author: BOOKER T. SHAW, Judge.

text:
    Richard JONE, et al., Appellant, v. COLEMAN COMPANY, Respondent.
    No. ED 85710.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 20, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 24, 2006.
    Application for Transfer Denied Feb. 28, 2006.

      James Parker Lemonds, St. Louis, MO, for appellant.
    Daniel T. Rabbitt Jr., St. Louis, MO, for respondent.
   BOOKER T. SHAW, Judge.

Richard Jone (“Jone”) and, decedent, Caryieng Lam (“Lam”) (Jone and Lam shall collectively be referred to as “Plaintiffs”) appeal the jury verdict in favor of the Coleman Corporation (“Coleman”) in a suit for damages for personal injury, wrongful death and products liability. Plaintiffs raise five points on appeal claiming the trial court erred by: (i) submitting an affirmative converse instruction to the jury; (ii) allowing Coleman to argue the lantern in question was defective; (iii) admitting into evidence warnings on a tent label; (iv) rejecting Plaintiffs’ evidence of similar incident reports; and (v) granting summary judgment to Coleman on the issue of punitive damages. We affirm in part and reverse and remand for a new trial.

The facts are as follows: Jone, an experienced camper, and Lam, Jone’s nephew, went on a camping trip to hunt on property located in Canton, Missouri on October 9, 1999. After pitching a brand new tent, they went hunting. They returned to the campsite for dinner. Plaintiffs then went to sleep in the tent with both “windows” of the tent open. Around 11:00 p.m., they woke up cold. Plaintiffs lit a propane-fueled lantern (“Lantern”) to warm the tent, but kept the “windows” to the tent open. The two men went back to sleep. The next morning, Jone woke up and tried to wake Lam. When Lam failed to respond, Jone discovered that Lam had died of what was later determined to be carbon monoxide poisoning. Jone suffered significant injuries. He was taken to the hospital where he received treatment for carbon monoxide poisoning.

The source of the carbon monoxide was the propane-fueled Lantern. Coleman did not manufacture the Lantern, but did manufacture the propane cylinder that fueled the Lantern. The Lantern was purchased sometime in 1982 by Jone. No warnings appeared on the Lantern. Jone testified that he and Lam had used the Lantern many times. On occasion the wick would not stay lit and propane would hiss out of the Lantern. He further testified that Lam lit the Lantern on this night and there were no problems in lighting the Lantern. Additionally, the Lantern was working as it had previously, in that it burned bright and was giving off heat. Jone replaced the propane cylinder for the Lantern almost yearly. Jone testified that he replaced the glass globe on the Lantern at one time but no other modifications had been made to the Lantern. At the time of the accident, the Lantern had a crack in the glass globe.

At trial, Plaintiffs asserted claims against Coleman for (i) failure to warn based on strict product liability alleging that the propane cylinder was sold without warning of the dangers of carbon monoxide; and (ii) negligence in that Coleman knew of the danger posed by carbon monoxide when propane is burned inside a tent and negligently failed to warn users of the danger by selling the propane cylinder without an adequate warning.

Coleman contended at trial that (i) the Lantern was defective and not used in a reasonably foreseeable manner; (ii) Coleman did not have a duty to warn of the dangers of another manufacturer’s products; and (iii) the new tent used by Plaintiffs had a specific carbon monoxide warning. Coleman did not raise comparative fault at trial. The jury returned a verdict for Coleman. The trial court denied Plaintiffs’ motion for a new trial. This appeal follows.

In Plaintiffs’ first point on appeal, they argue the trial court erred in submitting to the jury Instruction Numbers 9, 11, 15, and 17 described in M.A.I. 33.05(1) because it was an affirmative converse instruction. Instruction Number 9 stated the following:

INSTRUCTION No. 9
Your verdict must be for defendant if you believe plaintiff Richard Jone used a Coleman propane canister with a faulty lantern which emitted excessive carbon monoxide.

The verdict directors as offered by Plaintiffs read as follows:

INSTRUCTION No. 8
In verdict A on the claim of plaintiff Richard Jone for personal injury based upon product defect, your verdict must be for the plaintiff Richard Jone if you believe:
First, defendant Coleman sold the propane canister in the course of defendant’s business and
Second, the propane canister was then unreasonably dangerous when put to a reasonably anticipated use without knowledge of its characteristics, and
Third, defendant Coleman did not give an adequate warning of the danger, and
Fourth, the product was used in a manner reasonably anticipated, and
Fifth, such propane canister being sold without an adequate warning directly caused or directly contributed to cause damage to plaintiff Richard Jone.
INSTRUCTION No. 10
In verdict A on the claim of plaintiff Richard Jone for personal injuries based upon negligence, your verdict must be for plaintiff Richard Jone if you believe:
First, defendant Coleman manufactured the propane canister, and
Second, burning propane contained in the propane canister posed the hazard of carbon monoxide poisoning, and
Third, defendant Coleman failed to use ordinary care to adequately warn of the risk of harm from carbon monoxide, and
Fourth, such failure directly caused or directly contributed to cause damage to plaintiff Richard Jone.

I. Affirmative Converse Instructions

A judgment will be reversed because of instructional error if the error materially affected the merits and outcome of the case. See Gorman v. Wal-Mart, 19 S.W.3d 725, 730 (Mo.App. W.D.2000). The party claiming instructional error has the task of showing that the instruction misdirected, misled, or confused the jury. Id.

Here, Instruction No. 9 is an affirmative converse instruction. “An affirmative converse instruction must submit a hypothesized ultimate fact issue which, if true, negates plaintiffs claim.” Hiers v. Lemley, 834 S.W.2d 729, 734 (Mo. banc 1992). Its use is appropriate where the verdict director assumes as true or omits a disputed ultimate issue. Id. A defendant may submit its theory of the case through the use of such an instruction. See Hiller v. Diestelhorst, 820 S.W.2d 522, 524 (Mo.App. E.D.1991). However, “the defendant must then produce independent evidence supporting those facts submitted in the instruction, and the facts must be sufficient in law to defeat plaintiffs claim.” Id. (citing Tierney v. Berg, 679 S.W.2d 919, 921 (Mo.App. E.D.1984)).

The affirmative converse instruction, although an approved M.A.I. instruction, has generally been disfavored by Missouri courts and for good reason. The Instruction tends to resemble a prohibited sole cause instruction, it often is a resubmission of the issues found in the verdict director, and it tends to mislead the jury. See Hiers, 834 S.W.2d at 735-36 (and citing cases); see also Elwood L. Thomas, Converse Instructions Under M.A.I., 42 Mo. L.Rev. 175-206 (1977) (noting that for defendants there is one fail-safe method for avoiding error in converse instructions:

“Do not use the affirmative converse instruction”).

A. Coleman’s Evidence was Insufficient to Defeat Plaintiffs Claim.

Our initial inquiry in this appeal is whether Coleman’s independent evidence was sufficient to support submitting this affirmative converse instruction to the jury, i.e., whether there was substantial evidence the Lantern was “faulty” and therefore caused the death of Lam and the injuries to Jone. We hold that it was not. In considering whether an instruction was supported by the evidence, we view all of the evidence in the light most favorable to the party offering the instruction, here Coleman, and give the party the benefit of all favorable inferences reasonably drawn therefrom. See Maxwell v. City of Hayti, 985 S.W.2d 920, 922 (Mo.App. S.D.1999).

Coleman relies on the testimony of its former executive and expert, Randy May, to support its hypothesized ultimate issue — the Lantern was “faulty” and emitted excessive carbon monoxide. Randy May’s testimony revealed the following: Coleman was aware that lanterns are used by campers as both a heat and a light source. Coleman was aware that its propane cylinders were used on other manufacturers’ appliances and they were designed with a universal fitting for this reason. Additionally, Coleman was aware that most campers use and keep their equipment for many years and are able to replace propane cylinders as needed, and to replace or fix parts as needed, such as a glass globe.

Until the summer of 1997, Coleman allowed consumers to use its camping lanterns indoors with “ample ventilation.” In October of 1997, Coleman advised consumers not to use its lanterns in small enclosures including tents and campers. Coleman had decided, in part, to change its warnings on its propane canisters after it became aware of deaths and injuries resulting from carbon monoxide poisoning through the use of its products. Coleman developed the new warning label in June 1997, but did not begin attaching the new warning label to its propane canisters until October of 1997 — when the supply of its previous labels were depleted. Randy May’s testimony also revealed that there was no realistic way for a camper to know if a lantern is emitting an excessive amount of carbon monoxide in that carbon monoxide is completely undetectable. Further, a camper would not suspect that a lantern was emitting excess carbon monoxide if it is working dependably and giving off light and heat.

■Randy May testified that upon first seeing this Lantern, he knew that it had been modified, altered, or changed from its original design in that there was no spacing or gap between the globe and the ventilator to allow the exhaust to escape. At the request of Coleman, May designed a testing protocol for the Lantern. Plaintiffs approved the protocol. The testing revealed that a quarter inch gap was required between the glass globe and the ventilator to allow the Lantern to “function” without emitting fatal amounts of carbon monoxide. May’s ultimate opinion regarding the Lantern was, in pertinent part, as follows:

[Coleman’s Counsel]: In your work in this case and based on the experience that you have given ... some options as to why you believe that the [Lantern] produced high levels of carbon monoxide ... were you able to sort one from the other ...
[Randy May]: No, not really.... I know that there had been parts replaced, apparently. I understand he had replaced the glass globe at one point, I believe. And I can’t sit here today and tell you specifically, what’s missing on the [L]antern or what’s been modified. All I can tell you is what I’ve already told you. My opinion, there’s parts missing....

