author: COMBS, Chief Judge.

text:
    Michael Lamont FLETCHER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2004-CA-002181-MR.
    Court of Appeals of Kentucky.
    Nov. 4, 2005.
    Discretionary Review Denied by Supreme Court Feb. 15, 2006.

      V. Gene Lewter, Lexington, KY, for Appellant.
    Gregory D. Stumbo, Attorney General of Kentucky, James C. Shackelford, Assistant Attorney General, Frankfort, KY, for Ap-pellee.
    Before COMBS, Chief Judge; McANULTY, Judge; PAISLEY, Senior Judge.

      . Senior Judge Lewis G. Paisley sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

   OPINION

COMBS, Chief Judge.

Michael Lamont Fletcher appeals from a Fayette Circuit Court judgment sentencing him to a term of one year in prison, probated for three years. Fletcher was arrested after a stop and a pat-down search of his person that revealed a .38 caliber handgun. A subsequent search conducted incident to his arrest turned up nearly two grams of crack cocaine and drug paraphernalia. Fletcher entered a conditional plea of guilty to the resulting charges pursuant to the provisions of Kentucky Rules of Criminal Procedure (RCr) 8.09. Under his conditional guilty plea, Fletcher reserved the right to challenge the trial court’s denial of his motion to suppress the evidence recovered during the two separate searches. We affirm.

The sole issue before us is whether the trial court erred by concluding that the searches and seizure were lawful. The provisions of RCr 9.78 govern the procedure for conducting suppression hearings and establish the standard for our review of the tidal court’s decision on the motion.

We conduct a de novo review to determine whether the decision is correct as a matter of law, but we defer to the trial court’s findings of fact if they are supported by substantial evidence. Commonwealth v. Whitmore, 92 S.W.3d 76 (Ky.2002). Inherent in our review is the reality that police officers may draw inferences of illegal activity from facts that may appear innocent to a lay person. Accordingly, we must give due deference to the trial court in assessing the credibility of the officers and the reasonableness of their inferences. Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

Officer Franz Wolff of the Lexington-Fayette Urban County Government, Division of Police, testified at the suppression hearing regarding the circumstances surrounding his encounter with Fletcher. Officer Wolff recounted that during the early morning hours of July 10, 2004, he and Officer FaJconbury began a surveillance of a house located on Wilgus Avenue in Lexington, a high-crime area where they suspected that drug activity was occurring. The officers were on foot and were positioned a short distance from the house under surveillance. They observed a great number of people walking back and forth between the house and a large conversion van parked across the street.

After the officers had observed the house and Fletcher for approximately ten minutes, Fletcher began walking toward the officers’ hidden location. The officers emerged and inquired about Fletcher’s intentions. They also asked him for his name, date of birth, and Social Security number. As Officer Wolff radioed Fletcher’s information through police channels for confirmation, Officer Falconbury stepped into view of the people congregated at the house. They dissipated at once.

As Officer Wolff watched people fleeing from the scene, he asked Fletcher to sit down on the ground while they awaited information to confirm Fletcher’s identity. Radio communication revealed that the information provided by Fletcher was inconsistent with the information that he had relayed to Officer Wolff, and Officer Wolff asked him once again to provide his name and Social Security number. After Fletcher gave a second Social Security number, Officer Wolff decided to conduct a pat-down search for weapons. He asked Fletcher to stand up and turn around. Wolff then inquired, “Do you have anything on you I need to know about?” Fletcher indicated to Officer Wolff that he had a pistol in his back pocket. Fletcher was handcuffed, a loaded pistol was recovered, and Fletcher was placed under arrest for carrying a concealed deadly weapon. During a search conducted incident to the arrest, Officer Wolff recovered cocaine and drug paraphernalia from Fletcher.

After he was arraigned on several charges, Fletcher moved the trial court to suppress the incriminating evidence as the fruits of an illegal stop and search. The trial court conducted a hearing and denied the motion, finding that the police officers had articulated their reasonable suspicion that illegal activity was occurring sufficient to justify the stop. Fletcher was sentenced following entry of his conditional guilty plea, and this appeal followed.

On appeal, Fletcher claims that the initial stop and search were conducted in violation of his Fourth Amendment right to be free from unreasonable searches and seizures. Fletcher contends that at the time that he was approached, Officer Wolff did not have a reasonable, articulable basis for believing that he either had committed or was in the process of committing a crime. Thus, the stop and search were improper. We disagree.

As we observed in Baltimore v. Commonwealth, 119 S.W.3d 532, 537 (2003), there are three types of interaction between the police and citizens: consensual encounters, temporary detentions (generally referred to as Terry stops), and arrests. The prohibition against unreasonable search and seizure provided by the Fourth and Fourteenth Amendments to the United States Constitution applies only to Terry stops and arrests. Id. The Fourth Amendment dictates that an official detention of a person must be supported by probable cause — even if no formal arrest of the person is made. Id. However, the courts have recognized several limited exceptions based upon the nature and extent of the intrusion and the government interest involved. Id.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court held that a brief investigative stop, detention, and frisk for weapons do not violate the Fourth Amendment as long as the initial stop was supported by reasonable suspicion, a far lighter standard than probable cause. Id. Terry recognized that there must be an actual “seizure” before the protections of the Fourth Amendment are triggered. Id. Pursuant to Terry, a police officer may approach a person, identify himself as a police officer, and ask a few questions without implicating the Fourth Amendment. Id. A “seizure” for Fourth Amendment purposes occurs only when an individual is detained under circumstances that would induce a reasonable person to believe that he or she is not at liberty to leave. Id. Police may make a Terry stop for investigative purposes if they have “a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony .... ” Id. citing United States v. Hensley, 469 U.S. 221, 229, 105 S.Ct. 675, 680, 83 L.Ed.2d 604 (1985).

In this case, Fletcher contends that the trial court erred in denying his motion to suppress the evidence since an improper seizure had already occurred before Officer Wolff learned that Fletcher had given misinformation about his true identity. When Officer Wolff instructed him to sit on the ground, Fletcher argues that he no longer felt free to leave and that he was effectively “seized” by the officer. He argues that this seizure was not supported by any reasonable suspicion.

However, Fletcher’s initial interaction with Officer Wolff did not implicate the Fourth Amendment. Under the circumstances, Officer Wolff was justified in approaching Fletcher, in asking him to identify himself, and in asking a few questions. Fletcher was not seized at that point.

Even if Fletcher were deemed to have been seized when Officer Wolff asked him to sit down, this brief detention was amply supported by reasonable suspicion. In light of the totality of the circumstances as observed by the officers, including the immediate flight of Fletcher’s associates at the mere sight of Officer Falconbury, Officer Wolff was justified in deciding to launch a full-scale Terry stop and in undertaking additional investigation. Officer Wolff assuredly had a reasonable, articula-ble suspicion that criminal activity was afoot. Moreover, the slight intrusion was reasonably related in scope to the justification for the stop and was not unnecessarily prolonged. Finally, the limited pat-down search that yielded the handgun (which Fletcher admitted having prior to being searched) was wholly proper and served as a legitimate basis for the arrest and the subsequent search conducted incident to that arrest.

The factual findings of the trial court were supported by substantial evidence, and it correctly concluded as a matter of law that the investigatory stop was supported by reasonable suspicion. We are persuaded that the trial court did not err by denying Fletcher’s motion to suppress the incriminating evidence.

The judgment of the Fayette Circuit Court is affirmed.

ALL CONCUR.


source: Caselaw Access Project

author: MICHAEL A. WOLFF, Chief Justice.

license: Public Domain

text:
    STATE ex rel. Laurie DEAN, Relator, v. The Honorable Jon A. CUNNINGHAM, Respondent.
    No. SC 86695.
    Supreme Court of Missouri, En Banc.
    Jan. 10, 2006.
    Rehearing and Motion to Modify Opinion Denied Feb. 14, 2006.

      D. Eric Sowers, Feme P. Wolf, St. Louis, for Relator.
    Daniel K O’Toole, Jeffrey T. McPherson, Cynthia A. Petracek, Armstong Teasdale, LLP, St. Louis, for Respondent.
    Mary Anne Sedey, St. Louis, for Amicus Curiae.
   INTRODUCTORY SUMMARY

MICHAEL A. WOLFF, Chief Justice.

Does the physician-patient privilege apply to an action seeking damages for emotional distress under the Missouri human rights act for alleged sex discrimination and sexual harassment, or does such an action always waive the privilege?

There are three sources of law that govern the issue:

1. An action for damages for sex discrimination and sexual harassment under the Act, section 213.010 et seq., allows recovery of actual and punitive damages. Recoverable actual damages may include awards for emotional distress. H.S. v. Board of Regents, Southeast Missouri State University, 967 S.W.2d 665, 673 (Mo.App.1998).
2. The physician-patient privilege in section 491.060(5) provides that various health care providers, including physicians and psychologists, are incompetent to testify concerning any information acquired while attending a patient in a professional capacity.
3. Cases under Missouri’s discovery provisions hold that a patient who places his or her physical or mental condition in controversy by bringing a damages claim waives the privilege as to relevant information to which the defendant is entitled in maintaining a defense.

Laurie Dean brought an action for sex discrimination and sexual harassment against her employer and two individuals. To determine whether Dean has waived her privilege, the court examines her pleadings and responses to discovery. Under Missouri’s fact pleading, Dean’s petition is an outline of her factual contentions that sets the limits on what evidence is relevant at trial. Her discovery responses, which provide elaboration as to her factual contentions, likewise define the limits of relevant evidence at trial.

Dean contends that, though she seeks damages for emotional distress and humiliation, she does not seek recovery for any medically diagnosable injury. Rather, she contends that her emotional distress and humiliation are only what an ordinary person would experience in the circumstances. She refers to this as “garden variety” emotional distress, as distinct from medically documentable injury. In these circumstances, Dean claims, she has not placed her mental or physical condition in controversy and, thus, has not waived the physician-patient privilege.

The respondent trial judge rejected Dean’s contentions and ordered her to produce discovery as to her mental health treatment records and to provide authorization for the defendants to obtain her mental health care records.

Dean petitioned the court of appeals for a writ of prohibition, which was denied. This Court issued its preliminary writ of prohibition, which is now made absolute, as modified. This Court has jurisdiction. Mo. Const, article V, section 4.

