text:
    Gary TAGUE, Appellant, v. MISSOURI PRIVATE SECTOR INDIVIDUAL SELF-INSURERS GUARANTY CORPORATION, Respondent.
    No. WD 65777.
    Missouri Court of Appeals, Western District.
    March 21, 2006.

      Jacqueline D. Ross, St. Joseph, MO, for Appellant.
    Leland H. Corley, Kansas City, MO, for Respondent.
    Before JAMES M. SMART, P.J., ROBERT G. ULRICH and LISA WHITE HARDWICK, JJ.
   ROBERT G. ULRICH, Judge.

Gary Tague appeals the judgment granting the Missouri Private Sector Individual Self-Insurers Guaranty Corporation’s (Guaranty Corporation) Motion to Dismiss. The court dismissed with prejudice Mr. Tague’s action to enforce a settlement agreement between him and Guaranty Corporation for lack of subject matter jurisdiction. In his sole point on appeal, Mr. Tague argues that an action to enforce a settlement agreement is separate from the underlying workers’ compensation claim and that the circuit court does have subject matter jurisdiction. Even if everything Mr. Tague alleges as fact regarding the settlement agreement were true, which is not determined, Guaranty Corporation lacked the legal ability to contract with Mr. Tague to settle his workers’ compensation claim outside the workers’ compensation statutory scheme; any such agreement between Mr. Tague and Guaranty Corporation is, therefore, void; and the trial court’s judgment granting the motion to dismiss is affirmed.

Facts

Wire Rope Corporation of America, Inc. (Wire Rope) filed its petition for relief under Chapter 11 of the Bankruptcy Code on May 15, 2002. Before filing for bankruptcy, Wire Rope was self-insured for its workers’ compensation obligations. It had deposited $810,000.00 of collateral proceeds with Guaranty Corporation pursuant to Missouri Law. § 287.860 et seq. Effective May 12, 2003, Wire Rope obtained private insurance to cover its workers’ compensations obligations and thereby ceased its existence as a self-insured entity. On June 24, 2003, the bankruptcy court confirmed Wire Rope’s plan of liquidation and approved the sale of substantially all of Wire Rope’s assets to KPS Special Solutions Funds II, L.P. and its nominee Blue Wire Acquisition Corp. (collectively Blue Wire). Blue Wire agreed to pay $605,000.00 to Guaranty Corporation to administer post-petition workers’ compensation claims arising in Wire Rope’s self-insured period (the period between May 15, 2002, the date Wire Rope filed bankruptcy, and May 12, 2003, the date Wire Rope obtained private insurance) in compliance with the bankruptcy court’s June 23, 2004, order. In return, Guaranty Corporation agreed not to hold Blue Wire responsible for any of Wire Rope’s pre-petition, self-insured workers’ compensation obligations.

Under Missouri’s statutory scheme creating and governing the activities of Guaranty Corporation, the Guaranty Corporation is a not-for-profit corporation, and its purpose is “to compensate workers entitled to receive workers’ compensation benefits from a Missouri self-insurer that is unable to meet its workers’ compensation benefit obligations.” §§ 287.860.1, 287.865.2. The members of Guaranty Corporation are employers that are self-insured for purposes of workers’ compensation. § 287.860.1. The general purpose of Guaranty Corporation is to “take the necessary actions to protect against the insolvency of a member of the corporation.” § 287.870.2. As part of its operation, Guaranty Corporation manages an “Insolvency Fund.” § 287.867. The purpose of Guaranty Corporation’s insolvency fund is to meet “the obligations of insolvent members incurred while members of the Guaranty Corporation and after the exhaustion of all assets.” § 287.867. Pursuant to the liquidation plan, approved by the bankruptcy court on June 24, 2003, all of Wire Rope’s assets have been exhausted. Guaranty Corporation has the statutorily granted authority to “[njegotiate and become a party to such contracts and perform such other acts as are necessary or proper to effectuate the purpose of sections 287.860 to 287.885.” § 287.865.6(5).

On September 22, 2002, Gary Tague filed a Claim for Compensation with the Division of Workers Compensation (Division) alleging that “during the months of August or September 2001” he injured his back while employed by Wire Rope. On November 4, 2002, Wire Rope filed an answer to Mr. Tague’s claim for compensation with the Division. On August 18, 2003, Guaranty Corporation filed an amended answer with the Division on behalf of Wire Rope, which claims it was then administering. The amended answer disputed that Mr. Tague’s injury was work related and asserted that Mr. Tague failed to give proper and timely notice of his claim.

On January 13, 2005, Mr. Tague filed his Petition to Enforce Settlement in Buchanan County Circuit Court. The petition alleged the following. On February 13, 2003, Mr. Tague’s attorneys faxed a settlement demand to Kip Kubin, the attorney for the insurer, Helmsman Management Services, Inc., making a demand for settlement of the workers’ compensation claim in the amount of $91,265.10. On August 18, 2003, Jeffrey Deane, with the law offices of Foland, Wickens, Eisfelder, Roper & Hofer, P.C., entered his appearance on behalf of Wire Rope, Guaranty Corporation, and Corporate Claims Management Services. The February 13, 2003, settlement demand was faxed by Mr. Tague’s attorney to Mr. Deane on October 21, 2003. On June 14, 2004, a settlement of Mr. Tague’s workers’ compensation claim was reached in the amount of $13,175.00. Shortly thereafter, the attorney for insured, Sean Dumm, requested claimant to settle this “outside workers’ compensation” for- the same amount. He forwarded an Agreement and Release to Mr. Tague’s attorney. In consideration of settling the claim outside the workers’ compensation system, Mr. Tague agreed to stipulate to a dismissal of his workers’ compensation claim with prejudice and to cancel the final workers’ compensation hearing scheduled for June 15, 2004. On August 16, 2004, Mr. Tague received a letter from Sean Dumm representing that the settlement amount had been set aside for the purpose of settling Mr. Tague’s claim. On August 23, 2004, Mr. Tague filed the dismissal of his workers’ compensation claim agreed upon by all parties. After repeated requests by Mr. Tague for payment of the settlement, J. Sean Dumm, attorney for insurer, contacted Mr. Tague’s attorney and “withdrew” the negotiated settlement offer. Mr. Tague’s petition to enforce the settlement prayed for enforcement of the $13,175.00 settlement agreement, costs, attorney fees, and interest.

Mr. Tague filed a Motion for Order of Default on March 21, 2005, and alleged that a default had occurred because Guaranty Corporation failed to respond to the petition. On March 31, 2005, Guaranty Corporation filed Suggestions in Opposition to Motion for Order of Default and alleged that Guaranty Corporation had appeared through counsel at the February 16, 2006, docket call and that, pursuant to section 517.031.2, a responsive pleading need not be filed in a Chapter 517 case.

Guaranty Corporation filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction on April 8, 2005. It alleged that Mr. Tague’s workers’ compensation claim had not been dismissed, as the Administrative Law Judge (ALJ) presiding over the claim did not sign the Order to Dismiss with Prejudice. In support of the allegation that the workers’ compensation claim was still pending, Guaranty Corporation cited the following: on October 12, 2004, Mr. Tague’s counsel sent a letter to the ALJ stating he was through with discovery and asking the ALJ to docket the case for a trial setting; on December 2, 2004, the Division sent a Notice of Pre-Hearing to the parties informing them that a pre-hearing conference would be held on January 5, 2005; and on February 16, 2005, Mr. Tague requested mileage reimbursement in connection with his vocational evaluation in the workers’ compensation cases. Guaranty Corporation denied that it ever agreed to settle the claim and argued that the Buchanan County Circuit Court did not have subject matter jurisdiction to enforce the claimed settlement agreement because Mr. Tague’s exclusive remedy was in the workers’ compensation system. It further alleged that the parties could not confer subject matter jurisdiction upon the circuit court by agreeing to settle the claim “outside workers’ compensation.”

Mr. Tague filed Plaintiffs Response to Defendant’s Motion to Dismiss on April 29, 2005. Mr. Tague alleged that he “complied with his end of the bargain,” the settlement agreement, by filing the motion to dismiss the workers’ compensation claim with prejudice and that the ALJ did not sign the dismissal at Guaranty Corporation’s request. He further alleged that the settlement agreement met all the essential elements for a contract and that a motion to enforce a contract is a separate action over which the circuit court has jurisdiction.

On May 17, 2005, Guaranty Corporation filed Defendant’s Reply to Plaintiffs response to Defendant’s Motion to Dismiss for Lack of Subject Matter Jurisdiction. Guaranty Corporation alleged that it was not an insurance company, its insolvency funds can be used solely to compensate persons entitled to receive workers’ compensation benefits from a Missouri self-insurer that is unable to meet its workers’ compensation benefits, Mr. Tague does not allege that the settlement was approved by the ALJ, and the workers’ compensation case is still pending. It further alleged that Mr. Tague’s exclusive remedy was in the workers’ compensation system.

A hearing was held on the motion to dismiss on May 24, 2005 and the court granted the motion and dismissed the matter with prejudice. On July 21, 2005, judgment was entered and Mr. Tague filed a timely notice of appeal.

Standard of Review

A motion to dismiss for lack of subject-matter jurisdiction should be granted whenever it appears, by a preponderance of the evidence that the trial court is without jurisdiction. Dorris v. Missouri Substance Abuse Counselors’ Certification Bd., Inc., 10 S.W.3d 557, 559 (Mo.App. W.D.1999). “The decision to dismiss for lack of subject matter jurisdiction is within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of that discretion.” Id.

