author: STEPHEN N. LIMBAUGH, JR., Judge. RONNIE L. WHITE, Judge,

text:
    Theodore J. HOFFMAN and Deborah L. Hoffman, Appellants, v. UNION ELECTRIC COMPANY, d/b/a AmerenUE, Respondent.
    No. SC 86716.
    Supreme Court of Missouri, En Banc.
    Nov. 22, 2005.

      Stephen F. Meyerkord, Steven D. Rine-berg, Doreen A. Graham, St. Louis, MO, for appellants.
    James J. Virtel, Ann E. Buckley, Armstrong Teasdale LLP, St. Louis, MO, for respondent.
   STEPHEN N. LIMBAUGH, JR., Judge.

Theodore and Deborah Hoffman appeal the entry of summary judgment disallowing their claim of negligence against Union Electric Company (UE) for the wrongful death of their daughter. After opinion by the Court of Appeals, Eastern District, this Court granted transfer. Mo. Const, art. V, sec. 10. The judgment is affirmed.

Appellants’ daughter, Tiffany Hoffman, was fatally injured when an automobile in which she was a passenger veered out of control, struck a UE electric pole, overturned, and then caught fire after an energized power line fell on it. UE’s computer monitoring system recorded an alarm with respect to the downed power line, and less than a minute later the electrical circuits “locked open,” de-energizing the circuits so that no current was flowing through the line. Emergency personnel arrived at the scene at about the same time but, upon finding the power line looped over the undercarriage of the vehicle, they did not immediately extricate Tiffany who was trapped inside. Several UE employees were dispatched to the scene, including a line service worker, but a UE construction supervisor was the first to arrive, about 25 minutes after the power line had been de-energized. Although company safety regulations and industry standards direct that employees should refrain from working on downed power lines until they are “isolated and grounded,” the supervisor did not have the proper equipment to do so, having come straight from his house in his personal vehicle. Nonetheless, relying on his experience and knowledge that the system is designed to de-energize under these circumstances, he obtained a fiberglass stick from a fire truck and removed the power line. At that point, the emergency personnel removed Tiffany from the vehicle and transported her to a hospital. She died several weeks later. Thereafter, her parents filed this wrongful death action.

Appeals from summary judgment are essentially reviewed de novo. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). To be entitled to summary judgment, the moving party must demonstrate that: (1) there is no genuine dispute as to the material facts on which the party relies for summary judgment; and (2) on those facts, the party is entitled to judgment as a matter of law. Rule 74.04. A defendant may establish a right to summary judgment by showing that the plaintiff is unable to produce sufficient evidence to establish one or more of the essential elements of the plaintiffs claim. ITT Commercial Finance Corp., 854 S.W.2d at 381. Finally, on appeal, the court “will review the record in the light most favorable to the party against whom judgment was entered.” Id. at 376.

In their petition, appellants allege that UE was negligent in failing to promptly inform emergency personnel “that it was safe to render medical care to decedent at the scene of the crash” and that UE’s negligence was the cause of decedent’s death. In their briefs and at oral argument, appellants revised their argument to allege that UE had a duty to inform emergency personnel that the power line had been de-energized, thus greatly reducing the risk of injury, not that the situation was altogether safe. In that way, appellants argue, emergency personnel could have made their own informed decision whether to extricate the decedent, and they allege that at least one of the emergency personnel was prepared to do so. To the contrary, UE maintains that Missouri law has never recognized a duty to provide information enabling emergency personnel to approach downed power lines before standard safeguards have been implemented.

Of course, in order for a plaintiff to make a submissible case of negligence, a plaintiff must establish that there was a duty and that the breach of that duty was the proximate cause of his injury. Martin v. City of Washington, 848 S.W.2d 487, 493 (Mo. banc 1993). “Whether a duty exists is purely a question of law.” Lopez v. Three Rivers Electric Cooperative, Inc., 26 S.W.3d 151, 155 (Mo. banc 2000). “The judicial determination of the existence of duty rest on sound public policy.” Hoover’s Dairy, Inc. v. Mid-America Dairymen, Inc., 700 S.W.2d 426, 431 (Mo. banc 1985). In considering whether a duty exists in a particular case, a court must weigh the foreseeability of the injury, the likelihood of the injury, the magnitude of the burden of guarding against it and the consequences of placing that burden on defendant. Gunnett v. Girardier Bldg. and Realty Co., 70 S.W.3d 632, 639 (Mo.App.2002); Benoit v. Missouri Highway and Transp. Com’n, 33 S.W.3d 663, 668 (Mo.App.2000).

At the outset, it must be made clear that appellants do not criticize UE’s computerized system for de-energizing the power lines, nor its operation in this instance; nor do they criticize the timeliness with which UE personnel arrived at the scene and removed the power line. Instead, they seek to impose a duty on UE to inform rescue workers that the risk of harm was very low should they, themselves, come in contact with the power line, with the expectation that the rescue workers would act to save the victim despite the risk.

This argument, however, disregards the fact that the risk of harm, though greatly reduced, was still so significant that UE, as noted, directed its employees to avoid contact with downed power lines unless the lines have been “isolated and grounded.” These are procedures that require specialized tools and training, as well as adequate time for implementation. In fact, these same or similar safety procedures are required under government and industry standards. For instance, Occupational Safety and Health Administration (OSHA) regulations mandate that employees must treat power lines that have been de-energized, but not “locked out or tagged,” as “energized parts.” 29 CFR 1910.333(b)(1). OSHA regulations also prohibit employees from working on exposed de-energized parts before a qualified worker has used “test equipment to ... verify that the circuit elements and equipment parts are de-energized,” 29 CFR 1910.333(b)(2)(iv)(B); or from working near de-energized overhead lines before they have been grounded or otherwise secured, 29 CFR 1910.333(c)(3). In much the same way, section 420-D of the National Electrical Safety Code states: “Employees shall consider electric supply equipment and lines to be energized unless they are positively known to be de-ener-gized.” Even appellants’ expert testified that UE’s standards are consistent with industry practice and that the standards are in place because it is possible for a power line to become re-energized.

According to the uncontradicted evidence, a line may re-energize because of an equipment malfunction, or a lightning strike, or a “crossing line” down the road that falls on a previously de-energized line, or even because of a customer’s back-up generator that has come on line in response to a power outage and “backfeeds” through the downed line. As UE’s regional dispatcher put it, there was one instance in which a line had been re-energized and “just burned a couple of guys and one of them happened to be a good friend of mine, so I know that it happens.”

The possibility that a line will re-energize, though quantitatively “very remote” as appellants’ expert described it, carries with it, of course, a qualitative risk not simply of injury, but of death. To be sure, the UE standards, government standards, and industry standards were promulgated to address that very concern. Ultimately, that is the reason why the concept of duty should not be extended to the situation at hand. If, according to these public policy-based standards, it was unsafe for UE’s trained employees to remove a downed power line even though the line was de-energized, then UE should have no duty to inform emergency personnel otherwise.

The dissent rightly stresses the societal interest in preserving human life. However, the dissent conveniently ignores the fact that OSHA regulations, industry standards and UE’s standards were all designed to protect human life from the danger presented by electricity in these very circumstances. Accordingly, the law has recognized the interest in preserving human life and, with that interest in mind, does not require UE to put more lives in danger by giving emergency personnel a reason to approach a downed power line.

Finally, the fact that the UE construction supervisor who, as the first UE employee on the scene, safely removed the line, has no bearing on the duty analysis. Suffice it to say that he was fully aware of the company standards and the risk involved, and by his own testimony, he simply disregarded them.

In conclusion, this Court holds that UE had no duty to inform emergency personnel that the power line was de-energized. The judgment is affirmed.

WOLFF, C.J., STITH, PRICE and RUSSELL, JJ., concur.

WHITE, J., dissents in separate opinion filed; TEITELMAN, J., concurs in opinion of WHITE, J.

RONNIE L. WHITE, Judge,

dissenting.

I respectfully dissent. “In the absence of a particular relationship recognized by law to create a duty, the concept of foreseeability is paramount in determining whether a duty exists.” For purposes of determining whether a duty exists, this Court has defined foreseeability as the presence of some probability or likelihood of harm sufficiently serious that ordinary persons would take precautions to avoid it.

The risks to human life when engaging in the inherently dangerous activity of transmitting electrical power are readily discernable. Indeed, this Court has already held that when a utility company has actual notice that any of its wires have become dangerous, that the company must exercise the highest degree of care and has a duty to repair any break in the line or shut off the electricity within a few short minutes.

UE’s power lines run adjacent to the roadway and it is an unquestionably foreseeable risk that a motor vehicle accident may down a utility pole and that the vehicle’s occupants and first-responders to the accident would be confronted with the risk of electrical injury. It is equally foreseeable that first-responders, when faced with downed power lines in the zone of injury, would delay attending to the victims until informed of the status of the lines. It is also foreseeable that this delayed treatment could subject the victims to further injury or death. By definition, UE had a duty to inform.

The legal file reveals that the first-responders to Ms. Hoffman’s accident stood at bay between 35 and 47 minutes of their arrival, waiting for UE personnel to attend to a dead power line. UE knew the line was not conducting electricity two minutes prior to the arrival of the first-responders. UE knew that the line could be re-energized under certain circumstances, extremely rare circumstances by their own admission. UE elected to retain the information it exclusively possessed rendering the first-responders powerless to make an informed decision on intervening.

