter was the only crime for which he could possibly be found guilty.

We address this argument with the following in mind: Had appellate counsel made a sufficiency of the evidence argument on direct appeal, the reviewing court would have used the evidence most favorable to the verdict, accepting as true any evidence supporting the verdict while disregarding any contrary evidence and inferences. Walker 34 S.W.3d at 301[3]. Further, the reviewing court would have been limited to deciding if there was sufficient evidence from which a reasonable finder of fact might have found the accused guilty beyond a reasonable doubt. Id.

Contrary to Movant’s argument here, the record of his criminal trial contained evidence which, if believed, dispelled his claim of sudden passion. This is found in eyewitness testimony to the effect that Movant first pointed his gun at Victim without provocation by Victim. From that evidence, the jury reasonably could have inferred (as it obviously did) that Movant was the initial aggressor, i.e., he (Movant) first threatened Victim by pointing the gun at him and Victim was only attempting to defend himself when he raised his gun and began firing at Movant. As such, a direct appeal argument that the evidence only supported a conviction for voluntary manslaughter would have failed. Consequently, Movant cannot show he was prejudiced by his appellate counsel’s failure to raise that issue. Parham v. State, 77 S.W.3d 104, 107 (Mo.App.2002); Walker, 34 S.W.3d at 302. Point denied.

Point II: Defense of Others instruction

Movant’s second point charges the motion court erred by rejecting his ineffective assistance claim stemming from his appellate counsel’s failure to raise the jury instruction issue on direct appeal. The proffered but rejected jury instruction hypothesized that Movant shot Victim in order to protect Parrow, Sio, and Ackfeld. Movant argues that a reasonably competent lawyer would have raised the court’s refusal of this instruction as a point of error on appeal.

Generally stated, a person is justified in using deadly force to protect third parties against death or serious physical injury if he or she reasonably believes that such force is necessary to thwart the attacker. § 563.031. To inject this issue into his case, Movant was required to present substantial evidence showing: (1) an absence of provocation or aggression from himself; (2) a reasonable belief that deadly force was necessary to protect the third parties against an imminent danger of death or serious physical injury; (3) a reasonable cause for that belief; and (4) an attempt by himself to do all within his power consistent with his own personal safety to avoid the danger and the need to use deadly force on Victim. Vogel v. State, 31 S.W.3d 130,141[12] (Mo.App.2000).

The trial court is obligated to instruct on self-defense or defense of others if the evidence, when viewed in the light most favorable to the defendant, supports giving the instruction. Id. at 141[11], The failure to give an instruction when required will not result in reversible error unless the failure prejudiced the defendant. State v. Starr, 998 S.W.2d 61, 65-66 (Mo.App.1999); State v. Rickman, 920 S.W.2d 615, 618 (Mo.App.1996). “In order to determine whether the omission of an instruction constitutes prejudicial error, we must consider the facts of the case in conjunction with the submitted instructions.” State v. Jones, 930 S.W.2d 453, 455 (Mo.App.1996).

Comparison of this case with State v. Jones, 627 S.W.2d 322 (Mo.App.1982), illustrates how individual facts govern whether prejudice results when a trial court refuses to give a “defense of others” instruction. In Jones, the defendant’s sister (Karen Thomas) and aunt (Janie Green) were fighting with the victim’s wife (Delores) in the victim’s living room. After another person separated Delores and Janie Green, the victim stepped in and knocked Karen Thomas to the floor. The victim’s wife, Delores, then attacked Karen with a wine bottle. Thereon, the defendant (who was nearby) entered and fired a shot that killed the victim.

Although the trial court submitted an instruction on self-defense, the defendant’s conviction was reversed on appeal because the court refused to instruct the jury on defense of others. The western district’s prejudice analysis follows:

“Evidence was at variance as to whether [the defendant] said anything to the victim before firing his gun and in what position [the victim] was when he was shot. It was, however, agreed that [the victim] had struck Karen Thomas knocking her to the floor and that he was bent over her when [the defendant] entered.
“In the subject case, the jury could have found that [the defendant] was drawn to the room by his sister’s screams for assistance and, upon entering, that he found his sister prostrate with [the victim] bending or kneeling and striking the girl with his fists. When [the defendant] yelled for [the victim] to stop, [the victim] rose and started toward [the defendant]. If defendant’s evidence and that of his supporting witnesses were believed, the events occurred in rapid succession with little to differentiate [the victim’s] assault upon Karen Thomas from his transfer of attention to [the defendant]. Intervention by [the defendant] in the former brawl immediately provoked the latter, both being closely intertwined in time and situs. [The defendant] was entitled to the additional instruction on defense of another person enabling the jury to consider both possibilities as justification for the use of deadly force.”

