author: PHILLIP R. GARRISON, Chief Judge.

text:
    Chris GATLEY, Plaintiff-Respondent, v. WAL-MART STORES, INC., d/b/a Sam’s Club, Defendant-Appellant.
    No. 23067.
    Missouri Court of Appeals, Southern District, Division Two.
    March 24, 2000.
    Motion for Rehearing or Transfer Denied April 27, 2000.
    Application for Transfer Denied May 30, 2000.

      Robert H. Rroenert, Richard A. Lorenzo, Morrison & Hecker LLP, Kansas City, for Appellant.
    Timothy B. O’Reilly, Springfield, for Respondent.
   PHILLIP R. GARRISON, Chief Judge.

A jury returned a verdict for Chris Gat-ley (“Plaintiff’) in the amount of $25,000 and assessed 25% of the fault to him in his claim for personal injuries against Wal-Mart Stores, Inc. (“Wal-Mart”). Wal-Mart appeals from the judgment entered by the trial court in the amount of $18,750, claiming that the trial court erred in overruling its motion for a directed verdict at the close of all of the evidence, and in giving a verdict directing instruction. We reverse.

Plaintiff fell as he left a Sam’s Club store in Springfield, Missouri. The fall occurred about five to ten feet outside the exit door, on the sidewalk where Plaintiff said there was “a lot of traffic in and out” of the store. Plaintiff testified that he fell in a “slick spot,” which was a substance that was “clear, maybe brownish tinted,” and which he did not see before the fall. The “slick spot” had a streak through it after Plaintiff fell, and he said that his shoe then had a gritty, greasy feel to it. He also said that he believed he had entered the store through the exit door and did not see the spot then. A witness, who helped Plaintiff get up after the fall, also testified that there was a “liquid” where Plaintiff fell.

A “greeter” working just inside the doors, about ten to fifteen feet from where Plaintiff fell, saw him “slip and fall,” and went to help him. When she did, she saw a “slippery substance” on the sidewalk where the fall occurred, which she described as a “slippery oil spill, some type of oil,” which was “[bjrown to clear,” but she was unable to say what the substance was. She could not see the substance on the sidewalk until she got right up to Plaintiff after he fell, she had not gone out the doors that Plaintiff used to exit the store, and she was unable to say how long she had been stationed at the doors prior to the fall. The doors through which Plaintiff left the store were open that day, and there was testimony indicating that the “greeter” would have had a clear view from inside the store to the parking lot, except when that view was obstructed by people coming in and out of the store.

The store also employed “cart attendants” who went in and out of the front doors on what was called a “routine” or “ongoing” basis. Their movement in and out of these doors was also described as a “frequent occurrence.” There was no evidence, however, as to when the last of such employees had gone in or out of those doors before the fall.

Wal-Mart’s first point relied on is based on the trial court’s failure to sustain its motion for directed verdict at the close of all the evidence. It contends that Plaintiff did not make a submissible case because “there was no evidence whatsoever that any [of its employees] had done anything to cause any substance on the sidewalk ..., or knew of it, and nothing from which the jury could have determined that the condition had existed for a sufficient length of time to charge [Wal-Mart] with constructive notice.” It argues that Plaintiff was required to establish actual or constructive knowledge of a dangerous or defective condition, and that in order to establish constructive notice, the condition must have existed for a significant length of time or the facts must be such that the defendant should have reasonably known of its presence.

We review the denial of a motion for directed verdict by reviewing the evidence and all permissible inferences in the light most favorable to the plaintiff and disregard contrary evidence and inferences, and on the evidence so viewed, determine whether the plaintiff made a submissible case. Judy v. Arkansas Log Homes, Inc., 923 S.W.2d 409, 416 (Mo.App. W.D.1996); Wvrm-Senter Const Co. v. Katie Franks, Inc., 816 S.W.2d 948, 944 (Mo. App. W.D.1991). We are not required or permitted, however, to supply missing evidence or to give Plaintiff the benefit of unreasonable, speculative, or forced inferences. Hunt v. National Super Markets, Inc., 809 S.W.2d 157, 158 (Mo.App. E.D. 1991). The jury is the sole judge of the credibility of the witnesses and the weight and value of their testimony and may believe or disbelieve any portion of that testimony. Georgescu v. K Mart Corp., 813 S.W.2d 298, 299 (Mo. banc 1991).

In Sheil v. T.G. & Y. Stores Co., 781 S.W.2d 778 (Mo. banc 1989), the Missouri Supreme Court made a significant departure from previous slip and fall cases which required evidence that a condition had existed for a sufficient length of time so that a storeowner should have known of the dangerous condition. It described the prior cases as holding that the storeowner is charged with responsibility for known danger but has only minimal duty to anticipate dangers. Id. at 780. Sheil involved a fall in a self-service store caused by a box of store merchandise in the aisle. There was apparently no showing about how long the box had been there or who placed it on the floor, but the court said that the precise time a condition has existed will not be so important a factor as it once was. Id. It said that more important will be the method of merchandising and the nature of the article causing the injury, i.e., whether the article is of the type held for sale in the area where the fall occurred. Id. The Supreme Court held that the plaintiff could make a submissible case, and said that “[cjustomers who are invited to handle merchandise assume part of the work previously performed by store employees and present an additional danger”; the “box in the aisle was a dangerous, foreseeable condition, and the store had the duty to use due care to protect customers against dangers of this kind.” Id. at 780-81. It also said, “[w]e conclude that the jury could have found that the plaintiff was injured by a hazard that could have been expected in the store by reason of its method of merchandising and that the defendant was derelict in its duty to take reasonable steps to protect customers against the dangers presented by merchandise in the aisle.” Id. at 782.

In the instant case, the fall did not occur inside the store, but rather on the sidewalk outside the exit doors. Therefore, this case is more factually similar to another case decided by the Missouri Supreme Court the same day as it decided Sheil. In Moss v. National Super Markets, Inc., 781 S.W.2d 784 (Mo. banc 1989), the plaintiff fell on a green liquid on the pavement as she stepped from the sidewalk onto a drive of defendant’s parking lot. The substance on the pavement was two to three feet in diameter, was within a few feet of the exit door of defendant’s store, and had car tracks and at least ten footprints through it. There, defendant argued, as does Wal-Mart in the instant case, that a submissible case had not been made because there was no evidence that any employee had caused the spot or knew of it, and there was no evidence from which the jury could have determined that the condition existed a sufficient length of time to charge defendant with constructive notice of its existence. Id. at 785. The Missouri Supreme Court noted that there were factual distinctions with the Sheil case in that the accident in Moss did not occur inside a self-service store, and there was no showing that the substance on the pavement consisted of merchandise of a type handled by the store. Id. The court said:

The plaintiff relies solely on the presence of the footprints in the slick, disclaiming at oral argument any assistance from the evidence of tire tracks. This proof is undoubtedly insufficient if we are to follow the numerous cases holding that a period of as short as 20 minutes is not adequate to show constructive notice to the owner. By our Shell opinion, these periods may not be so important as they once were, especially if the evidence shows that employees of the store were regularly in the area in which the accident occurred.

Id. at 785-86. The Supreme Court remanded the case to the trial court to give plaintiff an opportunity to develop evidence about employees regularly going into the parking lot to assist customers and to retrieve carts. It said that if that evidence had been received “the jury could possibly have found that the employees of the store would have been able to observe the slick spot before the plaintiff fell.” Id. at 786. It thus appears that the Supreme Court was saying that, at least as to falls outside the store, it is necessary that the defendant have some opportunity to observe the dangerous condition before the fall for which a plaintiff seeks to hold it responsible.

In the instant case, Wal-Mart relies primarily on Moss in arguing that Plaintiff did not make a submissible case. It points out that in Moss the court was “unable to say that the plaintiff made a submissible case,” reasoning that the “plaintiffs problem [was] that the record [was] barren of evidence about the defendant’s method of operation, either as to the store or the parking lot.” Id. Wal-Mart contends that although there was evidence in the instant case that store employees regularly went out of the store through the exit door to assist customers and retrieve carts (the evidence which the court found lacking in Moss), unlike Moss, there was no evidence from which it could have been inferred that the substance had been on the pavement for any period of time prior to Plaintiffs fall so that it could have been observed by store employees. Wal-Mart also contends that, like Moss, there was no evidence that the substance on the sidewalk consisted of merchandise of a type handled by it at Sam’s Club.

Plaintiff acknowledges that in order to make a submissible case, he had to show that Wal-Mart knew or, by using ordinary care, could have known of the dangerous condition and faded to use ordinary care to remove it, barricade it, or warn of it, and that he sustained damage as a direct result of such failure, citing Emery v. Wal-Mart Stores, Inc., 976 S.W.2d 439, 443-44 (Mo. banc 1998). Plaintiff narrows the issue in this case by saying that the question is “whether or not the evidence is sufficient to attribute constructive notice to Wal-Mart of the oily substance on which plaintiff fell.”

In Elmore v. Wal-Mart Stores, Inc., 812 S.W.2d 178 (Mo.App. E.D.1991), plaintiff fell on a partially opened package of breath mints that were on the floor in the fabric department. The area had been cleaned five minutes before the fall at which time the mints were not observed. Because the mints were not regularly merchandised in the fabric department, the appellate court said that the foreseeability in Shell was not present, and that Moss was more in point since the spill in Moss, though outside of the store, was not an item regularly merchandised by the store. 812 S.W.2d at 181-82. Significantly, the court said “[w]hile Shell and Moss greatly contracted the role of time in determining whether constructive notice exists, they did not eliminate time as a factor.” Id. at 182. There, the court noted that an employee had cleaned the area five minutes before the fall and the article causing the fall was in an area of the store where it was not regularly sold. It held that the defendant could not, as a matter of law, have constructive notice of the existence of the dangerous condition. Id.

