author: JOSEPH M. ELLIS, Judge.

text:
    Jerry J. SWARTZ and Renee Swartz, Appellants, v. Lynn MANN, Respondent.
    No. WD 64224.
    Missouri Court of Appeals, Western District.
    March 29, 2005.

      Rex V. Gump, Moberly, MO, for appellants.
    Terry A. Tschannen, Brookfield, MO, for respondent.
    Before HAROLD L. LOWENSTEIN, Presiding Judge, JAMES M. SMART, JR., Judge and JOSEPH M. ELLIS, Judge.
   JOSEPH M. ELLIS, Judge.

Appellants Jerry J. Swartz and Renee Swartz appeal from the summary judgment entered by the Circuit Court of Randolph County in favor of Lynn Mann. For the following reasons, we reverse and remand for further proceedings.

On June 27, 2001, real estate developer Lynn Mann entered into a real estate purchase agreement with Jerry J. Swartz and Renee Swartz. The contract provided for the purchase of various properties located in Randolph County, Grundy County, Texas County, Andrew County, Chariton County, and Harrison County, Missouri. In accordance with the contract, Mann placed a $25,000.00 earnest money deposit with the Swartzes’ Century 21-McKeown and Associates (“Century 21”) agent. The contract specified a purchase price of $3,465,000.00 and a closing date of January 2, 2002. The contract also contained a financing contingency clause:

6. Buyer’s Contingencies. This Agreement is contingent upon Buyer obtaining financing for the purchase of the Property, at a reasonable commercial interest rate for 90% of the sales price.
Buyer shall notify Seller in writing no later than thirty (30) days before Closing of any failure to meet this contingency, at which time this contract will terminate and Buyer shall be entitled to a refund of Buyer’s deposit. If Buyer fails to notify Seller by that date then the above contingency shall be deemed to have been satisfied.
If Buyer fails to close, Buyer shall pay the title search costs for each title insurance commitment incurred by Seller.

The contract also provided for liquidated damages in the event Mann defaulted in his contract performance, stating:

21. Liquidated Damages and Attorney’s Fees. If Buyer defaults in the performance of this Agreement, resulting in a failure to close escrow, then Seller may retain Buyer’s deposit or an amount equal to 3% of the purchase price, whichever is the lesser, as liquidated damages, it being agreed that actual damages are difficult, if not impossible to ascertain.

After executing the contract, Mann sought financing with Citizen’s Bank and Trust (Citizen’s) of Moberly, Missouri. He provided the bank with a financial statement, indicating he had a net worth of $37,000,000.00. Ken Vik, a loan officer at Citizen’s who had worked with Mann on previous lending transactions, assisted him with this matter. On November 29, 2001, Vik wrote Mann a letter advising him that Citizen’s would only provide him with an 80% loan, not the 90% loan Mann sought to satisfy the contract’s financing contingency.

In addition to Citizen’s, Mann testified in his deposition that he provided tax returns and financial information to another bank in Moberly, Missouri, in an attempt to finance this transaction. He indicated that, although he and his realtor met with one of the bank’s officers about this contract, this second Moberly bank failed to contact him again. Mann stated that he could not recall the name of this bank in downtown Moberly.

On December 26, 2001, the Swartzes and Mann executed a contract amendment that increased the sales price to $3,555,000.00 and extended the closing date from January 2, 2002, to April 2, 2002.

On February 25, 2002, more than thirty (30) days before the amended closing date, Mann faxed a letter to Century 21, the real estate broker involved in the transaction, notifying the Swartzes that he could not obtain satisfactory financing. The letter declared the agreement null and void and demanded the return of the $25,000.00 earnest money deposit previously placed in escrow.

Three days later, on February 28, 2002, Mann faxed a handwritten note to a Century 21 agent, indicating that “it would appear we could get this done” if the Swartzes would agree to carry 10% of the financing. He also inquired as to whether the deal was dead.

The transaction failed to close on April 2, 2002.

Subsequent to Mann’s demand for the return of the $25,000.00 deposit, the Swartzes also made demand upon Century 21 for the deposit. On September 30, 2002, the Swartzes filed a petition in inter-pleader to recover the deposit. Answers, cross-claims, and counter-claims were filed by both parties. On July 28, 2003, Mann filed a motion for summary judgment. In granting his motion, the circuit court concluded that no genuine issue of material fact existed, declared Mann entitled to judgment as a matter of law, and granted Mann summary judgment. The court found that Mann “made a good faith effort to secure necessary financing,” and it ordered the $25,000.00 deposit be returned to Mann. This appeal follows.

The Swartzes raise two points on appeal. First, they argue the trial court erred in granting Mann’s summary judgment motion because genuine issues of material fact existed and Mann was not entitled to judgment as a matter of law. Second, they claim that the trial court erred in finding that Mann exercised reasonable diligence in his efforts to obtain financing as required by the real estate sales contract. In both points, the primary issue is whether Mann made a reasonable effort to obtain the financing set forth in the contract’s financing contingency clause.

The standard of review on appeal from summary judgment requires that this court “review the record in the light most favorable to the party against whom judgment was entered.” ITT Commercial Fin.Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The non-movant receives the benefit of all reasonable inferences from the record. Id. On appeal, this Court’s review is “essentially de novo.” Id. “The burden on a summary judgment movant is to show a right to judgment flowing from facts about which there is no genuine dispute. Summary judgment tests simply for the existence, not the extent, of these genuine disputes. Therefore, where the trial court, in order to grant summary judgment, must overlook material in the record that raises a genuine dispute as to the facts underlying the movant’s right to judgment, summary judgment is not proper.” Id. at 378. The same criteria for evaluating the propriety of summary judgment are used at both the trial and the appellate level. Schembre v. Mid-America Transplant Ass’n, 135 S.W.3d 527, 530 (Mo.App. E.D. 2004). Summary judgment'will be upheld on appeal only if (1) no genuine disputes as to material facts exist and (2) movant possesses the right to judgment as a matter of law. ITT Commercial Fin. Corp., 854 S.W.2d at 380.

Contract interpretation is a matter of law. Housley v. Mericle, 57 S.W.3d 360, 363 (Mo.App. S.D.2001). In Missouri, an implied covenant of good faith and fair dealing exists in every contract. Id. The law of Missouri imposes a “duty of reasonable diligence and good faith” in obtaining financing upon buyers entering into a contract containing a financing contingency provision. Hoelscher v. Schenewerk, 804 S.W.2d 828, 830 (Mo.App. W.D.1991). When a buyer enters into a purchase agreement subject to a contingency financing clause, the buyer has an implied obligation to undertake reasonable efforts to secure the financing set forth in contract. See Id.; Housley, 57 S.W.3d at 364; Grand & St. Louis Enters, v. Powell, 807 S.W.2d 129, 130 (Mo.App. E.D.1991); Goldberg v. Charlie’s Chevrolet, Inc., 672 S.W.2d 177, 178. (Mo.App. E.D.1984); Edward L. Bakewell, Inc. v. Kroeger, 617 S.W.2d 447, 451 (Mo.App. E.D.1981).

“It is held in Missouri that a provision in a real estate sales contract making the contract contingent upon the buyer’s obtaining financing creates a condition subsequent. Upon the nonoccurrence of the condition (i.e. the buyer’s obtaining financing), the buyer is ipso facto excused from performance.” Koontz v. Lee, 737 S.W.2d 766, 768 (Mo.App. W.D. 1987). “However, this rule presumes that the buyer’s failure to obtain financing was in good faith.” Howard v. Youngman, 81 S.W.3d 101, 110 (Mo.App. E.D.2002). A buyer who fails to exercise good faith in obtaining financing “cannot rely on the contract’s financing contingency provision to avoid liability on the contract.” Id. (citing Hoelscher, 804 S.W.2d at 830).

Whether buyers exercise reasonable diligence in obtaining financing pursuant to a contingent financing provision is a question of fact. Johnson v. Gregg, 807 S.W.2d 680, 686 (Mo.App. S.D.1991); Alice Blake, Inc. v. Hoffman, 620 S.W.2d 20,22 (Mo.App. E.D.1981). “It is a material fact because it is of such ‘legal probative force as would control or determine the result of the litigation.’ ” Alice Blake, Inc., 620 S.W.2d at 22 (quoting State ex rel. McDonnell Douglas Corp. v. Gaertner, 601 S.W.2d 295, 298 (Mo.App. E.D.1980)).

While it is conceded by all that Mann applied for and was denied financing at Citizen’s on November 29, 2001, the mere fact that he attempted to secure financing fails to warrant an order of summary judgment in his favor. See Id. The dispute between the parties is the extent of Mann’s efforts to obtain financing. In response to Mann’s assertion in his motion for summary judgment that it was an un-controverted fact that he had satisfied the financing contingency of the contract, the Swartzes pointed to Mann’s deposition testimony that he made no material effort to obtain financing anywhere else than Citizen’s Bank, and the fact that the Vik affidavit reflected that the initial proposal by Citizen’s Bank to finance 80% predated the contract closing extension dated December 26, 2001. In addition, they cite to Vik’s letter advising Mann that Citizen’s would not finance more than 80%, which was dated November 29, 2001, and that in Ken Vik’s deposition, he testified that on November 29, 2001, Mann told Vik that he would get his funds someplace else. But Mann testified that he never applied anywhere else after November 29, 2001, and this was 27 days before Mann’s signing of closing extension agreement he requested. The Swartzes response also cites Mann’s deposition testimony that he owns 2,200-2,800 acres in adjoining Macon County, as well as the USDA building in Livingston County, the Sydenstricker Farm Implement Building in Livingston County, and the USDA building in Trenton, Grundy County, Missouri; that all of these properties are financed through banks other Citizen’s Bank; and that he did not apply to any of those banks. The Swartzes’ response also referenced Mann’s unaudited financial statement presented to Citizens Bank reflecting a $37,000,000 net worth and ownership of real estate in eight or nine states, as well as having real estate lending relationships with fifteen to twenty banks and financial organizations, and the testimony that he applied to none of them for a loan. While the Swartzes controverted many other factual issues, suffice it to say that they sufficiently controverted whether Mann had used sufficient diligence in pursuing financing so as to satisfy the contractual contingency.

