source: Caselaw Access Project

author: EDWIN H. SMITH, Chief Judge.

license: Public Domain

text:
    Margaret LANE, Nina Smith, Dixie Lee Morgan and Virginia Nettles, Appellants, v. NON-TEACHER SCHOOL EMPLOYEE RETIREMENT SYSTEM OF MISSOURI and Potosi R-III School District, Respondents.
    No. WD 64121.
    Missouri Court of Appeals, Western District.
    Aug. 30, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 4, 2005.
    Application for Transfer Denied Nov. 22, 2005.

      Ronald C. Gladney and James R. Kim-mey, III, St. Louis, MO, for appellants.
    Allen D. Allred, Jeffrey R. Fink and Kevin J. Rejent, St. Louis, MO, for Respondent NTRS.
    Melanie G. Keeney and John M. Reynolds, St. Louis, MO, for Respondent Potosí R-III.
    Before EDWIN H. SMITH, C.J., and HOWARD and HOLLIGER, JJ.
   EDWIN H. SMITH, Chief Judge.

Margaret Lane, Nina Smith, Dixie Lee Morgan and Virginia Nettles, retired bus drivers for the Potosí R-III School District (District), appeal the summary judgment of the Circuit Court of Cole County for the respondents, the District and the Non-Teacher School Employee Retirement System (NTRS), on the appellants’ equitable suit for an accounting against the respondents, seeking an accounting for claimed creditable service toward the accrual of NTRS retirement benefits for service to the District prior to 1990 and a judgment for any balance found to be due in accordance with the accounting. The trial court granted the respondents’ joint motion for summary judgment on the basis that the appellants’ suit for an accounting was barred by the five-year statute of limitations of § 516.120(2) and/or laches.

The appellants raise two points on appeal. In Point I, they claim that the trial court erred in granting the respondents’ motion for summary judgment, on the basis that the appellants’ suit for an accounting was barred by the running of the applicable five-year statute of limitations of § 516.120(2) in 1995, which was prior to suit being brought, because, as a matter of law, the five-year period did not begin to run until the appellants retired and were denied retirement benefits for their pre-1990 service, either in 2000 or 2001, depending on the appellant. In Point II, they claim that the trial court erred in granting the respondents’ joint motion for summary judgment, on the basis that the appellants’ suit for an accounting was barred by laches, because, under the facts alleged in the motion, the doctrine of lach-es did not apply, as a matter of law, in that the applicable statute of limitations had not yet run.

We reverse and remand.

Facts

The NTRS is a statutorily created retirement benefits system covering non-teacher employees who work at least twenty hours a week for Missouri school districts with a population of less than 300,000 and is established in §§ 169.600-169.715. Qualifying non-teacher employees become members of the NTRS by virtue of their employment with a qualifying district. § 169.650. A NTRS-qualifying school district is mandated, pursuant to § 169.620, to remit to the NTRS the contributions required to be withheld from a member’s paychecks and the matching contributions required of the employer-district, both of which are based on a percentage of the member’s earnings. Upon retirement, a member receives NTRS retirement benefits according to his years of creditable service and average salary. § 169.670.

Appellant Margaret Lane began working as a bus driver for the District in 1968 and remained employed in that capacity until the 1999-2000 school year. Appellant Nina Smith began working as a bus driver for the District in 1966 and remained employed in that capacity until 2000. Appellant Virginia Nettles began working as a bus driver for the District in 1976 and still works for the District as a part-time bus driver, although she “retired,” for the purposes of NTRS, in 2001. Appellant Dixie Lee Morgan began working as a bus driver for the District in 1969, and, like Nettles, still works for the District as a part-time bus driver, although she “retired” for the purposes of NTRS.

In 1990, the appellants were informed by a NTRS representative that the District had not made the required contributions to the NTRS on their behalf for their pre-1990 employment with the District and that the NTRS had not given them creditable service for that employment. Having been so advised, the appellants completed the necessary NTRS enrollment forms, after which the District began remitting to the NTRS the contributions required by § 169.620. Approximately nine years later, on July 26, 1999, thirteen school bus drivers, including the four appellants, filed a petition against the respondents in the Circuit Court of Cole County, which is not included in the record on appeal, seeking a determination that they had accrued creditable service, for purposes of accruing NTRS retirement benefits, for pre-1990 service to the District and a judgment for payment of any benefits found due from such determination.

In November of 1999, the District filed a motion to dismiss based on the running of the applicable statute of limitations and laches. In December of 1999, the NTRS filed a motion, pursuant to Rule 55.27(b), for a judgment on the pleadings, alleging that the plaintiffs’ claims were barred by the applicable statute of limitations, § 516.120. On May 9, 2000, the trial court granted both motions for “the reason that the statute of limitations had run.” The plaintiffs appealed to this court in Bettis v. Potosí R-III School District, 51 S.W.3d 188, 186 (Mo.App.2001) (Potosí I), claiming that the trial court erred because their cause of action against the respondents was not barred by the applicable five-year period of limitation of § 516.120(2) since their cause of action did not “accrue,” triggering the statute of limitations, until they had retired, such that their lawsuit was timely filed. In that regard, the respondents contended, in accordance with § 516.100, that the plaintiffs’ cause of action accrued, triggering the statute of limitations, when their damages were sustained and were capable of ascertainment, which they alleged occurred in 1990, when the plaintiffs received paychecks that did not reflect any deductions for contributions to the NTRS. Bettis, 51 S.W.3d at 186. They argued that the plaintiffs were presumed to know the law such that they knew or should have known, from the lack of any deductions for NTRS contributions from their pre-1990 checks, that they had been damaged by the District and the NTRS. Id. at 188. This court expressly rejected that argument and adopted an accrual rule in pension cases that accrual occurs, for purposes of the statute of limitations, when there has been an application and a formal denial of benefits. Id. at 188-89.

On June 27, 2003, the trial court, on remand, granted the appellants leave to file a third amended petition, which is included in the record on appeal. The third amended petition, in which the appellants were the only named plaintiffs, alleged an equitable suit for an accounting, seeking an accounting for creditable service toward the accrual of NTRS retirement benefits for pre-1990 service to the District and a judgment for any balance found to be due them in accordance with the accounting. The petition alleged, inter alia, that Lane and Smith were retired from the District and were receiving benefits from the NTRS. As to Morgan and Nettles, the petition alleged that they had retired, in accordance with § 169.660.2, which permits employees to retire and receive retirement benefits while working part time, without accruing further creditable service. On August 1, 2003, the NTRS filed a cross-claim against the District. The cross-claim alleged that, to the extent that the NTRS was found liable to the appellants for additional NTRS retirement benefits for their pre-1990 service, the District was liable to the NTRS for failure to make the required NTRS contributions mandated by § 169.620.

On December 17, 2003, the District filed a motion for summary judgment on the appellants’ third amended petition. The motion alleged that the District was entitled to judgment as a matter of law because the appellants’ suit for an accounting was barred by the statute of limitations and the doctrine of laches. With respect to the running of the statute of limitations, as a basis for its motion, the District alleged, inter alia:

During the 1990 NTRS Meeting, [the NTRS representative] allegedly told Plaintiffs that they were entitled to NTRS retirement benefits for their pre-1990 employment with the District, and that Plaintiffs should tell the District to begin making contributions to the NTRS on their behalf.
Following the 1990 NTRS Meeting, Plaintiffs filled out enrollment forms with the NTRS to begin accumulating creditable service with the NTRS. Perhaps as early as 1989, but certainly no later than the 1990 NTRS meeting, plaintiffs were aware, or became aware, that the District had not made contributions to the NTRS on behalf of Plaintiffs for Plaintiffs’ pre-1990 employment. Perhaps as early as 1989, but certainly no later than the 1990 NTRS meeting, Plaintiffs also were aware, or became aware, that the NTRS had not granted Plaintiffs creditable service for Plaintiffs’ pre-1990 employment.
Despite being aware no later than 1990 that (1) the District had not made contributions to the NTRS for Plaintiffs’ pre-1990 employment, and (2) that the NTRS was not granting Plaintiffs’ creditable service for their pre-1990 employment, Plaintiffs waited until July 26, 1999 to bring this suit.

