author: ROBERT S. BARNEY, Judge.

text:
    Lonnie F. DUEKER and Patricia A. Dueker, and John L. Shannon, Appellants, v. Samuel L. GILL, First Midwest Bank of Poplar Bluff, N. A., Gene Shain, Earl J. Miller and Juanita Miller, Respondents.
    No. 26591.
    Missouri Court of Appeals, Southern District, Division Two.
    Nov. 7, 2005.

      Mary Eftink Boner, Jackson, for Appellants.
    Sanjay K. Varma, Poplar Bluff, for Respondent Millers.
    John L. Cook, Cape Girardeau, for Respondent Gill.
    David W. White & Jacqueline M. Sexton, Kansas City, for Respondents Bank & Gene Shain.
   ROBERT S. BARNEY, Judge.

Appellants Lonnie and Patricia Dueker, and John L. Shannon (collectively “Plaintiffs”) brought suit against Respondents Samuel L. Gill (“Gill”), First Midwest Bank of Poplar Bluff, N.A. (“the Bank”), Gene Shain (“Shain”), and Earl J. Miller and Juanita Miller (“the Millers”). This suit arises out of Plaintiffs’ purchase of Miller’s Motor Lodge (“the Lodge”) from the Millers. In their petition, Plaintiffs brought Count I for fraudulent misrepresentation and Count II for professional negligence against Gill, who performed an appraisal on the Lodge prior to Plaintiffs’ purchase. Plaintiffs also brought a third count for civil conspiracy against Gill, Shain, the Millers, and the Bank alleging they conspired to sell the Lodge at an inflated price. The trial court granted Gill’s motion for summary judgment on Counts I and II and also granted summary judgment in favor of all Defendants on Count III. Further, the trial court denied Plaintiffs’ motion for leave to file a “First Amended Petition” to add a count for fraudulent misrepresentation against Shain, the Bank and the Millers. Plaintiffs now appeal. We affirm.

The record reveals that while visiting Miller’s Motor Lodge in September of 1996, Lonnie Dueker (“Dueker”) learned from the Millers that the Lodge was for sale. When asked about the purchase price, the Millers informed Dueker that the price would be at least $850,000.00. Dueker and his wife returned home and discussed purchasing the Lodge with their business partner, John L. Shannon (“Shannon”). Dueker investigated the profitability of the Lodge in order to ascertain whether it would sustain the purchase price and even requested a copy of the Millers’ income tax returns for past years, although the Millers failed to comply with this request. Instead of providing the requested information, the Millers provided Dueker with an income and expense spreadsheet (“the spreadsheet”) which had been prepared by an employee of the Bank. The spreadsheet showed a gross income for the Lodge of $251,600.00 for the year of 1995.

In addition to viewing the spreadsheet, Dueker went to the Missouri Department of Revenue and acquired sales tax reports for the Lodge. Dueker noted that the income reported to the State did not match the income on the spreadsheet. When Dueker approached the Millers with this knowledge, they explained that the sales tax report did not include tax exempt sales to the Army Corps of Engineers nor did it include cash sales.

On September 24,1996, Dueker sent the Millers a letter confirming his intent to purchase the Lodge for $850,000.00 subject to two contingencies, the sale of rental property owned by Dueker and the availability of reasonable financing.

In October of 1996, the Millers informed Dueker that Shain, an officer of the Bank, was interested in financing the purchase price of the Lodge. Miller introduced Dueker to Shain and a loan application was prepared. An appraisal of the Lodge was required in order to finance the purchase price and Dueker told Shain to choose one of the Bank’s approved appraisers. Shain chose Gill to appraise the Lodge.

Shain prepared the contract for sale and delivered it to Dueker while he was staying at the Lodge. At that time, Shain advised Dueker that the appraised value of the Lodge was expected to be around $1,000,000.00. Gill prepared and delivered to the Bank an appraisal dated November 26, 1996, showing the appraised value of the Lodge to be $956,000.00 under “an income approach” and $1,123,000.00 under a “cost approach.” Dueker and Shannon visited the Bank to view the appraisal shortly thereafter. At that time, Dueker thought Gill’s “income approach” valuation of $956,000.00 was inaccurate, but he considered the “cost approach” valuation to be reasonable.

On November 30, 1996, a contract for the sale of the Lodge for the price of $850,000.00 was signed by the Duekers, Shannon, and the Millers. Dueker purchased a duplicate of Gill’s appraisal on December 23,1996. The sale of the Lodge was closed on January 7, 1997. Of the $850,000.00 purchase price, the Bank financed $500,000.00; the Millers financed $280,000.00; and Plaintiffs put down $70,000.00 of their own money. Plaintiffs also purchased a boat storage facility from the Millers for $100,000.00, of which $90,525.00 was financed by the Millers.

In August of 2000, through the course of appealing a Butler County property tax assessment, Dueker testified that he became suspicious of the Lodge’s original appraised value as determined by Gill. The chief appraiser for Butler County told Dueker that the Lodge was worth half of the value stated in Gill's appraisal. Dueker then talked to appraiser Kent Sexton (“Sexton”), who informed him that he should not rely on the Gill appraisal. At this time, Dueker was of the opinion that the Millers, Gill, and Shain had conspired to sell the Lodge for much more than it was worth.

On August 9, 2001, Dueker went to the Bank to view his loan files. According to Dueker, before showing the file to him, Shain appeared to remove materials from the file. When confronted, Shain informed Dueker that he had to remove confidential bank information before turning the file over to him.

On that same date, Plaintiffs filed suit as previously set out. At that time, both parties initiated discovery in this matter and discovery continued until May of 2003.

In addition to those facts already mentioned, the record reveals the following information which was learned through discovery. It appears that on a typical real estate loan, the Bank sought a seventy-five to eighty percent loan-to-value ratio when financing the purchase of real estate. Here, the Bank financed $500,000.00 of the purchase price of the Lodge, which is approximately fifty-nine percent of the total purchase price of $850,000.00, well below their typical loan-to-value ratio. Additionally, it was revealed that Gill never personally visited the Lodge in preparing his appraisal and that Gill did not use comparable sales in his valuation even though Dueker had been told that without the use of comparable sales figures an appraisal is useless. Additionally, the fact that the square footage of the Lodge was overstated in the appraisal inflated the “cost of replacement” value of the Lodge. Further, the spreadsheet provided to Dueker by the Millers included income from a miniature golf course, which was not a part of the sale of the Lodge.

On February 18, 2008, Shain and the Bank filed a motion for summary judgment which was followed by the Millers’ motion for summary judgment on September 4, 2003. On September 24, 2003, Plaintiffs filed a motion for leave to file an amended petition adding a count for fraudulent misrepresentation against Shain, the Millers, and the Bank for their representation of the income and expenses of the Lodge. Gill filed for summary judgment on February 2, 2004.

On September 13, 2004, the trial court granted Gill’s motion for summary judgment on Counts I and II and also granted summary judgment in favor of all Defendants on Count III. Plaintiffs’ motion for leave to file an amended petition was denied by the trial court on February 3, 2004. This appeal followed.

Plaintiffs now allege four points of trial court error. In their first point relied on, Plaintiffs assert it was error for the trial court to grant summary judgment in favor of Gill on the fraudulent misrepresentation count. Plaintiffs’ second point relied on maintains it was error for the trial court to grant summary judgment in favor of Gill on the professional negligence count. Third, Plaintiffs assert the trial court erred by granting summary judgment in favor of all Defendants on the civil conspiracy count. Lastly, Plaintiffs allege the trial court abused its discretion in denying Plaintiffs’ motion for leave to file a “First Amended Petition” to add a count for fraudulent misrepresentation against Shain, the Millers and the Bank.

Appellate review of whether summary judgment is appropriate is an issue of law, therefore our review is “essentially de novo.” Stanley v. City of Independence, 995 S.W.2d 485, 486 (Mo. banc 1999). “When considering appeals from summary judgments, the Court will review the record in the light most favorable to the party against whom judgment was entered.” ITT Comm’l Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). “Facts set forth by affidavit or otherwise in support of a party’s motion are taken as true unless contradicted by the non-moving party’s response to the motion.” Reese v. Ryan’s Family Steakhouses, Inc., 19 S.W.3d 749, 751 (Mo.App.2000).

A grant of summary judgment is appropriate when the movant establishes there are no genuine issues of material fact and they are entitled to a judgment as a matter of law. McAninch v. Robinson, 942 S.W.2d 452, 456 (Mo.App.1997). A genuine issue of fact must be a “real and substantial one ... consisting not merely of conjecture, theory and possibilities.” ITT, 854 S.W.2d at 378.

A ‘defending party’ may establish a right to [summary] judgment by showing (1) facts that negate any one of the claimant’s elements facts; (2) that the non-movant has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant’s elements; or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant’s properly-pleaded affirmative defense.

Id. at 381. When a trial court grants summary judgment without articulating the reason it was granted, we will affirm if summary judgment is appropriate under any theory. Brennan v. Molina, 934 S.W.2d 631, 633 (Mo.App.1996).

In their first point on appeal, Plaintiffs maintain:

The trial court erred in granting summary judgment in favor of Sam Gill on Count I of Plaintiffs’ petition for fraudulent misrepresentation of the value of Miller’s Motor Lodge because there are issues of material fact in dispute regarding what the value of the Lodge was in November, 1996, whether Gill knew the value he stated was false and whether Plaintiffs relied on Gill’s representations; [and] that representations of value by an appraiser do give rise to a cause of action for fraudulent misrepresentation and Plaintiffs had a right to rely on [Gill’s] representations.

We disagree. In his motion for summary judgment, Gill alleges that Plaintiffs’ failed to assert all “nine [of the] necessary elements to establish a case of fraudulent misrepresentation.” He argues he was entitled to a judgment as a matter of law based on his assertion that “Plaintiffs are unable to establish that a representation of fact was made, that they relied on the statement, that they had a right to rely on the statement or that the statement was false.”