Here, there was no evidence about the exact nature of the substance on the sidewalk, other than the fact that it was a “slick spot” that was “clear, maybe brownish tinted,” a “slippery substance” that was “some type of oil” that was “brown to clear,” and that it had a gritty, greasy feel to it. Plaintiff argues that these descriptions indicate that the substance was of a type sold by Wal-Mart because the Sam’s Club sells motor oil, olive oil and grease. This evidence is, at best, meager. Even assuming that it created an inference that the substance on the sidewalk was of a type sold by Wal-Mart in that store, the substance was located outside the store and not in a department where the store would, under the teaching of Shell and Elmore, have constructive notice that it would be spilled.

We view this case as turning on whether there was substantial evidence from which a reasonable trier of fact could have found that Wal-Mart’s employees could have, through the exercise of ordinary care, observed the substance on the sidewalk before the fall. Such evidence was clearly of significance to the Moss court which noted that the footprints through the substance on the parking lot there indicated that it did not appear suddenly, and that if the jury had heard evidence about employees being in the area regularly, it could have found that they would have been able to observe the spot before plaintiffs fall. 781 S.W.2d at 786. There are two facets to that conclusion, i.e., employees regularly in the area, and a substance which had been there for some period of time which, through ordinary care, could have been observed.

It is, therefore, clear that at least outside the store, the defendant must have some reasonable opportunity to discover the condition. In the instant case, the evidence demonstrated that the “greeter” was just inside the door area where Plaintiff went out of the store and saw him fall, but there was no evidence that the substance on the sidewalk was visible from her location. There was no evidence of the area covered by the substance or from which the visibility of the substance from the “greeter[’s]” location could be inferred. In fact, the “greeter” testified that she could not see the substance until she stood right over it when she went to Plaintiffs aid.

Plaintiff notes that there was evidence that Wal-Mart’s employees regularly went out the exit door to assist customers and retrieve carts. In keeping with Moss, Plaintiff seeks to interpret the evidence as indicating that the substance on which he fell was “distinctly noticeable, and therefore, the Wal-Mart employees going in and out of the store would have discovered the substance through the exercise of reasonable care.” He argues that the evidence indicated that the substance had been present on the sidewalk “for a significant length of time before the accident,” because there was a “streak through the [substance], which could very well have been one or more cart tracks,” and Plaintiff said that the substance on his shoe after the fall was “gritty or greasy which supports the inference that the substance was a petroleum product that had been on the [sidewalk] for a sufficient length of time to accumulate dirt, material or ‘grit.’ ” He contends that Wal-Mart “wrongly attributes the streak to [P]laintiff s shoe ... when it could be inferred to be a marking similar to those in Moss suggesting that the substance did not appear suddenly.” Plaintiff, however, testified as follows:

Q. Did you see anything particularly about the spot that made you sure that you had slipped in that spot?
A. Well, I felt my shoes, and there was like a streak through it.
Q. Okay. A streak right through what?
A. Through the spot.
Q. And then what did your shoe feel like?
A. It was kind of greasy, gritty.

Plaintiff, therefore, testified as to only one streak through the substance, and that he had some of the substance on his shoe after the fall. Therefore, attributing the mark in the substance to anything other than Plaintiffs shoe is not a reasonable inference based on the evidence in the record. Unlike Moss, there was no evidence here indicating that the substance had been on the sidewalk for any period of time prior to the fall so as to be available for discovery by employees, including those going to and from the parking lot through these doors.

We are aware of cases in which the courts have not focused to a large degree on the length of time that a substance had been on the floor prior to a fall, or the direct ability of an employee to observe the condition. See Emery v. Wal-Mart Stores, Inc. 976 S.W.2d 439 (Mo. banc 1998); Head v. National Super Markets, Inc. 902 S.W.2d 305 (Mo.App. E.D.1995); Pilley v. K-Mart Corp., 849 S.W.2d 293 (Mo.App. S.D.1993). Each of those cases, however, involved falls within self-service stores where the condition could be considered foreseeable under the precept of Sheil.

We are compelled to the conclusion that Plaintiff did not make a submissible case by showing that the substance on the sidewalk where he fell was either foreseeable to Wal-Mart or that it had constructive notice of its presence. Under the facts of this case, Wal-Mart would have no liability for a condition which appeared suddenly before Plaintiffs fall that it could either not reasonably be held to foresee or which its employees did not have a reasonable opportunity to observe and correct. Because we reach this conclusion, we need not consider Wal-Mart’s second point. Accordingly, we reverse the judgment.

PREWITT, J., concurs.

BARNEY, J., concurs.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Christopher LAUGHMAN, Plaintiff/Appellant, v. ST. CHARLES COUNTY, Missouri, Defendant/Respondent.
    No. ED 76445.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 28, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 10, 2000.
    Rick Barry, Law Offices of Rick Barry, P.C., St. Louis, for appellant.
    Joann Leykam, St. Charles County Counselor, St. Charles, for respondent.
    Before CRANDALL, P.J. and HOFF, J. and PUDLOWSKI, S.J.
   ORDER

PER CURIAM.

Christopher Laughman (Laughman) appeals the circuit court’s judgment and order granting summary judgment in favor of St. Charles County Sheriffs Department in this action challenging Laugh-man’s termination of employment.

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. Upon de novo review, we find no genuine issue of material fact or error of law. An extended opinion would have no precedential value. We have, however, provided a memorandum opinion for the use of the parties only setting forth reasons for our decision. Judgment affirmed pursuant to Rule 84.16(b).


text:
    Algie NEWCOMB, Appellant, v. STATE of Missouri, Respondent.
    No. ED 76392.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 28, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 10, 2000.
    Jason S. Marks, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Adriane D. Crouse, Asst. Atty. Gen., Jefferson City, for respondent.
    Before MARY RHODES RUSSELL, C.J., WILLIAM H. CRANDALL, Jr., J.„ and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Movant Algie Newcomb was convicted of first degree assault, section 565.050, RSMo 1994, attempted rape, sections 564.011 & 566.030, RSMo 1994, and forcible sodomy, section 566.060, RSMo 1994. The trial court sentenced him as a prior and persistent offender to three consecutive terms of 25 years’ imprisonment. Movant appealed and this Court affirmed his convictions in State v. Newcomb, 934 S.W.2d 608 (Mo. App. E.D.1996). Movant now appeals from the judgment denying his Rule 29.15 motion without a hearing.

We have reviewed the briefs of the parties and the record on appeal and conclude the trial court’s determination is not clearly erroneous. Rule 29.15(k). An extended opinion would have no precedential value. We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


text:
    In the Interest of J.J.D., A Minor Child.
    No. ED 76619.
    Missouri Court of Appeals, Eastern District, Division Five.
    April 18, 2000.
    Douglas S. Pribble, St. Louis, for appellant.
    Thomas Zotos, Clayton, guardian ad li-tem.
    Richard J. Childress, St. Louis, for DFS.
    John R. Bird, St. Louis, for respondent.
    Before: MARY RHODES RUSSELL, C.J., LAWRENCE G. CRAHAN, J., and CHARLES B. BLACKMAR, Sr.J.
   ORDER

PER CURIAM.

Father appeals the decision of the trial court terminating his parental custody. We find the judgment is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. Murphy v. Carrón, 536 S.W.2d 30 (Mo. banc 1976).

An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order.

We affirm pursuant to Rule 84.16(b).


text:
    In the Interest of E.P. and D.W., Minor Children.
    No. ED 76637.
    Missouri Court of Appeals, Eastern District, Division Five.
    April 18, 2000.
    Douglas S. Pribble, St. Louis, for appellant.
    Margaret Donnelly, Clayton, guardian ad litem/respondent.
    Richard J. Childress, St. Louis, for DFS.
    Bettye Battle-Turner, St. Louis, for respondent.
    Before: MARY RHODES RUSSELL, C.J., LAWRENCE G. CRAHAN, J., and CHARLES B. BLACKMAR, Sr.J.
   ORDER

PER CURIAM.

Mother appeals the decision of the trial court terminating her parental custody. We find the judgment is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. Murphy v. Carrón, 536 S.W.2d 30 (Mo. banc 1976).

An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order.

We affirm pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Brandon BULLOCK, Appellant.
    No. ED 76220.
    Missouri Court of Appeals, Eastern District, Division One.
    April 18, 2000.
    Brendan P. Maturen, Public Defender, Kirksville, for appellant.
    Susan Henry, Pros. Atty., Memphis, for respondent.
    Before RICHARD B. TEITELMAN, P.J., CLIFFORD H. AHRENS, J, and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Appellant Brandon Bullock appeals from the judgment entered in the Circuit Court of Scotland County convicting him of the class B misdemeanor of careless and imprudent driving in violation of Section 304.012, RSMo. Appellant was sentenced to serve four weekends in the Scotland County Jail, execution of the sentence suspended. Appellant was placed on probation for a period of two years with the conditions that he perform 120 hours of community service within six months, observe a curfew of 10:00 p.m., and refrain from driving for one year except to and from school, employment, and for reasons of family medical necessity.

We have reviewed Appellant’s brief and the record on appeal and find no error of law. No precedential or jurisprudential purpose would be served by an extended published opinion reciting detailed facts and restating principles of law. We have, however, provided the parties with a memorandum opinion for their exclusive use detailing the reasons for this decision. The judgment is affirmed pursuant to Rule 30.

      . The State failed to file a brief in this matter.


text:
    R.E. LUSSER, Plaintiff/Respondent, v. Mamita L. McGILL, Cross-Claimant/Respondent, v. Albert Irving, Jr., and Delphine D. Irving, Defendants, Joyce Coats and Jim Coats, Defendants/Appellants.
    No. ED 75806.
    Missouri Court of Appeals, Eastern District, Division One.
    April 18, 2000.
    Elbert Dorsey, The Law Office of Collier, Dorsey, Carter & Williams, LLC, St. Louis, for appellant.
    Rene E. Lusser, Lusser, Hughes <& Lus-ser, St. Louis, for respondent.
    Before GARY M. GAERTNER, P.J. and PAUL J. SIMON and JAMES R. DOWD, JJ.
   ORDER

PER CURIAM.

