author: NEWTON, Judge.

text:
    Louis J. RASSE, Appellant, v. The CITY OF MARSHALL, et al., Respondents.
    No. WD 57082.
    Missouri Court of Appeals, Western District.
    Submitted Jan. 13, 2000.
    Decided April 18, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 30, 2000.

      Stephen J. Moore, Kansas City, Lawrence R. McClure, Marshall, for appellant.
    Catherine P. Logan, Overland Park, KS, Stanley M. Thomas, Kansas City, for respondent.
    Before JOSEPH M. ELLIS, P.J.; PAUL M. SPINDEN and THOMAS H. NEWTON, JJ.
   NEWTON, Judge.

Louis J. Rasse appeals from the Order and Judgment disposing of his action for declaratory and injunctive relief against the City of Marshall and various city and county officials. In his lawsuit, Mr. Rasse contested the imposition and collection of special assessments for improvements to a subdivision created under the Neighborhood Improvement District Act. The principal issue on appeal is whether Mr. Rasse’s challenge to the special assessments was barred by the special statute of limitation in § 67.465, RSMo 1994. Concluding that the special statute of limitation applies and finding no reversible error, we affirm the Order and Judgment.

I. Background and Procedural History

A. Formation of Neighborhood Improvement District

In May 1994, Louis Rasse petitioned the City of Marshall for creation of the Salt Fork Neighborhood Improvement District. The purpose of the petition was to provide for improvements on a 26.13 acre tract of land that Mr. Rasse owned in fee simple. The petition proposed development of the land by constructing roadways, streets, curbs, gutters, driveway entrances, drainage works, sewers, water mains, and utility connections. The petition estimated the cost of the proposed improvements at $639,676.00. A later amendment provided for the final costs of the improvements to be made by special assessments on a per lot basis and to be payable in substantially equal annual installments over twenty years.

The City approved the project after adopting resolutions, holding public meetings, solicting bids, securing general obligation bonds, and hiring a construction company. Construction began and the neighborhood improvement district was eventually renamed the Cypress Point Subdivision. In July 1995, Charles Try-ban, the city administrator, expressed his belief that the project was near completion. Disputing that statement, Mr. Rasse advised him of numerous deficiencies in the project and complained about the timeliness and quality of the work.

On January 2, 1996, Mr. Rasse attended a city council meeting at which the ordinance making the final assessments was presented for ratification. Mr. Rasse opposed wording in the ordinance that the work had been completed according to plans and specifications. He stated that the incomplete work involved minor details and technicalities. In the ensuing discussion, Mr. Tryban noted his disagreement with Mr. Rasse about the completion of the work. Other council members related that the construction company had committed to rectify deficiencies. In spite of Mr. Rasse’s opposition, the city council enacted Ordinance No. 6929. Ordinance 6929 recited that the Salt Fork Neighborhood Improvement District Project had been completed in accordance with plans and specifications. The ordinance set the final costs of the improvements at $798,-500.00 and assessed $15,066.04 against each lot. On January 16, 1996, the city council repealed portions of Ordinance 6929 and enacted Ordinance No. 6933 which added a section allowing the property owners the option to pay the special assessments in full within thirty days of January 16, 1996 or to pay with interest in twenty annual installments. The city clerk, Janet French, mailed notice of the special assessments to Mr. Rasse on January 17,1996. Mr. Rasse elected not to pay the special assessments in full.

Because the special assessments were not paid in full, the City divided the amount due plus interest into annual installment payments. After certification of assessment rolls to the county, those installments were added to the annual real property tax bills. Mr. Rasse’s 1996 and 1997 tax bills included the first and second annual installments for the special assessments on the Salt Fork Neighborhood Improvement District. Mr. Rasse paid neither the 1996 nor the 1997 special assessment installments. To collect the 1996 and 1997 special assessment installments, the City advertised a tax sale of Mr. Rasse’s land in July 1998. In response, Mr. Rasse filed the lawsuit that is the subject of this appeal.

B. Special Assessments Dispute

On August 19, 1998, Mr. Rasse filed his Petition for Declaratory and Injunctive Relief. In that lawsuit, Mr. Rasse contended that the special assessments against him were invalid because the construction project had not been completed according to specifications. In support, he cited § 67.463.2, RSMo 1994, that requires that the improvement be “completed in accordance with the plans and specifications” before the city computes and apportions the costs of the special assessments. Mr. Rasse also disputed the timing of the 1996 and 1997 installment payments. As relief, Mr. Rasse sought declarations that the special assessments were invalid and injunctions prohibiting imposition or collection of the special assessments. On that same day, the trial court entered a temporary restraining order, which was extended on August 31, 1998. The TRO apparently enjoined the City from conducting the land tax sale to collect the unpaid special assessments. Although hearings were scheduled, no preliminary injunction was ever imposed.

The City initially moved to dismiss for failure to state a cause of action. It later filed a motion for summary judgment in which it maintained that Mr. Rasse’s action to challenge the special assessments was barred by the special statute of limitation in § 67.465. That statute provides that no suit to set aside special assessments or to question the validity of those proceedings shall be brought after ninety days from the mailing of notice to property owners.

After the submission of numerous suggestions, briefs, and affidavits and after holding a hearing and conferences, the trial court entered its Order and Judgment on March 12, 1999. First, granting partial summary judgment for the City, the trial court found that the claim for a declaration invalidating the special assessments and the claim for an injunction prohibiting their collection were barred by special statute of limitation in § 67.465. Next, finding for Mr. Rasse, the trial court declared that City was prohibited from collecting the first installment of the special assessment in 1996; that 1997 installment was- the first installment of the special assessment; that interest due on the 1997 installment would date from January 16, 1997 until it was billed; and that subsequent installments of the special assessments would be payable annually after 1997 with interest for one year on all unpaid installments to be added to each subsequent installment until paid. Finally, the trial court issued orders dissolving the TRO, denying Mr. Rasse’s Motion for Leave To File First Amended Petition, dismissing Mr. Rasse’s Petition for Injunc-tive and Declaratory Relief with prejudice. On appeal Mr. Rasse raises issues on each of the provisions of the Order and Judgment.

C. Motion To Dismiss the Appeal

The City moves to dismiss the appeal and for frivolous appeal damages. In its motion and in its earlier-filed brief, the City enumerates deficiencies in Mr. Rasse’s brief. The City asserts that the numerous deficiencies in the statement of facts, the points relied on, and the argument violate the mandatory requirements of Rule 84.04.

The City’s criticisms are well founded. The statement of facts in Mr. Rasse’s brief contains a procedural history of the case without background on the controversy on appeal. The few facts provided in the argument portions are conclusory and argumentative, and they omit pertinent facts. These defects violate Rule 84.04(c) which requires a fair and concise statement of facts relevant to the questions presented and free of argument. Because of the lack of a proper statement of facts, Mr. Rasse’s brief is not understandable without continuous reference to the record on appeal which exceeds 600 pages.

The points relied on in Mr. Rasse’s brief consist of general, conclusory statements without specific references to the underlying facts. The subject matter of the appeal concerns special assessments and the legal basis for disposition involves a special statute of limitation. Yet no references to special assessments or to the special statute of limitation appear in the points. The points fail to identify the ruling challenged, to cite legal reasons for error, and to explain legal reasons for reversal as required by Rule 84.04(d). One point contains five loosely-related subparts with some subparts containing additional sub-parts. The defective points relied on have produced unorganized arguments in contravention of Rule 84.04(e).

These defects in Mr. Rasse’s brief make appellate review difficult and delay the appellate process. When faced with a defective brief, an appellate court should not become the appellant’s advocate by ferreting out facts, reconstructing points, and deciphering arguments. See Coleman v. Gilyard, 969 S.W.2d 271, 274 (Mo.App. W.D.1998). Although not required to do so, the City provided background and responded to Mr. Rasse’s claims. This appeal involves a matter of public interest. Consequently, in the interest of justice, we will undertake appellate review. We accordingly deny the City’s motion to dismiss the appeal and for frivolous appeal damages.

II. Standards of Review

The standard of appellate review in this court-tried case is enunciated in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976): the trial court’s judgment will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate review of the partial summary judgment is essentially de novo. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The criteria on appeal for testing the propriety of summary judgment are the same as those employed by the trial court. Id. Summary judgment is appropriate only when no dispute of material fact exists and when the movant is entitled to judgment as a matter of law. Rule 74.04(c)(3). Appellate review of the alleged procedural errors is governed by the abuse of discretion standard — a ruling clearly against the logic of the circumstances, so arbitrary and unreasonable as to shock the sense of justice, and lacking careful consideration. Robin Farms, Inc. v. Beeler, 991 S.W.2d 182, 186 (Mo.App. W.D.1999).

III. Legal Analysis

A. Validity of Special Assessments: § 67.463.2 and .3

In his lawsuit, Mr. Rasse sought a declaration that the special assessments were invalid and an injunction prohibiting their collection. In support of his claim, he asserted that the City failed to comply with the Neighborhood Improvement District Act because construction of the improvement project had not been completed according to plans and specifications before adoption of the assessment ordinances.