Since the whole issue in the case is the factual question of whether Mann exercised reasonable diligence and good faith in trying to secure the necessary financing, and because this is a question of fact, dependent to a great extent on credibility determinations to be made by the fact finder as to what Mann did and when he did it in attempting to obtain financing, it is apparent that a genuine factual dispute remains. Accordingly, the trial court erred in finding that no material issue of genuine fact existed and in granting summary judgment to Mann.

Consequently, the trial court’s grant of summary judgment to Mann is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

All concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Leon LESMEISTER, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 84648.
    Missouri Court of Appeals, Eastern District, Division One.
    April 12, 2005.
    Lisa M. Stroup, St. Louis, MO, for Appellant.

      Deborah Daniels, Richard Anthony Starnes — Co-counsel, Jefferson City, MO, for Respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Leon Lesmeister (Movant) appeals from the judgment denying on the merits his Rule 29.15 motion for post-conviction relief after a limited evidentiary hearing. A jury found Movant guilty of two counts of statutory sodomy in the second degree in violation of Section 566.064 RSMo (2000). The trial court sentenced Movant to a term of five years imprisonment on each count, to be served consecutively. Movant filed a direct appeal, which we affirmed. State v. Lesmeister, 75 S.W.3d 787 (Mo.App. E.D. 2002). Movant now contends he was denied effective assistance of counsel because his trial counsel failed to adduce specific testimony from defense witnesses.

We have reviewed the record on appeal and the briefs of the parties and find the motion court’s judgment is not clearly erroneous. Rule 29.15(k). An extended opinion would have no precedential value. We have, however, provided the parties with a brief memorandum opinion, for their information only, explaining the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


text:
    FIRST HEARTLAND CAPITAL, INC., Respondent, v. Rick KARNER, Appellant.
    No. ED 84623.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 12, 2005.
    Rick Earner, Palos Heights, FL, pro se.
    Daniel K. Barklage, St. Charles, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN and MARY K. HOFF, JJ.
   ORDER

PER CURIAM.

Rick Earner appeals the trial court’s judgment finding in favor of First Heartland Capital, Inc. on its action to collect monies due and owing by Mr. Earner. We have reviewed the parties’ briefs and the record on appeal and find no error. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. We have, however, provided the parties with a memorandum, for their information only, setting forth the reasons for our decision.

The judgment is affirmed. Rule 84.16(b).


text:
    STATE of Missouri, Plaintiff/Respondent, v. Richard J. EICHELBERGER, Defendant/Appellant.
    No. ED 83872.
    Missouri Court of Appeals, Eastern District, Division One.
    April 12, 2005.
    Irene C. Earns, Columbia, MO, for appellant.
    Deborah Daniels, Alison K. Brown, co-counsel, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Defendant, Richard Eichelberger, appeals from the judgment entered pursuant to his conviction by a jury of second degree trafficking, in violation of Section 195.223 RSMo (2000), for which he was sentenced to ten years imprisonment. He challenges the sufficiency of the evidence as to quantity and asserts the trial court erred in: (1) overruling his motions for judgment of acquittal at the close of the State’s case and at the close of all the evidence; (2) submitting the case to the jury; (3) accepting the verdict of guilty; and (4) sentencing him to a term of ten years imprisonment.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. A detailed opinion would be of no precedential value. We have, however, provided the parties with a brief memorandum opinion, for their information only, explaining the reasons for our decision. The judgment is affirmed pursuant to Rule 30.25(b).


text:
    Paul KEEVEN, Appellant, v. Kathryn HAMILTON and Mary E. Rodell, Co-Personal Representatives of the Estate of Diana Keeven, Respondents.
    No. ED 84651.
    Missouri Court of Appeals, Eastern District, Division One.
    April 12, 2005.
    Charles P. Todt, Tonya D. Fifer, Gina Casalone, The Todt Law Firm, P.C., St. Louis, MO, for Appellant.
    Jeffery T. McPherson, Cynthia A. Petra-cek, Armstrong Teasdale LLP, St. Louis, MO, Michael A. Turken, Turken & Associates, St. Charles, MO, for Respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J. and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Appellant, Paul Keeven (“Husband”), appeals from the judgment of the Circuit Court of St. Charles County legally separating Husband from Diana Keeven (“Wife”). 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.

      . Wife died while this proceeding was pending. Therefore, her interests are represented by respondents, Kathryn Hamilton and Mary E. Rodell, co-personal representatives of the estate of Diana Keeven.


text:
    STATE of Missouri, Respondent, v. Keith A. JOHNSON, Defendant/Appellant.
    No. ED 83573.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 12, 2005.
    Maleaner R. Harvey, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Dora A. Fichter, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN and MARY K. HOFF, JJ.
   ORDER

PER CURIAM.

The defendant, Keith A. Johnson, appeals the judgment entered upon his convictions by a jury for forcible rape, in violation of Section 566.030 RSMo.2000, two counts of forcible sodomy, in violation of section 566.060, and three counts of armed criminal action, in violation of section 571.015. In his sole point on appeal, the defendant alleges the trial court erred in overruling his Batson challenges to the State’s peremptory strikes .of five African-American venirepersons.

We have reviewed the parties’ briefs and the record on appeal. We find no clear error. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties, however, have been furnished with a memorandum, for their information only, setting forth the reasons for this order.

We affirm the judgment pursuant to Rule 30.25(b).

      . All statutory references are to RSMo.2000.

      . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).


text:
    Arthonn QUINN, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 84650.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 12, 2005.
    Amanda R. Schehr (Assistant Public Defender), St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Arthonn Quinn (“Movant”) appeals from motion court’s judgment denying his Rule 24.035 motion for post-conviction relief. Movant entered a guilty plea to one count of robbery in the second degree, Section 569.030, and one count of armed criminal action, Section 571.015. The trial court found Movant to be a prior offender and sentenced Movant to: fifteen years in prison for robbery in the second degree, and three years for armed criminal action to be served concurrently with the robbery sentence. On July 17, 2003, Movant timely filed a motion for postconviction relief. The motion court issued findings of fact and conclusions of law and denied Mov-ant’s motion without an evidentiary hearing. 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).

      . All references are to Mo. Rules Civ. P.2004 unless otherwise indicated.

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


author: GEORGE W. DRAPER III, Chief Judge.

text:
    STATE of Missouri, Plaintiff/Respondent, v. Keith DRURY, Defendant/Appellant.
    No. ED 85357.
    Missouri Court of Appeals, Eastern District, Division Five.
    April 12, 2005.
    Joseph P. Cunningham III, Crystal City, MO, for Appellant.
    Robert G. Wilkins, Hillsboro, MO, for Respondent.
   GEORGE W. DRAPER III, Chief Judge.

On September 23, 2004, the trial court found the defendant Keith Drury (Defendant) guilty of misdemeanor third degree assault. On that same day, the trial court entered a judgment against Defendant and sentenced him to pay a fine of $25.00. On October 1, 2004, Defendant filed a timely motion for new trial, which the trial court denied on October 25, 2004. Defendant now appeals from the judgment and sentence.

Under 29.11(c), which applies to misdemeanors, no judgment can be rendered until the time for filing the motion for new trial has expired. Any judgment and sentence rendered by the trial court prior to the filing and ruling on the motion for new trial is premature and void. State v. Burkemper, 853 S.W.2d 416, 417 (Mo.App. E.D. 1998); See also, City of Byrnes Mill v. Rice, 136 S.W.3d 84, 85 (Mo.App. E.D. 2004); State v. Hauser, 101 S.W.3d 320, 321 (Mo.App. E.D.2003). A defendant has the right to file a motion for new trial within 15 days after the trial court finds him guilty. Rule 29.11(b) & (e). Here, the trial court sentenced Defendant on September 23, 2004, the same day it found him guilty, prior to the filing and ruling on his motion for new trial. As a result, the judgment and sentence rendered by the court is void and there is no final judgment from which the defendant can appeal. Rice, 136 S.W.3d at 86.

We have a duty to sua sponte determine whether we have jurisdiction to entertain an appeal. Hauser, 101 S.W.3d at 321. We issued an order directing Defendant to show cause why this appeal should not be dismissed. Defendant has failed to file a response.

The appeal is dismissed and the cause is remanded to the trial court to sentence Defendant in accordance with Rule 29.

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


text:
    Jose JACKSON, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 84515.
    Missouri Court of Appeals, Eastern District, Division One.
    April 12, 2005.
    Kristina Starke, St. Louis, MO, for Appellant.
    Deborah Daniels, Daniel McPherson, Jefferson City, MO, for Respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Movant, Jose Jackson, appeals from the judgment denying his Rule 29.15 motion for post-conviction relief after an eviden-tiary hearing. We have reviewed the briefs of the parties and the record on appeal and find the motion court’s judgment is not clearly erroneous. Rule 29.15(k). An extended opinion would have no precedential value. We have, however, provided the parties with a brief memorandum opinion, for their information only, explaining the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


text:
    Harry WATKINS, Claimant/Appellant, v. KINGS FOOD PHILIPS INC., and Division of Employment Security, Respondents.
    No. ED 85692.
    Missouri Court of Appeals, Eastern District, Division Five.
    April 12, 2005.
    Barry Watkins, St. Louis, MO, for appellant.
    Cynthia A. Quetsch, Jefferson City, MO, Kings Food Philips, Inc., Florissant, MO, for respondent.
   GEORGE W. DRAPER III, Chief Judge.