From these facts, the District argued in support of the motion that, in accordance with § 516.100, the appellants’ cause of action against it accrued in 1990, triggering the statute of limitations, because, based on their being advised at the NTRS meeting that the District had not made contributions to the NTRS for the appellants’ pre-1990 employment and that the NTRS had not credited the appellants for their pre-1990 employment, their damages were capable of ascertainment at that time.

With respect to laches, as a basis for summary judgment, the District’s motion alleged facts, which it contended established prejudice sufficient to bar the appellants’ suit for an accounting for the appellants’ failure to file suit, initially, until 1999, some nine years after they had learned that the District had not made the requisite NTRS contributions. The facts alleged involved the loss or destruction of relevant documents, the unavailability of witnesses with knowledge of the appellants’ work histories, and the appellants’ own loss of memory.

The District’s motion also sought summary judgment on the NTRS’ cross-claim, on the ground that it was moot because the appellants’ causes of action against the NTRS were barred by the doctrine of laches. On February 12, 2004, the NTRS joined the District’s motion for summary judgment, except to the extent that it sought summary judgment on NTRS’ cross-claim against it.

On March 15, 2004, the trial court granted the respondents’ joint motion for summary judgment, on the basis that the appellants’ suit for an accounting against the respondents was barred by the statute of limitations and laches.

This appeal followed.

Standard of Review

In reviewing the grant of summary judgment:

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

ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993) (internal citations omitted). Summary judgment will be upheld on appeal if: (1) there is no genuine dispute of material fact, and (2) the movant is entitled to judgment as a matter of law. Id. at 880. When considering appeals from summary judgments, we will:

review the record in the light most favorable to the party against whom judgment was entered. Facts set forth by affidavit or otherwise in support of a party’s motion are taken as true unless contradicted by the non-moving party’s response to the summary judgment motion. We accord the non-movant the benefit of all reasonable inferences from the record.

Id. at 376 (internal citations omitted).

I.

In Point I, the appellants claim that the trial court erred in granting the respondents’ motion for summary judgment, on the basis that the appellants’ suit for an accounting was barred by the running of the applicable five-year statute of limitations of § 516.120(2) in 1995, which was prior to suit being brought, because, as a matter of law, the five-year period did not begin to run until the appellants retired and were denied retirement benefits for their pre-1990 service, either in 2000 or 2001, depending on the appellant. Specifically, they claim that the trial court misinterpreted and misapplied § 516.120(2) in determining when their suit for an accounting accrued, for purposes of triggering the five-year statute of limitations, such that the respondents’ motion, even if all the facts alleged therein were taken as true, failed to allege a prima facie case for summary judgment on the basis that the appellants’ suit for an accounting was, as a matter of law, barred by the running of the applicable statute of limitations.

To make a prima facie case for summary judgment, under Rule 74.04, the movant must allege facts, which are supported by specific references to the pleadings, discovery, exhibits or affidavits, demonstrating the lack of a genuine issue as to such facts and which establish a right to judgment as a matter of law. Rule 74.04(c); Bost v. Clark, 116 S.W.3d 667, 674 (Mo.App.2003). If the movant is a defending party, as is the case here, he can make a prima facie case for summary judgment by showing either: (1) facts that negate any one of the claimant’s required proof elements; (2) that the non-movant, after an adequate period of discovery, has not been able to produce and will not be able to produce evidence sufficient to allow the trier-of-fact to find the existence of any one of the claimant’s required proof elements; or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant’s properly pleaded affirmative defense. Williams v. Mo. Highway & Transp. Comm’n, 16 S.W.3d 605, 610 (Mo.App.2000). Regardless of which of these three means is employed by the defending party, each establishes a right to judgment as a matter of law. Id. In this case, the respondents employed the third means, alleging facts in their motion, which they contend established the affirmative defenses of the running of the statute of limitations and laches. See Yahne v. Pettis County Sheriff Dep’t, 73 S.W.3d 717, 719 (Mo.App.2002) (holding that the running of the statute of limitations is an affirmative defense); Ewing v. Ewing, 901 S.W.2d 330, 334 (Mo.App.1995) (holding that lach-es is an affirmative defense). This point deals with the running of the statute of limitations as a basis for granting the respondents’ motion for summary judgment.

As to their statute-of-limitations defense, the respondents’ joint motion for summary judgment alleged that § 516.120(2), which provides for a five-year limitation period for “[a]n action upon a liability created by a statute other than a penalty or forfeiture,” applied. This court, in Potosí I, determined that § 516.120(2) was the applicable statute of limitations. Thus, under the doctrine of the law of the case, this determination is not subject to re-examination in this appeal. Vallejo-Davila v. Oseo Drug, Inc., 895 S.W.2d 49, 53 (Mo.App.1995) (citation omitted). The question in this point is whether the statute of limitations of § 516.120(2) had expired so as to bar the appellants’ cause of action against the respondents, as the trial court concluded had occurred as a basis for summary judgment for the respondents.

“The statute of limitations begins to run when plaintiffs right to sue arises.” Vandenheuvel v. Sowell, 886 S.W.2d 100, 102 (Mo.App.1994). Stated another way, the statute of limitations begins to run when a party could first maintain his cause of action successfully. Modem Tractor & Supply Co. v. Leo Joumagan Constr. Co. Inc., 863 S.W.2d 949, 952 (Mo.App.1993). Section 516.100, which expressly applies to § 516.120, provides, in pertinent part, that a civil action, other than one for the recovery of real property, can only be commenced after the cause of action has “accrued.” Thus, in accordance with § 516.100, the statute of limitations for the appellants’ suit for an accounting against the District and the NTRS began to run when it “accrued.” In that regard:

[a] cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment, and, if more than one item of damage, then the last item, so that all resulting damage may be recovered, and full and complete relief obtained.

§ 516.100. (Emphasis added.) “This is an objective test to be decided as a matter of law by the trial court.” Harris v. Hollingsworth, 150 S.W.3d 85, 88 (Mo.App. 2004). Under this test, a cause of action accrues when the damage can be discovered, not when it is actually discovered. Id. In other words, a “[pjlaintiff s ignorance of his cause of action will not prevent the running of the statute.” Modem Tractor, 863 S.W.2d at 952. The phrase “capable of ascertainment” in § 516.100 refers to the fact of damage and does not mandate knowledge of the precise amount. Polytech, Inc. v. Sedgwick James of Mo., Inc., 937 S.W.2d 309, 311 (Mo.App.1996). “[T]he requirement that damages be sustained and capable of ascertainment does not change the tenet that when an injury is complete as a legal injury, the period of limitations commences at once.” Vandenheuvel, 886 S.W.2d at 102-03.

In their third amended petition, the appellants alleged, as a basis for their suit for an accounting against the District, that it breached its duty to them, “under § 169.600 et seq. RSMo,” by failing and/or refusing to report their creditable service from “1965 to at least 1990,” and failing and/or refusing to make the required contributions to the NTRS for that service. As to their suit for an accounting against the NTRS, they alleged that it breached its duty to them, “under § 169.600 et seq. RSMo,” by fading and/or refusing “to require the District to report creditable service and make contributions on [the appellants’] behalf’ for service from “1965 to at least 1990.” Hence, in deciding when the appellants’ cause of action accrued, as to each defendant, so as to trigger the statute of limitations, the question is when were the damages resulting from these alleged breaches sustained and capable of ascertainment by the appellants.

