author: ROBERT S. BARNEY, Judge.

text:
    STATE of Missouri, Respondent, v. Cleat D. CRIDER, Appellant.
    No. SD 29687.
    Missouri Court of Appeals, Southern District, Division One.
    March 23, 2010.
    Motion for Rehearing or Transfer Denied April 14, 2010.
    Application for Transfer Denied May 25, 2010.

      Kent Denzel of Columbia, for Appellant.
    Chris Koster, Atty. Gen., and Daniel N. McPherson, Asst. Atty. Gen., of Jefferson City, for Respondent.
   ROBERT S. BARNEY, Judge.

Cleat D. Crider (“Appellant”) appeals his conviction by the trial court for one count of the unclassified felony of statutory sodomy in the first degree, a violation of section 566.062. Following a jury trial, Appellant was sentenced by the trial court to thirty years in the Missouri Department of Corrections. In his sole allegation of trial court error, Appellant maintains the trial court abused its discretion in refusing to allow Appellant to present evidence that G.S. (“Victim”) had previously denied being abused without also finding that any such evidence would “open the door” for the State to present evidence of Appellant’s alleged sexual abuse of Victim’s sister, S.C. (“Sister”). We affirm the judgment and sentence of the trial court.

Viewing the evidence in the light most favorable to the jury’s verdict, State v. Tabor, 219 S.W.3d 769, 771 (Mo.App.2007), the record reveals Appellant was married to A.C. (“Mother”) and was Victim’s stepfather. Appellant and Mother were married when Victim was two or three years old and Appellant was “the only father [she] knew....” Appellant and Mother then had two daughters, Sister and P.C., as well as one son, J.C. Appellant and Mother were divorced at the time of trial.

On May 1, 2005, T.D. (“Friend”), who was fourteen years old at the time, reported to her parents that she saw Appellant sexually abusing Victim when she was at their home visiting P.C. Her parents took her to the police station and she made a statement about the incident she had witnessed a few months prior. Friend testified at trial that on one particular afternoon she entered Appellant’s home to visit P.C. and she decided to wander through the home when she discovered P.C. was not in her room. She was entering the kitchen when she saw Victim standing in front of the refrigerator. She related Appellant was kneeling down facing Victim with his back to Friend and his hand was in Victim’s pants “moving up and down.” She related Victim was looking at Appellant while chewing her fingernails and she heard Appellant remark to Victim “how does that feel? Does that feel good? Something like that.” Victim then spotted Friend and stared at her without saying anything. Appellant then felt Friend’s presence, removed his hand from Victim’s pants, and approached Friend while Victim went out the kitchen door. Friend stated Appellant asked her, “Hey, how are you doing?” and she did not reply. Friend then left the house. A few weeks later she spoke with Victim about the incident and Victim told Friend she did not want to tell anyone about what had occurred. Friend ultimately told P.C. about the incident and they told both Mother and Friend’s parents about the occurrence.

Following Friend’s statement to police, Appellant was arrested and he chose to waive his Miranda rights. During his interview at the police station, he informed the officers that Friend observed him and Victim playing a game of “wedgie,” which had been started by Victim, and he was grabbing her underwear to pull it up.

Prior to trial, Appellant filed a “Motion to Use Alleged Victim’s [Division of Family Services (“DFS”) ] Statement” during trial. This motion was taken up by the trial court at a pretrial conference on January 9, 2009. At this hearing, the State maintained that if Victim’s statement to DFS were introduced at trial then the State should be permitted to introduce evidence of other uncharged acts, namely Sister’s allegations against Appellant, in order to explain Victim’s statement to the DFS investigator. The State argued that admitting Victim’s statement to DFS would “open the door” to evidence relating to Sister’s allegations against Appellant, because the State would then need to elicit testimony from Victim that the reason she denied any abuse was because Sister was removed from the home following her disclosure of abuse and Victim did not want the same thing to happen to her. Defense counsel countered that the evidence relating to Sister had to be limited by the trial court due to the fact that Sister’s claims were ultimately found by DFS to have been unsubstantiated and it would be prejudicial to Appellant to turn the current case into one involving Sister’s claims. Defense counsel agreed the State could ask Victim “why she lied to DFS workers,” but if she were allowed to discuss “the circumstances of why [she] lied” then that would “get into propensity ... evidence of [Appellant], which is an uncharged bad act.” On January 21, 2009, the trial court issued its “Order” overruling Appellant’s motion.

A trial was held on January 21, 2009. At trial, Victim, who was seventeen years old at the time, testified that in December of 2004, when she was twelve years old, she was alone with Appellant in the kitchen of her home when Appellant got down on his knees in front of her, put his hand into her pants, and rubbed his finger on her vagina. She related Friend appeared in the kitchen door while this was occurring and stood there “in shock with her mouth open.” She stated “[o]nce [Appellant] saw that [her] eyes were staring at something ... he turned around and saw [Friend]” and he “got up real fast.” Victim then “went out the back door.”

Over Appellant’s objection, Victim further related that the incident in question was not the first time she had sexual contact with Appellant. She related that in the spring of 2004, there was a situation “involving what a boy tried to do with [her],” and shortly after that Appellant approached her in a sexual manner for the first time. She related she and Appellant were wrestling on the floor “and [she] had baggy shorts on. And [Appellant] stuck his finger in [her] vagina, and said [he was going to] show [her] the right way a boy should love [her] and not the wrong way.” She also stated that on numerous occasions thereafter Appellant touched her breasts and forced her to perform oral sex on him. She further detailed an incident which occurred between her and Appellant at a local park where Appellant made her perform fellatio on him until he ejaculated on a park bench. She related that between approximately April of 2004 and May of 2005 Appellant “had some type of sexual contact ...” with her “[a]lmost every day,” but, saliently, she never told anyone about it “[b]ecause [she] was scared that [she] was gonna get taken out of [her] home and not be with [her] mom anymore,” and because Appellant told her he would kill Mother if she disclosed the abuse.

After the close of the State’s case, defense counsel sought and was permitted to make an offer of proof relating to the evidence it would present. In the offer of proof, defense counsel elicited testimony from Paul Adair (“Mr. Adair”), formerly an investigator for DFS, who testified he interviewed Victim on December 14, 2004, in conjunction with his investigation of Sister’s allegations of sexual abuse at the hands of Appellant. Mr. Adair related he did not specifically ask Victim if Appellant had abused her, but that Victim “said that no one has ever done anything to her in a sexual manner, and ... that she would tell a teacher or the police if anyone did.... ”

Following the offer of proof defense counsel argued that Mr. Adair’s testimony was logically relevant to the matter at hand as it was directly related to Victim’s credibility. The State reiterated that it had no objection to the trial court permitting Mr. Adair’s testimony; however, it felt it would open the door for the State to bring in information about Sister’s allegations against Appellant, because it would be entitled to “have [Victim] explain why she lied.” Namely, Victim would be able to testify that she lied to Mr. Adair because Sister was removed from the home following allegations of abuse by Appellant, and she did not want the same thing to happen to her.

The trial court determined that, “[w]ell, I will allow you to [present the testimony of Mr. Adair].... I think once [defense counsel] open[s] it and say[s], when did this happen and what happened and put[s] Mr. Adair on, I’m gonna let [the State] continue.” (Emphasis added). Ultimately, Appellant’s counsel made the strategic decision not to offer Mr. Adair’s testimony to the jury. No evidence was introduced by Appellant. The jury found Appellant guilty beyond a reasonable doubt of the crime of statutory sodomy in the first degree and he was sentenced by the trial court as previously set out. This appeal followed.

In his sole point relied on, Appellant essentially asserts the trial court abused its discretion in “refusing to permit [Appellant] to present evidence that [Victim] denied that anyone had ever sexually abused her, without its opening the door to the State’s introducing otherwise inadmissible propensity evidence.... ”

In our analysis of Appellant’s sole point relied on, we note Appellant would have been within his rights to have offered the admissions of Victim made to Mr. Adair in an attempt to impeach or contradict her prior testimony on direct even without obtaining prior trial court approval. § 491.070; State v. Douglas, 529 S.W.2d 162, 164 (Mo.App.1975) (citing 2 Wharton’s Criminal Evidence, 13th ed., 455, p. 392, holding that “[a] party has the right to impeach the credibility of a witness whom he did not call, and he may do so by cross-examination or through another witness”). Furthermore, while not expressly so denominated, Appellant essentially sought a motion in limine to prohibit the State from delving further into the matter by way of rebuttal or explanatory testimony subsequent to the proposed testimony of Mr. Adair. Appellant sought to bind the trial court to a ruling on evidence ahead of time without expressly offering the testimony at trial. “We are left, then, with a request to convict a trial court of an error it did not commit, which we cannot do.” State v. Carter, 104 S.W.3d 413, 416 (Mo.App.2003). The trial court ultimately made an advisory ruling that Appellant could, indeed, offer Mr. Adair’s testimony and if he did so, then the trial court would permit the State to rebut that evidence. In other words, the trial court made an interlocutory ruling on Appellant’s motion which had all the attributes of a motion in limine. However, it has long been held that “ ‘[a] ruling in limine is interlocutory only and is subject to change during the course of trial. The motion in limine, in and of itself, presents nothing for appeal.’ ” State v. Whitwell, 215 S.W.3d 760, 761 (Mo.App.2007) (quoting State v. Purlee, 839 S.W.2d 584, 592 (Mo. banc 1992)) (emphasis omitted). Appellant’s point presents nothing for appeal. Point denied.

The judgment and sentence of the trial court is affirmed.

BATES, P.J., and BURRELL, J., concur.

      . Appellant was also charged with three additional counts of the unclassified felony of statutory sodomy as well as one count of die unclassified felony of statutory rape in the first degree, a violation of section 566.032. These charges were dismissed by the State. Unless otherwise stated, all statutory references are to RSMo 2000.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Both Friend and Victim testified at trial that Appellant was not giving Victim a "wedgie" during the incident at issue. As best we discern, a "wedgie” appears to be a prank where one grabs the underwear of another and pulls up on the garment.

      . Before the allegations at issue, Appellant was under investigation by DFS for the sexual abuse of Sister and in conjunction with that investigation Victim was interviewed by a DFS investigator. During this interview, which occurred on December 14, 2004, Victim told the investigator that she had never been sexually abused.