Id. at 323 — 24[2] (emphasis supplied).

The essence of the Jones decision lies in its recognition that the two fact possibilities from which the jury could choose also generated two justification possibilities for the jury to decide. On one hand, the jury needed to decide whether the defendant was justified in shooting the unarmed victim as he rushed toward the defendant, per the self-defense instruction that was given. On the other hand, the jury should have been allowed to consider whether the defendant was justified in shooting the unarmed victim because of victim’s ongoing assault on the defendant’s sister, per a defense of others instruction which was not given. Under those circumstances, the trial court’s refusal to instruct the jury on defense of others was prejudicial. Those are not the facts here.

In this case, as in Jones, witnesses testified to more than one account of the shooting. However, out of the three fact scenarios presented here, only one justification possibility existed.

First, there is evidence from which the jury could have believed Movant was the initial aggressor because he pointed his gun at Victim without being provoked. As a part of this body of evidence, the jury could have found Victim then pulled his gun and fired toward Movant and the car’s passengers. Movant then returned fire, hitting Victim as he turned to flee, or in the alternative, Victim fled toward the backyard of the house while Movant pursued him, and once in the backyard, Mov-ant shot Victim in the back.

Second, evidence was presented from which the jury could have believed Victim was the initial aggressor because he approached Movant and began shooting in Movant’s direction before Movant pulled out his gun. When Movant returned fire, Victim then withdrew from the fray by turning and running toward the backyard of the house, but Movant pursued Victim, shooting him in the back while the two were in the backyard.

If the jury believed the first or second set of facts, then justification was unproven and Movant cannot show he was prejudiced by the alleged instructional error. This follows because under the first scenario, Movant was the initial aggressor and never withdrew, whereas, under the second version, Victim was the initial aggressor, but he withdrew from the conflict and Movant became the aggressor.

From the third body of evidence, the jury could have found Victim approached Movant and began shooting in his direction (while in front of the house) without being provoked or threatened by Movant. When the shooting started, Movant and the car carrying Parrow, Sio, and Aekfeld were in the same line of fire, and while in these respective positions, Movant returned fire, striking Victim in the back as he was turning to leave. Then, Victim stumbled to the back of the house (without any pursuit by Movant) where he collapsed and died.

Because of this third fact possibility, a defense of others instruction should have been given. However, Movant was not prejudiced by its absence. Unlike the Jones case where there were separate justification possibilities for the jury to consider, that situation is absent here. This follows because Movant and his companions were in the same line of fire. As such, Movant’s return of fire would have been in defense of both his companions and himself.

Under the circumstances, the jury’s answer to one question fully settled the justification issue, namely, was Movant the aggressor or was Victim the aggressor? This question was posed to the jury via the self-defense instruction which answered it adversely to Movant by convicting him. In contrast with the record in Jones, the record here contains no facts to- support the notion that the jury’s resolution of the justification issue might have been different if the defense of others instruction had also been given.

It follows, therefore, that if appellate counsel had raised the instructional error in the direct appeal, the reviewing court would have found Movant was not prejudiced by the error and reversal would not have occurred. Starr, 998 S.W.2d at 66-67. See also State v. Glass, 186 S.W.3d 496, 515 (Mo.banc 2004), cert. denied, — U.S. —, 125 S.Ct. 869, 160 L.Ed.2d 784 (2005) (no error in failure to give lesser offense instruction (manslaughter) in first-degree murder ease when second-degree murder instruction had also been given because the jury was given the opportunity to consider the “deliberation” elements and facts, but rejected them via conviction of first-degree murder).

Being unable to show that reversal would have occurred, Movant cannot show he was prejudiced by his appellate counsel’s failure to raise the instruction issue. Parham, 77 S.W.3d at 107; Walker, 34 S.W.3d at 302. Without showing prejudice, Movant cannot sustain his claim of motion court error. Point denied.

Point III: Failure to Impeach Witness

Movant’s final point maintains the motion court clearly erred when it found Movant’s criminal trial lawyer was not constitutionally ineffective for failing to impeach the testimony of a witness with an alleged prior inconsistent statement.

“The mere failure to impeach a witness does not entitle a movant to post-conviction relief.” Kelley v. State, 24 S.W.3d 228, 232[6] (Mo.App.2000). A mov-ant must establish that the impeachment would have provided him or her with a defense to the crime or must prove that there is a reasonable probability that the impeachment would have changed the outcome of the trial. State v. Hall, 982 S.W.2d 675, 687 (Mo.banc 1998).