In their joint motion for summary judgment, the respondents alleged, as to their statute-of-limitations defense, that the appellants’ suit for an accounting accrued at the very latest in the summer of 1990, triggering the statute of limitations, because during the summer of that year, they had actual knowledge that the “District had not made, and was not going to make, contributions to the NTRS on behalf of [the appellants] for pre-1990 employment.” The appellants, however, contend that their cause of action did not accrue in 1990 because their damages were not sustained and capable of ascertainment until they actually retired and sought retirement benefits in 2000 or 2001, relying on the pension accrual rule this court adopted in Potosí I. The appellants argue that it was then and only then that they understood that the respondents were not going to honor the NTRS fiduciary duties owed them, which they alleged they breached in their suit for an accounting.

In Potosí I, this court recognized the general rule that the statute of limitations “does not begin to run [in an action to calculate pension benefits] until the claimant has retired or otherwise qualified, and has submitted a formal claim.” 51 S.W.3d at 188 (citing 60A Am.Jur.2d Pensions and Retirement Funds § 1736 (1988)). Thus, in alleging in their joint motion for summary judgment that the statute of limitations, as to the appellants’ suit for an accounting, began to run when the appellants had actual knowledge that the District had not made the required contributions to the NTRS for their service to the District prior to 1990 and the NTRS had not given them credit for such service, which was long before they filed for and were denied benefits for such service, the respondents were flying directly in the face of the pension accrual rule adopted by this court in Potosí I. Consequently, unless an exception to that rule applies, summary judgment for the respondents, on the basis of the running of the statute of limitations, would not he in that the respondents concede that the appellants’ cause of action was not barred if the applicable time for the triggering of the statute of limitations was when the appellants actually retired and were denied NTRS benefits for their pre-1990 service.

In Potosí I, the trial court dismissed the appellants’ suit against the respondents based on the running of the statute of limitations found in § 516.120(2). In that regard, the respondents contended that the statute was triggered when the appellants received their paychecks for service prior to 1990, which did not reflect any deductions for their contributions, which were required to be made by the District to the NTRS for creditable service. The respondents argued that the appellants were “presumed to know the law” concerning the required contributions to the NTRS for creditable service such that they should have known from the lack of deductions from their paychecks for that purpose that the District and the NTRS had breached their respective fiduciary duties to them, under § 169.600 et seq., and that this presumed knowledge of their respective alleged breaches was sufficient to trigger the running of the statute of limitations. This court rejected that argument in Potosí I, reversing the trial court’s order dismissing the suit and remanding the case to the circuit court. 51 S.W.3d at 189-90.

In the legal memorandum filed in support of the respondents’ joint motion for summary judgment, they contended that this court, in reversing the trial court’s order dismissing the appellants’ suit in Potosí I, as being barred by the statute of limitations, did so solely on the basis that the appellants’ alleged “presumed knowledge of the law” was not sufficient to trigger the running of the statute, but that “actual knowledge” was. Hence, they contended in the memorandum that because their motion alleged undisputed facts showing actual knowledge by the appellants in 1990 of the District’s failure to make contributions on their behalf to the NTRS, as required by law, and the NTRS’ failure to credit them for services rendered to the District prior to 1990, the statute of limitations was triggered. In other words, the respondents were contending, in the memorandum in support of their motion, that although “presumed knowledge” by the appellants of the respondents’ alleged breach of their respective duties to the appellants was not sufficient to trigger the statute of limitations, “actual knowledge” was. The respondents misread our holding in Potosí I.

As we state, supra, in Potosí I, this court did, in fact, reject the respondents’ “presumed-to-know-the-law” contention that the statute of limitations began to run, barring the appellants’ suit for an accounting against them, when the appellants received their paychecks from the District reflecting that no deductions had been made for the appellants’ required matching pension contributions to the NTRS. However, in doing so, we did not hold that actual knowledge by the appellants of the alleged breaches of the respondents was sufficient to trigger the statute, as the respondents contend here. While the court in Potosí I observed that the NTRS “might wish to show that the members in question had notice of their duty, and that of the District, to participate in the funding of the system,” this observation was expressly limited to the issue of laches. Potosí I, 51 S.W.3d at 189. The court never linked actual notice of the District’s breach, in failing to withhold and contribute to the appellants’ retirement system, to the running of the statute of limitations. Rather, the court’s rejection of the respondents’ “presumed-to-know-the-law” contention in Potosí I was based on the court’s acceptance of the general pension accrual rule, that the “statute does not begin to run until the claimant has retired or otherwise qualified, and has submitted a formal claim.” 51 S.W.3d at 188. There is nothing in Potosí I to fairly suggest that this court was recognizing an “actual-knowledge” exception to this general rule, as the respondents contend here, as a basis for when a cause of action, involving pension benefits, accrues to trigger the running of the statute of limitations. The only exception discussed in Potosí I was the court’s discussion of the “repudiation exception” to the general rule of accrual adopted by the federal courts in Employee Retirement Income Security Act (ERISA) cases, which we discuss, infra.

In Potosí I, this court, apparently as further support for its enunciated general accrual rule in pension cases, discussed the general accrual rule in cases involving pension claims governed by ERISA. Id. As this court noted, the “usual rule in an ERISA action is that the cause of action accrue[s] after a claim for benefits has been made and been formally denied,” id., which is essentially the same rule we recognized in Potosí I as this state’s general accrual rule for pension cases. In discussing the ERISA accrual rule, this court recognized the so-called “repudiation exception” to that rule. Id. at 189 (citing Union Pacific R.R. Co. v. Beckham, 138 F.3d 325, 330 (8th Cir. 1998)). Under that exception, an employee’s ERISA action accrues before a formal denial, and even before a claim for benefits is filed, when there has been a clear repudiation of benefits under the pension plan, which was made known to the employee. Beckham, 138 F.3d at 330. Thus, under the repudiation exception, an ERISA action, based on a breach of a fiduciary duty, as alleged here, would not accrue before a formal denial of the pension benefits claimed by the employee, unless he knew or should have known that the breach by the fiduciary brought about a clear repudiation of those benefits. Id.; Romero v. Allstate Carp., 404 F.3d 212, 223 (3rd Cir. 2005). This then appears to be the exception argued for by the respondents in their motion for summary judgment as to the running of the statute of limitations based on the actual knowledge of the appellants as to the respondents’ alleged breaches of their fiduciary duties under § 169.600 et seq. However, in Potosí I, this court never adopted the repudiation exception as an exception to the general accrual rule it adopted for pension cases. Likewise, the respondents do not cite any cases that have adopted such an exception for pension cases in this state, and we cannot find any, such that if such an exception is to apply here, on which to base summary judgment for the respondents, it would have to be adopted by us in this case.