Reviewing the record and transcript, Randy May’s testimony was insufficient to support the affirmative converse instruction in this case. Throughout May’s testimony, he never testified that the Lantern was “faulty” or even “defective” but only that the Lantern had been modified. According to May, Coleman expected its consumers to modify or change parts on its camping products. In fact, Coleman sells many different parts so that campers do not have to buy, for example, a brand new lantern when a globe cracks or a knob falls off. Coleman also was aware that many indoor and outdoor products use propane cylinders. We find that Coleman did not meet its burden in presenting independent evidence to support its hypothesized issue of fact that the Lantern was “faulty.” Further, Coleman’s evidence did not establish that its warning was not a contributing cause in Plaintiffs’ injuries. See Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371 (Mo. banc 1986) (noting that a product may be rendered unreasonably dangerous and therefore actionable because of the absence of a warning concerning use or misuse, or because the warning that has been given is informationally deficient); see Shepard v. Ford Motor Company, 457 S.W.2d 255, 258-59 (Mo.App.1970) (noting that defendant’s evidence did not support the hypothesized fact and therefore, did not refute plaintiffs case); and In re Coots, 877 S.W.2d 245, 249 (Mo.App. W.D.1994) (noting the instructional error could have kept the jury from reaching the issue of fault at all).

B. Instruction No. 9 Confused and Misled the Jury.

In addition to our finding that Coleman’s evidence did not defeat Plaintiffs claim, we also find that this instruction confused and misled the jury. The instruction was in essence a sole cause instruction. It instructed the jury that if it found the Lantern to be “faulty,” then it could not find Coleman in any way responsible for the cause of the injuries and death despite a less than perfect warning. In other words, this instruction misled the jury to believe that there could be only one cause for the death and injuries of Plaintiffs. Moreover, the instruction did not allow the jury to reach the crux of the case: whether Coleman failed to warn of the dangers of carbon monoxide on its propane canister when used in a reasonably foreseeable maimer.

The jury was allowed to disregard the verdict director in one of two ways. First, if the jury found that the Lantern was “faulty,” it could not find that using this Lantern was a reasonably anticipated use by Plaintiffs. Second, if the jury found that the Lantern was “faulty,” it could not find that the propane canister’s warning or lack thereof could have “directly contributed” to the death and injuries of Plaintiffs. See Gerow v. Mitch Crawford Holiday Motors, 987 S.W.2d 359, 362 (Mo.App. W.D.1999) (noting that the source of the original or intervening cause [here, the Lantern] is irrelevant so long as plaintiff’s particular use of the product, [here, the propane on a less than perfect Lantern], is reasonably foreseeable.) Essentially, this instruction allowed Coleman a complete legal defense against the claims of Plaintiffs if the jury found the Lantern to be “faulty” at all, whether or not such “fault” caused or contributed to cause any damages.

The instruction also was confusing because of the adjective “faulty.” Both parties admitted that the Lantern emitted fatal or excessive amounts of carbon monoxide that resulted in injuries to Jone and death to Lam. Plaintiffs argue that the word “faulty” should have been defined because otherwise it gave the jury a roving commission. See Seitz v. Lemay Bank and Trust Co., 959 S.W.2d 458, 463 (Mo. banc 1998) (noting that a roving commission allows the jury to “roam freely through the evidence and choose any facts which suited its fancy or its perception of logic”). Plaintiffs argue persuasively that the word “faulty” could have meant a number of things to the jury. The jury could have found that the Lantern was “faulty” because it was old, rusty, or that the glass globe had been cracked. The jury could have also determined that “faulty” was a synonym for “emitted excessive carbon monoxide.”

Ordinarily, the word “faulty” would be considered a commonly used word that is easily understood by jurors. See Brock v. Firemens Fund of Am. Ins. Co., 637 S.W.2d 824, 827 (Mo.App. E.D.1982). The dictionary defines “faulty” as “marked by fault, blemish, or defect: Imperfect.” See Webster’s New Collegiate Dictionary 418 (8th ed.1978). However, in a products liability action, “faulty” may be construed as a technical term warranting a definition. This is true especially in light of Coleman’s technical expert’s testimony regarding a lantern’s design, use, and parts. In addition, Plaintiffs conceded the Lantern was “imperfect” in that it was rusty, old and had a crack in the glass globe, but that it “worked” the way Plaintiffs would expect a Lantern to work in that it burned brightly and emitted heat. Plaintiffs’ claim against Coleman was that Coleman failed to warn against the known hazards of carbon monoxide and that the Lantern was used in a reasonably foreseeable manner by Plaintiffs, regardless of the Lantern’s imperfections. Due to the confusing affirmative converse instruction, the jury was unable to reach this issue. Point granted. Our reasoning in Point I disposes of the issue raised in Point II. Plaintiffs’ remaining points on appeal may reoccur on retrial. Therefore, this Court will address these three additional points.

II. Admissibility of the Tent Warning

In Plaintiffs’ third point, they argue the trial court erred in admitting the contents of the tent warning and tent brochure, which were not manufactured by Coleman, because they were not relevant. Evidence is not relevant unless it tends to prove or disprove a fact in issue or if it tends to corroborate other relevant evidence. State ex rel. Webster v. Missouri Resource Recovery, Inc., 825 S.W.2d 916, 942 (Mo.App. S.D.1992). Even if evidence is relevant, if its probative value is outweighed by it prejudicial effect, its admission may constitute an abuse of discretion. See Stevinson v. Deffenbaugh Indus., Inc., 870 S.W.2d 851, 860 (Mo.App. W.D.1993). The trial court has broad discretion to admit or exclude evidence at trial, and its decision will be affirmed absent a clear abuse of discretion. See, Thornton v. Gray Automotive Parts Co., 62 S.W.3d 575, 583 (Mo.App. W.D.2001). “An abuse of discretion occurs when the trial court’s ruling is clearly against the logic of the circumstances then before the trial court, and is so unreasonable and arbitrary that the ruling shocks the sense of justice, and indicates a lack of careful deliberate consideration.” Bowman v. McDonald’s Corp., 916 S.W.2d 270, 276 (Mo.App. W.D.1995). Even if that threshold is met, this Court will only reverse if the error resulted in a material effect upon the merits. See Thornton, 62 S.W.3d at 583.

The tent warning was read to the jury twice and referred to in closing argument. The warning provided:

WARNING
KEEP ALL FLAME AND HEAT SOURCES
AWAY FROM THIS TENT FABRIC
• This tent is made with flame resistant fabric which meets CPAI-84 specifications. It is not fire proof. The fabric will bum if left in continuous contact with any flame source.
•The application of any foreign substance to the tent fabric may render the flame resistant properties ineffective.
• All fuel burning products use air. Lack of fresh air can cause poor combustion and deadly carbon monoxide. Never use fuel burning products in tent without providing fresh air into the area. Never use heaters or other fuel burning products while sleeping.

Coleman contends that the tent warning is relevant to show that even if its propane canister had the new label attached to it, Plaintiffs would not have read it. This contention is illogical as it equates two products that are completely dissimilar, both as to character and usage. A tent is basically a benign collection of fabric and rods, used for shelter. A propane canister contains a combustible gas used for, inter alia, light, heat and cooking and is considered a “hazardous substance” within the Federal Hazardous Substances Act. See 15 U.S.C. Section 1261(f) (2000). Clearly, the latter is potentially more dangerous than the former. Plaintiffs’ alleged failure to read the warning label on one does not “tend to prove” Plaintiffs would not have read the other. See Missouri Resource Recovery, Inc., 825 S.W.2d at 942-43.

The fact remains that the manufacturer of an inherently dangerous product has a duty to warn ultimate users. Duke v. Gulf & Western Manufacturing Co., 660 S.W.2d 404, 418 (Mo.App. W.D.1983). Here, Coleman seeks to lessen its duty by introducing a separate warning from a disparate product manufactured by a different company. The issue in this case was the adequacy of Coleman’s warning label on a propane canister, not whether Plaintiffs could have read and relied upon a different warning from an entirely different product. Without evidence showing that Plaintiffs read and disregarded the tent warning, the tent warning is irrelevant. We find that this evidence confused the jury and prejudiced the Plaintiff by minimizing Coleman’s duty to warn of carbon monoxide poisoning on its product. See Gulf & Western Manufacturing Co., 660 S.W.2d at 416 (noting evidence that someone other than defendant had duty to provide guards to make the product safe introduces a false fact issue and does not obviate defendant’s own duty to make product safer). Point III is granted.

III. Admissibility of the CPSC Reports

In Plaintiffs’ fourth point, they argue the trial court erred in rejecting Plaintiffs’ offer of proof regarding twenty-six Consumer Product Safety Commission (“CPSC”) incident reports pertaining to carbon monoxide deaths and injuries because these reports were relevant to the issue of Coleman’s duty to warn specifically of the hazards of carbon monoxide. The trial court, relying on Thornton, denied Plaintiffs’ offer of proof because CPSC reports concerned incidents that involved “no ventilation” and were not substantially similar to this case. “In products liability cases, evidence of an accident similar in nature to that which injured the plaintiff is admissible provided the evidence is relevant and sufficiently similar to the injury-causing incident so as to outweigh the concerns of undue prejudice and confusion of the issues.” Id. at 583. Thornton sets forth the test in determining whether an occurrence is similar. Each occurrence must be (i) of like character; (ii) occur under substantially the same circumstances, and (iii) result from the same cause. Id.

After reviewing the CPSC reports, we do not find that the trial court abused its discretion. The reports reflect that in each of these incidences there was inadequate ventilation. Further, not all of the incidences occurred in a tent and the type and size of the propane canister involved in the incidences were different. While the CPSC reports involved deaths and injuries resulting from a propane appliance emitting fatal amounts of carbon monoxide, the relevance of this evidence to show that Coleman was on notice that its warning was inadequate in that it was aware that people have died from propane-fueled appliances inside small enclosures does not outweigh the prejudice to Coleman. The trial court did not abuse its discretion. Point IV is denied.