      .The police records relating to this incident with "a boy” reflect that the event occurred on April 23, 2004.

      . "Impeachment evidence challenges a witness' credibility. Contradictory evidence, on the other hand, challenges a witness' accuracy and ordinarily supplies additional facts.” State v. Westcott, 857 S.W.2d 393, 398 (Mo.App.1993).


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Missouri, ex rel. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Appellant, v. John DALE, et al., Respondents.
    No. SD 29498.
    Missouri Court of Appeals, Southern District, Division One.
    March 23, 2010.
    Motion for Rehearing or Transfer Denied April 14, 2010.
    Application for Transfer Denied May 25, 2010.

      Michael L. Jackson, Sr. Asst. Counsel, John W. Koenig, Jr., Regional Counsel and Rich Tiemeyer, Chief Counsel, Sikeston, for Appellant.

      Christopher J. Swatosh, Ava, for Respondents.
   ROBERT S. BARNEY, Judge.

State of Missouri ex rel. Missouri Highway and Transportation Commission (“Appellant”) appeals the “Judgment on Jury Verdict for More than Commissioner’s Award” which awarded John and Marsha Dale (“Respondents”) $445,643.20 for their damages in relation to a condemnation action filed against them by Appellant. Appellant asserts three points relied on premised on instructional error due to the trial court’s rejection of its proffered Instruction No. 6 which was a modified version of Missouri Approved Instruction (“MAI”) 9.02. We affirm the judgment of the trial court.

The record reveals Respondents were the owners of a 10.8 acre tract of land in Howell County, Missouri, upon which they operated a sawmill. This property is located on U.S. Route 60 where that highway intersects with Route RA and Respondents have always utilized Route RA to access their property. In order to facilitate highway improvements to U.S. Route 60, Appellant condemned 3.44 acres of Respondents’ property along its northern edge. During the course of these improvements it was discovered that Respondents’ property line did not actually extend to the borders of Route RA such that they had no legal means of ingress and egress to their property. On November 21, 2006, Respondents filed a “Notice of Exceptions to the Report of Commissioners and Request for Jury Trial.”

A jury trial was held on October 1 and 2, 2008. A great deal of evidence was adduced; however, only two witnesses testified to the value of Respondents’ property and concomitant damages relating to the condemnation by Appellant.

Jack Blaylock (“Mr. Blaylock”), a certified property appraiser, appeared on behalf of Respondents. He testified that, utilizing the cost less depreciation approach to appraisal, he determined that prior to the taking Respondents’ property was worth $695,450.00, an amount which included $102,000.00 for fixtures and $108,900.00 for the value of “the log yard.” He related that after the condemnation, he valued Respondents’ property at $139,300.00 such that Respondents were damaged in the amount of $556,150.00 as a result of the taking by Appellant. He related he did not use the income capitalization approach to appraisal and specifically testified that it was not applicable in cases such as the present matter, as the approach only applied to rental property. He further related he did not employ the cost to cure method because it was not applicable.

William Craig (“Mr. Craig”), a certified property appraiser who appeared on behalf of Appellant, testified that using the cost less depreciation method of appraisal and the sales comparison approach to appraisal he determined Respondents were damaged in the amount of $138,000.00. As with Mr. Blaylock, Mr. Craig declined to use the capitalization of income approach as he too believed it was not applicable to the present matter. Unlike Mr. Blaylock, Mr. Craig included a cost to cure approach in his determination to take into account the cost for Respondents to legally obtain a way of necessity to access their property.

At the instruction conference in this matter, Respondent proffered Instruction No. 6 which was verbatim from MAI 9.02. This instruction set out that:

[y]ou must award [Respondents] such sum as you believe was the difference between the fair market value of the entire property immediately before the taking on November 15, 2006, and the fair market value of the remaining property immediately after the taking. In determining the fair market value of [Respondents’] property, you may consider evidence of the value of the property including comparable sales, capitalization of income, replacement cost less depreciation, the highest and best use to which the property reasonably may be applied or adapted, the value of the property if freely sold on the open market, and generally accepted appraisal practices. You may give such evidence the weight and credibility you believe are appropriate under the circumstances.

Appellant then proffered its modified version of Instruction No. 6, which omitted the phrase “capitalization of income.” Otherwise, Appellant’s proffered instruction was identical to that offered by Respondents’ Instruction No. 6, referencing MAI 9.02.

Appellant objected to Respondents’ proposed instruction for several reasons: 1) that because there was no evidence at trial relating to the capitalization of income approach the non-modified instruction proposed by Respondents necessarily instructed the jury to consider matters which were not in evidence; 2) that Respondents’ proposed instruction “creates a roving commission for the jury to include a[n] income approach to say they can consider it when there’s no evidence of it;” 3) that in an unmodified form, MAI 9.02 does not comply with sections 523.060 and 523.001(1) upon which it is based; and 4) that the unmodified version of MAI 9.02 improperly allowed consideration of the income capitalization approach in a “partial takings” case.

The trial court rejected Appellant’s proposed, modified instruction and submitted Respondents’ Instruction No. 6 to the jury, which directly mirrored MAI 9.02. It determined that “with a minimal amount of instruction the jury can be told and will understand what the evidence has been presented so far regarding the three different approaches,” and concluded the instruction proposed by Respondents would not “confuse the jury.”

At the close of the evidence, the jury returned a verdict in favor of Respondents in the amount of $450,000.00. Subsequent to the denial of timely after-trial motions, this appeal by Appellant followed.

In his first point relied on, Appellant maintains the trial court erred in giving Instruction No. 6 to the jury “because Instruction Number 6 was not supported by the evidence in that [it] directed the jury that they could consider, and the jury must therefore be assumed to have considered, capitalization of income in arriving at their damage calculation....” It further asserts that because “there was no evidence of the use of the capitalization of income approach in evidence,” the trial court erred by “allowing the jury to speculate on damages to the actual and presumed prejudice of Appellant.” In its second point, Appellant maintains the trial court erred in giving the MAI compliant Instruction No. 6 because it “did not contain an accurate statement of substantive law in that Instruction No. 6 did not comply with the provisions of [sections] 523.060 and 523.001(1).... ” In its third point relied on, Appellant asserts the trial court erred in refusing to give its proffered Instruction No. 6, which was modified from MAI 9.02,

because the proposed modification of MAI 9.02 was necessary to fairly submit the issues in the case in that Appellant’s modification of MAI 9.02 would have removed capitalization of income from consideration by the jury in accordance with the provisions of [section] 523.001(1) ... and in accordance with the evidence in the case.

As all three points are interrelated, they shall be addressed conjunctively.

“An instruction will be given or refused by the trial court according to the law and the evidence in the case.” Eckerd v. Country Mut. Ins. Co., 289 S.W.3d 738, 746 (Mo.App.2009). “We review the evidence in the light most favorable to the submission of the instruction.” Id. This Court reviews “the trial court’s submission of a jury instruction ... de novo.” Rinehart v. Shelter Gen. Ins. Co., 261 S.W.3d 583, 593 (Mo.App.2008); see Gumpanberger v. Jakob, 241 S.W.3d 843, 846 (Mo.App.2007). “The court will determine if the instruction is supported by substantial evidence by viewing the evidence in a light most favorable to the instruction and disregard contrary evidence.” Syn, Inc. v. Beebe, 200 S.W.3d 122, 128 (Mo.App.2006). A new trial is warranted “‘only if the offending instruction misdirected, misled, or confused the jury, resulting in prejudicial error.’ ” Rinehart, 261 S.W.3d at 593 (quoting Kopp v. Home Furnishing Ctr., LLC, 210 S.W.3d 319, 328 (Mo.App.2006)); see McBryde v. Ritenour School Dist., 207 S.W.3d 162, 168 (Mo.App.2006). Stated another way, “[r]eversal for instructional error should not occur unless it is found that the instruction contains an error of substance with substantial potential for prejudicial effect.” White v. Curators of Univ. of Missouri, 937 S.W.2d 366, 369 (Mo.App.1996).

Rule 70.02 governs instructions to juries in civil cases. Criswell v. Short, 70 S.W.3d 592, 594 (Mo.App.2002). Rule 70.02(a) sets out that “[a]ll instructions ... shall be given or refused by the court according to the law and the evidence in the case.” Rule 70.02(b) requires that

[wjhenever [MAI] contains an instruction applicable in a particular case that the appropriate party requests or the court decides to submit, such instruction shall be given to the exclusion of any other instructions on the same subject. Where an MAI must be modified to fairly submit the issues in a particular case, or where there is no applicable MAI so that an instruction not in MAI must be given, then such modifications or such instructions shall be simple, brief, impartial, free from argument, and shall not submit to the jury or require findings of detailed evidentiary facts.

See Clark v. Missouri & Northern Arkansas R.R. Co., 157 S.W.3d 665, 671 (Mo.App.2004). “Thus, ‘it is well settled that when a MAI instruction is applicable, its use is mandatory.’ ” Id. (quoting Bueche v. Kansas City, 492 S.W.2d 835, 840 (Mo. banc 1973)). The rationale for this requirement is that “ ‘to make this system work, and preserve its integrity and very existence, we must insist that mandatory directions be followed and that the pattern instructions be used as written.’ ” Id. (quoting Davis v. St. Louis Southwestern R.R. Co., 444 S.W.2d 485, 489 (Mo.1969)). Further, the MAI “has long warned [in] its Comment titled ‘How To Use This Book’ ” that

[y]ou may have the ability to improve an instruction in MAI but you do not have the authority to do it. Do not do it. The use of a provided MAI is mandatory. If you think the change of a word or phrase will make it a better instruction, do not do it. You will be falling into error if you do.

Clark, 157 S.W.3d at 672-73 (quoting MAI at XLIX). On the other hand, Rule 70.02(e) “provides for modification of an existing MAI or drafting of a not-in-MAI instruction. The test of a modified MAI or not-in-MAI instruction is whether it follows the substantive law and can be readily understood by the jury.” Smith v. Kovac, 927 S.W.2d 493, 497 (Mo.App.1996). If a non-MAI instruction is proffered, the party offering the non-approved instruction “must prove that the MAI instructions submitted to the jury misstate the law.” McBryde, 207 S.W.3d at 168. “When there is no applicable MAI instruction, a non-MAI instruction may be given if it conforms to the requirements of Rule 70.02 in that it is simple, brief, impartial and free from argument.” Id. at 169. Rule 70.02(c) states that “[t]he giving of an instruction in violation of the provisions of this Rule 70.02 shall constitute error, its prejudicial effect to be judicially determined, provided that objection has been timely made pursuant to Rule 70.03.”