The ERISA accrual rule, that the cause of action accrues after a claim for benefits has been made and been formally denied, has been found to be consistent with the general accrual rule in non-ERISA federal cases, a.k.a. the “discovery rule.” Beckham, 138 F.3d at 330; Romero, 404 F.3d at 223. In accordance with the federal “discovery rule,” a plaintiffs cause of action in federal court, in the absence of a contrary directive from Congress, generally “accrues when he discovers, or with due diligence should have discovered, the injury that is the basis of the litigation.” Beckham, 138 F.3d at 330. The ERISA accrual rule is consistent with the general accrual or discovery rule in that it provides that an ERISA action accrues when the employee learns or discovers that he is being denied rights or benefits under his pension plan. However, it is not identical to the discovery rule in that it does not provide for accrual prior to the employee’s claiming or being denied benefits, even if he discovered or should have discovered the future loss of benefits. This distinction “reflects a concern that it would be burdensome and unfair to require lay participants and beneficiaries to be constantly alert for possible errors or abuses that might give rise to a claim and start the statute of limitations running.” Menhorn v. Firestone Tire & Rubber Co., 738 F.2d 1496, 1501 (9th Cir.1984). However, the “repudiation exception” to the ERISA accrual rule recognizes that, despite this concern, there are instances where it is made clear to the employee that his pension rights or benefits are being repudiated, that it is reasonable and in keeping with the guiding principles of the discovery rule to trigger the running of the statute of limitations, before a claim for benefits is actually filed or denied. In this fashion, the repudiation exception also works to avoid in ERISA cases “a myriad of ills that would accompany any rule that required the denial of a formal application for benefits before a claim accrues.” Romero, 404 F.3d at 223. And, avoiding these “myriad of ills” would logically include fulfilling the important policies underlying statutes of limitations: “rapid resolution of disputes, repose for those against whom a claim could be brought, and avoidance of litigation involving lost evidence or distorted testimony of witnesses.” See Beckham, 138 F.3d at 330 (setting out underlying policies for statutes of limitations).

Although in Potosí I we did not expressly recognize the repudiation exception to the general accrual rule that we adopted for pension cases, it makes sense to do so. It makes sense in that the general accrual rule we adopted in Potosí I for pension cases is essentially identical to the ERISA general accrual rule, as we discuss, supra, and the federal “discovery rule,” the federal general accrual rule, is similar to our general accrual rule, the “capable-of-ascertainment rule,” found in § 516.100, such that the obvious and logical reasons for adopting the ERISA general accrual rule and the repudiation exception, discussed, swpra, would apply equally to why we should adopt both.

Based on the foregoing analysis, we adopt, as an exception to the general rule of accrual in pension cases, which we adopted in Potosí I, the “repudiation exception,” which has been adopted by the federal courts as an exception to the general ERISA accrual rule. Under this exception to the general rule of accrual in pension eases, the statute of limitations would begin to run. in cases calculating benefits or determining rights under a pension plan when the claimant has retired or otherwise qualified, and has submitted a formal claim for benefits which has been denied, unless the claimant knew or should have known from an event or circumstance that a clear repudiation of those benefits or rights has occurred. See Potosí I, 51 S.W.3d at 188-89; Beckham,, 138 F.3d at 330-31; Romero, 404 F.3d at 222-23. Even with the adoption of this exception, however, the respondents did not make a prima facie case for summary judgment based on the running of the five-year statute of limitations, as we explain, infra.

Under the repudiation exception, for the appellants’ damages from the respondents’ alleged breaches under § 169.600 et seq. to have been sustained and capable of ascertainment in the summer of 1990, as the respondents alleged in their joint motion for summary judgment, they had to have alleged undisputed facts establishing some event or circumstance that would have alerted the appellants, exercising due diligence, that their right to NTRS retirement benefits for their pre-1990 service to the District was being repudiated. In that regard, in their motion, the respondents alleged that no later than their 1990 meeting with the NTRS, the appellants were aware or became aware that the District had not made and would never make the required contributions to the NTRS on behalf of the appellants for their pre-1990 service to the District and that the NTRS had not granted and would never grant them creditable service for that service toward NTRS retirement benefits. While the facts alleged might demonstrate a breach of the respondents’ duties under § 169.600 et seq., they do not establish a clear repudiation of the appellants’ right to benefits under the NTRS pension plan for pre-1990 service to the District such that the statute of limitations would have been triggered prior to their retirement and filing for benefits for pre-1990 service to the District and being denied the same. While the District’s failure to make the contributions required for the appellants’ pre-1990 work for the District and the NTRS’ refusal to give credit for the same might be evidence of their repudiation of the appellants’ rights under the NTRS pension plan, it is not conclusive as a matter of law — the standard for summary judgment. It is arguable that it was reasonable for the appellants to believe, even after having been made aware of the respondents’ failure to comply with the requirements of § 169.600 et seq., that once they filled out enrollment forms with the NTRS, following the 1990 NTRS meeting, a fact alleged in the respondents’ motion, after having been “allegedly told” by a NTRS representative, Robert Rust, during the meeting that “they were entitled to NTRS retirement benefits for their pre-1990 employment with the District,” also alleged as a fact in the respondents’ motion, that the necessary contributions to the NTRS for creditable service for pre-1990 service would be made retroactively to make them eligible for NTRS retirement benefits for such service such that a genuine issue of material fact existed as to whether there was a clear repudiation of the appellants’ right to NTRS benefits as a result of the events surrounding the 1990 NTRS meeting. A genuine issue of material fact exists, so as to defeat a motion for summary judgment, “where the record contains competent evidence that two plausible but contradictory accounts of essential facts exist.” Phillips v. CNS Corp., 135 S.W.3d 435, 440 (Mo.App.2004). As such, the respondents’ motion failed to allege undisputed facts triggering the repudiation exception to the general accrual rule for pension cases, as adopted in Poto-sí I, such that the general rule would apply, meaning that the appellants’ suit for an accounting as to creditable NTRS retirement service for pre-1990 work for the District did not accrue until 2000 or 2001, when the various appellants filed for benefits, including benefits for that period of time, which were denied. Hence, under the facts alleged in the respondents’ joint motion, the five-year statute of limitations of § 516.120(2) had not run at the time of the appellants’ initial filing of their lawsuit such that summary judgment for the respondents on that basis was error. Thus, if we are to affirm the trial court’s summary judgment for the respondents, it must be on the alternative basis of laches, which we discuss in Point II, infra.

II.

In Point II, the appellants claim that the trial court erred in granting the respondents’ joint motion for summary judgment, on the basis that the appellants’ suit for an accounting was barred by lach-es, because, under the facts alleged in the motion, the doctrine of laches did not apply, as a matter of law, in that the statute of limitations had not run. We agree.

The invocation of the equitable doctrine of laches requires that a party with knowledge of facts that give rise to his or her rights unreasonably delays asserting those rights for an excessive period of time and the other party suffers legal detriment due to the delay. Hart v. Kupper Parker Communications, Inc., 114 S.W.3d 342, 350 (Mo.App.2003). Whether the doctrine of laches applies in a particular case depends on the length of delay, the reasons for the delay, how the delay affected the other party, and the overall fairness in permitting the assertion of the claim. Id. The doctrine is not favored and is used primarily to prevent injustice. Moore v. Weeks, 85 S.W.3d 709, 721 (Mo. App.2002).

The Missouri Supreme Court has held that “the doctrine of laches will not bar a suit before expiration of the period set forth in the applicable statute of limitations in the absence of special facts demanding extraordinary relief.” State ex rel. Gen. Elec. Co. v. Gaertner, 666 S.W.2d 764, 767 (Mo. banc 1984). This follows from the basic principle that equity follows the law, Hughes v. Neely, 332 S.W.2d 1, 6 (Mo.1960), and where the rights of a party are clearly defined by statute, legal principles, and precedents, those determinations may not be unsettled or ignored in equity. Place v. P.M. Place Stores Co., 950 S.W.2d 862, 866 (Mo.App.1996). Thus, equity may not disregard a statutory provision, for where the legislature has enacted a statute that governs and determines rights of the parties under certain circumstances, equity, as much as the law, is bound thereby. Kuenzle v. Mo. State Highway Patrol, 865 S.W.2d 667, 669 (Mo. banc 1993).

