author: JOHN C. HOLSTEIN, Judge.

text:
    Stanley L. HALL, Appellant, v. STATE of Missouri, Respondent.
    No. SC 81782.
    Supreme Court of Missouri, En Banc.
    April 25, 2000.
    Rehearing Denied May 30, 2000.

      Susan S. Kister, Sp. Public Defender, Clayton, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Cassandra K. Dolgin, John M. Morris, Asst. Attys. Gen., Jefferson City, for respondent.
   JOHN C. HOLSTEIN, Judge.

After a jury trial, movant Stanley Hall was convicted of first degree murder, kidnapping, first degree robbery and two counts of armed criminal action. He was sentenced to death on the first degree murder count. All convictions were affirmed on appeal. State v. Hall, 955 S.W.2d 198 (Mo. banc 1997). Hall then filed a motion for post-conviction relief pursuant to Rule 29.15. He now appeals the denial of his post-conviction motion. Since this appeal involves the imposition of the death penalty, this Court has jurisdiction of the appeal. Mo. Const, art. V, sec. S.

I.

On January 15, 1994, Hall and Ranee Burton went to the South County Shopping Center in St. Louis County looking for a vehicle to steal and use in a drive-by shooting. The two noticed Barbara Jo Wood pulling into a parking lot, approached the vehicle and forced her to accompany them at gunpoint. With her sitting on the passenger side, they drove the vehicle to the McKinley Bridge, which traverses the Mississippi River from the city of St. Louis to Illinois. Once there, Wood was forced to exit the car. Burton shot Wood, firing several rounds. He got back into the vehicle and left. However, Hall remained outside the vehicle. Though bleeding from her wounds, Wood struggled with Hall and begged for him to spare her life. After some initial difficulty, Hall lifted the woman over the bridge guardrail, dropping her some ninety feet to the icy river below. .Hall was later identified by witnesses in a passing vehicle as the person seen struggling with Wood. After being arrested, Hall confessed that Wood was the woman he forced over the guardrail. Some seven months later, a lower torso identified as Wood’s was recovered alongside the Mississippi River near Chester, Illinois. The site is about seventy miles downstream from the McKinley Bridge. On this evidence, Hall was convicted and sentenced to death.

II.

Hall’s amended post-conviction motion asserts fifty-eight claims of ineffective assistance of trial and appellate counsel. Seven were withdrawn. Pursuant to the state’s motion to dismiss, the court below dismissed all but two of the remaining claims without an evidentiary hearing. Following an evidentiary hearing, the remaining two claims were denied. Extended findings of fact and conclusions of law were included in the trial court’s judgment. Neither of the two claims upon which a hearing was held is before us on appeal. Only three claims, each of which was denied without an evidentiary hearing, are raised here.

The findings and conclusions of the post-conviction court will be affirmed unless clearly erroneous. Rule 29.15(h). To constitute clear error, an appellate court, after reviewing the entire record, must be “left with the definite impression that a mistake has been made.” State v. Clay, 975 S.W.2d 121,140 (Mo. banc 1998), cert. denied, 525 U.S. 1085, 119 S.Ct. 834, 142 L.Ed.2d 690 (1999). Three requirements must be met to entitle a movant to a post-conviction hearing: (1) the motion must allege facts, not conclusions, warranting relief; (2) the facts alleged must raise matters not refuted by the files and records in the case; and (3) the matters complained of must have resulted in prejudice to the movant. State v. Starks, 856 S.W.2d 334, 336 (Mo. banc 1993). To be entitled to relief based on claims of ineffective assistance of counsel, the motion must recite facts not refuted by the record showing (1) that counsel’s performance did not conform to the degree of skill, care and diligence of a reasonably competent attorney, and (2) that movant was thereby prejudiced. Hill v. Lockhart, 474 U.S. 52, 60, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), and Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In each of the three instances raised on appeal here, the factual allegations of ineffective assistance of counsel are refuted by the record or are insufficient to establish a claim of ineffective assistance of counsel.

III.

In his post-conviction motion, Hall asserts his trial counsel was ineffective in failing to object to “improper personalization to the jurors.” One way in which improper personalization results is when the prosecutor asks the jurors to place themselves or some other identifiable person in the shoes of the victim or at the crime scene. State v. Simmons, 955 S.W.2d 729, 740 (Mo. banc 1997). However, it is acceptable to argue that society is threatened by the conduct of the accused. Id. Moreover, not every brief, isolated statement in argument that may be construed as improper personalization is of such magnitude that it undermines confidence in the outcome of the case so as to establish prejudice. State v. Tokar, 918 S.W.2d 753, 768 (Mo. banc 1996).

During the defendant’s closing argument at the guilt phase, Hall’s attorney argued that the killing of Wood was not deliberate. Instead, he maintained it was the result of Hall panicking. During the state’s rebuttal argument in the guilt phase, the prosecutor responded:

Barbara Wood was chosen for this for no other reason than she was a victim who [Hall] didn’t think would put up a fight. He is a shadow out there that has touched all of you, and people like him make people in our society worried every time our mother, our daughter, our sister, anyone leaves the house because at random for his purpose, his decision, that he was going to go kill.

For Hall’s claim of ineffective assistance of counsel to succeed, he must establish that if an objection had been made to “improper personalization” it would have been sustained. In context, the remark was not made to place jurors or their families in Wood’s place but to indicate that the defense theory of “panic” and a lack of deliberation was not credible. See State v. Kreutzer, 928 S.W.2d 854, 873 (Mo. banc 1996). Since the comment here did not directly ask any juror to put themselves or another identifiable person in the place of the victim or at the scene of the crime, the argument was not improper personalization. The argument referred only in general terms to “people in our society” who are worried about “our sister, our mother, [and] our daughter” being in danger. The reference was, at most, an indirect reference of danger to jurors or members of their families. Movant cites no authority that would mandate sustaining an objection to “improper personalization” where the only danger alluded to is a general danger to members of “our society” and “our” female relatives.

Nevertheless, citing State v. Rhodes, 988 S.W.2d 521, 528 (Mo. banc 1999), Hall insists that to merely suggest personal dangers to the jurors or their families is improper personalization. However, Rhodes carefully distinguished situations where the comments are not extensive or are insufficiently inflammatory to rise to the level of prejudicial error. Id. at 529. Here the quoted argument refers to jurors and their families only by inference. Even if one would infer that the prosecutor was referring to a specifically identifiable person being in the place of the victim or at the crime scene, the result is no different. An objection to the isolated statement in the argument may have served to highlight the comment to the jury. Not every failure to object to argument is ineffective assistance of counsel, but the alleged improper argument must be considered in the context of the trial as a whole. Tokar, 918 S.W.2d at 768. Viewing the record as a whole, including the eyewitness testimony identifying movant and Hall’s own confession, the isolated statement in closing argument does not undermine confidence in the outcome of the case. The motion court’s conclusion that counsel was not ineffective in failing to make an objection was not clearly erroneous.

IV.

Hall also claims the motion court was clearly erroneous in denying a claim that his trial counsel was ineffective in failing to request a mistrial in response to police sergeant Tim Hagerty’s testimony during the state’s case regarding Hagerty’s disbelief of some of Hall’s statements given during a custodial interview.

Hagerty took Hall into custody in Illinois on March 7, 1994, and transported Hall to the St. Louis County police department in Clayton, Missouri. After obtaining a waiver of rights, Hagerty began his interrogation of Hall. Hall told Hagerty that once he and Burton arrived on the McKinley Bridge and he and Wood exited the vehicle, she began grabbing at him and only then did he push her over the guardrail of the bridge. On cross-examination, defense counsel elicited statements made by Hall to Hagerty in which Hall claimed to have panicked after Wood was shot and that Hall was remorseful about Wood’s death. On redirect, the prosecutor asked, “[W]hy did you keep questioning the defendant?” Over defense counsel’s objection, Hagerty answered, “Because I didn’t believe many of the answers he gave me.”

Hall asserts that the testimony was an inadmissible comment by one witness on the credibility of another witness. In support of the contention, Hall cites State v. Simmons, 944 S.W.2d 165 (Mo. banc 1997), State v. Williams, 858 S.W.2d 796 (Mo.App.1993), and State v. Biezer, 947 S.W.2d 540 (Mo.App.1997). Simmons does not suggest that an interrogating officer may not comment on the believability of the accused’s answers given during a police interrogation. Indeed, it is arguable that Simmons permits an officer to testify that he believed “there was more [the accused] could have said in his confession.” Id. at 176. Simmons does not aid Hall.

In Williams and in Biezer it was held impermissible for an expert to comment on the credibility of a witness who testified at the trial. Williams, 858 S.W.2d at 798; Biezer, 947 S.W.2d at 541. However, this is not a case where a witness was commenting on the credibility of another witness who testified before the jury. Here, Hagerty was testifying to his belief regarding the complete truthfulness of an out-of-court statement. Hall was not a witness. Because Hall’s out-of-court statements to Hagerty were quite damning, the fact that Hagerty did not completely believe the statements is inconsequential, if not helpful, to Hall’s defense. The motion court committed no clear error in finding, as a matter of law, that the trial counsel was not ineffective in failing to move for a mistrial.

V.

Hall asserts the motion court clearly erred in denying his claim that appellate counsel was ineffective in failing to assert a claim of error in the admission of photographs of a torso discovered near Chester, Illinois. The torso depicted in the photographs was badly decomposed, skeletal and, to the untrained eye, barely recognizable as human. The photographs were taken at the scene where the torso was discovered and during an autopsy of the torso. The photographs were identified by two witnesses. The first was Deputy Sheriff Fred Frederking of the Randolph County, Illinois, Sheriffs Office. The other witness was forensic anthropologist Mark Johnsey, employed by the Illinois State Police. Both identified the photographs as accurate representations at the scene where the torso was found and of the autopsy. While Frederking was assisting in removing the remains, he noticed what appeared to be an elastic band from a pair of underwear around the pelvic area of the torso. The torso was taken to the local funeral home, where an autopsy was conducted. During the autopsy, John-sey examined the underwear waistband and discovered a label indicating that it was Hanes brand, size 8, women’s underwear. Both the brand and size were consistent with those worn by the victim. Moreover, the examination revealed the torso was a female about the same age as Wood who, like Wood, had borne children. The examination also determined that the torso’s height was consistent with Wood’s. From the state of decomposition, Johnsey was able to testify that the victim appeared to have died more than six months earlier. At the time the torso was found, there were no other reports of missing women who had disappeared from that area of the Mississippi River. The photographs were then admitted into evidence.