Analysis

Mr. Tague argues that the trial court has subject matter jurisdiction over his petition to enforce the settlement agreement. He asserts that all of the essential elements for a contract were alleged and that the settlement contract suspends the original claim, which was settled. Mr. Tague argues he was in essence requesting a declaratory judgment from the court regarding the settlement agreement. He relies upon Vulgamott v. Perry, 154 S.W.3d 382 (Mo.App. W.D.2004), for his contention that the workers’ compensation system does not have exclusive jurisdiction over this matter. In Vulgamott, employee was injured in accident involving motor vehicle driven by a co-employee, and he brought an action against the co-employee and co-employee’s liability insurer to enforce a settlement agreement. The circuit granted defendants’ motions to dismiss, and employee appealed. This court determined that the trial court had jurisdiction to enforce the settlement agreement even if exclusivity provisions of the Workers’ Compensation Act barred suit for the underlying negligence action in circuit court.

Guaranty Corporation’s response is mul-ti-fold. First, it argues that any settlement of workers’ compensation claims must be approved by an ALJ, and this alleged settlement was not approved by an ALJ. Second, it argues that parties may not avoid the exclusivity of the workers’ compensation system over workers’ compensation claims and confer subject matter jurisdiction upon a circuit court by agreeing to settle “outside workers’ compensation.” Third, it argues that the agreement Mr. Tague asserts was reached, by its terms, settles the claim within the workers’ compensation system. Fourth, it argues that it is without the statutory authority to enter into a settlement of the type Mr. Tague alleges was reached. Fifth, it argues that Vulgamott is distinguishable and inapplicable to this matter. Finally, it argues that the workers’ compensation claim is still pending and has not been dismissed.

Guaranty Corporation’s assertion that it is without the statutory authority to enter into a settlement of the type Mr. Tague alleges is dispositive. Wire Rope, as a self-insurer for purposes of workers’ compensation, was a member of Guaranty Corporation. Guaranty Corporation’s purpose is “to compensate workers entitled to receive workers’ compensation benefits from a Missouri self-insurer which is unable to meet its workers’ compensation benefit obligations.” § 287.865.2. When Wire Rope filed bankruptcy, Guaranty Corporation became obligated to fulfill Wire Rope’s workers’ compensation obligations. This includes any obligation that may be owing to Mr. Tague for his workers’ compensation claim. To carry out its statutory goal, Guaranty Corporation maintains an insolvency fund. The purpose of Guaranty Corporation’s insolvency fund is to meet “the obligations of insolvent members incurred while members of the Guaranty Corporation and after the exhaustion of all assets.” § 287.867. As set forth in the statute: “All moneys in the insolvency fund ... shall be used solely to compensate persons entitled to receive workers’ compensation benefits from a Missouri self-insurer which is unable to meet its workers’ compensation benefit obligations and to defray the expenses of the fund.” § 287.865.2 (emphasis added). The statutory scheme further provides: “All moneys, property and other assets received, owned or otherwise held by the corporation shall be held in such a way as to safeguard the corporation’s ability to assure that the purpose and objectives of the corporation shall be advanced and that moneys needed to pay claims to employees of an individual insolvent self-insurer in the private sector shall be preserved.” § 287.865.11.

Assuming, without deciding, that every fact Mr. Tague asserts is true and Guaranty Corporation entered into a contract with Mr. Tague to settle his claim “outside workers’ compensation,” Guaranty Corporation lacked the legal capacity to enter into such agreement, and the agreement is void. Guaranty Corporation is a creature of the legislature and has only the authority granted by statute. Riverside-Quindro Bend Levee Dist., Platte County, Missouri v. Missouri American Water Co., 117 S.W.3d 140, 151 (Mo.App. W.D.2003). Guaranty Corporation was created to function within the workers’ compensation system. It has the statutorily granted authority to “[n]egotiate and become a party to such contracts and perform such other acts as are necessary or proper to effectuate the purpose of sections 287.860 to 287.885.” § 287.865.6(5). Thus, it has the authority to enter into contracts to settle claims within the workers’ compensation system.

When interpreting statutes, appellate courts “are to ascertain the intent of the legislature by giving the language used its plain and ordinary meaning.” Care and Treatment of Morgan v. State, 176 S.W.3d 200, 206 (Mo.App. W.D.2005). Where, as here, the legislative intent is clear from the language employed in the statute, an appellate court is without authority to read into the statute a contrary intent. Id. The sections set forth, supra, clearly delineate that, although Guaranty Corporation has authority to settle claims within the workers’ compensation system, the General Assembly did not grant it authority to enter into contracts to settle workers compensation claims “outside workers’ compensation.”

An employer may resolve workers’ compensation obligations in a couple of ways. The first way is by a hearing and an award issued by the ALJ. §§ 287.450, 287.460. The second way is that the claim is settled. § 287.390. If the claim is settled, it must be approved by the ALJ. § 287.390.1. If a self-insured employer files bankruptcy, Guaranty Corporation assumes the employer’s worker compensation obligations and ensures that the injured employee receives the workers’ compensation benefits to which he or she is entitled.

The essential elements of a contract are: (1) competency of the parties to contract; (2) proper subject matter; (3) legal consideration; (4) mutuality of agreement; and (5) mutuality of obligation. Arndt v. Beardsley, 102 S.W.3d 572, 575 (Mo.App. S.D.2003). Thus, to form a contract, a party to the proposed agreement must have the legal capacity to contract. Where no legal capacity to enter into a contract exists, no legally binding agreement can result. A valid contract cannot result unless both contracting parties are juristic entities at the time of its purported consummation. Rhodes Engineering Co., Inc. v. Public Water Supply Dist. No. 1 of Holt County, 128 S.W.3d 550, 561 (Mo. App. W.D.2004). Guaranty Corporation lacks legal authority to settle workers compensation claims outside the workers compensation statutory scheme because the legislature did not grant it authority to settle such claims outside the scheme. Thus, even if Guaranty Corporation agreed to settle Mr. Tague’s workers compensation claim outside the workers compensation system, the agreement is void and of no legal effect. Therefore, Mr. Tague’s reliance on Vulgamott is misplaced because, unlike the private parties in that case who had the legal capacity to contract with each other to settle a workers’ compensation issue outside the workers compensation statutory scheme, Guaranty Corporation lacks such authority.

Conclusion

Guaranty Corporation lacked the legal capacity to enter into a contract that purports to settle Mr. Tague’s workers’ compensation claim outside the workers’ compensation statutory scheme, and if Guaranty Corporation entered into such a contract with Mr. Tague, it is void and not legally binding. The trial court lacks authority to enforce a void contract. Thus, the trial court correctly dismissed Mr. Ta-gue’s petition. The judgment is affirmed.

All concur.

      . The Defendant/Respondent has been referred to as both "Missouri Private Sector Self-Insurer Guaranty Fund” and "Missouri Private Sector Self-Insurers Guaranty Corporation” in numerous filings throughout the pendency of this case. Defendant/Respondent’s correct name is “Missouri Private Sector Individual Self-Insurers Guaranty Corporation.” § 287.860.1.

      . Neither the record nor the parties’ briefs fully set forth the background facts of this case. Supplemental facts were obtained from two published bankruptcy opinions involving Wire Rope and Guaranty Corporation. In re Wire Rope Corporation of America, Incorporated, 300 B.R. 1 (Bankr.W.D.Mo.2003) and In re Wire Rope Corporation of America, Incorporated, 302 B.R. 646 (Bankr.W.D.Mo.2003) involve whether Guaranty Corporation was required to pay workers’ compensation claims that arose before Wire Rope’s Chapter 11 petition was filed if the employees did not properly and timely file a proof of claim in Wire Rope’s bankruptcy or otherwise preserve their rights as pre-petition claimants. The court held that Guaranty Corporation was required to pay pre-petition claims, that Wire Rope must amend its Schedule F to include all pre-petition injured workers as unsecured creditors, and that Guaranty Corporation must file a proof of claim on behalf of all of Wire Rope’s pre-petition workers’ compensation claimants. These are the only two published cases, state or federal, that appear to have involved the Guaranty Corporation or addressed in any way the statutory scheme by which the Guaranty Corporation was created and under which it operates.

      . The statutory scheme creating and governing Guaranty Corporation is found at section 287.860 et seq. The only other statutory reference to Guaranty Corporation is found at section 375.772.2(16), which states that, as used in sections 375.771 through 375.779, the term "self-insurer” does not include Guaranty Corporation. All citations to sections 287.860 et seq. are to RSMo 2000 with the exception of citations to section 287.865, which are to RSMo Cum.Supp.2005.

      . Mr. Tague repeatedly refers to Guaranty Corporation as an insurance company licensed to do business in the State of Missouri. This is not accurate, as Guaranty Company is a statutorily created not-for-profit corporation.

      . In re Wire Rope Corp. of America, Inc., 300 B.R. 1, 10 (Bankr.W.D.Mo.2003):
      Nevertheless, Mo.Rev.Stat. § 287.865.5 requires that the injured worker file a timely claim for payment in the bankruptcy estate, which amount is offset by the Guaranty Corporation. Because the Guaranty Corporation’s liability is coextensive with that of the Debtor, the Guaranty Corporation, is like an excess insurer who is only liable to the extent the Debtor cannot pay. Logically, to help defray the burden assumed by the Guaranty Corporation, an injured worker is required to "make a timely claim for payment” — i.e., become an unsecured creditor of the estate in the hopes of receiving a distribution from the sale of assets, which amount is subtracted from the Guaranty Corporation’s future compensation obligation. Although the pre-petition workers in this case had their claims allowed by the Debtor and its third-party administrator, those claims were not included in the list of unsecured creditors of the Debtor’s estate and are not entitled to a distribution resulting from the sale of the Debtor’s assets. Thus, under the plain language of the Missouri statute, when an injured worker fails to make a timely claim for payment, there is no "incident giving rise to claims for compensation” for which the Guaranty Corporation is obligated to pay.