Here, MAI 9.02 was clearly applicable and was precisely mirrored in Respondents’ Instruction No. 6 given by the trial court. The trial court was correct in giving it without modification. The given jury instruction referenced numerous possible valid appraisal approaches based on the definition of fair market value as set out in sections 523.001(1) and 523.060. Based on the evidence presented, the jury could determine from expert testimony the fair market value of the property taken by Appellant.

Mr. Blaylock testified on behalf of Respondents that he reached his measure of damages by utilizing the replacement cost less depreciation method of appraisal in determining fair market value, and Respondents’ attorney focused on this approach in his closing argument. Appellant’s expert, Mr. Craig, testified that he reached his measure of damages by using the cost less depreciation and sales comparison approaches in determining fair market value, and these were the approaches relied upon by Appellant’s attorney in his closing argument. There was evidence from both Mr. Craig and Mr. Blaylock that the capitalization of income approach was not relevant under the factual pattern of this case. Neither side argued in closing argument that the irrelevant capitalization of income method should be considered by the jury in making its decision. Indeed, the trial court permitted the jury to view both sets of appraisals during their deliberation.

Additionally, while the Notes on Use for MAI 9.02 provide for limited modification, the Notes make no provision for modification or deletion of the term “capitalization of income.” As already stated, there is a plethora of law which states that instructions should not be unnecessarily modified and trial courts should utilize MAI whenever possible. Syn, 200 S.W.3d at 128-29; Clark, 157 S.W.3d at 671. In fact, the giving a non-MAI instruction instead of an applicable MAI instruction is presumed to be reversible error. See Kansas City v. Habelitz, 857 S.W.2d 299, 303 (Mo.App.1993).

Additionally, Appellant argues that the fact that the jury sent a question to the trial court during deliberations is evidence that it was confused by Instruction No. 6 such that there was prejudice. The record shows that during deliberations the jury sent a written note to the trial court inquiring “if a larger amount can be awarded than the top amount” and the trial court responded by stating “the jurors must be guided by the facts and evidence submitted and the instructions provided by the court.” We are not persuaded that there was prejudice based on this innocuous question. Further, it should be noted that there was evidence of damages presented ranging from $138,000.00 to $556,150.00 such that the jury’s award of $450,000.00 was within that range of values. See State ex rel. Missouri, Hwy. and Transp. Comm’n v. Meramec Valley Elevator, Inc., 782 S.W.2d 642, 646 (Mo.App.1989). The jury’s verdict was supported by competent and substantial evidence. Id. Appellant has failed to show the trial court erred in rejecting its proffered, modified jury instruction by instructing the jury in conformity with MAI 9.02. Points I, II, and III are denied.

The judgment of the trial court is affirmed.

BATES, P.J., and BURRELL, J., Concur.

      . References to MAI are to the July 1, 2008, revision, unless otherwise staled.

      . The "Report of Commissioners” filed in relation to the condemnation determined Respondents were entitled to $50,320.00 "as net damages for the appropriation ...” of their property by Appellant.

      . Prior to condemnation of the strip of land bordering U.S. Route 60 Respondents had a legal right to petition for a permit from Appellant in order to access U.S. Route 60 from their property; however, after condemnation they lost such a right.

      . The actual exceptions filed by Respondents were not provided to this Court by either party in this matter.

      . Section 523.060 sets out:
      1. Any plaintiff or defendant, individual or corporate, shall have the right of trial by jury of twelve persons, if either party file exceptions to the award of commissioners in any condemnation case.
      2. Such jury shall use the definition of fair market value provided for in subdivision (1) of section 523.001.
      Section 523.001(1) defines fair market value as
      the value of the property taken after considering comparable sales in the area, capitalization of income, and replacement cost less depreciation, singularly or in combination, as appropriate, and additionally considering the value of the property based upon its highest and best use, using generally accepted appraisal practices. If less than the entire property is taken, fair market value shall mean the difference between the fair market value of the entire property immediately prior to the taking and the fair market value of the remaining or burdened property immediately after the taking

      All statutory references are to RSMo Cum. Supp.2006.

      . Additionally, in the argument portion of Appellant's brief it asserts the instruction given to the jury resulted in a “roving commission” which allowed it to "speculate as to what it might take into account in considering capitalization of income." This argument was not included in Appellant’s point relied on and will not be discussed in this opinion. “ ‘Errors raised for the first time in the argument portion of the brief and that are not raised in the point relied on need not be considered by this Court.'" Woods v. Friendly Ford, Inc., 248 S.W.3d 665, 676 n. 11 (Mo.App.2008) (quoting Pearman v. Dep’t of Social Srvs., 48 S.W.3d 54, 55 (Mo.App.2001)).

      . All rule references are to Missouri Court Rules (2008).

      . Compare MAI 17.02 (2002 Sixth Ed.): "Verdict Directing — Multiple Negligent Acts Submitted.” In its Notes on Use 2, MAI 17.02 expressly sets out that "[tjhis instruction submits three improper acts in the disjunctive. ... As is the case with all disjunctive submissions, there must be sufficient evidence to support all of the improper acts or the instruction will be erroneous.” Unlike MAI 17.02, the Notes on Use in MAI 9.02 provide for no such disjunctive submission.


author: PER CURIAM.

text:
    William Brian HAMBY, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93469.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 23, 2010.
    Rehearing Denied May 4, 2010.
    Mark A. Grothoff, Columbia, MO, for Appellant.
    Shaun J. Mackelprang, Dora A. Fichter, Jefferson City, MO, for Respondent.
    Before KURT S. ODENWALD, P.J., GEORGE W. DRAPER III, J., and GARY M. GAERTNER, JR., J.
   ORDER

PER CURIAM.

William B. Hamby (hereinafter, “Mov-ant”) appeals from the denial of his Rule 29.15 post-conviction motion without an ev-identiary hearing. Movant was convicted of one count of stealing, Section 570.030 RSMo (2000), one count of resisting arrest, Section 575.150, and one count of third degree assault of a law enforcement officer, Section 565.083. Movant was sentenced, as a prior and persistent offender, to ten years’ imprisonment on the stealing conviction, which was ordered to run consecutively to a four year term of imprisonment for resisting arrest. Movant was also sentenced to a term of one year imprisonment in the county jail for assaulting a law enforcement officer, which was ordered to run concurrently to his other sentences. Movant’s convictions were affirmed on direct appeal. State v. Hamby, 260 S.W.3d 929 (Mo.App. E.D.2008). Subsequently, Movant filed a motion for post-conviction relief pursuant to Rule 29.15, which the motion court denied without an evidentiary hearing.

Movant raises two points on appeal. In his first point, Movant argues defense counsel was ineffective for failing to cross-examine the arresting officers about a witness’ statement. In his second point, Mov-ant claims defense counsel was ineffective for failing to object to certain comments the prosecutor made during closing argument.

We have reviewed the briefs of the parties and the legal file and find the motion court’s decision was not clearly erroneous. Rule 29.15(k). An opinion reciting the detailed facts and restating the principles of law would have no precedential value. We have, however, provided a memorandum opinion for the use of the parties only, setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 84.16(b).

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


author: ALOK AHUJA, Judge.

text:
    Robert D. CAIN, et al., Respondents, v. Sherri PORTER, Appellant.
    No. WD 69615.
    Missouri Court of Appeals, Western District.
    March 29, 2010.

      John Richard Weist, Jefferson City, for appellant.
    James H. Thompson, Jr., North Kansas City, MO, for respondents.
    Before ALOK AHUJA, P.J., THOMAS H. NEWTON, C.J., and HAROLD L. LOWENSTEIN, J.

      . Judge Lowenstein was a member of the Court when this appeal was submitted, but has since retired.
      This Court originally decided this appeal in an opinion issued on September 15, 2009. That opinion was authored by Judge Ahuja with Chief Judge Newton concurring; Judge Lowenstein dissented. The Missouri Supreme Court granted transfer on December 22, 2009. No. SC90511. On March 23, 2010, the Supreme Court retransferred the case to this Court. Pursuant to article V, § 7 of the Missouri Constitution, Chief Judge Newton and Judge Ahuja have determined to reissue the opinion previously issued on September 15, 2009, with minor clerical revisions, as the opinion of the Court. Although Judge Lowenstein is no longer a member of the Court, in the interest of completeness the dissenting opinion Judge Lowenstein filed on September 15, 2009, is attached as an Appendix to this opinion.

   ALOK AHUJA, Judge.

Sherri Porter appeals from the trial court’s judgment denying her Rule 74.06(b) motion, which sought relief from what Porter contended was a void judgment. The trial court held that Porter was precluded from reasserting the issues raised in her current motion, because she had raised the same issues in an earlier motion, lost, and appealed, but failed to prosecute her appeal from the earlier adverse ruling to a conclusion. We affirm.

Factual Background

In November 2000, Sherri Porter rear-ended a truck driven by Robert Cain in which his wife, Elizabeth Cain, was a passenger. In March 2004, Porter filed for Chapter 13 bankruptcy protection. In August 2005, during the pendency of the bankruptcy proceeding, Robert and Elizabeth Cain filed a personal injury petition naming Porter as the defendant. Porter filed an answer and amended her schedule of creditors to include the Cains.

At some point between October 2005 and September 2006, the Cains’ trial counsel met with Porter’s bankruptcy attorney to draft a stipulation under which the automatic stay, which became effective when Porter filed for bankruptcy in 2004, would be lifted, but only to the extent of Porter’s insurance coverage on her vehicle. The stipulation was drafted and signed by Porter, but the Cains’ counsel never filed the stipulation with the bankruptcy court, with the result that the stay was never lifted.

The case was tried on September 11, 2006. The Cains appeared with counsel. Neither Porter nor her counsel appeared. The trial court took evidence from the Cains and entered judgment against Porter in the amount of $200,100.24.

Porter moved to set aside the judgment. The trial court denied the motion on November 17, 2006. Porter filed a motion to reconsider on November 30, 2006, in which she asserted, for the first time, that the trial court was without subject matter jurisdiction to enter judgment because the automatic stay in bankruptcy had not been lifted. The trial court denied the motion on March 13, 2007. Porter filed an appeal, but later dismissed it.

