text:
    Donald ALBIN, Appellant, v. Diane ALBIN, Respondent.
    No. ED 84283.
    Missouri Court of Appeals, Eastern District, Division Two.
    Feb. 22, 2005.
    Joseph Howlett, Clayton, MO, for appellant.
    Michael L. Schechter, Clayton, MO, for respondent.

      Before PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ.
   ORDER

PER CURIAM.

Donald Albin (Husband) appeals from a decree of dissolution of his marriage to Diane Albin (Wife). Husband contends the trial court erred in finding only $5,000.00 of marital funds expended on Wife’s separate property located at 442 Bush Drive where he presented evidence that $98,197.61 of marital funds was expended in improvements to the property.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    David LINDSEY, Claimant/Respondent/Cross-Appellant, v. TREASURER OF the STATE of Missouri, as Custodian of the Second Injury Fund, Defendant/Appellant/Cross-Respondent.
    Nos. ED 84640, ED 84639.
    Missouri Court of Appeals, Eastern District, Division Two.
    Feb. 22, 2005.
    Dianna L. Bartels, Assistant Attorney General, St. Louis, MO, for appellant.
    Joseph W. Larrew, Diekemper, Hammond, Shinners, Turcotte And Larrew, P.C., St. Louis, MO, for respondent.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J. and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

The Second Injury Fund appeals from the final award of the Labor and Industrial Relations Commission affirming the award of the Administrative Law Judge finding Second Injury Fund liability for permanent total disability in claimant’s claim based on a June 2000 back injury, and permanent partial disability based on com-binative disability in claimant’s claims based on separate injuries in February, 1995 and May, 1996. Claimant cross-appeals. We affirm. The findings and conclusions of the Commission are not clearly erroneous, and an extended opinion would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our order affirming the judgment pursuant to Rule 84.16(b).


author: NANNETTE A. BAKER, Judge.

text:
    James PARKER, Respondent, v. Sheriff Tim SWOPE and St. Charles County Prosecuting Attorney, Appellants, and City of O’Fallon and State Criminal Records Repository, Defendants.
    No. ED 84689.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 1, 2005.

      Joann Leykam, Office of the St. Charles County Counselor, St. Charles, MO, for Prosecutor & Sheriff of St. Charles County-
    Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, MO, Mark C. Pointek, Washington, MO, for City of O’Fallon.
    Richard K. Zerr, St. Charles, MO, for James Parker.
   NANNETTE A. BAKER, Judge.

The St. Charles County Sheriff’s Department (“the Sheriff’) and the St. Charles County Prosecutor (“the Prosecutor”) appeal from a judgment in the Circuit Court of St. Charles County granting, in part, expungement of arrest records of James C. Parker (“Parker”) pursuant to Section 610.122.

The Sheriff and the Prosecutor claim on appeal that the trial court erred in granting Parker’s expungement as to the City of O’Fallon, the Missouri Highway Patrol and the Criminal Records Repository, in that Section 610.123 recognizes a cause of action for expungement of a single “Record of Arrest” and not for expungement of individual agencies and the affirmative defense of res judicata protects the record of arrest as a whole. They also claim that the trial court erred in granting Parker’s expungement as to the City of O’Fallon, the Missouri Highway Patrol and the Criminal Records Repository in that Sections 610.122 and 610.123 recognize a cause of action for expungement when the criteria set forth in the statute are met, but the court never found that the criteria were met. Instead, the court granted the expungement based on default of the non-appearing agencies. We cannot consider these points, however, because we have no jurisdiction to hear this appeal. The Sheriff and the Prosecutor are not aggrieved parties and therefore lack standing to appeal. We dismiss.

In February 2003, Parker filed a Petition for Expungement of Arrest Records and a cause number was assigned. Parker listed the charge he sought to be expunged as a domestic assault, for which he was arrested in August 2001. Parker requested an expungement of the arrest and all related charges not filed but considered. Parker referenced the case number of the domestic assault arrest and charge he sought to expunge in multiple places. Parker listed as defendants: the Criminal Records Repository, the City of O’Fallon Police Department, the St. Charles County Circuit Court, the Prosecutor, and NCIC-FBI Records. The initial petition did not list the Sheriff as a Defendant, however the Sheriff noted his opposition to the expungement in a motion made by the prosecutor.

On April 15, 2003, the first expungement hearing was held. The Prosecutor and the Sheriff appeared by counsel. The City of O’Fallon appeared by Police Officers Buchanan and Frackelton. Officer Frackel-ton was the officer at the time of the original incident who prepared the probable cause statement. Parker appeared at that hearing pro se. The court offered Parker a continuance so that Parker could obtain counsel but Parker refused and the hearing was held. The court denied the Petition to Expunge.

In November 2008, Parker re-filed a Petition for Expungement of Arrest Records seeking to expunge the same arrest record as the previous petition. A new cause number was assigned to his petition. He also filed another petition for expungement, which is not part of this appeal.

Parker listed the charge he sought to be expunged as “unlawful use of a weapon— Assault,” for which he was arrested on August 30, 2001. The case number of the arrest and charge he sought to expunge was identical to the case referenced in the éarlier filed expungement on which the trial judge in the first hearing had already ruled. The affected law enforcement agencies listed as defendants in this second Petition for Expungement were the Criminal Records Repository, the City of O’Fallon Police Department, the St. Charles County Circuit Court, and the Prosecutor. Parker also listed the Missouri Highway Patrol and the Sheriff, who were not parties to the first action.

The Sheriff and the Prosecutor filed a Motion to Dismiss, raising the existence of probable cause for the arrest and further raising the defense of res judicata. The court took judicial notice of the court’s file in the first Petition to Expunge. The court granted the Sheriffs and Prosecutor’s motion to dismiss. The City of O’Fallon Police Department, the Criminal Records Repository and the Missouri State Highway Patrol faded to appear at the proceedings. Noting their failure to appear, the court granted the petition of expungement as a default judgment against the City of O’Fallon Police Department, the Criminal Records Repository and the Missouri State Highway Patrol. The Prosecutor and Sheriff then filed this appeal.

On appeal, the Sheriff and the Prosecutor contend that the trial court erred in expunging Parker’s record as to the City of O’Fallon Police Department, the Criminal Records Repository and the Missouri State Highway Patrol for two different reasons. First, the Sheriff and the Prosecutor contend that the trial court erred in not holding that res judicata precluded a second hearing on the merits. Secondly, they assert that it was error to grant expungement based on default of the non-appearing agencies rather than finding that the criteria of the statute were not met.

Unfortunately, we are unable to examine these arguments because the Sheriff and the Prosecutor lack standing to appeal. Because the trial court decision was in their favor, they are not aggrieved parties as is required by Section 512.020.

Before considering points on appeal, this court must determine whether we have jurisdiction and if we lack jurisdiction the appeal should be dismissed. City of Brentwood v. Barron Holdings Intern., Ltd., L.L.C., 66 S.W.3d 139, (Mo.App. E.D.2001).

The right to appeal is established by Section 512.020, which provides in relevant part, “Any party to a suit aggrieved by any judgment of any trial court in any civil cause from which an appeal is not prohibited ... may take his appeal to any court having appellate jurisdiction from ... any final judgment.”

Under the statute, a party must be “aggrieved” by the judgment below to have any right to appeal. Schroff v. Smart, 120 S.W.3d 751, 754 (Mo.App. W.D.2003). An aggrieved party is one who suffers from an infringement or denial of legal rights. Barron, 66 S.W.3d at 142. The judgment in question must operate directly and prejudicially on the party’s personal or property rights or interests and such effect must be immediate and not merely a possible remote consequence. HHC Medical Group, P.C. v. City of Creve Coeur Bd. Of Adjustment, 99 S.W.3d 68, 73 (Mo.App. E.D.2003). To have standing, the party seeking relief must show two things: (1) the party is sufficiently affected by the action being challenged to justify consideration by the court of the validity of the action; and (2) the action violates the rights of the particular party who is attacking it and not some third party. Id.

In this case, the Sheriff and the Prosecutor filed a Motion to Dismiss, raising the existence of probable cause for the arrest and the defense of res judicata. The court granted the Motion to Dismiss in favor of the Sheriff and the Prosecutor on the basis of the res judicata defense.

The decision in favor of the Sheriff and the Prosecutor does not directly and immediately affect their pecuniary or property rights or interests. Their motion to dismiss was granted and they were not required to expunge. The judgment was in their favor.

Because the judgment was in their favor, any prejudicial effect from the judgment would occur only as a possible and remote' consequence. For example, in their brief, the Sheriff and the Prosecutor point to the complications that result from a partial expungement of an arrest record. In short, if a party were to go to the Sheriff for a criminal background check, the arrest would appear on the record but upon inquiry to the O’Fallon Police Department, the arrest would not be on the record. However, the possibility that this would involve the Sheriff and the Prosecutor enough to affect pecuniary or property rights is remote. We do not believe that the Sheriff and the Prosecutor would be sufficiently affected by the action being challenged to justify consideration by the court of the validity of the action and accordingly, they do not meet the first prong of the standing test.

Under the second prong of the test, parties have standing if the action violates the rights of the particular party who is attacking it and not some third party. This is obviously not the case here. The motion filed by the Sheriff and the Prosecutor was granted and they were not required to expunge. The City of O’Fallon Police Department, the Criminal Records Repository and the Missouri State Highway Patrol were the departments required to expunge, but they did not appeal. If any rights were violated by requiring the expungement as to those three entities, it would be the rights of those three entities and not the rights of the Sheriff and the Prosecutor. Thus it stands that the Sheriff and the Prosecutor are trying to assert the violation of the rights of third parties, and not themselves.