      . The dispute concerning whether Mr. Tague gave proper and timely notice was resolved by the two bankruptcy cases discussed, supra.

      . Mr. Tague asserts in his brief that this "document is never necessary to settle a workers’ compensation case; a form stipulation for compromise settlement is used.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Plaintiff/Respondent, v. Tony JOHNSON, Defendant/Appellant.
    No. ED 85823.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 21, 2006.
    Deborah Daniels, Jayne T. Woods, Assistant Attorney General, Jefferson City, MO, for respondent.
    S. Kristina Starke, Assistant Public Defender, St. Louis, MO, for appellant.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J„ and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Defendant appeals from the judgment entered on a jury verdict finding him guilty of statutory rape in the first degree, in violation of section 566.032 RSMo (2000), and statutory sodomy in the first degree, in violation of section 566.062 RSMo (2000). The trial court found defendant to be a persistent offender, and sentenced him to life imprisonment on the statutory rape count and thirty years imprisonment on the statutory sodomy count, to be served consecutively.

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 is affirmed in accordance with Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Curtis E. ROBINSON, Appellant.
    No. ED 86153.
    Missouri Court of Appeals, Eastern District, Division One.
    March 21, 2006.
    Kent Denzel, Assistant Public Defender, Columbia, MO, for appellant.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Victor J. Melenbrink, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before MARY K. HOFF, P.J. and CLIFFORD H. AHRENS, J. and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Curtis E. Robinson (Defendant) appeals from the trial court’s judgment and sentence imposed (judgment) after a jury found him guilty of first-degree robbery, in violation of Section 569.020. The trial court sentenced Defendant as a prior offender, pursuant to Section 558.016, to twenty-five years in the Missouri Department of Corrections.

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would serve no jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 30.25(b).

      . All subsequent statutory references are to RSMo 2000, unless otherwise noted.


text:
    Randall L. ARCH, Respondent, v. DIRECTOR OF REVENUE, State of Missouri, Appellant.
    No. ED 86075.
    Missouri Court of Appeals, Eastern District, Division One.
    March 21, 2006.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, MO, for appellant.
    Melissa A. Faurot, Columbia, MO, for respondent.
    Before MARY K. HOFF, P.J., CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN, J.
   PER CURIAM.

The Director of Revenue, State of Missouri (“Director”) appeals the judgment of the circuit court reinstating the driving privileges of Randall L. Arch (“Arch”). Director argues that the court erred in reinstating Arch’s driving privileges because there was sufficient evidence to establish that Arch was arrested and that the arresting officer had reasonable grounds to believe Arch was driving while intoxicated. We reverse and remand.

Arch received notice that his license was to be revoked for refusal to submit to a chemical test, pursuant to section 577.041 RSMo (Cum.Supp.2004). Arch filed a petition for review of the revocation. The cause was called, and the parties stipulate that the matter was submitted to the trial court on the arrest report completed at the time of Arch’s refusal. The court entered a judgment and order, finding that Arch was not “lawfully” arrested, and the arresting officer did not have reasonable grounds to believe Arch was driving while intoxicated. The court ordered reinstatement of Arch’s driving privileges. Director now appeals.

We will affirm the judgment of the trial court unless is it against the weight of the evidence, it is not supported by the evidence, or it erroneously applies or declares the law. Newsham v. Director of Revenue, 142 S.W.3d 207, 208 (Mo.App.2004) (citation omitted).

In its sole point on appeal, Director claims the trial court erred in reinstating Arch’s driving privileges because the evidence showed that Arch was arrested and that the arresting officer had reasonable grounds to believe Arch was driving while intoxicated.

Pursuant to section 577.041, when an individual refuses to submit to a breath test, his or her license shall be revoked. The statute provides that such an individual may request review of the revocation. The trial court reviewing the revocation of a driver’s license considers only whether the individual was arrested, whether the arresting officer had reasonable grounds to believe the individual was driving while intoxicated, and whether the individual refused to submit to a breath test. News-ham, 142 S.W.3d at 209. If the court determines any of these issues not to be in the affirmative, the individual’s driving privileges shall be reinstated. Id.; (citing section 577.041.5).

The trial court in the present case specifically found that Arch did refuse the chemical breath test. However, the court based its reinstatement of Arch’s driving privileges on the other elements required for revocation.

First, the court found that Arch was not “lawfully” arrested. Arch concedes that the lawfulness of his arrest is not relevant to the inquiry because this is a civil case and the “exclusionary rule” does not apply. Pursuant to section 577.041, the trial court must only determine whether Arch was arrested. The statute does not require a showing that the arrest made was lawful. Garriott, 130 S.W.3d at 616 n. 3. In his brief, Arch argues that the officer’s statement in the report shows that Arch was arrested and transported to the station, but the trial court held that Arch was not, in fact, legally arrested. Arch claims that the record on appeal is insufficient to indicate what evidence was presented to the trial court. However, as previously noted, an agreed statement to the record on appeal was subsequently filed. In this statement, both parties stipulate that the evidence considered by the trial court consisted of the arrest report contained in the record on appeal. Thus, Arch’s argument is moot.

The arrest report, which includes the alcohol influence report and a narrative report written by the arresting officer, clearly shows that Arch was arrested. The officer marked the reading of Miranda rights, which begins with the statement, “[b]ecause you are under arrest, I am informing you of your constitutional rights.” The report notes that the rights were given at the “station.” The implied consent portion of the report is filled in, including the section marked, “[f]or use in DWI arrest only.” Moreover, in the arresting officer’s narrative report, he states that Arch failed the field sobriety test and was “placed under arrest and transported to station,” where he was ultimately placed in the custody of Shelby County. As a result of the foregoing, it is clear from the evidence that Arch was arrested.

The trial court also found that the arresting officer did not have reasonable grounds to believe Arch was driving while intoxicated.

The terms “reasonable grounds” and “probable cause” are basically synonymous terms. Newsham, 142 S.W.3d at 209 (citation omitted). An officer has probable cause to arrest an individual for driving while intoxicated when he observes the illegal or unusual operation of a vehicle, and he observes indicia of intoxication when he comes in contact with the driver. Id.

Here, the officer’s narrative report indicates that he was contacted by the Shelby County Sheriffs office regarding a vehicle weaving in and out of traffic. The officer noted in his report that he subsequently observed the vehicle weaving in the traffic lane. The alcohol influence report contains a statement that the arresting officer observed Arch driving. The officer stated, in his narrative report, that he “noticed a strong odor of an apparent alcoholic beverage on [Arch’s] breath,” and he noted that Arch was swaying when he exited the vehicle. The alcohol influence report also reflects the officer’s observation that Arch had bloodshot eyes, slurred speech, and swaying balance or walking.

Additionally, Arch failed field sobriety tests. He displayed all six clues during the horizontal gaze nystagmus, and the officer noted that during the walk and turn test, Arch lost balance while turning or turned improperly and he took the incorrect number of steps. While field sobriety tests are not mandatory, the results of the tests can be used to aid an officer in conjunction with his other observations to determine whether he has probable cause to arrest an individual. Coyle v. Director of Revenue, 88 S.W.3d 887, 894 (Mo.App.2002) (citation omitted). As previously noted, in addition to Arch’s failure of the walk and turn test and the HGN test, the officer observed other indicia of intoxication.

These similar facts have been sufficient to support a finding of reasonable grounds to believe an individual was driving while intoxicated in previous cases. Norris v. Director of Revenue, 156 S.W.3d 786, 788 (Mo.App.2005) (driver’s swaying, poor balance, slow and slurred speech and strong odor of intoxicants on driver’s 'breath established reasonable grounds to believe the individual was driving while intoxicated); (citing See Rain v. Dir. of Revenue, 46 S.W.3d 584, 588-89 (Mo.App.2001) (finding that driver’s glassy and bloodshot eyes, unsteadiness on his feet, slurred speech, and difficulty concentrating were sufficient indicia of intoxication to provide reasonable grounds for the officer to believe that the driver was driving while intoxicated)); Coyle, 88 S.W.3d at 894 (poor performance on field sobriety tests, coupled with the officer’s observation of glassy, bloodshot eyes, dilated pupils, slurred speech, odor of alcohol on breath, and swaying constituted probable cause to believe individual was driving while intoxicated). '

As a result of the foregoing, there was sufficient evidence to establish probable cause to arrest Arch for driving while intoxicated. Thus, the trial court erred in ordering Arch’s driving privileges reinstated.

The judgment of the trial court is reversed and the cause is remanded with directions to enter a judgment reinstating the revocation of Arch’s driving privileges.

      . The parties have filed an agreed statement to the record on appeal, pursuant to Missouri Supreme Court Rule 81.13, which states that the parties "stipulate that the evidence considered by the court below consisted of the arrest report set forth ...” in the record on appeal.

      . The exclusionary rule requires that illegally obtained evidence cannot be used in a criminal proceeding against the victim of an unlawful search and seizure. Riche v. Director of Revenue, 987 S.W.2d 331, 332 (Mo. banc 1999) (citation omitted). Review of a revocation of driving privileges for refusal to take a chemical breath test is a civil proceeding. Sullins v. Director of Revenue, 893 S.W.2d 848, 850 (Mo.App.1995) (citation omitted). The exclusionary rule does not apply to such civil proceedings. Garriott v. Director of Revenue, 130 S.W.3d 613, 616 (Mo.App.2004).

      . In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court determined that a suspect taken into custody must be informed of his right to remain silent, and his right to an attorney.

