author: ROBERT S. BARNEY, Judge.

text:
    Steve RITCHIE and Anita Ritchie, Appellants, v. Kelly GOODMAN, Jeremy Shumard, Frank Shumard, Jr., Sue Shumard, Danny W. Mers, and John Does 1 through 5, Respondents.
    No. 26429.
    Missouri Court of Appeals, Southern District, Division Two.
    March 21, 2005.
    Motion for Rehearing or Transfer Denied April 13, 2005.
    Application for Transfer Denied May 31, 2005.

      Glenn R. Gulick, Jr., Joplin, for appellants.
    David P. Bub, Brown & James, P.C., St. Louis, for respondents.
   ROBERT S. BARNEY, Judge.

Steve and Anita Ritchie (“Appellants”) appeal from the trial court’s order and judgment sustaining Respondents Jeremy Shumard, Frank Shumard, Jr., and Sue Shumard’s (collectively “Respondents”) motion to dismiss Appellants’ petition for the wrongful death of their daughter, Kelsey Ritchie (“Kelsey”). § 537.080. In their petition, Appellants premised Respondents’ liability upon their ownership of certain property where a group of minors became intoxicated at a party, which ultimately resulted in Kelsey’s death in an automobile accident involving several of these minors. Appellants now bring three points of trial court error, discussed more fully below, based upon the trial court’s determination that Appellants’ petition failed to state a claim upon which relief could be granted. We affirm the decision of the trial court.

Treating all facts alleged by the petition as true, Anderson v. Vill. of Jacksonville, 103 S.W.3d 190, 193 (Mo.App.2003), the record reveals that on the evening of March 23, 2001, Respondent Jeremy Shu-mard (“Jeremy”), held a party at the home of his parents, Respondents Frank Shu-mard, Jr. and Sue Shumard (the “Shu-mards”). Those in attendance at the party included, among others, eighteen-year-old Adam Tomblin (“Tomblin”); seventeen-year-old Toby Waters (“Waters”); eighteen-year-old Noah Heath (“Heath”); eighteen-year-old Aaron Anderson (“Anderson”); seventeen-year-old Kelsey; and, sixteen-year-old Anna Isles (“Anna”). The majority of those attending the party were high school students and none of them were over twenty-one years of age.

Prior to that evening’s party, several of the minors collected money from their friends and obtained a keg of beer, which they set up in the Shumards’ backyard near a shed. On that evening, in addition to consuming beer from the keg, the party goers built a bonfire, which they ran through and danced around; passed around a bottle of vodka; and, listened to music.

At some point in the evening, Anderson, Heath, Anna, and Kelsey left Respondents’ residence, at the behest of Anderson, and traveled in Heath’s Ford Mustang. Heath operated the automobile and Anderson was in the passenger seat. The two young ladies were in the back seat. About a mile from Respondents’ house, Anderson asked Heath to stop the vehicle so that he could urinate. Heath pulled the vehicle to the right hand side of the roadway and parked. The two boys exited the vehicle and the girls remained inside. According to Anderson, he and Heath decided to remain stopped in the roadway to wait for Tom-blin and Waters, who they knew would be coming along soon in Tomblin’s vehicle.

Moments later, Tomblin, driving his Honda Accord with Waters in the passenger seat, left Respondents’ party and started traveling in the direction in which Heath had driven. Shortly thereafter, Tomblin, who was legally intoxicated and driving at a speed of approximately 82 miles per hour, crested a hill and struck the rear end of Heath’s parked vehicle. As a result of the collision, both Anna and Kelsey were pronounced dead at the scene of the accident; Tomblin, Anderson, Waters, and Heath suffered serious injuries.

Appellants’ petition does not set out specific counts against Respondents. It appears they premised Respondents’ liability upon three separate but related theories. First, as best we discern, Appellants assert a public policy argument which would extend joint liability to social hosts who provide alcoholic beverages to minors. Based on the fact that Respondents provided alcoholic beverages to the minors in the present matter, Appellants allege that “it was reasonably foreseeable to [Respondents] that those minors would then negligently operate motor vehicles upon public highways while under the influence of said liquor,” and that such negligence directly contributed to cause the motor vehicle collision that resulted in Kelsey’s death. Second, Appellants posited that Respondents were “negligent in failing to supervise the minors attending the party upon their premises” in that the minors, who were visibly intoxicated, “expressed the intention of leaving the party in automobiles” and Respondents’ failure to prevent them from leaving resulted in the automobile collision which caused Kelsey’s death. Third, Appellants asserted Respondents were liable under the principles set forth in the Restatement (Second) of ToRts § 318 (1965) for the conduct of the various minors that attended the party at their home.

In their motion to dismiss, Respondents asserted Appellants’ petition failed to state a claim upon which relief could be granted under Rule 55.27(a)(6), due to the fact that, inter alia, the State of Missouri does not impose civil liability upon social hosts. Furthermore, Respondents maintained that their actions or inactions did not constitute the proximate cause or the cause-in-fact of Kelsey’s -death. Additionally, Respondents maintained they had no duty to Kelsey upon which Appellants could premise liability under section 318 of the Restatement. The trial court sustained Respondents’ motion and dismissed Appellants’ petition. This appeal followed.

“In determining if a petition states a cause of action, all facts that are properly pleaded and all reasonable inferences that may be drawn therefrom are taken as true.” Smith v. Gregg, 946 S.W.2d 807, 809 (Mo.App.1997). “If facts essential to recovery are not pleaded, the dismissal will be affirmed.” Id.

As best we discern Appellants’ first point, they maintain the trial court erred in dismissing their petition because they properly asserted a cause of action against Respondents arising from “the public policy and common law of the State of Missouri” which provides that social hosts, such as Respondents, who allow minors to drink alcohol on their property and then operate motor vehicles, “should be jointly liable for the negligence of the minors in the use and operation of the motor vehicles.”

In Hardman v. Smith, 697 S.W.2d 219, 221 (Mo.App.1985), the Eastern District of this Court recognized that, there was a common law prohibition against imposing civil liability on social hosts for damages related to a guest’s consumption of alcoholic beverages. Further, the Hardman court explained that social guests occupy the status of a licensee while customers of a tavern owner are business invitees; accordingly, a tavern owner has a higher duty of care than a social host Id.

We also note that in Andres v. Alpha Kappa Lambda Fraternity, 730 S.W.2d 547 (Mo. banc 1987), the parents of a local fraternity member who died from acute alcohol intoxication brought a wrongful death petition against the local and national fraternities based upon a social host theory, because the local fraternity had provided alcohol to their deceased minor son. Id. at 548. In reversing an award of damages by a jury, the Supreme Court of Missouri reaffirmed the Western District of this Court in its determination that neither principles of common law negligence nor any statutes enacted by the Missouri legislature, in particular section 311.310, imposed a duty upon social hosts to abstain from furnishing alcoholic beverages to individuals under twenty-one years of age. Id. at 553. Persuaded by the correctness of the Hardman holding, the Andres court explained that:

imposing liability upon social hosts would have ‘a substantial impact on everyday social and family affairs’ and therefore the parameters of any duty imposed on social hosts should be determined by the legislature. Moreover, unlike commercial vendors, social hosts do not realize any pecuniary gain from the furnishing of alcoholic beverages and for this reason they likewise have no incentive to encourage excessive consumption. In addition, the typical social host lacks the expertise required to evaluate the quantity of alcohol a guest can safely consume. Lastly, commercial vendors are able to insure themselves against the risks of furnishing alcoholic beverages while such protection is not presently available to social hosts.

Id. at 553 (quoting Hardman, 697 S.W.2d at 221). Accordingly, the Andres court held, “it does not necessarily follow that civil liability can be imposed though there may have been a violation of the criminal statute.” Id. at 550.

We also observe that in the argument portion of their brief Appellants attempt to extend the application of section 537.053, in conjunction with section 302.505 (the so-called “zero tolerance” law as it pertains to minors), to support their claim against Respondents. We decline the invitation to enlarge the application of these statutes. “[S]ection 537.053, RSMo 2000, expresses a legislative intent to shield purveyors of intoxicants from liability for the injuries caused by their patrons with the exception of persons licensed to sell intoxicating liquor by the drink for consumption on the premises who sell to minors.” Gabelsberger v. J.H., 133 S.W.3d 181, 186 (Mo.App.2004) (emphasis added). Here, Respondents are not “purveyors of intoxicants” and no cause of action exists against them under section 537.053. Id.; Lambing v. Southland Corp., 739 S.W.2d 717, 719-20 (Mo. banc 1987). Furthermore, nowhere in section 302.505 is there a legislative expression imposing any civil liability on anyone providing intoxicants to a minor. Missouri simply does not recognize the theory that a social host is civilly liable. See Andres, 730 S.W.2d at 553. While we acknowledge this Court’s power to modify the common law we are not prepared to rule contrary to the evolving case law in this area. Lambing, 739 5.W.2d at 718. As we see it, the legislature is better equipped to pronounce public policy relating to the consumption of alcoholic beverages by a minor in a social host setting. See Harriman, 697 S.W.2d at 221-22. Accordingly, we determine Appellants’ petition did not state a legally recognizable cause of action and was properly dismissed by the trial court. See Gabelsberger, 133 S.W.3d at 185. Point One is denied.

In their second point on appeal, Appellants assert the trial court erred in dismissing their claim of negligent supervision against Respondents. According to Appellants, their petition properly alleged that Respondents “negligently supervised the minors in attendance when said minors became visibly impaired from consumption of alcohol, [and] expressed the prior intention to leave the premises by motor vehicle, [and] did leave the premises by motor vehicle, and such negligent supervision contributed to cause the collision and the resulting death of Kelsey Ritchie.”

“Negligent supervision, like any other tort, involves a breach of a duty defendant owes plaintiff which causes plaintiff to suffer damages.” Smith, 946 S.W.2d at 809. “To be liable for negligence there must have been (1) a duty for the defendant to have protected plaintiff from an injury; (2) the defendant’s failure to perform the duty; and (8) injury to plaintiff as a result of that failure.” Id.