Nicole Riel, a thirteen-year-old eyewitness to the shooting, was called by the State. She testified on direct examination that she. saw “two guys [Movant and Victim] yelling at each other” prior to the shooting. On cross-examination, she admitted that she “heard three men yelling.” The third man was Parrow (the driver of the car). On redirect, the prosecutor asked her, “Was there another man in connection with that car who was yelling to the people?” Riel answered in the affirmative. She also stated on redirect, however, that she did not see the third man.

Movant argues that this testimony is inconsistent with a statement she made to the police shortly after the shooting. In that statement, Riel claims to have heard three men yelling, and “the driver came out of the car with the drivers [sic] door open but standing in the door way.”

The only inconsistency between her at-trial testimony and her previous statement involved whether she saw the third man. Riel had consistently stated that there was a third man by the car who was yelling. Whether she actually saw this man is irrelevant to the case.

Inexplicably, Movant argues that the written statement and the fact that Parrow exited the car “would have supported the defense argument that the third shooter was [Parrow], as it was undisputed at trial that Parrow was the one driving Ackfeld’s car.” As the motion court correctly noted, “at the time of trial, the defense was NOT that Melvin Parrow was the third shooter.” From a close reading of the record, the defenses presented at trial were self-defense and that there was a third shooter who killed Victim behind, the house. Absolutely no evidence indicated Parrow left the vicinity of the car.

Any inconsistency in Riel’s trial testimony and her written statement, if brought forth at the trial, would not have, in any way, affected the jury’s decision. This is especially true considering the overwhelming evidence of guilt. Movant confessed to chasing Victim behind the house and firing shots at him. After the shooting, Movant stated, “I got him.” Instead of calling the police (if he honestly believed he was justified in the shooting), Movant fled to Pennsylvania, dismantling the gun during the bus trip, and discarding the pieces along the way.

Considering these facts in conjunction with the lack of any probative value of the inconsistency, the motion court correctly found that Movant’s trial counsel was not ineffective. There existed no reasonable probability that the impeachment would have any effect on the outcome of his case, nor would it have provided a defense. Consequently, Movant’s trial counsel was not ineffective for failing to bring it up at the trial. Hall, 982 S.W.2d at 687; Kelley, 24 S.W.3d at 232. Point denied.

The motion court’s findings of fact and conclusions of law are not clearly erroneous. This court is not left with a definite and firm impression that a mistake has been made. The motion court’s judgment denying Movant’s Rule 29.15 motion is affirmed.

PARRISH, P.J., and BATES, C.J., concur.

      . All rule references are to Supreme Court Rules (2004), unless otherwise indicated. All statutory references are to RSMo (2000), unless stated differently.

      . On appeal, both parties cite to the underlying criminal trial transcript and legal file. Moreover, those records have been filed with this court. As such, the parties tacitly agree that the motion court judge (also the criminal trial judge) implicitly took judicial notice of the file from Movant's criminal trial. See, e.g., C.A.W. v. Weston, 58 S.W.3d 909, 914 (Mo.App.2001); State v. Dillon, 41 S.W.3d 479, 482-83[3] (Mo.App.2000); Schrader v. State, 561 S.W.2d 734, 735[2] (Mo.App.1978). Having done so, both parties waive any complaint about the motion court’s use or our use of the criminal trial records in ruling the post-conviction motion.

      . One of Movant’s post-conviction allegations is that his appellate counsel in the criminal case should have challenged the sufficiency of the evidence to support his convictions. Accordingly, our initial account of the evidence is that most favorable to the jury's verdict. Walker v. State, 34 S.W.3d 297, 301 (Mo.App.2000). Other fact scenarios supported by the record are set forth later when relevant to our disposition of this appeal.

      . "An initial aggressor is one who first attacks or threatens to attack another.” State v. Hughes, 84 S.W.3d 176, 179[1] (Mo.App.2002).

      . "Sudden passion" means "passion directly caused by and arising out of provocation by the victim ... which arises at the time of the offense and is not solely the result of former provocation.” § 565.002(7) (emphasis supplied). Sudden passion cannot arise unless a defendant shows the victim took some action to inflame the defendant and that the defendant was not the initial aggressor. State v. Everage, 124 S.W.3d 11, 16 (Mo.App.2004); State v. McCoy, 971 S.W.2d 861, 864 (Mo.App.1998).

      .Essentially, voluntary manslaughter consists of committing the crime of second-degree murder while under the influence of sudden passion arising from adequate cause. §§ 565.021 and 565.023.