Joyce and Jim Coats, appellants, appeal from the judgment of the trial court in favor of R.E. Lusser’s, respondent, claim for his attorney fees and for a lien on certain real estate in the amount of Thirteen Thousand Dollars ($13,000.00) and in favor of Mamita McGill, respondent, on her cross-claim against appellants for consideration of her transfer of title of certain real estate and her lien against said real estate in the amount of Twenty Thousand Dollars ($20,000.00).

We have reviewed the record on appeal and the briefs of the parties and find no error of law. An extended opinion would have no precedential value, and we affirm the judgment pursuant to Rule 84.16(b).


text:
    Laron JOHNSON, Appellant, v. STATE of Missouri, Respondent.
    No. ED 76826.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 18, 2000.

      Gwenda R. Robinson, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, for respondent.
    Before RICHARD B. TEITELMAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Movant Laron Johnson appeals from the judgment entered in the Circuit Court of St. Louis City denying, without an eviden-tiary hearing, his Rule 29.15 motion for post-conviction relief. In that motion, Movant sought to vacate convictions of murder in the first degree, Section 565.010, RSMo 1994, and armed criminal action, Section 571.015, RSMo 1994 for which he was sentenced to concurrent terms of life without parole and thirty years’ imprisonment, respectively.

We have reviewed the briefs of the parties and the record on appeal. The motion court did not clearly err in denying Mov-ant’s motion. No precedential or jurisprudential purpose would be served by an extended published opinion reciting detailed facts and restating principles of law. We have, however, provided the parties with a memorandum opinion for their exclusive use detailing the reasons for our decision. The judgment is affirmed pursuant to Rule 84.16(b).


text:
    Robert J. SCHMITZ, Appellant, v. DIRECTOR OF REVENUE, Respondent.
    No. ED 75942.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 18, 2000.
    Robert S. Adler, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, for respondent.
    Before: RICHARD B. TEITELMAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Robert J. Schmitz appeals the judgment of the trial court, after a trial de novo, upholding the Director of Revenue’s suspension of his driving privileges pursuant to Section 302.505 RSMo Cum.Supp.1999. We have reviewed the briefs of the parties and the record on appeal. The judgment is supported by substantial evidence and is not against the weight of the evidence. No error of law appears. An opinion reciting the detailed facts and restating the principles of law would have no prece-dential value. We have, however, furnished the parties with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Kelvin PERKINS, Appellant.
    No. ED 76293.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 18, 2000.
    Irene Karns, Asst. Public Defender, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.
    Before RICHARD B. TEITELMAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Kelvin Perkins (“Defendant”) appeals a judgment on a jury verdict from the Circuit Court of St. Charles County finding him guilty of one count of the unlawful use of a weapon, section 577.030.1(3) RSMo 1994. Defendant was sentenced as a prior and persistent offender to ten years’ imprisonment. Defendant asserts the trial court erred in refusing to grant a mistrial after a state’s witness testified at trial as to a prior bad act committed by defendant. Defendant also asserts the trial court erred by granting him credit toward his ten-year sentence for his incarceration while awaiting trial as such a grant is impermissible and will ultimately lead to a greater sentence than the court intended to impose.

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

The. judgment of the trial court is affirmed in accordance with Rule 30.25(b).


text:
    In the Interest of M.M.H., a minor. In the Interest of C.E.C., a minor. In the Interest of J.C.C., a minor. In the Interest of I.M.H., a minor. Juvenile Officer, Respondent, v. C.V.H., Appellant.
    Nos. ED 76099-ED 76102.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 18, 2000.
    Robin Ransom Vannoy, Family Court of St. Louis County, St. Louis, for respondent.
    John R. Bird, St. Louis, for appellant.
    Rene’ E. Lusser, Lusser, Hughes & Lusser, St. Louis, guardian ad litem of juveniles.
    Before KATHIANNE KNAUP CRANE, P.J., ROBERT G. DOWD, Jr., J. and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

In this consolidated appeal, mother appeals from the judgments of the trial court terminating her parental rights to her four minor children. The judgment is supported by substantial evidence and is not against the weight of the evidence. No error of law appears. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.1976).

Am opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties have been furnished with a memorandum opinion, for their information only, setting forth the facts and reasons for this order.

The judgment is affirmed under Rule 84.16(b).


text:
    Vernon STROUD, Appellant, v. STATE of Missouri, Respondent.
    No. ED 76453.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 18, 2000.
    Mary S. Choi, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Linda Lemke, Asst. Atty. Gen., Jefferson City, for respondent.
    Before CRANE, P.J., ROBERT G. DOWD, J., and SULLIVAN, J.
   ORDER

PER CURIAM.

Vernon Stroud (“Defendant”) appeals from a judgment denying his request for post-conviction relief pursuant to Rule 29.15. Defendant claims ineffective assistance of trial counsel. We have reviewed the briefs of the parties and the record on appeal and conclude the trial court’s judgment is not clearly erroneous. Rule 29.15(k). An 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 84.16(b).

      . All rule references are to Mo. R.Crim. P.2000, unless otherwise indicated.


author: PER CURIAM

text:
    David DeCHRISTO, Appellant, v. ANHEUSER BUSCH, INC., Respondent.
    No. ED 76739.
    Missouri Court of Appeals, Eastern District, Division Five.
    April 18, 2000.
    Edwin J. Olson, St. Louis, for appellant.
    R. Kent Schultz, St. Louis, for respondent.
    Before MARY RHODES RUSSELL, C.J., LAWRENCE G. CRAHAN, J., and CHARLES BLACKMAR, Sr.J.
   ORDER

PER CURIAM

David DeChristo (“Employee”) appeals the final award of the Labor and Industrial Relations Commission (“Commission”) awarding him permanent partial disability compensation from Anheuser Busch, Inc. The Commission, which affirmed and adopted the findings of the Administrative Law Judge, determined that Employee sustained a 7½% permanent partial disability of each wrist as a result of the work-related aggravation of his osteoarthritis.

We have reviewed the briefs of the parties and the record on appeal. The award is supported by substantial and competent evidence in the record and is not against the weight of the evidence. An extended opinion would have no precedential value. We have, however, furnished the parties with a memorandum for their information only, setting forth the reasons for this order. We affirm the award pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Plaintiff/Respondent, v. Eric MYERS, Defendant/Appellant.
    No. ED 76334.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 18, 2000.
    Lisa M. Stroup, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Karen Pope Butler, Asst. Atty. Gen., Jefferson City, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., and ROBERT G. DOWD, Jr., and SHERRI B. SULLIVAN, JJ.
   ORDER

PER CURIAM.

Defendant, Eric Myers, appeals from a judgment upon conviction by a jury of murder in the second degree, Section 565.020, RSMo 1994, and armed criminal action, Section 571.015, RSMo 1994. Defendant was sentenced as a prior offender pursuant to Section 558.016, RSMo 1994, to life imprisonment for murder in the second degree with a consecutive term of fifteen years for armed criminal action. Defendant appeals claiming the trial court erred (1) in refusing Defendant’s instruction regarding self-defense and (2) in overruling his objection to testimony from Dr. Jane Turner, the medical examiner.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion reciting the detailed facts and restating principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 30.25(b).


text:
    Marcus GRANGER, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. ED 76507.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 18, 2000.
    Douglas L. Levine, Ferguson, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Kristin M. Frazier, Asst. Atty. Gen., Jefferson City, for respondent.
    Before RICHARD B. TEITELMAN, P.J., CLIFFORD H. AHRENS and LAWRENCE E. MOONEY, JJ.
   ORDER

PER CURIAM.

Movant appeals from a judgment denying on the merits, without an evidentiary hearing, his Rule 29.15 motion for post-conviction relief.

The findings and conclusions of the motion court are based on findings of fact that are not clearly erroneous. No error of law appears. An opinion reciting the detailed facts and restating the principles of law would have no precedential value.

We affirm the judgment pursuant to Rule 84.16(b)(2).


text:
    Denise BISHOP, Appellant/Employee, v. ST. ANTHONY’S MEDICAL CENTER, Respondent/Employer/Self-Insured.
    No. ED 76768.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 18, 2000.
    William Ruby, House Springs, for appellant.
    John J. Mohan, Mickes, Tueth, Keeney, Cooper, Mohan & Jackstadt, St. Louis, for respondent.
    Before RICHARD B. TEITELMAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Denise Bishop (“Claimant”) appeals from a judgment of the Labor and Industrial Relations Commission (“Commission”) finding she failed to make a prima facie case that she suffered back injuries due to a work-related accident. Claimant asserts the decision is not supported by competent and substantial evidence and is clearly contrary to the overwhelming weight of the evidence. Claimant also contends the Commission erred in denying her request to consider additional medical evidence which would have verified she suffered a compensable injury.

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

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


text:
    Kevin D. STARK, Appellant, v. STATE of Missouri, Respondent.
    No. ED 76134.
    Missouri Court of Appeals, Eastern District, Division One.
    April 18, 2000.
    Gary E. Brotherton, Asst. Public Defender, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Susan K. Glass, Asst. Atty. Gen., Jefferson City, for respondent.
    Before GARY M. GAERTNER, P.J. and PAUL J. SIMON and JAMES R. DOWD, JJ.
   ORDER

PER CURIAM.

Kevin D. Stark, appellant, appeals the trial court’s denial of his Rule 24.035 post-conviction motion to vacate, set aside or correct the judgment or sentence after an evidentiary hearing on such motion. Appellant entered a plea of guilty pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) on one count of driving while intoxicated, section 577.010 RSMo 1994. He was sentenced as a persistent offender, pursuant to section 577.023 RsMo 1994, to four years imprisonment in the Missouri Department of Corrections.

We have reviewed the record on appeal and the briefs of the parties and find no error of law. An extended opinion would have no precedential value, and we affirm pursuant to Rule 84.16(b).


text:
    Craig K. DAVIS, Appellant, v. STATE of Missouri, Respondent.
    No. ED 76784.
    Missouri Court of Appeals, Eastern District, Division One.
    April 18, 2000.
    Amy M. Bartholow, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Anne E. Hawley, Asst. Atty. Gen., Jefferson City, for respondent.
    Before GARY M. GAERTNER, P.J., PAUL J. SIMON, J., and JAMES R. DOWD, J.
   ORDER

PER CURIAM.