Accordingly, regardless of the potential merit of the arguments of the Sheriff and the Prosecutor, we are unable to review those contentions because they lack standing to appeal a ruling in their favor.

Appeal dismissed.

CLIFFORD H. AHRENS, P.J., and GLENN A. NORTON, J„ concur.

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

      . RSMo 2003


author: ROBERT G. ULRICH, P.J.

text:
    STATE of Missouri, Respondent, v. John REED, Appellant.
    No. WD 63337.
    Missouri Court of Appeals, Western District.
    March 1, 2005.

      Dimitra Y. Massey, Kansas City, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Deborah Daniels, Lacey R. Searfoss, Jefferson City, MO, for Respondent.
    Before ROBERT G. ULRICH, P.J., JAMES M. SMART, JR., and JOSEPH M. ELLIS, JJ.
   ROBERT G. ULRICH, P.J.

John Reed appeals his convictions for possession of a controlled substance with intent to distribute, section 195.211 (class B felony); unlawful use of a weapon, section 571.030 (class D felony); possession of drug paraphernalia, section 195.233 (class A misdemeanor); and driving while revoked, section 802.321 (class A misdemean- or). Following an evidentiary hearing on a Motion to Suppress Physical Evidence, Mr. Reed waived his right to jury trial, and, at his request without the State opposing, the court decided the case based upon the evidence presented during the motion hearing. Mr. Reed was sentenced to eight years in prison for possession of a controlled substance, four years in prison for unlawful use of a weapon, one year in jail for possession of drug paraphernalia, and one year in jail for driving while revoked. All of the sentences were ordered to run concurrently and according to section 559.115. Mr. Reed raises as his sole claim on appeal that the trial court erred in denying his motion to suppress physical evidence because the evidence was obtained through an improper inventory search of the vehicle he was driving when arrested.

The judgment of convictions is affirmed.

Facts

On October 12, 2003, at approximately 5:00 p.m., Officer Ed Turner of the Independence Police Department was patrolling the area of Logan and Stone in Independence. As Officer Turner approached 901 East Stone, he noticed that the building — a two story detached garage — had several cars parked around it, including a white four-door car parked on the wrong side of the roadway. The sole occupant of the vehicle exited the car, leaving the door open, and approached the building. Officer Turner became suspicious that some sort of drug activity was taking place and parked his car to observe the building.

After a short time, the driver of the white four-door car returned. The driver entered the vehicle and drove it forward, allowing a blue Mercury Cougar to exit. The white car was then driven into the parking space the Mercury had previously occupied, and the blue Mercury was driven away from the residence. Officer Turner followed the Mercury, though he testified that he observed nothing suspicious about the driver.

While following the Mercury, Officer Turner initiated a check of the license plates on the Mercury and was informed that the plates were registered to a 1986 Pontiac. Officer Turner communicated to the driver of the Mercury to stop the vehicle, and the driver drove into the private parking lot of County Court Services in Independence. Officer Turner then approached the driver, Mr. Reed, and asked for his driver’s license. Mr. Reed produced a Missouri State Identification Card and informed Officer Turner that he did not have a valid operator’s license. Mr. Reed further informed Officer Turner that although he was the owner of the vehicle, the license plates on the vehicle belonged to a friend.

Mr. Reed was arrested when Officer Turner verified that he did not possess a valid driver’s license. Officer Turner noted that no lights were on inside the County Court Services facility, and he ordered a police tow of Mr. Reed’s vehicle. He then began to search the Mercury. During the search of the passenger compartment of the vehicle, Officer Turner located and collected: (1) six plastic baggies containing a “white powdery crystal substance” hidden inside a plastic “hide-a-key” between the driver’s side seat and door; (2) a glass pipe located between the driver’s side bucket seat and the console between the driver’s and passenger’s seats; (3) a yellow cut straw and a syringe from inside a blue zippered bank bag found in the glove compartment; and (4) two sheathed hunting knives from between the driver’s seat and console. The six plastic baggies were marked with numbers, and, following laboratory analysis, the white powdery substance inside the baggies was determined to constitute 3.0455 grams of methamphetamine. The two hunting knives were of different lengths and sheathed together. Officer Turner testified that he measured the blade of the longer knife and found it to exceed four inches.

Officer Turner then searched the trunk of the Mercury and located a latched green toolbox. Officer Turner opened the toolbox and found and collected: (1) zip-lock bags containing a white powder residue; (2) a small white spoon; (3) a purple cut straw; (4) several syringes; (5) prep wipes or alcohol swabs; (6) a butane lighter; (7) two small vials, one containing a “cotton type substance” and the other containing “a clear liquid substance.” A green canvas zippered bag was also in the toolbox, and many of the listed items were inside the zippered bag.

Counsel for Mr. Reed filed a Motion to Suppress Physical Evidence on July 28, 2003, and a hearing commenced on the motion the same day. Officer Turner testified. The parties stipulated to certain evidence, and Mr. Reed waived his right to a jury trial. In order to preserve the suppression issue for appeal, Mr. Reed then asked the trial court to make a finding of guilt or innocence based upon the court’s ruling on the Motion to Suppress Physical Evidence. The trial court sustained the motion on September 12, 2003, with respect to the evidence taken from the trunk of the automobile, and overruled the motion with respect to the evidence taken from the passenger compartment of the vehicle. Both rulings were made without further explanation. The trial court then accepted Mr. Reed’s waiver of jury trial, and, according to Mr. Reed’s motion to determine his guilt or innocence on the basis of the evidence presented at the suppression hearing, found him guilty of possession of a controlled substance with the intent to distribute, unlawful use of a weapon, possession of drug paraphernalia with intent to use, and driving while his operator’s license was revoked. Mr. Reed timely filed this appeal.

Standard of Review

In his sole point on appeal, Mr. Reed contends that the trial court improperly denied his Motion to Suppress Physical Evidence regarding the items collected from the passenger compartment of his car. Ordinarily, denial of a defendant’s pretrial motion to suppress evidence is not reviewable because it is interlocutory, not binding on future proceedings, and preserves nothing for appeal. State v. Wolf, 91 S.W.3d 636, 642 (Mo.App.2002). Objection to the introduction of the evidence must be made at trial to preserve the issue. Id. Where a motion to suppress was overruled and the evidence was introduced at trial, appellate review considers the evidence presented both at the suppression hearing and at trial in determining whether the motion should have been granted. State v. Goff, 129 S.W.3d 857, 861 (Mo. banc 2004). Appellate review of a motion to suppress physical evidence is limited to determining whether the record as a whole provides sufficient evidence to support the trial court’s decision. State v. Pfleiderer, 8 S.W.3d 249, 258 (Mo.App. W.D.1999). In this case, by stipulation of the parties, the suppression hearing constituted the trial, and, therefore, the motion to suppress is treated as an objection to the admission of the evidence and is preserved for appellate review.

When reviewing a trial court’s ruling on a motion to suppress, all facts and reasonable inferences should be stated in the manner most favorable to the order challenged on appeal. State v. Kinkead, 983 S.W.2d 518, 519 (Mo. banc 1998). All evidence that contradicts the order should be disregarded. Id. A trial court’s ruling will not be reversed if the ruling is plausible in light of the record viewed in its entirety. State v. Milliorn, 794 S.W.2d 181, 184 (Mo. banc 1990). Furthermore, the State bears the burden of producing evidence and the risk of nonpersuasion. State v. West, 58 S.W.3d 563, 568 (Mo.App. W.D.2001). While considering the weight of the evidence is within the discretion of the trial court, the “ultimate issue of whether the Fourth Amendment was violated is a question of law, which this court reviews de novo.” State v. Pfleiderer, 8 S.W.3d at 253(quoting State v. McFall, 991 S.W.2d 671, 673 (Mo.App. W.D.1999)).

Analysis

Mr. Reed contends that the discovered physical evidence should have been suppressed as the fruits of an improper inventory search. However, the record contains no indication that the trial court relied upon the inventory search as the basis for overruling the motion. The question for this court’s review is whether the evidence, acquired without a search warrant, was lawfully acquired, and whether the State presented sufficient evidence to rebut the presumption that it was not. The evidence reflects that Officer Turner stopped Mr. Reed, who was then driving his blue Mercury because the license plates on the vehicle were registered to another vehicle. Officer Turner further testified that upon his inquiry, Mr. Reed admitted that he did not have a valid driver’s license. Once he confirmed that Mr. Reed’s operator’s license had been revoked, Officer Turner arrested Mr. Reed for driving without a valid license. The evidence presented demonstrates sufficient probable cause for Officer Reed to arrest Mr. Reed.

Officer Turner further testified that in placing Mr. Reed under arrest, he “checked to make sure he didn’t have any weapons on him.” Searches incidental to arrest are appropriate even in traffic violations, including driving without a valid driver’s license. See State v. Esquivel, 987 S.W.2d 481 (Mo.App. W.D.1999). Officer Turner conducted the search of the passenger compartment of the vehicle Mr. Reed had driven after Mr. Reed’s arrest, and he found the incriminating items not suppressed. Thus, the issue is whether Officer Tucker’s search of the passenger compartment of the blue Mercury was so extensive that it violated provisions of the Fourth and Fourteenth amendments of the United States Constitution.

Recognizing that appellate courts had both suppressed and admitted evidence where the acquisition of incriminating evidence resulted from warrantless searches of passenger compartments of vehicles or containers in passenger compartments contemporaneous with the arrest- of the vehicle occupants, the Supreme Court in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), expressed the need for a rule applicable in all cases involving similar such facts. The Court said, “When a person cannot know how a court will apply a settled principle to a recurring factual situation, that person cannot know the scope of his constitutional protection, nor can a policeman know the scope of his authority.” Id. at 459-60,. The exigent concern for an officer’s safety when the officer has arrested an individual allows the officer to make certain that no weapons are readily accessible within the area in the defendant’s immediate control. Id. at 457. The Court expressed the need for a universal “workable,” “straightforward rule,” where an officer has arrested an occupant of a motor vehicle. Thus, it adopted the “workable rule” that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” Id. at 459-60.