IV. Punitive Damages

In Plaintiffs’ fifth point, they argue the trial court erred- in granting Coleman summary judgment on Plaintiffs’ claims for punitive damages. We disagree and find that without additional evidence to support punitive damages, they are not warranted in this case. Punitive damages are submissible in a case in which liability has been established by the negligence of the defendant whei"e the evidence shows the defendant knew or had reason to know that there was a high degree of probability that the action would result in injury. Hoover’s Dairy, Inc. v. Mid-America Dairymen, Inc., 700 S.W.2d 426, 435-36 (Mo. banc 1985). In a products liability claim, the plaintiff must present evidence that the defendant placed an unreasonably dangerous product into the stream of commerce with actual knowledge of the defect. Under both negligence and strict liability theories, the plaintiff must demonstrate that the defendant showed a complete indifference to or conscious disregard for the safety of others. Letz v. Turbomeca Engine Corp., 975 S.W.2d 155, 164-65 (Mo.App. W.D.1997). The test for punitive damages is a strict one, and many cases have been reversed because of a punitive damage award. See Bhagvandoss v. Beiersdorf, Inc., 723 S.W.2d 392, 397 (Mo. banc 1987). Our Court’s review of a trial court’s grant of summary judgment is essentially de novo and the criteria on appeal for testing the propriety of summary judgment are no different from those that should be employed by the trial court initially. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).

Our review of the record does not support a claim for punitive damages. Here, Coleman’s propane canister did include a warning. While the warning does not specifically use the words “carbon monoxide,” the warning does allude to carbon monoxide by noting that using a propane-fueled appliance consumes oxygen and without adequate ventilation may be a danger. This warning indicates that Coleman did not willfully or consciously disregard the safety of the consumers of its propane canisters. Point V is denied.

The judgment of the trial court is affirmed in part, and reversed in part and the case is remanded for a new trial.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

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

      . Lam’s mother was the original plaintiff in this lawsuit against Coleman. Before trial, she died and her estate's personal representative was named in her place.

      . This instruction is the same as 11, 15, and 17 except to the extent the Plaintiffs’ names are changed.

      . This instruction was modeled after M.A.I. 25.05. A similar instruction was given for product defect for Lam’s wrongful death claim modeled after M.A.I. 25.05 (modified), M.A.I. 20.01 (modified) and M.A.I. 19.01 (modified).

      . This instruction was modeled after M.A.I. 25.09 (modified) and M.A.I. 19.01 (modified). A similar instruction was given for negligence for Lam’s wrongful death claim modeled after M.A.I. 25.09 (modified), M.A.I. 19.01 (modified), and M.A.I. 20.01 (modified).

      . The propane canister in question was manufactured in September 1997. There was no evidence regarding when Jone purchased the canister.

      . The propane canister involved in this accident contained the following warning on the canister:
      DANGER: Extremely flammable-contents under pressure.
      WARNING: AVOID FIRE AND INJURY.
      •KEEP OUT OF REACH OF CHILDREN.
      •Always read and follow appliance instructions.
      •Always inspect cylinder and appliance propane connections....
      •Always attach or detach cylinder outdoors away from flame, pilot lights, and only when appliance is cool to touch. Screw cylinder into appliance hand tight.
      •Replace protective cap on cylinder after detaching cylinder from appliance....
      • Do not use if cylinder or appliance has been damaged or modified. Do not refill cylinder. Do not puncture or replace in fire.
      • All burning products consume oxygen. Ample ventilation must be provided to avoid endangering your life.
      • Federal law forbids transport on passenger aircraft and trains.
      The new warning label used by Coleman beginning in October of 1997 had the following warning:
      DANGER
      • EXTREMELY FLAMMABLE
      • FIRE/EXPLOSION HAZARD
      ■ CONTENTS UNDER PRESSURE
      • CARBON MONOXIDE HAZARD
      CARBON MONOXIDE HAZARD
      Burning propane can make Carbon Monoxide (CO). CO is invisible, has no smell and can kill you. Burning propane in a tent, camper, van or other enclosed area can be dangerous. Use only in well-ventilated areas. If you experience headache, drowsiness, or nausea, turn unit off and get fresh air quickly. Never use when sleeping. Follow appliance instructions for proper use.
      HANDLING & STORAGE
      1. Keep out of reach of children.
      2. Do not expose to heat, sparks, or flame. Do not leave in direct sunlight. Do not store at temperatures above 120° F.
      3. Never store in living spaces.
      4. Always use cylinder stand with top mounted camping appliances to prevent tip over.
      5. Never refill this cylinder. Refilling may cause explosion. Federal law forbids transportation if refilled....
      6. Never put in luggage or take on trains or aircraft.
      7. To discard, contact local refuse hauler or recycle center. Never put in fire or incinerator. Do no puncture.

      . This Court finds it prudent to further address this instruction, in the event Coleman would resubmit this issue in a proper instruction, after presenting additional evidence regarding the Lantern at the new trial.

      . It appears from the record that the trial judge believed that Plaintiffs conceded that the Lantern was "faulty.” From our reading of the record, Plaintiffs did not concede this and showed that while the Lantern was old, rusty, and in a "used” condition, it was not faulty in that it was working as a camper would expect it to work.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Pablo FLORES, Appellant v. STATE of Missouri, Respondent.
    No. WD 64441.
    Missouri Court of Appeals, Western District.
    Feb. 7, 2006.
    Jeannie M. Willibey, Kansas City, MO, for Appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for Respondent.
    Before: SMITH, C.J., LOWENSTEIN and HOWARD, JJ.
   ORDER

PER CURIAM.

Pablo Flores was convicted of first-degree robbery, Section 569.020 RSMo 1994, and sentenced to twenty years imprisonment. His conviction was affirmed on appeal. Flores filed a motion for post-conviction relief under Rule 29.15, alleging that he received ineffective assistance of trial counsel. After an evidentiary hearing, the motion court denied his request for relief. Flores appeals the decision. The decision of the motion court is affirmed. Rule 84.16(b).


author: VICTOR C. HOWARD, Judge.

text:
    Robin THOMPSON, Appellant, v. Victor I. TUGGLE and Francetta Tuggle, Defendants, and Glennco, Inc., Respondent.
    No. WD 65576.
    Missouri Court of Appeals, Western District.
    Feb. 7, 2006.

      Michael R. Fletcher and Walter R. Simpson, Kansas City, MO, for Appellant.

      John G. Schultz and Nikki Cannezzaro, Kansas City, MO, for Respondent.
    Before SPINDEN, P.J., and HOWARD and HOLLIGER, JJ.
   VICTOR C. HOWARD, Judge.

Appellant Robin Thompson (“Thompson”) appeals from a summary judgment granted in favor of Respondent Glennco, Inc. (“Glennco”), in the Circuit Court of Jackson County. Thompson argues two points on appeal. In Point I, Thompson argues the trial court erred in granting summary judgment in favor of Glennco, because a genuine dispute of material fact exists as to whether Glennco owed a duty to Thompson. In Point II, Thompson argues the trial court erred in granting summary judgment in favor of Glennco because a genuine dispute of material fact exists as to whether Glennco and co-defendants, the Tuggles, were joint venturers who were jointly and severally hable. For the following reasons, the judgment of the trial court is affirmed.

Background

Glennco owned residential property (“the property”) located at 4504 South Benton in Kansas City. On January 10, 2002, Glennco entered a lease agreement with Victor and Francetta Tuggle (“the Tuggles”) for the property. The lease agreement outlined the terms under which the Tuggles possessed and rented the premises from Glennco. The lease agreement contained an addendum that prohibited the Tuggles, as well as any other member of the household or guest, from engaging in any illegal activity on or near the premises. The addendum expressly prohibited the unlawful discharge or unauthorized possession of firearms. The lease also required the Tuggles to insure their interest in the property and pay any taxes associated with the leased premises. The Tuggles were also responsible for all maintenance and repairs to the property and Glennco was not obligated to maintain the property. The Tuggles were permitted under the lease agreement to make improvements to the property with Glennco’s consent. An addendum to the lease agreement gave the Tuggles an option to purchase the property for $54,000 with part of the previous rent applied to the purchase price. The Tuggles never exercised their option to purchase the property. The lease expressly entitled the Tuggles to possession of the property for the duration of the lease period.

On March 7, 2003, Charles Young, a minor child, accidentally discharged a loaded gun belonging to the Tuggles in the direction of a visitor, Thompson’s nine-year-old son Devonte Thompson, striking him in the neck. As a result of the gunshot wound, Devonte Thompson died. The death was ruled accidental by the Kansas City Police Department.

Thompson filed an action against Glennco and the Tuggles for the wrongful death of Devonte Thompson in the Circuit Court of Jackson County. Thompson’s amended petition alleged that the Tuggles were liable for Devonte Thompson’s death on negligence grounds and that Glennco was liable for Devonte Thompson’s death on negligence and vicarious liability/joint venture grounds. Glennco filed a motion for summary judgment, and following oral arguments on the motion, the trial court granted summary judgment in favor of Glennco. The court found that: (1) Glennco and the Tuggles were not joint venturers relating to the use of handguns, and (2) Glennco did not owe a duty to protect Devonte Thompson from dangerous conditions on the property because the Tuggles had exclusive possession and control over the property when the accidental shooting death occurred.

This appeal follows.

Standard of Review

“When considering appeals from summary judgments, the Court will review the record in the light most favorable to the party against whom judgment was entered.” ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.banc 1993). The review of a summary judgment is essentially de novo. Id. The criteria on appeal for testing the propriety of summary judgment are no different from those that should be employed by the trial court initially. Id. The propriety of summary judgment is purely an issue of law, and an appellate court need not defer to the trial court’s order granting summary judgment. Id. A defendant seeking summary judgment must establish:

(1) facts that negate any one of the claimant’s elements facts, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant’s elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant’s properly-pleaded affirmative defense.

Id. at 381.

