author: BOOKER T. SHAW, Judge.

text:
    Thomas P. DUNN, Appellant, v. ENTERPRISE RENT-A-CAR COMPANY, Respondent.
    No. ED 83240.
    Missouri Court of Appeals, Eastern District, Division One.
    April 12, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 2, 2005.
    Application for Transfer Denied Sept. 20, 2005.

      Jerome J. Dobson, Matthew John Ghio, St. Louis, MO, for appellant.
    Michael A. Kahn, Julie M. Kennedy, Andrew Davis, San Francisco, CA, Gordon L. Ankney, St. Louis, MO, for respondent.
   BOOKER T. SHAW, Judge.

Thomas P. Dunn (“Dunn”) appeals from the trial court’s judgment granting Enterprise Rent-A-Car Company’s (“Enterprise”) motions for directed verdict on Dunn’s claim that he was wrongfully discharged for refusing to violate the law or a clear mandate of public policy, and on his claim that he was wrongfully discharged in violation of public policy for reporting conduct by Enterprise that he reasonably believed violated federal securities laws. Dunn also appeals from the trial court’s judgment granting Enterprise’s motion for judgment notwithstanding the verdict or in the alternative, for a new trial, after the jury returned a verdict of $4,000,000 in favor of Dunn on his claim that he was wrongfully discharged in violation of public policy for reporting Enterprise’s illegal business practices in Missouri and other states. We reverse and remand in part, and affirm in part.

In reviewing a trial court’s judgment granting a motion for directed verdict, we must determine whether the plaintiff made a submissible case, i.e., whether the plaintiff introduced substantial evidence at trial that tends to prove the essential facts for his or her recovery. Wright v. Over-the-Road and City Transfer Drivers, Helpers, Dockmen and Warehousemen, 945 S.W.2d 481, 489 (Mo.App.W.D.1997). We view all the evidence in the light most favorable to the plaintiff, giving him or her the benefit of all reasonable inferences, and disregarding the defendant’s evidence except to the extent that it aids the plaintiffs case. Id. “There is a presumption in favor of reversing a trial court’s grant of a motion for directed verdict unless, upon consideration of the facts most favorable to the plaintiff, ‘those facts are so strongly against the plaintiff as to leave no room for reasonable minds to differ as to a result.’ ” Id. (quoting Friend v. Holman, 888 S.W.2d 369, 371 (Mo.App. W.D.1994)).

Viewing the evidence in the light most favorable to Dunn, we find as follows: Dunn began working for Enterprise in 1986 as an accountant. In early 1993, Dunn became Enterprise’s corporate comptroller and an officer of the company. In 1994, Dunn earned Vice-President officer level status as corporate comptroller, where he remained until his termination on January 4, 2001. During the time Dunn was employed by Enterprise, he always received positive performance reviews.

Dunn testified at trial that as the company’s comptroller, he certified each year that the company’s financial records were prepared in accordance with generally accepted accounting principles (“GAAP”). It would have also been Dunn’s responsibility as corporate comptroller to certify that the company’s financial statements were prepared in accordance with GAAP for an initial public offering (“IPO”). Dunn reported to John O’Connell (“O’Connell”), Enterprise’s Chief Financial Officer, as corporate comptroller. O’Connell reported to Enterprise’s President and Chief Executive Officer, Andy Taylor.

Enterprise is a privately held company and the majority of the company is owned by the Taylor family. In May 1998, O’Connell directed Dunn to begin investigating issues to enable Enterprise to prepare for an IPO. Dunn testified that Enterprise’s senior management received high cash compensation and the company could not go public with such high levels of cash compensation. Dunn worked on the issue of executive compensation for an IPO for over a year. Dunn recommended that Enterprise use stock options as a substitute for cash to address the compensation issue, which the company began doing in 1999.

In preparation for the IPO, Dunn began to take a closer look at Enterprise’s financial statements and business practices. Some of these practices included the imposition of a surcharge on daily rental customers, billing customers for damages to rental vehicles and selectively licensing its vehicles in certain states. Dunn testified that he spoke to upper management about concerns he had relating to these practices, but it was explained to him that Enterprise did not wish to make changes.

Another issue of concern in preparation for the IPO was the rate of depreciation Enterprise used on its vehicles. Dunn testified Enterprise purchased its vehicles and depreciated them at the rate of 2% per month. He also testified, however, that this depreciation rate overstated the real depreciation of Enterprise’s rental vehicles and while this was considered acceptable for a privately held company, a depreciation rate of 2% for a publicly held company was a violation of GAAP. Dunn testified that if Enterprise were to go public with the IPO, GAAP would require that Enterprise lower its depreciation rate to no more than 1.5% per month.

In June 1999, Andy Taylor invited Dunn to a company strategic planning meeting where the company’s investment banker gave a presentation suggesting that if the company went public, it would have to reduce its depreciation rate from 2% to 1.5%. Dunn testified that Jack Taylor, Enterprise’s founder, was openly opposed to this suggestion. Shortly after this meeting, Dunn approached O’Connell and told him he agreed with the investment banker that Enterprise’s depreciation rate would have to be decreased to 1.5% if they went public. He also told O’Connell the U.S. Securities and Exchange Commission (“SEC”) would likely require Enterprise to report its retail car sales as a gross revenue figure and as a separate line of business for SEC purposes. O’Connell told him that the Taylors were not going to lower the company’s depreciation rate. Dunn subsequently received a warning at work and was placed on probation until November 1999. Dunn also testified that after completing this probationary period, Andy Taylor told O’Connell that Dunn could stay with Enterprise “as long as [he] behaved.”

During this same time period, Dunn was assigned responsibilities relating to the IPO, including whether the company would have to “gross up” its retail car sales operations and whether it would have to do “segment reporting.” As a private company, Enterprise’s financial statements disclosed only the net revenues generated from retail car sales, and not the gross revenues generated from those sales. This permitted Enterprise the potential to reflect a higher level of profit on its statements. As Dunn explained, by grossing up Enterprise’s retail car sales operations, Enterprise would have to show the revenue generated from such sales on the revenue portion of the income statement, and show the cost of sales for that revenue item in the cost of sale section of the statement. Therefore, all the revenues and costs of sale would be presented in the statement. In addition, as a private company, Enterprise’s financial statements did not separately set out its financials for its three lines of business: car sales, leasing and daily rentals. Dunn told O’Connell he believed Enterprise would be required to gross up retail car sales and do segment reporting in connection with the IPO. O’Connell told Dunn that senior management did not want to do this. Dunn was then assigned the responsibility of researching and determining whether Enterprise could avoid grossing up retail car sales and segment reporting, and whether it would have to lower its depreciation rate to 1.5% for the IPO. Dunn reiterated to O’Connell on several occasions that Enterprise’s depreciation rate of 2% was unrealistic and that 1.5% was the highest rate Enterprise could be able to use for the IPO.

In order for a company to offer stock to the public, it must file a Form S-l with the SEC. With respect to the Form S-l, as corporate comptroller, Dunn testified he was responsible for preparing Enterprise’s financial statements in accordance with GAAP. The financial statements would be provided to and audited by Enterprise’s auditor, Ernst & Young. During the audit process, Dunn and other senior managers would be asked to sign a management representation letter, certifying that the financial statements were prepared according to GAAP. Ernst & Young would then issue an audit opinion letter attached to the Form S-l, stating that the financial statements were prepared according to GAAP. Dunn testified that Ernst & Young would depend and rely upon Enterprise’s representations in certifying to the SEC that Enterprise’s financial statements were prepared according to GAAP.

Enterprise established October 27, 2000 as the target date for filing the Form S-l. Dunn and his staff prepared memoranda known as “White Papers” setting forth his department’s recommendations and conclusions regarding the IPO accounting issues. Dunn concluded Enterprise would have to lower its depreciation rate on daily rental vehicles to 1.5%. In subsequent documents, Dunn continued to urge Enterprise to alter its accounting methods in the areas of depreciation and segment accounting. Dunn subsequently learned the White Papers were rewritten without his knowledge or approval and set forth different accounting conclusions. In October 2000, Dunn learned Enterprise extended its target date for filing the Form S-l from October 27, 2000, to January or February of 2001.

Shortly after this postponement, Dunn testified he was excluded from a presentation O’Connell made to corporate officers on the issue of depreciation. In November 2000, O’Connell issued a memorandum announcing Enterprise was changing its depreciation rate from 2% to a flat rate of 1.7%, which Dunn believed was not consistent with GAAP. In December 2000, O’Connell made a presentation to Enterprise’s Board of Directors regarding the IPO. O’Connell told the Board that Enterprise was thinking of going forward with the IPO in the Spring of 2001. On January 4, 2001, Dunn was terminated from his employment at Enterprise. Dunn filed his petition for wrongful discharge in the Circuit Court of St. Louis County on May 3, 2001.

This ease went to trial on March 13, 2003. After Dunn rested his case, Enterprise moved for a directed verdict with respect to Dunn’s claims that he was wrongfully terminated for refusing to commit an illegal act and for blowing the whistle on Enterprise’s alleged illegal conduct. The trial court initially denied Enterprise’s motions. Several days later, during Enterprise’s presentation of its case, Enterprise renewed its motions for directed verdict on these claims. The trial court reversed its previous rulings and granted Enterprise’s motions for directed verdict. The case was then only submitted to the jury on Dunn’s whistleblowing claim regarding Enterprise’s alleged illegal business practices. The jury returned a verdict in favor of Dunn in the amount of $4,000,000. Enterprise then filed its motion for JNOV and motion for new trial. The trial court granted Enterprise’s motion for JNOV and in the alternative, motion for new trial. This appeal follows.

In his first point on appeal, Dunn argues the trial court erred in granting Enterprise’s motion for directed verdict on his claim that he was wrongfully discharged in violation of public policy for refusing to perform an illegal act. Dunn contends he presented sufficient evidence to make a submissible case that he was wrongfully terminated because he refused to prepare financial statements for Enterprise’s proposed IPO that were not in accordance with GAAP, and which he reasonably believed would violate SEC regulations.

