author: PHILLIP R. GARRISON, Presiding Judge.

text:
    Don Paul RHODES, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 26166.
    Missouri Court of Appeals, Southern District, Division One.
    Feb. 3, 2005.
    Motion for Rehearing or Transfer Denied Feb. 25, 2005.
    Application for Transfer Denied April 5, 2005.

      Elizabeth Unger Carlyle, Lee’s Summit, for Appellant.
    Jeremiah W. (Jay) Nixon, Attorney General, Lacey R. Searfoss, Assistant Attorney General, Jefferson City, for respondent.
   PHILLIP R. GARRISON, Presiding Judge.

Don Paul Rhodes (“Movant”) appeals from the Circuit Court of Lawrence County’s denial of his Rule 24.035 motion for post-conviction relief. We affirm.

Movant pled guilty to second degree murder, pursuant to Section 565.021, in accordance with a plea agreement for the Mlling of Judith A. Stanley (“Victim”). Second degree murder carried a maximum sentence of twenty-five years, but pursuant to the plea agreement Movant was entitled to attempt to reduce the sentence by argument to the plea court. He was sentenced to twenty-two years.

I. FACTS

Movant lived in Miller, Missouri with his wife, Wanda Rhodes (‘Wanda”), Victim’s mother. On April 3, 2001, Victim came to Movant’s home to obtain money Wanda had agreed to lend her for the purpose of paying closing costs on a house she was purchasing. Victim and Wanda were sitting in the kitchen, drinking coffee and eating donuts, when an argument erupted between Victim and Movant. Movant accused Victim of taking her mother’s money and refusing to work. Movant left the kitchen after threatening to kill Victim, went into a bathroom in his house, and retrieved a .38 caliber pistol. Victim went out onto the back porch after Wanda, fearing for her daughter, asked her to leave. Movant, now armed with the pistol, came out of another door to the house and blocked Victim’s only exit from the porch. The State claimed, in its statement of what it believed the evidence would show, that Movant killed Victim by shooting her twice. The State also would have presented evidence that Movant told Victim, “I’m going to kill you.” Movant claimed, at the evidentiary hearing on his Rule 24.035 motion, that he had no intention of shooting Victim and only wanted to scare her. He claimed that Victim pushed and shoved against him when he appeared with the gun and it discharged, hitting Victim. Movant then claimed that he lost his balance and fell down, hitting his hand on a railing and discharging the gun a second time.

The officer who arrived after Wanda’s 911 call found Movant standing by the roadway. Victim was pronounced dead at the scene after being found on the porch, with no pulse. The officers arrested Mov-ant after finding a .38 caliber pistol in the house, with two spent rounds in the cylinder. After being read his Miranda warnings, Movant made a statement to the officers that he shot Victim on the back porch but gave no other explanation of what happened, nor did he make any claims of self-defense. Movant, at the hearing on his Rule 24.035 motion, claimed to have told the officers that he fell down at the time of the second shot and never intended to shoot Victim.

A pathologist conducted an autopsy on Victim’s body and determined that she had been shot twice, once near the collar bone on her right side and once above her left breast, with the bullet traveling through her heart and lungs before lodging in her liver. The pathologist could not determine which shot was fired first. From the angle of the shots, it appeared that Victim was bending over when she was hit with one of the bullets.

At the plea hearing, Movant filed a petition to enter a plea of guilty where he stated that he had no complaints about his attorney, he had received no promises about what the plea court would do if he pled guilty, and that he was pleading guilty, of his own free will, because he was in fact guilty. Movant affirmed these statements at the plea hearing as well as stating that he understood he was entitled to a trial by jury and that by pleading guilty he was waiving this right and the rights that accompany a trial. In the plea court’s Rule 29.07(b)(4) examination of Movant, he once again verified that he had no complaints with his attorney and affirmed many of the same statements he made above.

Movant filed a motion for post-conviction relief pursuant to Rule 24.035 which was later amended. After an evidentiary hearing, the motion court issued its findings of fact and conclusions of law denying Mov-ant’s motion. This appeal followed.

II. STANDARD OF REVIEW AND STANDARD FOR FINDING INEFFECTIVE ASSISTANCE OF COUNSEL

We review the denial of a motion for post-conviction relief only to determine whether the findings of fact and conclusions of law of the motion court were clearly erroneous. Schuerenberg v. State, 98 S.W.3d 922, 923 (Mo.App. S.D.2003); Rule 24.035(k). “Findings and conclusions are clearly erroneous if, after a review of the entire record, the court is left with the definite and firm impression that a mistake has been made.” Schuerenberg, 98 S.W.3d at 923.

Movant presents two points on appeal, both of which claim ineffective assistance of his plea counsel. “A criminal defendant seeking post-conviction relief based on ineffective assistance of counsel must demonstrate that his counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise under substantially similar circumstances and that he was thereby prejudiced.” Graham v. State, 11 S.W.3d 807, 810 (Mo.App. S.D.1999) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)). When the movant’s conviction was the result of a guilty plea, “a claim of ineffective assistance of counsel is immaterial except to the extent that it infringes upon the voluntariness and knowledge with which the guilty plea was made.” Id. (citing Wilkins v. State, 802 S.W.2d 491, 497 (Mo. banc 1991), cert. denied, 502 U.S. 841, 112 S.Ct. 131, 116 L.Ed.2d 98 (1991)). Movant must show that the guilty plea “was not the product of an intelligent or knowing act.” Cole v. State, 2 S.W.3d 833, 835 (Mo.App. S.D.1999). “Prejudice is proven by evidence showing a reasonable probability that, but for counsel’s errors, the claimant would not have [pled] guilty.” Rollins v. State, 974 S.W.2d 593, 595 (Mo.App. W.D.1998). “If the [movant] fails to satisfy one of the two prongs of the Strickland, test, we are not compelled to address the other prong and the claim of ineffective assistance of counsel must fail.” Dorsey v. State, 113 S.W.3d 311, 314 (Mo.App. S.D.2003).

III. MOVANT’S FIRST POINT ON APPEAL

Movant claims that the motion court erred in finding that he received effective assistance of counsel because his plea counsel failed to inform him that he could submit a proposed jury instruction on the lesser included offense of involuntary manslaughter. He contends that because of such failure, his plea was not knowingly and voluntarily made.

A person commits involuntary manslaughter when he or she recklessly causes the death of another person. Section 565.024. A person acts recklessly when “he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” Section 562.016.4. Involuntary manslaughter is a lesser included offense of murder in the first degree. Section 565.025.2(c). Before the court may instruct on a lesser included offense, there must be “a basis ... for acquitting the defendant of the offense charged and convicting him of the included offense.” Section 556.046.2.

John Woodard (“Woodard”), Movant’s plea counsel, testified at the evidentiary hearing that he discussed with Movant the possibility of an instruction on involuntary manslaughter. Woodard’s opinion was that it was unlikely that Movant would have been entitled to such an instruction based on the probable evidence in the case, which included the fact that two shots were fired, that Movant said, “I’m going to kill you,” and that the medical examiner’s testimony as to the angle of the bullets, along with the height of the porch railing, would contradict and be totally inconsistent with Movant’s explanation for how the shooting occurred. He believed it was in Movant’s best interest to accept the plea bargain because the State would have proceeded to trial on first degree murder and armed criminal action, carrying the risk of a life sentence without parole.

Movant testified at the evidentiary hearing that he had not been informed about the possibility of a jury instruction on involuntary manslaughter, and that had he known of it, he would not have pled guilty. His only basis for an instruction on involuntary manslaughter at trial would have been his testimony that he did not intend to kill Victim and his explanation of how both shots were the result of an accident. However, testimony by the defendant that he or she did not intend to kill the victim does not automatically require an instruction for involuntary manslaughter. State v. Arbuckle, 816 S.W.2d 932, 936-37 (Mo.App. S.D.1991). “The defendant’s testimonial denial of intent must be measured against the facts.” Id. at 937.

The motion court, in its findings, noted Movant’s testimony that the evidence would have shown that two shots were fired at Victim; that in order to obtain the weapon, he had to go from the living room through a bedroom and into a bathroom; that he had to get the pistol from a cabinet drawer, walk back through the bedroom into the living room, through the kitchen, through the utility room and then to the back porch where Victim was shot twice; that the evidence would have shown that Movant said to Victim, “I’m going to kill you;” and that the time lapse between the threat and the shooting would have established a period of deliberation. The motion court also noted the lengthy experience of plea counsel in defending criminal cases and his testimony that, based on the anticipated testimony of the pathologist and the other evidence referred to above, while he could have asked for a lesser included offense instruction of manslaughter or involuntary manslaughter, he did not believe that the court would have been required to give it.

It was the conclusion of the motion court that Movant’s testimony that he would not have pled guilty if he had known of the possibility of such an instruction was not credible. In this regard, “[t]he motion court is free to believe or disbelieve the evidence, whether contradicted or undisputed, and including the movant’s testimony.” State v. Landers 969 S.W.2d 808, 812 (Mo.App. W.D.1998). We defer to the motion court’s determination of witness credibility. Waters v. State, 128 S.W.3d 648, 652 (Mo.App. S.D.2004).

The motion court also found that Mov-ant failed to establish that he would have been entitled to an instruction on involuntary manslaughter if he had gone to trial, and that there was nothing in the record to support his contention that his plea was not voluntarily and intelligently entered. Accordingly, the motion court found that Movant had failed to establish that an involuntary manslaughter instruction would have been available in this case, and that he had failed to demonstrate prejudice based on his allegation that he had not been informed of the possibility of such instruction. We are unable to conclude that the motion court’s findings were clearly erroneous.

Movant also argues in his brief that if Woodard talked to him about the possibility of an instruction on lesser included offenses, he did not understand the concept and was not informed of the consequences of his plea. In response, the State contends that we do not have jurisdiction to review this part of his claim as it was raised for the first time on appeal. In his amended motion for post-conviction relief, Movant did not claim that he lacked understanding of his counsel’s advice on the possibility of an instruction for involuntary manslaughter. Movant alleged only that his counsel did not inform him of the possibility of an instruction at all. When the movant fails to raise an argument in his Rule 24.035 motion or amended motion, that argument is waived. Dean v. State, 950 S.W.2d 873, 877 (Mo.App. W.D.1997). “Claims that have not been presented to the motion court cannot be raised for the first time on appeal.” Id.