In this unemployment case, Barry Watkins (Claimant) appeals the Labor and Industrial Relations Commission’s (Commission) decision affirming the Appeals Tribunal’s dismissal of his appeal. Claimant’s notice of appeal to this Court is untimely. As a result, we have no jurisdiction and dismiss Claimant’s appeal.

A deputy for the Division of Employment Security (Division) denied Claimant’s request for unemployment and concluded he had voluntarily quit his job without good cause attributable to his work or employer. Claimant appealed to the Appeals Tribunal, which dismissed his appeal after he failed to participate in a telephone hearing. Claimant filed an application for review with the Commission. The Commission affirmed the Appeals Tribunal’s dismissal. The Secretary of the Commission certified that she mailed a copy of the Commission’s decision to Claimant on December 8, 2004. Claimant appealed to this Court by filing a notice of appeal with the Commission by facsimile on January 9, 2004.

Once the Commission’s decision is mailed to the parties, it becomes final ten days thereafter. Section 288.200.2, RSMo 2000. A claimant then has twenty days to appeal a final decision of the Commission. Section 288.210, RSMo 2000. Here, the Secretary for the Commission mailed its decision to Claimant on December 8, 2004. The decision became final ten days later and the notice of appeal was due on January 7, 2005. Section 288.200; Section 288.210. Claimant sent his notice of appeal by facsimile on January 9, 2005. If a notice of appeal is faxed, it is deemed filed on the date the Division’s fax machine receives it. 8 C.S.R. 20-2.010(4). Claimant’s notice of appeal, filed on January 9, 2005, was untimely.

This Court has a duty to determine sna sponte whether it has jurisdiction. Williams v. ESI Mail Pharmacy Service, Inc., 103 S.W.3d 848 (Mo.App. E.D.2003). After reviewing our jurisdiction, we issued an order directing Claimant to show cause why this appeal should not be dismissed as untimely. Claimant filed a response addressing only the merits of his appeal. He did not address the timeliness of his notice of appeal. Section 288.210 makes no provision for late filing of a notice of appeal. Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App. E.D.2000). An untimely notice of appeal in an unemployment case deprives this Court of jurisdiction to entertain the appeal. Loeffler v. Shop N Save, 121 S.W.3d 261, 261 (Mo.App.E.D.2003).

The appeal is dismissed for lack of jurisdiction.

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


text:
    Vernea DOUGLAS, Claimant/Appellant, v. BURLINGTON COAT FACTORY, and Division of Employment Security, Respondents.
    No. ED 85690.
    Missouri Court of Appeals, Eastern District, Division Five.
    April 12, 2005.
    Vernea Douglas, St. Louis, MO, for appellant.
    Cynthia A. Quetsch, Jefferson City, MO, Burlington Coat Factory Warehouse Bridgeton, Inc., Burlington, NJ, for respondent.
   GEORGE W. DRAPER III, Chief Judge.

Vernea Douglas (Claimant) applied for unemployment benefits after she quit her job at Burlington Coat Factory. A deputy concluded that Claimant was ineligible for unemployment benefits, because she had voluntarily quit her job without good cause attributable to work or her employer. She appealed to the Appeals Tribunal of the Division of Employment Security, which affirmed the deputy’s decision. Claimant then appealed to the Labor and Industrial Relations Commission (Commission), which dismissed her application for review because it was untimely. Claimant appeals to this Court. We dismiss the appeal for lack of jurisdiction.

In an unemployment compensation case, Claimant has only thirty (30) days from the making of the Appeals Tribunal decision to file an application for review with the Commission. Section 288.200.1, RSMo 2000. Here, the Appeals Tribunal certified that it mailed its decision to Claimant on October 12, 2004. Therefore, Claimant’s application for review to the Commission was due thirty days later, on November 12, 2004. Sections 288.200.1; See also, Section 288.240, RSMo 2000 (November 11, 2004 was a legal holiday). The record on appeal establishes that Claimant’s application for review to the Commission was faxed on November 15, 2004. A faxed application for review is deemed filed on the date the Division’s fax machine receives it. 8 C.S.R. 20-4.010(l)(C). Therefore, Claimant’s application for review was untimely.

This Court has a duty to examine its jurisdiction sua sponte. Crowden v. General Sign Co., 133 S.W.3d 562, 562 (Mo.App. E.D.2004). We issued an order directing Claimant to show cause why this appeal should not be dismissed. She filed a response in which she contends she faxed her application for review on October 27, 2004, which was timely. After she failed to receive an acknowledgment letter from the Commission, she faxed it again on November 15, 2004. She includes a copy of her fax cover sheet, which has the handwritten date of October 27, 2004 on it. However, she does not include any proof that her fax was actually sent on that date, such as a receipt from her fax machine. The record on appeal does not indicate Claimant’s application for review was faxed on .October 27, 2004. The only application for review in the record is one with a fax machine date of November 15, 2004 on it. We are bound by the record on appeal. Haislar v. Haislar Const. Co., Inc., 142 S.W.3d 210, 212 (Mo.App. E.D. 2004).

The timely filing of an application for review in an unemployment case is jurisdictional and requires strict compliance. Robinson v. Dynacraft, Inc., 142 S.W.3d 213, 214 (Mo.App. E.D.2004). Failure to comply with the statutory time limit for appeal results in a lapse of jurisdiction and the loss of the right to appeal. Freeman v. Plaza Motors Co., 128 S.W.3d 613, 614 (Mo.App. E.D.2004). The failure to file a timely application for review divests both the Commission and this Court of jurisdiction. Id. Our only recourse is to dismiss her appeal.

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

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


author: PATRICIA BRECKENRIDGE, Judge.

text:
    James George STULZ and Melissa Claire Stulz, Appellants, v. CITIZEN’S BANK AND TRUST COMPANY, Respondent, Hall Realty Company, Respondent, Robert Bruce Darrington and Mary Katherine Darrington, Defendants.
    No. WD 63755.
    Missouri Court of Appeals, Western District.
    April 19, 2005.
    See also Darrington v. Stulz, 982 S.W.2d 823 (Mo.App.1998).

      Martin A. Bauman, St. Joseph, MO, for appellants.
    Dana J. Macoubrie, Chillieothe, MO, for respondent Citizen’s. Bank and Trust Co.
    Zell M. Fischer, Rock Port, MO, for respondent Hall Realty Company.
    Before HOLLIGER, P.J., BRECKENRIDGE and ELLIS, JJ.
   PATRICIA BRECKENRIDGE, Judge.

James and Melissa Stulz appeal the final judgment granting Citizen’s Bank and Trust Company’s motion to dismiss the Stulzes’ claims for wrongful foreclosure and conversion and granting Hall Realty Company’s motion to dismiss the Stulzes’ claim for conversion. In their first point, the Stulzes assert that the trial court erred in granting Citizen’s Bank’s motion to dismiss because Citizen’s Bank converted surplus funds from a foreclosure sale on a first deed of trust, to pay a note that was secured by a second deed of trust, which was not foreclosed upon by the sale. They further contend that they cannot be held personally liable for the note secured by the second deed of trust because the debt was discharged in bankruptcy. In their second point, the Stulzes claim that the trial court erred in granting Hall Realty’s motion to dismiss because Hall Realty converted a real estate commission it received from a private sale in a partition proceeding. Specifically, the Stulzes claim that because this court reversed the trial court’s judgment approving the private sale that generated the commission awarded to Hall Realty and they owned one-half of the property sold, they are entitled to one-half of the commission. Because the Stulzes had no right to possess either the surplus funds generated from the foreclosure sale or one-half of the commission awarded to Hall Realty, they had no valid claims of conversion against Citizen’s Bank or Hall Realty. Therefore, the judgment of the trial court is affirmed.

Factual and Procedural Background

On January 6, 1994, the Stulzes purchased from Robert and Mary Katherine Darrington an undivided one-half interest in certain real estate in Grant City in Worth County, generally known as the Grant City Livestock Exchange. The Stulzes financed the purchase by executing a note in favor of Citizen’s Bank for $100,000, which was secured by a future advance deed of trust on the property. On July 3, 1995, the Stulzes executed a second note in favor of Citizen’s Bank for $40,000. This second note was secured by a second deed of trust on the same property.

On March 21, 1996, the Darringtons filed a petition for partition of the property against the Stulzes and Citizen’s Bank. The petition requested a fair partition of the land or that the land be sold and the proceeds divided among the parties. On September 27, 1996, while the partition proceeding was ongoing, the Stulzes filed for bankruptcy. The Stulzes properly listed their interest in the subject property in the bankruptcy proceeding. The bankruptcy court discharged the Stulzes from their debts on January 21, 1997. The bankruptcy trustee also abandoned its interest in the subject property.

On September 9, 1997, the trial court entered a judgment in partition. The court found that the Darringtons and the Stulzes each owned an undivided one-half interest in the property, with the Stulzes’ interest subject to a lien secured by a deed of trust recorded by Citizen’s Bank. The court further found that the real estate was not subject to partition in kind and ordered it sold by the sheriff of Worth County on October 24, 1997. The court ordered that the proceeds, after payment of costs and fees, be distributed to the parties according to their respective interests.

On October 3, 1997, the Darringtons filed a motion to set aside the sale because, after the entry of the trial court’s judgment in partition, the Darringtons had received an offer from a third party to purchase the property for $310,000. Attached to the motion was a contract for the sale of the property dated September 27, 1997, identifying the Darringtons and Citizen’s Bank as the sellers, Dee Lynch as the buyer, and Mr. Darrington as the real estate agent.

Following a hearing on the Darringtons’ motion, the trial court entered an order canceling the public sale of the property. The trial court also approved the real estate contract between the Darringtons and Dee Lynch and accepted and deposited in the court registry an earnest money check from Dee Lynch in the amount of $25,000. On January 9, 1998, a check signed by Dee Lynch and made payable to Hall Realty in the amount of $285,000 was deposited with the court.