In their response to Gill’s summary judgment motion, Plaintiffs allege Gill failed to make a prima facie case that there were no genuine issues of material fact with regard to several of the fraudulent misrepresentation elements.

The elements of an action for fraudulent misrepresentation are as follows: (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker’s knowledge of its falsity or his ignorance of the truth; (5) the speaker’s intent that his statement be acted upon; (6) the hearer’s ignorance of the falsity of the statement; (7) his reliance on the truth of the statement; (8) the hearer’s right to rely on the statement; and (9) the hearer’s consequent and proximate injuries. Blanke v. Hendrickson, 944 S.W.2d 943, 944 (Mo.App.1997). Each element must be supported by substantial evidence. Id. “Failure to prove any of the requisite elements is fatal to a claim for fraud.” Id.

In support of his motion for summary judgment, Gill relies on Dueker’s letters to the Millers, sent prior to the appraisal’s completion, coupled with his deposition testimony, to illustrate that Plaintiffs did not rely upon Gill’s appraisal.

In particular, Gill presents evidence from the record showing Plaintiffs had already committed to purchase the Lodge from the Millers on September 17, 1996, and on September 24, 1996, agreed on the price of $850,000.00 before Gill’s appraisal was ever presented to them in late November of 1996.

In a letter sent to Earl (“Lefty”) Miller on September 17, 1996, Dueker related, “[o]nce again, as far as I’m concerned, we have a deal.” This was followed by a letter to the Millers, dated September 24, 1996, wherein Dueker wrote:

I am writing to request that you consider this letter as confirmation of my intent to purchase Miller’s Motor Lodge for $850,000. This transaction has two contingencies.
The sale of rental property that I own in Kansas City, the proceeds of which will be used for the down payment.
The availability of reasonable financing.
My target is to close during the first week [of] November before the next Federal Reserve Bank OMC meeting. Ownership training can start immediately, with actual transition of all responsibilities on January 1,1997.
In closing, let me assure you that Pat and I are working very aggressively to meet these dates and I will keep you informed as to our progress.
Sincerely,
/s/ Larry Dueker

Additionally, Gill presents Dueker’s deposition testimony, as set out in Gill’s motion for summary judgment, where Dueker states that Dueker and the Millers had arrived at an agreement for the purchase price of the Lodge on September 24,1996. As previously set out there is no dispute that Plaintiffs did not view Gill’s appraisal until November 26, 1996. As such, Gill’s appraisal was not given to induce the purchase of the Lodge, because the purchase price had already been determined by Dueker and the Millers.

In their response to Gill’s motion for summary judgment, Plaintiffs present the deposition testimony of Dueker in support of their claim they relied on Gill’s appraisal. However, they do not show that their review of the appraisal came before Dueker’s letter of September 24, 1996, confirming his intent to purchase the Lodge. In fact, in their response to Gill’s summary judgment motion, Plaintiffs seem to concentrate more on the fact that they relied on the spreadsheet than they do on the appraisal in making their decision to buy the Lodge. Plaintiffs failure to show reliance on Gill’s appraisal in their response to Gill’s summary judgment motion is “fatal to [their] claim for fraud.” Blanke, 944 S.W.2d at 944.

Accordingly, we find that Plaintiffs’ fraudulent misrepresentation claim was properly disposed of by summary judgment. Gill, as the “defending party,” established his right to summary judgment by showing facts that negated Plaintiffs’ reliance on the truth of Gill’s appraisal. ITT, 854 S.W.2d at 381. Point denied.

In their second point on appeal, Plaintiffs argue:

The trial court erred in granting summary judgment in favor of Sam Gill on Count II of Plaintiffs’ petition for professional negligence in representing the value of Miller’s Motor Lodge because there remain issues of material fact in dispute regarding whether Plaintiffs relied on Gill’s representations and [Gill] is not entitled to judgment as a matter of law in that ... Gill held a duty to Plaintiffs as third party beneficiaries of the appraisal Gill prepared, the information provided by Gill in his appraisal was intentionally provided for the guidance of a limited group, including the Plaintiffs and as a result of Plaintiffs’ reliance on the information provided by Gill, they were damaged.

In Gill’s motion for summary judgment on Count II, he asserts Plaintiffs’ cause of action for professional negligence related to the appraisal had to fail because Gill “owed no duty to the Plaintiffs” when he prepared the appraisal at the Bank’s request. Additionally, he asserts that “any alleged negligence of Mr. Gill did not cause any damages Plaintiffs may have sustained.” In Gill’s memorandum of law in support of his motion for summary judgment, Gill explains that “any claim of causation that plaintiffs might make, is dependent on a claim of reliance. Reliance which does not exist as set out under Count I, [discussed in Point One] above.”

To state a claim for negligent misrepresentation, [P]laintiffs must plead facts that establish: (1) speaker supplied information in the course of his business or because of some other pecuniary interest; (2) due to speaker’s failure to exercise reasonable care or competence in obtaining or communicating this information, the information was false; (3) speaker intentionally provided the information for the guidance of a limited group of persons in a particular business transaction; (4) listener justifiably relied on the information; and (5) that as a result of listener’s reliance on the statement, he/she suffered a pecuniary loss.

Miller v. Big River Concrete, L.L.C., 14 S.W.3d 129, 133 (Mo.App.2000); Colgan v. Wash. Realty Co., 879 S.W.2d 686, 689 (Mo.App.1994). “If [a plaintiff] cannot provide proof of all of the elements of ... negligent misrepresentation, a trial court may grant [a defendant’s] motion for summary judgment on that count of the petition.” Id.

In their response to Gill’s summary judgment motion, Plaintiffs maintain that because the information in the appraisal was prepared “for the particular business transaction of the sale of [the Lodge] from [the Millers] to Plaintiffs ...” it was meant to provide “guidance” to all of the parties involved, including themselves. Plaintiffs maintain that because the Bank “regularly lets their customers see an appraisal” the Bank implicitly intended that their customers would rely upon and be guided by the veracity of such a document.

“[I]n response to a properly supported motion for summary judgment, the responding party must set forth ‘specific facts’ showing that there is a genuine issue for trial.” Dana Commercial Credit Corp. v. Cukjati, 880 S.W.2d 612, 617 (Mo.App.1994). Unfortunately for Plaintiffs, they have again failed to assert any “specific facts” which sufficiently counter Gill’s evidence in support of his motion for summary judgment. Plaintiffs simply failed to present evidence showing how they relied upon the appraisal prior to Dueker’s letter of September 24, 1996, confirming Dueker’s intent to purchase the Lodge for $850,000.00. Our review of the letter reveals that it is devoid of a statement that the intent to purchase was contingent upon Plaintiffs’ review of an appraisal.

As in Point One, Plaintiffs have failed to provide material facts in their response to Gill’s summary judgment motion showing they relied upon the appraisal at issue prior to agreeing to purchase the Lodge. Gill has made a showing that there exist no genuine issues of material facts relating to Plaintiffs’ lack of reliance on the part of Gill’s appraisal, thereby negating an essential element of Plaintiffs’ case. Colgan v. Wash. Realty Co., 879 S.W.2d at 689. Point denied.

We will address Plaintiffs’ fourth point next, as it bears on our ruling on their third point. In their fourth point, Plaintiffs argue:

The trial court erred in denying Plaintiffs’ motion for leave to file First Amended Petition to add a count for fraudulent misrepresentation [against] Shain, the Millers and the Bank because it is an abuse of discretion in that the cause of action arose out of the same circumstances as the case presently pending before the court, the statute of limitations had not run, final judgment had not been enter[e]d, and Plaintiffs did not have the facts available to them at the time of the original filing of the case to bring the count at that time.

In our analysis we will first take up Plaintiffs’ contention that the statute of limitations had not run on their First Amended Petition to add a count for fraudulent misrepresentation against the Bank, Shain and the Millers (collectively “Defendants”). Defendants argue that the five year statute of limitations for fraud had already run at the time that Plaintiffs filed their First Amended Petition on September 24, 2003, because the limitations period began accruing in September of 1996 when Dueker first received the spreadsheet and became suspicious of the transaction. Even assuming, arguendo, that the limitations period began accruing in September of 1996, the motion to add a count for fraudulent misrepresentation was timely because it related back to the filing of the initial petition on August 9, 2001.

Rule 55.33(c) sets out that when an amendment “arose out of the conduct, transaction, or occurrence set forth ... in the original pleading the amendment relates back to the date of the original pleading.” “This rule abrogates the old ‘same evidence’ and ‘theory of law tests in favor of the ‘conduct, transaction, or occurrence’ test.” Johnson v. GMAC Mtg. Corp., 162 S.W.3d 110, 117 (Mo.App.2004). “‘The language, ‘conduct, transaction or occurrence,’ as used in Rule 55.33(c), is accorded broad and liberal construction.’ ” Id. (quoting Mogley v. Fleming, 11 S.W.3d 740, 750 (Mo.App.1999)); see also Koerper & Co. v. Unitel Int’l, Inc., 739 S.W.2d 705-06 (Mo. banc 1987).

Having found that the statute of limitations had not run on Plaintiffs’ count for fraudulent misrepresentation, we must now address whether it was an abuse of discretion for the trial court to deny Plaintiffs’ motion for leave to file their First Amended Petition. See Moore v. Firstar Bank, 96 S.W.3d 898, 903 (Mo.App.2003).

Rule 55.33(a) instructs us that a petition may be amended by leave of the court, and that such “leave shall be freely given when justice so requires.” The right to amend a pleading, however, is not absolute. Vickers v. Progressive Cas. Ins. Co., 979 S.W.2d 200, 205 (Mo.App.1998). “Factors that should be considered in deciding whether to allow leave to amend a petition are: (1) hardship to the moving party if leave is not granted; (2) reasons for failure to include any new matter in earlier pleadings; (3) timeliness of the application; (4) whether an amendment could cure the inadequacy of the moving party’s pleading; and (5) injustice resulting to the party opposing the motion, should it be granted.” Moore, 96 S.W.3d at 904.