In summary, Dean may present evidence that shows that she was distressed or humiliated by the alleged discrimination, but, because she has not waived her physician-patient privilege, she may not present evidence of treatment for any alleged emotional distress to support her claim for damages. She is not barred from asking the finder of fact to award damages, under the Act, for emotional distress, humiliation, or loss of enjoyment of life so long as it is without reference to medical or psychological treatment and is no more than the kind of emotional distress or humiliation that an ordinary person would experience in such circumstances.

FACTUAL BACKGROUND

Laurie Dean filed her petition in the circuit court of St. Charles County against her employer, RARE Hospitality International Inc., and Mark Adams and James Knicos, individually, under the provisions of the Act. Dean alleged sex discrimination and sexual harassment during her employment at RARE. Dean pleaded damages for loss of income, and “emotional distress, humiliation, inconvenience, and loss of enjoyment of life.”

RARE then propounded discovery requests to Dean, including interrogatories and requests for production of documents. RARE’s Interrogatory 1 asked Dean if she claimed, as a result of the matters alleged in her petition, that she had been “treated or attended by any hospitals, doctors, nurses, psychologists, counselors, or others in the healing arts. If your answer is ‘yes,’ state as to each hospital, doctor, nurse, psychologist, counselor, or others in the healing arts the name, address and telephone number; the dates of all such treatments or attendances.” Dean replied “No” to this interrogatory.

Interrogatory 2 asked Dean to “Identify each item of damage you claim you sustained as a result of the conduct of defendant [RARE] as alleged in, the Petition; and further state the dollar amount you are claiming for each item of damage; and the manner in which you have calculated the dollar amount of each such item of damages.” Dean replied that she was claiming “Emotional Distress, Embarrassment, and Humiliation — Plaintiff is, at this time, seeking only ‘garden variety’ emotional distress damages.”

Interrogatory 12, to which Dean objected, asked Dean to “State whether you have ever consulted or been treated by a psychiatrist, psychologist, counselor or other health care practitioner for mental distress, emotional suffering or any other mental or emotional condition. If your answer is ‘yes,’ state as to each hospital, doctor, nurse, psychologist, counselor, or others in the healing arts the name, address and telephone number; the dates of all such treatments or attendances.” (Emphasis added.) Dean’s objection to Interrogatory 12 was based, in part, on the physician-patient privilege and the fact that the interrogatory was not limited in scope and time.

RARE’s request for production of documents number 13 asked Dean to produce “All medical records, reports, charts or notations of any kind describing or indicating plaintiffs (sic) physical or mental condition prepared by any physician, therapist, or any other person having occasion to treat, examine or care for plaintiff as requested in Interrogatory Number 1, and additionally, plaintiff is requested to execute the medical records release attached hereto to enable defendant [RARE] to acquire such documents.” Dean objected to the request, in part, by asserting the physician-patient privilege and that the request was not limited in time.

Additionally, Dean refused to execute the medical record release attached to request for production of documents number 13. The attached release authorized RARE’s attorneys to “inspect and copy all office, medical and hospital records, reports and other medical documents” in the possession of the recipient “and relating to illnesses of or injuries, examinations, treatment or confinement of the patient.” The authorization included “records of all examinations, treatments and tests, including in-patient, out-patient and emergency room, whether for diagnostic or prognostic purposes, consultation reports, correspondence, x-rays, nurses notes, bills, doctors notes, photographs, videotapes, MRIs, and CT scans, workers’ compensation records, psychologists notes and mental health records.” The authorization left a blank line after the “TO:” designation and was not, itself, limited to mental health care providers.

After Dean’s objections to its discovery, RARE sought an order to compel discovery from the trial judge. The judge granted RARE’s motion to compel and ordered Dean to “produce all of her mental health treatment records” and “execute authorizations for the production of those records,” and to answer Interrogatory 12. The judge held that “[b]y pleading for emotional distress damages, [Dean] place[d] her mental and emotional condition at issue and, thus, ma[de] her mental health treatment history discoverable.”

THE SOURCES OF LAW

The Missouri Human Rights Act

The Act protects important societal interests in prohibiting discrimination in employment, public accommodation, and other interests on the basis of sex, race, color, religion, national origin, ancestry, age as it relates to employment, disability, or familial status as it relates to housing. Section 213.010(5). The Act provides for broad enforcement authority in the Missouri human rights commission and administrative remedies. In addition, to further this societal interest in eliminating discrimination, the Act allows a claimant to seek damages for actual and punitive damages, court costs, and reasonable attorney fees. Section 213.111.2. A court may also grant appropriate injunctive relief. Id.

The Act, in allowing a claim for damages, shows legislative intent to include private claims for relief by aggrieved employees and others, to further the enforcement of the statute. To allow a wide-ranging and legally irrelevant inquiry into a claimant’s medical and psychological history could work at cross-purposes to the Act by deterring legitimate claims.

The Physician-Patient Privilege

The privilege statute, section 491.060(5), speaks in terms of competency to testify, but is construed as a privilege statute. It provides that licensed physi-dans, chiropractors, psychologists, and dentists are incompetent to testify “concerning any information which he or she may have acquired from any patient while attending the patient in a professional character, and which information was necessary to enable him or her to prescribe and provide treatment for such patient as a physician, chiropractor, psychologist or dentist.” There is also a fiduciary duty of confidentiality owed by a treating physician to his or her patients not to disclose information received in connection with treatment. Brandt v. Medical Defense Assoc., 856 S.W.2d 667, 669-670 (Mo. banc 1993). Although the psychologist-patient relationship is included in the section 491.060(5) protection afforded to the physician-patient relationship, the confidential nature of the psychologist-patient relationship is also protected in section 337.055.

The section 491.060(5) privilege applies to medical records and all aspects of discovery. State ex rel. Crowden v. Dandurand, 970 S.W.2d 340, 342 (Mo. banc 1998); State ex rel. Benoit v. Randall, 431 S.W.2d 107, 109 (Mo. banc 1968). “The purpose of the physician-patient privilege is to enable the patient to secure complete and appropriate medical treatment by encouraging candid communication between patient and physician, free from fear of the possible embarrassment and invasion of privacy engendered by an unauthorized disclosure of information.” State ex rel. Woytus v. Ryan, 776 S.W.2d 389, 392 (Mo. banc 1989).

Waiver of the Privilege

The physician-patient privilege is not absolute. The patient can waive the statutory privilege either by express or implied waiver. “[0]nce the matter of plaintiffs physical condition is in issue under the pleadings, plaintiff will be considered to have waived the privilege under [section] 491.060(5) so far as information from doctors or medical and hospital records bearing on that issue is concerned.” State ex rel. McNutt v. Keet, 432 S.W.2d 597, 601 (Mo. banc 1968). “[U]nder this rule, defendants are not entitled to any and all medical records, but only those medical records that relate to the physical conditions at issue under the pleadings.” State ex rel. Stecher v. Dowd, 912 S.W.2d 462, 464 (Mo. banc 1995).

Has Dean waived her privilege by placing her mental condition in controversy? The first look is to the pleadings, which set forth the ultimate facts Dean intends to prove. See Rule 55.05; Luethans v. Washington University, 894 S.W.2d 169, 171-72 (Mo. banc 1995). She seeks damages, as authorized by section 213.111.2, for “emotional distress, humiliation, inconvenience, and loss of enjoyment of life.” A petition, however, usually does not disclose what evidence a plaintiff will seek to introduce, nor is it required to do so. For that, the discovery rules allow the parties to obtain information regarding any matter “relevant to the subject matter involved in the pending action” so long as the matter is not privileged. Rule 56.01(b)(1). Missouri discovery rules allow so-called “contention interrogatories,” which allow a party to discover the factual theory of the adversary’s case. Rule 57.01(c). Dean’s discovery responses, as noted, represent that she has sought no treatment for emotional distress, that she has no dollar amount for any item of emotional damage, and that she is “at this time, seeking only ‘garden variety’ emotional distress damages.”

Damages for emotional distress and humiliation are discussed in Missouri Commission on Human Rights v. Red Dragon Restaurant, Inc., 991 S.W.2d 161 (Mo.App.1999). Injuries caused by deprivations of civil rights differ from most other tort claims. They are not part of a claim based upon physical injury. Damages for humiliation and emotional distress in civil rights cases, as the court held in Red Dragon, may be “established by testimony or inferred from the circumstances.” 991 S.W.2d at 171 (quoting Johnson v. Hale, 940 F.2d 1192, 1193 (9th Cir.1991)) (emphasis added).

To put Red Dragon in the discovery context, if emotional distress damages are to be supported by expert testimony or evidence of medical or psychological treatment, the privilege is waived. If such damages are to be inferred from the circumstances, the privilege is not waived.

By her discovery responses, Dean has precluded herself from offering any evidence that she sought treatment for emotional distress and any evidence that she has any diagnosable condition allegedly resulting from the acts of discrimination or harassment. She may, however, seek damages for emotional distress of a generic kind—that is, the kind of distress or humiliation that an ordinary person would feel in such circumstances. These damages are generally in the common experience of jurors and do not depend on any expert evidence.

In these circumstances, evidence of Dean’s medically or psychologically diagnosable mental or physical condition is irrelevant to the question of whether she suffered “garden variety” emotional distress as a result of the incidents pleaded in her sex discrimination and sexual harassment claims. Her particular past or present mental condition, in that respect, is not in controversy.

Missouri tort cases that the parties cite are helpful, but not dispositive. State ex rel. Crowden v. Dandwrand, 970 S.W.2d 340 (Mo. banc 1998), and Cline v. William, H. Friedman & Assoc., Inc., 882 S.W.2d 754 (Mo.App.1994), are personal injury cases where, along with physical injuries, plaintiffs claimed “mental anguish.” The physical injury claims waived the medical information privileges, and the defense was permitted to discover psychiatric records as well as records of physical conditions. In both cases, plaintiffs appeared to be planning medical evidence as to both physical injuries and mental consequences. Where the pleadings and discovery frame the issues in this manner, the mental anguish records and testimony are part of the evidence as to physical injury.