Between the parties’ pleadings there remained a total of 17 material facts in dispute in relation to Ms. Hoffman’s claim. Of particular importance was testimony from one of the paramedics who stated he would have extricated Tiffany from the vehicle and provided medical treatment had UE shared its information. In the presence of a recognized duty to inform, these disputed material facts supporting a theory of unnecessary delay in treatment would allow the plaintiff to survive summary judgment. The burden on UE to provide this information is small and if a human life can be saved, the societal benefit is great. There certainly is no greater societal interest worthy of protection other than the preservation of human life.

Even if the utility company could expedite life-sustaining treatment by providing this information in but one out of one hundred accidents, given that the benefit is preserving human life, it seems unconscionable not to recognize such a simple duty to disclose this information. Recognizing the existence of this duty does not open the floodgates to frivolous litigation. A plaintiff in any case is still required to meet the significant legal burdens of proving the duty was breached, that specific injury resulted and that the breach of the duty directly and proximately caused those defined injuries.

The principal opinion responds by stressing that regulations and industry standards serve as legal recognition of the interest of preserving human life, and if UE disclosed the line status information that would somehow put more fives at risk. Contrary to the principal opinion’s conclusions, recognizing this duty does not place any additional duties on the first-responders or require UE, or any other utility, to place any additional people at risk. The duty to inform is simply that, a duty to inform. The first-responders once armed with line status information can make an informed decision on whether to intervene. It is the sharing of the fine status information, knowing if the fine is safe to approach or not, that protects other individuals from harm. It is the concealment of this information that puts additional people at risk.

Ironically, the UE employee dispatched to the accident scene disregarded the policies, standards and regulations the principal opinion touts, and used a fiberglass pole obtained from the first-responders to move the downed fine from the vehicle. At deposition, this employee stated that the fine was de-energized and that he doubted anyone would have been injured had they touched the vehicle. Apparently, this UE employee was confident that the first-responder’s equipment was all that was necessary to remove the line from the vehicle.

Today, the majority opinion holds that utility companies have no legal duty to provide line status information to first-responders during a time of life-threatening emergency. While the majority may have discharged UE from any legal obligation, perhaps the company will recognize its own moral obligation to protect the sanctity of human life. It must have been difficult for the first-responders to watch the life slowly drain from Tiffany Hoffman not knowing if they made a reasoned decision to withhold treatment. I would reverse the trial court’s order granting summary judgement.

      . Lopez v. Three Rivers Electric Cooperative, Inc., 26 S.W.3d 151, 156 (Mo. banc 2000).

      . Id.

      . Grattan v. Union Elec. Co., 151 S.W.3d 59, 64 (Mo. banc 2004).

      . UE admitted it would require a second car accident at the same location, a lightning strike, or the activation of an unknown backup generator for the line to re-energize.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Terry J. WOODS, Appellant, v. STATE of Missouri, Respondent.
    No. SC 87028.
    Supreme Court of Missouri, En Banc.
    Dec. 6, 2005.
    Lew A. Kollias, Office of the Public Defender, Columbia, Michelle M. Rivera, Office of the Public Defender, St. Louis, for Appellee.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Steven K. Brown, Asst. Atty. Gen., St. Louis, for Respondent.
   PER CURIAM.

Terry J. Woods stole clothing from a retailer. He was charged under section 570.040, RSMo 2000. That statute prescribes an enhanced penalty for a person who “has previously pled guilty or been found guilty on two separate occasions of stealing.” (Emphasis added.) Woods pleaded guilty. To prove the element of prior crimes, the state established two previous guilty pleas entered on the same date, in the same court, with the same counsel, and the same judge. The trial court sentenced Woods for a class C felony.

Woods filed a motion pursuant to Rule 24.035, claiming his sentence exceeded the maximum sentence prescribed by law. He argued section 570.040 did not apply because his prior guilty pleas did not occur on two separate occasions. The motion court overruled the motion. Woods’ claim is correct. The judgment is reversed, and the case is remanded.

Standard of Review

This Court’s review of a denial of post-conviction relief is limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous. Rule 24.035(k). The trial court’s findings and conclusions are clearly erroneous only if, after a review of the entire record, the appellate court is left .with the definite and firm impression that a mistake has been made. State v. Ervin, 835 S.W.2d 905, 928 (Mo. banc 1992).

Discussion

Woods pleaded guilty to the crime of stealing. Under section 570.030 this is a class A misdemeanor unless another penalty is prescribed. The state charged that section 570.040 was the proper penalty statute. As noted, that statute requires that the pleas of guilty have occurred on two separate occasions—not that the crimes have occurred on two separate occasions.

Section 570.040 as enacted in the criminal code effective January 1, 1979, did not contain the “separate occasion” language. That section merely specified that every person who was “previously convicted of stealing two times” was subject to an enhanced penalty. Section 570.040, RSMo 1978. The legislature changed this language to include the “separate occasion” requirement. When the legislature amends a statute, it is presumed to have intended the amendment to have some effect. Wollard v. City of Kansas City, 831 S.W.2d 200, 203 (Mo. banc 1992). To construe section 570.040 as only meaning that there are two prior pleas fails to give any effect to the amendment.

In addition, the rule of lenity gives a criminal defendant the benefit of a lesser penalty where there is an ambiguity in the statute allowing for more than one interpretation. State v. Rowe, 63 S.W.3d 647, 650 (Mo. banc 2002). Section 570.040 is at least ambiguous as to whether it intends to require the pleas to be on separate occasions or the crimes to be on separate occasions. Woods is entitled to the benefit of that ambiguity.

Conclusion

The motion court clearly erred in finding that section 570.040 did not require the previous pleas to be on separate occasions. The judgment is reversed, and the case is remanded for resentencing.

As Woods may have served a sentence longer than that authorized for a class A misdemeanor, any motion for rehearing must be filed on or before 1:00 p.m., December 9, 2005.

All concur.

      . This Court granted transfer of this appeal from the court of appeals after opinion by that court. Mo. Const. art. V, sec. 10.

        . All statutory citations are to RSMo 2000 unless otherwise noted. Section 570.040.1 provides:
      Every person who has previously pled guilty or been found guilty on two separate occasions of stealing, and who subsequently pleads guilty or is found guilty of stealing is guilty of a class C felony and shall be punished accordingly.

      .Section 570.030.8 provides: “Any violation of this section for which no other penalty is specified in this section is a class A misdemeanor.”


author: NANNETTE A. BAKER, Presiding Judge.

text:
    Virginia MURRAY, Respondent, v. John MURRAY, Appellant.
    No. ED 85867.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 15, 2005.

      Joanne M. Descher, Valerie T. Murray (co-counsel), St. Louis, MO, for appellant.
    Craig G. Kallen III, St. Louis, MO, for respondent.
   NANNETTE A. BAKER, Presiding Judge.

John Murray (“John”) appeals from a judgment of the trial court dismissing a motion to quash the garnishment and holding that his former wife, Virginia Murray (“Virginia”) was not prohibited from executing on a February 2003 judgment for unpaid child support and uncovered medical expenses. First, John claims that the trial court erred in denying his motion to quash the garnishment because the garnishment was void and the trial court did not have jurisdiction over the res. Second, John alleges that the trial court erred in denying his motion to quash the garnishment because execution of a garnishment may not be had on a debt not yet due. Finally, John argues that the trial court erred in denying his motion to quash the garnishment because he was not in default on his obligation to pay back child support and unreimbursed medical expenses. Therefore, he claims that there was no judgment against him which could be satisfied by garnishment. We affirm in part and reverse in part and remand.

Background

John and Virginia were married on May 1, 1982. Three children were born of the marriage; the youngest on March 5, 1989. When the couple divorced, the divorce decree of February 15, 1996 awarded, inter alia, the marital house to Virginia, and the sum of $18,500.00 to John, to be a judgment and a lien with interest at nine percent per year. The execution of the judgment and payment of the interest was to be stayed for a period of eleven years from the date of the decree; or until the youngest living child attained age eighteen, married or otherwise became emancipated; or until Virginia remarried, whichever event occurred first.

John filed an action to modify the divorce decree in August 2001, and to transfer primary physical custody of the two minor daughters to him. Virginia then filed a motion for contempt claiming that John owed her child support and un-reimbursed medical expenses. The trial court found that John had refused to pay Virginia the amount she demanded as his portion of the unpaid medical expenses “because of his reasonable belief that no unpaid medical expenses was [sic] owed and not because he intentionally and contumaciously was refusing to comply with the court’s order.” Likewise, the court found that John had not paid Virginia the amount of child support she demanded “because of his reasonable belief that the amount of child support claimed was incorrect and not because he intentionally and contumaciously was refusing to comply with the court’s order.”

On February 26, 2008, the trial court entered a judgment for $14,225.37 against John for the unpaid arrearages. When John paid no money, Virginia garnished John’s checking account. On June 14, 2003, John and Virginia signed an agreement that John would pay an additional $800.00 per month toward the amount he owed Virginia, and she would release the garnishment on his checking account. John made the $300.00 monthly payments from June 2003 until December 2003.

In January 2004, Virginia began the process of refinancing the marital house. When the refinancing was completed, the lender paid Abstar Title Company $18,500.00 to satisfy the judgment hen against the property which John held as a result of the 1996 divorce decree. Virginia then began an action to garnish the funds being held by Abstar as a result of John’s hen on the property.

