author: LAURA DENYIR STITH, Judge.

text:
    STATE ex rel. David WOMACK, Relator, v. The Honorable Dennis A. ROLF, Respondent. State ex rel. David Lee Womack, Relator, v. The Honorable Dennis A. Rolf, Respondent. State ex rel. Robert Cooper, Sr., Relator, v. The Honorable Dennis A. Rolf, Respondent.
    Nos. SC 86547, SC 86548, SC 86549.
    Supreme Court of Missouri, En Banc.
    Oct. 18, 2005.
    George L. Stafford, Slater, MO, for Relator.
    James A. Waits and Stephanie L. Ang-lin, Kansas City, MO, for Respondent.
    Edward B. Mclnteer, Marshall, MO, Guardian Ad Litem for Respondent.
    Sanford P. Krigel and Karen S. Rosenberg, Kansas City, MO, for Amicus Curiae Midwest Poster Care and Adoption Association.
   LAURA DENYIR STITH, Judge.

The issue before this Court is whether section 211.093, RSMo, precludes a prospective adoptive parent from filing a petition for adoption of a child under chapter 453 of the Missouri statutes if the child is already subject to the jurisdiction of the juvenile division of the circuit court pursuant to an abuse and neglect or termination of parental rights proceeding filed under chapter 211. Section 211.093 provides that an order entered under the authority of either chapter 210 or chapter 211 “shall ... take precedence over any order or judgment concerning the status or custody of a child under age twenty-one entered by a court under authority of chapter 4.52, Ji-53, ⅛5⅛ or J+55, RSMo, but only to the extent inconsistent therewith.” Sec. 211.093 (emphasis added).

For the reasons set out below, this Court finds there is no inconsistency in permitting an adoption action to be filed during the pendency of a chapter 211 proceeding. Section 211.093 and related statutes clearly contemplate that adoption proceedings may be filed and may proceed before the judge before whom the chapter 211 proceedings are pending even if the children who are sought to be adopted are still in foster care or otherwise subject to the jurisdiction of the juvenile division judge under chapter 211, so long as no inconsistent order is entered by the judge.

I. FACTUAL AND PROCEDURAL BACKGROUND

The children whose care and custody is the subject of the underlying proceedings are J.A.W., L.A.W. and J.A.C.

Proceedings Involving J.A.W. and L.A.W. In November 2001, Respondent, Judge Dennis Rolf, acting as judge of the juvenile division of the Circuit Court of Saline County, took jurisdiction over J.A.W. and L.A.W., pursuant to section 211.031. Their legal and physical custody was thereafter placed in the Division of Family Services (or DFS, now the Children’s Division). In August 2004, following a hearing, Respondent entered a permanency plan requiring the Children’s Division to seek adoption or an independent living arrangement for both L.A.W. and J.A.W. Sec. 211.447.2(1).

In April 2004, Garth and Diane Bibens filed a petition under chapter 453 to adopt J.A.W. That petition also was filed with Respondent as judge of the juvenile division of the Circuit Court of Saline County. A separate petition was filed in June 2004 by a different adoptive parent, Judy Wilck-ens, to adopt L.A.W., and was assigned to Respondent. Whether those two adoption petitions should be dismissed because the chapter 211 cases involving J.A.W. and L.A.W. are still separately pending is the subject of two of the preliminary writs issued by this Court.

Proceedings Involving J.A.C. The third adoption proceeding involves J.A.C. Respondent ordered jurisdiction to be taken over J.A.C. in 1996, and DFS was granted full legal and physical custody over J.A.C. in 1998. In September 2003, after a hearing, Respondent determined that adoption was the appropriate permanency plan for J.A.C. and that termination of parental rights would be pursued. Sec. 211.447.2(1). In June 2004, Judy Wilekens filed a petition to adopt J.A.C.; it is the subject of the third preliminary writ issued by this Court.

Motions to Dismiss. The natural father of L.A.W. and J.A.W. is Relator David Womack. Relator Robert Cooper, Sr., is J.A.C.’s natural father. Relators Womack and Cooper filed motions to dismiss the adoption petitions, alleging then-very filing was inconsistent with the continued pendency of jurisdiction over the children under chapter 211 and that section 211.093 requires that, where a chapter 211 proceeding is pending, such “inconsistent” proceedings must be dismissed. Respondent found that there was no inconsistency requiring dismissal of the adoption petitions. Relators petitioned this Court for writs directing Respondent to dismiss the chapter 453 petitions.

II. STANDARD OF REVIEW

This Court will exercise its constitutional authority under Mo. Const, art. V, sec. 4, to grant a writ of prohibition in three circumstances:

(1) to prevent the usurpation of judicial power when the trial court lacks jurisdiction; (2) to remedy a[n] excess of jurisdiction or an abuse of discretion where the lower court lacks the power to act as intended; or (3) where a party may suffer irreparable harm if relief is not made available in response to the trial court’s order.

State ex rel. Proctor v. Bryson, 100 S.W.3d 775, 776 (Mo. banc 2003). “The essential function of prohibition is to correct or prevent inferior courts and agencies from acting without or in excess of their jurisdiction.” State ex rel. Douglas Toyota III, Inc. v. Keeter, 804 S.W.2d 750, 752 (Mo. banc 1991). It is also “not generally intended as a substitute for correction of alleged or anticipated judicial errors.... ” Id.

III. THE MERE FILING OF AN ADOPTION PETITION IS NOT INHERENTLY INCONSISTENT WITH THE CONTINUED PEN-DENCY OF A CHAPTER 211 PROCEEDING

Relators argue that section 211.093 requires dismissal of any adoption petition filed during the pendency of proceedings under chapter 211. Relators’ argument is inconsistent with the plain wording of section 211.093, which states:

Any order or judgment entered by the court under authority of this chapter or chapter 210, RSMo, shall, so long as such order or judgment remains in effect, take precedence over any order or judgment concerning the status or custody of a child under age twenty-one entered by a court under authority of chapter 452, 453, 454 or 455, RSMo, but only to the extent inconsistent therewith.

Sec. 211.093 (emphasis added).

As is evident, section 211.093 does not state that an adoption proceeding may not be filed while a chapter 211 proceeding is pending. To the contrary, it specifically anticipates that the two proceedings may be pending at the same time, for it provides rules to avoid the potential for the entry of inconsistent orders in the two proceedings. It states chapter 211 orders shall take precedence over chapter 453 orders “to the extent” that the latter are “inconsistent” with any pending orders under chapter 211.

This means that to the extent that orders may be entered in a case filed under chapter 453 that are not inconsistent with pending orders entered under chapter 211, the orders entered in the chapter 453 proceeding are valid. Section 211.093, in other words, sets the priority in which orders under chapters 453 and 211 shall be applied; it does not prohibit the filing of an adoption petition under chapter 453, nor does it negate orders entered in a chapter 453 action that are not inconsistent with orders entered in the chapter 211 proceeding.

Relators argue that this reading of the statute is at odds with the interpretation of section 211.093 by this Court in Matter of J.F.K., 853 S.W.2d 932 (Mo. banc 1993). J.F.K. did affirm the trial court’s dismissal of an adoption proceeding under chapter 453 as being inconsistent with a pending neglect proceeding under chapter 211, finding that the juvenile division’s jurisdiction to proceed on the adoptive parents’ petition for custody and adoption was preempted by the pending order in the neglect proceeding regarding custody.

J.F.K. is distinguishable on numerous grounds. First, in J.F.K, the adoption petition and the neglect proceeding were pending before two different judges, and no petition to terminate parental rights was contemplated in the neglect proceeding. Further, the children were not in the custody of the adoptive parents. The risk of entry of inconsistent orders in the two proceedings was, thus, almost unavoidable. It was on these facts that J.F.K found that the two proceedings could not proceed concurrently. Id. at 934-35.

More importantly, Relators ignore the fact that the legislature specifically changed the adoption statutes after J.F.K. was decided to provide for the concurrent pendency of both neglect or termination and adoption proceedings before the same judge. At the time J.F.K was decided, section 453.010, RSMo 1986, simply addressed the venue of adoption petitions and when a spouse must join in such a petition. Section 453.010 has since been amended and now expressly contemplates that a petition for adoption may be filed as to a child who already is under juvenile division jurisdiction:

If the person sought to be adopted is a child who is under the prior and continuing jurisdiction of a court pursuant to the provision of chapter 211, RSMo, any person desiring to adopt such person as his or her child shall petition the juvenile division of the circuit court which has jurisdiction over the child for permission to adopt such person as his or her child. ...

Sec. 453.010.3, RSMo Supp.2004 (emphasis added). On its face, this statute authorizes the filing of an adoption petition as to a child subject to a pending chapter 211 proceeding and provides that the adoption petition is to be filed with the judge who is handling the chapter 211 proceeding. This provision, which had not been enacted at the time J.F.K was decided, avoids the dangers of inconsistency that J.F.K. thought might arise where, as in J.F.K, the two cases were proceeding before different judges.

Other provisions of chapter 453, adopted or amended since J.F.K, also on their face contemplate that a chapter 453 proceeding and a chapter 211 proceeding may proceed concurrently. For example, section 453.080.1(1) specifically waives certain prerequisites to adoption if the court finds “that the person sought to be adopted is a child who is under the prior and continuing jurisdiction of a court pursuant to chapter 211, RSMo, and the person desiring to adopt the child is the child’s current foster parent....” Sec. 453.080.1(1), RSMo Supp.2004. See also section 453.070.7, RSMo Supp.2004 (court has discretion to give preference to foster parents with custody under chapter 211 for adoption in some cases).

Relators do not offer an alternative interpretation of these statutes, but rather argue that they must simply be ignored because they are implicitly inconsistent with dicta in J.F.K as to the meaning of section 211.093. For the reasons already stated, J.F.K. was decided under different law and is not dispositive. In any event, “[t]he primary rule of statutory construction requires this Court to ascertain the intent of the legislature by considering the plain and ordinary meaning of the words used in the statute.” Jones v. Dir. of Revenue, 832 S.W.2d 516, 517 (Mo. banc 1992). “[E]ach word, clause, sentence and section of a statute should be given meaning.” Hadlock v. Dir. of Revenue, 860 S.W.2d 335, 337 (Mo. banc 1993). Courts will reject an interpretation of a statute that requires ignoring the very words of the statute. Id. Relators’ reading of the statutes is rejected because it would require this Court to ignore the plain meaning of those provisions permitting the filing of actions under chapter 453 before the same judge who is handling the chapter 211 proceeding.

