text:
    FIRST BAPTIST CHURCH OF ELLISVILLE, Plaintiff/Respondent, v. Orpha and Lester REAGAN, Victoria and Curtis Hookland, David and Nancy Walt, Gerald and Cameron Aulgur, Thomas and Willa Farrar, Joyce Woods, Ernest and Regina Cole, Donaldson Howard, Robert and Janet Heida, Dennis and Mary Ann Connor, Defendants/Appellants.
    No. ED 85160.
    Missouri Court of Appeals, Eastern District, Division One.
    March 7, 2006.
    Shulamith Simon, St. Louis, MO, for Appellant.
    Frank J. Vatterott; Michael J. Becker-mann, John C. Grellner, Maryland Heights, MO, for Respondent.
    Before MARY K. HOFF, P.J. and CLIFFORD H. AHRENS, J. and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Orpha and Lester Reagan, Victoria and Curtis Hookland, Nancy and David Walt, Cameron and Gerald Aulgur, Willa and Thomas Farrar, Joyce Woods, Regina and Ernest Cole, Donaldson Howard, Janet and Robert Heida, and Mary Ann and Dennis Connor (collectively referred to as Homeowners) appeal from the trial court’s judgment in favor of First Baptist Church of Ellisville (Church) granting Church’s request for a declaratory judgment and permanent injunction and dismissing Homeowners’ counterclaim with prejudice. We affirm.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Lloyd G. WILLIAMS, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 86673.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 7, 2006.
    Mark A. Grothoff, Columbia, MO, for appellant.
    Victor J. Melenbrink, 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, Lloyd G. Williams, 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).


author: BOOKER T. SHAW, Judge.

text:
    Robert L. GRIFFIN, Jr., Appellant, v. STATE of Missouri, Respondent.
    No. ED 85465.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 7, 2006.

      Edward Scott Thompson, Attorney, St. Louis, MO, for appellant.
    Deborah Daniels, Attorney, Jefferson City, MO, for respondent.
   BOOKER T. SHAW, Judge.

Robert L. Griffin, Jr. (“Movant”) appeals from the motion court’s judgment denying his post-conviction relief motion pursuant to Rule 24.035 without an eviden-tiary hearing. In Movant’s sole point on appeal, he argues that his plea counsel was ineffective for failing to explain to him the difference between “serious physical injury,” the term used in Section 565.081, RSMo 2000 to describe assault in the first degree against a law enforcement officer, and “physical injury,” the term used in State’s information for the charge pursuant to Section 565.081. Movant claims he would have proceeded to trial had he known the State had to prove “serious physical injury.” He alleges counsel’s failure renders his guilty plea unintelligent. We reverse and remand for an evidentiary hearing.

Facts and Procedural History

Movant entered into a negotiated plea of guilty, pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to Count I: assault in the first degree pursuant to Section 565.050 and to Count II: assault of a law enforcement officer in the first degree pursuant to Section 565.081. Count III charged Movant with assault of a law enforcement officer in the first degree pursuant to Section 565.081, but was dismissed in exchange for Movant’s guilty plea. Likewise, Counts IV, V, and VI pertaining to the charges of armed criminal action were dismissed. Movant was sentenced to twelve years’ imprisonment for each count to run concurrently. As with any guilty plea, an Alford plea is valid if it “represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” Sexton v. State, 36 S.W.3d 782, 785 (Mo.App. S.D.2001) (citing Alford, 400 U.S. at 31, 91 S.Ct. 160).

The following facts were presented by the prosecutor to the plea court: On April 11, 2003, Movant was in his home making threats to kill family members and to commit suicide. Movant held a BB gun to the head of a small child and pulled the trigger, but no physical injury occurred to the child due to the failed discharge of the BB gun. Two sheriffs deputies, Officers Crawford and Momot, arrived at the scene. Movant was in the bathroom with a large knife. When the deputies came toward Movant to control the situation, Movant repeatedly asked the deputies if they would shoot him if he came forward with the knife. According to Officer Crawford, Movant came at them in an angry and threatening manner with the knife raised, as if coming toward them to “harm” them.

At his plea hearing, Movant was questioned in open court regarding the significance of his guilty plea. See Rule 24.02. The transcript reveals that he understood the rights he waived by entering the plea and that he did not have any issue regarding the services rendered by his attorney. The court accepted his guilty plea and entered his sentence. Movant filed a timely amended motion for post-conviction relief. This motion was denied without an evidentiary hearing. This appeal follows.

Analysis

Appellate review of a post-conviction relief motion is limited to the determination of whether the findings of fact and conclusions of law of the motion court are clearly erroneous. State v. Nunley, 980 S.W.2d 290, 291 (Mo. banc 1998); Rule 24.035. The motion court’s findings and conclusions are clearly erroneous only if, after reviewing the entire record, the appellate court is left with the definite and firm impression a mistake has been made. Id. at 291-92. An evidentiary hearing is not required for a post-conviction motion for relief if the motion court determines the motion, files, and records of the case conclusively show the movant is not entitled to relief. Morales v. State, 104 S.W.3d 432, 434 (Mo.App. E.D.2003). An evidentiary hearing is warranted when a movant’s motion meets three requirements: 1) the motion must allege facts, not conclusions, warranting relief; 2) the facts alleged must not be refuted by the files and records in the case; and 3) the matters complained of must have resulted in prejudice to the movant. Morrow v. State, 21 S.W.3d 819, 822-23 (Mo. banc 2000). We find Movant is entitled to an evidentia-ry hearing. Movant alleges facts that warrant relief, such facts are not refuted by the record, and Movant was prejudiced thereby.

Movant alleges the information filed by the State was defective. An indictment or information is deemed suffi-dent if it is substantially consistent with the forms of indictments or informations which have been approved by the Missouri Supreme Court. See State v. Dunmore, 822 S.W.2d 509, 514 (Mo.App. W.D.1991) and Rule 23.01(b).

The form approved by the Missouri Supreme Court for these crimes states the following:

The (Grand Jurors) (Circuit Attorney) (Prosecuting Attorney) of the (City) (County) of _, State of Missouri, charge(s) that the defendant, in violation of Section 565.081.1, RSMo, committed the class A felony of assault of a law enforcement officer in the first degree punishable upon conviction under Section 558.011.1(1) RSMo, in that (on) (on or about) [date], in the (City) (County) of_, State of Missouri, [name of victim] was a law enforcement officer, defendant knew [name of victim] was a law enforcement officer, and (attempted to kill or to cause) (and) (knowingly caused) serious physical injury to him, by [Insert means by which attempt was made, or serious injury was caused ... ] him.

See MACH-CR 19.32 (1991) (emphasis added).

The information for Count II provided:

In violation of Section 565.081, RSMo, [Movant] committed the class A felony of Assault of a Law Enforcement Officer in the First Degree, punishable upon conviction under Section 558.011.1(1), RSMo, in that on or about April 11, 2003 ... Alan Crawford, was a law enforcement officer, [Movant] knew Alan Crawford was a law enforcement officer, and [Movant] attempted to kill or cause physical injury to him, by coming toward him with a raised knife in his hand.

(emphasis added). We find that this information was not substantially consistent with the form set forth by the Missouri Supreme Court because it did not contain the essential term “serious” before “physical injury.” See Rule 23.01(b).

Once it is determined that an information does not substantially follow the charge form, the analysis turns to whether the information is sufficient. The test for whether an information is sufficient is: 1) whether the information contains all essential elements of the offense as set out in the statute creating the offense, and 2) whether it clearly apprises the accused of the facts constituting the offense. See State v. Sanders, 871 S.W.2d 454, 459 (Mo.App. W.D.1993).

Section 565.081 provides in pertinent part that “A person commits the crime of assault of a law enforcement officer ... if such person attempts to kill ... or attempts to cause serious physical injury to a law enforcement officer ...(emphasis added). “Serious physical injury” is defined as physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body. See Section 556.061. “Physical injury” means physical pain, illness, or any impairment of physical condition. Id. Thus, the information was defective in that it did not contain all essential elements as set forth by the statute.

Further, the defective information was not rectified by the prosecutor’s recitation of the facts. The prosecutor used the term “harm” to describe Movant’s intent in raising the knife, when describing the evidence he would have presented at trial. The term “harm” is not defined by statute or case law, but the common understanding of this term means “physical or mental damage; injure.” See WEBSTER’S NEW COLLEGIATE DICTIONARY (1st ed.1973). This common definition or understanding does not rise to the gravity of the statutory definition of “serious physical injury.” Thus, reasonably assuming that Movant had this basic or common understanding of the term, his assertion that he believed the State only had to prove some “harm” is not refuted by the record.

This Court concludes that these errors could have resulted in Movant reasonably believing that a jury could have convicted him of Count II by mere proof that he intended “harm” or “physical injury,” rather than the State proving the higher standard of “serious physical injury.” Movant is entitled to an evidentiary hearing to show whether this alleged belief was advanced or promoted by his plea counsel, and whether counsel was thereby ineffective.

REVERSED AND REMANDED.

KATHIANNE KNAUP CRANE, P.J., and LAWRENCE E. MOONEY J., concur.

      . All further statutory references are to RSMo 2000.

      . Movant's point relied on falls short of the requirements of Rule 84.04 in that this Court had to glean from the argument section of Movant's brief his alleged claim of error. Due to the seriousness of the case, we will review the merits pursuant to Rule 84.13(c). See State v. Conaway, 912 S.W.2d 92, 94 (Mo.App. S.D.1995).