Virginia sent a garnishment request to Abstar and under instructions for service, the request to issue garnishment stated, “$18,500.00 owed to Judgment debtor upon closing of real property; Garnishment amount to be deducted from this.” There was no mention of the accrued interest of nine percent due on the judgment. The interrogatories to garnishee, dated February 11,2004, contain the following question and answer:

Q: At the time of service of the garnishment, or at any time thereafter until the return date stated in the summons of garnishment, did you owe the judgment debtor any money (including wages, salary, and commissions), or do you owe the judgment debtor any now?
A: Yes, $18,500.00 to be paid to John Murray to satisfy lien on 455 S. Gore Ave. 63119.

Abstar then submitted a check to the clerk of the court dated February 9, 2004, in the amount of $15,047.27, as the garnishment request specified. The funds were disbursed by the court on February 23, 2004.

John filed a motion to quash the garnishment on February 24, 2004 after the funds had been disbursed. The trial court denied the motion, holding that Virginia’s garnishment filed on February 13, 2004 was valid and was properly processed by the court.

Standard of Review

In court tried cases, the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is against the weight of the evidence with caution and with a firm belief that the decree or judgment is wrong. Id.

Obligation

We will begin with Point III, regarding the validity of the judgment. John claims that the trial court erred in dismissing his motion to quash the garnishment because he was not in default on his obligation to pay back child support and unreimbursed medical expenses. In addition,, he argues that the garnishment request is barred by the doctrine of waiver and acquiescence. He asserts that Virginia waived any right to immediate payment in full because of the agreement of . June 2003 whereby she released the garnishment of his checking account and he agreed to pay an additional $300.00 per month. John argues that since he made the additional monthly payments to Virginia, she waived her right to immediately demand payment in full of the entire past due amount, and therefore the garnishment was invalid.

Waiver by acquiescence may be interposed as a defense of an action brought by wife for arrearages in alimony or past due child support. State ex rel. Div. of Family Services v. Willig, 613 S.W.2d 705, 706 (Mo.App. E.D.1981). Delay in demanding payment of child support or acceptance of a sum less than that owed does not preclude a claim for the full amount owed. Id. We have previously held that the defense denominated as waiver by acquiescence does not arise in the absence of some fact or circumstance which warrants the invocation of equitable considerations in order to avoid injustice. Grommet v. Grommet, 714 S.W.2d 747, 751 (Mo.App. E.D.1986). To invoke the doctrine of waiver by acquiescence, the obli-gor must show more than an agreement by the obligee to accept reduced payments or a delay in demanding full payment. Foster v. Foster, 39 S.W.3d 523, 530 (Mo.App. E.D.2001). Without more, acceptance of an amount less than owed or a delay in demanding child support payments does not rise to the level of waiver by acquiescence. State ex rel. Bramlet v. Owsley, 834 S.W.2d 868, 871 (Mo.App.1992).

Here, we find that the agreement John and Virginia entered into obligated Virginia only to release the garnishment on John’s checking account in exchange for his making the additional $300.00 monthly payments. There was no prohibition of any other garnishment, nor any provision for Virginia to waive her right to demand the full outstanding amount due at any time. We find that Virginia holds a valid judgment for the remaining child support and unreimbursed medical expenses. This point is denied.

Debt Not Yet Due

In Point II, John claims that the trial court erred in dismissing his motion to quash the garnishment because execution of a garnishment may not be had on a debt not yet due. He asserts that since he had no right to demand payment from Virginia before one of the three conditions of the dissolution decree occurred, execution of the garnishment was not proper. We agree.

Section 525.260 provides that debts not yet due to the defendant may be attached, but no execution shall be awarded against the garnishee for debts until they shall become due. Missouri law holds that garnishees may set off any matured and liquidated claims they hold against judgment debtors. Wenneker v. Physicians Multispecialty Group, Inc., 814 S.W.2d 294, 296 (Mo. banc 1991). Garnishment is a legal process through which a holder of a judgment may apply sums which others owe the judgment debtors to the satisfaction of the judgment. Id. It is said that the garnishor stands in the shoes of the judgment debtor. Id. It follows that the garnishor may reach the indebtedness which the garnishee has a present obligation to pay to the judgment debtor at the time of service, and nothing beyond this. Id. The governing principle is that the right of a garnishing creditor against a garnishee cannot be greater than the right of the judgment debtor against the garnishee. Davis v. Thompson, 619 S.W.2d 754, 756 (Mo.App. W.D.1981).

In Davis, a divorced wife sought to garnish pension fund monies held for the benefit of her ex-husband to satisfy delinquent child support payments. Id. at 755. The trial court ordered the amount of delinquency paid into court by the garnishees. Id. at 756. The Western District reversed the trial court, holding that the key point was that the husband did not have any present right to the payment of the money which would be subjected to garnishment. Id.

In the case before us, John held a judgment lien for $18,500.00 plus nine percent annual interest on the house at 455 S. Gore Avenue pursuant to the dissolution decree of February 1996. However, execution of the judgment was stayed until one of three conditions occurred: eleven years elapsed, the youngest living Murray daughter turned eighteen or became otherwise emancipated, or Virginia remarried. The debt was not yet due as of the date of the garnishment at issue. Thus, John did not have at the time of the garnishment, and does not have now, any present right to the payment of the $18,500.00 with the nine percent accrued interest. Under Section 525.260, a debt which is not due until 2007 cannot be subject to garnishment in 2004. Therefore, execution on the debt was not proper. We reverse the trial court’s judgment on this point and remand for further proceedings consistent with this opinion.

Void Garnishment

John also contends that the trial court erred in dismissing his motion to quash the garnishment because the garnishment was void so the trial court never had jurisdiction over the res. He claims that since a valid judgment and a valid execution are both necessary to enforce a garnishment, if garnishment statutes are not followed exactly, a trial court is without jurisdiction to proceed.

In our discussion of Point II, the garnishment of a debt that is not yet due, we determined that the trial court erred in dismissing John’s motion to quash the garnishment because he did not have a present right to payment of the money under the terms of the February 1996 dissolution decree. Since we find Point II dispositive, we need not determine the validity or invalidity of the garnishment document itself.

Conclusion

The judgment of the trial court is affirmed in part and reversed in part. The cause is remanded to the trial court with directions to enter an order quashing the garnishment and to take such further actions as may be consistent with this opinion.

ROBERT G. DOWD, JR., J., and SHERRI B. SULLIVAN, J., concur.

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


text:
    Casey W. SOBBERI, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85195.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 22, 2005.
    Jo Ann Rotermund, Assistant Public Defender, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shawn L. Naccarato, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Appellant, Casey W. Sobberi (“Mov-ant”), appeals from the judgment of the Circuit Court of St. Charles County denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. In the underlying case, Movant pled guilty to burglary in the first degree, section 569.160, RSMo 2000, assault in the second degree, section 565.060, armed criminal action, section 571.015, and felony stealing, section 570.030.3. Subsequently, Movant was sentenced to a total of twenty years imprisonment. We affirm.

We have reviewed the briefs of the parties and the record on appeal. As an extended opinion would serve no jurisprudential purpose, we affirm the judgment pursuant to Rule 84.16(b).

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


text:
    STATE of Missouri, Respondent, v. Antoine Edward YOUNG, Appellant.
    No. ED 84867.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 22, 2005.
    S. Kristina Starke, Gwenda R. Robinson, public defenders, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Dora Fichter, Karen Dramer, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Antoine Young (Young) appeals his convictions and sentence for forcible rape, kidnapping, assault in the second degree, and assault in the third degree. Young contends the trial court erred when it (1) submitted the kidnapping charge to the jury; (2) denied his request to cross-examine the victim regarding a prior arrest; and (3) allowed the prosecution to file, at the close of the evidence, a substitute information that added an alternative charge of assault in the second degree. We have reviewed the briefs of the parties and the Record on Appeal, and we find no error of law in this case. No jurisprudential purpose would be served by a written opinion. The parties have been provided with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed pursuant to Rule 30.25(b).


text:
    Galen MILLER and Ann Miller, Husband and Wife, Plaintiffs/Respondents, v. Wade J. LAY and Amanda R. Lay, Husband and Wife, Defendants/Appellants.
    No. ED 84979.
    Missouri Court of Appeals, Eastern District, Northern Division.
    Nov. 22, 2005.
    Branson L. Wood III, Hannibal, MO, for appellant.
    Howard M. Hickman, Kirksville, MO, for respondent.
    Before GLENN A. NORTON, C.J., CLIFFORD H. AHRENS, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Wade J. Lay and Amanda R. Lay (“the Lays”), appeal the judgment of the trial court granting a prescriptive easement in favor of Galen Miller and Ann Miller (“the Millers”). The Lays claim the trial court erred in granting the easement because such a judgment was not supported by substantial evidence, and the court misdeclared and misapplied the law.

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:
    Charles LISTON, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84982.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 22, 2005.
    Deborah Daniels, Richard Starnes (co-counsel), Jefferson City, MO, for respondent.
    Kristina Starke, St. Louis, MO, for appellant.
    Before GLENN A. NORTON, C.J., LAWRENCE E. MOONEY, J. and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Charles Liston appeals the judgment denying his Rule 29.15 motion after an evi-dentiary hearing.

The judgment of the motion court is based on findings of fact that are not clearly erroneous. No error of law appears. An extended opinion would have no precedential value. The parties have, however, been provided a memorandum setting forth the reasons for our decision in accordance with our local Rule 405. We affirm the judgment under Rule 84.16(b).