Appellant, Craig K. Davis, (“appellant”), appeals the judgment of the Circuit Court of Marion County denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. Appellant seeks to vacate his conviction and sentence for possession of a controlled substance with intent to distribute, section 195.211, RSMo 1994, for which appellant was sentenced to a term of one hundred months in prison. We affirm.

We have reviewed the briefs of the parties, the legal file, and the transcripts, and find the judgment is not clearly erroneous. As an extended opinion would serve no jurisprudential purpose, we affirm the judgment pursuant to Rule 84.16(b).

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


text:
    Randy WIMMER, Appellant, v. STATE of Missouri, DIVISION OF AGING, Respondent.
    No. ED 75876.
    Missouri Court of Appeals, Eastern District, Division Five.
    April 25, 2000.
    Lois Spritzer, St.Louis, for appellant.
    Gerald L. Meyer, Dept, of Social Services, Division Of Legal Services, Jefferson City, for respondent.
    Before MARY RHODES RUSSELL, C.J., LAWRENCE G. CRAHAN, J., and CHARLES BLACKMAR, Sr.J.
   ORDER

PER CURIAM.

Howard Randy Wimmer appeals the decision of the Personnel Advisory Board upholding his dismissal by the State of Missouri, Department of Social Services, Division of Aging from the position of Environmental Sanitarian III. We have reviewed the briefs of the parties and the record on appeal and find the award is supported by competent and substantial evidence and is not arbitrary, capricious or an abuse of discretion. An extended opinion would be of no precedential value. We have, however, provided the parties with a brief memorandum for their use only, explaining the reason for our decision. The judgment is affirmed pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Dante D. LUCHIEN, Appellant.
    No. ED 76305.
    Missouri Court of Appeals, Eastern District, Division One.
    April 25, 2000.
    Amy M. Bartholow, Asst. Public Defender, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Andrea L. Mazza, Asst. Atty. Gen., Jefferson City, for respondent.
    Before GARY M. GAERTNER, P.J. and PAUL J. SIMON and JAMES R. DOWD, JJ.
   ORDER

PER CURIAM.

Dante Luchien, defendant, appeals the judgment of the Circuit Court of St. Louis County following jury verdicts of guilty of involuntary manslaughter in violation of section 565.024.1(1) RSMo.1994 and armed criminal action in violation of section 571.015.1.

We have reviewed the record on appeal and the briefs of the parties and find no error of law. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential or jurisprudential value. The judgment is affirmed in accordance with Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Larry WILKES, Appellant.
    No. ED 76487.
    Missouri Court of Appeals, Eastern District, Division Five.
    April 25, 2000.
    Irene Earns, Asst. Public Defender, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Andrea L. Mazza, Asst. Atty. Gen. Jefferson City, for respondent.
    Before MARY RHODES RUSSELL, C.J., LAWRENCE G. CRAHAN, J., and CHARLES BLACKMAR, Sr J.
   ORDER

PER CURIAM.

Larry Wilkes (“Defendant”) appeals the judgment entered upon his conviction by a jury of tampering in the first degree pursuant to section 569.080.1(2) RSMo 1994. Defendant claims the trial court erred in overruling his Batson objection to the State’s preemptory strike of a venireper-son and that the trial court erred and abused its discretion in allowing the prosecutor to pose a hypothetical during voir dire examination.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. An extended opinion would be of no precedential value. We have, however, provided the parties with a brief memorandum opinion, for their use only, explaining the reason for our decision. The judgment is affirmed pursuant to Rule 80.25(b).


text:
    John PERRYMAN, Appellant, v. STATE of Missouri, Respondent.
    No. ED 76530.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 25, 2000.
    Raymond J. Capelovitch, Asst. Public Defender, St. Louis, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Adriane D. Crouse, Asst. Atty. Gen., Jefferson City, for Respondent.
    Before KATHIANNE KNAUP CRANE, P.J., ROBERT G. DOWD, J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

John Perryman (Appellant) was convicted by a jury of one count of sodomy and one count of rape of two female victims under the age of fourteen. Appellant appeals the judgment of the motion court denying his Rule 29.15 motion for postconviction relief without an evidentiary hearing based on the admission of evidence of prior sexual misconduct by Appellant towards a victim. We have reviewed the briefs of the parties and the record on appeal and conclude the trial court’s ruling was not clearly erroneous. Rule 24.035(k), Rule 29.15(k). An extended opinion would have no prece-dential 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 84.16(b).


text:
    Mykal J. COBURN, Defendant-Appellant, v. STATE of Missouri, Respondent.
    No. ED 76714.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 25, 2000.
    Burton H. Shostak, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Krista D. Boston, Asst. Atty. Gen., Jefferson City, for respondent.
    Before: RICHARD B. TEITELMAN, P.J., CLIFFORD H. AHRENS and LAWRENCE E. MOONEY, JJ.
   ORDER

PER CURIAM.

Defendant Mykal Coburn appeals from the judgment denying his Rule 24.035 motion for postconviction relief after an evi-dentiary hearing.

The findings and conclusions of the motion court are based on findings of fact that are not clearly erroneous. No error of law appears. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum opinion, for their information only, setting forth the facts and reasons for this order.

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


text:
    STATE of Missouri, Respondent, v. James SMALLEY, Appellant.
    No. ED 76490.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 25, 2000.
    Mary S. Choi, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Susan K. Glass, Asst. Atty. Gen., Jefferson City, for respondent.

      Before WILLIAM H. CRANDALL, JR., P.J., MARY K. HOFF, J., and JAMES A. PUDLOWSKI, Sr. J.
   ORDER

PER CURIAM.

Defendant, James Smalley, appeals from the judgment entered after a jury found him guilty of possession of a controlled substance. Defendant was sentenced to four years imprisonment. No jurisprudential purpose would be served by a written opinion.

The judgment of conviction is affirmed. Rule 30.25(b).


text:
    Leo J. BIERMANN, Respondent, v. GALLANT INSURANCE COMPANY and Evans C. Spencer, Appellants.
    No. ED 76967.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 25, 2000.
    Bath C. Boggs, Clayton, Mary D. Rych-novsky, St. Louis, for appellant.
    Donald S. Singer, Kenneth E. Dick, St. Louis, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., and ROBERT G. DOWD, Jr., and SHERRI B. SULLIVAN, JJ.
   ORDER

PER CURIAM.

Gallant Insurance Company (Gallant) and Evans C. Spencer (Spencer) appeal from the trial court’s judgment ordering them to pay the full amount of the judgment awarded to Leo J. Biermann (Bier-mann). Gallant and Spencer contend the trial court erred in ordering Gallant to pay the full amount of the judgment because Spencer was only assessed one percent of the fault from a suit on an automobile accident.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion reciting the detailed facts and restating principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. Biermann’s motion for frivolous appeal and his motion to dismiss are denied. The judgment is affirmed in accordance with Rule 84.16(b).


author: SHERRI B. SULLIVAN, Judge.

text:
    Arthur WHITNEY, Plaintiff/Appellant, v. AETNA CASUALTY & SURETY COMPANY and David J. Berry, Defendants/Respondents.
    No. ED 76930.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 25, 2000.

      James E. Heckel, St. Louis, for Appellant.
    Peter Joseph Dunne, Law Firm of Rab-bitt, Pitzer & Snodgrass, St. Louis, Lawrence Robert Smith, Law Firm of Brinker & Doven, LLP, Clayton, for Respondents.
   SHERRI B. SULLIVAN, Judge.

Arthur Whitney (“Plaintiff”) appeals from a trial court judgment denying his Petition for Equitable Garnishment pursuant to Section 379.200 RSMo. (1994) against Aetna Casualty & Surety Company (“Aetna”). We affirm.

The parties submitted the case to the trial court on a stipulated record. The following facts are not in dispute. On October 20,1994, David J. Berry (“Berry”) was driving a pickup truck owned by Staat Construction Company (“Staat”) along Highway 50 in Franklin County. Berry had Staat’s permission to use the truck. Plaintiff was a front seat passenger in the truck driven by Berry. Staat employed both Berry and Plaintiff, and both were acting within the course and scope of their employment. As Berry and Plaintiff were driving from one job site to another, Berry lost control of the truck which went down an embankment and struck a utility pole, causing Plaintiff to be ejected from the truck.

In January 1995, Plaintiff’s attorney notified Aetna by letter that he was representing Plaintiff for personal injuries sustained as a result of the negligence of Berry. In August 1995, Aetna sent a letter to Aetna’s insured, Staat, stating that because of what is commonly referred to as the “employee exclusion” in Staat’s insurance policy with Aetna, Plaintiff’s injuries and losses did not come within the terms of the policy.

In September 1995, Aetna sent a letter to Plaintiff’s attorney stating that the Staat insurance policy specifically excludes coverage of bodily injury to an employee of the insured arising out of and in the course of employment by the insured and that the exclusion applied whether the insured may be hable as an employer or in another capacity and to any obligation to share damages with or to repay someone else who must pay damages because of the injury.

In February 1996, Aetna sent a letter to Berry stating that the Staat insurance policy specifically excluded an injury claim arising out of or in the course of employment by the insured and that because Plaintiffs injury arose out of or in the course of his employment, coverage was excluded. The letter also referenced a specific page of the policy, a copy of which was enclosed with the letter. The page included the “employee exclusion” and a “fellow employee exclusion,” with the former being highlighted.

In November 1996, Plaintiff filed a common law negligence action against Berry. Berry forwarded the petition and summons for this ’ action to Aetna, which refused to defend him since it had previously informed him that coverage was excluded. Subsequently, Berry contacted Farmers’ Insurance Company (“Farmers”) requesting insurance coverage for the accident under his automobile liability insurance policy with Farmers.

