text:
    Lester A. STONE, Appellant, v. MISSOURI DEPARTMENT OF CORRECTIONS, PROBATION & PAROLE BOARD, Respondents.
    No. WD 71161.
    Missouri Court of Appeals, Western District.
    May 25, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 29, 2010.

      Lester A. Stone, Mineral Point, MO, pro se.
    Stephen D. Hawke, Jefferson City, MO, for Respondents.
    Before THOMAS H. NEWTON, C.J., JAMES EDWARD WELSH, and GARY D. WITT, JJ.
   JAMES EDWARD WELSH, Judge.

Lester A. Stone appeals the circuit court’s judgment denying his petition for writ of mandamus. On appeal, he contends that he is entitled to mandamus relief because the Missouri Department of Corrections and the Missouri Board of Probation and Parole (referred to collectively as “the Department”) have a clear ministerial duty to recalculate his mandatory minimum prison term pursuant to the 1994 and 1999 amended versions of section 558.019, RSMo. We affirm.

Stone committed robbery in the first degree on February 6, 1990. He was tried, convicted, and sentenced later that year. The court sentenced Stone to life imprisonment, and it found that Stone was a class X offender under section 558.019.4(3), RSMo Cum.Supp.1990. A “class X offender” was defined in section 558.019.4(3), RSMo Cum.Supp.1990, as a defendant who had “previously pleaded guilty to or ha[d] been found guilty of three felonies committed at different times.” Pursuant to section 558.019.2(3), RSMo Cum.Supp.1990, the mandatory minimum prison term a class X offender had to serve was eighty percent of his sentence. Because a life sentence was calculated to be fifty years under section 558.019.4(4), RSMo Cum.Supp.1990, the Department determined that Stone’s mandatory minimum prison term was eighty percent of fifty years.

In 1994, the legislature amended section 558.019 and removed the “class X offender” designation from the statute. Instead of basing the mandatory minimum prison term upon previous felony convictions, the 1994 version of the statute based the mandatory minimum prison term upon the number of previous remands to the department of corrections for felonies. § 558.019.2, RSMo 1994. Additionally, for purposes of determining the mandatory minimum prison term, a life sentence under the 1994 .version of the statute was reduced from fifty years to thirty years. § 558.019.4(1), RSMo 1994.

The legislature amended section 558.019 again in 1999. § 558.019, RSMo Cum.Supp. 1999. The 1999 version substituted the phrase “prison commitments” for “remands.” A “prison commitment” was defined as “the receipt by the department of corrections of a defendant after sentencing.” § 558.019.2, RSMo Cum.Supp.1999.

In February 2009, Stone filed a petition for writ of mandamus in the circuit court. In his petition, he asked the court to direct the Department to recalculate his mandatory minimum prison term under the 1994 and 1999 versions of section 558.019. He claimed that he had only one remand or commitment unrelated to the offense of robbery in the first degree, and therefore, under the 1994 and 1999 versions of section 558.019.2(1), his mandatory minimum prison term should be only forty percent of thirty years.

The Department moved to dismiss Stone’s petition on the basis that the legislature expressly provided that the 1994 and 1999 versions of section 558.019 applied only to offenses occurring on or after August 28, 1994. The circuit court agreed with the Department and denied Stone’s petition. Stone appeals.

A writ of mandamus compels “the performance of a ministerial duty that one charged with the duty has refused to perform.” Furlong Cos. v. City of Kansas City, 189 S.W.3d 157, 165 (Mo. banc 2006). A petitioner seeking mandamus relief must allege and prove “a clear, unequivocal, specific right to a thing claimed.” Id. at 166. “Mandamus does not issue except in eases where the ministerial duty sought to be coerced is definite, arising under conditions admitted or proved and imposed by law.” Id.

Generally, when the circuit court denies a petition for writ of mandamus, the petitioner’s proper course of action is not to appeal the denial but to file the writ in a higher court. Delay v. Mo. Bd. of Prob. & Parole, 174 S.W.3d 662, 664 (Mo.App.2005). However, when the circuit court denies a petition for writ of mandamus following an answer or motion directed to the merits of the controversy and, in doing so, determines a question of fact or law, we treat the court’s ruling as final and appeal-able. Id. Because the Department’s motion to dismiss attacked the merits of Stone’s petition and the court denied the petition on the merits, the denial was final and appealable. On appeal, we will affirm the circuit court’s denial of Stone’s petition for writ of mandamus unless we find that it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Dade v. Mo. Bd. of Prob. & Parole, 194 S.W.3d 382, 383 (Mo.App.2006).

In his sole point on appeal, Stone contends that the circuit court erred in denying his petition for writ of mandamus because the Department has a clear ministerial duty to recalculate his mandatory minimum prison term. He claims that the legislature intended that the 1994 and 1999 versions of section 558.019 apply retrospectively to require this recalculation. We disagree.

When the legislature amended the statute in 1994, it added a new subsection that clearly expressed its intent regarding the applicability of the amendments. Section 558.019.7, RSMo 1994, states that “[t]he provisions of this section shall apply only to offenses occurring on or after August 28, 1994.” This subsection remained in effect when the legislature amended the statute again in 1999. § 558.019.7, RSMo Cum.Supp.1999. Thus, contrary to Stone’s claim, the statute, by its own terms, does not apply retrospectively to offenses committed before August 28, 1994. State v. Harris, 908 S.W.2d 912, 916-17 (Mo.App.1995); State v. Dean, 898 S.W.2d 704, 706-07 (Mo.App.1995).

Stone committed robbery in the first degree on February 6, 1990. He was sentenced as a class X offender under section 558.019, RSMo Cum.Supp.1990, and his mandatory minimum prison term was properly calculated on that basis. The legislature’s subsequent amendments to section 558.019 do not apply to Stone’s mandatory minimum prison term for this offense.

Because Stone did not have a clear, unequivocal, and specific right to have his mandatory minimum prison term recalculated pursuant to the 1994 and 1999 versions of section 558.019, the circuit court properly denied his petition for writ of mandamus. We affirm the circuit court’s judgment.

All concur.

      . While Stone is correct that there are cases that have retrospectively applied other new or amended statutes affecting minimum prison terms and parole eligibility, the statutes at issue in those cases did not contain express statements as to the applicability of the new provisions or amendments. See, e.g., Jones v. Fife, 207 S.W.3d 614, 615, 617 (Mo. banc 2006) (sections 559.115.7 and 217.362.5, RSMo Cum.Supp.2004); State ex reí. Nixon v. Russell, 129 S.W.3d 867, 870-71 (Mo. banc 2004) (section 558.016.8, RSMo Supp.2003); Talley v. Mo. Dep’t. of Corr., 210 S.W.3d 212, 215-16 (Mo.App.2006) (section 571.015, RSMo 1994). In such circumstances, the courts looked to whether section 1.160, RSMo 2000, barred the retroactive application of the new or amended laws and found that it did not. See Jones, 207 S.W.3d at 616-17; Russell, 129 S.W.3d at 870-71. Because the legislature clearly stated its intent regarding the applicability of the 1994 and 1999 amendments to section 558.019, analyzing them pursuant to section 1.160 is neither necessary nor appropriate.


source: Caselaw Access Project

author: ROBERT S. BARNEY, Judge.

license: Public Domain

text:
    Cregg A. GOODWIN, Appellant, v. STATE of Missouri, Respondent.
    No. SD 29880.
    Missouri Court of Appeals, Southern District, Division One.
    May 28, 2010.

      Nancy A. McKerrow, Columbia, for Appellant.
    Chris Koster, Atty. Gen. and John W. Grantham, Jefferson City, for Respondent.
   ROBERT S. BARNEY, Judge.

Appellant Cregg A. Goodwin (“Movant”) appeals the motion court’s denial following an evidentiary hearing of his “First Amended Motion to Vacate, Set Aside, and/or Correct Judgment and Sentence and Request for Evidentiary Hearing” filed pursuant to Rule 24.035. On November 27, 2007, Movant pled guilty to two counts of the Class A felony of attempted robbery in the first degree, violations of section 569.020; two counts of the unclassified felony of armed criminal action, violations of section 571.015; and one count of the Class B felony of assault in the first degree, a violation of section 565.050. He was then sentenced by the trial court to concurrent sentences of fifteen years imprisonment for each of the two attempted robbery charges and the assault charge. He was also sentenced to five years for each of the two armed criminal action counts with those sentences to run concurrently to each other and consecutively to the fifteen year sentences on the other counts.

In his sole point relied on, Movant asserts the motion court erred in denying his Rule 24.035 motion in that he was denied effective assistance of counsel based on his counsel’s recitation of the possible range of punishment. We affirm.

At the outset we note that Movant, with admirable candor, admits that the claim he raises in this appeal was not set out in his amended motion and was, thus, not addressed by the motion court in its findings. Accordingly, he requests plain error review pursuant to Rule 84.13(c). However, “[cjlaims not presented to the motion court cannot be raised for the first time on appeal.” Day v. State, 208 S.W.3d 294, 295 (Mo.App.2006) (applying Rule 24.035); Cloyd v. State, 302 S.W.3d 804, 807-08 (Mo.App.2010) (applying Rule 29.15).

McCoo v. State, 844 S.W.2d 565 (Mo.App.1992), which was cited in his brief, is of no assistance to Movant. “Reversal in McCoo was not for plain error in denying relief on an unpled ineffective assistance claim, but instead because the motion court held the motion was time-barred — a holding unrelated to the merit of any ground for postconviction relief.” Ainsworth v. State, 930 S.W.2d 514, 516 (Mo.App.1996); see also Cloyd, 302 S.W.3d at 808 (holding that “McCoo has no application to a situation where a defendant has simply failed to raise a matter in his [post-conviction] motion that on reflection he wishes he had asserted”). Rule 24.035(d) clearly requires that the postconviction motion must include all claims and those not raised in the motion are waived. Johnson v. State, 921 S.W.2d 48, 50 (Mo.App.1996). “This rule applies to requests for plain error review since there is no such thing as plain error in postconviction relief cases.” Johnson v. State, 941 S.W.2d 827, 830 (Mo.App.1997) (applying Rule 24.035) (internal citation omitted). We cannot grant Movant plain error review. Ainsworth, 930 S.W.2d at 515. Point denied.

