author: GLENN A. NORTON, Presiding Judge. CLIFFORD H. AHRENS, Presiding Judge,

text:
    STATE of Missouri, Respondent, v. John D. MAHSMAN, Appellant.
    No. ED 83724.
    Missouri Court of Appeals, Eastern District, Division Five.
    Dec. 21, 2004.

      Branson Wood III, Hannibal, MO, for appellant.
    Deborah Daniels, Richard Starnes (co-counsel), Jefferson City, MO, for respondent.
   OPINION

GLENN A. NORTON, Presiding Judge.

John Mahsman appeals the judgment entered on his convictions for possessing and manufacturing methamphetamine. We reverse and remand.

I. BACKGROUND

Before trial, Mahsman sought to suppress methamphetamine, items commonly used to produce methamphetamine and other paraphernalia seized from his home under a search warrant, alleging that the warrant was not based on probable cause. The affidavit supporting the application for the warrant provided that one evening, Mahsman “burst into” his neighbors’ home “waving a handgun and yelling to turn off the lights that the world was coming to an end.” The affidavit also provided that when the Ralls County sheriffs deputies arrived at Mahsman’s home looking for Mahsman, they found the front door open. According to the affidavit, “[djeputies conducted a sweep of the residence for Mahs-man and observed several items of drug paraphernalia and weapons in plain view. Deputies also discovered a jar containing ether on the walkway outside of the Mahs-man residence.” The affidavit further provided that, soon thereafter, an officer in Marion County stopped Mahsman in his vehicle, arrested him and found he was in possession of methamphetamine, marijuana and drug paraphernalia.

The trial court denied the motion to suppress, and Mahsman was convicted after a jury trial.

II. DISCUSSION

Our review of the trial court’s decision to deny a motion to suppress is limited to a determination of whether there is substantial evidence to support the decision. State v. Kirby, 128 S.W.3d 619, 621 (Mo.App. E.D.2004). We view the facts and any reasonable inferences therefrom in the light most favorable to the trial court’s decision and disregard any contrary evidence and inferences. State v. Lewis, 17 S.W.3d 168, 170 (Mo.App. E.D.2000). We will only reverse if the ruling is clearly erroneous. State v. Milliorn, 794 S.W.2d 181, 183 (Mo. banc 1990). Nevertheless, we must consider whether the court’s decision is a proper application of Fourth Amendment precepts. State v. Stevens, 845 S.W.2d 124, 128 (Mo.App. E.D.1993).

The Fourth Amendment to the United States Constitution requires that search warrants be based on probable cause and supported by oath or affirmation. Mahsman argues that the information in the affidavit regarding drugs and paraphernalia found during the warrant-less search of his home and the search incident to his arrest must be disregarded because those searches were illegal. Information in an affidavit that is based on observations made during an illegal search is tainted and must be disregarded; if the affidavit does not otherwise provide probable cause to support the search warrant, then the evidence seized thereunder must be excluded. See State v. Macke, 594 S.W.2d 300, 305 (Mo.App. E.D.1980); State v. Berry, 92 S.W.3d 823, 830 (Mo.App. S.D.2003); State v. Mitchell, 20 S.W.3d 546, 561 (Mo.App. W.D.2000).

1. Warrantless Search of the Home

Warrantless searches inside a home are presumptively unreasonable under the Fourth Amendment unless the action falls within certain carefully defined exceptions, many of which are based on the presence of exigent circumstances. State v. Rutter, 93 S.W.3d 714, 723 (Mo. banc 2002). Exigent circumstances exist if the time needed to obtain a warrant would endanger life, allow the suspect to escape, or risk destruction of evidence. State v. Adams, 51 S.W.3d 94, 99 (Mo.App. E.D. 2001). The following factors are relevant to the determination of whether a particular situation is exigent: (1) the gravity of the offense; (2) a reasonable belief that the suspect is armed; (3) a clear showing of probable cause that the suspect committed the offense; (4) the suspect’s presence inside the premises to be searched; (5) the likelihood the suspect will escape; and (6) peaceable entry. Id.

At the suppression hearing, the sheriff testified that he went to Mahsman’s house to locate him after receiving a call that Mahsman had entered the neighbors’ home unannounced, waving a gun around, saying the world was coming to an end and wanting the power shut off. When the sheriff arrived at Mahsman’s home, he did not know whether or not Mahsman was armed. The front door was wide open, so the sheriff went up to it and called Mahs-man’s name several times. When there was no answer, the sheriff went inside. Mahsman was not there, but he saw guns in plain view. He went back outside and, with other officers, searched the perimeter of the house and discovered Mahsman was not there either. At that point, the sheriff — who knew Mahsman and the truck he drove — noticed that the truck was not there. He and the other officers then went back inside Mahsman’s home to seize the guns. When they went back in, they found marijuana and paraphernalia in plain view.

Assuming that the incident at the neighbors’ home was a crime, there were exigent circumstances justifying the sheriff’s initial entry into Mahsman’s home. It was reasonable to believe, at that point, that Mahsman may have been inside, could have been armed and dangerous to himself or others and would have been able to escape if the sheriff had to wait to obtain a warrant. But by the time the sheriff and other officers went back inside the home, there was no longer an emergency because they knew Mahsman was not there.

The State argues that the first entry into Mahsman’s home was a “protective sweep” and that the sheriff had probable cause to believe that the weapons he observed during that sweep were involved in the incident at the neighbors’ home, justifying the officers’ re-entry into Mahs-man’s home to seize evidence involved in a crime. We disagree. First, this was not a “protective sweep.” A protective sweep is a “quick and limited search of the premises, incident to the arrest and conducted to protect the safety of police officers and others.” Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990) (emphasis added); see also U.S. v. Davis, 290 F.3d 1239, 1242 n. 4 (10th Cir.2002) (not a “protective sweep” when police enter a home where no one is under arrest and there is not even probable cause to arrest anyone); U.S. v. Johnson, 170 F.3d 708, 716 (7th Cir.1999) (limiting “protective sweep” under Buie to sweeps conducted pursuant to an arrest for which there was a warrant.) Here, there had not been an arrest at the time the officers searched Mahsman’s home. Moreover, even though the first entry into the home was justified under the exigent circumstances exception, there was no evidence that the officers had any reason to suspect that the weapons observed during that search were involved in a crime. In fact, the evidence demonstrates otherwise. The sheriff testified that the officers went back in to seize the guns out of a concern for' the safety of Mahsman, the officers and the community. The sheriff knew that the gun involved in the incident at the neighbors’ home had been left at the neighbors’ home and he had no knowledge or information that any of the weapons in Mahsman’s home were involved in any kind of crime.

The information regarding drug paraphernalia observed during the warrantless search of Mahsman’s home was illegally obtained, should not have been included in the affidavit and must be disregarded.

2. Search Incident to Warrantless Arrest

Probable cause to arrest exists when the arresting officer’s knowledge of the particular facts and circumstances is sufficient to warrant a prudent person’s belief that the suspect has committed an offense. State v. Clayton, 995 S.W.2d 468, 477 (Mo. banc 1999). Probable cause is determined by the collective knowledge of and facts available to all of the officers participating in the arrest; the arresting officer need not- possess independent knowledge of all of the available information. Id. While an officer may rely on information from another officer in developing probable cause, the State must show that the officer who disseminated the information had probable cause to have made the arrest himself. State v. Kinhead, 983 S.W.2d 518, 519 (Mo. banc 1998).

The arresting officer in Marion County did not witness any independent facts giving rise to probable cause. He testified at the suppression hearing that he was advised by a Marion County reserve deputy that Mahsman was wanted in Ralls County in connection with an armed criminal action and first degree burglary. The arresting officer did not know whether the deputy was on duty, but testified that the deputy tends to listen to police scanners and pass along information. The arresting officer did not, however, receive any official dispatch from Ralls County.

The State made no attempt to show that the deputy, on whose information the arresting officer relied, had probable cause to arrest Mahsman. The State asserts that the initial source of the dispatch was the Ralls County sheriff who conducted the search of Mahsman’s home and that it can be inferred that it was this dispatch on which the deputy relied in passing along information to the arresting officer. The State claims that the sheriff testified that he had alerted area law enforcement that Mahsman was wanted in connection with a burglary and described his vehicle. This is simply not true. The sheriff testified that, after searching Mahsman’s home, he notified area law enforcement agencies that Mahsman may have left in a white truck and requested that the mental health coordinator be contacted to evaluate the need for a temporary commitment. There is no evidence that the sheriff notified anyone that Mahsman was wanted in connection with any crime. Nor is there any evidence that the information the sheriff disseminated was the source of the information the Marion County deputy relayed to the arresting officer. The State has wholly failed to show that this arrest was made on probable cause.