In their motion, the respondents alleged, as to why laches applied to bar the appellants’ suit, facts concerning the loss or destruction of relevant documents, the unavailability of witnesses with knowledge of the appellants’ work histories, and the appellants’ own loss of memory. In Gaert-ner, the Missouri Supreme Court offered no guidance as to what kind of “special facts” would warrant barring an action for laches before the relevant statute of limitations has run. However, to accept the facts alleged by the respondents in their motion as constituting sufficient special facts to invoke the doctrine of laches would mean that under the circumstances of this case, we would be totally ignoring the sound logic behind the general rule of accrual in pension cases adopted in Potosí I and the repudiation exception adopted, supra. We reject that notion. Hence, we find no special facts alleged in the respondents’ motion to make a prima facie case for summary judgment on the basis of laches such that the trial court erred in granting summary judgment on that ground.

Conclusion

The circuit court’s summary judgment for the respondents, on the appellants’ suit for an accounting, is reversed, and the case is remanded for further proceedings consistent with this opinion.

HOWARD and HOLLIGER, JJ., concur.

      . The School District filed its motion for summary judgment on December 17, 2003. The NTRS joined in the motion on February 11, 2004.

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

      . Section 169.660.2 permits employees to retire and receive retirement benefits while working part time without accruing further creditable service.

      . Section 516.120 provides that in the absence of a more narrowly tailored limitations period, any action pursuant to a Missouri statute must be commenced within five years.

      . In holding that there is logic in adopting in state pension cases the ERISA general rule of accrual and the repudiation exception, we realize that the "discovery rule,” as a general rule of accrual, has been rejected in Missouri as being contrary to the "capable-of-ascertainment" rule adopted in § 516.100. H.R.B. v. Rigali, 18 S.W.3d 440, 443 (Mo.App.2000); Harris-Laboy v. Blessing Hosp., Inc., 972 S.W.2d 522, 524 (Mo.App.1998) {citing Jepson v. Stubbs, 555 S.W.2d 307, 312-13 (Mo. banc 1977)). However, the discovery rule rejected by our state courts is not the same as the federal "discovery rule.” As discussed, supra, the federal discovery rule for accrual encompasses not only the actual discovery of the injury that is the basis of the litigation, which is what has been rejected by our state courts, but also constructive discovery of the injury— the injury should have been discovered with due diligence. As we discussed, supra, under the "capable-of-ascertainment” rule of § 516.100, which is an objective test, the "right to sue arises when the fact of damage is 'capable of ascertainment,’ even though not actually discovered, or ascertained.” Harris v. Hollingsworth, 150 S.W.3d 85, 88 (Mo.App. 2004) (emphasis added). Thus, in practical effect, the constructive prong of the federal discovery rule is essentially the equivalent of the "capable-of-ascertainment” rule found, in § 516.100 — -that the resulting damage or injury should have been discovered or ascertained using due diligence.


author: PAUL M. SPINDEN, Judge.

text:
    Sherri MORGAN, Appellant, v. Kevin L. McBEE, Respondent.
    No. WD 64297.
    Missouri Court of Appeals, Western District.
    Aug. 30, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 4, 2005.
    Application for Transfer Denied Nov. 22, 2005.

      Daniel J. Pingelton, Columbia, for Appellant.
    Leslie Mayberry Schneider, Columbia, for Respondent.
   PAUL M. SPINDEN, Judge.

Sherri Morgan appeals the circuit court’s judgment ordering Kevin L. McBee to pay her $13,150 for child support ar-rearages. Morgan asserts that the circuit court erred in calculating the amount of child support arrearages, in refusing to award statutory interest, and in refusing to award her attorney’s fees. We affirm in part and reverse and remand in part.

The evidence established that the circuit court dissolved Morgan’s marriage to McBee on January 25, 1991, and ordered McBee to pay child support of $350 per month, beginning on January 25, 1991, for the parties’ one child.

On January 29, 2004, McBee filed a motion asking the circuit court to determine his child support arrearages. He alleged that the amount that the Division of Child Support Enforcement claimed that he owed, $36,925, was inaccurate. Morgan filed an answer to McBee’s motion and also filed an execution/garnishment application and order. In response to Morgan’s garnishment application, McBee filed a motion to quash.

On March 8, 2004, the circuit court held a hearing on Morgan’s garnishment application. At the hearing, McBee requested that the circuit court admit into evidence Morgan’s 1998 Notice of Income Withholding and Affidavit of Noncompliance with Child Support Order. The circuit court admitted these documents into evidence with no objection from Morgan. Both of these documents, executed by Morgan, stated that the total of child support ar-rearages as of September 16, 1998, was $4200. After the hearing, the circuit court granted McBee’s motion to quash Morgan’s garnishment application pending the circuit court’s determination on McBee’s motion to determine child support arrear-ages.

On April 26, 2004, the circuit court held a hearing to receive additional evidence on the amount of arrearages owed by McBee. After the hearing, the circuit court found:

[A]s of September 16, 1998, [McBee] was in arrears on child support payment in amount of $4,200; that since that date and through January 2004, current child support accrued in amount of $22,750; that since September 16, 1998[, McBee] has paid child support in amount of $13,800; and that [McBee’s] arrearages as of January 31, 2004[,] was $13,150.

The circuit court also ordered each party to pay his or her own attorney fees and did not award any statutory interest to Morgan. Morgan appeals.

In her first point, Morgan asserts that the circuit court erred in calculating the amount of child support arrearages owed by McBee. In particular, she contests the circuit court’s determination that, as of September 16, 1998, McBee’s child support arrearages was only $4200. Morgan contends that the circuit court erroneously relied on her 1998 Notice of Income Withholding and Affidavit of Noncompliance with Child Support Order as evidence of the arrearages. We disagree.

We must affirm the circuit court’s judgment unless it is not supported by substantial evidence, is against the weight of evidence, erroneously declares the law, or erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Moreover, we must make any decision to reverse a judgment because it is against the weight of the evidence with caution and with a firm belief that the judgment is wrong. Id. The fact-finder is free to reject any part of a witness’ testimony. T.B.G. v. C.A.G., 772 S.W.2d 653, 654 (Mo. banc 1989). We, therefore, accept as true the evidence and inferences therefrom which are favorable to the circuit court’s judgment, and we disregard all contrary evidence. Id.

Morgan claims that the circuit court erred in relying on the 1998 Notice of Income Withholding to determine the amount of arrearages as of September 16, 1998, because at the hearing she explained that “she used [the $4200] amount in 1998 as a minimum sum of an actual amount owed for a specific period (one year) at a time when she had not determined the total arrearage.” At the hearing, Morgan presented evidence that McBee’s child support arrearages as of September 1998 was $27,125.

At that same hearing, however, Morgan conceded that she signed and filed the 1998 Notice of Income Withholding with the court on September 16, 1998, and that she listed McBee’s total child support ar-rearages as $4200. She also acknowledged that attached to the Notice of Income Withholding was an Affidavit of Noncompliance with Child Support Order, which she signed before a notary. The affidavit said that McBee’s child support arrearages as of September 29, 1998, was $4200. Morgan said that she put $4200 on these forms because “[t]hat was what [she] knew.”

Morgan asserts, however, that the circuit court should not have relied on the Notice of Income Withholding and the Affidavit of Noncompliance with Child Support Order as evidence of McBee’s arrear-ages as of September 1998, because the circuit court was required to determine how much child support McBee actually paid. Morgan’s contention is without merit.

Morgan’s Notice of Income Withholding and supporting affidavit were prior inconsistent statements. As such, these statements were admissible for impeachment purposes and were substantive evidence upon which the circuit court was entitled to rely. Rowe v. Farmers Insurance Company, Inc., 699 S.W.2d 423, 428 (Mo. banc 1985); Foster v. Catalina Industries, Inc., 55 S.W.3d 385, 393 (Mo.App.2001). Although Morgan attempted to offer an explanation and other evidence as to why the amount of child support arrearages was different in the Notice of Income Withholding and the affidavit from the amount she now claims was due, the circuit court was free to disbelieve her.