      . Missouri Supreme Court Rule 23.01(b) states in pertinent part:
      "The indictment or information shall:
      (1) State the name of the defendant or, if not known, designate the defendant by any name or description by which the defendant can be identified with reasonable certainty;
      (2) State plainly, concisely, and definitely the essential facts constituting the elements of the offense charged, including facts necessary for any enhanced punishment;
      (3) State the date and place of the offense charged as definitely as can be done. If multiple counts charge the same offense on the same date or during the same time period, additional facts or details to distinguish the counts shall be stated;
      (4) Cite the statute alleged to have been violated and the statutes that fix the penalty or punishment therefor; and
      (5) State the name and degree, if any, of the offense charged.
      All indictments or informations that are substantially consistent with the forms of indictments or informations that have been approved by this Court shall be deemed to comply with the requirements of this Rule 23.01(b).”


text:
    In the ESTATE OF Earl YOUNG, decedent.
    No. ED 86180.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 7, 2006.

      Mark Belz, Clayton, MO, for appellant.
    Alan E. Dewoskin, Clayton, MO, for respondent.
   BOOKER T. SHAW, Judge.

This is an appeal from a judgment in favor of the Estate of Earl Young against the former independent personal representative, Savannah Holliday (“Holliday”). Denise Hill, Adelbert Brown, and Ethel Echols (individually, “Hill”, “Brown” and “Echols” collectively, “heirs”) appeal the judgment contending that the probate court erred in using a rate of interest other than nine percent per annum pursuant to Section 408.020, RSMo 2004 in determining the amount of interest owed to the estate. We affirm.

Facts and Procedural History

The record on appeal lacks clarity. However, this Court adduces the facts as follows: Earl Young died on September 26, 1998. Savannah Holliday, his sister, filed for letters of administration authorizing independent administration. She declared herself as the sole heir and was appointed personal representative. See Section 473.480.

In 2001, Hill and Brown filed a Petition for Determination of Heirship, contending that they were Earl Young’s grandchildren. The record reveals Hill and Brown did not proceed on this heirship petition until late summer 2003. On March 25, 2004, a petition for the discovery of assets was filed. On April 30, 2004, Echols joined the heirship petition claiming she was Earl Young’s daughter.

On November 14, 2003, Holliday resigned as personal representative and a public administrator was appointed. On February 4, 2004, Holliday was ordered to show cause why she should not be surcharged pursuant to Section 473.597. Holliday filed her final “Settlement to Resignation” on February 23, 2004. She attached an accounting of the transactions in the estate as reflected on the estate’s bank statement held by Bank of America, N.A. The statement reflects that Holliday withdrew funds from the account for her personal use. It also showed Holliday made no withdrawals once the heirship petition was filed. On March 30, 2004, Holliday was ordered to l'eturn any estate assets in her possession to the public administrator.

The heirs of Earl Young were determined by a judgment of the probate court, and affirmed by the circuit court, dated January 3, 2005. The probate court found Hill and Brown to be grandchildren of Eárl Young and awarded each of them 1/4 of the estate. The court found Echols to be Earl Young’s daughter and awarded her 1/2 of the estate.

The show cause hearing was held on May 27, 2004, and the judgment was entered and affirmed by the circuit court on January 3, 2005. The probate court found the estate had monies totaling $330,017.40, as reflected on the Bank of America statement. The court determined that Holli-day, as the former independent personal representative of the estate, was indebted to the estate in the amount of $287,292.87. The court reached this amount by deducting $18,000 that Holliday distributed to the heirs and $50,000 that Holliday paid to the public administrator, and adding interest in the amount of $25,275.47, as reflected on the Bank of America statement. The court’s judgment states the “interest [was] calculated using rates reported for Bank of America estate account.” Holliday does not contest that she used the funds for her own personal use. Further, she does not appeal the judgment against her.

The heirs filed a motion to amend the judgment, claiming the interest was too low and not in accord with Missouri law, citing Section 408.020. The heirs contend the amount of interest owed to the estate is $130,154.68. The heirs’ computation of this interest amount is based upon the withdrawals by Holliday at various times at a rate of nine percent. A hearing on the motion was held, but the motion was denied as a matter of law. See Rule 78.06. This appeal follows.

Analysis

Our review is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We shall sustain the order of the trial court if it has substantial eviden-tiary support, is not against the weight of the evidence, and it properly declares and applies the law. Id. at 32. The heirs’ sole point on appeal is that the circuit court erred in calculating pre-judgment interest by using a rate other than nine percent per annum because nine percent is mandatory pursuant to Section 408.020 and is not subject to court discretion. The heirs rely upon Denton Construction Company v. Missouri State Highway Commission, 454 S.W.2d 44 (Mo. banc 1970) and Newell v. Kern, 218 S.W. 443 (Mo.App. E.D.1920). Section 408.020 states the following:

Creditors shall be allowed to receive interest at the rate of nine percent per annum, when no other rate is agreed upon, for all moneys [sic] after they become due and payable, on written contracts, and on accounts after they become due and demand of payment is made; for money recovered for the use of another, and retained without the owner’s knowledge of the receipt, and for all other money due or to become due for the forbearance of payment whereof an express promise to pay interest has been made.

If we determine Section 408.020 is applicable to the subject matter of this proceeding, the heirs are correct, the nine percent rate is mandatory upon the court. See Leggett v. Missouri State Life Ins. Co., 342 S.W.2d 833, 931 (Mo.1960) and Denton, 454 S.W.2d at 60. However, we find Section 408.020 does not apply to the subject matter of this case. As such, the contract cases cited by the heirs, which fall within the statute’s mandate, are not persuasive or relevant to resolve this matter.

An allowance of interest must be based upon either a statute or a contract, express or implied. See Boyle v. Crimm, 363 Mo. 731, 253 S.W.2d 149 (1952). Here, while no contract exists, there is a governing statute, Section 473.550, that makes interest allowable in this case, but does not set the rate of interest. Section 473.550 states in pertinent part:

All interest received by executors or administrators on debts due to the decedent ... are assets in their hands. They shall not use the money of the decedent for their own private purposes. If they do so, they shall be liable to the estate for interest and any loss of principal.... The court ... shall exercise equitable control in making executors ... account for interest ...

(emphasis added). Thus, the rate of interest is left to the court’s equitable discretion. “In the absence of a governing statute designating the rate of interest a court of equity may exercise its discretion in the allowance of interest, depending on the facts surrounding each case.” Leggett, 342 S.W.2d at 931.

As long ago as 1876, the Missouri Supreme Court held that although it would have been inclined to charge a higher rate of interest, the circuit court was within its equitable control to charge the executor of an estate nine percent interest on money in his hands belonging to the estate. See In the Matter of James L. Davis, 62 Mo. 450 (Mo.1876). The Supreme Court concluded that the rate of interest will depend on the facts surrounding each case. Id. See also Cruce v. Cruce, 81 Mo. 676 (Mo.1884) (noting that a trustee of a decedent’s trust should be accountable for such interest or profits as he might have obtained by the exercise of reasonable skill and exertion in the management of the fund).

In Enright v. Sedalia Trust Co., 323 Mo. 1043, 20 S.W.2d 517 (1929), the heirs of an estate excepted to the final settlement of the estate due to the executor’s failure to account for interest on funds of the estate deposited in the Sedalia Trust Company. The heirs proved the Sedalia Trust Company used the funds of the estate in carrying on its own business and collected interest thereon and did not account for this interest to the estate. Id. at 518. The issue as framed by the Court then was “what amount of interest, under the particular facts and circumstances of this case, the Sedalia Trust Company should be required to pay?” Id at 522. In reaching its decision, the Court reviewed the amount of interest the Sedalia Trust Company charged on its loans, which was between five and eight percent. Id. It also heard expert testimony on the amount of interest the monies would have earned based upon the daily balances in the account. Id. at 528. The Supreme Court affirmed the circuit court’s award of six percent interest. Id.

The same facts and circumstances analysis has been applied in guardianship proceedings wherein the probate court also has jurisdiction. In Hoerman’s Estate, 247 S.W.2d 762 (Mo.1952), a mother of an insane war veteran received and used for her personal benefit her son’s disability payments issued by the Veterans’ Administration (“VA”). The facts showed English was not the mother’s first language and that she had sought advice from counsel. Id. at 768-64. Further, the VA, although it had checked all of her settlements, did not discover she was not accounting for these payments for almost thirty years. Id. Our Supreme Court held that “the general rule appears to be that there is some discretion to consider the circumstances of the case but where the guardian has used his ward’s funds for his own benefit he is properly charged with legal interest at the highest rate permitted by law .. ,” Id. at 766-67. The Court continued by stating that the facts in the case were unusual and the mother acted in good faith. Id. The circuit court awarded interest at the highest legal rate allowed by law at the time, eight percent. The Supreme Court reversed the circuit court, reasoning that the circuit court believed it was without discretion in determining the amount of interest and reduced the interest rate from eight percent to six percent. Id.

In a more recent case, the co-executors of an estate were surcharged and ordered to pay back monies to the estate with interest. Estate of Wenzlick, 715 S.W.2d 262 (Mo.App. E.D.1986). Our Court characterized the conduct of the executors as “gross mismanagement” of the estate. Id. at 265. Athough, the rate of interest was not discussed at length, this Court affirmed the award stating “the court was within the boundaries of its authority in surcharging the executors for interest which should have accrued on estate funds had they been prudently invested ... and for interest which should have been earned on money used to prematurely pay taxes.”