This contention by Appellants is disposed of by this Court’s holding in Smith. In Smith, the defendants were hosts for a graduation party that extended into the morning hours. Id. at 809. A keg of beer was supplied for which guests paid $8.00 each and another type of alcoholic beverage was supplied for the guests’ consumption. Id. Most of the guests were under 21, including two of the three party hosts. Id. One of the hosts, defendant Gregg, while in an intoxicated state, assaulted one of the guests and the victim sued all of the party hosts. Id. Among plaintiffs contention was that defendant Cato, the owner of the residence where the party was held, failed to supervise the party to insure that alcohol was not served to minors and also failed to undertake any act to supervise the conduct of the other defendants or the guests at the party. Smith, 946 S.W.2d at 809. Affirming the trial court’s dismissal of plaintiffs negligence claims, including that of negligent supervision, this Court noted that, based on Andres, “there is no civil cause of action against social hosts for providing alcohol to minor guests.” Id. at 811; see also Andres, 730 S.W.2d at 553. Accordingly, we held that:

[t]o the extent plaintiffs petition attempts to allege negligence based on failure to supervise the party to insure alcoholic beverages were not served to minors and supplying liquor to minors, it is deficient in that, as a matter of law, this petition fails to plead facts that demonstrate existence of a duty that would support an action for negligence.

Id. at 812. Point denied.

In their third point on appeal, which is similar to their second point, Appellants premise error upon the trial court’s dismissal of their cause of action against Respondents based on section 318 of the Restatement of Torts. Appellants maintain Respondents knew or had reason to know they had the ability to control the minors by taking away their car keys or not permitting them to leave the party; that Respondents “knew or should have known of the necessity and opportunity for exercising such control;” that the intoxicated minors leaving the party in their automobiles “created an unreasonable risk of bodily harm to Kelsey Ritchie and others;” and, that such negligence on the part of Respondents contributed to causing Kelsey’s death.

It has been stated that “[pjublic policy in Missouri is that it is the consumption and not the furnishing of alcoholic beverages that is the proximate cause of injuries inflicted by intoxicated persons.” McClure v. McIntosh, 770 S.W.2d 406, 408 (Mo.App.1989), § 537.053.1, RSMo 1986. As ably set out by Respondents, we observe that section 318 addresses the issue of whether or not a special relationship exists, and hence a “duty,” in regard to a negligence-based cause of action. Accordingly, even if section 318 could be said to have imposed a duty upon Respondents, Appellants still cannot establish the causation element required in order to assert a negligence-based claim against Respondents. As case law clearly sets out, based on the common law, it was the consumption of alcoholic beverages by Heath and Tomblin and not the furnishing of the alcoholic beverages to them by Respondents that was the proximate cause of the untimely death of Kelsey and Anna. Leimkuehler v. Myers, 780 S.W.2d 653, 654 (Mo.App.1989); Gabelsberger, 133 S.W.3d 181, 185 (Mo.App.2004); see also § 537.053. Given the foregoing policy pronouncements as set out in the cases cited in this opinion, and particularly the disposition of our Supreme Court in Andres, we will not extend the provisions of section 318 so as to furnish a basis for assertion of a negligence claim against Respondents. See Andres, 730 S.W.2d at 553. Point denied.

The judgment is affirmed.

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

      . Unless otherwise specified, all statutory references are to RSMo 2000 and Rules references are to Missouri Court Rules (2004).

      . We note that in its order and judgment the trial court acknowledged that Appellants had dismissed their cause of action against the other named defendants, John Does 1 through 5 and Kelly Goodman. The record also shows that the trial court had previously sustained Appellants' motion for a voluntary non-suit against Defendant Danny W. Mers.

      . Respondents’ "Motion to Strike Plaintiffs’ Statement of Facts” is denied.

      . "Section. 311.310 [RSMo 1986], prohibited] the sale or providing of alcoholic beverages to individuals under twenty-one years old.” Andres, 730 S.W.2d at 548 n. 3.

      . Section 537.053.2 also sets out that:
      The legislature hereby declares that this section shall be interpreted so that the holdings in cases such as Carver v. Schafer, 647 S.W.2d 570 (Mo.App.1983); Sampson v. W.F. Enterprises, 611 S.W.2d 333 (Mo.App.1980) and Nesbitt v. Westport Square, Ltd.., 624 S.W.2d 519 (Mo.App.1981) be abrogated in favor of prior judicial interpretation finding the consumption of alcoholic beverages, rather than the furnishing of alcoholic beverages, to be the proximate cause of injuries inflicted upon another by an intoxicated person.
      Section 302.505.1, in pertinent part, provides for the suspension or revocation of the license of any person:
      less than twenty-one years of age when stopped and was stopped upon probable cause to believe such person was driving while intoxicated ... with excessive blood alcohol content ... or upon probable cause to believe such person violated a state, county or municipal traffic offense and such person was driving with a blood alcohol content of two-hundredths of one percent or more by weight.

      . "Our responsibility is to 'determine the legislative intent from what the legislature said and not from what we think the legislature intended to say or inadvertently failed to say.’ ” Andres, 730 S.W.2d at 552 (quoting Gray v. Wallace, 319 S.W.2d 582, 585 (Mo.1958)).

      . Section 318 states:
      If the actor permits a third person to use land or chattels in his possession otherwise than as a servant, he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the actor:
      (a) knows or has reason to know that he has the ability to control the third person, and
      (b) knows or should know of the necessity and opportunity for exercising such control.
      Restatement (Second) of Torts § 318 (1965).

      . In pertinent part, Leimkuehler, involved a suit by a plaintiff passenger against an intoxicated minor driver and another passenger, who had purchased alcoholic beverages from a defendant liquor store and had then given the alcohol to the minor driver. Leimkuehler, 780 S.W.2d at 654. The intoxicated minor driver drove off the traveled portion of the road and overturned, seriously injuring the plaintiff. Id. In affirming the trial court’s dismissal of the case due to plaintiff's failure to state a cause of action, the Western District of this Court relied on the Harriman pronouncement that "no cause of action existed at common law against one who furnished, by sale or gift, intoxicating liquor to a person who became voluntarily intoxicated and thereafter injured another.” Leimkuehler, 780 S.W.2d at 654. The appellate court also noted that the “common law theory was that the consumption of alcohol, and not the supplying thereof, was the proximate cause of injury.” Id. Accordingly, the Leimkuehler court held that it was the "consumption [by the minor driver] of intoxicating beverage[s] and his voluntary intoxication which was the proximate cause of the injury suffered by [plaintiff] and not the supplying of such beverage to [minor driver by co-defendant passenger],” thereby precluding a cause of action by plaintiff against defendants. Id.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Mark A. POWELL, Defendant/Movant, v. STATE of Missouri, Plaintiff/Respondent.
    No. ED 84414.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 22, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 27, 2005.
    Maleaner Harvey, Assistant Public Defender, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Dora A. Fichter, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Mark A. Powell (Movant) appeals from the motion court’s judgment denying his Rule 29.15 motion for post-conviction relief after an evidentiary hearing. A jury convicted Movant of: one count of first-degree robbery, in violation of Section 569.020 ; one count of armed criminal action, in violation of Section 571.015; and one count of resisting arrest, in violation of Section 575.150. The trial court sentenced Mov-ant, as a prior and persistent offender, to concurrent terms of: twenty-nine years’ imprisonment on the robbery conviction; twenty-nine years’ imprisonment on the armed criminal action conviction; and one year of imprisonment on the resisting arrest conviction. Movant appealed the judgment of his conviction and sentence, and this Court affirmed in State v. Powell, 104 S.W.3d 417 (Mo.App. E.D.2003). Mov-ant thereafter timely filed his pro se and amended motions alleging ineffective assistance of counsel, pursuant to Rule 29.15.

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

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


text:
    In the Interest of A.J.L.H., Minor.
    No. ED 85370.
    Missouri Court of Appeals, Eastern District, Division One.
    March 22, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 27, 2005.
    Application for Transfer Denied May 31, 2005.
    Kathleen C. DuBois, Clayton, MO, Chris E. Rollins, St. Louis, MO, for appellant.
    William P. Grant, Clayton, MO, for respondent.
    Kimi Lyn Rensing, Webster Groves, MO, for juvenile.
    Before GARY M. GAERTNER, SR., P.J., MARY K. HOFF, J. and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Appellant, N.H.L. (“Mother”), appeals from the judgment of the Circuit Court of St. Louis County, entering an adoption decree in favor of Respondents, James Schlitter and Marilyn Schlitter (“the Sehlitters”). We affirm.

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


author: VICTOR C. HOWARD, Judge.

text:
    Gary Stuart BOND, Appellant, v. Linda Lou BOND, Respondent, Bond Brothers Distributors, Inc.; Stuart Bond and Andrew Bond, Defendants.
    No. WD 62541.
    Missouri Court of Appeals, Western District.
    March 22, 2005.
    Application for Transfer to Supreme Court Denied May 3, 2005.
    Application for Transfer Denied May 31, 2005.
    Gail Berkowitz-Gifford, Kansas City, MO, for Respondent.
    Michael W. Blanton, Lee’s Summit, MO, for Appellant.
    Before EDWIN H. SMITH, C.J., HOWARD and NEWTON, JJ.
   VICTOR C. HOWARD, Judge.

Appellant Gary Stuart Bond (“Gary”) appeals from the judgment dissolving his marriage to Respondent Linda Lou Bond (“Linda”). Gary and Linda were married on June 22, 1969, and have two grown children, Stuart and Andrew. During the course of their marriage the Bonds were involved in several vending machine businesses. One of those companies, Bond Brothers Distributors, Inc., (BBDI), was a major source of controversy during the dissolution proceedings, and the trial court’s division of that property is the basis for Gary’s claims of error in this appeal.

Gary claims the trial court erred in designating BBDI as marital property and then awarding the company to him. Gary argues that BBDI cannot be marital property because neither he nor Linda is a shareholder of the corporation. Instead, Gary insists that Stuart and Andrew are the sole shareholders and owners of BBDI. Gary contends that BBDI must be removed from his property award, which unfairly leaves him with only 25.63% of the marital property requiring us to remand for a re-division of the marital property.

Much of the parties’ arguments at trial and on appeal focus on the propriety of “piercing the corporate veil” of BBDI to establish the true ownership of the company. Missouri law recognizes, under certain circumstances, that the corporate veil may be pierced to hold the owners of a corporation responsible for a liability or injury to another. 66, Inc. v. Crestwood Commons Redevelopment Corp., 998 S.W.2d 32, 40 (Mo.banc 1999). However, it is not necessary to explore this area of the law to resolve the issues raised in this appeal.