Generally, an employee who does not have a contract which contains a statement of duration is an employee at-will and may be discharged at any time, with or without cause, and the employer will not be liable for wrongful discharge. Luethans v. Washington Univ., 894 S.W.2d 169, 172 (Mo. banc 1995). However, Missouri courts have recognized public policy exceptions to the employment at-will doctrine in Boyle v. Vista Eyewear, Inc., 700 S.W.2d 859 (Mo.App. W.D.1985). See Porter v. Reardon Mach. Co., 962 S.W.2d 932, 936 (Mo.App. W.D.1998). The public policy exception to the at-will employment doctrine “provides that an at-will employee who has been discharged by an employer in violation of a clear mandate of public policy has a cause of action against the employer for wrongful discharge.” Boyle, 700 S.W.2d at 871. Public policy “finds its sources in ... the letter and purpose of a constitutional, statutory or regulatory provision or scheme....” Id.

An employee has a cause of action for wrongful discharge if he or she was discharged for: “(1) refusing to perform an illegal act or an act contrary to a strong mandate of public policy; (2) reporting wrongdoing or violations of law or public policy by the employer or fellow employees to superiors or third parties; (3) acting in a manner public policy would encourage ...; or (4) filing a workers’ compensation claim.” Porter, 962 S.W.2d at 935-36. In order to make a submissible case for wrongful discharge based upon the first public policy exception listed above, that the employee was discharged for refusing to perform an illegal act or an act contrary to a strong mandate of public policy, the plaintiff must demonstrate the “conduct required of him by the employer would have amounted to a violation of a statute, constitutional provision or regulation ..., and also that his discharge was attributable to a refusal to perform the unlawful act....” Crockett v. Mid-America Health Services, 780 S.W.2d 656, 658 (Mo.App. W.D.1989).

In the case before us, we must determine whether Dunn made a submissi-ble case on his claim that he was wrongfully discharged in violation of public policy for refusing to perform an illegal act or an act contrary to a clear mandate of public policy. Enterprise argues it violated no law and did not request Dunn to violate any law, and therefore Dunn failed to make a submissible case on this cause of action.

Dunn relies upon SEC Regulation S-X, 17 C.F.R. Part 210, which sets forth the form, content of, and requirements for financial statements required to be filed with the SEC pursuant to the Securities Act of 1938, 15 U.S.C. § 77a et seq., and the Securities Exchange Act of 1934, 15 U.S.C. § 78a et seq., to support his claim that he refused to violate the law or a clear mandate of public policy. The trial court’s judgment granting Enterprise’s motion for directed verdict on Dunn’s claim that he was discharged for refusing to violate the law was based upon its belief that any action Dunn refused to perform could not have violated any law. We find the trial court’s judgment in this respect erroneous.

Before a private company can offer securities for sale on a public stock exchange, it must file certain documents with the SEC, including the Form S-l and financial statements that have been prepared in accordance with SEC regulations. See 17 C.F.R. Part 229 (Regulation S-K); 17 C.F.R § 239.11 (Form S-l). Regulation S-X requires that financial statements be prepared in accordance with GAAP, and statements not prepared in accordance with GAAP “will be presumed to be misleading or inaccurate.... ” 17 C.F.R. § 210.4-01(a)(l). As Enterprise’s corporate comptroller and chief accountant, Dunn testified he was responsible for preparing its financial statements, which would have included the financial statements attached to the Form S-l. Dunn presented evidence at trial that the accounting methods Enterprise directed him to use in financial statements related to its IPO were not in accordance with GAAP. Dunn also presented evidence at trial to establish that he refused to comply with Enterprise’s instructions to use improper accounting methods to prepare its financial statements, and that he was terminated as a result of this refusal.

Although the actions Dunn was directed to perform did not ultimately violate the law because Enterprise postponed its IPO, we believe Dunn should still be protected by the public policy exceptions to the employment at-will doctrine for his refusal to perform those actions. While no Missouri case has directly addressed this issue and set of factual circumstances, the Illinois Court of Appeals in Johnson v. World Color Press, Inc., 147 Ill.App.3d 746, 101 Ill.Dec. 251, 498 N.E.2d 575 (1986), has, and we find its analysis and holding instructive here.

In Johnson, the plaintiff was the senior vice-president and chief financial officer of a privately owned subsidiary of a publicly-traded company. Id. at 576. He was terminated by the company and subsequently filed a petition for retaliatory discharge alleging he was terminated due to his opposition to certain accounting practices of the company which he believed violated federal securities laws. Id. Specifically, the plaintiff alleged certain company accounting practices did not conform with GAAP and their effect was to overstate the income of the company and to inflate the company’s asset valuation. Id. at 577. The plaintiff specifically relied on Regulation S-X. Id. at 580.

The Illinois court acknowledged the tort of retaliatory discharge as an exception to the general at-will employment doctrine and that a cause of action for retaliatory discharge may be brought by a plaintiff when he or she is terminated “in violation of a clearly mandated public policy.” Id. at 576. The court concluded that this mandate could be national in its scope and the Securities Act of 1933 and the Securities Exchange Act of 1934 “establish a clearly mandated public policy.” Id. at 576-77. The court reasoned, “[t]he Securities Act of 1933 ... was designed to provide investors with full disclosure of material information concerning public offerings of securities in commerce, to protect investors against fraud, and to promote ethical standards of honesty and fair dealing.” Id. at 577. It also found the Securities Exchange Act of 1934 “was intended principally to protect investors against manipulation of stock prices through regulation of transactions upon securities exchanges and in over-the-counter markets, and to impose regular reporting requirements on companies whose stock is listed on national securities exchanges.” Id. The court noted, “public policy favors full disclosure, truthfulness and accuracy in the financial reports made by businesses to the government and to the public, and that an employee who voices objection to practices which he reasonably believes violate this policy should be protected from being discharged as a result of such objection.” Id. at 578. The court ultimately reversed and remanded the trial court’s judgment dismissing the plaintiffs petition for retaliatory discharge because the plaintiff sufficiently alleged he was discharged in retaliation for his actions, and his termination was in violation of a clearly mandated public policy. Id. at 580.

We agree with the court’s reasoning in Johnson that the Securities Act of 1933 and the Securities Exchange Act of 1934 “establish a clearly mandated public policy” requiring companies who seek to offer securities on a public stock exchange to provide full financial disclosures to inform and protect future investors. See id. at 576-78. Similarly, we conclude that an employee who is terminated from his or her employment for objecting to practices he or she reasonably believes violate this policy, such as Dunn in our case, should be protected from termination. See id. at 578.

The defendants in the Johnson case proceeded to make several arguments, similar to Enterprise in our case, contending that the plaintiff did not make a submissible case for retaliatory discharge. We will address two of these arguments below as they are instructive to our analysis and holding.

First, the defendants in Johnson argued the plaintiff failed to plead facts that showed an actual violation of federal securities laws. Id. The court held “a plaintiff attempting to state a cause of action for retaliatory discharge after being fired for reporting possible illegal activity need not allege or prove conclusively the law has been violated in order to state a cause of action.” Id. (emphasis added). The court further noted that an employee who has a reasonable belief that illegal activity is taking place should be able to report such belief to his or her superiors without fear of termination. Id.

As in Johnson, under the circumstances of this case, where Dunn is alleging a cause of action for wrongful discharge after being terminated for refusing to perform what he reasonably believed to be illegal conduct or conduct against a clear mandate of public policy, we find it was not necessary for him to “allege or prove conclusively the law has been violated in order to state a cause of action.” Id. This is particularly true where Dunn’s refusal may have been one reason, if not one of the primary reasons, that Enterprise decided to extend the deadline for the IPO.

Additionally, Dunn testified the reason he refused to prepare the financial statements contrary to GAAP was because he was attempting to stop Enterprise’s efforts to submit unlawful documents with respect to its IPO. Because he may have been instrumental in helping to prevent what he reasonably believed to be an unlawful act, he should be protected by law for his efforts. It is illogical under this set of circumstances that the public policy exception to the employment at-will doctrine would fail to protect Dunn from termination of his employment because Enterprise ultimately did not complete the alleged unlawful act.

The defendants in Johnson also argued that federal securities laws do not apply to the company because it is not a publicly-owned company. Id. at 579. The court found, however, that it was reasonable for the plaintiff to believe that improper accounting entries in the financial statements of the privately-held company could be incorporated into and affect the financial statements of the publicly held parent company and could possibly mislead investors and place the parent company in violation of the securities laws. Id. The court held the “plaintiff should not be charged with knowing conclusively whether the securities laws have been violated, but rather an allegation that he reasonably believed the complained of practices might be illegal was sufficient.” Id.

We agree with the court’s reasoning in Johnson and find this argument, also made by Enterprise, equally unpersuasive. Similar to the plaintiff in Johnson, Dunn reasonably believed, based upon the evidence presented, that financial statements prepared by him, using improper accounting methods would be incorporated into the registration statement that Enterprise was planning to file with the SEC in connection with its IPO. At the time Dunn refused to prepare the financial statements, Enterprise had a deadline for filing its registration statement and was taking the necessary steps to meet this deadline. Dunn should not be denied protection under the public policy exception to the employment at-will doctrine for refusing to perform an illegal act or act contrary to a clear mandate of public policy simply because Enterprise decided to postpone the IPO and not complete its alleged unlawful act.

Viewing the evidence in the light most favorable to Dunn, we find Dunn presented sufficient evidence at trial that the conduct he was asked to engage in with respect to Enterprise’s financial statements in preparation for the IPO would have been in violation of federal securities regulations and a clear mandate of public policy as enunciated in those regulations. Dunn also presented sufficient evidence at trial that linked his termination from Enterprise with his failure to perform this unlawful conduct. Because we find Dunn made a submissible case on this cause of action, the trial court erred in granting a directed verdict on this claim. We reverse and remand this point for further proceedings consistent with this opinion. Point I is granted.