The findings of fact and conclusions of law of the motion court are affirmed.

BATES, P.J., and BURRELL, J., concurs.

      . All rule references are to Missouri Court Rules (2010) and all statutory references are to RSMo 2000.


author: GARY W. LYNCH, Presiding Judge.

text:
    Scott GREENSTREET and Christine Greenstreet, Plaintiffs-Respondents, v. Shirley A. FAIRCHILD, and Claude F. Fairchild, Defendants-Appellants.
    No. SD 29787.
    Missouri Court of Appeals, Southern District, Division Two.
    May 28, 2010.

      Kendall R. Vickers and Howard C. Gosness, The Vickers Law Firm, Nevada, MO, for Appellants.
    Mercedes Watson, Watson Law Firm, Stockton, MO, for Respondents.
   GARY W. LYNCH, Presiding Judge.

Claude and Shirley Fairchild (collectively, “Sellers,” and individually, “Claude” or “Shirley”) appeal the judgment of the Circuit Court of Cedar County, Missouri, granting rescission of a contract for deed (“the Contract”) and damages to Scott and Christine Greenstreet (collectively, “Buyers,” and individually, “Scott” or “Christine”) based upon breach of contract, constructive eviction, and trespass. Sellers make three claims on appeal: that rescission was in error because Sellers’ breach of the Contract was not material; that a finding of constructive eviction was in error because Buyers had equitable title to the property in question; and that restitution of Buyers’ $60,000.00 down payment was in error because Buyers did not tender the value of all benefits conferred upon them under the Contract. Finding no merit in any of these arguments, we affirm the trial court’s judgment.

Factual and Procedural Background

We view all evidence and inferences in the light most favorable to the trial court’s judgment and disregard all contrary evidence and inferences. Payroll Advance, Inc. v. Yates, 270 S.W.3d 428, 431 (Mo.App.2008). Furthermore, neither party requested that the trial court make written findings of fact and conclusions of law; in a court-tried case, “[a]ll fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached.” Rule 73.01(c). In that light, the following was adduced at trial.

In October 2006, Buyers came to Missouri from their home in Kodiak Island, Alaska, for a “mini[-]family reunion.” On that trip, the family visited with Sellers, whose house in El Dorado Springs was for sale. Scott had worked for Sellers on their dairy farm when he was a boy. Buyers were “looking for a place to retire” and raise their children. After looking at Sellers’ property, Buyers “fell in love with it,” because it was in the country, there were forty acres of land so the family could have animals, and it was a completely different lifestyle than they had in Alaska. According to Buyers, the house was the “fulfillment of a dream.” At the time, Buyers “really liked” Sellers; Christine thought that “[t]hey made you feel right at home and ... were just very nice people[.]”

The house is divided into two living spaces, the upstairs and the basement. The upstairs level has three bedrooms, two-and-a-half bathrooms, a living room, a dining room, and a kitchen. Off of the kitchen is a set of stairs, at the bottom of which is a door leading into the basement. The basement is mostly finished, with a kitchen, a living room, a bedroom, a full bathroom, and an unfinished area with the water heater. The basement also has a separate entrance. The house, including the basement, has approximately 5,000 square feet and is situated on forty acres of land.

When Buyers initially expressed interest in the property, Sellers had the property listed with a real estate agent. Sellers told Buyers that they wanted to wait until the listing expired, at which time they would sell the house and acreage to Buyers for $300,000.00.

The following March, Buyers again visited El Dorado Springs and this time stayed in the “upstairs house” on the property. Sellers mainly resided in the basement portion of the home. Sellers’ real estate listing had expired, and Shirley informed Buyers that the price on the property was $300,000.00, which would include any furnishings Buyers wanted from the upstairs level of the home, plus some farm equipment. During that visit the parties verbally agreed to a purchase price of $300,000.00, but no down payment was made at that time. Also during that visit, Buyers reached an agreement with Claude, wherein Buyers purchased some cattle and Claude agreed to take care of them while Buyers returned to Alaska. This included having part of the forty acres fertilized. Buyers also purchased two air purifiers for the home because their daughter is asthmatic and was bothered by Shirley smoking inside the house.

In early May 2007, Buyers sent a check for $30,000.00 to Sellers to show that they were serious about buying the house and accompanying acreage. Sellers deposited that check on May 5.

Christine and her two daughters moved from Alaska on May 28, 2007, and Sellers picked them up from the airport in Kansas City. Buyers immediately moved into the upstairs level of Sellers’ home. Shortly thereafter, in early June, Buyers and Sellers met with attorney Dennis Reaves to draw up a written contract for the sale of the property. At that time, Sellers changed the purchase price of the property to $320,000.00.

Shortly after moving into the house, the parties began having problems. Initially, the parties disagreed over the location of an above-ground swimming pool, which was paid for by Buyers. While Sellers did not contest the pool’s existence, they disagreed with Buyers about the location of the pool, and ultimately Buyers changed the location of the pool to appease Sellers.

The parties differed, as well, regarding the temperature at which the thermostat was set. A single thermostat, located on the upstairs level of the home, controlled the temperature for the entire house. After Buyers set the thermostat upon moving into the home, Shirley instructed Buyers to set the temperature at 72 degrees. They acquiesced and never again changed the setting on the thermostat.

The parties also disagreed over Sellers keeping a loaded gun in plain sight in the basement. Christine repeatedly told Shirley that she was uncomfortable having a loaded gun visible and available to her children — then ages thirteen and seven— and asked Shirley to “put it away.” Shirley told Christine that “it was her right to have the gun sitting on the table. And ... she had put her hand on the gun and she told me that [it] was to take care of problems.” Christine felt threatened by Shirley’s response.

In late June, Buyers’ oldest daughter hurt her ankle. While doing some work in the basement — she often did chores for Sellers — she complained that her ankle hurt, and Shirley gave her two bottles of pills. Buyers’ daughter took the bottles to her mother, who was disturbed to find that they were labeled “Hydrocodone” and “Sulfa Trim.” When Christine confronted Shirley about the pills, Shirley simply replied that “[the girl] was in pain and that these would help.” Christine asked Shirley not to give anything to her children without express permission.

Finally, on one occasion also that June, Buyers returned home from the grocery store to a strong smell of cigarette smoke in the upstairs level of the house and cigarette ashes on the kitchen floor. Papers in the desk area were moved around and re-ordered. When Christine asked Sellers why they were upstairs, Shirley replied that “somebody had rang [sic] the doorbell upstairs and she needed to see who was at the front door.” Buyers had purchased a separate doorbell for the upstairs level of the home and placed a sign stating “[Sellers] live downstairs. [Buyers] live upstairs.” At that time, Sellers agreed that they would not go upstairs without express permission from Buyers. Following this incident, Buyers installed a locking mechanism on the basement door; before this, there had been only a deadbolt that locked solely from Sellers’ side. Buyers also changed some of the other upstairs locks.

Twice in early July, Buyers went to the basement to try and resolve their issues with Sellers. Things seemed better after these meetings, so on July 5, 2007, the parties signed the Contract as drafted by attorney Reaves. Under the terms of the Contract, Buyers were to pay $60,000.00 down plus $1,800.00 per month until the purchase price — including 6% interest— was completely paid. At that time, according to the Contract, Sellers would deed the property to Buyers. Buyers paid a second $30,000.00 payment and the first $1,300.00 monthly payment when they signed the Contract. Additionally, Buyers were to pay for half of the utilities for the property, which they did for the months of June and July. The Contract also provided that Sellers would remain living in the basement portion of the house while Buyers would take possession of the upstairs level. Sellers had the right, pursuant to the Contract, to inspect the upstairs level of the home “with reasonable notice to [Buyers] and at reasonable hours.” Upon Buyers paying the remainder of the purchase price, Sellers would have 90 days to vacate the home. The parties agreed in the Contract that the $320,000.00 purchase price was allocated $280,000.00 to the house and $40,000.00 to the land.

Seventeen days later, on July 22, 2007, Buyers went for a drive to Osceola, Missouri. When they returned to the house, they could smell cigarette smoke upstairs, and they noticed that the lock mechanism on the basement door had been removed. Buyers also noticed that someone had tried to unlock one of the new locks upstairs with a different key, which had broken off in the lock. Another door upstairs, however, had been successfully unlocked and provided entry into the upstairs level of the home; it was later determined that Sellers had retained a key to the upstairs level of the house without informing Buyers. Once again, Buyers’ papers on the desk, consisting of financial statements, a job application for Christine along with her criminal background check and letters of reference, and identifying paperwork for the children, had been disturbed. Finally, a security-camera screen, located in one of the children’s bedrooms, had been moved.

Buyers called 911. While they were waiting for the sheriff to arrive, Claude came through the garage and “banged on the door that leads into the house[.]” He was very upset and began yelling at Buyers saying, ‘You did a stupid thing, boy. You locked the doors. You changed locks on my house.” Claude came up the stairs and tried to physically confront Scott. Claude continued to tell Buyers that “[they] didn’t have any right to change the locks on [his] house” and that they were “stupid” for doing so. Scott asked Claude if he had read the Contract, to which Claude responded that he had not, but that “Shirley told him that it was their house.” Claude told Christine “that, if [she] wasn’t a whiney bitch, that none of this [would] have happened, that [she] was just a whi-ney cry’ie bitch. And that [she] needed to learn.” Claude then told Scott “that Shirley is ... controlling and that [Buyers] just needed to learn how to deal with her at that time.” Claude went on to threaten to poison Buyers’ “stupid cows[.]” Scott told Claude to “just calm down” because they had called the sheriff. Although Claude remained upstairs for a little while afterward — all the while talking about how Christine was a “whiney bitch” and how she “just needed to learn to get along with Shirley” — he had gone back down to the basement by the time the sheriff arrived.

Buyers told the sheriff about the intrusion into their home, as well as the altercation with Claude. The sheriff examined the broken locks and disordered paperwork and then went downstairs to speak with Sellers. While the sheriff was in the basement, Sellers turned off the electricity to the upstairs level of the house. When the sheriff returned upstairs, Buyers informed him of the power situation, at which point he returned to the basement. Sellers insisted that something was wrong with the air conditioner, but, nevertheless, they turned the power back on. Shortly after the sheriffs departure, Sellers again turned off the power to the upstairs and also shut off the water. Buyers again called the sheriff, who returned to the home.