On February 6, 1998, the trial court entered its final judgment ordering the property “voluntarily” sold to Dee Lynch for the sum of $310,000. The judgment conveyed the property to Dee Lynch by sheriffs deed and noted that consent to the sale “had been affirmatively manifested by each party in open court.” The judgment further ordered the clerk of the court to distribute the proceeds of the sale after payment of attorney’s fees, sheriffs fees, court costs, taxes, and an eight-percent sales commission to Hall Realty.

The Stulzes appealed the trial court’s final judgment in partition. They claimed the trial court lacked authority to approve the private sale, distribute the proceeds of the sale, and award costs because the property was sold at a private sale under a real estate contract rather than at a public auction as required by Rule 96 and Chapter 528, RSMo 1994. On December 29, 1998, this court filed its opinion reversing the trial court’s judgment. See Darrington v. Stulz, 982 S.W.2d 823 (Mo.App.1998). Specifically, this court held that the trial court erred in ordering a private sale and distributing the proceeds “[bjecause partition is strictly statutory,” and “a partition sale may be effected only in accordance with the procedures set forth in Rule 96 and Chapter 528.” Id. at 825. “Section 528.590, RSMo 1994, requires that all real estate subject to partition sale be sold by a court-appointed commissioner or by a sheriff at a public auction.” Id. This court found that, because the “land was not sold at public auction by the sheriff but at a private sale under a real estate contract,” the sale was improper. Id. Therefore, this court reversed the trial court’s judgment and remanded for further proceedings. Id.

Following this court’s decision in Darrington, on March 18, 1999, the trustee conducted a foreclosure sale, foreclosing on the Stulzes’ January 6, 1994 deed of trust. Citizen’s Bank purchased the property at the sale. The next day, Citizen’s Bank conveyed the property to Dee Lynch by quit claim deed. According to Citizen’s Bank’s foreclosure sale accounting, the bid at sale was $182,387.78. Of that amount, Citizen’s Bank applied $119,589.96 to the January 6, 1994 note and deed of trust being foreclosed; $56,297.82 to the Stulzes’ second note and deed of trust dated July 3, 1995; and the balance of $10,391.05 to expenses. A deficiency in the amount of $3,891.05 remained on the second note.

On May 2, 1999, the Stulzes filed a five-count petition. The first three counts of their petition alleged claims against Citizen’s Bank for wrongful disclosure, conversion, and negligent misrepresentation. The fourth count alleged conversion by Hall Realty. The final count alleged conversion by the Darringtons. The trial court sustained the Darringtons’ motion for summary judgment and dismissed them from the case on July 23, 2003. Thereafter, a trial was held on the remaining counts of the Stulzes’ petition. At the conclusion of the Stulzes’ case, Citizen’s Bank orally moved to dismiss the case. Hall Realty also orally moved to dismiss the case and filed written suggestions in support of its motion. On September 15, 2003, the trial court entered its judgment granting both motions. Thereafter, the Stulzes filed a motion to vacate, reopen, correct, amend, or modify the trial court’s judgment. Following a hearing, the trial court overruled the motion. The Stulzes filed this appeal.

Standard of Review

The judgment appealed purports to be a dismissal of the Stulzes’ claims, as requested by Citizen’s Bank and Hall Realty at the conclusion of the Stulzes’ evidence. The proper motion after a plaintiff has completed presentation of the plaintiffs evidence, however, is a “motion for a judgment on the grounds that upon the facts and the law the plaintiff is not entitled to relief.” Rule 73.01(b). Despite the improper terminology, the trial court’s judgment indicates that it ruled on the merits, after reviewing all the evidence and adjudging the credibility of the Stul-zes’ sole witness, Mr. Stulz. Because the trial court ruled on the merits, the Stulzes’ appeal from the trial court’s judgment is from a final determination of the issues on the merits and is governed by Rule 73.01. Therefore, review in this case is not for judging the adequacy of the Stulzes’ pleading, as in a motion to dismiss, but under the standard for court-tried cases stated in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Pierce v. State, Dep’t of Soc. Servs., 969 S.W.2d 814, 817 (Mo.App.1998).

This court will affirm the trial court’s judgment unless no substantial evidence supports it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy, 536 S.W.2d at 32. This court reviews the evidence, along with all reasonable inferences, in the fight most favorable to the trial court’s judgment and disregards all contrary evidence and inferences. Wildflower Cmty. Ass’n, Inc. v. Rinderknecht, 25 S.W.3d 530, 534 (Mo.App.2000). As the trier of fact, the trial court determines the credibility of witnesses and is free to believe or disbelieve all or part of the witnesses’ testimony. Ken Cucchi Constr., Inc. v. O’Keefe, 973 S.W.2d 520, 524 (Mo.App.1998). Because the trial court made no findings of fact, all fact issues “shall be considered as having been found in accordance with the result reached.” Rule 73.01(c).

No Valid Conversion Claim Against Citizen’s Bank

In them first point, the Stulzes assert that the trial court erred in entering judgment in favor of Citizen’s Bank because they had a valid claim against Citizen’s Bank in conversion. “ ‘Conversion is the unauthorized assumption of the right of ownership over the personal property of another to the exclusion of the owner’s rights.’ ” Walker v. Hanke, 992 S.W.2d 925, 930 (Mo.App.1999) (citation omitted). Conversion can be proved by demonstrating (1) a tortious taking, (2) “ ‘any use or appropriation to the use of the person in possession, indicating a claim of right in opposition to [the] owner’s rights;’ ” or (3) “ ‘refusal to give up possession to the owner on demand, even though the defendant’s original possession of the property was proper.’ ” Id. (citation omitted).

The Stulzes claim that, after Citizen’s Bank conducted a foreclosure sale on the first deed of trust, it converted the surplus funds from that sale to pay off part of the note secured by the second deed of trust. The Stulzes contend that this was improper because the foreclosure sale on the first deed of trust extinguished the second deed of trust. Moreover, they submit that they cannot be held personally liable for the second deed of trust because that debt was discharged in bankruptcy. Therefore, the Stulzes conclude that they are entitled to the surplus funds Citizen’s Bank received from the foreclosure sale.

“Ordinarily how a trustee who sells property under a deed of trust shall dispose of the proceeds must be ascertained from the directions of the instrument];.]” Jones v. Shepard, 145 Mo.App. 470, 122 S.W. 764, 767 (1909). See also Webster v. Wishon, 675 F.Supp. 552, 553 (W.D.Mo.1986) (quoting Jones). The first deed of trust in this case, however, provides no guidance as to how surplus funds shall be distributed. The deed simply states that the trustee shall apply “the excess, if any, to the persons legally entitled to receive it.” The second deed of trust contains this same language and contains no provision anticipating the contingency of a surplus following foreclosure of a prior lien. When a deed of trust does not contain such a provision, distribution of surplus funds is “controlled by whatever the law may provide for in these circumstances.” Id.

In Missouri, it has been the rule since as early as 1855 that junior lienholders are entitled to surplus proceeds from a foreclosure sale on a senior lien. See e.g., Helweg v. Heitcamp, 20 Mo. 569, 1855 WL 5260 (1855) (surplus funds “must be applied, after payment of the debt and cost of sale by trustee under the second deed of trust, towards the payment of the debt” secured by the third deed of trust); Strawbridge v. Clark, 52 Mo. 21, 22, 1873 WL 7832 (1873) (‘Where there are several hens on a tract of land, and it is sold under one of them, the surplus after paying the lien under which it was sold, belongs in equity to the next subsequent liens in their order of priority.”). The court in Jones similarly found:

Junior incumbrancers will take precedence over the mortgagor, as regards the right to have their demands paid out of the surplus, because the execution of a junior mortgage amounts to an assignment of the mortgagor’s equity of redemption to the junior mortgagee and of the assignor’s right in equity to the surplus in case of a sale under the prior incumbrance.

122 S.W. at 767. See also Warner v. Veitch, 2 Mo.App. 459, 462, 1876 WL 9650 (1876) (“A person to whom land has been conveyed subject to a deed of trust, or the cestui que trust where the conveyance is a second deed of trust, becomes thereby the legal representative of the grantor, and, as such, is entitled to receive the surplus funds remaining after the foreclosure.”).

The Stulzes, nevertheless, argue that they are entitled to the surplus proceeds from the foreclosure sale for two reasons: (1) the bankruptcy court discharged their debts and, therefore, Citizen’s Bank is unable to make a valid claim against them personally; and (2) the foreclosure sale extinguished the second deed of trust. The debtors in In re Roberts, 91 B.R. 57 (Bankr.E.D.Mo.1988), made similar claims. In Roberts, the debtors executed a first deed of trust on real property in favor of Palmyra Savings and Building Association to secure a loan. 91 B.R. at 58. Thereafter, the debtors executed a second deed of trust on the same property in favor of State Street Bank and Trust Company. Id. Eventually, the debtors filed for bankruptcy. Id. After the debtors filed for bankruptcy, Palmyra was granted relief from the automatic stay to foreclose on the property under the terms of its deed of trust. Id. The foreclosure sale realized a surplus, which the trustee paid directly to the debtors under the terms of its deed of trust. Id. Thereafter, the bankruptcy court issued an injunction ordering the debtors not to spend or otherwise dispose of the surplus. Id. The bankruptcy trustee then sought to recover the excess proceeds. Id. State Street Bank was joined as a party defendant. Id. The bankruptcy court awarded the excess proceeds to State Street Bank, and the debtors appealed that decision. Id. at 59.