In his second point on appeal, Dunn argues the trial court erred in granting Enterprise’s motion for directed verdict on his claim that he was wrongfully discharged in violation of public policy for blowing the whistle on Enterprise for attempting to use accounting methods in connection with its proposed IPO that were not in accordance with GAAP. Dunn argues public policy encourages employees to report suspected illegal conduct before it occurs, and Dunn reasonably believed that Enterprise would have violated federal laws and regulations by submitting financial statements to the SEC that were prepared using improper accounting methods.

As already discussed above in our analysis of Dunn’s first point on appeal, we review the trial court’s grant of Enterprise’s motion for directed verdict to determine whether Dunn made a submissible case. See Wright, 945 S.W.2d at 489.

In this point, Dunn claims he made a submissible case under the second public policy exception to the employment at-will doctrine, which requires the employee, in order to have a cause of action under this exception, to report “serious misconduct that constitutes violations of the law and of such well established and clearly mandated public policy....” Boyle, 700 S.W.2d at 878. The trial court appears to have granted Enterprise’s motion for directed verdict on this claim based on its belief that the whistleblower exception to the employment at-will doctrine requires proof that the violation of law or clear mandate of public policy had already been committed at the time the employee reports the conduct. We agree with Dunn that this narrow interpretation of the law is inconsistent with the purpose of public policy.

The essential issue before us here is whether an employee can make a submissi-ble case for wrongful discharge on the whistleblower exception to the employment at-will doctrine when he or she is terminated for reporting in good faith that his or her employer is about to violate the law. We have found no Missouri caselaw directly on point. Public policy does, however, encourage employees to report suspected wrongdoing by co-workers. See Brenneke v. Department of Missouri, 984 S.W.2d 134, 138-39 (Mo.App. W.D.1998); Faust v. Ryder Commercial Leasing & Serv., 954 S.W.2d 383, 390-91 (Mo.App. W.D.1997). Public policy would certainly not be served by requiring an employee to wait until his or her employer completes the unlawful act before reporting it and before being protected by the whistleblower exception to the employment at-will doctrine.

Here, merely because Enterprise decided to postpone its IPO should not diminish Dunn’s claim that he was terminated from his employment for reporting Enterprise’s accounting practices that were not in compliance with federal securities regulations. Even though Enterprise’s actions ultimately did not violate federal securities regulations because it did not file the necessary IPO documents with the SEC, Dunn could still demonstrate at trial that he had a reasonable belief Enterprise would have violated securities laws by filing financial statements with the SEC that were not prepared according to GAAP, and that Enterprise intended to do so promptly. See Johnson, 101 Ill.Dec. 251, 498 N.E.2d at 579 (holding the “plaintiff should not be charged with knowing conclusively whether the securities laws have been violated, but rather an allegation that he reasonably believed the complained of practices might be illegal was sufficient.”); McQuary v. Bel Air Convalescent Home, Inc., 69 Or. App. 107, 684 P.2d 21, 24 (1984) (finding “the social harm from reporting in good faith a complaint that may turn out, after investigation, to be unfounded is potentially far less than the harm of not reporting a well-founded complaint for fear of the consequences.”).

Viewing the evidence in the light most favorable to Dunn, we find he presented sufficient evidence at trial to make a sub-missible case on his claim that Enterprise terminated his employment for reporting conduct by it that he reasonably believed would have violated federal securities regulations. We reverse and remand the trial court’s judgment granting Enterprise’s motion for a directed verdict on this claim for further proceedings consistent with this opinion. Point II is granted.

In his third point on appeal, Dunn argues the trial court erred in granting Enterprise’s motion for judgment notwithstanding the verdict (“JNOV”) on his claim that he was discharged in violation of public policy for blowing the whistle on Enterprise for engaging in illegal business practices. Specifically, Dunn argues he was not required to prove the conduct he reported violated any statute, regulation or constitutional provision, and he proved that he reported suspected illegal activity to the appropriate internal authorities at Enterprise.

Our review of the trial court’s judgment granting a motion for JNOV is essentially the same as our standard of review of the trial court’s granting of a motion for directed verdict. Giddens v. Kansas City S. Ry. Co., 29 S.W.3d 813, 818 (Mo. banc 2000), cert. denied, 532 U.S. 990, 121 S.Ct. 1644, 149 L.Ed.2d 502 (2001). We review the trial court’s grant of a motion for JNOV to determine whether the plaintiff made a submissible case. Leo Journagan Const. Co., Inc. v. City Utilities of Springfield, Mo., 116 S.W.3d 711, 723 (Mo.App. S.D.2003). In determining whether a submissible case was made, we view the evidence in the light most favorable to Dunn, giving him the benefit of all reasonable inferences that can be drawn from the evidence, disregarding all unfavorable evidence and inferences. Id. “There is a presumption that favors reversal of a JNOV granted to a defendant, unless the favorable evidence and inferences are so strongly against the plaintiff as to leave no room for reasonable minds to differ as to the result.” Id. We will affirm the trial court’s judgment if it is supported by any of the reasons set forth in defendant’s motion for JNOV. Faust, 954 S.W.2d at 388.

In this point, Dunn is again claiming he made a submissible case under the second public policy exception to the employment at-will doctrine, for reporting “serious misconduct that constitutes violations of the law and of such well established and clearly mandated public policy....” Boyle, 700 S.W.2d at 878.

In order for Dunn to make a submissible case on his claim of wrongful discharge for reporting Enterprise’s alleged unlawful conduct, Dunn was required to identify a law or clear mandate of public policy that he believed Enterprise violated or would violate with respect to its automobile licensing, sales tax and surcharge practices. Id. While we agree with Dunn that in order to make a submissible case on this claim he was not required to prove an actual violation of law, he was still required to cite some legal authority for his belief that such conduct by Enterprise was unlawful or contrary to a clear mandate of public policy. Unlike the claims Dunn asserts in his first and second points on appeal, where he relies on federal securities regulations, the record before us reflects that Dunn failed to cite any such law or clear mandate of public policy with respect to this claim. As such, we agree with the trial court’s judgment that Dunn failed to make a submissible case on this cause of action and affirm its grant of Enterprise’s motion for JNOV. Point III is denied.

In his fourth and final point on appeal, Dunn argues the trial court erred in alternatively granting Enterprise’s motion for new trial on his claim that he was wrongfully discharged in violation of public policy for blowing the whistle on Enterprise for engaging in illegal business practices. In its judgment granting Enterprise’s motion for JNOV on this claim, the trial court granted in the alternative Enterprise’s motion for new trial if on appeal, we reversed its grant of the JNOV. Because we are affirming the trial court’s grant of JNOV on this claim as discussed in our analysis above of Dunn’s third point, it is no longer necessary for us to address this point on appeal. Point IV is denied.

REVERSED AND REMANDED IN PART; AFFIRMED IN PART.

GEORGE W. DRAPER III, P.J., concurs.

SHERRI B. SULLIVAN, J., concurs.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STE. GENEVIEVE LAND INVESTORS, INC., Plaintiff/Respondent, v. Phillip H. TUCKER, William T. Tucker, and Verna Tucker, Defendants/Appellants.
    No. ED 83622.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 12, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 2, 2005.
    Application for Transfer Denied Sept. 20, 2005.
    Theordore D. Dearing, Clayton, MO, for appellants.
    P. Daniel Billington, Union, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Phillip H. Tucker, William T. Tucker, and Verna Tucker (collectively referred to herein as the “Tuckers”) appeal the judgment of the trial court in favor of Ste. Genevieve Land Investors, Inc. (“SGLI”) on its petition for unlawful detainer. The Tuckers claim that the trial court erred in finding in favor of SGLI because they did not violate the terms of the lease. Additionally, the Tuckers argue that the trial court erred in finding that the lease was terminated because the forfeiture clause was against public policy. The Tuckers also claim that the trial court improperly awarded SGLI certain damages.

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). The motion of SGLI for attorney’s fees on appeal is denied.


author: LAWRENCE E. MOONEY, Presiding Judge.

text:
    Paul V. HEIDBRINK, Respondent, v. Tim SWOPE, St. Charles County Sheriff, Appellant.
    No. ED 84511.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 10, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 28, 2005.
    Application for Transfer Denied Sept. 20, 2005.
    Joann M. Leykam, St. Charles, MO, for appellant.

      Peter G. Bender, Springfield, MO, for respondent.
   LAWRENCE E. MOONEY, Presiding Judge.

The Sheriff of St. Charles County appeals from the trial court’s judgment, which ordered him to issue a concealable-firearm permit to Paul Heidbrink. Because the trial court erroneously precluded the Sheriff from inquiring into Heidbrink’s criminal convictions and military discharge based on Missouri’s constitutional right to keep and bear arms, we reverse the judgment and remand the cause for further proceedings.

Section 571.090 RSMo.2000, which appears as an appendix to this opinion, establishes certain procedures and requirements necessary to the issuance of a permit to acquire a concealable firearm. The statute provides that an applicant may be disqualified from receiving such a permit by certain circumstances, including certain criminal convictions or a discharge “under dishonorable conditions” from the United States armed forces. Section 571.090.1(1). In March 2003, He-idbrink filed his application with the Sheriff to acquire a concealable-firearm permit. In this application, Heidbrink conceded that he had received a bad-conduct discharge, but denied any felony convictions. Heidbrink appended a note to the application explaining that the discharge had been the product of negotiation between him and the Navy. He claimed that, although he was now ineligible for veteran benefits, he had not been discharged “under dishonorable conditions.” The Sheriff denied Heidbrink’s application. Heidbrink filed an appeal of that denial in small-claims court, which also rejected his application for a concealable-firearm permit. Heidbrink then filed for a trial de novo in the circuit court.

In the circuit-court proceeding, which is the subject of this appeal, the Sheriff served Heidbrink with interrogatories and requests for production and admissions. In this discovery, the Sheriff sought information regarding Heidbrink’s criminal convictions and his military discharge. Heidbrink objected, stating that he was asserting “his right not to be questioned regarding his bearing of arms under Article 1, section 23 of the Missouri Constitution.” The Sheriff filed a motion to compel Heidbrink to respond, which the trial court denied, ruling that the discovery violated Article 1, section 23 because it was an effort to question Heidbrink’s right to keep and bear arms.