Morgan relies on Boyer v. State of Missouri ex rel. Stuerke, 851 S.W.2d 802 (Mo.App.1993), in support of her contention that arrearage affidavits are not binding on a party. In Boyer, a deputy court administrator stated in two different affidavits, one in 1985 and one in 1986, the amount of a father’s child support arrear-ages due to the court. The Boyer court concluded:

[Father] fail[ed] to provide any authority for his position that the state is bound by the 1986 affidavit of arrearage. He also fail[ed] to explain why the state would be bound by one affidavit and not an earlier affidavit, which stated that [he] owed $16,785 in back support. Furthermore, it was apparent from [the father’s] own records, which he offered at the hearing before the hearing officer, that the 1986 affidavit of arrearage was grossly inaccurate.

Id. at 804.

The issue in this case is not whether or not Morgan was bound by her affidavit, but whether or not the affidavit was competent evidence upon which the circuit court was entitled to rely. Although Morgan presented other evidence about McBee’s lack of payments of child support, the circuit -court was free to disbelieve this testimony. Morgan submitted the Notice of Withholding and affidavit concerning the child support arrearages as of September 1998 to the circuit court in 1998. Conversely, it was more than six years later when Morgan took the stand to testify in this case regarding the child support ar-rearages as of September 1998. Morgan had compiled a spreadsheet concerning McBee’s arrearages, but, on cross-examination, she conceded that the spreadsheet was inaccurate. Although Morgan vigorously disputed the amount of arrearages, the circuit court properly exercised its discretion to weigh the conflicting evidence and to make factual determinations. Such determinations are entitled to deference on appeal. Greiner v. Greiner, 146 S.W.3d 442, 452 (Mo.App.2004); King v. King, 66 S.W.3d 28, 33 (Mo.App.2001).

Morgan also asserts that the circuit court erred in refusing to award statutory interest on McBee’s delinquent child support payments. We agree.

Section 454.520.3, RSMo 2000, provides, “All delinquent child support and maintenance payments which accrue based upon judgments of courts of this state entered on or after September 1, 1982, shall draw interest at the rate of one percent per month.” Section 454.520.5 further states:

As a condition precedent to execution for interest on delinquent child support or maintenance payments, the obligee shall present to the circuit clerk a sworn affidavit setting forth the payment history of the obligor under the judgment or order, together with a statement which details the computation of the interest claimed to be due and owing.... It shall not be the responsibility of the circuit clerk to compute the interest due and owing. The payment history affidavit and statement of interest shall be entered in the case record by the circuit clerk. If the obligor disputes the payment history as sworn to by the obligee, or the interest claimed, the obligor may petition the court for a determination. The court shall hold a hearing and shall make such a determination prior to the return date of the execution, or if this is not possible, the court shall direct the sheriff to pay the proceeds of the execution into the court pending such determination. If the determination as made by the court is inconsistent with the payment history affidavit of the obligee, or the interest claimed, the amount of the execution shall be so amended.

During the course of the proceedings before the circuit court on McBee’s motion to determine child support arrearages, Morgan filed her affidavit of payment history and interest computation pursuant to Section 454.520.5. McBee disputed the payment history, as evidenced by the hearings before the circuit court. The circuit court also disagreed with Morgan’s account of the payment history and the interest claimed. Therefore, pursuant to Section 454.520.5, the circuit court should have amended the amount of the execution for interest on the delinquent child support. The circuit court not only did not do this, but it also awarded no interest.

Under Section 454.520, assessment of interest for unpaid child support is mandatory. Lueckenotte v. Lueckenotte, 34 S.W.3d 387, 396 (Mo. banc 2001). The circuit court has no discretion to refuse to award interest as directed by Section 454.520. Id. To collect delinquent interest on child support, a parent can either file a payment history affidavit and statement of interest or file a motion to construe and enforce the judgment. Bohac v. Akbani, 29 S.W.3d 407, 414 (Mo.App.2000). Morgan properly filed an affidavit. Because the circuit court determined that the payment history as alleged by Morgan was erroneous and determined that the amount of delinquent child support due and owing was $13,150, the circuit court should have amended the amount of the execution for interest on the delinquent child support. The circuit court, therefore, erred in failing to award Morgan interest, and we remand so that it can determine and award interest on the past due support.

In her final point, Morgan asserts that the circuit court erred in refusing her request for attorney fees. She contends that Section 452.355.2, RSMo 2000, and the parties’ separation agreement required the circuit court to award her attorney fees. We disagree.

Section 452.355.2 says:

In any proceeding in which the failure to pay child support pursuant to a temporary order or final judgment is an issue, if the court finds that the obligor has failed, without good cause, to comply with such order or decree to pay the child support, the court shall order the obligor, if requested and for good cause shown, to pay a reasonable amount for the cost of the suit to the obligee, including reasonable sums for legal services.

The circuit court did not find that McBee failed to pay child support without good cause, and Morgan did not show good cause for the award. The circuit court, therefore, was not required to award attorney fees to Morgan. Bomnberger v. Bonenberger, 108 S.W.3d 729, 736 (Mo.App. 2003).

Morgan also claims that the parties’ separation agreement mandates an award of attorney fees. At the time of their dissolution, Morgan and McBee entered into an agreement, which settled all but two issues: the amount of child support and visitation. The separation agreement said:

ENFORCEMENT OF THIS AGREEMENT: In the event either party to this agreement brings an action for failure to perform any of the obligations imposed by the agreement on him or her, or for the enforcement or clarification of this agreement, the prevailing party in such action shall have the right to recover from the other his or her attorney’s fees and litigation costs reasonably expended in prosecuting or defending the action.... No fees or costs authorized by this paragraph shall be recovered except as determined and awarded by the court in an action brought for enforcement, breach or clarification of this agreement.

The child support that Morgan is seeking to enforce is not a term set forth in the separation agreement. The child support issue was decided by the circuit court in its judgment of Decree of Dissolution of Marriage. Morgan, therefore, is seeking to enforce the judgment and not the separation agreement. Hence, the separation agreement’s enforcement provision is not applicable.

Moreover, the separation agreement’s enforcement provision merely gave a prevailing party the “right” to recover his or her attorney fees. It did not mandate that the circuit court award the prevailing party attorney’s fees. Indeed, the provision said that no fees could be recovered except as determined and awarded by the court. The circuit court determined in this case that the parties were to pay their own attorney fees.

We affirm the circuit court’s judgment ordering McBee to pay Morgan $13,150 for child support arrearages and denying Morgan’s request for attorney fees. Because, however, the circuit court erred in failing to award Morgan interest on the delinquent child support, we remand so the circuit court can determine and award interest on the past due support.

LISA WHITE HARDWICK, Presiding Judge, and PATRICIA A. BRECKENRIDGE, Judge, concur.

      . During 1998, Morgan signed the Notice of Income Withholding on September 14 and filed it with the circuit court on September 16. A notary notarized Morgan's affidavit on September 29, and Morgan filed the affidavit with the circuit court on the same day.

      . Morgan does not challenge the circuit court's determination of McBee’s child support arrearages since September 16, 1998.