In rejecting the debtors’ argument that the foreclosure sale extinguished State Street Bank’s second deed of trust, which was a junior encumbrance, the court found that the “foreclosure sale cannot extinguish the security agreement between State Street [Bank] and debtors” because “State Street [Bank] is not seeking money directly from debtors, as indeed bankruptcy prevents it from doing.” Id. at 60. Rather, the lender was “merely seeking to enforce its agreement with the debtors, whereby State Street [Bank] received an interest in the debtors’ property.” Id. The court noted that such an interest “follows the property until a foreclosure sale occurs,” at which point, “if proceeds remain above satisfaction of the obligation to the holder of the first deed of trust,” the holder of the junior lien is entitled to those funds. Id. See also In re Reid, 73 B.R. 88, 90 (Bankr.E.D.Mo.1987) (junior lienholder has right superior to that of bankruptcy trustee to excess proceeds from foreclosure sale on debtor’s property); Boedeker v. Jordan (In re Jordan), 79 B.R. 843, 844 (Bankr.E.D.Mo.1986) (junior lienholder has right superior to that of debtor in bankruptcy to excess proceeds from foreclosure sale of debtor’s property).

Similarly, in this case, in applying the surplus proceeds from the foreclosure sale on the first deed of trust to the note secured by the Stulzes’ second deed of trust, Citizen’s Bank is not seeking money directly from the Stulzes. Roberts, 91 B.R. at 60. See also Boedeker, 79 B.R. at 844 (lender not claiming funds from debtor personally, but claiming surplus from foreclosure sale). Rather, Citizen’s Bank “is merely seeking to enforce its agreement with the [Stulzes], whereby [Citizen’s Bank] received an interest in the [Stulzes’] property.” Roberts, 91 B.R. at 60. Discharge in bankruptcy has no effect on Citizen’s Bank’s right to the surplus amount. Boedeker, 79 B.R. at 844.

While the Stulzes are correct that a foreclosure sale extinguishes junior liens, such a result “has no relevance as to how surplus proceeds are to be distributed to creditors after the foreclosure sale.” Reid, 73 B.R. at 90. “[T]he fact that a purchaser at a foreclosure sale takes the real estate free of junior liens in no way impairs the junior lienor’s right to the surplus, if any exists.” Id. at 91. The surplus proceeds from the sale of the property under the first deed of trust is Citizen’s Bank’s only possible means of repayment on its loan to the Stulzes. Roberts, 91 B.R. at 60. Because of the foreclosure sale, Citizen’s Bank cannot recover by way of continuing its lien on the property. Id. And, because the Stulzes have been granted a discharge in bankruptcy, Citizen’s Bank will not be able to recover from them personally. Id. The Stulzes “should not be allowed to extinguish their debt to [Citizen’s Bank] and keep the excess proceeds from the foreclosure sale.” Id. The result urged by the Stulzes would produce the “anomalous and inequitable result that the mortgagor, who could not himself sell the property and realize on [the secured creditor’s] security interest!,] may attain it if the sale is made by a senior encum-brancer.” Pioneer Credit Corp. v. Bloomberg, 323 F.2d 992, 994 (1st Cir.1963). The Stulzes should not be allowed to realize a gain at the expense of Citizen’s Bank. See Boedeker, 79 B.R. at 844; Webster, 675 F.Supp. at 554. Thus, because the Stulzes had no right to possess the surplus funds, they had no valid claim of conversion against Citizen’s Bank for Citizen’s Bank’s refusal to give up possession of the funds to the Stulzes. See Walker, 992 S.W.2d at 930. Accordingly, the trial court did not err in granting judgment in favor of Citizen’s Bank. The Stulzes’ first point is denied.

No Valid Conversion Claim Against Hall Realty

In their second point, the Stulzes assert that the trial court erred in entering judgment in favor of Hall Realty because they had a valid conversion claim against Hall Realty. In particular, they contend Hall Realty improperly kept the real estate commission awarded it from the partition proceeding because this court reversed the trial court’s judgment approving the private sale. The Stulzes argue they are entitled to half of the commission paid to Hall Realty, or $12,400, because those funds were “for the sale of all of the real estate” and they “owned one-half of that real estate.”

Under the private sale in the partition proceeding, Dee Lynch purchased the property for $310,000. The trial court entered judgment distributing the $310,000 as follows: $24,800 to Hall Realty Company; $132,924.70 to the Darringtons; $132,924.71 to Citizen’s Bank; and the remaining $19,350.59 to cover costs, taxes, and attorney’s fees. No part of the proceeds was awarded to the Stulzes. Nevertheless, the Stulzes now claim they are entitled to receive one-half of the $24,800 paid to Hall Realty because this court reversed the judgment approving the private sale. The Stulzes’ argument is illogical.

When this court reversed the judgment approving the private sale in the partition proceeding, the property reverted back to the owners, the Darringtons and the Stul-zes, and the purchase price should have been returned to the purchaser, Dee Lynch. The Stulzes did not pay any portion of the purchase price and, therefore, are not entitled to a return of any of those funds. In other words, the Stulzes, who were not the purchasers of the property in the partition proceeding, have no claim to a return of any portion of the purchase price. Only' the purchaser, Dee Lynch, would be entitled to a return of the purchase price as a result of vacating the improper sale. Consequently, the Stulzes have no right to possess one-half of the commission paid to Hall Realty and, therefore, no claim for conversion against Hall Realty for its failure to return the funds following this court’s prior decision vacating the judgment approving the private sale in the partition proceeding. See Walker, 992 S.W.2d at 930. The Stulzes’ second point is denied.

The trial court’s judgment is affirmed.

All concur.

      .Portions of the factual background are taken, without attribution, from this court’s decision in Darrington v. Stulz, 982 S.W.2d 823 (Mo.App.1998).

      . The Darringtons retained an undivided one-half interest in the property.

      . Hall Realty employed Mr. Darrington as a real estate agent.

      . Section 528.590 has not been amended since this court’s decision in Darrington.

      . The Darringtons had previously conveyed their one-half interest in the property to Dee Lynch on January 30, 1998.

      . The Stulzes filed their petition in Buchanan County. The case was eventually transferred to Holt County.

      . The Stulzes do not appeal the trial court’s judgment in favor of the Darringtons. Therefore, the Darringtons are not a party to this appeal.

      . Rule 73.01 provides, in pertinent part: In cases tried without a jury or with an advisory jury:

      (b) After the plaintiff has completed presentation of plaintiff's evidence, the defendant may move by motion for a judgment on the grounds that upon the facts and the law the plaintiff is not entitled to relief. The filing of such motion does not constitute a waiver of defendant’s right to offer evidence.

      . See e.g., Brask v. Bank of St. Louis, 533 S.W.2d 223, 227 (Mo.App.1975) ("A foreclosure sale passes title to the purchaser as of the date of the deed of trust and extinguishes the inferior encumbrances made by the grant- or subsequent to that date.”).


author: VICTOR C. HOWARD, Judge.

text:
    Timothy James WITHERWAX, Respondent, v. DIRECTOR OF REVENUE, Appellant.
    No. WD 64006.
    Missouri Court of Appeals, Western District.
    April 19, 2005.
    Cheryl Ayn Caponegro Nield, Jefferson City, MO, for appellant.
    Joseph Francis O’Hara, Independence, MO, for respondent.
    Before SPINDEN, P.J., HOWARD and NEWTON, JJ.
   VICTOR C. HOWARD, Judge.

Director of Revenue (“the Director”) appeals from a judgment in the Circuit Court of Clay County reinstating Respondent Timothy Witherwax’s (‘Witherwax”) driving privileges that were revoked pursuant to section 577.041 for failing to submit to a breathalyzer test. In her sole point on appeal, the Director argues the trial court erred in reinstating Witherwax’s driving privileges, because the trial court’s judgment is against the weight of the evidence and unsupported by substantial evidence in that the officer had reasonable grounds to believe Witherwax was driving while intoxicated. For the reasons explained below, we affirm the judgment of the trial court.

Background

The Director revoked Witherwax’s driver’s license for one year on July 11, 2003, for refusal to submit to a chemical test. On July 23, 2003, Witherwax filed a petition to review the revocation in the Circuit Court of Jackson County. After Wither-wax’s motion to change venue was sustained, the case was tried before the Circuit Court of Clay County in a bench trial on February 23, 2004.

Section 577.041.4 provides, in relevant part, that the trial court:

[Sjhall determine only:
(1)Whether or not the person was arrested or stopped;
(2) Whether or not the arresting officer had:
(a) reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated or drugged condition; ... and
(3) Whether or not the person refused to submit to the test.

Only the second determination regarding reasonable grounds is at issue in this appeal.

“This court reviews the evidence supporting the circuit court’s judgment, as well as all reasonable inferences drawn from such evidence, as true.” Kimber v. Dir. of Revenue, 817 S.W.2d 627, 630 (Mo.App. W.D.1991). “Any evidence or infer ences that are contrary to the circuit court’s judgment are disregarded.” Id. With this standard as our guide, we review the evidence.

. On June 11, 2003, at approximately 11:30 p.m., Kansas City policeman Christopher Toigo (“Toigo”) was driving southbound on North Oak Trafficway when he observed a gray Honda Accord stopped on the right-hand shoulder. There was a female leaning through the passenger window, and Toigo observed the driver and the female arguing. Toigo activated the red fights of his police cruiser and went to check the Honda Accord. Toigo believed a disturbance had occurred because the female was crying and appeared emotional and upset, and Witherwax confirmed that a verbal argument had occurred.

When Toigo approached the car, the female started walking southbound on North Oak Trafficway. Toigo asked the female to come back, but she refused, so Toigo sent another police car to detain her. Toi-go then contacted the driver who identified himself to be Timothy Witherwax. With-erwax’s eyes were glassy and watery, and he acted confused about why he had been stopped. Toigo thought Witherwax appeared upset and could have been crying. Toigo could also smell a strong odor of alcohol on Witherwax’s person.. There was no evidence that the odor was coming from his breath, and Witherwax apparently was never asked if he had been drinking.

When Toigo ran Witherwax’s driver’s license through the police dispatch, it indicated Witherwax had three outstanding warrants for parking violations in Kansas City. Witherwax was placed under arrest for the warrants and was transported back to the North Patrol Division. Toigo administered three field sobriety tests: (1) the gaze nystagmus, (2) the one-leg stand, and (3) the walk and turn. The gaze test was done at the scene, and the other two tests were done at the station.