At trial, Ann Eichler, the Sheriffs employee who processed Heidbrink’s permit, testified that her research disclosed that Heidbrink had six arrests. She later determined that five of those arrests were resolved at the “misdemeanor level,” but she was unable to determine the disposition of Heidbrink’s 1986 arrest for desertion from the United States Navy. She further testified that her inability to determine this arrest’s disposition was directly attributable to Heidbrink’s refusal to cooperate and submit a request for information to the Navy. When Heidbrink took the stand, the Sheriffs first question was whether Heidbrink had been arrested for desertion in 1986. The trial court sustained Heidbrink’s objection, ruling that “the question is an effort to question the right of [Heidbrink] to keep and bear arms, which Article 1, section 23 says shall not be questioned.” In an offer of proof, the Sheriffs counsel stated that Heidbrink was arrested in 1986 and “the military discharged him under a dishonorable discharge.” Heidbrink was asked no further questions. The trial court then entered judgment for Heidbrink, ruling that no evidence of a statutory disqualification of section 571.090.1 had been admitted. The Sheriff was ordered to issue a concealable-firearm permit to Heidbrink. The Sheriff appeals that judgment.

Analysis

“Unless otherwise defined in the text, words used in the constitution are given their plain and ordinary meaning.” City of Jefferson v. Mo. Department of Natural Resources, 863 S.W.2d 844, 850 (Mo. banc 1993). In our interpretation of statutes, we ascertain “the intent of the legislature by the plain and ordinary meaning of the law.” Elrod v. Treasurer of Mo., 138 S.W.3d 714, 716 (Mo. banc 2004). We will not interpret a statute in such a manner that leads to unreasonable, oppressive, or absurd results. Id. Further, “It is the function of the courts to determine whether a statute purporting to constitute an exercise of the police power has a real and substantial relationship to the protection of the public health, safety, morals or welfare and whether it unjustifiably invades rights secured by the Constitution.” State ex rel. Kansas City, Mo. v. Public Service Commission of Mo., 524 S.W.2d 855, 862 (Mo. banc 1975).

Article 1, section 23 of the Missouri Constitution states “That the right of every citizen to keep and bear arms in defense of his home, person and property, or when lawfully summoned in aid of the civil power, shall not be questioned; but this shall not justify the wearing of concealed weapons.” Although this constitutional provision establishes a right to keep and bear arms, such right is neither absolute nor unconditional. For example, Missouri courts have recognized that Article 1, section 23 does not deprive the legislature of the authority to regulate the time, place, and manner of bearing firearms. City of Cape Girardeau v. Joyce, 884 S.W.2d 33, 34-35 (Mo.App. E.D.1994); see State v. Van Horne, 622 S.W.2d 956, 957 (Mo.1981). In addition, “Numerous jurisdictions have recognized that the constitutional right to keep and bear arms under a state constitution is not absolute and that reasonable regulatory control by the Legislature to promote the safety and welfare of its citizens uniformly has been upheld.” Mosby v. Devine, 851 A.2d 1031, 1044 (R.I. 2004); see 86 A.L.R.4th 931, 1991 WL 741610. To prohibit certain persons who by their previous conduct have demonstrated their unfitness to acquire a concealable firearm is in the interest of the citizens’ safety and welfare and is within the scope of the State’s police power. E.g., Rohrbaugh v. State, 216 W.Va. 298, 607 S.E.2d 404, 412-14 (2004); People v. Blue, 190 Colo. 95, 544 P.2d 385, 391 (1975). Further, requiring persons to obtain a permit is a reasonable method for the State to exercise this police power. See Burton v. Sills, 53 N.J. 86, 248 A.2d 521, 523-24, 530-31 (1968).

Heidbrink acknowledges the constitutionality and reasonableness of a permitting system for weapons. However, he argues that Missouri’s statute, to the extent it requires an applicant to answer questions as to his background, is unconstitutional since such questioning is in derogation of Missouri’s constitutional right to keep and bear arms. However, the question of the statute’s constitutionality is not properly before us. Heidbrink failed to raise this issue at the earliest opportunity and failed to have the trial court rule on the question of the statute’s constitutionality. Sharp v. Curators of the University of Mo., 138 S.W.3d 735, 738 (Mo.App. E.D.2003). In any case, Heidbrink contends, the Sheriff has misconstrued the statute. Heidbrink believes that, once an applicant declares his intent to buy a concealable firearm, the permit must issue, given our Constitution, unless the sheriff can prove, without cooperation from the applicant, a disqualifying circumstance. As a corollary of this contention, Heidbrink posits that the Sheriffs aborted discovery and examination of Heidbrink were unconstitutional. These arguments are meritless for four reasons.

First, the Missouri constitutional provision states that “the right ... to keep and bear arms ... shall not be questioned.” This traditionally worded provision is merely establishing that such right is beyond question. It in no way implies that an applicant shall not be questioned. The interpretation of this provision urged by Heidbrink is contrary to the plain and ordinary meaning of the words of our Constitution.

Second, such interpretation entirely ignores the State’s police power, which is an essential attribute of government. State ex rel. Kansas City, Mo., 524 S.W.2d at 865. The right to keep and bear arms does not trump the State’s police power. Rather, “It is the function of the courts to determine whether a statute purporting to constitute an exercise of the police power has a real and substantial relationship to the protection of the public health, safety, morals or welfare and whether it unjustifiably invades rights secured by the Constitution.” Id. at 862. And Missouri courts have already held that the legislature may reasonably regulate the right to keep and bear arms. Joyce, 884 S.W.2d at 34-35; see Van Horne, 622 S.W.2d at 957. The Sheriff, of course, may then enforce the legislature’s reasonable regulations.

Third, Heidbrink fails to consider the wording of Missouri’s statute, a law whose constitutionality he failed to effectively challenge. Significantly, the statute denominates a person seeking a concealable-firearm permit as an “applicant.” Section 571.090.1. Obviously, an “applicant” is by definition, one who must come forward with information. Further, the legislature mandated that the permit should only issue if all the statements in the application are true. Id. Moreover, the sheriff may require suitable identification from the applicant. Section 571.090.3. Finally, the statute allows for judicial review, with its attendant rights to discovery and examination at trial. Section 571.090.8, .12. Obviously, the legislation mandates the applicant’s cooperation and allows his examination.

Fourth, Heidbrink’s interpretation leads to absurd results. Again, Heidbrink argues that an applicant need only declare his intent to buy a weapon for a permit to issue, unless the sheriff can prove, without any cooperation from the applicant, a disqualifying circumstance. Thus, under He-idbrink’s reading of the statute, an applicant could, for example, refuse to provide information as to his criminal convictions and mental incompetency, and it would be the Sheriffs burden to scour the records of courts, law enforcement agencies, and mental institutions around the country to try to prove the applicant’s disqualifications. Clearly, this interpretation, coupled with Heidbrink’s claimed immunity from discovery and examination at trial, would render the legislature’s attempt at regulation meaningless. Missouri’s Constitution, like the federal constitution, is not a suicide pact. Habitual felons and psychopaths do not enjoy an unfettered constitutional right to obtain weapons without being troubled by questions about their checkered pasts.

Heidbrink’s interpretation of this statute, accepted by the trial court, is untenable. The applicant has a duty to cooperate in the investigation of his fitness to obtain a coneealable-firearm permit. The Sheriff has a right to discovery and examination at trial of an applicant. The trial court’s rulings to the contrary were in error. The judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.

LAWRENCE G. CRAHAN and MARY K. HOFF, JJ., concur.

Appendix

Section 571.090 provides:

1.A permit to acquire a concealable firearm shall be issued by the sheriff of the county in which the applicant resides, if all of the statements in the application are true, and the applicant:

(1) Is at least twenty-one years of age, a citizen of the United States and has resided in this state for at least six months;

(2) Has not pled guilty to or been convicted of a crime punishable by imprisonment for a term exceeding one year under the laws of any state or of the United States other than a crime classified as a misdemeanor under the laws of any state and punishable by a term of imprisonment of two years or less that does not involve an explosive weapon, firearm, firearm silencer or gas gun;

(3) Is not a fugitive from justice or currently charged in an information or indictment with the commission of a crime punishable by imprisonment for a term exceeding one year under the laws of any state or of the United States other than a crime classified as a misdemeanor under the laws of any state and punishable by a term of imprisonment of two years or less that does not involve an explosive weapon, firearm, firearm silencer or gas gun;

(4) Has not been discharged under dishonorable conditions from the United States armed forces;

(5) Is not publicly known to be habitually in an intoxicated or drugged condition; and

(6) Is not currently adjudged mentally incompetent and has not been committed to a mental health facility, as defined in section 682.005, RSMo, or a similar institution located in another state.

2. Applications shall be made to the sheriff of the county in which the applicant resides. An application shall be filed in writing, signed and verified by the applicant, and shall state only the following: the name, Social Security number, occupation, age, height, color of eyes and hair, residence and business addresses of the applicant, the reason for desiring the permit, and whether the applicant complies with each of the requirements specified in subsection 1 of this section.

3. Before a permit is issued, the sheriff shall make only such inquiries as he deems necessary into the accuracy of the statements made in the application. The sheriff may require that the applicant display a Missouri operator’s license or other suitable identification. The sheriff shall issue the permit within a period not to exceed seven days after submission of the properly completed application excluding Saturdays, Sundays or legal holidays. The sheriff may refuse to issue the permit if he determines that any of the requirements specified in subsection 1 of this section have not been met, or if he has reason to believe that the applicant has rendered a false statement regarding any of the provisions in subsection 1 of this section. If the application is approved, the sheriff shall issue a permit and a copy thereof to the applicant.

4. The permit shall recite the date of issuance, that it is invalid after thirty days, the name and address of the person to whom granted, the nature of the transaction, and a physical description of the applicant. The applicant shall sign the permit in the presence of the sheriff.