Instead, on April 13, 2007, Porter filed a new motion pursuant to Rule 74.06(b)(4), arguing that the judgment was void because it was entered in violation of the automatic stay in bankruptcy. The trial court denied the motion, on the basis that it raised the same issues as Porter’s earlier motion for reconsideration. The trial court also held that, by her conduct, Porter had waived her right to rely on the bankruptcy stay. This appeal follows.

Analysis

If the issue had been properly preserved, we might well conclude that Porter’s bankruptcy filing prevented the circuit court from proceeding in this personal injury action, and that the resulting judgment entered by the circuit court is void. Even if this issue is properly characterized as one of “subject-matter jurisdiction,” however, Porter is allowed one — and only one — opportunity to litigate it. Because Porter previously litigated this issue, lost, appealed, and then abandoned her appeal, she was precluded from raising the issue a second time by filing her present Rule 74.06(b) motion.

The trial court denied Porter’s motion to set aside the judgment, which is the subject of this appeal, based on its determination that the motion raised the same issues Porter had raised in an earlier motion for reconsideration. After the court denied that earlier motion, Porter appealed, but subsequently dismissed her notice of appeal in favor of the motion at issue here. Notably, the first issue identified in the Civil Case Information Form supplementing Porter’s earlier notice of appeal is identical to the issue she raises now: “Did the trial court have subject matter jurisdiction to enter a default judgment in favor of the plaintiffs and assessing damages against the defendant when the case was subject to the automatic stay provision of the bankruptcy code?” At oral argument, Porter’s counsel stated that he dismissed the earlier appeal because he believed he could make a better record in a new Rule 74.06(b) motion, by having Porter submit an affidavit and testify, and providing additional documentation to the circuit court from the bankruptcy proceeding. Counsel admitted that the additional evidence submitted in connection with his Rule 74.06(b) motion would have been available in connection with the earlier motion to reconsider.

While a Rule 74.06(b) motion may commence an independent action, and result in a separately appealable judgment, this Court has previously held that preclusion principles can apply to bar a party from raising arguments in a Rule 74.06(b) motion, where that party has previously raised the identical arguments prior to the entry of final judgment in the underlying action. Spino v. Bhakta, 174 S.W.3d 702, 707-08 (Mo.App. W.D.2005). We believe this principle requires affirmance of the circuit court’s judgment here.

The fact that the effect of the bankruptcy stay may be jurisdictional, or quasi-jurisdictional, does not alter this conclusion. It is well established that a litigant cannot waive defects in subject matter jurisdiction, and therefore is guaranteed one opportunity to raise such issues; however, nothing gives a litigant a right to repeatedly raise the same arguments — even if jurisdictional — in perpetuity. As the United States Supreme Court has observed, “[t]his Court has long recognized that ‘[t]he principles of res judicata apply to questions of jurisdiction as well as to other issues.’” Underwriters Nat’l Assur. Co. v. North Carolina Life & Accid. & Health Ins. Guar. Ass’n, 455 U.S. 691, 706, 102 S.Ct. 1357, 71 L.Ed.2d 558 (1982) (citation omitted).

Missouri courts apply preclusion principles to issues of subject matter jurisdiction. Thus, in Allison v. Allison, 253 S.W.3d 91 (Mo.App. S.D.2008), the Southern District barred a mother from raising subject matter jurisdictional objections to an earlier dissolution decree by way of a motion for relief under Rule 74.06(b), where the decree had itself determined that subject matter jurisdiction existed. The court held that “ ‘[w]hen the question of subject matter jurisdiction has been fully litigated in the original forum, the issue cannot be retried in a subsequent action between the parties.’ ” Id. at 94 (citation omitted). Although Allison acknowledged mother’s right to file an independent action under Rule 74.06(b) to assert a jurisdictional defect, “[s]uch a motion cannot be used to evade the effects of res judicata and collateral estoppel.” Id. (citing Spino, 174 S.W.3d 702). The court concluded:

Because Mother, after having a full and fail’ opportunity to litigate the issue, did not appeal the dissolution court’s judgment of dissolution in which it found it had subject matter jurisdiction, the dissolution judgment is final and collateral estoppel precludes her from relitigating the issue of the dissolution court’s subject matter jurisdiction in her Rule 74.06 motion to set aside the judgment.

Id. Similarly, it is well-established under Missouri law that a party who litigates an issue of subject matter jurisdiction in a foreign forum, and loses, cannot seek to relitigate the issue when the adverse party seeks to enforce the foreign judgment here. See, e.g., Miller v. Dean, 289 S.W.3d 620, 624 (Mo.App. W.D.2009) (“Where a party raises the issues of personal and subject matter jurisdiction in the foreign state and those issues are litigated, the foreign court’s determination is conclusive and entitled to full faith and credit, even if its determination is wrong.”).

Even where an issue goes to the subject matter jurisdiction of the court, a litigant is still bound by the resolution of that issue when they choose to litigate it, and lose. Here, Porter raised her jurisdictional objections in her motion to reconsider, but failed to prosecute her appeal of the trial court’s adverse ruling to its conclusion. Porter is bound by the prior adjudication of her jurisdictional objections, and cannot reassert the same objections now.

Conclusion

The circuit court’s judgment is affirmed.

NEWTON, C.J., concurs.

LOWENSTEIN, J., not participating.

APPENDIX

[Opinion filed by Judge Lowenstein on September 15, 2009, dissenting from this Court’s original disposition of this appeal]

The judgment was void ab initio in violation of a bankruptcy stay, and, under any analysis, the trial court’s entry of judgment against Porter was error. LaBarge v. Vierkant (In re Vierkant), 240 B.R. 317, 320 (8th Cir.BAP1999). The trial court never had subject matter jurisdiction over Porter and the judgment entered in the Cain’s action was, therefore, void.

The trial court denied Porter’s motion pursuant to Rule 74.06 finding that Porter chose to litigate the matter before raising the bar of the bankruptcy stay. The record belies this finding. Porter amended the list of creditors to include the Cains and signed a stipulation to lift the stay to the extent of Porter’s vehicle insurance coverage. The Cains’ trial counsel did not file the motion, but, father proceeded to secure a default judgment with the knowledge that Porter was under bankruptcy protection. The record does not demonstrate any “conscious decision” by Porter to “game the system” as the trial court so alleged.

For the above reasons, I would reverse, finding the judgment against Porter void.

      . See, e.g., Baxi v. United Technologies Automotive Corp., 122 S.W.3d 92, 95 (Mo.App. E.D.2003); Yanuzzi v. Director of Revenue, 14 S.W.3d 618, 619 (Mo.App. E.D.1999).

      . Porter's motion for reconsideration, which was filed after the circuit court had denied her timely-filed post-judgment motion(s), should arguably itself have been treated as a motion under Rule 74.06(b). See, e.g., Lake Osage Condo. Ass'n v. Prewitt, 179 S.W.3d 331, 335 (Mo.App. S.D.2005) (motion to set aside default judgment filed after underlying judgment becomes final is treated as an independent proceeding seeking relief from judgment); Spino v. Bhakta, 174 S.W.3d 702, 706 (Mo.App. W.D.2005). This does not alter the result, however: whether the earlier motion was filed during the pendency of the underlying personal injury action, or instead as a Rule 74.06(b) motion which commenced an independent action, the fact remains that Porter previously litigated the same arguments she seeks to raise now.

      .Cases hold that, ''[wjhen a debtor appears and defends a suit on any basis other than application of the automatic stay, the debtor is deemed to have waived the automatic stay as to that particular action.” In re Hoskins, 266 B.R. 872, 879 (Bankr.W.D.Mo.2001) (citing In re Cobb, 88 B.R. 119, 121 (Bankr.W.D.Tex.1988)); see also In re Uhrig, 306 B.R. 687, 694 (Bankr.M.D.Fla.2004). This principle would cut against treating the issue as one of subject matter jurisdiction. While we do not rely on these cases here, we note that in this case Porter filed an answer to the Cains' petition, and a motion to set aside the judgment, after the filing of her bankruptcy petition, and without asserting the bankruptcy stay in either document.

      . Because we conclude that the trial court properly held that Porter was precluded from reasserting her arguments concerning the bankruptcy stay because of the court's earlier rejection of those arguments on her motion for reconsideration, we need not address the trial court’s alternative conclusion that Porter’s conduct had waived her right to rely on the bankruptcy stay. But see supra note 4.
      We emphasize that our holding is limited to the issue actually presented here: whether Porter was entitled to reassert, in the circuit court, her claim that the Cains’ judgment was void due to the bankruptcy stay. We do not undertake to address, or decide, whether Porter could seek relief on these grounds in the federal courts. In this regard, see In re Gruntz (Gruntz v. County of Los Angeles), 202 F.3d 1074, 1078-84 (9th Cir.2000) (en banc). Given our disposition, we also take no position concerning Porter's right to enforce any agreement she may claim to have with the Cains to limit their recovery to her insurance coverage, or her right to avoid or defeat execution of the judgment based on any discharge of her liabilities at the conclusion of her bankruptcy proceeding.


author: JAMES EDWARD WELSH, Presiding Judge.

text:
    STATE of Missouri ex rel. et al., Ray TAYLOR, Appellant, v. Lisa MEINERS, Respondent.
    No. WD 71129.
    Missouri Court of Appeals, Western District.
    April 6, 2010.

      David H. Bony, Kansas City, MO, for Appellant.
    Steven J. Quinn, Kansas City, MO, for Respondent.
    Before JAMES EDWARD WELSH, P.J., MARK D. PFEIFFER, and KAREN KING MITCHELL, JJ.
   JAMES EDWARD WELSH, Presiding Judge.

Ray Taylor appeals the circuit court’s judgment dismissing his petition for writ of prohibition and quashing its preliminary writ in prohibition. In his petition Taylor asked the circuit court to prohibit the Division of Workers’ Compensation Administrative Law Judge (ALJ) from ordering him to submit to an independent medical examination. Taylor contends that the circuit court abused its discretion in quashing its preliminary writ and dismissing Taylor’s petition for writ of prohibition because Taylor’s employer admitted the nature and extent of the disability to Taylor’s left eye and, therefore, Taylor should not be required to submit to a physical examination. We affirm.