The heirs direct this Court to a 1920 probate case to support their contention. See Newell v. Kern, 218 S.W. 443. In Newell, the public administrator filed a petition to discover assets in the hands of the heirs. Four of the five heirs divided their mother’s estate assets among themselves without including the fifth heir. In Newell, the dispute was not over the amount of interest due, but rather whether interest was allowable. This Court concluded that there was an “unlawful withholding and conversion” and, therefore, held that “under the provisions of our law, Section 7179 Rev. Stat. 1909, [now Section 408.020], and of the decision of our court in Lack v. Brecht [citation omitted], interest was allowable under the statute.” Id. at 446.

While this case is more on point than the contract cases relied upon by the heirs, it is not controlling in this case. The facts in Newell involve a public administrator attempting to recover money distributed unlawfully by some of the heirs to themselves pursuant to Section 473.340, discovery of assets. The court in Newell relied upon Lack v. Brecht, 166 Mo. 242, 65 S.W. 976 (1901) in reaching its holding that section 408.020 applied, however, the Lack case was not a discovery of assets action. It was a case based upon claims of conversion and trover.

In Lack, a nephew of an insane woman, under guardianship, sold her real property and took rental money from her. Id. at 977. Thus, the Court characterized the mismanagement and unlawful actions of the nephew as suitable for a claim in tro-ver and conversion. Id. at 980. The court in Lack further held that Section 408.020 applied because the money was “recovered for the use of another, and retained without the owner’s knowledge of the receipt.” Id. This language is the exact language used in Section 408.020. Ultimately, the Court equated the language in Section 408.020 with the cause of action of conversion and trover and affirmed the award of interest and at the fixed rate in the statute. Id. at 981. By relying on this case, this Court in Newell was likening a discovery of assets action under Section 473.340 with that of a claim of conversion and trover.

Modern courts have approached discovery of assets causes of action differently than that of conversion and trover, which calls into question the validity of the holdings in Newell and Lack. In In re Estate of Goldenberg, our Court regarded a discovery of assets procedure under Section 473.340 as a probate tool to recover assets rather than as a “device to test general fiduciary conduct, improper administration of the estate, or general disputes between the heirs.” 601 S.W.2d 637, 639 (Mo.App. E.D.1980). See also In the Estate of Alexander, 171 S.W.3d 794 (Mo.App. W.D.2005) (holding that interest under the facts of that case was discretionary where the personal representative acted in good faith and the circuit court ordered a “return of monies” rather than a money judgment).

We do not find Newell to be controlling in this case. Here, the probate court exercised its authority to surcharge a personal representative for funds withdrawn for her personal use and to have her account for interest thereon. These facts are more analogous with the cases discussed at length herein.

The issue before us, then, is whether the circuit court was within its boundaries in awarding interest at the rate calculated on the estate’s bank statement under the facts and circumstances of this case. We hold that it was.

It is undisputed that Holliday received money from Earl Young’s account for her own private purposes. However, there is nothing in the record before us that indicates Holliday acted in bad faith or that she initially obtained the funds unlawfully. While the record reveals Holliday was not timely with her settlement statements to the probate court, she was not under any duty to report withdrawals to the court under this independent administration. Further, there is nothing in the record showing she knew of Earl Young’s other heirs. To the contrary, the record indicates that once the petition to determine heirs was filed, no further withdrawals were made from the account. The record also indicates that Holliday sought counsel’s advice.

Conclusion

Based upon our standard of review and the facts and circumstances of this case, we find it was within the circuit court’s discretion to use the Bank of America statement to determine the amount of interest due to estate. This award of interest is the amount the estate would have received had there been no withdrawals from the account. We find this holding to be in accord with Wenzlick, 715 S.W.2d at 265 and the cases discussed herein.

AFFIRMED.

KATHIANNE KNAUP CRANE, P.J., and LAWRENCE E. MOONEY, J.

      . Mark Belz, as successor administrator d.b.n. of the Estate of Earl Young, was also named as an appellant in this case.

      . All statutory references are to RSMo 2004, unless otherwise indicated.

      . As the personal representative of an independent estate, Holliday was not required to seek direction of the court for various distributions. See Section WS.lZl ("An independent personal representative shall proceed ... with the settlement and distribution of the estate ... and shall do so without adjudication, order, or direction of the court ... ”).

      . The docket entries reveal that this petition was filed, however, the legal file does not contain such petition.

      . Section 473.597 allows the court to disapprove of the final settlement of the administrator of an estate and surcharge the administrator for any loss caused by any breach of duty.

      . It should be noted that in Hoerman the court distinguishes between "highest legal rate” as set forth in what is now Section 408.030 and the "legal rate” as set forth in Section 408.020.


text:
    Mildred HOEHN, Employee/Respondent, v. LAKENAN INSURANCE AGENCY, Employer/Appellant.
    No. ED 86705.
    Missouri Court of Appeals, Eastern District, Division One.
    March 7, 2006.
    Albert C. Lowes, Cape Girardeau, MO, for appellant.
    Remley Law Firm, Cape Girardeau, MO, for respondent.
    Before MARY K. HOFF, P.J., CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Lakenan Insurance Agency (“Employer”) appeals from the decision of the Industrial and Labor Relations Commission (“Commission”) awarding Mildred Hoehn (“Employee”) the amount of $59,395.87 for unpaid medical expenses, medical mileage/travel expenses, temporary total and temporary partial disability, and permanent partial disability. Employer contends that Employee was not injured while in the course of her duties for Employer.

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

The judgment of the trial court is affirmed in accordance with Rule 84.16(b).


text:
    CONSOLIDATED ELECTRICAL & MECHANICALS, INC., Appellant, v. Marilyn SCHUERMAN, Respondent.
    No. ED 86492.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 7, 2006.

      Lester J. Hubble, St. Louis, MO, for appellant.
    Craig Lawton Kessler, St. Louis, MO, for respondent.
   BOOKER T. SHAW, Judge.

Consolidated Electrical & Mechanical, Inc. (“Consolidated”) appeals from the trial court’s judgment granting a motion to dismiss for lack of personal jurisdiction in favor of Marilyn Schuerman (“Schuer-man”). Consolidated, a Missouri corporation, filed a petition against Schuerman, a California resident, alleging that Schuer-man breached an oral contract to provide Consolidated with the right to purchase her St. Louis Cardinals playoff tickets for the 2004 baseball season. Schuerman filed a Motion to Dismiss contending that (1) Consolidated failed to allege sufficient facts showing that Schuerman transacted business within the state of Missouri and (2) failed to allege sufficient minimum contacts to satisfy due process requirements. The trial court granted Schuerman’s motion to dismiss and this appeal follows. We affirm as amended herein.

When a defendant raises the issue of personal jurisdiction in a motion to dismiss, the plaintiff has the burden to show that the trial court’s exercise of jurisdiction is proper. Capitol Indemnity Corp. v. Citizens Nat. Bank, 8 S.W.3d 893, 899 (Mo.App. W.D.2000). In the case before us, the trial court granted Schuer-man’s motion to dismiss based on the parties’ affidavits and legal memoranda.

When a motion to dismiss for lack of personal jurisdiction is made on a matter not appearing on the record, the trial court may hear it on affidavits presented by the parties, or the court may direct the matter be heard wholly or partly on oral testimony or deposition. When affidavits are presented, the trial court may believe or disbelieve any statements made within those affidavits. It is in the sole discretion of the trial court to make such factual determinations.

Chromalloy American Corp. v. Elyria Foundry Co., 955 S.W.2d 1, 4 (Mo. banc 1997); see also Rule 55.28. We defer to the trial court’s determination of credibility and resolution of conflicting facts, however the sufficiency of the evidence supporting the trial court’s determination is a question of law which we review independently on appeal. Stavrides v. Zerjav, 848 S.W.2d 523, 527 (Mo.App. E.D.1993).

To subject a non-resident defendant to the long arm jurisdiction of Missouri, the plaintiff must plead and prove two elements: first, that the suit arose from any of the activities enumerated in Section 506.500 RSMo 2004, the Missouri long arm statute; and second, that the defendant has sufficient minimum contacts with Missouri to satisfy due process requirements. Capitol Indemnity Corp., 8 S.W.3d at 899. Section 506.500.1 reads, in pertinent part, as follows:

Any person or firm, whether or not a citizen or resident of this state, or any corporation, who in person or through an agent does any of the acts enumerated in this section, thereby submit ... to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of such acts:
(1) The transaction of any business within this state;
(2) The making of any contract within this state; ...

The due process clause of the Fourteenth Amendment further requires that a non-resident defendant have sufficient minimum contacts with the forum state so that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 2184, 85 L.Ed.2d 528 (1985). To determine whether Schuerman had sufficient minimum contacts permitting a Missouri court to exercise personal jurisdiction over her, we consider the following five factors: 1) the nature and quality of the contacts; 2) the quantity of those contacts; 3) the relationship of the cause of action to those contacts; 4) the interest of Missouri in providing a forum for its residents; and 5) the convenience to the parties. “The first three factors are of primary importance and the last two are of secondary importance.” Mead v. Conn, 845 S.W.2d 109, 112 (Mo.App.1993). The “minimum contacts” test “is not susceptible of mechanical application; rather, the facts of each case must be weighed to determine whether the requisite affiliating circumstances are present.” Chromalloy American Corp., 955 S.W.2d at 4 (internal quotations omitted). “The defendant’s contacts with the forum state must be purposeful and such that defendant should reasonably anticipate being haled into court in the forum state.” Id.