When reviewing a claim of ineffective assistance of appellate counsel, strong grounds must exist showing that counsel failed to assert a claim of error which would have required reversal had it been asserted on appeal and which was so obvious from the record that a competent and effective lawyer would have recognized it and asserted it. State v. Edwards, 988 S.W.2d 520, 522 (Mo. banc 1999).

A competent appellate lawyer familiar with the precedent of this state and the record in this case would not conclude that admission of the photographs was an error, much less an obvious error that would mandate reversal. The trial court is vested with broad discretion in the admission of photographs. State v. Rousan, 961 S.W.2d 881, 841 (Mo. banc 1998), cert. denied, 524 U.S. 961, 118 S.Ct. 2387, 141 L.Ed.2d 753 (1998). Numerous recent cases may be cited generally holding that photographs of the victim of a homicide are relevant for several purposes and that such may be admitted.

Recently, a claim almost identical to the one Hall claims his appellate lawyer should have asserted here was made on direct appeal in Rousan. There, a photograph depicting the victims’ bodies, which had lain in the ground for about a year, was admitted into evidence. This Court noted that the trial court is vested with broad discretion in the admission of photographs, that photographs are relevant if they show the scene of the crime, the identity of the victim, the nature and content of the wound, the cause of death, the condition and location of the body or otherwise constitute proof of an element of the crime or assist the jury in understanding the testimony. If relevant on those grounds, the photographs may be admitted even if they are inflammatory. Id. at 844. Here, the photographs corroborated the witness’s testimony regarding the location at which the torso was found, its condition, and the identifying characteristics which identified the body as the victim and connected it to the crime. If the photographs are shocking or gruesome, it is “because the crime is shocking or gruesome.” Id.

A competent lawyer familiar with the most recent pronouncements of this Court on the subject and familiar with the trial record would not perceive that admission of the photographs was an obvious basis for reversal of the appeal. No case is cited or found where trial counsel was held ineffective for failing to object to such photographs or holding that appellate counsel was ineffective for not asserting error in the admission of such photographs.

Nevertheless, Hall argues that under State v. Floyd, 360 S.W.2d 630, 633 (Mo. 1962), the photographs were inadmissible. That case stands only for the proposition that such photographs should not be admitted for the sole purpose of arousing emotions of the jury and to the prejudice of the defendant. See also State v. Wood, 596 S.W.2d 394, 403 (Mo. banc 1980). In Floyd, the prosecutor did not articulate any of the conventional reasons for admitting the photographs, and none was found to exist. By contrast, the prosecutor here stated that the photographs were admitted as corroborative of the testimony that tended to identify the victim and connect the torso to the crime. Had counsel asserted the claim of error on appeal, the claim would have been meritless. Thus, appellate counsel cannot be judged ineffective for failing to raise the claim. The motion court’s finding was not clearly erroneous in this regard.

CONCLUSION

The judgment of the post-conviction court is affirmed.

All concur.

      . State v. Murray, 744 S.W.2d 762, 772 (Mo. banc 1988); State v. Feltrop, 803 S.W.2d 1 (Mo. banc 1991); State v. Newberry, 605 S.W.2d 117 (Mo.1980); and State v. Wood, 596 S.W.2d 394, 403 (Mo. banc 1980).


source: Caselaw Access Project

author: RONNIE L. WHITE, Judge.

license: Public Domain

text:
    ZIP MAIL SERVICES, INC., Appellant, v. DIRECTOR OF REVENUE, Respondent.
    No. SC 82087.
    Supreme Court of Missouri, En Banc.
    May 9, 2000.

      Alan G. Gerson, Michael A. Kaplan, St. Louis, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Alana M. Barragan-Scott, Asst. Atty. Gen., Harry D. Williams, Dept, of Revenue, Jefferson City, for Respondent.
   RONNIE L. WHITE, Judge.

On September 30, 1997, Appellant Zip Mail Services, Inc. (Zip Mail) filed a petition with the Administrative Hearing Commission (AHC) regarding assessments issued by the Director of Revenue (Director) against Zip Mail for unpaid use tax for years 1991 through 1995. The AHC held a hearing and filed its findings of fact and conclusions of law. It found that Zip Mail was properly subject to the use tax, along with accrued interest and additions assessed by the Director. On October 28, 1999, Zip Mail filed its petition for review in this Court. We affirm the determination of the AHC.

I.

Zip Mail is a Missouri corporation in the business of processing mail from customers in the St. Louis, Chicago, and Detroit metropolitan areas. Once mail is received, Zip Mail electronically reads the addresses on the envelopes, applies scanable bar-codes containing this address information, and sorts the mail to be delivered to the United States Postal Service (USPS). For this service, Zip Mail charges its customers between 0.5 cent and 1 cent per envelope for picking up the mail. In addition, because it’s customers must meter their postage at the customary rate before Zip Mail takes possession of their mail, Zip Mail receives rebates from USPS for the difference between the usual metered cost and the discounted cost USPS charges for mail presorted prior to delivery.

Once Zip Mail receives metered, unsorted mail from its customers, it feeds the mail into a sorting device. This device scans the address listed on each piece of mail, compares each address with a database of some 85,000,000 different addresses to find an address match, and applies an eleven digit bar-code with an ink-jet printer that identifies a particular house or business in a given zip code. The bar-coded mail is then sorted by zip code into individual bins. The sorted mail is bundled and delivered to the USPS for verification, processing, and delivery.

From February 1991 through December 1995, Zip Mail purchased two sorting machines, four optical readers, two multi-line character readers, a meter machine, and various parts and software. After an audit, the Director assessed use tax of $30,-254.28 against Zip Mail on purchases totaling $716,077.50. In addition to the tax, the Director assessed $1,512.72 in additions and $15,402.70 in interest.

II.

In its first' allegation of error, Zip Mail claims that the AHC erred when it upheld the Director’s assessment of use tax against Zip Mail for the character readers, bar-code imprinters, scanners, and sorting machinery used in its business. This Court reviews the AHC’s interpretation of revenue laws de novo. The underlying controversy in this case involves application of section 144.610, which imposes a use tax for the privilege of storing, using, or consuming any article of tangible personal property within the State of Missouri that is not subject to sales tax. While Zip Mail concedes that the purchased items would otherwise be subject to the use tax, it argues that the purchases fit within an exemption provided sec. 144.030.2(5), which states:

Machinery and equipment, and the materials and supplies solely required for the installation or construction of such machinery and equipment, purchased and used to establish new or to expand existing manufacturing, mining or fabricating plants in the state if such machinery and equipment is used directly in manufacturing, mining or fabricating a product which is intended to be sold ultimately for final use or consumption.

Through this exemption, property is exempted from use tax where it is “(1) used directly (2) in manufacturing (3) a product which is intended to be sold ultimately for final use or consumption (4) if the machinery or equipment was purchased (a) to replace existing equipment by reason of design or product changes or (b) to expand existing manufacturing.” This exemption was enacted by the legislature to “encourage the production of items ultimately subject to sales tax and to encourage the location and expansion of industry in Missouri.”

Zip Mail contends that its purchase of mailing machinery, including character readers, bar-code imprinters, scanners, and sorters, constitute machinery or equipment that enabled Zip Mail to expand its existing manufacturing. The AHC, however, expressly noted that this contention was not adequately proven by Zip Mail. While Zip Mail largely assumes that the purchase of this equipment would expand its existing production facility, it has failed to meet its burden of proof on this point. Zip Mail argues that the AHC overlooked evidence demonstrating an increase in its production capacity and that, in accordance with Concord Publishing House, an increase in production capacity constitutes expansion. It points to three exhibits before the AHC and testimony of Zip Mail’s president to support this contention. However, the exhibits and testimony to which Zip Mail points are only descriptive of its process. They fail to explain how production capacity was increased, as is required by Concord Publishing House.

Zip Mail next contends that the production of printed materials constitutes manufacturing. It notes this Court’s decision in Galamet Inc. v. Director of Revenue that manufacturing is “the alteration or physical change of an object or material in such a way that produces an article with a use, identity and value different from the use, identity and value of the original.” Zip Mail argues that the envelopes printed with its bar-code have been manufactured into a new product by comparing the use of its machinery to produce bar-codes to machinery that purifies drinking water, the quarrying of rock, the manufacture of stationery, and the butchering of pork. Zip Mail argues that in each instance you have the same product that has been refined by some method. It argues that the envelopes it receives have been similarly refined for a better use by its printing a bar-code on the envelope face. It concludes by noting that an envelope with a bar-code has added value beyond that of an envelope without the bar-code.

We need not reach this argument, as its machinery generates neither a “sale of tangible personal property” nor a “taxable service” for final use or consumption. In order to meet this requirement, Zip Mail relies on the bar-codes it sprays on envelopes in its system. This Court in International Business Machines Corporation v. Director of Revenue recognized that section 144.010.1(8) expressly excludes computer printouts and computer output from the sale of a product in section 144.030.2(5). Zip Mail argues that the bar-codes are not a computer printout or computer output as discussed in IBM, which involved computer manipulation of financial data to create financial reports for investment companies, shareholders, and the media. Instead, it contends that the bár-codes merely serve as a template to simplify and expedite the sorting of the mail. We find that the bar-codes imprinted by Zip Mail fit squarely within the exception in IBM Corp., as the bar-codes are the final computer output attributable to Zip Mail’s optical scan equipment and character recognition software.