“In a marriage dissolution action, the trial court is expressly directed by the statute, Section 452.330[.]1, to divide the marital property.” Ravenscroft v. Ravenscroft, 585 S.W.2d 270, 274 (Mo.App. W.D. 1979), disapproved on other grounds by Hoffmann v. Hoffmann, 676 S.W.2d 817, 824-25 (Mo.banc 1984). Inherent in this legislative directive is the trial court’s authority and duty to determine which marital property is owned by the parties. Sometimes, as in this case, the determination of ownership involves competing claims, lodged not just by the spouses, but also by third parties. Where third parties claim an interest in marital property:

[Jjoinder or intervention of third parties is permissible and necessary where such third parties hold or claim some interest in property involved in the proceedings. The rationale ... rests on the inability of the divorce court to make an equitable division of the property if all claims of interest owners are not simultaneously adjudicated and the consequent multiplicity of suits or circuity of actions if third parties are left subsequently to litigate their claims with the divorced spouses.

Id. (Citations omitted). Joinder of all the interested parties allows for finality of the judgment and alleviates any due process concerns when the judgment affects property subject to a claim of ownership by an outsider. We have also recognized that there is an exception to the rule that a court may not exercise control over corporate property in those situations where the corporation is a party to the action. Comninellis v. Comninellis, 99 S.W.3d 502, 512 (Mo.App. W.D.2003).

In the instant case, Gary, Stuart, and Andrew claimed BBDI was not marital property but instead was owned by Stuart and Andrew, who were the sole shareholders of the company. Linda claimed BBDI was the marital property of Gary and herself. Stuart, Andrew, and BBDI were appropriately added as parties to the dissolution proceeding because of the ownership dispute. The parties litigated their claims, and the trial court decided that BBDI was the marital property of Gary and Linda. The trial court then awarded BBDI to Gary.

We will sustain the trial court’s judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). “Deference is given to the trial court’s determinations of credibility, and the evidence and permissible inferences therefrom are viewed in the light most favorable to the decree with all contrary evidence and inferences disregarded.” Morse v. Morse, 80 S.W.3d 898, 903 (Mo.App. W.D. 2002). Viewed in this light, the evidence supported the trial court’s determination that BBDI was the marital property of Gary and Linda.

Gary incorporated BBDI in October 1992. Gary personally drafted the incorporation documents and was the registered agent. Stuart, Andrew, and Gary claim the stock was titled in the sons’ names, each as 50% owners. At the time of BBDI’s incorporation Stuart was a 20-year-old full-time student at the University of Kansas and Andrew was a 14-year-old ninth grader. Gary claims that he is merely an employee of the corporation performing a variety of tasks. Stuart claims to run the company as its president in consultation with Andrew, who is also an employee.

The trial court found that much of the testimony of Gary, Stuart, and Andrew lacked credibility. For example, the trial court found Andrew’s claim that, at the age of fourteen, he and Stuart sat at the dining room table discussing how to improve “their business” to be “unbelievable.” Gary’s testimony that his bank account reflected deposits in excess of $100,000 in both 2000 and 2001, although he claimed only an “insignificant salary” from BBDI, “defies logic” according to the trial court. The trial court also found Stuart’s assertion that he ran the company despite being unaware of a myriad of business details regarding BBDI to be “not credible.” The trial court further found that Stuart was a “pawn” to “his father’s various deceptions.” The trial court concluded that BBDI was, “for all intents and purposes, [Gary’s] lockbox, used to support the lavish life-style of the parties” and that “Stuart and Andrew were figureheads.”

Throughout their marriage the Bonds have supported their family primarily from various vending machine businesses. Their first business, known as Commercial Candy Co., was acquired in 1979 with a partner whom they later bought out. In 1981, Gary and Linda purchased another vending operation that became known as All-Star Amusement (ASA). There is no dispute that ASA was the sole property of Gary and Linda. ASA ran into significant legal problems, and ultimately Gary pleaded guilty to failure to file sales tax returns. Gary understood that the plea agreement would prevent him from obtaining a sales tax license if he had any further tax problems. Gary did have further problems when he again failed to file sales tax returns.

Because Gary was unable to form a corporation in his own name due to these legal problems, he incorporated BBDI in the names of his sons, Stuart and Andrew. BBDI was formed from the assets of ASA and for all intents and purposes the two companies were identical.

Throughout the years of BBDI’s operation, Gary has continued to perform a substantial number of tasks including making management decisions. Despite claiming to be just a warehouse worker for BBDI making $1,500 a month, Gary deposited very large amounts of cash into his bank account from which he paid personal expenses. Over the years, Gary represented to third parties, including financial institutions, that he owned BBDI. Even Gary’s own witness during the trial, John Mitchell, believed Gary was the owner of BBDI.

There is substantial evidence to support the trial court’s determination that BBDI was the marital property of Gary and Linda and was subject to division in the dissolution action. In resolving this issue, it is not necessary to resort to the traditional body of law that allows piercing of the corporate veil “to hold the corporation’s owners liable for its debt.” 66, Inc., 998 S.W.2d at 40. Where all necessary parties are joined in the action, the dissolution court has the authority to set aside the corporate facade to establish the true ownership of the company. In the process, the dissolution court may disregard any subterfuge to determine the actual facts and accomplish its duty to determine and divide the marital property.

The trial court properly determined that BBDI was the marital property of Gary and Linda and did not err in awarding the property to Gary. The judgment is affirmed.

EDWIN H. SMITH, C.J., and NEWTON, JJ., concur.

      . Gary argues two points on appeal. The two points are - consolidated into a single argument for the purposes of this opinion.


author: JEFFREY W. BATES, Chief Judge.

text:
    Lloyd E. TABOR III, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 26143.
    Missouri Court of Appeals, Southern District, Division Two.
    March 24, 2005.
    Motion for Rehearing and Transfer to Supreme Court Denied April 12, 2005.
    Application for Transfer Denied May 31, 2005.

      Ruth B. Sanders, Asst. Appellate Defender, Office of the Public Defender, Kansas City, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lacey R. Searfoss, Asst. Atty. Gen., Jefferson City, MO, for respondent.
   JEFFREY W. BATES, Chief Judge.

Lloyd Tabor (“Movant”) appeals from an order overruling his Rule 24.035 motion after an evidentiary hearing. His amended motion sought to vacate the judgment and sentence in two criminal cases filed against him. The motion asserted that the trial court lost jurisdiction to accept Mov-ant’s guilty pleas because of the protections afforded Movant by the Uniform Mandatory Disposition of Detainers Law (UMDDL), §§ 217.450-217.485. After conducting an evidentiary hearing, the trial court denied relief on the ground that Movant was not entitled to invoke the benefits of the UMDDL because he failed to substantially comply with the statutory requirements concerning the notice that must be given to the prosecuting attorney. We affirm.

I. Statement of Facts and Procedural History

In July and August, 2000, the prosecuting attorney of Laclede County, Missouri, filed two felony complaints against Mov-ant. At the time these complaints were filed, Jon Morris (“Morris”) was the prosecuting attorney in Laclede County. The first complaint, which was filed on July 12 and assigned case no. CR300-896FX (“case 896”), alleged that Movant committed the class D felony of escaping from confinement in violation of § 575.210. The second complaint, which was filed on August 24 and assigned case no. CR300-1150FX (“case 1150”), alleged that Movant committed the class C felony of receiving stolen property in violation of § 570.080. After warrants were issued in each case, Movant was arrested and taken to the Laclede County jail.

Public defender Neal Frazier (“Frazier”) was assigned to represent Movant in case 896 and case 1150. On September 18, 2000, Movant was still in the Laclede County jail. Hearings were scheduled in case 896 and 1150 that day. Prior to the hearings, Frazier met with Movant at the jail. During the meeting, Frazier said he intended to file a motion to have a special prosecutor appointed in both cases because of a potential conflict of interest. Although Movant did not get to attend the hearings, he was represented at each one by Frazier. On September 21, 2000, the Laclede County prosecutor filed a motion in case 896 and case 1150 requesting the appointment of a special prosecutor. On October 4, 2000, an order was entered in each case appointing Brian Keedy (“Keedy”) as special prosecutor.

Sometime after September 18, 2000, Movant was taken from the Laclede County jail to the Fulton Reception and Diagnostic Center. He was then transferred to the Algoa Correctional Center for incarceration on another conviction. Movant arrived at Algoa in early October 2000.

On October 12, 2000, Movant learned that detainers had been placed on him by the Laclede County Sheriffs Department in case 896 and case 1150. On that date, a caseworker at Algoa gave Movant two forms entitled “Inmate’s Request for Disposition of Indictments, Informations or Complaints (Missouri Only).” The first form referenced the detainer in case 896, among others. The second form referenced the detainer in case 1150. The caseworker had already filled out each form. Both contained the required director’s certificate and both were addressed to “Jon Morris, Prosecuting Attorney.” Movant read and signed each form, even though he knew a special prosecutor was going to be appointed in case 896 and case 1150 and the appointment might already have occurred. Movant did not tell the caseworker this information or make any effort to find out whether a special prosecutor had been appointed. Movant simply assumed, incorrectly, that the appointment had not yet occurred. After Movant signed the forms, the caseworker mailed copies to prosecuting attorney Morris and the Lac-lede County Circuit Court.

Movant’s separate requests for disposition of the detainers in case 896 and case 1150 were received by the circuit clerk and filed on October 17, 2000. On November 2, 2000, the circuit clerk sent a copy of the docket sheets in case 896 and case 1150 to special prosecutor Keedy. Each docket sheet had an entry dated October 17, 2000 that stated, “Inmate’s request for disposition of indictments, informations or complaints filed.” Special prosecutor Keedy received only the docket sheets; he was not sent a copy of either request for disposition of detainer form on file with the circuit clerk.