Because of the threat to Buyers’ animals, the family called Healey’s Livestock Auction to come and remove the animals from the property; because of the repeated actions turning off the power to the upstairs, Buyers were fearful of remaining in the home and instead spent that night in a hotel. Buyers moved out the next day.

Sellers claimed that they entered the upstairs level of the home that day because the thermostat was set too low and they were cold. Claude stated that when he and his wife discovered that the door from their basement apartment to the upstairs area had been locked, they “pulled the pins in the door,” went upstairs, readjusted the thermostat, and then returned to the basement. He denied attempting to gain access to the upstairs level any other way. Shirley, however, admitted to attempting to enter the upstairs level through a patio door, but her key broke off inside the lock. Sellers had never complained about the temperature of the home prior to that occasion. Sellers did not call Buyers prior to entering the upstairs that day. Claude denied threatening Buyers or their animals. He admitted turning off the electricity to the upstairs level of the house “[bjecause of their harassment.” Shirley claimed they shut off the electricity because the air conditioner had been running too long and was damaging the compressor, and she could not get a repairman out until the next day.

Buyers filed a petition against Sellers on October 9, 2007, alleging breach of contract (Count II), breach of implied warranty of peaceful use and enjoyment (Count III), constructive eviction (Count IV), slander (second Count IV), invasion of privacy (Count V), and trespass (Count VI). Buyers asked the trial court to award restitution and punitive damages. Following Buyers’ filing of a motion for default judgment, Sellers filed an answer on March 17, 2008, denying all counts alleged in the petition. No affirmative defenses or counterclaims were asserted.

Following a bench trial on February 25, 2009, during which Buyers abandoned their claim for slander (second Count IV), the trial court, on March 28, 2009, entered judgment for Buyers. Specifically, the trial court found that Sellers materially breached the Contract and that the actions taken by Sellers were unreasonable and resulted in the constructive eviction of Buyers from the property. Accordingly, the trial court entered judgment against Sellers for breach of contract (Count II), constructive eviction (Count IV), and trespass (Count VI). The trial court awarded Buyers judgment against Sellers in the amount of $66,021.91, which included the return of Buyers’ down payment, their attorney fees, and other expenses incurred; it reduced the total damages in the interest of equity, however, taking into account a fair rental value of the property during the time Buyers resided in the upstairs level of Sellers’ house.

This appeal by Sellers timely followed.

Standard of Review

In a court-tried case for breach of contract, we will affirm the judgment of the trial court “unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.” Mihlfeld & Assocs., Inc. v. Bishop & Bishop, L.L.C., 295 S.W.3d 163, 170 (Mo.App.2009) (citing Jamison v. State of Mo., Dept, of Social Servs., 218 S.W.3d 399, 404 (Mo. banc 2007); Citizens Nat’l Bank v. Maries County Bank, 244 S.W.3d 266, 270 (Mo.App.2008)). Since neither party requested findings of fact or conclusions of law, we view all factual issues as in accordance with the judgment of the trial court. Rule 73.01; Haynes v. Almuttar, 25 S.W.3d 667, 671 (Mo.App.2000). We defer to the trial court’s determinations regarding credibility; however, we review issues of law de novo. Tolliver v. Dir. of Revenue, 117 S.W.3d 191,196 (Mo.App.2003).

Discussion

Sellers present three points for our review. We address them in the order presented.

Rescission

In their first point relied on, Sellers allege that

[t]he trial court erred in ordering rescission of the parties’ contract because the alleged breach of the contract was not material in that it concerned the occupancy of the residence, which was a subordinate provision that did not go to the root of the contract, which was the sale of the real estate.

If one party to a contract materially breaches that contract, the aggrieved party may cancel the contract and be relieved of its obligation under the contract. Curt Ogden Equip. Co. v. Murphy Leasing Co., Inc., 895 S.W.2d 604, 609 (Mo.App.1995). “A material breach is one where the breach relates to a vital provision (i.e., material term) of the agreement and cannot relate simply to a subordinate or incidental matter.” Spencer Reed Group, Inc. v. Pickett, 163 S.W.3d 570, 573-74 (Mo.App.2005) (citing Patel v. Pate, 128 S.W.3d 873, 878 (Mo.App.2004)). ‘Whether a breach of contract is material is a question of fact.” Fire Sprinklers, Inc. v. Icon Contracting, Inc., 279 S.W.3d 230, 233 (Mo.App.2009) (citing Curt Ogden Equip. Co., 895 S.W.2d at 608-09).

Sellers do not dispute that their conduct on July 22, 2007, breached Buyers’ right under the Contract to possession of the upstairs level of the residence, but rather, challenge the trial court’s factual determination that the breach was material to the Contract because, according to Sellers, “the principal purpose of the Contract was the sale to [Buyers] of a forty-acre tract of land.” Although not explicitly stated in their point, apparently Sellers claim that the materiality factual finding by the trial ccfurt is not supported by substantial evidence. We disagree.

There are five significant factors in determining whether a breach is material: “(1) the extent to which the injured party will be deprived of a reasonably expected benefit[;] (2) the extent to which the injured party can be compensated for the part of that deprived benefit[;] (3) the extent to which the party failing to perform will suffer forfeiture^] (4) the likelihood that the party failing to perform will cure that failure[;] and (5) the extent to which the behavior of the party failing to perform comports with standards of good faith and fair dealing.” McKnight v. Midwest Eye Inst, of Kansas City, Inc., 799 S.W.2d 909, 915 (Mo.App.1990) (citing Restatement (Second) of Contracts, § 241 (1981); Stokes v. Enmark Collaborative, 634 S.W.2d 571, 573[l-4] (Mo.App.1982)). Substantial evidence supported each of these factors favoring the trial court’s materiality finding.

In addressing the first factor — the extent to which Buyers will be deprived of a reasonably expected benefit — we initially note that the Contract specifically provides that “[Sellers] shall deliver possession of the upstairs of the residence and the land to [Buyers] upon execution of this contract.” Sellers do not argue or contend that Buyers were anything other than reasonable in expecting that their possession of the upstairs of the residence and the land would be peaceful and free of interference by Sellers. The thrust of Sellers’ argument, as related to this factor, rather, is that the Sellers’ breach of Buyers’ possession on July 22, 2007, was not an extensive enough deprivation of that right to be material. Had that breach happened in isolation, perhaps Sellers’ argument would have some merit. When considered in the light of the totality of the surrounding circumstances, however, there was substantial evidence supporting that Selims’ interference with Buyers’ possession would extend to the entire term of the Contract, which, assuming no pre-payments by Buyers, would have been over eleven years.

Although Sellers’ breach of the Contract occurred on July 22, 2007 — a contract cannot be breached if it does not yet exist — -as the trial court pointed out, Sellers’ actions before the parties signed the Contract “affected [Buyers’] states of mind and enhanced the seriousness of [Sellers’] later conduct.” In regard to the latter, them prior conduct was also an indication of the extent to which Sellers’ intended to engage in a continuing course of interference with Buyers’ possession.

In this context, it is clear that this factor supports the trial court’s finding of a material breach of the Contract. Buyers were deprived of their expectation of privacy in their home, as well as their use and enjoyment of the property, by Sellers’ actions during the approximate two-month period Buyers lived in the house. These infringements were a direct result of the Sellers remaining in the basement level of what had been their home for nearly forty years. Moreover, Buyers repeatedly tried to work out their differences with Sellers, only to have conditions sour time and again; indeed, it was only after the Sellers’ indication that they could and would change their behavior that Buyers were persuaded to enter into the Contract, even after repeated interferences had already occurred. After the events constituting the breach of the Contract on July 22, 2007, only seventeen days after the Contract was signed, it became clear that Sellers’ behavior had not changed over the course of Buyers’ occupancy of the property and, indeed, would not change over the term of the Contract.

The evidence related to the second factor — the extent to which Buyers can be compensated for part of that deprived benefit — also supports the trial court’s finding of materiality. The bulk of the purchase price was allocated to the residence and, consequently, to Buyer’s right to peaceably possess it and live there. Living in the residence in conjunction with the acreage and the family activities on that acreage was the attraction and allure of the property to Buyers in the first instance. Monetary damages would not adequately compensate Buyers for their inability to enjoy the possession of their home for the remaining term of the Contract, which could be over eleven years. Likewise, injunctive relief is not an adequate remedy to allay the natural anxiety arising from continuing hostilities between two unrelated families living in the same residence for such a lengthy period of time.

Sellers do not demonstrate or argue in any manner that the third factor — the extent to which Sellers will suffer forfeiture — supports their position. The trial court’s judgment essentially restores them to their status quo as owners of the property having been paid a reasonable rent for the less than two months Buyers resided in the upstairs of the residence.

The evidence supporting both the fourth factor — the likelihood that Sellers will cure that failure — and the fifth factor — the extent to which the behavior of Sellers comports with standards of good faith and fair dealing — is interrelated with that supporting the first factor. Sellers’ actions, beginning from the time that Buyers moved into the upstairs of the residence until they left the residence after the events of July 22, 2007, coupled with Sellers’ repeated false assurances that they would cease interfering with Buyers’ possession of the premises, support a determination that little likelihood existed that Sellers would change their behavior or that they would start dealing fairly and in good faith with Buyers. The evidence supports just the opposite — Sellers’ interference with Buyers possession would likely only increase and escalate in the future, just as it had in the past. As such, both of these factors favor the trial court’s determination that Sellers’ breach of the Contract on July 22, 2007, was a material breach.

Finding that substantial evidence supports all five factors in favor of the materiality of Sellers’ breach of the Contract, the trial court did not err in ordering rescission of the Contract for such breach. Sellers’ first point is denied.

Constructive Eviction

Next, Sellers contend that “[t]he trial court erred in finding that [Sellers] constructively evicted [Buyers] because [Sellers] did not have paramount title to the property, in that they had contracted to sell the property to [Buyers] and accordingly, [Sellers] had conveyed equitable title to the property to [Buyers].” This point affords Sellers no relief.