Based on the applicable standard of review, Movant is entitled to no relief under this point. Movant’s first point is denied.

IV. MOVANT’S SECOND POINT ON APPEAL

Movant also claims that he was denied effective assistance of counsel because Woodard erroneously informed him that he would be eligible for parole at seventy years of age. Movant testified at the hearing that Woodard told him that he would be paroled when he reached seventy years of age. He has since learned that the earliest he will be eligible for parole is age seventy-three. Movant stated that had he known this at the time, he would not have pled guilty.

Earl Rhodes, Movant’s cousin, testified at the hearing, stating that Woodard told Movant that he would be paroled at age seventy. The evidence also included a letter, however, sent to Movant by Woodard telling him that he should not accept the plea bargain on the basis of Woodard’s belief as to parole because that was a matter strictly up to the Missouri Board of Probation and Parole, and that according to statute, Movant would be eligible for parole after serving forty percent of his sentence and obtaining the age of seventy. It also stated that a representative of the parole board believed Movant would serve ten to twelve years in prison. Movant admitted that he had seen the letter and that it contained his signature on the second page acknowledging that he received it.

The motion court found that Woodard did not promise Movant that he would receive parole at age seventy. Furthermore, it did not find Movant’s testimony credible that he would not have pled guilty if he had known that he would not be paroled at age seventy in light of the fact that he was facing a possibility of life without parole.

Movant argues that the letter written by Woodard does not make it clear that he would not be paroled at age seventy. He also claims that he was incapable of performing the calculation necessary to determine from the letter that he would not be eligible until age seventy-three. In a similar vein, Movant claims that due to his limited education and experience with the legal system, he was forced to rely heavily on Woodard’s advice, and since this advice was incorrect, his plea was involuntary.

The State contends that Movant’s allegations regarding his lack of education and experience with the criminal justice system were raised for the first time on appeal, and, therefore, should not be considered. It also argues that Woodard’s letter to Movant is clear and does not promise that Movant would receive parole by a certain age. Finally, the State claims that Movant was not prejudiced because of the motion court’s credibility determination as to his testimony that he would not have pled guilty had he known that he would not be paroled at age seventy.

It is true that when counsel actively misinforms the movant of the amount of a sentence that the movant will likely serve, the voluntariness of the plea could be affected. Beal v. State, 51 S.W.3d 109, 112-113 (Mo.App. W.D.2001). However, incorrect advice does not automatically undermine the voluntariness of a plea. Jones v. State, 966 S.W.2d 340, 343 (Mo.App. S.D.1998). Here, there was not incorrect advice. Woodard’s letter to Movant accurately described Section 558.019.3, stating that he would not be eligible for parole until he completed forty percent of his sentence and reached the age of seventy. The letter also clearly stated that Woodard had no control over the Missouri Board of Probation and Parole and that Movant should not accept the plea agreement based on Woodard’s belief as to parole. Finally, by the letter’s own estimate, Movant would serve ten to twelve years, which considering that he was sixty-five at the time of the plea, would have meant his incarceration until age seventy-five at a minimum. Movant also admitted that he had seen and signed his name to the letter. The motion court did not clearly err in finding that Woodard did not promise Movant he would receive parole at age seventy.

The motion court also did not find Mov-ant’s testimony regarding his willingness to go to trial, even if he had not been assured of parole by age seventy, to be credible. As noted above, we defer to the motion court’s determination of witness credibility. Waters, 128 S.W.3d at 652.

We cannot review Movant’s claim that he did not understand Woodard’s letter and that his lack of education and experience with the criminal justice system caused his plea to be involuntary because this argument was not presented to the motion court in Movant’s Rule 24.035 motion or amended motion. See Dean, 950 S.W.2d at 877. Movant’s amended motion only makes the claim that Woodard promised him that he would receive parole at age seventy, not that he did not understand the information Woodard gave him. Furthermore, there was no testimony at the evidentiary hearing supporting Mov-ant’s present claim that he did not understand the letter.

Movant’s second point on appeal is denied. The motion court did not clearly err in denying Movant’s motion for post-conviction relief. Its judgment is affirmed.

PREWITT, J., and RAHMEYER, J., concur.

      . All rule references are to Missouri Rules of Criminal Procedure (2003) unless otherwise noted.

      . All statutory references are to RSMo (2000) unless otherwise noted.

      . At the time of the plea, Movant was sixty-five years old.


source: Caselaw Access Project

author: RONALD R. HOLLIGER, Judge.

license: Public Domain

text:
    Julie MEHRER, Appellant, v. DIAGNOSTIC IMAGING CENTER, P.C., Respondent.
    No. WD 63605.
    Missouri Court of Appeals, Western District.
    Feb. 22, 2005.

      Frank B. Williams McCollum, Stacy Murrow Bunck, Kansas City, for Appellant.
    Shirley Eileen Goza, Mark Christopher Tatum, Kansas City, for Respondent.
   RONALD R. HOLLIGER, Judge.

Julie Mehrer appeals after a judgment, following jury trial, in favor of her former employer, Diagnostic Imaging Center, P.C. (“Diagnostic”), upon her claim for wrongful discharge as a “whistleblower.” She contends that she was improperly barred from showing and making reference that Diagnostic’s corporate counsel and trial counsel were employed by the same law firm. She also claims that the trial court erred by quashing subpoenas transmitted by facsimile to Diagnostic’s corporate counsel and to its records custodian. Finally, she raises one point regarding the exclusion of an exhibit that quoted from a Supreme Court case and one point of instructional error. Finding no error, we affirm the judgment.

Factual and PRocedural Background

Julie Mehrer was formerly employed by Diagnostic Imaging Center as a practice development manager. Her duties were primarily to solicit business from referring physicians. Mehrer was terminated in May 2002. She was advised that her termination was due to a restructuring of Diagnostic’s marketing department, in which the two person/two-manager department was being reorganized into one with a single manager with two subordinates who would act as public relations representatives. In eliminating one of the two managerial positions, Diagnostic took the position that it elected to retain Mehrer’s co-manager Barb King, based upon King’s superior performance, tenure, and accountability, as compared to Mehrer. Diagnostic later added a third public relations representative position to the department.

Mehrer filed a claim alleging that her discharge was in retaliation for both reporting to her superiors a failure of the employer to report a suspected case of child abuse as required by Section 210.115, RSMo 2000, and her reporting of a breach of patient confidentiality by two other employees of Diagnostic. Both allegations arose out of a conversation involving Mehrer and two co-employees at a copy machine in January 2002.

Mehrer became involved in a conversation between Carol Winter, Diagnostic’s quality assurance safety manager, and Ka-thi Crouch, the director of clinical operations. For her part of the conversation, Mehrer was asked about child abuse reporting procedures at Children’s Mercy-Hospital (“CMH”), where she had previously worked as a pediatric nurse. She claimed she told Winter and Crouch that it was CMH policy that, when hospital staff suspected that a child patient had been abused, that the patient and the family members would be held at the hospital and the child’s primary care provider would be contacted. Mehrer testified that Winter then said to Crouch ‘We did the wrong thing.”

Mehrer testified that she reported the conversation to Diagnostic’s risk manager, Lisa Kjar, together with her belief that a suspected child abuse case had not been reported in accordance with state law. Kjar testified at trial, stating that she spoke with Dr. Jennifer Crawley, who stated that the x-rays of one of Crawley’s child patients had shown injuries indicative of child abuse and that the doctor had called the child’s primary care physician to discuss the x-ray and her suspicions. Kjar also testified that, following that conversation, she was instructed by Crouch to contact Diagnostic’s corporate counsel, an associate attorney with the firm of Shook, Hardy & Bacon.

Mehrer also testified that she reported to her direct supervisor, Michael Wright, Diagnostic’s chief financial officer, the conversation between her, Winters, and Crouch and discussed her concerns about whether confidential patient information had been improperly disclosed to Winter in the course of that conversation. She also discussed with Dr. Angela Noto, Diagnostic’s corporate compliance regulator, her suspicions regarding a possible breach of confidentiality and failure to report a child abuse incident. Mehrer believed that confidential patient information had been improperly shared with Winter. Dr. Noto directed her back to Dr. Crawley, the organization’s vice-president.

Diagnostic presented testimony that no incident of suspected child abuse happened in January 2002. Instead, Diagnostic contends that the conversation Mehrer became involved in merely concerned the review and revision of Diagnostic’s child abuse reporting policies. Both Kathi Crouch and Carol Winter were on the policy revision committee, and Crouch had been directed to focus on the child abuse policies. As there was no actual child abuse incident, it contended that there was no wrongdoing for Mehrer to report, whether in terms of a failure to report suspected child abuse or through a breach of client confidentiality.

The day following her termination, Mehrer’s counsel sent a letter to Diagnostic alleging defamation by Barb King and threatening legal action. No allegations of wrongful discharge were raised in that letter. Mehrer ultimately filed suit for wrongful discharge, however, claiming that her discharge from Diagnostic was not due to restructuring, but was instead in retaliation for her reporting of a breach of patient confidentiality and the failure to follow required protocols for reporting suspected child abuse to the proper authorities. The matter proceeded to jury trial, but the only theory presented to the jury was Mehrer’s claim that she was wrongfully discharged for reporting the failure of Diagnostic employees to advise proper authorities regarding the suspected child abuse incident. The jury returned a unanimous verdict in favor of Diagnostic.

Mehrer appeals.

Discussion

As a general proposition, Missouri is an “employment at-will” state, in which an employer could discharge an employee at any time, with or without cause, unless the employee was protected by some statutory provision. See Porter v. Reardon Mach. Co., 962 S.W.2d 932, 936 (Mo.App.1998). For example, Section 287.780, RSMo, prohibits the termination of an employee for exercising any of the employee’s rights under the workers’ compensation law.