In June 1997, Berry and Farmers entered into a written agreement with Plaintiff whereby Berry and Farmers agreed to pay Plaintiff the full policy limit of Berry’s policy in the amount of $100,000, and Plaintiff agreed to repay the $100,000 to Farmers from the first $100,000 obtained in any judgment against Aetna under its insurance policy with Staat. Plaintiff also agreed that he would not levy execution or garnishment against anyone except Aetna on any judgment obtained against Berry. A default judgment was taken against Berry in the amount of $300,000, which gave rise to the garnishment action instituted by Plaintiff.

The trial court denied Plaintiffs Petition for Equitable Garnishment against Aetna concluding that Aetna’s policy did not cover Plaintiffs claim against Berry due to the fellow employee exclusion and that Aetna was not estopped from raising this exclusion for the first time in its answer because no prejudice to the insured, Berry, flowed from the belated assertion of the exclusion.

In a court-tried case, we will affirm the judgment of the trial court unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Plaintiffs point one on appeal argues that the trial court erred in ruling that Aetna’s insurance policy -with Staat does not cover Plaintiffs claim against Berry due to the fellow employee exclusion because Aetna did not raise the exclusion until the equitable garnishment action was filed against Aetna, and Aetna was es-topped from raising the exclusion at that time because Berry was prejudiced by the belated assertion of the exclusion.

Estoppel, the preferred theory when an insurer elects a policy defense, requires that the insurer first announce a specific defense and subsequently seek to rely instead on an inconsistent theory. Shahan v. Shahan, 988 S.W.2d 529, 533-34 (Mo. banc 1999). There is no dispute that Aetna initially presented the employee exclusion as the basis for denying coverage and subsequently also relied on the fellow employee exclusion. Aetna did not raise the fellow employee exclusion as a basis for denying coverage until it filed its answer in this action.

However, estoppel also requires that the insurer’s actions induced the insured to rely on the original defense and caused the insured injury. Id. at 534. The insured must show that he or she was prejudiced, beyond the mere filing of a lawsuit, by the insurer’s actions. Id. Thus, the insured must show prejudice before applying the general rule stating that an insurer, having denied liability on a specified ground, may not thereafter deny liability on a different ground. Brown v. State Farm Mut. Auto. Ins. Co., 776 S.W.2d 384, 388 (Mo. banc 1989).

Both parties agree that under Staat’s insurance policy with Aetna, both Staat and Berry are “insured.” Plaintiff argues that Berry was prejudiced by Aetna’s actions in the following ways: (1) the agreement between Berry, Farmers, and Plaintiff; (2) increased premiums on Berry’s automobile liability insurance; (3) loss of an “accident free discount” on Berry’s automobile liability insurance; and (4) the default judgment that would adversely affect Berry’s credit rating.

The agreement between Berry, Farmers, and Plaintiff provides that Plaintiff would not levy execution or garnishment against anyone except Aetna on any judgment obtained against Berry. Thus, Berry is protected, not prejudiced, by this agreement. The increased premiums and loss of an “accident free discount” on Berry’s automobile liability insurance resulted from the accident, not from reliance on Aetna’s actions. Plaintiff alleges that Berry admitted the increased premiums and loss of an “accident free discount” resulted from the $100,000 payment by Farmers to Plaintiff, not as a result of the accident itself. However, a closer reading of Berry’s admissions reveals that such consequences occurred “following the payment” not “as a result of the $100,000 payment.” Finally, whether the default judgment may adversely affect Berry’s credit rating is speculative. Estoppel will not be lightly invoked; it should be applied with care and caution and only when all elements constituting estoppel clearly appear. Grannemann v. Columbia Ins. Group, 9B1 S.W.2d 502, 506 (Mo.App. W.D.1996).

Thus, Plaintiff has not shown sufficient prejudicial reliance on Aetna’s actions by Berry which would justify invoking the doctrine of estoppel. Point one denied.

Plaintiffs point two on appeal argues that the trial court erred in ruling that Aetna’s insurance policy with Staat does not cover Plaintiffs claim against Berry due to the fellow employee exclusion because Aetna waived the right to claim that the exclusion precludes coverage in that Aetna declared on three occasions prior to a lawsuit being filed against Aetna that it was relying on the employee exclusion to deny coverage to Berry clearly relinquishing its known contractual right to rely on the fellow employee exclusion.

Waiver is the intentional relinquishment of a known right. Shahan, 988 S.W.2d at 534. Waiver may be express or implied by conduct that clearly and unequivocally shows a purpose by the insurer to relinquish a contractual right. Id. Prejudice is not an element of waiver. Brown, 776 S.W.2d at 388.

Plaintiff argues that the August 1995, the September 1995, and the February 1996 letters from Aetna constitute a waiver of a fellow employee exclusion defense because the letters present the employee exclusion as the basis for denying coverage. Plaintiff cites Baker v. DePew, 860 S.W.2d 318 (Mo. banc 1993), to support his contention that Aetna knew that the proper exclusion under this policy was the fellow employee exclusion, not the employee exclusion. Aetna was a defendant in Baker, a case with similar facts to the one here. In Baker, the Missouri Supreme Court held that the fellow employee exclusion clause excluded coverage by Aetna of Baker’s claim for injuries against DePew. Id. at 323.

Although Aetna may have known of its contractual right under the fellow employee exclusion, the letters do not clearly and unequivocally show a purpose by Aetna to relinquish that contractual right. For example, although the letters present the employee exclusion as the basis for denying coverage, the letters do not contain any statements which exclude other defenses. Also, in the September 1995 letter, the following general statement concludes the letter: “We regret to inform you that due to the exclusions under the policy, we must respectfully deny coverage of your client’s accident.” (emphasis added).

Further, waiver and estoppel may not be employed to create coverage where it otherwise does not exist. Shelter General Ins. Co. v. Siegler, 945 S.W.2d 24, 27 (Mo.App. E.D.1997). This rule is grounded in the idea that waiver and estoppel do not themselves give a cause of action and that the purpose of estoppel is to preserve rights previously acquired but not to create new ones. Id. The trial court found that the fellow employee exclusion precludes coverage in this case, and Plaintiff does not appeal this ruling. Therefore, to hold Aetna responsible under the fellow employee exclusion would be to create coverage where it otherwise does not exist.

Thus, the letters do not constitute an intentional relinquishment of a known right by Aetna invoking the doctrine of waiver. Point two denied.

Accordingly, the judgment of the trial court is affirmed.

CRANE, P.J. and ROBERT G. DOWD, Jr., J., concur.

      . The "employee exclusion” in the policy reads as follows:
      B. EXCLUSIONS
      This insurance does not apply to any of the following:

      4. EMPLOYEE INDEMNIFICATION AND EMPLOYER'S LIABILITY
      "Bodily injury” to:
      a. An employee of the "insured” arising out of and in the course of employment by the "insured”...
      This exclusion applies:
      (1) Whether the "insured" may be liable as an employer or in any other capacity; and
      (2) To any obligation to share damages with or repay someone else who must pay damages because of the injury.

      . The "fellow employee exclusion” in the policy reads as follows:
      B. EXCLUSIONS
      This insurance does not apply to any of the following:

      5. FELLOW EMPLOYEE
      "Bodily injury” to any fellow employee of the "insured” arising out of and in the course of the fellow employee’s employment.

      . The applicable provisions are as follows:
      A. Coverage

      1. WHO IS AN INSURED The following are "insureds”:
      a. You for any covered "auto.”
      b. Anyone else while using with your permission a covered "auto” you own....
      SECTION V -DEFINITIONS

      E. "Insured” means any person or organization qualifying as an insured in the Who Is An Insured provision of the applicable coverage. Except with respect to the Limit of Insurance, the coverage afforded applies separately to each insured who is seeking coverage or against whom a claim or "suit” is brought.

      . Aetna argues that Plaintiff has not preserved this point for appeal. However, although the trial court did not specifically address the waiver issue in its judgment, Plaintiff raised the issue in his Proposed Conclusions of Law at page fourteen, paragraph twenty-five submitted to the trial court: "That by reason of Aetna’s letters of August 24, 1995 to Staat;
      September 14, 1995 to [Plaintiff’s attorney]; and February 5, 1996 to Berry, Aetna waived the application of the fellow employee exclusion clause in the Aetna policy of insurance to Staat and as a result had a duty to defend David J. Berry in the lawsuit Arthur Whitney had filed against him.”


text:
    KRUSE CONCEPTS, INC., Plaintiff-Appellant, v. SHELTER MUTUAL INSURANCE, Defendant-Respondent.
    No. ED 76427.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 2, 2000.

      Blair Kenneth Drazic, Chesterfield, for Appellant.
    Steven H. Schwartz, T. Michard Ward, Bart B. Zuckerman, St. Louis, for Respondent.
   SHERRI B. SULLIVAN, Judge.

Kruse Concepts (Appellant) appeals from a summary judgment granted to Shelter Mutual Insurance (Respondent) in Appellant’s suit against Respondent alleging tortious interference with its fire restoration contract to repair the home of Ronnie Moses (Moses). We affirm.

Respondent issued a homeowner’s insurance policy to Moses, which provided coverage for property damage caused by fire. While the policy was in effect, fire damaged a portion of Moses’ home. On August 20, 1996, Moses contracted with Appellant, a fire and water restoration contractor, to restore the fire damaged portions of his home. Moses and Appellant did not agree at that time to a price term, which was to be based upon “The Blue Book, Inc. rates.”

Appellant and Respondent attempted to agree on the scope and cost of repairs necessary to restore Moses’ home. Appellant and Respondent agreed that Appellant would replace the entire roof for $7,590.00. Appellant repaired the roof. Appellant and Respondent never reached an agreement on the scope and cost of restoration of the rest of the damaged portions of the house. Appellant provided its initial estimate of the cost of repair work. Respondent provided its estimate of $18,778.00. Appellant then provided a revised estimate of $29,749.00. Respondent provided its own revised estimate of $19,309.00. Despite their inability to reach an agreed upon estimate, Respondent gave Appellant $10,000.00 as partial payment in order to begin the work. Respondent again revised its estimate, based on the opinion of an unbiased, independent contractor, to $20,359.00.