Mr. Rasse insists that the City’s failure to comply with § 67.463 in enacting the assessment ordinances invalidated the resulting special assessments. Section 67.463.2 delineates the procedure for imposition of the NID special assessments: After the construction is complete in accordance the assessment ordinance the city is to compute the final costs, to apportion those costs among the properties benefited, and to issue an ordinance imposing the NID special assessments. Section 67.463.3 deals with the notice of the NID special assessments: After passage of the NID special assessment ordinance, the city clerk is to mail notice to the property owners. That notice is to include a description of the property, the amount of the special assessment, and a statement of the option to pay the special assessment in full by a specified date or to pay in annual installments.

In his appeal of the partial summary judgment against him, Mr. Rasse insists that disputed material facts remain on the completion of the NID project and on the procedure imposing the special assessments. According to Mr. Rasse, to prevail on summary judgment, the City bore the burden of refuting the substantive claims in his petition and proving compliance with § 67.463. Next, stressing facts favorable to his position, Mr. Rasse points to his own efforts to inform the City officials about the incomplete work and to object to the assessment ordinance at the city council meeting. He also refers to the numerous affidavits from experts that support his claim that the work had not been completed in accordance with plans and specifications. In this connection, Mr. Rasse faults the trial court for not considering his counter affidavits and for impermissible fact finding. Finally, Mr. Rasse challenges the content of the notice of the special assessments and asserts the notice was insufficient to trigger the special statute of limitation.

B. Special Statute of Limitation: § 67.465

In enacting the Neighborhood Improvement District Act, the General Assembly sought to provide “a complete alternative to all other methods provided by law or charter” for implementing public improvements that confer benefits on individual properties. Section 67.455, RSMo Supp.1999. Unlike previous public improvement legislation, the NID Act includes a special statute of limitation that prohibits suits to set aside NID special assessments or to otherwise question the validity of the proceedings that are brought after ninety days from the mailing of notice to the property owners:

67.465. Period of limitation, lawsuits
No suit to set aside the special assessments made under sections 67.453 to 67.475 or to otherwise question the validity of the proceedings relating thereto shall be brought after the expiration of ninety days from the date of mailing of notice to property owners of the assessments required by section 67.463.

Other Missouri acts enacted after the NID Act contain similar ninety-day special statutes of limitation that preclude lawsuits to set aside special assessments or to question the validity of the proceedings. These other special statutes of limitation appear in the Community Improvement District Act in § 67.1561, RSMo Supp.1999, and in the Sewage or Storm Water Facility Improvement Act in § 249.947, RSMo Supp.1999. Research reveals no Missouri case that discusses or deals with these special statutes of limitation.

In other jurisdictions, special statutes of limitation on challenges to special assessments are typically short. Because the time bar placed on these actions is a matter of legislative prerogative, short special statutes of limitation routinely survive disputes over their validity. The short time periods on actions challenging special assessments are favored because they further public policy: Cities are prejudiced if there is no specified time at which their special assessments become final. Belated challenges to special assessments threaten the integrity of municipal finances. Landowners should not sit idly while the city makes public improvements that benefit private property and while the city incurs obligations to pay for them.

When the affirmative defense of statute of limitation is pleaded and proved, it operates to cut off the opposing party’s cause of action. Lomax v. Sewell, 1 S.W.3d 548, 552 (Mo.App. W.D.1999). Contrary to Mr. Rasse’s assertions, if the City established the special statute of limitation in fact and in law, he had no right to prove the elements of his case and could not proceed with his cause of action. A statute of limitation defense is not directed to the elements of the cause of action but to the timely filing of the claim. See Corley v. Jacobs, 820 S.W.2d 668, 673 (Mo.App. E.D.1991). Here, the NID special statute of limitation in § 67.465 applies to suits to set aside the NID special assessments or to question the validity of the proceedings. The triggering event occurs with the mailing of the notice. The limitation period expires ninety days after the notice is mailed.

The plain language of § 67.465 broadly prohibits any suit to set aside NID special assessments or to otherwise question the validity of the proceedings. Mr. Rasse’s lawsuit sought a declaration invalidating the special assessments and an injunction prohibiting their collection. To prove his claim of invalidity, Mr. Rasse proposed extrinsic evidence showing that the NID project had not been completed according to the procedural requirements in § 67.463.2. Even though presented in terms of equitable relief, the claim amounts to an attempt to set aside the NID special assessments. Establishing the claim of invalidity for failure to complete the work necessarily equals a questioning of the validity of the proceedings. Accordingly, the matters in Mr. Rasse’s lawsuit contesting the special assessments and their validity fit well within the ambit of the special statute of limitation in § 67.465.

The face of Mr. Rasse’s petition for declaratory and injunctive relief establishes the triggering event and the expiration of the time period. The petition admits that the special assessments notice was mailed on January 17, 1996. The NID special statute of limitation is triggered by the mailing of notice. The limitation period expired ninety days later on April 16,1996. The petition challenging the special assessments was file-stamped August 19, 1998, twenty-eight months after the running of the special statute of limitation. Thus the special statute of limitation barred the portion of the lawsuit challenging the special assessments.

In his response to the City’s amended motion for summary judgment, Mr. Rasse admitted actual receipt of Janet French’s letter containing the special assessments notice that was mailed January 17, 1996. Yet he asserts that the content of that notice was inconsistent with the requirements of § 67.463.3. Part of the challenge to the notice concerns an evidentiary dispute that arose over the assessment roll attached to the notice. A copy of that assessment roll had been attached as an exhibit to Janet French’s affidavit in support of the City’s motion for summary judgment, but the assessment roll was not included with the City’s amended motion. At the hearing, when the City sought leave to supplement the affidavit and include the missing exhibit, Mr. Rasse’s counsel acknowledged that the assessment roll had indeed been attached to the earlier motion. The trial court granted the City leave to supplement Janet French’s affidavit, and Mr. Rasse never disputed receiving the assessment roll along with the notice. The remaining part of the challenge to the notice involves technical compliance and fails to implicate the running of the special statute of limitation. The record indicates that special assessments notice along with the attached assessment roll complied with § 67.463.3 by describing each parcel to be assessed, by specifying the amount of each special assessment, and by stating the option to pay the special assessments in full ■within thirty days or in twenty annual installments.

Uncontested facts show that Mr. Rasse had actual notice as well as actual knowledge of the special assessment proceedings: Mr. Rasse was involved with the creation and development of the Salt Pork Neighborhood Improvement District from its inception. He petitioned the City for improvements to develop land that he owned. His plan provided for the financing of the improvements through special assessments payable in twenty annual installments on a per lot basis. He monitored the project throughout construction. He attended the city council meeting and voiced his concerns about completion of the project. He was present when the city council enacted Ordinance 6929 that formalized the special assessments by declaring that the work had been completed according to plans and specifications. He received actual notice of the imposition of the special assessments. He failed to pay the special assessments for two consecutive years. He waited until his property was scheduled to be sold at a tax sale before he challenged the special assessments. His lawsuit was filed more than two years after expiration of the limitation period.

Our de novo review indicates that the trial court appropriately applied the law in granting the partial summary judgment. The City established its affirmative defense of statute of limitation through undisputed facts and demonstrated its entitlement to judgment as a matter of law. Consequently, Mr. Rasse was precluded from maintaining the portion of his lawsuit challenging the imposition of the special assessments. Because the special statute of limitation cut off the cause of action, Mr. Rasse had no right to present evidence in support of his case. The facts concerning the completion of the NID project were, therefore, not material. The issues raised in Points 1(B) and 1(C) are denied.

C. The Timing of the Installment Payments: § 67.463.4

Mr. Rasse’s lawsuit included a claim challenging the timing of the 1996 and 1997 installment payments. During the summary judgment proceedings, Mr. Rasse also asserted lack of compliance with the certification requirements in § 67.463.4. Certification is the process in which the city certifies the special assessment rolls to the county for inclusion of the installment payments in the real property tax bills. Although Mr. Rasse devotes numerous pages of argument to this claim, he fails to recognize that he prevailed on this matter and received favorable declaratory relief. The trial court declared that the City was prohibited from collecting the 1996 installment and that the first installment was the 1997 installment. Because this claim involves no controversy, it presents nothing for appellate review. Bratton v. Mitchell, 979 S.W.2d 232, 235-36 (Mo.App. W.D.1998). We, therefore, decline review of the timing claim in Point 1(B).

In connection with the timing challenge, Mr. Rasse asserts that the Order and Judgment was internally inconsistent. According to Mr. Rasse, the grant of partial summary judgment on grounds of statute of limitation conflicted with the declaration prohibiting collection of the 1996 installment payment. To the contrary, by its judgment, the trial court implicitly determined the special statute of limitation in § 67.465 did not bar the claim challenging the timing of the 1996 installment. Consequently, Mr. Rasse’s assertion of inconsistent judgments lacks merit. Point 1(E) is denied.

D. Claims of Procedural Errors

Mr. Rasse cites numerous claims of procedural errors, none of which merit reversal on appeal. First, Mr. Rasse complains about the City’s amended motion for summary judgment. He maintains that the amended motion was defective for failing to comply with Rule 74.04. His claims of defect center around the City’s presentation of facts and the grounds for summary judgment. The City, however, was not required to state with particularity what elements of the petition were in dispute because it relied on the statute of limitation defense. See Corley, 820 S.W.2d at 673. Our ruling on the propriety of the partial summary judgment against Mr. Rasse and the trial court’s award of declaratory relief in Mr. Rasse’s favor dispel the claims of defect. Mr. Rasse further asserts that the amended motion for summary judgment was not authorized by Rule 74.04. Nevertheless, the City filed its amended motion for summary judgment in response to Mr. Rasse’s motion to strike the original motion. The City’s amended motion corrected defects alleged in the motion to strike. Mr. Rasse, in turn, filed a ninety-page response without objection. These claims are unavailing; we deny Points 1(A) and 1(D).