The Missouri Supreme Court, in its application of Belton, recognized that the concern for officer safety is applicable even when the officer has already placed the defendant in handcuffs. State v. Harvey, 648 S.W.2d 87, 89 (Mo. banc 1983). The Court adopted a broad interpretation of Belton as the intent of the U.S. Supreme Court, concluding that even had the defendant and the other three occupants of the vehicle in Belton been handcuffed and placed in the law enforcement officer’s patrol vehicle that “the result would have presumably been the same.” Id.

Since Belton and Harvey, the United States Supreme Court has extended the rule in Belton, and the Missouri Supreme Court’s analysis of Belton was proven correct. The U.S. Supreme Court, in Thornton v. U.S., 541 U.S. 615, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004), considered whether the rule in Belton that permits the search of the passenger compartment of the vehicle a suspect has recently been driving applied not only where the suspect was in the vehicle when first confronted by the law enforcement officer but also where a law enforcement officer first confronted the suspect after the suspect had exited the vehicle. In Thornton, the suspect parked and left his vehicle as the law enforcement officer drove his police vehicle in behind the suspect’s parked car. 124 S.Ct. at 2129. The law enforcement officer approached the suspect, asked him for his driver’s license, and told the suspect that the license tags on the vehicle were not registered to it. Id. Ultimately, the law enforcement officer arrested the suspect, searched his person, and found contraband drugs. Id. The officer handcuffed the suspect and placed him in the back seat of the police vehicle. Id. The officer then searched the suspect’s vehicle and found a 9-millimeter handgun under the driver’s seat. Id. The suspect was charged with possession with intent to distribute cocaine, 21 U.S.C. 841(a)(1); possession of a firearm after having been previously convicted of a crime, 18 U.S.C. 922(g)(1); and possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. 924(c)(1). Id. The suspect argued that the rule in Belton was limited to situations where the law enforcement officer initiated contact with an arrestee while the arrestee was still an occupant in the searched vehicle. Id. at 2130. The court noted that:

Rather than clarifying the constitutional limits of a Belton search, petitioner’s “contact initiation” rule would obfuscate them. Under petitioner’s proposed rule, an officer approaching a suspect who has just alighted from his vehicle would have to determine whether he actually confronted or signaled confrontation with the suspect while he remained in the car, or whether the suspect exited his vehicle unaware of, and for reasons unrelated to, the officer’s presence. This determination would be inherently subjective and highly fact specific, and would require precisely the sort of ad hoc determinations on the part of officers in the field and reviewing courts that Belton sought to avoid.

Id. at 2132. The court concluded, “So long as an arrestee is the sort of ‘recent occupant’ of a vehicle such as petitioner was here, officers may search that vehicle incident to the arrest.” Id.

Significant for the case now before this court is the analysis of Belton by the Missouri Supreme Court in Harvey and by the U.S. Supreme Court in Thornton. In Harvey and Thornton, the Courts determined that even though the defendants had been handcuffed and removed from direct and immediate access to the vehicles that they had recently driven, the searches of the passenger compartment of the vehicles were incident to lawful arrest and valid. Thus, applying the rule in Belton as expressed and applied by the U.S. Supreme Court in both Belton and Thornton and as understood and expressed by the Missouri Supreme Court in Harvey, once Mr. Reed was placed in custody, Officer Turner was justified in performing a war-rantless search incident to arrest of the passenger compartment of the automobile Mr. Reed had shortly before been driving.

Having found that the record supports the decision of the trial court to overrule Mr. Reed’s motion to suppress, the need to address whether the search was a valid inventory search is moot.

The judgment of conviction is affirmed.

SMART and ELLIS, JJ., concur.

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

      . Testimony adduced at the motion hearing indicates that Officer Turner had made drug related arrests at the detached garage and at the corresponding residence and had previously served warrants at the 901 E. Stone structure.

      . Officer Turner testified that a "hide-a-key” is a "small container which is used to hold keys generally in a concealed area,” this particular item contained a magnet on one side and a flip top lid.


text:
    STATE of Missouri, Plaintiff/Respondent, v. Michael METZGER, Defendant/Appellant.
    No. ED 84029.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 1, 2005.
    David A. Bruns, Clayton, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Richard Anthony Starnes, Co-Counsel, Jefferson City, MO, for Respondent.
    Before LAWRENCE E. MOONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARY K HOFF, J.
   ORDER

PER CURIAM.

Michael Metzger (Defendant) appeals from the trial court’s judgment and sentence imposed after a jury found him guilty of one count of first-degree involuntary manslaughter, in violation of Section 565.024, and one count of armed criminal action, in violation of Section 571.015. The trial court sentenced Defendant to consecutive terms of two years’ imprisonment on the involuntary manslaughter conviction and three years’ imprisonment on the armed criminal action conviction.

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would have no jurisprudential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 30.25(b).

      . All subsequent statutory references are to RSMo 2000, unless otherwise noted.


author: PATRICIA L. COHEN, Presiding Judge.

text:
    Frederick J. PEET, Appellant, v. Cecelia RANDOLPH and George Randolph, Respondents/Cross Appellants.
    No. ED 84251.
    Missouri Court of Appeals, Eastern District, Division Two.
    March 1, 2005.

      John G. Young, Jr., Clayton, MO, for appellant.
    Frank K. Carlson, Union, MO, for respondents.
   PATRICIA L. COHEN, Presiding Judge.

Frederick J. Peet appeals from an amended judgment of the Circuit Court of Franklin County, denying specific performance of a real estate contract he and Judith Keen entered into with Cecelia and George Randolph for the purchase of the Randolphs’ farm in Franklin County. Peet argues that the trial court erred when it denied his petition for specific performance on the grounds that the contract lacked an adequate property description. Mrs. Randolph cross-appeals from the portion of the judgment taxing costs against her. We affirm in part and reverse in part.

Background

Peet and Keen (collectively “Purchasers”) filed a petition for specific performance of a real estate contract involving the sale of a 140-acre farm owned by Mr. and Mrs. Randolph. Initially, the trial court granted summary judgment in favor of the Randolphs, finding, in relevant part, that the contract was indefinite and incapable of specific performance. Purchasers appealed. We reversed, holding, inter alia, that there were genuine issues of material fact that precluded summary judgment and remanded for a trial on the merits. See Peet v. Randolph, 33 S.W.3d 614 (Mo.App. E.D.2000) {Peet I).

Following remand, the trial court dismissed Purchasers’ cause with prejudice for failure to prosecute. Peet appealed. We reversed the dismissal and remanded for a trial on the merits. See Peet v. Randolph, 103 S.W.3d 872 (Mo.App. E.D. 2003) (Peet II). Following the second remand, the parties tried the matter over the course of a number of days.

In May 1996, Purchasers entered into a Residential Sale Contract (“RSC”) with Mr. and Mrs. Randolph for the purchase of “120 ± acres” of the Randolphs’ 140 acres. The Randolphs intended to retain approximately 20 acres of the property. However, the 20 acres to be retained were not specifically described in the contract. Rather, the RSC described the sale property in pertinent part as, “120 ± acres and All Improvements as per MLS Listing # 532264, 3547 Hwy EE, Beaufort, Mo. Legal to govern.” A Supplemental Agreement, incorporated by reference into the RSC, provided that the Randolphs would obtain a survey at their expense:

Survey: Buyer acknowledges orig. tract is 140 ± A. Seller, with P & Z approval, is retaining no more than 20 A. Seller agrees to have corners of 20 A. tract marked at his expense. Excepting the prior mentioned 20 A tract, Buyer accepts the property lines as per existing plat.

(Emphasis added).

Despite the Supplemental Agreement’s reference to an “existing plat,” the trial court determined that Purchasers did not attach the document to the Supplemental Agreement. Peet contended at trial that “existing plat” referred to a “Highlighted Map” that Purchasers’ real estate agent, Randall Carter, created by modifying an aerial photograph of the property that the Randolphs’ real estate agent, Paul Pier, Jr., had included in a sales brochure. The photograph, which contained a superimposed plat, reflected Pier’s hand-drawn lines intended to approximate the 20-acre “wedge” the Randolphs wished to retain. The Randolphs, however, never approved of or consented to Pier’s location of the 20-acre “wedge.”

Although the Randolphs signed the RSC and Supplemental Agreement in May 1996, Mrs. Randolph testified at trial that she and her late husband did not carefully read the Supplemental Agreement before signing it, taking “for granted that [Pier] would treat us right.” Sometime later, the Randolphs realized that their understanding of the deal differed from Purchasers’ understanding in certain key respects, including, among others, the location of their 20-acre tract. The parties disputed whether Pier showed the Highlighted Map to the Randolphs. However, the trial court determined that the Randolphs were not shown the Highlighted Map and did not intend for it to be a part of the Supplemental Agreement and RSC.

In August 1996, Purchasers were willing and able to close. The Randolphs, however, refused to close and did not appear at the scheduled closing. Purchasers filed the underlying action for specific performance on September 23,1996.

In 1999, Purchasers retained a registered land surveyor to prepare a legal description of the real estate they believed was covered by the RSC. Relying on, among other things, the RSC, Supplemental Agreement, and Highlighted Map, the surveyor was unable to determine the exact boundaries of the particular 20-acre tract the agreement provided the Ran-dolphs were to retain. Rather, he presented undisputed evidence that the “wedge” in the Highlighted Map contained more than twenty-two acres. The trial court concluded based on the surveyor’s testimony that several possible 20-acre tracts could be drawn within the wedge.