Taylor filed a workers’ compensation claim on June 6, 2007, with the Division of Workers’ Compensation alleging that he sustained an injury to his left eye as a result of an accident while working for Labor Pros, LLC, on November 4, 2006. In his claim in the section entitled “Part(s) of the Body Injured” Taylor stated: “Left eye and seventy-five percent (75%) permanent partial disability to the left eye.” Labor Pros filed an answer to the claim for compensation on July 20, 2007, denying all allegations set forth in the claim for compensation. Labor Pro’s answer, however, was not timely filed within the thirty-day period prescribed by 8 CSR 50-2.010(8)(B), and therefore, all facts contained in Taylor’s claim for compensation are deemed admitted. 8 CSR 50-2.010(8)(B); see also Ward v. Mid-Am. Fittings, 974 S.W.2d 586, 587 (Mo.App.1998).

Subsequent to the filing of its answer, Labor Pro demanded that Taylor submit himself for an independent medical examination. Taylor refused. Thereafter, on July 25, 2008, the parties had a conference via telephone before the Division’s ALJ on Labor Pro’s motion that Taylor submit himself to an independent medical evaluation pursuant to section 287.210.1, RSMo 2000. On August 8, 2008, the ALJ determined that Taylor was required to submit to the evaluation pursuant to section 287.210.1. The ALJ also noted:

Claimant objects to appearing for the [independent medical examination] on the basis that the employer filed a late answer and a percentage of disability was set forth in the Claim for Compensation. The court will defer rendering an Order on the issue of whether the allegation in claimant’s petition is binding on the court and the parties but does order that the claimant submit himself to an independent medical evaluation.

On October 28, 2008, Taylor filed an amended petition for a writ of prohibition in the circuit court asking the circuit court to prohibit the ALJ from ordering him to submit to an independent medical examination. The circuit court entered a preliminary order in prohibition on November 4, 2008. On May 4, 2009, the circuit court dismissed Taylor’s petition for writ of prohibition and quashed the preliminary order in prohibition. The court said:

Pursuant to § 287.210.1 the Court finds that [Taylor] is required to submit to an independent medical evaluation. The Court does not decide the issue of whether the degree of injury to [Taylor’s] eye was admitted when Labor Pros failed to timely answer.

Taylor appeals.

“Although denials of writ applications are generally not appealable, when a preliminary writ has been issued by the circuit court, and the preliminary writ is then quashed by the court, the order quashing the writ is generally an appeal-able final judgment.” State ex rel. Rosenberg v. Jarrett, 233 S.W.3d 757, 761 (Mo.App.2007). “Because the disposition of the underlying writ request is discretionary, the matter is reviewed on appeal only to determine whether the circuit court abused its discretion in quashing the writ.” Id. The circuit court abuses its discretion if “the ruling is ‘clearly against the logic of the circumstances and so arbitrary and unreasonable as to shock the sense of justice.’ ” Id. (citation omitted).

In his sole point on appeal, Taylor contends that the circuit court abused its discretion in quashing its preliminary writ and dismissing Taylor’s petition for a writ of prohibition because he was entitled to a writ prohibiting the ALJ from requiring him to submit to a physical examination at the request of Labor Pros. Taylor argues that he was not required to submit to a physical examination because Labor Pros admitted that Taylor had sustained an injury to his left eye and suffered a permanent partial disability to the eye in the amount of seventy-five percent. We disagree.

Section 287.210.1, RSMo 2000, says:

After an employee has received an injury he shall from time to time thereafter during disability submit to reasonable medical examination at the request of the employer, his insurer, the commission, the division or an administrative law judge, the time and place of which shall be fixed with due regard to the convenience of the employee and his physical condition and ability to attend. The employee may have his own physician present, and if the employee refuses to submit to the examination, or in any way obstructs it, his right to compensation shall be forfeited during such period unless in the opinion of the commission the circumstances justify the refusal or obstruction.

“This statute gives an ALJ the authority to order a medical examination be performed on a claimant at the request of an employer.” State ex rel. Kerns v. Cain, 8 S.W.3d 212, 214 (Mo.App.1999); State ex rel. Lakeman v. Siedlik, 872 S.W.2d 503, 506 (Mo.App.1994). Thus, pursuant to section 287.210.1, Taylor is required to submit to an independent medical evaluation.

The circuit court, therefore, did not abuse its discretion in quashing its preliminary writ of prohibition and dismissing Taylor’s petition for writ of prohibition.

We affirm the circuit court’s judgment.

All concur.

      . Regulation 50-2.010(8)(A) provides, "Extensions of time to file an Answer to Claim for Compensation will be granted only upon a showing of good cause. Applications for an extension of time to answer the claim shall be made to the chief administrative law judge of the local office with venue of the case.” Labor Pros, however, did not request an extension of time within which to file its answer.

      . Taylor asserts that section 287.210 "is intended for the purpose of determining whether or not an injured employee who is receiving temporary total or temporary partial disability remains temporarily disabled or has recovered from the injury sufficiently that he is no longer 'under disability’ and may be returned to work thereby discontinuing the Employer’s obligation to pay temporary disability benefits.” Taylor contends that at the time the ALJ ordered him to submit to a medical examination he was not temporarily totally disabled and had returned to work for the employer. We find nothing in section 287.210 that limits when a claimant may be ordered to submit to a medical examination. Indeed, the Kerns case recognizes that section 287.210 gives an AU the authority to order a claimant to submit to a medical examination at the request of an employer. Kerns, 8 S.W.3d at 214.

      . In so ruling, we agree with the circuit court that we need not decide the issue of whether Labor Pros admitted the degree of injury to Taylor’s eye when it failed to timely file an answer to Taylor’s claim for compensation. In this case, we are only concerned with whether or not the circuit court abused its discretion in quashing its preliminary writ of prohibition and dismissing Taylor’s petition for writ of prohibition.


author: PER CURIAM:

text:
    F.B., Respondent, v. Glen MARTIN, Appellant.
    No. WD 71193.
    Missouri Court of Appeals, Western District.
    April 13, 2010.
    Jeremiah Kidwell, for Appellant.
    Kirby L. Minor, for Respondent.
    Before Division Two: JOSEPH M. ELLIS, Presiding Judge, VICTOR C. HOWARD, Judge and GARY D. WITT, Judge.
   ORDER

PER CURIAM:

Glen Martin appeals the trial court’s judgment granting a full order of protection to F.B. against Mr. Martin. On appeal, Mr. Martin claims that the trial court’s finding that he stalked F.B. is not supported by substantial evidence in that there was insufficient evidence of repeated conduct by Mr. Martin which would cause a reasonable fear of danger of physical harm. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment is affirmed. Rule 84.16(b).


author: VICTOR C. HOWARD, Judge.

text:
    Vance PITMAN, Appellant, v. CITY OF COLUMBIA, Respondent.
    No. WD 71112.
    Missouri Court of Appeals, Western District.
    April 13, 2010.

      Marvin Tofle, for Appellant.
    Jeffrey O. Parshall, for Respondent.
    Before Division Two: JOSEPH M. ELLIS, Presiding Judge, VICTOR C. HOWARD, Judge and GARY D. WITT, Judge.
   VICTOR C. HOWARD, Judge.

Vance Pitman appeals the trial court’s directed verdict in favor of the City of Columbia, Missouri, (City) on his claims for unjust enrichment and assumpsit for money had and received. Detective Pit-man sued the City seeking reimbursement of contributions he made to the City’s police retirement plan since 1991. He raises nine points on appeal claiming that the trial court erred in entering directed verdict in favor of the City because he presented substantial evidence of each element of unjust enrichment and assumpsit for money had and received and the City failed to prove its affirmative defenses as a matter of law. The judgment is affirmed in part and reversed in part, and the case is remanded with directions.

Facts

Detective Pitman has been employed by the City’s police department since 1982. The City, by ordinance, provides a retirement plan for police officers. The retirement plan is a “defined benefit plan.” After 20 years of service, a retiree receives 60% of the average of his three highest years of salary; after 25 years, a retiree receives 70%.

Before 1983, police officers could retire with normal retirement benefits after 25 years of service. The retirement plan was amended in 1983 to reduce the service requirement to 20 years. To fund the cost of the change, police officers were given two options, referred to throughout this case as “Option 1” and “Option 2.”

Under Option 1, an officer would be allowed to advance to the top of his pay grade, but 4.85% of his gross pay would be withheld and paid into the retirement plan. Under Option 2, an officer’s maximum gross pay would be capped at 3.95% less than he would otherwise have earned; however, the City would make the 4.85% contribution for the officer to the retirement plan. An officer near retirement might choose Option 1 to maximize his retirement benefit, which is based on the average of his three highest years of salary. Under Option 1, his gross pay would be higher than it would be under Option 2.

Detective Pitman initially chose Option 2. The next year, on the advice of older coworkers, he switched to Option 1 to maximize his plan benefits. Pursuant to his election of Option 1, 4.85% of gross pay was deducted and paid to the retirement plan.

In 1991, Detective Pitman was a member of the United States Army Reserve. He was called for active duty during the first Gulf War and served in Wisconsin from July through December of that year. While Detective Pitman was on Reserve Duty in September 1991, Chief of Police Ernest Barbee notified police officers that the City had revised the retirement plan. Under the change, all officers would be allowed to advance to their maximum pay grade. An officer under Option 2 would no longer be limited to 96.05% of the maximum but would be allowed to advance to the top of his pay grade through regular merit increases. An officer under Option 1 would be allowed to switch to Option 2 at any time. Upon switching options, the officer would no longer contribute 4.85% of his gross pay to the retirement plan; instead, the City would make the contribution for the officer. The officer’s pay would also be reduced by 3.95% to offset the City’s added pension costs, but the officer would be eligible to eventually recoup the pay reduction through regular merit increases and eventually progress to the top of his pay grade.

Detective Pitman returned to the police department in January 1992. In April 1992, during the course of his annual review, Detective Pitman received a memorandum from Deputy Chief Highbarger regarding the two options for the retirement plan. The memo set out Detective Pitman’s salary schedule under Option 1 and Option 2. It showed that under Option 1, Detective Pitman was at his maximum salary. It also showed that if he were to change to Option 2, his base salary would initially be reduced by 3.95% but that with future merit increases, he would eventually make up the loss in pay. The memo did not specifically state that an Option 2 officer would be able to advance to the top of his pay grade like an Option 1 officer. Finally, the memo suggested Detective Pitman make further inquiry regarding the two options.