Of a different sort are mental distress injuries claimed in common law tort cases where there has been no physical injury. Bass v. Nooney, 646 S.W.2d 765 (Mo. banc 1983), recognized the common law tort claim of negligent infliction of mental distress, unaccompanied by physical injury. To establish such a claim, the plaintiff must show a medically diagnosed condition that resulted from the negligent act. The very nature of the claim, and the necessity for medical proof, would waive a claim of privilege. By contrast, courts have held, after Bass, that for intentional torts no medical testimony is needed to show mental or emotional distress. Fust v. Francois, 913 S.W.2d 38 (Mo.App.1995); Lipari v. Volume Shoe Corp., 664 S.W.2d 953 (Mo.App.1983).

This Court notes that Dean’s discovery responses deny a claim for medically diagnosable injuries “at this time.” If her position changes, she will be obliged to supplement her responses. Rule 56.01(e). Such a change in position, for example by a contention that she was treated for depression resulting from defendants’ alleged acts, will waive the privilege. The trial judge would, under that circumstance, not be prohibited from requiring Dean to disclose medical records and execute authorizations. The trial judge also has discretion to ensure that the discovery responses are timely made. He may preclude such evidence if Dean is timing her discovery supplementation near the date of trial in a manner prejudicial to the defendants. Furthermore, the corollary to Dean’s denial that she has a medically diagnosable injury is that the defense is entitled to bring that fact to the attention of the jury, through her answers to interrogatories, through cross-examination or otherwise. In other words, the defense may show that Dean’s emotional distress and humiliation were not so severe as to require medical or physical consultation or treatment.

CONCLUSION

A person claiming emotional distress damages for sex discrimination and sexual harassment under the Act is protected by the physician-patient privilege where:

(1) her claim is only for such emotional distress and humiliation that an ordinary person would experience under the circumstances or that may be inferred from the circumstances, and
(2) is not to be supported by any evidence of medical or psychological treatment for a diagnosable condition.

This Court’s preliminary writ of prohibition is made absolute, as modified.

All concur.

      . All statutory references are to RSMo 2000 unless otherwise indicated.

      . The court can grant permanent or temporary injunctions, temporary restraining orders, and can award actual damages, punitive damages, court costs, and reasonable attorney fees to the prevailing party. Section 213.111.2.

      . Prohibition is appropriate here to avoid irreparable harm. See State ex rel. Noranda Aluminum, Inc. v. Rains, 706 S.W.2d 861, 862 -863 (Mo. banc 1986). "This basis for prohibition particularly applies where privileges are at issue.” State ex rel. Wilfong v. Schaeperkoetter, 933 S.W.2d 407, 408 (Mo. banc 1996). "Once the privilege is discarded and the privileged material produced, the damage to the parly against whom discovery is sought is both severe and irreparable. The damage cannot be repaired on appeal.” State ex rel. Peabody Coal Co. v. Clark, 863 S.W.2d 604, 608 (Mo. banc 1993). "Prohibition is the proper means to contest the enforcement of discovery of allegedly privileged information." Wilfong, 933 S.W.2d at 408 (citation omitted).

      .The Eighth Circuit in Glover v. McDonnell Douglas Corp., 981 F.2d 388, 395 (8th Cir.1992), vacated on other grounds, Glover v. McDonnell Douglas Corp., 510 U.S. 802, 114 S.Ct. 42, 126 L.Ed.2d 13 (1993), on remand to, Glover v. McDonnell Douglas Corp., 12 F.3d 845 (8th Cir.1994), cert, denied, 511 U.S. 1070, 114 S.Ct. 1647, 128 L.Ed.2d 366 (1994), has incorrectly determined that, in cases under the Act, Missouri courts appear to “require expert medical testimony to support a claim of emotional distress whenever physical injuries are not incurred, regardless of whether emotional distress constitutes a substantive element of the cause of action or an element of damages for any other type of action." There, the Eighth Circuit vacated a jury’s award of emotional distress damages under the Act on the basis that Glover failed to present expert medical testimony to support a claim of emotional distress. Glover I, 981 F.2d at 395; Glover II, 12 F.3d at 848. This erroneous determination was based on Bass v. Nooney Co., 646 S.W.2d 765 (Mo. banc 1983). As discussed below, Bass involved a tort claim for negligent infliction of emotional distress where medically docu-mentable damages are an element of the cause of action. In contrast, a violation of the Human Rights Act is more akin to the tort of intentional infliction of emotional distress, for which medically documented damages need not be proven. Fust v. Francois, 913 S.W.2d 38 (Mo.App.1995); Lipari v. Volume Shoe Corp., 664 S.W.2d 953 (Mo.App.1983).

      . The statute makes physicians, who are not otherwise incompetent to testify, incompetent to testify about matters relating to the treatment of their patients. The privilege is for the benefit of the patient and belongs to the patient, not the physician. The patient, in certain circumstances, may waive the privilege. See generally O’BRIEN, MO. LAW OF EVIDENCE (4th ed.2002), Section 6-4.

      . Section 337.055 states: "Any communication made by any person to a licensed psychologist in the course of professional services rendered by the licensed psychologist shall be deemed a privileged communication and the licensed psychologist shall not be examined or be made to testify to any privileged communication without the prior consent of the person who received his professional services.” Although the physician-patient privilege, which includes psychologists, is written in terms of competency to testify, and the psychologist statute is a protection of confidences, they are of the same effect and the analysis is the same under both statutes.

      . Rule 57.01(c) provides: "An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pretrial conference or other later time."

      . The following cases hold that a plaintiffs claim for "emotional distress” damages constitutes a waiver of the psychotherapist-patient privilege: Kirchner v. Mitsui & Co. (U.S.A.), Inc., et al., 184 F.R.D. 124 (M.D.Tenn.1998); EEOC v. Danka Industries, Inc., 990 F.Supp. 1138 (E.D.Mo.1997); Vann v. Lone Star Steakhouse & Saloon of Springfield, Inc., 967 F.Supp. 346 (C.D.Ill.1997); Sarko v. Penn-Del Directory Co., 170 F.R.D. 127 (E.D.Pa.1997); Schoffstall v. Henderson, 223 F.3d 818 (8th Cir.2000).
      The following cases find no waiver in similar circumstances: Vanderbilt v. Town ofChilmark, 174 F.R.D. 225 (D.Mass.1997); Sabree v. United Brotherhood of Carpenters & Joiners of America, Local No. 33, 126 F.R.D. 422 (D.Mass.1989); Ruhlmann v. Ulster County Dept. of Social Services, 194 F.R.D. 445 (N.D.N.Y.2000) (includes a detailed discussion of the case law on both sides of this particular issue). See also, Johnson v. Trujillo, 977 P.2d 152 (Colo.1999).

      . The Court does not reach Dean’s contention that the order for discovery was overbroad.


author: PATRICIA L. COHEN, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Ronnie REEDER, Appellant.
    No. ED 84507.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 28, 2005.
    Case Transferred to Supreme Court Aug. 19, 2006.
    Case Retransferred to Court of Appeals Nov. 20, 2005.
    Original Opinion Reinstated Feb. 15, 2006.

      N. Scott Rosenblum, Clayton, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
   PATRICIA L. COHEN, Presiding Judge.

Ronnie Reeder (“Defendant”) appeals from the trial court’s judgment entered in the Circuit Court of the City of St. Louis upon his conviction by a jury of three counts of statutory rape in the first degree and one count of attempted child molestation. Defendant contends that the trial court erred in: (1) restricting Defendant’s use of the victims’ prior false allegations; and (2) improperly joining the charges against Defendant into a single indictment and denying Defendant’s Motion to Sever. We affirm.

Statement of the Facts and Proceedings Below

Viewed in the light most favorable to the verdict, the evidence adduced at trial established that, in November of 1999, Defendant lived sporadically at 2017 Agnes in the City of St. Louis with his sister, Theresa, Theresa’s two children and Tanya Wright, Defendant’s niece by another sister. Sometime prior to Thanksgiving, Defendant entered the basement where Tanya slept, shook her arm to wake her, picked her up underneath her arms, placed her on a dresser, pulled her legs apart and forced his penis into her vagina. Tanya was thirteen years-old.

Tanya attempted to push Defendant off of her and threatened to go upstairs and tell someone. Defendant informed her that no one was home and warned that it would just hurt a little because it always hurts the first time. Tanya alleged that penetration lasted somewhere between one and two minutes, but she could not say if he ejaculated. The next day, Tanya told her grandmother what had occurred. In response, Tanya’s grandmother, Defendant’s mother, warned Tanya not to tell anyone and assured Tanya that she would take care of the situation.

On New Years Eve 2001, Misty Owens, then thirteen years-old, spent the night with Lisa Webb, another niece of Defendant’s, and Lisa Webb’s sister, at Lisa’s house at 1420 St. Louis Avenue. The girls drank wine that they found and when one of the girls vomited, Misty agreed to go next door to Lisa’s grandmother’s home to borrow shampoo and conditioner.- After approximately fifteen to twenty minutes Misty returned and told Lisa that she and Defendant had sex on the couch.

Misty returned to spend the night at Lisa’s house on the weekend of February 2-8, 2002. Defendant stopped by and found Lisa and Misty watching a movie. Defendant asked Lisa for cigarettes and Lisa left the living room to find them. Meanwhile, Defendant sat next to Misty on the couch and penetrated her vagina with his fingers. That night, Lisa and Misty slept in separate beds in the same room. Misty awoke to find Defendant on top of her. Defendant kissed and fondled Misty and had intercourse with her.

Defendant was indicted on four counts of statutory rape in the first degree, three counts of statutory sodomy in the first degree, one count of the class B felony of child molestation in the first degree and one count of the class C misdemeanor of assault in the first degree. Defendant filed a Motion to Sever. Specifically, Defendant requested one trial on counts relating to Misty Owens, one trial on the statutory rape count relating to Tanya Wright and one trial on the assault charge as it related to a third cousin and victim. The trial court denied Defendant’s Motion to Sever the charges related to sexual acts with Tanya Wright and Misty Owens and reserved ruling regarding the assault charge against the third victim. Ultimately, the State filed an order of nolle prose-qui on the assault charge. Defendant was tried before a jury of his peers.

The State presented the testimony of four witnesses at trial, including Tanya and Misty. During cross-examination, defense counsel sought to establish through extrinsic evidence that Tanya and Misty engaged in a pattern of false allegations to the police or the Division of Family Services (“DFS”) whenever an authority figure angered them. The State objected and, after a lengthy discussion on the record, but outside of the presence of the jury, the trial court decided to allow questions regarding whether the witnesses made accusations against family members in the past, but limited the testimony to false allegations of sexual misconduct. The trial court specifically denied defense counsel the opportunity to cross-examine the witnesses regarding any non-sexual prior allegations that occurred after the Fall of 2000.