The system adopted by the legislature, permitting the filing of the adoption proceeding before the same judge handling the neglect proceeding, even if the latter is still pending, minimizes the time children “must remain in limbo while the judicial system runs its course.” D.G.N. v. S.M., 691 S.W.2d 909, 914 (Mo. banc 1985). To require prospective parents to wait before filing adoption pleadings is inconsistent with the plain meaning of the statutes. See secs. 211.447(5), 211.464, RSMo 2000; secs. 453.010.3, 453.070.7, 453.080.1(1), RSMo Supp.2004.

In so holding, this Court does not intend to suggest that the fact that the adoption petition may be filed before the chapter 211 jurisdiction is terminated means that orders regarding custody or adoption can be entered in the adoption proceeding that are inconsistent with orders that are still in effect in the pending chapter 211 proceeding. As discussed earlier, section 211.093 specifically provides that orders entered in a chapter 211 proceeding take precedence over inconsistent orders entered in a chapter 453 proceeding. Sec. 211.093. The proper method of avoiding the entry of inconsistent orders in this type of situation is described in Blackburn v. Mackey, 131 S.W.3d 392, 396-98 (Mo.App. W.D.2004). Blackburn rejected a similar argument that a chapter 452 proceeding is inherently inconsistent with a chapter 211 proceeding, stating “[w]e see no problem with the simultaneous pen-dency of the two proceedings.” Id. at 395. Conflict can be avoided, as it was in Black-bum, if the trial judge, before whom both proceedings will be pending, simply ensures that consistent custody orders are entered in both cases and ultimately relinquishes the court’s jurisdiction over the child under chapter 210 or 211 prior to entry of an order providing for a different custody arrangement, or for adoption, under chapters 452-455. See, e.g., Blackburn, 131 S.W.3d at 396-98.

In addition, of course, no final order of adoption can be entered pending appeal by a natural parent who seeks to reverse the decision to terminate his or her parental rights. Finalizing an adoption while a decision terminating parental rights is on appeal “compromises the parent’s right to appellate review.” State ex rel. N.H.L. v. DePriest, 136 S.W.3d 72, 73 (Mo. banc 2004). For this reason, it is an abuse of discretion to finalize the adoption while appeal of a termination of parental rights proceeding is pending. Id.

TV. CONCLUSION

For the reasons set out above, this Court holds that the filing of a chapter 453 action before the same judge who is handling the chapter 211 proceeding is permissible and does not constitute an “inconsistent” order as that term is used in section 211.093. The preliminary writs of prohibition previously entered are quashed.

All concur.

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

      . At oral argument, it was suggested that the adoption issue may be moot as to J.A.W. because he reached age 18 during the pen-dency of the case and adoption may proceed without the consent of the natural parent for children 18 years or older. Sec. 453.030, RSMo Supp.2004. As the preliminary writs are quashed for the reasons set out in this opinion, this Court leaves this issue for resolution by the trial court.

      . A term in a statute must be considered in context. State, Mo. Dept. Soc. Servs. v. Brookside Nursing Center, Inc., 50 S.W.3d 273, 277 (Mo. banc 2001). In construing a statute it is appropriate to take into consideration statutes involving similar or related subject matter when such statutes shed light upon the meaning of the statute being construed, even though the statutes are found in different chapters and were enacted at different times. Citizens Elec. Corp. v. Dir. of Dept. of Revenue, 766 S.W.2d 450, 452 (Mo. banc 1989).

      . To bar filings for adoption until after a neglect or termination of parental rights proceeding was entirely concluded would further lengthen custody and adoption proceedings. In most cases in which parental rights are terminated as a result of the neglect proceeding under chapter 211, it would also necessitate an interim period in which the child would be without either natural or adoptive parents or custodians. Relators suggested at oral argument that the child's rights and needs could be protected by filing a guardianship proceeding and appointing a guardian for the' child during the interim period. Nothing in chapters 211 or 453 contemplates the imposition of such an additional period of delay and layer of bureaucracy in the adoptive process, however. Indeed, to do so would be inconsistent with the expressed legislative directive to expedite determination of contested termination of parental rights and adoption cases. Sec. 453.011.3.


source: Caselaw Access Project

author: RICHARD B. TEITELMAN, Judge.

license: Public Domain

text:
    James R. BERGER, Appellant, v. CAMERON MUTUAL INSURANCE COMPANY, Respondent.
    No. SC 86622.
    Supreme Court of Missouri, En Banc.
    Oct. 18, 2005.

      Don B. Roberson, Kansas City, MO, for Appellant.
    Kent M. Bevan and Matthew W. Geary, Kansas City, MO, for Respondent.
   RICHARD B. TEITELMAN, Judge.

FACTS

James R. Berger filed suit alleging that Cameron Mutual Insurance Company breached an insurance contract by refusing to pay a claim. On March 10, 2004, the circuit court entered judgment in favor of Cameron. On March 25, 2004, Berger filed a “motion for rehearing.” The court did not rule on Berger’s motion, and on June 28, 2004, Berger cancelled the motion hearing he had scheduled. Berger did not file a notice of appeal with the circuit court.

On December 20, 2004, Berger filed with the court of appeals his motion for a special order to file a late notice of appeal pursuant to Rule 81.07. The court overruled the motion. This Court transferred the case. Mo. Const, article V, section 10.

ANALYSIS

Timely filing of a notice of appeal is jurisdictional. In re Lunar Tool & Machinery, Inc., 857 S.W.2d 322, 324 (Mo.App.1993). A notice of appeal must be filed no later than ten days after the judgment or order being appealed becomes final. Rule 81.01(a). Rule 81.07(a) establishes a process for obtaining a special order permitting a late notice of appeal. In pertinent part, the rule provides that:

The special order may be allowed by the appellate court only upon motion with notice to the adverse parties filed within six months from the date of final judgment, and only upon a showing by affidavit, or otherwise, that the delay was not due to appellant’s culpable negligence.

The six month time period within which a prospective appellant can seek a special order cannot be enlarged. Snelling v. Masonic Home of Missouri, 904 S.W.2d 251, 253 (Mo.App.1995). Accordingly, the first issue is whether Berger’s motion for a special order to file a late notice of appeal was filed within six months of the date of the final judgment.

A judgment becomes final thirty days after its entry unless an authorized after-trial motion is timely filed. Rule 81.05(a)(1). If an authorized after-trial motion is timely filed, a judgment becomes final at the earlier of the following: (a) ninety days from the date the last timely motion was filed, on which date all motions not ruled shall be deemed overruled; or (b) If all motions have been ruled, then the date of ruling of the last motion to be ruled or thirty days after entry of judgment, whichever is later. Rule 81.05(a)(2). Therefore, if Berger’s March 25, 2004, “motion for rehearing” is an authorized after-trial motion, the judgment became final on June 23, 2004, and his December 20, 2004, motion to file a late notice of appeal was filed within the six month time period provided by Rule 81.07. If the motion for rehearing is not an authorized after trial motion, then judgment became final in April 2004, and the motion is untimely.

Cases should be heard on the merits if possible, and court rules should be construed liberally to allow an appeal to proceed. Sherrill v. Wilson, 653 S.W.2d 661, 663 (Mo. banc 1983). In determining whether a motion is an authorized after-trial motion, Missouri courts have looked not to the nomenclature employed by the parties, but to the actual relief requested in the motion. In Taylor v. United Parcel Service, Inc., 854 S.W.2d 390 (Mo. banc 1993), the Court held that a motion for a new trial is an authorized after-trial motion that is “directed toward errors of fact or law in the trial.” Taylor at 392. Even though the motion at issue in Taylor was a “Motion to Reconsider the Order of the Court Granting Defendant’s Motion for Summary Judgment,” the Court concluded that it was, in effect, a motion for a new trial because the motion placed before the trial court allegations of error. Id. at 392. In reaching this conclusion, the Court cited In re Franz’ Estate, 359 Mo. 362, 221 S.W.2d 739, 740 (1949), for the proposition that “a motion to set aside a default judgment ‘was nothing more than a motion asking the trial court to reconsider its ruling and to set aside its dismissal order. It was, in fact, simply a motion for rehearing or new trial.’” Id. (quoting In re Franz’ Estate, 221 S.W.2d at 740). Subsequent cases have reaffirmed the principle that a motion that operates as a motion for a new trial is an authorized after-trial motion. See Moore v. Baker, 982 S.W.2d 286, 288 (Mo.App.1998) (holding that a motion to reconsider the setting aside of a default judgment operates as a motion for new trial).

Berger’s March 25, 2004, “motion for rehearing” alleged several bases of trial court error regarding contested legal and factual issues and constitutes an authorized after-trial motion. The motion was never ruled upon. Therefore, by operation of Rule 81.05(a)(2), the judgment became final ninety days after the motion was filed, on June 23, 2004. The motion to file a late notice of appeal was timely filed on December 20, 2004, because it was filed six months of the final judgment as required by Rule 81.07.

Although Berger filed his motion to file a late notice of appeal within six months of the final judgment, Rule 81.07 also requires that the delay in filing the notice of appeal was not due to appellant’s culpable negligence. Berger’s counsel attached to the motion an affidavit explaining why the notice of appeal was not timely filed. In the affidavit, counsel stated that the delay was attributable to the onset of various medical issues as well as computer problems that resulted in lost files. The failure to timely file the notice of appeal appears to be the result not of culpable negligence, but of negligence arising out of difficult circumstances largely beyond counsel’s control.

CONCLUSION

The motion for special order to file a late notice of appeal was filed timely. The delay in filing the notice of appeal was not due to culpable negligence. The prior order overruling the motion is vacated, and the motion is sustained.