In this context, “[t]he denial of an amendment is presumed correct and the burden is on the proponent to show that the trial court clearly and palpably abused its discretion.” Vickers, 979 S.W.2d at 205. “Judicial discretion is abused when a ruling is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” Rhodus v. Wheeler, 927 S.W.2d 433, 436 (Mo.App.1996). “The determination of whether a circuit court abused its discretion in denying leave to amend is best measured in terms of whether justice is furthered or subverted by the course taken.” Baker v. City of Kansas City, 671 S.W.2d 325, 329 (Mo.App.1984).

This Court has explained that “[t]he recognized purpose of allowing amendments to pleadings is to allow a party to present evidence that was overlooked or unknown when the original pleading was filed without changing the original cause of action.” Moore, 96 S.W.3d at 904. See also Trans World Airlines, Inc. v. Assoc. Aviation Underwriters, 58 S.W.3d 609, 624 (Mo.App.2001). Further, we held in Moore, that it was not an abuse of discretion to deny plaintiffs proposed second amended petition because, “the new claims [were] based entirely on the facts and allegations in the original petition, only under new causes of action.” Moore, 96 S.W.3d at 904.

Here, as in Moore, “Plaintiff[s] ... failed to show any reason why the matters were not included in the original petition.” Id. While Plaintiffs’ new claim is not based entirely on the facts and allegations in the original petition, the amended pleading has failed to include any facts unknown at the time the original pleading was filed on August 9, 2001, to-wit:

38. That during or about September 1996 Defendants Earl Miller and Juanita Miller, being desirous of selling to Plaintiffs certain property known as Miller’s Motor Lodge in Butler County, Missouri, did with intent to deceive and defraud Plaintiffs represent to Plaintiffs that the Lodge generated gross revenues during 1995 of $251,600.00 and had expenses of $117, 765.60 and supported debt service, both principal and interest, of $90,371.50.
39. That Defendants Gene Shain and First Midwest Bank of Poplar Bluff prepared the spreadsheet representing the above-referenced 1995 monthly cash flow of Miller’s Motor Lodge with the intent to deceive and defraud Plaintiffs.
41. In truth and as Defendants well knew, the representations were false and the Lodge did not generate gross income of $251,600.00 in 1995.
42. In fact, Miller’s Motor Lodge’s gross revenues for 1995 were $184,301.00, for 1994 were $180,662, for 1993 were $161,12X [sic], and for 1992 were $145,472.

While Plaintiffs contend they had no evidence that the representations in the spreadsheet were not supported by the income and expenses of the Lodge, and that they could not support a count for fraudulent misrepresentation against Defendants until they received the Millers’ tax returns through discovery, the record reveals otherwise.

Dueker was told upon receipt of the spreadsheet in September of 1996 that it was prepared by an employee of the Bank. Later, Dueker noted that when he received the Lodge’s sales tax figures from the Missouri Department of Revenue, they were inconsistent with the income on the spreadsheet. Furthermore, Plaintiffs were suspicious of wrongdoing on the part of all Defendants when they filed their initial petition. Plaintiffs plead additional facts and allegations in their amended petition, but do not provide sufficient reasons for not including these facts and allegations in their initial petition filed two years previously and almost seven years since the events under consideration. Moore, 96 S.W.3d at 904. It appears from the face of the record that only when faced with summary judgment did Plaintiffs seek to amend their original petition. “Liberal amendment rules are not meant to be employed as a stratagem of litigation; rather, the purpose of the grant of an amendment is to allow a party to assert a matter unknown or neglected from inadvertence at the time of the original pleading.” Estate of Anderson v. Day, 921 S.W.2d 35, 39 (Mo.App.1996).

Applying the five factors related above, we do not find that the trial court’s actions amount to an abuse of discretion. Sill v. Burlington N. R.R., 87 S.W.3d 386, 395 (Mo.App.2002). Here, by denying leave to amend, there is no indication that justice is subverted rather than furthered. Baker, 671 S.W.2d at 329. The amended petition “did not present any new facts or circumstances that could not have been raised earlier.” Vickers, 979 S.W.2d at 205. The trial court’s denial of Plaintiffs’ motion to amend their petition was not “so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” Rhodus, 927 S.W.2d at 436. Point denied.

Finally, in Plaintiffs’ third point on appeal they argue the following:

The trial court erred in granting summary judgment in favor of all Defendants on Count III of Plaintiffs’ petition for civil conspiracy because there remains genuine issues of material fact in dispute regarding whether the circumstances show an agreement among Defendants to do an unlawful act and Defendants are not entitled to judgment as a matter of law in that two or more of the Defendants had a meeting of the minds to accomplish enticing Plaintiffs to purchase Miller’s Motor Lodge for a value greater than its fair market value by providing them with a misrepresenta-tive appraisal and other actions, thereby damaging Plaintiffs.

“A ‘civil conspiracy’ is an agreement or understanding between persons to do an unlawful act, or to use unlawful means to do a lawful act.” Oak Bluff Partners, Inc. v. Meyer, 3 S.W.3d 777, 780-81 (Mo. banc.1999). “A conspiracy is not actionable in its own right because it does not exist apart from the statement of an underlying claim.” Roth v. La Societe Anonyme Turbomeca France, 120 S.W.3d 764, 777 (Mo.App.2003). “The unlawful acts done in pursuit of a conspiracy give rise to the action. Proving the conspiracy concerns only the co-conspirators’ liability as joint tortfea-sors.” Id. at 778. If the unlawful acts alleged to be an element of the conspiracy fail as a matter of law then so does the claim for conspiracy. Oak Bluff, 3 S.W.3d at 781.

In his motion for summary judgment, Gill maintained that because “conspiracy is not an independent cause of action” and he was entitled to summary judgment on the underlying claims, i.e. Counts I and II, he was entitled as a matter of law to summary judgment on Count III. In response, Plaintiffs argued that because “[a] civil conspiracy can be proven by circumstantial evidence” summary judgment was not appropriate.

Plaintiffs are incorrect. Their civil conspiracy claim is simply not actionable in its own right and because their underlying claims have failed to survive summary judgment, as detailed above, Plaintiffs’ civil conspiracy claim fails as a matter of law. Oak Bluff, 3 S.W.3d at 781; Roth, 120 S.W.3d at 777. Point denied.

The judgment is affirmed.

GARRISON, J., and BATES, C.J.

      . In his appraisal, Gill explained "that comparable sales for a lodging facility of this type are very difficult to locate in a small rural community. Therefore the Sales Comparison Approach is not applicable to the assignment.”

      .Under cross-examination the following questions were posed to Dueker during his deposition:
      Q. You had in fact arrived at an agreement for purchase price with the seller on September 24, 1996, correct?
      A. That is correct.
      Q. And you did not make that agreement contingent upon an appraisal?
      A. Not in writing, no.
      Q. And you didn’t tell Mr. Miller that verbally, did you?
      A. No.

      . Gill’s appraisal was ordered by the Bank in order to determine how much of the purchase price the bank should finance.

      . Dueker’s partner, Shannon, and Dueker’s wife, Patricia A. Dueker, essentially testified they relied on Dueker’s assessment of the worth and economic viability of the Lodge.

      . See also Williams v. Mercantile Bank, 845 S.W.2d 78, 84-5 (Mo.App.1993) (holding that the plaintiffs’ fraud claim failed where it was premised upon a misrepresentation made after the transaction was entered into).

      . We note that professional negligence, without the requirement of proving privity of contract, has been recognized as an actionable tort in this jurisdiction in Westerhold v. Carroll, 419 S.W.2d 73 (Mo.1967), and Aluma Kraft Mfg. Co. v. Elmer Fox & Co., 493 S.W.2d 378 (Mo.App.1973). Further this Court has recognized "there is some general authority that commercial real estate appraisers may be held liable for negligent misrepresentation.” First Nat’l Bank of Sikeston v. Goodnight, 721 S.W.2d 122, 124 (Mo.App.1986).

      ."In certain cases, we have held that a third party, although not in privity, has a claim for the alleged negligence of a professional who renders an opinion upon which the third person relies to its detriment." Miller, 14 S.W.3d at 134; see also Westerhold, 419 S.W.2d at 81. "The determination whether in a specific case the defendant will be held liable to a third person not in privily is a matter of policy and involves the balancing of various factors, among which are: (1) the extent to which the transaction was intended to affect the plaintiff; (2) the foreseeability of harm to him; (3) the degree of certainty that the plaintiff suffered injury; (4) the closeness of the connection between the defendant's conduct and the injury suffered; (5) the moral blame attached to defendant’s conduct; and (6) the policy of preventing future harm. Each and every one of the above elements are [sic] not absolutely necessary to authorize an action to be maintained.” Miller, 14 S.W.3d at 134.

      . "A maximum of ten years is given for the discovery of the fraud and suit must be filed within five years after the discovery of the fraud....” Berry v. Dagley, 484 S.W.2d 182, 184 (Mo.1972).

      . Plaintiffs' fraud claim appears to be premised on the fact that the spreadsheet figures misrepresented the income and, thus, the value of the Lodge.

      . Rule references are to Missouri Court Rules (2005), unless otherwise set out.


source: Caselaw Access Project

author: THOMAS H. NEWTON, Judge.

license: Public Domain

text:
    Tina O’BANION, Respondent, v. Travis Dee WILLIAMS, Appellant.
    No. WD 64981.
    Missouri Court of Appeals, Western District.
    Nov. 8, 2005.

      Corey M. Swischer, Nevada, MO, for Appellant.
    Neal R. Quitno, Nevada, MO, for Respondent.
    Before: HAROLD L. LOWENSTEIN, P.J., JOSEPH M. ELLIS, and THOMAS H. NEWTON, JJ.
   THOMAS H. NEWTON, Judge.