Furthermore, notwithstanding this exception for computer output, the bar-codes do not constitute a product for final use or consumption as required by section 144.030.2(5). Zip Mail contends that the bar-code imprinted on each piece of mail brought to Zip Mail is a manufactured product for final consumption, because it enables USPS to process the encoded mail more efficiently and helps to expedite delivery. To support this contention, Zip Mail relies heavily on a case from the Minnesota Supreme Court. In a case factually similar to the instant case, the Minnesota Supreme Court held that ink bar-codes printed by Zip Sort Corporation were a manufactured product and that the bar-codes constituted Zip Sort’s personal property. It concluded that Zip Sort Corporation was entitled to a refund on sales taxes paid for the retail purchase of capital equipment.

The AHC distinguished the Zip Sort case from the case before us. Minnesota law defines a sale as (1) a transfer of title or (2) possession of tangible personal property for consideration. When the Minnesota court held that Zip Sort sold the bar-codes to the post office, it must have relied on the transfer of possession of the bar-coded envelopes, as there was no transfer of title to them. Missouri’s statutory definition of “sale” is much narrower than that of Minnesota. Section 144.010.1(8) defines a “sale at retail” as a transfer of the ownership of, or title to, tangible personal property for use or consumption for a valuable consideration. While Zip Mail concedes that it neither owns the envelopes nor possesses title to them, it argues-that it owns the bar-codes imprinted on the envelopes and that these are sold to USPS for valuable consideration. We find this argument unpersuasive. The dissent in Zip Sort noted “the physical properties of the bar-codes - the ink printed on the envelopes - ‘were merely incidental to the services performed,’ - the labeling and bundling of mail for easier processing by the postal service.” The postage rate reduction offered by USPS was not to acquire an interest in ink imprinted on envelopes it does not own. Rather, the postage reduction was consideration for the service of having mail presorted for delivery.

III.

In its final point on appeal, Zip Mail contends that its purchases of equipment and machinery should be exempt from use tax under section 144.030.2(6). This section exempts from use tax personal property used exclusively in manufacturing, processing, modifying, or assembling products sold to the United States or any of its agencies. Zip Mail notes that post offices are included in agencies of the United States for the purpose of this exemption.

For reasons already discussed, this point fails. First, the property in question is not used exclusively for the United States or its agencies. While Zip Mail receives compensation from USPS, it customers are private entities seeking mail services. Second, even if we assume that the use is exclusively for the government, this Court finds that the business of Zip Mail does not constitute manufacturing and does not involve the sale of personal property.

Accordingly, the decision of the AHC is affirmed.

All concur.

      . L & R Egg Co. v. Director of Revenue, 796 S.W.2d 624, 625 (Mo. banc 1990).

      . All statutory references are to RSMo 1994, unless otherwise noted.

      . Concord Publishing House, Inc. v. Director of Revenue, 916 S.W.2d 186, 190 (Mo. banc 1996).

      . Id.

      . See Concord Publishing House, 916 S.W.2d at 195.

      . The exhibits Zip Mail cites include copies of five bar-coded envelopes, two bar-code templates, and a silent videotape of Zip Mail’s operation. These objects in no way establish an increase in production capacity. Similarly, Zip Mail points to testimony given by its president. While his testimony did explain the purpose of each machine, he never addressed any potential increase in production capacity.

      . Concord Publishing House merely holds that the physical plant need not be expanded to constitute expansion under section 144.030.2(5). Instead, evidence that the capacity to produce has increased is sufficient. No such evidence was presented ion this case.

      . Heidelberg Central, Inc. v. Director of Revenue, 476 S.W.2d 502, 506 (Mo.1972); see also International Business Machines Corporation v. Director of Revenue, 958 S.W.2d 554, 557 (Mo. banc 1997) (noting that a “product” is an "output with market value”).

      . Galamet, Inc. v. Director of Revenue, 915 S.W.2d 331, 333 (Mo. banc 1996).

      . Jackson Excavating Co. v. Admin. Hearing Comm., 646 S.W.2d48 (Mo.1983).

      . West Lake Quarry & Material Co. v. Schaffner, 451 S.W.2d 140 (Mo.1970).

      . Heidelberg Central, Inc. v. Director of Revenue, 476 S.W.2d 502, 506 (Mo.1972).

      . Wilson & Co., Inc. v. Dept. of Revenue, 531 S.W.2d 752 (Mo.1976).

      . See IBM Corp., 958 S.W.2d at 557 (holding that for purposes of section 144.030.2(5), the term "product” is defined as an output with market value, which includes both products and services).

      . Id. at 558.

      . See Zip Sort, Inc. v. Commissioner of Revenue, 567 N.W.2d 34 (Minn.1997).

      . The capital equipment under the Minnesota statute was required to be used by the purchaser for manufacturing and other like uses.

      . Minn.Stat. section 297A.01(3)(a).

      . Zip Sort, 567 N.W.2d at 41.

      . Zip Sort, 567 N,W.2d at 42 (quoting Fingerhut Prod. Co. v. Commissioner of Revenue, 258 N.W.2d 606, 609 (Minn.1977)) (Stringer, J., concurring in part and dissenting in part).

      . See Section 144.030.2(6); 12 C.S.R. 10-3.262.

      . See 12 C.S.R. 10-3.248(1).


author: PER CURIAM.

text:
    PROCESS CONTROLS INTERNATIONAL, INC., Appellant, v. COMMERCIAL UNION INSURANCE COMPANIES, Respondent.
    No. ED 75807.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 12, 1999.
    Application for Transfer to Supreme Court Denied April 6, 2000.
    Application for Transfer Denied May 30, 2000.
    Ted F. Frapolli, Stern & Frapolli, L.L.C.; St. Louis, for appellant.
    Russell F. Watters, T. Michael Ward, St. Louis, for respondent.
    Before: RICHARD B. TEITELMAN, P.J., CLIFFORD H. AHRENS, J„ and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Process Controls International, Inc. (“Appellant”) appeals from the grant of summary judgment in favor of Commercial Union Insurance Companies (“Respondent”) denying Appellant’s claim for pre-tendered attorneys’ fees and expenses under a commercial liability insurance policy ■with Respondent and incurred in the defense of a claim made against Appellant. On appeal Appellant argues that the trial court erred in granting summary judgment because (1) Respondent must show prejudice before Appellant’s claim for pretender defense costs may be barred; and (2) the “voluntary payments” provision in the insurance contract is ambiguous.

We have reviewed the briefs of the parties and record on appeal and no error of law appears. No precedential or jurisprudential purpose would be served by an extended opinion reciting detailed facts and restating principles of law. We affirm the trial court’s judgment pursuant to Rule 84.16(b).


author: SIMON, Judge. JAMES R. DOWD, Judge,

text:
    In re the ESTATE OF Dorothy L. RIPLEY, Appellant, v. MORTGAGE ONE CORPORATION, Respondent.
    No. ED 75364.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 15, 1999.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 13, 2000.
    Application for Transfer Denied May 30, 2000.

      Lester H. Goldman, St. Louis, for appellant.
    Ronald J. Brockmeyer, St. Charles, for respondent.
   SIMON, Judge.

Robert Ripley, personal representative of the Estate of Dorothy Ripley, deceased, appeals from a judgment of the trial court allowing the claim of Mortgage One Corporation (Mortgage One) to be a lien on the proceeds of the sale of real property subject to a deed of trust.

On appeal, personal representative contends that the trial court erred in allowing Mortgage One’s claim against the estate after the six month period for filing unsecured claims because Mortgage’s One’s unrecorded deed of trust was not a secured claim. We affirm.

In a court tried case, we affirm the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. 1976).

The record reveals that Leonard and Dorothy Ripley, husband and wife, executed a deed of trust on certain real estate to Mortgage One on September 9, 1993 to secure a note. Due to a clerical error, the deed of trust was not acknowledged or recorded. Thereafter husband died and wife continued making payments on the note. On December 26, 1996, wife died. Later that afternoon, Robert Ripley, son of deceased and later personal representative of her estate, called two credit card companies and Household Finance Corporation (HFC), the parent company of Mortgage One, to inquire if deceased had credit life insurance to pay the outstanding indebtedness. During the conversation, HFC informed Robert Ripley that it had a security interest in the real estate.

A Petition for Letters of Administration was filed on January 15,1997 and an order granting the letters was issued on January 30, 1997. The first publication of notice of the letters of administration was on February 6,1997.

Personal representative made payments from his personal funds on the Mortgage One note on January 21, 1997, February 26,1997, and March 24,1997. The property subject to the deed of trust was sold on March 28, 1997. The net sale proceeds of $57,761.06 were paid to the personal representative, and deposited in the estate account, where they have remained. At the time of the sale, the balance on the note was $42,905.78.

Mortgage One filed a claim against the estate on November 10, 1997. Personal representative filed a motion to dismiss the claim alleging that the claim was barred by section 473.360.1 RSMo.1994 (all further references shall be to RSMo 1994 unless otherwise noted), which provides that all claims must be filed within 6 months of the publication of notice of letters of administration. The trial court found the deed of trust valid and binding on the deceased and the estate. Therefore, Mortgage One had a security interest in the real property and when it was sold on the sale proceeds.

Section 473.360 Limitations On Filing Of Claims — When Claims Barred, provides in pertinent part:

1. ... all claims against the estate of a deceased person ... which are not filed in the probate division of the circuit court ... within six months after the first published notice of letters testa-
mentary or of administration, are forever barred against the estate, the personal representative, the heirs, devisees and legatees of the decedent ...
3. Nothing in this section affects or prevents any action or proceeding to enforce any mortgage, pledge or other lien upon property of the estate; except that attachment, judgment, and execution liens shall be enforced as provided in this chapter and not otherwise.

Personal Representative contends that the claim should have been disallowed because it was not filed within the six month period. Further, he argues that since Mortgage One failed to record the deed of trust before the house was sold and the proceeds distributed, it lost the ability to enforce the deed of trust and its claim became unsecured.

The threshold issue is whether the unrecorded deed of trust and note constituted a secured claim, valid as to the estate. Section 442.400, the statute pertaining to the validity of unrecorded instruments, provides: No such instrument in writing shall be valid, except between the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the recorder for record.