All concur.


author: GLENN A. NORTON, C.J.

text:
    Howard DANZIG, Plaintiff/Appellant, v. Charles H. BILLINGS, Defendant/Respondent.
    No. ED 86429.
    Missouri Court of Appeals, Eastern District, Division Five.
    Oct. 11, 2005.
    Richard C. Wuestling, IV, St. Louis, MO, for respondent.
    Howard Danzig, St. Louis, MO, pro se.
   GLENN A. NORTON, C.J.

Howard Danzig (Appellant) appeals from an order denying his motion for a default judgment. Because there is no final, appealable judgment, we dismiss the appeal.

Appellant has filed a notice of appeal to this Court. He asserts in his notice of appeal that he is appealing from a judgment entered on May 31, 2005, vacating a default judgment and granting Charles H. Billings (Respondent) more time to answer his petition. The docket sheets filed by Appellant, however, indicate that a default and inquiry was granted on April 29, 2005. The case was set for a hearing on May 31, 2005. On that day, the trial court denied Appellant’s request to enter a default judgment and provided Respondent thirty more days to respond. Appellant’s legal file does not contain any written order or judgment. In the place in his legal file that Appellant has labeled “Judgment/Ruling of Circuit Court,” Appellant includes a photocopy of a portion of the transcript from the hearing on May 31, 2005. In this portion, Appellant and the trial court discuss giving Respondent thirty more days. Appellant filed his notice of appeal thereafter.

Section 512.020, RSMo Cum.Supp.2004, provides for appeals in civil cases from final judgments. Rule 74.01(a) provides that a judgment is entered “when a writing signed by the judge and denominated ‘judgment’ or ‘decree’ is filed.” Here, Appellant has provided no judgment that would comply with the requirements of Rule 74.01(a) and would, therefore, be a final, appealable judgment.

Moreover, it appears that Appellant is actually complaining about the trial court’s failure to grant his request for a default judgment. Even if Appellant had a written judgment denying his request, it would still not be appealable. See, Gordon v. Babcock, 149 S.W.3d 546, 547 (Mo.App. E.D.2004).

This Court issued an order directing Appellant to show cause why his appeal should not be dismissed for lack of a final, appealable judgment. Appellant has filed a response. However, he offers no argument that he has a final, appealable judgment. He also asks for a “change of venue” from this Court, contending it is biased. However, while the reasons Appellant asserts would result in the recusal of one judge of this Court, it does not necessitate the recusal of the entire Court.

Appellant has no final, appealable judgment. In addition, his case is still pending in the trial court. His appeal is dismissed for lack of a final, appealable judgment.

KATHIANNE KNAUP CRANE and BOOKER T. SHAW, JJ.


text:
    Amy BURKY and Judy Burky, Respondents, v. Kevin J. STEPHAN, Appellant.
    No. ED 86281.
    Missouri Court of Appeals, Eastern District, Division Five.
    Oct. 11, 2005.
    Marion H. Pines, St. Louis, MO, for respondent.
    George J. Luberda, Clayton, MO, for appellant.
   GLENN A. NORTON, C.J.

Kevin J. Stephan (Appellant) appeals from the trial court’s order entering a permanent injunction on Count I of Amy and Judy Burky’s (Respondents) petition. Because there is no final, appealable judgment, we dismiss the appeal.

Respondents filed a petition against Appellant, asserting three counts: (1) Count I, permanent injunction to direct Appellant to withdraw a mechanic’s lien he had filed against their property; (2) Count II, damages for slander of title; and (3) Count III, damages for slander of credit. On April 12, 2005, the trial court entered a permanent injunction, as requested in Count I, and ordered Appellant to dismiss and withdraw his mechanic’s hen. Appellant appealed to this Court.

Respondents have filed a motion to dismiss the appeal, contending the order granting the permanent injunction is not a final, appealable judgment because it does not dispose of all parties and issues in the case.

An appellate court only has jurisdiction over final judgments that dispose of all parties and claims in the case and leave nothing for future determination. American Family Mut. Ins. Co. v. Lindley, 112 S.W.3d 449, 451 (Mo.App. E.D.2003). Any adjudication of fewer than all claims or all parties does not terminate the action, which makes it subject to revision by the trial court at any time until final judgment. Rule 74.01(b); Goodson v. National Sports and Recreation, Inc., 136 S.W.3d 98, 99 (Mo.App. E.D.2004). Here, the trial court only ruled on Count I of Respondents’ petition. Counts II and III admittedly remain pending in the trial court. Accordingly, there is no final, appealable judgment.

Appellant has filed a response to the motion to dismiss. He first contends the order granting injunctive relief is appeal-able under section 512.020, RSMo Cum. Supp.2004, because it is the same as “dissolving an injunction.” We disagree. The trial court never dissolved an injunction. Before signing the order granting the permanent injunction, the trial court made some notations in handwriting that changed the form order from a temporary injunction to a permanent injunction. Despite Appellant’s assertions, this is not the same as dissolving an injunction that has already been entered. See, Hagen v. Bank of Piedmont, 763 S.W.2d 384, 385 (Mo.App. S.D.1989) (discussion of appeal from order dissolving an injunction).

Appellant also contends that the trial court authorized this appeal when it directed Appellant to “seek other remedies in other courts.” There is no exception in the statute or rule that would authorize an appeal under these circumstances. Rule 74.01(b) does allow a trial court to certify a partial judgment for appeal by stating “there is no just reason for delay.” The trial court did not make that determination.

Finally, Appellant asserts that the grant of injunctive relief is appealable because it carried with it an implication that his claim for the lien amount was unlawful. Appellant relies upon Troske v. Martigney Creek Sewer Co., 706 S.W.2d 282, 285 (Mo.App. E.D.1986). In that case, the court found that a counterclaim had been disposed of by implication when the trial court issued a permanent injunction. Id. Here, the ruling on the permanent injunction does not necessarily dispose of Respondents’ remaining claims for slander of title and slander of credit.

Respondents’ motion to dismiss is granted. The appeal is dismissed without prejudice for lack of a final, appealable judgment.

KATHIANNE KNAUP CRANE and BOOKER T. SHAW, JJ., concur.


text:
    Aimee SIMON, Claimant/Appellant, v. GROOMINGDALES, INC., and Division of Employment Security, Respondents.
    No. ED 86747.
    Missouri Court of Appeals, Eastern District, Division Five.
    Oct. 11, 2005.

      Cynthia A. Quetsch, Jefferson Gity, MO, for respondent.
    Aimee Simon, St. Louis, MO, pro se.
    Groomingdales, Inc., St. Louis, MO, pro se.
   GLENN A. NORTON, C.J.

Claimant Aimee Simon appeals the decision of the Labor and Industrial Relations Commission (Commission) regarding her unemployment benefits. Because we find Claimant is not aggrieved by the Commission’s decision, we dismiss her appeal.

Claimant filed a claim for unemployment benefits, which Groomingdales, Inc. (Employer) protested. The deputy determined that Claimant was disqualified from receiving benefits. Claimant appealed that determination to the Appeals Tribunal, which reversed the deputy’s determination and awarded Claimant unemployment benefits. Employer then appealed to the Commission, which affirmed the Appeals Tribunal’s decision to award Claimant unemployment. Claimant has filed an appeal to this Court.

The respondent, Division of Employment Security, has filed a motion to dismiss the appeal, pointing out that Claimant prevailed in the litigation before the Commission and therefore, is not an aggrieved party entitled to an appeal. Claimant has failed to file a response.

Section 288.210, RSMo 2000, provides that “any party aggrieved” by a Commission’s decision may appeal to the appropriate appellate court. A party is not aggrieved when the party receives all of the relief sought. Stelzer v. RWR Enterprises, Inc., 142 S.W.3d 214, 215 (Mo.App. E.D.2004). Claimant’s notice of appeal indicates that she mistakenly believes that Employer won its appeal to the Commission. However, this is inaccurate. The record clearly shows that Claimant prevailed in Employer’s appeal to the Commission and was awarded unemployment benefits. Because she received all the relief sought, she is not aggrieved by the Commission’s decision.

The Division’s motion is granted and the appeal is dismissed.

KATHIANNE KNAUP CRANE and BOOKER T. SHAW, JJ„ concur.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. James A. SIMMONS, Appellant.
    No. ED 85325.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 18, 2005.

      Craig A. Johnston, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Jefferson City, MO, for respondent.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

James A. Simmons (“Defendant”) appeals from his conviction of three counts of statutory rape in the first degree and one count of statutory sodomy in the first degree. In his points on appeal, Defendant argues the following: the trial court erred in denying Defendant’s motion for a continuance to obtain additional evidence; the trial court abused its discretion in denying his motion for a bill of particulars; the trial court plainly erred in its submission of jury instructions that did not differentiate between the separate counts; the trial court erred in denying Defendant’s motion for judgment of acquittal at the close of all the evidence. We find no error and affirm.

No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

We affirm the judgment pursuant to Rule 30.25


text:
    STATE of Missouri, Respondent, v. Delano WHITE, Appellant.
    No. ED 85313.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 18, 2005.
    Meleaner R. Harvey, St. Louis, MO, for appellant.
    Shaun J. Mackelprang, Lacey R. Sear-foss, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Delano White (hereinafter, “Defendant”) appeals from the trial court’s judgment entered after a jury found him guilty of five counts of robbery in the first degree, Section 569.020 RSMo (2000), and five counts of armed criminal action, Section 571.015 RSMo (2000). Defendant was sentenced to fifteen years imprisonment. Defendant raises two points on appeal claiming the trial court erred in: (1) failing, sua sponte, to excuse a venireperson who had changed the locks on the door of two of the victims; and (2) allowing the State to present evidence regarding Defendant’s pending criminal charges during the punishment phase of the trial.

We have reviewed the briefs of the parties and the record on appeal. An extended opinion would have no precedential value. We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision.