      . The horizontal gaze nystagmus ("HGN”) test measures eye movement and scores one point for eye movement indicative of alcohol influence for three individual tests for each eye. State v. Rose, 86 S.W.3d 90, 96 (Mo.App.2002). The highest possible score on the test is six points, and a score of four points or more indicates that a suspect is intoxicated. Id.; (citing See Parrish v. Dir. of Revenue, 11 ,S.W.3d 652, 655 (Mo.App.1999)).


text:
    Kevin BOLDEN, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    Nos. ED 85912, ED 86087.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 21, 2006.
    Timothy Forneris, Assistant Public Defender, St. Louis, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Stephanie Morrell, Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Movant, Kevin Bolden, appeals from the judgment denying on the merits his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. 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).


text:
    Randy SHEAD, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85884.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 21, 2006.

      Kristina Starke, St. Louis, MO, for appellant.
    Deborah Daniels, Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Movant Randy Shead (“Shead”) appeals from the motion court’s judgment denying his Rule 29.15 post-conviction relief motion after an evidentiary hearing. On appeal, Shead argues the motion court erred in denying his claim: (1) of ineffective assistance of counsel because his counsel failed to call certain witnesses to testify at trial; and (2) that the trial court erred in sentencing him because the trial court was misinformed about the range of punishment for his convictions.

We have reviewed the briefs of the parties 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 prece-dential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order affirming the judgment pursuant to Rule 84.16(b).


text:
    Michael MAYO, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 85973.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 21, 2006.
    Richard P. Hereford, Clayton, MO, for appellant.
    Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Movant, Michael Mayo, appeals from the judgment denying on the merits his Rule 29.15 motion for post-conviction relief after an evidentiary hearing. 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).


text:
    STATE of Missouri, Respondent, v. Steven A. SREDL, Appellant.
    No. ED 86828.
    Missouri Court of Appeals, Eastern District, Division One.
    March 21, 2006.
    Steven A. Sredl, Tipton, pro se.
    Before MARY K HOFF, P.J., CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN.
   ORDER

PER CURIAM.

Steven A. Sredl (“defendant”) appeals the judgment of the trial court denying his motion for declaratory judgment to amend his punishment to conform to section 558.016 RSMo (Cum.Supp.2003). Defendant claims the court erred in denying his motion because the 2003 amendment to the statute requires a reduction in his sentences for the class D felonies of driving while intoxicated and resisting arrest.

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:
    Mary Alice MAININI, d/b/a Check Express, Plaintiff/Respondent, v. Craig MORRISON, Defendant/Appellant.
    No. ED 86163.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 21, 2006.
    Emily E. (Quandt) Kahn, Katharyn B. Davis, LLC, St. Louis, MO, for respondent.
    Jonathan E. Fortman, Law Office of Jonathan E. Fortman, LLC, St. Louis, MO, for appellant.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

This is an appeal from a judgment in plaintiffs favor on plaintiffs petition to recover damages for returned checks under section 570.123 RSMo (2000). The trial court’s judgment is supported by substantial evidence and is not against the weight of the evidence. No error of law appears. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

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 is affirmed in accordance with Rule 84.16(b).


author: KATHIANNE KNAUP CRANE, P.J.

text:
    Joseph DENNIS, Claimant/Respondent, v. H & K MACHINE SERVICE COMPANY, INC., Employer/Appellant, and Liberty Mutual Insurance Company, Insurer/Appellant.
    No. ED 85788.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 21, 2006.

      John D. Schneider, St. Louis, MO, for respondent.
    John F. Sander, Zenz & Rouse, St. Louis, MO, for appellant.
   KATHIANNE KNAUP CRANE, P.J.

In this workers’ compensation case, employer and insurer appeal from a temporary or partial award in claimant’s favor issued by the Labor and Industrial Relations Commission. We dismiss for lack of jurisdiction, and grant claimant’s motion for damages for frivolous appeal.

On November 25,1996, claimant, Joseph Dennis, injured his right hand while working for employer, H & K Machine Service Company, Inc. Claimant was attempting to change a spindle in an automatic screw machine when his hand was caught between the feedout return mechanism and the machine casting, pulling his right hand into the machine, nearly severing the hand. As a result of the injury, claimant had eight surgeries, ongoing pain, and loss of the hand’s normal function. Claimant reported the incident to the Division of Workers’ Compensation (the Division). In December 1998, claimant filed a claim for compensation with the Division. Over the next six years, this claim was litigated before an Administrative Law Judge (ALJ) and the Labor and Industrial Relations Commission (the Commission). It is unnecessary to set out this procedural history in this opinion.

On September 21, 2004, the ALJ entered an award that it denominated a Final Award. Three weeks later, claimant filed an application for review with the Commission pursuant to section 287.470 RSMo (2000) on the ground there had been a substantial change of condition since the entry of the award. In the application, claimant also moved to convert the ALJ’s Final Award to a temporary or partial award. On December 30, 2004, the Commission entered a Temporary Award Allowing Compensation (Modifying Award and Decision of the Administrative Law Judge). After finding that claimant’s medical problems were ongoing and that “the medical [was] not capable of resolution,” the Commission accepted and adopted the ALJ’s award “in all respects save for the determination that it is a final award,” and found that justice would be better served by the issuance of a temporary or partial award. The Commission ordered employer and insurer to provide medical aid and ordered the case to remain open for medical treatment.

Claimant then moved for clarification of the December 30, 2004 award. On January 18, 2005, the Commission entered an order clarifying its temporary award. In that order, the Commission recited:

The Commissioner hereby clarifies the Award of December 30, 2004, to indicate that the award of the Administrative Law Judge (ALJ) was amended and modified to indicate that the award of the ALJ, and of the Commission, is temporary or partial in nature and not a final award. This is so because the issues are not capable of final resolution or determination.
Further, the Commission corrects the Award of December 30, 2004, to indicate that the award- of the ALJ was reviewed under section 287.470 RSMo and that the Award of the Commission of December 30, 2004, was issued following a review under section 287.470 RSMo and should be properly captioned as not just a Temporary Award Allowing Compensation, but as a Temporary or Partial Award Allowing Compensation.

Employer and insurer appeal. They challenge the Commission’s December 30, 2004 award, as modified by the January 18, 2005 order clarifying that the award is a Temporary or Partial Award Allowing Compensation, because the Commission did not review the entire trial transcript from the eight-day hearing before the ALJ.

Claimant has filed a motion to dismiss on the ground that this court has no jurisdiction to review this appeal. He has also filed a motion for sanctions under Rule 84.19.

We have no appellate jurisdiction in'workers’ compensation cases except as expressly conferred by statute. Ming v. General Motors Corp., 130 S.W.3d 665, 667 (Mo.App.2004); Chapman v. Didion & Sons Foundry Co., 63 S.W.3d 305, 307 (Mo.App.2001); Korte v. Fry-Wagner Moving & Storage Co., 922 S.W.2d 395, 397 (Mo.App. E.D.1996). Section 287.495 RSMo (2000) only authorizes an appeal from a “final award of the commission.” Ming, 130 S.W.3d at 667; Chapman 63 S.W.3d at 306; Korte, 922 S.W.2d at 397. A “final award” is one that disposes of the entire controversy between the parties. Korte, 922 S.W.2d at 397. An order lacks finality if it remains tentative, provisional, contingent, or subject to recall, revision, or reconsideration by the issuing agency. Id. at 398.

Section 287.510 RSMo (2000) provides that a temporary or partial award may be made in any case. A temporary or partial award “may be modified from time to time to meet the needs of the case, and the same may be kept open until a final award can be made_” Section 287.510.

Generally, no appeal lies from a temporary or partial award because it is not a final award. Ming, 130 S.W.3d at 667; Fravel v. Guaranty Land Title, 934 S.W.2d 23, 25 (Mo.App.1996); Lewis v. Container Port Group, 872 S.W.2d 134, 136 (Mo.App.1994). The exceptions to this rule, that we may review a “temporary or partial” award when it is an award of permanent total disability pursuant to section 287.200.2 RSMo (2000), or when the issue on appeal is the employer’s liability and the employer claims it is not liable for paying any compensation, Korte, 922 S.W.2d at 398, are not applicable here. Because the Commission’s award is not a final award, we do not have jurisdiction of this appeal.

Claimant also moves for damages for frivolous appeal under Rule 84.19. Claimant filed his motion to dismiss the appeal before his brief was due, and his motion set out the reasons this appeal was not reviewable. An appeal is frivolous if it presents no justiciable question and is so readily recognizable as devoid of merit on the face of the record that there is little prospect that it can ever succeed. In re Marriage of Weinshenker, 177 S.W.3d 859, 864 (Mo.App.2005); Fravel, 934 S.W.2d at 24. It is beyond question that no appeal lies from the temporary or partial award in this case. See Muller v. St. Louis Housing Authority, 175 S.W.3d 191, 193-95 (Mo.App.2005); Bock v. Broadway Ford Truck Sales, Inc., 169 S.W.3d 143, 147-49 (Mo.App.2005); Bolden v. Schnucks Markets, Inc., 167 S.W.3d 226, 228-29 (Mo.App.2005); Jennings v. Crestside Heating & Cooling, 142 S.W.3d 843, 845-46 (Mo.App.2004); Sher v. McCarthy Bros., 135 S.W.3d 501, 503 (Mo.App.2004); Schwarzen v. Harrah’s St. Louis Riverport, 72 S.W.3d 223, 224-26 (Mo.App.2002); Sutton v. Vee-Jay Cement Contracting, 937 S.W.2d 334, 335-36 (Mo.App.1996); Korte, 922 S.W.2d at 397-98; Lewis, 872 S.W.2d at 136.

Rule 84.19 provides that if an appellate court shall determine that an appeal is frivolous it may award damages to the respondent as the court shall deem just and proper. Weinshenker, 177 S.W.3d at 864; Fravel, 934 S.W.2d at 25. The purpose of sanctions is two-fold: 1) to prevent congestion of appellate court dockets with cases devoid of merit, and 2) to compensate respondents for incurring expenses defending judgments against merit-less issues. Weinshenker, 177 S.W.3d at 864; Fravel, 934 S.W.2d at 25.