Following trial, the trial court entered a detailed judgment denying specific performance on the grounds that it could not “find a specific legal description for the real estate that must be sold in this case” and was not “in a position to choose boundaries from among the possible alternatives-” After finding against Purchasers and in favor of the Randolphs, the trial court taxed costs against the Randolphs.

This appeal and cross-appeal followed.

Standard of Review

In suits of an equitable nature, we sustain the trial court’s judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We view the evidence, and permissible inferences therefrom, in the light most favorable to the trial court’s judgment, and we disregard all contrary evidence and inferences. Professional Laundry Management Systems, Inc. v. Aquatic Technologies, Inc., 109 S.W.3d 200, 203 (Mo.App. E.D.2003). We defer to the trial court’s factual findings, giving due regard to the trial court’s opportunity to judge the credibility of the witnesses. Id. at 203. Additionally, the trial court is afforded considerable discretion in deciding whether to award the equitable remedy of specific performance. McBee v. Gustaaf Vandecnocke Revocable Trust, 986 S.W.2d 170, 173 (Mo. banc 1999). We review the trial court’s award of costs for an abuse of discretion. Chapman v. Schearf 360 Mo. 551, 559, 229 S.W.2d 552, 555 (Mo. banc 1950) (courts in equity have inherent and discretionary power to award costs).

Discussion

A. Specific Performance

In his sole point on appeal, Peet argues that the trial court erred in denying specific performance because the Supplemental Agreement, when read together with the referenced “existing plat,” provides the necessary “key” for the identification and description of the subject property. Peet contends, in the alternative, that any perceived uncertainty in the contract was caused by the Randolphs’ failure to obtain a survey, as required by the RSC, and can be cured by ordering Mrs. Randolph to obtain the survey. Mrs. Randolph counters that the contract is incapable of specific performance because of its uncertain terms and not because she and her late husband faded to obtain a survey. We agree that the trial court properly denied specific performance.

A party may not compel specific performance of a real estate contract unless the contract: (1) is definite, certain and complete; (2) contains the essential terms; and (3) may be enforced as written. Peet I, 33 S.W.3d at 617. One of the essential terms of a real estate contract is a description of the real property. Id. While “[t]he land does not need to be fully and actually described in the paper; ... the writing must afford the means whereby the identification may be made perfect and certain through parol evidence.” Id. (citing Herzog v. Ross, 355 Mo. 406, 196 S.W.2d 268, 270 (Mo.1946)). Importantly, a “writing is sufficient if it clearly reveals the intent of the parties with reference to the particular tract which is the subject matter of the sale and furnishes the means of its identification; or, as some cases hold, if it provides the ‘key’ to the identification — the applicable principle being that that is certain which can be made certain.” Ray v. Wooster, 270 S.W.2d 743, 749 (Mo.1954) (emphasis added).

Our analysis of Peet’s appeal turns chiefly on the requirement that the writing “must afford the means whereby the identification may be made perfect and certain through parol evidence.” Peet I, 33 S.W.3d at 617. Here, the writing fails to meet this requirement. The RSC describes the property as:

120 ± acres and All Improvements as per MLS Listing # 532264, 3547 Hwy EE, Beaufort, Mo. Legal to govern.

The Supplemental Agreement includes the following survey provision:

Survey: Buyer acknowledges orig. tract is 140 ± A. Seller, with P & Z approval, is retaining no more than 20 A. Seller agrees to have corners of 20 A. tract marked at his expense. Excepting the prior mentioned 20 A tract, Buyer accepts the property lines as per existing plat.

(Emphasis added). Neither the RSC nor the Supplemental Agreement contains a legal description of the subject property. In fact, these documents alone provide little more than that Purchasers agree to buy approximately 120 acres of the Ran-dolphs’ approximately 140-acre farm. An acre is “[a] quantity of land containing 160 square rods, 4,840 square yards, or 43,560 square feet of land, in whatever shape.” Black’s Law Dictionary 17 (abridged 6th ed.1998). Thus, the term acre can be applied to land in any number of forms and merely referring to acreage in the property designation is not a meaningful description. Peet, however, asserts that the Supplemental Agreement, when read together with the “existing plat,” provides the necessary “key” for a valid description. We disagree.

The “key” contained in the writing must be a reference “to external standards in existence. at the time and capable of being determined beyond dispute.” Ray v. Wooster, 270 S.W.2d at 749 (internal citation omitted). Here, even accepting Peet’s contention that the “existing plat” refers to the Highlighted Map that his real estate agent created, Peet’s claim cannot prevail. The “key” fails to identify the particular “120 ± acres” to be sold. As established at trial, Peet’s surveyor, even with reference to the Supplemental Agreement and Highlighted Map, was unable to determine what particular property was to be conveyed and what was to be retained because the “wedge,” as identified in the Highlighted Map, contained “a lot more” than 20 acres. See Williamson v. Burnett, 345 S.W.2d 80, 83 (Mo.1961) (description sufficient where surveyor would have no difficulty identifying property in question). As the trial court determined, the Ran-dolphs’ 20-aere parcel could be drawn in a number of ways within the wedge.

Peet’s reliance on the Supplemental Agreement’s provision for a future survey does not rectify the defects in the RSC and the Supplemental Agreement. Peet argues that a proper reading of the survey provision clarifies that the parties intended the Randolphs to “select the no more than 20 acres within the Wedge and to have the 20 acres surveyed ...,” after execution of the contract. According to Peet, to that end, the trial court should have ordered Mrs. Randolph to choose one of the possible 20-acre tracts within the wedge and close on the sale.

While a survey may be used to confirm a valid, although imperfect description, Peet points to no Missouri case allowing a survey to be conducted after the contract is executed for the purpose of first identifying and then describing the property to be conveyed by the previously executed contract. See Biggs v. Moll, 463 S.W.2d 881 (Mo.1971) (survey used to confirm description). Moreover, Peet’s position is viola-tive of the basic principle that the writing must clearly reveal “the intent of the parties with reference to the particular tract which is the subject matter of the sale.” Ray v. Wooster, 270 S.W.2d at 749 (emphasis added). Here, the writing does not clearly reveal the intent of the parties regarding the particular property to be conveyed because, as acknowledged by Peet, the parties themselves had not agreed to the particular tract to be purchased as of the time they executed the contract.

In addition, Peet’s contention is based on his unilateral post-contract interpretation of the survey provision. The pertinent part of the survey provision provides that:

Seller ... is retaining no more than 20 A. Seller agrees to have corners of 20 A. tract marked at his expense. Excepting the prior mentioned 20 A tract, Buyer accepts the property lines as per existing plat.

According to Peet, “[t]hat language and the Highlighted Map established the outside perimeter of where Defendants could locate the retained property within the Wedge under the Buyers’ offer.” However, the survey provision does not mention the “wedge,” or suggest the possibility of more than one 20A tract. Although Peet points to evidence in the record to support a finding that the parties agreed to the parameters of the wedge, and therefore to the portion the Randolphs were to retain, the trial court was unpersuaded. Peet’s counsel attempted to address the problem when he stated at a post-trial hearing that Peet “will agree that the 20-acre parcel can be located anywhere within the wedge.” This does not cure the problem and, in fact, highlights the deficiency of the contract.

Under the facts and circumstances of this case, we find that the trial court did not err in denying specific performance. Point denied.

B. Costs

In her cross-appeal, Mrs. Randolph contends that the trial court improperly assessed costs against her because she was the prevailing party for the purposes of Section 514.060, R.S.Mo. Peet responds that the trial court acted within its discretion because the majority of costs were incurred during the prior two appeals in which Peet was successful.

We agree that the trial court erred in assessing all costs against Mrs. Randolph. While courts in equity cases “have an inherent, discretionary power to award costs,” Gieselmann v. Stegeman, 470 S.W.2d 522, 525 (Mo.1971), “Apportionment of costs in equity, as well as in other cases where the trial court has discretion, must bear some relationship to the judgments upon all of the issues and the principal issue litigated.” Kopp v. Franks, 792 S.W.2d 413, 422 (Mo.App. S.D.1990). Here, the principal issue litigated was whether Mrs. Randolph should be ordered to specifically perform a real estate contract. While Mrs. Randolph prevailed on this issue, the trial court found “both Plaintiffs and Defendants are responsible for their failure to communicate and close the RSC.” We, thus, find that the trial court abused its discretion in assessing all costs against Mrs. Randolph. Therefore, we remand this issue to the trial court for a hearing as to costs consistent with this opinion.

Conclusion

The trial court’s judgment is affirmed in part and reversed in part.

KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ., concur.

      . Judith S. Keen was a plaintiff in the original action, but before trial assigned her interest in the property to Peet. Keen is not a party to this appeal. George Randolph died before trial.

      . We note that, in his brief, Peet suggests that the trial court's denial of specific performance somehow violates our decision in Peet I, remanding the case back to the trial court for a trial on the merits. He is mistaken. In Peet I, we remanded the case because we found there was a question of material fact as to whether the highlighted photograph "was part of the contract and whether the lines on it provide a sufficient description of the real estate for specific performance." While the trial court found it could properly consider the photograph, the court found as a matter of fact that the photograph did not provide a sufficient description.


text:
    Patricia ALLGEYER, Claimant/Appellant, v. CARDINAL GLENNON CHILDREN’S HOSPITAL, Employer/Respondent.
    No. ED 84645.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 1, 2005.
    Robert W. Butler, Arnold, MO, for appellant.
    Heidi Jennings, St. Louis, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN and MARY K. HOFF, JJ.
   ORDER

PER CURIAM.