      . Under the first fact possibility, Movant was the initial aggressor, and under the second, he became the aggressor after Victim retreated.


text:
    Mary GURLEY, Plaintiff-Respondent, v. MONTGOMERY FIRST NATIONAL BANK, N.A., Defendant-Appellant.
    No. 26190.
    Missouri Court of Appeals, Southern District, Division Two.
    April 29, 2005.

      Dale E. Gerecke, Bradshaw, Steele, Cochrane & Berens, L.C., Cape Girardeau, for appellant.
    Shawn D. Young, Portageville, for respondent.
   KENNETH W. SHRUM, Judge.

Mary Gurley (“Plaintiff”) sought damages from Montgomery First National Bank (“Bank”) on a negligent misrepresentation theory. Specifically, she alleged Bank had continuously represented that her husband was insured by a term life policy, but belatedly (after her husband died), she learned no such coverage existed.

The jury awarded Plaintiff $150,000 for damages and attorney fees. In a judgment on remittitur, the trial court reduced this amount to $143,368.57. Bank appeals, presenting four claims of trial court error: (1) error in denying Bank’s motion for judgment notwithstanding the verdict (“JNOV”); (2) instructional error (verdict director); (3) error in the admission of testimony; and (4) error in awarding attorney fees.

We reverse that part of the judgment awarding attorney fees to Plaintiff. In all other respects, the judgment is affirmed as modified.

FACTS

Plaintiff married Bill Gurley (“Bill”) in 1950. The couple lived on a farm in Pem-iscott County, Missouri, for most of their married life. Bill’s farm business was the family’s only income source, as Plaintiff was a “housewife” who raised their six children. As part of the farming operation, Bill and Plaintiff borrowed money each year.

Customarily, Bill “made two payments” on his annual crop loan, i.e., “he brought in the [farm] proceeds, and the settlement in February, and then, when he gathered the wheat, he’d take in the wheat settlement and everything, and ... July, or August, there, and settle.” Each year that Plaintiff and Bill borrowed money, they requested credit life insurance coverage insuring Bill’s life. The premium for the credit life insurance was then included in the farm loan. The obvious purpose was to protect Plaintiffs economic interests should Bill die, i.e., assure Plaintiff would be debt free since she could not repay a loan out of her $600 monthly social security benefit.

In November 1997, Plaintiff and Bill borrowed $91,570 from Bank. The loan included an amount needed to buy a sixteen-month credit life insurance policy for Bill. By its terms, the loan matured in February 1999. However, a county-wide crop failure and resultant income loss prevented Bill and Plaintiff from paying the note in full at maturity.. For the next two years, the loan was extended or renewed several times. When Bill died on February 9, 2001, the loan was not yet fully paid.

Plaintiff filed this suit after learning the life insurance coverage on Bill had expired before he died. She testified that during the two-year period when the loan was either extended or renewed, Bank consistently told Bill and her that Bill had credit life insurance; that Bank employees made such. representations each time she and Bill dealt with them; that based on these representations, the couple did not seek insurance elsewhere as they believed adequate coverage existed through Bank; and that Bill died believing he had life insurance that would cover the couple’s indebtedness to Bank. Plaintiff specifically denied being notified by Bank that theré was no life insurance coverage after the initial loan period.

Contrarily, Bank’s vice-president Bill Sharp (“Sharp”) testified that before Bill died, he sent a letter to Plaintiff and Bill that informed them no credit life insurance existed. Sharp explained that after the initial sixteen-month period of insurance expired, neither Bill nor Plaintiff completed the necessary paperwork to extend or obtain additional coverage. According to Sharp, this lack of cooperation continued despite the Bank informing them of the deficiency, i.e., not having credit life insur-anee. In his words, the couple took no action to cure the problem.

The jury found for Plaintiff and this appeal followed.

DISCUSSION AND DECISION

Point I: Did Plaintiff Fail To Make Submissible Case?

Bank’s first point maintains the trial judge erred when he denied its motion for JNOV because Plaintiff failed to present sufficient evidence to make a submissible case based on a negligent misrepresentation theory. In the argument part of its brief, Bank characterizes Plaintiff’s testimony as “vague, misleading and erroneous” and then states, in conclusory fashion, that her testimony does not “constitute sufficient evidence to make out a submissi-ble case.” Our review of this point is undertaken with these following principles in mind.

To make a submissible case of negligent misrepresentation, Plaintiff had to prove: (1) the speaker supplied information in the course of his or her business; (2) due to the speaker’s failure to exercise reasonable care, the information was false; (3) the information was intentionally provided for the guidance of a limited group of persons in a particular business transaction; and (4) in justifiably relying on such information, the listener suffered a pecuniary loss. Kesselring v. St. Louis Group, Inc., 74 S.W.3d 809, 818[2] (Mo.App.2002).