Claimant’s request for damages for frivolous appeal is granted. We award claimant $7,000 for attorney’s fees, representing the time claimant’s counsel incurred preparing the motion to dismiss, the brief, and the oral argument in this appeal.

LAWRENCE E. MOONEY, J. and BOOKER T. SHAW, J., concur.


text:
    James TEAGUE, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64546.
    Missouri Court of Appeals, Western District.
    March 21, 2006.
    Sarah W. Patel, Kansas City, MO, for appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for respondent.
    Before: LOWENSTEIN, P.J., ELLIS and NEWTON, JJ.
   ORDER

PER CURIAM.

James Teague pled guilty to felony nonsupport, Section 568.040, RSMo 2000. Teague appeals from the denial of his Rule 24.035 motion for post-conviction relief after an evidentiary hearing. Teague asserts that the trial court clearly erred in denying his motion because the failure of his plea counsel to investigate a possible defense constituted ineffective assistance of trial counsel. Affirmed. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Christopher Q. WEST, Appellant.
    No. ED 85910.
    Missouri Court of Appeals, Eastern District, Division One.
    March 21, 2006.
    Amy M. Bartholow, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Jefferson City, MO, for respondent.
    Before MARY K. HOFF, P.J., CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Christopher Q. West (“defendant”) appeals the judgment on his conviction of attempted first degree robbery, first degree assault, and armed criminal action. Defendant claims the trial court abused its discretion in overruling his motion for a continuance because of the State’s late disclosure of palm print evidence. Defendant also claims the trial court abused its discretion in overruling his motion to suppress identification and overruling his objection to a witness’s identification of him in a photo lineup. Finally, defendant claims the trial court erred in admitting into evidence certain testimony at trial.

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).


author: PER CURIAM. '

text:
    In re the ADOPTION OF T.J.D., J.W.G., S.D., and W.D.D., Minors, P.W.J. and P.G.J., Respondents, v. S.R.G., Appellant.
    No. 26828.
    Missouri Court of Appeals, Southern District, Division Two.
    March 23, 2006.

      Wendy E. Garrison, Twibell, Johnson, Johnson & . Garrison, Springfield, MO, for appellant.

      Jerry E. Holcomb, Collins, Webster and Rouse, P.C., Joplin, MO, for respondents.
    Before SHRUM, P.J., GARRISON and BARNEY, JJ.
   PER CURIAM. '

S.R.G. (“Grandfather”) filed a petition seeking to adopt four of his minor grandchildren. P.W.J. and P.G.J. (“Foster Parents”), a married couple who had provided foster care for the children, also filed a petition for adoption. The two cases were consolidated for trial. The juvenile division of the Jasper County circuit court (“Juvenile Court”) entered judgment favorable to Foster Parents, i.e., it decreed adoption of the four children by Foster Parents. Grandfather appeals. He urges reversal by claiming the judgment is against the weight of the evidence and was entered in violation of a local circuit court rule. We affirm.

STANDARD OF REVIEW

“As with any child custody proceeding, the paramount goal in an adoption proceeding is the best interests of the child.” In re C.D.G., 108 S.W.3d 669, 674[2] (Mo.App.2002). “As the central goal of the proceeding is to promote the best interests of the child, ‘a greater burden is imposed on the trial court than simply according all partiés a fair trial.’ ” Id. at 674[5] (quoting Matter of Williams, 672 S.W.2d 394, 395 (Mo.App.1984)).

In reviewing adoption cases, the well-known standards of Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976), govern. In re C.G.L., 63 S.W.3d 693, 696 (Mo.App.2002). “The judgment of the juvenile court must be upheld unless there is no evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.” Id. at 696[1].

'[4,5] In making this determination, we accept as true all evidence and inferences that are favorable to the Juvenile Court’s decision while disregarding all contrary evidence and inferences. In re Adoption of J—G—L—, Jr., 853 S.W.2d 433, 436[3] (Mo.App.1993). Moreover, we are “mindful that a trial court is free to believe or disbelieve all, part or none of the testimony of any witness.’’ Id.

FACTS

K.D. and S.G. are the birth parents of the four children involved in this suit. The children are as follows: (1) T.J.D., a son born March 15, 1998; (2) J.W.G., a son born December 18, 1999; (3) S.D., a daughter born September 23, 2001; and (4) W.D.D., a son born August 3, 2002. The Children’s Division of the Department of Social Services (“DSS”) first became involved with the family in February 2001.

At that time, DSS received a “call of concern” regarding the family (K.D., S.G., T.J.D., and J.W.G.) because the parents were involved in a domestic dispute. A DSS investigation revealed “the home to be littered with trash, dirty clothes, and no bedding for the one mattress the family slept on.” Later, on separate dates, two additional domestic disturbance calls involving K.D. and S.G. were received by the Joplin police department. The officer who responded to the April 23, 2001, call contacted DSS “due to the living conditions in the house,” namely: “There was food and trash all over the floor. The kitchen floor had some kind of slippery substance all over it. The toilet had a strong odor of urine and looked like it hadn’t been flushed in a while. [S.G.] said they hadn’t had running water for 4 days.”

On April 26, 2001, DSS again inspected the residence. It found the unsanitary conditions largely unchanged and drug paraphernalia in the parents’ room. The next day, the juvenile officer successfully petitioned the Juvenile Court for protective custody of T.J.D. and J.W.G. In May 2001, a case plan was adopted for reunification of the family with specific goals set for K.D. and S.G. such as maintaining suitable housing and demonstrating an ability to keep it “clean and safe,” addressing the domestic violence issues, drug counseling for K.D., and prenatal treatment for S.G. who was pregnant with S.D.

By August 2001, the couple still had not complied with DSS requirements. A drug screening was scheduled for K.D. and S.G. on August 23, 2001, but neither completed the test. In September 2001, a third child, S.D., was bom and immediately taken into protective custody.

A dispositional hearing was held in February 2002. The result was an order that left the children in DSS’s custody. At that time, DSS asked that visitation between the children and K.D. and S.G. cease until negative drug tests were returned by the parents. Both refused to comply with any testing.

Grandfather then wrote to the Juvenile Court on March 16, 2002, and asked that it consider granting him custody of the subject children. In June 2002, Grandfather (who had been living in Colorado) moved to the Joplin area. He made this move because he anticipated he could more quickly gain custody of his grandchildren if he lived in Missouri. Despite his asserted desire to have custody, Grandfather filed a motion with the Juvenile Court on June 25, 2002, in which he asked the court to reunite the children with K.D. and S.G. The court denied that request.

On the next day (June 26), S.G. tested positive for methamphetamine. At the time, she was pregnant with her fourth child. A July 18, 2002, report to the Juvenile Court by the juvenile officer contained information that showed K.D. and S.G. had no real interest in regaining custody of the children as they had failed to rectify any of the conditions which led to the children being placed in DSS custody. This situation did not improve as evidenced by the fact that K.D. was arrested for methamphetamine possession in September 2002.

S.G. gave birth to her fourth child, W.D.D., on August 31, 2002. At some point — an exact date is not fully disclosed by the record — K.D. and S.G. moved to Kansas to prevent removal of W.D.D. from their custody.

On April 22, 2003, DSS placed physical custody of the three older children with Grandfather. Later, in December 2003, S.G. left her youngest child (W.D.D.) with Grandfather because of her impending arrest in Kansas on drug and child endangerment charges. The December events are summed up in a DSS report:

“On December 30, 2003, a report was faxed to this office from Kansas SRS-This report states that [K.D.] was arrested on December 22, 2003. K.D. was found to be in a vehicle and was charged with possession of methamphetamine and ephedrine tablets. A drug raid was conducted at the residence of [K.D. and S.G.], following the raid, charges were filed against S.G. and K.D. for Child Endangerment, Possession of Marijuana, Drug Paraphernalia, Meth, Ephedrine, and Manufacturing a Controlled Substance. The police have taken video and photographs of the residence. The police report also states that the officer found the home to be ‘the filthiest home he’s ever seen.’ The home had garbage poured out everywhere, dirty diapers, rotten food everywhere, refrigerator full of rotten food and non-edible food. The house utilities are about to be shut off and the only source of heat was a portable space heater.”

Once the Juvenile Court learned W.D.D. was in Missouri, it assumed jurisdiction and ordered him into the custody of DSS. It then placed W.D.D. in Grandfather’s home. This occurred December 31, 2003.

Before the December events, Grandfather had filed a written request that the two oldest children be returned to K.D. and S.G. His asserted reason was that “they [had been] removed for the wrong reason.” According to a March 3, 2004, report by the DSS, this request was “heard in November 2003.” Whether the court ever ruled that motion is unclear. What is clear, however, is that the court never ordered the return of the children to their parents. Also, the March 3 report noted that despite S.G.’s and KD.’s history of drug usage and drug offense arrests (including the December 2003 incidents), Grandfather “did not believe the parents were involved with the meth lab and disagreed that [S.G.] was using drugs.” This document also revealed that when W.D.D. was placed with Grandfather on December 31, 2003, he (Grandfather) was told he should not allow any contact between the children and their parents. This was not a DSS decision. The Juvenile Court had ordered DSS to “cease visitation between children and natural parents.” However, Grandfather failed to heed DSS’s warning or obey the court’s order. Again referring to the March 3 report, the DSS worker asserted that although K.D. and S.G. had a string of arrests in January and February 2004 for drug offenses and other crimes, Grandfather continued to allow contact between the children and the parents. Because of this and other problems, the DSS workers concluded their March 3 report with a recommendation that the placement of the four children with Grandfather be terminated.

The record reflects that before DSS completed its March 3 written report, it had given the Juvenile Court an oral report to the same effect as the written report. Based on the oral report, the Juvenile Court had terminated its placement of the children with Grandfather by order dated March 1, 2004, and ordered them into foster care. The DSS then placed the children in the Foster Parents’ home.