Mr. Travis Williams files this appeal from a judgment granting Ms. Tina O’Ban-ion’s petition for a full order of child protection. At issue is whether the circuit court had jurisdiction and whether there was sufficient evidence of emotional abuse to support the circuit court’s findings. We dismiss the appeal as moot.

In November 2004, Ms. O’Banion filed for the protection of her three minor children, only one of whom, the youngest, had been fathered by Mr. Williams. She alleged in the petition that Mr. Williams was an adult household member and that he had inflicted emotional abuse on the children by yelling and cursing at her over the phone while the children were visiting in his home. She also alleged that he refused her request to return the children to her and that, there was a danger to the chil-, dren because people were smoking in Mr. Williams’s home. Apparently, two of the children áre disabled and have asthmatic conditions. Before testimony was taken during the protection hearing, Mr. Williams filed an oral motion to dismiss, challenging the circuit court’s jurisdiction because he was not an adult household member and there had been no stalking allegations in the petition. The circuit court ascertained that Mr. Williams was the father of one of the children and denied the motion to dismiss.

According to Ms. O’Banion’s testimony, Mr. Williams called her a “lazy whore” on the phone and yelled and cursed at her while she could hear the children in the room with him.' There was no evidence that Mr. Williams was a household member or that smoking was occurring in the children’s presence. Ms. O’Banion testified that the children were crying when she picked them up some time after the phone conversation. She was accompanied by police officers and had obtained an ex parte order of child protection when she arrived at Mr: Williams’s home. Ms. O’Banion also testified that one child, not fathered by Mr. Williams, was taken to the emergency room for an asthma attack later that day.

The circuit court entered its judgment on December 8, 2004, and it was made effective until June 7, 2005. Mr. Williams claims on appeal that the circuit court lacked jurisdiction to hear the petition because he was never a member of the children’s household. He also claims that there was no evidence presented that the acts complained of actually caused emotional abuse.

As an initial matter, we must determine whether the case is moot. If there is no justiciable controversy, we lack jurisdiction to consider the appeal and may dismiss sua sponte. State ex rel. Reed v. Reardon, 41 S.W.3d 470, 473 (Mo. banc 2001). “[A] cause of action 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.” Id. (internal quotations and citation omitted). The Judgment/Full Order of Protection provided that it would expire in June 2005. There is no indication in the record that it was extended, so it has expired by the lapse of time. The same issue faced the court in In the Interest of A.T.H., 37 S.W.3d 423, 426 (Mo.App.S.D.2001). That court decided to apply an exception to the mootness doctrine, finding that application of the Child Protection Orders Act, §§ 455.500-455.538, was a matter of general public interest, the factual circumstances from which the issues arose could be of a recurring nature, and the issues raised could evade appellate review due to the time involved in perfecting an appeal. A.T.H., 37 S.W.3d at 426.

In this case, the issues raised involve an application of the act that has previously been considered at some length by this court. Reller v. Hamline, 895 S.W.2d 659 (Mo.App. W.D.1995). In Reller, the court determined that the definition of “adult household member” in section 455.501(2) imposes a residence requirement and that the circuit court lacked jurisdiction to enter a child protective order against a former boyfriend who was not and had never been a resident of the child’s household. Id. at 661-62. There are only two differences between this case and Reller: (i) Ms. Hamline had altered the form petition, effectively stating that the respondent was not “an adult household member,” id. at 662, and (ii) Ms. Hamline had alleged that respondent emotionally abused the child by stalking him, id. at 659 (A.T.H. court observes that statute changed after Reller was decided and that non-household members who stalk are now subject to the court’s jurisdiction under the act, 37 S.W.3d at 426-27). Here, Ms. O’Banion did claim that Mr. Williams was an adult household member, but only alleged emotional abuse. These are differences without relevance to our mootness analysis, because we would simply be repeating the Reller court’s determination that there is a residence requirement where child abuse is alleged for the circuit court to exercise jurisdiction.

Because the child protection order has expired, the case is moot and there is no reason for us to apply an exception to the mootness doctrine. We therefore dismiss the case as moot.

HAROLD L. LOWENSTEIN, P.J., and JOSEPH M. ELLIS, J„ concur.


author: PER CURIAM.

text:
    Cindy A. WILHELM, Respondent, v. Donald L. WILHELM, Jr., Appellant.
    No. WD 64775.
    Missouri Court of Appeals, Western District.
    Nov. 8, 2005.
    Seth D. Shumaker, Kirksville, MO, for Appellant.
    Cynthia A. Suter, Moberly, MO, for Respondent.
    Before VICTOR C. HOWARD, JAMES M. SMART, JR., and THOMAS H. NEWTON, JJ.
   Order

PER CURIAM.

Donald L. Wilhelm, Jr. appeals the trial court’s judgment ordering him to pay $1,500 to Cindy A. Wilhelm for her attorney’s fees and expenses on appeal of the judgment that dissolved their marriage. Having carefully considered the contentions on appeal, we find no grounds for reversing the decision. Publication of a formal opinion would not serve jurisprudential purposes or add to understanding of existing law. The judgment is affirmed. Rule 84.16(b).


text:
    Chrystal D. LUNDE, Appellant, v. Carol A. SCARDACCI, Respondent.
    No. WD 64457.
    Missouri Court of Appeals, Western District.
    Nov. 8, 2005.
    As Modified Nov. 28, 2005.

      David H. Bony, Kansas City, MO, for appellant.
    Martin M. Montemore, Howard D. Lay, and Matthew W. Geary, Kansas City, MO, for respondent.
    Before: HOWARD, P.J., and SMART and NEWTON, JJ.
   PER CURIAM.

Chrystal Lunde (“Plaintiff’) appeals from the trial court’s judgment setting aside the damages portion of a default judgment entered against Carol Scardacci (“Defendant”) in Plaintiffs personal injury lawsuit. For the reasons set forth below, we reverse the trial court’s judgment.

Background

The following chronology of relevant proceedings before the trial court aids in our resolution of this appeal.

On September 12, 2000, Plaintiff was riding as a passenger in a car that was rear-ended by Defendant. After the collision, Plaintiff observed that Defendant appeared intoxicated. The police arrived, and Defendant was arrested for driving while intoxicated. Plaintiff, who complained of neck, back, and shoulder pain, went to the hospital by ambulance. Plaintiff subsequently suffered from severe neck pain and headaches and received treatment from a chiropractor, who then referred Plaintiff to a neurosurgeon.

On May 31, 2002, Plaintiff filed a petition for personal injuries in the Circuit Court of Jackson County, seeking both actual and punitive damages from Defendant. The sheriff served Defendant with the petition and summons on or about June 9, 2002. When Defendant failed to answer within thirty days of service, as required by Rule 55.25, Plaintiff moved for a default judgment under Rule 74.05(a). Plaintiff sent Defendant notice of the October 18, 2002 default hearing, but Defendant did not appear.

On October 18, 2002, the trial court conducted a default hearing. Plaintiff testified about the collision and presented evidence of her resulting damages.

On October 22, 2002, the trial court entered a default judgment against Defendant for $150,000 in actual damages and $50,000 in punitive damages.

Defendant filed for bankruptcy shortly after entry of the default judgment. Thereafter, Defendant’s insurer became aware of the default judgment against Defendant, and on December 17, 2002, Defendant filed a Motion to Set Aside Default Judgment, in which she alleged, in relevant part:

7.Defendant set the papers aside and mistakenly believed that her insur-anee company would also be served with the lawsuit, papers, or at least would be aware of the lawsuit because plaintiffs attorney had been communicating with it.

8. This Motion to Set Aside Default Judgment is filed well within one (1) year of the entry of default judgment dated October 18, 2002.

9. Defendant’s mistake was not intended to impede the judicial process. The undersigned has only recently been retained and is promptly filing this Motion to address the default entered against defendant.

10. The interests of justice require that defendant be given an opportunity to answer the Petition, attempt to resolve this matter, and, if unsuccessful at resolution, to proceed to trial on the merits of liability and damages. Plaintiff filed suggestions in opposition to Defendant’s motion, in which she argued that Defendant’s motion to set aside was inadequate under the pleading requirements of Rule 74.05(d), because Defendant did not state any facts constituting a meritorious defense.

On January 8, 2003, the trial court entered an “ORDER ” overruling Defendant’s Motion to Set Aside.

On April 30, 2003, Defendant filed a “Motion for Reconsideration of Defendant’s Motion to Set Aside Default Judgment” and requested a hearing on her motion. Plaintiff again filed suggestions in opposition.

On May 12, 2003, the trial court entered an “ORDER ” overruling Defendant’s Motion for Reconsideration and denying her request for a hearing.

On June 20, 2003, Defendant filed a notice of appeal from the trial court’s May 12, 2003 order with this court.

On July 10, 2003, this court wrote counsel a letter stating, “It appears the order of May 12, 2003 was not ‘[a] writing signed by the judge and denominated “judgment”!’] .... [Rule 74.01(a) ]; City of St. Louis v. Joseph Hughes, 950 S.W.2d 850 (Mo.1997).” We requested suggestions as to why the appeal should not be dismissed. No suggestions were filed.

On July 16, 2003, Defendant’s counsel wrote Judge Roldan, enclosing this court’s July 10, 2003 letter and stating, “We are unable to appeal your Order of May 12, 2003 because it is not a final, appealable judgment.” Defendant did not specifically request the trial court denominate the order a “judgment” so that she could properly appeal from it. Rather, she again requested a hearing on her Motion to Set Aside and Motion for Reconsideration.

On August 4, 2003, this court entered an Order dismissing Defendant’s appeal for lack of a final, appealable “judgment” pursuant to section 512.020, RSMo 2000, and Rule 74.01. On August 22, 2003, this court issued a mandate dismissing Defendant’s appeal from the “Order” denying her Motion for Reconsideration. .