In this workers’ compensation case, the claimant, Patricia Allgeyer, appeals from the Labor and Industrial Relations Commission’s final award denying compensation finding that the claimant’s claim was barred by the statute of limitations.

We have reviewed the parties’ briefs and the record on appeal. We find the Commission’s decision is supported by sufficient competent and substantial evidence on the whole record and no error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value nor serve any jurisprudential purpose. The parties have been furnished with a memorandum, for their information only, explaining the reasons for our decision. The Commission’s award is affirmed pursuant to Rule 84.16(b).


text:
    Elgin D. VINSON, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84306.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 1, 2005.
    Gwenda R. Robinson, St. Louis, MO, for appellant.
    Deborah Daniels, Alison K. Brown (co-counsel), Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J. and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Elgin Vinson appeals the judgment denying his Rule 24.035 motion after an evi-dentiary hearing. The motion court found that counsel’s testimony was credible and that it refuted Vinson’s claim of ineffective assistance of counsel. Vinson argues that counsel’s testimony supported, rather than refuted, his claim.

We have reviewed the parties’ briefs and the record on appeal. The judgment of the motion court is based on findings of fact that are not clearly erroneous. No error of law appears. An extended opinion would have no precedential value. We affirm the judgment under Rule 84.16(b).


text:
    Howard DANZIG and Spectrum Risk Management Services, Inc., Appellants, v. GROUP BENEFIT SERVICES, INC., Respondent.
    No. ED 84395.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 1, 2005.
    Paul D. Brown, Creve Coeur, MO, for appellants.
    Thomas W. Millington, Springfield, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J. and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Plaintiffs Howard Danzig and Spectrum Risk Management Services, Inc. sought to recover for the loss of some of their group health insurance customers to Spectrum’s competitor in the insurance industry, Group Benefit Services, Inc. (“GBSI”). They alleged tortious interference with an economic expectancy, breach of contract, intentional misrepresentation and fraud. Three individuals associated with one or more of the parties had allegedly persuaded some of the plaintiffs’ customers to switch to GBSI. After a bench trial, the trial court entered judgment in favor of GBSI with respect to each claim. The court found, among other things, that GBSI lacked knowledge about a number of the individuals’ allegedly improper acts, that GBSI made no factual misrepresentations to the plaintiffs’ former customers and that GBSI’s conduct was consistent with legitimate business activity, honesty and good faith. On appeal, the plaintiffs argue that the trial court’s findings with respect to GBSI’s lack of knowledge misapply the law, are against the weight of the evidence and are not supported by substantial evidence.

We have reviewed the parties’ briefs and the record on appeal and find no error of law. The judgment is supported by substantial evidence and is not against the weight of the evidence. An extended opinion would have no precedential value. The judgment is affirmed under Rule 84.16(b).


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

text:
    Joel T. BRUNS and Shirley Diane Bruns, Respondents, v. E.L. GREEN and Joy L. Green, Appellants.
    No. ED 84401.
    Missouri Court of Appeals, Eastern District, Division Two.
    March 1, 2005.

      Clyde C. Farris, Jr., St. Louis, MO, for appellants.
    Jay E. Sushelsky, St. Louis, MO, for respondents.
   ROBERT G. DOWD, JR., Judge.

E.L. and Joy L. Green (collectively referred to as Defendants) appeal from the trial court’s judgment in favor of Joel Bruns and his mother Shirley Bruns (collectively referred to as Plaintiffs) in the amount of $3,200.00 on Plaintiffs’ action for fraudulent misrepresentation, negligence, nuisance, and declaratory judgment. We affirm in part and reverse in part.

In 1997, Defendants acted as the developer to subdivide and develop the fifth addition to Orchard Estates in the City of Pacific. In early 1999, Joel Bruns (Bruns) and his father met with E.L. Green (Green) to. view the unsold lots in the subdivision. Green showed a plat to Bruns and his father. Both Bruns and his father testified that the plat showed to them at this meeting showed a cul-de-sac at the end of the street, Green Oak Street, running in front of Lot 14, the lot Bruns desired to purchase. All parties agree that there was no discussion about the street, how it would be completed, or how it would terminate.

Plaintiffs purchased an unimproved lot, Lot 14, in Orchard Estates for a purchase price of $25,000.00. Lot 14 was located in the northwest corner of the subdivision and was the last lot on the north side of Green Oak Street. There was a 20 foot drainage and utility easement that runs along the west side of Lot 14. West of Lot 14 was an unimproved pasture owned by Bruns’s father’s aunt and uncle. The street in front of Lot 14, Green Oak Street, and the sidewalk were not completed at the time Plaintiffs purchased the lot. Thereafter, Bruns contacted Green and inquired into when the street and sidewalks would be finished. Green called his subcontractor and was informed that the work would be completed by the end of the following week. The portion of Green Oak Street that was completed at the time Plaintiffs purchased Lot 14 was paved in asphalt. The subcontractor then completed the last twenty feet of the street in concrete and the street did not end in a cul-de-sac. The sidewalk was also extended about twenty-five feet across the front of Lot 14.

Before beginning construction on his home, Bruns called Green again to ask if the street would be extended any further. Green responded by saying, “that was all he had to do.” Bruns then constructed a home on Lot 14 at a cost of around $180,000.00. After completing the twenty-foot wide driveway, the western one-half of the driveway intersected with Green Oak Street beyond the pavement. Bruns had complaints about being unable to back his car out of his driveway, the appearance of the concrete and asphalt joint on Green Oak Street and the poor quality of the street, and standing water at the end of his driveway. In addition, a portion of the sidewalk in front of Lot 14 was below grade, and Bruns hired a contractor to remove and re-pour a portion of the sidewalk at a cost of between $150.00 and $200.00.

Plaintiffs filed a four-count petition against Defendants and the City of Pacific. In Count I of their petition, Plaintiffs claimed Defendants fraudulently misrepresented that the roadway and sidewalk immediately adjacent to Lot 14 would conform to the other lots in the subdivision and that Green Oak Street would terminate in a cul-de-sac. In Count II, Plaintiffs alleged Defendants were negligent in performing the improvements to the roadway and sidewalk adjacent to Lot 14 and that the improvements were performed in an unworkmanlike and unsatisfactory manner. Plaintiffs also asserted a per se violation of section 400.200 of the City of Pacific’s ordinances. In Count III of their petition, Plaintiffs claimed a private nuisance in the improvement to the roadway and sidewalk adjacent to Lot 14, resulting in a diminished value of the home constructed on the lot. In Count IV, Bruns requested a declaratory judgment that Defendants’ improvements to the roadway and sidewalk adjacent to Lot 14 failed to comply with the City of Pacific’s ordinances. The City of Pacific filed a motion to dismiss the claim against it, which was sustained by the trial court.

The City of Pacific adopted an ordinance after Plaintiffs’ suit was filed, that made the City of Pacific responsible for the Orchard Estates subdivision streets, water, and sewer improvements. Pursuant to the ordinance Defendants paid $21,410.00 to the City of Pacific to correct and complete any deficiencies in the improvements of the Orchard Estates subdivision. By the time of the trial, the City of Pacific planned to modify the end of Green Oak Street by replacing the concrete with asphalt, placing a culvert in the creek and extending the street west to within a few feet of the west boundary of the subdivision. The street will still not terminate in a cul-de-sac. The work to the fix Green Oak Street was estimated to take approximately one week.

The suit proceeded against Defendants in a jury-waived trial. After the presentation of all the evidence, the trial court found in favor of Plaintiffs and against Defendants for actual damages in the amount of $200.00 and “additional damages” in the amount of $8,000.00. Defendants now appeal.

We address Defendants’ fifth point on appeal first because it is dispositive. In their fifth point, Defendants contend the trial court erred in awarding damages. Defendants maintain there was no evidence of damages to support the award. We agree.

This court will affirm the damage award in a bench trial unless there is no substantial evidence to support the judgment, it is against the weight of the evidence, or the trial court erroneously declares or applies the law. Norber v. Marcotte, 134 S.W.3d 651, 661 (Mo.App. E.D.2004).

In its judgment, the trial court awarded Plaintiffs actual damages, stating, “Joel Bruns proved actual damages of $200.00 due to the improper installation of the sidewalk on his property which he paid his builder to remove and re-install.” The trial court continued by saying that Plaintiffs’ other damages were more difficult to quantify. The trial then awarded Plaintiffs “additional damages” in the amount of $3,000.00, stating, “[tjhey clearly suffered inconvenience and discomfort which materially affected their enjoyment of their home. Although that discomfort will be reduced once the City of Pacific corrects Green Oak Court, Plaintiffs will suffer inconvenience while that work is being performed.”

We find the additional award of damages in the amount of $3,000.00 was not supported by substantial evidence under the legal theories pled. Plaintiff sought damages under three theories: fraudulent misrepresentation; private nuisance, and negligence.

In a fraudulent misrepresentation case, the appropriate measure of damages is the difference between the actual value of the property at the time the contract was entered into and the property’s value had the representation been true. Lowdermilk v. Vescovo Building and Realty Co., Inc., 91 S.W.3d 617, 626 (Mo.App. E.D.2002). Here, Plaintiffs did not produce any testimony as to the value of the property to support their claim for damages under fraudulent misrepresentation.

The measure for damages for a permanent nuisance is the difference in the land’s market value immediately before and immediately after the injury. Hinkle v. Emmons, 826 S.W.2d 359, 362 (Mo.App. E.D.1992). Damages for temporary nuisance include the decrease in rental or useable value during the injury. Id. No evidence was provided of either measure of damages. Plaintiffs provided no testimony or evidence of any decrease in value of the property from the way Green Oak Street was completed, or any decrease in rental or useable value of the property. Moreover, because the street is going to be repaired by the City of Pacific, the nuisance claimed by Plaintiffs is best categorized as a temporary nuisance. To the extent that the trial court’s award was for future damages from the temporary nuisance during the repair of the street, the award is inappropriate because the measure of damages must be during the injury, not for future inconvenience. Id.