The arrest was illegal, and the information about drugs and paraphernalia obtained during the search incident to that arrest should not have been included in the affidavit and must be disregarded.

3. Untainted Information in Affidavit

While we discount any illegally obtained evidence used in the affidavit, the mere fact that it is included in the affidavit does not invalidate the warrant. Macke, 594 S.W.2d at 308. “[0]ur ultimate inquiry is not whether the affidavits contained allegations based upon illegally obtained evidence but whether, if setting aside all tainted allegations, the independent and lawful information stated in the affidavits suffices to show probable cause.” Id. at 309. Where, as here, the appellate court must excise tainted information from the affidavit, probable cause is determined without the deference ordinarily given to the issuing judge’s decision on an affidavit containing only untainted information. See Kirby, 128 S.W.3d at 621 (generally, courts give great deference to initial judicial determination of probable cause and reverse only for clear error); see also United States v. Bynum, 125 F.Supp.2d 772, 785 (E.D.Va.2000), rev’d in part on unrelated ground by U.S. v. Bynum, 293 F.3d 192 (4th Cir.2002). Our determination depends on whether the totality of the circumstances — as set forth in the four corners of the application for the warrant and supporting affidavit — show that there is a “fair probability that contraband or evidence of a crime will be found.” Kirby, 128 S.W.3d at 621; see also State v. Baker, 103 S.W.3d 711, 720 (Mo. banc 2003). “Common sense is a key ingredient” in evaluating probable cause. State v. Hawkins, 58 S.W.3d 12, 21 (Mo.App. E.D.2001).

Excluding the information concerning drugs and paraphernalia observed during the warrantless searches, the affidavit contains only an account of the incident at the neighbors’ home and the fact that weapons and a jar of ether were found at Mahsman’s home. This information does not demonstrate a fair probability that drugs would be found in Mahsman’s home.

Our courts have often found that, although possession of ether is lawful, in certain circumstances its presence can be incriminating. For instance, the strong smell of ether, when coupled with other evidence, can support a conviction for possessing or manufacturing methamphetamine. Likewise, the presence of ether— again, when coupled with other incriminating evidence — can justify a warrantless search under the exigent circumstances exception or provide probable cause to support a search warrant. See State v. Glisson, 80 S.W.3d 915, 919 (Mo.App. S.D.2002) (odor of ether coming from home with windows open in cold weather, plus defendant’s behavior when confronted by police amounted to exigent circumstances justifying warrantless search of home); State v. Meyers, 992 S.W.2d 246, 248-49 (Mo.App. E.D.1999) (affidavits containing informants’ and officers’ observation of strong odor of ether, tanks, vehicles at all hours of the night and guard at defendant’s home and report that defendant was manufacturing methamphetamine provided probable cause for search warrant); State v. Norville, 23 S.W.3d 673, 683 (Mo.App. S.D.2000) (affidavit containing defendant’s statement he was going to “cook a batch of dope” and officer’s observation of smell of ether and unusually heavy traffic at defendant’s home provided probable cause for search warrant). But in each of those cases, the presence of ether was not the only incriminating evidence.

Here, the State contends, possession of ether contemporaneous with possession of weapons supports the search warrant, citing State v. Dowell, 25 S.W.3d 594, 603 (Mo.App. W.D.2000). In Dowell, the Western District extended the general rule that “evidence of the defendant’s contemporaneous possession of other drugs, weapons, money or drug paraphernalia is relevant and admissible to show that the defendant knowingly and intentionally possessed the controlled substance” in drug sale and possession cases to drug manufacturing cases. Id. There is nothing, however, in that holding that suggests that possession of weapons and one component commonly used to manufacture methamphetamine provides probable cause to search a person’s home for drugs.

The State also argues that we can infer drug use from Mahsman’s “bizarre” behavior and that, coupled with the presence of ether and weapons, that behavior provides probable cause to search his home for drugs. Common sense may have supported that inference had we been allowed to consider the drugs or paraphernalia found in Mahsman’s home. But odd behavior while in the lawful possession of guns and ether does not, without more, suggest drug use or provide probable cause to support a search warrant for drugs.

The denial of Mahsman’s motion to suppress the evidence obtained under this search warrant was clearly erroneous. Point granted.

III. CONCLUSION

The judgment is reversed, and the case is remanded for disposition consistent with this opinion.

KATHIANNE KNAUP CRANE, J. concurs.

CLIFFORD H. AHRENS, J. dissents in a separate opinion.

CLIFFORD H. AHRENS, Presiding Judge,

dissenting.

I respectfully dissent from the majority opinion. While I concur with the majority’s holdings regarding the warrantless search of Mahsman’s home and the search of Mahsman and his vehicle incident to the warrantless arrest, I disagree with the majority’s holding that the untainted information in the affidavit was not sufficient for probable cause to support the search warrant and that the denial of Mahsman’s motion to suppress the evidence obtained under this search warrant was clearly erroneous.

Our review of the trial court’s ruling on a motion to suppress is limited to determining whether the evidence is sufficient to support the trial court’s ruling. State v. Dowell, 25 S.W.3d 594, 604 (Mo.App.2000) (quoting State v. McNaughton, 924 S.W.2d 517, 522-23 (Mo.App.1996)). The meaning of probable cause is a legal issue, but the existence of probable cause in an individual case is a question of fact. Dowell, 25 S.W.3d at 604 (quoting State v. Berry, 801 S.W.2d 64, 66 (Mo. banc 1990)). Our review of whether the issuance of a search warrant lacked the required probable cause to render the subsequent search and seizure illegal so as to exclude the evidence at trial is not de novo. Id. Instead this Court is to give great deference on review to the initial judicial determination regarding probable cause made at the time that the warrant issued, and we reverse only if that determination is clearly erroneous. Dowell, 25 S.W.3d at 604 (quoting State v. Middleton, 995 S.W.2d 443, 457 (Mo. banc 1999)), cert. denied, 528 U.S. 1054, 120 S.Ct. 598, 145 L.Ed.2d 497 (1999). A determination of probable cause is clearly erroneous only if this Court is left with the firm and definite impression from the record that an error has been made. Dowell, 25 S.W.3d at 604 (quoting State v. Hill, 854 S.W.2d 814, 816 (Mo.App.1993). This Court will sustain the trial court’s ruling if it is plausible in light of the record viewed in its entirety, even if we might have weighed the evidence differently if we had been the trier of fact. Dowell, 25 S.W.3d at 604 (quoting Hill, 854 S.W.2d at 819)).

Probable cause is to be determined from the four corners of the application for the search warrant and of any supporting affidavits. Dowell, 25 S.W.3d at 604. See section 542.276 RSMo (2000). To determine whether probable cause has been established for the issuance of a search warrant, we examine the totality of the circumstances. Dowell, 25 S.W.3d at 604-05 (quoting Hill) 854 S.W.2d at 817). The determination of probable cause to support the issuance of a search warrant depends on the specific facts and circumstance of each case, looking at the probabilities and the factual and practical considerations of everyday life on which reasonable, prudent men act, rather than the considerations of legal technicians. Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527, 544 (1983); Dowell, 25 S.W.3d at 605. Accordingly the affidavits supporting search warrants should be interpreted in a common sense manner rather than a hypertechnical one. See Dotvell, 25 S.W.3d at 605.

Tainted evidence cannot be used to establish the required probable cause for the issuance of a warrant, but the fact that it is included in the affidavit does not invalidate the warrant. Dowell, 25 S.W.3d at 606. The proper inquiry is not whether an affidavit contained allegations based upon illegally obtained evidence but whether, after excising all tainted allegations, the independent and lawful information stated in the affidavit is sufficient to establish probable cause. Id. (quoting State v. Macke, 594 S.W.2d 300, 309 (Mo.App.1980). “It is not required that the affidavit provide proof beyond a reasonable doubt or by a preponderance of the evidence, the rule being that ‘only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.’” Hill, 854 S.W.2d at 819 (quoting Illinois v. Gates, 462 U.S. at 235, 103 S.Ct. at 2330, 76 L.Ed.2d at 546)).

Law enforcement agents are not, generally speaking, lawyers, and do not have to be such. As the U.S. Supreme Court stated in Illinois v. Gates, 462 U.S. at 231-32, 103 S.Ct. at 2328-2329, 76 L.Ed.2d at 544, probable cause

[D]oes not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.

The U.S. Supreme Court also stated in that case that affidavits are typically drafted by non-lawyers in the midst and haste of a criminal investigation, and that a negative or grudging attitude towards warrants by reviewing courts is inconsistent with the Fourth Amendment’s preference for searches by warrant, and that courts should not invalidate warrants by examining and interpreting affidavits in a hyper-technical manner instead of a commonsense manner. Illinois v. Gates, 462 U.S. at 233-35, 103 S.Ct. at 2330-2331, 76 L.Ed.2d at 545-47. See also Hill, 854 S.W.2d at 818.