The judgment is affirmed pursuant to Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Cletus PICKLES, Appellant.
    No. ED 85091.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 18, 2005.
    Daniel Joseph Bruntrager, St. Louis, MO, for appellant.
    Deborah Daniels, Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Cletus Pickles (“Defendant”) appeals from the trial court’s judgment entered upon his conviction by a jury of possession of a controlled substance. As a prior and persistent offender and prior drug offender, Defendant was sentenced to eight years’ imprisonment and required to complete a long-term drug rehabilitation treatment program. Defendant raises three points on appeal. In points I and II, Defendant argues the trial court erred in admitting (i) the police lab report identifying the controlled substance as cocaine base (“Lab Report”) prepared by chemist Joseph Crow and (ii) the testimony of chemist Margaret Owens regarding the Lab Report because she did not prepare the Lab Report and her testimony constituted hearsay not within a recognized hearsay exception. In point III, Defendant argues that the trial court plainly erred in admitting testimony of prior uncharged crimes and misconduct. We affirm.

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


text:
    Justin MUELLER and Danielle Mueller, Appellants, v. Alicia HENDERSON, Respondent.
    No. ED 84098.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 18, 2005.

      Richard A. Gaertner, St. Peters, MO, for appellant.
    James A. Bingley, St. Louis, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER, III, J. and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Plaintiffs Justin Mueller and Danielle Mueller appeal from the judgment of the Circuit Court of St. Charles County entered pursuant to a jury verdict finding both Plaintiff Justin Mueller and Defendant Alicia Henderson equally at fault in an automobile accident, assessing no damages to Plaintiff Justin Mueller for personal injury, and assessing no damages to Plaintiff Danielle Mueller for loss of consortium. We affirm.

We have reviewed the briefs of the parties and the record on appeal and find no error of law appears. As an extended opinion would serve no jurisprudential purpose, we affirm the judgment pursuant to Rule 84.16(b).


text:
    Darrell HUFFMAN, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85282.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 18, 2005.
    Jessica Hathaway, St. Louis, MO, for appellant.
    Shaun J. Mackelprang, Lisa M. Kennedy, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Darrell Huffman (hereinafter, “Movant”) appeals from the denial of his Rule 29.15 post-conviction motion after an evidentiary hearing. Movant was convicted of one count of murder in the second degree, Section 565.021 RSMo (2000), and one count of armed criminal action, Section 571.015 RSMo (2000). Movant’s convictions were affirmed on direct appeal. State v. Huffman, 113 S.W.3d 238 (Mo.App. E.D.2003). Subsequently, Movant filed a motion for post-conviction relief pursuant to Rule 29.15, which the motion court denied after an evidentiary hearing.

Movant raises three points on appeal. First, Movant claims the motion court clearly erred in denying his claim that trial counsel coerced him into not testifying at his trial. Second, Movant claims trial counsel was ineffective for failing to present an opening statement to the jury. Third, Movant argues trial counsel was ineffective for failing to object to the prosecutor’s comments regarding the victim during closing argument.

We have reviewed the briefs of the parties, the legal file, and the transcript and find the motion court’s decision was not clearly erroneous. Rule 29.15(k). An opinion reciting the detailed facts and restating the principles of law would have no precedential value. We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 84.16(b).


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

text:
    STATE of Missouri, Respondent, v. Lonnie L. RULO, Appellant.
    No. ED 85391.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 18, 2005.
    Steven A. Privette, Willow Springs, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan Joseph Buchheim, Asst. Attorney General, Jefferson City, MO, for Respondent.
   ROBERT G. DOWD, JR., Judge.

Lonnie Rulo (Defendant) appeals from the judgment upon his convictions by a jury of one count of kidnapping, Section 565.110, RSMo 2000, one count of forcible rape, Section 566.030, RSMo 2000, and two counts of armed criminal action, Section 571.015, RSMo 2000. Defendant received a fifteen-year imprisonment sentence on the kidnapping count and life imprisonment sentences on the three remaining counts with all sentences to run consecutively. We reverse and remand for a new trial.

Because we find Defendant’s first point on appeal dispositive, we address only those facts necessary for that point. In that point, Defendant contends the trial court erred in overruling his motion for change of judge. On November 3, 2003, Judge Sandra Martinez sitting in Division One of the Twenty-Fourth Judicial Circuit was assigned to preside over the arraignment scheduled for December 1, 2003 in Washington County, Missouri. On December 1, 2003, Defendant waived his formal arraignment and the case was passed until January 5, 2004 for filing of any and all pre-trial motions. On December 3, 2003, Defendant filed a motion for change of judge and change of venue pursuant to Rule 32.08. On January 5, 2004, Judge Martinez overruled Defendant’s motion for change of judge because the motion was “not in proper form as it does not specify which judge to disqualify.” Thereafter, on January 5, 2004, Defendant filed a new motion for change of judge and change of venue. The motion specifically named Judge Martinez as the judge to be disqualified. On February 2, 2004, Judge Martinez denied the motion for change of judge as untimely, but granted Defendant’s motion for change of venue to Madison County, Missouri, where she would continue to preside over the case. She then set Defendant’s case for trial in May 2004 before her division.

Rule 32.07 provides, in pertinent part:
(a) Except as provided in Rule 32.06, a change of judge shall be ordered in any criminal proceeding upon the timely filing of a written application therefor by any party. The applicant need not allege or prove any reason for such change. The application need not be verified and may be signed by any party or an attorney for any party.
(b) In felony and misdemeanor cases the application must be filed not later than ten days after the initial plea is entered. If the designation of the trial judge occurs more than ten days after the initial plea is entered, the application shall be filed within ten days of the designation of the trial judge or prior to commencement of any proceeding on the record, whichever is earlier.
(c) A copy of the application and a notice of the time when it will be presented to the court shall be served on all parties.
(d) Upon the presentation of a timely application for change of judge, the judge promptly shall sustain the application.

In criminal and civil cases, the right to disqualify a judge is “one of the keystones of our legal administrative edifice.” State v. Celia, 976 S.W.2d 543, 550 (Mo.App. E.D.1998) (quoting State ex rel. Mountjoy v. Bonacker, 831 S.W.2d 241, 244 (Mo.App. S.D.1992)). Statutes and rules are liberally construed in favor of the right to disqualify. Cello, 976 S.W.2d at 550. The right to disqualify a judge has been described as virtually unfettered. Id. Therefore, if a request for trial judge disqualification is in proper order, the trial judge’s duty is to sustain it. Id.

Judge Martinez denied Defendant’s motion, because it failed to specify which judge was to be disqualified. Defendant maintains his motion for change of judge was timely and there is no requirement for the specific denomination of the name of the trial judge sought to be disqualified. In response, the State concedes that there is no requirement that a motion for change of judge specifically name the trial judge to be disqualified. Indeed, the State acknowledges in its brief that, “Because Judge Martinez presided over the entry of [Defendant’s] plea, one might presume that [Defendant’s] intent in filing the application just two days later was to disqualify Judge Martinez.” We agree that there is no requirement in the rule that the motion must specify by name the judge that is to be disqualified. Undeniably, the committee note to Rule 32.07 advises that an application is sufficient if it simply contains: (1) the caption of the case, (2) the phrase “_requests a change of judge,” and (3) the party’s or the attorney’s signature. In considering this change of judge motion in the Twenty-Fourth Judicial Circuit where there are only two circuit judges, it is even more evident the motion filed before Judge Martinez intended to disqualify her from the case.

However, the State asserts that Defendant’s motion for change of judge filed on December 3, 2003 was untimely, and thus Judge Martinez’s denial of it was proper. In reaching this conclusion, the State interprets Rule 32.07(b) to require that if the trial judge is not designated when the initial plea is taken, then an application for change of judge is only timely if filed not later than ten days after the trial judge is ultimately designated. Thus, the State argues because Judge Martinez had not been officially designated as the trial judge when Defendant appeared to waive arraignment and enter his plea on December 1,2003, then his application for change of judge filed two days later was untimely. The State contends Judge Martinez was not designated the trial judge until the case was set for trial during the February 2, 2004 hearing citing to Breazeale v. Kemna, 854 S.W.2d 631, 633 (Mo.App. W.D.1993), which found, construing Rule 51.05, the designation of the trial judge occurs upon the setting of a date for trial on the merits before a particular judge.

Rule 32.07(b) requires that the application for change of judge be filed within ten days after the initial plea. Defendant’s motion for change of judge was filed two days after Defendant entered his initial plea of not guilty, and was timely under the rule. However, even if Defendant’s motion was premature, because Judge Martinez had not been officially designated as the trial judge, the change of judge motion was timely and should have been granted.

In State ex rel. Walters v. Schaeperkoetter, 22 S.W.3d 740, 743 (Mo.App. E.D.2000), the court held that despite the fact that a trial judge had not yet been designated, a motion for change of judge under Rule 51.05, the civil change of judge rule, was not premature and the presiding judge should have disqualified himself. In Walters, the respondent argues that the motion for change of judge was premature because a trial judge had not been designated. Id. at 743. The court noted that although a trial judge had not been designated, the rule contemplates that there may never be such a designation and that the presiding judge may retain jurisdiction over a case for an extended period of time, even through final judgment. Id. Thus, a party can seek disqualification of a presiding judge or the judge handling administrative control of a case under the rules. Id.

Similarly here, Judge Martinez was assigned to handle Defendant’s arraignment proceedings and all pretrial motions, and ultimately assigned the case to herself to be heard in her division. Defendant filed a timely motion for change of judge to have Judge Martinez disqualified from hearing any matters in his case. As in Walters, Judge Martinez’s only option was to sustain the application for the change of judge.

Because Judge Martinez had a duty to sustain Defendant’s timely motion, she erred in failing to disqualify herself. Therefore, she was without jurisdiction to proceed further other than to transfer the case. Cella, 976 S.W.2d at 553. In light of our disposition of this point, we need not address Defendant’s remaining ten points on appeal. The judgment of conviction is reversed and the cause is remanded for a new trial.

Judgment reversed and remanded.

NANNETTE A. BAKER, P.J., and SHERRI B. SULLIVAN, J., concur.