Finally, the appropriate measure of damages under Plaintiffs’ negligence count is the lesser of the cost of repair or the diminution in value. Annen v. Trump, 913 S.W.2d 16, 22 (Mo.App. W.D.1995). Here, Plaintiffs did not present any diminution in value evidence. Plaintiffs did not provide any evidence of how the property value of Lot 14 decreased as a result of the use of concrete on Green Oak Street and the manner in which the street was completed. Furthermore, Plaintiffs did not and could not produce evidence of cost of repair. The City of Pacific, not Plaintiffs or Defendants, is required to make the repairs to Green Oak Street. Defendants have paid the City of Pacific $21,410.00 to correct any deficiencies in the streets in the Orchard Estates subdivision. Plaintiffs failed to show damages for any negligence in the workmanship of Green Oak Street. Whatever the theory upon which the trial court made the damage award the record does not support the award of $3,000.00.

We do, however, find Plaintiffs did provide sufficient evidence of damages under Plaintiffs’ negligence count with regard to the sidewalk. Plaintiffs presented evidence that the sidewalk in front of Lot 14 poured by Defendants at the Bruns’s request was unsatisfactory. The sidewalk was below the curb of the street. Plaintiffs hired a contractor that replaced the unsatisfactory portion of the sidewalk. Plaintiffs presented evidence of cost of repair in the amount of between $150.00 and $200.00. Thus, the trial court’s award of actual damages in the amount of $200.00 was supported by the evidence.

Because of our ruling on Defendants’ fifth point, we need not address Defendants’ remaining points. The judgment of the trial court is affirmed as to the award of actual damages in the amount of $200.00 and reversed as to the additional award of $8,000.00.

PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE, J., concur.

      . Joy L. Green is E.L. Green's wife. She had no involvement with the subdivision except that her signature appears on the deeds because the real estate was in joint names.

      . Shirley Jones is Joel Bruns’s mother and was named as a plaintiff because her name is on the deed to the property along with Joel Bruns.

      . Ordinance section 400.200 of the Pacific City Code provides that all dead-end streets must end with a cul de sac.

      . To the extent Plaintiffs’ negligence claim could be considered a cause of action for breach of contract for failure to perform the job in a workmanlike manner, the measure of damages is the same. See Sveum v. J. Mess Plumbing, Inc., 965 S.W.2d 924, 926 (Mo.App. E.D.1998) and H & B Masonry Co., Inc. v. Davis, 32 S.W.3d 120, 124 (Mo.App. E.D.2000).


text:
    Danny M. WATTS d/b/a IIFTAC, Ltd., Plaintiff-Appellant, v. Loyd H. BIGGS and Rock Road Trailer Parts and Sales, Inc., Defendants-Respondents.
    No. ED 84541.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 8, 2005.
    Stephanie Karr Gastman, Clayton, MO, for appellant.
    Daniel L. Goldberg, Charles, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN and MARY K. HOFF, JJ.
   ORDER

PER CURIAM.

The plaintiff, Danny Watts, appeals from the trial court’s judgment in favor of the defendants, Loyd H. Biggs and Rock Road Trailer Parts & Sales, Inc., on Mr. Watts’s breach-of-contract and breaeh-of-warranty claims against the defendants stemming from Mr. Watts’s purchase of a motor home. Mr. Watts alleges the trial court’s judgment is against the weight of the evidence.

We have reviewed the parties’ briefs and the record on appeal. The trial court’s judgment is supported by substantial evidence. No error of law appears. An opinion reciting the detailed facts and restating the principles of law would have no prece-dential value. The parties, however, have been furnished with a memorandum, for their information only, setting forth the reasons for this order.

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


text:
    STATE of Missouri, Plaintiff/Respondent, v. Lamar BROWN, Defendant/Appellant.
    No. ED 83755.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 8, 2005.
    Henry B. Robertson, St. Louis, MO, for Appellant.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Leslie E. McNamara, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before LAWRENCE E. MOONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Lamar Brown (Defendant) appeals from the trial court’s judgment and sentence imposed after a jury found him guilty of one count of first-degree murder, in violation of Section 565.020 , and one count of armed criminal action, in violation of Section 571.015. The trial court sentenced Defendant to two concurrent terms of life imprisonment without probation or parole.

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would have no jurisprudential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 30.25(b).

      . All subsequent statutory references are to RSMo 2000, unless otherwise noted.


text:
    Darius GORDON, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 84603.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 8, 2005.
    S. Kristina Starke, (Asst. Public Defender), St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Linda Lemke, Jefferson City, MO, for respondent.
    Before: CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A BAKER, J.
   ORDER

PER CURIAM.

Darius Gordon appeals from the judgment denying his Rule 24.035 motion for post-conviction relief without an evidentia-ry hearing. He contends the motion court clearly erred in denying his claim of ineffective assistance of counsel. Having reviewed the briefs of the parties and the record on appeal, we conclude the motion court did not clearly err. Rule 24.035(k). An extended opinion would have no prece-dential value. We have, however, provided the parties a memorandum setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


text:
    Julia Francis BUCHHEIT, Respondent/Cross-Appellant, v. Martin Leo BUCHHEIT, Appellant/Cross-Respondent.
    No. ED 83939.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 8, 2005.
    Hilton & Kiesewetter, LLC, Bruce F. Hilton, Kirkwood, MO, for Appellant.
    Beach, Stewart, Heggie, Mittleman & Curtis, LLC, Robert M. Heggie, St. Louis, MO, for Respondent.
    Before LAWRENCE E. MOONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Martin Leo Buchheit (Husband) appeals from the trial court’s judgment and decree (judgment) dissolving his marriage to Julia Francis Buchheit (Wife). Husband alleges the trial court erred in its division of marital property, award of maintenance, and award of child support. Wife cross-appeals from the judgment, claiming the trial court erred in its valuation of marital property.

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. The judgment is supported by competent and substantial evidence and is not against the weight of the evidence. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. Judgment affirmed in accordance with Rule 84.16(b).

The parties have been furnished with a memorandum for their information only, setting forth the reasons for the order affirming the judgment pursuant to Rule 84.16(b).

      . Wife failed to brief this issue on appeal; thus, her claim is deemed abandoned.


text:
    Hermon JERROD, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84512.
    Missouri Court of Appeals, Eastern District, Division Two.
    March 8, 2005.
    Lisa M. Stroup, Assistant Public Defender, St. Louis, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.

      Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Hermon Jerrod, Jr. (“Movant”) appeals from the judgment of the Circuit Court of the City of St. Louis denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. In his appeal, Movant argues that the motion court clearly erred when it failed to find that his attorney rendered ineffective assistance at his bench trial on charges of first degree murder, first degree robbery, first degree assault and armed criminal action. Movant specifically contends that his trial counsel failed to: (1) object to the State’s amendment of the murder in the first degree charge in Count 1 to murder in the second degree — felony in the alternative; (2) investigate and call a particular’ witness; and (3) seek to have admitted into evidence photographs of the area where the victim’s body was found.

We have reviewed the briefs of the parties and the record on appeal and find the motion court’s decision was not clearly erroneous. An extended opinion would have no precedential value. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision.

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


author: GEORGE W. DRAPER III, Chief Judge.

text:
    Mark TALBOT and Cynthia Talbot, Plaintiffs/Appellants, v. UNION ELECTRIC CO. d/b/a Ameren Ue, Defendant/Respondent, and Rustgo Co., et al., Defendants.
    No. ED 85496.
    Missouri Court of Appeals, Eastern District, Division Five.
    March 8, 2005.

      W. Morris Taylor, Clayton, MO, for appellant.
    James J. Virtel, Ken P. Schnurbusch, Jerry R. Wilding, Lyndon P. Sommer, St. Louis, MO, for respondent.
   GEORGE W. DRAPER III, Chief Judge.

Mark Talbot and Cynthia Talbot (Appellants) appeal from the trial court’s partial summary judgment entered in favor of Ameren UE. Because there is no final, appealable judgment, we dismiss the appeal.

This case is a personal injury action for damages arising out of an electric shock that Appellant Mark Talbot suffered while moving a mobile work platform on a construction project where he was working. The platform came into contact with overhead electric wires, which caused Mark Talbot to suffer injuries. He and his wife filed suit against multiple defendants, alleging various acts of negligence by the defendants. The multiple defendants included: (1) Rustgo Co, who manufactured the mobile work platform; (2) Nelson King, Inc., who distributed the platform; (3) Frank Lim and Unitherm Furnace Corp., the property owner and general contractors; (4) Dallas Brock, Mark Talbot’s co-worker; and (5) Ameren UE, who owned and operated the overhead power lines.

In Count I for negligence, Appellants asserted that Ameren UE breached its duty to use the highest degree of care to protect Mark Talbot from reasonably anticipated dangers involving their power lines. The Appellants then listed five different ways in which Ameren UE breached this duty, including in paragraph 20(c) that Ameren UE “carelessly and negligently failed to insulate, isolate, cover or de-energize their electrical lines after having received actual notice that construction would occur in close proximity to then-power lines-” Ameren UE filed a motion for partial summary judgment, arguing that Appellants were judicially es-topped from arguing the allegations in paragraph 20(c), because Mark Talbot took a contrary position in his workers’ compensation proceeding.