Point I

In Point I, Thompson argues the trial court erred in granting summary judgment in favor of Glennco, because a genuine dispute of material fact exists as to whether Glennco owed a duty to Thompson, in that the injury was foreseeable due to prior criminal history at the subject property and Glennco allowed a dangerous condition to exist.

In support of Point I, Thompson argues that during the time Glennco owned the property, there was a continual pattern of criminal activity and lawlessness on the premises, as evidenced by numerous calls to the Kansas City Police Department for intrusion alarms, disturbances, abandoned vehicles, drugs, assault, and armed robbery. Thompson claims that despite this prior criminal activity, Glennco did not adequately recognize the potential for criminal activity and reasonably respond with appropriate security precautions. Thompson argues that this criminal activity reported at the property created a duty to protect Devonte Thompson because it was reasonably foreseeable that other violent crimes could occur, including a visitor being injured by an act of violence. Thompson claims Glennco had at least a certain degree of control over the premises and breached its duty by failing to adequately screen potential tenants, conduct criminal background checks, prohibit possession of firearms or require that firearms be safely maintained, and maintain reasonable overall control over its tenants and property. Thompson argues that this breach of duty allowed an atmosphere of criminal activity to prevail at the property.

Thompson further argues that it was an issue of fact for the jury whether Glennco knew or should have known that a gun at a home where children are present created an unreasonable risk and may constitute a dangerous condition. Thompson claims that Glennco disregarded this known danger because it did not believe it was required to either prohibit unsupervised minors from handling guns or prohibit guns altogether and chose not to require the Tuggles to use a trigger lock or safely secure any guns on the premises out of the reach of children. Thompson concludes that the reasonableness of Glennco’s decision to disregard the known risk associated with the dangerous condition created by the unsecured handgun is, at a minimum, an issue for the jury, and the trial court erred in granting summary judgment in favor of Glennco.

“The general rule is that landlords are not liable for personal injuries received by a tenant or a tenant’s invitees.” Richeson v. Sprinco, Inc., 931 S.W.2d 507, 508 (Mo.App. W.D.1996). “A landlord may be liable, however, if (1) the landlord has knowledge of a dangerous condition not discoverable by the tenant and fails to disclose that condition, (2) the injury occurs in a common area, or (3) the landlord is responsible for making repairs and negligently fails to do so.” Id. at 508-09.

In the instant case, none of the exceptions to the general rule apply. The Tug-gles’ ownership of a gun was not a dangerous condition that Glennco knew about and failed to disclose. Furthermore, the accidental shooting death occurred inside the home as opposed to a common area, and the lease provided that the Tuggles, not Glennco, were responsible for all maintenance and repairs.

Thompson cites Scheibel v. Hillis, 531 S.W.2d 285, 290 (Mo.banc 1976), which reversed the dismissal of a negligence petition. The defendant in Scheibel kept a loaded shotgun in her house and the plaintiff was shot by a third person in the defendant’s house. Id. at 287. The instant case is distinguishable from Scheibel for two different reasons. First, the defendant in Scheibel, unlike Glennco, had control over the premises because it was her residence. Id. at 287. Second, the defendant in Scheibel knew that the person who shot the plaintiff exhibited violent tendencies, but still kept her shotgun in a place where she knew or should have known that this person would use it so as to create an unreasonable risk to the plaintiff. Id. at 290. In the instant case, there was no knowledge on Glennco’s part that a person with violent tendencies would have access to the Tuggles’ gun.

Thompson also cites L.A.C. v. Ward Parkway Shopping Center Co., L.P., 75 S.W.3d 247 (Mo.banc 2002), in which a minor patron was raped at a shopping center. The plaintiff patron brought a negligence action against the owners and managers of the shopping center. Id. at 250. The Missouri Supreme Court reversed summary judgment in favor of the defendants, finding that the owners and managers of the shopping center owed a duty to business invitees to protect them from criminal acts of unknown third parties. Id. at 258-59. In L.A.C., the shopping center had been the site of other violent crimes prior to the plaintiff patron being raped. Id. at 254. Thompson argues that the instant case is on point with L.A.C., because there were several incidents of criminal activity at the property prior to the accidental shooting death of Devonte Thompson. The instant case is also distinguishable from L.A.C. for two reasons. First, the owners and managers of the shopping center had control over the premises, whereas Glennco did not have control over the living area in the instant case. Second, L.A.C. addressed the issue of whether a shopping center owed a duty of care to protect business invitees from criminal acts of unknown third parties, whereas the instant case concerns an accidental injury that was not a crime.

In the instant case, Glennco had no control over the property, despite being the owner, and had no knowledge of whether the Tuggles owned a gun or how the gun was stored. Furthermore, the prior criminal activity at the property is irrelevant to the issue of whether Glennco had a duty to protect the Tuggles’ guests from aceiden-tal injuries inside the residence. Therefore, the trial court did not err by granting summary judgment in favor of Glennco on Thompson’s negligence claim.

Point I is denied.

Point II

In Point II, Thompson argues the trial court erred in granting summary judgment in favor of Glennco because a genuine dispute of material fact exists as to whether Glennco and co-defendants, the Tuggles, were joint venturers who were jointly and severally liable in that there existed an agreement, a common purpose, and a community of pecuniary interest.

Eads v. Kinstler Agency, Inc., 929 S.W.2d 289, 292 (Mo.App. W.D.1996), provides that the essential elements of a joint venture are:

(1) an express or implied agreement among members; (2) a common purpose to be carried out by the members of the group; (3) a community of pecuniary interest in the common purpose; and (4) an equal voice, giving an equal right of control in the direction of the enterprise.

In support of Point II, Thompson argues that there was an agreement between the Tuggles and Glennco. Thompson claims that this element is supported by the fact that Glennco and the Tuggles signed an express contract regarding the sale and lease of the property. Thompson also argues this element is supported by the admissions of Glennco representative Stephen Summers (“Summers”) in his deposition that the sale and lease agreement delineates the rights of each party.

Thompson argues that there was a common purpose to be carried out by the group. Thompson claims this argument is supported by Summers’ admission in his deposition that the common purpose to be carried out among the members relative to the agreement was to effectuate the terms and conditions of the lease and sale of the property.

Thompson also argues that there was a community of pecuniary interest in the common interest among the members. Thompson argues this element is established by the fact that both members of the joint venture shared pecuniary interests in the property in that the Tuggles paid rent with an option to buy and Glennco collected rent.

Finally, Thompson argues that Glennco and the Tuggles had an equal right to a voice in the direction of the enterprise, which gave them an equal right of control. Thompson claims Glennco admitted that both Glennco and the Tuggles had an equal voice as to the direction and continuation of the lease or sale of the property. Thompson argues that although Glennco had no physical control over the property, Glennco still had a right of control by operation of law due to the terms of the agreement and Glennco’s ownership of the property. Thompson claims that there was an understanding between Glennco and the Tuggles that both parties had a right to have their wishes respected regarding the property. Thompson argues that each party had their own assigned roles as to the property, and no showing of right to control the property over and above those assigned roles is necessary to establish this element.

Thompson concludes that Glennco has admitted sufficient facts through Summers’ deposition testimony to establish a prima facie claim of liability based upon joint venture and that the trial court erred by granting summary judgment in favor of Glennco.

In order to form a joint venture, the parties must intend to create a contract of joint venture. Ritter v. BJC Banes Jewish Christian Health Sys., 987 S.W.2d 877, 387 (Mo.App. E.D.1999). “Indications of a joint venture include: actively participating and sharing in the profits, all parties having joint and several control, and having a duty to share the losses.” Id. “Merely sharing an economic interest is not sufficient to form a joint venture. There must be some evidence of the parties participating and having control over the enterprise.” Id. at 388.

In Newcomb v. St. Louis Office for Mental Retardation & Developmental Disabilities Resources, 871 S.W.2d 71, 72 (Mo.App. E.D.1994), the owner and operator of a group home entered into a contract entitled “Group Home Joint Venture Agreement.” An employee of the group home operator sustained personal injuries when he fell after a stair tread came loose and the trial court entered judgment on a verdict in favor of the plaintiff and against the owner of the facility. Id. at 73. Newcomb held that the employee did not make a submissible case against the owner of the facility, because the operator of the group home was a tenant in exclusive possession and control of the premises and the judgment was reversed on appeal. Id. at 74. Despite the agreement being termed a “joint venture,” all of the elements of a classic landlord-tenant relationship were present, and, therefore, “the respective rights and obligations of [the owner and the operator] toward [the employee] must be determined by the principles governing the relationship of landlord and tenant.” Id. Newcomb provides that “[i]f these elements are present, no matter how the parties describe their relationship, the status of landlord and tenant exists.” Id. at 73.

In the instant case, there was no evidence of either Glennco or the Tuggles having the intent to form a joint venture. Glennco and the Tuggles did not share any profits or losses. Glennco held title to the property and the Tuggles had physical control, but there was no joint or several control required to form a joint venture. The instant case is similar to Newcomb. Thompson seeks to describe the rental agreement with a purchase option between Glennco and the Tuggles as a joint venture so that Glennco can be held liable for the wrongful death of Devonte Thompson. However, just as in Newcomb, the agreement between Glennco and the Tuggles had all of the elements of a landlord-tenant relationship, so the rights and obligations of Glennco and the Tuggles toward Thompson must be determined by the principles governing landlord and tenant relationships. Because Glennco and the Tuggles had a landlord-tenant relationship and Glennco had no control over the property, the trial court did not err by granting summary judgment in favor of Glennco on Thompson’s claim of liability based upon joint venture.

Point II is denied.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed.