Toigo indicated in his report that With-erwax failed the gaze nystagmus test. Though unrelated to the test, Toigo did note that Witherwax’s pupils were “normal.”

For the one-leg stand test, Witherwax was instructed to stand on one leg by lifting his foot off the ground until being told to put it down. Witherwax was able to stand on his leg for approximately 24 or 25 counts without using his arms to balance. During the one-leg stand test, With-erwax felt pain in his leg. Witherwax had had eight knee surgeries prior to June 11, 2003, and he explained this to Toigo. Witherwax asked Toigo when he could put his foot down. Toigo told Witherwax to wait until he was told. It is not clear how long Toigo intended for Witherwax to remain on one leg; but when Witherwax put his foot down before being told, Toigo determined that the one-leg stand test was over.

The walk and turn test consists of nine heel-to-toe steps down a straight line, followed by several small steps to turn around, and continuing with nine more heel-to-toe steps. Officer Toigo’s report indicated Witherwax successfully completed the test. Witherwax was able to balance while listening to instructions, he did not stop to balance himself, and Toigo agreed he was able to touch heel-to-toe “perfectly.” Witherwax also kept his balance while walking, did not use his arms to stay balanced, and did not walk too far or too short. The walk and turn test is composed of eight separate physical criteria. Toigo agreed that Witherwax passed “100 percent” of the physical criteria in the walk and turn test. Witherwax denied Toigo’s claim that he started the test before receiving complete instructions. Toi-go also noted that Witherwax’s pupils were in normal condition, his clothing was neat, and he used no profanity. Witherwax fully cooperated with Toigo.

After completing the walk and turn test and the one-leg stand test, Witherwax .believed he had satisfactorily completed the tests. Toigo denied that Witherwax’s performance on the walk and turn test was inconsistent with Toigo’s observations that Witherwax was wobbling and stumbling when he got out of the car. Witherwax denied that he was wobbling, had sagging knees, or was stumbling. Toigo did not know how much Witherwax drank, what Witherwax had drunk, or when he had his last drink before his arrest. Toigo did not observe any open containers in the car, and he did not arrest Witherwax on the scene for drunk driving. Officer Toigo said the only reason for arresting Wither-wax on the scene was parking ticket warrants.

After the field tests, Toigo asked With-erwax to take a breathalyzer test. With-erwax did not believe he was under the influence of alcohol at the time, and he did not believe there was any rational reason to take a breathalyzer test. After Toigo requested that Witherwax take a breathalyzer test, Witherwax requested an attorney. When an attorney could not be reached, Witherwax attempted to contact a bondsman. When Witherwax could not reach an attorney or a bondsman within twenty minutes, he was asked again to take a breathalyzer test. Witherwax refused to take a breathalyzer test because when he was initially arrested, there was no mention of his driving while intoxicated. Witherwax was not aware that a breathalyzer test is the best method for determining whether a person is under the influence of alcohol.

At the close of the bench trial, the trial judge stated: “I do think the [Director’s] evidence here for the purpose of the test is somewhat thin.” On February 26, 2004, the trial court entered a judgment sustaining Witherwax’s petition for reinstatement and setting aside the revocation of Wither-wax’s driver’s license. This appeal follows.

Discussion

In her sole point on appeal, the Director argues the trial court erred in reinstating Witherwax’s driving privileges, because the trial court’s judgment is against the weight of the evidence and unsupported by substantial evidence, in that the officer had reasonable grounds to believe Witherwax was driving while intoxicated.

Appeals to the circuit court for suspension of a driver’s license are de novo. § 302.311. “A trial court’s judgment in a driver’s license suspension or revocation case must be affirmed on review, unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.” Soval v. Dir. of Revenue, 2 S.W.3d 854, 856 (Mo.App. W.D.1999). “A trial court is accorded wide discretion even if there is evidence that would support a different result.” Hawk v. Dir. of Revenue, 943 S.W.2d 18, 20 (Mo.App. S.D.1997). “In a driver’s license revocation case, a trial court has the prerogative when weighing witness credibility, to accept or reject all, part, or none of the testimony of any witness.” Id.

The record reflects that much of the evidence is conflicting and disputed. For example, Witherwax denies he stumbled or wobbled when he got out of the car but, instead, says that he walked perfectly fine. This is supported by the fact that, according to Toigo, Witherwax executed the eight physical components of the walk and turn test perfectly. This is contradictory to someone who is stumbling or unable to follow instructions. Witherwax also was able to stand for 24 or 25 counts on one leg without using his arms for balance.

There is evidence that the officer detected the odor of alcohol on Witherwax’s “person” while he was sitting in his car. This may be mere semantics, but Toigo did not testify that Witherwax specifically had the odor of alcohol on his breath. Toigo noted Witherwax’s eyes were watery but also acknowledged he could have been crying. Also, there was no evidence of erratic driving, an admission of alcohol consumption, empty or open containers, or slurred speech. Witherwax’s pupils were normal, and his appearance was neat.

We must defer to the trial court on factual issues because it is in the unique position to observe the witnesses, judge credibility, and resolve any conflicts in the evidence. We find the trial court did not err in its judgment setting aside the Director’s revocation of Witherwax’s driver’s license.

Point is denied.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed.

SPINDEN, P.J., and NEWTON, J., concur.

      . All statutory references are to Revised. Statutes of Missouri, 2000.

      . Toigo had not observed any erratic driving by Witherwax, and Witherwax did not receive any traffic tickets for erratic or improper driving that night.


author: LISA WHITE HARDWICK, Judge.

text:
    In the Interest of M.W.S., Plaintiff. Juvenile Officer, Respondent, v. K.R.C.S. (Mother), Appellant.
    No. WD 64390.
    Missouri Court of Appeals, Western District.
    April 19, 2005.

      Christena L. Nelson, Hallsville, MO, for appellant.
    Jane M. Bezier, Columbia, MO, for guardian.
    Melissa McAllister, Columbia, MO, for respondent.
    Before BRECKENRIDGE, P.J., LOWENSTEIN and HARDWICK, JJ.
   LISA WHITE HARDWICK, Judge.

K.S. (Mother) appeals from a judgment terminating parental rights to her son, M.S. We affirm the judgment, finding clear, cogent, and convincing evidence in the record to support the termination on grounds of abuse and neglect under Section 211.447.4(2). RSMo.2000.

Factual and Procedural History

Mother gave birth to M.S. on January 15, 2002. At that time, the natural father of M.S. was incarcerated. M.S. was taken into protective custody on the day after his birth because Mother had pending termination of parental rights cases on her other two sons, ages 2 and 3. As in the pending cases, the juvenile officer alleged that M.S. was in need of protection because Mother had chronic head lice, unsanitary and unstable living arrangements, and was unable to provide the care and treatment necessary for an infant or young child. In February 2002, Mother consented to the termination of her parental rights on the two older children.

The Division of Family Services (DFS) developed a treatment plan with the goal of reunifying Mother with M.S. Mother agreed to the plan, which required her to maintain stable housing, work with “parent aid services,” attend the Life Skills Class and therapeutic counseling sessions, and attend her son’s medical appointments. DFS also arranged for Mother to have weekly, supervised visits with M.S.

By April 2003, a DFS case worker reported that Mother had a minimal bond with M.S. due to the infrequency of the visits, Mother’s non-responsiveness to M.S. during the visits, and the fact that Mother was not his primary caregiver. Mother was never able to progress beyond the weekly one-hour visits with M.S. because she failed to establish a stable living environment where the necessary parenting skills could be taught and practiced. Mother also failed to regularly attend her counseling sessions and M.S.’s medical appointments.

In December 2002, Dr. Stephanie Reid-Arndt conducted a neuro psychological evaluation of Mother. After noting Mother’s “longstanding history of limited cognitive abilities,” Dr. Reid-Arndt concluded that she was “currently functioning in the mildly mentally retarded range of general intelligence.” Testing indicated that although Mother was able to memorize information and repeat it back, her ability to apply such knowledge in “real-life” situations was severely limited. The evaluation report stated that, as a result of her mental deficiencies, Mother lacked the basic functional skills for independent living and self-care. Recommendations were made that Mother receive on-going case management services and the appointment of a public conservator or guardian to assist in handling her personal affairs. Given Mother’s inability to manage her own needs, the report expressed serious concern about her parenting ability and the safety of a minor dependent in her sole care.

In June 2003, upon recommendation from DFS, the juvenile officer filed a petition to terminate Mother’s parental rights to M.S. Following a trial, the circuit court granted the termination on grounds of abuse and neglect, Section 211.447.4(2), and the failure to rectify conditions of a potentially harmful nature, Section 211.447.4(3). Mother appeals, contending the termination grounds are unsupported by clear, cogent, and convincing evidence.

Standard op Review

A trial court can terminate parental rights only if the grounds for termination are supported by clear, cogent, and convincing evidence. In the Interest of M.D.R., 124 S.W.3d 469, 476 (Mo. banc 2004). Clear, cogent, and convincing evidence is that which instantly tilts the scales in favor of termination when weighed against the evidence in opposition; and the finder of fact is left with the abiding conviction the evidence is trae. In the Interest of A.S.W., 137 S.W.3d 448, 453 (Mo. banc 2004).

We will affirm the trial court’s decision to terminate parental rights unless there is no substantial evidence to support it, it is against the weight of the evidence, or the trial court misapplies or erroneously declares the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Conflicting evidence will be reviewed in the light most favorable to the trial court’s judgment. A.S.W., 137 S.W.3d at 452-53. Where the trial court finds multiple grounds for termination, any one of those grounds is sufficient to sustain the judgment on appeal. In the Interest of N.R.W., 112 S.W.3d 465, 469 (Mo.App.2003). To affirm, we must find that at least one of the termination grounds in Section 211.447 was proven by clear, cogent, and convincing evidence. In the Interest of C.C., 32 S.W.3d 824, 826 (Mo.App.2000).