I believe that there was sufficient information in the affidavit, even after excising the tainted allegations, to support the issuance of the search warrant. After excising the tainted allegations, the affidavit stated the following: that the affiant was a special agent of the Northeast Missouri Narcotics Task Force with specialized training in narcotics enforcement; that the affiant was familiar with methamphetamine and the items used in its manufacture; that on January 11, 2003 at approximately 10:00 p.m., Mahsman burst into his neighbor’s house armed with a gun, yelling at the neighbor to turn off the lights and that the world was coming to an end; that at approximately 10:43 p.m. that same night, the door to Mahsman’s house was open; that a jar of ether was on the walkway outside of Mahsman’s house when the police arrived; that weapons were found in plain view inside Mahsman’s home; and that at 11:03 p.m. that night, a Palmyra police officer conducted a vehicle stop of Mahsman in Palmyra.

The evidence showed Mahsman burst into his neighbor’s house late in the evening in the middle of winter, armed with a gun, and yelled at his neighbor to turn the fights off and that the world was coming to an end. This constituted bizarre and irrational behavior at the very least, and supports an inference that Mahsman was intoxicated by some substance. Moreover, Mahsman allegedly left his residence later that same night, leaving the door to his house open, with weapons in plain view in the house, and a jar of ether, which is commonly used in the manufacture of methamphetamine, on the walkway outside his house. When considered in a commonsense manner, the combination of these allegations in the affidavit supported a conclusion by the trial court that there was a reasonable probability of criminal activity. Under our standard of review, looking at the totality of the circumstances, this was sufficient to support the trial court’s issuance of the search warrant and to overrule the motion to suppress.

Accordingly, I would affirm the judgment of the trial court.

      . The trial court granted Mahsman's motion in limine to exclude the items seized during the search incident to arrest. Thus, that evidence was not admitted at trial.

      . See also Macke, Mitchell and Berry, supra, in which the appellate courts — without reference to the standard of review — proceeded to determine probable cause from the face of the affidavit after excising the tainted information and seemed to reach their conclusions without any deference to the issuing judge’s determination.

      . See State v. Wurtzberger, 40 S.W.3d 893, 896 (Mo. banc 2001) (strong odor of ether or ammonia close to defendant's residence supported inference that defendant knew methamphetamine was being manufactured there; coupled with purchase of starter fluid to aid friend's production of methamphetamine and his relationship with friend, evidence supported conviction for attempt to manufacture methamphetamine); State v. Farris, 125 S.W.3d 382, 388 (Mo.App. W.D.2004) (strong smell of ether plus false exculpatory statements and proximity to other material used to produce methamphetamine supported conviction for attempt to manufacture methamphetamine); State v. Wenzel, 119 S.W.3d 650, 654 (Mo.App. S.D.2003) (discernable odor of ether plus possession of methamphetamine laboratory, fleeing the scene, appearance of intoxication on methamphetamine and presence of methamphetamine supported conviction for manufacturing methamphetamine); State v. Tilley, 104 S.W.3d 814, 823 (Mo.App. S.D.2003) (possession of ether plus methamphetamine and other items used to manufacture the drug supported conviction for attempt to manufacture methamphetamine); State v. Booth, 11 S.W.3d 887, 892 (Mo.App. S.D.2000) (strong smell of ether plus syringe, small weights used to calibrate amounts of controlled substances and methamphetamine supported conclusion that defendant possessed the drugs found in his truck).

      . There is one exception. In State v. Rowland, the Southern District concluded that the strong smell of ether outside a hotel room was an exigent circumstance justifying the warrantless search of that room. 73 S.W.3d 818, 823 (Mo.App. S.D.2002). But that conclusion was based on the danger posed by the large quantity of ether that could be presumed from the strong odor:
      Although ether itself is not illegal, because of its flammability a large quantity in a hotel room poses a public safety hazard. This is true regardless of whether the use of the ether is for a legal or illegal purpose. Officers were obligated to investigate the smell. Given the room’s proximity to other rooms, the volatility of the chemical, and the possibility of unconscious persons being located in the room, it was reasonable that officers would have investigated the matter without a search warrant.

        Id. This analysis does not apply to a determination of probable cause to issue a search warrant. Moreover, in this case, the affidavit does not indicate how much ether was found at Mahsman’s home and there is nothing about the presence of an undefined quantity of ether that, alone, suggests a fair probability that drugs will also be found in that place.

      . While we are unable to determine whether retrial is appropriate from the record before this Court, suppression of this evidence does not preclude retrial if there is other evidence that the State can present to make a submissible case. See Kirikead, 983 S.W.2d at 519. Mahsman’s other point on appeal — regarding the admissibility at trial of the neighbors’ testimony about the details of the incident at their home — is not dispositive and needs not be addressed. See id. at 520.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Laurence G. BONNER, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 84075.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 21, 2004.
    Application for Transfer to Supreme Court Denied March 3, 2005.
    Application for Transfer Denied April 5, 2005.
    Mark A. Grothoff, Columbia, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Shaun J. Mackelprang, Jefferson City, MO, for respondent.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J. and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Laurence G. Bonner, movant, appeals from the judgment denying on the merits his Rule 29.15 motion for post-conviction relief after an evidentiary hearing. We have reviewed the record on appeal and the briefs of the parties and find the motion court’s judgment is based on findings of fact that are not clearly erroneous. An extended opinion would have no prece-dential value. We have, however, prepared a memorandum opinion setting forth the reasons for our decision for the use of the parties only. We affirm the judgment pursuant to Rule 84.16(b).


author: LAWRENCE G. CRAHAN, Judge.

text:
    VICTORIA’S SECRET STORES, INC., and Mark J. Weikel, Respondents, v. The MAY DEPARTMENT STORES COMPANY, Appellant.
    No. ED 83916.
    Missouri Court of Appeals, Eastern District, Division Four.
    Dec. 21, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 3, 2005.

      Thomas C. Walsh (Bryan Cave), Mark S. Deiermann, St. Louis, MO, for appellant.
    William M. Corrigan, Jr., Ann E. Buckley, Armstrong Teasdale LLP, St. Louis, MO, Michael G. Long, Kimberly Weber Herlihy, Vorys, Sater, Seymour and Pease LLP, Columbus, OH, for Victoria’s Secret Stores, Inc.
    John Gianoulakis, Kohn, Shands, Elbert, Gianoulakis & Giljum, LLP, St. Louis, MO, Anthony J. Ashley, Vedder, Price, Kaufman & Kammholz, Chicago, IL, for Mark J. Weikel.
   LAWRENCE G. CRAHAN, Judge.

The May Department Stores Company (“May”) appeals a judgment declaring that its former employee, Mark J. Weikel (‘Weikel”), would not be in violation of the non-competition provisions of his employment contract by accepting a position with Victoria’s Secret Stores, Inc. (‘VSS”). We affirm.

Weikel was employed by May as Chairman of its Foley’s Department Store (“Foley’s”) division. In 2000, Weikel and May entered into an Employment Agreement (“Agreement”) whereby Weikel would render personal services to Foley’s from May 15, 2000 until April 30, 2003 (later extended to April 30, 2005).

In the Agreement, Weikel agreed to the following provision:

At all times while you are employed by May and for two years after your employment terminates, you will not directly or indirectly:
(i) own, manage, operate, finance, join, control, advise, consult, render services to, have an interest or future interest in or participate in the ownership, management, operation, financing or control of, or be employed by or connected in any manner with any Competing Business

The section of the agreement defining “Competing Business” provides:

“Competing Business” includes, but is not limited to, (i) any (x) retail department store, specialty store or other retail business that sells goods or merchandise of the types sold in May’s (or its subsidiaries’ or divisions’) stores at retail to consumers or (y) any group of such stores or businesses or any other business that (A) competes (for customers, suppliers, employees or any other resource) with May or a May subsidiary, division or store; (B) is located in the United States ...; and (C) had annual gross sales volume or revenues ... in the prior fiscal year of more than $25 million ...; or
(Hi) any business in the United States or another country where May or a May subsidiary or division operates a store or stores in which your duties and functions would be substantially similar to your duties and functions under this Agreement and that is in material competition with May or a May subsidiary or division.

The Agreement further provided that either party could seek a judicial determination of its rights under the Agreement and that the parties would abide by their obligations under the Agreement until the court entered a final judgment.