This point presupposes that Sellers’ actions on July 22, 2007, were not a material breach of the Contract, as alleged in Sellers’ first point, and that, in addition, such actions were not a constructive eviction either. As previously discussed, Sellers’ actions on that date were a material breach of the Contract supporting rescission under Count II of Buyers’ petition for breach of contract. This is so under the terms of the Contract regardless of the legal or equitable ownership of the property and regardless of whether or not the trial court gratuitously found that such actions also constituted a constructive eviction under Count IV of the petition or otherwise denominated such actions as a constructive eviction. Sellers do not argue otherwise. For this reason, we need not further address this point. Sellers’ second point is denied.

Restitution

Finally, Sellers argue that “[t]he trial court erred in awarding restitution of the down payment to [Buyers] because they did not plead and prove that they tendered or offered to credit all benefits conferred to them under the Contract.” This point is defective and does not preserve anything for appellate review.

This point does not comply with Rule 84.04(d)(1)(C), which requires that a point relied on, in addition to stating the legal reasons for the claim of error, shall “explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.” Rule 84.04(d)(1)(C). Unfortunately, Sellers’ argument under this point provides no illumination in this context. After stating in their argument the conclusion that “[Buyers] neither tendered nor offered to tender the benefits conferred on them during their possession of the property, nor did they prove that they were excused from doing so[,]” the Sellers assert that “[i]t is not [Sellers’] or this Court’s role to identify the benefits [Buyers] received, or the basis for their claim of an excuse from doing so.” Consistent with this statement, Sellers did not identify anywhere in their brief any benefits received by Buyers, which Sellers claimed should have been pleaded and proved by Buyers.

The trial court’s judgment is presumed correct. Dills v. Dills, 304 S.W.3d 738, 741 (Mo.App.2010) (quoting GMAC v. Crawford, 58 S.W.3d 529, 532 (Mo.App.2001)). Sellers, as appellants, bear the burden of proving their claims of error. Reliable Roofing, LLC v. Jones, 302 S.W.3d 232, 236 (Mo.App.2009) (citing Ray Klein, Inc. v. Kerr, 272 S.W.3d 896, 898 (Mo.App.2008)). As such, and in compliance with Rule 84.04(d)(1)(C), it was incumbent upon them in this point to support their legal reason for claimed error by identifying, in the context of this case, the alleged benefits received by Buyers, which Sellers now claim Buyers should have pleaded and proved. Apparently, they intentionally chose not to do so. “An allegation of error that is not properly briefed cannot be considered in a civil appeal.” Reliable Roofing, LLC, 302 S.W.3d at 236; Rule 84.13(a). Seller’s third point is denied.

Decision

The trial court’s judgment is affirmed.

BARNEY, J., and BURRELL, J., concur.

      . Because of the same last name, we use first names for clarity. No disrespect is intended.

      . All rule references are to Missouri Court Rules (2009).

      . After applying the $60,000.00 down payment to the purchase price, the payment of the remaining balance of $260,000.00 at 6% interest would require 138 monthly payments of $1,300.00.

      . Buyers filed in this Court a motion for attorney fees on appeal premised upon the attorney fee provision in the Contract. The Contract, however, was rescinded, and no award for attorney fees can be made in reliance on a contract which no longer exists. Harris v. Desisto, 932 S.W.2d 435, 448 (Mo.App.1996). Buyers' motion is denied.


author: WILLIAM W. FRANCIS, JR., Judge.

text:
    Ronald B. JARRETT, III, Appellant, v. STATE of Missouri, Respondent.
    No. SD 29896.
    Missouri Court of Appeals, Southern District, Division Two.
    June 4, 2010.

      Rosalynn Koch, Columbia, MO, for Appellant.
    Chris Koster, Attorney General and Terrence M. Messonnier, Assistant Attorney General, Jefferson City, MO, for Respondent.
   WILLIAM W. FRANCIS, JR., Judge.

This appeal comes to this Court on Movant’s motion for post-conviction relief asserting that his guilty plea was not intelligently and voluntarily entered for the reason that he received ineffective assistance of counsel. The motion court entered an order denying the motion. We affirm the motion court.

Factual and Procedural History

The criminal proceedings relevant to this appeal actually span two separate cases. On June 20, 2002, an information was filed on Movant’s initial case charging him with forcible rape in violation of § 566.030. David Back was appointed to represent Movant in the initial case. The State dismissed the initial case and refiled a felony complaint the same day, March 25, 2005, also charging a violation of § 566.030. A felony information was filed on May 17, 2005. Cristy Meadows was appointed to represent Movant in the second case.

On July 1, 2005, Movant pled guilty to forcible rape as charged for a violation of § 566.030. Pursuant to the guilty plea, Movant was sentenced to 14 years in prison, but execution of the sentence was suspended, and Movant was placed on 5 years of supervised probation.

On January 25, 2008, Movant’s probation was revoked and his sentence was executed. On July 17, 2008, Movant, self-represented, filed a “Motion to Vacate, Set Aside or Correct the Judgment or Sentence” pursuant to Rule 24.035. Movant was appointed counsel, who, on February 9, 2009, filed an amended motion, which alleged that Movant’s plea counsel was ineffective because she “should have filed to dismiss the charge based on the potential expiration of the statute of limitations and based on the failure to afford Movant a speedy trial.” On April 30, 2009, the motion court held an evidentiary hearing on Movant’s motion. The motion court heard testimony from, among others, Mov-ant, Back, and Meadows. On June 1, 2009, the motion court entered a judgment denying Movant’s motion.

Movant’s sole point relied on alleges that the motion court erred in overruling Mov-ant’s motion for post conviction relief because Movant proved that his guilty plea was not intelligently and voluntarily entered for the reason that he received ineffective assistance of counsel in that counsel failed to assert and move to dismiss the second information for violation of Mov-ant’s right to a speedy trial. Movant asserts he pled guilty without knowing that he had a right to ask for a dismissal.

Standard of Review

Our review of the motion court’s disposition of a motion filed pursuant to Rule 24.035 is “limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous.” Rule 24.035(k). “The motion court’s findings and conclusions are clearly erroneous only if, after reviewing the entire record, the appellate court is left with the definite and firm impression a mistake has been made.” State v. Nunley, 980 S.W.2d 290, 291-92 (Mo. banc 1998). Furthermore, because the motion court is in a better position to weigh the credibility of witnesses, we give deference to its credibility determination. Bradley v. State, 292 S.W.3d 561, 566 (Mo.App. E.D.2009).

Analysis

Movant’s brief seems to allege that both Back and Meadows were ineffective in this case: Back because he “failed to assert [Movantj’s right to a speedy trial in the first place, which would have resulted in outright dismissal by the court and prevented the State from making an end run and refilling [sic],” and Meadows because she “failed to explain [Movantj’s right to request that the case be dismissed because [Movantj’s right to a speedy trial had been violated.” A claim against Back was not included in Movant’s amended motion; therefore, we cannot address any claim against Back on this appeal because it has been waived. “[Wjhen a defendant fails to raise a claim in his Rule 24.035 motion, he waives it.” Gilyard v. State, 303 S.W.3d 211, 214 (Mo.App. W.D.2010). We only address Movant’s claim against Meadows. “To prevail on claims of ineffective assistance of counsel, Movant must establish that (1) counsel’s conduct fell below an objective standard of reasonableness and (2) counsel’s deficient conduct or errors prejudiced Movant’s case.” Winder v. State, 151 S.W.3d 413, 416 (Mo.App. S.D.2004). “A guilty plea waives all errors — including ineffective assistance of counsel claims — that do not impair the knowing and voluntary nature of the plea.” Berry v. State, 214 S.W.3d 413, 415 (Mo.App. S.D.2007).

With respect to Movant’s argument that counsel failed to file a motion to dismiss for violation of his right to a speedy trial, we find it is without merit. In evaluating the elements set forth in Winder, the “reviewing court may examine the prejudice prong before the performance prong, and may resolve it on lack of prejudice grounds alone.” Summers v. State, 84 S.W.3d 514, 516 (Mo.App. S.D. 2002) (citing Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987)).

Movant has failed to establish prejudice in this case. A showing of prejudice requires Movant to establish that but for his plea counsel’s errors, he would have insisted on going to trial instead of entering a guilty plea. Roberts v. State, 276 S.W.3d 833, 836 (Mo. banc 2009). Meadows testified that she did not file a motion for speedy trial because Movant’s case required a significant amount of time to prepare due to the nature of the charges. Meadows explained that in her opinion, a motion for speedy trial is “frivolous unless you’re actually ready for trial. So I refuse to file motions for speedy trial unless we’re actually ready. And I explain that to the clients.” Also, the following colloquy took place between Movant and the State at Movant’s evidentiary hearing:

Q. Okay. Would you have wanted Cristy Meadows to file a motion for speedy trial even if that would have meant that she would not have, an adequate time to prepare for trial?
A. I don’t — I’m not fully aware of how the court proceedings go, so I don’t know.
Q. But you would have wanted her to be as prepared as possible?
A. I’m sure I would have.

In light of Meadows’ testimony that she did not file a motion for speedy trial because she needed more time to prepare for trial, and Movant’s testimony that he would want her to be as prepared as possible for trial, Movant has failed to produce evidence he would have insisted on going to trial without Meadows being properly prepared instead of pleading guilty. Mov-ant has not demonstrated the required prejudice; his point is denied.

The judgment is affirmed.

LYNCH, P.J., and RAHMEYER, J„ concur.

      . All references to statutes are to RSMo 2000, unless otherwise indicated. All references to 566.030 are to RSMo Cum.Supp.2005.

      . Meadows was not present at Movant's plea hearing. Another attorney, Shawn Markin, was representing Movant. Markin, however, testified that it was the responsibility of appointed counsel, in this case Meadows, to advise Movant of any issues regarding his plea.

      .All rule references are to Missouri Court Rules (2010).


author: JEFFREY W. BATES, Presiding Judge.

text:
    Dennis THOMPSON, Plaintiff-Respondent, v. Wayne ROCKETT, Defendant-Appellant.
    No. SD 30015.
    Missouri Court of Appeals, Southern District, Division One.
    June 7, 2010.

      Matthew B. Lee, Poplar Bluff, MO, for Appellant.
    Brian Scott McChesney, St. Louis, MO, for Respondent.
   JEFFREY W. BATES, Presiding Judge.