We will reverse a judgment in a jury-tried case on the grounds of insufficient evidence only where there is a “complete absence of probative fact” to support the jury’s verdict. Bland v. IMCO Recycling, Inc., 67 S.W.3d 673, 682[25] (Mo.App.2002). Moreover, we review the evidence in the light most favorable to Plaintiff, disregarding all contrary evidence. Id. at 682[23J. A case should only be taken from a jury when the facts in evidence and the inferences fairly drawn therefrom are so strongly against the plaintiff as to leave no room for reasonable minds to differ. Wright v. Over-The-Road, 945 S.W.2d 481, 498 (Mo.App.1997).

Here, Plaintiff testified unequivocally that each time she and Bill signed loan documents with Bank (including extension agreements), they were told by Bank employees that Bill would have credit life insurance. Obviously, the “insurance coverage” statements attributed to Bank employees by Plaintiff were made in the course of Bank’s business and were intentionally provided by Bank to Plaintiff and Bill. Thus, the first element was proven.

As to the second element, admittedly, the information given Bill and Plaintiff was false. Bill was not insured after the initial sixteen-month coverage period, despite Bank employees’ representations to the contrary. On this record, the jury reasonably could have inferred that Bank employees who made these representations failed to use reasonable care, either by not following up and getting the insurance, or by not checking the file and learning that the original policy was for only a sixteen-month term. Sufficient evidence exists to satisfy element two.

Third, the information given by Bank’s employees to Plaintiff and Bill, i.e., Bill had credit life insurance, was not part of a broad credit life sales program or other generalized promotion by Bank. It was an assurance given Plaintiff and Bill that the remainder of the November 1997 farm operating loan would be paid via life insurance proceeds if Bill died. As such, the record supports a finding of the third element, i.e., this was information “intentionally provided for the guidance of a limited group of persons in a particular business transaction.”

Finally, since Bank kept all loan documents in its possession, the jury reasonably could have found Plaintiff and Bill relied on the representations of Bank’s employees and reasonably believed credit life insurance was obtained on Bill each time the loan was extended or renewed. Since this had been the normal course of dealing, the jury reasonably could have inferred Plaintiff and Bill were justified in relying on these representations. Another equally valid inference the jury could have drawn was that, but for the misrepresentation, the couple would have then obtained insurance elsewhere. Since they did not know Bill was uninsured (due to the misrepresentation) and did not get other insurance, Plaintiff suffered damage when Bill died without insurance in place that would pay the debt owed Bank. As such, element four was proven.

Although not explicitly stated, the essence of Bank’s Point I claim is that we should act as a super juror and resolve factual conflicts favorably to it, rather than to Plaintiff as the jury did. That, however, is not our function. See, e.g., State v. Norman, 145 S.W.3d 912, 921 (Mo.App.2004).

Although Bank devotes ten pages of its brief to discussing conflicts in evidence, it asks that we resolve those conflicts by favorably considering Bank’s records and the testimony of its witnesses. In that fashion, Bank attempts to persuade us that Plaintiffs recollection of events is completely “erroneous” or is “based upon her unsubstantiated belief.” Inexplicably, however, Bank never disputes the fact that if Plaintiffs evidence were believed, then a submissible case was made. Bank’s Point I argument, that a submissible case was not made, fails. This follows because reasonable minds could resolve the evidence differently and none of the evidence defies reason or logic. See Ryan v. Maddox, 112 S.W.3d 476, 480-81[14] (Mo.App.2003); Poloski v. Wal-Mart Stores, Inc., 68 S.W.3d 445, 449-50 (Mo.App.2001). Point I denied.

Point II: Alleged Erroneous Verdict Directing Instruction

Bank’s second point urges reversal based on its claim that the verdict-directing instruction was “not cast in terms of all the elements necessary to prove a cause of action for negligent misrepresentation.” In arguing the point, Bank assigns six specific reasons why the instruction allegedly failed to follow the substantive law. However, as explained below, four of the six arguments in Bank’s brief (labeled B through E) are unpreserved for our review because they raise issues not presented to the trial judge.