On May 11, 2001, Frazier filed separate motions to dismiss case 896 and case 1150 for lack of jurisdiction because Movant had not been brought to trial within 180 days of the date his requests for disposition of the detainers were filed with the court. Both motions were taken up simultaneously at an evidentiary hearing held on May 21, 2001. The only witness at the hearing was the circuit clerk. She testified that special prosecutor Keedy received copies of the docket sheets in case 896 and case 1150, but he was not sent the actual de-tainer forms on file with the court. Frazier argued that the copies of the docket sheets sent to Keedy were sufficient notice to start the 180-day time period running. Keedy argued against dismissal. Although he was not called as a witness, he did state to the court that the circuit clerk did not send him a copy of either one of Movant’s detainer forms. According to Keedy, the first time he became aware that Movant had filed the detainers was on December 5, 2000. The trial court overruled both motions to dismiss.

On May 22, 2001, Movant entered pleas of guilty in case 896 and case 1150. On that same day, the court entered judgment and sentenced Movant to consecutive terms of four years in prison in case 896 and seven years in prison in case 1150.

On June 18, 2001, Movant filed a pro se Rule 24.035 motion to vacate, set aside or correct the judgment and sentence in case 896 and case 1150. Counsel was appointed, an amended motion was filed, and an evidentiary hearing was held. At the hearing, the motion court judge, who earlier had ruled on the motions to dismiss, agreed to take judicial notice of the criminal files in case 896 and case 1150. The motion court also heard testimony from Movant. In due course, the court entered an order overruling Movant’s Rule 24.035 motion. The order included the findings of fact and conclusions of law required by Rule 24.035(j). The motion court concluded that: (1) a written demand for disposition addressed to the prosecuting attorney is a fundamental procedural requirement; and (2) Movant did not demonstrate substantial compliance with the UMDDL because special prosecutor Keedy did not receive copies of Movant’s request for disposition of detainer forms from the circuit clerk. This appeal followed.

II. Standard of Review

Appellate review of an order overruling a Rule 24.035 motion for post-conviction relief is limited to a determination of whether the motion court’s findings of fact and conclusions of law are clearly erroneous. Rule 24.035(k); Smith v. State, 141 S.W.3d 108, 110-11 (Mo.App.2004). We presume the motion court’s findings and conclusions are correct. Gray v. State, 108 S.W.3d 86, 88 (Mo.App.2003). Findings and conclusions are clearly erroneous only if, after a review of the entire record, we are left with the definite and firm impression that a mistake has been made. Morehead v. State, 145 S.W.3d 922, 927 (Mo.App.2004). Movant bore the burden of proving his claim for post-conviction relief by a preponderance of the evidence. Rule 24.035(f); Felton v. State, 103 S.W.3d 367, 371 (Mo.App.2003).

We also note that a Rule 24.035 motion is a proper procedural vehicle to challenge the trial court’s jurisdiction to accept Mov-ant’s voluntary guilty pleas. See Rule 24.035(a); Carson v. State, 997 S.W.2d 92, 99 (Mo.App.1999); Jamison v. State, 918 S.W.2d 889, 891 (Mo.App.1996) (a claim that the court imposing the sentence lacked subject matter jurisdiction to do so may be raised in a direct appeal or, alternatively, in a Rule 24.035 motion for post-conviction relief).

III. Discussion and Decision

In Movant’s sole point relied on, he contends the trial court clearly erred when it decided that it did have jurisdiction to accept Movant’s guilty pleas in case 896 and case 1150. Movant argues the trial court lost jurisdiction because: (1) Movant made a good faith effort to invoke the protections of the UMDDL; (2) he substantially complied with its procedural requirements; and (3) he was not brought to trial within 180 days after November 2, 2000, which is when Movant claims the circuit court and special prosecutor had “actual notice” of Movant’s request for disposition of the detainers in case 896 and case 1150.

To decide the issue raised by Movant’s appeal, we must interpret the provisions of the UMDDL. In State ex rel. Clark v. Long, 870 S.W.2d 982 (Mo.App.1994), we summarized the rules of statutory construction which we find applicable here:

In interpreting a statute, we are mindful that, insofar as possible, legislative intent is to be determined from the language of the statute itself. In doing so, words used in statutes are considered in their plain and ordinary meaning. The legislature is presumed to have intended what the statute says, and if the language used is clear and unambiguous there is no room for construction.

Id. at 936 (citations omitted).

Keeping these rules in mind, we proceed to examine the text of the provisions of the UMDDL that are outcome-determinative here. Section 217.450.1 states:

Any person confined in a department correctional facility may request a final disposition of any untried indictment, information or complaint pending in this state on the basis of which a detainer has been lodged against him while so imprisoned. The request shall be in writing addressed to the court in which the indictment, information or complaint is pending and to the prosecuting attorney charged with the duty of prosecuting it, and shall set forth the place of imprisonment.

(Emphasis added.) In the case at bar, Movant’s requests did not comply with this statute because the forms were not addressed to special prosecutor Keedy, who was the prosecuting attorney charged with the duty of prosecuting case 896 and case 1150 as of October 12, 2000. The next relevant statute is § 217.455, which states:

The request provided for in section 217.450 shall be delivered to the director, who shall forthwith:
(1) Certify the term of commitment under which the offender is being held, the time already served, the time remaining to be served on the sentence, the time of parole eligibility of the offender, and any decisions of the state board of probation and parole relating to the offender; and
(2) Send by registered or certified mail, return receipt requested, one copy of the request and certificate to the court and one .copy to the prosecuting attorney to whom it is addressed.

(Emphasis added.) The director, complied with the obligations imposed upon him by this statute because the certificate on each form was. properly executed, and the forms were sent to prosecuting attorney Morris, to whom they were addressed. Finally, § 217.460 states:

Within one hundred eighty days after the receipt of the request and certificate, pursuant to sections 217.450 and 217.455, by the court and the prosecuting attorney or within such additional necessary or reasonable time as the court may grant, for good cause shown in open court, the offender or his counsel being present, the indictment, information or complaint shall be brought to trial. The parties may stipulate for a continuance or a continuance may be granted if notice is given to the attorney of record with an opportunity for him to be heard. If the indictment, information or complaint is not brought to trial within the period, no court of this state shall have jurisdiction of such indictment, information or complaint, nor shall the untried indictment, information or complaint be of any further force or effect; and the court shall issue an order dismissing the same with prejudice.

(Emphasis added.) Movant pled guilty in both cases on May 22, 2001. According to the plain language of this statute, the 180-day time period does not begin to run until both the prosecutor and the court receive the defendant’s request for disposition and the director’s certifícate. See State v. Williams, 120 S.W.3d 294, 298 (Mo.App.2003). In order to establish that the trial court had lost jurisdiction to accept those pleas, Movant bore the burden of proving the trial court and special- prosecutor Keedy each received a copy of Movant’s request forms containing the director’s certifícate on or before November 22, 2000. Movant proved his request forms, with the attached director’s certificate, were received by the Laclede County Circuit Court. Movant failed to prove, however, that his request forms with the director’s certificate were received by special prosecutor Keedy on or before November 22, 2000. See id. (it is a defendant’s burden to prove if and when the prosecutor received the request for disposition of de-tainer form and the director’s certificate). The trial court made a specific factual finding that “[cjopies of [Movant’s] request for disposition forms were not faxed or mailed to the special prosecutor by the court clerk.” That finding is not clearly erroneous.

In an effort to avoid the outcome dictated by the application of the plain and ordinary language used in these statutes, Movant argues that he made a good faith effort to invoke the protections of the UMDDL, and he substantially complied with its procedural requirements. Movant is correct that “[i]n order to receive the benefit and protection of the UMDDL, a defendant must show a good faith effort to invoke the UMDDL and must substantially comply with its procedural requirements.” Williams, 120 S.W.3d at 299. When this principle is applied to the facts, however, it becomes clear that Movant’s argument lacks merit.

First, “[mjovant’s obligation to deliver his request for disposition includes an obligation to deliver it to the proper authorities.” Meyer v. State, 854 S.W.2d 69, 71 (Mo.App.1993). The detainer forms filled out by the caseworker were given to Movant on October 12, 2000. Both forms were addressed to prosecuting attorney Morris. As of that date, he was no longer charged with prosecuting Movant. When the detainer forms were presented to Mov-ant for review and signature, he knew that a special prosecutor was going to be appointed and that the appointment may have already been made. Movant failed to disclose this information to the caseworker or make any effort to determine whether the appointment had already been made. Instead, Movant incorrectly assumed the appointment had not yet occurred. Therefore, Movant failed to prove that he made a good faith effort to invoke the UMDDL.

Second, it is a fundamental procedural requirement of the UMDDL that a defendant send a written demand for disposition addressed to the prosecuting attorney charged with the duty of prosecuting the untried indictment, information or complaint. See Williams, 120 S.W.3d at 299; Coats v. State, 998 S.W.2d 869, 869 (Mo.App.1999); Dillard v. State, 931 S.W.2d 157, 164-65 (Mo.App.1996); § 217.450.1. There was no substantial compliance with the procedural requirements of the UMDDL here because the written demand for disposition was sent to the wrong prosecutor, and the special prosecutor received nothing other than a copy of the docket sheets in case 896 and case 1150. See Dillard, 931 S.W.2d at 165 (notification of a different prosecutor in a different county does not constitute substantial compliance); Meyer, 854 S.W.2d at 71 (special prosecutor’s receipt of docket sheet did not start the running of the 180-day time period in § 217.460; it only begins to run when both the prosecutor and th,e court receive a defendant’s request for disposition and the director’s certificate). Therefore, the trial court had jurisdiction to accept Movant’s guilty pleas in case 896 and case 1150.

The findings and conclusions of the motion court were not clearly erroneous, and we do not have a. definite and firm impression that a mistake was made. See Rule 24.035(k); Morehead v. State, 145 S.W.3d 922, 927 (Mo.App.2004). Therefore, the trial court’s order overruling Movant’s Rule 24.035 motion is affirmed.

SHRUM and BARNEY, JJ., concur.

      . All references to rules are to the Missouri Court Rules (2004).

      . All references to statutes are to RSMo (2000).