Reviewing the specific circumstances of this case, we find Schuerman did not have sufficient minimum contacts with Missouri to satisfy due process requirements. The affidavits of both parties reveal that Schuerman purchases St. Louis Cardinals season tickets annually through the mail and over the years, she has sold these season tickets to various individuals, including Consolidated. Consolidated does not allege that Schuerman conducts any other business or maintains any other contacts within the state of Missouri. Schuer-man averred that she has not visited Missouri since 1999. She further averred that she has not seen or spoken to anyone from Consolidated in more than seventeen years. On that basis, the quantity, nature and quality of Schuerman’s contacts were insufficient to constitute a substantial connection with Missouri. To compel Schuer-man to appear in court here based on these minimal contacts would offend the notion of fair play and substantial .justice.

Our holding is supported by numerous Missouri cases, where the nature and number of contacts were far greater than in the present case, and yet insufficient to meet due process requirements. In Mead v. Conn, 845 S.W.2d 109, 111-12 (Mo.App. W.D.1998), a Kansas doctor transmitted EKG’s to Missouri for analysis more than fifty times over a period of several years. The court found that these contacts were not sufficient in nature or quality to subject the doctor to personal jurisdiction in Missouri. In Farris v. Boyke, 986 S.W.2d 197, 201 (Mo.App. S.D.1996), the court held that although respondents were physically present in Missouri on four occasions and made several dozen telephone calls, facsimilies and letters to Missouri, this did not provide “those affiliating connections with the forum state such that they should reasonably anticipate being hauled into court in Missouri.” In Johnson Heater Corp. v. Deppe, 86 S.W.3d 114 (Mo.App.2002), a Wisconsin resident made several phone calls to Missouri to inquire about purchasing a HVAC system from a Missouri corporation. He also sent faxes and mailings to the Missouri corporation and mailed a check to Missouri to pay for the HVAC system. This Court held these contacts were not enough to create a substantial connection with Missouri to satisfy due process requirements. See also Bell Paper Box, Inc. v. Trans Western Polymers, Inc., 53 F.3d 920, 923 (8th Cir.1995) (interstate facilities, such as telephones and mail, are secondary or ancillary factors which “cannot alone provide the minimum contacts required by due process”) (internal quotations and citations omitted).

While we affirm the trial court’s dismissal for lack of personal jurisdiction, we amend the trial court’s judgment to be without prejudice, since it was not an adjudication on the merits of Consolidated’s underlying cause of action. “If the Rule were otherwise, a plaintiff would lose his cause of action, be .deprived of his day in court and of any consideration of the merits of his claim merely by the reason of the selection of the improper forum.” Hagen v. Rapid American Corp., 791 S.W.2d 452, 455 (Mo.App. E.D.1990).

The judgment is affirmed as amended.

AFFIRMED AS AMENDED.

KATHIANNE KNAUP CRANE, P.J., and LAWRENCE E. MOONEY, J. concur.

      . Consolidated insists that the standard of review dictates that all facts alleged in the petition should be deemed true and that Consolidated should be given the benefit of every reasonable inference. As discussed in Lindley v. Midwest Pulmonary Consultants, P.C., 55 S.W.3d 906, 909 n. 3 (Mo.App. W.D.2001), this standard of review is proper when the trial court treats a motion to dismiss as summary judgment under Rule 55.27. However, the record here shows that the trial court did not treat this motion as such.

      . All further statutory references are to RSMo 2004.


text:
    Robert WINSTON, Appellant, v. GENERAL MOTORS CORP., and State Treasurer, as Custodian of the Second Injury Fund, Respondents.
    No. ED 86442.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 7, 2006.
    William R. Gallagher, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Barbara L. Toepke, Jefferson City, MO, Daniel J. Harlan, St. Charles, MO, for respondent.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Robert Winston (“Employee”) appeals from the judgment of the Labor and Industrial Relations Commission (“Commission”) affirming the decisions of the administrative law judge (“ALJ”) against his employer, General Motors Corporation (“Employer”). The Commission found that the ALJ’s decisions were supported by competent and substantial evidence. First, Employee claims that the Commission erred in ruling that the claim filed on October 29, 2000, which alleged a work related injury of July 27, 1988 (“1988 injury”), was barred by the statute of limitations. Second, Employee alleges that the Commission erred and abused its discretion in not permitting Employee’s counsel to either obtain the deposition or live testimony of his employment expert whom he offered to produce within four days concerning a separate work related injury in 1992 (“1992 injury”).

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

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

      . We assume that Employee meant October 25, 1990, which is the correct date the claim was filed.


text:
    STATE of Missouri, Respondent, v. George MORNING, Appellant.
    No. ED 85603.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 7, 2006.
    Amanda R. Schehr, St. Louis, MO, for appellant.

      Deborah Daniels, Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

George Morning (“Defendant”) appeals from the trial court’s judgment after a jury conviction of one count of murder in the first degree, one count of assault in the first degree, and two counts of armed criminal action. In his sole point on appeal, Defendant contends the trial court erred in denying him the opportunity to use an “affidavit” to impeach a prosecution witness. We affirm.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. 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 30.25(b).


text:
    Richard PICKER, Appellant, v. STATE of Missouri, Respondent.
    No. ED 86333.
    Missouri Court of Appeals, Eastern District, Division One.
    March 7, 2006.
    Thomas J. Forneris, Assistant Public Defender, St. Louis, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before MARY K. HOFF, P.J., CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Richard Picker (“Movant”) appeals from the judgment in the Circuit Court of St. Louis County denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. In his appeal, Mov-ant argues that the motion court clearly erred when it denied his Rule 24.035 motion without an evidentiary hearing because Movant pleaded facts which, if true, would warrant post conviction relief.

We have reviewed the briefs of the parties and the record on appeal and find the motion court’s decision was not clearly erroneous. An extended opinion would have no precedential value. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision.

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


author: BOOKER T. SHAW, J.

text:
    Tracy M. ATKINSON, n/k/a Tracy M. Dinella, Appellant, v. Douglas ATKINSON, Respondent.
    No. ED 86857.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 7, 2006.
    Susan Kreher Roach, Clayton, MO, for appellant.
    Benicia Ann Baker-Livorsi, St. Charles, MO, for respondent.
   BOOKER T. SHAW, J.

Tracy M. Atkinson, n/k/a Tracy M. Dinella (“Mother”), appeals from the trial court’s judgment dismissing her motion for reimbursement for fifty percent of their children’s uninsured medical expenses from Douglas Atkinson (“Father”) for failure to state a claim. We reverse and remand for further proceedings consistent with this opinion.

Facts and Procedural History

Mother and Father were married in July 1998 and had two children during the marriage. In November 2001, the judgment and decree of dissolution was entered dissolving their marriage. Mother and Father were awarded joint legal custody of their two minor children, and Mother was awarded primary physical custody of the children. The judgment was silent on the division of uncovered medical expenses of the parties’ children.

In November 2003, Mother filed a motion to modify the judgment of dissolution asking the trial court to equally divide uncovered medical expenses between Mother and Father for the children. In October 2004, the parties entered into a consent judgment (“Consent Judgment”), which specifically addressed this issue. Mother appealed and this Court affirmed the Consent Judgment in Atkinson v. Atkinson, 169 S.W.3d 561 (Mo.App. E.D.2005). While that appeal was pending, Mother filed a “Motion to Determine Sums Due and Owing” before the trial court, seeking reimbursement from Father for uncovered medical expenses for the children. Father filed a motion to dismiss her motion for failure to state a claim, which the trial court granted. This appeal follows.

Analysis

In her only point on appeal, Mother argues the trial court erred in granting Father’s motion to dismiss her motion for reimbursement for fifty percent of their children’s uninsured medical expenses from Father for failure to state a claim. We reverse and remand for further proceedings consistent with this opinion.

‘We review de novo the grant of a motion to dismiss, examining the pleadings to determine whether they invoke principles of substantive law.” Weems v. Montgomery, 126 S.W.3d 479, 484 (Mo.App. W.D.2004). We liberally construe the pleadings and accept all alleged facts as true and construe the facts in a light most favorable to the pleading party. Id.

In her “Motion to Determine Sums Due and Owing,” and memorandum in support of her motion, Mother relied upon the Consent Judgment and Section 454.633.3, RSMo 2004. Mother alleged in her motion that she incurred uninsured medical expenses on behalf of the children in the amount of $8,270.00, and that she presented proof of these expenses to Father, but that he refused to contribute any funds. Mother requested that the trial court order Father to pay fifty percent of these uninsured medical expenses. Father filed a motion to dismiss Mother’s motion to determine sums due and owing for failure to state a claim. The trial court sustained Father’s motion. We disagree with the trial court and find Mother’s motion states a claim for relief under Section 454.633.3, RSMo 2004.

Section 454.633.3, RSMo 2004, governs the payment of a child’s uncovered medical expenses by his parents and states in pertinent part:

As between parents, responsibility for the child’s care expenses that are not covered by a health benefit plan may be equitably apportioned between the parents by the court ..., in percentage shared based on their income, or based on a written agreement of the parties. If the order or agreement fails to designate the shares applicable to the parents, then each parent shall be liable for fifty percent of such expenses.

This is precisely what Mother was seeking from the trial court in her motion — an order requiring Father to reimburse her for fifty percent of the uncovered medical expenses for their children. In addition, the Consent Judgment the tidal court entered in October 2004 specifically provided that Mother and Father shall each pay fifty percent of any non-covered medical expenses for their children. As such, Mother properly pled a cause of action for reimbursement of these uncovered medical expenses and the trial court erred in dismissing her motion. We reverse and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

KATHIANNE KNAUP CRANE, P.J., and LAWRENCE E. MOONEY, J., concur.