SPINDEN, P.J., and HOLLIGER, J., concur.


text:
    Beth PARKER, Appellant, v. DEPARTMENT OF TRANSPORTATION, Defendant, Division of Employment Security, Respondent.
    No. WD 65491.
    Missouri Court of Appeals, Western District.
    Feb. 7, 2006.
    G. Spencer Miller, Maryville, MO, for Appellant.
    Ninion S. Riley, Jefferson City, MO, for Respondent.
    Before: SPINDEN, P.J., and HOWARD and HOLLIGER, JJ.
   Order

PER CURIAM.

Appellant Beth Parker (“Parker”) appeals from a decision by the Missouri Labor and Industrial Relations Commission (“Commission”) denying unemployment compensation from the Department of Transportation (“Employer”). In her sole point on appeal, Parker argues that the Commission erred in finding that Parker voluntarily left her employment without good cause because the evidence established she did not receive requested safety equipment or necessary safety training, she was treated unfairly compared to male employees and she developed a stress-related medical condition because of her employment.

We have reviewed the parties’ briefs and the record on appeal. No error of law appears. A written opinion would serve no jurisprudential purpose. We have, however, prepared a memorandum for the use of the parties only, setting forth the reasons for our decision.

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


text:
    Carrie L. VANDEVENTER Now Hancock, Appellant, v. Jeremy C. VANDEVENTER, Respondent.
    No. WD 64897.
    Missouri Court of Appeals, Western District.
    Feb. 7, 2006.
    Michael W. Blanton, Lee’s Summit, MO, for Appellant.
    William L. Hall, David P. Kimminau, Independence, MO, for Respondent.
    Before SMITH, C.J., LOWENSTEIN and HOWARD, JJ.
   ORDER

PER CURIAM.

Carrie Hancock (“Mother”) and Jeremy Vandeventer (“Father”) shared joint physical and legal custody of their daughter. Mother moved for modification of custody. The trial court denied the motion and found that Mother failed to demonstrate that a substantial change in the circumstances of the child or her custodian had occurred. Mother brings this appeal.

Upon review of the parties’ briefs and the record, we find no error and affirm the judgment. We have provided the parties with a memorandum explaining the reasons for our decision, because a published opinion would have no precedential value. Rule 84.16(b).


text:
    Wilma RAPP, Respondent, v. Justin A. KURTZ, John Kurtz, and Cheryl Kurtz, Appellants.
    No. WD 64793.
    Missouri Court of Appeals, Western District.
    Feb. 7, 2006.
    H. William McIntosh and Steven L. Hobson, Kansas City, MO, for Respondent.
    James H. Ensz, Kansas City, MO, for Appellants.
    Before SPINDEN, P.J., and HOWARD and HOLLIGER, JJ.
   Order

PER CURIAM.

A jury entered a verdict in favor of Wilma Rapp for damages totaling $375,000 against Justin Kurtz (“Justin”) for negligence and against Justin’s parents for negligent entrustment. On appeal from the judgment entered on the verdict, Justin and his parents challenge: (1) the sufficiency of the evidence of Justin’s habitual recklessness to submit the negligent en-trustment claim; (2) the admissibility of certain evidence in support of Rapp’s negligent entrustment claim, including testimony from Justin’s attorney about his representation of Justin with regard to moving violations; and (3) the trial court’s refusal to allow their expert medical witness to testify about a possible cause of Rapp’s injuries.

After consideration of the parties’ briefs and oral argument and a complete review of the record on appeal, we found no errors. A written opinion would serve no jurisprudential purpose. We have, however, prepared a memorandum for the use of the parties only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


text:
    In the Interest of F.M.F. Juvenile Officer, Respondent, v. K.D.D. (Natural Mother) and M.C.F. (Natural Father), Appellants.
    Nos. WD 65583, WD 65767.
    Missouri Court of Appeals, Western District.
    Feb. 14, 2006.
    Cathelene L. Winger, Harrisonville, MO, for Respondent.
    J. Alexander Lozano, Harrisonville, MO, for Appellant K.D.D.

      T.R. Hoefle, Harrisonville, MO, for Appellant M.C.F.
    Before: BRECKENRIDGE, P.J., and HOWARD and HOLLIGER, JJ.
   Order

PER CURIAM.

Natural mother, K.D.D. (“Mother”), and natural father, M.C.F. (“Father”), each appeal from a judgment in the Circuit Court of Cass County that terminated their parental rights to their minor daughter, F.M.F. (“Child”). We have consolidated the cases for appeal.

In her two points on appeal, Mother claims that the evidence was insufficient to terminate her parental rights to Child due to neglect and failure to rectify the conditions that led to assumption of jurisdiction.

In his five points on appeal, Father argues that the juvenile court erred in terminating his parental rights because: (I) he did not abandon Child because he was under court order to have no contact with Child; (II) the juvenile court erroneously refused to hear evidence regarding the reasonably foreseeable future and would not explicitly consider whether Father’s past acts indicate the likelihood of future harm; (III) the juvenile court failed to make sufficient findings under section 211.477; (IV) the record fails to disclose whether the meeting between the juvenile court and the juvenile officer mandated by section 211.455 to occur within thirty days of the filing of the petition occurred; and (V) the evidence was insufficient to find that Father had abused or neglected Child.

We affirm the judgment terminating both Mother’s and Father’s parental rights to Child. Rule 84.16(b).


author: ROBERT G. ULRICH, Presiding Judge.

text:
    GENE KAUFFMAN SCHOLARSHIP FOUNDATION, INC., Respondent, v. Mark PAYNE and Mark Payne as next friend of Samantha M. Payne; Appellant Pro Se Jeremiah W. (Jay) Nixon, Attorney General for The State of Missouri, Respondent.
    No. WD 65549.
    Missouri Court of Appeals, Western District.
    Feb. 14, 2006.

      Mark Payne, Princeton, pro se.
    Lloyd A. Cleaveland, Chillicothe, Counsel, Allison M. Murdock, Kansas City, Elizabeth J. Gray, St. Louis, Co-Counsels for Kauffman.
    Robert L. Ortbals, Jr., Jefferson City, Counsel for Nixon.
    Before: ROBERT G. ULRICH, P.J., PATRICIA A. BRECKENRIDGE and JOSEPH M. ELLIS, JJ.
   ROBERT G. ULRICH, Presiding Judge.

Gene Kauffman Scholarship Foundation, Inc. (the Foundation), a Missouri not for Profit Corporation, filed its “Petition for Declaratory Judgment and Trust Construction” in the Probate Division on November 18, 2004, seeking the court’s construction of the Edward E. Kauffman Revocable Trust (Revocable Trust), as amended, and the Gene Kauffman Scholarship Foundation Trust (Foundation Trust). Both trusts had been registered in the Probate Division. Specifically, the Foundation sought concurrence by the court of the Foundation’s definition and application of the term “high school graduate,” a term used within the revocable trust to limit recipients of the trust benefits. Jeremiah W. Nixon, the Attorney General, was named in his official capacity as the sole defendant because of the assertion that the trusts are charitable. Mark A. Payne, as next friend of Samantha M. Payne, filed his motion to intervene, asserting that the Foundation’s definition of the term errantly had excluded Samantha as a beneficiary and that the Foundation had wrongly denied her benefits of the trust. Both the Foundation and the Attorney General opposed Mr. Payne’s motion to intervene. While Mr. Payne’s motion was pending, the Attorney General consented to the entry of a judgment and order granting the relief prayed by the Foundation, and the court entered the consent judgment, which included the denial of Mr. Payne’s Petition for Intervention. Mr. Payne appealed both the denial of his Petition to Intervene and the consent judgment.

Facts

The facts are not disputed. On July 17, 1990, Edward E. (Gene) Kauffman created the Edward E. Kauffman Revocable Trust, as amended by Amendment to Revocable Trust Agreement dated July 22, 1991, and Second Amendment to Revocable Trust Agreement dated May 18, 1992. Gene Kauffman died on October 28, 1997. The Kauffman Revocable Trust was filed in the Livingston County Court, Probate Division on October 7, 1998, and was recorded on December 10,1998, in accordance with section 456.410 RSMo. The Foundation Trust, dated November 3, 1998, is a charitable trust established in accordance with sub-paragraph E of paragraph SIXTH of the Kauffman Revocable Trust, which states:

My SUCCESSOR TRUSTEE shall establish with the remainder of this trust estate a not-for-profit corporation to be entitled “GENE KAUFFMAN SCHOLARSHIP FOUNDATION, INC.” which shall provide financial assistance toward college and university expenses for needy, unmarried, non-smoking female high school graduates of Mercer County, Missouri, to help them pursue their higher education. Said Scholarship Fund shall be administered by a scholarship committee consisting of at least five civic-minded persons who must be landowners and legal residents of Mercer County, Missouri. However, the principals of each high school in Mercer County, Missouri shall be members of such committee. * * * Said committee shall adopt reasonable rules and guidelines not inconsistent with the provisions hereof ... (Emphasis added)

The third paragraph of the Foundation Trust states:

Purpose of Trust. This trust is created and shall be operated exclusively to make grants to Gene Kauffman Scholarship Foundation, Inc., to enable Gene Kauffman Scholarship Foundation, Inc. to satisfy its charitable and educational purpose of providing financial assistance toward college or university expenses for needy, unmarried, non-smoking, female, high school graduates of Mercer County, Missouri, to help them pursue their higher education ...

All of the remaining assets of the Revocable Trust were transferred to the Foundation Trust, and the Revocable Trust was terminated on December 31, 2003. The Foundation Trust was filed with the Circuit Court of Livingston County, Probate Division on September 3, 2004, in accordance with section 456.410 RSMo.

The scholarship committee, on behalf of the Foundation Trust, established the rule that the term “high school graduate” as used in subparagraph E of paragraph SIXTH of the Revocable Trust, as amended, does not include persons who are, or have been home schooled, or persons who have received general equivalency diplomas. “Home schooled,” the committee determined, means persons who were home schooled and who did not attend at least two years of high school in Mercer County Schools, with at least one of the two years being the senior year.