The record clearly establishes that the personal representative had actual notice of the deed of trust and had made payments on the note prior to the sale of the property. Since the personal estate of a decedent is not a legal entity, it is the duty of the personal representative to secure the assets for the benefit of probate expenses, creditors and thereafter distribution under the intestate law or a will. Steiner v. Vatterott, 973 S.W.2d 191, 194 (Mo.App. E.D.1998). Thus in all proceedings for or against the estate, the personal representative is an indispensable party. Id. As a result, the estate operates through the personal representative and notice to the personal representative is notice to the estate. Therefore, the estate had actual notice of the note and deed of trust. Section 442.400. Consequently, it was a secured claim and not barred by the six month limitation of section 473.360.1. See Cowan v. Mueller, 176 Mo. 192, 75 S.W. 606, 607 (1903).

Since the deed of trust is valid, the sale of the real property without Mortgage One’s permission is a violation of the deed of trust and pursuant thereto, the outstanding note balance became immediately due and payable. Mortgage One could not have brought an action on the note at that time since payments were made on the note until a few days before the sale, the note was not in default. Finally, Mortgage One could not foreclosure on the real property until six months after deceased’s death. Section 443.300. Since the property was sold within six months of deceased’s death, Mortgage One was deprived of its legal remedy under the deed of trust.

The trial court placed a lien on the proceeds of the sale. Equity allows a lien to be placed on the proceeds of the sale of property on which an obligation is owed and where the law does not provide an adequate remedy and justice would suffer without equitable relief. Wilkinson v. Tarwater, 393 S.W.2d 538, 542 (Mo.1965); Iota Management Corp. v. Boulevard Inv. Co. 731 S.W.2d 399, 420 (Mo.App. E.D. 1987). To establish an equitable lien, the following must be present: 1) a duty or an obligation owing by one person to another; 2) a res to which that obligation fastens, which can be identified or described with reasonable certainty; and 3) an intent, express or implied, that the property serve as security for the payment of the debt or obligation. Iota 731 S.W.2d at 420, Hartog v. Siegler, 615 S.W.2d 632, 639 (Mo.App. 1981).

Here, the promissory note and deed of trust, signed by husband and wife, created an obligation to repay and a security interest in the real estate. The proceeds from the sale of the real estate subject to the deed of trust, are identified with reasonable certainty. The proceeds were placed in the estate account and remain there. Additionally, there was an express intent as evidenced by the executed note and deed of trust that the real property would be subject to the deed of trust. To allow the estate to retain the full proceeds of the sale, without being required to discharge the debt owed to Mortgage One would result in unjust enrichment to the estate and eventually the heirs. See Chicago Title Insurance Co. v. Mertens, 878 S.W.2d 899 (Mo.App.E.D.1994). The trial court did not err in applying an equitable lien against the sale proceeds.

Judgment affirmed.

GARY M. GAERTNER, P.J., concurs.

JAMES R. DOWD, J., dissents in separate opinion.

JAMES R. DOWD, Judge,

dissenting.

I respectfully dissent.

The applicable statute of limitations provides:

[A]ll claims against the estate of a deceased person... which are not filed in the probate division of the circuit court within six months after the date of the first published notice of letters testamentary or of administration... are forever barred against the estate, the personal representative, the heirs, devisees and legatees of the decedent.

Section 478.860.1. Dorothy Ripley, the last surviving mortgagor, died on December 26, 1996. The circuit court first published notice of the letters of administration on February 6, 1997. A timely claim against the estate should have been filed by August 6, 1997. Mortgage One filed its claim on November 10, 1997.

Statutes which limit the time in which claims can be filed against a probate estate play a primary role in the probate process. “The purpose of a statute of nonclaim is to expedite the settlement of estates in the interest of public welfare and for the benefit of those interested in the estate.” Estate of Thomas, 743 S.W.2d 74, 78 (Mo. banc 1988). These statutes are “rigidly enforced, and no one is entitled, either in law or equity, to file a claim after the expiration of the time fixed therein.” Harrison Machine Works v. Aufderheide, 222 Mo.App. 474, 280 S.W. 711, 712 (1926).

Missouri case law is rife with situations in which a statute of limitations bars meritorious claims against a probate estate. See, e.g., Hatfield v. McCluney, 893 S.W.2d 822 (Mo.banc 1995) and Beekman v. Richardson, 150 Mo. 430, 51 S.W. 689 (1899). In Hatfield, for instance, a creditor had a valid judgment against the decedent before the decedent’s death. Hatfield 893 S.W.2d at 824. The Missouri Supreme Court held that this claim was barred by the statute of limitations. Id at 825. Recently, the Missouri Supreme Court has held that statutes of limitations in the probate process are of such crucial importance as to preclude a minor’s right to establish the identity of his deceased father. Johnson v. Akers, 9 S.W.Sd 608 (Mo.banc 2000).

Mortgage One contends their claim falls within an exception to the statute of limitations. This exception provides that “[njothing in this section affects or prevents any action or proceeding to enforce any mortgage, pledge or other lien upon property of the estate.” Section 473.360.3 (emphasis added).

The contention that this is a proceeding to enforce the mortgage holds no merit. The deed of trust in this case provides only one process by which it can be enforced. Following a limited set of circumstances, the mortgagee may accelerate all of the unpaid debt to be immediately due, then hold a foreclosure sale of the property. There is no authorization whatsoever in the deed of trust allowing the mortgagee to file suit against the mortgagor or her estate. Neither is there any provision in the deed of trust extending its security interest to the proceeds from the sale of the property. A mortgage merely provides security for a debt. Eurengy v. Equitable Realty Corp., 341 Mo. 341, 107 S.W.2d 68, 71 (1937). The right to sue on the debt stems from the underlying note, not the deed of trust.

When Mortgage One failed to record this deed of trust, it became- invalid against anyone “except between the parties thereto, and such as have actual notice thereof.” Section 442.400. The effect of this recording statute is that “subsequent bona fide purchasers of realty with no actual notice of an unrecorded interest in that realty take free of that unrecorded interest.” Ortmeyer v. Bruemmer, 680 S.W.2d 384, 395 (Mo.App.1984). In effect, Mortgage One’s deed of trust terminated once the personal representative sold the property to a bona fide purchaser who had no notice of the deed of trust.

It is clear that Dorothy Ripley owed Mortgage One money and that this money was never paid. To counter this resulting unjust enrichment to her estate, the probate court granted Mortgage One an equitable lien on the proceeds from the sale of the real estate. An equitable lien is proper when the law fails to provide an adequate remedy and justice would suffer without equitable relief. Wilkinson, 393 S.W.2d at 542; Iota, 731 S.W.2d at 420. Under the majority’s holding, Mortgage One’s claim becomes a proceeding to enforce a lien, rather than a mortgage, and thereby fits within the exception to the claim period statute, which provides that “[n]othing in this section affects or prevents any action or proceeding to enforce any mortgage, pledge or other lien upon property of the estate.” Section 473.360.3 (emphasis added).

An equitable hen is an inappropriate vehicle for enforcing the mere failure to repay money as agreed. Hahn v. Hahn, 297 S.W.2d 559, 565 (Mo.1957); Wilkinson, 393 S.W.2d at 542. Equitable liens can be granted only where there is no remedy provided by law. Wilkinson, 393 S.W.2d at 542; Iota, 731 S.W.2d at 420. Here, the

law provided two legal remedies, and Mortgage One failed to take advantage of either.

The first legal remedy was provided by the recording process. The majority correctly points out that the right to foreclose never ripened because neither the note nor the deed of trust was violated before the property was sold to a bona fide purchaser who had no notice of the deed of trust. Consequently, Mortgage One never had the opportunity to foreclose on the property-

Conversely, if the deed of trust was recorded, a title search would have revealed its existence and Mortgage One would have been paid at the closing. Mortgage One’s failure to be paid at the closing stems solely from its failure to record. Mortgage One’s own negligence deprived it of the normal benefits afforded a holder of a deed of trust who acts with ordinary diligence.

Mortgage One’s second legal remedy was to file a claim against the estate on the unpaid note within the six month time period after publication of letters. Mortgage One filed its claim almost three months after the deadline fixed by the statute. Having failed to take advantage of its two legal remedies, Mortgage One should not gain the benefit of an equitable hen. That the personal representative knew of the deed of trust or that the proceeds from the sale of the property remain in the estate should not override the principle that equity will not intervene when the law provides a remedy. Here, the law provided two remedies.

Under the majority’s holding, the Probate Code is powerless to limit the time in which a claim stemming from an unrecorded deed of trust can be brought against an estate so long as the personal representative knows the deed of trust exists. This contravenes the purpose of the six month claim period statute. I would reverse.


author: LAWRENCE E. MOONEY, Judge.

text:
    Julie Lynn HORWITZ, Appellant, v. Todd Alexander HORWITZ, Respondent.
    No. ED 75504.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 11, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 11, 2000.
    Application for Transfer Denied May 30, 2000.

      Mark G. Arnold, St. Louis, for appellant.
    Dean R. Gallego, Clayton, for respondent.
   LAWRENCE E. MOONEY, Judge.

Julie L. Horwitz, (‘Wife”) appeals the dismissal of her tort claims, and claim for necessaries (“Tort Claims”) against her ex-husband Todd A. Horwitz, (“Husband”), stemming from the couple’s seven-year marriage. Wife contends that the trial court erred in dismissing her Petition on grounds of res judicata/collateral estoppel because: (1) hearing Husband’s dissolution action prior to Wife’s Tort Claims deprived Wife of her right to a jury trial; (2) Wife’s Tori Claims are not the same causes of action as Husband’s dissolution case; and (3) collateral estoppel does not bar Wife’s separate Tort Claims in that the trial court’s findings in the dissolution case were neither necessary to that judgment nor inconsistent with her Tori Claims. Alternatively, Wife argues that the trial court erred in dismissing her lawsuit for failure to state a claim upon which relief may be granted, because Counts I, III, IV, V, and VIII of her petition allege the essential elements of the respective claims pleaded. We affirm.