While certain exceptions to the employment at-will doctrine have been created by statute, other exceptions have arisen through case law. Specifically, Missouri courts have recognized a limited, narrow public policy exception to the employment at-will doctrine. That exception permits an employee to seek recovery for wrongful termination in one of three circumstances where the termination was in retaliation for: (1) the employee’s refusal to violate a statute; (2) the employee’s reporting violations of law by fellow employees or supervisors; or (3) employee’s assertion of some other legal right. See Luethans v. Washington Univ., 894 S.W.2d 169, 171 n. 2 (Mo. banc 1995). To trigger the policy exception, the Missouri Supreme Court has stated that the reasons for the employee’s discharge must implicate “a constitutional provision, a statute, or a regulation based upon statute.” Id.

Mehrer’s suit is founded upon the second category under the public policy exception, as she claimed that she was wrongfully discharged as a result of reporting wrongdoing, namely alerting Diagnostic management regarding the failure to report to the proper authorities a suspected child abuse incident or the improper disclosure of confidential patient information. This second category is often termed the “whistleblower exception.”

I. In-Court References to the Relationship Between Diagnostic’s Corporate and Trial Counsel

Mehrer raises five points on appeal, some raising multiple grounds of alleged error. In her first point on appeal, Mehrer argues that the trial court erred in prohibiting her from making reference that Diagnostic’s risk manager communicated to their corporate counsel, an attorney belonging to the same firm as Diagnostic’s trial counsel, that a suspected child abuse incident had been reported to her by Mehrer in January 2002. As a preliminary matter, we note that Mehi’er was not prohibited from eliciting testimony by Lisa Kjar that she consulted with Diagnostic’s corporate counsel concerning a policy question arising out of a suspected child abuse incident. Instead, she was merely prohibited from eliciting testimony or making reference to the fact that Diagnostic’s corporate and appellate counsel belonged to the same law firm. Mehrer, here, argues that she should have been allowed to disclose that relationship to the jury.

Mehrer takes the position that the connection between Diagnostic’s corporate and trial counsel was relevant because the issue of whether there was any communication between employees of Diagnostic and their corporate counsel was subject to dispute between the parties. Diagnostic claimed at trial and argued to the jury that there had been no mention of such an incident to their corporate counsel. Mehrer argued that such communications had taken place. Each side presented evidence at trial in support of its position.

Mehrer argues that testimony and reference to the fact that Diagnostic’s corporate counsel was employed by the same firm as the company’s trial counsel was probative on the issue of rebutting Diagnostic’s claims “that a suspect child abuse incident never occurred.” She asserts that, “If the jury had been informed that the corporate counsel to whom Risk Manager Lisa Kjar said made a report of suspect child abuse was in the same law firm now defending Diagnostic that this factual information would have influenced the jury’s decision whether it was reasonable for Mehrer to believe there was a suspected child abuse incident” (italics added).

However, Mehrer fails to show how that information would lend increased support to an inference that such an incident had occurred, or if not, that Mehrer would have had a reasonable basis for believing that an incident of that nature had taken place. She fails to explain how disclosing the connection between Diagnostic’s trial and corporate counsel would have had any practical relevance to the case. Moreover, she is not taking the position that such information was necessary to cast aspersions on the trustworthiness of Diagnostic or its trial counsel. She expressly denies on appeal that she was attempting to show that the law firm was engaged in a “cover up” regarding the incident.

The jury was allowed to hear testimony that a suspected child abuse incident was reported to and discussed with Diagnostic’s corporate counsel. Mehrer presents no convincing argument that allowing that testimony to reveal that the corporate counsel and trial counsel were employed by the same law firm would have had any bearing on the issues at trial or would have lent any additional weight to her theory of the case. “The test for relevancy is whether an offered fact tends to prove or disprove a fact in issue or corroborates other relevant evidence.” Oldaker v. Peters, 817 S.W.2d 245, 250 (Mo. banc 1991) (citing Carlyle v. Lai 783 S.W.2d 925, 928 (Mo.App.1989)). Here, Mehrer has failed to show how disclosing the connection between Diagnostic’s corporate counsel and its trial counsel would have tended to prove or disprove any fact in the case or corroborated any other relevant evidence in the case.

Simply put, the testimony was irrelevant. A trial court does not abuse its discretion when it excludes irrelevant evidence. See Liszewski v. Union Elec. Co., 941 S.W.2d 748, 756 (Mo.App.1997). The trial court, then, acted within its discretion in excluding testimony that Diagnostic’s corporate and trial counsel were employed by the same law firm. Mehrer also raises certain arguments in her point on appeal that allege the restrictions placed on her were improper because the information was not protected by the attorney-client privilege or work product doctrine. She fails to develop these arguments in her brief, however. We consider them to be abandoned. Faith Baptist Church of Berkeley, Inc. v. Heffner, 956 S.W.2d 425, 426 (Mo.App.1997).

Mehrer’s first point on appeal is denied.

II. Subpoena to Diagnostic’s Corporate Counsel

Mehrer’s second point contends that the trial court improperly quashed a subpoena issued to Diagnostic’s corporate counsel. Said counsel was a resident of Kansas and while her firm had offices in both Missouri and Kansas, her place of employment was in the Kansas office. Mehrer attempted to serve the subpoena to that attorney via facsimile. Diagnostic responds that the subpoena was properly quashed by the trial court because it was not served in accordance with Rule 57.09 and Section 491.110, RSMo. Further, Diagnostic points out that the corporate counsel’s attendance at trial could not be secured by a subpoena (unless found in Missouri), given that she was beyond the subpoena power of the Missouri courts because she was a Kansas resident and was not employed within Missouri.

Either the sheriff, a sheriffs deputy, or any person who is not a party and who is at least eighteen years of age may serve a subpoena. Rule 57.09(d). The subpoena is served by delivering it to that person and tendering the fees and mileage that they would be entitled to if attending court. Id. The parties refer us to no reported Missouri case interpreting the “delivery” requirement of Rule 57.09(d), nor have we found any cases through our own research. Looking to the Federal Rules of Civil Procedure, we note that Rule 45(b)(1) also states that service of a subpoena is accomplished “by delivering a copy thereof to such person.” Given this similarity of language, interpretations of that rule provide some guidance in determining what methods of “delivery” should be considered proper service. See Giddens v. Kansas City S. Ry. Co., 29 S.W.3d 813, 820 (Mo. banc 2000).

The Eighth Circuit addressed the “delivery” issue in Firefighters’ Institute for Racial Equality v. City of St. Louis, 220 F.3d 898 (8th Cir.2000). In Firefighters, a party attempted to serve subpoenas on a non-party witness by transmitting them via facsimile and by sending a copy of the subpoena to the witness via regular (as opposed to certified) mail. Id. at 903. While observing that “[w]hen a non-party is served, the method of service needs to be one that will ensure the subpoena is placed in the actual possession or control of the person to be served,” id. (citing Doe v. Hersemann, 155 F.R.D. 630, 630 (N.D.Ind.1994)), it found that neither facsimile transmission nor regular mail was sufficient to satisfy this principle, given that neither method provided a means by which delivery of the subpoena to the witness could be assured. Id.

We find Firefighters to be persuasive and conclude that transmitting a subpoena via facsimile to a nonparty is insufficient to constitute “delivery” under Missouri Rule 57.09(d), when there has been, as here, a challenge to the adequacy of service. Under Firefighters, the trial court did not err by quashing the subpoena. The subpoena was not served properly not only because it was transmitted via facsimile, but also because it was not directed to the witness but instead to Diagnostic’s trial counsel. Moreover, O’Brian could not be subpoenaed by a Missouri court, since she was neither a party to the action (which would have made her subject to personal jurisdiction by the court) nor did she reside or work within the borders of Missouri (and thus outside the geographical range of the trial court’s subpoena power).

Mehrer asks the court to overlook these “procedural deficiencies” and hold that the trial court erred in also concluding that the subpoenas violated attorney-client privilege and the work product doctrine. We need not reach those issues, however. The subpoena was not properly served and was, therefore, insufficient to compel the attorney’s appearance or testimony at trial. Point denied.

III. Subpoena Directed to the Records Custodian for Diagnostic’s Corporate Counsel

Mehrer’s third point on appeal concerns service of a subpoena duces tecum directed to the records custodian for Diagnostic’s corporate counsel that requested records regarding the alleged January 2002 suspected child abuse incident. Diagnostic’s trial counsel sought to quash that subpoena on the basis that it was improperly served and sought information that was protected by attorney-client privilege and the work product doctrine. The trial court quashed this subpoena without significant discussion or analysis.

As with the subpoena directed to Diagnostic’s corporate counsel, the subpoena at issue in this point on appeal was also transmitted via facsimile. Thus, the same infirmities of service with regard to the first subpoena are present with regard to this subpoena. Lacking any indication in the record of some agreement to accept service via facsimile, we cannot conclude that there has been any waiver. Further, sufficiency of service of the subpoena was challenged before the trial court. We conclude that the trial court did not err in quashing the subpoena, for the reasons outlined in our discussion of the previous point. Mehrer’s third point on appeal is denied.

IV. Exhibit Regarding Missouri Duty of Confidentiality of Patient Information

In her fourth point on appeal, Mehrer argues that the trial court erred in excluding her Exhibit 2, which was an excerpt from Brandt v. Medical Defense Associates, 856 S.W.2d 667 (Mo. banc 1993). That excerpt contained a discussion concerning a physician’s fiduciary duty to protect the confidentiality of patient information, and Mehrer sought to admit it with regard to her claim that she was wrongfully terminated because she reported a breach of patient confidentiality to her superiors.