      . The Twenty-Fourth Judicial Circuit consists of Madison, St. Francois, Ste. Genevieve, and Washington Counties. The Twenty-Fourth Judicial Circuit is comprised of two circuit judges, Judge Sandra Martinez and Judge Kenneth Pratte, and five associate circuit judges. Judge Kenneth Pratte is the presiding judge of the Twenty-Fourth Judicial Circuit.

      . Rule 32.08 provides, in pertinent part:
      (a) If a party requests and obtains either a change of venue or a change of judge, except a change of judge pursuant to Rule 32.06, that party shall not be granted any additional change thereafter except as provided in Rule 32.09(c) or Rule 32.10. A defendant who desires both a change of venue and a change of judge, except a change of judge pursuant to Rule 32.06, must join both requests in a single application.
      (b) A copy of the application and notice of the time when it will be presented to the court shall be served on all parties.
      (c) Upon the timely presentation of an application requesting a change of judge and a change of venue and if no such application has previously been made by the requesting party, the judge promptly shall sustain the application for change of judge and transfer the case in accordance with the procedures of Rule 32.07(d).
      (d) The newly assigned judge shall determine the request for change of venue. If the change of venue is a matter of right, the assigned judge may order the change of venue without the judge's appearance in the county from which the change is taken after giving all parties an opportunity to make suggestions as to where the case should be sent.
      (e) If the application for change of venue is granted, the judge shall order the change of venue. If the change of venue is denied or if the change of venue is to another county in the same circuit, the newly assigned judge shall continue to be the judge in the criminal proceeding

      . The 1993 amendment of this rule rewrote subsection (b) and deleted subsection (c). Prior to the amendment, former subsections (b) and (c) provided:
      (b) In misdemeanor cases the application must be filed not later than ten days before the date set for trial. If the designation of the trial judge occurs less than ten days before trial, the application may be filed anytime prior to trial.
      (c) In felony cases the application must be filed not later than thirty days after arraignment if the trial judge is designated at arraignment. If the trial judge is not designated at arraignment, the application must be filed no later than thirty days after the designation of the trial judge and notification to the parties or their attorneys. If designation of the trial judge occurs less than thirty days before trial, the application must be filed prior to commencement of any proceeding on the record.
      Under the previous version of the rule, there was specific mention of trial judge designation at arraignment that is not included in the current version of the rule.


author: GEORGE W. DRAPER III, Judge.

text:
    Darlene H. HERN, Appellant, v. Gary W. HERN, Respondent.
    No. ED 85383.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 18, 2005.

      David R. Crosby, Hillsboro, MO, for appellant.
    Brian D. Klar, St. Louis, MO, for respondent.
   GEORGE W. DRAPER III, Judge.

Darlene Hern (hereinafter, “Mother”) appeals from the trial court’s judgment modifying her child support obligation and awarding attorneys’ fees to Gary Hern (hereinafter, “Father”). Mother raises three points on appeal. First, Mother claims the trial court erred when it increased her child support obligation based upon imputed income. Second, Mother argues the trial court erred in calculating its Form 14 as it related to the overnight custody adjustment and medical expenses. Finally, Mother argues the trial court erred in awarding attorneys’ fees in light of its decision to impute income to her. We affirm as modified.

Mother and Father’s marriage was dissolved in August 1996, with Mother receiving custody of their minor child (hereinafter, “Child”). The dissolution decree was modified in November 2001, at which time the trial court awarded Father physical custody of Child and ordered Mother to pay child support in the amount of $300 per month.

Mother filed a motion to modify in May 2003, seeking modification of the physical custody of Child. Father filed a cross petition for modification asking for an increase in child support in light of a substantial increase in Mother’s income. During the pendency of the litigation, Mother was terminated from her employment for misconduct.

On the morning of trial, Mother voluntarily withdrew her motion seeking physical custody of Child. Father, Mother, and Mother’s husband testified at the hearing. The trial court found a substantial change in circumstances to warrant modifying the child support amount and increased Mother’s support obligation to $854.50 per month, after imputing income to Mother in the amount of $7,933 per month. The trial court ordered Mother to pay arrearages in the amount of $6,954 and to pay Father’s attorneys’ fees. Mother appeals.

When reviewing a child support modification order, we must affirm the trial court’s judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously applies or declares the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Lokeman v. Flattery, 146 S.W.3d 422, 426 (Mo.App. W.D.2004). We defer to the trial court’s credibility determinations and view the evidence in the light most favorable to the judgment. Searcy v. Searcy, 85 S.W.3d 95, 99 (Mo.App. W.D.2002).

In her first point, Mother argues the trial court erred when it increased her child support obligation from $300 per month to $854.50 per month because there was insufficient evidence to support the trial court’s decision to impute income to her in the amount of $7,933 per month. Mother claims Father has not carried his burden of showing there were employment opportunities available in the community for which Mother was qualified and could earn the amount imputed to her.

In calculating child support, trial courts have discretion to impute income to an underemployed or unemployed parent. Burton v. Donahue, 69 S.W.3d 76, 79 (Mo.App. E.D.2001). A parent may not escape responsibility to his or her family by deliberately limiting his or her work to reduce income. Smith v. Smith, 969 S.W.2d 856, 857 (Mo.App. E.D.1998). In order to avoid such a situation, a court may, in proper circumstances, impute income to a parent according to what that parent could earn by use of his or her best efforts to gain employment suitable to that parent’s capabilities. Id. What constitutes the appropriate circumstances to impute income will depend on the facts and must be determined on a case-by-case basis. Id. Further, a trial court’s assessment of an amount of income to impute to a party must be supported by evidence at trial and not based upon mere speculation. D.M.K. v. Mueller, 152 S.W.3d 922, 927 (Mo.App. S.D.2005).

Mother was terminated from her employment in late January 2004, for using a corporate credit card for personal use. While imputation of income is appropriate when a parent leaves his or her employment voluntarily, it has also been permitted when the parent was terminated involuntarily. See Silverstein v. Silverstein, 943 S.W.2d 300, 302 (Mo.App. E.D.1997). In the latter circumstance, imputation may be appropriate where the parent has failed to use his or her best efforts to secure new employment, refused offers of employment, or failed to make a showing that the unemployment was something other than temporary. Walker v. Walker, 936 S.W.2d 244, 248 (Mo.App. S.D.1996). The central question is whether the parent made a “good faith attempt to obtain new employment.” Young v. Beckman, 147 S.W.3d 899, 904 (Mo.App. W.D.2004).

In Walker, the court refused to impute income to a father when there was no evidence presented “that he was guilty of actions which could be interpreted as unreasonably creating the circumstances leading to his termination.” Walker, 936 S.W.2d at 248. In contrast, it is clear Mother engaged in corporate misconduct which unreasonably created the circumstances leading to her termination. There is no suggestion in the evidence, however, that Mother’s actions were intended as a deliberate attempt to reduce her income in an effort to evade her child support responsibilities.

The evidence does not demonstrate, however, that Mother made a “good faith attempt to obtain new employment” until two weeks prior to the hearing, after being unemployed for approximately four months. Compare Young, 147 S.W.3d at 904 (holding the trial court properly refused to impute income to father who was terminated from his job for misconduct when father found new job within two weeks of his termination and subsequently changed jobs twice for higher salaries). Moreover, although Mother indicated she was told she was considered “overqualified” as a reason for not obtaining employment, her own testimony supported the proposition that employment opportunities were available because she had applied to several places in the two weeks prior to the hearing. The trial court did not abuse its discretion in imputing income to Mother. Point denied.

In her second point, Mother claims the trial court erred in its calculation of child support because it miscalculated the overnight custody adjustment and did not take into account the medical expenses incurred by Mother. Father agrees that the trial court miscalculated the overnight custody adjustment and certain medical expenses. We agree.

There was uncontroverted evidence that Mother incurred $42 per month for medical insurance, $14 per month for dental insurance, and $7 for vision insurance for Child. Moreover, our review of the Form 14 reveals a mathematical error with respect to calculating the overnight visitation adjustment.

Rule 84.14 permits this Court to “give such judgment as the court ought to give. Unless justice otherwise requires, the court shall dispose finally of the case.” On review of the miscalculation, we need not remand, but may render the judgment that should have been rendered by the trial court. Manula v. Terill, 136 S.W.3d 528, 530 (Mo.App. E.D.2004).

Since the trial court erred in calculating the proper child support amount under Rule 88.01 and Form 14, we modify the judgment and order Mother to pay Father the total sum of $808.25 per month in child support. Additionally, we modify the trial court’s award with respect to arrearages owed and order Mother to pay $6,099 based on the revised calculation. Point granted.

Finally, Mother claims the trial court erred in ordering her to pay Father’s attorneys’ fees. Mother suggests that if we find error with respect to the trial court’s imputation of income, then we are obligated to take into account that error in determining her ability to pay Father’s attorneys’ fees.

As a general rule, parties to a dissolution action pay their own attorneys’ fees. Graves v. Graves, 967 S.W.2d 632, 643 (Mo.App. W.D.1998). However, Section 452.335.1 RSMo (2000) gives the trial court discretion to order one of the parties to pay a reasonable amount of the other’s attorneys’ fees. The two factors that the trial court should consider are “the actions of the parties during the pendency of the action, and the parties’ financial situation.” Myers v. Myers, 47 S.W.3d 403, 410 (Mo.App. S.D.2001)(quoting Thill v. Thill, 26 S.W.3d 199, 208 (Mo.App. W.D.2000)). The trial court is afforded considerable discretion in determining whether to award attorneys’ fees, and its decision will not be overturned absent a manifest abuse of that discretion. Cromer ex rel. Cromer v. Tucker, 987 S.W.2d 470, 471 (Mo.App. E.D.1999).

Mother concedes in her brief that her conduct contributed to the protraction of this litigation, and the record supports this concession. Mother merely asks us to reexamine the award of attorneys’ fees in conjunction with our analysis of whether the trial court abused its discretion by imputing income to her. As discussed previously, we found no error in the trial court’s imputation of income, and likewise, we find no abuse of discretion with respect to the award of attorneys’ fees to Father. Point denied.

The judgment is affirmed as modified.