Mr. Rasse next asserts that the trial court abused its discretion by denying him leave to amend his petition. The proposed amended petition added Columbia Curb and Gutter, Inc. as a party defendant. Seeking money damages, the proposed amendment also included additional counts of negligence and counts of breach of contact against the City of Marshall, the officials, and the construction company. Mr. Rasse contends that amendment was warranted because leave to amend is to be freely granted, his case had been on file less than six weeks, and the amendment posed no prejudice to the City. Asserting hardship and injustice, Mr. Rasse insists that his amended motion would have allowed him to clarify the issues and to avoid the partial summary judgment and the dismissal. In spite of his assertions, Mr. Rasse demonstrates no abuse of discretion. He fails to show how the amendment would have negated the affirmative defense of statute of limitation. The partial summary judgment and dismissal of his action for declaratory relief do not preclude his filing separate actions for money damages. Cf. Committee For Educ. Equality v. State, 878 S.W.2d 446, 452 (Mo. banc 1994) (declaratory judgment supplements but does not supplant other remedies). Point II is denied.

In addition, Mr. Rasse contests the dismissal of the case with prejudice and the dissolution of the temporary restraining order. Mr. Rasse claims that the dismissal was erroneous because his petition invoked substantive principles of law that would allow him to recover under some possible theory. The temporary restraining order, which has not been properly made a part of the record on appeal, apparently restrained the sale of Mr. Rasse’s property at the August 24, 1998 tax sale. Both rulings follow naturally from the partial summary judgment that precluded the action to challenge the validity of the special assessments. We deny Points III and IV.

Finally, for the first time in his reply brief, Mr. Rasse seeks appellate review of incidents that occurred after entry of the March 12,1999 Order and Judgment. The incidents involve the City’s compliance with the declaratory relief ordered on the timing claim. Those claims are beyond the scope of this appeal and will not be considered.

IV. Conclusion

In summary, we overrule the City’s motion to dismiss the appeal and for frivolous appeal damages; we affirm the partial summary judgment against Mr. Rasse on his challenge to the validity of the special assessments; we decline appellate review of Mr. Rasse’s challenge to the timing of the installments for lack of controversy; we find no reversible error on Mr. Rasse’s claims of procedural errors. We accordingly affirm the Order and Judgment entered on March 12,1999.

ELLIS and SPINDEN, JJ., concur.

      . The officials are Janet L. French, City Clerk; Charles Tryban, City Administrator; Delford R. Thompson, Saline County Collector of Revenue. Throughout this opinion the respondents will be referred to collectively as "the City.”

      . A constitutional amendment approved by Missouri voters provided for creation of neighborhood improvement districts. Mo. Const, art. Ill, § 38(c). The implementing legislation, the Neighborhood Improvement District Act, allows cities and counties to finance public improvements through general obligation bonds. Sections 67.453 through 67.475, RSMo 1994 and Supp.1999. The landowners whose property is benefited reimburse the local authority for the improvements through payment of special assessments. See generally Spradlin v. City of Fulton, 924 S.W.2d 259 (Mo. banc 1996) (provides background on development and implementation of Neighborhood Improvement District Act).

      . Section 67.463.2 provides: "After construction of the improvement has been completed in accordance with the plans and specifications therefor, the governing body shall compute the final costs of the improvement and apportion the costs among the property benefited by such improvement in such equitable manner as the governing body shall determine, charging each parcel of property with its proportionate share of the costs, and by resolution or ordinance, assess the final cost of the improvement or the amount of general obligation bonds issued or to be issued therefor as special assessments against the property described in the assessment roll.”

      . Section 67.463.3 provides: "After the passage or adoption of the ordinance or resolution assessing the special assessments, the city clerk or county clerk shall mail a notice to each property owner within the district which sets forth a description of each parcel of real property to be assessed which is owned by such owner, the special assessment assigned to such property, and a statement that the property owner may pay such assessment in full, together with interest accrued thereon from the effective date of such ordinance or resolution, on or before a specified date determined by the effective date of the ordinance or resolution, or may pay such assessment in annual installments as provided in subsection 4 of this section.”

      .For example, other states with special statutes of limitation on special assessment contests include: Arizona (Municipal Improvement Districts) — thirty days after assessment resolution — Ariz. Rev. Stat. Ann. § 48-721(A) (West Supp.1999); Arkansas — thirty days after publication of assessment. — Ark. Code Ann. § 14-90-804 (1987); California — thirty days from adoption of assessment resolution. — Cal. Streets & Highways Code § 10400 (Deering 1978); Indiana (Economic Improvement Districts) — thirty days after adoption of assessment ordinance — Ind. Code Ann. § 36-7-22-13 (Michie 1995); Kansas — thirty days from publication of ordinance fixing assessments— Kan. Stat. Ann. § 12-6all (1991); Minnesota — thirty days after passage of assessment resolution — Minn. Stat. § 429.081 (1987); New York — thirty days after affirmance of final assessment roll — N.Y. Town Law § 239 (Consol.1976); North Dakota — thirty days after adoption of resolution awarding finance warrants — N.D. Cent.Code § 40-22-43 (1983); Oklahoma — fifteen days after publication of ordinance levying assessments — Okla. Stat. TIT. 11, § 37-234 (1994); South Dakota— twenty days after publication of assessment roll resolution and notice — S.D. Codified Laws § 9-43-73 (Michie 1995).

      . Allis-Chalmers v. City of Oxnard., 105 Cal.App.3d 876, 165 Cal.Rptr. 128, 131 (1980); see Serenko v. City of Wilton, 593 N.W.2d 368, 372 (N.D.1999).

      . E.g., Cherry v. Vanlahi, Inc., 216 Kan. 195, 531 P.2d 66, 69 (1975), quoting Schenk v. Kansas City, 134 Kan. 181, 5 P.2d 842, 844 (Kan. 1931); Shortridge v. Daubney, 425 N.W.2d 840, 842 (Minn. 1988), citing Geib v. Morrison County, 119 Minn. 261, 138 N.W. 24 (1912); see generally Eugene McQuillin, 14 Law of Municipal Corporations § 38.207 (3d ed.1978).

      . Cf. Statser v. Oklahoma City, 552 P.2d 404 (Okla.1976) (in which the fifteen-day special statute of limitation barred the landowners’ action to enjoin collection of alleged unconscionable special assessments based on the invalidity of the city ordinance creating the sewer district).

      . Kansas' special statute of limitation in Kan. Stat. Ann. § 12-6all contains similar language. In Cherry v. Vanlahi, Inc., 216 Kan. 195, 531 P.2d 66 (1975), the landowners filed their special assessments challenge over two years after the thirty-day limitation period.
      They accused the city of illegally omitting two areas benefited by the improvements from the improvement district. The action was time-barred because the claim of illegality constituted an action to "otherwise question the validity of the proceedings” under the special statute of limitation.

        .See, e.g., Serenko v. City of Wilton, 593 N.W.2d 368 (N.D.1999); Maumelle Blvd. Water and Sewer Dist. No. 1 v. Davis, 315 Ark. 353, 868 S.W.2d 73 (1993); Horowitz v. Board of Assessment, 128 A.D.2d 875, 513 N.Y.S.2d 797 (1987).

      . Section 67.463.4 is provided in its entirety with the timing and certification requirements underlined: "The special assessments shall be assessed upon the property included therein concurrent with general property taxes, and shall be payable in substantially equal annual installments for a duration stated in the ballot measure prescribed in subsection 2 of section 67.457 or in the petition prescribed in subsection 3 of section 67.457, and, if authorized, an assessment in each year thereafter levied and collected in the same manner with the proceeds thereof used solely for maintenance of the improvement, taking into account such assessments and interest thereon, as the governing body determines. The first installment shall be payable after the first collection of general property taxes following the adoption of the assessment ordinance or resolution unless such ordinance or resolution was adopted and certified too late to permit its collection at such time. All assessments shall bear interest at such rate as the governing body determines, not to exceed the rate permitted for bonds by section 108.170, RSMo. Interest on the assessment between the effective date of the ordinance or resolution assessing the assessment and the date the first installment is payable shall be added to the first installment. The interest for one year on all unpaid installments shall be added to each subsequent installment until paid. In the case of a special assessment by a city, all of the installments, together with the interest accrued or to accrue thereon, may be certified by the city clerk to the county clerk in one instrument at the same time. Such certification shall be good for all of the installments, and the interest thereon payable as special assessments."


source: Caselaw Access Project

author: ROBERT S. BARNEY, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Ulysses Ray DECKARD, Appellant.
    No. 22312.
    Missouri Court of Appeals, Southern District, Division Two.
    April 24, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 16, 2000.
    Application for Transfer Denied June 27, 2000.

      Richard L. Schnake, Springfield, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Susan K. Glass, Asst. Atty. Gen., Jefferson City, for Respondent.
   ROBERT S. BARNEY, Judge.