In the spring of 2003, VSS made Weikel an offer to become its Chief Operating Officer. Weikel considered this a once-in-a-lifetime opportunity. After negotiations between his counsel and VSS, Weikel entered into an indemnification agreement with VSS, but he did not accept the offer of employment or sign an employment agreement. The following business day, Weikel met with his boss, Drew Pickman (“Pickman”), to tell him of the offer from VSS and to seek May’s agreement that his acceptance of VSS’s offer would not violate the terms of the restrictive covenant or any other contractual obligations to May because VSS is not a competitor of May. Weikel requested an immediate response because both he and VSS were anxious to begin their relationship. Weikel pledged to continue to faithfully perform all of his duties under the Agreement and offered to assist May with the transition to a new Chairman of Foley’s.

Pickman told Weikel that he wanted him to stay and that he would work with the CEO of May to persuade him to stay. Pickman told Weikel that he believed VSS was a competitor of May and asked for more time to respond. Weikel told Pick-man he needed an answer that day.

Because May would not agree that VSS and May are not competitors, Weikel and VSS filed the underlying declaratory judgment action seeking a declaration that Weikel’s employment by VSS would not violate his Agreement with May. On June 9, 2003, upon learning of the filing of the declaratory judgment action, May terminated Weikel from active employment but continued to pay his salary. Weikel did not begin working for VSS, and he remained inactive pending the trial court’s judgment.

On November 20, 2003, after each party submitted extensive testimony and numerous exhibits, the trial court entered its judgment, including findings of fact and conclusions of law. The trial court found that VSS is an independent subsidiary of Limited Brands, Inc., and it specializes in the sale of women’s intimate apparel. VSS is a vertically-integrated specialty retailer that sells only a single brand, Victoria’s Secret. It designs its own lingerie and controls its manufacture and distribution through its own channels. VSS targets younger women, specifically in their mid-twenties, who are willing to pay higher prices for the Victoria’s Secret premium brand. VSS markets sex appeal for the fashion conscious. VSS has annual sales of approximately $2 billion per year.

May and its divisions, including Foley’s, are traditional department stores that sell a broad array of products, consisting of hundreds of merchandise categories and thousands of brands. Intimate apparel constitutes approximately 3% of May’s overall sales. May’s core customers are women between the ages of 40 and 50 years old. May is considered a branded business in that it sells products manufactured by others as opposed to a private label business. May’s bi-annual Market Share report, which breaks down its market share and apparel store competitors, does not mention VSS.

VSS customers are “item specific” and loyal to the Victoria Secret brand. VSS has developed a marketing strategy that is brand-driven as opposed to price-driven. That strategy is separate and distinct from that used by May or other broad-line retailers. VSS promotes its designer image. In contrast, May’s business focuses on price advantage and does not trade on brand loyalty.

The trial court further found that VSS wanted to hire Weikel solely for his personal skills and not for any information or knowledge he has about May. It is not interested in information he has about how May conducts its business because its business focus, strategy and marketing techniques are not at all similar to May’s. VSS does not competitively shop May or study anything May does in terms of sales, products or operations. VSS finds such information to be counterproductive because May is a traditional or horizontal marketer whose retailing approach is markedly different from VSS.

The trial court found no evidence that Weikel had attempted to solicit or contact any other employees or executives of May. There was no evidence of specific customer lists or contacts Weikel would be able to use if employed by VSS and no evidence Weikel had divulged any confidential or proprietary information to VSS. Weikel has signed a non-disclosure agreement with VSS prohibiting solicitation of May employees or disclosure of any of May’s confidential information.

The trial court found that the restrictive covenant in Weikel’s Agreement with May was only triggered if he went to work for a competing business. It further found that May and VSS do not compete in any material or meaningful way. The targeted customer profiles of the two companies are completely different. They do not compete for suppliers, vendors or other resources. VSS has its own designs manufactured overseas for exclusive sale in its own stores. Intimate apparel is the primary product of VSS but comprises only about 3% of May’s overall sales.

May and VSS use completely different marketing strategies. VSS has successfully built its company using a vertically integrated market strategy that is totally different from that used by May. Any confidential information possessed by Weikel is not sought by VSS and would not give VSS a competitive edge over May. The non-competition provision of the Agreement was found not to be per se unreasonable or unenforceable, merely inapplicable under the facts and the law in this case because no material competition exists between VSS and May. Although the trial court found no evidence Weikel had solicited May employees or misused confidential or trade secret business information from May, the provision barring such activity was found to be enforceable for one year pursuant to section 431.202 RSMo Supp.2001. Based on these findings, the trial court entered judgment in favor of Weikel and VSS on their claim for declaratory relief and against May on its counterclaim for tortious interference and civil conspiracy. May appeals.

The standard of review is the same for the three points May brings on appeal. The judgment of the trial court will be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The primary rule in the interpretation of a contract is to ascertain the intent of the parties and to give effect to those intentions. Kling v. Taylor-Morley, Inc., 929 S.W.2d 816, 819 (Mo.App.1996).

By definition, covenants by employees not to compete with their employers after termination of their employment restrain trade in a free market. Grebing v. First Nat’l Bank of Cape Girardeau, 613 S.W.2d 872, 874 (Mo.App.1981). Covenants not to compete are presumptively void and are enforceable only to the extent they are demonstratively reasonable. Armstrong v. Cape Girardeau Physician Assocs., 49 S.W.3d 821, 825 (Mo.App.2001). The determination of reasonableness depends upon the competing needs of the parties as well as the needs of the public. Grebing, 613 S.W.2d at 874. These needs are: (1) the employer’s need to protect legitimate business interests, such as trade secrets and customer lists; (2) the employee’s need to make a living; and (3) the public’s need to secure the employee’s presence in the labor pool. Id. A restrictive covenant in an employment agreement is only valid and enforceable if it is necessary to protect trade secrets and customer contacts, and if it is reasonable as to time and place. Schmersahl, Treloar & Co., P.C. v. McHugh, 28 S.W.3d 345, 349 (Mo.App.2000). The burden of demonstrating the covenant’s validity is on the party seeking to enforce it. Armstrong, 49 S.W.3d at 825.

In its first point, May urges that the trial court’s finding that VSS does not compete with May is against the weight of the evidence and erroneously declares and applies the law in that: (1) the covenant defines competition so as to include VSS and its affiliated companies; (2) the evidence overwhelmingly established that both companies sell hundreds of millions of dollars worth of intimate apparel in many of the same markets at comparable price points; (3) there is a substantial amount of cross-shopping by customers and the parties for employees as well as customers; and (4) VSS has repeatedly identified department stores as significant competitors and May’s intimate apparel department considers VSS as among its principal competitors. We will briefly examine these contentions in turn.

May’s first contention misstates the findings of the trial court. The trial court did not find that VSS and May are not competitors, it found that there was no meaningful or material competition between May and VSS. This finding suggests that the trial court was applying definition (iii) of the term “Competing Business” set forth above. That definition defines a competing business as one located in the same country as a May store or stores in which Weikel’s duties would be substantially similar to his duties at May and that is in “material competition” with May or a May subsidiary or division. The term “material competition” is not further defined.

There is substantial evidence that VSS was not a business that was in “material competition” within the intent of the parties. The trial court specifically found that May’s bi-annual Market Share report, which breaks down its market share and apparel store competitors, does not mention VSS. Clearly, not all businesses that offer the “same” products, broadly defined, are necessarily in “material competition.” Ritz-Carlton and Motel 6 both offer lodging, but few would characterize the competition between them as “material.” Mor-tons of Chicago and McDonalds both offer food, but it is unlikely that either firm would view the other as a “material” competitor. More importantly, it is highly unlikely that an executive moving from any of these firms to the “competitor” would give the new employer an unfair competitive advantage, which is one of the key stated purposes of the agreement at issue in this case. The trial court specifically found that any confidential information possessed by Weikel would not give VSS a competitive advantage over May. This finding is supported by substantial evidence.

May would apply definition (i) of the term “Competing Business,” which includes any retailer of goods or merchandise of the type sold by May with a sales volume of $2 million. The difficulty with this contention is that definition (iii) specifically defines the term as applied to employment in a similar capacity, which is the situation presented in this case. Moreover, if literally applied, definition (i) would preclude employment by virtually every non-automotive or hardware retailer in the United States. On this record, such a broad prescription would appear to be far broader than necessaiy to protect May from any unfair competitive advantage. We find no error in the trial court’s application of the more specific definition found in paragraph (iii).

It is certainly true, as May urges, that the record establishes that both May and VSS sell hundreds of millions of dollars worth of intimate apparel. There was substantial evidence, however, that they are selling them to essentially different groups of consumers. May’s evidence with respect to the amount of cross-shopping did not establish the percentage of customers who actually made purchases of intimate apparel at both stores and was apparently found unpersuasive by the trial court.