Nothing further appears on the trial court’s docket until February 19, 2004, when Plaintiff filed her “Request for Writ of Execution and/or Writ of Garnishment.” The writ was served on Defendant’s insurer on February 23, 2004.

On March 17, 2004, Defendant filed a motion entitled, “MOTION BY DEFENDANT TO SET ASIDE INTERLOCUTORY JUDGMENT OR IN THE ALTERNATIVE TO MAKE INTERLOCUTORY JUDGMENT FINAL TO PERMIT AN APPEAL AS WELL AS TWO DENIALS OF PRIOR MOTIONS TO SET ASIDE BY AN ‘ORDER’, AND FOR FINDINGS OF FACTS AND CONCLUSIONS OF LAW.” On March 31, 2004, Defendant’s insurer also moved to quash the garnishment. Thereafter, Plaintiff filed suggestions in opposition, and Defendant filed supplemental suggestions in support.

On August 5, 2004, the trial court summarily entered a “JUDGMENT/ORDER ” sustaining both Defendant’s Motion to Quash filed on March 31, 2004, and Defendant’s March 17, 2004 Motion to Set Aside as to damages but not liability.

This appeal follows.

“Interlocutory” Judgment

As a preliminary matter, we consider a matter regarding the default judgment that Defendant has raised. It appears from the October 22, 2002 Default Judgment in the record on appeal that it was originally titled “INTERLOCUTORY JUDGMENT,” but Judge Roldan crossed out and initialed “INTERLOCUTORY.” However, Judge Roldan did not cross out “Interlocutory” before the word “Judgment” in the body of the judgment. In the current appeal, Defendant has suggested in correspondence to this court that, as a result of the characterization of the judgment as “Interlocutory’ in the body of the judgment, we do not have a final judgment for purposes of appeal. After receiving Defendant’s correspondence and a response from Plaintiff, this court accepted the appeal and asked the parties to address the issue in their briefs. Plaintiff has not briefed the finality issue. Defendant discusses the interlocutory nature of the default judgment with regard to the timing of her March 17, 2004 Motion to Set Aside, but she does not argue that it deprives this court of jurisdiction for lack of a final judgment.

We must look at the judgment as a whole. The default judgment substantively disposed of all parties and all claims. See St. Joseph Ambulatory Surgery Ctr., L.P. v. Smith, 140 S.W.3d 619, 620 (Mo.App. W.D.2004) (quoting Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997), in explaining that “A judgment is final, and thus appealable, if it ‘resolves all issues in a case, leaving nothing for future determination.’ ”). There is nothing “interlocutory” about the default judgment in this case. To hold otherwise would exalt form over substance. By crossing out and initialing “Interlocutory” in the heading of the default judgment, Judge Roldan clearly intended it to be final; it appears a mere oversight that he did not also cross out “Interlocutory” in the body of the judgment.

Moreover, the allegedly “Interlocutory” default judgment is not the “judgment” Plaintiff has appealed from. The judgment appealed from here is the August 5, 2004 “JUDGMENT/ORDER ” setting aside the default judgment (interlocutory or not) as to damages, and there is no issue regarding the finality of that judgment. Defendant’s March 17, 2004 Motion to Set Aside, which the trial court granted with regard to damages, was filed after the default judgment became final. Thus, “it is treated as an' independent proceeding, separate and apart from the underlying judgment itself. In such a case, the trial court’s order granting or denying the motion to set aside default judgment is itself (assuming that all other prerequisites of appellate jurisdiction are met) a separately appealable judgment.” Popular Leasing USA, Inc. v. Universal Art Corp. of New York, 57 S.W.3d 875, 878 (Mo.App. E.D.2001) (citations omitted).

Timeliness of Motion to Set Aside Default Judgment

Before we can reach the merits of the trial court’s judgment setting aside the default judgment, we must consider whether the trial court could properly consider Defendant’s March 17, 2004 motion to set aside as timely under the requirements of Rule 74.05(d). Plaintiff argues in her first point on appeal that the trial court erred in granting Defendant’s March 17, 2004 Motion to Set Aside the Default Judgment, because the motion was not filed in reasonable time or within a year of the default judgment. We agree.

Rule 74.05(d), which is the focus of this appeal, provides as follows:

When Set Aside. Upon motion stating facts constituting a meritorious defense and for good cause shown, an interlocutory order of default or a default judgment may be set aside. The motion shall he made within a reasonable time not to exceed one year after the entry of the default judgment. Good cause includes a mistake or conduct that is not intentionally or recklessly designed to impede the judicial process. An order setting aside an interlocutory order of default or a default judgment may be conditioned on such terms as are just, including a requirement that the party in default pay reasonable attorney’s fees and expenses incurred as a result of the default by the party who requested the default.

(Emphasis added.)

Defendant does not dispute that her March 17, 2004 Motion to Set Aside was filed more than a year after the October 22, 2002 Default Judgment. Nevertheless, Defendant argues that her March 17, 2004 Motion to Set Aside — the motion ultimately granted by the trial court — was timely under Rule 74.05(d), because it “renewed” or “was directed at” her original, December 17, 2002 Motion to Set Aside, which was filed only two months after the default judgment and which had never been denied by a final, appealable judgment. In so arguing, Defendant reiterates the above chronology of events leading up to the filing of her March 17, 2004 Motion to Set Aside. Specifically, Defendant claims:

In this case, the Trial Court essentially modified or set aside its January 8, 2003 and May 12, 2003 Orders[, which reflected the trial court’s denial of Defendant’s December 17, 2002 Motion to Set Aside and the Motion for Reconsideration thereof], when it entered its August 5, 2004 Judgment setting aside the Interlocutory Judgment as to damages .... The fact that the Motion to Set Aside was filed on March 17, 2004 is of no consequence. The March 17, 2004 Motion was directed at the January 8, 2003 and the May 12, 2003 Orders, which addressed motions that were clearly filed within one year of the Interlocutory Judgment.

Defendant also contends that because the trial court issued only “Orders” denying her December 17, 2002 Motion to Set Aside and April 30, 2003 Motion for Reconsideration, which she tried to appeal from but this court dismissed for lack of a final “judgment,” the trial court retained jurisdiction to reconsider its rulings in those orders. In support of her argument, Defendant claims that she asked the trial court by letter to enter a final judgment and that her March 17, 2004 Motion to Set Aside asked in the alternative for the trial court to denominate the “Order” a “Judgment,” but the trial court chose instead to reconsider the issue and issue a judgment setting aside the default judgment.

We disagree with Defendant’s argument that the fact that the Motion to Set Aside was filed on March 17, 2004, is of no consequence. Even if the trial court retained jurisdiction to consider Defendant’s second, March 17, 2004 Motion to Set Aside, the above-emphasized time limits in Rule 74.05(d) for bringing a motion to set aside a default judgment still applied, so any motion to set aside the default judgment brought thereunder had to “be made within a reasonable time not to exceed one year after the entry of the default judgment.”

Defendant’s first motion to set aside the default judgment (filed December 17, 2002) was deficient under the pleading requirements of Rule 74.05(d), because it stated only that Defendant had good cause for failing to answer Plaintiffs petition, without any supporting affidavits. The motion did not state any facts constituting a meritorious defense. As we explained in McElroy, 156 S.W.3d at 403:

“Under the explicit terms of Rule 74.05(d), a motion to set aside a default judgment must state facts constituting both a meritorious defense and good cause for the default. When deciding whether a moving party has complied with the pleading requirements of Rule 74.05(d), courts examine the allegations set forth in the motion to set aside the default judgment and consider the contents of any accompanying materials such as affidavits, exhibits, and proposed answers.”

(Quoting Reed v. Reed, 48 S.W.3d 634, 640 (Mo.App. W.D.2001) (internal quotation marks and citation omitted)). Defendant never sought leave to amend or supplement her first motion to set aside, and she did not further pursue having the trial court denominate the order denying her first motion to set aside a “judgment,” so she could appeal. Instead, on March 17, 2004, a year and three months after filing her first motion to set aside, Defendant filed a second motion to set aside. This second motion cured the pleading deficiencies of Defendant’s first motion to set aside by including the same allegations of good cause for her failure to respond to Plaintiffs petition, with extensive affidavits and supporting exhibits, in addition to facts constituting a meritorious defense. Defendant seeks to have her second motion to set aside deemed timely because she filed her first motion to set aside within a reasonable time not exceeding one year as required by Rule 74.05(d).

Defendant cites no authority for her argument that this second motion was timely under Rule 74.05(d) because it “renewed” or “was directed at” her fatally flawed December 17, 2002 motion to set aside, which the trial court had not denied by a final and appealable judgment. We found no provision or case law allowing a motion to set aside brought outside the one-year time limit to renew, for filing deadline purposes under Rule 74.05, a previous motion to set aside that was brought within the one-year time limit and denied by an order of the trial court. Defendant’s arguments suggest that as long as she filed a motion to set aside within the time allowed by Rule 74.05(d), and that motion has not been denied by a final judgment of the trial court, she can infinitely file additional motions to set aside until such time as a motion to set aside is granted or denied by a final and appealable judgment of the trial court. Put another way, Defendant suggests she had infinite bites at the apple until such time as the trial court entered a final and appealable judgment denying her initial, December 17, 2002 Motion to Set Aside, which was insufficient to invoke a claim for relief under Rule 74.05(d) in the first place. Such a result is contrary to the time limits of Rule 74.05(d) and to the spirit of the rule in promoting timeliness in arriving at a final conclusion.

By the plain terms of Rule 74.05(d), any motion to set aside a default judgment must be made not more than one year after the default judgment is entered. The trial court entered its default judgment against Defendant on October 22, 2002, and Defendant did not file a motion sufficient to allow the relief sought under Rule 74.05 within the one-year time limit. Because Defendant’s March 17, 2004 motion to set aside was not filed within one year after entry of the default judgment, the trial court should have denied it as untimely.