On January 12, 2000, this court issued an opinion in this cause. On March 27, 2000, by order of the Supreme Court of Missouri, Appellant Ulysses Ray Deck-ard’s application to transfer this cause was sustained and on the same date, this cause was retransferred to this court for reconsideration in light of the Supreme Court of Missouri’s opinion in State v. Scott Robert Beeler, 12 S.W.3d 294 (Mo.banc 2000).

The original opinion of this Court, as modified in light of State v. Beeler, is readopted and reissued. Two additional cases have been added to the original opinion to clarify this court’s holding that Appellant was not entitled to an involuntary manslaughter instruction by the trial court.

I.

Ulysses Ray Deekard (“Defendant”) appeals from a jury verdict which found him guilty of second degree murder and one count of armed criminal action arising from his shooting and killing Wade Hisey with a shotgun. See §§ 565.021.1(1) and 571.015. The Circuit Court of Laclede County sentenced Defendant to concurrent terms of life imprisonment in the Missouri Department of Corrections.

In his sole point on appeal, Defendant contends that the trial court plainly erred in refusing to give his tendered instructions, discussed below, “which would have submitted the issues of voluntary and involuntary manslaughter to the jury.” We affirm.

We initially observe that an assertion of plain error under Rule 30.20 places a much greater burden on a defendant than an assertion of prejudicial error. See State v. Mitchell, 975 S.W.2d 191, 199 (Mo.App.1998). A defendant must not only show prejudicial error occurred, but must also show that the error so substantially affected the defendant’s rights that a manifest injustice or a miscarriage of justice would inexorably result if the error were to be left uncorrected. See Id.

“This Court reviews the facts in the light most favorable to the verdict.” State v. Chaney, 967 S.W.2d 47, 49 (Mo. banc 1998). In doing so, we consider the evidence and all reasonable inferences therefrom in the light most favorable to the verdict and we disregard all inferences to the contrary. See State v. Perry, 954 S.W.2d 554, 557 (Mo.App.1997); State v. Gaston, 897 S.W.2d 136, 137 (Mo.App.1995). “The jury, not the appellate court, is responsible for weighing the reliability and credibility of the witnesses.” State v. Allison, 845 S.W.2d 642, 645 (Mo.App.1992). A jury may believe all, some or none of the testimony of any witness. Id.

II.

Defendant and Lisa Lawson (“Lisa”) had been living together off and on for several years before their break-up on June 13, 1996. Lisa worked at Mazzio’s Pizza in Lebanon, Missouri, where Mr. Hisey worked as the manager. At some point Mr. Hisey and Lisa had had a close relationship; however, Mr. Hisey’s attentions then turned to another girlfriend, and although working together, their relationship became distant.

Some four months before the homicide in question, Defendant had confronted Mr. Hisey concerning his relationship with Lisa. It was at this time Defendant told Mr. Hisey that “if he didn’t leave Lisa alone that he would kill him.”

On June 13, 1996, Lisa asked Defendant to leave their mutual home and in compliance with her wishes he began preparations to move out. He was upset. Defendant then went to Lisa’s parents’ home and retrieved a single barrel, 12 gauge shotgun that he had previously loaned Lisa’s brother for turkey season. In a statement made to police after the homicide, Defendant stated that after retrieving his shotgun, he stopped at his body shop to get a screwdriver “to take a waterbed apart,” and then returned to his old abode. He told the police that after returning home he retrieved several other guns and placed them in the trunk. He recounted that he placed the shotgun back in the front seat of his car. He then took Lisa to work at Mazzio’s Pizza at eleven o’clock a.m., returned to his home, drank a few beers and played basketball with some neighborhood kids. He then commenced watching television. About the same time he had a conversation with Lisa’s sister, Christy Rogers.

Ms. Rogers related to Defendant that Mr. Hisey was supposed to take her and “Kayla” (Lisa’s daughter) cruising on the night of June 13, 1996. • At this point Defendant became angry and, according to Ms. Rogers, he “punched the TV,” cracking the screen. Furthermore, according to Ms, Rogers “he got the gun out of the trunk and went and put it in the front seat,” contradicting Defendant’s statement that he had already placed the shotgun in the front seat of the car.

Following the conversation with Ms. Rogers, Defendant got in the car and left. He subsequently arrived at Mazzio’s Pizza at approximately 2 p.m. of the same day. Lisa saw Defendant pull up outside of the restaurant and went out to talk to him. Defendant asked Lisa whether Mr. Hisey was going to take her sister and daughter cruising that night. When Lisa denied knowing anything about it, Defendant retrieved the shotgun out of the car and walked inside with the shotgun. At this time the shotgun was not pointed in the direction of Mr. Hisey. The evidence reveals that Defendant then confronted Mr. Hisey, who was standing behind the counter next to the register. Defendant yelled at Mr. Hisey and tried to get him to go outside. Defendant’s tone was not conversational, but angry. Lisa attempted to intervene and was shoved out of the way by Defendant. Mr. Hisey’s sister, Wanda Nguyen, talked to Defendant and attempted to wedge herself between Defendant and Mr. Hisey but was pushed away by Mr. Hisey. When Mr. Hisey reached for the phone Defendant, standing some two feet from him, raised the shotgun to Defendant’s shoulder and pointed it at Mr. Hisey’s head. Defendant ordered him to put down the phone stating that “[y]ou going to pick up that f_ing phone, I’m going to blow your f_ing head off-” Mr. Hisey then placed the phone back down on the receiver and looked up to his side, in the direction of a clock on the wall. Defendant then fired the shotgun, killing Mr. Hisey.

Defendant immediately departed from Mazzio’s Pizza. After spending the night in the woods near the interstate highway, Defendant turned himself into law enforcement authorities and made a statement at the Lebanon Police Department regarding the homicide. Defendant told police that he thought the shotgun was not loaded when he walked into the restaurant with it.

Defendant was charged with one count of murder in the first degree and one count of armed criminal action. Sections 565.020.1 and 571.015, respectively. At trial Defendant proffered instructions “A,” “B,” and “C.” For the sake of clarity we discuss them out of order. Defendant’s Instruction “B” was in the form provided by MAI-CR 3d 313.08 for a voluntary manslaughter submission; Instruction “C” was in the format set out in MAI-CR 3d 313.10, submitting involuntary manslaughter. In Instruction “A,” based on MAI-CR 3d 313.04, submitting second degree murder, Defendant set out paragraphs First and Second, as in a conventional second degree murder submission. Also, in an additional “Third” paragraph to Instruction “A,” Defendant sought to instruct the jury that second degree murder required a finding that Defendant did not act “under the influence of sudden passion arising from adequate cause.” See paragraph 4, “Notes on Use,” in MAI-CR 3d 313.04. The trial court refused to submit these instructions.

In his sole point on appeal, Defendant contends that the trial court plainly erred in refusing to give Defendant’s three tendered instructions (“A,” “B,” and “C”). He argues that there was evidentiary support for their submission. In determining whether Defendant is entitled to a particular jury instruction, we review the evidence in the light most favorable to Defendant. See State v. Howard, 949 S.W.2d 177,180 (Mo.App.1997).

As a general proposition, “ ‘[i]n determining the degree of an offense which is to be considered by a jury a defendant is entitled to an instruction which is supported by the evidence and any inferences which logically flow from the evidence.’ ” State v. Arbuckle, 816 S.W.2d 932, 935 (Mo.App.l991)(quoting State v. Saffold, 563 S.W.2d 127, 129 (Mo.App.1978)). “ ‘An instruction on a lesser included offense is required only if the evidence of probative value could form a basis of acquittal of the higher offense and a basis for conviction of the lower.’ ” Id. (quoting State v. White, 738 S.W.2d 590, 592 (Mo.App.1987)).

III.

Instructions “B” and “A”.

Voluntary manslaughter is a lesser included offense of second degree murder, the crime for which Defendant was convicted in this case. See State v. Redmond, 937 S.W.2d 205, 208 (Mo. banc 1996); see also § 565.025.2(2). “A trial court is required to instruct on a lesser included offense if the evidence, in fact or by inference, provides a basis for both an acquittal of the greater offense and a conviction of the lesser offense, and if such instruction is requested by one of the parties or the court.” Id. “[I]f there is any doubt concerning the evidence, the trial court should resolve any doubts in favor of instructing on a lower degree of the crime, leaving it to the jury to decide which of two or more grades of offense, if any, the defendant is guilty.” State v. Johnston, 957 S.W.2d 734, 751 (Mo. banc 1997).

“The crime of voluntary manslaughter is defined as causing the death of another person under circumstances that would constitute murder in the second degree, except that the death was caused ‘under the influence of sudden passion arising from adequate cause.’ ” Redmond, 937 S.W.2d at 208(quoting § 565.023.1(1)). “The defendant has the burden of injecting the issue of influence of sudden passion arising from adequate cause.” Id. “This means the issue is not submitted to the trier of fact unless supported by the evidence.” /¿.(emphasis added). Accordingly, the trial court is required to give an instruction on voluntary manslaughter if “there is sufficient evidence to support a finding that the defendant caused the death of, the victim under the influence of sudden passion arising from , adequate cause.” Redmond, 937 S.W.2d at 208(emphasis added); see State v. Fouts, 939 S.W.2d 506, 511 (Mo.App.1997).