GARY M. GAERTNER, SR., P. J. and KENNETH M. ROMINES, J., concur.


text:
    STATE of Missouri, Respondent, v. Timothy BARRETT, Appellant.
    No. ED 84964.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 18, 2005.
    Nancy A. McKerrow, Office of State Public Defender, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shawn Naccarato, Evan J. Buchheim, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Timothy Barrett (Barrett) appeals the trial court’s judgment, which was entered after a jury found him guilty of Stealing a Controlled Substance. The trial court sentenced Barrett to six years’ imprisonment. There was sufficient evidence for a jury to find, beyond a reasonable doubt, that Barrett stole morphine from his place of employment. We have reviewed the briefs of the parties and the Record on Appeal, and we find no error of law in this case. Thus, no jurisprudential purpose would be served by a written opinion. The judgment is affirmed pursuant to Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Ernest JAMISON, Appellant.
    No. ED 85041.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 18, 2005.
    Amy Bartholow, Assistant Public Defender, Office of State Public Defender, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Jefferson City, MO, for respondent.

      Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Ernest Jamison (Jamison) appeals his conviction and sentence for second degree murder in violation of RSMo Section 565.021 (1994). After a jury found Jami-son guilty, the court sentenced Jamison to life in prison. Jamison contends the trial court should have granted his motion in limine, which requested that the court exclude evidence of Jamison’s guilty pleas, convictions and sentences for the murders of two other individuals killed the same day as the victim. We find that the court did not abuse its discretion when it overruled Jamison’s motion in limine. We have reviewed the briefs of the parties and the Record on Appeal, and we find no error of law in this case. Thus, no jurisprudential purpose would be served by a written opinion. The judgment is affirmed pursuant to Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Lucille Faith DUNCAN, Appellant.
    No. WD 64063.
    Missouri Court of Appeals, Western District.
    Oct. 18, 2005.
    Irene C. Earns, Columbia, MO, for appellant.
    Deborah Daniels, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before NEWTON, P.J., LOWENSTEIN and BRECKENRIDGE, JJ.
   ORDER

PER CURIAM.

Lucille Faith Duncan appeals from her conviction and sentence for first degree murder, under section 565.020, RSMo 2000, and armed criminal action, under section 571.015, RSMo 2000. Because a published opinion would have no prece-dential value, a memorandum has been provided to the parties.

The judgment is affirmed. Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Randy L. REID, Appellant.
    No. WD 64527.
    Missouri Court of Appeals, Western District.
    Oct. 18, 2005.
    Margaret M. Johnston, Columbia, MO, for Appellant.

      Shaun J. Mackelprang, Jefferson City, MO, for Respondent.
    Before RONALD R. HOLLIGER, P.J., ROBERT G. ULRICH and JOSEPH M. ELLIS, JJ.
   ORDER

PER CURIAM.

Randy Reid appeals the judgment of conviction following jury trial. He was convicted of first degree robbery, section 569.020, RSMo 2000, armed criminal action, section 571.015, RSMo 2000, unlawful use of a weapon, section 571.080, RSMo Cum.Supp.2004, and resisting arrest by fleeing, section 575.150, RSMo Cum.Supp. 2004, and sentenced to consecutive sentences of thirty years imprisonment, ten years imprisonment, four years imprisonment, and one concurrent year imprisonment, respectively. He appeals only that portion of the judgment that applies to his conviction for resisting arrest, claiming that insufficient evidence was presented to support the conviction. The judgment of the trial court is affirmed. Rule 80.25(b).


text:
    In the Matter of the CARE AND TREATMENT OF Wade TURPIN.
    No. WD 64570.
    Missouri Court of Appeals, Western District.
    Oct. 18, 2005.
    Emmett Queener, State Public Defender Office, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., James Robert Layton and Alana M. Barra-gan-Scott, Office of Attorney General, Jefferson City, for respondent.
    Before LISA WHITE HARDWICK, Presiding Judge, PATRICIA A. BRECKENRIDGE, Judge, and PAUL M. SPINDEN, Judge.
   ORDER

Wade Turpin appeals the circuit court’s judgment and order following a jury trial committing him to confinement in the custody of the Department of Mental Health as a sexually violent predator. We affirm. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Paul E. TAYLOR, Appellant.
    No. WD 64597.
    Missouri Court of Appeals, Western District.
    Oct. 18, 2005.
    Kent Denzel, Columbia, MO, for appellant.
    Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, MO, for respondent.

      Before RONALD R. HOLLIGER, Presiding Judge, ROBERT G. ULRICH, Judge and JOSEPH M. ELLIS, Judge.
   ORDER

PER CURIAM.

Paul E. Taylor was convicted by a Cole County jury of one count of the class B felony of committing violence against an employee of the Missouri Department of Corrections, section 217.385, RSMo 2000, for which he was sentenced to a seven-year term of imprisonment, to be served concurrent with the four-year sentence he was already serving at the time of the charged offense. On appeal, Taylor contends the trial court erred and abused its discretion in refusing to permit his attorney to inquire during voir dire as to whether the members of the venire panel would be able to make an independent judgment as to Taylor’s guilt and not simply go along with the majority.

After carefully reviewing the record, we conclude that, as phrased, defense counsel’s question was properly disallowed since it misstated the law. Furthermore, Taylor’s attorney was not precluded from all inquiry whatsoever into the prospective jurors’ ability to decide the case for themselves; defense counsel was only precluded from asking an improper question that misstated the law. Finally, even if the trial court’s ruling had been erroneous, Taylor was not prejudiced.

While no jurisprudential purpose would be served by a formal written opinion, a memorandum further explaining the reasons for our decision has been provided to the parties. Taylor’s conviction and sentence are affirmed pursuant to Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Michael McGOWAN, Appellant.
    No. WD 64649.
    Missouri Court of Appeals, Western District.
    Oct. 18, 2005.
    Jeannie Marie Willibey, Kansas City, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun Mackelprang, Office of Attorney General, Jefferson City, for Respondent.
    Before PAUL M. SPINDEN, Presiding Judge, VICTOR C. HOWARD, Judge, and RONALD R. HOLLIGER, Judge.
   ORDER

Michael McGowan appeals the circuit court’s judgment convicting him of one count of assault in the first degree, one count of robbery in the first degree, and two counts of armed criminal action. We affirm. Rule 30.25(b).


text:
    In the Interest of A.C., Respondent. Juvenile Officer, Respondent, v. L.H. (Father), Appellant, R.C. (Mother), Defendant.
    No. WD 64688.
    Missouri Court of Appeals, Western District.
    Oct. 18, 2005.
    Lance M. Haley, Kansas City, MO, for Appellant.
    William R. Jackson, III, Kansas City, MO, for Respondent.
    Katherine J. Rodgers, Kansas City, MO, Attorney and Guardian.
    Before SMITH, P.J., LOWENSTEIN and HOWARD, JJ.
   ORDER

PER CURIAM.

Father appeals the judgment terminating his parental rights to his daughter, A.C. The trial court terminated Father’s rights holding that by clear, cogent and convincing evidence termination was justified under the grounds stated in Section 211.447.4(2) and (3), RSMo.2000, and that termination was in the best interest of the child. Affirmed. Rule 84.16(b).


text:
    Victoria L. HOWE, Petitioner/Respondent, v. Walter R. HOWE, Respondent/Respondent, E. Darrell Davis, Special Commissioner, Third-Party Petitioner/Respondent, v. Victoria L. Howe, Third-Party Respondent/Respondent, Walter R. Howe, Third-Party Respondent-Respondent/Appellant, Ronald Howe and Mary Howe, Third-Party Respondents/Appellants, and Bernard L. Terbrock, Third-Party Respondent/Respondent.
    No. ED 85805.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 18, 2005.
    Byron Cohen, Clayton, MO, for appellant Walter R. Howe.
    Michael Alan Graff, St. Louis, MO, for appellant Ronald and Mary Howe.
    William Laird Hetlage, St. Louis, MO, for respondent Victoria L. Howe.
    E. Darrell Davis, St. Charles, MO, pro se.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J. and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Ronald Howe and Mary Howe appeal from a judgment of the trial court adjudicating ownership and partition of a certain piece of property originally owned by Walter Howe, their son, and Victoria Howe, their former daughter-in-law. Walter Howe cross-appeals from the judgment. We have reviewed the briefs of the parties and the record on appeal and conclude that the trial court did not err, and its judgment is supported by substantial evidence. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).


text:
    Mary TABACCHI, Appellant, v. AMERICAN FAMILY MUTUAL INSURANCE GROUP, Respondent.
    No. ED 85916.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 18, 2005.
    Martin J. Buckley, Adrian P. Susler, Gerard T. Noce, St. Louis, MO, for appellant.
    Lawrence F. Hartstein, St. Louis, MO, for respondent.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Mary Tabacchi (“Tabacchi”), appeals from a judgment of the Circuit Court of the City of St. Louis granting a Motion for Summary Judgment to American Family Mutual Insurance Group (“American Family”) on Tabacchi’s Petition against American Family claiming breach of contract and seeking declaratory relief.

Tabacchi raises two points on appeal. First, Tabacchi claims that there is ambiguity in American Family’s policy exclusion as applied to underinsured motorist (“UIM”) benefits. Further, she argues that because of this ambiguity, she should not be denied coverage for her husband’s death, which occurred while he was operating his motorcycle. Second, she argues that the trial court erred because its order was contrary to Tabacchi’s objectively reasonable expectation that American Family would provide full and consistent coverage for each vehicle. We find no error and affirm.

No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

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


author: VICTOR C. HOWARD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Larue L. McQUARY, Appellant.
    No. WD 64730.
    Missouri Court of Appeals, Western District.
    Oct. 18, 2005.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Shawn Naccarato, Assistant Attorney General, Jefferson City, MO, for respondent.
    Ellen H. Flottman, Assistant Public Defender, Columbia, MO, for appellant.
    Before HOWARD, P.J., and SMART and NEWTON, JJ.
   VICTOR C. HOWARD, Presiding Judge.