      . In counting days under the UMDDL, we .exclude the day the request was received. Meyer v. State, 854 S.W.2d 69, 71 n. 2 (Mo. App.1993). If the special prosecutor had received Movant’s request form on or before November 22, 2000, the 180-day time limit would have run out on May 21, 2001. The trial court, therefore, would have lacked jurisdiction to accept a guilty plea in case 896 and case 1150 on May 22, 2001.


author: JAMES K. PREWITT, Judge.

text:
    Claudette TAYLOR, Respondent, v. ST. JOHN’S REGIONAL HEALTH CENTER, Appellant.
    No. 26233.
    Missouri Court of Appeals, Southern District, Division One.
    March 30, 2005.
    Petition for Rehearing and Transfer Denied April 21, 2005.
    Application for Transfer Denied May 31, 2005.

      Frank M. Evans III, Jacinda A. Thudi-um, Lathrop & Gage, L.C., Springfield, MO, for appellant.
    Raymond E. Whiteaker, Whiteaker & Wilson, P.C., Springfield, MO, for respondent.
   JAMES K. PREWITT, Judge.

Appellant, St. John’s Regional Health Center (“Employer”), appeals from a judgment entered in circuit court pursuant to § 287.500, RSMo 2000, for the enforcement of an Award of the Division of Workers’ Compensation. The March 12, 1990 Award on Hearing (“Award”) was entered in favor of Claudette Taylor (“Employee”) against Employer and its insurer, Aetna Casualty & Surety Company.

In October, 1982, Employee sustained a work-related injury to her back. The Award was entered, and temporary total disability benefits and medical expenses mentioned in the Award were paid by Employer and its insurer in July, 1990. In addition, Employer directed and provided medical treatment to cure and relieve Employee from the effects of her 1982 injury.

Between 1990 and 2003, Employee was treated for her injuries by physicians both within and outside of the St. John’s health care system. Employer reimbursed Employee for treatment and prescriptions during this period. However, Employer paid only for those expenses its workers’ compensation coordinator, a non-physician, approved. In September, 2003, Employer sent Employee a letter stating that while it was “responsible for [her] plan of care regarding this injury,” Employer insisted that she be treated by the physician of its choice and refused to pay for treatment by any other. Employee believed that the 1990 Award allowed her to chose her own physician, and she filed suit in circuit court to enforce the 1990 Award, pursuant to § 287.500.

Any party in interest may file in the circuit court of the county in which the accident occurred, a certified copy of ... an award of the division or of the commission from which an ... appeal has not been taken, whereupon said court shall render judgment in accordance therewith and notify the parties.

In her petition filed on November 19, 2003, Employee claimed Employer failed to comply with the Award in that Employer: (1) failed to pay for medical expenses incurred by Employee for periods from May 2, 1985 to December 1, 2000 (including interest accrued therefrom) and from December 4, 2000 to October of 2003; and (2) has refused to provide care and treatment to cure and relieve Employee of the effects of her injury “and/or has placed unnecessary obstacles before Employee to prevent or circumvent Employee from receiving necessary and much needed treatment.”

On March 22, 2004, the circuit court entered judgment in accordance with the certified copy of the Award “which is attached hereto and incorporated herein by reference.” Employer filed a notice of appeal. Employer contends that the judgment is “void and unenforceable in that [it] is indefinite and not sufficiently certain to be susceptible of enforcement^]” regarding any award of future medical benefits; and also time-barred under § 516.110, RSMo.

On appeal, the judgment of the circuit court will be affirmed if the award was within the jurisdiction of the Division or the Commission and the judgment was entered in accordance with the award and § 287.500. Vaughan v. Mississippi County, 590 S.W.2d 688, 689 (Mo.App.1979).

Spradling v. Wackman Welded Ware Co., 205 S.W.2d 290, 291, 239 Mo.App. 1195, 1198 (1947), determined that the ten-year statute of limitations (now § 516.110) applies to worker’s compensation final awards. The Court held that “the applicable statute of limitations began to run from the date the employer or insurer refused to comply with the award.” Id.

Employer contends that the circuit court’s judgment is void because the statute of limitations had run before Employee filed her Petition to enter judgment. Employer further asserts that Employee’s own admission in her petition, that Employer “has failed to comply with the final Award[,]” is binding upon her, citing Sayers v. Bagcraft Corp. of America, Inc., 597 S.W.2d 280, 282 (Mo.App.1980) (“Allegations of admissions of fact contained in the pleadings upon which the case is tried are binding on the pleader.”)

Employer asserts that by Employee alleging in her Petition to enter judgment that Employer “has failed to comply with the final Award,” Employee is acknowledging that the failure commenced from the time the award was entered and, therefore, the statute of limitations has run. We do not so construe those allegations since failure to comply with the Award could occur at any time within the effective date of the award, not necessarily when initially entered. Such failure could easily have occurred within the ten-year period before Employee’s petition was filed, and not necessarily more than ten years before the filing of the petition.

Here, the Award was entered March 12, 1990 and Employee filed her § 287.500 petition for judgment on November 19, 2003, thirteen years later. Employee contends that “[p]ayments have continuously been made in partial satisfaction of the Award but not in complete satisfaction.” The legal file contains a docket entry in which the circuit judge noted that “[c]oun-sel for Employer was still complying, or attempting to comply, with the Award by the Division of Worker’s [sic] Compensation in the late 1990’s [sic] or early 2000’s [sic]; therefore, the statute of limitations argument of Employer is without merit.”

The record before us indicates that, at the very least, partial payments were being made by Employer in the interim period, and such partial payments will toll the statute of limitations. Anderson v. Stanley, 753 S.W.2d 98, 98 (Mo.App.1988). “It has long been the rule that the burden of establishing the defense of statute of limitations is upon the party who relies on it.” Southern Cross Lumber & Millwork Co. v. Becker, 761 S.W.2d 269, 271 (Mo.App.1988). Here, Employer has not met its burden. This point is denied.

In its remaining point, Employer contends that the judgment is void because “the award, which was referenced and incorporated by the judgment, is not sufficiently certain in its terms regarding future medical treatment to be susceptible of enforcement. In fact, the award itself does not mention future medical treatment.” In support of this contention, Employer asserts that pursuant to § 287.500 and Brashear v. Brand-Dunwoody Milling Co., 21 S.W.2d 191, 192 (Mo.App.1929), on a motion to enter judgment, only the award itself is properly before the circuit court. The findings of fact cannot be considered by the circuit court and, on appellate review of the judgment, only the award and the judgment of the circuit court can be considered. Id.

Employer contends that the Award consists of a single page entitled “Award on Hearing.” That page, Division of Workers’ Compensation form WC-33-R1 (2-82), in pertinent part reads:

[T]he undersigned Administrative Law Judge of the Division of Workers’ Compensation ... finds and awards compensation for said accident in favor of the above employee and against the above employer and insured as provided in the Missouri Workers’ Compensation Law, as follows: For Medical Aid the sum of $27,085.00; For Temporary Total Disability the sum of $166.00 per week for 256-4/7th weeks[;] said payments to begin February 19, 1983 and to be payable and subject to modification and review as provided in said Law.
Temporary Total Disability/Permanent Partial Disability, Interest and Attorney’s Fees as hereinafter set forth.
Attached hereto are- the Findings of Fact and Rulings of Law made in connection wherewith.

The next page in the legal file has two subheadings, “Findings of Fact” and “Compensation Payable” and is listed as (Revised) Form 31. It indicates the compensation above and, in addition, the section designated “Compensation Payable,” also includes “Probable Future Requirements: (As hereinafter set forth.).” Subsequent pages titled “Findings of Fact and Rulings of Law” and designated as WC-32-R1 (6-81) set out detailed findings. Included on the tenth page of the “Findings of Fact and Rulings of Law” is “FUTURE MEDICAL,” which reads:

FUTURE MEDICAL:

Based on the employee’s testimony and the testimony of Dr. Vale that Employee was in need of long-term medication, re-evaluation and medical care and treatment, this issue is found in favor of the employee. The employer is ordered to provide such care and treatment to cure and relieve the employee from the effects of her injury. Such care and treatment shall include but not be limited to such care and treatment as set forth by Dr. Vale.

A proceeding under § 287.500 simply affords a method of enforcing an unap-pealed award of the Commission and does not involve the merit of the award. Scan- nell v. Fulton Iron Works Co., 289 S.W.2d 122, 125, 365 Mo. 889, 893 (1956). As such, there are no further factual issues to be resolved, and the circuit court has no discretion and may only enter judgment in accordance with the Commission’s award. Baxi v. United Technologies Automotive Corp., 122 S.W.3d 92, 97 (Mo.App.2003).

The first page incorporated by the judgment, as Appellant claims, is clearly part of the Award. It is entitled as such. The question is whether the provision regarding “future medical” is incorporated and became part of the Award and subsequent judgment.

Case law supports the Brashear conclusion that, in an appeal on a judgment filed under § 287.500, this Court must look only to the award itself and the findings of fact are not to be considered. Brashear, 21 S.W.2d at 192. See also Baxi 122 S.W.3d at 97; Vaughan, 590 S.W.2d at 689; and Spradling, 205 S.W.2d at 291.

As noted in Brashear, supra, findings of fact are not considered because of § 287.500, and because when there is no appeal from the Award, findings cannot be disputed. Brashear, 21 S.W.2d at 192. Brashear notes that “the only judgment the circuit court can enter must be in accordance with the decision of the commission.” Id. Here, the decision of the Commission was that future medical “from the effects of her injury” was to be paid.

The law is definite and is not challenged here, but that the Workers’ Compensation Act permits the allowance for the cost of future medical treatment. Landers v. Chrysler Corp., 963 S.W.2d 275, 283 (Mo.App.1997), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 226 (Mo.banc 2003); P.M. v. Metromedia Steakhouses Co., Inc., 931 S.W.2d 846, 850 (Mo.App.1996); Polavarapu v. Gen. Motors Corp., 897 S.W.2d 63, 66 (Mo.App.1995).

Such an award is an exception to the general rule regarding the “definiteness” requirements of judgments. Employer cites such cases as Brown v. Color Coating, Inc., 867 S.W.2d 242 (Mo.App.1993), for the general rule that a judgment must be sufficiently certain in its terms to be susceptible of enforcement without resort to external proof or another hearing. Id. at 244. However, we view an award and subsequent judgment for future medical care to be an exception. In P.M., supra, the court rejected a contention that future medical costs in an award should be rejected because it was “vague, indefinite” and not authorized by law. P.M., 931 S.W.2d at 850. We do not believe such cases as Brown, Brashear, and Vaughan, while appropriate and accurate based on their facts, control where undisputedly authentic documents from the Division of Workers’ Compensation reflect a clear intent to grant future medical and which documents were made a part of the circuit court judgment.