Facts

Husband and Wife were married on August 27, 1989, and lived together in St. Louis County, where they raised their two children. During their marriage, Husband attended and completed medical school, becoming a board-certified physician in internal medicine. Wife’s parents made substantial monetary gifts to the couple while Husband completed medical school, and such funds were placed in joint bank accounts giving both parties equal access to the monies. In late March 1994, less than one month before Husband filed for divorce, he withdrew $78,121.75 from these accounts and transferred the money to a new joint account under his name and his mother’s name. Wife was unaware of this transaction.

Husband filed a Petition for Dissolution of Marriage (“Dissolution Petition”) on April 7, 1994, alleging the marriage was irretrievably broken and that there was no reasonable likelihood that it could be preserved. However, Husband did not have Wife immediately served with the Dissolution Petition, but instead instructed the clerk and sheriff to hold service. Two months later, during June 1994, Husband informed Wife that he had accepted a cardiologist position in Florida, and the couple argued over the issue of relocation. According to Wife, at that time Husband informed Wife that he had filed for divorce; Husband moved out of the marital residence on June 17,1994.

Wife later filed a lawsuit against Husband alleging the following Tort Claims: Count I, breach of confidential or fiduciary relationship by deception and fraud; Count II, battery; Count III, recovery of necessary expenses; Count IV, intentional infliction of emotional distress; and Count, V, negligent infliction of emotional distress. Wife later filed an Amended Petition, adding Count VI, violation of Missouri Wiretap Law; Count VII, violation of Federal Wiretap Act; Count VIII, private nuisance; and Count IX, invasion of privacy.

Approximately fourteen months after initially filing the Dissolution Petition, Wife was served. Wife filed a counterclaim for dissolution of marriage, requesting spousal maintenance, sole physical and legal custody of the couple’s two children, and child support from Husband.

Husband sought joinder of the dissolution action with Wife’s Tort Claims. Despite Wife’s opposition to joinder, the trial court granted Husband’s motion to join and conducted a bench trial in the dissolution case.

The trial court issued a judgment/decree of dissolution in December 1996, making detailed findings of facts regarding the couple’s marriage. Husband then filed a motion to dismiss Wife’s Tort Claims on the grounds of res judicata, collateral es-toppel and failure to state a claim upon which relief may be granted. The trial court, taking judicial notice of the record and judgment in the dissolution, granted Husband’s motion and dismissed Wife’s Tort Claims. Wife appealed, but this court dismissed that appeal because the trial court had not entered a final appeal-able judgment in that the order was not denominated a judgment in compliance with Rule 74.01(a). T.A.H. v. J.L.H., 969 S.W.2d 338 (Mo.App.E.D.1998).

On remand, Husband again filed a motion to dismiss, asking the court to take judicial notice of the findings in the dissolution case. The trial court did so and issued an order denominated “Judgment” sustaining Husband’s motion to dismiss without specifying the grounds for its ruling. Wife subsequently filed this timely appeal.

Analysis

In his motion to dismiss, Husband requested the trial court take judicial notice of the record and its findings of facts and conclusions in the dissolution matter, and the trial court expressly stated in its judgment on Husband’s motion to dismiss that it would do so. Therefore, we will treat the trial court’s grant of Husband’s motion to dismiss as a motion for summary judgment as the trial court considered matters outside the pleadings when rendering its judgment on the matter. Rule 55.27; Wehmeier v. Triplett and Roller, 741 S.W.2d 732 (Mo.App.E.D.1987).

Appellate review of the propriety of summary judgment is de novo. Easy Returns Midwest, Inc. v. Schultz, 964 S.W.2d 450, 453 (Mo.App.E.D.1998). Summary judgment will be affirmed if the reviewing court determines that no genuine issue of material fact exists and the movant has a right to judgment as a matter of law. Gladis v. Rooney, 999 S.W.2d 288, 289 (Mo.App.E.D.1999). Viewing the record in the light most favorable to Wife, we now turn to her allegations of error on appeal.

Wife’s first complaint is that the trial court erred in hearing Husband’s dissolution case before her Tort Claims, in that such sequencing deprived Wife of her right to a jury trial.

However, our review of the legal file fails to disclose any record of the trial court being explicitly asked to rule on Wife’s sequencing argument. While Wife may have objected to the sequencing of the two trials in her Memorandum in Opposition to Defendant’s Motion to Join, the record fails to disclose evidence of an express ruling by the trial court on this issue. Allegations of error that have not been presented to or expressly decided by the trial court shall not be considered on appeal. Section 512.160 RSMo. (1994). Therefore, the issue presented is not properly preserved for appellate review.

Wife next argues, in separate points relied on, that the trial court erred in dismissing her Tort Claims because neither res judicata nor collateral estoppel bars her causes of action, nor does she fail to state a claim upon which relief could be granted. Again, the trial court dismissed Wife’s Tort Claims without specifying the grounds on which it was doing so. When the trial court fails to specify its reasons for dismissing a petition, we presume the trial court acted for one of the reasons stated in the motion to dismiss. Shores v. Express Lending Services, Inc., 998 S.W.2d 122, 125 (Mo.App. E.D.1999). “In addition, we will affirm the order of dismissal if any ground supports the motion, regardless of whether the trial court relied on that ground.” Id., quoting City of Chesterfield v. Deshetler Homes, Inc., 938 S.W.2d 671, 673 (Mo.App. E.D.1997).

Because Husband argued in his motion to dismiss that Wife’s Tort Claims are barred by res judicata, collateral estoppel or failure to state a claim, we will affirm' the trial court’s judgment if Wife’s claims should have been dismissed for any reason. Accordingly, we must examine each claim in turn to determine whether it is barred for any reason.

Breach of Fiduciary Duty

In order to state a claim for breach of fiduciary duty, both the existence of a confidential or fiduciary relationship between husband and wife and a breach of such relationship must be shown. Mahler v. Tieman, 550 S.W.2d 623, 628 (Mo.App. E.D.1977); Bogert on Trusts, section 498, p. 268-269. A confidential or fiduciary relationship exists when a special confidence is reposed in one party and there is resulting domination of or influence on the other party. Fix v. Fix, 847 S.W.2d 762, 765 (Mo. banc 1993). A confidential, or fiduciary, relationship is not proven merely by a showing that the persons have ties of blood or family. Misskelly v. Rogers, 721 S.W.2d 170, 172 (Mo.App. W.D.1986). Under Missouri law, the primary question is whether one family member has dominion over the other family member in regard to the transaction involved. Fix, 847 S.W.2d at 766, citing Misskelly, 721 S.W.2d at 172.

Wife alleges that Husband owed her a fiduciary duty in two respects, one arising from the marital relationship and his failure to disclose the filing of his Dissolution Petition, and another because she had entrusted him with money intended for the purchase of a home, money which Husband removed from family bank accounts.

With respect to her first claim, Wife cites us to no cases establishing a spouse’s duty to disclose the filing of a dissolution petition. In fact, Wife provides only one citation for the proposition that failure to disclose material facts is a breach of fiduciary duty. See McKeehan v. Wittels, 508 S.W.2d 277 (Mo.App. E.D. 1974). In McKeehan, the court was presented with a fiduciary relationship between principal and agent, and stated that the existence of such relationship “obligates the agent to make a complete and full disclosure of all material facts concerning the transaction which might affect the principal’s decision regarding his or her investments.” Id., at 281. Surely, an agent’s duty to disclose material facts regarding a principal’s investments does not mandate a Husband’s duty to disclose the filing of a divorce petition.

Wife also claims Husband owed her a fiduciary duty as to funds held in joint bank accounts. Sections 362.470(1) and 369.174(1) RSMo. (1994) state in pertinent part that when an account is maintained in the names of two or more persons as joint tenants, such monies become the property of the persons as joint tenants and may be paid to any one of such persons during his lifetime. Wife has not claimed that Husband made any misrepresentation regarding the family bank accounts, nor has she alleged that she had the sole right to the money contained in the joint accounts. She has, however, claimed Husband violated an oral agreement that the money be used for the purchase of a family home. Such an agreement might support a claim for breach of fiduciary duty justifying the imposition of a constructive trust as to the proceeds. Wilber v. Wilber, 312 S.W.2d 86, 90 (Mo.1958).

Therefore, we will consider whether the trial court erred in dismissing Wife’s breach of fiduciary duty claim with respect to the removal of family monies from the joint bank accounts on the grounds of collateral estoppel. In determining whether a claim is barred by collateral estoppel, we consider four factors: (1) whether the issue decided in the prior adjudication was identical with the issue presented in the present action; (2) whether the prior adjudication resulted in a judgment on the merits; (3) whether the party against whom collateral estoppel is asserted was a party or in privity with a party to the prior adjudication; and (4) whether the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate in the prior suit. Meckfessel v. Fred Weber, Inc., 901 S.W.2d 335, 339 (Mo.App. E.D.1995).

Wife presented evidence in the dissolution action that Husband removed $78,-121.75 from the couple’s joint bank accounts, which the trial court concluded was not marital misconduct as such money was available for either party to withdraw. Instead, the trial court simply attributed the above stated sum to Husband as marital property. Secondly, Husband’s dissolution action was heard and ruled upon by the court, resulting in a judgment on the merits. Further, Wife was a party to the dissolution action. Finally, we find no evidence in the record that Wife did not have a full and fair opportunity to litigate the dissolution action. Accordingly, we find that the trial court correctly dismissed Wife’s breach of fiduciary duty claim on collateral estoppel grounds.

Claim for Necessaries

We also disagree with Wife’s contention that the trial court erred in dismissing her separate claim for necessaries, as we conclude such claim is also barred. Wife’s claim for necessaries should have been joined and tried with her counterclaim for dissolution of marriage. Her counterclaim sought an award of spousal maintenance and child support from the same man from whom Wife now seeks reimbursement for necessaries.

The resolution of the issue before us involves “two closely related legal principles: splitting a cause of action and res judicata. Adams by Northcutt v. Williams, 838 S.W.2d 71, 72 (Mo.App. E.D.1992), citing Eugene Alper Constr. Co., Inc. v. Joe Garavelli’s of West Port, Inc., 655 S.W.2d 132, 135 (Mo.App. E.D.1983). As we have previously said:

A cause of action which is single may not be split and filed or tried piecemeal, the penalty for which is that an adjudication on the first suit is a bar to the second suit_ In general, the test for determining whether a cause of action is single and cannot be split is: (1) whether the separate actions brought arise out of the same act, contract or transaction; (2) or whether the parties, subject matter and evidence necessary to sustain the claim are the same in both actions.