To explain, Rule 70.03 mandates that “[c]ounsel ... make specific objections to instructions considered erroneous.” This means counsel must “state[ ] distinctly the matter objected to and the grounds of the objection.” Rule 70.03. As such, a simple objection on the basis that the instruction fails to state the applicable law or fails to contain all of the necessary elements of a cause of action, standing alone, is considered a general objection, preserving nothing for appellate review. See State ex rel. MacLaughlin v. Treon, 926 S.W.2d 13,15 (Mo.App.1996); Walsh v. St. Louis Nat. Baseball Club, Inc., 822 S.W.2d 559, 563 (Mo.App.1992).

At the trial judge’s instruction conference, Bank made the following objection to the verdict director:

“The [Bank] would object to Instruction No. 6 on the basis of the fact that it is not in keeping with the law in terms of the elements necessary to be proven or to make out a case for negligent misrepresentation. ... I would object specifically to instruction No. 6 for the reason that it fails to present to the jury certain elements of that cause of action which would necessarily include that the [Bank ] intentionally provided information for the guidance of plaintiff in a particular business transaction. That the plaintiff [justifiably ] relied on that information and as a result of the plaintiffs reliance on the statement, plaintiff was damaged.” (Emphasis supplied.)

From this we find that, with two exceptions, Bank’s at-trial objection to the verdict director was nothing more than a general objection. To the extent that Bank now complains about the instruction for reasons other than those emphasized by italics, such complaints — labeled paragraphs “B” through “E” in Bank’s brief— are unpreserved. See Treon, 926 S.W.2d at 15; Walsh, 822 S.W.2d at 563. Moreover, we decline to exercise our discretion to review arguments “B” through “E” for plain error. Rule 84.13; Gomez v. Construction Design, Inc., 126 S.W.3d 366, 371-73 (Mo.banc 2004).

As a prelude to addressing the only two preserved complaints about Instruction 6, we note the following. When, as here, no applicable MAI approved instruction exists, the instruction given must be simple, brief, and free from argument. Rule 70.02(b). As such, an instruction shall not submit to the jury or require findings of detañed evidentiary facts. Id. To reverse for prejudicial instructional error, the instruction must have misled, misdirected, or confused the jury, and the test is whether an average juror would properly understand the applicable rule of law being conveyed by the instruction. City of Sullivan v. Truckstop Restaurants, Inc., 142 S.W.3d 181,197[30] (Mo.App.2004).

Bank’s argument “A” maintains Instruction 6 was substantively erroneous in that it faded to require the jury to find that Plaintiff’s reliance on Bank’s representation was “justifiable.” Although not explicitly stated, the apparent premise of Bank’s argument is that the instruction was fatally flawed because it did not expressly use the phrase “justifiable” reliance. What Bank does clearly argue is that “ ‘justifiable’ would necessarily take into account all the facts and circumstances surrounding the alleged representation that credit life insurance existed.” We agree with the latter assertion, but disagree with the first two sentences of this argument.

As written, the instruction contemplated precisely what Bank argues on appeal, i.e., that the jury should take into account the facts and circumstances. This is found in paragraph “fifth” of the instruction. See note 2. There the jury was told it had to decide if Plaintiff was reasonable in relying on the representations considering her “situation.”

Although the term “justifiable” was not in the instruction, Bank does not advance any reason why the instruction as given did not comport to the substantive law or how inclusion of the term “justifiable” would have better served an average juror in properly understanding the applicable rule of law. Essentially, Bank’s argument is more semantics than substance. See, e.g., Kesselring, 74 S.W.3d at 813-15 (“justifiably relied” equated to “reasonably relied”); Dierker Associates, D.C., P.C. v. Gillis, 859 S.W.2d 737, 749 (Mo.App.1993) (right to rely in fraudulent misrepresentation should be submitted in ordinary care language); Frame v. Boatmen’s Bank of Concord Village, 824 S.W.2d 491, 493-94 (Mo.App.1992); Restatement Second of ToRts § 552 cmt. a-e (1977). Bank’s Point 11(A) argument is denied.

Bank’s Point 11(F) argument alleges the instruction failed to require the jury to find another essential element of Plaintiffs case, namely, “that the speaker intentionally provided information.” Inexplicably, Bank’s “argument” consists of a single sentence without development or comment-.

Even so, we note that paragraph first required the jury to decide if “defendant represented to plaintiff in the course of defendant’s business that credit life insurance on the life of [Bill] existed, intending that plaintiff rely upon such representation in making loans at [Bank].” (Emphasis supplied.) A jury finding that Bank intended for Plaintiff to rely upon the representation necessarily encompassed a finding that Bank intentionally provided the information. Bank’s implicit argument to the contrary is rejected. Point II is denied.

Point III: Error in Admitting Evidence.