Detective Pitman chose not switch to Option 2 for several reasons. He did not believe the numbers were correct in the memorandum, and he did not want to take a pay cut at the time because he was going through a divorce. Detective Pitman also chose to remain in Option 1 because he wanted to maximize his retirement benefit by advancing to the top of his pay grade. While the memo explained that he would eventually be able to recoup the temporary loss in pay after switching to Option 2, Detective Pitman was unsure whether he would be able to advance to the top of his pay grade if he elected Option 2. He did not make further inquiry into Option 2 at that time.

From 1997-2000, Detective Pitman was the President of the Columbia Police Officers Association. He would participate in “meet and confer” sessions with the City’s negotiating team regarding police officer business including the retirement plan. At one such session, City representatives mentioned to Detective Pitman that he was the only police officer in Option 1 and that they needed to discuss the issue. Detective Pitman told the representatives that he was at the session to represent all officers and would not discuss his own business at that time. Neither the City nor Detective Pitman initiated a discussion after the session.

Sometime before 2000, Director of Finance Lori Fleming discussed Detective Pitman’s situation with Captain Sam Har-gadine. Ms. Fleming told Captain Harga-dine that Detective Pitman could switch to Option 2 without the 3.95% reduction in pay. Thereafter, in a brief conversation in the police department hallway, Captain Hargadine told Detective Pitman that if he switched to Option 2, his take-home pay would be higher. Detective Pitman responded that he wasn’t concerned about his take-home pay, he wanted a higher average salary before retirement to maximize his retirement benefits. Captain Hargadine told Detective Pitman that he was “hurting” himself by not switching to Option 2. Detective Pitman could not recall at trial if Captain Hargadine told him that he could switch to Option 2 without the 3.95% reduction in his pay.

In 2002, Detective Pitman became eligible for retirement. He discussed his retirement plans with Detective Skip McGuire, who was also near retirement. At the time, Detective McGuire was “spiking” his retirement — working as much overtime as possible in his last three years to raise his average salary. Detective Pit-man told Detective McGuire that he did not need to “spike” his retirement because he earned a higher salary by virtue of being in Option 1. Detective McGuire told Detective Pitman that there was no difference in pay between Option 1 and Option 2.

Following this discussion, Detective Pit-man filed a grievance with the City in September 2002 claiming entitlement to “five percent additional salary.” Detective Pitman’s complaint was processed through his supervisor, the Chief of Police, the City Director of Human Resources, and, finally, the City Manager. It was denied at each stage. In the City Manager’s denial, he wrote, “If you have not yet done so, I strongly urge you to switch from option 1 to option 2.” Detective Pitman continued to select Option 1 after his complaint was denied through trial because he was afraid that he would lose “standing to receive [his] money back.”

Thereafter, Detective Pitman sued the City for breach of contract, declaratory judgment, unjust enrichment, and assump-sit for money had and received seeking reimbursement of contributions he made to the City’s police retirement plan since 1991. At the close of Detective Pitman’s evidence, the City filed a motion for directed verdict asserting, inter alia, that Detective Pitman failed to present substantial evidence of each element of his causes of action and that it proved as a matter of law several of its affirmative defenses including statute of limitations and voluntary payment. The trial court entered a directed verdict in favor of the City and against Detective Pitman on all four counts. Detective Pitman now appeals the directed verdict entered on his claims for unjust enrichment and assumpsit for money had and received.

Detective Pitman raises several points on appeal claiming that the trial court erred in granting a directed verdict in the City’s favor because he made a submissible case for his claims of unjust enrichment and assumpsit for money had and received and the City failed to establish any of its affirmative defenses as a matter of law.

Standard of Review

A trial court should enter a directed verdict when the plaintiff fails to make a submissible case or when the defendant establishes an affirmative defense as a matter of law. Olsen v. Liberty Group Mo. Holdings, Inc., 250 S.W.3d 720, 721 (Mo.App. W.D.2008). “To make a sub-missible case, a plaintiff must present substantial evidence for every fact essential to liability.” Atkinson v. Corson, 289 S.W.3d 269, 281 (Mo.App. W.D.2009) (citation and internal quotation marks omitted). “Substantial evidence is that which, if true, has probative force upon the issues, and from which the trier of fact can reasonably decide the case.” Id. (citation and internal quotation marks omitted). In reviewing whether the plaintiff made a submissible case, the evidence is viewed in the light most favorable to the plaintiff, giving him the benefit of all reasonable inferences and disregarding the defendant’s evidence except to the extent that it aids the plaintiffs case. Id.

A party is entitled to a directed verdict on an affirmative defense if it proves the defense as a matter of law. Damon Pursell Constr. Co. v. Mo. Highway & Transp. Comm’n, 192 S.W.3d 461, 475 (Mo.App. W.D.2006). A trial court may not enter a directed verdict on an affirmative defense unless no factual issues with respect to the affirmative defense remain for the jury to decide. Id. A judgment based on a directed verdict is affirmed if any ground asserted in the defendant’s motion supports it. Meyer v. Smith, 298 S.W.3d 596, 597 (Mo.App. E.D.2009).

Unjust Enrichment and Assumpsit for Money Had and Received

Detective Pitman argues that the trial court erred in directing a verdict in favor of the City on his claims for unjust enrichment and assumpsit for money had and received. He contends that he offered substantial evidence of the elements of the claims to submit the claims to the jury.

Unjust enrichment occurs where a benefit is conferred upon a party under circumstances in which retention of that benefit without paying its reasonable value would be unjust. Miller v. Horn, 254 S.W.3d 920, 924 (Mo.App. W.D.2008). “The principle of unjust enrichment has given rise to the doctrine of quasi-contract, also known as a contract implied in law, as a theory of recovery.” White v. Pruiett, 39 S.W.3d 857, 863 (Mo.App. W.D.2001) (citation and internal quotation marks omitted). The essential elements of quasi-contract are: “(1) a benefit conferred upon the defendant by the plaintiff; (2) appreciation by the defendant of the fact of such benefit; and (3) acceptance and retention by the defendant of that benefit under circumstances in which retention without payment would be inequitable.” Id. (citation and internal quotation marks omitted). The last element — unjust retention of the benefit — is considered the most significant and most difficult of the elements to apply. Assoc. Eng’g. Co. v. Webbe, 795 S.W.2d 606, 608 (Mo.App. E.D.1990).

“ ‘An action for money had and received is an action sounding in assump-sit.’ ” White v. Camden County Sheriff's Dep't, 106 S.W.3d 626, 634 (Mo.App. S.D.2003) (citation omitted). Such action is appropriate where the defendant received money from the plaintiff under circumstances that in equity and good conscience call for the defendant to pay it to the plaintiff. Karpierz v. Easley, 68 S.W.3d 565, 570 (Mo.App. W.D.2002). An action for money had and received “ ‘lies for restitution of money that belongs in good conscience to the plaintiff, but was obtained by the defendant by duress or other means making it unjust for the defendant to keep the money.’” Id. (citation omitted). An action for money had and received is also founded upon a contract implied in law. Id. Its elements are: (1) the defendant received or obtained possession of the plaintiffs money; (2) the defendant thereby appreciated a benefit; and (3) the defendant’s acceptance and retention of the money was unjust. Ward v. Luck, 242 S.W.3d 473, 476 (Mo.App. E.D.2008).

The essence of unjust enrichment is that the defendant has received a benefit that it would be inequitable for him to retain. Patrick v. Koepke Constr., Inc. v. Woodsage Constr. Co., 844 S.W.2d 508, 515 (Mo.App. E.D.1992). “Unjust enrichment permits restitution based upon the value of the benefit received” by the defendant. Id. at 516. The measure of recovery in a quasi-contractual action is not the actual amount of the enrichment, but the amount of the enrichment that, as between the two parties, would be unjust for one party to retain. White, 39 S.W.3d at 863; Woodsage Constr., 844 S.W.2d at 515-16. Thus, a plaintiff must present evidence of the amount of the benefit conferred upon the defendant. Miller, 254 S.W.3d at 925; Manfield v. Auditorium Bar & Grill, Inc., 965 S.W.2d 262, 267 (Mo.App. W.D.1998).

Viewing the evidence in the light most favorable to Detective Pitman and giving him the benefit of all reasonable inferences, Detective Pitman presented substantial evidence for every fact essential to liability and was accordingly entitled to submit the issues to the jury. Specifically, Detective Pitman presented evidence that, under Option 1, he contributed 4.85% of his salary to the retirement plan since 1991. The Director of Finance conceded at trial that the City paid less to fund the retirement plan because of Detective Pit-man’s contributions to the plan. The evidence could have permitted the jury to find that the City received Detective Pit-man’s money or benefitted from it and appreciated the benefit. Additionally, Detective Pitman presented evidence that he did not receive the advantage of a higher salary from his contributions. After the retirement plan change in 1991, an officer in Option 2 could advance to the top of his pay grade just as an officer in Option 1. Detective Pitman claimed he was never told of the change in the retirement plan. This evidence allows a finding by the jury that the City’s retention of at least some amount of the contributions he made was unjust.

Given the standard of review, it cannot be said as a matter of law that the jury could not have found in Detective Pitman’s favor on his claims that his contributions to the retirement plan conferred a benefit upon the City under circumstances in which retention of that benefit without paying its reasonable value would be unjust. Detective Pitman’s claims of unjust enrichment and money had and received should have been submitted to the jury, and the trial court erred in entering a directed verdict in the City’s favor on these claims. The points are granted.

Voluntary Payment

Detective Pitman also argues that the trial court erred in entering a directed verdict in favor of the City on its affirmative defense of voluntary payment. He contends that factual issues with respect to the affirmative defense remained for the jury to decide.

The voluntary payment doctrine is a recognized defense to a claim for unjust enrichment and an action for money had and received. Huch v. Charter Commc’n, Inc., 290 S.W.3d 721, 726 (Mo. banc 2009); Hertz Corp. v. Raks Hospitality, Inc., 196 S.W.3d 536, 544 (Mo.App. E.D.2006). The doctrine provides “that a person who voluntarily pays money with full knowledge of all the facts in the case, and in the absence of fraud and duress, cannot recover it back, though the payment is made without sufficient consideration, and under protest.” Huch, 290 S.W.3d at 726 (citation and internal quotation marks omitted). “Unless there is fraud or duress, the voluntary payment doctrine prohibits a person who voluntarily pays money with full knowledge of the facts from recovering money.” Id.