The State called Detective Janet McKern from the Sex Crimes Unit of the St. Louis City Police Department to testify. Detective McKern testified that Misty’s mother brought Misty to the Sex Crime Unit on February 6, 2002 to report that Misty had been raped by a family friend. Detective McKern interviewed Misty regarding her sexual encounters with Defendant on December 31, 2001 and February 2, 2002. On cross-examination, Detective McKern admitted that lab reports disclosed no seminal fluid on the shorts Misty claims she wore during intercourse.

Defendant called his mother and his sister to testify in his defense. Defendant’s sister, Tina Marie Pulley, testified that when her daughter, Tanya, was mad at her, she would call the authorities. Specifically, Pulley testified that Tanya became angry when Pulley decided to move out of the neighborhood and contacted the police to accuse Pulley of beating her and having drugs in the house. Pulley attempted to testify that Tanya faked numerous pregnancies and once called “Children and Family Services” and made false allegations against Pulley, but the trial court excluded this testimony.

Pulley explained that Tanya and her cousins often made allegations against people in positions of authority. When Pulley and her sister had a problem with boys loitering around their front porch looking for Tanya, her cousins and her friends, they enlisted Defendant to “run the boys off” several times a day. Pulley testified that the fact that Defendant consistently forced the boys to leave angered the girls and in response “they’d lie on him.” Pulley likewise testified that Tanya and her cousins previously accused several men with whom Pulley and her sister were in relationships with of raping them because the girls disliked the fact that these men were extremely strict.

At the close of all the evidence, the trial court dismissed one count of statutory rape and two counts of statutory sodomy. Further, the State amended the child molestation charge to attempted child molestation. Accordingly, the court submitted three counts of statutory rape, one count of statutory sodomy and one count of attempted child molestation. Two counts of statutory rape and one count of attempted child molestation involved Misty Owens and one count of statutory rape involved Tanya Wright.

The jury found Defendant guilty of: (1) two counts of statutory rape in the first degree with respect to Misty Owens occurring on December 31, 2001 and the weekend of February 2-3, 2002; (2) attempted child molestation in the first degree with respect to Misty Owens on February 2-3, 2002; and (3) statutory rape in the first degree with respect to Tanya Wright occurring in November, 1999. The trial court sentenced Defendant to ten years each on the two statutory rape counts to run concurrently with each other and seven years on the attempted child molestation count, concurrent to the ten years on the statutory rape counts. The court also sentenced Defendant to fifteen years on the third count of statutory rape to be served consecutive to the other sentences for a total of twenty-five years. This appeal followed.

Discussion

In his first point on appeal, Defendant contends that the trial court erred when it restricted his use of the victims’ prior false allegations. Specifically, Defendant argues that he suffered a deprivation of his constitutional right to present a defense as a result of the trial court’s prohibition against the use of extrinsic evidence generally and false, non-sexual allegations that occurred after Fall of 2000.

As a preliminary matter, we note that Defendant did not include any claim of error related to this issue in his Motion for New Trial and therefore this issue is not properly preserved for appellate review. Mo.R.Crim.P. 29.11. Where an appellant fails to properly preserve an issue for appeal, appellate review is discretionary and only for plain error. State v. Presberry, 128 S.W.3d 80, 85 (Mo.App. E.D.2003). To warrant relief under this standard, appellant must establish a manifest injustice or a miscarriage of justice. State v. Dudley, 51 S.W.3d 44, 53 (Mo.App. W.D.2001).

Plain error review is used sparingly and is limited to error that is “evident, obvious and clear.” State v. Santillan, 1 S.W.3d 572, 578 (Mo.App. E.D.1999). We will only grant relief under the plain error standard when alleged errors “so substantially affect a defendant’s rights that a manifest injustice or a miscarriage of justice results if left uncorrected.” Presberry, 128 S.W.3d at 85. The defendant bears the burden of proving a manifest injustice or miscarriage of justice. State v. Louis, 103 S.W.3d 861, 864 (Mo.App. E.D.2003). Because this is a direct criminal appeal, we note that plain error cannot serve as the basis for granting Defendant a new trial, as requested, unless we find that the alleged error was outcome determinative. Deck v. State, 68 S.W.3d 418, 427 (Mo. banc 2002).

Defendant alleges that he suffered a deprivation of his constitutional rights when, during his cross-examination of Tanya, defense counsel sought to introduce extrinsic evidence to establish that Tanya made false allegations to the police or DFS when an authority figure angered her. Defendant contends that although the trial court permitted some questions regarding whether the Tanya made accusations against family members in the past, the trial court refused to allow testimony regarding whether those allegations were true or false, unless the alleged false allegations involved sexual misconduct. Specifically, the trial court discussed the issue with counsel as follows:

THE COURT: ... [Y]ou may explore the relationships within the family and you may inquire about ... whether this witness made certain accusations or whether she did certain things in response to direction from a family member, but understand, [defense counsel], you’re going to be bound by her answer, because I’m not going to allow you to bring in a bunch of collateral testimony on issues that are totally unrelated to her and the defendant.
Now, you’re entitled to bring in character testimony, reputation for truth and veracity testimony, but I’m not going to sit here and have a bunch of family members come in and say, “Yeah, she called DFS on me because I told her to take out a nose ring.” That’s collateral.
[DEFENSE COUNSEL]: Isn’t that evidence of her character?
THE COURT: Character evidence is the opinion of the person and the reputation of the person for truth and veracity, not specific evidence — not some laundry list of specific incidents that has nothing to do with the defendant or any offense on trial.
Now, that’s my understanding, so you may cross-examine this witness and you may ask her about whether she’s made accusations in the past against family members, but Pm not going to entertain testimony about whether those accusations are true or false, unless they’re accusations of sexual misconduct.
THE STATE: And, Your Honor, I would ask that those questions be limited in time to the period of time in which she first alleged that there was sexual contact, to the period of time that she actually disclosed it to authorities.
THE COURT: I agree.

(emphasis added.)

Defendant asserts that this case is governed by State v. Long, 140 S.W.Bd 27 (Mo. banc 2004), decided while this case was pending on appeal. In Long, a victim alleged that the defendant beat and sexually assaulted her. There was no physical evidence linking the defendant to the alleged sexual assault. The trial court prohibited the defendant from introducing extrinsic evidence to establish that the victim made prior false allegations against other individuals. The defendant appealed alleging that the excluded evidence was central to his defense.

Acknowledging the existing evidentiary rule that prior acts may not be proven by extrinsic evidence, the Court nevertheless concluded that “[w]here ... a witness’ credibility is a key factor in determining guilt or acquittal, excluding extrinsic evidence of the witnesses’ prior false allegations deprives the fact-finder of evidence that is highly relevant to a crucial issue directly in controversy; the credibility of the witness.” Long, 140 S.W.3d at 30-81. Accordingly, the Supreme Court reversed and remanded for a new trial, holding that “excluding evidence of prior false allegations was prejudicial because [the defendant] was deprived of a full opportunity to present his defense that the witness was fabricating the present allegations against him.” Id. at 32. Rejecting the notion that, in order to be admissible, the extrinsic evidence must relate to a prior, false allegation of another rape or sexual assault, the Supreme Court clarified that, “[t]he relevance of the prior false allegation is thus derived primarily from the fact that the allegation was false and not entirely from the subject matter of the prior false allegation.” Id. at 31.

As an initial matter, we determine whether the new evidentiary rule announced in Long is retrospective or prospective in application. State v. Walker, 616 S.W.2d 48, 49 (Mo. banc 1981). In Walker, the Supreme Court articulated the standard for determining whether a decision creating a new rule applies retrospectively or prospectively, when it considered whether State v. Biddle, 599 S.W.2d 182 (Mo. banc 1980), handed down during the pendency of the Walker defendant’s appeal, which rendered polygraph examinations inadmissible in criminal trials, applied retroactively or prospectively. Acknowledging that Biddle changed the law in Missouri, the Court stated that where “the Court fails to indicate in the decision creating the new rule whether that rule is to be applied retrospectively or prospectively, then this determination hinges on whether the new rule of law is procedural or substantive.” Walker, 616 S.W.2d at 49.

Furthermore, the Court held that if the new rule is substantive, it applies both retrospectively and prospectively. Id. By contrast, if the new rule is procedural, its effect is prospective only. Id. Because rules of evidence are procedural in nature and apply prospectively, the Court ultimately held that the rule created in Biddle warranted only prospective application. Walker, 616 S.W.2d at 49; see also State v. Reasonover, 714 S.W.2d 706, 720 (Mo.App. E.D.1986) (rule in subsequent Supreme Court decision which found post-hypnotic testimony to be inadmissible was a procedural rule dealing with the admissibility of evidence and therefore applied prospectively.)

In the Long decision, as in Biddle, the Supreme Court did not state whether the new rule should apply retrospectively. We thus determine whether the new rule articulated in Long is procedural or substantive. Because the new rule governs the admissibility of evidence, it is, as the Court held in Walker, procedural. Accordingly, it appears that we are required to apply Long prospectively only. Because the trial court properly applied the rule of evidence existing at the time of trial, the trial court did not err. Point denied.

In his second point, Defendant contends that the trial court abused its discretion in failing to sever counts I, III and VII from the count VIII because the counts were joined improperly, thus, severance was mandatory. Essentially, Defendant asserts that the trial court abused its discretion in joining and then refusing to sever these counts because the offenses do not share common tactics, nor were they the same transaction, occurrence or time frame. In response, the State asserts that: (1) the offenses against Tanya Wright and Misty Owens were sufficiently similar in character to support joinder; and (2) Defendant failed to make a particularized showing of prejudice from the charges being tried together.

Joinder and severance are two distinct issues for appellate review. State v. Warren, 141 S.W.3d 478, 486 (Mo.App. E.D.2004). Joinder addresses the issue of what crimes can be charged in a single proceeding. Id. Severance, on the other hand, presupposes proper joinder and leaves the determination of whether prejudice may result if charges are joined together to the trial court’s discretion. Id.