Id.

Wife has clearly attempted to split her cause of action into two lawsuits. Wife’s counterclaim for dissolution of marriage against Husband involves the issues of spousal maintenance, custody and child support, while her second civil lawsuit involves an action to recover necessaries expended to support herself and the children. Both arise out of the same acts or events, the marriage of Husband and Wife and the fathering of Wife’s children.

Moreover, both lawsuits involve the same parties, and Wife was aware of all the basic facts contained in the second lawsuit when she filed her counterclaim for dissolution. Therefore, it was incumbent upon her to plead all grounds, theories and counts in her first lawsuit. Ford v. Ford, 867 S.W.2d 639, 640-41 (Mo.App. S.D. 1993), citing Adams by Northcutt, 838 S.W.2d at 72-73. Upon entry of the judgment in the dissolution action, all of Wife’s rights to remedies against Husband with respect to all or any part of the acts or events out of which the first action arose merged into that judgment. See Restatement (Second) of Judgments, section 18 comment a, and section 24 (1982). As such, we find the trial court did not err in dismissing Wife’s claim for necessaries.

Remaining Tort Claims

Wife also alleged seven other tort claims in her Petition, including battery, intentional infliction of emotional distress, negligent infliction of emotional distress, violation of Missouri Wiretap Law, violation of Federal Wiretap Act, private nuisance, and invasion of privacy. Wife presents only two pages of argument in a forty-nine page brief in support of her contention that the trial court erred in dismissing these remaining seven counts on the grounds of res judicata or collateral estoppel.

Rule 84.13(a) states in relevant part that allegations of error not briefed or not properly briefed shall not be considered in any civil appeal. “An appellant must develop the contention raised in the point relied on in the argument section of the brief.” Nixon v. Lichtenstein, 959 S.W.2d 854, 860 (Mo.App. E.D.1997), citing Luft v. Schoenhoff, 985 S.W.2d 685, 687 (Mo.App.E.D.1996). If a party does not support such contentions with relevant authority or argument beyond conclusory statements, the point is considered abandoned. Id. With respect to Wife’s remaining seven counts, she has failed to meet the requisite standard.

In support of her argument, Wife relies primarily on S.A.V. v. K.G.V., 708 S.W.2d 651, 658 (Mo. banc 1986) for the proposition that res judicata does not bar a subsequent tort action because “there are distinct differences between the division of marital property between spouses and awards of damage for an injury.” However, in that case the parties did not even raise the issue of whether res judicata would bar subsequent tort claims similar to Wife’s, nor does the Supreme Court expressly address the issue. Appellant fails to cite this Court to any cases to support her proposition that res judicata does not bar the specific tort claims she has brought against Husband. Instead, she merely cites two cases, Wood v. Wood, 716 S.W.2d 491 (Mo.App. S.D.1986) and Nebbitt v. Nebbitt, 589 S.W.2d 297, 300 (Mo. banc 1979), dealing with a wife’s action for fraud and conversion, which are two claims Wife has not alleged here.

Wife’s argument in support of her position that collateral estoppel does not bar her tort claims is equally cursory and lacking in legal citations. As such, we find all of Wife’s arguments with respect to her seven remaining tort claims abandoned.

The judgment of dismissal is affirmed.

PAUL J. SIMON, P.J., and KATHIANNE KNAUP CRANE, J., concur.

      . For purposes of this appeal, we collectively refer to Wife’s claim for necessaries and tort claims as “Tort Claims.”


author: EDWIN H. SMITH, Judge. SMART, Presiding Judge,

text:
    Kristi WILLIAMS, et al., Appellants, v. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Respondent.
    No. WD 57074.
    Missouri Court of Appeals, Western District.
    Feb. 1, 2000.
    As Modified March 28, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 28, 2000.
    Application for Transfer Denied May 30, 2000.

      Larry D. Coleman, Kansas City, for appellants.
    James M. Slone, Kansas City, for respondent.
    Before: SMART, P.J., and ELLIS and EDWIN H. SMITH, JJ.
   EDWIN H. SMITH, Judge.

Kristi Williams, individually and as next friend for her minor sons, Marcel Williams and Benjamin Mims, appeals from the judgment of the Circuit Court of Jackson County granting summary judgment to the Missouri Highway and Transportation Commission (the MHTC) on the appellants’ claims for damages resulting from a motor vehicle accident in Kansas City, Missouri.

In their sole point on appeal, the appellants claim that the trial court erred in granting the MHTC’s motion for summary judgment on the basis that their claims were barred by sovereign immunity because genuine issues of material fact existed as to whether the dangerous condition exception of § 537.600 applied to waive the sovereign immunity defense of the MHTC so as to allow their claims for damages.

We reverse and remand.

Facts

At approximately 12:01 a.m. on June 19, 1995, Kristi Williams (Williams) was driving her 1989 Ford Tempo south on Bruce R. Watkins Drive in Kansas City, Jackson County, Missouri. Her two minor sons, Marcel Williams (Marcel) and Benjamin Mims (Benjamin), were passengers in the car. When she neared the intersection at Meyer Boulevard, she noticed that the traffic signals were out in all directions. Upon reaching the intersection, she stopped and, after determining that it was safe to proceed, entered the intersection. As she entered the intersection, another vehicle, driven by Angela T. Uber (Uber) and traveling west on Meyer Boulevard, struck the driver’s side of Williams's car. Uber was uninsured.

As a result of the collision, Williams and her sons were injured and her vehicle was extensively damaged. Williams received injuries to her neck, shoulder, and knee. Marcel sustained injuries to his leg, neck, collarbone, and head, requiring several weeks of hospitalization, and Benjamin suffered a broken nose and multiple abrasions and contusions.

On April 10, 1997, as a result of the accident, Williams, individually and as next friend for her sons, filed suit against the MHTC in the Circuit Court of Jackson County to recover damages for their personal injuries and property loss from the damage to Williams’s Ford Tempo. An amended petition was filed on July 22, 1997. The MHTC moved for and on March 5, 1998, was granted leave by the trial court to add Uber as a third-party defendant. The appellants alleged, inter alia, in their petition that the sovereign immunity bar to their claims was waived in that the lights-out condition of the traffic signals at the intersection constituted a dangerous condition under § 537.600. The appellants also filed suit against their insurance company, American Standard Insurance Company of Wisconsin, to recover under their uninsured motorist coverage. Their claims under their uninsured motorist coverage were later settled.

On July 23, 1998, the MHTC filed a motion for summary judgment. In its motion, the MHTC alleged, inter alia, the following claimed undisputed facts:

4.Plaintiffs have asserted previously that the direct and proximate cause of Plaintiffs’ accident and injuries was “the negligent and careless acts of the uninsured motorist (Angela Uber).” See Paragraph 5 of Application for Approval of Compromise Settlement and Authority to Execute Release, signed by Plaintiff Kristi Williams on behalf of Benjamin Mims, attached hereto as Exhibit
“C” and incorporated herein by reference, and on behalf of Marcel Williams, attached hereto as Exhibit “D” and incorporated herein by reference.
5. Plaintiffs allege in Paragraph 8 of their Petition for Damages, which allegations MHTC has in its Answer denied, that Plaintiffs’ accident and their injuries were proximately caused by the dangerous condition of MHTC property, which dangerous condition was created either by the negligent or wrongful act or omission of an employee of the MHTC within the course and scope of his/her employment or that MHTC had actual or constructive notice of the dangerous condition in sufficient time prior to the injury to have taken measures to protect against the dangerous condition.
6. Contrary to the allegations in Paragraph 8 of Plaintiffs [sic] Petition for Damages, and assuming arguendo that an intersection becomes a dangerous condition when traffic signal lights go completely out, no act or omission by an MHTC employee within the course and scope of his/her employment created the condition, nor did MHTC, through its employees, have actual or constructive notice of the dangerous condition within sufficient time prior to Plaintiffs’ accident and injury to have taken measures to protect against said alleged dangerous condition.

In support of its motion, the MHTC filed the affidavit of Wallace L. Shelton, who, at the time of his affidavit and deposition, was a regional maintenance supervisor for the Missouri Department of Transportation. However, at the time of the accident, he was the signal and lighting supervisor for the district, which included the intersection of the accident.

On September 8, 1998, the appellants filed their response to the MHTC’s motion for summary judgment in which they alleged, inter alia, that Shelton’s deposition testimony supported a finding that the material facts on which the MHTC relied for summary judgment were in dispute so as to defeat the MHTC’s motion. On February 10, 1999, the MHTC filed a voluntary dismissal as to the third-party defendant, Uber. On March 11, 1999, the trial court granted the MHTC’s motion for summary judgment.

This appeal follows.

Standard of Review
Our review is essentially de novo. The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially. The propriety of summary judgment is purely an issue of law. As the trial court’s judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court’s order granting summary judgment.

ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993) (citations omitted). Summary judgment will be upheld on appeal if: (1) there is no genuine dispute of material fact, and (2) the movant is entitled to judgment as a matter of law. Id. at 380.

When considering appeals from summary judgments, the [cjourt will review the record in the light most favorable to the party against whom judgment was entered. 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 summary judgment motion. We accord the non-movant the benefit of all reasonable inferences from the record.

Id. at 376 (citations omitted).

I.

In their sole point on appeal, the appellants claim that the trial court erred in granting the MHTC’s motion for summary judgment on the basis that their claims were barred by sovereign immunity because genuine issues of material fact existed as to whether the dangerous condition exception of § 537.600 applied to waive the sovereign immunity defense of the MHTC so as to allow the appellants’ claims for damages. We agree.