Moses fired Appellant in November of 1996. Moses testified by deposition that he fired Appellant because of poor workmanship by Appellant’s employees and additional damage to his property caused by Appellant’s employees. Specifically, Moses testified that: (1) Appellant cut some of the roof rafters improperly, (2) Appellant installed the wrong type of roof vent, (3) Appellant improperly installed the electrical outlets in the bathroom, (4) Moses did not like some of Appellant’s drywall work, (5) Appellant damaged some of Moses’ property and never fixed it, and (6) Appellant’s workers sometimes did not show up or were late.

Despite Moses’ testimony, Appellant maintains that Moses terminated their contract because Respondent provided Moses with a bad faith estimate of his damages and announced that it would pay no more than the bad faith estimate, with the purpose of interfering with Appellant’s contract. Appellant filed suit against Respondent, alleging that Respondent had intentionally and without justification caused Moses to terminate the restoration contract with Appellant. Respondent filed a motion for summary judgment. In response to the motion, Appellant filed an affidavit of its President, David Kruse (Kruse). In his affidavit Kruse stated that:

(1) he had been in the construction/restoration business for seven years and was familiar with the prevailing prices in the area of Moses’ home,
(2) he had prepared several estimates and had submitted them to Respondent’s claim adjusters, and Respondent had faxed estimates to him,
(3) he repeatedly protested that the estimates of Respondent were incorrect,
(4) on October 22, 1996, [Respondent] sent a letter to Kruse, which showed on its face a copy to Ronnie Moses, indicating that the only payments that would be made would be based upon the estimate of an unbiased contractor that had evaluated the loss,
(5) a copy of the estimate was enclosed, and it was very similar to [Respondent’s] estimate,
(6) based upon his knowledge and experience, he was of the opinion that a claim adjuster of “even low competence would immediately know that all of [Respondent’s] estimates were well below the honestly debatable range for the restoration of the Moses’ home and also they did not include work that any honest adjuster would acknowledge needed done,”
(7) after having received [Respondent’s] letter and estimate that Moses had called him and told him that he did not think the estimate was fair,
(8) Kruse advised Moses that Appellant would be willing to appraise the loss under the appraisal terms of the insurance policy and that Appellant would accept, as complete payment, whatever figure the appraisal determined,
(9) Moses agreed to the appraisal, however a few days later Moses called and his attitude had completely changed,
(10) Moses indicated that after calling [Respondent] that he would not appraise and that [Respondent] had told Moses that Appellant would take Moses to court to pay any of the charges above the final estimate,
(11) Moses indicated that [Respondent] had suggested Moses repair his house by using some of the insurance proceeds he received for damaged personal property, specifically, a pool table,
(12) Moses said to Kruse that he was tired of fighting with [Respondent], was worried about being canceled, and told Kruse to do no further work on the job,
(13) prior to that conversation [Moses] had voiced no problems with Appellant’s work,
(14) at all times [Respondent’s] adjuster and claims supervisor acted in a hostile and recalcitrant manner, and
(15) Appellant would have made additional money had it been permitted to complete the job.

According to Moses’ deposition testimony, nothing Respondent said or did encouraged or caused him to terminate his contract with Appellant.

On March 6, 1997, Appellant filed suit against Respondent, alleging that Respondent had intentionally and without justification caused Moses to terminate the restoration contract with Appellant. Respondent filed a motion for summary judgment. The trial court denied Respondent’s original summary judgment motion. After further discovery, Respondent refiled its summary judgment motion, and attached thereto Moses’ deposition, portions of Kruse’s deposition, and other exhibits. Appellant filed a response opposing the motion to which he attached the Kruse affidavit set out above and other exhibits. The trial court granted this motion. Appellant timely filed this appeal.

Summary judgment is designed to permit the Court to enter judgment, without delay, where the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute, a right to judgment as a matter of law. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.banc 1993); Rule 74.04. When considering appeals from summary judgment, the appellate court will review the record in the light most favorable to the party against whom judgment was entered. Id. The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially. Id. As the trial court’s judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court’s order granting summary judgment. Id. This makes appellate review essentially de novo. Id.

In its point on appeal, Appellant claims the trial court erred in granting summary judgment to Respondent because Kruse’s affidavit establishes questions of material fact in that the affidavit: (A) includes expert evidence that the estimate that was sent to Moses was in bad faith and a misrepresentation of the actual damages to his home and thus established an unjustified interference with Appellant’s contract; and (B) establishes that Moses terminated his contract with Appellant because of the interference by Respondent, by way of admissible statements of Moses to Kruse, made at the very time of contract termination, either within the state of mind exception to the hearsay rule or which were not hearsay.

A claim for tortious interference with a contract requires proof of each of the following: (1) a contract, (2) the defendant’s knowledge of the contract, (3) intentional interference by the defendant inducing or causing a breach of the contract, (4) absence of justification, and (5) damages resulting from the defendant’s conduct. Thomas Phelps Foundation v. Custom Ins. Co., Inc., 977 S.W.2d 33, 37 (Mo.App. E.D.1998), Community Title Co. v. Roosevelt Federal Sav. and Loan Ass’n, 796 S.W.2d 369, 372 (Mo.banc 1990). In the instant case, the parties agree that there was a contract and Respondent knew of that contract. The issue presented is whether Respondent intentionally interfered with the contract without justification, causing its termination by Moses.

Under Missouri law, a plaintiff has the burden of producing substantial evidence to establish the absence of justification. Community Title, 796 S.W.2d at 372. It is not justification to knowingly procure the breach of a contract where the defendant acts with an improper purpose and seeks not only to further his own interests, but in doing so employs improper means. Id. But there is no impropriety of self-interested interference when a defendant has a legitimate economic interest in the contract. Id. One who has a present existing economic interest, such as a prior contract of his own or a financial interest in the affairs of the person persuaded not to enter into a contract, is privileged to interfere with another’s business expectancy to protect one’s own economic interest. Thomas Phelps, 977 S.W.2d at 37, Community Title, 796 S.W.2d at 372. No liability arises for interfering with a contract if the action complained of was an act that the defendant had a definite legal right to do without any qualification. Thomas Phelps, 977 S.W.2d at 37, Community Title, 796 S.W.2d at 372.

In the instant case, as Moses’ insurer, Respondent had a contract of its own with Moses to compensate him for the cost of restoring his home. Accordingly, Respondent also had an economic interest in the amount charged by Appellant for the restoration of Moses’ home because Respondent was contractually obligated to pay most of Moses’ restoration costs. Respondent was also legally entitled to submit its estimate of Moses’ fire loss, unless in so doing it employed some improper means.

Improper means, for purposes of intentional interference with contractual relations, are those means which are independently wrongful, notwithstanding injury caused by the interference. Thomas Phelps, 977 S.W.2d at 38, Community Title, 796 S.W.2d at 373. Improper means include misrepresentation of fact, threats, violence, defamation, trespass, restraint of trade, or any other wrongful act recognized by statute or the common law. Thomas Phelps, 977 S.W.2d at 38, Community Title, 796 S.W.2d at 373, Nazeri v. Missouri Valley College, 860 S.W.2d 303, 317 (Mo.banc 1993).

Appellant maintains that an insurance company’s submission of bad faith estimates to its insured is wrongful conduct sufficient for a recovery for tortious interference. Specifically, Appellant claims that Kruse’s affidavit establishes misrepresentation of fact by Respondent, in that Respondent’s estimates of Moses’ loss were “below reasonable and failed to include work that obviously needed to be done.”

Respondent’s estimate of the amount of Moses’ loss was an opinion, not a statement of fact. Fraudulent misrepresentation cannot be based on a mere opinion. Meyer v. McGarvie, 856 S.W.2d 904, 908 (Mo.App. E.D.1993). See, e.g., Baldwin Properties, Inc. v. Sharp, 949 S.W.2d 952, 957 (Mo.App. W.D.1997) (Letter from engineer to prospective purchasers of home indicating that there were significant water leakage problems in basement that would cost at least $11,500 to repair did not misrepresent facts, but made only statements of opinion, and thus, did not constitute improper means required for imposition of liability for tortious interference with business expectancy). Even Kruse’s language in his affidavit and Appellant’s language in its brief indicate that Respondent’s estimates were not representations of fact: “the Shelter bids were below reasonable” and “all of Shelter’s estimates were well below the honestly debatable range for the restoration of the Moses’ home.” Facts are not “reasonable” or “honestly debatable.” Opinions are reasonable or debatable. Furthermore, the definition of “estimate” is “a judgment or opinion” or “a statement of the approximate charge for work to be done.... ” Webster’s College Dictionary 447 (2nd ed.1997). Appellant’s contention that Respondent’s estimates were misrepresentations of fact fails as a matter of law.

Appellant also argues that, even if not misrepresentations, Respondent’s estimates were made in bad faith. Bad faith, as an improper means to support a claim for intentional interference with contract, has been recognized in cases involving a fiduciary or agency relationship. See, e.g., Macke Laundry Service Limited Partnership v. Jetz Service Company, Inc., 931 S.W.2d 166 (MoApp. W.D.1996), Eib v. Federal Reserve Bank of Kansas City, 633 S.W.2d 432 (Mo.App. W.D.1982). However, the instant case involves a contractual relationship, not a fiduciary relationship. Further, the relationship between an insured and an insurer is of an adversarial nature, with no independent duty of good faith. State ex rel. Safeco National Insurance Company v. Rauch, 849 S.W.2d 632, 634-635 (Mo-App. E.D.1993). Moreover, this Court has held that the tort of bad faith does not exist in Missouri with respect to first party claims by an insured against an insurance company. Halford v. American Preferred Ins., 698 S.W.2d 40, 43 (Mo.App. E.D.1985). Accordingly, Appellant’s “bad faith” argument fails as well.