      . Liston's convictions for first-degree murder, second-degree murder and two counts of armed criminal action were affirmed in State v. Liston, 116 S.W.3d 698 (Mo.App. E.D.2003).


text:
    SHANNON RESIDUALS, L.L.C., Respondent, v. Thomas MAURER, Jr., Thomas Maurer, III, Ruby Group, L.L.C., and Terry A. Bond, Appellants.
    No. ED 85965.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 22, 2005.

      Terry A. Bond, Clayton, MO, for appellant.
    Joseph V. Ready, Jr., Clayton, MO, for respondent.
    Before GARYM. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Thomas Maurer III, Thomas Maurer, Jr., Ruby Group, L.L.C., and Terry Bond (hereinafter and collectively, “Defendant”) appeal from the trial court’s judgment in favor of Shannon Residuals, L.L.C. (hereinafter, “Shannon Residuals”). Following a bench trial, the trial court determined Shannon Residuals to be the fee simple owner of the property at issue. Defendant raises one point on appeal, claiming the trial court erred in entering judgment in favor of Shannon Residuals because Shannon Residuals failed to prove all of the elements required for mutual mistake.

We have reviewed the briefs of the parties and the record on appeal. No error of law appears. No precedential or jurisprudential purpose would be served by an opinion reciting the detailed facts and restating the principles of law. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision.

The judgment is affirmed pursuant to Rule 84.16(b).

      . The motion taken with the case to strike part of the reply brief is denied as moot.


text:
    STATE of Missouri, Plaintiff/Respondent, v. Terrance M. GREGORY, Defendant/Appellant.
    No. ED 85923.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 22, 2005.

      Richard A. Starnes, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Terrance M. Gregory, Pekin, IL, Appellant Acting pro se.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J„ and BOOKER T. SHAW, J.
   PER CURIAM.

Defendant, Terrance M. Gregory, acting pro se, appeals from an order denying his motion to modify conditions of probation. Because this order is not appealable, we dismiss the appeal.

In August 1996, defendant pleaded guilty to criminal nonsupport, a class D felony, in violation of section 568.040.4 RSMo (1994). The trial court suspended imposition of sentence and placed defendant on probation for a period of five years. In February 1999, the trial court revoked defendant’s probation and sentenced him to a term of five years imprisonment, suspended execution of sentence, and placed him on probation for a period of five years. As a condition of probation, the court ordered defendant to make certain specified support payments at designated times. In April 2000, a request to revoke defendant’s probation was filed. At that time, the court suspended defendant’s probation and issued a warrant for his arrest.

In September 2004, defendant filed a request for modification of sentence. Defendant alleged that since his probation revocation in February 1999, he had been in federal custody on unrelated charges, and therefore could not make the court-ordered support payments. Defendant requested that his sentence for his nonsupport conviction be considered concurrent to his federal sentence, that upon release from his federal sentence his support payments “be reinstated,” and that the warrant for his arrest be rescinded. The trial court denied the motion.

In November 2004, defendant filed a motion to modify conditions of probation. Defendant again alleged that immediately after his February 1999 probation revocation, he was placed in federal custody, and therefore has been unable to make the court-ordered support payments. Defendant also alleged that in April 2000, his probation was revoked. Defendant requested that his probation be reinstated upon his release from federal custody or his placement in a community corrections center. The trial court denied this motion on November 15, 2004. Defendant filed a notice of appeal from this order.

For his sole point on appeal, defendant claims the trial court erred in “revoking his probation” on the basis of his inability to pay. This point does not address the order- appealed from. However, even if it did, we agree with the state’s argument that we lack jurisdiction to consider the appeal.

There is no right to an appeal absent statutory authority. State v. Sturdevant, 143 S.W.3d 638 (Mo.App.2004). Section 547.070 RSMo (2000) provides for an appeal in all criminal eases in which a final judgment has been rendered. Rule 30.01 also provides that “[a]fter the rendition of final judgment, in a criminal case, every party shall be entitled to any appeal permitted by law.” In a criminal case, a final judgment occurs only when a sentence is entered. Sturdevant, 143 S.W.3d at 638. Probation is not part of the sentence. State v. Dunn, 103 S.W.3d 886, 887 (Mo.App.2003). Therefore, there is no right to appeal a ruling on a motion to modify conditions of probation. Id. Section 559.021.7 RSMo (Cum.Supp.2005), which allows a court to “modify or enlarge the conditions of probation at any time prior to the expiration or termination of the probation term,” does not authorize an appeal from the denial of a motion to modify probation. Accordingly, there is not a final appealable judgment. See Sturdevant, 143 S.W.3d at 638. Defendant’s remedy, if any, is by writ.

In his notice of appeal, defendant asserts that his appeal is authorized under Rule 37.22(a). Rule 37 “governs the procedure in all courts of this state having original jurisdiction of ordinance violations and the disposition of any such violation in a violation bureau.” Rule 37.01. There is no ordinance violation at issue here. Therefore, Rule 37.22(a) does not apply.

Appeal dismissed.


author: PATRICIA L. COHEN, Judge.

text:
    Melinda SLOAN-ODUM, Appellant, v. John C. WILKERSON, Respondent.
    No. ED 86058.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 22, 2005.

      Spencer E. Farris, St. Louis, MO, for appellant.
    Martin M. Clay, Sr., St. Louis, MO, for respondent.
   PATRICIA L. COHEN, Judge.

Introduction

Melinda Odum appeals from a judgment of the Circuit Court of St. Louis County denying her Motion for Leave to file a counterclaim for personal injuries in connection with an automobile accident between her and Plaintiff John Wilkerson. In her appeal, Ms. Odum contends that the trial court improperly precluded her claim for personal injuries when it denied her leave to amend an answer filed on her behalf by the State of Missouri, her employer. We reverse and remand.

Statement of the Facts and Proceedings Below

On July 9, 2002, Melinda Odum struck John Wilkerson with her van as Mr. Wilkerson tended to his disabled vehicle in an eastbound lane of Interstate 70 in North St. Louis County. As a result of the collision, both Mr. Wilkerson and Ms. Odum were injured. At the time of the accident, Ms. Odum worked for the State of Missouri, was engaged in her duties and was driving a state-owned vehicle.

On August 7, 2003, Mr. Wilkerson filed a Petition against Ms. Odum and the State of Missouri for property damage and personal injuries. The Missouri Attorney General filed an answer on behalf of both Ms. Odum and the State, which included a counterclaim for damage to the state-owned vehicle.

After the pre-trial conference of June 8, 2004, the trial court set the matter for trial on December 6, 2004. On November 24, 2004, Ms. Odum’s counsel faxed a letter to attorneys for the State and Mr. Wilkerson advising of his intention to file a counterclaim for Ms. Odum’s “medical damages.” Counsel for Mr. Wilkerson responded that his client would object to the filing of a counterclaim “at this late date.” On November 29, 2004, counsel for Ms. Odum served his entry of appearance, Motion for Leave, Counterclaim and Notice of Hearing scheduled for December 6, 2004.

The legal file discloses that the trial court denied the Motion for Leave to Amend. However, the trial court’s order contains no reason for the denial. In addition, there is no record of the grounds argued to the trial court in support of or in opposition to the Motion for Leave to Amend.

The trial commenced, as scheduled, on December 6, 2004. The jury rendered a verdict on December 8, 2004, finding in favor of Mr. Wilkerson on his claim for personal injuries, awarding $800,000, and assessing 80% of the fault to Ms. Odum. Following the trial court’s denial of Defendants’ Motion for Judgment Notwithstanding the Verdict or Alternatively for New Trial, Ms. Odum appealed.

Discussion

In her sole point, Ms. Odum contends that the trial court erred in denying her Motion for Leave to Amend her answer to add a counterclaim for personal injuries. Specifically, Ms. Odum asserts that the trial court abused its discretion when it failed to consider the prejudice that resulted to Ms. Odum from denying her leave to amend. In response, Mr. Wilkerson asserts that the trial court properly denied leave to amend because Ms. Odum failed to allege new facts in support of her proposed counterclaim and a late amendment would cause prejudice to Mr. Wilkerson.

As an initial matter, we note that Rule 55.33(a) provides, in pertinent part, that a “pleading may be amended only by leave of the court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” A trial court has broad discretion to grant a party leave to amend an answer. Dwyer v. Meramec Venture Assoc., L.L.C., 75 S.W.3d 291, 292 n. 1 (Mo.App. E.D.2002). However, “it is an abuse of discretion to not grant such leave when justice so requires.” Id.

To determine whether the trial court erred in denying leave to amend, we consider: 1) the hardship to the moving party; 2) the reasons for the moving party’s failure to include the matter in the original pleadings; and 3) the injustice to the nonmoving party should leave to amend be granted. Lester v. Sayles, 850 S.W.2d 858, 869 (Mo.banc 1993).

Ms. Odum contends the trial court’s denial of leave to amend extinguished her claim for personal injuries and thereby caused hardship. Mr. Wilkerson has not responded to Ms. Odum’s assertion that the denial of the Motion for Leave to Amend caused her hardship.

We agree that the denial of leave to amend resulted in the effective preclusion of Ms. Odum’s claim and thereby caused hardship. See Choate v. Hicks, 983 S.W.2d 611, 613 (Mo.App. S.D.1999) (trial court’s denial of leave to amend pleadings to assert compulsory counterclaim “subjects her to obvious hardship”) abrogated, in part, by Joel Bianco Kawasaki Plus v. Meramec Valley Bank, 81 S.W.3d 528, 532 (Mo.banc 2002); Manzer v. Sanchez, 985 S.W.2d 936, 939 (Mo.App. E.D.1999) (severe hardship exists where denial of leave to amend results in preclusion of cause of action). We also agree that there is no record evidence suggesting the trial court considered this critical factor.