On June 8, 2004, the trial court entered an order granting Ameren UE’s motion for partial summary judgment with regard to the claim in paragraph 20(c) of the Appellants’ petition. Appellants filed a motion to reconsider. On November 15, 2004, the trial court entered an “Order and Judgment” denying Appellants’ motion to reconsider. Appellants then filed this appeal.

Although neither party has questioned appellate jurisdiction, this Court must determine its jurisdiction sua sponte. Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997). A party may only appeal from a final judgment, one that disposes of all parties and claims in the case and leaves nothing for future determination. American Family Mut. Ins. Co. v. Lindley, 112 S.W.3d 449, 451 (Mo.App. E.D.2003). A judgment as to fewer than all claims may be certified for appeal if the trial court expressly designates that “there is no just reason for delay.” Id. Here, the majority of claims raised in Appellants’ petition are still pending. Claims remain pending against Ameren UE and all of the other defendants. In addition, the trial court did not certify its judgment for appeal under Rule 74.01(b). Therefore, there is no final judgment.

Moreover, even if the trial court had certified the partial summary judgment for appeal under Rule 74.01(b), the judgment in question does not appear to resolve at least one claim for relief. Committee for Educational Equality v. State, 878 S.W.2d 446, 450-51 (Mo. banc 1994). A claim for relief is the aggregate of operative facts giving rise to a right enforceable by a court. Blechle v. Goodyear Tire & Rubber Co., 28 S.W.3d 484, 487 (Mo.App. E.D.2000). A ruling on any issue that does not finally dispose of a single claim is not a “judicial unit” for appeal and cannot serve as the foundation for a final judgment. Id. The required judicial unit for appeal is ‘“the final judgment on a claim, and not a ruling on some of several issues arising out of the same transaction or occurrence which does not dispose of the claim.’ ” Gibson, 952 S.W.2d at 244, quoting State ex rel. State Hwy. Comm’n v. Smith, 303 S.W.2d 120, 123 (Mo.1957).

Here, the partial summary judgment in question applied only to paragraph 20(c) of the Appellants’ petition, which alleged negligence for failing to insulate, isolate, cover or de-energize the electrical lines after receiving actual notice that construction would occur in close proximity thereto. In Count I against Ameren UE, there remain four additional allegations of negligence that remain to be ruled upon. Accordingly, the partial summary judgment in question rules only on one issue arising out of the same transaction and occurrence, but fails to dispose of a separate or distinct claim.

We issued an order directing Appellants to show cause why this appeal should not be dismissed. Appellants have not filed a response. Without a final judgment, this Court is without jurisdiction to consider this appeal. Accordingly, the appeal is dismissed.

LAWRENCE G. CRAHAN, J., and GLENN A. NORTON, J., concur.

      . Appellants also brought suit against another defendant, Bax Engineering Co., but voluntarily dismissed it.


author: LAWRENCE E. MOONEY, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Charles H. SMITH, Defendant-Appellant.
    No. ED 84364.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 8, 2005.

      Ellen H. Flottman, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Linda Lemke, Asst. Atty. Gen., Jefferson City, MO, for respondent.
   LAWRENCE E. MOONEY, Presiding Judge.

The defendant appeals from the judgment entered after a jury found him guilty of forcible rape and attempted victim tampering. Because the trial court erred in excluding corroborating evidence of a videotape that elucidated the immediate surrounding circumstances of the alleged crimes, the judgment is reversed and the cause is remanded for a new trial.

We recount the State’s version of events. In January 2002, the victim and Jonathan Young began dating. On the evening of January 31, 2002, Young drove the victim to the defendant’s house where the defendant lived in the basement. Before that night, the defendant and the victim had never met. After the defendant left the basement, Young and the victim had consensual sex and shortly thereafter Young went outside. After Young left the basement, the defendant threatened the victim with a gun and committed forcible sodomy and forcible rape. The defendant took the victim’s driver’s license and told her that if she told anyone what happened, he would kill her.

Now we recount the defendant’s version. On January 31, 2002, Young called the defendant and said that he was bringing a woman who was “down for anything” including a possible threesome. Shortly after arriving at the defendant’s house, Young went and got a camcorder from his truck. At some point, Young told the defendant that he was going to videotape himself, the defendant, and the victim having a threesome. The defendant went outside and, when he returned, he saw Young videotaping the victim on the bed masturbating. The victim became angry at the defendant for barging in and the two began to argue. Young and the defendant went to a washroom and Young told the defendant to “chill out” and that if he made the victim mad, she would not be willing to go ahead with the “plans.” When Young and the defendant returned to the bedroom, they had consensual sex with the victim.

The defendant was charged with forcible sodomy, forcible rape, and attempted victim tampering. The defendant filed a motion pursuant to section 491.015 RSMo. 2000, to present evidence at trial of the victim’s prior sexual conduct. The defendant argued that section 491.015 permits admission of the evidence because the conduct was intended to prove consent and was evidence of the immediate surrounding circumstances of the alleged crimes. The State filed a motion in limine to exclude evidence of the victim’s prior sexual conduct. During argument on the motions, the defendant’s counsel stated that he was requesting to present evidence of, among other things, a videotape made at the defendant’s house on January 31, 2002, in which Young taped the victim masturbating. The trial court ruled that the defendant could adduce evidence regarding the consensual sex between Young and the victim, but also ruled that the defendant could not adduce evidence regarding the videotape. The trial court informed the defendant’s counsel that he could not discuss the videotape during opening argument and during his cross-examination of the victim and Young. At some point, the court apparently ruled that the defendant could testify as to his version of what occurred during the night in question, including discussing the videotape.

The victim and Young were not asked about the videotape during their testimony. During deliberations, the jury made several inquiries including asking “Where is camcorder and video?” and “Why wasn’t there questioning to the prosecution’s witnesses about the camcorder? — [the victim and Young].” In response, the trial court told the jury that it should be guided by the instructions and evidence. The jury found the defendant guilty of forcible rape and attempted victim tampering, but not guilty of forcible sodomy. The trial court sentenced the defendant to fifteen years for rape and to a consecutive five-year term for attempted victim tampering. The defendant appeals, raising two points.

In his first point, the defendant argues that the trial court abused its discretion in excluding evidence of the videotape. During oral argument before this Court, the defendant’s counsel stated that she was not seeking admission of the videotape itself, but rather evidence regarding the videotape. In other words, the defendant makes no claim that the videotape should be admitted in evidence and shown to the jury; instead he merely seeks to adduce evidence that the videotaping occurred to corroborate his own testimony as to the videotaping and to elucidate the immediate surrounding circumstances of the alleged crimes. The defendant argues for admissibility under section 491.015 because the videotaping was evidence of the immediate surrounding circumstances of the alleged crime. The defendant also contends that section 491.015 cannot be applied in such a manner that denies him due process.

Section 491.015 is designed to protect the victim. State v. Baker, 23 S.W.3d 702, 714 (Mo.App. E.D.2000). The statute provides that evidence of the complaining witness’s prior sexual conduct is inadmissible unless it falls within one of the four specific exceptions, and then only to the extent that the court finds it relevant to a material fact or issue in the case. State v. Jones, 716 S.W.2d 799, 800 (Mo. banc 1986). If the challenged evidence does not fall within one of the four exceptions, then it is inadmissible and is not subject to a relevancy review under subsection two of the statute. Id. At issue is the third exception under section 491.015.1, which applies to evidence of the immediate surrounding circumstances of the alleged crime.

The trial court permitted the defendant to testify about the videotape, but did not permit this evidence to be discussed during the defendant’s opening statement or corroborated during the victim’s or Young’s testimony. Because the trial court permitted the defendant to testify about the videotape, the court presumably found that the evidence was subject to the third exception under section 491.015 and, for purposes of the defendant’s testimony, it was relevant to a material fact or issue in the case. If the court had found otherwise, then the defendant would have been precluded from testifying about the videotape. Section 491.015 applies not only to cross-examination of the victim but also to the testimony of other witnesses. State v. Madsen, 772 S.W.2d 656, 662 (Mo. banc 1989). “[E]ven the defendant may not testify about the victim’s prior conduct unless the case fits one of the statutory exceptions.” Id. The court also presumably found that, although the evidence regarding the videotape was subject to the third exception, it was not relevant to a material fact or issue in the case for purposes of opening argument and during the victim’s and Young’s testimony. The difficulty with the trial court’s rulings is apparent from the jury’s question why the victim and Young were not questioned about the videotaping and the jury’s request regarding the “camcorder and video.” For purposes of section 491.015 in this case, the evidence of the videotaping was either admissible or inadmissible. Here, the court allowed the defendant to testify about the videotape, but then denied him any opportunity to corroborate his own testimony.

The State contends that the third exception does not apply because the videotaping did not occur immediately before the rape, but rather occurred before Young and the victim had consensual sex. The State relies on the defendant’s offer of proof in which Young stated that he videotaped the victim masturbating and then had consensual sex with her. But the intervening act of consensual sex does not mean that the evidence was not part of the immediate surrounding circumstances. The videotaping and the consensual sex and the alleged crimes all occurred in the defendant’s bed on the same evening. The third exception under section 491.015.1 applies.