Rule 23.05 states that joinder is proper where the manner in which the crimes were committed:

are of the same or similar character or based on two or more acts that are part of the same transaction or on two or more acts or transactions that are connected or that constitute parts of a common scheme or plan may be charged in the same indictment or information in separate counts.

Because “[l]iberal joinder of criminal charges is favored in the interest of judicial economy[,]” joinder is appropriate when any of these criteria exist. State v. Bechhold, 65 S.W.3d 591, 595 (Mo.App. S.D.2002). We examine only the State’s evidence to determine if there has been a misjoinder of offenses. Id.

Defendant first argues that there is nothing similar about the tactics used in the sexual crimes against Tanya and the sexual crimes against Misty and that the only commonality is that the crimes involving both Defendants are sexual in nature. Specifically, Defendant contends that the sexual encounters were not similar because: (1) there were two separate victims, only one of which was a relative; (2) the encounter with his cousin was forceful while the encounter with the other victim was consensual; (3) the encounters took place years apart; and (4) the encounters involved “very different types of sex.”

Contrary to Defendant’s insinuation otherwise, in order for joinder to be proper, the tactics used to commit the crimes need not be identical; they need only be of the “same or similar character.” State v. Smith, 886 S.W.2d 194, 197 (Mo.App. E.D.1994). Some of the factors we consider to determine if a defendant’s tactics are similar in character include: (1) similarity in the type of offenses; (2) similarity in the victims sex and age group; (3) commonality of the location where the offenses took place; and (4) closeness in time between the crimes. State v. Hyman, 37 S.W.3d 384, 393 (Mo.App. W.D.2001). Here, the State proved that the charged counts are similar in character in that on two separate occasions Defendant awoke a thirteen year-old girl in his home, or a home where he periodically lived, in order to have sexual intercourse with her. In view of the foregoing, the trial court did not err in joining the counts against Defendant in a single indictment.

Having found joinder proper in this case, we next address the trial court’s denial of Defendant’s Motion to Sever. Severance presupposes proper joinder and leaves to the trial court the determination of whether prejudice may result if charges properly joined are tried together. Warren, 141 S.W.3d at 486. In making this determination, the trial court considers, inter alia, the number of offenses and whether the complexity of the evidence enables the jury to distinguish the evidence and apply the law to each separate offense. State v. Vinson, 834 S.W.2d 824, 827 (Mo.App. E.D.1992). We review the trial court’s determination for abuse of discretion.

Defendant contends that the trial court abused its discretion in denying his Motion to Sever. Defendant asserts that the jury improperly considered evidence of the charge involving Tanya as evidence of the charges involving Misty, and vise versa, despite the fact that these charges involved very different factual scenarios. Essentially, Defendant posits that the jury’s exposure to information relating to alleged crimes involving the other victim was prejudicial. We disagree.

When evidence relating to each offense is distinct and uncomplicated, and the jury is properly instructed to return separate verdicts for each offense charged, there is no abuse of discretion in refusing to sever. State v. Tripp, 939 S.W.2d 513, 519 (Mo.App. S.D.1997). Here, both Tanya and Misty testified regarding their respective sexual contact with Defendant. Review of the transcript reveals that each witness’s testimony is distinct and uncomplicated. The record also indicates that the trial court properly instructed the jury to consider each count separately and that, in light of such instruction, the jury acquitted Defendant of statutory sodomy while convicting him on other counts. A jury’s decision to acquit a defendant of one count while convicting him of other counts is indicative of the jury’s ability to distinguish evidence and apply the law to each count separately. State v. Howton, 890 S.W.2d 740, 745 (Mo.App. W.D.1995). Accordingly, the trial court did not abuse its discretion in refusing to sever the counts against Defendant and Defendant did not suffer any prejudice as a result of the trial court’s ruling. Defendant’s second point is denied.

Conclusion

The judgment of the trial court is affirmed.

ROBERT G. DOWD, JR., J., Concurs.

GLENN A. NORTON, J., Concurs.

      . Ultimately, the court determined that defense counsel could not cross-examine the witnesses regarding any non-sexual prior allegations that occurred after the Fall of 2000.

      . Instruction 10 provided: "The defendant is charged with a separate offense in each of the five counts submitted to you. Each count must be considered separately. You should return a separate verdict for each count and you can return only one verdict for each count."


author: GLENN A. NORTON, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Marc D. LAZAR, Appellant.
    No. ED 86266.
    Missouri Court of Appeals, Eastern District, Division Five.
    Oct. 25, 2005.
    Application for Transfer to Supreme Court Denied Nov. 29, 2005.
    Application for Transfer Denied Feb. 28, 2006.
    Dora A. Fichter, Shaun J. Mackelprang (co-counsel), Jefferson City, MO, for respondent.
    Alan S. Cohen, Clayton, MO, for appellant.
   OPINION

GLENN A. NORTON, Chief Judge.

Marc Lazar appeals the denial of his motion to correct nunc pro tunc the written suspended execution of sentence (“SES”), claiming that the trial court orally pronounced a suspended imposition of sentence (“SIS”). We affirm.

I. BACKROUND

Lazar pled guilty to statutory sodomy and statutory rape. At the sentencing hearing, the trial court told Lazar that the ten-year prison sentence recommended by the State was disproportional and would serve no purpose in this case:

Now, I’ve told the lawyers in this case that I don’t think under all of these circumstances that it would serve a purpose to send you to the penitentiary. And I’m not intending to. Not for ten years, not for five years, which is the minimum sentence. I’m not going to do that. I don’t think it would be the right result, the proportionate result here.

In response to defense counsel’s request to suspend imposition of any sentence, however, the court stated:

Now, what about this suspended imposition of sentence? Well, Mr. Lazar, as I’ve said a number of times, things look different depending on your point of view.
We have certain offenses, not crimes against persons, you know, check cases, credit card cases, stealing cases, maybe drug possession cases, and a variety of others, where we say, well, it’s not really a crime against another person, there isn’t any specific harm to this other person. Maybe we could see our way clear to not imposing a sentence and just deferring the person to probation.
I don’t feel that that’s appropriate in a crime against a person like this. This is a crime against a person. And you have done severe damages to another human being. That’s my opinion. And I don’t have any doubt about it....

The court went on to describe the harm Lazar caused to the victim and concluded “for that, you do not walk out of the courthouse with a clean slate, no conviction, no sentence imposed, walk away and deal with the other consequences.”

Thereafter, the trial court stated:

I’ve told the attorneys that I’m going to suspend the sentence that the State has recommended. I’m not going to impose that sentence. It will be suspended. And you will be granted probation. And more specifically, the recommended sentence of ten years on each count will be suspended.

The court told Lazar that he would be placed on probation with certain conditions, including registration as a sex offender, counseling and 120-day shock incarceration. The court denied Lazar’s request to serve the shock incarceration under his family’s supervision, reminding Lazar that his sentence was already an “extremely generous” break. “[W]hat the Court is proposing is no penitentiary sentence, and instead, a hundred twenty days in the County Jail.” The court then repeated that it would be wrong to let Lazar go without any consequences: “I think it would be a poor statement to this young girl and her family that you can come in, hire a lawyer, plead guilty, walk out, no jail sentence imposed.”

That day, the written sentence and judgment was entered, sentencing Lazar to ten years imprisonment on each count, but suspending execution of those sentences and placing him on five years probation. Lazar moved for an order correcting the written sentence nunc pro tunc to reflect the SIS that he alleged was pronounced at the sentencing hearing. The court denied that motion, and Lazar appeals.

II. DISCUSSION

Lazar argues that the written SES was inconsistent with the court’s oral pronouncement that it was “not going to impose” a sentence. Generally, the trial court must enter its written judgment and sentence as orally pronounced. State v. Hunter, 43 S.W.3d 336, 342 (Mo.App. W.D.2001). To the extent that the oral pronouncement controls over the written sentence, such a rule does not apply where: (1) the record shows that the oral pronouncement was not materially different from the written sentence or (2) the judge had no discretion to pronounce a sentence other than the written sentence. Johnson v. State, 938 S.W.2d 264, 265 (Mo. banc 1997). In determining whether the oral pronouncement and written sentence are materially different, “the first step is to determine what the oral sentence actually was.” Id.

Obviously, a clear statement following the words “I sentence you to ...” is decisive. But where the formal oral pronouncement of sentence is ambiguous or ... silent on a particular issue, nothing prevents an appellate court from examining the entire record to determine if the oral sentence can be unambiguously ascertained.

Id.

Here, the parties disagree about whether the court pronounced an SIS or an SES at the sentencing hearing. When the court disposes of a case by SIS, no sentence is imposed, whereas in the case of an SES a sentence is imposed, but the execution is suspended. State ex rel. Popowich v. Conley, 967 S.W.2d 294, 297 (Mo.App. W.D.1998); see also sections 557.011.2(3) and (4) RSMo 2000 (court may “suspend the imposition of sentence” or “pronounce sentence and suspend its execution”). The court’s formal oral pronouncement in this case was ambiguous because it could be construed as either an SIS or an SES:

I’ve told the attorneys that I’m going to suspend the sentence that the State has recommended. I’m not going to impose that sentence. It will be suspended. And you will be granted probation. And more specifically, the recommended sentence of ten years on each count will be suspended.

On the one hand, “I’m not going to impose that sentence. It will be suspended.” suggests that imposition of the sentence was being suspended. On the other hand, the court stated that it was suspending the recommended sentence of ten years. Suspending a specific sentence of a term of years of imprisonment is inconsistent with an SIS. No term of years of imprisonment or any sentence is imposed in an SIS, and, thus, there is no term of imprisonment to suspend. Suspending the recommended sentence of ten years in this case suggests that execution of that term of imprisonment was being suspended. As a result of the ambiguity in the court’s formal oral pronouncement, we will examine the entire record to determine if the oral sentence can be unambiguously ascertained. See Johnson, 938 S.W.2d at 265.