Larue L. McQuary appeals his conviction of the class A felony of distribution of a controlled substance within 2,000 feet of a school in violation of section 195.214, for which he was sentenced as a prior and persistent drug offender to twenty-five years imprisonment. In his appeal from the judgment entered upon his conviction, McQuary raises two points. Prior to considering McQuary’s points on appeal, we must consider his motion for remand that was taken with the case.

Motion for Remand

McQuary has filed a motion for remand based on evidence of alleged juror misconduct he discovered subsequent to filing this appeal. He seeks a remand based on allegations that one of the jurors failed to disclose that he knew one of the State’s witnesses.

In support of his motion for remand, McQuary states that Daniel Woods, who was later selected to serve on the jury, did not respond when the venire panel was asked during voir dire if they knew any of the witnesses, including Justin Berry. Berry testified for the State at McQuary’s trial that he went to McQuary’s home on March 28, 2003, to exchange property that James Foote had given him for at least $100 worth of crack cocaine from McQuary. McQuary took the property and gave Berry the crack cocaine in return. Berry then left McQuary’s house, returned to his car, and smoked the crack cocaine with Foote. The jury convicted McQuary of distribution of a controlled substance within 2,000 feet of a school.

After the time for filing a motion for new trial had expired and McQuary had filed his appeal with this court, McQuary obtained an affidavit from Joshua Huffman, which states, in relevant part:

I, Joshua L. Huffman, do hereby profess that I know for sure that juror Daniel (“Danny”) Woods and witness Justin Berry knew each other at the time of LaRue McQuary’s trial on June 30, 2004. In fact I’ve taken Danny along with me over to Justin’s home — when he lived at 813 W. Rollins — several (at least three) times on visits, we were all recreational buddies in 2002. So Danny and Justin knew each other pretty well, and I’m willing to testify to this — if need be.

McQuary asks that we use our inherent power to remand to the trial court to allow him to file, out of time, a motion for new trial based on this evidence of juror Woods’ misconduct. See State v. Jackson, 925 S.W.2d 856, 860 (Mo.App. W.D.1996) (recognizing “[a]n exception to the time limitations of Rule 29.11(b) ... where an appellate court, in its discretion, determines that its inherent power must be exercised to remand a case for the trial court to consider whether a new trial should be granted on the basis of newly discovered evidence in order to prevent a miscarriage of justice”).

In State v. Davis, 698 S.W.2d 600, 603 (Mo.App. E.D.1985), the Eastern District discussed its opinions in State v. Mooney, 670 S.W.2d 510 (Mo.App. E.D.1984), and State v. Williams, 673 S.W.2d 847 (Mo.App. E.D.1984). Mooney, 670 S.W.2d at 515-16, and Williams, 673 S.W.2d at 848, first recognized the above-described discretionary jurisdiction of the appellate courts to remand a cause to the trial court for consideration of a motion for new trial based on newly discovered evidence. Davis explained the exceptionally narrow scope of those holdings as follows:

A careful reading of those cases reveals that they involved exceptional circumstances and are thus limited. Furthermore, it is clear that remand is not mandated in cases involving allegations of newly discovered evidence after appeal. A case will only be remanded on the basis of newly discovered evidence after appeal where the court, in its discretion, determines that its inherent power must be exercised in order to prevent a miscarriage of justice.

698 S.W.2d at 603. In McCauley v. State, 866 S.W.2d 892, 894 (Mo.App. E.D.1993), the Eastern District further explained:

The facts of Williams and Mooney were extremely unique. In both cases, the defendants had newly discovered evidence which would completely exonerate them of the crime for which they were convicted. Williams, 673 S.W.2d at 847; Mooney, 670 S.W.2d at 512 (only evidence against the defendant was testimony later recanted). A failure to present that evidence in a motion for new trial would have resulted in a serious miscarriage of justice.

The aforementioned cases involved newly discovered evidence tending to completely exonerate the defendants, not newly discovered evidence of juror misconduct, as alleged here. The only case discovered by this court concerning a remand upon newly discovered evidence of juror misconduct is State v. Post, 804 S.W.2d 862 (Mo.App. E.D.1991). In Post, the Eastern District stated at the outset that it had previously exercised its discretion and granted the defendant’s motion to remand for new trial by reason of newly discovered evidence of serious juror misconduct. Id. at 862. The actual issue in Post involved the proceedings that occurred after that remand, i.e., the State appealed from the trial court’s judgment granting a new trial after the trial court made findings of serious juror misconduct on remand. Id. The Eastern District agreed with the trial court that substantial evidence supported the trial court’s finding of prejudicial juror misconduct. Id. at 863. The misconduct resulted from “outrageous” conduct by law enforcement in interacting with the sequestered jury, which conduct included unauthorized socializing with the jurors and sexual contact between an alternate juror and a deputy sheriff not assigned to the jury. Id. at 862-63. In agreeing with the trial court that a new trial was warranted, the Eastern District concluded, “[n]o one should be on trial for any crime, much less murder, in such a lackadaisical atmosphere.” Id. at 863.

McQuary argues that as in Post, the evidence of juror Woods’ misconduct requires that this cause be remanded for a new trial. We disagree. Post involved evidence of egregious juror misconduct. This case does not involve such exceptional circumstances as to warrant the exercise of our inherent discretion to remand the case back to the trial court. The only evidence McQuary offers in support of his motion for remand is an affidavit from Joshua Huffman, which has no proof of credibility, and the information revealed does not exonerate McQuary. Huffman’s affidavit does little more than to mention that sometime in 2002, two years before McQuary’s trial, he took juror Woods with him to Berry’s house on at least three occasions. Even if we assume Huffman’s statements are true, we can conjecture several different scenarios in which juror Woods could have been completely truthful when he did not respond when the venire panel was asked during voir dire whether anyone knew Justin Berry. For example, Woods may have never known Berry by name, Woods may have known Berry by another name, or Woods may not have recalled meeting Berry due to the lapse of time. Moreover, Berry’s testimony was not the only testimony offered at McQuary’s trial concerning the exchange of property for cocaine that occurred at McQuary’s residence. James Foote also testified about the transaction. It was Foote’s property that Berry exchanged with McQuary for the cocaine. Foote used Berry as a “go-between,” because McQuary “wouldn’t deal with him. He would deal with Justin. He knew Justin.”

We are not convinced that a serious miscarriage of justice will result if we do not exercise our discretion to remand to the trial court for its consideration of this information in a motion for new trial. McQuary’s motion for remand is denied.

Point I

McQuary argues in his first point on appeal that the trial court erred in overruling his motion for acquittal at the close of all the evidence and in sentencing him, because the State failed to prove beyond a reasonable doubt that McQuary knew his residence was within 2,000 feet of school property, which is required to establish a violation of section 195.214.

When reviewing a motion for judgment of acquittal, we apply the same standard of review as the standard used in reviewing a challenge to the sufficiency of the evidence. State v. Botts, 151 S.W.3d 372, 375 (Mo.App. W.D.2004). We must determine “whether sufficient evidence was presented from which a reasonable juror could find the defendant guilty beyond a reasonable doubt, not whether the verdict was against the weight of the evidence.” Id. In so reviewing, we “aecept[ ] as true all evidence and its reasonable inferences in a light most favorable to the verdict and reject[] all contrary evidence and inferences.” Id.

The State charged McQuary with distribution of a controlled substance near schools — specifically, Moberly Area Community College, a public junior college — in violation of section 195.214. Section 195.214.1 provides, in relevant part:

[a] person commits the offense of distribution of a controlled substance near schools if such person violates section 195.211 by unlawfully distributing or delivering any controlled substance to a person ... within two thousand feet of, the real property comprising a ... public or private junior college[.]

“Section 195.214 acts as a ‘penalty enhancement’ provision, and it does not create a separate crime. Section 195.214 incorporates the elements of § 195.211 and adds the additional requirement that defendant’s actions take place within 2000 feet of a school.” State v. White, 28 S.W.3d 391, 396 (Mo.App. W.D.2000) (citations omitted). Section 195.211.1, provides, in relevant part, that “it is unlawful for any person to distribute ... a controlled substance.” Thus, the trial court instructed the jury, pursuant to MAI-CR 3d 325.30, that if it believed beyond a reasonable doubt:

First, that on or about March 28, 2003, ... [McQuary] distributed cocaine, a controlled substance, to Justin Berrey [sic], and
Second, that [McQuary] did so within two thousand feet of the real property comprising Moberly Area Community College, a public junior college,
and
Third, that with regard to the facts and circumstances submitted in this instruction, [McQuary] acted knowingly,

then it could find McQuary guilty of distributing a controlled substance near schools.

McQuary disputes only the evidence concerning his knowledge that there was a school within 2,000 feet of his residence. “A person ‘acts knowingly’, or with knowledge, ... [w]ith respect to his conduct or to attendant circumstances when he is aware of the nature of his conduct or that those circumstances exist[.]” § 562.016.3; see White, 28 S.W.3d at 396 (citing section 562.016.3 in explaining, “in order for a defendant to be found guilty under either § 195.214 or § 195.[2]11, he must have acted purposely or knowingly”). “Knowledge may be proven by circumstantial evidence.” White, 28 S.W.3d at 396.

In support of his argument, McQuary argues that the evidence offered by the State regarding his knowledge of the school was similar to the evidence that we found insufficient in White, 28 S.W.3d at 397. We disagree.