      . Mother’s motion for leave to supplement her brief is hereby granted and we accept her jurisdictional statement as filed with that motion.

      . In his brief, Father argues Mother’s motion should be denied because her claim is precluded by res judicata. However, Father did not specifically assert this argument in his motion to dismiss before the trial court and it is therefore not properly before us. Res judi-cata cannot be asserted for the first time on appeal. See Lamont v. Lamont, 922 S.W.2d 81, 85, n. 1 (Mo.App. W.D.1996); Heins Implement Co. v. Missouri Highway & Transp. Comm’n, 859 S.W.2d 681, 685 (Mo. banc 1993) (finding that res judicata must be pleaded in an answer, raised by an amendment to the pleadings or presented in a timely motion to the trial court).
      At oral argument before this Court, Father cited Chesterfield Village, Inc. v. City of Chesterfield, 64 S.W.3d 315 (Mo. banc 2002), for the proposition that he did not need to specifically assert res judicata in his motion to dismiss. However, in that case, the party specifically raised res judicata in its motion to dismiss before the trial court. Therefore, Chesterfield is distinguishable from the case before us and Father's reliance upon it is misplaced.


text:
    Steven M. SLAUGHTER, Appellant, v. STATE of Missouri, Respondent.
    No. ED 86305.
    Missouri Court of Appeals, Eastern District, Division One.
    March 7, 2006.
    Maleaner R. Harvey, Assistant Public Defender, St. Louis, MO, for appellant.
    Deborah Daniels Assistant Attorney General Jefferson City, MO for respondent.
    Before MARY K. HOFF, P.J., CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Steven Slaughter (Movant) appeals from the judgment of the Circuit Court of the City of St. Louis denying his Rule 29.15 Motion for Post-Conviction Relief without an evidentiary hearing. In his appeal, Movant argues that the motion court clearly erred when it failed to find that the attorney who represented him at his jury trial on the charges of robbery in the first degree and armed criminal action rendered ineffective assistance. More specifically, Movant contends that his trial counsel rendered ineffective assistance of counsel when counsel failed to: (1) move to suppress the revolver used in the robbery and pictures of the revolver; and (2) object to a police officer’s testimony that Movant admitted to owning the revolver for two years and carrying it for protection.

We have reviewed the briefs of the parties and the record on appeal and find the motion court’s decision was not clearly erroneous. An extended opinion would have no precedential value. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision.

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


text:
    STATE of Missouri, Plaintiff/Respondent, v. Curtis PHILLIPS, Defendant/Appellant.
    No. ED 86250.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 7, 2006.
    Lisa M. Stroup, St. Louis, MO, for Appellant.
    Deborah Daniels, Dora A. Fichter — co-counsel, Jefferson City, MO, for Respondent.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Curtis Phillips (Defendant) appeals from a judgment of conviction of forcible rape, kidnapping, and two counts of second-degree robbery. Defendant alleges the trial court abused its discretion in excluding certain testimony and plainly erred in failing to sua sponte intervene during certain cross-examination of Defendant. We have reviewed the briefs of the parties and the record on appeal and conclude that the trial court did not clearly abuse its discretion in sustaining the State’s objection to certain testimony and did not plainly err in failing to sua sponte intervene during cross-examination of Defendant. An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Criminal Procedure 30.25(b).


author: GLENN A. NORTON, C.J.

text:
    KAREN LITTLE, LLC, individually and on behalf of all others similarly situated, Plaintiff/Respondent, v. BRINKER MISSOURI, INC., and Sunbelt Communications and Marketing, LLC, Defendants/Appellants.
    No. ED 87383.
    Missouri Court of Appeals, Eastern District, Division Five.
    March 7, 2006.
    Geoffrey M. Gilbert, Jr., St. Louis, MO, for Plaintiff/Respondent.
    Steven A. Katz, St. Louis, MO, for Defendants/Appellants.
   GLENN A. NORTON, C.J.

Brinker Missouri, Inc. and Sunbelt Communications and Marketing LLC (Appellants) appeal from the trial court’s order granting class certification. We dismiss the appeal.

Karen Little, LLC (Respondent) filed suit against Appellants as a class action to recover damages under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. section 227, for claims arising out of Appellants’ transmission of facsimile advertisements to persons and businesses in the St. Louis area without express invitation or permission. Respondent sought class certification under Rule 52.08(b)(3) to bring the suit on behalf of itself and all others similarly situated. On September 23, 2005, the trial court entered an order granting the motion for class certification and certifying a class. On December 15, 2005, Appellants filed a notice of appeal with the circuit court.

Generally, in civil cases, an aggrieved party may only appeal from a final judgment. Section 512.020, RSMo Cum.Supp. 2004; Rule 74.01(b). In 2004, the legislature amended section 512.020 to allow certain interlocutory appeals from orders “granting or denying class action certification provided that ... [t]he court of appeals, in its discretion, permits such an appeal.” Section 512.020(3). In response to the amendment, this Court adopted a special rule, effective January 1, 2005, that set forth the procedure a party must follow to obtain permission to appeal from orders granting or denying class action certification. Local Rule 411 (repealed effective January 1, 2006). This rule required a party to file a petition with this Court seeking permission to appeal within twenty (20) days of the entry of the order. Local Rule 411(a). In addition, it set forth in detail the requirements of the petition, as well as the requirements of any response from a party opposing the petition. Local Rule 411(c).

Here, Appellants did not file a petition seeking permission to appeal from the order granting class action certification. Instead, they filed a notice of appeal directly with the circuit court, although leave had not been granted. Therefore, on December 15, 2005 when they filed their notice of appeal, there was neither a final judgment nor an order allowing the interlocutory appeal. Section 512.020(8); O’Neill v. O’Neill, 864 S.W.2d 7, 8 (Mo.App. E.D.1993). Without such an order, this appeal is simply from an interlocutory order and is not appealable.

This Court issued an order directing Appellants to show cause why this appeal should not be dismissed. Appellants assert that section 512.020(3) allows for this appeal and that the Court’s rules cannot require that Appellants seek leave to pursue such an appeal. We disagree. The statute provides only that such orders are appealable if “[t]he court of appeals, in its discretion, permits such an appeal.” Section 512.020(3). This Court set out a procedure for obtaining permission and this procedure was not followed. This Court has the power to promulgate rules related to its court procedure. See, Rule 50.01; Mo. Const., Art. V, section V. Rule 50.01 specifically, authorizes this Court to make rules “governing the administration of judicial business.” Appellants’ failure to follow the required procedure leaves only an appeal from an interlocutory order, which is not appealable. Indeed, the trial court can always revisit and change a class certification order at any time before it renders a decision on the merits. Reinhold v. Fee Fee Trunk Sewer, Inc., 664 S.W.2d 599, 602 (Mo.App. E.D.1984).

On the Court’s own motion, the appeal is dismissed without prejudice.

KATHIANNE KNAUP CRANE and BOOKER T. SHAW, JJ., concur.

      . Our Local Rule 411 was repealed effective January 1, 2006, the same date Supreme Court Rule 84.035 became effective. In many respects, Rule 84.035 is similar to Local Rule 411. All future petitions for permission to appeal should follow Rule 84.035.


text:
    STATE of Missouri, Respondent, v. Kendrick WOODS, Appellant.
    No. ED 85708.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 7, 2006.
    JoAnn Rotermund, St. Louis, MO, for Appellant.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Linda Lemke, Asst. Attorney General, Jefferson City, MO, for Respondent.
    Before NANNETTE A. BAKER, P.J. and ROBERT G. DOWD, JR. and SHERRI B. SULLIVAN, JJ.
   ORDER

PER CURIAM.

Defendant, Kendrick Woods, appeals from the judgment upon his conviction by a jury of assault in the first degree, Section 565.050, RSMo 2000, for which Defendant was sentenced by the trial court to ten years’ imprisonment. Defendant contends (1) the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence because there was insufficient evidence to establish serious physical injury, and (2) the trial court plainly erred in overruling Defendant’s objection to statements made by the prosecutor in closing argument because the statements invited juror speculation about uncharged crimes and were improper propensity evidence.

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


text:
    STATE of Missouri, Respondent, v. Leslie Leroy ORTON, Appellant.
    No. ED 86034.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 7, 2006.
    Wayne M. Keller, Cape Girardeau, MO, for appellant.
    Deborah Daniels, Jefferson City, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Leslie Leroy Orton (“Driver”) appeals from the trial court’s judgment convicting him of driving while intoxicated, Section 577.010, RSMo 2004, and sentencing him to one-hundred and twenty days in jail. On appeal, Driver argues the trial court erred in: (1) sustaining State’s objection to defense counsel’s opinion regarding Driver’s speech at trial; and (2) finding him guilty of driving while intoxicated because there was insufficient evidence to prove this beyond a reasonable doubt.

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. No precedential or jurisprudential purposes would be served by an opinion restating the detailed facts and the principles of law. The parties have been furnished with a memorandum for their purposes only explaining the reasons for this order affirming the judgment pursuant to Rule 30.25(b).


author: ROBERT S. BARNEY, Judge.

text:
    HEINTZ ELECTRIC COMPANY, Respondent, v. TRI LAKES INTERIORS, INC., Appellant.
    No. 27129.
    Missouri Court of Appeals, Southern District, Division Two.
    March 10, 2006.

      Gary R. Long, Carnahan, Evans, Cant-well & Brown, P.C., Springfield, for Appellant.
    Craig F. Lowther, Michael L. Miller, Lowther Johnson, Springfield, for Respondent.
   ROBERT S. BARNEY, Judge.