In so ruling, we do not express any opinion as to the propriety of bringing a second motion to set aside within the one-year time limitation in order to correct deficiencies in an initial motion to set aside. Such a successive motion could still be denied as not being made within a “reasonable time.” Additionally, our opinion does not address the situation where a party moves to amend a timely filed but defective motion after the time limitation.

Because Plaintiffs first point on appeal is dispositive, we need not address her remaining points challenging Defendant’s allegations of good cause and meritorious defense raised in Defendant’s March 17, 2004 Motion to Set Aside.

Conclusion

The trial court erred in granting Defendant’s March 17, 2004 Motion to Set Aside, because it was not filed within a year of the October 22, 2002 Default Judgment as required by Rule 74.05(d). Accordingly, we reverse the judgment setting aside the damages portion of the default judgment entered against Defendant.

      . Plaintiff's counsel was courteous in serving Defendant with notice of the default hearing. In fact, there were actually two notices sent because the default hearing date was changed. " 'Once properly served, a party who defaults is charged with notice of all subsequent proceedings in the case. Therefore, a party in default has no right to notice of the default proceedings.' " McElroy v. Eagle Star Group, Inc., 156 S.W.3d 392, 397 n. 3 (Mo.App. W.D.2005) (quoting Bredeman v. Eno, 863 S.W.2d 24, 26 (Mo.App. W.D.1993) (internal citations omitted)).

      . We note that Judge Roldan signed the Default Judgment on October 18, 2002, which is the date the parties refer to for its entry, but a judgment is not considered entered until "a writing signed by the judge and denominated 'judgment' or ‘decree’ is filed.” Rule 74.01(a). The Default Judgment was filed and, therefore, entered, on October 22, 2002.

      . Defendant’s bankruptcy filing triggered an automatic stay under 11 U.S.C. § 362 (2000). On October 30, 2002, after receiving notice of Defendant’s bankruptcy filing, the trial court separately entered an order that "this cause is STAYED until further notice of a change or resolution of the federal [bankruptcy] case[.]” Nothing in the record on appeal indicates that either stay has been lifted.
      Defendant mentions the effect of the trial court's stay and the automatic bankruptcy stay only with regard to her argument that her December 17, 2002 motion to set aside was filed within "a reasonable time” under Rule 74.05(d), because Plaintiff could not take any action to enforce her judgment. In support, Defendant cites Hopkins v. Mills-Kluttz, 77 S.W.3d 624, 626 (Mo.App. E.D.2002), which provides that in determining whether the time in which a party seeks to set aside a default judgment is reasonable, the court will "look at the underlying circumstances surrounding the delay. [The court] considers] whether the delay resulted in substantial harm to plaintiff and whether anything happened during the period of the delay that would adversely affect plaintiff's ability to pursue her cause of action on the merits.” However, as explained later in our opinion, we need not consider whether Defendant’s December 17, 2002 motion to set aside was filed within a reasonable time under Rule 74.05(d). Accordingly, we need not consider any prejudice, or lack thereof, to Plaintiff by the timing of Defendant’s December 17, 2002 Motion to Set Aside.

      . This is not a case involving multiple defendants where, in accordance with section 511.130, RSMo 2000, “even though a default judgment against one defendant in a multi-defendant case might be ‘final’ in virtually every other sense, it nevertheless is held in abeyance and does not truly become final until the claims against the other defending parties are disposed of.” Beckmann v. Miceli Homes, Inc., 45 S.W.3d 533, 539 (Mo.App. E.D.2001).

      . Reed was overruled, in part, on other grounds by McElroy, 156 S.W.3d at 401.

      . Defendant's failure to immediately pursue a denomination of the order denying her first motion to set aside as a final "judgment” for purposes of appeal could, perhaps, be explained by the fact that her December 17, 2002 motion to set aside did not meet the pleading requirements of Rule 74.05(d), in that she did not state any facts constituting a meritorious defense, so her chances of prevailing on appeal were slim.


text:
    Danny DRENNEN, Appellant, v. STATE of Missouri, Respondent.
    No. ED 86037.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 8, 2005.
    Nancy A. McKerrow, 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.

Danny Drennen (“Movant”) appeals the judgment of the motion court denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing based on his plea of guilty to one count of possession of a controlled substance. Movant was sentenced to seven years’ imprisonment. We affirm.

We have reviewed the briefs of the parties and the record on appeal and no error of law appears. The trial court’s judgment was supported by substantial evidence on the record. No precedential or jurisprudential purpose would be served by an opinion reciting the detailed facts and restating the general principles of law. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order affirming the judgment pursuant to Rule 84.16(b).


text:
    In the Interest of A.B.H. & M.J.H.
    No. ED 85954.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 8, 2005.
    Adrienne Leah Schaffer-James, Clayton, MO, for appellant.
    Barbara L. Greenberg, Clayton, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

T.M.C. appeals from the trial court’s judgment terminating her parental rights to her children, A.B.H. and M.J.H. We affirm.

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


text:
    BUTLER SUPPLY AND COMMUNICATIONS CO., Appellant, v. CITIZENS BANK OF NEWBURG, ABP Corporation, and William C. Morgan, Trustee, Respondents.
    No. ED 85610.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 8, 2005.

      Mitchell D. Jacobs, Clayton, MO, for appellant.
    W.H. Thomas, Jr., Emily Woodward, Thomas, Birdsong & Mills, P.C., Rolla, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J. and KENNETH M. ROMINES, J.
   OPINION

PER CURIAM.

Appellant, Butler Supply and Communications Co. (“Butler”), appeals the judgment of the Circuit Court of Franklin County in favor of Respondents, Citizens Bank of Newburg (“Citizens Bank”), ABP Corporation (“ABP Corp.”), and William C. Morgan, Trustee (“Morgan”), on Butler’s petition to enforce a mechanic’s lien. We affirm.

Butler provides electrical supplies for construction projects. From September of 2002 through February 28, 2003, Butler provided materials at the request of J & C Electrical for the construction of a Comfort Inn in Pacific, Missouri (“the Comfort Inn property”). Specifically, the Comfort Inn property is located at 1320 Thornton Road, Pacific, Missouri.

J & C Electrical filed for bankruptcy at some point in 2003. Butler is currently owed a balance of $23,958.18 for materials used in the construction of the Comfort Inn. ABP Corp. is the owner of the Comfort Inn property. Ashok (“Andy”) Patel is ABP Corp.’s registered agent.

In May of 2003, Butler filed a notice of mechanic’s lien (“the notice”) with the recorder of deeds of Franklin County. On June 10, 2003, Butler filed a mechanic’s lien (“the lien”) with the circuit clerk of Franklin County. Both the notice and the lien contained the address, real estate description, and owners of property different from the Comfort Inn property. The tract of land described in the notice and the lien is owned by Kishor Patel, the brother of Andy Patel, and Kishor’s wife Renu Patel. There is no evidence in the record that Kishor and Renu Patel are connected in any way with the Comfort Inn property at issue in this case.

On September 17, 2003, Butler filed a petition requesting enforcement of the lien. On October 4, 2004, a bench trial was held. On October 6, 2004, the court entered a judgment denying Butler’s request to enforce the lien, because the requirements of sections 429.100, RSMo 2000 and 429.080 were not met. Additionally, the court denied Butler’s quantum meruit claim. Subsequently, Butler filed a motion for a new trial which was denied on November 15, 2004. This appeal by Butler followed.

In reviewing a bench-tried case, the judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976).

We will first address Butler’s fourth point on appeal.

In its fourth point on appeal, Butler maintains that the trial court erred in holding that it failed to comply with section 429.080, because the lien provided sufficient notice of the property description to enable anyone to protect its interests.

According to section 429.080, a lien filed with the circuit clerk shall contain “a true description of the property, or so near as to identify the same, upon which the lien is intended to apply, with the name of the owner or contractor, or both, if known to the person filing the lien.... ” Section 429.080.

Compliance with section 429.080 is a jurisdictional requirement for a party seeking enforcement of a mechanic’s lien. See State ex rel. Springfield Underground, Inc. v. Sweeney, 102 S.W.3d 7, 9-10 (Mo.banc 2003). If the filing related to the mechanic’s lien does not describe the land upon which improvements were made but instead describes an entirely different tract of land, then the description of the property does not suffice to meet the jurisdictional requirements of section 429.080. See id. at 9.

Butler’s counsel admitted at trial that the legal description of the property was incorrect, and that an incorrect owner’s name and property address were listed on the lien. The description of the property on the lien was for a tract of land completely distinct from the Comfort Inn property with different owners. Therefore, in light of the fact that the lien described a parcel of land entirely different than the Comfort Inn property, the trial court did not err in finding that the jurisdictional requirements of section 429.080 were not met. Point denied.

Because the jurisdictional requirements of section 429.080 were not met, we need not address the first, second and third points on appeal in which Butler asserts that the trial court erred in finding that it failed to meet additional requirements set out in Chapter 429.

Based upon the foregoing, we affirm the judgment of the trial court.

      . On June 24, 2003, Citizens Bank filed a deed of trust covering the Comfort Inn property. Morgan is the trustee on that deed of trust.

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


author: GLENN A. NORTON, C. J.

text:
    Billy MILLER, Claimant/Appellant, v. HUMPHREY’S RESTAURANT & TAVERN and Division of Employment Security, Respondents.
    No. ED 86830.
    Missouri Court of Appeals, Eastern District, Division Five.
    Nov. 8, 2005.

      Cynthia A. Quetsch, Jefferson City, MO, for respondent.
    Billy Miller, Florissant, MO, Appellant acting pro se.
    Humphrey’s Restaurant & Tavern, St. Louis, MO, Respondent acting pro se.
   GLENN A. NORTON, C. J.