      . McBee asserts that, because the interest amount claimed by Morgan in her affidavit was incorrect, Morgan either had to file a second affidavit computing the interest due on the judgment entered by the circuit court or file a motion to construe or enforce the judgment. Section 454.520.5 says, however, that the circuit court shall hold a hearing to determine the payment history and the amount of interest due if the obligor disputes the amount sworn to by the obligee. “If the determination as made by the court is inconsistent with the payment history affidavit of the obligee, or the interest claimed, the amount of the execution shall be so amended.” Section 454.520.5. This section does not require the obligee to file a second affidavit or to file a motion to construe and enforce the judgment.


author: LISA WHITE HARDWICK, Judge.

text:
    STATE of Missouri, Respondent, v. William T. MORRISON, Appellant.
    No. WD 64025.
    Missouri Court of Appeals, Western District.
    Sept. 6, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 1, 2005.

      William B. Gaddy, Kansas City, MO, for Appellant.
    Deborah Daniels, Jefferson City, MO, for Respondent.
    Before SMART, P.J., HOLLIGER and HARDWICK, JJ.
   LISA WHITE HARDWICK, Judge.

William Morrison challenges the sufficiency of the evidence to support his convictions for involuntary manslaughter, felony assault, and leaving the scene of an accident. He also contends the trial court plainly erred in accepting his waiver of a jury trial. We find no error and affirm the judgment.

Factual and PROCEDURAL History

Around midnight on August 8, 2001, William Morrison was driving eastbound on 23rd Street in Kansas City, Missouri. His vehicle was traveling at least seventy-two miles per hour in a zone with a posted speed limit of forty-five miles per hour. Morrison observed a Ford Explorer approximately a quarter mile to half a mile ahead of him, also heading eastbound. Morrison maintained his excessive speed until he was thirty-five feet directly behind the Ford Explorer. At that point, Morrison applied the brakes and his vehicle began to skid. His vehicle struck the rear of the Explorer, causing it to flip over and roll two to three times off the roadway. The driver and a passenger in the Explorer were injured. Another passenger, who was pinned underneath the Explorer, was pronounced dead at the scene.

Jacob Bliss witnessed the accident and stopped to provide assistance. Morrison was bleeding but told Bliss that he was okay. Bliss saw Morrison open the trunk of his vehicle to gather papers. Bliss also heard one of the occupants of the Explorer speak to Morrison about the accident, but Morrison did not otherwise approach the Explorer.

Anna Kankey drove by the scene and stopped when she saw Morrison, whom she knew from a recent relationship when they lived together. Kankey told Morrison she would take him to the hospital because he was bleeding. Morrison got in Kankey’s car but then refused to be taken to the hospital. Kankey drove to her home, where Morrison retrieved a truck he had left there at an earlier date. Morrison drove to another friend’s home, parked the truck in the garage, and left the home in a different car. Morrison checked into a motel and stayed the night.

In September 2001, on the advice of his attorney, Morrison turned himself in at the police station. He was charged with one count of involuntary manslaughter, two counts of second-degree felony assault, one count of leaving the scene of a motor vehicle accident, and one count of driving with a revoked license. After waiving his right to a jury trial, Morrison was convicted of involuntary manslaughter, third-degree assault, second-degree assault, and leaving the scene of a motor vehicle accident. The court sentenced him to seven years on Count I (involuntary manslaughter), one year on Count II (third-degree assault) concurrent to Count I, four years on Count III (second-degree assault) consecutive to Counts I and II, and four years on Count TV (leaving the scene of an accident) consecutive to Counts I, II, and III, for a total prison term of fifteen years.

Sufficiency of the Evidence

In Points I and II of his appeal, Morrison contends the evidence was insufficient to support his convictions for involuntary manslaughter, two counts of felony assault, and leaving the scene of an accident. Our review of these points is limited to a determination of whether there was sufficient evidence from which a reasonable trier of fact could have found Morrison guilty beyond a reasonable doubt. State v. Villaneuva, 147 S.W.3d 126, 128 (Mo.App.2004). We must accept as true all of the evidence and inferences favorable to the State and disregard all evidence and inferences to the contrary, giving great deference to the trier of fact. Id.

Morrison first argues the State failed to present any evidence of recklessness to support the convictions for involuntary manslaughter, third-degree assault, and second-degree assault. Citing State v. Herring, 502 S.W.2d, 405, 409 (Mo.App. 1973), he contends that his excessive speed alone was insufficient to prove reckless conduct for purposes of criminal liability.

Under Section 565.024.1 “[a] person commits the crime of involuntary manslaughter in the first degree if he ... recklessly causes the death of another person.” Second-degree assault occurs if a person “recklessly causes serious physical injury to another person.” Section 565.060.1. Third-degree assault occurs if a person “recklessly causes physical injury to another person.” Section 565.070.1. For purposes of criminal liability, 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.

Although driving at an excessive speed does not alone establish criminal recklessness, speed combined with other circumstances can satisfy this element of an offense. In Herring, 502 S.W.2d at 409-10, we held that speeding, coupled with requests by a passenger to slow down while driving through a congested business area with heavy traffic at sevei'al intersections, was sufficient evidence of the defendant’s “culpable negligence” or reckless conduct under the former manslaughter statute, Section 559.070, RSMo 1969.

Similarly, in State v. Mintner, 429 S.W.2d 762, 764 (Mo.1968), the defendant was guilty of manslaughter when he drove over eighty miles per hour through a heavily populated area, ignoring stop signals, and failed to keep his vehicle lights on. In State v. Harris, 748 S.W.2d 484, 485-86 (Mo.App.1987), a manslaughter conviction was supported by evidence that the defendant drove at an excessive speed, passed in improper passing zones, forced cars off the road, and had an alcohol odor on his breath. As illustrated by these cases, a finding of reckless conduct is justified by a combination of excessive speed and other factors that indicate a conscious disregard of a substantial risk likely to cause death or great bodily harm to another, such that a reasonable person would act differently under the same circumstances. Herring, 502 S.W.2d at 409.

In Morrison’s case, the State presented evidence of speed and additional factors to prove his conduct was reckless. A police officer, who was trained in accident reconstruction, testified that Morrison had been driving at least seventy-two miles per hour when the accident occurred in a forty-five mile per hour speed limit zone. By analyzing the physical damage to the vehicles and the skid marks on the road, the police officer was able to determine that Morrison made no effort to brake or swerve to avoid hitting the Explorer until he was within thirty-five feet of the vehicle. Morrison admitted that he had first noticed the Explorer when it was traveling a quarter to one-half mile (1,320 feet to 2,640 feet) ahead of him on the four-lane roadway.

Morrison displayed a conscious disregard for a substantial risk of injury or death by failing to take any evasive action until he was within four to six car lengths of the Explorer, when it was too late to prevent a collision at his excessive speed. After first noticing the Explorer, he had at least 1,320 feet of roadway to slow down, sound his horn, or switch lanes, as a reasonable person would have done under the circumstances. The State proved beyond a reasonable doubt that the accident resulted from the dangerous mixture of Morrison’s speed and irresponsible conduct in following too closely behind the Explorer. The evidence was sufficient to support the trial court’s finding that Morrison acted recklessly in causing death and injury to the occupants of the Explorer. Point I is denied.

In his second point, on appeal, Morrison contends the trial court erred in convicting him of leaving the scene of an accident under Section 577.060. Morrison argues he was lawfully excused from complying with the law because he was “injured, bleeding, and distraught after the accident” and he agreed to leave the scene to go to the hospital with his friend, Anna Kankey. In light of this defense, he asserts the State’s evidence was insufficient to prove a violation of the statute beyond a reasonable doubt.

Section 577.060 provides in relevant part:

A person commits the crime of leaving the scene of a motor vehicle accident when being the operator or driver of a vehicle on the highway ... and knowing that an injury has been caused to a person or damage has been caused to property, due to his culpability or to accident, he leaves the place of the injury, damage or accident without stopping and giving his name, residence, including city and street number, motor vehicle number and driver’s license number, if any, to the injured party or to a police officer, or if no police officer is in the vicinity, then to the nearest police station or judicial officer.