Wayne Rockett (Rockett) appeals from a judgment entered against him in a personal injury action brought by Dennis Thompson (Thompson). In Rockett’s first point, he contends the trial court lacked the statutory authority to award damages to Thompson because his exclusive remedy was his workers’ compensation claim. In Rockett’s second point, he contends the trial court erred in admitting certain documentary exhibits relating to Thompson’s damages. This Court cannot address the merits of Rockett’s first point because the trial court entered an interlocutory default judgment against him for failure to make discovery. The second point has no merit. Accordingly, the trial court’s judgment is affirmed.

Thompson’s personal injury action was originally filed in January 2007. At that time, Rockett was not a party to the action. He was added as a party-defendant in an amended petition filed by Thompson in June 2008. In relevant part, the amended petition alleged that:

(1) Rockett and Thompson were employed at Rose Concrete Products;
(2) Rockett was one of Thompson’s supervisors;
(8) Thompson was severely injured when a dump truck that he was driving overturned;
(4) Rockett purposely and personally directed plaintiff to drive the dump truck, which had an unsafe hydraulic pump that needed to be replaced; and
(5) prior to the accident, Rockett had directed mechanics not to replace the pump because he did not want the vehicle to be taken out of service.

Rockett was served in early July 2008. Thereafter, Thompson voluntarily dismissed his claims against the other defendants in the case. Rockett filed an answer to the amended petition on August 7, 2008.

In mid-August 2008, Thompson propounded interrogatories to Rockett. No answers to those interrogatories were ever received by Thompson. On May 4, 2009, Thompson filed a motion for sanctions and asked the court to enter a default judgment on liability against Rockett for failing to answer interrogatories. In late May 2009, Rockett filed a motion to dismiss the case on the ground that Thompson’s claim for workers’ compensation benefits was his exclusive remedy. Thompson responded that his personal injury action against fellow employee Rockett was permitted by the “something more” exception to the exclusive remedy provision in § 287.120.2 discussed in cases like Bums v. Smith, 214 S.W.3d 335 (Mo. banc 2007).

On July 16, 2009, the court denied Rock-ett’s motion to dismiss and granted Thompson’s motion for sanctions. The court gave the following explanation for imposing sanctions against Rockett:

On or about August 18, 2008, Thompson’s counsel served Rockett’s counsel with interrogatories to be answered by Rockett. However, Rockett failed and/or refused to answer the interrogatories. Thompson’s attorneys attempted to resolve this discovery dispute. Rock-ett’s attorney repeatedly tried to contact Rockett and conceded the following: “I have no reason to believe that I will ever be able to contact Wayne Rockett.” Thompson filed a motion for sanctions asking this Court to remedy Rockett’s disobedience by entering a default judgment against Rockett pursuant to Supreme Court Rule 61.01(b)(1). After a full hearing on May 14, 2009, this Court granted Rockett additional time to answer Thompson’s interrogatories, but emphasized to Rockett’s attorney that Rockett would be sanctioned with a default judgment if he failed to answer Thompson’s interrogatories on or before June 3, 2009. Thompson’s motion for sanctions was therefore rescheduled for hearing on June 3, 2009. However, Rockett’s attorney appeared for hearing on June 3 without Rockett and without Rockett’s answers to interrogatories.... Rockett was required to answer and/or object to the interrogatories within thirty (30) days as required by Supreme [Court] Rule 57. To date, nearly eleven (11) months have passed and Rockett still has not answered. Nor has Rockett offered a reasonable excuse. In fact, Rockett’s own attorney has indicated that he has no reason to believe that he will ever be in contact with Rockett again. Therefore, this Court hereby sanctions Rockett’s disobedience by entering a default judgment against defendant Rockett and for plaintiff Thompson pursuant to Rule 61.01(b)(1). This Court will set this matter for hearing to assess plaintiff Thompson’s damages, if any.

The damages trial was held on July 23, 2009. At the beginning of that hearing, Thompson’s counsel offered ten exhibits into evidence. Rockett’s counsel objected to all of the documents on the grounds of hearsay and lack of foundation. Thompson was the only witness who testified at the hearing. Viewed in a light most favorable to the judgment, the following is a summary of his testimony.

In March 2005, Thompson worked for Rose Concrete as a manual laborer. He was then 52 years old. He had been employed by Rose Concrete for 16 years, and he worked an average of between 40-70 hours a week. For the first eight hours he worked each day, he earned $12 per hour. For each additional hour of that work day, he earned $18 per hour. His average weekly wage was $694.49. He had planned to work until he was 65 years of age.

On March 9, 2005, Thompson was working in the bed of a dump truck full of rocks when the vehicle flipped over on top of him. He sustained an injury to his left shoulder and arm that required hospitalization. He had to have two surgeries performed on his arm. He also underwent physical therapy. His medical expenses totaled $61,238.

Thompson had first begun working at the age of 16 or 17, and he had been fully employed his whole adult life before this injury occurred. After the first surgery, he returned to work. He ended up having to undergo a second surgery to his left arm. Once the second surgery was performed, Thompson was never able to return to work again. His doctors stressed that he should not use his left arm anymore to avoid tearing up the muscles that had been surgically repaired. Due to Thompson’s inability to work any longer, he had sustained past lost wages of $134,731. His anticipated lost wages from the date of trial through age 65 totaled $310,437.

Thompson suffered from pain every day because of the injury to his left shoulder and arm. The pain was severe enough that it sometimes caused him to awake at night. The pain also was significant enough to inhibit his use of his left arm and interfere with his activities of daily living. As a result of this injury, he had become depressed and was taking medication for that condition. Thompson attributed his depression to the fact that he went from “doing everything to not being able to do anything.” Thompson lived alone and had to take care of himself because his wife had died.

At the conclusion of Thompson’s testimony, his attorney pointed out to the court that Thompson’s economic losses (his past medical bills plus past and future lost wages) totaled over $500,000. Counsel asked the court to award an additional $800,000 to $400,000 for Thompson’s non-economic losses. The court found Thompson’s damages to be $850,000. This appeal followed.

Point I

In Rockett’s first point, he contends the trial court lacked the statutory authority to award damages to Thompson for this on-the-job injury because his workers’ compensation claim was his exclusive remedy. For the reasons set forth below, we cannot address this issue because Rockett lost the ability to assert that affirmative defense, or any others, when the trial court entered its interlocutory default judgment on liability as a sanction for failing to make discovery.

As noted above, Rockett filed a motion to dismiss Thompson’s tort claim in May 2009. At the time Rockett’s motion was filed, this was an accepted procedure for raising the exclusive remedy defense contained in § 287.120.2. See, e.g., Harris v. Westin Management Co. East, 280 S.W.3d 1, 2-3 (Mo. banc 2007). Harris and like cases were decided on the basis that a circuit court lacked “subject matter jurisdiction” over a claim barred by § 287.120.2. See, e.g., State ex rel. Taylor v. Wallace, 73 S.W.3d 620, 621 (Mo. banc 2002) (“subject matter jurisdiction over [workers’ compensation claims] properly lies in the Labor and Industrial Relations Commission”). That was the same argument Rockett made to the trial court.

In McCracken v. Wok-Mart Stores East, LP, 298 S.W.3d 473 (Mo. banc 2009), however, our Supreme Court overruled that prior line of cases. Id. at 475. McCracken held that article V, § 14 of the Missouri Constitution gives a circuit court subject matter jurisdiction to hear a civil case sounding in negligence. Id. The exclusive remedy provision in § 287.120 is merely an affirmative defense that must be pleaded and proven as provided in Rules 55.08 and 55.27. See id. at 479. Because this statutory bar to recovery is not jurisdictional in nature, it can be waived like other defenses. Id. To accommodate pending cases, our Supreme Court also decided the rule requiring this issue to be timely raised as an affirmative defense would only be applied prospectively. “In pending cases, courts should treat the matter as preserved if raised [by motion to dismiss] and should be liberal in permitting amendment ... to responsive pleadings during the transition back to treating this matter as an affirmative defense.” Id. at 479-80. Thus, the Supreme Court directed that courts in pending cases should treat a motion to dismiss raising the exclusive remedy bar of § 287.120.2 as though it were an affirmative defense asserted in a defendant’s answer.

This change in the law has a direct bearing on our resolution of Rockett’s first point on appeal. Although Rockett raised the exclusive remedy defense in a motion to dismiss, this Court will treat this appeal as though the statutory exclusive remedy bar had been asserted as an affirmative defense in a May 2009 amendment to Rockett’s answer. The dispositive issue is whether Rockett lost the right to assert that affirmative defense by failing to make discovery. We hold that he did.

“Rule 61.01 authorizes the imposition of sanctions when a party fails to comply with discovery requests.” Harrington v. Harrington, 153 S.W.3d 315, 318 (Mo.App.2005). One sanction a court may impose is the entry of a default judgment against the disobedient party. Sondemnan v. Maret, 694 S.W.2d 864, 866 (Mo.App.1985). That includes a party who fails to answer interrogatories. Rule 61.01(b)(1); Hoodenpyle v. Schneider Bailey, Inc., 748 S.W.2d 683, 685 (Mo.App.1988).

Once the trial court granted the interlocutory judgment of default on liability against Rockett, his affirmative defense based upon § 287.120.2 was no longer an issue in the case. Rockett’s failure to answer interrogatories permitted the trial court to presume “that no merit exists in the asserted defense in light of the failure of the errant party to produce information necessary to dispose of the cause.” State ex rel. Eddy v. Rolf, 145 S.W.3d 429, 433 (Mo.App.2004); Norber v. Marcotte, 134 S.W.3d 651, 662 (Mo.App.2004); Simpkins v. Ryder Freight System, Inc., 855 S.W.2d 416, 420-21 (Mo.App.1993).