Unquestionably, Ms. Odum’s claim constituted a compulsory counterclaim under Rule 55.32(a). Her injuries arose from the same accident forming the basis of Mr. Wilkerson’s claim for personal injuries. The purpose of Rule 55.32 is “to serve as a means of bringing all logically related claims into a single litigation, through the penalty of precluding the later assertion of omitted claims.” Joel Bianco Kawasaki, 81 S.W.3d at 532 (internal quotation omitted) (emphasis in original). Thus, any attempt by Ms. Odum to file a separate lawsuit claiming damages for her personal injuries could properly be met with an affirmative defense asserting Ms. Odum’s failure to seek relief by way of a counterclaim in Mr. Wilkerson’s suit. See Id. at 530-32.

We next address Ms. Odum’s rationale for failing to include her counterclaim in her original pleadings. Ms. Odum asserts that her delay in filing the counterclaim was caused by the requirement that she, rather than the State, assert her claim for personal injuries. Mr. Wilkerson responds simply that given the nature of her claims, Ms. Odum could have filed her counterclaim earlier. Although we agree that Ms. Odum could have filed her counterclaim earlier, this alone, particularly in light of the fact that the content of the initial answer was statutorily limited, is not sufficient to outweigh the serious hardship incurred by the denial of leave to amend. Although we cannot ascertain precisely the reason for the denial, the record before us suggests that the sole reason for the denial was the timing of the request. As in Lester v. Sayles, where, as here, the record suggests that the trial court relied solely on the timing of the request, denial of a request for leave to amend is an abuse of discretion. See Lester, 850 S.W.2d at 870.

Lastly, we consider the prejudice to Mr. Wilkerson if the trial court had granted the leave to amend. Mr. Wilkerson contends that the grant of the motion for leave to amend would have precluded normal discovery. As an initial matter, as Mr. Wilkerson concedes, the proposed counterclaim did not present any new facts with respect to the accident. Moreover, although the counterclaim does allege that Ms. Odum sustained personal injuries, Mr. Wilkerson deposed Ms. Odum in advance of trial and explored the nature and extent of her injuries. In addition, although the proposed counterclaim would have put Ms. Odum’s claimed damages in issue at trial, the trial court could have either bifurcated the issue of damages or continued the trial upon Mr. Wilkerson’s request. Indeed, there is no indication that delay was a problem in this case as it had not been pending for a lengthy period of time and neither side previously had sought to continue the December 6, 2004 trial setting. Point granted.

Conclusion

We reverse the trial court’s denial of Ms. Odum’s Motion for Leave to Amend and remand for entry of an order granting Ms. Odum’s Motion for Leave to Amend and for further proceedings.

MARY K. HOFF, P.J., and CLIFFORD H. AHRENS, J., Concurs.

      . Ms. Odum has not appealed the finding of liability and the award of damages in favor of Mr. Wilkerson. Accordingly, our opinion does not affect the judgment in favor of Mr. Wilkerson and against Ms. Odum.

      . Rule 55.32(a) provides, in pertinent part: "A pleading shall state as a counterclaim any claim that at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.”

      . Pursuant to the terms of the State Legal Expense Fund, the Attorney General was obligated to handle Ms. Odum’s defense to Mr. Wilkerson's claim, but was not obligated to prosecute her claim for personal injuries. Section 105.716.1 RSMo 2000.


text:
    Mark David BOYER, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85984.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 22, 2005.

      Timothy J. Forneris, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Robert J. Bartholomew, Jr., Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before NANNETTE A. BAKER, P.J. and ROBERT G. DOWD, JR. and SHERRI B. SULLIVAN, JJ.
   ORDER

PER CURIAM.

Mark David Boyer (Movant) appeals from the denial of his Rule 24.035 motion for post-conviction relief without an evi-dentiary hearing. Movant contends the motion court clearly erred in denying his motion for post-conviction relief without an evidentiary hearing because Movant alleged facts showing (1) there was no factual basis to find that Movant committed the charged crimes, and (2) his plea counsel was ineffective for misinforming Movant that he would serve only 48 to 68 months in prison in exchange for his guilty plea.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. The motion court’s findings of fact and conclusions of law are not clearly erroneous. Rule 24.035(k). 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 84.16(b).


author: GLENN A. NORTON, Chief Judge.

text:
    In the Interest of H.S.
    No. ED 85618.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 22, 2005.
    John J. Smith, St. Charles, MO, for respondent.
    Lynn M. Travis, O’Fallon, MO, pro se.
    Jeffrey M. Skoglund, St. Charles, MO, for appellant.
    Anthony D. Linson, St. Peters, MO, Guardian ad litem for juvenile.
   OPINION

GLENN A. NORTON, Chief Judge.

St. Charles County appeals the trial court’s order requiring it to pay attorney fees for the attorney appointed to represent Mother in a juvenile case involving neglect allegations. We dismiss the appeal.

I. BACKGROUND

The juvenile officer filed a petition against Mother under section 211.031 RSMo 2000 of the juvenile code, and the court appointed counsel to represent Mother. In August 2004, the juvenile court entered an order requiring the County to pay counsel’s attorney fees under section 211.211. About a month later, the County filed a motion to intervene for the limited purpose of resolving whether a parent’s attorney fees should be paid from County funds. It also filed a motion to reconsider, vacate, or amend the court’s August 2004 order. The County did not provide notice to the juvenile officer of its motion to intervene or of its motion to reconsider, vacate, or amend.

The juvenile court granted the County’s motion to intervene. The County filed a “Notice of Hearing” on its motion to reconsider, vacate, or amend, but did not provide notice to the juvenile officer. Thereafter, the juvenile officer filed a motion to dismiss any and all motions, actions and/or pleadings filed by the County regarding payment of attorney fees based, in part, on the County’s failure to provide notice to the juvenile officer and other parties to the proceeding. In December 2004, the juvenile court granted that motion to dismiss, but allowed the County fifteen days to refile or file other appropriate pleadings. It also stated that all necessary parties shall be served in the event the County re-files or files other pleadings. On the same day, the County refiled its motion to reconsider, vacate, or amend with the juvenile court and filed its notice of appeal relating to the August 2004 order with this Court.

II. DISCUSSION

The juvenile officer argues that we do not have jurisdiction over this appeal. We agree for the same reasons articulated in In re C.D., ED 85621, 176 S.W.3d 730, 2005 WL 3112127 (Mo.App.E.D. November 22, 2005), also handed down today. The trial court’s order was not denominated a judgment, as required by Rule 74.01(a), and did not dispose of all issues in the case. Accordingly, we dismiss this appeal for lack of jurisdiction.

III. CONCLUSION

The appeal is dismissed.

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

      . All statutory references are to RSMo 2000.

      . The table of contents to the legal file indicates that the County also refiled its motion to intervene on that day. But the copy of that motion included in the legal file does not contain a date stamp.

      . In light of our dismissal, the juvenile officer's motion to strike parts of the legal file and its motion to remand the cause to the trial court for determination of un-adjudicat-ed contested factual issues are denied as moot.


text:
    In the Interest of D.T.
    No. ED 85619.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 22, 2005.
    John J. Smith, St. Charles, MO, for respondent.
    Lynn M. Travis, O’Fallon, MO, pro se.
    Jeffrey M. Skoglund, St. Charles, MO, for appellant.
    Anthony D. Linson, St. Peters, MO, Guardian ad litem for juvenile.
   OPINION

GLENN A. NORTON, Chief Judge.

St. Charles County appeals the trial court’s order requiring it to pay attorney fees for the attorney appointed to represent Mother in a juvenile case involving neglect allegations. We dismiss the appeal.

I.BACKGROUND

The juvenile officer filed a petition against Mother under section 211.031 RSMo 2000 of the juvenile code, and the court appointed counsel to represent Mother. In August 2004, the juvenile court entered an order requiring the County to pay counsel’s attorney fees under section 211.211. About a month later, the County filed a motion to intervene for the limited purpose of resolving whether a parent’s attorney fees should be paid from County funds. It also filed a motion to reconsider, vacate, or amend the court’s August 2004 order. The County did not provide notice to the juvenile officer of its motion to intervene or of its motion to reconsider, vacate, or amend.

The juvenile court granted the County’s motion to intervene. The County filed a “Notice of Hearing” on its motion to reconsider, vacate, or amend, but did not provide notice to the juvenile officer. Thereafter, the juvenile officer filed a motion to dismiss any and all motions, actions and/or pleadings filed by the County regarding payment of attorney fees based, in part, on the County’s failure to provide notice to the juvenile officer and other parties to the proceeding. In December 2004, the juvenile court granted that motion to dismiss, but allowed the County fifteen days to refile or file other appropriate pleadings. It also stated that all necessary parties shall be served in the event the County re-files or files other pleadings. On the same day, the County re-filed its motion to reconsider, vacate, or amend and its motion to intervene with the juvenile court and also filed its notice of appeal relating to the August 2004 order with this Court.

II.DISCUSSION

The juvenile officer argues that we do not have jurisdiction over this appeal. We agree for the same reasons articulated in In re C.D., ED 85621, 176 S.W.3d 730, 2005 WL 3112127 (Mo.App.E.D. November 22, 2005), also handed down today. The trial court’s order was not denominated a judgment, as required by Rule 74.01(a), and did not dispose of all issues in the case. Accordingly, we dismiss this appeal for lack of jurisdiction.