Bank’s third point urges reversal because the trial court admitted the testimony of George Watts (“Watts”), a banking expert. Bank claims that “his testimony did not touch upon any of the elements of [Plaintiffs] cause of action for negligent misrepresentation and tended only to show that Bank had not adhered to standard banking practices.”

The admissibility of evidence lies within the sound discretion of the trial court, and its determination will not be disturbed absent an abuse of discretion. Nelson v. Waxman, 9 S.W.3d 601, 603[2] (Mo.banc 2000). The trial court abuses its discretion only when its ruling is clearly against the logic of the circumstances and is so unreasonable and arbitrary that the ruling shocks the sense of justice and suggests a lack of careful consideration and deliberation. Id. at 603[3],

To be admissible, evidence must be relevant, both logically and legally. Shelton v. City of Springfield, 130 S.W.3d 30, 37[7] (Mo.App.2004). Evidence is logically relevant if it tends to prove or disprove a fact in issue or corroborate other evidence. Guess v. Escobar, 26 S.W.3d 235, 242[14] (Mo.App.2000). Evidence is legally relevant when its probative value (usefulness) outweighs its prejudicial effect, such as unfair prejudice, confusion of the issues, misleading of the jury, undue delay, or waste of time. Id. at 242[16].

Here, the evidence was properly admitted. The key issue at trial involved veracity, i.e., was Plaintiff’s testimony credible or were Bank’s employees telling the truth? One key piece of evidence was a letter from the Bank written to Plaintiff and Bill before his death that allegedly informed them no insurance existed. Plaintiff testified that neither she nor Bill received the letter. Plaintiff intimated that the Bank fabricated the letter after Bill’s death to cover up its negligence. Plaintiff also introduced evidence tending to show that the Bank changed its operating manual after Bill’s death to cover up its negligence. The Bank denied these allegations.

The essence of Watts’ testimony was that the Bank engaged in practices that did not comply with standard banking procedures when dealing with Plaintiff and Bill. This evidence would be helpful in the jury’s determination of whether the Bank was inclined to “bend the rules” when dealing with the couple. This evidence would also aid the jury in its credibility determinations. For these reasons, the evidence was logically relevant. Likewise, the evidence obviously possessed probative value. The prejudicial nature of the evidence did not outweigh its probative effect. The only applicable category of the testimony’s “prejudicial effect” was “unfair prejudice.” However, the prejudice to the Bank that resulted was in no way “unfair.” We find no abuse of discretion when the trial court admitted Watts’ testimony. Point denied.

Point IV: Attorney Fees

In its last point on appeal, the Bank alleges the trial court erred when it awarded Plaintiff attorney fees and expenses in the amount of $38,586.29. The Bank correctly notes that Missouri courts follow the “American Rule” in awarding attorney fees. To counter this, Plaintiff argues that her case falls into an exception to the American Rule.

The American Rule provides that parties to a lawsuit are to bear the expenses of their own attorney fees. Chapman v. Lavy, 20 S.W.3d 610, 614 (Mo.App.2000). Under this rule, “ ‘absent statutory authorization or contractual agreement, with few exceptions, each litigant must bear his own attorney’s fee.’ ” Windsor Ins. Co. v. Lucas, 24 S.W.3d 151, 156 (Mo.App.2000)(quoting David Ranken, Jr. Technical Institute v. Boykins, 816 S.W.2d 189, 193 (Mo.banc 1991)). The exception at issue here is when reimbursement is ordered by a court of equity to balance the benefits. Chapman, 20 S.W.3d at 614[14]. This exception, however, only applies in very unusual circumstances. Id. at 614[18].

The unusual circumstances exception is applied rarely and only in limited fact situations. Windsor Ins., 24 S.W.3d at 156. These types of circumstances have been found in unusual types of cases or where extremely complicated litigation is involved. Chapman, 20 S.W.3d at 614. “In addition, it is the nature of the lawsuit, not the facts, which determine whether a case is unusual.” Id. at 614[18].

This case was a simple negligent misrepresentation case. There was nothing unusual about this type of case. The facts of the case were simple and straightforward. As one witness characterized it, the case was simply a “swearing match” between Bank’s employees and Plaintiff. The jury was only required to decide which version of the facts was true. This case simply does not fall into those limited situations in which the exception has been applied. Windsor Ins., 24 S.W.3d at 156.

The trial court erred when it awarded Plaintiff $38,586.29 for attorney fees. That part of the judgment is reversed. The judgment is reduced by the sum of $38,586.29 so that the judgment in favor of Plaintiff is for $104,782.28. Rule 84.14. In all other respects, the judgment is affirmed.

PARRISH, P.J., and BARNEY, J„ Concur.