Points on Appeal

In Points I and II, Mother contends the evidence was insufficient to support the termination of her parental rights under Section 211.447.4(3) for failure to rectify conditions of a potentially harmful nature. In Point III, she challenges the sufficiency of the evidence to support the termination of her rights for abuse and neglect under Section 211.447.4(2). Because we find clear, cogent, and convincing evidence in the record to support the termination on the ground of abuse and neglect, we need not address the first two points.

In terminating Mother’s parental rights under Section 211.447.4(2) for abuse and neglect, the circuit court found Mother has a permanent mental condition that renders her unable to provide for the necessary care, custody, and control of M.S. Mother contends the court’s finding is erroneous because there is no evidence that she abused or neglected M.S. as a result of a mental condition.

Section 211.447.4(2) allows for termination of parental rights for abuse and neglect when a permanent mental condition renders a parent unable to knowingly provide the child the necessary care, custody, and control. This provision requires a showing of more than mere emotional instability or mental problems; the incapacity must be so severe that it causes the parent to be incapable of providing minimally acceptable care, and the condition cannot be reversed or improved in a reasonable time. In the Interest of 160 S.W.3d 355, 2005 WL 589995 (Mo. banc March 15, 2005).

Contrary to Mother’s argument on appeal, a termination of parental rights under Section 211.447.4(2) does not require proof that the child has actually suffered abuse or neglect as a result of the parent’s mental condition. The statutory purpose of allowing terminations in such circumstances is to protect the child from the unavoidable adverse consequences of a parent’s mental illness. In the Interest of C.P.B., 641 S.W.2d 456, 460 (Mo.App.1982). Terminations on account of mental illness can be ordered when it is shown by clear, cogent, and convincing evidence that the child is being harmed or is likely to be harmed in the future, if the parental relationship is continued. Id.

Three factors should be analyzed in determining whether a mental condition warrants termination of a parent’s rights: (1) documentation — whether the condition is supported by competent evidence; (2) duration — whether the condition is permanent such that there is no reasonable likelihood that it can be reversed; and (3) severity of effect — whether the condition is so severe as to render the parent unable to knowingly provide the child necessary care, custody and control. In the Interest of K.A.W., 133 S.W.3d 1, 14 (Mo. banc 2004). The record contains ample evidence to support the circuit court’s consideration of these factors.

The juvenile officer presented medical documentation of Mother’s mental condition based on a neuropsychological evaluation by Dr. Stephanie Reid-Arndt. Mother was diagnosed as having mild mental retardation with a “longstanding history of limited cognitive abilities.” Her cognitive limitations included the inability to read or write, and significant difficulty with comprehension and learning new skills. Based on the neuropsychological testing and a previous evaluation by the Missouri Department of Mental Health, Dr. Reid-Arndt concluded that Mother’s mental retardation impaired her ability to successfully function in an independent living environment. The collective evaluations reported that Mother demonstrated poor judgment in grooming, managing her medications, self-directing her daily-activities, and in making decisions about her living arrangements, employment, and finances. Given that Mother’s mental condition was unlikely to improve, Dr. Reid-Arndt recommended that she receive on-going case management services and that a conservator or guardian be appointed to assist her in handling medical decisions, finances, and other personal business matters.

Dr. Reid-Arndt concluded that Mother’s inability to care for herself raised serious concerns about her ability to manage the needs of a minor dependent. The neurop-sychological evaluation included questioning about Mother’s basic knowledge of parenting skills. Despite having attended parenting education programs over the course of several years through her treatment plans with DFS, Mother was unable to explain what types of feeding would be appropriate for M.S. as an infant or toddler. The evaluation reported that Mother “did not appear to have a good understanding of the care that her young son would require.”

During testimony at trial, Dr. Reid-Arndt further explained the basis for her concern that Mother would be unable to function as a responsible parent:

Q: Based on your testing and evaluation, do you have an opinion as to whether [Mother] would be capable of bearing the responsibility of parenthood, and be able to insure the safety of her child?
A: I have concerns. As I said, I think this evaluation needs to be looked at in the context of her functioning at home. And based on that information, I have significant concerns.
Q: Do you have an opinion as to whether [Mother’s] diagnosis may affect her parenting ability?
A: I have definite concerns that they would. Particularly in terms of her cognitive functioning.
Q: And what do you mean by that?
A: As I indicated in my report, I think that she has some significant cognitive limitations, and I think that sometimes with some support it’s possible that people can parent effectively. My concern is that it seemed that that support had been given, and she was still having significant difficulties managing her own self care.

The testimony and report of Dr. Reid-Arndt was sufficient to document that Mother had a permanent condition of mental retardation that rendered her unable to knowingly provide for the necessary care, custody, and control of M.S. Although there was no evidence that Mother had actually abused or neglected M.S., the record provides clear, convincing, and cogent evidence that the child would likely be harmed in the future if the parental relationship continued. In addition to Dr. Reid-Arndt’s testimony, there was evidence concerning Mother’s actual abuse and neglect of her two older children as a result of her mental illness.

Mother’s oldest son, M.C., was removed from her home at the age of nine months. In March 2000, he was found to be abused and neglected due to unsanitary living conditions, inadequate housing for the rearing of a child, threats to his life by Father (who had an extensive criminal record), and injuries to the child resulting from improper supervision. Mother’s second son, G.S., was also removed from the home at the age of one month for failure to thrive. He was returned to Mother’s care briefly and then removed a second time for failure to thrive. G.S. had severe diaper rash and was reported by his attending doctor to be in imminent danger. Mother consented to the termination of her parental rights to M.C. and G.S. based on these abuse and neglect allegations.

A parent’s past abuse of other siblings is evidence of a home environment that is currently dangerous to the child for whom termination is sought. In the Interest of J.K, 38 S.W.3d 495, 503 (Mo.App.2001). In determining that Mother was incapable of providing the necessary care, custody, and control of M.S., the circuit court could reasonably consider the undisputed abuse and neglect suffered her two other young sons. We find no error in the termination of Mother’s parental rights to M.S., as the evidence supported the grounds alleged under Section 211.447.4(2).

The circuit court’s judgment is affirmed.

All concur.

      . The natural father, G.S., later consented to termination of his parental rights to M.S. and is not involved in this appeal.

      . As a prime example of her poor judgment, Mother admitted to having sex on multiple occasions with her 16-year old brother-in-law during the pendency of this case. Mother plead guilty to statutory rape and was on probation at the time of trial on her termination of parental rights.


author: ROBERT S. BARNEY, Judge.

text:
    David J. JOHNSTON, Jr., Respondent, v. Anzel E. SHOULTS and Donna Shoults, Appellants.
    No. 26345.
    Missouri Court of Appeals, Southern District, Division Two.
    April 22, 2005.

      Daniel E. Leslie, Leslie, Spieler & Ful-ford, LLC, Union, for appellants.
    Mark Weaver, Salem, for respondent.
   ROBERT S. BARNEY, Judge.

Appellants, Anzel E. Shoults and Donna Shoults (“the Shoultses”) appeal from a judgment entered by the trial court in favor of Respondent, David J. Johnston, Jr. (“Johnston”) establishing a 20-foot wide roadway by strict necessity, pursuant to section 228.342, across land owned by the Shoultses in Dent County, Missouri. The trial court determined Johnston had no access to a public road from an 80-acre tract he owned other than by the roadway so established. In their sole point relied on, discussed below, the Shoultses maintain the trial court erred in granting a roadway in favor of Johnston on the basis of strict necessity because Johnston already owned a strip of land which afforded him roadway access to his 80-acre tract.

An appellate court is to sustain a judgment in a court-tried case “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); see Rule 84.13(d). Here, “[w]e view the evidence and permissible inferences therefrom in the light most favorable to the judgment and disregard all contrary evidence and inferences.” Anderson v. Mantel, 49 S.W.3d 760, 763 (Mo.App.2001). “The ‘credibility of witnesses and the weight to be given their testimony is a matter for the trial court, which is free to believe none, part, or all of any witness’s testimony.’ ” Id. (quoting Black v. Simpson, 4 S.W.3d 175, 177 (Mo.App.1999)).

As stated in Anderson,

In an action for a private road pursuant to section 228.342, a plaintiff must show that he or she owns the land, that no public road goes through or alongside the tract of land, and that the private road petitioned for is a way of strict necessity. Strict necessity has been interpreted to mean the absence of a reasonably practical way to and from plaintiffs land that the plaintiff has a legally enforceable right to use. Convenience does not satisfy the requirement of strict necessity. Rather strict necessity means the lack of a legally enforceable right to use a practicable way to and from a person’s land, either private or public.

Anderson, 49 S.W.3d at 763 (internal citations omitted).

Additionally, we note that “ ‘[t]he issue of the general location of the private road (once strict necessity has been established) is for the court to determine.’ ” Id. (quoting Hamai v. Witthaus, 965 S.W.2d 379, 382 (Mo.App.1998)). ‘“In doing so, the respective benefits and burdens to the parties are factors to be weighed and considered by the court.’ ” Id. (quoting Moss Springs Cemetery Ass’n v. Johannes, 970 S.W.2d 372, 376 (Mo.App.1998)). “‘The statutory scheme explicitly requires that the private road established must be “situated so as to do as little damage or injury and cause as little inconvenience as practicable” to the owners of the land over which it will pass.’ ” Id. (quoting Johannes, 970 S.W.2d at 376).

The record shows Johnston owns the 80-acre tract mentioned above as well as a 38-acre tract which lies diagonally southeast of the 80-acre tract. Johnston maintained at trial that while both of these tracts meet at a point, there was neither a public nor legally enforceable private road which he could use for ingress and egress between these two tracts.