III.CONCLUSION

The appeal is dismissed.

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

      . All statutory references are to RSMo 2000.

      . In light of our dismissal, the juvenile officer’s motion to strike parts of the legal file and its motion to remand the cause to the trial court for determination of un-adjudicated contested factual issues are denied as moot.


text:
    Danny L. HORNE, Respondent, v. DIRECTOR OF REVENUE, Appellant.
    No. ED 85843.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 22, 2005.
    James H. Klahr, Jefferson City, MO, for appellant.
    Robert T. Ryan, St. Charles, MO, Robert S. Adler, St. Louis, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

The Director of Revenue (hereinafter, “the Director”) appeals from the trial court’s judgment reinstating the driving privileges of Danny L. Horne (hereinafter, “Driver”). The Director raises one claim on appeal, arguing the trial court erred in reversing the revocation of Driver’s license because it presented sufficient evidence to make a prima facie case that Driver refused to submit to a chemical test.

We have reviewed the briefs of the parties, the legal file, and the transcript and find the trial court’s decision was not erroneous. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. The judgment is affirmed pursuant to Rule 84.16(b).


text:
    In the Interest of C.D.
    No. ED 85621.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 22, 2005.

      John J. Smith, St. Charles, MO, for respondent.
    Lynn M. Travis, O’Fallon, MO, respondent acting pro se.
    Jeffrey M. Skoglund, St. Charles, MO, for appellant.
    Anthony D. Linson, St. Peters, MO, Guardian ad litem for juvenile.
   OPINION

GLENN A. NORTON, Chief Judge.

St. Charles County appeals the trial court’s order requiring it to pay attorney fees for the attorney appointed to represent Mother in a juvenile case involving neglect allegations. We dismiss the appeal.

I. BACKGROUND

The juvenile officer filed a petition against Mother under section 211.031 RSMo 2000 of the juvenile code, and the court appointed counsel to represent Mother. In August 2004, the juvenile court entered an order requiring the County to pay counsel’s attorney fees under section 211.211. About a month later, the County filed a motion to intervene for the limited purpose of resolving whether a parent’s attorney fees should be paid from County funds. It also filed a motion to reconsider, vacate, or amend the court’s August 2004 order. The County did not provide notice to the juvenile officer of its motion to intervene or of its motion to reconsider, vacate, or amend.

The juvenile court granted the County’s motion to intervene. The County filed a “Notice of Hearing” on its motion to reconsider, vacate, or amend, but did not provide notice to the juvenile officer. Thereafter, the juvenile officer filed a motion to dismiss any and all motions, actions and/or pleadings filed by the County regarding payment of attorney fees based, in part, on the County’s failure to provide notice to the juvenile officer and other parties to the proceeding. In December 2004, the juvenile court granted that motion to dismiss, but allowed the County fifteen days to refile or file other appropriate pleadings. It also stated that all necessary parties shall be served in the event the County re-files or files other pleadings. On the same day, the County filed its notice of appeal relating to the August 2004 order with this Court.

II. DISCUSSION

The juvenile officer argues that we do not have jurisdiction over this appeal. We agree.

Rule 74.01(a) establishes a bright-line test as to when a writing is a judgment. City of St. Louis v. Hughes, 950 S.W.2d 850, 853 (Mo. banc 1997). It provides:

“Judgment” as used in these rules includes a decree and any order from which an appeal lies. A judgment is rendered when entered. A judgment is entered when a writing signed by the judge and denominated “judgment” or “decree” is filed. The judgment may be a separate document or entry on the docket sheet of the case. A docket sheet entry complying with these requirements is a judgment unless the docket sheet entry indicates that the court will enter the judgment in a separate document. The separate document shall be the judgment when entered.

This rule is an attempt to assist litigants and the appellate courts by clearly distinguishing between when the trial court’s orders and rulings are intended to be final and appealable and when the trial court seeks to retain jurisdiction over the issue. Hughes, 950 S.W.2d at 853.

Here, the juvenile court order only meets the “signed by the judge” requirement for finality set forth in Rule 74.01(a). There is no denomination of “judgment” or “decree” on the order itself. The County failed to file the docket sheet for the case, so we may presume that there is similarly no denomination of “judgment” or “decree” on the docket entry. See Paulsen v. Harold Tippett Oil Company, Inc., 593 S.W.2d 615, 616 (Mo.App. E.D.1980). Thus, the judgment is not final under Rule 74.01(a).

In applying Rule 74.01(a) here, we acknowledge the line of cases that state that the technical requirements of Rule 74.01(a) do not apply to all orders entered by a juvenile court. Specifically, in In re C.A.D., the court of appeals considered the application of the denomination requirement to dispositional orders of juvenile courts. 995 S.W.2d 21, 25-27 (Mo.App. W.D.1999). The court noted that the standard for a final judgment in a juvenile matter differs from the standard under general civil law because a juvenile proceeding entails an ongoing case, which does not result in a “final” order as that term is generally defined. Id. at 26-27. The court stated that the juvenile court’s exercise of continuing jurisdiction over a child, however, does not defeat a right to appeal. Id. at 27. Because a delay in determining the continuation of a custodial arrangement for a child is detrimental to the child’s best interest and welfare and to the state’s best interests, as required by Rule 110.02, the court held that the denomination requirement in Rule 74.01(a) is inconsistent with and inapplicable to dispo-sitional orders of juvenile courts. Id. at 27-28. Nothing in C.A.D., however, precludes application of the denomination requirement in Rule 74.01(a) to the juvenile court order in this case. Rather than a dispositional order determining a child’s custody, the order in this case merely assigned payment of Mother’s attorney fees to the County. There is no need to circumvent the requirements of Rule 74.01(a) with respect to this order to protect the best interests of the child. In this circumstance, Rule 74.01(a) applies. See also Rule 110.04 (stating that if no procedure is specifically provided in the juvenile court rules, then the juvenile court shall be governed by the practice and procedure customary in equity proceedings, and by Rules 41 through 101 to the extent not inconsistent therewith).

Moreover, even in the absence of the requirements of Rule 74.01(a), the order cannot be considered final because it does not dispose of all issues in the case. An appealable judgment disposes of all issues in a case, leaving nothing for future determination. Hughes, 950 S.W.2d at 852-53. The juvenile court did not dispose of all issues of the case in this order. Although the August 2004 order appeared to contain a determination that the County was required to pay Mother’s attorney fees, the subsequent actions of the County and the juvenile court’s response indicate that the court had not made a final determination of that issue before the County filed this appeal. After the juvenile court entered the August 2004 order, it granted the County’s motion to intervene, indicating that it would consider the County’s arguments in its motion to set aside, vacate, or amend. On the juvenile officer’s motion, the court then dismissed the County’s motion for procedural reasons in December 2004. Significantly, though, the juvenile court granted the County leave to re-file its motions so long as it provided notice to all necessary parties to the case. It also appears from the record that the County indeed re-filed its motions, but did not wait for the trial court to make a ruling on the merits before filing its notice of appeal.

The procedural basis of the juvenile court’s December 2004 order and its decision to allow the County to re-file its motions imply that the court had not yet considered the merits of the County’s motion and was willing to do so as long as the County provided proper notice to other parties. Under these circumstances, the August 2004 order cannot be considered a final, appealable judgment because it did not dispose of all issues in the case, specifically those raised by the County in this appeal. Accordingly, we must dismiss this appeal for lack of jurisdiction.

III. CONCLUSION

The appeal is dismissed.

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

      . All statutory references are to RSMo 2000.

      . The table of contents to the legal file indicates that the County also re-filed its motion to reconsider, vacate, or amend the juvenile court’s order and its motion to intervene on that day. But the copies of each motion included in the legal file do not contain a date stamp.

      .All references to rules are to the Missouri Supreme Court Rules (2004).

      . The County does not address the finality of the August 2004 order other than to state that "it is clear that the trial court intended its order awarding attorneys’ fees to serve as a judgment against the County for such fees” and that it had no other course of action if it wished to preserve its right to appeal the order of the trial court. Not only does the County fail to cite any authority to support its contentions, we disagree that the County had no other course of action. The juvenile court unequivocally permitted the County to re-file its motion. Had the County allowed the juvenile court to reach the merits of its motion and to enter a judgment reflecting its determination, the court may have ruled in the County's favor. If the court did not rule in the County’s favor, then the County could file a notice of appeal at that time — assuming all other requirements for appeal were satisfied. Moreover, the County’s reference to Rule 81.05 is misplaced. That rule — relating to effect of after-trial motions on the finality of a judgment — presupposes that the judgment being appealed satisfies other requirements for finality, particularly those contained in Rule 74.01(a).

      . In light of our dismissal, the juvenile officer’s motion to strike parts of the legal file and its motion to remand the cause to the trial court for determination of un-adjudicat-ed contested factual issues are denied as moot.


text:
    In the Interest of D.T.
    No. ED 85620.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 22, 2005.

      John J. Smith, St. Charles, MO, for respondent.
    Lynn M. Travis, O’Fallon, MO, respondent acting pro se.
    Jeffrey M. Skoglund, St. Charles, MO, for appellant.
    Anthony D. Linson, St. Peters, MO, Guardian ad litem for juvenile.
   OPINION

GLENN A. NORTON, Chief Judge.

St. Charles County appeals the trial court’s order requiring it to pay attorney fees for the attorney appointed to represent Mother in a juvenile case involving neglect allegations. We dismiss the appeal.