Because Appellant fails to establish the element of lack of justification for his cause of action for intentional interference with a contract, Respondent is entitled to judgment as a matter of law. The second part of Appellant’s point on appeal therefore need not be addressed.

The judgment of the trial court is affirmed.

CRANE, P.J. and ROBERT G. DOWD, Jr., J., concur.


author: KATHIANNE KNAUP CRANE, Presiding Judge.

text:
    Jason LOVE, Plaintiff/Respondent, v. HARDEE’S FOOD SYSTEMS, INC., Defendant/Appellant.
    No. ED 76576.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 2, 2000.

      Todd N. Hendrickson, Hendrickson & Glover, P.C., Clayton, for respondent.
    Sanford Goffstein, Lori R. Koch, St. Louis, for appellant.
   KATHIANNE KNAUP CRANE, Presiding Judge.

Defendant appeals from a judgment entered on a jury verdict in plaintiffs favor for injuries plaintiff received when he slipped and fell in a puddle of water inside the restroom doorway in one of defendant’s restaurants. Defendant challenges the sufficiency of the evidence to support a finding that defendant had actual or constructive notice of the water on the restroom floor. We affirm.

At about 3:15 p.m. on November 15, 1995, plaintiff, Jason Love, and his mother, Billye Ann Love, went to the Hardee’s Restaurant in Arnold, Missouri, which is owned by defendant, Hardee’s Food Systems, Inc. There were no other customers in the restaurant between 3:00 p.m. and 4:00 p.m., but two or three workmen were in the back doing construction. The workmen reported that they did not use the restroom and did not see anyone use the restroom. After eating his lunch, plaintiff, who was wearing rubber-soled boat shoes, went to use the restroom. He opened the restroom door, took one step in, and, upon taking his second step, slipped on water on the restroom floor. Plaintiff fell backwards, hit his head, and felt a shooting pain down his right leg. He found himself lying in an area of dirty water, which soaked his clothes. There were no barricades, warning cones, or anything else that would either restrict access to the bathroom or warn of the danger.

Plaintiff crawled up to the sink to pull himself up and made his way back to the table and told his mother that his back and leg were “hurting pretty bad.” His mother reported the fall to another employee. Plaintiffs mother went back to the men’s restroom and looked at the water on the floor. She observed that the water was dirty. The restaurant supervisor came out and interviewed plaintiff and viewed the water in the restroom. The supervisor told plaintiffs mother that the restaurant manager was at home and, at trial, testified that he called the restaurant manager at home to advise him of the accident and receive instructions. The supervisor then filled out an accident report form, which reported that the accident occurred at 8:50 p.m. The supervisor testified that the water appeared to have come from someone shaking his hands after washing them. The supervisor told plaintiff he could not recall the last time the restroom had been checked. Plaintiff was taken to a hospital emergency room. As a result of his injuries, plaintiff underwent two back surgeries, missed substantial time from work, and suffered from continuing pain and limitations on his physical activities.

Defendant had a policy requiring that the restroom was to be checked and cleaned every hour by a maintenance man. The maintenance man was scheduled to work until 3:00 p.m., but normally left at 1:00 p.m. The supervisor could not recall whether the maintenance man left at 1:00 p.m. or 3:00 p.m. on November 15. The time clock activity report would show when the maintenance man clocked out, but defendant was unable to produce the time clock report for November 15.

It was also a store policy that whenever employees cleaned the tables, they would check the restroom. The restrooms were used by customers and employees. If an employee had to use the restroom, then that employee was also supposed to check the restroom. The restaurant supervisor did not ask if any employees had been in the restroom; or if they had checked it in the hour prior to the accident, and did not know if the restroom was actually inspected or cleaned at 3:00 p.m.

The restaurant had shift inspection checklists on which the manager would report on the cleanliness of the restrooms and whether the floors were clean and dry. However, the checklists for November 15 were thrown away. The manager of the Arnold Hardee’s testified with respect to the shift inspection checklists:

A. We pin [them] up on our corkboard for the day.
Q. Then what do they do with them after that?
A. Throw ‘em away.
Q. Even if there’s been an accident on that shift you throw ‘em away?
A. Yes.
Q. So the only written record of when somebody went through and looked at that restroom, you pin up on the cork-board and even if there’s an accident on a shift, where somebody slips and falls, you throw that away?
A. Yes. I mean if it happened just before an accident we would save it, but I mean the checklist, we only do like three, four times a day at the most.

Plaintiff subsequently filed the underlying lawsuit against defendant to recover damages for negligence. The jury returned a verdict in plaintiffs favor in the amount of $125,000. The trial court denied defendant’s motion for judgment notwithstanding the verdict and entered judgment on the verdict.

For its sole point on appeal, defendant contends that the trial court erred in denying its motions for directed verdict and its motion for judgment notwithstanding the verdict. It argues that plaintiff failed to make a submissible case of negligence because plaintiff failed to prove that defendant had actual or constructive notice of the water on the restroom floor in that there was no evidence showing the source of the water or the length of time the water had been on the floor.

A motion for a directed verdict at the close of all the evidence and a motion for judgment notwithstanding the verdict present the same issue: whether plaintiff made a submissible case. Kimbrough v. J.R.J. Real Estate Invs., Inc., 932 S.W.2d 888, 889 (Mo.App.1996). To make a sub-missible case, a plaintiff must present substantial evidence for every fact essential to liability. Id.

“Substantial evidence is that which, if true, has probative force upon the issues, and from which the trier of facts can reasonably decide a case.” Hurlock v. Park Lane Medical Ctr., Inc., 709 S.W.2d 872, 880 (Mo.App.1985). Whether evidence in a case is substantial and whether inferences drawn are reasonable are questions of law. Id. In determining whether a plaintiff has made a submissible case, we view the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the plaintiff. Steward v. Goetz, 945 S.W.2d 520, 528 (Mo.App.1997). We presume that plaintiffs evidence is true. Id. We disregard any of defendant’s evidence which does not support plaintiffs case. Id. We will not overturn a jury verdict unless there is a complete absence of probative facts to support it. Kimbrough, 932 S.W.2d at 889. However, we do not supply missing evidence or give a plaintiff the benefit of unreasonable, speculative, or forced inferences. Id. The evidence and inferences must establish every element and not leave any issue to speculation. Id.

In order to have made a submissible case, plaintiff had to show that defendant knew or, by using ordinary care, could have known of the dangerous condition and failed to use ordinary care to remove it, barricade it, or warn of it, and plaintiff sustained damage as a direct result of such failure. Emery v. Wal-Mart Stores, Inc., 976 S.W.2d 439, 443-44 (Mo. banc 1998).

“In order to establish constructive notice, the condition must have existed for a sufficient length of time or the facts must be such that the defendant should have reasonably known of its presence.” Elmore v. Wal-Mart Stores, Inc., 812 S.W.2d 178, 180 (Mo.App.1991). Cases prior to the Missouri Supreme Court’s decisions in Sheil v. T.G. & Y. Stores Co., 781 S.W.2d 778, 781 (Mo. banc 1989) and Moss v. National Super Mkts., Inc., 781 S.W.2d 784 (Mo. banc 1989) placed great emphasis on the length of time the dangerous condition had been present and held that times of 20 or 30 minutes, absent proof of other circumstances, were insufficient to establish constructive notice as a matter of law. See Grant v. National Super Mkts., Inc., 611 S.W.2d 357, 359 (Mo.App.1980); Carraway v. National Super Mkts., Inc., 741 S.W.2d 895, 896 (Mo.App.1987).

In Sheil the Missouri Supreme Court held that, in self-service type stores, store owners could reasonably foresee that customers, who are invited to handle merchandise, could spill or drop merchandise on the floor and thereby create a dangerous condition for other customers. Sheil, 781 S.W.2d at 780-81. Accordingly, the storeowner “must anticipate and must exercise due care to guard against dangers from articles left in the aisle.” Id. at 780. The court held that the precise time that the condition existed would no longer be so important a factor, but more important would be the method of merchandising and the nature of the article causing the injury. Id. It quoted with approval Ciminski v. Finn Corp., 13 Wash.App. 815, 537 P.2d 850, 853 (1975), which we also quote in part, as follows:

It is common knowledge that the modern merchandising method of self-service poses a considerably different situation than the older method of individual clerk assistance. It is much more likely that items for sale and other foreign substances will fall to the floor. Clerks replenish supplies by carrying them through the area the customer is required to traverse when selecting items. Customers are naturally not as careful in handling the merchandise as clerks would be. They may pick up and put back several items before ultimately selecting one. Not unreasonably they are concentrating on the items displayed, which are usually arranged specifically to attract their attention. Such conditions are equally typical of self-service restaurants and the most common self-service operation, the modern supermarket.
An owner of a self-service operation has actual notice of these problems. In choosing a self-service method of providing items, he is charged with the knowledge of the foreseeable risks inherent in such a mode of operation.

Id. at 781. The court in Shell also noted that when a customer slips and falls the store is able to make an immediate investigation, interview witnesses, and diagram the scene. Shell, 781 S.W.2d at 782. “Relative availability of evidence to the parties is a circumstance to be considered in determining what should be required for making a submissible case.” Id.

In Moss, plaintiff slipped and fell on a green liquid on the store’s parking lot. In contrast to Shell, the accident did not occur inside a self-service store, but rather in a parking lot owned by the store and there was no showing that the slippery substance which caused the fall was a type of merchandise handled by the store. However, the court held that the parking lot was an integral part of the store, maintained to attract customers, and the duties of the storeowner with regard to the parking lot are essentially the same as those that relate to the inside of the store. Moss, 781 S.W.2d at 785. Thus, under Moss, “a plaintiff could make a submissible case against the store if there was evidence that the store’s method of operation could have shown that its employees had the opportunity to observe the hazard.” Head v. National Super Mkts., Inc., 902 S.W.2d 305, 307 (Mo.App.1995). Under Shell and Moss, we no longer strictly adhere to the “length of time” rule for proof of constructive notice, “whether the hazard results from a product of the store or some other device or condition.” Spencer v. Kroger Co., 941 F.2d 699, 702 (8 th Cir. 1991) (applying Missouri law). “Foreseeable risks extend beyond a given store’s products.” Id. Thus, for example, if a store provides plastic bags for its customers’ use, it is foreseeable that customers may drop those bags on the store’s parking lot. Forrest v. Schnucks Mkts., Inc., 791 S.W.2d 447, 450 (Mo.App.1990). The store has a duty to protect its customers from dangers created by the bags. Id.