On appeal, Rockett could have challenged the trial court’s entry of a default judgment on liability as an abuse of discretion. See, e.g., Harrington, 153 S.W.3d at 318. He chose not to do so. Instead, his first point on appeal only challenges the trial court’s earlier decision to deny the exclusive remedy defense. We cannot review that ruling. Duvall v. Maxey, 249 S.W.3d 216 (Mo.App.2008), is directly on point. There, Duvall filed a lawsuit alleging that he was defamed by Maxey. Max-ey filed an answer, but he failed to answer interrogatories or appear for a deposition. As a sanction, the trial court struck Max-etfs answer and entered an interlocutory judgment on liability pursuant to Rule 61.01. Id. at 218. On appeal, two of Max-ey’s points asserted that Duvall failed to present sufficient evidence to prove the elements of defamation. The western district of this Court held that “[t]hese are efforts to argue the merits of the case. The issue in a judgment for sanctions is simply whether the trial court abused its discretion in issuing the judgment for sanctions. We are unable to review the merits of the case. Points II and III are denied.” Id. at 221 (citation omitted).

We reach the same conclusion here. The issue of whether the trial court erred in denying the exclusive remedy defense— prior to entering a default judgment on liability against Rockett — is not before this Court, and we will not address it. Duvall, 249 S.W.3d at 221. Rockett’s first point is denied.

Point II

The trial court’s entry of an interlocutory default judgment on liability did not relieve Thompson of his obligation to prove damages. See Scott v. LeClercq, 136 S.W.3d 183, 193 n. 1 (Mo.App.2004). The issue of damages was tried to the court. Appellate review is governed by Rule 84.13(d) and the principles articulated in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We must affirm the trial court’s judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Salem, United Methodist Church v. Bottorff, 138 S.W.3d 788, 789-90 (Mo.App.2004). “We review the evidence and all reasonable inferences in the light most favorable to the judgment and disregard all contrary evidence and inferences.” Arndt v. Beardsley, 102 S.W.3d 572, 574 (Mo.App.2003). We defer to the trial court’s determination of witness credibility and recognize that the court is free to accept or reject all, part or none of the testimony presented. Christian Health Care of Springfield West Park, Inc. v. Little, 145 S.W.3d 44, 48 (Mo.App.2004).

In Rockett’s second point, he contends the trial court erred in admitting ten documentary exhibits during the damages portion of the trial. Rockett argues that no foundation was laid for the admission of the exhibits, and all of them were hearsay. He further asserts that he was prejudiced by the ruling because there was no other substantial evidence to support the judgment. We find no merit in these assertions.

The first prong of Rockett’s argument can be quickly dispatched because his objection to the exhibits on the ground of “lack of foundation” preserved nothing for appellate review. Catroppa v. Metal Bldg. Supply, Inc., 267 S.W.3d 812, 816-17 (Mo.App.2008). This general objection was insufficient because it did not direct the attention of the court or opposing counsel to what specific foundational elements were missing with respect to any of the exhibits. Id. at 817.

Rockett’s hearsay argument fares no better. “In a court-tried case it is practically impossible to predicate reversible error on the erroneous admission of evidence.” Conoyer v. Conoyer, 695 S.W.2d 480, 482 (Mo.App.1985); see Cooper v. Cooper, 778 S.W.2d 694, 699 (Mo.App.1989). We presume the trial court disregarded any improperly admitted evidence and based its decision upon the competent and relevant evidence in the case. State v. Smith, 163 S.W.3d 63, 68 (Mo.App.2005); Wilson v. Sullivan, 922 S.W.2d 835, 838 (Mo.App.1996). In addition, the improper admission of hearsay is reversible error only if the complaining party was prejudiced. Cooper, 778 S.W.2d at 699. If the record contains other competent and substantial evidence to support the decree, the erroneous admission of hearsay is harmless. In re Estate of Black, 693 S.W.2d 899, 901 (Mo.App.1985).

Rockett does not challenge any of the testimony given by plaintiff Thompson at the damages trial. This evidence, which the trial court had a right to believe, established that Thompson suffered a very serious injury when he was only 52 years old. Two surgeries and subsequent physical therapy were required to treat the injury. Thompson’s medical bills totaled $61,238, which also tends to demonstrate how severe an injury he sustained. The injuries to his left shoulder and arm rendered him unable to work. As a result, his past and future lost wages totaled $445,168. Including the medical bills, his economic losses totaled $506,406.

In addition, Thompson sustained substantial noneconomic losses due to his injury. He was in pain every day because of his injury. The pain was severe enough to wake him up at night. He suffered from depression serious enough to require medication because he was “not able to do anything” anymore. His wife had died and he lived alone, so he had to take care of himself. The injury affected Thompson’s ability to do so because it severely impeded the use of his left arm and shoulder to engage in activities of daily living. In our view, this testimony amply supported the trial court’s decision to award Thompson approximately $350,000 for his noneconomic losses.

In short, Thompson’s testimony alone provided sufficient competent evidence to support the trial court’s award of $850,000 in damages. Assuming (without so deciding) that the trial court erred by admitting the exhibits relating to Thompson’s damages, the error was harmless. Conoyer, 695 S.W.2d at 482-83; Black, 693 S.W.2d at 901. Rockett’s second point is denied.

The judgment of the trial court is affirmed.

BARNEY and BURRELL, JJ., Concurs.

      . All references to statutes are to RSMo Cum.Supp. (2008). All references to rules are to Missouri Court Rules (2009).

      . A case is pending until direct appellate review is exhausted. State v. Cobb, 875 S.W.2d 533, 534 (Mo. banc 1994); Green v. State, 886 S.W.2d 953, 954 (Mo.App.1994); Hawkins v. State, 854 S.W.2d 606, 607 (Mo.App.1993). Therefore, McCracken applies even though that decision was announced while the instant case was on appeal.

      . Murphy interpreted the provisions of former Rule 73.01(c). The provisions of that rule were transferred, in essentially the same form, to Rule 84.13(d) effective January 1, 2000.


author: KAREN KING MITCHELL, Presiding Judge.

text:
    STATE of Missouri, ex rel. FAMILY SUPPORT DIVISION-CHILD SUPPORT ENFORCEMENT, and Tracy L. Stude, Respondents, v. Terry Eugene LANE, Appellant.
    No. WD 70715.
    Missouri Court of Appeals, Western District.
    June 8, 2010.

      Terry Eugene Lane, Lee’s Summit, MO, pro se.
    James F. Kanatzar, Jackson County Prosecuting Attorney, R. Benjamin Winfrey and Raoul C. Stitt, Assistant Prosecuting Attorneys, Kansas City, MO, for Respondent.
    Before Division I: KAREN KING MITCHELL, Presiding Judge, and LISA WHITE HARDWICK and CYNTHIA L. MARTIN, Judges.

      . Following oral argument, we asked that both parties provide this court with additional briefing on the following issues:
      1) Whether and under what circumstances the right to counsel attaches in a civil contempt case;
      2) Whether the right to counsel in fact attached in this case;
      3) Assuming that the right to counsel attached, whether Appellant was ever informed of the full extent of that right; and
      4) Whether Appellant waived any right to counsel.
      Additional briefing was received from both Appellant and Respondent.

   KAREN KING MITCHELL, Presiding Judge.

The State of Missouri, ex rel. Family Support Division — Child Support Enforcement (“Division”), and Tracy L. Stude (collectively, “Respondents”) applied to the Circuit Court of Jackson County for a contempt citation against Appellant Terry Eugene Lane, for failure to pay child support. On November 18, 2008, Commissioner Patrick Campbell held a hearing on Respondents’ application. At the hearing, the Commissioner found Lane to be in contempt. On January 29, 2009, the Commissioner entered a written order, finding Lane in contempt and remanding him to the department of corrections, but staying the execution of the judgment on the condition that he pay $50 a month to purge his contempt. The same day, the circuit court, the Honorable Christine Sill-Rogers presiding, entered judgment against Lane, adopting Commissioner Campbell’s findings. On February 27, 2009, Lane filed a notice of appeal, challenging the January 29, 2009 order. On April 7, 2009, the Commissioner remanded Lane to the Jackson County Department of Corrections for failure to comply with the terms of the court’s stay of execution. We reverse and remand.

Facts and Procedural Background

On September 26, 1991, the State of Kansas, ex rel. Secretary, Department of Social and Rehabilitation Services, and Tracy L. Meredith, as the next friend of her child, filed a petition for paternity and child support against Lane in the Circuit Court of Jackson County. On January 28, 1992, a sheriffs return of service and an affidavit of service were filed in the circuit court, affirming that, on that same date, Lane was personally served with a copy of the summons and a copy of the petition. On April 28,1992, the circuit court entered a default judgment for paternity and child support, finding Lane to be the natural father of Stude’s child and ordering Lane to make child support payments of $146.00 per month.

On January 11, 2008, the Respondents filed an application for a contempt citation against Lane for failure to pay child support as required by the 1992 default judgment. On November 18, 2008, the Commissioner held a hearing on the application for contempt. There, Lane argued that he was not in contempt because he was not the father of Stude’s child and because he was not served with the petition for paternity and child support.

The Commissioner found that there was insufficient evidence to overcome the presumption that Lane had been served in the underlying action. Then, the Commissioner found that Lane willingly violated the child support judgment and was therefore in contempt. The Commissioner established a $35,498.00 purge amount and remanded Lane to the custody of the department of corrections, but he stayed execution of the judgment (“Stay of Execution”), upon the condition that Lane pay $50.00 to a trust account every month beginning December 15, 2008, and upon the fifteenth of every month thereafter. At the hearing, the Commissioner stated as follows:

The Court finds that — that on multiple prior occurrences that the Court has had conversations with Mr. Lane and has advised him of his right to have an attorney, and that Mr. Lane has appeared in person without an attorney here today, and that by his actions has waived his right to an attorney.

However, although the record does reflect that the Commissioner had previously advised Lane that he had a right to an attorney, the record does not demonstrate that the Commissioner (or anyone else) informed Lane that he had a right to have counsel appointed if he could not afford counsel. Rather, the Commissioner told Lane that consulting an attorney “is totally in your hands” and stated that Lane should consider whether the investment in a lawyer would be wise.

On January 29, 2009, the Commissioner entered a written order reflecting his oral pronouncements from the bench, and the circuit court entered judgment, adopting the Commissioner’s findings.