We need not reach the merits of this issue, as the exhibit in question was relevant only with regard to a theory of the case that was not submitted to the jury and the failure to submit that theory is not challenged on appeal. Instead, the case was submitted solely upon the theory that she was wrongfully discharge for raising an alert regarding the failure to report a suspected child abuse incident to the proper authorities. While Mehrer, in her next point on appeal, challenges the verdict director that was submitted to the jury, her argument treats only the theory that was actually submitted and the form of the instruction submitted. She does not raise an argument in that point that the trial court erred by failing to submit the breach of confidentiality theory to the jury.

There is no contention that the exhibit in question was relevant to any other issues in the case other than the breach of confidentiality theory. Given that the case was not submitted upon that theory, the exclusion of that exhibit was not error. C.f. In re Estate of Carroll, 857 S.W.2d 848, 854-55 (Mo.App.1993) (as theory of the case certain evidence was solely related to was not submitted to jury, the relevance and prejudicial effect of that evidence was hypothetical). Point denied.

V. Verdict Director

In her final point on appeal, Mehrer contends that the trial court erred in failing to submit her proposed verdict director because it followed the language of the instruction quoted within Brenneke v. Department of Missouri, Veterans of Foreign Wars of U.S. of America, 984 S.W.2d 134 (Mo.App.1998). Within the same point she contends that Diagnostic’s verdict director was not supported by Missouri law; placed an impermissibly high burden upon her; misled, misdirected, or confused the jury because it was not simple, brief, impartial or free from argument; and improperly required a finding that she had a “reasonable belief’ that suspected child abuse had occurred.

Claims of instructional error present questions of law which we review de novo. Harvey v. Washington, 95 S.W.3d 93, 97 (Mo. banc 2003). However, we view the evidence and inferences that may be drawn therefrom in the light most favorable to the submission of the instruction. Wright v. Barr, 62 S.W.3d 509, 526 (Mo.App.2001). Here, there was no applicable MAI instruction. A non-MAI instruction must be “simple, brief, impartial, free from argument, and shall not submit to the jury or require findings of detailed evidentiary facts.” Rule 70.02(b). On appeal, we review a non-MAI instruction to determine “whether the jury [could] understand the instruction and whether the instruction follows applicable substantive law by submitting the ultimate facts required to sustain a verdict.” Seitz v. Lemay Bank & Trust Co., 959 S.W.2d 458, 462 (Mo. banc 1998) (quoting Brown v. Van Noy, 879 S.W.2d 667, 672 (Mo.App.1994)). What constitutes the ultimate facts will differ on a case-by-case basis, depending on the issues in dispute between the parties. See id.

Because the trial court can not be convicted of error in failing to give Mehrer’s verdict director if the verdict director that it gave was proper, we must first consider the arguments against that verdict director. We are constrained in that analysis, however, because Mehrer has failed to preserve any of the deficiencies she now points to with the verdict director.

While a number of verdict directors were proposed by the parties, the trial court accepted and submitted to the jury the verdict director proposed by Diagnostic:

Your verdict must be for plaintiff Julie Mehrer if you believe:
First, plaintiff had reasonable cause to suspect (1) that a child had been subjected to abuse and (2) that Diagnostic Imaging Centers failed to report or cause a report to be made to the Division of Family Services; and
Second, plaintiff reported to Diagnostic Imaging Centers that she had reasonable cause to suspect (1) that a child had been subjected to abuse and (2) that Diagnostic Imaging Centers failed to report or cause a report to be made; and
Third, plaintiff was discharged because she reported that she had reasonable cause to suspect (1) that a child had been subjected to abuse and (2) that Diagnostic Imaging Centers failed to report or cause a report to be made; and
Fourth, plaintiff was damaged as a result of her discharge.

Mehrer acknowledges the provisions of Rule 70.03: “No party may assign as error the giving or failure to give instructions unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of objection.” (italics added). The only verbalized objection to the verdict director during the instruction conference was to the phrase “made to the division of Family Services.” Nor did Mehrer expand upon her objections in her motion for new trial. In recognition of the sparseness of the instruction conference record, Mehrer says that she stated her objections to the given verdict director by offering her own, different, instruction.

Although it would seem likely that there must have been other discussions about instructions in this non-MAI case, we are provided no record of such discussions. And the most the trial court was provided (at least as far as the record would show) to support the three verdict directors that Mehrer offered is an argument that they are based on Brenneke v. Department of Missouri, Veterans of Foreign Wars of the United States of America, 984 S.W.2d 134 (Mo.App.1998). That case does not, however, approve the instruction given but only quotes it before declining to review a complaint about the causation language that was not made to the trial court and, therefore, not preserved.

The Brenneke instruction is similar, although not identical, to the three alternatives offered by Mehrer. But she provides us no significant articulation on the record below explaining why her non-MAI instruction is better than that given or what was wrong with the instruction given, other than it is different than her version. Although one of the more significant differences is the inclusion by defendant of the “reasonable cause to suspect” language, she did not state an objection to that language on the record or state in support of her verdict director why that language was not proper. Brenneke does not consider such language, one way or another.

Gratuitously, we note that there are various grounds upon which the trial court could have rejected Mehrer’s proposed instructions. For example, there was evidence and discussion about breach of confidentiality. Mehrer’s instruction submitted that she “reported to her superiors or other proper authorities a wrongdoing or a violation of law or public policy by a co-employee.” This proffer seems vague and misleading based on the multiple theories and evidence in the case. In any event, we do not believe that her proffered alternative verdict directors constituted on this record a specific objection to the instruction given by the trial court. Point denied.

Finding no reversible error in the proceedings below, the judgment of the trial court is hereby affirmed.

THOMAS H. NEWTON, Presiding Judge, and HAROLD L. LOWENSTEIN, Judge, concur.

      . This is not to say that transmitting a subpoena via facsimile is never adequate. The recipient of the subpoena can certainly agree to accept such alternate means of delivery and waive the formal requirements of Rule 57.09. Alternatively, if there was no formal acceptance of such alternate means of service, yet the recipient fails to raise any objections relating to service, those deficiencies in service would be waived.

      . It appears from the record that the primary grounds for the refusal to submit the case on that theory was a conclusion that the court could not look to published court decisions as a source of public policy under a wrongful discharge theory. This conclusion appears to have been drawn from language in Luethans v. Washington University, 894 S.W.2d 169, 171 n. 2 (Mo. banc 1995), that suggests that the sources of public policy for wrongful discharge claims are limited to constitutional provisions, statutes, and regulations. At least one commentator has suggested that the sources of public policy in Missouri wrongful discharge cases should include court decisions. See Brock Rowatt, Comment, The Public Policy Exception To Employment At Will: Can Judicial Decisions Be Used As A Source of Public Policy?, 62 U.M.K.C. L.Rev. 325, 345 (1993).

      . Nor do we suggest that the exhibit would be a proper way to inform the jury of the "law” in any event. The usual method of instructing the jury about the law applicable to the case is by jury instruction. Although, there may be some exceptions, as, for example, when the jury needs to be advised of some law or legal principle providing a factual element of a malpractice case, such as the applicable statute of limitations in the context of a legal malpractice claim alleging an attorney’s failure to file suit within the statutory deadline.


author: PER CURIAM.

text:
    David H. BEHNEN, Respondent/Cross-Appellant, v. Martha D. BEHNEN, Appellant/Cross-Respondent.
    No. ED 84526.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 22, 2005.

      Carmody MacDonald P.C., John E. Hilton, Joyce M. Capshaw, St. Louis, MO, for Appellant.
    Paule, Camazine & Bluxnenthal, P.C., Susan E. Block, Alan E. Freed, St. Louis, MO, for Respondent.
    Before LAWRENCE E. MOONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Martha D. Behnen appeals from the trial court’s judgment granting David H. Behnen’s (Husband) motion to modify the parties’ dissolution decree as to maintenance and reducing Husband’s maintenance obligation from $10,000 monthly to $5,000 monthly. Husband cross appeals, claiming the trial court erred in failing to terminate his maintenance obligation. We affirm.

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 would have no precedential value. Judgment affirmed in accordance with Rule 84.16(b).

The parties have been furnished with a memorandum for their information only, setting forth the reasons for the order affirming the judgment pursuant to Rule 84.16(b).


text:
    Dallas HILLIARD, Respondent, v. IMPORTS, LTD., Appellant.
    No. ED 84244.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 22, 2005.
    William A. Hellmich, Louis, MO, for appellant.
    Barry L. Haith, Clayton, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Imports, Ltd. (“Imports”) appeals from the judgment of the Circuit Court of the City of St. Louis after jury verdicts which awarded Dallas Hilliard (“Hilliard”) $10,000.00 in actual damages for his negligent misrepresentation claim and $10,000.00 in punitive damages.

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 84.16(b).


text:
    Patrick GRAY, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 84516.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 22, 2005.
    S. Kristina Starke, (Asst. Public Defender), St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Patrick Gray (“Movant”) appeals from motion court’s judgment denying his Rule 29.15 motion for post-conviction relief. A jury convicted Movant of statutory rape of his daughter, E.W., in the first degree, Section 566.032; and armed criminal action, Section 571.015. The trial court found Movant to be a prior and persistent offender and sentenced Movant to two concurrent life sentences. Movant appealed the judgment of his conviction and sentence and this Court affirmed. State v. Gray, 46 S.W.3d 583 (Mo.App. E.D.2001). Movant, on September 19, 2001 timely filed his pro se motion for post-conviction relief. On March 3, 2003, Movant filed an amended motion to vacate, set aside, or correct judgment and sentence. The motion court issued conclusions of law and denied Movant’s motion without an eviden-tiary hearing. We find no error and affirm.

No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

We affirm the judgment pursuant to Rule 29.15.

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

      . All references are to RSMo 2000 unless otherwise indicated.


text:
    STATE of Missouri, Respondent, v. Gary Michael SILINZY, Appellant.
    No. ED 84206.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 22, 2005.

      Amanda R. Schehr, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel N. McPherson, Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Gary Michael Silinzy (“defendant”) appeals the judgment on his conviction of one count of assault in the first degree, one count of armed criminal action, one count of first degree burglary, and one count of assault in the third degree. Defendant claims that the trial court erred in allowing the state to elicit evidence of the prior convictions of Cornelius Prince and Kiana Warren on direct examination.