May also draws our attention to impeachment evidence it offered to establish that, while not necessarily mentioning May or its divisions specifically, VSS has in various court proceedings, internal documents, and public filings identified department stores as competitors for the sale of intimate apparel. The trial court, however, apparently found VSS’s witnesses and their explanations of these documents more credible. More importantly, however, the meaning of “material competition” in the Agreement must be based on what the parties to the agreement intended, not how VSS views the market.

In sum, the trial court found that VSS and May are not in material competition for the sale of intimate apparel. This determination was made by the trial court after examining evidence presented by both parties and determining the credibility of witnesses before the court. The credibility of witnesses and the weight to be given to their testimony is a matter for the trial court. In re Marriage of Crow and Gilmore, 103 S.W.3d 778, 783 (Mo. banc 2003). Although May points to evidence presented at trial in support of its contentions, the trial court may have disregarded all of the evidence favorable to May. The trial court is free to believe none, part or all of the testimony of witnesses. Herbert v. Harl, 757 S.W.2d 585, 587 (Mo. banc 1988). We hold that the trial court’s findings are supported by substantial evidence, are not against the weight of the evidence and do not erroneously declare or apply the law. Point denied.

In its second point, May argues the trial court erred in refusing to enforce Weikel’s covenant not to compete because the overwhelming evidence established that Weikel had knowledge of and access to numerous types of confidential information concerning May’s marketing, pricing, personnel, vendor margins, cost-control efforts, staffing, inventory, expansion plans, and other data that are proprietary to May and would be useful to VSS and its affiliated companies.

Covenants not to compete are enforceable only to protect against unfair competitive use of either customer contacts or trade secrets. Armstrong, 49 S.W.3d at 825. The Missouri Uniform Trade Secrets Act defines a trade secret as “a formula, pattern, compilation, program, device, method, technique or process” that derives value from not being known and not being readily ascertainable by proper means by others who can obtain economic value from its use and is “the subject of [reasonable] efforts ... to maintain its secrecy.” Section 417.453 RSMo 2000. The protection does not extend to knowledge that is the natural product of the employment or known throughout the industry, but only to trade secrets or influences over customers. See Renwood Food Products v. Schaefer, 240 Mo.App. 939, 223 S.W.2d 144, 151-52 (1949).

There is no dispute that Weikel did not have customer contacts which could conceivably give VSS an unfair competitive advantage over May. May argues that the trial court “implicitly” found that Weikel possessed trade secrets in light of its finding that Weikel’s non-disclosure agreement could be enforced if he misused confidential or trade secret business information. We do not view this observation as a finding that Weikel has any information which constitutes a May company trade secret. The trial court expressly found that any confidential information possessed by Weikel would not give VSS a competitive advantage over May.

May produced three witnesses on the subject of confidential information. Kay Piper (“Piper”), May’s Vice-President of the intimate apparel and hosiery department, testified with respect to intimate apparel confidential information. She identified four May company reports she believed might be valuable to a competitor. She had never heard Weikel’s name until the lawsuit was initiated and had no idea whether he had seen any of the reports. Weikel testified that he spent less than 3% of his time on intimate apparel matters at Foley’s, concentrating instead on operational matters involving areas such as furniture, mattresses, cosmetics and shoes. He had never reviewed any strategic initiatives regarding intimate apparel at Foley’s or May.

Kenneth Wilkerson (“Wilkerson”), May’s designated corporate representative regarding confidential information other than intimate apparel, identified several categories of confidential information to which a Chairman at May would have had access. These included two sales reports, the departmental operating report, May’s staffing system, May’s customer service program and human resource information. Wilkerson had no knowledge that Weikel had any of May’s confidential information in his possession and Weikel testified that he did not. Weikel has had no ability to access such information since June 2003.

There was evidence that the confidential information to which Weikel would have had access was not readily susceptible to memorization and had a limited useful life. Wilkerson conceded that he could not recite the actual sales numbers and figures in the sales report without having the document in front of him. The intimate apparel steering committee meets six times per year to generate a business plan setting out the strategic direction for May’s sale of intimate apparel. Those plans are updated and changed every couple of months. The confidential reports identified by Piper are generated weekly or monthly. May’s seasonal plans and forecasts, discussed at the twice-annual President’s Counsel and Chairman’s roundtable meetings, cover a six-month period of time. Sales and other reports are generated weekly or monthly. May’s merchandising plans are generally for a six-month period, but they are constantly reviewed and updated. Based on this evidence, the trial court could reasonably have found that while the actual reports themselves would be potentially valuable to a competitor when issued, the useful life of the reports is relatively short. The fact that Piper, who is in charge of May’s intimate apparel business, has a six-month non-competition agreement supports this inference. The trial court’s finding that any confidential May business information known to Weikel would not give VSS a competitive advantage over May is supported by substantial evidence. Point denied.

May’s third proffered witness on the subject of confidential information was John Dunham (“Dunham”). The trial court initially precluded Dunham from testifying as to matters designated by May and about which May had previously called Wilkerson to testify. The trial court did, however, allow May to proffer Dunham’s testimony and to file a post-trial memorandum as to the propriety of allowing him to testify on the same subject as the designated corporate representative. It its third point, May urges that the trial court erred in excluding Dunham’s testimony although it did listen to Dunham testify during the proffer and never explicitly ruled on May’s post-trial memorandum. We find that Dunham’s testimony was cumulative and repetitive of Wilkerson’s testimony and, assuming it was excluded, May was not prejudiced thereby. Steffen v. Southwestern Bell Telephone Co., 331 Mo. 574, 56 S.W.2d 47, 48 (1932); Keller v. Int’l Harvester Corp., 648 S.W.2d 584, 588-89 (Mo.App.1983). Point denied.

The judgment is affirmed.

LAWRENCE E. MOONEY, P.J., and MARY K. HOFF, J., concur.


text:
    Bernice HARRIS, Appellant, v. STATE of Missouri, Department of Mental Health, and Monica Jones, Respondents.
    No. ED 83816.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 28, 2004.
    Randall C. Cahill, St. Louis, MO, for appellant.
    Denis G. McElvein, St. Louis, MO, for respondents.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Bernice Harris (“Plaintiff’) appeals from the judgment of the Circuit Court of St. Louis County dismissing her claims against Monica Jones, an employee of Bel-lefontaine Habilitation Center (“BHC”), for injuries Plaintiff received while a resident at BHC.

We have reviewed the briefs of the parties and the record on appeal. We hold that the doctrine of official immunity bars Plaintiffs suit. See State ex rel. Twiehaus v. Adolf, 706 S.W.2d 443, 444 (Mo. banc 1986). An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would have no precedential value. We have, however, provided a memorandum for the use of the parties only setting forth the reasons for our decision.

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

      . We note that Plaintiff's appellate brief does not challenge the dismissal of her claims against the State of Missouri or the Department of Mental Health, Bellefontaine Habilitation Center. We, therefore, consider only the dismissal of Plaintiff's claims against Ms. Jones. See Kabir v. Missouri Dept. of Social Services, 845 S.W.2d 102, 103 (Mo.App. W.D.1993).


author: ROBERT S. BARNEY, Judge.

text:
    Leonard BIERI, III, Appellant, v. Charles J. GOWER and Melanie F. Gower, Respondents.
    No. 26492.
    Missouri Court of Appeals, Southern District, Division Two.
    Jan. 7, 2005.
    Motion for Rehearing or Transfer Denied Jan. 31, 2005.
    Application for Transfer Denied April 5, 2005.

      Leonard Bieri, III, Springfield, pro se.
    No brief filed for Respondents.
   ROBERT S. BARNEY, Judge.

Leonard Bieri, III (“Appellant”), appeals from a judgment and order dismissing his cause of action against Charles J. Gower and Melanie F. Gower (“Respondents”). He now raises two points of trial court error.

We immediately note Appellant’s violation of numerous briefing errors that are contrary to the requirements contained in Rule 84.04.

First, Appellant’s statement of facts is not “a fair and concise statement of the facts relevant to the questions presented for determination without argument.” Rule 84.04(c) (emphasis added). Appellant begins with a rambling and lengthy dissertation of laws and rules primarily relating to a federal criminal case styled as “Criminal Case No. 92-03044-02-CR-RGC,” together with attendant criticism of the actions of the United States Government arising from that case. In the latter portion of the statement of facts, Appellant engages in arguments remarkably devoid of lucidity and logical progression.

The statement of facts requirements set out in Rule 84.04(c) “ ‘serve[ ] to define the scope of the controversy and afford the appellate court an immediate, accurate, complete and unbiased understanding of the facts of the case.’ ” In re Marriage of Gerhard, 34 S.W.3d 305, 306-07 (Mo.App.2001) (quoting Perkel v. Stringfellow, 19 S.W.3d 141, 146 (Mo.App.2000)). Appellant has failed to comply with the provisions of Rule 84.04(c). This constitutes grounds for the dismissal of Appellant’s appeal, although we hesitate to dismiss an appeal for this reason alone. Id. at 307.