The Juvenile Court terminated KD.’s and S.G.’s parental rights to all four children in October 2004. By that date, Grandfather and Foster Parents had filed competing petitions seeking to adopt the children. The adoption cases were consolidated and the adoption trial was held January 6, 2005, with the honorable Judge David C. Dally presiding. Evidence presented at the adoption trial revealed that the children thrived after reaching the Foster Parents’ home. For instance, T.J.D.’s teacher testified to positive changes she saw in T.J.D. once he was removed from Grandfather’s custody:

“Immediately he was more well groomed. He was clean, his hair was cut, he always had his glasses, they were clean. He wore pants that fit, he had his pants buttoned. After a while the Pull-ups stopped, he didn’t have any more accidents at school. And his general level of emotional stability seemed to level out. It wasn’t immediate; it was after a few weeks. He did not seem depressed to me anymore.”

There was also testimony that Grandfather provided little structure for the children. To illustrate, a DSS contractor described Grandfather’s visits with the children as “pretty chaotic the whole time.” Another observation was that Grandfather sometimes gave the children “direction” but never followed through with his commands. As an example, Grandfather consistently let T.J.D. and J.W.G. come and go from the room as they pleased.

On the other hand, there was evidence that the Foster Parents are a two-parent family who provided excellent structure for the children. On Sundays, the family attended church twice. During the week, sports activities provided the children with additional structure. Each day after school, the children had a specific schedule to do homework and were helped by the Foster Parents. The children either read or were read to on Monday through Thursday evenings. Each night when the children went to bed, the family followed a specific schedule and ritual.

At the conclusion of the hearing, the court took the matter under advisement. On January 12, 2005, a docket entry by Judge Dally recited that it would be in the best interests of the children to grant the adoption request of the Foster Parents. A “judgment and decree of adoption” was then entered on January 21, 2005.

In its judgment, the Juvenile Court found, inter alia, the following: (1) since March, strong emotional bonds had developed between the children and the Foster Parents; (2) the Foster Parents had a positive home and a positive track record as foster parents; (3) they were a two-parent family with extensive ties to the community, they were both gainfully employed, and they were active in church and sports with the children; (4) Grandfather did not have a positive home study or recommendation for consideration as a placement from DSS; and (5) Grandfather intended to continue to allow contact between the children and the birth parents.

The judgment, however, was not signed by Judge Dally. Pursuant to a local circuit court rule, Judge Jon Dermott signed the judgment “acting in the absence of Judge Dally.” This appeal by Grandfather followed.

Point I: Sufficiency of the Evidence

We reproduce Grandfather’s first point verbatim. We do so to show that it is difficult to discern what Grandfather claims as reversible error. His point relied on reads:

“The trial court erred in granting the foster parents’ petition for adoption and denying the Grandfather’s petition for adoption, because it is against the weight of the evidence in that the facts established it would have been in the best interest of the children for the appellant Grandfather to have had his petition for adoption granted.”

When we turn to the argument part of the brief for clarification, we find none. To explain, after providing the standard of review, the argument begins as follows:

“The trial court erred initially when it removed the children from the care of the grandfather in March, 2004, and then failed to return the children after the May 4, 2004, hearing. The action by the court was against the weight of the evidence, and his findings at the May, 2004, hearing were inconsistent with the testimony.”

For approximately the next five pages, the argument attempts to demonstrate why the initial removal from Grandfather’s custody was erroneous. Inexplicably, however, the argument makes no attempt to show how this alleged error related to the adoption judgment and the court’s finding that it was in the children’s best interests to be adopted by the Foster Parents.

We find Grandfather’s first point and argument preserves nothing for appellate review. First, the point itself is utterly deficient in that it is nothing more than a mere abstract conclusion of law. See In re Q.M.B., 85 S.W.3d 654, 660-61 (Mo.App.2002)(similarly styled point relied on). “An insufficient point on appeal preserves nothing for appellate review.” In re P.G.M., 149 S.W.3d 507, 512[6] (Mo.App.2004); Rule 84.13(a).

More troubling, though, is the fact that the argument section spends considerable time on an issue not raised in the point relied on. This violates Rule 84.04(e). “The only issues required to be determined on appeal are those raised in the points relied on.” Roberts v. Progressive Northwestern Ins. Co., 151 S.W.3d 891, 895[2] (Mo.App.2004). “Issues first raised in the argument portion of the brief are not preserved for review.” Id. at 895[3].

Because of these briefing deficiencies, this court would be justified in dismissing Grandfather’s first point. However, the futures of four children are at stake. Accordingly, we have reviewed the record ex gratia in an effort to address what we can best perceive are Grandfather’s complaints about the trial court’s decision.

As noted earlier, the primary goal for the Juvenile Court in adoption cases is deciding what is in the children’s best interests. C.D.G., 108 S.W.3d at 677[13]. Innumerable factors exist that color this determination; as such, the best interests analysis is very fact-intensive and may turn on very subtle factors. Id. ‘With the possible exception of a strong negative factor, no one factor is determinative of the issue.” Id.

Before addressing factors that negate Grandfather’s claims of reversible error, we note there is uncontradicted evidence that convinces us Grandfather deeply loves his grandchildren. Moreover, it is admirable that Grandfather wanted to provide the children with a good home. However, we are convinced he is incapable of doing so. This stems, in part, from his refusal to acknowledge that S.G. and K.D. had serious ongoing drug addictions that had led them into lives of crime and despicable and self-destructive lifestyles. Seemingly, Grandfather’s fixation on maintaining contact between the children and their birth parents blinded him to the fact that the children’s best interests were not served by that notion. The second problem is Grandfather’s lack of parenting skills.

Earlier, we recounted some of the history of how the children came into the custody of DSS. This included evidence that 5.G.’s and KD.’s continuous neglect of their children resulted from their need to satisfy their own personal, criminal desires. Overwhelming evidence exists to convince any unbiased person that S.G. and K.D. were not likely to change. Yet, as is often true in this type of situation, apparently hope sprang eternal in Grandfather that he could help his daughter S.G. and her consort KD. and, by doing so, ultimately reunite them with their children. For instance, he provided them with money while at least one of the children went to school unkempt with clothes that did not fit. He housed the children in a two-bedroom house while supporting K.D. and S.G., in part, by providing them a home in Kansas and later at a motel. Even though Grandfather’s continuous support for K.D.. and S.G. was a principal reason the children were taken from Grandfather in March 2004, he allowed the birth parents to move into his two-bedroom home in June 2004. This occurred during the pendency of his adoption effort and after he had been told that his allowing contact between the children and their parents was another reason why the children were ordered into foster care. These facts tend to show that Grandfather put the best interests of the children aside in his futile effort to help S.G. and K.D. This has been the staple of Grandfather’s intent from the beginning of his involvement in the case.

Given what the record shows, Grandfather should not have allowed contact between the birth parents and these children. Yet, the Juvenile Court found that was what Grandfather intended if he was allowed to adopt them. That conclusion is fully supported by this record. Thus, in February of 2004 (one month prior to the removal of the children from his custody), Grandfather voiced his intent that the parents would have continued contact because “the parents had done nothing to physically or emotionally damage the children.” Moreover, S.G. was present at the adoption trial. The trial court inferred she was there in support of Grandfather’s adoption request, which in turn showed that Grandfather still intended to allow birth-par-enVchildren contact. On this record, those were reasonable inferences. Such evidence demonstrated Grandfather’s continued failure to recognize the parents’ drug problem. It also demonstrated that his stated goal of continued contact between the children and parents outweighed his concern for the well-being of the children and he intended to allow contact with the parents regardless of the children’s best interests.

“In some cases [a] biological relationship weighs in favor of the child’s best interests. In others, that biological relationship could hinder or impair the child’s best interests.” C.D.G., 108 S.W.3d at 677. The latter is true here because “[cjoncern about future contacts by a biological parent is a factor that can be considered in denying a grandparent custody.” In re K.K.J., 984 S.W.2d 548, 553[5] (Mo.App.1999). In this case, the “future contact with biological parents” factor weighs heavily against Grandfather and favorably to the Foster Parents.

Another negative factor in Grandfather’s case is persuasive evidence that he lacked sufficient parenting skills to raise these children. His questionable parenting skills were recounted above and need not be' repeated except for this. Insistence on continued future “biological parent/children” contact shows poor parenting judgment. No parent with good parenting skills would allow or encourage continued contact with such destructive forces as K.D. and S.G. In sum, sufficient competent evidence exists to find that Grandfather could not provide the type of structure and stability that children need in their environments. The Foster Parents can. A good environment with stability and structure is utterly vital to development and a child’s best interests. Hunt v. Hunt, 65 S.W.3d 572, 575[1] n. 4 (Mo.App.2002); Seaman v. Seaman, 41 S.W.3d 889, 895 (Mo.App.2001); Newsom v. Newsom, 976 S.W.2d 33, 39[18] (Mo.App.1998).

Further discussion on why the Juvenile Court’s best interest finding is supported by sufficient competent evidence is unnecessary. We are persuaded the Foster Parents love the children and have provided them with a good, stable home where they are thriving. Any factors favorable to Grandfather’s adoption effort do not outweigh the factors favorable to adoption of the children by the Foster Parents. Grandfather’s lack of parenting skills and his intent to allow further contact with the biological parents are the two primary factors why the children’s best interests would not be served by allowing Grandfather’s request for adoption.

The judgment and decree of adoption is supported by substantial evidence, it is not against, the weight of the evidence, nor does it erroneously declare or apply the law. Point denied.