The relevant portions of the sentencing hearing — set out in the background section of this opinion — clearly reveal that the court pronounced an SES, not an SIS. Most telling is the court’s explanation of the situations in which an SIS is appropriate and why Lazar’s case is not one of those situations; the court could not have been clearer that it believed this crime against a person was not the type of crime for which suspending imposition of any sentence was appropriate. The court’s conclusion that Lazar should not escape conviction for the harm he caused to this victim also illustrates that the court did not believe an SIS was appropriate because, ordinarily, an SIS is not considered a conviction:

The obvious legislative purpose of the sentencing alternative of suspended imposition of sentence is to allow a defendant to avoid the stigma of a lifetime conviction and the punitive collateral consequences that follow.... Thus, with suspended imposition of sentence, trial judges have a tool for handling offenders worthy of the most lenient treatment. Worthy offenders have a chance to clear their records by demonstrating their value to society through compliance with conditions of probation under the guidance of the court.

Yale v. City of Independence, 846 S.W.2d 193, 195 (Mo. banc 1993). Only an SES, therefore, could ensure that Lazar received the conviction the court believed he deserved. Contrary to Lazar’s characterization, the court’s statements about the inappropriateness of an SIS and the importance of a conviction were not generalities — the court was talking specifically about the circumstances of Lazar’s case.

Lazar also points out the court’s references to not sending him to the penitentiary. But those comments were consistent with either an SIS or an SES. Under either disposition, Lazar would serve no time in prison, assuming he complied with the conditions of his probation. In the context of the rest of its statements in this case, the court was simply referring to the fact that, while the prison sentence should be imposed, instead of serving that sentence, the court would suspend execution and grant him probation instead. The whole record demonstrates the court's effort to balance the need for consequences — a conviction, some shock time in jail and probation — with the need for proportional punishment — not requiring La-zar to serve time in prison.

In sum, it is clear from this record that the trial court intended to impose a ten-year sentence and suspend execution thereof. This is what was done in the written judgment and sentence and, therefore, Lazar’s motion for a nunc pro tunc order changing the written SES to an SIS was properly denied. See generally State v. Carrasco, 877 S.W.2d 115, 117 (Mo. banc 1994) (only clerical errors in judgment may be corrected by nunc pro tunc order and, generally, only if judge’s intention to do otherwise clearly appears in record). Point denied.

III. CONCLUSION

The order denying the motion seeking to correct the sentence is affirmed.

ROBERT G. DOWD, JR., J. and JAMES R. REINHARD, SR., J., concurring.


author: PER CURIAM.

text:
    James D. CORNELIUS, et al., Plaintiffs/Respondents v. John W. LIEBER, Jr., et al., Defendants/Appellants.
    No. ED 85356.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 1, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 9, 2006.
    Application for Transfer Denied Feb. 28, 2006.

      Lawrence Gerard Gillespie, Richard Edward Coughlin, Terri J. Johnson, co-counsels, Clayton, MO, for appellant.
    William Arnold Hellmieh II, Ronald D. Kwentus, co-counsel, St. Louis, MO, for respondent.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

John W. Lieber, Jr. and Susan S. Lieber appeal from a trial court judgment entered in favor of James D. Cornelius and Athena T. Cornelius on their Petition in Equity to quiet title to certain real property by adverse possession. We have reviewed the briefs of the parties. and the record on appeal and conclude that sufficient evidence existed from which the trial court could determine that the Building met the open and notorious requirement for adverse possession and that in balancing the equities, the trial court did not abuse its discretion in not enforcing Sunset Hills’ setback requirements by ordering the removal of the Building. An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).


text:
    In the Interest of B.Q., A.H., and M.H., minors, Juvenile Officer of St. Louis County, Missouri, Petitioner/Respondent, v. J.Q., Respondent/Appellant, and R.H., Respondent.
    No. ED 85718.
    Missouri Court of Appeals, Eastern District, Division Five.
    Nov. 8, 2005.
    Kathleen C. DuBois, Clayton, Kayla Vaughan, St. Louis, for appellant.
    Brian P. Seltzer, Family Court of St. Louis County, Clayton, for respondent.
    Kim Rensing, St. Louis, Guardian Ad Litem.
    Cheryl Rafert, Missouri Coalition Against Domestic Violence, Jefferson City, for Amicus Curiae.
    Before GLENN A. NORTON, C.J., KATHIANNE KNAUP CRANE, J., and CLIFFORD H. AHRENS, J.
   ORDER

PER CURIAM.

Mother appeals from the trial court’s judgment finding her three minor children within the provisions of section 211.031.1(1) RSMo (2000), giving her physical custody of the children, but placing legal custody of the children with the Children’s Division. The judgment is supported by substantial evidence and is not against the weight of the evidence. No error of law appears. Murphy v. Carrón, 536 S.W.2d 30, 32 (Mo. banc 1976).

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

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


author: CLIFFORD H. AHRENS, Judge.

text:
    Claude D. RISHER and Brenda Faye Risher, Plaintiffs/Appellants, v. Thomas GOLDEN, Defendant/Respondent.
    No. ED 85758.
    Missouri Court of Appeals, Eastern District, Division Five.
    Nov. 15, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 9, 2006.
    Application for Transfer Denied Feb. 28, 2006.

      Leonard P. Cervantes, St. Louis, MO, for appellant.

      R.C. Wuestling, St. Louis, MO, for respondent.
   CLIFFORD H. AHRENS, Judge.

Claude Risher and Brenda Risher (“plaintiffs”) appeal from the judgment of the trial court dismissing their third amended petition for lack of subject matter jurisdiction. Plaintiffs contend that the trial court erred by abusing its discretion in granting Tom Golden’s (“supervisor”) motion to dismiss because the evidence and reasonable inferences show that there was “something more” that could establish co-employee liability for negligence, which would not be subject to the workers’ compensation statutes as the exclusive remedy. Finding no error, we affirm.

On the morning of August 17, 2000, John Risher (“decedent”), a new employee of Townsend Tree Service Company (“employer”), was working with supervisor spraying herbicide on property owned by Citizens Electric to eliminate brush growing on the property. Supervisor and decedent were using a vehicle called a “doodlebug” to spray the herbicide. This particular doodlebug was one of several in the possession of employer, and supervisor had been using it without apparent problems for several weeks prior to the accident. Before using the doodlebug that morning, supervisor checked it over, which included checking the brake fluid. The brush on the property by the right-of-way was high and obscured vision. Supervisor directed employee to act as a spotter, but rather than have employee stand in the brush, he instructed employee to get in the work-basket on the back of the doodlebug to spot for him while he backed the vehicle down an incline. Supervisor asked employee to tell him when the doodlebug reached a spot where the incline started getting real steep, so the supervisor could stop. When they reached the spot where the incline started getting real steep, supervisor applied the brakes at decedent’s direction, but the brakes failed, the doodlebug rolled backwards and flipped over, coming to rest on its top and pinning decedent beneath it and killing him.

Employer’s mechanics examined the brakes on that particular doodlebug and determined that the brakes did not work because of a lack of fluid, though the emergency brake was working properly. The mechanics examined each part of the brake system as they replaced it and noted that the brake cylinder and brake disc showed normal wear, but that the rear brake line had a slight leak, and stated that the master cylinder was replaced due to a leak in the seal. They also replaced the rear brake line. This review of the brake system culminated in a brief report (“brake report”) from employer’s equipment division.

Plaintiffs filed a petition against supervisor, Citizens Electric Cooperative, Farmers Insurance Company, Inc., and unknown parties. Plaintiffs subsequently amended their petition twice, filing a third amended petition on September 16, 2004. However, the trial court permitted the third amended petition to be filed against supervisor only. Supervisor filed a motion to dismiss for lack of subject matter jurisdiction and a supplemental memorandum of law, which asserted that supervisor was no more than a co-employee of decedent, that plaintiffs failed to allege “something more” that would create a personal liability on the part of supervisor, and that the exclusive remedy was through the Workers’ Compensation Law and the Industrial and Labor Relations Commission (“Commission”).

Plaintiffs filed two separate supplemental memoranda and exhibits in opposition to supervisor’s motion to dismiss. Included in these materials were portions of the deposition of supervisor, memoranda from the employer, OSHA reports, and an affidavit from a consulting engineer, Francis Oldham (“engineer”). Engineer’s affidavit stated that the brake report “is consistent with a gradual loss of brake fluid which could have occurred over a period of several days to several weeks,” and “does not suggest a sudden loss of [brake] fluid during the three hour period of operation [the day of the accident].” Engineer concluded that the brake fluid “was unacceptably low” when supervisor examined it the date of the accident and that this low level of brake fluid “would have been noticeable to [supervisor] when he conducted his inspection.”

On December 16, 2004, the trial court issued an order granting supervisor’s motion to dismiss Count I of the third amended petition for lack of subject matter jurisdiction. In this order, the trial court reviewed the law and the facts as presented. On January 14, 2005, pursuant to Rule 74.01(b), the trial court certified its order of December 16, 2004 as an ap-pealable judgment, and found that there was no just reason for delay. This appeal follows.

The Workers’ Compensation Law provides the exclusive rights and remedies for the accidental death or injury of an employee in the course of employment. Section 287.120.1-2 RSMo (2000).; Nowlin ex rel. Carter v. Nichols, 163 S.W.3d 575, 577 (Mo.App.2005). The proper method to raise the exclusive jurisdiction of the Commission under the Workers’ Compensation Law as a defense to a tort action is to make a motion to dismiss for lack of subject matter jurisdiction. James v. Poppa, 85 S.W.3d 8, 10 (Mo. banc 2002); Nichols, 163 S.W.3d at 577. Such a motion to dismiss ought to be granted when it “appears” that the circuit court lacks subject matter jurisdiction. Rule 55.27(g)(3); James, 85 S.W.3d at 10. The quantum of proof required is not high and can be met with a preponderance of evidence that the court lacks jurisdiction. As this Court held in State ex rel. J.E. Jones Construction Co. v. Sanders, 875 S.W.2d 154, 156-57 (Mo.App.1994),

A motion to dismiss for lack of subject matter jurisdiction is the proper method to raise a defense of exclusivity of workers’ compensation. When the exclusivity of workers’ compensation is raised as a defense, the summary judgment standard, i.e., whether a material issue of fact exists, is not the appropriate standard of review. Regardless of whether the applicability of the Workers’ Compensation Law is raised as a defense to a common law cause of action in the form of a motion to dismiss or in a motion for summary judgment, the trial court must initially treat it as a motion to dismiss for lack of subject matter jurisdiction. A court should grant a motion to dismiss for lack of subject matter jurisdiction whenever it “appears” that the court lacks jurisdiction. As the term “appears” suggests, the quantum of proof is not high. It must appear by a mere preponderance of the evidence that the court is without jurisdiction,

(citations omitted). The determination of whether a case is within the exclusive jurisdiction of the Commission is a question of fact. St. Lawrence v. Trans World Airlines, Inc., 8 S.W.3d 143, 148 (Mo.App.1999). In making this determination, the circuit court may consider exhibits, affidavits, and evidence pursuant to Rules 55.27 and 55.28. Id. “Whether there is subject matter jurisdiction is a question of fact left to the sound discretion of the trial judge.” James, 85 S.W.3d at 10. Thus this Court reviews for abuse of discretion. St. Lawrence, 8 S.W.3d at 148. A trial court abuses its discretion when its ruling is clearly against the logic of the circumstances and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful consideration. Id. In view of the exclusivity of rights and remedies under the Workers’ Compensation Law, this Court must resolve all doubts regarding jurisdiction in favor of the Commission rather than the circuit court. Nichols, 163 S.W.3d at 578.