Claimant Billy Miller appeals the decision of the Labor and Industrial Relations Commission (Commission) regarding his unemployment benefits. Because Claimant’s notice of appeal is untimely, we dismiss the appeal.

Claimant sought unemployment benefits after his separation from employment with Humphrey’s Restaurant (Employer). A deputy awarded Claimant unemployment benefits, and Employer appealed to the Appeals Tribunal of the Division of Employment Security. After a telephone hearing, at which Claimant failed to appear, the Appeals Tribunal reversed the deputy’s award and disqualified Claimant from receiving unemployment benefits. Claimant appealed to the Commission, which affirmed the Appeals Tribunal’s decision. The Secretary for the Commission certified that she mailed a copy of the Commission’s decision to Claimant on June 9, 2005. The notice accompanying the Commission’s decision clearly states that it will become “final ten (10) days after the date of mailing” and that the notice of appeal is due twenty (20) days thereafter. Claimant filed his notice of appeal on August 18, 2005.

A party aggrieved by a Commission’s decision is allowed an appeal to the appropriate court of appeals. Section 288.210, RSMo 2000. However, the notice of appeal is due within twenty days after the Commission’s decision is final. Id. The Commission’s decision becomes final ten days after the date of mailing of the decision to the parties. Section 288.200.2, RSMo 2000. The timelines for the filing of the notice of appeal are mandatory and there is no provision in the unemployment statutes for the filing of a late notice of appeal. Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App. E.D.2000).

Here, Claimant’s notice of appeal was not filed in a timely fashion. The Commission’s decision was mailed on June 9, 2005. It became final ten days later and Claimant’s notice of appeal was due twenty days thereafter, on Monday, July 11, 2005. Sections 288.200.2; 288.210, 288.240. Claimant filed his notice of appeal on August 18, 2005, more than one month after it was due.

We issued an order directing Claimant to show cause why his appeal should not be dismissed. Claimant filed a response, but offered no explanation for the lateness of his appeal. He asks that the appeal be allowed to go forward. However, this Court has no mechanism for allowing a late notice of appeal in an unemployment case. Phillips, 34 S.W.3d at 854. Claimant’s untimely filing of his notice of appeal is fatal and deprives this Court of jurisdiction to entertain the appeal. Watkins v. Kings Food Philips, Inc., 160 S.W.3d 421 (Mo.App. E.D.2005). Our only recourse is to dismiss the appeal.

The appeal is dismissed.

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


text:
    Cynthia KLOCKE, Appellant, v. SSM HEALTHCARE et al., Respondents.
    No. ED 85519.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 8, 2005.
    Alvin A. Wolff Jr., St. Louis, MO, for appellant.
    Kim Roger Luther, St. Louis, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Cynthia Klocke (“Appellant”) appeals the trial court’s judgment entered upon a jury verdict in favor of Dr. Kurt Kloss, Inphynet Contracting Services, Inc., Dr. Robert Gresick and The Ernst Radiology Clinic on Appellant’s 'wrongful death and lost chance of survival claims. We affirm.

We have reviewed the briefs of the parties and the record on appeal and no error of law appears. The trial court’s judgment was supported by substantial evidence on the record. No precedential or jurisprudential purpose would be served by an opinion reciting the detailed facts and restating the general principles of law. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order affirming the judgment pursuant to Rule 84.16(b).


author: MARY K. HOFF, Presiding Judge.

text:
    W.T.L., a minor, by and through his Next Friend, Donald E. LASATER, Petitioner/Respondent, v. Heather FRAZIER, Respondent/Appellant.
    No. ED 85776.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 8, 2005.

      Carl D. Kraft, St. Louis, MO, for Appellant.
    Richard B. Dempsey, Washington, MO, for Respondent.
   MARY K. HOFF, Presiding Judge.

Heather Frazier (Mother) appeals from the trial court’s judgment establishing Donald E. Lasater (Father) as the biological father of W.T.L. (Son), awarding joint legal custody of Son to both Mother and Father, awarding sole physical custody to Father subject to periods of temporary custody and visitation with Mother, and ordering Mother to pay Father child support. Because the trial court’s judgment lacks the written findings of fact required by Section 452.375.6 detailing the relevant factors that make the trial court’s custody arrangement in Son’s best interest, we reverse the judgment and remand the case for further proceedings.

Facts

Mother and Father were involved in a relationship when Mother became pregnant with Son. Mother and Father lived together in Mother’s apartment during part of Mother’s pregnancy, but Father moved out prior to Son’s birth. Son was born November 25, 2003. On the day of Son’s birth, Father resumed living with Mother in her apartment.

On December 19, 2003, while Mother was at work, Father left with Son and moved out of Mother’s apartment. Father told Mother that he was taking Son to visit his grandmother and that Father would bring Son back to Mother within two or three days. Father did not return Son to Mother.

On December 22, 2003, Father filed a petition seeking a declaration of paternity and an order of child custody and support. Father requested that the trial court award him “sole legal custody and primary physical custody” of Son. On January 21, 2004, Mother filed her answer and cross-petition seeking a judgment of paternity and an order of child custody. Mother requested the trial court award her “primary legal and physical custody” of Son and award Father reasonable rights of visitation.

On June 29, 2004, the parties’ petitions came before the trial court. Neither party requested findings of fact. The trial court heard and received evidence, took the case under advisement, and asked each party to file a proposed judgment, a parenting plan, and a Form 14. Shortly thereafter, Father filed his proposed judgment, parenting plan, and Form 14, but Mother did not. On July 7, 2004, the trial court entered its judgment incorporating Father’s proposed judgment and parenting plan. The judgment did not contain 'written findings of fact, pursuant to Section 452.375.6, detailing the specific relevant factors that made the chosen custodial arrangement in Son’s best interests.

On July 9, 2004, Mother requested additional time to file her proposed judgment. On July 19, 2004, within thirty days of the trial court’s entry of judgment, the trial court vacated its earlier judgment and allowed Mother additional time to file her proposed judgment. However, on December 30, 2004, the trial court re-entered its earlier judgment, which did not include the statutorily-required findings. This appeal follows.

Standard of Review

In an appeal from a court-tried case, we will sustain the trial court’s judgment and custody determination unless the judgment is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Weiss v. Crites, 169 S.W.3d 888, 889 (Mo.App. E.D.2005); In re Marriage of Swallows, 172 S.W.3d 912, 913 (Mo.App. S.D.).

Discussion

Mother presents three points on appeal. However, in light of our disposition of the case, we need address only her first point in which she argues the trial court erred because it did not make the statutorily-required written findings, pursuant to Section 452.375.6, detailing the specific relevant factors that made its custody arrangement in Son’s best interests.

Where the parents do not agree to a custodial arrangement for their child, the trial court must include in its judgment written findings based on the public policy in Section 452.375.4 and the specific relevant factors listed in Section 452.375.2(1) through (8) that support the trial court’s determination that its custody arrangement is in the child’s best interest. Section 452.375.6; Speer v. Colon, 155 S.W.3d 60, 61 (Mo. banc 2005); Weiss, 169 S.W.3d at 890; In re Marriage of Swallows, 172 S.W.3d at 914. Although Section 452.375.6 does not require the trial court to make written findings on all of the factors listed, the trial court must make written findings on the relevant factors. Speer, 155 S.W.3d at 62; Weiss, 169 S.W.3d at 890.

In this case, Father and Mother did not agree to a custodial arrangement for Son, and the trial court did not include in its judgment the statutorily-required findings on the relevant factors that made the chosen custody arrangement to be in Son’s best interests. Thus, we hold that the trial court’s judgment is not in compliance with Section 452.375.6. Speer, 155 S.W.3d at 62; Weiss, 169 S.W.3d at 890.

Conclusion

Because the parties do not dispute the trial court’s finding of paternity, that part of the judgment declaring Father to be the biological father of Son is affirmed. In all other respects, the judgment is reversed and the case is remanded. On remand, the trial court may, in its discretion, allow additional evidence to be presented and shall make the required written findings in compliance with Section 452.375.6.

CLIFFORD H. AHRENS and PATRICIA L. COHEN, Judges, Concur.

      . Neither Father nor Mother disputes or challenges the trial court’s finding of paternity.

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

      . Effective January 1, 2005, Rule 78.07(c) was amended to require that, "In all cases, allegations of error relating to the form or language of the judgment, including the failure to make statutorily required findings, must be raised in a motion to amend the judgment in order to be preserved for appellate review.” Rule 78.07(c); Speer v. Colon, 155 S.W.3d 60, 61 n. 9 (Mo. banc 2005); In re Marriage of Swallows, 172 S.W.3d 912, 914 (Mo.App. S.D.). However, Mother was not required to file a motion to amend the judgment in this case because the judgment was entered prior to the rule's amendment. In re Marriage of Swallows, 172 S.W.3d 912, 914.


text:
    Travis HAUGHTON, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 85934.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 8, 2005.
    S. Paige Canfield, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Alison K. Brown, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY and BOOKER T. SHAW, JJ.
   ORDER

PER CURIAM.

The movant, Travis Haughton, appeals the motion court’s order denying his Rule 29.15 motion for post-conviction relief after an evidentiary hearing. We have reviewed the parties’ briefs and the record on appeal and find no clear error. Rule 29.15(k). An opinion would have no precedential value. The parties have been provided with a memorandum, for their information only, setting forth the reasons for this decision.

The motion court’s order denying the movant’s Rule 29.15 motion for post-conviction relief is affirmed. Rule 84.16(b)(2).


text:
    STATE of Missouri, Respondent, v. Thomas M. CONWAY, Appellant.
    No. ED 85663.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 8, 2005.
    Irene Karns, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Ronald S. Ribaudo; Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before MARY K. HOFF, P.J. and CLIFFORD H. AHRENS, J. and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Thomas M. Conway (Defendant) appeals from the trial court’s judgment and sentence imposed after a jury found him guilty of one count of possession of a controlled substance, in violation of Section . 195.202. The trial court sentenced Defendant to three years’ imprisonment and a fine of $250.