Generally, restitution will be granted when payment is made under mistake of fact but not under mistake of law. Western Cas. & Sur. Co. v. Kohm, 638 S.W.2d 798, 800 (Mo.App. E.D.1982). This is true even if the mistake is due solely to lack of care by the payor. Blue Cross Health Servs., Inc. v. Sauer, 800 S.W.2d 72, 75 (Mo.App. E.D.1990). The payor’s lack of care will not diminish his right to recover or justify retention of a windfall by an unintended beneficiary. Hertz, 196 S.W.3d at 544. Thus, possession of information necessary to determine that payment is mistaken does not constitute voluntary payment made with full knowledge of the facts. Id.

“[W]here money has been voluntarily paid with full knowledge of the facts it cannot be recovered on the ground that the payment was made ... under a mistake of law.” Am. Motorists Ins. Co. v. Shrock, 447 S.W.2d 809, 811 (Mo.App.1969). “A mistake of law occurs where a person is truly acquainted with the existence or nonexistence of facts, but is ignorant of, or comes to an erroneous conclusion as to, their legal effect.” Id. (citation and internal quotation marks omitted).

Fact issues remained for the jury regarding whether Detective Pitman contributed to the retirement plan with full knowledge of the facts from 1991 until September 2002. Detective Pitman presented evidence that he was never told that an officer in Option 2 could advance to the top of his pay grade just as an officer in Option 1. He testified that one reason he remained in Option 1 during that time period was because he wanted to maximize his retirement benefit by earning the highest possible salary. He also testified that if he had known he was not earning a higher salary than officers in Option 2, he would not have remained in Option 1 and authorized the extra contributions to the retirement plan. While Officer Pitman acknowledged that several people advised him during that time period that it would be advantageous for him to switch to Option 2 and that he never attempted to learn more about the options, his lack of care does not justify retention of a windfall by the City. The City was not entitled to a directed verdict on its affirmative defense of voluntary payment on Detective Pit-man’s claims of unjust enrichment and money had and received from 1991 until September 2002.

On the contrary, no fact issues remained for the jury regarding whether Detective Pitman voluntarily made his contributions with full knowledge of the facts after September 2002. Detective Pitman concedes on appeal that he learned in 2002 of the retirement plan change; specifically that an officer in Option 2 could advance to the top of his pay grade. At trial, he testified that Detective McGuire told him that there was no difference in pay between Option 1 and Option 2. Following this conversation, Detective Pitman filed a grievance with the City in September 2002 claiming entitlement to the contributions he made to the retirement plan after the plan change. Detective Pitman testified that he remained in Option 1 after September 2002 through trial because he was afraid that he would lose “standing to receive [his] money back.” Detective Pitman continued to choose Option 1 and contribute money to the retirement plan after September 2002 with full knowledge of the facts but under the erroneous conclusion that he had to remain in Option 1 to maintain his ability to recover under his claims of unjust enrichment and money had and received. His misconception of the legal effect of switching from Option 1 was not a mistake of fact but a mistake of law that prevents him from recovering money voluntarily paid after September 2002. The trial court, therefore, did not err in entering a directed verdict in the City’s favor on Detective Pitman’s claims of unjust enrichment and money had and received for the time period after September 2002.

Statute of Limitations

Finally, Detective Pitman argues that the trial court erred in entering a directed verdict in favor of the City on its affirmative defense .of statute of limitations. He contends that factual issues with respect to the affirmative defense remained for the jury to decide.

The parties agree that Detective Pitman’s claims are governed by the five-year statute of limitations in section 516.120, RSMo 2000, but they disagree as to when the statute of limitations began to run. Generally, a statute of limitation begins to run when the cause of action accrues to the person asserting it. D’Arcy & Assocs., Inc. v. K.P.M.G. Peat Marwick, L.L.P., 129 S.W.3d 25, 29 (Mo.App. W.D.2004). For purposes of sections 516.100 to 516.370, the cause of action shall be deemed to accrue “when the damage resulting therefrom is sustained and is capable of ascertainment.” § 516.100, RSMo 2000. “[T]he capable of ascertainment test is an objective one.” Powel v. Chaminade Coll. Preparatory, Inc., 197 S.W.3d 576, 584 (Mo. banc 2006). The issue is not when the injury occurred or when the plaintiff subjectively learned of the wrongful conduct. Id. Damage is capable of ascertainment “when a reasonable person would have been put on notice that an injury and substantial damages may have occurred and would have undertaken to ascertain the extent of the damages.” Id. “In other words, the statute of limitations begins to run when the ‘evidence was such to place a reasonably prudent person on notice of a potentially actionable injury.’ ” State ex rel. Marianist Province of U.S. v. Ross, 258 S.W.3d 809, 811 (Mo. banc 2008)(quoting Powel, 197 S.W.3d at 584).

Because the capable of ascertainment standard is an objective one, when the relevant facts are not contested, the statute of limitations can be decided by the court as a matter of law. Id. When contradictory or different conclusions may be drawn from the evidence as to whether the statute of limitations has run, however, it is a question of fact for the jury to decide. Id.

In this case, different conclusions could have been drawn from the evidence regarding when damage was sustained and capable of ascertainment. Evidence was presented that Detective Pitman received a memo after he returned from the Gulf War setting out his salary schedule under Option 1 and Option 2. He was later told that he was the only officer in Option 1 and that his take-home pay would be more under Option 2. Detective Pitman testified that he did not learn of the 1991 change to the retirement plan until his conversation with Detective McGuire in 2002. Fact issues remained for the jury regarding when Detective Pitman’s causes of action accrued for purposes of the statute of limitations. The trial court should have submitted the statute of limitations issue to the jury.

Conclusion

As set forth above, the judgment of the trial court is affirmed in part and reversed in part. The case is remanded for a new trial on Detective Pitman’s claims of unjust enrichment and assumpsit for money had and received for the time period 1991 to September 2002.

All concur.


text:
    STATE of Missouri, Respondent, v. Jerry L. RADLEY, Appellant.
    No. WD 70843.
    Missouri Court of Appeals, Western District.
    April 27, 2010.
    Jerry L. Radley, Cameron, MO, Appellant, pro se.
    Chris Koster, Attorney General, Robert J. (Jeff) Bartholomew, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before Division III: JAMES EDWARD WELSH, Presiding Judge, and MARK D. PFEIFFER and KAREN KING MITCHELL, Judges.
   Order

PER CURIAM:

Appellant Jerry L. Radley appeals the denial of his pro se motion to correct mistake in judgment and sentence filed with the Circuit Court of Jackson County. We affirm the decision of the circuit court. Rule 30.25(b).


text:
    Lisa Marie MORGAN, Appellant, v. Christopher Paul MORGAN, Respondent.
    No. WD 71546.
    Missouri Court of Appeals, Western District.
    April 27, 2010.
    Dana K. Kaiser, Kansas City, MO, for appellant.
    Dennis J. Campbell Owens, Kansas City, MO and Jonathan Sternberg, Kansas City, MO, for respondent.
    Before Division One: KAREN KING MITCHELL, Presiding Judge, LISA WHITE HARDWICK, Judge and CYNTHIA L. MARTIN, Judge.
   ORDER

PER CURIAM:

Lisa M. Morgan (“Mother”) appeals from the Platte County trial court’s Second Amended Judgment of Dissolution of Marriage (“Second Amended Judgment”), which, among other things, awarded Christopher P. Morgan (“Father”) the residential address for mailing and educational purposes for the children, and adopted the proposed parenting plan set forth by Father, with minor changes. Mother contends that: (1) the trial court erred by adopting Father’s Proposed Parenting Plan, with minor changes, as set forth in the Second Amended Judgment; (2) the trial court abused its discretion by not allowing Mother to offer a revised parenting plan; (3) the trial court erred because it failed to make written findings in the Second Amended Judgment regarding the rejection of Mother’s First Amended Parenting Plan; and (4) the trial court erred in designating Father’s address as the children’s address for mailing and education purposes. We affirm. 84.16(b).


text:
    Woodrow L. GENSLER and Dana J. Gensler, Appellants, v. Ronnie CARVER and Teresa Carver, Respondents.
    No. SD 29767.
    Missouri Court of Appeals, Southern District, Division One.
    April 29, 2010.

      Michael Maroni and Donald Rhodes, Bloomfield, for Appellants.
    Michael M. Pritchett, Poplar Bluff, for Respondents.
   ROBERT S. BARNEY, Judge.

Appellants Woodrow L. Gensler (“Mr. Gensler”) and Dana J. Gensler (“Mrs. Gen-sler”) (collectively “the Genslers”) appeal the judgment of the trial court which quieted title in Respondents Ronnie Carver (“Mr. Carver”) and Teresa Carver (collectively “the Carvers”) to a parcel of land located in Bloomfield, Missouri, and whose metes and bound description the trial court adopted from a survey performed by Lucas Surveying of East Prairie, Missouri, on February 28, 2005. The Genslers assert two points of trial court error. We affirm the judgment of the trial court as modified.

“We view the evidence and all favorable inferences in the light most favorable to the party prevailing, and it is with this in mind that we set forth the [following] relevant facts.” Blaylock v. Clarida, 987 S.W.2d 18, 21 (Mo.App.1999) (internal citation omitted). This suit involves the resolution of the east-west property line for adjoining properties arising from the parties’ use of a driveway which lies in the vicinity of their shared property line. The Carvers own a home on a parcel of land to the west of the Genslers’ home and both parcels border Bloomfield Avenue to the north.

On October 18, 2006, the Genslers filed their petition in two counts wherein they sought in count one to quiet title in themselves as fee simple owners to the entirety of a parcel of land comprising some 2.85 acres that also encompassed the driveway in question, to the exclusion of the Carvers, and they sought injunctive relief against the Carvers. In their second count, they brought an action for trespass seeking damages in excess of $25,000.00 against the Carvers for their continued use of the driveway.