Plaintiffs contend that the trial court erred by abusing its discretion in granting supervisor’s motion to dismiss for lack of subject matter jurisdiction because it drew an inference from supervisor’s testimony about the brake fluid level and ignored their allegations and evidence of “something more” that would sustain a cause of action for co-employee liability. Plaintiffs argue that supervisor was not immune from common law liability because he committed “affirmative acts” that constituted “something more.”

The Workers’ Compensation Law supersedes an employee’s common law right of recovery and immunizes employers from tort claims for work-related accidents. Section 287.120; Nichols, 163 S.W.3d at 578. The employer’s immunity for failure to provide a safe working environment extends to its employees, but this immunity can be forfeited if the co-employee commits acts beyond the scope of an employer’s responsibility to provide a safe workplace. Nichols, 163 S.W.3d at 578.

A co-employee cannot be held liable just for breaching a duty that the employer owed to the injured or deceased employee. Id. A plaintiff must demonstrate circumstances that show a personal duty of cared owed by the co-employee, separate from the employer’s non-delega-ble duties, and that the breach of this personal duty proximately caused the injury or death. Id. When a co-employee is engaged in conduct outside the scope of the employer’s standard duty, the co-employee owes a personal duty to use ordinary care and to refrain from behavior that might reasonably be foreseen to cause harm to another employee. Id.

Whether or not a personal duty exists is a matter of law and is necessarily dependent on the particular facts and circumstances of each case. Id. Missouri courts have found generally that the “something more” requirement has been met where a supervisor created a dangerous condition by personally directing the injured or deceased worker to engage in conduct that a reasonable person would recognize as inherently hazardous and outside the usual requirements of the employment. Id. (citing Tauchert v. Boatmen’s National Bank of St. Louis, 849 S.W.2d 573, 574 (Mo. banc 1993)); Hedglin v. Stahl Specialty Co., 903 S.W.2d 922, 927 (Mo.App.1995). Such cases show that a co-employee loses immunity under the Workers’ Compensation Law only if he or she affirmatively causes or increases the fellow employee’s risk of injury. Id. at 579. An affirmative negligent act is not equivalent or synonymous with any act of negligence, as the law requires a purposeful act that is “directed” at a co-employee. Nichols, 163 S.W.3d at 579 (citing Gunnett v. Girardier Building & Realty Co., 70 S.W.3d 632, 641 (Mo.App.2002)). Personal liability arises where there has been “purposeful, affirmatively dangerous conduct.” Graham v. Geisz, 149 S.W.3d 459 (Mo.App.2004) (citing State ex rel. Taylor v. Wallace, 73 S.W.3d 620, 621 (Mo. banc 2002)).

The evidence which the trial court had before it on the motion to dismiss showed that supervisor did order decedent to stand in the work basket on the doodlebug to act as a spotter for him rather than on the ground. However, this was done in an attempt to avoid an accident. Supervisor’s testimony was that he could not have seen decedent standing on the ground in the brush, hence to have had decedent spot him from the ground would have been unsafe. The evidence does not show that supervisor in fact violated any of employer’s safety rules that existed at the time of the accident by having decedent spot from the work basket rather than the ground. The rules booklet introduced into the record was adopted on September 10, 2001, over a year after the accident that killed decedent. The subsequent rules provided that a rider should not be allowed in a work basket on a steep grade and that doodlebugs should never be backed down a steep grade. Supervisor also testified that he had not intended to operate the doodlebug on a steep slope, and that he tried to stop before the doodlebug hit the steep slope, but that the brakes failed, which caused the vehicle to go down the steeper grade. There was an OSHA violation that was directed towards the employer. It did state that there had been a reported problem with the brakes not holding on a doodlebug, but the OSHA report did not identify whether it was the same doodlebug that was involved in the fatal accident, or the other one, which had been reported as having brake problems. Supervisor refused to operate the other doodlebug because of the brake problems.

Supervisor testified that he did a visual inspection of the doodlebug every morning, and that he would have noticed any fluids, such as brake fluid, leaking from it, and that he would not have operated the doodlebug if he noticed such a leak. He further stated in his deposition that he had looked at the master cylinder the morning of the accident and that “it was full of brake fluid.” He also stated that he checked the brakes every day, and that the brakes had worked without any problem that morning prior to the accident. Supervisor testified that he had used that particular doodlebug for several weeks prior to the accident without any brake problems, whereas a different doodlebug owned by employer had been repeatedly reported for brake trouble and was taken out of service for a time. The brake report showed that there was a leak in- the rear brake line and a leak on the master cylinder seal, but did not indicate how severe the leaks were. It did not indicate a cause for the accident or the brake failure. The OSHA report did not indicate why the brakes failed. The only evidence that the brake fluid was unacceptably low on the morning of the accident and that supervisor decided to use the doodlebug regardless of that is the affidavit of the engineer. Engineer’s affidavit was based on his review of the brake report and supervisor’s deposition.

The circuit court was cognizant of the engineer’s affidavit and its contents, as well as the other evidence, including the deposition of supervisor. It found that the record did not show that supervisor “either created a hazardous condition beyond the scope of the employer’s responsibility to provide a safe workplace, or that he directed decedent to engage in an activity that one would reasonably recognize as hazardous beyond the usual requirements of the job.” It also found that “it appears that [supervisor] operated the Doodlebug without knowledge that the particular vehicle’s brakes were likely to fail, or at most, without noticing a brake leak that was likely to cause the vehicle to malfunction.”

Under our standard of review, the circuit court did not abuse its discretion in finding that it lacked subject matter jurisdiction. As the circuit court found, utmost supervisor failed to notice a leak that could have caused a malfunction, which is not “something extra.” The careless operation of a motorized vehicle or machinery is not “something more” than a breach of a duty to maintain a safe working environment and is not an affirmative negligent act. See State ex rel. Taylor v. Wallace, 73 S.W.3d 620, 622 (Mo. banc 2002); Nichols, 163 S.W.3d at 580. The only duty in this case is the non-delegable duty of the employer, and the failure to discharge this duty is that of the employer. As the employee discharging the employer’s non-del-egable duty, supervisor has immunity from common-law suit; recovery under Workers’ Compensation Law is the exclusive remedy. Jurisdiction lies exclusively with the Commission, not the court. Point denied.

The judgment of the circuit court is affirmed.

GLENN A. NORTON, C.J., and KATHIANNE KNAUP CRANE, J., concur.

      . Unless noted otherwise, all further statutory citations are to RSMo (2000).


author: GARY M. GAERTNER, SR., Presiding Judge.

text:
    Ida Mae RODGERS-WARD and Daniel Harper, Appellants, v. AMERICAN STANDARD INSURANCE COMPANY OF WISCONSIN, Respondent.
    No. ED 86221.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 22, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 9, 2006.
    Application for Transfer Denied Feb. 28, 2006.

      Rick A. Courtney, St. Louis, MO, for appellant.
    Lawrence F. Hartstein, Hartstein & Bleisch, Clayton, MO, for respondent.
   GARY M. GAERTNER, SR., Presiding Judge.

Appellants, Ida Mae Rodgers-Ward (individually “Plaintiff Rodgers-Ward”) and Daniel Harper (individually “Plaintiff Harper”) (collectively “Plaintiffs”), appeal from the judgment of the Circuit Court of the City of St. Louis in favor of Respondent, American Standard Insurance Company of Wisconsin (“American Standard”). Plaintiffs brought an equitable garnishment proceeding against American Standard attempting to collect on a default judgment previously entered in favor of Plaintiffs against Gaite Holte (“Holte”), who is insured by American Standard. We reverse and remand.

On September 23, 1998, Holte applied for automobile insurance coverage with American Standard. On that same day, American Standard issued a motor vehicle liability policy for Holte that was effective from September 23 to December 23, 1998. The policy between American Standard and Holte states, in its section titled “if you have an auto accident or loss,” “[e]ach person claiming any coverage of this policy must ... [pjromptly send us any legal papers received relating to any claim or suit.” In its “general provisions” section, the policy states “[a]ny person claiming any coverage of this policy must cooperate with us in performing all acts required by this policy.”

On December 2, 1998, a motor vehicle collision occurred between a vehicle driven by Holte and a vehicle occupied by Plaintiffs. Both Plaintiffs were injured. On December 7, 1998, American Standard was notified of Plaintiffs’ claims regarding the collision by attorney Daniel Brown. On May 6, 1999, American Standard denied the claims and closed its file.

On August 24, 1999, Plaintiffs filed a lawsuit against Holte (“the underlying lawsuit”). On April 9, 2001, Holte was served. However, contrary to the terms of the motor vehicle liability policy, Holte did not send American Standard the service of process. On June 29, 2001, a default judgment was entered in favor of Plaintiffs against Holte in the amount of $100,000.00 for Plaintiff Rodgers-Ward and $100,000.00 for Plaintiff Harper, for a total judgment in the amount of $200,000.00 (“the underlying judgment”). On August 13, 2002, Plaintiffs’ attorney sent a letter to Holte, and a copy of the letter of American Standard, notifying them of the underlying judgment. On September 16, 2002, American Standard re-opened its file regarding the collision between Holte and Plaintiffs.