5. If the permit is used, the person who receives the permit from the applicant shall return it to the sheriff within thirty days after its expiration, with a notation thereon showing the date and manner of disposition of the firearm and a description of the firearm including the make, model and serial number. The sheriff shall keep a record of all applications for permits, his action thereon, and shall preserve all returned permits.

6. No person shall in any manner transfer, alter or change a permit, or make a false notation thereon, or obtain a permit upon any false representation, or use, or attempt to use a permit issued to another.

7. For the processing of the permit, the sheriff in each county and the city of St. Louis shall charge a fee not to exceed ten dollars which shall be paid into the treasury of the county or city to the credit of the general revenue fund.

8. In any case when the sheriff refuses to issue or to act on an application for a permit, such refusal shall be in writing setting forth the reasons for such refusal. Such written refusal shall explain the denied applicant’s right to appeal and, with a copy of the completed application, shall be given to the denied applicant within a period not to exceed seven days after submission of the properly completed application excluding Saturdays, Sundays or legal holidays. The denied applicant shall have the right to appeal the denial within ten days of receiving written notice of the denial. Such appeals shall be heard in small claims court as defined in section 482.300, RSMo, and the provisions of section 482.300, 482.310 and 482.335, RSMo, shall apply to such appeals.

9. A denial of or refusal to act on an application for permit may be appealed by filing with the clerk of the small claims court a copy of the sheriffs written refusal and a form substantially similar to the appeal form provided in this section. Appeal forms shall be provided by the clerk of the small claims court free of charge to any person:

[Appeal form]

10. The notice of appeal in a denial of permit appeal shall be made to the sheriff in a manner and form determined by the small claims court judge.

11. If at the hearing the person shows he is entitled to the requested permit, the court shall issue an appropriate order to cause the issuance of the permit. Costs shall not be assessed against the sheriff in any case.

12. Any person aggrieved by any final judgment rendered by a small claims court in a denial of permit appeal may have a trial de novo as provided in sections 512.180 to 512.320, RSMo.

13. Violation of any provision of this section is a class A misdemeanor.

      . We decline to rule on the Sheriff's contention that a “bad-conduct discharge” is a "discharge under dishonorable conditions.” The record is insufficiently developed. Obviously, the record on the time, nature, and circumstances of Heidbrink’s discharge from the Navy and the 1986 arrest may be clarified on remand.

      . To be yet more explicit, the Constitution is stating that the existence of a right to keep and bear arms shall be beyond question. This provision does not suggest that the scope of the right can never be questioned. For again, Missouri courts have held the right is not absolute. Joyce, 884 S.W.2d at 34-35.


text:
    Lonnie SNELLING, Appellant, v. Richard and LaRossa SMITH, Respondents.
    No. ED 85052.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 10, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 18, 2005.
    Application for Transfer Denied Sept. 20, 2005.
    Lonnie Snelling, St. Louis, MO, pro se.
    Richard and LaRossa Smith, St. Louis, MO, pro se.
    Before: CLIFFORD H. AHRENS, P.J., KATHIANNE KNAUP CRANE, J„ and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Lonnie Snelling (“Appellant”) appeals from a dismissal of his claim against Richard and LaRossa Smith (“Respondents”) in the Circuit Court of the City of St. Louis. The claim stems from an automobile accident in 2001 between vehicles owned by Appellant and Respondents. Appellant received a default judgment against Respondents, and sought to execute on said judgment with a lien against real property owned by Respondents and located in the City of St. Louis. Respondents filed a petition for bankruptcy on October 30, 2002. On December 31, 2003, Respondents were granted a discharge of their liability on the debt owed to Appellant. Appellant filed Motions for Sanctions against Respondents, and a request to reinstate lien proceeding against Respondents’ real property on August 16, 2004. On August 24, 2004, the trial court found that the Bankruptcy Order of December 31, 2003 discharged Respondents’ liability on Appellant’s claims against Respondents, and denied Appellant’s Motions for Sanctions against Respondents. On appeal, Appellant argues that the trial court’s findings with respect to dismissal of Appellant’s claim due to lack of jurisdiction was an abuse of the trial court’s discretion and a misapplication of the law.

We have reviewed Appellant’s brief and the record on appeal, and find no error of law. The trial court did not abuse its discretion in dismissing Appellant’s claim for lack of jurisdiction. The judgment is supported by substantial evidence and is not against the weight of the evidence. The judgment is affirmed pursuant to Rule 84.16(b).


author: GLENN A. NORTON, Judge.

text:
    Jennifer ANDERSON, Ron Anderson, Elsie Helstein and Carolyn Neidholdt, Respondents, v. KOHLER COMPANY, Appellant.
    No. ED 83710.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 14, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 18, 2005.
    Application for Transfer Denied Sept. 20, 2005.

      Thomas B. Weaver, Cynthia A. Petracek (co-counsel), Stephen M. Schoenbeck (co-counsel), St. Louis, MO, for appellant.
    Michelle B. O’Neal, Patrick M. Martucci (co-counsel), Joplin, MO, Russell F. Wat-ters (co-counsel) St. Louis, MO, for respondents.
   OPINION

GLENN A. NORTON, Judge.

A jury found Kohler Company liable for the wrongful deaths of Randy and Lois Anderson, apportioned fault amongst Koh-ler, another defendant and the Andersons and awarded compensatory and aggravating circumstances damages against Koh-ler. The trial court granted a new trial based on an evidentiary error and on the excessiveness of the aggravating circumstances damages. Kohler appeals, and we affirm.

I. BACKGROUND

Kohler manufactured the gas-powered generator on the Andersons’ boat, which expelled carbon monoxide through a black iron pipe to the outside of the boat. The inside of the pipe corroded and caused carbon monoxide to leak into the boat cabin, causing the deaths of the Andersons and two of their guests. The Andersons’ relatives (“the plaintiffs”) sued Kohler, claiming that use of black iron for the exhaust pipe was a design defect. The plaintiffs alleged that Kohler failed to adequately warn at the time of sale or after about the risk that the pipe could corrode and cause a carbon monoxide leak. Kohler maintained that the Andersons were partially at fault because either they failed to adequately inspect or maintain the exhaust system or because they knew or should have known that the pipe could leak and that the generator was not reasonably safe to use.

After a four-week trial, the jury returned verdicts in favor of the plaintiffs, apportioning fault for the death of Lois Anderson as follows: 50% to Kohler, 45% to another defendant and 5% to Lois Anderson. For Randy Anderson, the jury apportioned 40% of the fault to Kohler, 30% to the other defendant and 30% to Randy Anderson. Compensatory damages for both deaths were awarded against Kohler and the other defendant totaling $525,950, after reducing to account for the Andersons’ comparative fault. After additional evidence, the jury awarded a total of $25 million dollars in aggravating circumstances damages against Kohler for both deaths. The court entered judgment on these verdicts. Kohler moved for a judgment notwithstanding the verdicts, arguing that the plaintiffs failed to make a submissible case for aggravating circumstances damages. Alternatively, it sought a reduction of the aggravating circumstances damages as excessive under federal law. Kohler did not request a new trial. The plaintiffs did, however, move for a new trial on all claims. They argued, among other things, that the trial court erred by admitting evidence that a guest on the Andersons’ boat had joked about everyone dying from carbon monoxide poisoning.

The court heard arguments on the parties’ post-trial motions. The court granted the plaintiffs’ motion for new trial, concluding that the joke was not relevant and that its admission was prejudicial to the plaintiffs. On its own motion, the court also found that a new trial must be granted for the additional reason that, under Missouri state law, the aggravating circumstances damages were so excessive as to indicate prejudice. The court did not address the federal issues relating to aggravating circumstances damages raised in Kohler’s motion for JNOV and denied that motion as moot. On appeal, Kohler challenges the propriety of granting a new trial and denying its motion for JNOV.

II. DISCUSSION

A. Jurisdiction on Appeal

An order granting a new trial is appealable only by a party aggrieved by that order. Section 512.020 RSMo 2000. The plaintiffs contend that Kohler is not aggrieved because the new trial order had the effect of vacating an adverse judgment against Kohler. When a defendant loses at trial and does not seek a new trial, but the court orders a new trial either on its own motion or on a plaintiffs motion, the defendant may appeal the new trial order. Fields v. Henrich, 112 S.W.3d 50, 53 (Mo.App. W.D.2003) (citing Quinn v. St. Louis Public Service Co., 318 S.W.2d 316, 321 (Mo.1958) and Kirst v. Clarkson Construction Co., 395 S.W.2d 487, 489 (Mo.App.1965)). “The defendant is aggrieved under these circumstances because the new trial order deprived defendant of its attained position in the litigation and of its right to conclude the suit and forever terminate its liability judgment and costs.” Fields, 112 S.W.3d at 53 (internal quotation marks omitted). By not seeking a new trial, the defendant indicates a willingness to let the judgment stand. Id.

When a defendant files no post-trial motions, his preference to conclude the litigation — even with an adverse judgment — is obvious. See Adair County v. Urban, 364 Mo. 746, 268 S.W.2d 801, 805 (1954). Here, Kohler did file post-trial motions, but sought only to have the judgment amended as to aggravating circumstances damages and did not seek a new trial on any issue. This indicates Kohler’s willingness to let the judgment stand at least as to liability and compensatory damages, and the new trial order deprives Kohler of its attained position on those issues. Kohler is, therefore, an aggrieved party, and we have jurisdiction over this appeal. The plaintiffs’ motion to dismiss the appeal is denied.

B. Grant of New Trial Based on Erroneous Admission of Evidence

Marie Setser, a guest on the Andersons’ boat the weekend of their deaths, testified in a deposition that she had had discussions with the Andersons about the dangers of carbon monoxide poisoning in general:

It was a very brief discussion the Saturday that I was there on the boat, and it involved [the Andersons and Robert Stein] and myself.
... And they were working on the air conditioner. And there was air flowing out of the air conditioner. And [Stein] was kneeling on the steps by the air conditioner. And [Stein] was a very — a very joyous person, very happy person. And he made a comment — something to the effect of, Watch, we’re going to sit here and die of carbon monoxide poisoning. And, of course, at that time, it was a joke. You know, it was not even an issue, not even something that you would think about, just one of those things that he said in conversation, laughed, ha, ha, ha. We all cracked up, and basically that was the end of the conversation. They were just trying to get the air conditioner to work.