Defendant’s liability is predicated on the foreseeability of the risk and the reasonableness of the care taken, which is a question of fact to be determined by the totality of the circumstances, including the nature of the restaurant’s business and the method of its operation. Head, 902 S.W.2d at 308; Spencer, 941 F.2d at 703.

In this case the accident took place in the restaurant’s restroom which is provided for the use of employees and customers. The cause of the accident was water, which is provided in the restroom. The restaurant owner could reasonably foresee that anyone using the restroom, customers or employees, would use the tap water provided in the restroom and could spill, drop, or splash water on the floor. Accordingly, the restaurant owner was under a duty to use due care to guard against danger from water on the floor.

There was substantial evidence to support submissibility. First, there was evidence from which the jury could infer that the water came from the use of the restroom. It was on the floor of the restroom and the supervisor testified it appeared that someone had shaken water from his hands on the floor.

Next, there was evidence from which the jury could infer that, if the water was caused by a non-employee, the water was on the floor for at least 50 minutes, or longer, because there was evidence that no other customers were in the store to use the restroom after 3:00 p.m. and the workmen on the site advised that they had not used the restroom.

In addition, plaintiff adduced evidence from which the jury could have found that defendants’ employees had the opportunity to observe the hazard. The restroom was to be used by the employees and was supposed to be checked by them when they used it; employees cleaning tables were supposed to check the restroom when they cleaned the tables; and a maintenance man was supposed to check and clean the restroom every hour.

There was evidence from which the jury could have inferred that the maintenance man charged with cleaning the restroom every hour did not clean the restroom at 3:00 p.m. as scheduled on the day of the accident. There was testimony that the maintenance man usually left at 1:00 p.m. The supervisor could not recall what time the maintenance man left that day and defendant was unable to produce the time clock reports for that day which would have shown when the maintenance man clocked out. This could have created a span of 2 hours and 50 minutes during which there was no employee working at the restaurant whose primary responsibility was to clean the restroom. See Head, 902 S.W.2d at 308.

There was also evidence from which the jury could have inferred that the restroom was not inspected by any employee who had the responsibility to inspect it during that same time period. The supervisor testified that he could not recall the last time the restroom had been checked and did not ask any employees if they had been in the restroom or had checked it in the hour before the accident. The manager testified that the shift inspection checklists for the day had been thrown away and indicated that the checklist would only have been kept if the inspection occurred “just before” an accident. Under the applicable standard of review we presume that the evidence that the manager was not at the restaurant at the time was true and we disregard the manager’s testimony that he personally inspected the restroom and found it to be dry twenty minutes before the accident.

For all of the above reasons, plaintiff adduced sufficient evidence to create a question of fact for the jury on the issue of constructive notice. The trial court did not err in denying the motions for directed verdict and judgment notwithstanding the verdict.

The judgment of the trial court is affirmed.

ROBERT G. DOWD, Jr., J. and SHERRI B. SULLIVAN, J. concur.


text:
    A & J.G., INC., Appellant, v. Harry EGGLESTON, Eagle Eye Care Inc., and Cosmetic Laser Center of Creve Coeur, L.L.C., Respondents.
    No. ED 76712.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 2, 2000.
    Michael B. Stern, Clayton, for appellant.
    Gregory P. White, Clayton, for respondent.
    Before RICHARD B. TEITELMAN, P.J., CLIFFORD H. AHRENS and LAWRENCE E. MOONEY, JJ.
   ORDER

PER CURIAM.

A & JG Inc. appeals the trial court’s judgment denying it relief on its breach of contract claim against Harry Eggleston, et al. We find the judgment is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. Murphy v. Carrón, 5B6 S.W.2d 30 (Mo. banc 1976).

An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order.

We affirm pursuant to Rule 84.16(b)(1).


text:
    Steven DUNCAN, Respondent, v. DIRECTOR OF REVENUE, Appellant.
    No. ED 76733.
    Missouri Court of Appeals, Eastern District, Division One.
    May 2, 2000.
    Jeremiah W. (Jay) Nixon, Atty. Gen., James A. Chenault, III, Sp. Asst. Atty. Gen., Jefferson City, for appellant.
    Mark S. Vincent, Union, for respondent.
    Before: GARY M. GAERTNER, P.J. and PAUL J. SIMON and JAMES R. DOWD, JJ.
   OPINION

PER CURIAM.

The Director of Revenue (Director) appeals from the judgment reinstating the driving privileges of Steven Duncan (Driver). We reverse and remand.

Director suspended the driving privileges of Driver pursuant to section 302.505, RSMo Cum.Supp.1999, after he was arrested for driving while intoxicated in Franklin County. Driver sought an administrative hearing and the suspension was upheld. Driver then filed a petition for a trial de novo in the Franklin County Circuit Court pursuant to section 302.535, RSMo Cum.Supp.1999.

At the trial, the Director offered the testimony of the arresting officer, Deputy Sheriff Charles Subke. Subke testified that on November 23, 1998, he responded to a domestic call in Villa Ridge at the residence of Cindy Duncan, Driver’s wife. She and Driver were separated and in the process of getting a divorce. She told Subke that she saw Driver leaving her house at a high rate of speed when she arrived home. She did not have an order of protection against Driver and there had been no contact between them. She was upset, however, that he had been at her house. Although no crime had been committed, Subke decided to contact Driver to get his side of the story and he went to Driver’s home. Driver was not at home, but his son told Subke that he had left in a blue Chevy Suburban. The son also told Subke that Driver had been drinking a little. When he left the residence, Subke saw Driver’s blue Chevy Suburban driving east on Highway AT in Franklin County. Subke stopped Driver. Subke admitted that he had no probable cause to stop Driver and did not believe he had committed any crime.

"When Subke approached the vehicle, he noticed that Driver’s eyes were glassy and he smelled a moderate odor of intoxicants coming from him. Driver agreed to take field sobriety tests. Based on his performance on those tests, Subke believed Driver was intoxicated and arrested him for driving while intoxicated. He transported him to the Pacific Police Department where another officer performed a breathalyzer test.

After Subke’s testimony, but before the State had concluded its case, the court interrupted the evidence to find that the Director had not shown Subke had either probable cause or reasonable suspicion to stop Driver. As a result, the court entered its judgment in favor of Driver, ordering the Director to reinstate his driving privileges. Director now appeals.

In his sole point on appeal, the Director contends the trial court erred in setting aside the suspension of Driver’s driving privileges because “it was not necessary to establish that the initial stop was proper, in that the statute requires no such showing and the ‘exclusionary rule’ does not apply to civil proceedings.” We agree.

Appellate review of this case is governed by Murphy v. Carrón, 586 S.W.2d 80, 32 (Mo. banc 1976). We must affirm the decision of the trial court unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Id.

In Riche v. Director of Revenue, 987 S.W.2d 331 (Mo. banc 1999), the Missouri Supreme Court addressed this precise issue. In that case, Riche appealed from the suspension of his driving privileges, arguing that there was no probable cause or reasonable suspicion for the initial stop of him. Id. at 332. The Supreme Court rejected his argument, concluding the exclusionary rule is inapplicable in civil driv-¿r’s license suspension and revocation proceedings. Id. at 335-36. The Court stated:

As set forth above, neither section 302.505.1 nor the constitutional provisions upon which Riche relies require that the arresting officer’s initial stop be based upon probable cause.
... the costs of excluding unlawfully seized evidence in a proceeding pursuant to section 302.505 outweigh the potential benefits of applying the exclusionary rule.

Id. at 336; See also, Gordon v. Director of Revenue, 896 S.W.2d 737, 740 (Mo.App. E.D.1995).

Therefore, the Director does not have the burden of showing the lawfulness of or probable cause for a stop in order to revoke or suspend driving privileges under section 302.500-302.540. As a result, the trial court erroneously declared and applied the law in holding otherwise. Point granted.

We reverse and remand the cause for additional proceedings in accordance with this opinion.


text:
    Keyran SWIMS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. ED 76755.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 2, 2000.

      Nancy L. Vincent, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Karen Pope Butler, Asst. Atty. Gen., Jefferson City, for respondent.
    Before RICHARD B. TEITELMAN, P.J., CLIFFORD H. AHRENS and LAWRENCE E. MOONEY, JJ
   ORDER

PER CURIAM.

Keyran Swims (Movant) appeals from the denial of his Rule 29.15 motion after an evidentiary hearing ordered by remand in State v. Srnms, 966 S.W.2d 368 (Mo.App. E.D.1998). We have reviewed the briefs of the parties and the record on appeal and conclude the trial court’s determination is not clearly erroneous. Rule 29.15(j)(1995). An extended opinion would have no prece-dential value. We have, however, provided a memorandum for the use of the parties only setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


text:
    Charles U. BROWN, Jr. and James A. Ryan, Plaintiffs/Respondents, v. Moumen KUZIEZ, Defendant/Appellant.
    No. ED 76759.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 2, 2000.
    Alan J. Baker, St. Louis, for appellant.
    Edward M. Roth, St. Louis, for respondent.
    Before WILLIAM H. CRANDALL, Jr., P.J., MARY K. HOFF, J. and JAMES A. PUDLOWSKI, Sr. J.
   ORDER

PER CURIAM.

Defendant, Moumen Kuziez, appeals from the judgment denying his motion to set aside a default judgment. No error of law appears and an opinion would have no precedential value. However, the parties have been provided with a memorandum for their information only, setting forth the reasons for this order.

The judgment is affirmed. Rule 84.16(b).