“ ‘Sudden passion’ is defined as ‘passion directly caused by and arising out of provocation by the victim or another acting with the victim which passion arises at the time of the offense and is not solely the result of former provocation.’ ” Redmond, 937 S.W.2d at 208(quoting § 565.002(7)). “‘Adequate cause’ is cause that would reasonably produce a degree of passion in a person of ordinary temperament sufficient to substantially impair an ordinary person’s capacity for self-control.” /¿.(quoting § 565.002(1)). “The offense must have been committed in sudden passion, and not after there has been time for the passion to cool.” Id. “Words alone, no matter how opprobrious or insulting, are not sufficient to show adequate provocation.” ' Redmond, 937 S.W.2d at 208. “Unlike self-defense, there is no requirement that the defendant act reasonably to have his intentional killing reduced from murder to voluntary manslaughter.” Id. at 209.

In State v. Merchant, 791 S.W.2d 840 (Mo.App.1990), defendant and his ex-wife had continuous disagreements after their divorce. One of defendant’s children had occasion to tell defendant that the children had not been fed by their mother, Defendant’s ex-wife, because their mother was “too busy messing around with [ex-wife’s boyfriend].” Id. at 843. Defendant then searched for his ex-wife and her boyfriend at the home of ex-wife’s sister, eventually locating ex-wife and boyfriend in the parking lot of a store where defendant then shot and killed both ex-wife and her boyfriend. Id. at 841-42. In the ensuing murder case, the appellate court affirmed the trial court’s denial of an instructional submission on voluntary manslaughter. The court opined that defendant’s “isolated explosive disorder of impulse” did “not meet the burden of showing sudden passion.” Id. at 843.

In State v. Fears, 803 S.W.2d 605 (Mo. banc 1991), the evidence showed that defendant and victim were engaged in a heated argument resulting from prior disagreements. Defendant attempted to “turn away” from the argument, but the victim “circled [defendant] to prevent his leaving the argument.” Id. at 608. The victim pushed defendant and both men began waving fingers at each other and poking the other’s chest. Victim eventually took a swing at defendant. Id. at 608. The court found that the foregoing physical altercation put defendant “in fear of serious bodily harm, carried out in a time span insufficient for [defendant’s] anger to cool, and sufficient for reasonable persons to have found that [defendant] acted under ‘sudden passion.’ ” Id. at 609; see Redmond, 937 S.W.2d at 208. In Redmond, supra, there was evidence of a heated argument in which the victim confronted the defendant in a threatening manner displaying the handle of a gun. Fearing for his life he then struck victim with a baseball bat. Id. at 209. The Missouri Supreme Court held that the trial court erred in refusing defendant’s proffered instruction on voluntary manslaughter. Id. at 208. In State v. Newlon, 721 S.W.2d 89 (Mo.App.1986), the victim and defendant were arguing. The defendant testified that the victim verbally threatened her and pulled a kitchen knife, which scared the defendant. Id. at 91. The defendant then shot and killed the victim. Id. The appellate court determined that there was a showing of sufficient evidence to support the submission of a voluntary manslaughter instruction. Id. at 94; Redmond, 937 S.W.2d at 209.

Likewise, in State v. Richards, 795 S.W.2d 428 (Mo.App.1990), the defendant and the victim “began arguing and fighting on May 11, 1988, over [victim’s] alleged statement that he wanted to have sex with [defendant’s girlfriend] for $25.” Id. at 431. Apparently, the argument lasted into the next day. Id. As best we can glean from the sparse information provided in the opinion, while engaged in a physical fight with victim, the defendant “ ‘put’ the victim into the river.” Id. at 435. Without comment, the Court determined that there was sufficient evidence of sudden passion arising from adequate cause to justify the submission of a voluntary manslaughter instruction to the jury. Id.

In the instant matter, however, the evidence shows that some four months before the homicide in question Defendant confronted Hisey concerning his relationship with Lisa and threatened to kill him “if he didn’t leave Lisa [Lawson] alone.” The foregoing statement made by Defendant supports the inference of former provocation. Yet, as we have previously observed, sudden passion supporting a submission of a voluntary manslaughter instruction can not arise solely from the result of former provocation. Redmond, 937 S.W.2d at 208. Furthermore, we have also previously observed that in order to support a submission of voluntary manslaughter the “offense must have been committed in sudden passion, and not after there has been time for the passion to cool.” Id. Here, the record supports the inference that Defendant had time to cool his anger after he heard about the cruising incident from Ms. Rogers. After talking with Ms. Rogers, Defendant entered his vehicle and drove to Mazzio’s Pizza.. At that point he was confronted by Lisa. After engaging in conversation with Lisa, he then retrieved the shotgun from his vehicle and proceeded to enter into the building. Inside, he continued his conversation with Lisa and engaged in a brief conversation with Wanda Nguyen. Significantly, unlike the factual scenarios set out in the previously mentioned cases, the victim’s manner of speech and actions were neither provocative nor confrontational. It is our perception that Mr. Hisey’s actions were insufficient to ignite a sudden passion in any reasonable person. Additionally, unlike the facts in Newlon, supra, Mr. Hisey neither attempted to hit or otherwise physically assault Defendant nor did he display or intimate that he had a deadly weapon with him at the pizza shop. Unlike the facts in Richards, supra, Mr. Hisey had not previously engaged in continuous bouts of fighting and arguing with Defendant. Furthermore, unlike the facts in Fears, supra, he did not attempt to circle Defendant and prevent him from leaving the scene. In short, Mr. Hisey simply refused to go outside with Defendant and during the course of Mr. Hisey’s attempt to make a telephone call, Defendant shouldered his weapon, pointed it in Mr. Hisey’s direction and fired his weapon, killing him.

Based on the foregoing, we conclude that the trial court committed no error, plain or otherwise, in refusing to submit Defendant’s tendered Instruction “B” on voluntary manslaughter. In the instant case there is an absence of sudden passion arising from adequate cause that would otherwise support a submission based on voluntary manslaughter. Merchant, 791 S.W.2d at 843. Sub-point denied.

We also conclude that the trial court committed no error in refusing to give Instruction “A,” Defendant’s version of MAI-CR3rd 313.04. This is because there was no evidence in the record showing that Defendant acted with sudden passion arising from adequate cause. State v. Boyd, 913 S.W.2d 838, 842 (Mo.App.1995); Johnston, 957 S.W.2d at 751. Sub-point denied.

IV.

Instruction “C”.

Turning to our review of Defendant’s proffered submission based on involuntary manslaughter we initially observe that “[i]nvoluntary manslaughter is a lesser included offense of second degree murder.” State v. Isom, 906 S.W.2d 870, 873 (Mo.App.1995); see § 565.025(2)(b). “Section 565.024.1(1) ^provides that a person commits the offense of involuntary manslaughter if he ‘[rjecklessly causes the death of another person.’” Id. at 872 (quoting § 565.024.1(1)). “The court shall not be obligated to charge the jury with respect to an included offense unless thee is a basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.” § 556.046.2

Recently, in State v. Beeler, supra, the Supreme Court of Missouri observed that “the word ‘reckless’ did not appear in our manslaughter statute prior to the enactment of present sec. 565.024, effective October 1, 1984.” Beeler, at 298. The Court observed that “[tjhe former manslaughter statute extended to ‘every killing of a human being by the act, procurement or culpable negligence of another, not herein declared to be murder or excusable or justifiable homicide.’ ” Id. (quoting § 565.005, RSMo 1978). Yet, the Court noted that developing case law after the enactment didn’t appear to be consistent with the new statutory definition because the Missouri Court of Appeals has “continued to cite cases relying on the former statute for the proposition that recklessness constitutes accidental or culpably negligent conduct.” Id. (emphasis added) (citations omitted). Our high court pronounced that “[tjhe statutory definition of ‘reckless’ conduct as it exists today is that the actor is liable for an intentional act if there is a conscious disregard of a risk of death to another and such disregard is a gross deviation from what a reasonable person would do in the circumstances.” Id. at 299. The Court then declared that “[tjo the extent the cases relied on by the defendant stand for the proposition that self-defense in a homicide matter forecloses the possibility of an instruction on involuntary manslaughter because such offense requires an accidental act or unintended consequence, they are overruled.” Id.

In State v. Frappier, this court affirmed defendant’s conviction for involuntary manslaughter where evidence was held sufficient to support a finding that defendant acted recklessly where testimony indicated that defendant picked up a crying child by the neck, resulting in the child’s asphyxiation. Frappier, 941 S.W.2d 859, 861 (Mo.App.1997). “A reasonable juror could determine that there was a substantial and unjustifiable risk that quieting [the child] in this manner would cause [the child’s] death and that [djefendant’s conscious disregard of that risk was a gross deviation from what a reasonable person would do under the circumstances.” Id.

In State v. Fox, 916 S.W.2d 356, 359 (Mo.App.1996), the defendant admitted he pulled out a knife and threatened the victim with it, even though both he and victim were intoxicated, and that the victim fell on the knife. The court stated that the “jurors could find that by displaying and pointing the knife toward [the victim] defendant was acting recklessly.” Id. at 360.