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).


text:
    Elton JACKSON, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 83878.
    Missouri Court of Appeals, Eastern District, Division Two.
    Feb. 22, 2005.
    Scott Thompson, St. Louis, MO, for appellant.
    Lisa M. Kennedy, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J. and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Movant, Elton Jackson, appeals from a judgment denying on the merits, after an evidentiary hearing, his Rule 24.035 motion for post-conviction relief.

The findings and conclusions of the motion court are based on findings of fact that are not clearly erroneous. No error of law appears. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order.

We affirm the judgment pursuant to Rule 84.16(b).


author: GEORGE W. DRAPER III, Chief Judge.

text:
    Stuart GUY and Cynthia Guy, Plaintiff/Respondents, v. Jeffrey THOMAS, et al., Defendants, and Robin Thomas, Defendant/Appellant.
    No. ED 84816.
    Missouri Court of Appeals, Eastern District, Division Five.
    Feb. 22, 2005.
    Thomas G. Berndsen, St. Louis, MO, for Appellant.
    Jason M. Rugo, Roger W. Pecha, St. Louis, MO, for Respondent.
   GEORGE W. DRAPER III, Chief Judge.

Robin Thomas (Appellant) appeals from an order denying her motion to vacate judgment under Rule 74.06(e). We dismiss the appeal.

Stuart and Cynthia Guy (Respondents) filed a petition against multiple defendants, including Jeffrey Thomas and his wife Appellant. Jeffrey Thomas was involved in the home construction business. In their petition, Respondents alleged fraud, fraudulent concealment, breach of contract, recision of contract, conversion, and breach of fiduciary duty against Jeffrey Thomas. They further alleged a civil conspiracy against all defendants, including Appellant, and sought an accounting and creation of a constructive trust. On October 20, 2003, the trial court entered a judgment against the defendants, including Appellant, jointly and severally for approximately 1.9 million dollars. On May 17, 2004, Appellant filed a motion to vacate the October 2003 judgment, contending that she was not present at the trial nor was she represented by counsel. Appellant said she was not involved in the litigation, which alleged fraud by her husband in his construction business. She further alleged that she was separated from her husband in May of 2003 and she was unaware she was even a named defendant in the litigation. On June 23, 2004, the trial court entered an order denying her motion to vacate the judgment. Appellant appealed to this Court.

As an initial matter, this Court must determine whether it has jurisdiction to entertain this appeal. If we lack jurisdiction, we should dismiss the appeal. Bryant v. City of University City, 105 S.W.3d 855, 856 (Mo.App. E.D.2003). “To invoke this Court’s jurisdiction, parties must appeal a written decree or order which has been signed by the trial judge and denominated a ‘judgment.’ ” Jon E. Fuhrer Co. v. Gerhardt, 955 S.W.2d 212, 213 (Mo.App. E.D.1997); Rule 74.01(a). In designating the writing a “judgment,” it must be clear from the writing that the trial court is calling the document or docket sheet entry a judgment. City of St. Louis v. Hughes, 950 S.W.2d 850, 853 (Mo. banc 1997).

Here, the order denying Appellant’s motion to vacate is not denominated a “judgment.” We issued an order directing Appellant to show cause why her appeal should not be dismissed and providing Appellant an opportunity to ask the circuit court to enter a judgment that complied with Rule 74.01(a). Appellant has failed to respond to our order and has not filed a judgment complying with Rule 74.01(a). The order denying Appellant’s motion to vacate must be denominated a judgment or this Court lacks jurisdiction. Brooks v. Brooks, 98 S.W.3d 530, 532 (Mo. banc 2003); Popular Leasing USA, Inc. v. Universal Art Corp. of New York, 57 S.W.3d 875, 878 (Mo.App. E.D.2001); Daniele v. Collector of Revenue of City of St. Louis, 30 S.W.3d 247, 248 (Mo.App. E.D.2000).

We dismiss the appeal without prejudice for lack of a final, appealable judgment.

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


author: LAWRENCE E. MOONEY, Presiding Judge.

text:
    Vicki Caldwell GLOVER, Respondent, v. SAINT LOUIS COUNTY CIRCUIT COURT, Saint Louis County Police Department, Defendants, and Criminal Records Repository, Appellant.
    No. ED 85040.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 22, 2005.

      Jeremiah W. (Jay) Nixon, Atty. Gen., David F. Barrett, Asst. Atty Gen., Jefferson City, MO, for appellant.
    Herman L. Jimerson, Clayton, MO, for respondent.
   LAWRENCE E. MOONEY, Presiding Judge.

The petitioner, Vicki Caldwell Glover, filed a petition seeking expungement of her arrest records pursuant to Section 610.122 RSMo (2000). The Criminal Records Repository (State) filed an answer, objecting, arguing that the petitioner did not meet the statutory requirements for expungement because there was no reason to believe the arrest was based on false information, as petitioner had pleaded guilty to a related charge, and because the petitioner had received a suspended imposition of sentence. The circuit court entered judgment, ordering the expungement of the petitioner’s arrest records. The State now appeals.

The State alleges the circuit court erred in ordering the expungement of petitioner’s arrest records because the petitioner did not establish her right to expungement under the statute. We are unable to review the State’s claim, however, because there is no record of the proceedings in the circuit court. This case is unlike those cases where an appellant has failed to provide this Court with a record containing all the documents necessary for appellate review. In those cases where there is an incomplete record on appeal, we dismiss the appeal. See, e.g., Zlotopolski v. Director of Revenue, 62 S.W.3d 466, 469 (Mo.App. E.D.2001) citing Buford v. Mello, 40 S.W.3d 400, 402 (Mo.App. E.D.2001). Here, however, there was no record to file with this Court. The minute entries state that judgment was entered without trial. The minute entries do not reflect that a hearing took place or that evidence was received. The circuit court’s judgment makes no reference to the court having received evidence or that a hearing had taken place. The parties concede there is no transcript. The nature of the State’s claim challenges the sufficiency of the evidence to support the judgment. Without an evidentiary record, however, we are unable to determine what evidence was before the circuit court, or if that evidence was sufficient to satisfy the statutory requirements for expungement. Without a record, it is impossible for this Court to review the propriety of the circuit court’s decision. A judgment must be based on evidence and not speculation. Wesley v. Crestwood Police Department, 148 S.W.3d 838, 840 (Mo.App. E.D.2004). A judgment may not stand where there is no evidence to support it. Id. Accordingly, the judgment of the circuit court is reversed, and the cause is remanded for further proceedings.

LAWRENCE G. CRAHAN, J., and MARY K. HOFF, J., concur.

      . Section 610.122 provides that a record of arrest may be expunged if the court determines that the arrest was based on false information and the following conditions exist: (1) there is no probable cause, at the time of the action to expunge, to believe the individual committed the offense; (2) no charges will be pursued as a result of the arrest; (3) the subject of the arrest has no prior or subsequent misdemeanor or felony convictions; (4) the subject of the arrest did not receive a suspended imposition of sentence for the offense for which the arrest was made or for any offense related to the offense; and (5) no civil action is pending relating to the arrest or the records sought to be expunged. Wesley v. Crestwood Police Department, 148 S.W.3d 838, 840 (Mo.App. E.D.2004).


text:
    STATE of Missouri, Respondent, v. David P. LEONARD, Appellant.
    No. ED 83645.
    Missouri Court of Appeals, Eastern District, Division Two.
    Feb. 22, 2005.
    Michelle M. Rivera, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel Neal McPherson, Asst. Attorney General, Jefferson City, MO, for respondent.
    Before PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ.
   ORDER

PER CURIAM.

David P. Leonard (Defendant) appeals from the judgment upon his conviction by a jury of two counts of sale of a controlled substance, Section 195.211 RSMo 2000, for which he was sentenced, as a prior and persistent offender, to a term of fifteen years’ imprisonment. On appeal, Defendant argues the trial court erred in allowing an undercover police officer to testify about the smell of ether in Defendant’s residence over Defendant’s objection.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion reciting the detailed facts and restating principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 30.25(b).


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

text:
    Sandra C. SCOTT n/k/a Sandra C. Brooks, Respondent, v. Dennis M. SCOTT, Appellant.
    No. ED 83026.
    Missouri Court of Appeals, Eastern District, Division One.
    Feb. 22, 2005.

      Lynn Ricci, Garnholz & Ricci, L.C., St. Louis, MO, for appellant.
    Sandra C. Scott, St. Louis, MO, pro se.
   GARY M. GAERTNER, SR., Presiding Judge.

Appellant, Dennis M. Scott (“Father”), appeals from the judgment of the Circuit Court of St. Louis County in favor of respondent, Sandra C. Brooks (“Mother”). We affirm in part and reverse and remand in part.

Mother and Father were married September 10, 1994. The parties had a son (“Child”) on August 18, 1995. Child was born with spinal muscular atrophy and has extraordinary and special medical needs.

On October 20,1999, Mother and Father entered into a stipulation for a judgment pendente lite (“the PDL judgment”). The PDL judgment provided for Father to pay one-half of Child’s unreimbursed medical expenses, one-half the cost of health insurance for Child, and one-half the cost of daytime care for Child. The PDL judgment also divided physical custody between Mother and Father.

On January 31, 2001, the trial court entered its judgment of dissolution. This judgment awarded joint legal and physical custody to Mother and Father. Mother was ordered to provide and maintain medical and dental insurance for Child. Father was ordered to pay $445 per month in child support, plus one-half unreimbursed medical expenses and one-half of daycare costs. The trial court also specifically held that Father was to begin paying $700 per month for daycare costs, said figure being subject to adjustment, and was to pay $5,785 in retroactive child support. The trial court also provided a detailed account of its division of the marital and separate property. In particular, the trial court awarded Father stock holdings valued at $30,361.00.

On March 1, 2001, Mother filed a motion for orders nunc pro tunc and/or to amend. Mother sought to have the dissolution judgment amended to specifically provide for one-half unreimbursable medical expenses and daycare costs retroactive to May 30, 2000, the day the parenting plan was approved by Mother and Father. This motion was denied.