      . For reasons of clarity and simplicity, we refer to Mr. Gurley by his first name. No disrespect is intended.

      . The instruction given reads:
      "Your verdict must be for Plaintiff if you believe:
      "First, defendant represented to plaintiff in the course of defendant's business that credit life on the life of Bill Gurley existed, intending that plaintiff rely upon such representation in making loans at defendant's bank, and
      "Second, such representation was false; and
      "Third, defendant knew or by using ordinary care could have known that such representation was false, and
      "Fourth, such representation was material to the plaintiff in making the loans at defendant’s bank, and
      "Fifth, plaintiff relied on such representation of defendant in making such loans, and in so relying plaintiff used that degree of care that would have been reasonable in plaintiff's situation and
      “Sixth, as a direct result of such representation the plaintiff was damaged.
      "The phrase 'ordinary care’ as used in this instruction means that degree of care that an ordinarily careful person would use under the same or similar circumstances.”

      . All rule references are to Supreme Court Rules (2004), unless otherwise stated.

      . Our disinclination to review arguments in paragraphs "B” through "E" is heavily impacted by two facts. First, Bank cites no case law in those paragraphs to support its arguments. For instance, two of Bank’s arguments rely on an alleged distinction between the exercise of reasonable care versus the exercise of ordinary care. If such distinction exists, it is incumbent upon Bank to provide support for this argument, or explain its absence. Lediner v. Harris, 145 S.W.3d 479, 483 (Mo.App.2004). Second, two of the alleged deficiencies in instruction 6 are found in Bank’s proposed verdict director. This means Bank could not question that part of the instruction even if the alleged errors had been preserved for our review. Layton v. Pendleton, 864 S.W.2d 937, 941[15] (Mo.App.1993).

      . The law of negligent misrepresentation as approved by the Restatement has been adopted in Missouri. Kesselring, 74 S.W.3d at 813.


author: PER CURIAM.

text:
    Allen HOUSTON-BEY, Appellant, v. STATE of Missouri, Respondent.
    No. WD 63703.
    Missouri Court of Appeals, Western District.
    May 3, 2005.
    Mark A. Grothoff, Columbia, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before HOLLIGER, P.J., BRECKENRIDGE and ELLIS, JJ.
   ORDER

PER CURIAM.

Allen Houston-Bey appeals the denial of his Rule 29.15 motion for post-conviction relief following an evidentiary hearing. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment is affirmed. Rule 84.16(b).


author: PER CURIAM:

text:
    Chester R. SMITH and Janice E. Smith, Appellants, v. PUBLIC WATER SUPPLY DISTRICT, et al., Respondents.
    No. WD 63560.
    Missouri Court of Appeals, Western District.
    May 3, 2005.
    Bruce B. Brown, Kearney, MO, for appellants.
    George E. Proctor, Jr., Liberty, MO, for respondents.
    Before HOLLIGER, P.J., BRECKENRIDGE and ELLIS, JJ.
   ORDER

PER CURIAM:

Chester Smith and Janice Smith appeal the trial court’s judgment in favor of Public Water Supply District #1 on the Smiths’ two-count petition for conversion and a writ of mandamus. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment is 84.16(b). affirmed. Rule


text:
    John A. KEY, Plaintiff, Jo Ann Carlson, Surviving Trustee of the John A. Key Revocable Trust, Appellant, v. Roy McMAHON, et al., Respondent.
    No. WD 64065.
    Missouri Court of Appeals, Western District.
    May 3, 2005.
    Elvin S. Douglas, Jr., Harrisonville, for Appellant.
    Alan J. Stecklein, Kansas City, KS, for Respondent.
    Before EDWIN H. SMITH, Presiding Judge, PAUL M. SPINDEN, Judge, and RONALD R. HOLLIGER, Judge.
   ORDER

Appellant Carlson appeals the judgment of the trial court finding that disputed tax sales of real property were valid. We have reviewed the briefs of the parties and the record on appeal, and find no error of law. A written opinion reciting the detailed facts and restating the applicable principles of law would have no prece-dential or jurisprudential value. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order. Rule 84.16(b).


text:
    Darius W. SEWELL, Appellant, v. STATE of Missouri, Respondent.
    No. WD 63978.
    Missouri Court of Appeals, Western District.
    May 3, 2005.
    Weldon W. Perry, Jr., Lexington, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before HOLLIGER, P.J., BRECKENRIDGE and ELLIS, JJ.
   ORDER

PER CURIAM.

Darius W. Sewell appeals the denial of his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment is affirmed. Rule 84.16(b).