Tri Lakes Interiors, Inc. (“Appellant”) appeals the trial court’s denial of its motion to set aside default judgment pursuant to Rule 74.05(d). Appellant raises two points of trial court error discussed below. We reverse and remand.

The underlying litigation involves two lawsuits arising, as best we can discern, from a lease agreement entered into by the parties and/or their assigns. Both lawsuits were filed in separate divisions of the Circuit Court of Greene County by Heintz Electric Company (“Respondent”) against Appellant.

In case number 304AC7131 (“the first case”) filed September 15, 2004, Respondent sought judgment against Appellant for $6,000.00 in unpaid rent, possession of the premises, interest, late fees and attorney fees. Respondent was granted a judgment which awarded it $6,000.00 in unpaid rent up to the time of the petition being filed, attorney fees in the amount of $1,000.00, and court costs. Respondent then initiated execution and garnishment proceedings against Appellant in an effort to collect the aforementioned judgment. On March 7, 2005, Respondent filed a release of garnishment arising from the judgment granted it in the first case.

During the course of the foregoing proceedings in the first case, Respondent filed a second case on February 1, 2005, asserting that Appellant had failed to pay Respondent $6,000.00 per month rent “for the lease term for the months of October, November, December, January, February and March 2005.” Respondent maintained Appellant owed it $36,000.00 in addition to late fees, interest, and attorney fees. When Appellant failed to file any responsive pleadings, the trial court entered a default judgment on April 5, 2005, in favor of Respondent and against Appellant in the total amount of $37,529.00 including costs incurred. Respondent again initiated execution and garnishment proceedings against Appellant.

On June 7, 2005, Appellant filed a timely motion to set aside the default judgment entered in the second case. In its motion and in this appeal, Appellant sets out various reasons for its assertion that the default judgment should be set aside.

According to Appellant, when the summons in the second case was served upon Appellant’s secretary, Appellant mistakenly “assumed the papers served were [papers relating to the first case], as the parties were the same and the allegations were the same.” As a result, Appellant maintained it “disregarded” the “paperwork” relating to the second case. Additionally, Appellant alleged that at the time the second case was filed it was still negotiating payment of the judgment relating to the first ease with Respondent and Respondent made no mention to Appellant of its recently filed, second case. Furthermore, Appellant asserted in its motion that Respondent’s “counsel never contacted or advised [Appellant’s] counsel of the existence of the [second case], despite ongoing discussions concerning the [first ease] for over a month after the [second case] was filed.” Lastly, Appellant also maintained that “[n]either [Appellant] nor [Appellant’s] counsel received any notice of hearing from [Respondent] or them counsel of the [second case], nor were [Appellant] or [Appellant’s] counsel ever advised of the entry of a default judgment in the [second case].” Appellant also asserted it did not intentionally or recklessly impede the judicial process by its actions, and only “first became aware of the entry of default judgment [resulting from the second case] on or about May 24, 2005, when [Appellant’s] bank accounts were garnished by [Respondent] as a result of the entry of default judgment.”

Appellant maintained it also had a meritorious defense of res judicata to Respondent’s asserted cause of action in the second case, and in support alleges that because both cases concerned rents owed, the same lease, the same parties, and the same period of time, Respondent was barred from filing the second case, because of the judgment entered in the first case.

In its judgment, the trial court overruled Appellant’s motion to set aside the default judgment relating to the second case. This appeal followed.

“[W]hen a party’s Rule 74.05(d) motion to set aside a default judgment is filed after the underlying default judgment has become final, Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), sets forth the proper standard of appellate review of the trial court’s separate and independent judgment granting or denying the motion.” McElroy, 156 S.W.3d at 401.

‘The trial court has the discretion to set aside a default judgment, and its decision will not be interfered with unless an abuse of discretion is found. The discretion not to set aside a default judgment, however, is a good deal narrower than the discretion to set one aside. Thus, appellate courts are more likely to reverse a judgment which fails to set aside a default judgment than one which grants that relief. This is because of the law’s distaste for default judgments and its preference for trials on the merits.’

Crowe v. Clairday, 935 S.W.2d 343, 345 (Mo.App.1996) (quoting Myers v. Pitney Bowes, Inc., 914 S.W.2d 835, 838 (Mo.App.1996)). We will find an abuse of discretion only where the record convincingly demonstrates abuse. Hopkins v. Mills-Kluttz, 77 S.W.3d 624, 626 (Mo.App.2002). “[Cjourts favor a trial on the merits over a default judgment and will try to obtain such a result, unless it produces inequity.” Cont. Basketball Assn. v. Harrisburg Prof. Sports, Inc., 947 S.W.2d 471, 473 (Mo.App.1997). Rule 74.05(d) “allows the trial court to set aside a default judgment ‘upon motion stating facts constituting a meritorious defense and for good cause shown,’ but only if both conditions are met.’ ” Snelling v. Reliance Auto., Inc., 144 S.W.3d 915, 918 (Mo.App.2004) (quoting Rule 74.05) (emphasis added); see also Hinton v. Proctor & Schwartz, Inc., 99 S.W.3d 454, 461 n. 8 (Mo.App.2003). Additionally, “[t]he motion must be verified or supported by affidavits or sworn testimony.” Jew v. Home Depot USA, Inc., 126 S.W.3d 394, 396 (Mo.App.2004).

Appellant’s Point One reads as follows:

The trial court erred in denying [Appellant’s] motion to set aside entry of default because [Appellant] alleged a meritorious defense, in that [Respondent] filed and obtained judgment on a previous lawsuit regarding the same lease, the same time period, the same parties, and the same damages, and this action was barred by res judicata due to the judgment in the first [case], especially since [Respondent] had the opportunity, pursuant to the lease to seek the remaining balance due under the lease in the first petition and, in fact, orally moved to do so at trial, but was denied by the trial court, and [Respondent] did not appeal that ruling.

In our review of Appellant’s first point, we note that Rule 74.05(d) states:

Upon motion stating facts constituting a meritorious defense and for good cause shown, an interlocutory order of default or a default judgment may be set aside. The motion shall be made within a reasonable time not to exceed one year after the entry of the default judgment. Good cause includes a mistake or conduct that is not intentionally or recklessly designed to impede the judicial process. An order setting aside an interlocutory order of default or a default judgment may be conditioned on such terms as are just, including a requirement that the party in default pay reasonable attorney’s fees and expenses incurred as a result of the default by the party who requested the default.

In order to show a meritorious defense, the party in default need not present extensive evidence “ ‘to make some showing to the court of at least an arguable theory of defense.’ ” Snelling, 144 S.W.3d at 918 (quoting Newton v. Manley, 824 S.W.2d 522, 525 (Mo.App.1992)). “Although there is no universal standard which establishes the components of a meritorious defense, it has been interpreted to mean ‘any factor likely to materially affect the substantive result of the case.’ ” Tinsley v. B & B Engines, Inc., 27 S.W.3d 859, 861 (Mo.App.2000) (quoting Yerkes v. Asberry, 938 S.W.2d 307, 309 (Mo.App.1997)). “Further, the concept of meritorious defense is not intended to impose a ‘high hurdle,’ but is designed to allow the case to be decided on the merits where there are legitimate issues to be considered.” Yerkes, 938 S.W.2d at 309. “ “When the meritorious defense is factual in nature, the party in default should recite particular facts, which if proved, would constitute a meritorious defense.’ ” Jew, 126 S.W.3d at 396 (quoting Bredeman v. Eno, 863 S.W.2d 24, 26 (Mo.App.1993)). “ ‘This does not mean, however, that such a defense must be conclusively proven. It is enough that some showing be made of the existence of at least an arguable theory from which a defense may be made.’ ” Newton, 824 S.W.2d at 525 (quoting Gibson by Woodall v. Elley, 778 S.W.2d 851, 855 (Mo.App.1989)).

Here, the meritorious defense alleged by Appellant is that of res judicata. “[R]es judicata operates as an affirmative defense, which, if properly invoked, will prevent litigation of a claim arising out of the same transaction or occurrence that is the subject of the earlier judgment.” Joel Bianco Kawasaki Plus v. Meramec Valley Bank, 81 S.W.3d 528, 535 (Mo.2002). The doctrine “applies not only to losers, but also to parties that prevailed in an earlier judgment.” Chesterfield Village v. City of Chesterfield, 64 S.W.3d 315, 318 (Mo. banc 2002). “The doctrine precludes not only those issues on which the court in the former case was required to pronounce judgment, ‘but to every point properly belonging to the subject matter of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.’ ” Id. (quoting King General Contractors, Inc. v. Reorganized Church of Jesus Christ of Latter Day Saints, 821 S.W.2d 495, 501 (Mo. banc 1991). In order for res judicata to be applicable “ ‘four identities’ must occur: 1) identity of the thing sued for; 2) identity of the cause of action; 3) identity of the persons and parties to the action; and 4) identity of the quality of the person for or against whom the claim is made.” Patrick v. Koepke Constr., Inc. v. Woodsage Constr. Co., 119 S.W.3d 551, 555 (Mo.App.2003).

In the first case, Respondent sought $6,000.00 owed for one month of unpaid rent based on the breach of a lease contract involving Appellant and Respondent or their assigns in their capacity as lessee and lessor of commercial property. Whereas, in the second case, Respondent sought $36,000.00 “for the lease term for the months of October, November, December, January, February and March 2005,” based on the breach of a lease contract as evidenced by the first ease involving Appellant and Respondent or their assigns in their capacity as lessee and lessor of commercial property. Accordingly, Appellant argues that because in the first case Respondent could have brought its action for both the $6,000.00 in unpaid rent and the $36,000.00 remaining on the lease term, its affirmative defense of res judicata is “ ‘at least an arguable theory of defense.’ ” Snelling, 144 S.W.3d at 918 (quoting Newton, 824 S.W.2d at 525). In so far as the trial court may have denied Appellant’s motion to set aside based on a lack of meritorious defense, the trial court erred. Point One is well taken.