Samantha M. Payne applied to the Foundation Trust for a scholarship on or about May 18, 2004. The Foundation denied her a scholarship on August 27, 2004, solely because she was home schooled. That she met all other scholarship eligibility criteria as set forth by the Revocable Trust except that the Foundation claimed that she was not a high school graduate as defined by its definition is not disputed. Except for the issue of what constitutes a high school graduate within the meaning of the Foundation Trust, Samantha is the only applicant ever to have met all scholarship eligibility criteria, and been denied a scholarship.

The Foundation Trust filed its “Petition for Declaratory Judgment and Trust Construction” on September 10, 2004, requesting that the court declare and construe that the provisions of the Revocable Trust and the Trust Agreement of Foundation Trust, dated November 3, 1998, exclude persons who were home schooled and who did not attend at least two years of high school in Mercer County Schools, with at least one of the two years being the senior year of high school, and exclude persons who have obtained general equivalency diplomas (GED) from the definition of the term “high school graduates” contained within the Trust. The Attorney General was considered a necessary party and named Defendant.

Mr. Payne filed his Petition for Intervention as next friend for his daughter Samantha. The Attorney General and the Foundation opposed Mr. Payne’s Petition for Intervention on the basis that he lacked standing because (1) he had not been appointed as his daughter’s next friend as required by Rule 52.02, and (2) neither he nor his daughter had an identifiable interest in any of the proceeds of the Foundation Trust, and, alternatively, any interest that they may have is adequately protected by the Attorney General. The court appointed Mr. Payne as his daughter’s next friend.

The Attorney General served written discovery on the Foundation and, after receiving verified response, filed Consent to Judgment. The court issued its Judgment and Order on May 6, 2005, denying Mr. Payne’s petition to intervene, stating that “the interests of the parties are adequately represented by the Attorney General of the State of Missouri and, therefore, the Court finds that Mark A. Payne and Samantha M. Payne have no standing herein and their request to intervene in this action is denied.” The court further ordered that the provisions of the Foundation Trust be construed to “exclude persons who were home schooled and who did not attend at least two years of high school in Mercer County Schools, with at least one of the two years being the senior year and persons who have obtained general equivalency diplomas from the definition of the term ‘high school graduates’.” This appeal was then filed.

Points on Appeal

Mr. Payne, as next friend for his daughter Samantha, asserts two points on appeal. His first point asserts that the trial court erred in denying his intervention for lack of standing because he offered sufficient evidence to identify his daughter as an individual with a “special interest” in that she belongs to a small class of identifiable beneficiaries and is a person who is “certain to receive trust benefits.” In his second point, Mr. Payne asserts that the court erred in its order declaring and construing the provisions of the Revocable Trust to exclude persons who were home schooled and persons who have obtained general equivalency diplomas from the definition of the term “high school graduates” contained therein because he offered sufficient evidence to show that the term “high school graduates” does not exclude home schooled individuals. The first point is dispositive.

Standing to Sue

Mr. Payne’s first point charges that the trial court erred in denying his motion to intervene and its declaration that his daughter had no standing to sue. He claims that he evinced his daughter’s “special interest,” which qualifies her as a proper party to enforce the provisions of the Foundation Trust.

Standard of Review

“Denial of a motion for leave to intervene as a matter or right under Rule 52.12 will be affirmed by an appellate court unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.” In re Liquidation of Prof'l Med. Ins. Co., 92 S.W.3d 775, 778 (Mo. banc 2003)(quoting State ex rel. Nixon v. Am. Tobacco Co., 34 S.W.3d 122, 126 (Mo. banc 2000); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)).

Discussion

The parties agree that the Foundation Trust is a charitable trust. Mr. Payne claims in his first point to have offered sufficient evidence to demonstrate that his daughter has standing to intervene in that he showed that his daughter has a “special interest” in the Foundation Trust because she belongs to a small class of identifiable beneficiaries and, as an identifiable beneficiary, she is “certain to receive trust benefits.” He claims as a part of the point that (a) the judge addressed the wrong issue when she found the interest of the parties “adequately represented by the Attorney General,” and (b) the judge did not rule on whether Samantha was qualified as an individual with a “special interest.” The claims are considered together.

Mr. Payne filed a motion to intervene, attempting to invoke the provisions of Rule 52.12(a)(2), which states:

Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: ... (2) when the applicant claims an interest relating to the property or transaction that is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

In American Tobacco, the Supreme Court held:

In the absence of a statute conferring an unconditional right of intervention, an applicant seeking intervention must file a timely motion and “show three elements: (1) an interest relating to the property or transaction which is the subject of the action; (2) that the applicant’s ability to protect the interest is impaired or impeded; and (3) that the existing parties are inadequately representing the applicant’s interest.” The proposed intervenor carries the burden of establishing the presence of all three elements required for intervention as a matter of right. When an applicant satisfies these elements, however, the right to intervene is absolute and the motion to intervene may not be denied.

Am. Tobacco, 34 S.W.3d at 127 (internal citations omitted.)

Application of Rule 52.12 is not exclusive, however, when the person seeking intervention desires to enforce or challenge a charitable trust. The case of State ex rel. Nixon v. Hutcherson, 96 S.W.3d 81 (Mo. banc 2003), is on point and is controlling. A decedent had created a trust by her will “to be used for the higher education of capable children of Ray and Carroll Counties, Missouri, especially those whose parents are unable, financially, to provide such education.” Id. at 82. The plaintiffs sought and obtained class certification as provided by Rule 52.08 to proceed as representatives of a class identified as students and adults for students more particularly identified as beneficiaries of the trust. Id. at 83. The Supreme Court determined that the trust at issue was a charitable trust and reviewed whether the trial court had errantly failed to dismiss the action seeking to enforce certain provisions of the charitable trust created by execution of the will. The Supreme Court noted that the Attorney General of the State has a duty to enforce the provisions of a charitable trust and that charitable trusts are generally not enforceable by potential beneficiaries or members of the general public. Id. at 85. The Court addressed the reason that the Attorney General is the proper party to enforce a charitable trust:

The persons affected by such trusts are usually some or all of the members of a large and shifting class of the public. If any member of this class who deemed himself qualified might begin suit, the trustee would frequently be subjected to unreasonable and vexatious litigation. Often no individual can prove that he will necessarily benefit from the charity. All may be prospective or possible beneficiaries, but no one can be said to be a certain recipient of aid. In ultimate analysis it is the public at large which benefits, and not merely the individuals directly assisted. Obviously, there is good reason for vesting in a single authority the discretion and power incident to the enforcement of such trusts, rather than in leaving the matter to the numerous, changing, and uncertain members of the group directly to be aided.

Id. at 84 (quoting GeoRGE Gleason BogeRt & George Taylor Bogert, The Law of Trusts and Trustees § 411, p. 8 (rev.2d ed.1991)).

An exception to the rule that the Attorney General is the proper party to enforce charitable trusts, the Court noted, exists where “[a] person ... has a ‘special interest’ in the performance of a charitable trust.” Id. Then the person “can maintain an action for its enforcement.” Id. The Court addressed what a “special interest” is:

The test to determine whether such an interest is special enough to confer standing is whether the person “is enti-tied to receive a benefit under the trust that is not merely the benefit to which members of the public in general are entitled.” A person also may have standing if he or she is entitled to a preference under the terms of the trust or if the person is a member of a small class of identifiable beneficiaries, or if he or she is “certain to receive trust benefits.” However, “[t]he mere fact that a person may in the discretion of the trustee become a recipient of the benefit under the trust does not entitle him to maintain suit for the enforcement of the trust.” “As a general rule no private citizen can sue to enforce a charitable trust merely on the ground that he believes he is within the class to be benefited by the trust and will receive charitable or other benefits from the operation of the trust.”

Id. (internal citations omitted).

The Court determined in Hutcherson that the putative class representatives and the individual plaintiffs could not satisfy the burden of showing a clear, identifiable, and present claim to any benefits from the Trust sufficient to establish a “special interest.” Id. at 85. The Court stated that potential interest that is no greater than the interest of all of the other members of the putative class was not sufficient to prove a special interest. Id.

Like in Hutcherson, Mr. Payne, in behalf of his daughter, seeks to enforce the provisions of the Foundation Trust. He desires to compel the Trustees to include Samantha as a member of the potential beneficiaries. He claims that she has a “special interest” that qualifies her to intervene. Mr. Payne claims that the special interest is that if she is included as a potential beneficiary, she will be awarded a scholarship because everyone who has applied and been qualified for consideration has received a scholarship.

The Trust provides that the Trustees exercise discretion in awarding scholarships. At best, Samantha would be a potential beneficiary. She is not certain to receive Trust benefits. Even if Samantha were a person that might, in the discretion of the Trustees, become a recipient of a scholarship under the Trust provisions, she would not be entitled to sue to enforce the trust. Id. at 88 (citing PVA Austin Wake-man Soott & William Franxlin FRAtcher, The Law of Trusts § 391, p. 373 (4th ed.1989)). Samantha cannot sue to enforce the charitable trust merely on the ground that she believes she is within the class to be benefited by the trust and that she would receive charitable or other benefits. Id. Samantha does not have a special interest that permits her to sue to enforce the trust.

The Attorney General was the Proper Party Defendant

The Trustees determined that Samantha is not a potential beneficiary because she has not ever been a student at a high school within Mercer County as they interpret the Trust to require. The scholarship committee, in behalf of the Trustees of the Revocable Trust, as amended, interpreted subparagraph E, paragraph SIXTH of the Revocable Trust and established the rule of interpretation that the term “high school graduate” as used in the paragraph does not include persons who are, or have been home schooled, or persons who have received general equivalency diplomas. “Home schooled,” the committee determined, means persons who were home schooled and who did not attend at least two years of high school in Mercer County Schools, with at least one of the two years being the senior year.