The provision earlier noted which provides for future medical is not a finding of fact, but an obvious part of the decision of the Division. Employer has acknowledged this both by letter and in providing such medical. The first page (referred to by Employer as “the Award”) references the attachment of the remainder of the Administrative Law Judge’s decision, including that for future medical. It seems obvious that the decision on future medical was intended to be part of the Award.

It is undisputed that it was the intention of the Judge to award Employee future medical benefits. It appears from the record that the Judge may have simply failed to list future medical on the face of the Award, an unintended omission. Section 287.800 illustrates how the legislature intended Workers’ Compensation laws and documents to be interpreted. It states:

All of the provisions of this chapter shall be construed with a view to the public welfare, and a substantial compliance therewith shall be sufficient to give effect to rules, regulations, requirements, awards, orders or decisions of the division and the commission, and they shall not be declared inoperative, illegal or void for any omission of a technical nature in respect thereto.

Employer could have contested the Award before it became final. Instead, Employer paid Employee’s future medical expenses, at least in part, so that Employee had no reason to know or believe that she might need to appeal and have the Award clarified or modified. Because she had no knowledge that, thirteen years later, Employer would stop paying for her medical treatment, she lost her opportunity to appeal to the Commission. Section 287.480 requires that an application for review from a Judge’s award must be made within twenty days from the date of the award. Gilmore-Vann v. AT & T Corp, 141 S.W.3d 493, 494 (Mo.App. E.D. 2004).

Following § 287.800, we give effect to the Commission’s decision and do not declare part of that decision “inoperative, illegal or void for any omission of a technical nature.” Appellant’s second point is denied.

The judgment is affirmed.

GARRISON, P.J., and RAHMEYER, J., concur.

      . Unless otherwise noted, all statutory references will be to RSMo.2000.

      . Section 287.500 reads in pertinent part:


text:
    In the Matter of the CARE AND TREATMENT OF Joseph M. JOHNSON, Respondent-Appellant.
    No. 26023.
    Missouri Court of Appeals, Southern District, Division Two.
    April 6, 2005.
    Motion for Rehearing or Transfer to Supreme Court Denied April 22, 2005.
    Application for Transfer Denied May 31, 2005.

      Nancy A. McKerrow, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Cheryl Caponegro Nield, Assoc. Solicitor, Jefferson City, MO, for Respondent.
   JEFFREY W. BATES, Chief Judge.

This is the second appeal arising from the State’s effort to have Joseph Johnson (“Johnson”) confined to a secure facility for treatment pursuant to the Sexually Violent Predators Civil Commitment Act (“SVPCCA”), §§ 632.480-.513. In March 1999, the State filed a petition in the probate division of the Circuit Court of Newton County, Missouri, alleging that Johnson was a sexually violent predator (“SVP”). In September 1999, a jury returned a unanimous verdict finding that Johnson was a SVP. This verdict was based on expert testimony given by Gerald Hoeflein (“Hoeflein”), who opined that Johnson suffered from mental abnormalities which made him more likely to commit crimes of a sexually violent nature. The trial court admitted Hoeflein’s opinions over Johnson’s objection that Hoeflein was unqualified to render such expert testimony-

In Johnson’s appeal from the judgment entered after the first trial, the Supreme Court of Missouri agreed the trial court erred in admitting Hoeflein’s testimony:

Without Hoeflein’s testimony, the state lacks sufficient evidence to support two of the three essential elements of its case — that Johnson suffers from a mental abnormality and that he suffers from a mental abnormality that makes him more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility. Finding that the trial court abused its discretion in admitting Hoeflein’s testimony and that the admission of the testimony was prejudicial, the judgment is reversed. The state, however, is entitled to rely on the trial court’s erroneous ruling in determining what evidence to produce. There may be other evidence that the state can present to make a submissible case. Therefore, the case is remanded.

Johnson v. State, 58 S.W.3d 496, 499-500 (Mo. banc 2001) (citation omitted).

On. remand, the State obtained another expert, Dr. Roy Lacoursiere, to evaluate Johnson and testify at the trial in place of Hoeflein. The case was tried to the court because Johnson waived his right to a jury trial after the case was remanded. The State presented all of the evidence at the trial. The evidence and inferences favorable to the judgment are summarized below.

Johnson had two prior convictions for sexual offenses. In 1991, Johnson was convicted of two counts of sodomy. The victim in that case was his 9-year-old stepdaughter, April. Johnson fondled April’s breasts and vaginal area, both over and under her clothing, with his hand; he also had her perform oral sex upon him on one occasion. In 1995, Johnson was convicted of committing sexual assault in the first degree on his 15-year-old niece, Crystal, by having sexual intercourse with her. Johnson used verbal and physical force on Crystal to accomplish the assault. He was on parole from his first conviction when he committed the sexual assault on Crystal. Each time Johnson was incarcerated, he was placed in the Missouri Sex Offenders Program (“MOSOP”). MOSOP is a 9 to 12 month psycho-educational program involving cognitive behavioral therapy to help offenders reduce their risk of reoffending. Johnson did not successfully complete MOSOP on either occasion.

There was evidence that Johnson had sexual contact with other underage girls besides April and Crystal. Hoeflein was called as a fact witness to testify about information he obtained from Johnson during an interview. Johnson admitted having sex with a .young neighbor named Joanna, who was between 16-18 years old at the time. She became pregnant as a result of this sexual contact. April’s older sister, Paula, was called as a witness and testified that she was sexually abused by Johnson when she was 11 years old. This sexual abuse by Johnson included the following acts by him: (1) forcibly removing Paula’s clothes and fondling her vaginal area; (2) performing oral sex on her against her will; (3) forcing her to perform oral sex on him; and (4) placing his fingers inside her vagina. On several occasions, this sexual abuse by Johnson was accompanied by physical violence toward Paula or threats to kill her. Johnson’s sexual abuse of April began after Paula moved to Missouri to live with her grandmother.

The State presented expert testimony from two witnesses: a psychologist, Dr. Steven Mandracchia; and a psychiatrist, Dr. Roy Lacoursiere. Dr. Mandracchia testified that he was concerned about a statement by Johnson that he was “missing teenage girls the most” because this appeared to be an admitted preference for an inappropriate sexual object. Assuming that this was a true statement and that Johnson did have sexual contact with Paula, Dr. Mandracchia would diagnose Johnson as having paraphilia NOS. Dr. La-coursiere testified that Johnson suffered from two mental abnormalities: paraphilia NOS and personality disorder NOS with antisocial traits. Each of these mental abnormalities predisposes Johnson to commit sexually violent offenses in a degree that causes him serious difficulty in controlling his behavior. These mental abnormalities make Johnson more likely than not to engage in predatory acts of sexually violent behavior if not confined to a secure facility.

After hearing the evidence, the trial judge found beyond a reasonable doubt that Johnson was a SVP. The court ordered Johnson committed to the custody of the Department of Mental Health for care, control and treatment until such time as his mental abnormality has so changed that he is safe to be at large. Johnson appeals from this judgment.

In this court-tried case, our review is governed by Rule 84.13(d). We must affirm the trial court’s judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); In re Care and Treatment of Lieurance, 130 S.W.3d 693, 696 (Mo.App.2004). A judgment is presumed correct, and the appellant has the burden of proving it erroneous. Wingate v. Griffin, 610 S.W.2d 417, 419 (Mo.App.1980). “We review the evidence and all reasonable inferences in the light most favorable to the judgment and disregard all contrary evidence and inferences.” Arndt v. Beardsley, 102 S.W.3d 572, 574 (Mo.App.2003). Credibility of the witnesses and the weight to be given to their testimony is for the trial court, which is free to believe none, part, or all of the testimony of any witness. Keller v. Friendly Ford, Inc., 782 S.W.2d 170, 173 (Mo.App.1990). We defer to the trial judge’s superior opportunity to assess the witnesses’ credibility. Harris v. Lynch, 940 S.W.2d 42, 45 (Mo.App.1997). We independently review the trial court’s conclusions of law. See Lieurance, 130 S.W.3d at 696 (when the issues on appeal are legal in nature, we do not defer to the trial court’s judgment).

Johnson asserts five points of trial court error in this appeal. He contends the trial court erred by: (1) basing its judgment on two mental abnormalities that were not pled in the State’s petition; (2) denying Johnson’s motion for summary judgment because there were no factual issues in dispute on remand; (3) denying Johnson’s motion for summary judgment based on a constitutional equal protection challenge to the SVPCCA as applied to persons in custody when the commitment process is commenced; (4) overruling Johnson’s motion to dismiss the case at the probable cause hearing because of insufficiency of the evidence; and (5) overruling Johnson’s motion to prohibit the State from obtaining a second mental evaluation on remand. For ease of analysis and discussion, we shall address Johnson’s points inversely. Additional facts are provided below when relevant to our discussion of the issues raised in Johnson’s appeal.

Point V

Shortly after the case was remanded for a new trial, Johnson’s counsel filed a motion to prohibit the State from seeking a second mental examination of Johnson. The evident purpose of this motion was to prevent the State from obtaining another expert witness to replace Hoeflein, who was not qualified to give the expert testimony necessary to make a submissible case. See Johnson, 58 S.W.3d at 499-500. The motion was overruled, and Dr. Lacoursiere was permitted to examine Johnson. In Johnson’s fifth point, he contends this ruling was error because § 632.489.4 limits the State to a single mental examination of Johnson. We disagree. Subsection 4 of § 632.489 states, in pertinent part, as follows:

If the probable cause determination is made, the court shall direct that the person be transferred to an appropriate secure facility, including, but not limited to, a county jail, for an evaluation as to whether the person is a sexually violent predator.... The court shall direct the director of the department of mental health to have the person examined by a psychiatrist or psychologist as defined in section 632.005 who was not a member of the multidisciplinary team that previously reviewed the person’s records. In addition, such person may be examined by a consenting psychiatrist or psychologist of the person’s choice at the person’s own expense. Any examination shall be conducted in the facility in which the person is confined. Any examinations ordered shall be made at such time and under such conditions as the court deems proper; except that, if the order directs the director of the department of mental health to have the person examined, the director shall determine the time, place and conditions under which the examination shall be conducted.... Any examination performed pursuant to this section shall be completed and filed with the court within sixty days of the date the order is received by the director or other evaluator unless the court for good cause orders otherwise. One examination shall be provided at no charge by the department. All costs of any subsequent evaluations shall be assessed to the party requesting the evaluation.