The doctrine of sovereign immunity protects public entities, such as the MHTC, from liability for negligent acts. § 537.600; Fantasma v. Kansas City, Mo., Bd. of Police Comm’rs, 913 S.W.2d 388, 391 (Mo.App.1996). The doctrine was abrogated by the Missouri Supreme Court in Jones v. State Highway Commission, 557 S.W.2d 225, 230 (Mo. banc 1977), but was reinstated by the legislature in 1987 by its enactment of § 537.600. Uptergrove v. Housing Auth., 935 S.W.2d 649, 652 (Mo.App.1996). Section 537.600 provides, in pertinent part, as follows:

1. Such sovereign or governmental tort immunity as existed at common law in this state prior to September 12, 1977, except to the extent waived, abrogated or modified by statutes in effect prior to that date, shall remain in full force and effect; except that, the immunity of the public entity from liability and suit for compensatory damages for negligent acts or omissions is hereby expressly waived in the following instances:
(1) Injuries directly resulting from the negligent acts or omissions by public employees arising out of the operation of motor vehicles or motorized vehicles within the course of their employment;
(2) Injuries caused by the condition of a public entity’s property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury directly resulted from the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of harm of the kind of injury which was incurred, and that either a negligent or wrongful act or omission of an employee of the public entity within the course of his employment ere-ated the dangerous condition or a public entity had actual or constructive notice of the dangerous condition in sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

This statute provides two exceptions to the sovereign immunity doctrine: (1) the “motor vehicle exception” and (2) the “dangerous condition exception.” Uptergrove, 935 S.W.2d at 653. It is the second exception on which the appellants relied to recover against the MHTC.

Claiming that the dangerous condition exception of § 537.600 applied so as to waive the sovereign immunity bar to their claims, the appellants alleged in their first-amended petition that a dangerous condition of the MHTC’s property existed in that the traffic lights, which controlled the intersection where the accident in question occurred, were out at the time of the accident. For the dangerous condition exception of § 537.600 to apply, the appellants were required to plead and prove not only that (1) there existed a dangerous condition of the MHTC’s property, but that (2) the injury directly resulted therefrom; (3) the dangerous condition created a reasonably foreseeable risk of the kind of harm incurred; and (4) a public employee negligently created the condition or had actual or constructive notice of the condition in time to protect against the dangerous condition. § 537.600; State ex rel. Missouri Highivay and Transp. Comm’n v. Dierker, 961 S.W.2d 58, 60 (Mo. banc 1998).

Under Rule 74.04, to be entitled to summary judgment, the MHTC was required to show that: (1) no genuine dispute existed as to those material facts upon which it was relying for summary judgment; and (2) based on these undisputed facts, it was entitled to judgment as a matter of law. Rule 74.04; ITT Commercial Fin. Corp., 854 S.W.2d at 380. If the movant for summary judgment is a defending party, as in the present case, a prima facie case for summary judgment may be established by one or more of the following means: (1) showing undisputed facts that negate any one of the claimant’s required proof elements; (2) showing that the claimant, after an adequate period of discovery, has not produced and would not be able to produce evidence sufficient to allow the trier of fact to find the existence of any one of the claimant’s required proof elements; or (3) showing that there is no genuine dispute as to the existence of each of the facts necessary to support an affirmative defense properly pleaded by the movant. ITT Commercial Fin. Corp., 854 S.W.2d at 381. “Regardless of which of these three means is employed by the ‘defending party,’ each establishes a right to judgment as a matter of law. Where the facts underlying this right to judgment are beyond dispute, summary judgment is proper.” Id. In its motion for summary judgment, the MHTC, as a defending party, employed both the first and second means for making a prima facie case for summary judgment by alleging: (1) facts which it asserted negated the second element of the dangerous condition exception to sovereign immunity; and (2) that the appellants had not and would not be able to produce any evidence to prove the fourth element of the dangerous condition exception. We discuss each of these bases for summary judgment, infra.

A. Second Element - Did the Appellants’ Injuries Directly Result from the Lights-Out Condition of the Traffic Signals at the Intersection?

The MHTC claims that on the undisputed facts, as alleged in its motion, the second element of the dangerous condition exception of § 537.600, the “causation element,” was negated. Specifically, the MHTC contends that the lights being out at the intersection was not the direct and proximate cause of the appellants’ injuries because the negligence of the uninsured motorist, Uber, intervened to cause the accident and their injuries. Thus, in determining whether the MHTC made a pri-ma facie case for summary judgment by negating the causation element of the dangerous condition exception, we must decide whether, on the undisputed material facts, Uber was negligent and, as a result, the alleged dangerous condition of the traffic lights being out was not the direct cause of the injuries claimed by the appellants.

“The phrase ‘directly resulted from’ in section 587.600.1(2) is synonymous with ‘proximate cause.’ ” Dierker, 961 S.W.2d at 60 (citing Dale By Dale v. Edmonds, 819 S.W.2d 388, 890 (Mo.App. 1991)).

“Proximate cause requires something in addition to a ‘but for’ causation test because the ‘but for’ causation test serves only to exclude items that are not causal in fact; it will include items that are causal in fact but that would be unreasonable to base liability upon because they are too far removed from the ultimate injury or damage.”

Id. (quoting Callahan v. Cardinal Glennon Hasp., 863 S.W.2d 852, 865 (Mo. banc 1993)). In general, the practical test of proximate cause is “ ‘considered to be whether the negligence of the defendant is that cause or act of which the injury was the natural and probable consequence.’ ” Id. (quoting Krause v. U.S. Truck Co., 787 S.W.2d 708, 710 (Mo. banc 1990)). “‘To the extent the damages are surprising, unexpected, or freakish, they may not be the natural and probable consequences of a defendant’s actions.’ ” Id. at 61 (quoting Callahan, 863 S.W.2d at 865). ‘“[T]he negligence of [the] defendant need not be the sole cause of the injury ... [i]t is sufficient that it be one of the efficient causes thereof, without which the injury would not have resulted.’ ” Crane v. Drake, 961 S.W.2d 897, 902 (Mo.App.1998) {quoting Patrick v. Alphin, 825 S.W.2d 11, 13 (Mo.App.1992)). The trier of fact normally decides causation, Peterson v. Summit Fitness, Inc., 920 S.W.2d 928, 936 (Mo.App.1996), especially where reasonable minds could differ as to causation on the facts of the case. Linton v. Missouri Highway and Transp. Comm’n, 980 S.W.2d 4, 9 (Mo.App.1998).

The MHTC alleged in its motion that Uber was negligent and her negligence was an intervening cause of the accident resulting in the appellants’ injuries because she entered the intersection, which was uncontrolled at the time due to the traffic lights being out, without stopping her vehicle and yielding to Kristi Williams’s vehicle, which was already in the intersection. In support of its allegation that Uber’s negligence was the direct cause of the appellants’ injuries and not the alleged dangerous condition, the MHTC stated in its motion, as an undisputed material fact, that the appellants had “asserted previously that the direct and proximate cause of [appellants’] accident and injuries was ‘the negligent and careless acts of the uninsured motorist (Angela Uber).’ ” As a specific reference in support of this allegation, the MHTC cited “Paragraph 5 of Application for Approval of Compromise Settlement and Authority to Execute Release, signed by Plaintiff Kristi Williams on behalf of Benjamin Mims, ..., and on behalf of Marcel Williams,” with respect to their claims against Uber.

To succeed on its motion for summary judgment on the basis that the causation element of the dangerous condition exception, relied upon by the appellants to recover, was negated, the respondent necessarily was required to rely on an inference that Uber’s negligence was the direct and proximate cause of the accident. Even assuming, arguendo, that such an inference could be drawn from the alleged undisputed facts, the appellants contend that this inference alone would not be sufficient to negate the causation element of the dangerous condition exception they alleged, so as to entitle the MHTC to summary judgment. This is so, they contend, in that a public entity may be sued, under a waiver of sovereign immunity, concurrently with another party at fault. We agree. See Linton, 980 S.W.2d at 7-8; Oldaker v. Peters, 869 S.W.2d 94, 100 (Mo.App.1993); Fox v. City of St. Louis, 823 S.W.2d 22, 24 (Mo.App.1991); Cole v. Missouri Highway and Transp. Comm’n, 770 5.W.2d 296, 298-99 (Mo.App.1989). As stated in Oldaker, the “negligence of the defendant need not be the sole cause of the injury, as long as it is one of the efficient causes thereof, without which injury would not have resulted.” Oldaker, 869 S.W.2d at 100. Thus, even accepting that a causal connection could be established between the negligence of Uber and the accident, rendering her liable to the appellants, this fact would be insufficient, in and of itself, to negate the second element of the dangerous condition exception pled by the appellants in order to waive the sovereign immunity defense of the MHTC. As such, the MHTC failed to make a prima facie case for summary judgment on this basis.

Even though we have determined that summary judgment would not he for the MHTC with respect to the causation element of the dangerous condition exception, that does not end our inquiry. This is so in that, as discussed, supra, the MHTC would have been entitled to summary judgment if any element of the appellants’ required proof to recover could not, under the undisputed facts and as a matter of law, be established. ITT Commercial Fin. Corp., 854 S.W.2d at 381. As such, we still must determine whether the MHTC was entitled to summary judgment with respect to its allegations as to whether the appellants could establish the fourth element of the dangerous condition exception.

B. Fourth Element - Did a MHTC Employee Create or Have Actual or Constructive Notice of the Lights-Out Condition of the Traffic Signals at the Intersection?

As discussed, supra, in addition to the other three specified elements, the appellants, in order to establish the dangerous condition exception, were also required to plead and prove the fourth element, that a MHTC employee negligently created the alleged dangerous condition or the MHTC had actual or constructive notice of it in time to protect against it. Dierker, 961 S.W.2d at 60. This element is found in § 537.600.1(2), which provides, in pertinent part, that:

either a negligent or wrongful act or omission of an employee of the public entity within the course of his employment created the dangerous condition or a public entity had actual or constructive notice of the dangerous condition in sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

As to this element, the MHTC employed the second means available to a defending party to make a prima facie case for summary judgment by alleging that the appellants, after an adequate period of discovery, had not and would not be able to produce evidence sufficient to allow a jury to find that the MHTC had sufficient notice to protect against the dangerous condition alleged. ITT Commercial Fin. Corp., 854 S.W.2d at 381.