On April 24, 2001, Mother filed a motion for an order to show cause and to reduce sums to judgment and for contempt. In this motion, Mother asserted that she had demanded payment for medical bills and expenses incurred pursuant to the PDL judgment covering the time period from the entry of the PDL judgment to the dissolution judgment. Further, Mother sought payment of $3,201.64 for the support of Child as set forth in the PDL judgment. Mother also demanded payment for medical bills and expenses incurred from the date of the dissolution judgment up to the date of Mother’s motion to reduce sums to judgment. The trial court entered an order for Father to show cause for his failure to satisfy his obligations under the prior judgments. Mother asked that Father be held in contempt if he failed to show cause.

On May 3, 2001, Father filed a motion for contempt. Father asserted that he was awarded $35,283.85, plus certain stocks and securities, but Mother has failed or refused to pay the $35,283.85 and to transfer the stocks. The court issued an order for Mother to show cause for her failure to satisfy her obligations under the prior judgments.

On May 16, 2001, Father filed an amended motion to dismiss Mother’s motion for contempt because, he argued, Mother had unclean hands because she had failed to satisfy her obligations under the trial court’s judgment and, further, Mother was not entitled to payment for the allegations in her motion for contempt because they were precluded by res judi-cata.

On September 7, 2001, Bruce Hilton, the appointed arbitrator, entered an award, which found Father owed Mother $8,958.92 for unreimbursed expenses from January 31, 2001 to August 31, 2001 and $5,785.00 plus interest for retroactive child support. On October 5, 2001, Father filed a motion to strike or in the alternative clarify and amend the arbitrator’s award. Father alleged the award was vague and unenforceable.

On February 14, 2002, Father filed a cross-motion to modify the dissolution judgment. Father alleged that there were substantial continuing and changed circumstances including, but not limited to the parties’ inability to agree on medical care and treatment of Child and Child’s failure to receive schooling and therapy as needed. Father sought sole legal and primary physical custody of Child, the termination of his obligation to pay $445 per month and daycare costs, and an order of appropriate child support.

Mother filed an amended motion to modify on April 15, 2002. Mother alleged Father was preventing the Child from receiving proper medical treatment and Father was refusing to pay his share of medical expenses.

On October 2, 2002, Father filed a motion to enforce the dissolution judgment, to reduce to sum certain, and for sanctions. Father alleged Mother refused to transfer the stock awarded to him in the dissolution judgment. Father also argued Mother had failed to pay the money she owed him.

On February 11, 2003, the trial court entered its second amended modification judgment. The trial court awarded Mother sole legal custody. Father was ordered to pay $808.50 per month in child support, plus one-half of nanny, daycare, and uncovered medical expenses. Mother was ordered to pay for a health insurance plan for Child. On Mother’s motion to reduce sums to judgment, the trial court found Father owed Mother $26,704 for the period from October 27,1999 to January 31, 2001, $11,782.00 for the period from January 31, 2001 to December 20, 2002, and $2,398 in child support. The court overruled Mother’s motion for contempt, and found Mother owed Father $35,786.35 pursuant to the dissolution judgment. After offsetting the amounts Mother and Father owed to each other, the court found Father owed Mother $5,097.65, and the arbitrator’s award was struck. The court also overruled Father’s motion for contempt and found “that the stock awarded to [Father] pursuant to the Decree had a value of $30,361.00.” The court then ordered Mother to transfer this stock within fifteen days. Father’s motion to enforce the dissolution judgment and for sanctions was denied.

Father filed a motion to amend the judgment, for a new trial, or in the alternative to reopen for new evidence, which was denied. This appeal followed.

We affirm the decision of the trial court unless the decision 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). We will not substitute our judgment for that of the trial court on a motion to modify absent a manifest abuse of discretion. Carey v. Carey, 84 S.W.3d 469, 471 (Mo.App. E.D.2002). Further, on review of a motion to modify, we review the evidence and credibility of the witnesses in the light most favorable to the trial court’s decision. Id. at 471-72.

In his first point on appeal, Father argues the trial court erred in entering judgment against him for $26,704 in child expenses because the doctrine of res judi-cata bars a subsequent claim on matters previously decided in the trial court’s January 31, 2001 judgment, which Mother did not appeal.

“An award pendente lite is in the nature of an independent cause of action.” Tate v. Tate, 920 S.W.2d 98, 106 (Mo.App. E.D.1996). A pendente lite order is a final judgment on the merits of the motion from which an appeal may be taken. Id. If no appeal is taken, execution may issue on the pendente lite order. Id

Before the dissolution judgment, the parties entered into the PDL judgment. The PDL judgment provides for, among other things, Father’s payment of one-half of the unreimbursed medical expenses and daycare costs up to the date of the dissolution judgment. On January 31, 2001, the trial court entered its dissolution judgment ordering Father to continue to pay Mother one-half of unreimbursed medical and daycare expenses.

Mother filed a motion to reduce sums to judgment in an attempt to explicitly state the amount due from the PDL judgment up to the dissolution judgment and from the dissolution judgment to April 24, 2001, when the motion to reduce sums to judgment was filed.

In its February 11, 2003 judgment, the trial court granted Mother’s motion to reduce sums to judgment, ordering Father to pay Mother $26,704.00 for expenses incurred on behalf of the child from October 27, 1999 to January 31, 2001, the day the dissolution judgment was entered.

Mother’s motion to reduce sums to judgment was merely part of the process of executing on the PDL Judgment. Therefore, we find the trial court did not err in entering judgment against Father for $26,704 in expenses incurred on behalf of the minor child. Point denied.

In his second point on appeal, Father argues the trial court erred in awarding child support from January 31, 2001 to December 20, 2002 because there was no evidence at trial to • support Mother’s alleged expenses during this period.

It is within the sound discretion of the trial court whether to make an award of child support. Brown v. Shannahan, 141 S.W.3d 77, 81 (Mo.App. E.D.2004). We will not substitute our judgment for the trial court’s absent a manifest abuse of discretion, and we will not disturb the trial court’s award of child support unless the evidence is palpably insufficient to support it. Id. We view all evidence and any permissible inferences therefrom in the light most favorable to the trial court’s decision and defer to the trial court’s determinations of credibility. Brooks v. Brooks, 21 S.W.3d 834, 835 (Mo.App. E.D.1999).

At trial, Mother offered numerous exhibits, which included bills for medical expenses and pay stubs for various nannies, to show how much she spent on Child during this period. Mother also testified extensively regarding the expenses she incurred in caring for the minor child during this period.

Keeping in mind our standard of review, we find the trial court’s award was supported by substantial evidence. Therefore, we find that the trial court did not err or abuse its discretion in awarding child support from January 31, 2001 to December 20, 2002. Point denied.

In his third point on appeal, Father argues the trial court erred in ordering Mother to transfer $30,361 in stock to Father because Mother converted almost $16,000 of the stock to her sole use, making Father’s ability to receive the stock set out in the dissolution judgment impossible.

To prove conversion, one must show that he had the right to possession of the converted property at the time of the alleged conversion. Mertz v. Blockbuster, Inc., 32 S.W.3d 130, 132-33 (Mo.App. E.D.2000). Conversion is the unauthorized assumption of the right of ownership over another person’s personal property to the exclusion of the owner’s rights. Id., quoting CMLAV v. Mueller, 896 S.W.2d 741, 742 (Mo.App. E.D.1995). To establish a conversion claim, one must show: (1) a tortious taking; (2) any use or appropriation to the use of the person in possession, indicating a claim of right in opposition to the rights of the owner; or (3) a refusal to give up possession to the owner on demand. Mertz, 32 S.W.3d at 133.

In Father’s motion for contempt, he alleged Mother had failed to comply with the January 31, 2001 judgment in that she had failed to transfer certain stocks and securities to Father.

Mother testified that she sold stock that had been awarded to Father. The record indicates that Mother did liquidate certain stocks, including the Baron Asset Fund, the MMS, the Nicholas Fund, and the Vanguard. According to the figures in the record, this stock was worth approximately $16,000 at the time of the dissolution judgment. Mother testified at trial that Father was not current on several of his payments, and she “had to sell off [her] stocks to pay the medical expenses and continue to live.”

The trial court overruled Father’s motion for contempt, and held that the stock awarded to Father pursuant to the Decree had a value of $30,361.00. Then the trial court ordered Mother to execute any documents provided to her in order to transfer the stock within fifteen days of her receipt of those documents.

It is clear from the record that Mother refused to transfer the stock in compliance with the dissolution judgment and that she sold some of the stock. We find that Mother converted the stock. Therefore, the trial court erred in entering its second amended modification judgment ordering Mother to transfer the stock valued at $30,361.00 in the dissolution judgment because Mother no longer owned all of that stock. Point granted.

Therefore, we affirm the trial court’s judgment as to the first two points on appeal. However, as to the third point on appeal, we reverse and remand for the trial court to enter a new order distributing the remaining stock and properly balancing the equities in this case.

SHERRI B. SULLIVAN, J. and BOOKER T. SHAW, J., concur.

      . Mother did not file a respondent's brief.


text:
    Joseph P. MALONEY, John C. Wright, and Harry A. Robbins, d/b/a Maloney, Wright & Robbins, Plaintiffs/Appellants, v. Lee THURMAN, Jr., Defendant/Respondent.
    No. ED 85393.
    Missouri Court of Appeals, Eastern District, Division Five.
    Feb. 22, 2005.

      Robert S, Reid, Fredericktown, MO, for appellant.
    David L. Mayhugh, Park Hills, MO, for respondent.
   GEORGE W. DRAPER III, Chief Judge.

Joseph Maloney, John Wright, and Harry Robbins d/b/a Maloney, Wright & Robbins (MWR) appeal from the trial court’s judgment entered on September 21, 2004, and “Orders entered by the Court on January 17, 2003, and October 25, 2002.” Because there is no final, appealable judgment, we dismiss the appeal.