Lane made no payments. On February 27, 2009, Lane filed a notice of appeal from the January 29, 2009 order. At a hearing on April 7, 2009, the Commissioner lifted the Stay of Execution and remanded Lane to the Jackson County Department of Corrections because Lane had refused to comply with the Stay of Execution’s terms. Lane informed the Commissioner that he was unwilling to pay as ordered because he felt his rights had been violated. Specifically, Lane stated: “[T]he State didn’t appoint me a lawyer, you know what I’m saying? I asked for one. You didn’t appoint me a lawyer.” The Commissioner did not respond to this statement.

The Commissioner set bond at $35,498.00, but it was subsequently lowered to $200.00. Lane posted bond on April 27, 2009, and the circuit court reinstated the Stay of Execution on June 25, 2009.

Standard of Review

In a court-tried case, our standard of review is that explained in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Martin v. Dir. of Revenue, 248 S.W.3d 685, 687 (Mo.App. W.D.2008). Accordingly, we will affirm the circuit court’s judgment unless (1) it is against the weight of the evidence; (2) it is not supported by substantial evidence; or (3) the circuit court misstated or misapplied the law. Id.

Legal Analysis

On appeal, Lane argues that his due process rights were violated and that he was deprived of his right to a “meaningful defense.”

1. Due Process

Under the Sixth Amendment to the United States Constitution, the accused has a right to counsel at all critical stages of a criminal proceeding, United States v. Wade, 388 U.S. 218, 224-25, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), in which jail time is actually imposed. Argersinger v. Hamlin, 407 U.S. 25, 40, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).

The right to counsel exists in state, in addition to federal, proceedings, by virtue of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Gideon v. Wainwright, 372 U.S. 335, 344-45, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). For the purposes of triggering a defendant’s right to counsel under the due process clause, the distinction between a “criminal” and a “civil” proceeding is irrelevant if the outcome of the civil proceeding is imprisonment. Walker v. McLain, 768 F.2d 1181, 1183 (10th Cir.1985) (“The right to counsel, as an aspect of due process, turns not on whether a proceeding may be characterized as ‘criminal’ or ‘civil,’ but on whether the proceeding may result in a deprivation of liberty.”).

As noted above, Lane argues that his due process rights were violated and that he was deprived of his right to a “meaningful defense.” Although Lane did not brief the specific issue of his due process right to counsel, we may, within our discretion, and on our own initiative, address issues that affect a defendant’s federally mandated constitutional rights. State v. Johnson, 628 S.W.2d 904, 907 (Mo. App. E.D.1982). See also State v. Puckett, 230 Kan. 596, 640 P.2d 1198, 1201 (1982) (“[A]lthough ordinarily an appellate court will not consider an issue which has not been raised in the trial court or which has not been raised by the parties on appeal, the court does have the power to do so in exceptional circumstances, where consideration of the new issue is necessary to serve the ends of justice or to prevent a denial of fundamental rights.”). The right to counsel is such a right. Gideon, 372 U.S. at 344-45, 83 S.Ct. 792. Lane cannot be said to have waived his right to counsel because the record does not reflect that he was ever advised that he had a right to have counsel appointed for him should he be found to be indigent. Walker, 768 F.2d at 1185. Moreover, assuming the right to counsel has attached, a complete denial of the right (as opposed to a denial of the right where the defendant was provided with counsel, but counsel was incompetent) constitutes reversible error irrespective of whether the violation caused prejudice. Rose v. Clark, 478 U.S. 570, 577-78, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986) (disapproved of on another ground in Yates v. Evatt, 500 U.S. 391, 402-03 n. 8, 111 S.Ct. 1884,114 L.Ed.2d 432 (1991)).

2. The Right to Counsel as Applied to Civil Contempt

Except for cases of direct contempt, where the courts have the inherent authority to maintain the order, safety, and/or integrity of the courtroom and the judicial process by ordering contemnors imprisoned immediately, the circuit court, in civil contempt actions, must either (1) predetermine that the offense is of insufficient gravity to warrant jail time; or (2) advise the defendant that he has the right to be represented by counsel and that, if found to be indigent, he has the right to have counsel appointed. Smith v. Kintz, 245 S.W.3d 257, 260 (Mo.App. E.D.2008); Hunt v. Moreland, 697 S.W.2d 326, 329-30 (Mo.App. E.D.1985).

In the latter case, the circuit court does not have the statutory authority to compel the public defender to represent the defendant in a civil action, State ex rel. Sterling v. Long, 719 S.W.2d 455, 455 (Mo. banc 1986); Albers v. Koffman, 815 S.W.2d 484, 485 (Mo.App. W.D.1991); however, the circuit court has the inherent authority to appoint members of the bar to represent the defendant. See State ex rel. Shaw v. Provaznik, 708 S.W.2d 337, 340 (Mo. App. E.D.1986) (noting that the inherent power to appoint counsel exists but holding that such power cannot be used to appoint a public defender in his or her capacity as public defender). When neither the state legislature nor the subject county has provided a mechanism for the defense of civil contempt actions, see Albers, 815 S.W.2d at 485, the court’s inherent power to appoint counsel appears to be the only mechanism by which an indigent defendant, facing actual imprisonment in a civil case, can be afforded his constitutionally guaranteed right to counsel. The court must use that power when the right to due process requires it. U.S. Const, amend. XIV.

Here, the Commissioner informed Lane that he had a right to counsel and advised him to consult an attorney. However, the Commissioner did not inform Lane that the court would appoint an attorney for him if he could not afford one. Under these circumstances, Lane’s right to due process prior to incarceration was not met. Argersinger, 407 U.S. at 40, 92 S.Ct. 2006; Hunt, 697 S.W.2d at 329-30. Instead, the court should have either (1) predetermined that Lane’s failure to pay child support would not result in jail time; or (2) advised Lane that he had a right to counsel and that, if he were found to be indigent, counsel would be appointed unless Lane chose to waive his right to counsel. Hunt, 697 S.W.2d at 329-30.

Moreover, the State does not argue that this was a case of “direct contempt,” where courts may immediately order a contemnor imprisoned in order to protect the order, safety, and/or integrity of the courtroom or judicial process, see id., and we find nothing in the record that would indicate that Lane committed direct contempt. Direct contempt occurs in the immediate presence of the court or so near as to disrupt the court’s proceedings. Smith v. Pace, 313 S.W.3d 124, 129-31 (Mo. banc 2010). The court may punish direct contempt summarily if the judge actually witnessed the conduct constituting contempt. Id.

Here, the conduct constituting contempt — Lane’s failure to pay child support — occurred outside the presence of the court. The Commissioner advised Lane in advance that jail time would be imposed if Lane refused to make payments pursuant to the Stay of Execution. When Lane did not do so and indicated at the hearing that he would continue to refuse to do so, the Commissioner remanded him to the custody of the department of corrections. There was no immediate danger to the order, safety, or integrity of the courtroom or the judicial process, apart from the disrespect of the court’s instructions that is inherent to any contempt citation.

Thus, under the circumstances of this case, the circuit court could not impose actual imprisonment absent either (1) appointment of counsel; (2) Lane’s knowing and intelligent waiver of the right to counsel; or (3) a finding that Lane is not indigent. Argersinger, 407 U.S. at 40, 92 S.Ct. 2006; Hunt, 697 S.W.2d at 329-30. As such, we find that the circuit court misapplied the law. Murphy, 536 S.W.2d at 32.

Accordingly, we reverse and remand for proceedings consistent with this opinion.

LISA WHITE HARDWICK and CYNTHIA L. MARTIN, JJ., concur.

      . On appeal from a court-tried case, we review the facts in the light most favorable to the judgment. 'Wallace v. Ferreira, 830 S.W.2d 571, 573 (Mo.App. W.D.1992).

      . Although the record is silent on this point, we assume that Tracy L. Meredith is Respondent Tracy L. Stude.

      .The record contains no explanation regarding why the application for contempt was not filed earlier.

      . Lane filed his notice of appeal on February 27, 2009, appealing from the January 29, 2009 order, the execution of which was suspended at the time he filed his notice of appeal. A judgment for contempt does not become final until it is enforced. In this case, the order became final when the stay was lifted and actual imprisonment was imposed. Metson v. Melson, 292 S.W.3d 375, 378-79 (Mo.App. W.D.2009). Thus, Lane’s notice of appeal was filed prematurely. However, "[i]n any case in which a notice of appeal has been filed prematurely, such notice shall be considered as filed immediately after the time the judgment becomes final for the purposes of appeal.” Rule 81.05(b). Thus, Lane's notice of appeal is deemed filed immediately after actual imprisonment was imposed. Respondents do not contend that the court’s reentry of the stay, subsequent to Lane’s incarceration, renders this appeal moot, and we therefore address the merits.

      . There is no substantial evidence in the record on appeal to support the Commissioner’s finding that Lane waived his right to counsel by his actions. Any waiver of the right to counsel must be made knowingly and intelligently. State v. Black, 223 S.W.3d 149, 153 (Mo. banc 2007). Again, there is nothing in the record that indicates that Lane was ever informed that, if indigent, he had the right to have counsel appointed. Respondent, in its additional briefing, was unable to cite to anything in the record that demonstrates that Lane was advised of his right to appointed counsel or that indigency was ever evaluated. Under these circumstances, we cannot find a knowing and intelligent waiver of Lane’s right to counsel. Walker, 768 F.2d at 1185.

      . We note that the rule we apply today represents the majority view, see Mead v. Batchlor, 435 Mich. 480, 460 N.W.2d 493, 499 (1990) ("Our review indicates that every federal circuit court of appeals confronting the issue now before us has concluded that the Due Process Clause of the Fourteenth Amendment at least requires that an indigent defendant in a nonsupport proceeding may not be incarcerated if he has been denied the assistance of counsel.”), but that a minority position exists that would hold that the right to counsel does not necessarily apply to civil contempt actions, even when actual imprisonment is imposed. See, e.g., Rodriguez v. Eighth Judicial Dist. Court, 120 Nev. 798, 102 P.3d 41, 48 (2004). We agree with the approach taken by the Eastern District of this court because it is in harmony with the "actual imprisonment” guidepost established by the U.S. Supreme Court in criminal cases, see Argersinger, 407 U.S. at 40, 92 S.Ct. 2006, and, like the court in Walker, 768 F.2d at 1183, we see no rational distinction between a "civil” case and a "criminal” case when the result in each is actual imprisonment. However, given the absence of direct authority from this district of the court of appeals, the Missouri Supreme Court, or the U.S. Supreme Court, the circuit court’s judgment, though it must be reversed, is understandable.