As a general rule, “[d]irect proof of mental state in a criminal case is seldom available and such intent is usually inferred from circumstantial evidence.” State v. Johnson, 770 S.W.2d 263, 267 (Mo.App.1989). “A defendant’s mental state may be determined from evidence of his conduct before the act, the act itself and from the defendant’s subsequent conduct.” Id. “The fact that [a defendant] did not remember committing the crime is not conclusive that he was not aware of the nature of his conduct or its consequences.” State v. Runyon, 619 S.W.2d 955, 957 (Mo.App.1981). An “intent to cause serious physical injury can be inferred from the defendant’s use of a deadly weapon on a vital area of a victim’s body.” State v. Tracy, 918 S.W.2d 847, 851 (Mo.App.1996).

In the instant case, Defendant argues that the jury could have found that Defendant acted recklessly when he “took the shotgun into Mazzio’s Pizza to intimidate [Mr. Hisey] into coming outside to talk with him.” Further, Defendant maintains that he was entitled to an involuntary manslaughter because “he thought the gun was not loaded.” These arguments are spurious. Defendant’s actions transcended recklessness. As previously set out, some four months prior to the homicide, Defendant threatened to kill Mr. Hisey. On the day of the homicide he test fired the shotgun that he eventually used in shooting and killing Mr. Hisey. He then walked into Mazzio’s Pizza, yelling in an angry and argumentative manner. Mr. Hisey was not threatening or provocative. Indeed, Mr. Hisey refused to go outside. Mr. Hisey made no attempt to reach for the weapon or physically accost Defendant. When Mr. Hisey tried to use the telephone Defendant threatened him with dire harm. After Mr. Hisey placed the receiver into its carriage, Defendant aimed his shotgun in the direction of Mr. Hisey’s head and fired his weapon. No other evidence, save his own statement made to the police after the shooting, support’s Defendant’s claim that he did not know that the gun was loaded and that he did not intend to kill Mr. Hisey.

In State v. Davis, 691 S.W.2d 333 (Mo.App.1985), the defendant testified that while he was preparing to show the victim a gun that “he was fumbling with the trigger, with the handle on the gun, and my finger hit the trigger and it went off ... ” Id. at 334 (emphasis added). The Eastern District of this Court affirmed a manslaughter conviction under section 565.005, RSMo Supp.1982, now repealed, Id. at 342-43. While there are obvious similarities in Davis and the instant case— Defendant told police that he thought the shotgun was not loaded and denied any intentional conduct — unlike in Davis, no evidence exists showing that Defendant “fumbled” with the trigger or any other part of the weapon prior to its discharge. Indeed, Defendant stated that “it surprised me when it [the shotgun] went off’ and that “I thought I missed him. I didn’t think I hit him.” A “denial of intention to kill does not necessarily require an instruction for a lesser degree of the offense charged when ‘the statements of defendant were so incumbered with the physical facts and conduct of defendant, [and] so unreasonable and inconsistent with the experience of mankind.’ ” Arbuckle, 816 S.W.2d at 937 (quoting State v. Nelson, 118 Mo. 124, 23 S.W. 1088, 1089 (1893)). “It is properly said that it will be presumed that a person intends the natural and probable consequences of his acts.” State v. O’Brien, 857 S.W.2d 212, 218 (Mo. banc 1993). “A person is presumed to have intended that death follow acts which are likely to produce that result.” Isom, 906 S.W.2d at 874. “Under the facts of this case, to recognize the defendant’s testimonial denial as a basis for requiring an instruction on involuntary manslaughter would be tantamount to .reinstatement of the ‘automatic submission’ doctrine.” Ar-buckle, 816 S.W.2d at 936.

We observe that the facts in the instant case more closely resemble those found in State v. Green, 778 S.W.2d 326, 328 (Mo.App.1989). In Green the defendant was seen leaving his home carrying a shotgun and confronted victim in a public street with the shotgun, told him he was going to kill him and shot him in the head at a distance of twelve feet. Id. In affirming a conviction of second degree murder, the court held that defendant was not entitled to an instruction on involuntary manslaughter. Id. at 327-28. It held that “[s]uch conduct goes beyond recklessness. Id. at 328. Although defendant testified he did not intend to Mil victim, “his conduct was a means likely to produce death and he is presumed to have intended that death follow his acts.” Id.

We determine that no rational factfinder could conclude the defendant did not act knowingly. We find no manifest injustice or a miscarriage of justice resulting from the trial court’s actions in denying Defendant’s proffered instructions. See Rule 30.20 Missouri Court Rules (1999); Mitchell, 975 S.W.2d at 199. The judgment is affirmed.

GARRISON, C.J., and PREWITT, J., concur.

      . Statutory references are to RSMo 1994, unless otherwise noted.

      . Defendant’s attorney filed his motions for judgment of acquittal notwithstanding the verdict and for new trial, which were denied as being untimely. Accordingly, the motions preserved nothing for review. State v. Alford, 576 S.W.2d 583 (Mo.App.1979).

      . All rule references are to Missouri Court Rules (1998), unless otherwise noted.

      . In this opinion we shall refer to Ms. Lawson as Lisa, for the sake of convenience. We mean no disrespect.

      . At some point during the day Defendant had test fired the shotgun.

      . Defendant did not testify at trial.

      . "Notes on Use,” paragraph 4, of MAI-CR 3d 313.04, stales that "[i]f there is evidence supporting sudden passion from adequate cause, paragraph (Third) must be given.” See State v. Boyd, 913 S.W.2d 838, 842 (Mo.App.1995)(acting under the influence of sudden passion arising from adequate cause, § 565.023.1(1), is a special negative defense to the crime of conventional second degree murder; defendant has the burden of injecting this issue).

      . Defendant proffered Richards as support for his argument that Defendant’s actions constituted evidence of sudden passion arising from adequate cause.

      . The opinion also recited that "[r]ecklessness resembles knowing conduct in one respect in that it involves awareness, but it is an awareness of risk, that is, of a probability less than a substantial certainty. By contrast, to act knowingly is to be aware that the conduct is practically certain to cause a result. Sec. 562.016.3.” Id. at 299. Nevertheless, the Court observed that “reckless conduct is not inconsistent with the intentional act of defending one’s self, if in doing so one uses unreasonable force.” Id.


author: CROW, Presiding Judge. SHRUM, Judge,

text:
    STATE of Missouri ex rel. RIPLEY COUNTY, Missouri, Relator, v. The Honorable R. Jack GARRETT, Judge of the Circuit Court of Carter County, Missouri, Respondent.
    No. 23241.
    Missouri Court of Appeals, Southern District, Division One.
    April 26, 2000.
    Motion for Rehearing and Transfer to Supreme Court Denied May 18, 2000.
    Application for Transfer Denied June 27, 2000.
    D. Keith Henson, Paule, Camazine & Blumenthal, P.C., Clayton, for Relator.
    John E. Toma, Jr., Richard L. Saville, Jr., Newman, Freyman, Klein & Gamache, P.C., St. Louis, for Charles David Smith, plaintiff in the underlying suit.
   CROW, Presiding Judge.

Relator, a county of the third class, is one of five defendants in a lawsuit pending before Respondent. In that suit (“the underlying suit”), Charles David Smith (“Plaintiff’) avers he was arrested without probable cause on or about May 28, 1995, in Ripley County by the county sheriff, Dennis Cox, and two of Cox’s deputies, Steve Gant and Bruce Ridlen; that those three officers and another deputy sheriff, Margaret Ayers, instigated a criminal prosecution against Plaintiff for forcible rape, forcible sodomy and felonious restraint; that Plaintiff was held in custody approximately twenty hours and compelled to post bond before being released; and that Ayers made false and slanderous statements about Plaintiff.

Plaintiffs three-count, second amended petition in the underlying suit pleads that the conduct of the four individual defendants occurred “in the course and scope of their employment” by Relator, hence Relator is liable for such conduct. In Count I, Plaintiff seeks actual and punitive damages against Relator and the four individual defendants for malicious prosecution; in Count II, Plaintiff seeks actual and punitive damages against Relator and the four individual defendants for false imprisonment; in Count III, Plaintiff seeks actual and punitive damages against Relator and Ayers for slander.

Relator moved for summary judgment in the underlying suit, averring all claims against it are barred “by the doctrine of sovereign immunity.”

Plaintiff answered Relator’s motion by alleging Relator purchased insurance for “claims of malicious prosecution, false imprisonment and slander for the calendar year 1995,” thereby waiving sovereign immunity “as provided by § 537.610 RSMo.”

Respondent denied Relator’s motion for summary judgment.

Relator thereupon filed a petition in this court for a writ of prohibition or, in the alternative, mandamus. Relator prayed this court to bar Respondent from allowing the underlying suit to proceed against Relator, and for this court to command Respondent to grant Relator’s motion for summary judgment.

This court issued a preliminary order in prohibition barring Respondent from allowing the underlying suit to proceed against Relator until further order of this court.

Plaintiff thereafter filed an answer to Relator’s petition, and Relator and Plaintiff subsequently filed briefs.

The sole issue before this court, as framed by the briefs, is whether Relator’s purchase of insurance waived Relator’s sovereign immunity against Plaintiffs claims in the underlying suit. The answer to that question lies in § 537.610, RSMo 1994, and Relator’s insurance policy.

The policy was issued by Savers Property & Casualty Insurance Company and bears number CP0000954-01. This opinion henceforth refers to the policy as “Policy 954.” The period covered by Policy 954 was from “1-11-95” to “1-11-96.”