The plaintiffs’ motion in limine to exclude Setser’s testimony about Stein’s comment was denied. Kohler contends that the court’s later grant of a new trial based on the erroneous admission of this evidence was improper. We disagree.

On a motion for new trial, the trial court may reconsider its rulings on discretionary matters, such as the admissibility of evidence, and may order a new trial if it believes that its discretion was not wisely exercised and that the losing party was thereby prejudiced. See State ex rel. Missouri Highway and Transportation Commission v. Pedroley, 873 S.W.2d 949, 953 (Mo.App. E.D.1994). Our review in these circumstances is limited to determining whether the trial court abused its discretion in finding prejudice. Id. An abuse of discretion occurs when the trial court’s ruling is clearly against the logic of the circumstances before the court and is so arbitrary and unreasonable that it shocks the sense of justice and indicates a lack of careful consideration. Guzman v. Hanson, 988 S.W.2d 550, 554 (Mo.App. E.D.1999). If reasonable people can differ about the propriety of the trial court’s action, then we cannot say that the trial court abused its discretion. Id. We are more liberal in affirming the grant of a new trial than the denial of a new trial. Id.

The parties disagree about the relevance of Setser’s testimony to the issues of comparative fault and proximate cause. “The test for relevancy is whether an offered fact tends to prove or disprove a fact in issue or corroborates other relevant evidence.” Morehouse v. Behlmann Pontiac-GMC Truck Service, Inc., 31 S.W.3d 55, 60 (Mo.App. E.D.2000). We tend to agree with the plaintiffs that this testimony has little probative value to the issues of the Andersons’ awareness — for purposes of rebutting proximate cause or establishing comparative fault — that the generator might leak carbon monoxide. Stein’s comment was just a joke and was not even made in reference to the generator. At most, this evidence tends to show that the Andersons and their guests, who laughed at the joke, were generally aware that they might have been at risk of carbon monoxide poisoning on the boat.

But Setser’s testimony was used to support a defense expert’s theory that the Andersons knew, not just generally about the potential danger of carbon monoxide poisoning from the generator, but specifically that the generator had in fact been leaking carbon monoxide for some time. The expert testified that, in addition to physical evidence that the generator had been overheating, “there was other evidence of leakage that preexisted the evening of the incident.” He referred to Stein’s comment as something he would not expect somebody to be “joking about if carbon monoxide and leaking wasn’t on my brain.” He also referred to the symptoms of carbon monoxide exposure that Setser had experienced after leaving the boat and to the fact that the Andersons had purchased carbon monoxide detectors, which showed they were thinking about carbon monoxide a week before the incident. “So all of these, none of them are conclusive, but in the aggregate they tell me that there was probably a leak going on, that the Andersons •probably hneiv that there was a leak going on, and they’re worried a little bit but they weren’t worried enough about it to get it fixed right.” (emphasis added). Even as part of an “aggregate” of circumstances, Stein’s comment contributed to an unfairly prejudicial portrait of the Andersons as willfully disregarding the fact that lethal carbon monoxide was leaking from their generator. It was within the court’s discretion to conclude that, on balance, the prejudicial impact of this evidence outweighed its limited probative value.

Moreover, none of the other circumstances on which the expert relied or any of the other evidence to which Kohler cites regarding the Andersons’ awareness was of a similar tenor to Setser’s testimony. Evidence that the Andersons had purchased carbon monoxide detectors, that they had been told of another friend’s death by carbon monoxide poisoning caused by running a leaky generator overnight on her boat and that they had been told that salt water affects and corrodes boats and motors all relates to the Andersons’ general awareness of the potential risk of a carbon monoxide leak on their boat. The physical evidence and Set-ser’s symptoms of exposure relate to the fact that the generator had been leaking. But none of this evidence was used — as Setser’s testimony was — to suggest that the Andersons knew that the generator was actually leaking carbon monoxide, did not fix it properly, and instead sat around the boat laughing about how they and their guests might die from carbon monoxide poisoning. Setser’s testimony was not merely cumulative to other evidence.

Although this Court may not have concluded, as the trial court did, that Stein’s comment factored into the jury’s assessment of comparative fault, given the expert’s use of that comment in his portrayal of the Andersons, it certainly could have. “The trial judge sits as an intimate observer and is in the best position to determine the effect admission of evidence has upon the case.” Nguyen By and Through Nguyen v. Haworth, 916 S.W.2d 887, 889 (Mo.App. W.D.1996). Because reasonable people could disagree about whether to order a new trial in this case, we cannot say that the trial court’s ruling was an abuse of discretion. See Guzman, 988 S.W.2d at 554.

If the court’s new trial order can be sustained on any of the grounds specified in the motion for new trial, then we must affirm. In re Care of Coffman, 92 S.W.3d 245, 251 (Mo.App. E.D.2002). A new trial was properly granted on the basis of the erroneously admitted evidence. Point V is denied. As a result, Point I — in which Kohler argues that the order must be set aside because the court did not give notice of its intent to rely on state law as an additional basis for granting a new trial — is denied as moot.

C. Points on Appeal Relating to Aggravating Circumstances Damages

The remaining issues on appeal relate to the propriety of aggravating circumstances damages — namely, whether the plaintiffs made a submissible case for such damages and whether the damages awarded were excessive under federal or state law. Kohler argues that because the plaintiffs did not make a submissible case for aggravating circumstances damages, no new trial should have been ordered despite the evidentiary error. The cases on which Kohler relies to support this argument are not applicable. In Nettie’s Flower Garden, Inc. v. SIS, Inc., this Court found that admission of certain evidence in the plaintiffs negligence case was erroneous and then addressed the submissibility of the negligence claim in deciding whether the evidentiary error warranted reversal of the jury’s verdict for the plaintiff. 869 S.W.2d 226, 230 (Mo.App. E.D.1993). In that case, if there was not a submissible claim for negligence, then the plaintiffs were not entitled to a new trial regardless of any evidentiary error. In Wright v. Over-The-Road and City Transfer Drivers, Helpers, Dockmen and Warehouse-men, the court addressed the submissibility of the sexual harassment claim before it addressed issues relating to the damages awarded on that claim because if the claim was not submissible, then the defendant would be entitled to a judgment notwithstanding the jury’s verdict on that claim and the damages issues would be moot. 945 S.W.2d 481, 498 (Mo.App. W.D.1997). In Community Title Co. v. Roosevelt Federal Savings and Loan Association, following a verdict for the plaintiff, the defendant moved for JNOV or, alternatively, for a new trial. A new trial was granted because the verdict was against the weight of the evidence. But on the plaintiffs appeal, the Court found that the plaintiff failed to make a submissible case, so JNOV was the appropriate remedy and the new trial order was reversed. 796 S.W.2d 369, 371-74 (Mo. banc 1990).

Here, unlike the above cases, Kohler does not challenge the submissibility of the plaintiffs’ claims for liability and compensatory damages. Moreover, submissibility of the claim for aggravating circumstances damages does not affect our review of whether the evidentiary error warranted a new trial on liability and compensatory damages. That is, even if there was not a submissible case for aggravating circumstances damages, a new trial was appropriate based on the evidentiary error. We recognize that the issue of submissibility may recur on retrial. But we are not in a position to speculate about what the evidence on retrial will be or whether it will be sufficient to support submission of a claim for aggravating circumstances damages. We decline to render what would ultimately be an advisory opinion on these issues based on the evidence presented at the first trial. Points II through IV are denied as moot. See Stonger ex rel. Stonger v. Riggs, 85 S.W.3d 703, 709 (Mo.App. W.D.2002) (remand for new trial on instructional error regarding standard of care in negligence case rendered moot propriety of punitive damages instruction).

III. CONCLUSION

The new trial order is affirmed.

CLIFFORD H. AHRENS, J., and NANNETTE A. BAKER, J., concurring.


author: ROBERT G. DOWD, JR., Judge.

text:
    Conrad STROMBERG, et al., Respondents/Cross-Appellants, v. Kevin J. MOORE, et al., Cross/Respondent, and State Bank of Jefferson County, Appellant, and UMB Bank, n.a., and American Family Insurance Company, Respondent.
    No. ED 83912.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 28, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 4, 2005.
    Application for Transfer Denied Sept. 20, 2005.

      Michael A. Campbell, Dawn Ann M. Johnson, St. Louis, MO, for Appellant.
    Gregory D. O’Shea, St. Louis, MO, Nicholas G. Gasaway, Jr., Hillsboro, MO, for Respondent.
   ROBERT G. DOWD, JR., Judge.

State Bank of Jefferson County (State Bank) appeals from the judgment awarding Conrad Stromberg (Stromberg) $80,000 in damages for negligence and conversion in connection with an $80,000 draft (Draft) issued by American Family Mutual Insurance Company (American Family) in connection with a fire insurance claim. On appeal, State Bank argues the trial court erred in granting judgment in favor of Stromberg because (1) under the election of remedies doctrine, Stromberg is precluded from claiming an interest in the Draft, (2) under Section 400.3-420, RSMo 2000, liability for conversion is limited to the plaintiffs interest in the instrument, and (3) the doctrine of unavoidable consequences and the doctrine of laches prevent Stromberg from making a claim against State Bank. On cross-appeal, Stromberg argues the trial court erred in denying him damages by way of interest in its application of Section 408.040. We affirm in part and reverse and remand in part.

Viewed in the light most favorable to the judgment, the following facts were adduced at trial. Stromberg owned a plot of ground with buddings located in DeSoto, Missouri. In 1997, Stromberg sold this property to Kevin and Lucinda Moore (collectively referred to as the Moores) for a purchase price of $100,000, receiving $7,000 at closing and taking back a note and Deed of Trust for $93,000. Named as beneficiaries on the Deed of Trust were Stromberg, Mary Stromberg, his wife, Shawn Stromberg, his son, and Margaret Stromberg, his daughter (collectively referred to as the Strombergs). The note secured by the Deed of Trust was payable over twenty years with monthly payments of $807.08. Also at the closing, a policy of fire insurance in the amount of $80,000 was issued on the property naming Complete Auto Repair, the Moore’s company, as the insured and Stromberg as the mortgagee.