We now consider whether the evidence was relevant to a material fact or issue in the case. Section 491.015.2. The language of the third exception, evidence of the immediate surrounding circumstances of the alleged crime, is very similar to the theory of res gestae. “Obviously the [third exception] has much in common with the theory of res gestae.” State v. Sherman, 637 S.W.2d 704, 706 (Mo. banc 1982). Broadly speaking, the term “res gestae” “includes circumstances, facts, and declarations incidental to the main fact or transaction, and necessary to illustrate its character, and acts, words, and declarations which are so closely connected to the main fact or transaction as to constitute a part of it.” 29A Am.Jur.2d Evidence section 860 (1994). “Generally, acts statements, occurrences and the circumstances forming part of the main transaction may be shown in evidence under the res gestae rule where they precede the offense immediately or by a short interval of time and tend, as background information, to elucidate a main fact in issue.” Sherman, 637 S.W.2d at 706. See State v. Dooley, 549 S.W.2d 677, 680 (Mo.App.1977). Res ges-tae refers to both an exception to the hearsay rule and at issue here to a general rule of relevancy. State v. Johnson, 637 S.W.2d 157, 161 n. 2 (Mo.App.1982). In the present case, the videotaping occurred after the victim and Young arrived at the defendant’s house and a short time prior to the alleged crimes. The videotaping is intertwined with the events that night. Admission of the evidence would provide the factfinder with a complete and coherent picture of the events leading up to the alleged crimes and was admissible as part of the res gestae. The defendant’s first point is granted. The judgment must be reversed and the cause remanded for a new trial.

In his second point, the defendant challenges the trial court’s rulings as to his Batson challenges. Given our disposition of the defendant’s first point, we need not address the defendant’s second point.

The judgment is reversed and the cause is remanded for a new trial.

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

      . The State had provided the defendant’s counsel with a copy of the videotape.

      . The court also ruled that the defendant could not adduce any evidence regarding any alleged statements that Young suggested a threesome between himself, the defendant, and the victim. At trial, the defendant was permitted to question Young about statements regarding a threesome after the court ruled that certain questioning by the prosecutor during Young’s direct examination “allowed the door to be opened” to this evidence. Young testified that he did not tell the defendant on the phone that the victim would be willing to engage in a threesome. When asked if he told the defendant "in person,” Young answered: "Yes. Not that she would be okay with it, but I ask. That’s what I said, I'll ask, I’ll check on it.”

      .After the defendant testified, the defendant’s counsel asked the trial court to reconsider its previous ruling regarding the videotape. The defendant’s counsel stated that he wanted to have Young testify that the videotaping occurred. During this discussion, the prosecutor stated that the court had previously ruled that the defendant would not be restricted from testifying as to his version of the events. The trial court again ruled that the defendant could not present evidence from Young about the videotape. The defendant then made an offer of proof during which Young stated that the victim had agreed to be videotaped and that he videotaped the victim masturbating.

      . Section 491.015 provides in part:
      1.In prosecutions under chapter 566, RSMo, or prosecutions related to sexual conduct under chapter 568, RSMo, opinion and reputation evidence of the complaining witnesses] prior sexual conduct is inadmissible; evidence of specific instances of the complaining witness'[s] prior sexual conduct or the absence of such instances or conduct is inadmissible, except where such specific instances are:
      (1) Evidence of the sexual conduct of the complaining witness with the defendant to prove consent where consent is a defense to the alleged crime and the evidence is reasonably contemporaneous with the date of the alleged crime; or
      (2) Evidence of specific instances of sexual activity showing alternative source or origin of semen, pregnancy or disease; [or]
      (3) Evidence of immediate surrounding circumstances of the alleged crime; or
      (4) Evidence relating to the previous chastity of the complaining witness in cases, where, by statute, previously chaste character is required to be proved by the prosecution.
      2. Evidence of the sexual conduct of the complaining witness offered under this section is admissible to the extent that the court finds the evidence relevant to a material fact or issue.
      3. If the defendant proposes to offer evidence of the sexual conduct of the complaining witness under this section, he shall file with the court a written motion accompanied by an offer of proof or make an offer of proof on the record outside the hearing of the jury. The court shall hold an in camera hearing to determine the sufficiency of the offer of proof and may at that hearing hear evidence if the court deems it necessary to determine the sufficiency of the offer of proof. If the court finds any of the evidence offered admissible under this section the court shall make an order stating the scope of the evidence which may be introduced.

      . The use of the term "res gestae ” as a hearsay exception, has been criticized. See Bynote v. National Super Markets, 891 S.W.2d 117, 121 (Mo. banc 1995); State v. Williams, 673 S.W.2d 32, 34 (Mo. banc 1984). Because the use of the term "res gestae ” fails to clarify the specific hearsay exception, the Court in By-note held that it would no longer recognize the term “res gestae " as carrying sufficient meaning to support either the admission of or an objection to proffered testimony. 891 S.W.2d at 121.


text:
    Stacy L. RUSSELL, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. ED 84335.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 8, 2005.
    Lisa M. Stroup, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Alison K. Brown, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN and MARY K. HOFF, JJ.
   ORDER

PER CURIAM.

The movant, Stacy L. Russell, appeals the motion court’s judgment denying his Rule 24.035 motion for post-conviction relief after an evidentiary hearing. We have reviewed the parties’ briefs and the record on appeal and find no clear error. Rule 24.035(k). An opinion would have no prec-edential value. The parties have been provided with a memorandum, for their information only, setting forth the reasons for this decision.

The motion court’s order denying Mov-ant’s Rule 24.035 motion for post-conviction relief is affirmed. Rule 84.16(b).


text:
    Ricky Lee MEYER, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. ED 84269.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 8, 2005.
    Philip Horwitz, Clayton, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shawn L. Naccarato, Asst. Atty. Gen., Jefferson City, MO, for respondent.

      Before LAWRENCE E. MOONEY, P. J., LAWRENCE G. CRAHAN and MARY K. HOFF, JJ.
   ORDER

PER CURIAM.

The movant, Ricky Lee Meyer, appeals the motion court’s judgment denying his Rule 24.035 motion for post-conviction relief after an evidentiary hearing. We have reviewed the parties’ briefs and the record on appeal and find no clear error. Rule 24.035(k). An opinion would have no prec-edential value. The parties have been provided with a memorandum, for their information only, setting forth the reasons for this decision.

The motion court’s order denying the movant’s Rule 24.035 motion for post-conviction relief is affirmed. Rule 84.16(b).


text:
    Rae Ann MURRAY, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 84219.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 8, 2005.
    Craig A. Johnston, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lacey R. Searfoss, Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Rae Ann Murray appeals from the judgment denying her Rule 24.035 motion for post-conviction relief after an evidentiary healing. She asserts her guilty plea lacked a factual basis. Having reviewed the briefs of the parties and the record on appeal, we conclude the motion court did not clearly err. Rule 24.035(k). An extended opinion would have no precedential value. We have, however, provided the parties a memorandum setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


text:
    KENNEX, L.L.C., Plaintiff/Appellant, v. FARM BUREAU TOWN AND COUNTRY INSURANCE COMPANY OF MISSOURI, Defendant/Respondent, and Rich Presley, Defendant.
    No. ED 84143.
    Missouri Court of Appeals, Eastern District, Division Two.
    March 8, 2005.
    Stephen J. Nangle, St. Louis, MO, for appellant.

      T. Michael Ward, Robert L. Brady, Brown & James, P.C., St. Louis, MO, for respondent.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J. and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

This is an appeal from a judgment in defendant’s favor on plaintiffs petition seeking a declaratory judgment and specific performance. The trial court’s judgment is supported by substantial evidence and is not against the weight of the evidence. No error of law appears. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

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


text:
    Pamela MANKA, Claimant/Appellant, v. SHOP N SAVE WAREHOUSE FOODS, INC., and Division of Employment Security, Respondents.
    No. ED 85599.
    Missouri Court of Appeals, Eastern District, Division Five.
    March 8, 2005.
    Pamela Manka, Kirkwood, MO, for Appellant.
    Cynthia A. Quetsch, Jefferson City, MO, Robert W. Stewart, Corey L. Franklin, St. Louis, MO, for Respondent.
   GEORGE W. DRAPER III, Chief Judge.

Pamela Manka (Claimant) applied for unemployment benefits after her job at Shop N Save Warehouse Foods, Inc. (Employer) was terminated. A deputy concluded that Claimant was eligible for such benefits. Employer appealed to the Appeals Tribunal of the Division of Employment Security (Division), which concluded that Claimant was ineligible for benefits because she had been terminated for misconduct connected with her work. Claimant then appealed to the Labor and Industrial Relations Commission (Commission), which dismissed her application for review because it was untimely. Claimant appeals to this Court. We dismiss the appeal for lack of jurisdiction.

In an unemployment compensation ease, Claimant has only thirty (30) days from the mailing of the Appeals Tribunal decision to file an application for review with the Commission. Section 288.200.1. Here, the Appeals Tribunal certified that it mailed its decision to Claimant on August 17, 2004. Therefore, Claimant’s application for review to the Commission was due thirty days later, on September 16, 2004. Section 288.200.1. Claimant’s application for review to the Commission was faxed to the Division on November 4, 2004, beyond the 30-day time limit. Therefore, Claimant’s application for review was untimely.

This Court has a duty to examine its jurisdiction sua sponte. Crowden v. General Sign Co., 133 S.W.3d 562, 562 (Mo.App. E.D.2004). We issued an order directing Claimant to show cause why this appeal should not be dismissed. She filed a response in which she contends her application for review was late due to a glitch in her computer.

The timely filing of an application for review in an unemployment case is jurisdictional and requires strict compliance. Robinson v. Dynacraft, Inc., 142 S.W.3d 213, 214 (Mo.App. E.D.2004). Failure to comply with the statutory time limit for appeal results in a lapse of jurisdiction and the loss of the right to appeal. Mack v. Social Sec. Admin., 141 S.W.3d 85, 86 (Mo.App. E.D.2004). The failure to file a timely application for review divests both the Commission and this Court of jurisdiction. Id. Despite Claimant’s reasons for her late appeal, the statute provides no exceptions for lateness. Our only recourse is to dismiss her appeal.

The Claimant’s appeal is dismissed for lack of jurisdiction.

LAWRENCE G. CRAHAN, J., and GLENN A. NORTON, J., concur.