Second, Appellant’s “Points Relied Upon” read as follows:

Points Relied Upon for Argument I
A Federal Criminal Judgment and Order of Forfeiture pursuant to Federal law as Conviction Lien and Execution Judgments are not exempt from the faith and credit procedures set out under United States Constitution Article IV Section 1, Title 28 U.S.C.A. Section 1738, Vernon’s Annotated Missouri Statute 490.130, Missouri Civil Procedure Rule 74.14.
Points Relied Upon for Argument II
The Circuit Court’s rejection of original jurisdiction over a quiet title and ejectment action involving a federal order of forfeiture was not warranted under Missouri Rules of Civil Proeedure[], Rule 74.14, Rule 87.02 and Vernon’s Annotated Missouri Statute 527.150(1)(2).

“ ‘Whether civil or criminal, all briefs filed in an appellate court must comply with Rule 84.04.’ ” State v. Hackler, 122 S.W.3d 132, 133 (Mo.App.2003) (quoting State v. Watkins, 102 S.W.3d 570, 571 (Mo.App.2003)). Rule 84.04(d)(1) sets out that:

(1) Where the appellate court reviews the decision of a trial court, each point shall:
(A) identify the trial court ruling or action that the appellant challenges;
(B) state concisely the legal reasons for the appellant’s claim of reversible error; and
(C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.
The point shall be in substantially the following form: ‘The trial court erred in [identify the challenged ruling or action], because [state the legal reasons for the claim of reversible error], in that [explain why the legal reasons, in the context of the case, support the claim of reversible error].’

Here, neither of Appellant’s points approaches compliance with Rule 84.04(d)(1) in that each fads to “explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.” Rule 84.04(d)(1)(C). “The purpose of the rule is ‘to give notice to the opposing party of the precise matters that must be contended with and to inform the court of the issues presented for review.’ ” Crawford County Concerned Citizens v. Missouri Dept. of Nat. Res., 51 S.W.3d 904, 908 (Mo.App.2001) (quoting Franklin v. Ventura, 32 S.W.3d 801, 803 (Mo.App.2000)). Abstract statements, as recited in Appellant’s respective points, standing alone, do not comply with Rule 84.04(d). Linton v. Linton, 117 S.W.3d 198, 203 (Mo.App.2003).

“The requirement that the point relied on clearly state the contentions on appeal is not simply a judicial word game or a matter of hypertechnicality on the part of the appellate courts.” Thummel v. King, 570 S.W.2d 679, 686 (Mo. banc 1978). The purpose of the requirements regarding points relied on is to give notice to the party opponent of the precise matters that must be contended with and answered and to inform the court of the issues presented for resolution. Id.; Harrison v. Woods Super Markets, Inc., 115 S.W.3d 384, 387 (Mo.App.2003). If this Court must resort to searching the argument portion of the brief or the record on appeal to determine or clarify the nature of the asserted claims, we may interpret the claims differently than the opponent or than was intended by the party asserting the claims. Linton, 117 S.W.3d at 203. “The appellate court’s function is to examine trial court error asserted by a party, not to serve as an advocate for any party to an appeal.” Id. Where a brief fails to comply with the applicable rules and does not sufficiently advise the court of the contentions asserted and the merit thereof, “the court is left with the dilemma of deciding that case (and possibly establishing precedent for future cases) on the basis of inadequate briefing and advocacy or undertaking additional research and briefing to supply the deficiency.” Thummel, 570 S.W.2d at 686. “Courts should not be asked or expected to assume such a role.” Id.

We note that Appellant is appealing pro se. “Pro se parties are bound by the same rules of procedure as parties represented by lawyers, and are not entitled to indulgences they would not have received if represented by counsel.” Belisle v. City of Senath, 974 S.W.2d 600, 601 (Mo.App.1998). As stated in Kline v. Casey’s Gen. Stores, Inc., 998 S.W.2d 140 (Mo.App.1999):

While this court recognizes the problems faced by pro se litigants, we cannot relax our standards for non lawyers. Brown v. City of St. Louis, 842 S.W.2d 163, 165 (Mo.App.1992). It is not for lack of sympathy but rather it is necessitated by the requirement of judicial impartiality, judicial economy and fairness to all parties.

Id., at 141 (quoting Sutton v. Goldenberg, 862 S.W.2d 515, 517 (Mo.App.1993)). “A failure to substantially comply with Rule 84.04 preserves nothing for appellate review.” Burton v. Tucker, 937 S.W.2d 775, 776 (Mo.App.1997).

Further, in the present matter “[o]ur review is under plain error.” Lamar Adver., Inc. v. McDonald, 19 S.W.3d 743, 745 (Mo.App.2000); see Rule 84.13(c). Plain error review “is granted sparingly, and is reserved for those cases where there appears to have been a manifest injustice or miscarriage of justice.” Lamar Adver., Inc., 19 S.W.3d at 745. With that being said, Appellant does not make the requisite showing entitling him to the employment of plain error review. Id.

The judgment of the trial court is affirmed.

PARRISH, P.J., and SHRUM, J., concur.

      . As best we discern from the legal file and the appendix attached to Appellant’s brief, Appellant was previously divested of certain real properties under a "Federal Order of Forfeiture” issued out of the United States District Court for the Western District of Missouri on November 7, 1997. Subsequently, Respondents purchased these real properties from the United States of America. Some four years later, Appellant filed his present action to quiet title in these properties in himself and sought to eject Respondents from the real properties in question. Respondents seasonably filed their motion to dismiss Appellant’s cause of action. The Circuit Court of Ozark County, Missouri, sustained Respondents' motion to dismiss citing "lack of jurisdiction of this Court to set aside a Federal judgment.”

      . All rule references are to Missouri Court Rules (2004), unless otherwise indicated.

      . We further note Appellant has failed to set out the applicable standard of review for each claim of error. Lane v. Elliott, 102 S.W.3d 53, 55 (Mo.App.2003).


text:
    Tracy M. BURAGE, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84525.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 11, 2005.
    Tracy Burage, Licking, MO, pro se.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Deborah Daniels, Stephen David Hawke, Assistant Attorneys General, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J. and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Appellant, Tracy M. Burage (“Movant”), appeals from the judgment of the Circuit Court of St. Louis County denying his motion to reopen his Rule 29.15 motion for post-conviction relief. Following a jury trial, Movant was convicted of one count of robbery in the first degree, section 569.020 RSMo (1994), and one count of armed criminal action, section 571.015. Movant was sentenced as a prior and persistent offender to thirty years imprisonment on each count to run consecutively. We previously affirmed the motion court’s denial of Movant’s Rule 29.15 motion for post-conviction relief. We affirm.

We have reviewed the briefs of the parties and the record on appeal. As an extended opinion would serve no jurisprudential purpose, we affirm the judgment pursuant to Rule 84.16(b). We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision.

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


author: PHILLIP R. GARRISON, Judge.

text:
    STATE of Missouri, ex rel., the STATE OF KANSAS SOCIAL AND REHABILITATION SERVICES and D.K.M., et al, Petitioners-Respondents, v. R.L.P., Respondent-Appellant.
    No. 25595.
    Missouri Court of Appeals, Southern District, Division One.
    Jan. 12, 2005.
    Motion for Rehearing or Transfer Denied Feb. 4, 2005.

      Kenneth W. Johnson, Twibell, Johnson, Johnson, Scott & Garrison, Springfield, for appellant.
    Richard L. Schnake, Neale & Newman, L.L.P., Springfield, for respondent.
   PHILLIP R. GARRISON, Judge.

R.L.P. (“Father”) appeals a judgment entered by the trial court awarding custody of A.L.M., J.L.P., and K.K.P. (the “children”) to D.K.M. (“Mother”). He contends that the judgment was erroneous because it was entered without requiring the appointed guardian ad litem to make a report of his investigation and recommendations concerning the best interests of the children, and also because the trial court failed to make sufficient findings concerning the childrens’ best interests. We reverse and remand the case for a new trial.

Mother and Father met in 1989 and lived together with occasional separations until July 2001. Although never married, three children were born to them during those years: A.L.M., born July 23, 1995; J.L.P., born September 22, 1999; and K.K.P., born November 3, 2000. Father and Mother had a rather tumultuous relationship that was periodically interrupted by Mother living with her parents in Kansas and later returning to the homes they shared at various times. According to Father, Mother would sometimes beat his daughter from a prior relationship, who was living with them at the time, and he also said that he had threatened to report Mother to Family Services for beating A.L.M. Mother testified that Father only sporadically participated in parenting the children, had problems with alcohol abuse, had used marijuana, was physically abusive to her, and had been jailed for probation violation. Nevertheless, Mother testified that there “were times when things were really good,” and she would return because she loved Father and he repeatedly promised that he would stop or reduce his drinking and would seek counseling.