I.BACKGROUND

The juvenile officer filed a petition against Mother under section 211.081 RSMo 2000 of the juvenile code, and the court appointed counsel to represent Mother. In August 2004, the juvenile court entered an order requiring the County to pay counsel’s attorney fees under section 211.211. About a month later, the County filed a motion to intervene for the limited purpose of resolving whether a parent’s attorney fees should be paid from County funds. It also filed a motion to reconsider, vacate, or amend the court’s August 2004 order. The County did not provide notice to the juvenile officer of its motion to intervene or of its motion to reconsider, vacate, or amend.

The juvenile court granted the County’s motion to intervene. The County filed a “Notice of Hearing” on its motion to reconsider, vacate, or amend, but did not provide notice to the juvenile officer. Thereafter, the juvenile officer filed a motion to dismiss any and all motions, actions and/or pleadings filed by the County regarding payment of attorney fees based, in part, on the County’s failure to provide notice to the juvenile officer and other parties to the proceeding. In December 2004, the juvenile court granted that motion to dismiss, but allowed the County fifteen days to refile or file other appropriate pleadings. It also stated that all necessary parties shall be served in the event the County re-files or files other pleadings. On the same day, the County filed its notice of appeal relating to the August 2004 order with this Court.

II.DISCUSSION

The juvenile officer argues that we do not have jurisdiction over this appeal. We agree for the same reasons articulated in In re C.D., ED 85621, 176 S.W.3d 730 (Mo.App.E.D. November 22, 2005), also handed down today. The trial court’s order was not denominated a judgment, as required by Rule 74.01(a), and did not dispose of all issues in the case. Accordingly, we dismiss this appeal for lack of jurisdiction.

III.CONCLUSION

The appeal is dismissed.

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

      . All statutory references are to RSMo 2000.

      . The table of contents to the legal file indicates that the County also re-filed its motion to reconsider, vacate, or amend the juvenile court’s order and its motion to intervene on that day. But the copies of each motion included in the legal file do not contain a date stamp.

      .In light of our dismissal, the juvenile officer’s motion to strike parts of the legal file and its motion to remand the cause to the trial court for determination of un-adjudicat-ed contested factual issues are denied as moot.


author: MARY K. HOFF, Presiding Judge.

text:
    Frank ROTH III, Plaintiff/Respondent, v. David ROTH, Defendant/Appellant.
    No. ED 85622.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 22, 2005.
    Lee R. Elliott, Troy, MO, for appellant.

      James D. Burlison, Bowling Green, MO, for respondent.
   MARY K. HOFF, Presiding Judge.

David Roth (Defendant) appeals the trial court’s judgment after a jury verdict found him hable to Frank Roth III (Plaintiff) for payment of $20,000 on a promissory note. We reverse and remand to the trial court for a new trial.

Facts

On May 11, 1992, Plaintiff and Defendant entered into a promissory note whereby Defendant agreed to pay Plaintiff $27,859.56 plus interest at the rate of 7.5 percent per annum. The amount was secured by Defendant’s grant of a lien to Plaintiff on certain vehicles, equipment, machinery, tools, and inventory belonging to Defendant’s excavation company.

The note provided that if Defendant defaulted “in the payment of any of said monthly installments when due,” Plaintiff was entitled to exercise an option in his favor and to declare the entire debt due and payable with Defendant being responsible for all costs of collection and reasonable attorney’s fees. Significantly, the note did not provide for the amount of the monthly installments, the date when the monthly installments were to begin, the dates when the monthly installments were due, the maturation date of the note, or any reason for its creation.'

In May 2002, Plaintiff filed a petition to recover from Defendant $51,482.85 based on the note. The amount was for the principal allegedly remaining on the note after all credits were applied, including a payment of $5000 Defendant made on or about October 19,1999, plus interest in the amount of $28,623.29, which had accumulated since the note was created. In August 2002, Plaintiff filed his First Amended Petition on the note and further alleged that he had made a demand for payment of the balance of the note on October 19, 1999.

Defendant subsequently filed his Answer and Affirmative Defenses to Plaintiffs First Amended Petition (answer pleading). Defendant presented the following affirmative defenses:

4. The note was without consideration, and was signed under duress and coercion, without [Defendant’s] being allowed to read it, and was created for fraudulent purposes;
5. [Plaintiff] has had, until recently, the full use of and access to, all [Defendant’s] equipment, maintained and repaired by [Defendant] at his own expense, saving [Plaintiff] money and earning him income, unjustly enriching him at the expense of [Defendant], entitling [Defendant] of [sic] credits and offsets of the reasonable value of $50,000, plus credit for any interest calculation from the dates thereof;
6. [Plaintiff] has intercepted and kept monies due and owing [Defendant] on several occasions, and has not given [Defendant] credit therefore in the approximate value of $4,500.00, . to which credit [Defendant] is rightfully due, plus a credit for any interest calculation from the dates thereof.

Plaintiff filed a reply in which he specifically denied Defendant’s affirmative defenses. The parties subsequently engaged in two years of discovery.

On September 27, 2004, the case went to trial before a jury. Immediately prior to the start of trial, Plaintiff filed a motion in limine (Plaintiffs motion) in four parts. Two parts of Plaintiffs motion attacked the sufficiency of Defendant’s answer pleading and requested the trial court to preclude Defendant from presenting evidence concerning his affirmative defenses described in paragraphs 4, 5, and 6 of the answer pleading because the alleged defenses were conclusory statements and did not contain a short and plain statement of the facts showing Defendant was entitled to relief. The first part of Plaintiffs motion related to paragraph 4 of Defendant’s answer pleading, which concerned whether the note was void. The second part of Plaintiffs motion related to paragraphs 5 and 6 of Defendant’s answer pleading, which concerned whether Defendant was entitled to credits and set-offs. The second part also specifically argued that paragraphs 5 and 6 “set forth unrelated claims,” which were not affirmative defenses and could not be considered counterclaims because the answer pleading lacked a short and plain statement as to the facts of those counterclaims.

In chambers, Defendant argued that he should be allowed to go forward with his affirmative defenses because Plaintiff never objected to the sufficiency of Defendant’s answer pleading or asked for an amended answer pleading even though extensive discovery had taken place between the time the answer pleading was filed and the date of trial. Defendant requested that the trial court grant him leave to file an amended answer pleading that would set forth facts to which Defendant would be bound at trial. The trial court did not respond to the request, denied the first part of Plaintiffs motion related to Defendant’s affirmative defense concerning whether the note was void, and granted the second part of Plaintiffs motion related to Defendant’s affirmative defense concerning credits and set-offs. The trial court did not elaborate on its reasoning for the rulings on Plaintiffs motion.

At trial, Defendant attempted to introduce evidence related to his affirmative defense concerning credits and set-offs by cross-examining Plaintiff about his use of Defendant’s property, which was secured by the promissory note. Plaintiff objected on the basis that the line of questioning violated the trial court’s ruling on Plaintiffs motion. Out of the jury’s hearing, Defendant made an offer of proof as to the relevancy of the evidence concerning Plaintiffs use of Defendant’s property secured by the note, claiming that such use entitled Defendant to credits and setroffs. The trial court sustained Plaintiffs objection and granted Defendant a continuing objection to its ruling on Plaintiffs motion.

Defendant made a motion for a directed verdict at the close of Plaintiffs evidence and again at the close of all evidence. The trial court denied both motions. The jury later returned an 11-to-l verdict in favor of Plaintiff and finding Defendant hable on the promissory note in the amount of $20,000.

Defendant subsequently filed his motion for new trial in which he preserved his objection to the trial court’s ruling on Plaintiffs motion. The trial court cahed, heard, and denied the motion. This appeal follows.

Discussion

Defendant presents two points on appeal; however, because Defendant’s second point requires us to reverse and remand the case for a new trial, we find it unnecessary to address Defendant’s first point.

In his second point, Defendant argues that the trial court erred in sustaining the second part of Plaintiffs motion related to Defendant’s affirmative defenses for credits and set-offs as described in paragraphs 5 and 6 of his answer pleading. Defendant specifically argues that his answer pleading was sufficient because it contained enough specific factual allegations to notify Plaintiff of Defendant’s affirmative defenses, and Plaintiff failed to request a more definite statement pursuant to Rule 55.27(d). In his response brief, Plaintiff concedes that “Defendant should have been allowed to go forward in some manner with his affirmative defenses disallowed by the [trial court].”

“An affirmative defense seeks to defeat or avoid the plaintiffs cause of action, and avers that even if the allegations of the petition are taken as true, the plaintiff cannot prevail because there are additional facts that permit the defendant to avoid the legal responsibility alleged.” Mobley v. Baker, 72 S.W.3d 251, 258 (Mo.App. W.D.2002). A defendant must plead his affirmative defenses in his answer to the suit or they will be deemed waived. Id.

Rule 55.08 (2004) provides in pertinent part:

A pleading that sets forth an affirmative defense or avoidance shall contain a short and plain statement of the facts showing that the pleader is entitled to the defense or avoidance. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court may treat the pleadings as if there had been a proper designation.

The purpose of Rule 55.08 is to require a defendant raising an affirmative defense to plead the defense so as to give the plaintiff notice of it. Bailey v. Cameron Mutual Ins. Co., 122 S.W.3d 599, 604 (Mo.App. E.D.2003). When determining the sufficiency of the allegations setting forth a defendant’s affirmative defense, we may look to the responsive pleadings as a whole. Mobley, 72 S.W.3d at 258.