Point II: Alleged Failure to Follow Local Court Rule

As we did with Point I, we reproduce Grandfathers second point verbatim: “The trial court erred in the judgment being signed by a judge who did not preside at the hearing, because it erroneously applied the law in that it violated local rule 6.1.3 as the hearing was a contested matter.” Except for Grandfather’s quotation of local rule 6.1.3, his “argument” beneath this point is three brief paragraphs in length. There is no analysis, either in the point or the argument, of how Grandfather was prejudiced by the alleged failure to comply with the rule. Moreover, Grandfather never presented that complaint to the Juvenile Court.

As in Point I, Grandfather’s second point is merely an abstract statement of law. The argument portion is wholly inadequate as it provides virtually no analysis and no discussion of prejudice. These reasons justify denial of the point. But, more importantly, the issue has been waived by Grandfather. Failure to follow a procedural rule must be raised at the first opportunity; otherwise, the litigant waives such alleged error. Karolat v. Karolat, 151 S.W.3d 852, 859[16] (Mo.App.2004); State v. Williams, 46 S.W.3d 35, 39-40[4] (Mo.App.2001). Point denied.

The judgment of the Juvenile Court is affirmed.

      . Grandfather is S.G.’s biological father.

      . Grandfather’s attitude about this is exemplified by his comments found in an adoption study dated February 16, 2004. There he was quoted as saying:
      "Since the parents had done nothing to physically or emotionally damage the children, I will allow contact and I am determined to have the children strengthen their connections with other family members back in Colorado once the court permits us to leave this place. Bureaucratic demigods tried to sever the connections between the children and the family; in fact, they tried to sever the bonds between the children, which I will never allow.”

      . This recommendation came not only from DSS workers, but was the recommendation of the team, i.e., deputy juvenile officer, the children’s guardian ad litem, and DSS.

      . Rule 84.13(a) provides that "allegations of error not ... properly briefed shall not be considered in any civil appeal.”

      . In part, Rule 84.04(e) provides that "[t]he argument shall substantially follow the order of 'Points Relied On.'" (Emphasis added.)

      . In the argument part of his brief, Grandfather claims this finding was unsupported by competent evidence. He insists that such an intent cannot be inferred from any claim that he allowed the children/parent contact from December 2003 to March 2004 (the relevant period when he was ordered not to allow contact) because such claim was unproven. To support this he says the testimony from DSS workers on this issue was inconsistent. He then attempts to buttress his argument by pointing to his trial testimony that he had only allowed limited contact with the children, such as at Christmas. Both arguments are answered by pointing out that resolving conflicting evidence was for the juvenile court and it was free to believe or disbelieve all, part, or none of the testimony of any witness. J— G—L—, Jr., 853 S.W.2d at 436[3].

      . The local rule provides: “In the absence of any judge of this circuit, any other judge of this circuit ... [is] assigned and may act in behalf of the absent judge upon any matter which is uncontested, may be heard ex parte, or requires an emergency order or judgment.” Rule 6.1.3, 29th Judicial Circuit.

      . Recognizing his point’s shortcomings, Grandfather attempts to characterize Judge Dermott's actions in jurisdictional terms. Grandfather argues that a judge who did not hear the evidence could not sign a judgment rendered on that evidence, and any such judgment was a nullity, citing Lansing v. Lansing, 736 S.W.2d 554, 558 (Mo.App.1987). That proposition is sound, but inapposite. Judge Dermott specifically stated that he was acting in the absence of Judge Dally, i.e., he was signing the judgment that Judge Dally prepared on his behalf. This was apparently done on an emergency basis, namely, to expedite the finality of the judgment for purposes of appeal as juvenile matters are given priority under the statutes. Judge Dermott made no independent judgment upon evidence he did not hear as the judge did in Lansing. Consequently, Grandfather has failed to support his point and argument with any relevant authority.


author: PHILLIP R. GARRISON, Judge.

text:
    Vernon WHITE, Plaintiff-Respondent, v. RPM MANAGEMENT, INC., and Sunterra Corporation, Defendants-Appellants.
    No. 26948.
    Missouri Court of Appeals, Southern District, Division Two.
    March 27, 2006.

      Jonathan D. Cope, The Styron Law Firm, Ozark, for appellant.
    Jeffery L. Love, Millington, Glass & Love, Springfield, for respondents.
   PHILLIP R. GARRISON, Judge.

Sunterra Corporation (“Sunterra”) and RPM Management, Inc., (“RPM”) (collectively referred to as “Defendants”) appeal from the trial court’s judgment finding that Vernon White (“Plaintiff”) was not a member of Fall Creek Resort and therefore was not required to pay resort maintenance fees to Defendants. For reasons specified below we dismiss the appeal.

This action surrounds certain provisions of declarations recorded with the Taney County Recorder of Deeds pertaining to membership in Fall Creek Resort. The first of these declarations, filed on February 28, 1989, by Treasure Resorts, Inc, titled “Declaration as to Covenants and Restrictions as to Use and Occupancy,” (“Declaration A”), provides no legal description of the real property subject to its terms. Declaration A was later amended to subject the following property to its terms:

Lots 1-67, FALL CREEK R-V ESTATES, Phase I, a subdivision per the recorded plat thereof, Plat Book 23, page 53 of the Taney County Recorder’s Office.
Lots 1-15, FALL CREEK R-V ESTATES, Phase II, a subdivision per the recorded plat thereof, Plat Book 23, page 87 of the Taney County Recorder’s Office.

On March 23, 1992, Fall Creek Development, Inc., recorded its “Declaration as to Covenants and Restrictions as to Use and Occupancy” (“Declaration B”), while providing no legal description of property subject to that declaration. Declaration B set forth substantially the same provisions as Declaration A with the exception that Declaration B refers to and defines membership in “Fall Creek Resorts” rather than “Treasurer Resorts, Inc.”

Plaintiff purchased his first lot in the Fall Creek R-V Estates on June 14, 2001. He later purchased three additional lots, the last of which occurred on May 8, 2003. In early 2003, RPM mailed to Plaintiff a “Fall Creek Resort 2003 Assessment Billing and Collection Policy,” which set forth procedures that would be followed to collect unpaid assessments from its members. Plaintiff, under the impression that he was not a member of Fall Creek Resort, went immediately to the recorder of deed’s office, and reviewed the declarations on file covering his lots.

Plaintiff then filed a petition for declaratory judgment in the circuit court of Taney County, requesting that the court enter a declaratory judgment finding that: (1) he is not a member of Fall Creek Resort solely by virtue of the declaration; (2) Defendants have no right to assess, bill and collect dues from him for Fall Creek Resort membership solely by virtue of the declaration; (3) Defendants have no right to act in any respect as Successor Declar-ant under the declaration; and (4) Defendants have no right to enforce any of the affirmative covenants and restrictions contained in the declaration. The case, consisting of the petition as well as Defendants’ answer and counterclaim, was tried by the court and resulted in a judgment for Plaintiff.

Defendants filed a “Motion for New Trial, to Reopen Judgment, to Take Additional Testimony, to Make New Findings and Enter New Judgment Pursuant to Missouri Rule of Court 78.01.” The court sustained the motion “only to the extent of setting aside the original Judgment, and requiring the submission of a new Judgment containing findings of fact and conclusions of law, and disposing of all claims, including those raised in Defendants’ Counterclaim.” The amended judgment states in pertinent part:

2.Neither the language of the Declarations, nor any other evidence presented, impose upon the Plaintiff an affirmative covenant that runs with the Lots requiring Plaintiffs mandatory membership in and to any resort facilities and amenities, including those presently known as Fall Creek Resort.
3. Neither the language of the Declarations, nor any other evidence presented, provide the Defendants, individually or jointly, with any authority or right to determine, assess, bill and/or collect from the Plaintiff any fees or dues for a mandatory membership in and to any resort facilities and amenities, including those presently known as Fall Creek Resort.
4. Neither the language of the Declarations, nor any other evidence presented, provide the Defendants, individually or jointly, with the right to act in any respect as successor to the original declarants under the Declarations.
5. Neither the language of the Declarations, nor any other evidence presented, confer upon the Defendants, individually or jointly, any right to administer and enforce the declarations.
6. The language of the Declarations is vague and ambiguous relative to the issues presented, and neither the language of the Declarations, nor any other evidence presented, entitle the Defendants to the relief they seek, individually or jointly, in the Defendants’ Counterclaim.

Defendants now appeal.

Defendants present four points relied on in their brief. In order to assist in explaining the dismissal of Defendants’ appeal, we set out each point verbatim:

I. The trial court erred in applying the law, declaring that neither the language of the Declarations, nor any other evidence presented, impose upon the Plaintiff an affirmative covenant that runs with the lots requiring Plaintiffs mandatory membership in and to any resort facilities and amenities including those presently known as Fall Creek Resort. The trial court failed to properly apply contract law to determine whether the Declarations impose an implied contract requirement that [Plaintiff] be a member of Fall Creek Resort. The trial court’s conclusion of law is contrary to the express terms of each Declaration requiring mandatory membership and nullifies Article III, Section I, of each Declaration which expressly states that fee site ownership is indivisible from the membership in the resort. Furthermore, the covenant runs with the land without a declaration to that effect.
II.The trial court erred in applying the law, declaring that neither the language of the declarations, nor any other evidence presented, provide [Defendants] with any authority to assess and collect from [Plaintiff] any fees for a mandatory membership in and to any resort facilities and amenities, including those presently known as Fall Creek Resort. The trial court failed to properly apply contract law to determine whether the Declarations impose an express or implied contract requirement that [Plaintiff] be obligated to pay fees for a mandatory membership in Fall Creek Resort. The trial court’s conclusion of law is contrary to the terms of Sections D and E of Article XIV and XIII, respectively, of each Declaration which expressly state that fee sight owners are subject to the rights and duties of membership and obligated to pay all related fees and renders as incomprehensible Article III, Section I, of each Declaration since fee site ownership and resort membership cannot be severed and the declarant would be obligated to provide resort services without compensation. Furthermore, the covenant runs with the land without a declaration to that effect.
III. The trial court erred in applying the law, declaring that neither the language of the Declarations, nor any other evidence presented, confer upon [Defendants], as Declarant, any right to administer and enforce the Declarations. The trial court failed to properly apply contract law to determine whether the Declarations grant an implied contract right to the Declarant to assess and collect membership fees. The trial court’s conclusion of law is contrary to Declarant’s inherent right to sue and be sued, complain and defend in any court of law or equity under Mo.Rev.Statute § 351.385 and improperly implies a restrictive covenant in the Declaration that the Declar-ant is excluded from bringing such suit.
IV. The trial court erred in applying the law, declaring that neither the language of the Declarations, nor any other evidence presented, confer upon [Defendants], as Declarant, any right to administer and enforce the Declarations. The trial court failed to properly apply the law to determine whether [Plaintiffs] counsel made judicial admissions that Defendants were the successor Declar-ant. The trial court’s conclusion of law is contrary to the evidence of Sunter-ra[’s] management of Fall Creek Resorts, as Declarant, which was admitted through counsel’s statements to the trial court at trial and demonstrated by the exhibits of counsel for [Plaintiff].