On July 9, 2001, Mother moved, with the children, to her parents’ home in Kansas. Contemporaneously with that, she filed a petition seeking a determination of paternity as to the three children, custody and support of the children, and a distribution of property accumulated during the time she and Father cohabited. Father filed an answer and counterclaim in which he also sought determinations that he is the biological father of J.L.P. and K.K.P., he sought custody of the three children, and he sought child support. Mother filed an amended petition in which she sought a judgment awarding “joint legal custody of the minor children, with [her] having primary physical custody, and [Father] reasonable visitation,” as well as determinations of paternity and child support. She also sought a partition of the personal property. A guardian ad litem was appointed to represent the interests of the children.

After hearing evidence in the case, the trial court entered its “Findings and Final Judgment” in which it found that Father was the biological father of all three children; it awarded sole legal and physical custody of all three children to Mother; awarded visitation to Father as detailed in a “Parenting Plan”; and ordered Father to pay child support. Father appeals.

Initially, it is necessary that we consider a motion to dismiss filed by Mother. After the filing of the notice of appeal in this case, Father filed a motion to modify in which he sought to modify child support and visitation. Thereafter, Mother and Father filed a stipulation in which they agreed that, based upon a change of circumstances, the child support and visitation ordered in the earlier judgment would be modified. Based on the stipulation and factual affidavits of the parties, the trial court entered a “Judgment of Modification” modifying the child support and visitation as agreed to by Mother and Father.

Mother claims that by moving to modify the original judgment, and by stipulating to its modification, Father acknowledged the validity of that judgment and acquiesced in it. She also contends that this appeal is thereby moot. Consequently, she argues that Father’s appeal should be dismissed. In support, she cites Schulte v. Schulte, 949 S.W.2d 225, 226 (Mo.App. E.D.1997), for the proposition that a party may estop himself from taking an appeal by voluntary acts which expressly or impliedly recognize the validity of a judgment. Thus, where a party accepts the benefits of a judgment in his favor or acquiesces in a judgment against him, he waives his right to have it reviewed on appeal. Id. at 227.

Mother argues here that Father’s visitation rights and his obligation to pay child support arise only because he did not have custody. Accordingly, she contends that the motion to modify and the later stipulation resolving those issues necessarily presupposed the validity of the underlying custody award which is the subject of this appeal.

The paramount concern, however, with reference to child custody issues is the best interests of the children. Young v. Young, 59 S.W.3d 23, 28 (Mo.App. W.D.2001). It is fitting, therefore, that this court has observed that the general rule pertaining to acquiescence in judgments should not be strictly applied in divorce cases because of the peculiar situations of the parties and the equitable considerations involved. Smith v. Smith, 702 S.W.2d 505, 507 (Mo.App. S.D.1985).

Additionally, the fact that Father sought modification of the visitation and child support issues, but not the custody issue, is not necessarily inconsistent. It is true, as pointed out by Mother, that the visitation and child support issues Father sought to modify would not have existed except for the fact that Mother was awarded custody. It does not necessarily follow, however, that an attempt to modify only the visitation and child support issues constitutes a recognition of the validity of the judgment concerning custody.

Different standards are applied in determining custody in an original proceeding than in a modification. In the former, the trial court is required to consider all relevant factors including eight specifically enumerated in § 452.375.2; to determine the custody arrangement that will best assure that both parents have frequent, continuing and meaningful contact with their children so long as it is in the best interests of the child pursuant to § 452.375.4; and if, as in this case, the parties have not agreed to a custodial arrangement to include a written finding in the judgment or order based on the public policy in § 452.375.4 and each of the eight factors listed in § 452.375.2 “detailing the specific relevant factors that made a particular arrangement in the best interest of the child.” § 452.375.6. In a modification proceeding, however, the trial court is restricted by § 452.410.1 from modifying a prior custody decree unless, among other things, it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child. It is thus possible that a parent might not be able to prove the necessary change of circumstances in order to obtain a modification of custody, but could successfully contest the initial custody determination of that issue on appeal.

Additionally, there is a different standard for modifying visitation as opposed to custody. As indicated above, a modification of custody requires a change of circumstances pursuant to § 452.410.1. A modification of visitation, however, is governed by § 452.400.2 under which the standard is the best interests of the child without a precursor finding of a substantial change of circumstances. In re D.M.S., 96 S.W.3d 167, 173 (Mo.App. S.D. 2003). Under this comparative analysis, the fact that a parent seeks to modify an award of visitation based on the best interests of a child but does not seek to modify custody does not necessarily constitute a recognition of the custody decree. The same is true with reference to a modification of child support which must be supported by a showing of changed circumstances so substantial and continuing as to make the terms of the original support judgment unreasonable. Section 452.370.1

We hold that Father’s modification of the visitation and child support awards was not inconsistent with his appeal of the custody award, and did not constitute a recognition of the latter. Consequently, Father is not estopped from pursuing this appeal. To hold otherwise would place a parent in the position of sacrificing an attack on the initial custody determination in order to modify visitation or child support if the initial custody determination was erroneous but the complaining parent could not meet the burden of modifying such determination. Conversely, a parent wishing to modify a visitation or child support award would be required to forego that procedure in order to maintain an appeal from the initial custody award. Given the different standards involved and the fact that the paramount consideration in custody and visitation determinations is the best interests of the child, we decline, under the circumstances of this case, to dismiss Father’s appeal on the basis that his modification proceedings constituted a recognition of the validity of the initial custody determination so as to estop him from pursuing this appeal.

We also find that the modification of the visitation and child support did not, as argued by Mother, cause the appeal from the initial custody determination to be moot. In terms of justiciability, a cause is moot when the question presented for decision seeks a judgment upon some matter which, if the judgment was rendered, would not have any practical effect upon any then existing controversy. State ex rel. Reed v. Reardon, 41 S.W.3d 470, 473 (Mo. banc 2001). When an event occurs that makes a court’s decision unnecessary or makes granting effectual relief by the court impossible, the case is moot and generally should be dismissed. Id.

Martin v. Martin, 815 S.W.2d 130 (Mo.App. W.D.1991), cited by Mother, does not compel the conclusion that Father’s appeal from the judgment awarding custody is rendered moot by the modification. There, the trial court entered a decree of dissolution disposing of issues relating to property distribution, custody, support, and visitation. Id. at 131. Pursuant to the mother’s motion, the trial court entered a decree of dissolution nunc pro tunc changing the visitation schedule, and the father filed a notice of appeal. Id. The judgment relating to visitation was later modified in the trial court, and the appellate court dismissed the appeal pursuant to the mother’s motion, holding that it was rendered moot by the trial court’s modification of the decree relating to visitation. Id. at 132. Unlike the instant case, in Martin, the visitation schedule, that was set in the decree nunc pro tunc and that was the subject of the appeal, was no longer in place because of the modification. Id. The contrary is true in the instant case; the portion of the judgment awarding custody is still in place and was not changed by the modification.

We conclude that Father is not estopped from pursuing this appeal because of the modification. Likewise, the modification proceedings did not render this appeal moot. Mother’s motion to dismiss is denied.

In one of Father’s points on appeal, he contends that the trial court’s judgment awarding custody of the children to Mother was against the weight of the evidence because in considering the relevant factors pursuant to § 452.375(2), it failed to identify sufficient evidence to support its decision that awarding custody to Mother was in the best interests of the children. Father’s contention under this point has merit.

Section 452.375.2 provides:

2. The court shall determine custody in accordance with the best interests of the child. The court shall consider all relevant factors including:
(1) The wishes of the child’s parents as to custody and the proposed parenting plan submitted by both parties;
(2) The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;
(3) The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child’s best interests;
(4) Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;
(5) The child’s adjustment to the child’s home, school, and community;
(6) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved. If the court finds that a pattern of domestic violence has occurred, and, if the court also finds that awarding custody to the abusive parent is in the best interest of the child, then the court shall enter written findings of fact and conclusions of law. Custody and visitation rights shall be ordered in a manner that best protects the child and the parent or other family or household member who is the victim of domestic violence from any further harm;
(7) The intention of either parent to relocate the principal residence of the child; and
(8) The wishes of a child as to the child’s custodian.

Section § 452.375.4 provides, in pertinent part:

The general assembly finds and declares that it is the public policy of this state that frequent, continuing and meaningful contact with both parents after the parents have separated or dissolved their marriage is in the best interest of the child, except for cases where the court specifically finds that such contact is not in the best interest of the child, ... In order to effectuate these policies, the court shall determine the custody arrangement which will best assure both parents participate in such decisions and have frequent, continuing and meaningful contact with their children so long as it is in the best interests of the child.