If a vehicle accident involves personal injury or property damage, this statute requires the driver of the vehicle to take affirmative steps to identify himself. The driver can either remain at the accident scene to provide the identifying information or report to the nearest police station. Failure to comply with the statute may be legally excused upon a showing that the driver left the accident scene based on a reasonable “apprehension of danger.” State v. Urhahn, 621 S.W.2d 928, 934 (Mo.App.1981).

Morrison asserts the evidence at trial showed he left the accident scene because he feared his medical condition presented a danger to himself. When he determined his injuries were not serious, Morrison contends he contacted his attorney. He followed the advice of his attorney in deciding not to return to the accident scene. Morrison argues he was excused from remaining at the scene due to his own injuries and that he subsequently “attempt[ed] to discharge his duty of providing information” by promptly contacting his attorney.

Despite Morrison’s claim of lawful excuse, the evidence was sufficient to support the trial court’s finding that he was guilty of violating Section 577.060. Morrison acknowledged he was the driver of the vehicle that ran into the rear of the Explorer. The accident caused the Explorer to rollover two or three times, during which one of the occupants was ejected and then pinned under the vehicle. Based on the nature and seriousness of the accident, Morrison was certainly aware of the property damage and that one or more occupants of the Explorer had been injured. A witness testified that one of the injured occupants spoke to Morrison, but Morrison did not approach the Explorer. Instead, Morrison opened his trunk to retrieve papers and decided to leave with Kankey before an ambulance or police arrived on the scene. Morrison demonstrated little concern about his own injuries, as he told a witness at the scene that he was okay and also refused to go to the hospital once he got into the car with Kankey. He left the accident scene without identifying himself and did not report to the police station until several weeks later.

On appeal, we must view this evidence in a light most favorable to the State and give deference to the trial court’s credibility determinations. Villaneuva, 147 S.W.3d at 128; State v. Dennis, 153 S.W.3d 910, 922 (Mo.App.2005). The trial court was not required to believe Morrison’s contention that he fled the accident scene in fear of his personal injuries or that he attempted to report the accident by contacting his attorney. Dennis, 153 S.W.3d at 922. The court reasonably determined that Morrison did not present a viable defense. The State’s evidence was sufficient to prove beyond a reasonable doubt that Morrison left the scene of a motor vehicle accident without reporting his identity to the injured parties or the nearest police station. Point II is denied.

Waiver of Jury Trial

In Point III, Morrison contends the trial court erred in accepting his jury trial waiver because “the waiver was not knowingly, voluntarily and intelligently made and was the product of coercion or duress.” Because Morrison failed to preserve this claim for appeal, he seeks plain error review.

Under Rule 30.20, we have discretion to review for plain errors that affected the defendant’s substantial rights and resulted in a manifest injustice or miscarriage of justice. Plain error is evident, obvious and clear. State v. Banks, 135 S.W.3d 497, 501 (Mo.App.2004). Review should not be granted unless error is facially established. State v. Stallings, 158 S.W.3d 310, 315 (Mo.App.2005). The appellant has the burden of proving plain error. State v. Mitchell, 145 S.W.3d 21, 22 (Mo.App.2004).

Morrison asserts that he decided to waive his right to a jury trial due to the trial court’s adverse ruling on his motion in limine. In the pretrial motion, Morrison requested the court to exclude evidence regarding a racially inflammatory statement he allegedly made about one of the accident victims. The trial court denied the motion. At trial, Charles Kunkel, Morrison’s former supervisor, testified that he had a conversation with Morrison several days after the accident. Morrison told Kunkel that he had been involved in a fatal accident and then said, “Oh, it’s no big deal. It was just a fucking nigger.”

At the close of evidence, the court announced its intention to disregard the racial comment because it was more prejudicial than probative. The court stated: “I don’t think anything [Morrison] may or may not have said, as painful as it is for the family of the victims, I honestly do not think, other than, if he said it, to put him at the scene of the accident — although I’ll tell you, I don’t think the State needed that, as it turned out. I don’t think that statement proves anything, if he made it, so I’m disregarding it.”

On appeal, Morrison argues the trial court ultimately decided the racial comment should not have been admitted. He therefore contends the adverse ruling on his motion in limine was improper and “coerced” his decision to waive his right to a jury trial.

A defendant can waive his constitutional right to trial by jury provided the waiver is voluntarily, knowingly and intelligently made. State v. Sharp, 533 S.W.2d 601, 605 (Mo. banc 1976). In felony cases, the waiver must be made in open court and must be apparent from the record with unmistakable clarity. Mitchell, 145 S.W.3d at 23; Rule 27.01(b).

The record reveals Morrison made a statement in open court that he understood he had a right to a jury trial and he was waiving that right. Although he contends the waiver resulted from the denial of his motion in limine, we note the court’s pretrial ruling was preliminary and subject to change during the course trial. See State v. Purlee, 839 S.W.2d 584, 592 (Mo. banc 1992). Given the interlocutory nature of the ruling, Morrison had no reasonable grounds to rely upon it as a firm decision in determining whether to waive his right to a jury trial. The trial court did nothing to mislead or compel Morrison to take any action. Morrison may have considered the possibility that a judge might be less influenced by the racial comment than a jury, but that does not prove he was coerced by the court’s pretrial refusal to exclude the evidence. Regardless of whether the evidence was admissible, Morrison was given a full and fair opportunity to decide whether he wanted his case heard by a judge or jury. We find no indication in the record that the non-binding evidentiary ruling had any effect on the voluntariness of the waiver.

Morrison is not entitled to plain error review, as he failed to establish any facial error in the trial court’s acceptance of his jury trial waiver. Point III is denied.

All concur.

      . All statutory references are to of Missouri Revised Statutes (2000), unless otherwise noted.

      . Section 559.070 (1969) is the predecessor statute for involuntary manslaughter under Section 565.024 (2000). The predecessor statute required a showing of "culpable negligence,” which was defined as the "reckless or utter disregard for human life.” Herring, 502 S.W.2d at 409 (citation omitted).


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Leonard L. ROSENBOOM, Appellant.
    No. ED 84865.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 6, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 11, 2005.
    Application for Transfer Denied Nov. 22, 2005.
    Michael A. Gross, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Attorney General, Jefferson City, MO, for respondent.
    Before NANNETTE A. BAKER, P.J. and ROBERT G. DOWD, JR. and SHERRI B. SULLIVAN, JJ.
   ORDER

PER CURIAM.

Leonard Rosenboom (Defendant) appeals from the judgment upon his convictions of one count of assault in the first degree, Section 565.050, RSMo 2000, one count of assault in the third degree, Section 565.070, RSMo 2000, two counts of forcible rape, Section 566.030, RSMo 2000, and one count of kidnapping, Section 565.110, RSMo 2000. Defendant was sentenced, as a prior offender, to consecutive sentences of life imprisonment on the first-degree assault count, life imprisonment on each of the two rape counts, and fifteen years’ imprisonment on the kidnapping count. Defendant was sentenced to one-year in the county jail on the third-degree assault count, to run concurrent to the consecutive sentences. Defendant contends the trial court abused its discretion in (1) denying his motion for continuance to enable the substitution of private counsel for the public defender, (2) denying Defendant’s motion for declaration of a mistrial after several jurors saw him escorted from the courthouse in shackles, and (3) denying Defendant’s motion for a mistrial based on the State’s failure to produce a medical witness’s notes until after her testimony was completed. Defendant also argues the trial court plainly erred when it failed to admonish the prosecutor and instruct the jury to disregard the prosecutor’s disparagement of defense counsel during summation.

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).