Rule 84.04(d) requires that each point relied on “shall: (A) identify the trial court ruling or action that the appellant challenges; (B) state concisely the legal reasons for the appellant’s claim of reversible error; and (C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.” The rule offers the following template as further instruction:

The point shall be in substantially the following form: “The trial court erred-in [identify the challenged ruling or action], because [state the legal reasons for the claim of reversible error ], in that [explain why the legal reasons, in the context of the case, support the claim of reversible error ].”

Rule 84.04(d).

All four of Defendants’ points relied on fail to comply with the requirements of Rule 84.04(d). Defendants’ assertions that the “trial court erred in applying the law” arguably identify the trial court action complained of. However, Defendants’ points fail to state concisely the “legal reasons for the appellant’s claim of reversible error,” and fail to explain, in summary fashion, why, in the context of the case, any legal reasons support their claim that the trial court erred in applying the law. Rule 84.04(d). Additionally, Defendants’ points are not in the form set out in the rule for a proper point relied on. Defendants recite abstract statements of law, which are unacceptable in satisfying the requirements of Rule 84.04(d). Bridges v. American Family Mut. Ins. Co., 146 S.W.3d 456, 458 (Mo.App. W.D.2004).

Appellate review is restricted to the issues raised in the points relied on. Young v. Ernst, 113 S.W.3d 695, 697 (Mo.App. S.D.2003). The requirements of Rule 84.04(d) are meant to ensure that the opposing party is provided with “notice of the precise matters which must be contended with” and also “to inform the court of the issues presented for review.” Id. “To articulate the points [Defendants] may be attempting to assert requires speculation, research, and decision making as an advocate, an inappropriate role for an appellate court.” Stickley v. Auto Credit, Inc., 53 S.W.3d 560, 563 (Mo.App. W.D.2001).

“Insufficient points relied on preserve nothing for appellate review and constitute grounds for dismissal.” Midwest Arbitration and Mediation, Inc. v. Condry, 17 S.W.3d 147, 149 (Mo.App. S.D.2000).

Lastly, we note that Defendants fail to recite the applicable standard of review in the argument section of their brief. Rule 84.04(e) requires that the argument section “shall also include a concise statement of the applicable standard of review for each claim of error.”

Based on these factors, the appeal is dismissed.

BATES, C.J., and BARNEY, J., concur.

      . All rule references are to Missouri Rules of Civil Procedure (2005) unless otherwise indicated.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Wesley Eugene FIELDS, Defendant-Appellant.
    No. 27057.
    Missouri Court of Appeals, Southern District, Division One.
    March 29, 2006.

      Wesley Eugene Fields, Jefferson City, Appellant Acting Pro Se.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Linda Lemke, Assistant Attorney General, Jefferson City, for respondent.
   NANCY STEFFEN RAHMEYER, Presiding Judge.

Wesley Eugene Fields (“Movant”) was convicted of capital murder in 1973; his conviction was affirmed in 1984. Movant filed a motion for DNA testing pursuant to section 547.035, which was denied by the trial court. Movant appeals claiming three points of error. We find no error and affirm the judgment.

The facts surrounding the incident which led to the conviction of Movant for capital murder provide the reasons why the trial court did not err in denying Mov-ant’s request for DNA testing. Briefly, from the direct appeal: “[Movant] was convicted of shooting and killing a man following a fight just outside a tavern. [Movant’s] principal defense at trial was that he was in an intoxicated and drugged condition that prevented him from acting knowingly or purposely at the time of the shooting.” State v. Fields, 668 S.W.2d 257 (Mo.App. S.D.1984). The murder weapon was taken from Movant and he was arrested at the scene of the crime.

In his first point, Movant claims error in the denial of his motion for DNA testing. To prevail in his motion, Movant had the burden to allege facts under oath demonstrating:

(1) There is evidence upon which DNA testing can be conducted; and
(2) The evidence was secured in relation to the crime; and
(3) The evidence was not previously tested by the movant because:
(a) The technology for the testing was not reasonably available to the movant at the time of the trial;
(b) Neither the movant nor his or her trial counsel was aware of the existence of the evidence at the time of trial; or
(c) The evidence was otherwise unavailable to both the movant and movant’s trial counsel at the time of trial; and
(4) Identity was an issue in the trial; and
(5) A reasonable probability exists that the movant would not have been convicted if exculpatory results had been obtained through the requested DNA testing.

Section 547.035.2.

Movant did not, and cannot, allege facts to warrant relief under subsection (4) in that identity was not an issue at trial, nor is it an issue now; Movant did not contest the fact that he shot the victim at trial. Additionally, although Movant alleges almost every item of evidence should have been tested for DNA, he failed to allege how any of that evidence, if tested, would exonerate him. A defendant is not entitled to DNA testing when he fails to explain how the testing of the items would exonerate him. State v. Westcott, 121 S.W.3d 543, 546 (Mo.App. W.D.2003). Point I is denied.

Point III is related to Point I and likewise has no merit. In Point III, Mov-ant claims an attorney should have been appointed for him and an evidentiary hearing held. For the same reasons as set forth in Point I, Movant failed to plead facts necessary to entitle him to a hearing under section 547.035.6. Movant was not entitled to the appointment of counsel because he was not entitled to an evidentiary hearing. State v. Fults, 98 S.W.3d 877, 880 (Mo.App. E.D.2003). Point III is denied.

Point II claims:

Whether newly enacted statute allowing for DNA testing is unconstitutional on its face, and/or applied in an unconstitutional manner to deny equal protection of the law in violation of the 5th and 14th Amendments to the United States Constitution, where the Appellant has substantial evidence, that if properly tested and analysised [sic] would and could exonerate Appellant?

Point II leaves nothing for our review. “ ‘The supreme court shall have exclusive appellate jurisdiction in all cases involving the validity of ... a statute or provision of the constitution of this state....’” Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 51 (Mo. banc 1999) (quoting MO. CONST, art. V, sec. 3 (1945, as amended 1976)). While a challenge to a statute’s validity may be proper on its face, this Court will not entertain the appeal if the allegation is pretextual or the claim is not real and substantial but merely color-able. Id.; State v. Dillard, 158 S.W.3d 291, 302 (Mo.App. S.D.2005). A constitutional claim is colorable when preliminary inquiry demonstrates that Movant’s contention is “so obviously unsubstantial and insufficient, in fact or in law, as to be plainly without merit.” Dillard, 158 S.W.3d at 302.

When the challenge is one of first impression, this generally indicates that a constitutional challenge is real and substantial and made in good faith. Rodriguez, 996 S.W.2d at 52. Even if the Supreme Court of the United States has visited an issue, the Supreme Court of Missouri can still exact jurisdiction when it has yet to review the issue. Id. Jurisdiction is proper even in those instances where the challenge is ultimately rejected on the merits by unanimous decision. Id. Further, a constitutional issue is only preserved if the issue is raised “at the earliest opportunity and preserved at each step of the judicial process.” Sharp v. Curators of University of Missouri, 138 S.W.3d 735, 738 (Mo.App. E.D.2003). The issue must be presented to the trial court and the trial court must make a ruling upon the issue in order for the issue of constitutional validity to be preserved. Id. In addition, “the point raised on appeal must be based upon the theory advanced at the trial court.” Id.

Prior to this brief on appeal, Movant had not raised the issue of the constitutional validity of section 547.035. The trial court, which was presented only with Movant’s motion for DNA testing pursuant to sections 547.035, found that Movant is not entitled to relief under section 547.035 and that the identity of Movant was not an issue at his trial. Movant did not raise the issue of the constitutional validity of section 547.035 until this appeal and the trial court did not rule on that issue; therefore, the issue of constitutional validity of section 547.035 has not been properly preserved. Point II is denied.

The judgment is affirmed.

PARRISH and LYNCH, JJ., concur.

      . All references to statutes are to RSMo 2000, unless otherwise specified.

      . Movant now claims in this appeal for the first time that there was an inconsistency in the description of him on the night of the incident in one witness's statement at trial. That inconsistency does not rise to the level of a fact which puts his identity at issue.

      . Section 547.035.6 states:
      If the court finds that the motion and the files and records of the case conclusively show that the movant is not entitled to relief, a hearing shall not be held. If a hearing is ordered, counsel shall be appointed to represent the movant if the mov-ant is indigent. The hearing shall be on the record. Movant need not be present at the hearing. The court may order that testimony of the movant shall be received by deposition. The movant shall have the burden of proving the allegations of the motion by a preponderance of the evidence.