Finally, § 452.875.6 provides, in pertinent part:

If the parties have not agreed to a custodial arrangement, or the court determines such arrangement is not in the best interest of the child, the court shall include a written finding in the judgment or order based on the public policy in subsection 4 of this section and each of the factors listed in subdivisions (1) to (8) of subsection 2 of this section detailing the specific relevant factors that made a particular arrangement in the best interest of the child.

Where, as here, the parties have not agreed to a custodial arrangement, the trial court is required to make written findings based on the public policy set out in § 452.375.4 and “each of the factors listed in subdivisions (1) to (8) of [§ 452.375.2] detailing the specific relevant factors that made a particular arrangement in the best interest of the child.” Section 452.375.6. In this regard, a trial court is not required to discuss each of the eight factors listed in § 452.375.2, unless they are relevant. In re Marriage of Cluck, 121 S.W.3d 271, 273 (Mo.App. S.D. 2003). Pursuant to the statutory language of § 452.375.6, however, it is required to detail “the specific relevant factors that made a particular arrangement in the best interest of the child.” Davidson v. Fisher, 96 S.W.3d 160, 164 (Mo.App. W.D.2003). The purpose of the statutory requirement is to assure that all pertinent considerations are described by the trial court so as to allow for more meaningful appellate review. Id.

In its judgment awarding sole legal and physical custody of the children to Mother, the trial court stated that it had considered all relevant factors, including the eight listed in § 452.375.2. Although it listed factors (1), (2), (3), and (6) from § 452.375.2, it made no findings with reference to any of them. With reference to factor (4) (which parent is more likely to allow the children frequent, continuing and meaningful contact with the other parent), it found that “Father is more likely than Mother to allow such contact.” With reference to factor (5) it found that it was “not a significant factor due to the ages of the children,” it recited that no evidence was presented with reference to factor (7) and, with reference to factor (8), it found that it had “not been considered due to the ages of the children.” Therefore, the trial court made a finding with reference to only one of the eight factors required by § 452.375 to be considered, and that factor was found in favor of Father. That factor corresponds with the legislative mandate under § 452.375.4 that it is this state’s public policy that frequent, continuing and meaningful contact with both parents is in the best interest of the child, except where the court specifically finds that such contact is not in the best interest of the child.

In its judgment, the trial court also noted that Mother had removed the children from the home of the parties in Stone County, Missouri on July 10, 2001, without notice to Father, to Lyons, Kansas where she and the children moved in with her parents, and that she thereafter denied Father visitation and contact with the children until October 11, 2001. It also found:

Due to the friction between the parties exhibited since the commencement of this action with respect to visitation, telephone contact, transference of temporary custody, interference by Mother’s parents and disagreements regarding schooling of the eldest child [A.L.M.], together with the removal of the children to the state of Kansas by Mother, a distance of some 400 miles, the court, after considering the public policy established in § 452.375(4) RSMo., finds that both joint legal custody and joint physical custody would be unworkable and contrary to the best interests of the minor children. In his testimony, Father stated that he doubted that the parties would be able to amicably engage in the cooperation necessary for joint legal custody. There was no substantial evidence demonstrating a commonality of belief concerning the parental decisions and or the willingness of the parents to function as a unit in making decisions so that joint legal custody and joint physical custody is not in the best interests of the children.

Nevertheless, the trial court also made the following finding:

In accordance with the public policy of this state as recited in § 452.375.4 RSMo., the court has determined that the following ordered custody arrangement will best assure that both parents participate in decisions affecting the health, education and welfare of their children and resolve disputes involving their children amicably through alternative dispute resolution and have frequent, continuing and meaningful contact with their children so long as it is in the best interest of the children, (emphasis added).

Thus, the trial court made the inconsistent findings that Father was more likely than Mother to allow frequent, continuing and meaningful contact with the other parent, but also found that goal would be best assured by awarding sole legal and physical custody to Mother, a conclusion it found to be in the best interests of the children.

We must affirm the decision of the trial court in a custody dispute unless it is against the weight of the evidence, there is no substantial evidence to support it, or it erroneously declares or applies the law. Davidson, 96 S.W.3d at 164. We give greater deference to the trial court’s decision in a child custody case than in other civil cases, and we presume that the trial court reviewed all the evidence and awarded custody in light of the best interest of the child. Id.

These principles do not, however, permit us to overlook the specific statutory requirements with reference to determining the best interests of the children in a case involving custody of minor children. Here, the trial court made no specific findings in support of its conclusion that the best interests of the children required that custody be awarded to Mother. The lack of findings mandated by the legislature prevents us from making a meaningful review on appeal.

Under other circumstances, we would remand the case to the trial court for the entry of more specific findings in accordance with our discussion of the statutory requirements. See Gross v. Helm, 98 S.W.3d 85, 88 (Mo.App. E.D.2003). In this case, however, the judge who presided over the trial, heard the evidence and observed the witnesses, retired five days after entering the judgment from which this appeal was taken. Under these circumstances, we have no alternative but to reverse the judgment and remand for a new trial because of the lack of findings supporting the trial court’s determination that an award of custody to Mother was in the best interests of the children.

In another point on this appeal, Father complains that the trial court erred in awarding custody to Mother without requiring that the guardian ad litem (the “GAL”) submit a report of his investigation and recommendations and, as a result, failed to insure that it had a sufficient evidentiary basis for making a determination about the best interests of the children. In support, he contends that the GAL, “as representative of the children” had a duty to investigate the circumstances of the children and parties and weigh all relevant factors as the minor children would weigh them if their judgment was mature and they were not of tender years, and that the GAL failed to fulfill his duties to the children and the court by failing to present to the court any input concerning the best interests of the children.

The record indicates that the GAL in this case visited the home in Kansas where Mother and the children were living; made court appearances for motions; interviewed the older of the children; attended the trial; and examined witnesses. At the conclusion of the evidence, Father’s attorney suggested that the trial court either interview the oldest of the children or accept a report from the GAL about his interviews with the child. Mother’s attorney objected to the trial court merely accepting a report of the interviews from the GAL, and a time was scheduled for the trial court to interview that child. The GAL orally made a request to the trial court that he be permitted to make a report, to which the trial court responded that “I want the [GAL] to make a report. And I expect the [GAL] will do so. Obviously the Court can’t consider that report as anything other than argument, just as counsel would ... have the opportunity to argue since he can only present evidence through the same way that parties can present evidence.” Later, the trial court stated that “I’ll ask the [GAL] — I will allow him time to present a written report after that hearing as well, but I’m thinking in terms of a week or two weeks at the most, so that these matters can be submitted rather promptly.”

The record indicates that when the trial court finished its interview with the oldest child, counsel waived closing arguments, electing instead to file written suggestions within twelve days “when the case would be submitted.” The judgment entered by the trial court reflects that the attorneys for Father and Mother each filed suggestions and proposed parenting plans within the time set by the court, but the “[GAL] did not submit any suggestions.” The trial court entered its judgment two months later, acknowledging in its judgment that no suggestions had been received from the GAL.

Because this case is being reversed and remanded for a new trial, we need not decide whether the failure of the GAL to file a formal report and recommendation was error under the circumstances here. We do note, however, that a GAL’s function includes acting as an arm of the trial court in assuring that all of the requisite information bearing on the best interests of the children will be presented for consideration. In re Marriage of Sisk, 937 S.W.2d 727, 733 (Mo.App. S.D.1996). While the GAL is not required to make an explicit recommendation as to child custody, it is imperative that he investigate and have input on the perspective of the child’s best interest and that this be presented to the trial court. Baumgart v. Baumgart, 944 S.W.2d 572, 579 (Mo.App. W.D.1997). Such presentation can be made, however, through active participation in the proceedings without the necessity of a formal, explicit recommendation. Guier v. Guier, 918 S.W.2d 940, 952 (Mo.App. W.D.1996). Even if a formal recommendation is made, the trial court is not bound by and may accept, modify or reject the GAL’s recommendations as it deems appropriate. Sisk, 937 S.W.2d at 733.

The judgment of the trial court determining custody of the children is reversed and the case is remanded for a new trial.

PREWITT, J., and BARNEY, J., concur.

      . There had been an earlier judicial determination that Father was the biological father of A.L.M.

      . As noted in LaRocca v. LaRocca, 135 S.W.3d 522, 524 (Mo.App. E.D.2004), § 452.375.1 defines "custody” as "joint legal custody, sole legal custody, joint physical custody or sole physical custody or any combination thereof,” but does not employ the term "primary physical custody.”

      . The Honorable William J. Kirsch, the trial judge in this case, retired five days after entering the judgment from which this appeal flows. He was replaced by the Honorable Alan Blankenship.

      . All references to statutes are to RSMo (2000) unless otherwise indicated.