On June 7, 1998, the buildings on the mortgaged property were completely destroyed by fire. On June 8, 1998, American Family received a telephone proof of loss from its insured, the Moores d/b/a Complete Auto Repair. On July 13, 1998, American Family issued the Draft in the amount of $80,000 which was the total amount of coverage under its policy and made the draft payable to Complete Auto Repair and Stromberg. Kevin Moore received the draft by mail. Stromberg and the Moores met in late July or early August to discuss division of the Draft without reaching any agreement as to its division because the amount the Moores owed' Stromberg on the Deed of Trust on the date of the fire was approximately $92,000.

On August 11, 1998, Kevin Moore presented the Draft, purportedly endorsed by both payees, for deposit into his business account at State Bank. Stromberg testified he did not endorse the Draft nor did he authorize Kevin Moore or Complete Auto Repair to endorse the Draft for him.

Linda Tucker, teller for State Bank, testified relating to the deposit of the Draft by Kevin Moore. She testified that Kevin Moore came into the bank with the Draft but was not accompanied by Stromberg. Kevin Moore told Linda Tucker that Stromberg was his partner. Linda Tucker testified that she did not know Stromberg and, at the time of deposit, she did not require identification or verification that Stromberg’s signature was correct and genuine. She further testified that there wás a partnership resolution on file for Complete Auto Repair showing the signature of Kevin Moore but not that of Strom-berg. In fact, Stromberg was never a part of the partnership resolution nor was his signature on record anywhere at State Bank.

Richard Francis, president of State Bank, testified that Stromberg was not a customer of the bank and that he would not have received any notice of account activity. Richard Francis also testified that the bank had no relationship with Stromberg nor did he know of or did the bank have a financial interest in the transaction between Stromberg and Kevin Moore. Additionally, Richard Francis testified the teller is required to know the endorser. There was no signature card on file bearing Stromberg’s signature.

Handwriting expert, William Storer, testified that it was his opinion the signature of Stromberg was not genuine.

Before discovering the Draft had been deposited, Stromberg foreclosed on the mortgaged property on November 10, 1998. At the time of foreclosure, he was not aware that Kevin Moore had deposited the Draft into State Bank over the forgery of his signature. Stromberg took back the real estate at the foreclosure sale. Strom-berg testified he did not know that the Draft was deposited until after the foreclosure. Stromberg was never a customer of State Bank, nor did he have access to any financial information that he could have reviewed to know of the deposit.

After discovering the Draft had been deposited without his consent, Stromberg notified State Bank sometime in November of 1998 of the forgery and later received a phone call from Richard Francis asking why the forgery had not been reported sooner. Stromberg replied that he reported the forgery as soon as he found out about it. Stromberg sent a letter to State Bank after it had been confirmed the Draft was forged. Stromberg demanded return of the Draft proceeds. State Bank, through Richard Francis, denied Strom-berg’s demand.

This case was presented for trial. After trial, the trial court entered a judgment granting damages for conversion in favor of Stromberg, but denying Stromberg damages by way of interest from the date of conversion. This appeal follows.

On appeal, State Bank argues the trial court erred in granting judgment in favor of Stromberg because under the election of remedies doctrine, Stromberg is precluded from claiming an interest in the Draft. Specifically, State Bank contends that because Stromberg foreclosed on the property as a means of recovering his damages, rather than pursuing a claim against State Bank on the Draft, Stromberg elected his remedy and now cannot pursue a claim for conversion against State Bank. In related points, State Bank argues that liability for conversion is limited to a plaintiffs interest in the instrument, and that the doctrine of unavoidable consequences and the doctrine of laches prevent Stromberg from making a claim against State Bank. We disagree.

In a court-tried case, the judgment of the trial court will be affirmed on appeal unless there is no substantial evidence to support it, 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). Id, We accept all evidence and inferences favorable to the judgment, and disregard all contrary inferences. P & K Heating and Air Conditioning, Inc. v. Tusten Townhomes Redevelopment Corp., 877 S.W.2d 121, 123 (Mo.App. E.D.1994). We are bound by the trial court’s factual findings if supported by substantial evidence in the record. Id.

The election of remedies doctrine, a doctrine of estoppel, originates from the theory that “where a party has the right to pursue one of two inconsistent remedies and he makes his election, institutes suit, and prosecutes it to final judgment, he cannot thereafter pursue another and inconsistent remedy.” Whittom v. Alexander-Richardson Partnership, 851 S.W.2d 504, 506 (Mo. banc 1993){quoting Tooker, et al., v. Missouri Power & Light Co., 336 Mo. 592, 80 S.W.2d 691, 695 (1935)). The purpose of the election of remedies doctrine is to prevent double redress for a single wrong. Twellman v. Lindell Trust Co., 534 S.W.2d 83, 94 (Mo.App.1976). ‘Where one elects to pursue one or two or more inconsistent remedies, with full knowledge of all facts, and receives full satisfaction therefrom, he can no longer assert his cause of action.” Skandia America Reinsurance Corp. v. Financial Guardian Group, 857 S.W.2d 843, 846 (Mo.App. W.D.1993)(quoting U.S. Fidelity & Guaranty Co. v. Fidelity Nat. Bank & Trust Co., 232 Mo.App. 412, 109 S.W.2d 47 (1937)). To determine whether remedies are inconsistent, we look at whether one theory alleges what the other denies or whether one theory is repugnant to another. Ellsworth Breihan Bldg. Co. v. Teha Inc., 48 S.W.3d 80, 82 (Mo.App. E.D.2001).

Here, based on the record, there is no election of remedies problem. First, Stromberg did not recover full satisfaction for his losses. While Stromberg recovered his property through foreclosure at a value of $80,000, he was still deprived of the insurance proceeds because of State Bank’s conversion. Second, rather than suffering a single wrong, Stromberg suffered a double wrong. The Moores defaulted on their mortgage obligations under the Deed of Trust and, in addition, State Bank negligently accepted a forged endorsement. Stromberg’s theory for recovery against the Moores is not repugnant to his theory for recovery against State Bank. Therefore, as a matter of law, Stromberg’s foreclosure action against the Moores is not inconsistent with his claim for conversion against State Bank. See Twellman, 534 S.W.2d at 94 (holding that remedy of purchaser of treasurer’s check against person who forged the endorsement on the check and remedy against the bank which issued the check and paid it over the forged endorsement were not inconsistent); see also Davis v. Hauschild, 243 S.W.2d 956, 960 (Mo. banc 1951)(hold-ing that claim by plaintiff against defendants for deficiency judgment after foreclosure on the Deed of Trust was not barred by the pursuit in an earlier case of a remedy for breach of covenant in the Deed of Trust because remedies were consistent).

Under the facts of this case, Stromberg had no choice of remedies against State Bank. The only remedy Stromberg had against State Bank was for conversion pursuant to Section 400.3-420. At trial, Strom-berg testified he had no way of knowing the Draft had been deposited until he was informed of the deposit by American Family and that information was received in November of 1998 after foreclosure. Stromberg had no choice of remedies because he had no knowledge of the fraud until several months after the act took place in August of 1998. Therefore, at the time of the foreclosure, Stromberg did not have “full knowledge of all facts,” as the election of remedies doctrine requires. See Skandia America Reinsurance Corp., 857 S.W.2d at 846.

Similarly, State Bank’s argument that Stromberg would receive a “double benefit” by receiving the property by foreclosure in addition to $80,000 resulting from the conversion is unpersuasive. As mentioned earlier, Stromberg suffered two separate wrongs and had a separate remedy for each wrong. Stromberg foreclosed on the property as a result of the Moore’s default and, in a separate action, Strom-berg pursued State Bank for conversion because State Bank allowed Moore to wrongfully receive payment of the Draft.

Section 400.3-420(a) provides in pertinent part as follows:

An instrument is ... converted if it is taken by transfer, other than a negotiation, from a person not entitled to enforce the instrument or a bank makes or obtains payment with respect to the instrument for a person not entitled to enforce the instrument or receive payment. [Emphasis added.]

Here, State Bank’s acceptance of the Draft outside of Stromberg’s presence and without requiring verification that Strom-berg’s signature was genuine violated the provisions of Section 400.3-420(a). Therefore, under Section 400.3-420(b), which states that “the measure of liability is presumed to be the amount payable on the instrument,” Stromberg was entitled to receive the face value of the Draft.

Finally, State Bank’s argument that Stromberg’s claims against State Bank should be precluded under Section 400.3-406, the doctrine of unavoidable consequences and the doctrine of laches, is equally without merit. Because Strom-berg was unaware of the forgery until November, he cannot be charged with failing to take reasonable steps to timely notify State Bank of the wrong. The record reveals Stromberg reported the forgery to State Bank within a day of its discovery. The trial court correctly applied the law. Under the facts of this case, we find there was no election of remedies problem, Stromberg was entitled to the face value of the Draft, and the doctrine of laches and the doctrine of unavoidable consequences are inapplicable. Points one, two, and three are denied.

On cross-appeal, Stromberg argues the trial court erred in denying him an award of damages by way of interest in its application of Section 408.040. Stromberg argues that instead of applying Section 408.040, the trial court should have applied Section Sections 408.020 and 537.520 in awarding damages by way of interest. We agree.

In general, “in actions of trover, or actions in the nature of trover, for the conversion of property, interest or the equivalent of interest on the value of the property converted may be recovered.” Independence Flying Service, Inc. v. Ailshire, 409 S.W.2d 628, 632 (Mo.1966). Similarly, “in actions for conversion, in order to give the injured party full indemnity, interest is allowed on the value of the property from the date of its conversion.” Id. The rate of interest allowable is that prescribed by Section 408.020. Id.; Southern Missouri Bank v. Fogle, 738 S.W.2d 153, 158 (Mo.App.S.D.1987).