In paragraph 5 of his answer pleading, Defendant plainly stated that he was entitled to credits and set-offs in return for the reasonable value of Plaintiffs use of and access to the property secured by the note. Defendant alleged the credits and set-offs were equal to $50,000. This short and plain statement of facts clearly conveys that Defendant intended to raise an affirmative defense concerning credits and set-offs. Moreover, in light of the fact that the trial court allowed Defendant’s affirmative defenses as stated in paragraph 4 of the answer pleading to go forward and the fact that those affirmative defenses were pled in the same manner and in the same answer pleading as paragraphs 5 and 6, Plaintiff had sufficient notice of all of Defendant’s affirmative defenses such that Plaintiff could prepare for trial. While a motion in limine is normally used to exclude evidence in a jury trial that would be unfairly prejudicial or inflammatory, it should not be employed to choke off a party’s entire claim or defense. Cass Bank & Trust Co. v. Mestman, 888 S.W.2d 400, 404 (Mo.App. E.D.1994).

Conclusion

Thus, because Defendant’s answer pleading sufficiently described all of his affirmative defenses, we find the trial court erred in granting the part of Plaintiffs motion related to Defendant’s affirmative defenses concerning credits and set-offs. Defendant’s second point is granted.

The trial court’s judgment is reversed and remanded for a new trial.

CLIFFORD H. AHRENS, Judge and PATRICIA L. COHEN, Judge, concur.

      . In light of our disposition of this case, Defendant’s Motion for Reversal and Remand is dénied as moot.

      . According to the parties’ briefs and the record, the first, third, and fourth parts of Plaintiff's motion are not at issue in this appeal.

      . Defendant’s first point claims the trial court erred in failing to grant a mistrial after Plaintiff's attorney posed a particular question to Plaintiff during his testimony at trial. We do not anticipate that the question to which Defendant refers will be asked on retrial because the record reveals that, when the question was asked, Defendant objected, the trial court sustained the objection, ordered the question to be stricken, and instructed the jury to disregard it.


text:
    Nathan DEBO, Employee/Claimant, v. LINCOLN COUNTY STONE COMPANY, Employer/Appellant.
    No. ED 85761.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 22, 2005.
    Amy E. Kaiser; Law Offices of Donald B. Balfour, St. Louis, MO, for appellant.
    Harlan, Harlan & Still, Russell C. Still, Columbia, MO, for respondent.
    Before MARY K. HOFF, P.J. and SHERRI B. SULLIVAN, J. and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Lincoln County Stone Company (Employer) appeals from the final award of the Labor and Industrial Relations Commission (Commission) affirming the award of the administrative law judge and finding: 1) Nathan Debo (Claimant) permanently totally disabled; and 2) Employer liable for Claimant’s permanent total disability benefits and future medical care.

We have reviewed the briefs of the parties and the record on appeal. The Commission’s award is supported by sufficient competent and substantial evidence in the record as a whole. No error of law appeal’s. 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 our reasons for the order affirming the Commission’s award pursuant to Rule 84.16(b).


author: JOHNSON, J.,

text:
    Ex parte Phillip Lee HUSKINS, Applicant.
    No. AP-75153.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 2, 2005.

      Jason M. Johnson, Comanche, for appellant.
    Cynthia W. Hellstern, Asst. County & District Atty., Waxahachie, Matthew Paul, State’s Attorney, Austin, for state.
   OPINION

JOHNSON, J.,

delivered the opinion of the Court,

in which KELLER, P.J., and PRICE, WOMACK, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

In 2002, applicant plead guilty to deadly conduct, a third-degree felony. Tex. Penal Code § 22.05. The trial court deferred adjudication of guilt in accordance with a plea agreement and placed applicant on community supervision for three years. In 2004, the state moved for an adjudication of guilt. The trial court adjudicated applicant and orally sentenced him to eight years’ imprisonment in the Texas Department of Criminal Justice — correctional institutions division (TDCJ-CID), but did not announce a deadly-weapon finding. In the written judgment and sentence, however, the trial court included an affirmative deadly-weapon finding.

Applicant asserts that the trial court’s entry of an affirmative deadly-weapon finding violated Tex.Code Crim. Proc. art. 26.13(a)(2), Tex.Code Crim. Proc. art. 42.12 § 5(b), and his due process rights, thus rendering his plea involuntary and his sentence illegal. Specifically, applicant contends that Tex.Code Crim. Proc. art. 26.13(a)(2) requires a court to either follow the existing plea agreement made before the decision to adjudicate guilt or allow applicant to withdraw his previously entered guilty plea. This argument must fail.

In Ditto v. State, 988 S.W.2d 236 (Tex.Crim.App.1999), we held that, unlike regular community supervision, “[ujpon violation of the deferred adjudication proba-tions, the judges have no further obligation to comply with the plea bargains since the bargains had already been satisfied by the judges’ initial sentencing.” Id. at 239. Even if the parties purport to have a plea bargain as to the sentence to be assessed after adjudication, the trial court is not bound by the rules that apply to plea bargains at an original sentencing; “regardless of whether the deferred adjudication was part of a plea bargain, recommended by the prosecution, imposed by the trial court without objection by the appellant, or granted under other circumstances, once the trial court proceeds to adjudication, it is restricted in the sentence it imposes only by the relevant statutory limits.” Von Schounmacher v. State, 5 S.W.3d 221, 223 (Tex.Crim.App.1999).

Applicant also argues that the trial court lacked the authority to enter an affirmative deadly-weapon finding because the court failed to proceed as if adjudication had not been deferred pursuant to Tex.Code Crim. Proc. art. 42.12 § 5(b). Applicant relies on Ditto. As we noted in Ditto, the court of appeals misread Tex. Code Crim. Proc. art. 42.12 § 5(b) and based its ruling on “[w]hen a defendant’s deferred adjudication is revoked,” rather than the actual words of the statute, “[a]f-ter an adjudication.... ” (Emphasis added.) “Only after guilt has been adjudicated do proceedings continue as if there had been no deferred adjudication. Accordingly, section 5(b) does not stand for the proposition that appellants were in a position to withdraw their pleas after the revocation of their deferred adjudication probations.” Id. at 239. (Emphasis in original.)

Finally, applicant claims that his due-process rights were violated because the addition of the deadly-weapon finding destroyed his legitimate expectation of serving the sentence announced orally by the court.

A deadly-weapon finding may be made if a defendant used or exhibited a deadly weapon or he was a party to the offense and knew that a deadly weapon would be used or exhibited. Tex.Code Crim. Proc. art. 42.12 § 8g(a)(2). This Court has previously held that a defendant is entitled to notice that the state intends to seek an affirmative deadly-weapon finding. Narron v. State, 835 S.W.2d 642, 643 (Tex.Crim.App.1992). The language in the indictment may provide sufficient notice if it alleges use of a deadly weapon. Id. (citing Johnson v. State, 815 S.W.2d 707, 709 (Tex.Crim.App.1991)).

A firearm is a deadly weapon per se. Tex. Penal Code § 1.07(a)(17)(A). In the instant case, the indictment stated that applicant “did then and there knowingly discharge a firearm at and in the direction of a vehicle, and [he] was then and there reckless as to whether the vehicle was occupied.” Based on the language in the indictment, applicant had sufficient notice that the state would seek an affirmative finding. Furthermore, when applicant plead guilty to deadly conduct before being placed on deferred adjudication, he confessed that (1) he was the same person named in the indictment, and (2) that he committed the offense charged in the indictment. By properly admonishing applicant and then accepting his guilty plea to the indictment, the trial court necessarily determined that applicant used a deadly weapon in the commission of the offense. Marshall v. State, 860 S.W.2d 142, 143 (Tex.App.-Dallas 1993, no pet.).

Nevertheless, applicant asserts, pursuant to Ex parte Madding, 70 S.W.3d 131 (Tex.Crim.App.2002), that the inclusion of the deadly-weapon finding in the written judgment destroyed his legitimate expectation of serving the sentence announced orally by the court. According to Tex.Code Crim. Proc. art. 42.03, the sentence shall be pronounced in the defendant’s presence. It is true that, when the oral pronouncement of the sentence and the written judgment differ, the oral pronouncement controls. Madding, 70 S.W.3d at 135. Applicant correctly cites these legal propositions, but he overlooks the fact that the expectation of having the oral pronouncement match the written judgment applies only to sentencing issues, such as the term of confinement assessed and whether multiple sentences will be served concurrently or consecutively. A deadly-weapon finding, however, is not part of the sentence. State v. Ross, 953 S.W.2d 748, 751 (Tex.Crim.App.1997). While a deadly-weapon finding does affect a defendant’s eligibility for probation and parole, it does not alter the range of punishment to which the defendant is subject, or the number of years assessed. A deadly-weapon finding may affect how the sentence is served, but it is not part of the sentence. Thus, a trial court is not required to orally announce a deadly-weapon finding at sentencing if the allegation of use of a deadly weapon is clear from the face of the indictment.

The trial court properly included an affirmative deadly-weapon finding in the written judgment. Relief is denied.

MEYERS, J., dissented.

      . Ditto was a consolidation of two cases, Anthony Ray Ditto and Lemar Ervin, both appealed to the same court of appeals.

      . See Madding at 135; Coffey v. State, 979 S.W.2d 326, 328 (Tex.Crim.App.1998). A “sentence" includes "that part of the judgment ... that orders that the punishment be carried into execution in the manner prescribed by law." TexCode Crim. Proc. art. 42.02.

      . Tex. Gov't Code §§ 508.145; 508.149; 508.151.

      . Ross, 953 S.W.2d at 750-51.