MWR is an accounting firm in Farming-ton, Missouri. MWR filed a petition for a temporary restraining order, permanent injunction, and damages against a former employee, Lee Thurman, Jr. (Thurman). Thurman left his employment with MWR on October 15, 1998 and set up his own accounting practice. While employed with MWR, Thurman had signed an employment contract that contained a two-year non-solicitation clause. If Thurman violated it, then he was required to pay a certain percentage of his billings for that client for five years.

MWR filed a suit to enforce the provisions of the employment contract. In the course of discovery, MWR served interrogatories and a request for production of documents to Thurman requesting billing information about former MWR clients. Thurman objected to the discovery and filed a motion for a protective order. On October 25, 2002, the trial court entered a protective order that required both MWR and Thurman to disclose a client list and billing information for certain clients. This information would be provided to the court only. On January 17, 2003, the trial court amended its prior protective order.

On November 3, 2003, Thurman filed another motion for a protective order to avoid providing any financial information about certain clients. Thurman contended his employment contract was unenforceable with respect to certain clients served by seven former MWR employees. Thurman maintained MWR had not enforced its employment contract with those employees. MWR filed a motion to compel. The trial court held a hearing to determine whether or not Thurman was required to produce the requested documents and billing information concerning clients that were served by the seven former employees.

On September 21, 2004, the trial court entered a judgment ruling on Thurman’s motion for a protective order and MWR’s motion to compel. In the judgment, the trial court concluded the employment contract in question was not an “arms-length transaction; was an involuntary agreement; is vague, overbroad, overreaching, lacks consideration, has not been uniformly applied, has not been uniformly required to be signed by employees for continued employment, and some of the provisions ... are unconscionable.” The court also concluded that some of the language in the contract amounted to an unreasonable restraint on trade. The court granted Thurman’s motion for a protective order and concluded Thurman did not have to disclose any further financial information requested by MWR. The court then concluded, “while the Court believes that procedurally [Thurman’s] oral Motion to Dismiss [MWR’s] case should be and, therefore is, overruled, the Court does not, by overruling [Thurman’s] oral motion to dismiss, indicate the Court’s position in the event [Thurman] files a Motion for Summary Judgment.” MWR appealed from the Court’s judgment.

Although neither party has questioned the jurisdiction of this Court, we must determine our jurisdiction sua sponte. Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997). An appellate court only has jurisdiction over final judgments that dispose of all parties and claims in the case and leave nothing for future determination. American Family Mut. Ins. Co. v. Lindley, 112 S.W.3d 449, 451 (Mo.App. E.D.2003). Any adjudication of fewer than all claims or all parties does not terminate the action, which makes it subject to revision by the trial court at any time until final judgment. Rule 74.01(b); Goodson v. National Sports and Recreation, Inc., 136 S.W.3d 98, 99 (Mo.App. E.D.2004). The trial court may certify for appeal a judgment as to fewer than all claims by expressly designating that “there is no just reason for delay.” Id. Here, the claims raised in MWR’s petition are still pending. In addition, the trial court did not certify its judgment for appeal under Rule 74.01(b).

However, even if certified under Rule 74.01(b), the case must still resolve a distinct judicial unit, that is at least one claim for relief. See, Committee for Educational Equality v. State, 878 S.W.2d 446, 450-51 (Mo. banc 1994). A claim for relief is the aggregate of operative facts giving rise to a right enforceable by a court. Blechle v. Goodyear Tire & Rubber Co., 28 S.W.3d 484, 487 (Mo.App. E.D.2000). A ruling on any issue that does not finally dispose of a claim is not a “judicial unit” for appeal and cannot serve as the foundation for a final judgment. Id. The required judicial unit for appeal is “ ‘the final judgment on a claim, and not a ruling on some of several issues arising out of the same transaction or occurrence which does not dispose of the claim.’ ” Gibson, 952 S.W.2d at 244, quoting State ex rel. State Hwy. Comm’n v. Smith, 303 S.W.2d 120, 123 (Mo.1957).

In the present case, a ruling on a protective order is not a final judgment because it fails to dispose of a separate or distinct claim. Only the issue of what financial information Thurman should be required to reveal has been decided. The claims that are based on the aggregate of operative facts raised by MWR in their petition remain to be resolved. Accordingly, the trial court did not resolve a distinct judicial unit or claim for relief.

We issued an order directing MWR to show cause why this appeal should not be dismissed. MWR has filed a response to our order. MWR argues that the judgment in question “implicitly disposes of all claims pending before the court.” They cite to the rule that “a corollary to the general rule of finality allows characterization of a judgment as final where the decision on one claim implicitly disposes of the other claims.” Baumstark v. Jordan, 540 S.W.2d 611, 612 (Mo.App.E.D.1976).

MWR ignores the requirement that there must be a decision on at least one claim. Here, the trial court made no ruling on any of the pending claims. Rather, the court was ruling on a motion for protective order and motion to compel. This issue was the only one determined and the judgment in question did not resolve a single claim, but rather only resolved an ancillary issue in the case. While the trial court might have hinted at its ruling if a motion for summary judgment was presented, the judgment in question failed to resolve a separate claim for relief.

Without a final judgment, this Court is without jurisdiction to consider this appeal. Accordingly, the appeal is dismissed.

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


text:
    STATE of Missouri, Respondent, v. Jason D. McENTIRE, Appellant.
    No. ED 84408.
    Missouri Court of Appeals, Eastern District, Division Two.
    Feb. 22, 2005.
    Kent Denzel, Assistant Public Defender, Columbia, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.

      Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Jason McEntire (“Defendant”) appeals from the trial court’s judgment entered in the Circuit Court of Madison County upon his conviction by a jury of first degree assault. In his appeal, Defendant alleges that the trial court erred in: (1) overruling his Motion for Judgment of Acquittal because the evidence was insufficient to prove beyond a reasonable doubt that “the injury to the victim created a substantial risk of death, serious disfigurement, or protracted loss or impairment of any part of the body;” and (2) permitting a doctor to testify that the victim’s injury was “serious” because the doctor’s testimony invaded the province of the jury.

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

We affirm pursuant to Rule 30.25(b).


text:
    Maria M. ROSSI, Claimant/Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondent.
    No. ED 85435.
    Missouri Court of Appeals, Eastern District, Division Five.
    Feb. 22, 2005.
    Maria M. Rossi, Catawissa, MO, for Appellant.
    James P. Stephens, Stover, MO, Cynthia A. Quetsch, Jefferson City, MO, for Respondent.
   GEORGE W. DRAPER III, Chief Judge.

Maria Rossi (Claimant) appeals the decision of the Labor and Industrial Relations Commission (Commission) regarding her unemployment benefits. The appeal is dismissed.

A deputy with the Division of Employment Security concluded that Claimant had been overpaid $2,155 in unemployment benefits, because she had received benefits during a period she earned wages. The deputy also concluded that Claimant’s failure to report her earnings was willful and canceled her wage credits prior to January 6, 2004. Claimant filed an appeal to the Appeals Tribunal, which dismissed her appeal after she failed to participate in a telephone conference hearing. She then filed an application for review with the Commission, which affirmed the Tribunal’s dismissal. The Commission mailed its decision to Claimant on August 13, 2004. Claimant filed a notice of appeal to this Court on November 9, 2004.

A claimant has twenty days to file an appeal from a final decision of the Commission. Section 288.210, RSMo 2000. The Commission’s decision becomes final ten days after the date it is mailed to the parties. Section 288.200.2, RSMo 2000. Here, the Secretary for the Commission mailed its decision to Claimant on August 13, 2004. The decision became final ten days later and the notice of appeal was due twenty days thereafter on Monday, September 13, 2004. Sections 288.200, 288.210, 288.240, RSMo 2000. The Secretary to the Commission has certified that Claimant filed her notice of appeal on November 9, 2004, well after the notice of appeal was due.

This Court has a duty to determine sua sponte whether it has jurisdiction. Rissman v.V S M Abrasives Corp., 136 S.W.3d 851 (Mo.App. E.D.2004). We issued an order directing Claimant to show cause why this appeal should not be dismissed as untimely. Claimant has failed to file a response.

Section 288.210 sets forth stringent guidelines for the filing of the notice of appeal and fails to make any provision for late filing. Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App. E.D.2000). An untimely notice of appeal in an unemployment case deprives this Court of jurisdiction to entertain the appeal. Thomas v. St. Martin’s Childcare Center, 127 S.W.3d 704, 705 (Mo.App. E.D.2004).

The appeal is dismissed for lack of jurisdiction.

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


text:
    Earl LUDLUM, Respondent, v. Jessica FIELDER, Appellant.
    No. ED 84358.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 22, 2005.
    George Michael Archer, Hillsboro, MO, for appellant.
    Paul Petraborg, Laura Caimi, St. Louis, MO, for respondent.
    Before: CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A BAKER, J.
   ORDER

PER CURIAM.

Defendant Jessica Fielder (“Defendant”) appeals from the judgment against her and in favor of Plaintiff Earl Ludlum (“Plaintiff’) for property damage Mr. Ludlum sustained in an automobile collision with Ms. Fielder. On appeal Ms. Fielder claims that the trial court erred in overruling her motion for mistrial after Mr. Lud-lum made unsolicited comments regarding insurance coverage. Ms. Fielder also contends that the trial court should have ruled in her favor upon her motion for new trial or judgment notwithstanding the verdict on the grounds that the plaintiff, Mr. Lud-lum, failed to produce sufficient evidence in regards to the element of damages. This court finds no error and affirms.

No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

We affirm the judgment pursuant to Rule 84.16(b).


text:
    Venga RADCLIFF and Tammy Radcliff, Appellants, v. ROCKWOOD BANK, Respondent.
    No. ED 84906.
    Missouri Court of Appeals, Eastern District, Division Two.
    Feb. 22, 2005.
    Brian J. Fellows, St. Louis, MO, for appellants.
    John G. Enright, St. Louis, MO, for respondent.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Venga and Tammy Radcliff, individually, and Venga as duly appointed Plaintiff ad Litem for her deceased husband Charles Radcliff, appeal the judgment of the Circuit Court of St. Louis County granting Rockwood Bank’s Motion to Dismiss the Radcliffs’ negligent infection of emotional distress action for failure to state a claim or cause of action.