      . For criminal matters, it is the public defender who initially determines whether a defendant is indigent. § 600.086.3. Since the public defender has no role under these circumstances, Albers, 815 S.W.2d at 485, the court will have to conduct its own inquiry when the defendant claims indigence. On remand, Lane, should he claim indigence, will have the burden of persuading the court that he cannot afford an attorney. Cf. § 600.086.6. We recognize that the case may be rare that a defendant has the ability to purge his contempt but does not have the ability to hire an attomey, but, at a minimum, Lane should be given the opportunity to make this showing.


author: GLENN A. NORTON, Presiding Judge.

text:
    Joan DAMBACH as substituted party for Alice Barone, Appellant, v. DEPARTMENT OF SOCIAL SERVICES, FAMILY SUPPORT DIVISION, Respondent.
    No. ED 92942.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 8, 2010.

      A. Melissia Riddle, Chesterfield, MO, for Appellant.
    Gregory S. Young, Cape Girardeau, MO, for Respondent.
   OPINION

GLENN A. NORTON, Presiding Judge.

Joan Dambach (“Daughter”), as substituted party for Alice Barone (“Claimant”), appeals the decision of the Missouri Department of Social Services, Family Support Division (the “Division”), as affirmed by the circuit court, rejecting Claimant’s application for Medical Assistance Vendor (“Medicaid”) benefits. We reverse and remand.

I. BACKGROUND

Following a fall at the age of 89, Claimant was discharged from a rehabilitation center into the care of Daughter. Claimant’s health care providers informed Daughter that due to Claimant’s numerous health problems she could not continue to live alone. Claimant was unable to cook for herself, bathe herself, feed herself, use the restroom unassisted, or ambulate without assistance. In addition to her physical limitations, Claimant was diagnosed with Alzheimer’s disease and depression.

At the time Claimant was discharged into Daughter’s care, Daughter and her husband relied on Daughter’s income and could not afford for her to quit work in order to care for Claimant. Daughter explained this to Claimant. Claimant, however, threatened to commit suicide if she were placed in a nursing facility. Claimant told Daughter she would rather pay Daughter to live in her home than to pay a nursing home. Daughter decided to quit her job and provide personal care and support for Claimant. Daughter and Claimant orally agreed that Daughter could use Claimant’s money to help Daughter afford to take Claimant into her home. Upon moving in with Daughter, Claimant gave Daughter power of attorney over her finances.

Daughter charged Claimant a daily rate for room, board, personal care, meals and transportation. The rate charged by Daughter was far below the daily rate for skilled nursing care. Daughter hired an attorney to prepare legal documents entitled “Statements [of] Services Rendered” enumerating the services Daughter provided to Claimant from August 2005 through October 2006. Daughter, as Claimant’s power of attorney, wrote checks to herself from Claimant’s assets in payment of the Statements of Services Rendered. Claimant paid Daughter a total of $14,550 for services provided from March through October 2006. Daughter reported all the income received from Claimant on her 2006 tax returns.

On October 25, 2006, Claimant suffered another fall and was admitted to the hospital. Thereafter, Claimant was admitted to a nursing home. Claimant was on private pay at the nursing facility until her funds reached below $999.00, at which point an application for Medicaid was submitted. Claimant’s application was rejected on the basis that Claimant had made a transfer of $14,550 to Daughter for personal care services rendered between March 2, 2006, and October 2, 2006. As a result of this transfer, the Division determined Claimant was ineligible for Medicaid through June 20, 2007. Following a hearing, the Director of the Division issued a decision affirming the rejection of Claimant’s application on the basis that the transfer of assets to Daughter was made without fair and valuable consideration.

On February 18, 2008, Claimant died and Daughter was substituted in this action. The circuit court affirmed the decision of the Division and this appeal followed.

II. DISCUSSION

In her sole point relied on, Daughter argues the Division erred in finding Claimant’s transfer of assets to Daughter in exchange for personal care services rendered her ineligible for Medicaid assistance. We agree.

A. Standard of Review and Relevant Law

On appeal from the judgment of the circuit court affirming an administrative agency’s ruling, we review the decision of the agency. Versatile Management Group v. Finke, 252 S.W.3d 227, 231 (Mo.App. E.D.2008). Our review is governed by section 536.140.2 RSMo 2000 and is limited to a determination of whether the agency’s decision:

(1) Is in violation of constitutional provisions;
(2) Is in excess of the statutory authority or jurisdiction of the agency;
(3) Is unsupported by competent and substantial evidence upon the whole record;
(4) Is, for any other reason, unauthorized by law;
(5) Is made upon unlawful procedure or without a fair trial;
(6) Is arbitrary, capricious or unreasonable; [or]
(7) Involves an abuse of discretion.

We examine the whole record to determine whether there is sufficient evidence to support the decision. Department of Social Services v. Senior Citizens Nursing Home District of Ray County, 224 S.W.Bd 1, 6 (Mo.App. W.D.2007). We must examine the record in the light most favorable to the Division’s decision and disregard evidence that might support findings different from those of the Division. Reed v. Missouri Department of Social Services, Family Sivpport Division, 193 S.W.3d 839, 841 (Mo.App. E.D.2006). “However, when the agency decision involves the interpretation of law and application of the law to undisputed facts, the court must form its own independent conclusions, and is not bound by the interpretation of the agency.” Id.

Congress established the Medicaid program as Title XIX of the Social Security Act, 42 U.S.C. 1396 et seq. Both Federal and Missouri law provide for coverage for long term nursing facility care. 42 U.S.C. Section 1396a; Section 208.151.1 RSMo Supp.2007. Federal law, however, mandates the denial of Medicaid coverage to applicants who, within 36 months of filing their Medicaid application, “dispose of assets for less than fair market value.” 42 U.S.C. Section 1396p(c)(l)(A). While an improper transfer of assets within the three year period raises a statutory presumption of ineligibility, federal law provides that an applicant may rebut this presumption upon a satisfactory showing that:

(i)the individual intended to dispose of the assets either at fair market value, or for other valuable consideration,
(ii) the assets were transferred exclusively for a purpose other than to qualify for medical assistance, or
(iii) all assets transferred for less than fair market value have been returned to the individual.

42 U.S.C. Section 1396p(c)(2)(C).

B. The Division’s Decision to Reject Claimant’s Application for Medicaid was Unsupported by Competent and Substantial Evidence

In affirming the rejection of Claimant’s application for Medicaid, the Division concluded Claimant failed to meet her burden of showing, by satisfactory evidence, that she intended to dispose of the assets transferred to Daughter either at fair market value or for other valuable consideration. We find this conclusion is unsupported by competent and substantial evidence.

At the administrative hearing in this matter, the Division explained that the sole reason for the denial of Claimant’s Medicaid application was that Claimant and Daughter did not enter into a written agreement for the provision of personal care services. However, at the time Claimant submitted her application for Medicaid, there was no legal requirement that an applicant relying on the existence of a “personal care contract” to rebut the presumption of ineligibility must prove such a contract through a writing. Instead, the federal statute required a consideration of the applicant’s intent in transferring assets during the three year look-back period. Specifically, the statute stated a Medicaid applicant can rebut the presumption of ineligibility that arises due to a transfer of assets by establishing that she “intended to dispose of the assets either at fair market value, or for other valuable consideration.” 42 U.S.C. Section 1396p(c)(2)(C)(i). Thus, we hold it was sufficient for Claimant to establish that she intended to dispose of her assets for valuable consideration by showing she had an oral agreement with Daughter under which Claimant agreed to make monetary payments to Daughter in consideration for Daughter’s provision of personal care services. The evidence clearly established such an agreement existed.

Specifically, the evidence showed Claimant told Daughter she would rather pay Daughter to live with her than to move into a nursing home. The evidence also showed that Claimant instructed Daughter to “use whatever money [Claimant] had” to pay Daughter for providing her room, board and personal care. There was no dispute among the parties that Daughter provided Claimant personal care services enumerated in monthly statements of services rendered. It was also undisputed that Daughter initially charged Claimant $75 per day and later charged Claimant $50 per day for her services. Moreover, Daughter provided as evidence her federal income tax returns which showed that she reported the payments she received in exchange for the care she provided to Claimant as income.

In fact, based upon this evidence, the Division found that “Daughter and Claimant verbally agreed that Daughter could use Claimant’s money to help Daughter afford to take Claimant into Daughter’s home.” The Division also found that “from August 2005 through October 25, 2006, Daughter permitted Claimant to live in her home and provided her extensive personal care services.” Yet, the Division concluded that there was “insufficient evidence that Claimant and Daughter had a definite and specific agreement” and therefore Claimant did not establish she transferred her assets to Daughter for fair and valuable consideration.

The federal statute governing transfers of assets focuses on the claimant’s intent. See 42 U.S.C. Section 1396p(c)(2)(C)(i). In this case, the Division specifically found an oral agreement existed between Claimant and Daughter under which Daughter would provide care to Claimant for far less than it would cost to Claimant to live in a nursing home. In accordance with the Division’s findings and the evidence set forth above, we must conclude that Claimant intended to dispose of her assets for fair and valuable consideration and furthermore that she in fact received fair and valuable consideration for the payments made to Daughter. Accordingly, the Division erred in rejecting Claimant’s application for Medicaid assistance benefits. Point granted.

III. CONCLUSION

Claimant established that she intended to dispose of her assets for fair and valuable consideration, and therefore the circuit court erred in affirming the Division’s decision to reject Claimant’s application for Medicaid benefits. Accordingly, we reverse and remand to the Division with instructions to enter a decision granting Claimant’s application for benefits.

MARY K. HOFF and LAWRENCE E. MOONEY, JJ., concur.

      . All federal statutory references are to the law in effect on January 31, 2007, the date Claimant submitted her application for Medicaid assistance.

      . We note that the Missouri legislature recently enacted a new statute requiring persons who are relying on the existence of a "personal care contract” to rebut the presumption of ineligibility to prove such a contract through a writing. Section 208.213.1 RSMo Supp. 2008. Nevertheless, this requirement did not exist at the time Claimant filed her application for Medicaid.