In White, the State’s sole evidence of the 896-foot distance between the residence from which the defendant distributed the controlled substance and the school was a computer-generated map. Id. The map depicted, without any indication of whether it was drawn to scale, the distance from the residence where the alleged distribution occurred to the edge of the school. Id. White did not challenge the computed distance between the residence and the school, but he argued the evidence was insufficient “to establish that he knowingly delivered the controlled substances within 2000 feet of a school.” Id. at 396. In agreeing with White, we explained:

[T]he map does not indicate the topography of the area, the visibility from the residence to the school, or a complete picture of the access to the residence from roads or streets that do or do not pass by the school.
The only other evidence the State presented on this issue was the testimony of Detectives Browning and Buente that the residence was within 2000 feet of the school but this was based solely on their observation of the map. There was no evidence regarding the size and height of the school building(s), how many blocks away the school is from the residence, and whether the school is visible from the residence. The State failed to show that White had ever seen the school, had ever traveled past the school, or had heard about the school’s location. From the record, there is nothing from which the jury could reasonably infer whether the school was a highly visible large complex, or a single classroom in the basement of a residential budding.
The map and the related testimony are simply insufficient to establish that White knew about the school. The State needed to present some additional evidence to establish that White was knowingly distributing or delivering a controlled substance within 2000 feet of a school. Evidence that the school premises was a large complex, with one or more large and highly visible buildings, and that normal ingress and egress from the residence would have taken White by the school, would have permitted an inference that he had knowledge of the location and distance of the school. There was no such evidence. Testimony that the buildings depicted on the map were drawn to scale, and describing the appearance of the buildings, could have given the jury a basis for forming a reasonable inference that White had knowledge of the location of the school. There was no such testimony. The map, which was in essence the only evidence the State presented on this issue, in and of itself, was insufficient to establish that White knowingly distributed a controlled substance within 2000 feet of a school. For the jury to conclude, as was necessary for it to convict, that the sale occurred within 2000 feet of a school would have required it to engage in mere speculation. Accordingly, we must hold that the evidence was insufficient to support White’s conviction on those charges.

Id. at 397.

At McQuary’s trial, the State produced just the type of evidence that we found lacking in White. For example, the State presented a photograph, which was taken from the street right outside McQuary’s residence, that showed Moberly Area Community College, a large, two-story building with the words “JUNIOR COLLEGE” clearly visible above the grand-columned entrance, just at the end of West Rollins (the street McQuary lived on). The State also presented a photograph of McQuary’s residence, which was taken from the same location in the street. It appears from the photo of the junior college that the school is just down the block from McQuary’s residence. Berry testified that he had lived next door to McQuary in the same duplex. Berry identified the view in the photo taken from McQuary’s residence of Moberly Area Community College. Detective John Johnson also identified the photograph taken of the highly visible junior college. Detective Johnson personally measured the 1,581-foot distance from the front door of McQuary’s residence to Moberly Area Community College.

McQuary acknowledges the photographs, but he argues “there was no evidence that a person would realize that a lengthy street would inn less than 2000 feet. To convict [him] of knowingly selling cocaine within 2000 feet of the school would have required the jury to engage in mere speculation.” We disagree. Given the close proximity of McQuary’s residence and Moberly Area Community College clearly evidenced by the photographs, the testimony concerning the location of the junior college, and Detective Johnson’s personal measurement of the 1,581-foot distance from the residence to the junior college, the jury could conclude beyond a reasonable doubt that McQuary had the requisite knowledge that Moberly Area Community College was less than 2,000 feet from his residence.

Point I is denied.

Point II

In McQuary’s second point on appeal, he claims that the trial court erred in joining a possession of cocaine charge with the distribution of cocaine within 2,000 feet of a school charge.

On April 2, 2004, the State filed a motion for joinder/consolidation, seeking to join a possession of cocaine charge with charges of distribution of cocaine and receiving stolen property in exchange for cocaine. The latter two charges resulted from the facts set forth in our discussion above, in which Berry exchanged property alleged to be fraudulently obtained by Foote for MeQuary’s crack cocaine. The possession charge resulted from another event, which occurred later the same day. In its motion, the State explained, in relevant part:

1. [McQuary] was originally charged, in one Complaint ..., with the events now sought to be consolidated. Each of the three counts is alleged to have occurred “on or about March 28, 2003.” One count charges [McQuary] with distribution of cocaine, one count originally charged [McQuary] with distribution— later amended to possession — of cocaine, and the third charges [McQuary] with receiving stolen property in exchange for cocaine.
What is now the possession count was dismissed at the initial preliminary hearing because the testimony of [McQuary]’s then co-defendant was required to bind over the charge. The State refiled that count, which charge was bound over following preliminary hearing on March 9, 2004. The State merely wishes to have that count “catchup” with the other charges filed.
2. The State believes the evidence at trial will be that Defendant is a “crack dealer.” Two individuals were arrested after “fencing” property purchased with a stolen credit card to Defendant in exchange for cocaine. A search warrant was issued for Defendant’s residence. The warrant was served on March 28, 2003 and resulted in seizure of items including a spoon found in Defendant’s bedroom with cocaine residue on it. Approximately one hour later, Defendant was requested to appear at the Probation and Parole office. Defendant was driven to the P & P by Diana Davis. It is expected Ms. Davis will testify that Defendant handed her a bag of cocaine and told her to hang on to the cocaine while he went into the P & P office. Ms. Davis was stopped upon returning to P & P to pick up Defendant and found to be in possession of the cocaine. She subsequently gave a statement implicating Defendant with this possession.

The trial court granted the motion for joinder after a hearing. On June 23, 2003, a week before trial, the State filed a First Amended Information, which charged McQuary with: Count I — distribution of cocaine within 2,000 feet of a school; Count II — receiving stolen property; and Count III — possession of a controlled substance (cocaine). Just prior to trial, the State filed a nolle prosequi on Count II.

In McQuary’s second point on appeal, he argues that the trial court abused its discretion in overruling his counsel’s objection to joinder of the possession of controlled substance (cocaine) charge with the charge of distribution of cocaine near schools for purposes of trial.

There is no constitutional right to be tried for one offense at a time. State v. Hemme, 969 S.W.2d 865, 869 (Mo.App. W.D.1998). Before addressing the propriety of joinder, we point out that the issues of joinder and severance “are separate and distinct issues for appellate review.” State v. Warren, 141 S.W.3d 478, 486 (Mo.App. E.D.2004). “Joinder deals with the issue of what crimes can be charged in a single proceeding, while severance assumes that joinder is proper and leaves to the discretion of the trial court the determination of whether prejudice may result if charges properly joined were tried together.” Id. McQuary’s discussion of the trial court’s abuse of its discretion goes to the issue of severance. However, it does not appear from the record on appeal that McQuary ever filed a written motion to sever pursuant to Rule 24.07, nor did he argue the issue before the trial court. Accordingly, we limit our review to the propriety of joinder and do not address any issue of severance.

As we explained in Hemme, 969 S.W.2d at 869:

Section 545.140.2 and Rule 23.05 provide that two or more offenses may be joined if the offenses charged are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan. Joinder of offenses is either proper or improper under the law. Joinder is proper if any one of the criteria in § 545.140.2 exists. Liberal joinder of criminal charges is favored for the sake of judicial economy. We consider only the State’s evidence in determining whether joinder was proper.

(Citations omitted.)

The propriety of joinder is fact dependent. Most of the case law in Missouri discussing the “same or similar character” rationale for joinder has dealt with whether “similar tactics” were used in the commission of the crimes sought to be joined. See, e.g., State v. Kelley, 953 S.W.2d 73, 80 (Mo.App. S.D.1997) (ex-plaining that the “seminal case” of State v. Harris, 705 S.W.2d 544, 549-50 (Mo.App. E.D.1986), and cases citing thereto “simply stand for the proposition that a showing of similar tactics is sufficient reason for join-der of offenses under the same or similar character rationale; they do not, however, hold that similar tactics must exist before joinder is permissible under the same or similar character standard”). In State v. Anderson, 785 S.W.2d 299, 305-06 (Mo.App. S.D.1990), the Southern District extensively considered cases illustrating what is meant by “same or similar character” of offenses for purposes of joinder. The Southern District considered judicial interpretations of Federal Rule of Criminal Procedure 8(a) persuasive in concluding that there was ample authority allowing for joinder of the narcotics offenses of sale of cocaine and sale of marijuana because those offenses were of sufficiently “similar character.” Id. at 306. While we do not feel it is necessary to discuss in detail each of the cases discussed and relied on in Anderson, we find the reasoning therein persuasive to allow joinder of the possession and distribution of cocaine charges against McQuary, because the offenses were of sufficiently similar character.

The charges were properly joined. Again, we do not consider the issue of severance. Point II is denied.

Conclusion

For the foregoing reasons, we (1) deny McQuary’s motion for remand; (2) hold that the trial court did not err in overruling McQuary’s motion for acquittal because the evidence was sufficient for the jury to find beyond a reasonable doubt that McQuary knew his residence was within 2,000 feet of school property as required to establish a violation of section 195.214; and (3) hold that the distribution of cocaine within 2,000 feet of a school and the possession of cocaine charges were properly joined. Accordingly, we affirm the trial court’s judgment.

SMART and NEWTON, JJ., concur.

      . Statutory references are to the Revised Statutes of Missouri, 2000.

      . McQuary did not challenge any of the evidence regarding the junior college’s proximity to his residence at trial. Rather, in his motion for acquittal, McQuary only generally argued that the State failed to make a submissi-ble case. Then, in arguing the motion, McQuary claimed only that the State failed to prove that the substance allegedly distributed was cocaine. This specific issue now before this court was not raised before the trial court, so we could summarily deny McQuary’s point because the issue has not been preserved. See State v. Winfield, 5 S.W.3d 505, 515 (Mo. banc 1999) ("The defendant is bound by the arguments made and the issues raised at trial and may not raise new and totally different arguments on appeal.”). Nevertheless, we review the issue ex gratia.

      . Kelley has been overruled, in part, on other grounds by Deck v. State, 68 S.W.3d 418, 427 (Mo. banc 2002).


text:
    Katherine M. PAYUR, Appellant, v. SYSTEMATIC BUSINESS SERVICES, INC., and Division of Employment Security, Respondents.
    No. WD 65135.
    Missouri Court of Appeals, Western District.
    Oct. 18, 2005.
    Katherine Payur, Kansas City, pro se.
    Ninion Riley, Jefferson City, for Respondent.
    Before LISA WHITE HARDWICK, Presiding Judge, PATRICIA A. BRECKENRIDGE, Judge, and PAUL M. SPINDEN, Judge.
   ORDER

Katherine M. Payur appeals the Labor and Industrial Relations Commission’s de-cisión that she voluntarily left her job with her employer and was not eligible to receive unemployment compensation benefits immediately. We affirm. Rule 84.16(b).