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

We affirm the award pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Donald C. McCLENDON, Appellant.
    No. ED 84351.
    Missouri Court of Appeals, Eastern District, Division Two.
    Feb. 22, 2005.
    Timothy J. Forneris, St. Louis, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Andrew W. Hassell, Asst. Attorney General, Jefferson City, MO, for Respondent.

      Before PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE and ROBERT G. DOWD, Jr., JJ.
   ORDER

PER CURIAM.

Donald C. McClendon (Defendant) appeals from the judgment upon his conviction of attempted stealing of a motor vehicle, Section 564.011, RSMo 2000, and Section 570.030.3(3), RSMo Cum.Supp. 2004, for which Defendant was sentenced to nine years’ imprisonment as a prior and persistent offender under Section 558.016, RSMo Cum.Supp.2004.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion reciting the detailed facts and restating principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 30.25(b).


author: ROBERT G. DOWD, JR., Judge.

text:
    ARC INDUSTRIES, INC., Appellant, v. SIEGEL-ROBERT, INC., Respondent.
    No. ED 84339.
    Missouri Court of Appeals, Eastern District, Division Two.
    Feb. 22, 2005.

      Eleanor A. Maynard, St. Louis, MO, for Appellant.
    Gerald P. Greiman, St. Louis, MO, for Respondent.
   ROBERT G. DOWD, JR., Judge.

ARC Industries, Inc. (ARC) appeals from the trial court’s entry of partial summary judgment on two counts of its seven-count petition against Siegel-Robert, Inc. (SRI). Because we lack appellate jurisdiction, the appeal is dismissed.

ARC became involved in a contract dispute with SRI over the production of molds for plastic containers. ARC filed a seven-count petition against SRI. Counts I, II, and III were for breach of contract, quantum meruit, and suit on account for “Outstanding AR” . Counts IV and V were for breach of contract and quantum meruit for the “N-SYNC” molds used to make plastic containers. Counts VI and VII were for breach of contract and quantum meruit for the “Two-Cavity” molds. SRI filed an answer and a fourteen-count counterclaim. Counts I through V of SRI’s counterclaim petition were for breach of express warranties, breach of implied warranties, breach of contract for nonconforming goods, breach of contract for failure to deliver, and unjust enrichment relating to the “N-SYNC” production molds.

SRI filed a motion for partial summary judgment as to Counts IV and V of ARC’S petition relating to the “N-SYNC” production molds. Regarding Count IV for breach of contract, ARC alleged SRI owed contract money for the “N-SYNC” molds. In its summary judgment motion, SRI argued it was entitled to summary judgment because ARC never delivered the “N-SYNC” molds to SRI, even upon request. Regarding Count V for quantum meruit, ARC asserted that SRI pay for the reasonable value of services and goods provided by ARC relating to the “N-SYNC” molds. In its summary judgment motion, SRI maintained it was entitled to summary judgment because ARC could not maintain a claim for quantum meruit when it never provided SRI with the molds, and therefore, never conferred a benefit on SRI. The trial court granted SRI’s motion and entered partial summary judgment in its favor as to Counts IV and V of ARC’S petition. The trial court certified the judgment as final stating “there was no just reason for delay” pursuant to Rule 74.01(b). This appeal follows.

On this court’s own motion, the issue of jurisdiction over this appeal was raised to the parties and the issue was taken with the case. The issue arises from whether the partial summary judgment entered on ARC’S Counts TV and V relating to the “N-SYNC” molds is a final judgment despite the Rule 74.01(b) certification by the trial court when SRI’s counterclaim counts relating to the “N-SYNC” molds remain pending in the trial court. We now address this issue of jurisdiction. Even though the trial court certified the case for appeal under Rule 74.01(b), we have a duty to determine whether the certification is proper. Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997). A prerequisite to appellate review is that there be a final judgment. Id. If the judgment appealed from is not a final judgment, we lack jurisdiction and the appeal must be dismissed. Id.

A final, appealable judgment disposes of all issues and all parties in the case leaving nothing for future determination. Hylton v. Standley, 112 S.W.3d 482, 484 (Mo.App. S.D.2003). Rule 74.01(b), however, permits the trial court to enter judgment on a single claim and to certify its judgment as appealable when multiple claims are asserted in a single case upon an express determination that there is no just reason for delay. Id. at 484-85. Although a trial court is given wide latitude in determining whether a partial summary judgment should be certified under Rule 74.01(b), where the circumstances of the case and the judgment entered are wholly inconsistent with a finding of “no just reason for delay,” a finding to that effect by a trial court is an abuse of discretion. Saganis-Noonan v. Koenig, 857 S.W.2d 499, 501 (Mo.App. E.D.1993) (citing Committee for Educational Equality v. State, 878 S.W.2d 446, 452-53 (Mo. banc 1994)).

In deciding whether the certification of a partial judgment was proper and whether there was no just reason for delay, courts apply a four-factor test: (1) whether the action remains pending in the trial court as to all parties; (2) whether similar relief can be awarded in each separate count; (3) whether determination of the claims pending in the trial court would moot the claim being appealed; and (4) whether the factual underpinnings of all the claims are intertwined. Saganis-Noonan, 857 S.W.2d at 501; Lynch v. Lynch, 966 S.W.2d 345, 347 (Mo.App. E.D.1998).

We find the trial court abused its discretion in certifying the partial summary judgment for appeal under Rule 74.01(b). The action here remains pending in the trial court as to all parties, ARC and SRI. More importantly, the factual underpinnings of all the claims are intertwined. SRI’s counterclaim counts relating to the “N-SYNC” molds are so factually intertwined with ARC’S breach of contract and quantum meruit claims relating to the “N-SYNC” molds that the trial court’s decision on summary judgment cannot be final without disposing of the counterclaim counts. The contract that is the basis for ARC’s claims for breach of contract and quantum meruit relating to the “N-SYNC” molds is the same set of facts that is the basis for SRI’s counterclaims regarding the “N-SYNC” molds for breach of express warranties, breach of implied warranties, breach of contract for nonconforming goods, breach of contract for failure to deliver, and unjust enrichment. Furthermore, the grounds stated in SRI’s motion for summary judgment that ARC failed to timely provide SRI the “N-SYNC” molds is the basis for several of SRI counterclaims. Thus, SRI’s pending counterclaim counts clearly arise out of the same set of facts, and the same transactions and occurrences as the counts appealed and the factual underpinnings are inextricably intertwined. Thus, certification under Rule 74.01(b) was not proper and the trial court abused its discretion in certifying the partial summary judgment as an appealable judgment.

Both ARC and SRI assert that there is a final judgment and the trial court’s certification was proper. In its response to the show cause order, ARC maintained that the decision to certify a partial judgment pursuant to Rule 74.01(b) is in the broad discretion of the trial court relying on Boatmen’s Trust Company v. Sugden, 827 S.W.2d 249, 252 (Mo.App. E.D.1992). The Boatmen’s Trust Company court, in a very brief analysis, relied on International Minerals & Chemical Corp. v. Avon Products, Inc., 817 S.W.2d 903, 906 (Mo. banc 1991), which stated “the trial judge is best equipped to form an informed conclusion as to the most efficient and economical course for the litigation to take.” The International Minerals & Chemical Corp. decision, however, was called into question by Committee for Educational Equality, 878 S.W.2d at 452-53. In Committee for Educational Equality, the Missouri Supreme Court held that to the extent that International Minerals & Chemical Corp. might be read to remove the requirement that the judgment dispose of one claim as to one party, it should not be followed. Id. at 453. Id. Under the circumstances, we find ARC’S reliance on Boatmen’s Trust Company misplaced.

Accordingly, the judgment appealed from is not a final, appealable judgment and we lack jurisdiction to entertain the merits of ARC’s appeal. Based on the foregoing, the appeal is dismissed.

PATRICIA L. COHEN, P.J. and GEORGE W. DRAPER, III, C.J., concur.

      . In its petition, ARC refers to all outstanding monies due ARC for completed work as "Outstanding AR.”


text:
    Danyle HURST, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84606.
    Missouri Court of Appeals, Eastern District, Division Two.
    Feb. 22, 2005.
    Maleaner R. Harvey, St. Louis, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lacey R. Searfoss, Asst. Attorney General, Jefferson City, MO, for Respondent.
    Before PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ.
   ORDER

PER CURIAM.

Danyle Hurst (Movant) appeals from the denial of his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. In that motion, Movant sought to vacate convictions for possession of a controlled substance, Section 195.202, RSMo 2000, and unlawful use of a weapon, Section 571.030, RSMo 2000, for which Mov-ant was sentenced to twelve years and ten years imprisonment, respectively. On appeal, Movant argues the trial court erred in denying Movant’s Rule 29.15 without an evidentiary hearing because (1) trial counsel was ineffective for failing to argue the validity of the unlawful use of a weapon charge for which Movant was convicted and appellate counsel was ineffective for arguing there was insufficient evidence to convict Movant because the evidence did not show Movant concealed a weapon outside a residence, and (2) trial counsel was ineffective for failing to file a motion for a new trial preserving the denial of Movant’s motion to suppress physical evidence and appellate counsel was ineffective for failing to raise the claim that the trial court erred in denying Movant’s motion to suppress physical evidence. We affirm.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion would have no precedential value nor serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order pursuant to Rule 84.16(b).


text:
    In the Matter of the Care and Treatment of Steven OWENS, Appellant.
    No. ED 84310.
    Missouri Court of Appeals, Eastern District, Division Two.
    Feb. 22, 2005.
    Emmett D. Queener, Columbia, MO, for appellant.
    Diane Peters, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ.
   ORDER

PER CURIAM.

Steven Owens appeals from the judgment finding that he is a sexually violent predator and committing him involuntarily to the Missouri Department of Mental Health.

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