The Trustee’s declaratory judgment action sought judicial declaration that their interpretation of the Trust was correct, and they named the Attorney General as a defendant. The Attorney General represents “the public and the public interest in respect to matters involving enforcement of public charitable trusts.” Id. at 84 (quoting German Evangelical St. Marcus Congregation of St. Louis v. Archambault, 404 S.W.2d 705 (Mo.1966)). The Attorney General is the proper entity to enforce charitable trusts within this state and was a proper party defendant in this case. The uncontroverted evidence is that the Attorney General responded as duty required, obtained discovery to educate himself regarding the Trust, and ultimately concurred in the consent decree.

Request for Reimbursement and Attorney Fees

Although not a point on appeal, Mr. Payne asks this court to order the Foundation Trust to reimburse him the costs of the action and “for such other orders as the court deems proper” because he has attempted to assist his daughter and is not an attorney and has incurred expense for research and writing. He has cited no authority supporting his request for costs plus compensation for time spent learning the law and preparing the case in behalf of his daughter, essentially a request for attorney fees.

The concept of “costs” did not exist at common law and was created by statute. Starling v. Union Pac. R.R. Co., 22 S.W.3d 213, 216 (Mo.App. W.D.2000). Statutes allowing the taxation of costs are strictly construed. Id. Courts have “no inherent power to award costs, which can only be granted by virtue of express statutory authority.” Id. (quoting Dorn-Chrysler Plymouth, Inc. v. Roderique, 487 S.W.2d 48, 49 (Mo.App.1972)). Section 514.060, RSMo 2000, states that “[i]n all civil actions, or proceedings of any kind, the party prevailing shall recover his costs against the other party, except in those cases in which a different provision is made by law.” See also Rule 77.01; § 514.110, RSMo 2000. Mr. Payne has not prevailed. His request for costs is denied.

Mr. Payne also asks for attorney fees. Missouri follows the “American Rule.” Absent statutory authorization or contractual agreement, each litigant, with few exceptions, bears the expense of his own attorney fees (American Rule). Mayor, of City of Liberty v. Beard, 636 S.W.2d 330, 331 (Mo. banc 1982). Mr. Payne cites Rule 87.09 as authority for receiving the costs of litigation. Rule 87.09 is nearly identical to the language in section 527.100 RSMo. In Beard, the Court held that the language of section 527.100, which author izes the award of costs in declaratory judgment actions, does not provide a statutory basis for the award of attorney fees. Id. at 331. See also Strickland v. Bryant, 846 S.W.2d 788, 789-90 (Mo.App.1993)(citing Washington Univ. v. Royal Crown Bottling Co. of St. Louis, 801 S.W.2d 458, 468 (Mo.App.1990)) (“The Supreme Court in Mayor ... held that ‘costs’ in § 527.100 did not automatically include attorney’s fees. The court specifically rejected the broad interpretation ... that ‘costs’ in declaratory judgment actions include attorney’s fees.”).

Mr. Payne also has failed to follow the proper procedure for requesting reimbursement. This Court’s Rule XXIX requires any party seeking the award of attorney fees to file a separate written motion before submission of the cause. Western District Rule XXIX. Mr. Payne’s request for attorney fees is denied.

Conclusion

The trial court properly denied Mr. Payne’s motion to intervene. Having no standing to sue the Foundation Trust, he has no standing to appeal the trial court’s judgment. The appeal is dismissed.

BRECKENRIDGE, J. and ELLIS, J. concur.

      . Mr. Payne’s third item referenced in the first point, that the judge should have allowed standing in that Samantha belongs to a small class of identifiable beneficiaries and is a person "certain to receive trust benefits," is redundant.


author: JOHN E. PARRISH, Judge.

text:
    Glenn A. HUSKEY, Jr., Respondent v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Appellant.
    No. 26855.
    Missouri Court of Appeals, Southern District, Division One.
    Feb. 15, 2006.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Cheryl Caponegro Nield, Asst. Atty. Gen., Jefferson City, for appellant.
    No appearance for respondent.
   JOHN E. PARRISH, Judge.

The Director of Revenue appeals a judgment setting aside the revocation of the driving privilege of Glenn A. Huskey,-Jr., (petitioner) for failure to submit to a chemical test as required by § 577.041. This court reverses and remands with directions.

Petitioner sought and was granted a hearing in circuit court following the director’s revocation of his driving privilege for refusing to submit to a chemical test to determine his level of blood alcohol after he was stopped for traffic violations. See § 577.041.3. The director submitted certified records of the Department of Revenue to make a prima facie case that (1) petitioner was arrested; (2) petitioner refused to submit to a chemical test to determine his blood alcohol content; and (3) that the arresting officer had reasonable grounds to believe petitioner was intoxicated. See § 302.312. No other evidence was presented. The trial court set aside the revocation of petitioner’s driving privilege. The trial court, in reaching its decision in this case, inquired, “How do I determine the credibility of the person who filled out this report?”

The director presents one point on appeal. The director contends the trial court erred in setting aside the revocation because the undisputed evidence was “that [petitioner] was arrested upon reasonable grounds to believe he was driving while intoxicated and he refused to submit to a test to determine the alcohol content of his blood”; that the trial court misapplied the law and that the determination was against the weight of the evidence and was not supported by substantial evidence in that the Department of Revenue records were “admissible and [were] not rendered inadmissible or incredible because of a purported inability to cross-examine a witness or witnesses.” This court agrees.

The Alcohol Influence Report that was included in the Department of Revenue records admitted in evidence was undisputed evidence of the elements required for revocation of petitioner’s driving privilege. There was no contradictory evidence. “Evidence adduced by an Alcohol Influence Report is sufficient to establish the elements required to uphold revocation of driving privileges pursuant to § 577.041.” Burk v. Director of Revenue, 71 S.W.3d 686, 687 (Mo.App.2002). “Deference to the trial court’s findings is not required when the evidence is uncontro-verted and the case is virtually one of admitting the facts or when the evidence is not in conflict.” Justice v. Director of Revenue, 890 S.W.2d 728, 730 (Mo.App.1995).

The director’s point on appeal is granted. The judgment reinstating petitioner’s driving privilege was against the weight of the evidence. It erroneously applied the law. The judgment is reversed. The case is remanded. The trial court is directed to enter judgment upholding the director’s revocation of petitioner’s driving privilege.

RAHMEYER, P.J., and LYNCH, J., concur.

      . References to statutes are to RSMo 200,0.


author: GARY W. LYNCH, Judge.

text:
    Timothy R. LAWS, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 26894.
    Missouri Court of Appeals, Southern District, Division One.
    Feb. 15, 2006.
    See also 121 S.W.3d 571.

      Irene Earns, Columbia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Attorney General, and Daniel N. McPherson, Assistant Attorney General, for Respondent.
   GARY W. LYNCH, Judge.

A jury found Timothy R. Laws (“Mov-ant”) guilty of forgery, pursuant to § 570.090, on November 22, 2002. Following the verdict the trial court ordered a pre-sentence investigation, increased Movant’s bond, and set sentencing for December 12, 2002. Movant posted the increased bond and was released from custody. Later, sentencing was continued until January 22, 2003. On that date Movant appeared, read the pre-sentence investigation, and fled from the courthouse before sentencing occurred. The trial court forfeited Movant’s bond and issued a warrant for his arrest. Eighteen days later Movant was arrested. The next day, the nineteenth day after his escape, Mov-ant was sentenced to ten years in prison as a prior and persistent offender.

Movant appealed and this court affirmed his conviction. State v. Laws, 121 S.W.3d 571 (Mo.App.2003). However, before reaching the merits of this direct appeal, the State urged this court to dismiss the appeal based upon the escape rule. Id. at 573. Exercising our discretion, this court refused to apply the escape rule and decided the appeal on its merits. Id. at 574.

Movant timely filed a pro se Rule 29.15 motion for post-conviction relief which was timely amended by appointed counsel. In his pro se and amended motions, Movant claimed that he was prejudiced by a juror who failed to disclose information during voir dire and that his trial attorney denied him effective assistance of counsel in two respects. First, trial counsel failed to discover and remedy the juror non-disclosure. And, second, trial counsel failed to call the records custodian of Kennett High School to testify that Movant had never attended that school, which would have impeached the testimony of witness Shannon Rodriquez, that “she knew [Movant] from high school.”

Following an evidentiary hearing, the motion court at the request of the State dismissed the motion due to Movant’s violation of the “escape rule.” Ex gratia, the motion court made findings of fact and conclusions of law on Movant’s substantive claims, “in the event that an appellate court should determine that [the State’s] Motion to Dismiss under the escape rule should not have been sustained.” This appeal followed.

1) Movant’s Claims of Error

Movant challenges the motion court’s invocation of the “escape rule” to dismiss his post-conviction motion in two respects. First, he claims that the motion court violated the ‘Jaw of the case in that [this court] previously decided the [escape] rule did not apply to [his] actions.” Second, he claims the motion court, “abused its discretion in dismissing [Movant’s] Rule 29.15 motion under the escape rule ..., because the escape did not aversely affect the criminal justice system, in that the nineteen-day delay caused by Movant’s failure to appear at sentencing did not hinder the subsequent post-conviction proceedings.”

Should this court determine that the motion court erred in dismissing the motion, Movant further asserts that the motion court clearly erred in denying Mov-ant’s claim of ineffective assistance of counsel due to trial counsel’s failure to call the records custodian of Kennett High School to impeach the testimony of witness Shannon Rodriquez. This point need not be discussed, because our decision on the applicability of the escape rule is adverse to the Movant and dispositive of this appeal.

2) Standard of Review

Appellate review of the denial of a post-conviction relief motion under Rule 29.15 is limited to determining if the motion court’s findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k). Findings and conclusions are erroneous only when a review of the entire record leaves the reviewing court with a definite and firm impression that a mistake has been made. Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000).