(Italics added.) We have previously construed the italicized language in this portion of the statute to create an implicit right on the part of the State to request additional mental examinations of a detainee. See In re Care and Treatment of Spencer, 103 S.W.3d 407, 418-19 (Mo.App.2003). We adhere to that ruling in the case at bar. The additional examination by Dr. Lacoursiere was necessitated by the fact' that Hoeflein had been determined, on appeal, to be unqualified to give crucial evidence in the case. As the Supreme Court noted in its opinion, however, the State was entitled to rely on the trial court’s ruling as to Hoeflein’s qualifications in deciding what evidence to produce. See Johnson, 58 S.W.3d at 499-500. Once that ruling was overturned on appeal, the State had a right to request another mental examination by a different expert with proper 'qualifications. Accordingly, the trial court did not err in allowing Johnson to be examined by Dr. Lacoursiere. Johnson’s fifth point is denied.

Point IV

After the case was remanded for a new trial, Johnson’s counsel filed a motion to dismiss the ease on the ground that insufficient evidence had been presented at the probable cause hearing. The motion alleged that the only witness for the State was Hoeflein, and he had been determined on appeal to be unqualified to diagnose mental disorders. The trial court denied the motion. This ruling forms the basis for Johnson’s fourth point on appeal. He contends the trial court should have dismissed the case because Hoeflein, the State’s only witness, “was unqualified to offer any opinion as to a diagnosis.”

We are unable to address the merits of this argument because we lack an adequate record to do so. In order to determine the sufficiency of the evidence presented at the probable cause hearing, we must have a transcript of that proceeding. See Holder v. Schenherr, 55 S.W.3d 505, 507 (Mo.App.2001); Page v. Associated Couriers, Inc., 868 S.W.2d 138, 140 (Mo.App.1993). Johnson has failed to file one. Without a transcript, this Court has no way of knowing what evidence may have been presented at the hearing. Litton v. Kombrust, 85 S.W.3d 110, 115 (Mo. App.2002). “An appellate court is bound by the record on appeal and cannot speculate as to what evidence may have been presented below which is not reflected by the record.” State ex rel. Morgan ex rel. Div. of Child Support Enforcement v. Okoye, 141 S.W.3d 410, 412 (Mo.App.2004).

Rule 81.12(a) states that “[t]he record on appeal shall contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented, by either appellant or respondent, to the appellate court for decision.” If Johnson wanted us to review the sufficiency of the evidence presented at the probable cause hearing, it was his duty to furnish a transcript containing all of the evidence relating thereto. See Ellis v. Farmers Ins. Group, 659 S.W.2d 3, 4 (Mo. App.1983). Johnson’s brief purports to describe the testimony that was presented to the trial judge at the probable cause hearing, but because these statements are unsupported by the record and are not evidence, “they are insufficient to supply essential matters for review.” Flora v. Flora, 834 S.W.2d 822, 823 (Mo.App.1992); see Brancato v. Wholesale Tool Co., Inc., 950 S.W.2d 551, 554-55 (Mo.App.1997); Ellis, 659 S.W.2d at 4. “An appellant is required to furnish a transcript containing a record of the proceedings which the appellant seeks to have reviewed. In the absence of such a record the appellate court has nothing to decide.” Page, 868 S.W.2d at 140 (citation omitted); see also State v. Christina^ 911 S.W.2d 319, 321 (Mo.App.1995). Without a transcript, we lack the necessary information to rule with any degree of confidence in the fairness, reasonableness and accuracy of our final conclusion. See Brancato, 950 S.W.2d at 554. Johnson’s fourth point is denied because this Court has not been provided with a record sufficient to determine the issue presented.

Points II and III

After the case was remanded for a new trial, Johnson’s attorney filed two motions for summary judgment. The first motion was filed in December 2001. It asserted that Johnson was entitled to summary judgment because the State’s only expert, Hoeflein, was unqualified to diagnose a mental abnormality, and the State was not entitled to replace him with a qualified expert on remand. The State responded in the manner required by Rule 74.04. An affidavit from Dr. Lacoursiere and a copy of his curriculum vitae were included as a part of the State’s response to the motion. In pertinent part, Dr. La-coursiere’s affidavit stated that:

4. I am board certified in forensic psychiatry.
5. It is my expert opinion to a reasonable degree of medical certainty, that the respondent [Johnson] suffers from the mental abnormalities of Paraphilia NOS and Personality Disorder NOS, both within the meaning of section 632.480.
6. It is my expert opinion, to a reasonable degree of medical certainty, that as a result of his mental abnormalities, the respondent [Johnson] is more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility.

In January 2002, the trial court overruled the motion “as' there are controverted facts.” A second motion identical to the first was filed in December 2002. The motion was overruled again by the trial court. These rulings form the basis for Johnson’s second and third points on appeal.

In Johnson’s second point, he contends the trial court erred in failing to grant his motion for summary judgment because there were no factual issues in dispute. The premise of this argument is that the State was barred from obtaining another expert by § 632.489.4. In Johnson’s third point, he contends the trial court erred in denying the motions for summary judgment because of an alleged constitutional infirmity in the SVPCCA, which Johnson raises for the first time on appeal and requests that we review for plain error. Because of the interrelated nature of the points, we address them together.

Johnson’s second and third points seek to appeal from the denial of his motions for summary judgment. That is significant “because the matter for resolution in the appellate court is restricted to the issue raised in the point relied on.” Underwood v. Hash, 67 S.W.3d 770, 779 (Mo.App.2002). It is well-settled that the denial of a motion for summary judgment does not present an appealable issue. See, e.g., Murphy v. Jackson Nat. Life Ins. Co., 83 S.W.3d 663, 669 n. 5 (Mo.App.2002); Trimble v. Pracna, 51 S.W.3d 481, 497 (Mo.App.2001); Shelter Mut. Ins. Co. v. DeShazo, 955 S.W.2d 234, 238 (Mo.App.1997); Ferguson v. Wozniak Industries, Inc., 931 S.W.2d 919, 923 (Mo.App.1996). “A trial court order denying a party’s motion for summary judgment is not renewable, even when the appeal is taken from the final judgment in the case.” Reis v: Peabody Coal Co., 935 S.W.2d 625, 632 (Mo.App.1996); see Sanders v. Insurance Co. of North America, 42 S.W.3d 1, 8 (Mo.App.2000); L.C. Development Co., Inc. v. Lincoln County, 26 S.W.3d 336, 338 (Mo.App.2000); Lesinski v. Joseph P. Caulfield & Associates, Inc., 12 S.W.3d 394, 396 (Mo.App.2000); Kabir v. Missouri Dept. of Social Services, 845 S.W.2d 102, 103 (Mo.App.1993). The rationale for this rule was explained in Parker v. Wallace, 431 S.W.2d 136 (Mo.1968):

Plaintiff made a motion for summary judgment in his favor which was overruled. He here assigns as error that action by the trial court.... The matter of the propriety of the court’s action in overruling a motion for summary judgment is not an appealable order. Upon that ruling, the issues raised by the pleadings are still in the case, and it is upon those issues, when decided and if timely and properly presented, that an appeal lies.

Id. at 137-38 (citation omitted). That is certainly true here because the trial court denied the motions for summary judgment on the ground that there were controverted issues of fact to decide. The rulings on the motions merely postponed a decision until the trial occurred, and these factual disputes were not finally determined until the trial court entered its judgment after a trial on the merits. Johnson’s appeal lies from that judgment and the issues it adjudicates. Accordingly, Johnson’s second and third points are denied because neither one presents an appealable issue for us to review.

Point I

In Johnson’s first point, he contends the trial court erred in finding Johnson to be a SVP because the State failed to present evidence that he suffered from the mental abnormalities alleged in the petition. The petition alleged that Johnson “has a history of activities which demonstrate that he has and is currently suffering from a mental abnormality Antisocial Personality Disorder and Sexual Abuse of a Child Disorder, which makes him more likely than not to engage in predatory acts of sexual violence if released.” At trial, Dr. Lacoursiere testified that Johnson suffered from the mental abnormalities of paraphilia NOS and personality disorder NOS with antisocial traits. Johnson did not object to the admission of this testimony-

Johnson argues that there is a fatal variance between the mental abnormalities pled in the petition and the mental abnormalities proven at trial. We disagree. Rule 55.33(b) states, in pertinent part, that “[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” By failing to object at trial, Johnson impliedly consented to a trial on the issue of whether he suffered from the mental abnormalities of paraphilia NOS and personality disorder NOS with antisocial traits. In re Care and Treatment of Spencer, 103 S.W.3d 407, 419-20 (Mo.App.2003) is directly on point. There, the petition alleged that Spencer suffered from the mental abnormality of pedophilia. At trial, the State’s psychiatrist testified that Spencer suffered from the mental abnormalities of pedophilia and narcissistic personality disorder (“NPD”). Spencer did not object to the admission of this testimony. On appeal, however, Spencer argued that the evidence concerning NPD was erroneously admitted because it was irrelevant to the issues presented by the petition. We held that the trial judge did not err in admitting the testimony about NPD:

In Point IV, [Spencer] contends that the trial court erred in its judgment and order of commitment by allowing the introduction of evidence related to NPD. At trial, [Spencer] did not object to this evidence as being beyond the scope of the pleadings. When a party does not object to evidence on an issue that is beyond the scope of the pleadings, the pleadings are automatically amended to conform to the evidence.

Id. at 419. We reach the same conclusion here. Since Johnson did not object to Dr. Lacoursiere’s testimony on the ground that it was beyond the scope of the pleadings, they were automatically amended to conform to the evidence presented at the trial. As a consequence, the trial court did not err in finding Johnson to be a SVP based on that evidence. Johnson’s first point is denied.

The judgment of the trial court is affirmed.

PARRISH, P.J., and BARNEY, J., concur.

      . All references to statutes are to RSMo (2000).

      . NOS means "not otherwise specified.”