This court gathers from the briefs that Relator and Plaintiff agree that the provisions of Policy 954 on which the outcome of this proceeding hinges are found in a part of Policy 954 denominated “Commercial General Liability Coverage Part.” That part contains a segment denominated “Section I — Coverages.” One of the components of Section I is denominated “Coverage B. Personal and Advertising Injury Liability.” It reads, inter alia:

“1. Insuring Agreement,
a.We will pay those sums that the insured becomes legally obligated to pay as damages because of ‘personal injury’ or ‘advertising injury’ to which this insurance applies .... ”

This opinion henceforth refers to the above-quoted passage as “Section I.B.l.a.”

The term “personal injury” in Section I.B.l.a. is defined in another segment of the “Commercial General Liability Coverage Part” of Policy 954. That segment is denominated “Section V — Definitions.” It reads, inter alia:

13. ‘Personal injur/ means injury, other than ‘bodily injury’, arising out of one or more of the following offenses:
a. False arrest, detention or imprisonment;
b. Malicious prosecution;
c. ...
d. Oral or written publication of material that slanders or libels a person ... or disparages a person’s ... goods, products or services!.]”

This opinion henceforth refers to the above-quoted passage as “Section V.13.”

Obviously, Plaintiffs claims in the underlying suit are for “personal injury” as defined in Section V.13. If the analysis ended there, this would be an easy case; this court would summarily quash its preliminary order.

However, the analysis does not end with Section V.13. Whether Relator is entitled to relief in this court depends on whether Section I.B.l.a. of Policy 954, measured against § 537.610.1, waives Relator’s sovereign immunity against Plaintiffs claims.

The crucial language of Section I.B.l.a. is the clause obligating the insurer to pay “those sums that the insured becomes legally obligated to pay as damages” because of injuries defined in Section V.13. For ease of discussion, this opinion henceforth refers to that language as “the crucial policy language.”

The crucial language of § 537.610.1 is the clause providing that sovereign immunity for political subdivisions is waived “only for the purposes covered by such policy of insurance.” For ease of discussion, this opinion henceforth refers to that language as “the crucial statutory language.”

In State ex rel. Cass Medical Center v. Mason, 796 S.W.2d 621 (Mo. banc 1990), a county hospital shielded by sovereign immunity against medical negligence claims was sued for medical negligence. Id. The suing party, relying on § 537.610.1, RSMo 1986, maintained the hospital waived its immunity by purchasing a liability insurance policy. Id. at 623.

The Supreme Court of Missouri rejected the argument. The court examined the policy language to ascertain the “purposes covered.” Id. That examination revealed the purposes covered did not include medical negligence. Id. The opinion explained:

“The insurance contract ... never promised coverage of the kind of claim made by [the suing party].... Because [the] negligence claim does not fall under ‘the purposes covered by [the] policy of insurance,’ no coverage exists under this policy for the claim and no waiver of sovereign immunity exists under the language of section 537.610.1.”

Id.

Accordingly, the Supreme Court in Cass Medical Center barred the trial court from allowing the suit to proceed against the hospital. Id. at 624.

Endeavoring to distinguish Cass Medical Center from the underlying suit, Plaintiff points out — and this court agrees — that in Cass Medical Center the hospital’s insurance policy provided no coverage for the claim there (medical negligence) whereas Plaintiffs claims in the underlying suit fall within the definition in Section V.13 of Policy 954. Plaintiff insists: “[T]he purchase of insurance waives sovereign immunity if the insurance provides coverage for the very risks for which the defendant is being sued.”

Plaintiffs argument, while superficially plausible, ignores the crucial policy language. The insurer’s obligation under that language is to pay only the sums Relator becomes legally obligated to pay as damages because of injuries listed in Section V.13. If Relator never becomes legally obligated to pay damages for such injuries, no coverage exists under Section I.B.l.a., hence there is no waiver of sovereign immunity under § 537.610.1.

That was the analysis in Balderree v. Beeman, 837 S.W.2d 309 (Mo.App. S.D.1992). There, a party sued a regional planning commission for slander. Id. at 311. This court held the commission was a public entity within the ambit of § 537.600 and thereby immune from slander liability unless it waived immunity pursuant to § 537.610.1 by purchasing insurance. Id. at 317.

The insurance in Balderree, like Policy 954, obligated the insurer to pay “those sums that the insured becomes legally obligated to pay as damages.” Id. at 318. As the commission’s sovereign immunity shielded it from liability for slander, the commission could never become legally obligated to pay damages therefor (unless, of course, the commission waived immunity). Id. at 319. Because nothing in the policy obligated the insurer to pay, on behalf of the commission, any sum other than that which the commission became legally obligated to pay, this court held the commission did not waive immunity against the slander claim when it bought the insurance. Id.

Plaintiff astutely observes that Policy 954 differs from the policy in Balderree in that the policy there did not list slander as a covered injury, whereas Section V.13 of Policy 954 specifically lists the types of claims for which Plaintiff seeks recovery in the underlying suit. Consequently, maintains Plaintiff, Balderree provides no support for Relator’s argument that Relator did not waive sovereign immunity against Plaintiffs claims when Relator bought Policy 954.

In addressing Plaintiffs hypothesis, this court emphasizes the crucial policy language in Section I.B.l.a. requires the insurer to pay those sums that Relator becomes legally obligated to pay as damages because of injuries listed in Section V.13. It is clear from that language that unless Relator becomes legally obligated to pay such damages, the insurer has no duty to pay, as the condition triggering the insurer’s obligation will not have occurred. Under the rationale of Cass Medical Center, 796 S.W.2d at 623, where the insurer has no obligation to pay, no coverage exists and no waiver of sovereign immunity occurs under § 537.610.1.

Said another way, this court holds the clear purpose of Section I.B.l.a. is to provide insurance coverage for Relator only if Relator becomes legally obligated to pay damages for injuries listed in Section V.13. Under the crucial statutory language in § 537.610.1, Relator’s sovereign immunity is waived only for the purposes covered by Policy 954. Because it was not the purpose of Policy 954 to waive Relator’s immunity against claims such as Plaintiffs, but only to provide insurance protection in the event Relator became legally obligated to pay damages because of such claims, this court holds there was no waiver by Relator under § 537.610.1 of Relator’s immunity from such claims.

This court recognizes the above holding can be attacked by arguing that such a decision renders the coverage under Section I.B.l.a. of Policy 954 illusory. The argument would be that the insurer’s duty to pay damages for injuries listed in Section V.13 will never arise because Relator will never become legally obligated to pay damages for such injuries.

Such an argument overlooks the possibility that in this dynamic (and litigious) society, circumstances could arise — possibly through legislative action or a change in the common law — whereby Relator would find itself legally obligated to pay such damages. That was the plight of the State Highway Commission in Jones v. State Highway Commission, 557 S.W.2d 225 (Mo. banc 1977), and the dilemma of the defendants in the other three cases decided therewith. Id. at 226, 231.

Because of that specter, Relator’s governing body apparently found it prudent for Relator to have insurance protection against such an eventuality. Were this court to hold Relator, by buying Policy 954, waived its sovereign immunity against Plaintiffs claims in the underlying suit, the holding could impel political subdivisions to drop such insurance, believing that by being uninsured they would retain their sovereign immunity. This court shall not create such a quandary.

Beyond that, however, there is another compelling reason that Relator, by buying Policy 954, did not waive its sovereign immunity against Plaintiffs claims in the underlying suit.

Attached to Policy 954 is an endorsement denominated “Missouri Municipal Amendatory Endorsement” (“the Endorsement”). The Endorsement provides, inter alia:

“This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
The purpose of this insurance does not include coverage for any liability or suit for damages which is barred by the doctrines of sovereign or governmental immunity by whatever name, as set forth in RS MO 537.600. et. [sic] seq;
This policy is not intended to act as a waiver, nor is it a waiver of any defense ... available to the Insured by statute or at common-law;
All other terms and conditions remain unchanged.”

In State ex rel. Board of Trustees v. Russell, 843 S.W.2d 353 (Mo. banc 1992), a city hospital bought insurance covering “claims that arise out of the two perils specifically described in Section 537.600 R.S.Mo.” Id. at 360. Those are the perils as to which sovereign immunity is waived by § 537.600.1.

The policy in Russell contained an endorsement expressly disclaiming coverage for any claim barred by the doctrine of sovereign immunity. Id. The endorsement also provided that nothing contained in the policy or the endorsement shall constitute any waiver of the defense of sovereign immunity. Id.

The Supreme Court of Missouri held the hospital in Russell, by buying the insurance, did not waive sovereign immunity under § 537.610.1 against a claim for medical malpractice. Id. at 354, 360[13].

Russell was followed in Casey v. Chung, 989 S.W.2d 592 (MoApp. E.D.1999). There, a county hospital purchased Lability insurance covering bodily injury claims arising from health care services provided by it. Id. at 593. Attached to the policy was an endorsement stating the insurance did not apply to any claim or suit barred by sovereign immunity. Id. The endorsement also stated that neither it nor the policy shall constitute a waiver of the defense of sovereign immunity. Id. The appellate court held the hospital, by buying the insurance, did not waive sovereign immunity under § 537.610.1 against medical malpractice claims. Id. at 593-94.