3) Discussion

The Western District of this court has recently considered the applicability of the escape rule in similar circumstances and succinctly summarized the applicable law as follows:

The “escape rule” generally denies the right of appeal to a defendant who attempts to escape justice by absconding. The rule also can be applied to deny post-conviction relief. The rule applies only to errors that occur up to the time of the escape. Whether to apply the escape rule is discretionary. And its application does not violate a defendant’s constitutional rights because neither a right to appeal a conviction nor a right to a state post-conviction proceeding exists. (Internal citation omitted.)

Echols v. State, 168 S.W.3d 448, 451 (Mo.App.2005).

“In post-conviction cases, the escape rule has been invoked both to dismiss appeals where the motion court reached the merits of the movant’s claim and to affirm the motion court’s dismissal of a motion based on its own application of the rule.” Id., citing Vangunda v. State, 922 S.W.2d 857, 858 (Mo.App.1996).

This case is in a similar posture as that in Echols. The defendants in each case failed to appear for sentencing. Following apprehension and sentencing, each defendant filed a direct appeal. In each direct appeal, the state asked the appellate court to invoke the escape rule to dismiss the appeal. The appellate court in each case exercised its discretion not to apply the escape rule, decided each direct appeal on its merits and affirmed each conviction. Each defendant thereafter filed a Rule 29.15 motion for post-conviction relief which the motion court dismissed pursuant to the escape rule. The movant in each case appealed the dismissal claiming that the motion court clearly erred in applying the escape rule to dismiss the motion when it had not been applied by the appellate court to dismiss the direct appeal.

At this juncture, the facts of each case diverge somewhat. In Echols, the mov-ant’s appeal- of his post-conviction motion claimed ineffective assistance of trial counsel by events that occurred before his escape, as in the instant case, and ineffective assistance of post-conviction counsel by events that occurred after his escape, which is not the situation in the case before us. Id. at 454. Movant, in this case, does not allege any error for any events occurring after his escape. The Echols court upheld the application of the escape rule by the motion court to support dismissal ' of the motion in- the former situation, but found error in dismissing the motion as to movant’s claims arising after the escape. Id. at 454. Therefore, the logic and reasoning of the Echols court in affirming the dismissal of the post-conviction motion for allegations of error oceur-ring before the movant’s escape are instructive for the disposition of this appeal,

a) Law of the Case

The Movant asserts that the doctrine of the “law of the case” prohibits the motion court from invoicing the escape rule to dismiss the post-conviction motion because this court chose not to invoke the escape rule on the direct appeal. This argument was not addressed in these terms to the Echols court. The movant in Echols argued that the motion court was “collaterally estopped” from invoking the escape rule because the appellate court chose not to invoke the rule on the direct appeal. Both of these doctrines have one element in common: Is the issue sought to be relitigated the identical issue previously decided?

The “law of the case” doctrine provides that a previous holding on an issue by an appellate court becomes the “law of the case” and that issue may not be relitigated on remand or in a subsequent appeal. State v. Graham, 13 S.W.3d 290, 293 (Mo. banc 2000). This doctrine is to prevent successive appeals not otherwise authorized. Id. For this doctrine to apply, the issue sought to be relitigated must be the same issue as previously decided. Id.

The doctrine of collateral estop-pel prevents an issue that has been resolved in one action from being relitigated in another action. Shahan v. Shahan, 988 S.W.2d 529, 532 (Mo. banc 1999). One of the four elements of collateral estoppel is: “whether the issue decided in the prior adjudication was identical to the issue presented in the present action[.]” James v. Paul, 49 S.W.3d 678, 682 (Mo. banc 2001).

The Echols court stated and held that: The State requested this court to dismiss Echols’ direct appeal based on the escape rule, but this court declined to do so without commenting on the matter. The court reviewed Echols’ argument on its merits instead. That, however, does not mean that the State’s argument seeking to invoke the escape rule was meritless. This court did not adjudicate the applicability of the escape rule. Rather, we simply exercised our discretion not to invoke the escape rule. Thus, the State was not “collaterally es-topped” from reasserting the issue.

168 S.W.3d at 452.

Thus, the appellate court’s exercise of discretion to not invoke the escape rule to deny a direct appeal is not the same issue as to whether the motion court should or should not invoke the rule to deny the movant the right to post-conviction relief. The instant case is a good illustration of this point. On direct appeal, this court chose to “use our discretion to not apply the escape rule” to deny the right of an appeal to Movant on the issue of whether the trial court abused its discretion in admitting evidence of uncharged crimes. Laws, 121 S.W.3d at 572-73. This court never addressed the issue of whether the escape rule should or should not be applied to deny the Movant the right to post-conviction relief on the issues of juror misconduct and ineffective assistance of counsel. Because this latter issue was never addressed by this court on the direct appeal, there is no “law of the case” or “collateral estoppel” to bar the motion court’s consideration and application of the escape rule to Movant’s post-conviction relief motion. Echols, 168 S.W.3d at 452.

Movant seizes upon the phrase from Echols that the “court did not adjudicate the applicability of the escape rule[,]” in an effort to distinguish Echols from this case. Id. Movant argues that this court “adjudicated” the applicability of the rule in the direct appeal and, therefore, the reasoning of the Echols court does not apply. However, the Movant fails to point this court to any language in the opinion of the direct appeal where this court, in fact, made such adjudication. Movant ignores this court’s specific language in the direct appeal that “we use our discretion to not apply the escape rule[.]” Laws, 121 S.W.3d at 574 (emphasis added).

Movant’s “law of the case” point is denied.

b) Adverse Affect on Criminal Justice System

Movant next claims that “[t]he motion court abused its discretion in dismissing [Movant’s] Rule 29.15 motion under the escape rule, ... because the escape did not aversely affect the criminal justice system, in that the nineteen-day delay caused by [Movant’s] failure to appear at sentencing did not hinder the subsequent postcon-viction proceedings.” In support of this claim, Movant cites State v. Troupe, 891 S.W.2d 808 (Mo. banc 1995), for the proposition that the motion court was required to make an inquiry and findings as to whether Movant’s conduct during his escape adversely affected the criminal justice system. Movant complains that “the motion court made no findings of fact or other explanation for invoking the rule.” However, Movant failed to cite and has ignored this court’s holdings in Clayton v. State, 910 S.W.2d 369 (Mo.App.1995) and Vangunda v. State, 922 S.W.2d 857 (Mo.App.1996), which are dispositive of this point.

In response to the same argument as advanced by Movant in this case, this court in Clayton noted that “[t]he statement movant quotes from Troupe is not directed to trial court proceedings. The statement refers to appellate court action. The motion court’s failure to address whether movant’s conduct adversely affected the criminal justice system was not error.” Clayton, 910 S.W.2d at 370.

The next year, this court again addressed this issue in Vangunda and reaffirmed it’s holding in Clayton with the following language:

Procedurally, Clayton is like this case, that is to say in both instances the motion court invoked the escape rule to dismiss a ... motion for postconviction relief without an express finding of whether the movant’s conduct adversely affected the criminal justice system. Relying on Clayton, we conclude that the motion’s court’s failure to explicitly address that issue was not error.

Vangunda, 922 S.W.2d at 859.

Based upon the same reasoning as set forth in Clark and Vangunda Movant’s Adverse Affect on Criminal Justice System point is denied.

4) Decision

The escape rule should be applied in order to: (1) maintain control over the defendant before making a decision on appeal; (2) curtail administrative problems caused by the escapee’s absence; (3) prevent prejudice to the State in the event of a remand for a new trial; (4) prevent defendants from selectively abiding by court decisions; (5) discourage escape; (6) encourage voluntary surrender; (7) preserve respect for the criminal justice system; and (8) promote the dignified operation of the appellate courts.

Smith v. State, 173 S.W.3d 928, 930 (Mo.App.2005), citing State v. Hickerson, 66 S.W.3d 787, 789 (Mo.App.2002).

In addition to the facts appearing in the entire record of this case, the motion court had the opportunity to evaluate and weigh facts supporting reasons numbered (5), (6) and (7). These facts, not available to this court based upon the dry record, include the attitude, demeanor and non-verbal manners of Movant when he was apprehended following his escape and brought before the court, when he was sentenced, and when he testified during the evidentia-ry hearing on his post-conviction motion.

With deference to the unique vantage point of the motion court in applying the facts to these reasons for the invocation of the escape rule, and after a review of the entire record, we are not left with a firm and definite impression that a mistake has been made. This court holds that the motion court did not clearly err in dismissing the Movant’s motion for post-conviction relief.

We affirm the denial of Movant’s post-conviction motion.

RAHMEYER, P.J., and PARRISH, J., concur.

      . All references to statutes are to RSMo (2000) and all references to rules are to Missouri Court Rules (2005), unless otherwise indicated.

      . Ex gratia, we have reviewed the findings of fact and conclusions of law by the motion court on Movant’s pro se and amended Rule 29.15 motions on this issue. To prevail on his ineffective assistance of counsel claim, Mov-ant had the burden of proving that his trial counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances; and, that the deficient performance prejudiced the defense of the case. Clark v. State, 94 S.W.3d 455, 458 (Mo.App.2003). We can find no error in the motion court’s findings and conclusions that Movant failed to carry his burden of proof on both prongs of this test.

      . For an example of a case where the applicability of the escape rule was adjudicated, see Collins v. State, 141 S.W.3d 96 (Mo.App.2004).

      . Movant failed to identify the appropriate standard of review for this claim of error, as required by Rules 30.06(c) and 84.04(e). "An abuse of discretion occurs when a trial court’s ruling is clearly against the logic of the circumstances then before the court and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration.” In re Spencer, 123 S.W.3d 166, 168 (Mo. banc 2003). “If reasonable persons can differ as to the propriety of the trial court's action, then it cannot be said that the trial court abused its discretion.” Id. How this standard differs from the clearly erroneous standard set forth in Rule 29.15(k) is not a determinative issue in this appeal.