On October 4, 2004, Plaintiffs filed their second amended equitable garnishment petition against American Standard (“Plaintiffs’ second amended petition”), attempting to collect from the underlying judgment. On January 19, 2005, American Standard filed its answer to Plaintiffs’ second amended petition, asserting first and second affirmative defenses. In its first affirmative defense, American Standard alleged that the insurance contract entered into between it and Holte was not enforceable by Plaintiffs because Holte breached the contract. American Standard contended that Holte breached the contract by failing to comply with its terms, in that Holte failed to promptly notify American Standard that the summons, petition, or legal papers had been served upon him, and failed to promptly provide American Standard with the summons, petition, or legal papers, and as a result American Standard was prejudiced. In its second affirmative defense, American Standard alleged that it was further prejudiced by Plaintiffs’ actions because Plaintiffs did not notify it of the underlying judgment for more than one year.

On March 14, 2005, the trial court held a bench trial on Plaintiffs’ second amended petition. In its March 30, 2005 judgment, the court found that “[Holte] breached the contract with American Standard by failing to properly notify American Standard of the underlying lawsuit” and consequently, “American Standard was unable to defend the lawsuit and to contest liability, causation, or damages.” The court also found that Holte’s breach:

was material and prejudicial thereby terminating any right of coverage to [Holte] under the policy issued by [American Standard to him] and as a result terminating any right of [Plaintiffs] to collect [the underlying judgment] against the policy.

Subsequently, the court entered judgment in favor of American Standard. This appeal by Plaintiffs followed.

In Plaintiffs’ sole point on appeal, they argue that the trial court erred in granting judgment in favor of American Standard because Missouri’s Motor Vehicle Financial Responsibility Law (“the MVFRL”), Chapter 303, RSMo 2000, invalidates American Standard’s non-cooperation defense. Plaintiffs contend that they are entitled to the minimum liability coverage specified in section 303.190.2(2), that is, a judgment in the amount of $25,000.00 to Plaintiff Rogers-Ward and $25,000.00 to Plaintiff Harper for Plaintiffs’ injuries resulting from their collision with Holte. Plaintiffs also claim they are entitled to costs and post-judgment interest.

We review a court-tried case involving the interpretation of a statute de novo. Ochoa v. Ochoa, 71 S.W.3d 593, 595 (Mo.banc 2002).

An equitable garnishment action is a legal proceeding, authorized by section 379.200, to reach and apply insurance money in satisfaction of a judgment. Smith v. Progressive Cas. Ins. Co., 61 S.W.3d 280, 283 (Mo.App. E.D.2001). In an equitable garnishment proceeding, an injured person “stands in the shoes” of the insured because the “rights of the injured person bringing an action against the insurer for equitable garnishment are derivative and can rise no higher than those of the insured. ...” Id., quoting Hayes v. United Fire & Cas. Co., 3 S.W.3d 853, 857 (Mo.App. E.D.1999). Therefore, in an equitable garnishment proceeding, an insurer can assert the defense of the non-cooperation of the insured against the injured person. Hayes, 3 S.W.3d at 857.

Section 303.025.1 of the MVFRL requires an owner of a registered motor vehicle to maintain financial responsibility for any vehicle he owns (and registers), and for any vehicle he operates. American Standard Ins. Co. v. Hargrave, 34 S.W.3d 88, 90 (Mo.banc 2000). An owner of a registered motor vehicle often maintains financial responsibility by purchasing a motor vehicle liability policy. Id.

Section 303.190.2(2) of the MVFRL provides in pertinent part that a vehicle owner’s policy of liability insurance:

[sjhall insure the person named therein ... as insured, using any such motor vehicle ... against loss from the liability imposed by law for damages arising out of the ... use of such motor vehicle ... subject to limits, exclusive of interest and costs, with respect to each such motor vehicle, as follows: twenty-five thousand dollars because of bodily injury to or death of one person in any one accident and, subject to said limit for one person, fifty thousand dollars because of bodily injury to or death of two or more persons in any one accident.... Section 303.190.2(2).

According to section 303.190.6(1) of the MVFRL:

[t]he liability of the insurance carrier with respect to the insurance required by this chapter shall become absolute whenever injury or damage covered by the said motor vehicle liability policy occurs ... no violation of said policy shall defeat or void said policy. Section 303.190.6(1) (emphasis added).

The purpose of the MVFRL is to protect persons who aré injured in motor vehicle accidents by allowing them to collect at least minimal damage awards against negligent motor vehicle operators. American Standard Ins. Co., 34 S.W.3d at 90. Interests and costs are also recoverable, with interest being based on the minimum liability coverage set out in section 303.190.2(2). Wilson v. Traders Ins. Co., 98 S.W.3d 608, 617-18 (Mo.App. S.D.2003). The minimum liability coverage required by Section 303.190.2(2) “enter[s] into and form[s] a part of the ... insurance contracts to which they are pertinent as fully as if such provisions were written into the policies.” Omaha Indem. Co. v. Pall, Inc., 817 S.W.2d 491, 498 (Mo.App. E.D.1991) quoting Billings v. State Farm Mut. Auto. Ins., 741 S.W.2d 886, 888 (Mo.App. E.D.1987). Furthermore, if an insurance contract’s policy provisions conflict with the minimum requirements of section 303.190.2(2) of the MVFRL, those provisions are unenforceable to the extent they purport to deny the minimum liability coverage required by the statute. See Distler v. Reuther Jeep Eagle, 14 S.W.3d 179, 182 (Mo.App. E.D.2000).

In this case, Holte maintained financial responsibility for the vehicle he operated by purchasing a motor vehicle liability policy with American Standard. Pursuant to section 303.190.6(1), any violation of Holte’s motor vehicle liability policy with American Standard does not defeat or void said insurance policy.

Consequently, section 303.190.2(2) of the MVFRL requires that Holte’s motor vehicle liability policy with American Standard provide minimum liability coverage to Plaintiffs, that is, $50,000.00 for bodily injury to two or more persons. ■ See American Standard Ins. Co., 34 S.W.3d at 92. This required minimum liability coverage is part of the insurance contract that existed between Holte and American Standard at the time of the collision and may not be contracted around. Because the “cooperation clause” is unenforceable to the extent discussed, we need not address whether Holte breached his insurance contract with American Standard.

Therefore, the trial court erred in granting judgment in favor of American Standard because the “cooperation clause” in Holte’s motor vehicle liability policy is unenforceable against Plaintiffs to the extent it purports to deny Plaintiffs the minimum liability coverage required by section 303.190.2(2). See Distler, 14 S.W.3d at 182. Point granted.

This judgment is reversed and the case is remanded for further proceedings consistent with this opinion. On remand, the court shall determine whether Plaintiffs are also entitled to costs and post-judgment interest.

GEORGE W. DRAPER III and KENNETH M. ROMINES, JJ., concur.

      . Plaintiff originally brought the action against American Family Mutual Insurance Company, but later substituted the correct insurer, American Standard, as the defendant. Proof of service on American Standard was filed on October 25, 2004 and November 1, 2004.

      . All statutory references are to RSMo 2000, unless otherwise indicated.


text:
    Glen GARRETT, Appellant, v. UMB BANK, N.A., Respondent.
    No. ED 86065.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 22, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 9, 2006.
    Application for Transfer Denied Feb. 28, 2006.
    Charles B. Cowherd, Springfield, MO, JoAnn T. Sandifer, St. Louis, MO, for appellant.
    James J. Virtel, Ann E. Buckley, St. Louis, MO, for respondent.
    Before NANNETTE A. BAKER, P.J. and ROBERT G. DOWD, JR. and SHERRI B. SULLIVAN, JJ.
   ORDER

PER CURIAM.

Glen Garrett (“Garrett”) appeals from the trial court’s grant of summary judgment in favor of UMB Bank, N.A. ffk/a UMB Bank of Monett (“UMB”) on Garrett’s claims for slander and malicious prosecution.

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


text:
    Jackie BROOKS, Appellant, v. FERGUSON-FLORISSANT SCHOOL DISTRICT, R-II, Respondent.
    No. ED 86068.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 22, 2005.
    Application for Transfer to Supreme Court Denied Jan. 19, 2006.
    Jackie Brooks, St. Louis, MO, pro se.
    Melanie Gurley Kenney and Phyleccia Reed Cole, Tueth, Kenney, Cooper, Mohan & Jackstadt, P.C., St. Louis, MO, for respondent.
    Before MARY K. HOFF, P.J. and CLIFFORD H. AHRENS, J. and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Jackie Brooks appeals the trial court’s judgment upholding the decision of the Ferguson-Florissant School District R-II Board of Education (Board) to terminate his indefinite teacher’s contract. We affirm.

We have reviewed the briefs of the parties and the record on appeal. The Board’s decision is supported by competent and substantial evidence on the whole record. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth our reasons for the order affirming the Board’s decision pursuant to Rule 84.16(b).


text:
    Nancy JOHANNING, Claimant/Appellant, v. K.R. WILSON CONSTRUCTION COMPANY, Employer/Respondent, and Treasurer, State of Missouri, Custodian of the Second Injury Fund.
    No. ED 86322.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 29, 2005.
    Rehearing Denied Jan. 24, 2006.
    Norman A. Seiner, Clayton, MO, for appellant.
    Frank J. Lahey Jr., St. Louis, MO, for K.R. Wilson Construction Co.
    Mary Jennifer Sommers-Getz, St. Louis, MO, for Treasurer, State of Missouri.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J. and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Nancy Johanning (Appellant) appeals from the Final Award of the Labor and Industrial Relations Commission (Commission), adopting the Award of the Administrative Law Judge of the Division of Workers’ Compensation denying Appellant compensation. We have reviewed the briefs of the parties and the record on appeal and conclude that the findings and Final Award of the Commission are supported by competent and substantial evidence. An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the Final Award pursuant to Missouri Rule of Civil Procedure 84.16(b).


text:
    Brenda OTEY, Respondent, v. VERIZON, Appellant, v. American Home Assurance Co., Appellant.
    No. ED 86320.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 29, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 19, 2006.
    Application for Transfer Denied Feb. 28, 2006.
    Richard A. Day, St. Louis, MO, for appellant.
    Christopher Todd Tucker, St. Peters, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., BOOKER T. SHAW, J., and PATRICIA J. COHEN, J.
   ORDER

PER CURIAM.

Verizon and American Home Assurance Co. appeal the Labor and Industrial Relations Commission’s decision that Brenda Otey sustained an injury by occupational disease which arose out of and in the course of her employment. We affirm.

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