As to the fourth element, in order to establish the dangerous condition exception, it was sufficient for the appellants to show either that: (1) the lights-out condition of the traffic fights was created by a MHTC employee; or (2) it had actual or constructive notice of the condition in time to protect against it. Dierker, 961 S.W.2d at 60. Thus, in order for the MHTC to make a prima facie case for summary judgment on the failure of the appellants to produce evidence to establish the fourth element of the dangerous condition exception, it would have had to plead and show that the appellants could not, on the evidence capable of production, prove that a MHTC employee caused the lights-out condition of the traffic signals or that it had sufficient notice of the condition so as to protect against it. Even assuming, ar-guendo, that it did make a prima facie case for summary judgment with respect to the fourth element, we find that the MHTC’s motion was still improvidently granted, in that the appellants rebutted it, as discussed, infra.

Because the fourth element of the dangerous condition exception of § 537.600 can be satisfied on the two specified alternative bases, it follows then that, if facts existed from which either could be found, the MHTC’s motion for summary judgment, predicated on its attack on the fourth element, should have failed, and the trial court erred in granting it on that basis. Thus, even assuming, arguendo, that a prima facie case for summary judgment was made by the MHTC with respect to the fourth element of the dangerous condition exception, for the reasons discussed, infra, we find that summary judgment for the MHTC on that basis was improper in that there were facts in dispute from which it could be reasonably inferred that the lights-out condition of the traffic signals was created by an employee of the MHTC.

Once a prima facie case is made for summary judgment, “an adverse party may not rest upon the mere allegations or denials of the party’s pleading, but his response, by affidavits or as otherwise provided in this Rule 74.04, shall set forth specific facts showing that there is a genuine issue for trial.” Rule 74.04(e). In his or her response, the non-movant, is required “to show — by affidavit, depositions, answers to interrogatories, or admissions on file — that one or more of the material facts shown by the movant to be above any genuine dispute is, in fact, genuinely disputed.” ITT Commercial Fin. Corp., 854 S.W.2d at 381. If such a showing is not made by the non-movant, judgment is proper for the movant. Id. at 382. A “genuine issue” exists where the record contains competent evidence of “two plausible, but contradictory, accounts of the essential facts.” Id. “A ‘genuine issue’ is a dispute that is real, not merely argumentative, imaginary or frivolous.” Id.

To defeat summary judgment for the MHTC based on its allegation that the appellants could not produce evidence to prove the fourth element of the dangerous condition exception, the appellants, in their response, stated that there was evidence from which it could be reasonably inferred that an employee of the MHTC created the lights-out condition of the traffic signals. In so stating, they relied on the deposition testimony of Shelton, who, at the time of the accident, was employed by the MHTC as a signal and lighting supervisor for the district which included the intersection where the accident occurred. In his deposition, he testified, in pertinent part, that: (1) the traffic lights at the intersection were completely out at the time of the accident; (2) the cause of this condition was that a breaker in the main disconnect box had been manually turned off, causing a loss of power; (8) the disconnect boxes are normally locked, with keys to the locks being in the possession of MHTC employees; and (4) the lock for the disconnect box in question was missing. It could be inferred from Shelton’s deposition testimony that an employee of the MHTC unlocked the disconnect box, in the course of his or her employment, and switched off the breaker, without switching it back on, creating the lights-out condition at the intersection. In light of this, summary judgment for the MHTC, with respect to its challenge that the appellants could not establish the fourth element of the dangerous condition exception, was improper.

Conclusion

The circuit court’s summary judgment for the MHTC on the appellants’ claims for damages is reversed and the cause is remanded for further proceedings consistent with this opinion.

ELLIS, J., concurs.

SMART, P.J., concurs in separate opinion.

SMART, Presiding Judge,

concurring.

Although I concur in the decision to vacate the summary judgment ruling and remand the case for further proceedings, I write separately in order to discuss the concepts of dangerous condition and proximate cause.

The majority opinion might be interpreted as suggesting that a controlled intersection which has lost its signals due to lack of power is necessarily a condition of property which a jury could reasonably find to be a dangerous condition. I submit that the submissibility of the hypothesis of dangerous condition depends upon the facts and circumstances of the case. A controlled intersection which lacks power and is therefore without signals is the equivalent of an uncontrolled intersection. An uncontrolled intersection is not necessarily a dangerous condition. The fact that some other driver may drive carelessly and illegally, thereby colliding with the plaintiffs car is not enough, in itself, to allow plaintiff to demonstrate that a street or an intersection is a dangerous condition of property. Otherwise, every street and every intersection and every roadway would potentially be a dangerous condition of property. In this case, it cannot be stated as a matter of law that this intersection necessarily qualifies as a dangerous condition of property. None of the circumstances are before us by way of stipulation or otherwise. On remand, one of the things the court will consider is whether the circumstances of the intersection make the hypothesis of dangerous condition sub-missible to the jury.

For a condition to be dangerous within the meaning of § 587.600, more is required than simply the notion that a collision is likely to happen there if someone does not follow the rules. Certainly, a roadway may be negligently designed in such a way as to be dangerous when the condition itself significantly aggravates the common dangers of vehicle operation which would already be present. Jemes v. Highway Comm’n, 557 S.W.2d 225 (Mo. banc 1977); Linton v. Missouri Hwy. & Transp. Comm’n, 980 S.W.2d 4 (Mo.App.1998). Even a downed stop sign might create a dangerous condition where, for instance, the cross street might be designed without a stop sign or other control and, given other factors such as visibility, the downed stop sign could cause the intersection to be a dangerous condition. See Donahue v. City of St. Louis, 758 S.W.2d 50 (Mo. banc 1988) (holding claim of downed stop sign sufficient for pleading purposes). The court in Logan v. Phillips, 896 S.W.2d 38 (Mo.App.1994), which was a case that, like this case, involved a power outage to a light controlled intersection, did not address the specific issue of dangerous condition because the defendant in that case was not a municipality but a power company, and because the court there decided that the power outage was not a proximate cause of the collision. However, because of the overlap between the concepts of dangerous condition and proximate cause, the case is worthy of consideration in this context. Logan suggests that such an intersection is not necessarily a dangerous condition. We have found no case holding that a claim that a controlled intersection which lacks the power for the operation of its signals is necessarily submissible as claim of a dangerous condition. On remand, the court will examine the facts and circumstances in context, in determining whether the hypothesis that the intersection is a dangerous condition qualifies for submissibility to the jury.

Although I agree that the MHTC did not in this case establish that the negligence of the alleged errant driver was the intervening cause or the sole efficient cause in this case, I also do not think it necessarily can be said that the causation element is submissible. The statute requires not only that there be a dangerous condition of property, but also that plaintiffs injury must have “directly resulted” from the dangerous condition. As already stated, we do not know whether the intersection in this case can qualify as a “dangerous condition,” because we do not know all of the facts. Moreover, we do not know whether the failure of the signals to operate was an efficient cause of plaintiffs injuries because we do not know what the evidence will show at trial as to the facts of the collision. In Logan, v. Phillips, 896 S.W.2d 38 (Mo.App.1994), mentioned briefly above, the vehicle causing the injury entered the uncontrolled intersection out of turn (the other cars were stopping, as at a four-way stop, and crossing alternately) and at an excessive rate of speed for the circumstances. The court held that the lack of functioning signals was not a proximate cause of the collision because the negligence of the other vehicle operator (which happened to be a police officer) was the sole efficient cause of the collision. The lack of power was considered too remote to be considered an efficient cause of the collision.

Although issues of dangerous condition and proximate cause are generally issues for the jury, such issues are sometimes questions of law for the court. Logan v. Phillips, 896 S.W.2d 38 (Mo.App.1995); Linton v. Highway Comm’n, 980 S.W.2d 4, 9 (Mo.App.1998). Not every allegation of dangerous condition or proximate cause creates an issue for the jury’s determination. On remand, the trial court will examine the allegations in the light of the facts and circumstances as to all of the requirements for submission of a claim under § 537.600 RSMo 1994.

      . In addition to the appellants' claims for personal injuries, Kristi Williams also had a claim for property loss for damage to her 1989 Ford Tempo, which she alleged was a total loss.

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

      . All rule references are to the Missouri Rules of Civil Procedure (1998), unless otherwise indicated.

      . It should be noted that, although the negation of elements two and four was the basis on which the MHTC relied for summary judgment, it did not concede elements one and three for purposes of trial.

      . Uber’s alleged negligence was presumably predicated on the intersection being uncontrolled and a violation of § 304.351.1, which provides that the "driver of a vehicle approaching an intersection shall yield the right-of-way to a vehicle which has entered the intersection from a different highway, provided, however, there is no form of traffic control at such intersection.” It may have also been predicated on § 304.010.1, which, prior to being amended, effective March 13, 1996, imposed a duty on an operator of a motor vehicle to drive "in a careful and prudent manner and at a rate of speed so as not to endanger the property of another or the life or limb of any person and shall exercise the highest degree of care.” See Crane, 961 S.W.2d at 901.

      . In Donahue v. City of St. Louis, 758 S.W.2d 50, 52 (Mo. banc 1988), the Missouri Supreme Court recognized that the improper maintenance of traffic controls is encompassed by the dangerous condition exception to the defense of sovereign immunity. There, the alleged dangerous condition was a downed stop sign, id. at 50, which, in our view, is much like a traffic signal that is out, such as in our case. Relying on Donahue, the courts in Linton, 980 S.W.2d at 6-7, Fox, 823 S.W.2d at 24, Nagy v. Missouri Highway and Transportation Commission, 829 S.W.2d 648, 651-52 (Mo.App.1992), Cole, 770 S.W.2d at 297-98, and Wilkes v. Missouri Highway and Transportation Commission, 762 S.W.2d 27, 28 (Mo. banc 1988), held that improper signage could constitute a dangerous condition under § 537.600 to waive sovereign immunity. In light of these decisions and the fact that there was no dispute that the traffic signal lights at the intersection were out at the time of the accident, it could be inferred reasonably that this condition, at the very least, contributed to directly cause the accident.