Here, Stromberg challenges that part of the trial court’s judgment which states as follows:

No prejudgment interest is awarded since the Plaintiffs did not comply with § 408.040 R.S.Mo. and Uniform Commercial Code does not provide for payment of interest. See §§ 400.3-112(4); 400.3-420. Moreover, there is no evidence that State Bank received a benefit from its conduct.

The seminal case relating to conversion damages is Independence Flying Service v. Ailshire, 409 S.W.2d 628 (Mo.1966). The Independence Flying Service case involved an action for conversion of certain buildings. Id. at 629. As in the present case, the matter was tried without a jury on the issue of damages and the trial court denied interest to the plaintiffs. Id. at 631. In Independence Flying Service, the Missouri Supreme Court reversed the trial court’s denial of interest by stating that in actions for conversion, in order to give the injured party full indemnity, interest is allowed from the date of conversion under Section 408.020. Id. at 632.

Moreover, Section 537.520 allows for damages “in the nature of interest, over and above the value of goods at the time of conversion or seizure.” Therefore, in a case for conversion, the allowance of interest from the date of conversion is part of the damages element of the case. See Commercial Credit Corp. v. Joplin Auto. Auction Co., 430 S.W.2d 440, 445 (Mo.App.1968) (holding that award under Section 537.520 in “nature of interest in trover for wrongful conversion is a measurement of damages by the ruling rate of interest,— not as interest, but by way of compensatory damages”).

State Bank’s contention that it received no benefit from the deposits is not relevant to the issue of damages. The loss to Stromberg is the gravamen of the offense and as in Independence Flying Service, good faith or lack of malice is not a sufficient reason for denying the claim for interest. Independence Flying Service, Inc., 409 S.W.2d at 631.

Moreover, we find the trial court misapplied Sections 400.3-112 and 400.3-420 in the denial of interest. Section 400.3-112(a) states in part that “[ujnless otherwise provided in the instrument, ... an instrument is not payable with interest.” Here, the trial court improperly relied on Section 400.3-112 in ruling as it did, because the Draft in this case did not provide for interest. Moreover, Section 400.3-112 does not provide for the event of a wrongdoing. When the Draft was presented, there was no interest noted, therefore no interest was paid. However, once the Draft was converted, the law of trover and conversion was applicable because of the language contained in Section 400.3-420, which states that the law of conversion applies to instruments. The law of conversion allows interest from the date of conversion in cases, such as here, where a bank’s negligence results in a forged endorsement of an instrument. Hoppe v. First Midwest Bank of Poplar Bluff, 899 S.W.2d 879, 884 (Mo.App. S.D.1995). Therefore, Stromberg is entitled to interest as of the date of conversion under Sections 408.020 and 537.520.

The final issue Stromberg challenges is State Bank’s assertion that the trial court properly denied “prejudgment interest” because the notice provision of Section 408.040 was not complied with by Stromberg. Section 408.040 states that if a demand for settlement at a stated figure is made, subject to the notice requirements, and it goes unanswered and the judgment award exceeds that amount demanded, the plaintiff is entitled to prejudgment interest. Section 408.040.2. Section 408.040 does not apply in the instant case because interest is a part of the damages in a conversion case. Stromberg did not seek “prejudgment interest” as defined by Section 408.040, but sought damages for his loss under the law of trover and conversion, Section 400.3-420, which includes interest for the loss of draft proceeds.

The trial court erred in applying the provisions of Section 408.040. Interest in the amount of 9 percent, pursuant to Section 408.020, should be added to the judgment relating back to August 11, 1998, the date of forgery and conversion. The trial court’s judgment is affirmed with respect to the award of $80,000 and reversed and remanded for the trial court to add interest pursuant to Sections 408.020 and 537.520.

BOOKER T. SHAW, P.J. and KATHIANNE KNAUP CRANE, J., concur.

        . The U.C.C. has been adopted by the Missouri legislature and is incorporated into the Missouri statutes. See Chapter 400 of the Missouri Statutes. Unless otherwise indicated, all further references are to RSMo 2000.

      . Originally the fire policy was issued through Custom Insurance but coverage was later changed to American Family for the same amount and with the same loss payees.

      .The record reveals the last payment Strom-berg received from the Moores was in May 1998.

      . Stromberg testified that he had called American Family after the foreclosure sale on November 10, 1998 and at that time American Family informed him, for the ñrst time, the Draft had been negotiated.

      . Travers v. Universal Fire & Cas. Ins. Co., 34 S.W.3d 156 (Mo.App. W.D.2000), Fire Ins. Exchange v. Bowers, 994 S.W.2d 110 (Mo.App. S.D.1999), Economy Preferred Ins. v. Schomaker, 900 S.W.2d 249 (Mo.App. E.D.1995) cited by State Bank are factually distinguishable from the case at bar. As State Bank admits, these cases dealt with a mortgagee’s cause of action against the insurance company under the policy following foreclosure and not, as here, against a third-party bank for conversion under the U.C.C. Moreover, in the cases cited by State Bank, when the debt was extinguished following foreclosure, so was the mortgagee’s interest. Here, after foreclosure, the amount owed by the Moores was approximately $92,000, $12,000 more than the assessed value of the recovered property. Therefore, Stromberg’s debt was not extinguished by the foreclosure.

      . Section 400.3-406 states as follows:
      (a)A person whose failure to exercise ordinary care substantially contributes to an alteration of an instrument or to the making of a forged signature on an instrument is precluded from asserting the alteration or the forgery against a person who, in good faith, pays the instrument or takes it for value or for collection.
      (b) Under subsection (a), if the person asserting the preclusion fails to exercise ordinary care in paying or taking the instrument and that failure substantially contributes to loss, the loss is allocated between the person precluded and the person asserting the preclusion according to the extent to which the failure of each to exercise ordinary care contributed to the loss.
      (c) Under subsection (a), the burden of proving failure to exercise ordinary care is on the person asserting the preclusion. Under subsection (b), the burden of proving failure to exercise ordinary care is on the person precluded.

      . Section 400-3.420(a) states the law applicable to conversion also applies to instruments. Section 400-3.420(b) states the measure of liability is presumed to be the amount payable on the instrument, not to exceed the amount of the plaintiffs interest in the instrument.


text:
    Dawan FERGUSON, Petitioner, v. Theda WILSON-THOMAS, Appellant. John and Dawana Steffen, Intervenors-Respondents.
    No. ED 84318.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 30, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 4, 2005.
    Application for Transfer Denied Sept. 20, 2005.
    Gay R. Harris, Collinsville, IL, for appellant.
    Connie S. Hood, Clayton, MO, for inter-venors-respondents.

      Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Theda Wilson-Thomas (“Mother”) appeals from a judgment of the Circuit Court of the City of St. Louis on a motion to modify custody, awarding custody of her minor sons, CTF and CAF, to John and Dawana Steffen (“Intervenors”), the paternal grandparents of the two boys. Mother claims several points on appeal. These allegations of error assert that the trial court erred: 1) in its findings of fact and conclusions of law because they were against the weight of the evidence; 2) in allowing Intervenors to intervene and in awarding custody of the minor children to the Intervenors; 3) in finding that no change had occurred in Mother’s circumstances; 4) in its refusal to disqualify the guardian ad litem (“GAL”) for cause; 5) in allowing GAL to give improper testimony; 6) in not awarding attorney’s fees to Mother; in its failure to act on Mother’s Motion to Compel and on her Motion to Strike; 7) in giving legal advice to Mother’s opposing parties; and 8) in not paying attention to the evidence and testimony in making its decision.

We have reviewed Mother’s brief and the record on appeal, and find no error of law. The trial court did not abuse its discretion in allowing Intervenors to intervene and awarding custody of the minor children to them. The judgment is supported by substantial evidence and is not against the weight of the evidence. The judgment is affirmed pursuant to Rule 84.16(b).


text:
    Doris MORRIS, Appellant, v. TREASURER OF MISSOURI AS CUSTODIAN OF the SECOND INJURY FUND, Respondent.
    No. ED 85307.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 30, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 4, 2005.
    Application for Transfer Denied Sept. 20, 2005.
    Charles R. Oldham, St. Louis, MO, for appellant.
    Eileen R. Krispin, St. Louis, MO, for respondent.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Doris Morris (“Claimant”) appeals from an award of the Labor and Industrial Relations Commission (“Commission”) denying her claim for workers’ compensation benefits against the Second Injury Fund (“SIF”). Claimant contends that the Commission’s award was not supported by sufficient competent evidence and was contrary to the law.

We have reviewed the briefs of the parties and the record on appeal. Because we find that the Commission’s denial of workers’ compensation benefits against the SIF is supported by the evidence and in accordance with the law, we affirm. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003); Endicott v. Display Technologies, 77 S.W.3d 612, 615 (Mo. banc 2002). An extended opinion restating the principles of law applicable to this case would have no precedential value. We have, however, provided a memorandum for the use of the parties only setting forth the reasons for our decision.

We affirm the award pursuant to Rule 84.16(b).


text:
    Timothy SORRELL, Respondent, v. NORFOLK SOUTHERN RAILWAY COMPANY, Appellant.
    No. ED 84268.
    Missouri Court of Appeals, Eastern District, Division Two.
    July 5, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 22, 2005.
    Application for Transfer Denied Sept. 20, 2005.
    David A. Dick, James W. Erwin, St. Louis, MO, for Appellant.
    Jerome J. Schlichter, Roger C. Denton, St. Louis, MO, for Respondent.
    Before GEORGE W. DRAPER III, C.J. and KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ.
   ORDER

PER CURIAM.

Timothy Sorrell (Sorrell) brought suit under the Federal Employer’s Liability Act (FELA), 45 U.S.C.A. Section 51, et seq, against Norfolk Southern Railway (Norfolk). The trial court entered judgment in favor of Sorrell pursuant to a jury verdict of $1,500,000.00. Norfolk appeals the judgment asserting seven claims of error.

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. However, 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 84.16(b).