      . All references to rules are to the Missouri Court Rules (2005).

        .Murphy interpreted the provisions of former Rule 73.01(c). The provisions of that rale were transferred, in essentially the same form, to Rule 84.13(d) effective January 1, 2000.

      . In Johnson's brief, he states that "no transcript of the probable cause hearing exists,” but he does not explain why that is so. In particular, he makes no claim that he exercised due diligence in seeking preparation of a complete transcript and that his inability to obtain the probable cause hearing transcript is not through any fault or negligence on his part. See Lynn v. Plumb, 808 S.W.2d 439, 439-40 (Mo.App. 1991).

      . There is one recognized exception to this general rule. An order denying a motion for summary judgment may be reviewed on appeal when the merits of the motion are intertwined with the propriety of an appealable order granting summary judgment to another party. Nodaway Valley Bank v. E.L. Crawford Constr., Inc., 126 S.W.3d 820, 824 (Mo.App.2004); Bituminous Cas. Corp. v. McDowell, 107 S.W.3d 327, 333 (Mo.App.2003); Fischer v. City of Washington, 55 S.W.3d 372, 381 (Mo.App.2001). This exception only applies in cases involving extraordinary circumstances. Brock v. Blackwood, 143 S.W.3d 47, 69-70 (Mo.App.2004); Stotts v. Progressive Classic Ins. Co., 118 S.W.3d 655, 668-69 (Mo.App.2003). Because this case does not involve an appeal from a grant of summary judgment to the State, the general rule is controlling here.

      . In any event, our ex gratia review of the arguments presented in Johnson's brief reveals no error. Dr. Lacoursiere’s affidavit was sufficient to raise genuine issues of material fact that precluded summary judgment. See Rule 74.04(c)(6). Johnson waived the constitutional challenge he seeks to assert in Point III by not raising it until this second appeal. See Hollis v. Blevins, 926 S.W.2d 683, 683-84 (Mo. banc 1996); Land Clearance for Redevelopment Auth. v. Kan. Univ. Endowment Ass'n, 805 S.W.2d 173, 176 (Mo. banc 1991).


text:
    STATE of Missouri, Respondent, v. Avery FARR, Appellant.
    No. ED 84275.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 19, 2005.
    Timothy Forneris, St. Louis, MO,- for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Alison K. Brown, Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Avery Farr (“Appellant”) was found guilty of robbery in the second degree and the court sentenced- him as a prior and persistent felony offender to a twenty-year sentence of imprisonment. The court retained jurisdiction over Appellant to place him on probation after the completion of a 120 day shock treatment. This appeal followed. Appellant claims, in his only point, that the trial court erred in overruling his objection when the prosecutor made an impermissible personalization to the jury during closing arguments. Appellant objected and raised this claim in his motion for new trial, so this point is preserved for appellate review. We find no error and affirm.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

We affirm the judgment pursuant to Rule 30.25.


text:
    STATE of Missouri, Respondent, v. Dennis WEBER, Defendant/Appellant.
    No. ED 84185.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 19, 2005.
    Amanda R. Schehr, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN and MARY K. HOFF, JJ.
   ORDER

PER CURIAM.

The defendant, Dennis J. Weber, appeals the judgment entered upon his convictions by a jury for leaving the scene of a motor vehicle accident, Section 577.060 RSMo.2000, driving while intoxicated, Section 577.010, and careless and imprudent driving, Section 304.012.

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

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

      . All statutory references are to RSMo.2000.


author: GARY M. GAERTNER, SR., Presiding Judge.

text:
    Michael VAUGHN, Appellant, v. MISSOURI DEPARTMENT OF SOCIAL SERVICES, DIVISION OF FAMILY SERVICES, Respondent.
    No. ED 84172.
    Missouri Court of Appeals, Eastern District, Division One.
    April 19, 2005.

      Richard J. Magee, The McAuliffe Law Firm, L.L.P., St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Alana M. Barragan-Scott, Assistant Attorney General, Jefferson City, MO, for respondent.
   GARY M. GAERTNER, SR., Presiding Judge.

Appellant, Michael Vaughn (“Vaughn”), appeals the decision of the Circuit Court of St. Louis County finding there was probable cause that Vaughn neglected Carlos Strickland (“Strickland”). Affirmed.

Vaughn began his employment with the St. Louis County Juvenile Court in June of 1988. On June 9, 2002, Vaughn was working a double shift at the juvenile detention center located in St. Louis County. On that day, he was working as a deputy juvenile officer assigned to Unit G. There were six juveniles in Unit G at that time. Four of the juveniles, including Strickland, were in their rooms, while one juvenile was temporarily housed at the front desk. Vaughn testified that it is standard procedure to lock the doors to the rooms of the juveniles in Unit G once they are returned to their rooms.

At about 1:45 p.m., Strickland, who was fifteen years old at the time, attempted suicide by jamming a Bible and a hardback book in his window, and then wrapping some clothes around the books and his neck. He tied his arms behind his back, and tied his legs to the bed. Strickland then jumped off his bed, causing him to hang by his neck. While Vaughn was in the course of returning juvenile Jimmie Blackmon (“Blackmon”) to his room, Vaughn walked past Strickland’s room and saw Strickland hanging from the window with clothes around his neck. Vaughn opened the door to Strickland’s room, and then told Blackmon to get Strickland down. Blackmon tried but could not get Strickland down. While Blackmon was attempting to help Strickland, Vaughn left the room and called the front desk for help. Vaughn then waited for deputy juvenile officers Christopher Jost (“Jost”) and Tim King (“King”) to arrive before returning to Strickland’s room. Jost and King entered Strickland’s room and cut the clothing tied around the books and Strickland’s neck which allowed them to get Strickland down.

Subsequent to this incident, Strickland was sent to the psychiatric unit of St. John’s Hospital, where he stayed from June 9, 2002 until June 18, 2002 at which time he returned to the detention facility. Respondent, The Department of Social Services, Division of Family Services (“DFS”), received a hotline report of neglect on or about June 21, 2002 concerning the June 9, 2002 incident. Following an investigation completed pursuant to sections 210.110-210.165 RSMo 2000, DFS determined that there was probable cause to find Vaughn neglected Strickland. At Vaughn’s request, the Child Abuse and Neglect Review Board (“the Board”) performed a review of that investigation. The Board upheld the probable cause finding.

On February 6, 2008, Vaughn filed a petition, pursuant to section 210.152, in the Circuit Court of St. Louis County seeking de novo review of the Board’s decision. After a bench trial, the circuit court entered its judgment in favor of DFS finding there was probable cause of neglect. Vaughn subsequently filed a motion for new trial, or, in the alternative, motion to amend the judgment, which was denied by the court. This appeal followed.

The trial de novo in the circuit court, although in theory an appeal of the administrative hearing, is an original proceeding and is not an exercise of review jurisdiction. Petet v. State, Dept. of Social Services, 32 S.W.3d 818, 821 (Mo.App. W.D.2000), quoting Jenkins v. Director of Revenue, 858 S.W.2d 257, 260 (Mo.App. W.D.1993). Thus, we review the decision of the circuit court rather than the decision of DFS. Petet, 32 S.W.3d at 821-22. We will uphold the circuit court’s decision unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declare or applies the law. Lipic v. State, 93 S.W.3d 839, 841 (Mo.App. E.D.2002).

In his only point on appeal, Vaughn argues that the circuit court erred in finding that there was probable cause of neglect. Vaughn argues that in responding to the suicide attempt of Strickland, he followed the facility’s “check, call, and care” procedure, and provided the proper care necessary for Strickland’s well-being.

Section 210.110 sets forth the following definitions:

(9) “Neglect”, failure to provide, by those responsible for the care, custody, and control of the child, the proper or necessary support, education as required by law, nutrition or medical, surgical, or any other care necessary for the child’s well-being;
(10) “Probable Cause”, available facts when viewed in the light of surrounding circumstances which would cause a reasonable person to believe a child was abused or neglected;

The definition of neglect is not applicable exclusively in family situations, but is intended to be applicable to anyone who has responsibility for the care of the child. Doe v. Dept. of Social Services, 71 S.W.3d 648, 650 (Mo.App. E.D.2002).

John Snipes, the assistant superintendent of detention, testified that when there is an emergency medical situation-, as in this case, the juvenile officers are trained to “check the scene making sure there are no other incumbent dangers, call for help, and then go to assist until, help arrives.” Vaughn claims that he provided the proper care necessary for Strickland’s well-being, because, in compliance with the emergency medical procedure juvenile officers are supposed to follow, he checked the scene, called for help, and then assisted Strickland.

There is evidence that when Vaughn first checked on Strickland he threw water on Strickland’s face, and then remarked, “See, there’s nothing wrong with him. He’s okay.” Vaughn then proceeded to leave Strickland’s room while Blackmon, who is only five foot two and a half inches tall, was struggling to assist Strickland. Vaughn had on his person a personal alarm that, if pressed, was supposed to activate a loud siren and indicate to the front desk that there was an emergency in Unit G. This personal alarm was never used by Vaughn on the day in question. Instead of activating the alarm, Vaughn went to a nearby office and called the front desk to report the emergency. After calling the front desk, Vaughn did not immediately go back to Strickland’s room. He waited approximately two minutes for Jost and King to arrive before returning to Strickland’s room. Once Jost, King, and Vaughn returned to Strickland’s room, there is evidence that Vaughn still did not physically help to get Strickland down. In fact, there is evidence indicating that Vaughn never physically assisted Strickland. Taking all of this evidence into consideration, we find that the circuit court’s finding of probable cause of neglect by Vaughn was supported by substantial evidence. Point denied.

Based on the foregoing, we affirm the judgment of the circuit court.

SHERRI B. SULLIVAN, J. and PATRICIA L. COHEN, J., concur.

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


text:
    STATE of Missouri, Respondent, v. Keith ROBINSON, Appellant.
    No. ED 83920.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 19, 2005.
    Gwenda R. Robinson, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Keith Robinson (“defendant”) appeals from the judgment entered after a jury convicted him of involuntary manslaughter. Defendant contends that the trial court erred in admitting a number of exhibits and in admitting the testimony of Dr. Jane Turner (“Dr. Turner”), the assistant medical examiner.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment of the trial court is affirmed in accordance with Rule 30.25(b).