In Appellant’s Point Two, Appellant maintains the trial court erred in denying its motion to set aside the default judgment because it “demonstrated good cause ...” in that while Appellant’s employee was served with the summons in the second action, it was inadvertently discarded “under the mistaken belief that it related to the [first case].... ” Appellant additionally asserts that it “sought relief immediately after becoming aware of the default and did not intend to impede the judicial process” by failing to respond to the petition in the second case.

“ ‘Good cause includes a mistake or conduct that is not intentionally or recklessly designed to impede the judicial process.’ ” Winsor v. Terex-Telelect-Inc., 43 S.W.3d 460, 464 (Mo.App.2001), overruled, on other grounds by McElroy, 156 S.W.3d at 401 (quoting Rule 74.05(d)). “Under the language of Rule 74.05(d), ‘good faith mistakes may constitute good cause, and a default judgment can be vacated even if the movant has negligently failed to file a timely answer.’ ” Id. (quoting Billingsley v. Ford Motor Co., 939 S.W.2d 493, 498 (Mo.App.1997)). “ ‘The good cause requirement of Rule 74.05(d) is satisfied by proving that the party in default did not recklessly or intentionally impede the judicial process.’ ” Id. (quoting Billingsley, 939 S.W.2d at 498). “ ‘Good cause’ is to be interpreted liberally, ‘not only to prevent a manifest injustice but to avoid a threatened one especially in cases tried without a jury where evidence on one side only is presented.’ ” Id. (quoting Young v. Safe-Ride Servs., 23 S.W.3d 730, 732 (Mo.App.2000), overruled on other grounds by McElroy, 156 S.W.3d at 401.

Thus, in Continental Basketball, 947 S.W.2d at 474, the court determined that good cause existed to set aside a default judgment when defendant’s counsel mistakenly allowed a default judgment to be entered against defendant in the mistaken belief that counsel had filed an answer in the proper court, as the parties had three suits pending at the same time in three different venues. Further, in Clark v. Brown, 814 S.W.2d 634, 639-40 (Mo.App.1991), good cause existed where the secretary who had possession of legal documents failed to forward the documents to counsel resulting in a default judgment. See also Brueggemann v. Elbert, 948 S.W.2d 212, 214 (Mo.App.1997).

Here, Respondent maintains that Appellant failed to demonstrate good cause because it recklessly impeded the judicial process by disregarding the summons and petition after being property served. “To be reckless, a person makes a conscious choice of his course of action .... ” Gibson, 778 S.W.2d at 854 (internal quotation omitted). “Recklessness involves some element of deliberateness and of risk.” Brueggemann, 948 S.W.2d at 214.

In the instant matter, however, there is little evidence that the actions taken by Appellant’s employee were reckless, as previously defined. Most certainly there is no evidence suggesting that the actions of Appellant’s employees were designed to thwart the judicial process. According to the affidavit of Appellant’s sole shareholder, who “had no legal training” and was “not versed in legal issues concerning courts or procedural rules of same,” Appellant was “a party to another lawsuit concerning the same Plaintiffs [sic].... ” As affiant set out, “the documents” consisting of the pleadings and summons in the second case “appeared to be about the same things which the [first case] concerned,” and were “mistakenly ignored” and “were not presented to our legal counsel for handling as I thought the matters between [Appellant and Respondent] were resolved by the [first case].” Affiant also related that “although irresponsible,” the actions of Appellant “were not intended to intentionally or recklessly disregard this eourtPs] authority or this court[’s] processes, nor were such actions intended to impeded the judicial process, but were the result of an honest mistake concerning a matter which was thought to being handled [by the first case].”

The record also reveals that Appellant seasonably filed its motion to set aside the default judgment entered in the second case within less than a month after Respondent filed its garnishment in aid of executing on its second judgment, and about sixty days from the rendition of the default judgment against it. “The sooner the mistake is discovered, and acted upon, the more receptive the courts should be to a motion to set aside.” Myers, 914 S.W.2d at 839. “ ‘Prompt action to set aside a judgment is less threatening to the stability of the final judgment rule than action taken substantially later.’ ” Id. (quoting Bell v. Bell, 849 S.W.2d 194, 198 (Mo.App.1993)).

Guided by the principles announced in the foregoing cases, we determine that Appellant has shown good cause for its failure to file an answer to the petition. Rule 74.05(d). It was an abuse of discretion by the trial court to refuse to set aside the default judgment.

The judgment of the trial court is reversed and remanded for further proceedings consistent with this opinion.

SHRUM, P.J., and GARRISON, J., concur.

      . All rule references are to Missouri Court Rules (2005).

      . The trial court ruled that "[r]ent from and after August 2004 to date was not specifically pled and any evidence of such was objected to by [Appellant]...." It then determined that "[n]o future rent is awarded.”

      . We note that Appellant "filed [its] Motion to Set Aside more than thirty days after entry of the default judgment — that is, after the judgment was final pursuant to Rule 75.01.” Am. Std. Ins. Co. v. Bittick, 112 S.W.3d 55, 56-57 (Mo.App.2003). " 'When such a motion is filed after the default judgment has become final, it is treated as an independent proceeding, separate and apart from the underlying judgment.' ” Id. at 57 (quoting Popular Leasing USA, Inc. v. Univ. Art Corp., 57 S.W.3d 875, 878 (Mo.App.2001)). " 'In such a case, the trial court's order granting or denying the motion to set aside default judgment is itself (assuming that all other prerequisites of appellate jurisdiction are met) a separately ap-pealable judgment.’ ” McElroy v. Eagle Star Group, Inc., 156 S.W.3d 392, 400 (Mo.App.2005) (quoting Popular Leasing, 57 S.W.3d at 878).

      . Recall, of course, that the garnishment proceedings, seeking to satisfy the money award in the first case were on going at the time Respondent filed the second case on February 1, 2005.


author: PHILLIP R. GARRISON, Judge.

text:
    In re the MARRIAGE OF Terri YORK and Rick York, Terri York, Petitioner-Respondent, v. Rick York, Respondent-Appellant.
    No. 27067.
    Missouri Court of Appeals, Southern District, Division Two.
    March 13, 2006.

      Mark E. Rector, Allen & Rector, Lebanon, for Appellant.
    Darrell Deputy, Jr., Lebanon, for Respondent.
   PHILLIP R. GARRISON, Judge.

Rick York (“Husband”) appeals from the judgment dissolving his marriage to Terri York (“Wife”). He contends the trial court erred in awarding maintenance to Wife, arguing there was insufficient evidence to support the award, in that (1) Wife’s reasonable needs' do not justify it, and (2) Husband does not have sufficient income and assets to pay the award. We disagree and affirm the judgment of the trial court.

The parties were married on July 6, 1985, in Richland, Missouri. Two children were born of the marriage: Shanna Nicole York, who is now emancipated, and Jacoba Lee York (“Jacoba”).

Wife has a degree in Biology, Criminal Justice, and Psychology, and worked as a Missouri Probation and Parole Officer in Camdenton, Missouri, until 1998. At that time, she became disabled with fibromyal-gia, depression, chronic bronchitis, and Raynaud’s Syndrome and was unable to work. Wife is taking nineteen different prescription drugs for her illnesses and currently receives Social Security Disability payments of $594 per month.

The parties separated on or about July 14, 2004. At the time of separation, Husband was employed as a welder earning $13.69 per hour. Husband’s annual gross income for 2001-2003 was $22,212, $24,287, and $25,038, respectively.

Husband left the marital residence upon separation and moved in with Mary Orde-tay and her boyfriend. One month later, Ms. Ordetay’s boyfriend moved out and Husband continued to reside with Ms. Or-detay, paying some of her expenses. Meanwhile, Wife and Jacoba continued to reside in the marital home until they moved in with Wife’s parents, in February 2005.

Wife filed a petition for dissolution of marriage on August 12, 2004. Prior to trial, the parties entered into a marital settlement which settled all of the property division issues. Husband received ownership of the marital home and other real estate, but agreed to pay Wife the sum of $10,000 for her equity in those properties. The parties also entered into a joint parenting plan as to care and custody of Jaco-ba.

A hearing was held on the remaining issues, and on May 12, 2005, the trial court entered its judgment dissolving the marriage of the parties, ordering Husband to pay $500 per month child support, and $300 per month modifiable maintenance to Wife. Husband now appeals the portion of that judgment awarding maintenance to Wife.

Appellate review of a judgment of dissolution is the same as any other court-tried case. Henbest v. Henbest, 164 S.W.3d 198, 200 (Mo.App. S.D.2005). The trial court’s judgment will be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Buchholz v. Buchholz, 166 S.W.3d 146, 152 (Mo.App. S.D.2005); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). “Credibility issues are for the trial court to resolve, and we will assume that all factual issues were resolved in favor of the judgment entered.” Sweet v. Sweet, 154 S.W.3d 499, 504 (Mo.App. W.D.2005).

The trial court has broad discretion in determining the amount and duration of maintenance. In re Marriage of Murphy, 71 S.W.3d 202, 205 (Mo.App. S.D.2002). We are therefore limited to reviewing maintenance awards for abuse of discretion. Id. “The party challenging the maintenance award has the burden of showing an abuse of discretion.” Goodin v. Goodin, 5 S.W.3d 213, 216 (Mo.App. S.D.1999). Abuse of discretion arises where the maintenance award is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicates a lack of careful consideration. Id. Where reasonable people can differ about the propriety of the action taken by the trial court, there has not been an abuse of discretion. Id.