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

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


author: SHERRI B. SULLIVAN, J.

text:
    ALLSTATE INSURANCE COMPANY, Plaintiff/Respondent, v. Douglas T. DEJARNETT, Defendant/Appellant.
    No. ED 85962.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 8, 2005.

      Joseph Richard Dulle, St. Louis, MO, for Appellant.
    Jennifer Hargis, Steven James Hughes — co-counsel, St. Louis, MO, for Respondent.
   SHERRI B. SULLIVAN, J.

Introduction

Douglas T. Dejarnett (Dejarnett) appeals from a trial court judgment granting a motion for summary judgment filed by Allstate Insurance Company (Allstate). Dejarnett also appeals the trial court’s denial of his motion to transfer venue. We reverse and remand.

Factual and Procedural Background

Dejarnett was injured when struck by a truck driven by Sara J. Wallace (Wallace) in St. Louis County. Wallace pled guilty to second-degree assault, a class C felony in violation of Section 565.060, for “recklessly causing] serious injury” to Dejar-nett by “running over” him in the truck and to first-degree property damage, a class D felony in violation of Section 569.100, for “knowingly” causing damage to Dejarnett’s car by “keying” it.

Allstate issued an automobile insurance policy (the Policy) to Wallace’s mother that covered the truck driven by Wallace. The Policy excludes coverage for any damages an insured person is legally obligated to pay because of:

bodily injury or property damage intended by, or reasonably expected to result from, the intentional or criminal acts or omissions of, an insured person.

(hereinafter referred to as “the criminal acts exclusion”).

On May 9, 2003, Dejarnett filed a petition against Wallace in St. Louis County alleging that Wallace negligently and carelessly operated the truck, causing bodily injury to Dejarnett (hereinafter referred to as “the underlying petition”). In the underlying petition, Dejarnett alleges that both he and Wallace are residents of St. Louis County.

On October 17, 2003, Insurer filed a petition for declaratory judgment against Dejarnett and Wallace in St. Louis County seeking the trial court’s determination that based on the criminal acts exclusion in the Policy, Allstate is not obligated to defend or to indemnify Wallace for the acts alleged in the underlying petition.

Subsequently, Dejarnett filed a motion to transfer venue to the City of St. Louis alleging that he is not a resident of St. Louis County but is a resident of St. Louis City and that upon information and belief, Wallace is not a resident of St. Louis County. Dejarnett filed an affidavit stating that on October 17, 2003, he resided in the City of St. Louis and that at no time from October 17, 2003 until the time of the filing had he resided or worked in St. Louis County. The trial court denied the motion, noting that counsel for Dejarnett accepted service of process for Dejarnett in St. Louis County and counsel voluntarily entered an appearance in St. Louis County. After being “not found” in St. Louis County, Wallace was served by summons in St. Francois County. The Deputy Sheriff noted on the St. Louis County Summons that Wallace had “moved.”

Subsequently, Allstate filed a motion for summary judgment, which the trial court granted. In its judgment, the trial court stated:

The record reflects, and the Court finds, that after Dejarnett and Wallace had a lovers tiff, Wallace ‘keyed’ Dejarnett’s company car; Dejarnett left the scene, stopped to view the damage to the car, was followed by Wallace in the [truck], and Dejarnett was physically run over by Wallace. The act was conscious. The act was criminal. The policy exclusion applies. [Allstate] is due Judgment as a matter of law.

Dejarnett appeals from the judgment.

Discussion

Dejarnett raises three points on appeal; however, his first point is dispositive. In his first point, Dejarnett argues that the trial court erred in denying his motion to transfer venue because Section 508.010 mandates that venue is improper in St. Louis County.

Venue is determined solely by statute. State ex rel. Doe Run Resources Corp. v. Neill, 128 S.W.3d 502, 507 (Mo. banc 2004). Section 508.010 provides in relevant part:

Suits instituted by summons shall, except as otherwise provided by law, be brought:
(2) When there are several defendants, and they reside in different counties, the suit may be brought in any such county;

Venue is determined as the case stands when brought. State ex rel. Private Nursing Serv., Inc. v. Romines, 130 S.W.3d 28, 29 (Mo.App. E.D.2004).

Dejarnett presented evidence, in the form of an affidavit, showing that at the time Allstate filed the petition for declaratory judgment, Dejarnett did not reside in St. Louis County. The return of summons for Wallace also was evidence that Wallace did not reside in St. Louis County at the time Allstate filed the petition for declaratory judgment. Allstate presented no evidence that either Dejar-nett or Wallace resided in St. Louis County at the time Allstate filed the petition for declaratory judgment. The trial court did not base its denial of the motion to transfer venue on either defendant residing in St. Louis County at the time Allstate filed the petition for declaratory judgment. Section 508.010 does not provide that a defendant’s residence may be established by the defendant’s attorney accepting service of process for the defendant in a particular county. Further, a party cannot waive venue until he or she is before the court. State ex rel. DePaul Health Center v. Mummert, 870 S.W.2d 820, 822 (Mo. banc 1994). The docket sheets show that the first filing by Dejarnett was his motion to transfer venue. Therefore, because Dejarnett challenged the propriety of venue immediately when he came before the court and at his first available opportunity to do so, Dejarnett did not waive venue. Thus, venue in St. Louis County was improper.

An action brought in a court where venue is improper shall be transferred to a court where venue is proper if a motion for such transfer is timely filed. Rule 51.045. Allstate makes no argument that Dejar-nett’s motion to transfer venue was untimely filed. Therefore, Dejarnett’s point one on appeal is granted.

Conclusion

The judgment of the trial court is reversed and the case is remanded to the trial court with directions to transfer the case to a proper venue.

GLENN A. NORTON, C.J., and ROBERT G. DOWD, JR., concur.

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

      . Wallace received a suspended imposition of sentence and was placed on five years’ probation.

      . Subsequently, Allstate filed a motion for entry of default judgment against Wallace, which the trial court granted.

      . All rule references are to Mo. R. Civ. P.2005, unless otherwise indicated.


text:
    STATE of Missouri, Respondent, v. Robert DAVIS, Appellant.
    No. ED 84984.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 8, 2005.
    Edward S. Thompson, Assistant Public Defender, St. Louis, MO, for appellant.
    Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before MARY K. HOFF, P.J., CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Robert Davis (“Defendant”) appeals from the trial court’s judgment entered in the Circuit Court of the City of St. Louis upon his conviction by a jury of murder in the first degree and armed criminal action. In his appeal, Defendant contends that the trial court erred when it: (1) sustained the State’s Batson challenge to Defendant’s peremptory strike of a venire person; (2) denied Defendant’s motion to suppress certain statements; (3) failed to grant Defendant’s motion for a mistrial after the jurors witnessed an altercation between the Defendant’s family and victim’s family; and (4) allowed the State to endorse a previously undisclosed witness during trial and allowing that witness to testify.

We have reviewed the briefs of the parties and the record on appeal and no error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would have no precedential value. We have, however, provided a memorandum for the use of the parties only setting forth the reasons for our decision.

We affirm pursuant to Rule 30.25(b).


text:
    SAFECO INSURANCE COMPANY OF AMERICA, Respondent, v. Timothy McBRIDE and Nancy McBride, Appellants.
    No. ED 85341.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 8, 2005.
    Blair K. Drazic, Creve Coeur, MO, for appellant.
    Michael B. Maguire, T. Michael Ward (co-counsel), St. Louis, MO, for respondent.
    Before: NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Timothy and Nancy McBride (“McBrides”) appeal from a jury verdict for Safeco Insurance Company of America (“Safeco”) finding arson by the insured in a suit on an insurance policy.

The McBrides raise two points on appeal. First, they claim that the trial court erred in admitting Fire Marshal Paul Mer-curio’s (“Mercurio”) testimony that one of their neighbors saw Timothy McBride’s car in the neighborhood close to the time of the fire and failed to provide a limiting instruction. Second, they claim the trial court erred in instructing the jury that the burden of proof for arson defense must be proven “more likely to be true than not,” instead of by clear and convincing 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 84.16(b).


text:
    Lavern ALFORD, Appellant, v. William E. HINES, M.D., Respondent.
    No. ED 85343.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 8, 2005.
    Christopher W. Dysart, The Dysart Law Firm, St. Louis, MO, for appellant.
    Brian D. Malkmus and Jared Robertson, Malkmus Law Firm, Springfield, MO, for respondent.
    Before MARY K. HOFF, P.J. and PATRICIAL. COHEN, J. and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Lavern Alford (Mother) appeals from the trial court’s judgment entered, in accordance with a jury verdict, in favor of Williams E. Hines, M.D., on Mother’s wrongful death claim for the death of her child, Nicole Alford. We affirm.

We have reviewed the briefs of the parties and the record on appeal. The judgment is supported by substantial evidence and is not against the weight of the evidence. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. The judgment is affirmed in accordance with Rule 84.16(b).


text:
    Sharon LIEBMAN, Appellant, v. Henry LIEBMAN, Respondent.
    No. ED 85439.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 8, 2005.
    Susan K. Roach, Attorney at Law, Clayton, MO, for appellant.
    Robert E. Faerber, Attorney at Law, Clayton, MO, for respondent.
    Before GARY M. GAERTNER, Sr., P.J., GEORGE W. DRAPER III, J. and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Appellant, Sharon Liebman (“Mother”), appeals from the judgment of the Circuit Court of St. Louis County, following a hearing, granting Respondent’s, Henry Liebman (“Father”), amended motion to modify the terms of the dissolution judgment pertaining to visitation and to child support, and denying Mother’s cross-motion to modify the terms of the dissolution judgment pertaining to child support. Mother claims the trial court erred in granting Father unsupervised visitation, ordering her to pay $1,000 in guardian ad litem (“GAL”) fees, and failing to award her attorney’s fees on appeal. 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.