On November 8, 2006, the Carvers filed their answer to the Genslers’ petition along with counterclaims in which they sought in their first count to quiet title in themselves by adverse possession to a parcel of land consisting of 1.56 acres of land. In their second count, the Carvers sought damages for trespass, asserting they and their predecessors in title had “for over ten (10) years ... utilized a driveway which accessed] their respective properties;” that they were being deprived of access to their property by way of the driveway; that the Genslers “have failed and refused and continue to fail and refuse to allow” them the “use of said driveway;” and as a result they were damaged in excess of $25,000.00.

A trial was held on August 20, 2007, and March 5, 2008. At trial, Mr. Gensler testified he believed the entirety of the driveway belonged to him and his family, even though he was aware of a survey showing otherwise at the time of his purchase. When he purchased his property, the Carvers’ property was vacant and no one used the driveway for a long period of time. He related problems arose when the Carvers’ tenants began blocking the driveway on occasion; driving “in [his] yard;” and unnecessarily utilizing the circle driveway immediately in front of his home. Mr. Gensler introduced a survey by Robert Craig (“the Craig Survey”) made on July 24, 2006, that showed the driveway to be totally on his property. He testified the Carvers could easily build a driveway on their own property accessing Bloomfield Avenue to their north, and Mr. Gensler wanted the trial court to rule that he and his family had title and the exclusive right to use the driveway in question.

Mrs. Gensler testified consistently with Mr. Gensler and added that the Carvers’ tenants also ran over her irises. She further related her husband operated a company which owned several dump trucks and his employees had been late getting to several jobs when the driveway had been blocked by the Carvers’ tenants.

Robert Craig (“Mr. Craig”), a licensed professional land surveyor, testified that he surveyed the two properties using the legal description on the parties’ deeds. He stated the Carvers’ deed called for them to have 128 feet bordering Bloomfield Avenue on the north, and the Genslers’ deed called for them to have 218 feet bordering Bloomfield Avenue. He related that due to the Carvers’ deed he concluded the Genslers had only 212.42 feet bordering Bloomfield Avenue. He stated he came to this conclusion by surveying all the adjoining properties, lining those surveys up with what was set out on the deeds, and then “not encroaching on anybody, giving the Carvers their calls, and then what was left basically is that the legal description is for the Genslers’ property. It was kind of just boxed in there.” Additionally, he determined “the majority of the driveway is over on the Genslers’ property ...” and he felt that only a “foot” or a “foot and a half’ of the driveway was on the Carvers’ property. A copy of the Craig survey was received into evidence at trial.

On the other hand, Mr. Carver testified the properties had been surveyed by Martin Lucas, a licensed professional land surveyor (“Mr. Lucas”), that Mr. Lucas surveyed the Genslers’ property on July 7, 2005, and that he surveyed the Carvers’ property on February 28, 2005 (“the Lucas Surveys”). He related that Mr. Lucas set a boundary line pin “almost in the center of the driveway next to the street.” Mr. Carver also stated that he had always believed it was a shared driveway, thus, he had never asked anyone permission to utilize it. He related he had always utilized the driveway when he visited his property “without any interference” and he had no other means of access to his property. He testified he was requesting the trial court to set the line in the same location that Mr. Lucas had set it, which Mr. Carver stated was in the center of the driveway, as delineated by a pin set adjacent to Bloomfield Avenue to the north, such that it remained a shared driveway, and he asked that the trial court quiet title in his portion of the driveway in him.

Mr. Lucas, a licensed professional land surveyor, testified that when he surveyed the Carver property he found the eastern most boundary of their property line was located “in a black top driveway. And on [his] survey, [he] showed it as a shared driveway, not meaning that there were any easements of record on it.... ” He related he marked this boundary with “a PK nail in the asphalt [at the northern edge adjacent to Bloomfield Avenue] which is a masonry nail that you can get into the asphalt.” He related he had been contacted by Mr. Gensler “a number of times because he was having problems with this shared driveway. And [Mr. Lucas] told him what [he] had put there ... and showed him. And there was no way the Carvers had enough room to even drive in there ...” on their side of the pin. Copies of the Lucas Surveys were received into evidence at trial.

The trial court entered its judgment on March 4, 2009, setting out that the previous owners of the Genslers’ property, the Bennetts, “believed the driveway to be constructed entirely on their property and the use of the driveway by ...” the previous owners of the Carvers’ property, the Ezells, “was by permission of the Ben-netts.” As such, the trial court rejected “any claim that the Ezells’ use of the driveway was adverse to the interest of the Bennetts (or the Genslers)” and “that no prescriptive easement or right exists.” It further found that “there is no feasible way for constructing a new and different entrance to and exit from the [Carvers’] property.” Additionally, the trial court added that the Carvers’ “use of the western most 8½ to 9 feet of the existing driveway will not significantly impair [the Genslers’] enjoyment and use of their remaining spacious driveway and property.” As a result, the trial court determined the Carvers were “fee simple owners of the real estate described in [the metes and bound description set out] in Exhibit A to [the judgment],” which was based on the February 28, 2005, survey by Mr. Lucas; and determined the Genslers had no title or interest in this parcel of real estate. The trial court also found that the boundary, as established by the Lucas Surveys, was the correct boundary of the Genslers’ and Carvers’ properties. Additionally, it ruled the Carvers “are enjoined and restrained from using, entering upon or blocking any portion of the remaining existing driveway other than the western most portion as previously marked by the above described nail, which the [trial court] believes to be approximately the west 8½ to 9 feet of said driveway.” The trial court then denied all other prayers for relief and ruled the parties “shall bear their respective costs.” This appeal by the Genslers followed.

“The appellate court will affirm the trial court’s determination ‘unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.’ ” Watson v. Mense, 298 S.W.3d 521, 525 (Mo. banc 2009) (quoting Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). “We presume the trial court’s decision is correct, and the appellant has the burden of showing error.” Blaylock, 987 S.W.2d at 21. In addition, we must give due regard to the trial court’s opportunity to judge the credibility of witnesses and the trial court may “believe or disbelieve all, part, or none of the testimony of any witness.” Watson, 298 S.W.3d at 526.

In their first point relied on, the Gen-slers assert the trial court erred in permitting the Carvers “to use the west [eight] and half to nine feet of the driveway because the judgment is defective as a matter of law in that it does not set forth a particular portion of the driveway that may be used exclusively by [the Gen-slers].”

“In a quiet title action or suit over a roadway, the judgment must describe with reasonable certainty the real estate affected by the judgment.” Turkey Mountain Airport, Inc. v. Estate of Faler, 82 S.W.3d 233, 235 (Mo.App.2002).

[I]t may be stated as a general rule that, in a suit to establish or protect privileges with respect to a right of way the location and limits of which are in dispute, ‘the right of way involved should be definitely described in the judgment, at least so that its location, with the aid of such description, could readily be located; and the width of the way should be made clear.’

Allen v. Smith, 375 S.W.2d 874, 882 (Mo.App.1964) (quoting 28 C.J.S. Easements § 113b., p. 819); see Patterson v. Harrison, 46 S.W.3d 580, 581 (Mo.App.2001). “The judgment should be in a form so that it alone is suitable for recording in real estate records.” Creech v. Noyes, 78 S.W.3d 223, 225 (Mo.App.2002). “A judgment that fails to adequately describe the property leaves open the possibility of future adjudication regarding the scope and location of the property affected by the judgment, and necessarily requires proof from an external source.” Id.

Here, the Genslers argue the trial court’s judgment is uncertain because it contains the ruling that the Carvers are entitled to use “the western most 8⅜ to 9 feet of the existing driveway....” While we agree that on its own this reference may be insufficient for purposes of reasonably describing the driveway at issue, in the present matter the trial court attached a legal description to its judgment which set out in metes and bounds the property it adjudged belonged to the Carvers. In its judgment, the trial court specifically stated the Carvers “are the fee simple owners of the real estate described in Exhibit A ..., made a part hereof....” In Exhibit A the trial court adopted the metes and bounds description of the February 28, 2005, survey performed by Mr. Lucas. It is clear that the metes and bounds legal description set out in Exhibit A, which was attached to the judgment, is sufficient to enable a person to establish the location of the boundary line with reasonable certainty. See Turkey Mountain, 82 S.W.3d at 235. Additionally, while the judgment “enjoined and restrained” the Carvers “from using, entering upon or blocking any portion of the remaining existing driveway ...” the trial court also gratuitously added the following limitation: “other than the western most portion as previously marked by the above described nail, which this Court believes to be approximately the west 8 to 9 feet of said drivetvay.” (Emphasis added). It is this last italicized phrase which this Court determines is mere surplusage. It is hereby struck from the judgment as being unnecessary to the disposition of this controversy. See Craft v. Philip Morris Companies, Inc., 190 S.W.3d 368, 377-78 (Mo.App.2005); Brown v. Rollet Bros. Trucking Co., 291 S.W.3d 766, 777 (Mo.App.2009) (holding that the appellate court “may strike surplusage from the findings when the remainder of the finding disposes of the controversy”). Having stricken a certain portion of the judgment as surplus-age, we determine the remainder of the Genslers’ Point I lacks merit and is denied.

In their second point relied on, the Gen-slers maintain the trial court erred in granting the Carvers the right to use the western portion of the driveway

because by entering such a judgment the [trial court] found an easement over that portion of the driveway that was not included in the Lucas survey, and this was error because the [Carvers] did not ask for any type of easement by necessity in their pleadings, and even if the pleadings could be so construed the evidence failed to provide any sort of easement.

Our holding in Point I largely obviates the need to address the Carvers’ second point. It is clear the trial court quieted title to the entirety of the Carvers’ parcel, as described by Exhibit A attached to and made a part of the judgment. We do note that the only time the phrase “easement” is mentioned in the judgment comes in relation to the trial court’s gratuitous statement that “no prescriptive easement or right exists.” This, we perceive was engendered by the somewhat confusing language found in the Carvers’ counterclaim seeking damages for trespass. Again, the trial court’s language relative to a finding of “no prescriptive easement or right” is mere surplusage and is stricken, because the Carvers did not specifically seek an easement over the driveway; rather they sought to quiet title to the entirety of their parcel by adverse possession. See Maasen v. Shaw, 133 S.W.3d 514, 521 (Mo.App.2004). Having stricken any reference to an easement we determine the remainder of the Genslers’ Point II is denied.

The judgment of the trial court as modified is affirmed.

BATES, P.J., and BURRELL, J., concur.

      . Mr. Carver stated it would be difficult to construct an additional driveway on his property because certain utility poles and a telephone company box would have to be relocated.