Husband first maintains that Wife’s reasonable needs do not justify an award of maintenance. He directs us to the threshold requirements of Section 452.335.1, which provides that before maintenance is awarded in any amount, the trial court must find that the party seeking maintenance: (1) lacks sufficient property, including marital property apportioned to her, to provide for her reasonable needs; and (2) is unable to support herself by appropriate employment. Buchholz, 166 S.W.3d at 157.

When a trial court determines whether a spouse has sufficient property to provide for his or her reasonable needs, it must consider marital property apportioned to a spouse, including any interest earned from his or her share of the marital property. Lee v. Lee, 117 S.W.3d 693, 696 (Mo.App. E.D.2003). “This ‘reflects the general principle that investment income must be considered, so that maintenance is not awarded for the purposes of building an estate or accumulation of capital.’ ” Id. (quoting Hill v. Hill, 53 S.W.3d 114, 116 (Mo. banc 2001)). However, a spouse is not required to deplete his or her share of marital property before being entitled to maintenance. Lee, 117 S.W.3d at 696. Therefore, “[i]n determining whether [Wife] has sufficient property to provide for her reasonable needs, only her income-producing property should be considered.” Clance v. Clance, 127 S.W.3d 716, 726 (Mo.App. W.D.2004).

The record reveals that Wife’s only property of significant value would be the $10,000 Husband had agreed to pay for her equity in the marital home. At the time of trial, Wife had not yet received the $10,000 in question, and Husband does not suggest in his brief that the $10,000 obligation is a source of income for Wife.

Husband does not assert on appeal that Wife is able to support herself through appropriate employment, but argues that Wife’s monthly expenses for her and the parties’ minor child are currently being met by her monthly income and child support payments. We first recognize that “[ajwards of spousal maintenance and child support are two distinctly separate concepts.” Nichols v. Nichols, 14 S.W.3d 630, 637 (Mo.App. E.D.2000). “[MJaintenance is for the needs of the recipient spouse; maintenance is not for child support.” Id. The trial court may not consider expenses attributable to the care and support of a dependent child when assessing a spouse’s need for maintenance. In re Marriage of Neu, 167 S.W.3d 791, 796 (Mo.App. E.D.2005). Accordingly, the trial court does not consider the receipt of child support payments when assessing a spouse’s ability to meet her reasonable needs.

Wife’s monthly income is limited to a Social Security Disability payment of $594. Wife initially filed an income and expense statement (“original statement”) reflecting monthly expenses, including those attributable to her minor child, of $1,255. Of that total, $1,059 was attributable to her reasonable needs. Wife later submitted an amended income and expense statement (“amended statement”), in which she claimed expenses of $2,895 per month. Of that total $2,356 was attributable to her reasonable needs. At the time of trial, Wife was living with her parents, but testified that the increased expenses were associated with an intended relocation to Jefferson City, Missouri.

Husband asserts that any expenses associated with an intended move to Jefferson City should be ignored because an award of maintenance cannot be based on a speculative future condition. Assuming arguendo, that we are to disregard all expenses associated with an intended relocation, the record still supports the trial court’s finding that Wife is unable to provide for her reasonable needs through employment and the marital property apportioned to her.

Wife’s expenses in her original statement amounted to $1,059 per month, which is clearly greater than her income of $594 per month. Of that amount, Husband asks us to ignore the $300 Wife claims she pays her parents in rent, because she has no proof of such payment. However, the trial court made no findings in this regard. Under Rule 73.01, no findings are necessary in the absence of a motion for findings of fact. Comninellis v. Comninellis, 147 S.W.3d 102, 107 (Mo.App. W.D.2004). Where neither party requests specific findings, “[a]ll fact issues ... shall be considered as having been found in accordance with the result reached.” Rule 73.01(c). Accordingly, we assume the trial court accepted Wife’s testimony regarding the $300 in rent paid to her parents.

Even had the trial court disregarded Wife’s amended statement and any expenses associated with the intended relocation, there remains sufficient evidence supporting a finding that Wife’s reasonable needs could not be met solely by her Social Security Disability payment of $594 per month.

Husband also contends that he does not have sufficient income and assets to pay $300 in maintenance. He relies on Section 452.335.2, which guides the trial court in determining the amount and duration of maintenance. Sweet, 154 S.W.3d at 504. Section 452.335.2 provides in relevant part:

The maintenance order shall be in such amounts and for such periods of time as the court deems just, and after considering all relevant factors including:
(1) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently
(2) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(3) The comparative earning capacity of each spouse;
(4) The standard of living established during the marriage;
(5) The obligations and assets, including the marital property apportioned to him and the separate property of each party;
(6) The duration of the marriage;
(7) The age, and the physical and emotional condition of the spouse seeking maintenance;
(8) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance;
(9) The conduct of the parties during the marriage; and
(10) Any other relevant factors.

Maintenance should not be disturbed on appeal unless the paying spouse is wholly without means to pay it. Crews v. Crews, 949 S.W.2d 659, 666 (Mo.App. W.D.1997). Husband’s testimony, that he could not afford to pay maintenance, was supported by an amended income and expense statement filed with the court. That statement reflected a monthly net pay of $1,881.92, and monthly expenses of $1,456. Under this estimation, after payments of child support and spousal maintenance, Husband was left with only $1,081.92 to meet his estimated expenses, a clear shortfall. However, Husband initially filed an income and expense statement reflecting $2,060.07 in net pay, and only $688.67 in expenses. If this estimation is believed, Husband has $1,260.07 remaining after child support and maintenance obligations to pay for $688.67 in expenses. Husband later retracted his first estimation, explaining the amounts were inaccurate because he had not taken the matter of filling out the statement seriously.

While maintaining that he cannot afford to pay Wife maintenance in any amount, Husband admits paying for rent and most of the utilities while residing with Ms. Ordetay. Husband also testified that he failed to report $125 per month in rental income.

As previously related, where neither party requests specific findings, “[a]ll fact issues ... shall be considered as having been found in accordance with the result reached.” Rule 73.01(c). Additionally, “[w]e defer to the trial court’s superior ability to view the witnesses and determine credibility; the court is free to believe or disbelieve all, part or none of the testimony given by any of the witnesses.” Klockow v. Klockow, 979 S.W.2d 482, 487 (Mo.App. W.D.1998). The trial court was free to disbelieve Husband’s calculated expenses especially in light of admitted inconsistencies. Assuming all factual issues were resolved in accordance with the result reached, sufficient evidence exists to support the trial court’s implicit finding that Husband is able to pay periodic maintenance of $300.

Husband has not met his burden in showing the trial court abused its discretion in awarding maintenance to Wife in the amount of $300 per month. The trial court’s determination that Wife lacks sufficient property to provide for her reasonable needs and is unable to support herself by appropriate employment is supported by sufficient evidence. Additionally, resolving all factual issues in accordance with the result reached, there is sufficient evidence supporting Husband’s ability to pay the maintenance award. Husband’s point is therefore denied.

The judgment of the trial court is affirmed.

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

      . Murphy interpreted the provisions of Rule 73.01(c). The provisions of that rule now appear in essentially the same form in Rule 84.13(d), Missouri Rules of Civil Procedure (2005).

      . All references to statutes are to RSMo (2000) unless otherwise indicated.

      . At trial, Husband testified he was in the process of obtaining a mortgage on the home, which he estimated would cost him $350 in monthly payments.

      . Husband does not dispute Wife’s inability to work, and he agrees that Wife's income is limited to $594 per month in Social Security benefits.

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


text:
    STATE of Missouri, Respondent, v. Taron Lydell CRAWFORD, Appellant.
    No. WD 65019.
    Missouri Court of Appeals, Western District.
    March 14, 2006.
    Craig A. Johnston, Columbia, MO, for Appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for Respondent.
    Before EDWIN H. SMITH, C.J., HAROLD L. LOWENSTEIN, and THOMAS H. NEWTON, JJ.
   ORDER

PER CURIAM.

Mr. Taron L. Crawford was convicted by a jury on charges of second-degree murder, § 565.021, and armed criminal action, § 571.015. Mr. Crawford raises two points on appeal that involve the cross-examination at trial by the prosecution.

For the reasons set forth in the memorandum provided to the parties, we affirm. Rule 30.25(b).

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


text:
    Gerald JOHNSON, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64792.
    Missouri Court of Appeals, Western District.
    March 14, 2006.

      Steven B. Willibey, Kansas City, MO, for appellant.
    Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before HAROLD L. LOWENSTEIN, Presiding Judge, JOSEPH M. ELLIS, Judge, and THOMAS H. NEWTON, Judge.
   ORDER

PER CURIAM.

Gerald L. Johnson appeals the denial, after an evidentiary hearing, of his Rule 29.15 motion for relief from his convictions by a Jackson County jury on one count of the class A felony of murder in the second degree, § 565.021.1(2); one count of the class A felony of robbery in the first degree, § 569.020; the class D felony of leaving the scene of a motor vehicle accident, § 577.060; and the unclassified felony of armed criminal action, § 571.015. After a thorough review of the record, we conclude that the judgment is based on findings of fact that are not clearly erroneous and that no error of law appears. An extended opinion would have no precedential value but a memorandum explaining our reasoning has been provided to the parties.

Judgment affirmed. Rule 84.16(b).