The record reveals that the Shoultses own a 40-acre tract of land which lies directly west/southwest of Johnston’s 80-acre tract, and a 37-acre tract which is located south of their 40-acre tract of land and diagonally southwest of Johnston’s 80-acre tract.

At trial, Johnston showed that his 38-acre tract connects with “W” Highway, which highway eventually connects with the southeastern portion of the Shoults’ 37-acre tract. Accordingly, Johnston requested the trial court to grant him a roadway by necessity, 20-foot wide (hereafter known as “Tract B”), to run north and south from “W” Highway along the eastern border of the Shoults’ 37-acre tract, then continuing some 20 feet north along the eastern border of the Shoults’ 40-acre tract, so as to connect to Johnston’s 80-acre tract. The trial court agreed and entered judgment in consonance with Johnston’s request.

In their sole point relied on, the Shoultses maintain Johnston failed to prove he had “no reasonably practical way to access his eighty (80) acre tract because as a matter of record and by lawful conveyance [Johnston] owns a tract of land that connects to a public road and accesses his eighty (80) acre tract,” and that he “failed to show that this tract could not provide a reasonably practicable way for him to access his eight (80) acre tract.” In support of this argument, the Shoultses point to four warranty deeds, commencing with the first one dated January 17, 1974, and ending with the last conveyance to Johnston on September 25, 1997, which facially conveyed to Johnston’s predecessors in title and ultimately to Johnston, not only his 80-acre tract of land, but also the following described roadway (hereafter known as “Tract A”), that connects with Highway “W” and would allow Johnston to access his 80-acre tract to the north, to-wit:

A 20 foot strip along the West side of the Section line separating Sections Twenty-Nine (29) and Thirty (30) from State highway “W” to the Southeast corner of the Southeast Quarter of Section 19, Township 32 North, Range 7 West.

Accordingly, the Shoultses maintain that Johnston failed to present sufficient evidence showing the absence of a “reasonably practical way ... to access” his 80-acre tract and that he faded to make his case for a roadway by strict necessity across the Shoults’ land, thereby requiring a reversal of the trial court’s judgment.

At trial, Johnston presented evidence showing that he in fact has no legal interest in the tract of land described in the foregoing deeds, i.e., Tract A, despite the language in the deed from the Browns. He maintained at trial, as he does in this appeal, that the conveyance of Tract A from the Woffords to the Moodys was in error, because the Woffords did not own the land through which Tract A ran. This error was then replicated in later deed conveyances.

Johnston presented evidence showing Tract A is actually located on the eastern border of the Northeast Quarter of the Northeast Quarter of Section 30, Township 32 North, Range 7 West, on a 34r-acre tract of land now owned by James Gor-man, and that James Gorman and his predecessors in title have owned the tract of land dating back to 1894. A.J. Gorman testified that at the time of the conveyance of Tract A from the Woffords to the Mood-ys he owned the 34 acres now owned by James Gorman, which lies just east of the 37-acre tract owned by the Shoultses. A.J. Gorman related that he did not grant an interest to anyone to run a roadway along the eastern side of his 34-acre tract. A. J. Gorman also stated that he was familiar with the 80-acre tract now owned by Johnston because his former neighbors, the Woffords, owned that tract of land prior to the Browns purchasing the property.

A.J. Gorman further testified that he was present when Mr. Wofford agreed to sell the 80-acre tract to the Moodys and agreed to allow the Moodys to access the 80-acre tract by use of a piece of land located on the “east end” of the Wofford property, i.e., the 37-acre tract now owned by the Shoultses.

In his testimony, Johnston acknowledged he had not obtained any written easements or deeds or received oral or verbal promises from anyone that would allow him to cross their land in order to remove his timber from his 80-acre tract, so as to “haul it all the way to Highway W.” In particular, he acknowledged he had no agreements with James Gorman or his neighbor, Herbert Voertman, to access his 80 acres through use of their land. Johnston also acknowledged that “trying to get across Mr. Gorman’s northeast corner or Mr. Voertman’s southwest corner ... is almost impossible.” When questioned as to what made it impossible, he indicated it was the “lay of the land.” Johnston stated that he favored the use of Tract B because the roadway was “already there,” and that the topography of the area while “not exactly flat ... it’s for the most part ... passable and flat.”

Finally, Johnston testified “there’s a residence at the front section” of Tract A that blocks ingress and egress through this particular roadway. This testimony is bolstered by that of Prugh, who also testified that title records revealed a decree quieting title, dated October 20, 1976, in which the Circuit Court of Dent County determined that Loretta McMahon, was vested with the fee simple title to a “parcel of land 2 acres square out of the southeast corner of the Northeast Quarter of the Northeast Quarter of Section Thirty (30), Township Thirty-two (32) North, Range Seven (7) West.”

Based on the foregoing, we cannot say that Johnston had a legally enforceable right to use a practicable way to and from his 80-acre tract of land, either private or public. Johannes, 970 S.W.2d at 376. The Shoults’ point relied on is denied. The judgment granting Johnston a roadway of strict necessity pursuant to section 228.342 is affirmed.

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

      . Statutory references are to RSMo 2000. Rule references are to Missouri Court Rules (2005).

      . At the time of trial, Johnston had a timber harvesting operation requiring a reasonably flat roadway for egress and ingress for his trucks.

      .Section 228.342 sets out that:
      A private road may be established or widened in favor of any owner or owners of real property for which there is no access, or insufficiently wide access, from such property to a public road if the private road sought to be established or widened is a way of strict necessity. As used in this section, the term “strict necessity” shall include the necessity to establish or widen a private road in order to utilize the property for the uses permitted by law. Any petition for the establishment or widening of a private road shall be filed and the proceeding shall be conducted in the circuit court of the county where the proposed road is to be located. The owners of the real property over which the proposed private road shall pass shall be named as defendants.

      . Acreage numbers listed in this opinion are approximate amounts, being "more or less” and are used for explanatory purposes only.
      Johnston’s eighty-acre tract of land is described as [a]ll the East Half of the Southeast Quarter of Section 19, Township 32 North, Range 7 West; while his thirty-eight-acre tract is located in the Northwest Quarter of the Northwest Quarter of Section 29, Township Thirty-Two (32) North, Range Seven (7) West.

      . The Shoults' 40-acre tract of land is described as the Southwest Quarter of the Southeast Quarter of Section 19, Township 32 North, Range 7 West. The Shoults' 37-acre tract is described as the Northwest Quarter of the Northeast Quarter of Section 30, Township 32 North, Range 7 West of the 5 P.M.

      . The trial court also awarded damages to the Shoultses in the amount of $1,000.00 and ordered that Johnston be responsible for the construction, maintenance and repair of the roadway, together with various costs and fees.

      . The first general warranty deed conveying Tract A and Johnston’s 80-acre tract is dated January 17, 1974, and reveals a conveyance from E.W. and Aileen Wofford ("the Wof-fords”) to Marion Andy Moody and Montine C. Moody (“the Moodys”); the second general warranty deed in the chain of title is dated November 7, 1974, and shows a conveyance of the same land from the Moodys to James R. Clark and Frances D. Clark ("the Clarks”). While not shown as an exhibit, transcript testimony reveals the Clarks conveyed the same properties to Harold R. Brown and Delores Brown ("the Browns”) and, in turn, the Browns conveyed the properties to Johnston by general warranty deed dated September 25, 1997.

      . The record reveals Glenda K. Prugh ("Prugh”) worked with the Dent County Abstract Company. One of her duties at the abstract company was researching land titles which she has done for the past 20 years. Prugh testified on behalf of Johnston and stated that James Gorman ("Gorman”) and his predecessors in title have held title to "the Northeast Quarter of the Northeast Quarter of Section 30 in Township 32 North, Range 7 West,” on which Gorman's 34-acre tract lies, since 1894, save for a small parcel in the southeast corner of that tract.
      With regard to the Woffords’ conveyance of Tract B to the Moodys, Prugh testified that “[the Woffords] conveyed a 20 foot strip out of the Northeast of the Northeast of’Section 30 and up to that point there had been no deed to them for that quarter-quarter." (Emphasis added). Prugh referred to that deed as a "stray deed” and one which "just pops up out of nowhere.” She also acknowledged that during her title search she did not uncover any other documents conveying an interest in the aforementioned quarter-quarter to the Woffords, the Moodys, the Clarks or Johnston, save for the previously described "stray deed” conveyance.

      . Recall, of course, that the Browns conveyed to Johnston this same tract of land, together with Tract A, in 1997.

      .In this connection, we note Mr. Shoults testified it would take but a small portion of Mr. Voertman’s or Mr. Gorman’s properties for Johnston to access his 80-acre tract from his own 38-acre tract. In their brief, the Shoultses now argue that the trial court should have considered alternative routes across these adjoining landowners' properties in determining the location of the roadway by necessity. It is clear, however, that section 228.342 " ‘does not direct that alternate ways of necessity across other adjoining land owner’s property be considered.’ ” Johannes, 970 S.W.2d at 377 (quoting Moran v. Flach, 752 S.W.2d 956, 959 (Mo.App.1988)); see also Lewis v. Hilkerbaumer, 599 S.W.2d 7, 9 (Mo.App.1980) (holding that "it is for plaintiffs to determine against whom they will proceed in seeking a roadway”). While this Court held in Anderson that the trial court abused its discretion in not receiving into evidence two proposed alternative routes, it should be noted that the alternative routes proposed in Anderson were expressly located upon the Anderson Defendants’ property and not that of adjoining landowners. Anderson, 49 S.W.3d at 765-66.

      . Among the defendants named in the quiet title action where the Moodys, the Clarks, A.J. Gorman, the father of James Gorman and James Gorman’s predecessor in title to the 34-acre tract of land. According to Prugh, the Browns were not named in the 1976 action because they had yet to acquire their interest in their property.