Liability of a political subdivision for torts is the exception to the general rule of sovereign immunity, hence it is incumbent on a party seeking to establish such liability to demonstrate an exception exists. Best v. Schoemehl, 652 S.W.2d 740, 743[4] (Mo.App. E.D.1983), citing Burke v. City of St. Louis, 349 S.W.2d 930 (Mo.1961). Plaintiff has demonstrated no ex ception here.

Applying Russell, 843 S.W.2d at 360[13], and Casey, 989 S.W.2d at 593-94, this court holds the Endorsement to Policy 954 unassailably establishes that Relator, by buying Policy 954, did not waive sovereign immunity under § 537.610.1 against Plaintiffs claims in the underlying suit.

Prohibition is an appropriate remedy to protect a party from patently unwarranted and expensive litigation. Cass Medical Center, 796 S.W.2d at 624. Because Relator is immune from Plaintiffs claims in the underlying suit, this court holds Relator is entitled to the relief it seeks.

Order

Pursuant to Rule 84.24(?), Missouri Rules of Civil Procedure (2000), this court orders that a peremptory writ in prohibition be issued commanding Respondent to bar Plaintiff from proceeding against Relator in the underlying suit and to grant Relator’s motion for summary judgment. Said writ shall not impede Plaintiff from proceeding against the other defendants.

PARRISH, J., concurs.

SHRUM, J., concurs in result and files concurrence.

SHRUM, Judge,

concurring.

I concur in the result. I do so because of “the Endorsement” attached to Policy 954 and the analysis of the Endorsement made by the majority, including its reb-anee on State ex rel. Board of Trustees v. Russell, 843 S.W.2d 353 (Mo.banc 1992), and Casey v. Chung, 989 S.W.2d 592 (Mo.App.1999). I write separately because of my disagreement with the rest of the majority opinion.

Unlike the Relator here, the political subdivisions in State ex rel. Cass Medical Center v. Mason, 796 S.W.2d 621 (Mo.banc 1990), and in Balderree v. Beeman, 837 S.W.2d 309 (Mo.App.1992), had not purchased liability insurance coverage for the very risks for which the respective pubbe bodies were being sued. I view that as a definitive and dispositive distinction. I do not agree that Cass and Báldeme support the impbeit holding of the majority that Relator would retain immunity from the plaintiffs claims after buying Pobcy 954 without the Endorsement. By reading the plain language of § 537.610.1, RSMo 1994, I conclude that, but for the Endorsement, Relator’s purchase of insurance protection against claims of the type asserted by plaintiff was a waiver of Relator’s immunity from such claims. Any other interpretation renders the coverage ibusory under Section l.B.l.a. of Policy 954.

In so stating, I do not ignore the majority’s attempt to explain away the “ibusory coverage” argument. However, I find nothing in the record to support the notion that Relator bought Pobcy 954 merely to protect itself against potential legislative or common law changes in Relator’s sovereign immunity status. To the contrary, Relator’s presiding commissioner testified as follows:

“Q. Is there any reason to believe that in purchasing this pobcy which included [the] part we just read together, that those three claims [of] mabcious prosecution, false imprisonment, and slander weren’t covered?
“A. As it reads, no.”

Further, Mark Simpson, who testified on behalf of the agency that sold Pobcy 954, testified as follows:

“Q. Is false imprisonment one of the risks covered by Coverage B of this insurance policy?
“A. [By Simpson] I believe the false imprisonment is within the coverage of Coverage B....
“Q. And is malicious prosecution also within that coverage?
“A. Yes.
“Q. And is slander also within that coverage?
“A. Yes.”

I cannot conclude from this nor from anything else in the record, as the majority apparently does, that Relator bought Policy 954 only to protect itself from claims of this type that are asserted after Relator loses its immunity due to legislative enactments or changes in the common law. The record suggests otherwise. I would issue the peremptory writ in prohibition based on “the Endorsement” analysis and nothing more.

      . Rule 97.06, Missouri Rules of Civil Procedure (2000), which pertains to prohibition, reads, inter alia: "Any of the parties below may, within the time fixed for the respondent to answer, file an answer to the petition....” Rule 94.06, which pertains to mandamus, contains a similar provision.

      . Another statute, § 537.600, RSMo 1994, waives sovereign immunity as to certain types of claims. However, Plaintiff concedes Relator’s sovereign immunity against Plaintiff's claims in the underlying suit was not waived by § 537.600. If Relator's sovereign immunity against Plaintiff’s claims has been waived, it is because of § 537.610, RSMo 1994, which reads, in pertinent part:
      "1 .... the governing body of each political subdivision of this state ... may purchase liability insurance for tort claims, made against the ... political subdivision, but the maximum amount of such coverage shall not exceed one million dollars for all claims arising out of a single occurrence • and shall not exceed one hundred thousand dollars for any one person in a single ... occurrence ... and no amount in excess of the above limits shall be awarded or settled upon. Sovereign immunity for ... political subdivisions is waived only to the maximum amount of and only for the purposes covered by such policy of insurance purchased pursuant to the provisions of this section

      2.
      3.No award for damages on any claim against a public entity within the scope of sections 537.600 to 537.650, shall include punitive or exemplary damages.

      Section 537.610, RSMo 1994, was amended in 1999 — four years after Plaintiff's alleged arrest. The amendments raised the amounts in subsection 1 and added some other provisions elsewhere in the statute. Except for the change in amounts, the subsections of § 537.610, RSMo 1994, quoted in this footnote were unchanged by the 1999 amendments.

      . Footnote 2, supra.

      . The crucial statutory language applicable in the instant case was carried forward unchanged from § 537.610.1, RSMo 1986.


author: PAUL M. SPINDEN, Judge.

text:
    Brian BROWDER, Appellant, v. STATE of Missouri, Respondent.
    No. WD 57774.
    Missouri Court of Appeals, Western District.
    May 16, 2000.
    Emmett D. Queener, Asst. Public Defender, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Gregory L. Barnes, Asst. Atty. Gen., Jefferson City, for respondent.
   PAUL M. SPINDEN, Judge.

Brian Browder appeals the circuit court’s judgment to dismiss his motion for postconviction relief because it did not satisfy the filing deadline of Rule 24.035. He challenges the deadline as unconstitutional because the rule makes no provision for late filing of a postconviction motion for good cause shown. We affirm the circuit court’s judgment. Day v. State, 770 S.W.2d 692, 695 (Mo. banc), cert. denied sub nom., Walker v. State, 493 U.S. 866, 110 S.Ct. 186, 107 L.Ed.2d 141 (1989) (holding time limits of Rule 24.035 to be valid and mandatory).

In response to Browder’s appeal, the state asks for sanctions against Brow-der for the filing of a frivolous appeal. This court’s recent decision in Martin v. State, WD 54915, slip op., 2000 WL 342133 (Mo.App. April 4, 2000) dealt with the issue of when sanctions will be ordered in postconviction appeals. In that case, we held that a frivolous argument is one that is “so clearly and facially without a rational argument based in law, or is otherwise so clearly and facially untenable that it has no prospect of success.” Id. slip op at 28. We also set forth the procedure that counsel should follow if he or she, after reviewing the legal file and transcripts, finds no arguable claims in the case but the client wishes to proceed with the appeal. Id. slip op at 25-26.

Browder’s appeal in this case had absolutely no prospect of success and was frivolous. Missouri courts have repeatedly, and without exception, made abundantly clear that the time limits set forth in the postconviction rules are valid and mandatory. State v. Roll, 942 S.W.2d 370, 374 (Mo. banc), cert. denied, 522 U.S. 954, 118 S.Ct. 378, 139 L.Ed.2d 295 (1997); State v. Parker, 886 S.W.2d 908, 929 (Mo. banc 1994), cert. denied, 514 U.S. 1098, 115 S.Ct. 1827, 131 L.Ed.2d 748 (1995); State v. Blankenship, 830 S.W.2d 1, 16 (Mo. banc 1992); State v. Twenter, 818 S.W.2d 628, 644 (Mo. banc 1991); State v. Six, 805 S.W.2d 159, 169-70 (Mo. banc), cert, denied, 502 U.S. 871, 112 S.Ct. 206, 116 L.Ed.2d 165 (1991); Day v. State, 770 S.W.2d at 695. The time limitations expressed in Rules 24.035 and 29.15 have withstood constitutional challenge, Curl v. State, 873 S.W.2d 655, 656 (Mo.App.1994), even though the rules make no provision for late filing if good cause is shown, Marschke v. State, 946 S.W.2d 10, 12 (Mo.App.1997), or for excusable neglect. Cowans v. State, 778 S.W.2d 758, 762 (Mo.App.1989). See also Nimrod v. State, 14 S.W.3d 103 (Mo.App.2000).

Because, however, counsel in this case did not have the benefit of this court’s instructions in Martin before filing the appeal and the briefs in this case, we will not sanction Browder or his attorney for filing a frivolous appeal. We will assume, however, that, in subsequent appeals of rulings on postconviction motions, both the client and his or her attorney will be fully aware of our holding in Martin and the implications of that decision and will proceed accordingly.

We affirm the circuit court’s judgment.

JOSEPH M. ELLIS, Presiding Judge, and THOMAS H. NEWTON, Judge, concur.