author: CYNTHIA L. MARTIN, Judge.

text:
    Kim M. EMMONS (n/k/a Kim M. Webb), Respondent, v. Kyle D. EMMONS, Appellant.
    No. WD 71137.
    Missouri Court of Appeals, Western District.
    April 6, 2010.

      Brian Sleeth, Columbia, MO, for respondent.

      Stephen S. Wyse, Columbia, MO, for appellant.
    Before Division Four: THOMAS H. NEWTON, Chief Judge, Presiding, JAMES M. SMART, JR., Judge and CYNTHIA L. MARTIN, Judge.
   CYNTHIA L. MARTIN, Judge.

Kyle Emmons (“Father”) appeals from the trial court’s April 9, 2009 judgment finding him in contempt of court following Kim Emmons’s (“Mother”) motion which alleged that Father was not compliant with the terms of the judgment of dissolution and a subsequent modification of the judgment entered pursuant to a settlement agreement. Father asserts eight points on appeal. Father claims that the trial court erred in: (1) finding the obligation imposed on him to pay college costs in the original decree enforceable, (2) finding that he is obligated to pay college costs for his daughter, (3) finding that an earlier settlement agreement between the parties did not modify his obligation to pay college costs for his daughter, (4) finding that his son provided Father with timely notice each semester that he attended college, (5) denying his motion to abate child support because daughter failed to provide timely notice of college attendance, (6) denying his motion for emancipation of his daughter due to her failure to provide timely notice of college attendance, (7) finding that he owed $10,060 for his daughter’s college costs due his claim that there was a lack of evidence of credible and sufficient accounting, and (8) awarding Mother attorney’s fees. Father’s appeal of the trial court’s April 9, 2009 contempt judgment as reflected in Father’s points one through seven is dismissed. Father’s point eight is denied, and the trial court’s award of attorney’s fees is affirmed.

Factual and Procedural History

The parties’ marriage was dissolved on May 19, 1999. The judgment of dissolution (“Judgment”) included a detailed parenting plan concerning the couple’s two children, a son and a daughter. Pursuant to that plan, the parties share joint legal custody with Mother being the primary physical custodian of the children. Father is to pay child support. The plan also provides that Father will pay the reasonable costs of the children’s college education. On October 19, 2006, the trial court entered a second judgment (“Modified Judgment”) adjusting some of Father’s child support and college tuition obligations relating to the parties’ son pursuant to a settlement agreement entered into to dispose Mother’s first motion for contempt.

On November 18, 2008, Mother filed a first amended motion for contempt (“Contempt Motion”) alleging that Father had willfully failed and refused to comply with the Judgment and the Modified Judgment of the trial court in that Father had failed and refused to pay Mother child support and college tuition. Father filed two pleadings in response to Mother’s Contempt Motion. Father filed one pleading that he titled “Answer.” Father’s other pleading was titled “Motion for Emancipation or, in the Alternative, Motion to Abate Child Support” (“Motion”). The trial court heard evidence on the parties’ motions, then entered its April 9, 2009 Judgment and Order Finding Respondent in Contempt and Order and Warrant of Commitment (“Contempt Judgment”). The Contempt Judgment found Father in contempt and denied Father’s Motion. The Contempt Judgment stated that Father could purge his contempt by paying the unpaid amount determined to be owed to Mother for child support and college expenses. The warrant of commitment was stayed until July 2, 2009. Nothing in the record indicates what, if anything, occurred on or after July 2, 2009, with respect to the warrant of commitment.

On December 16, 2009, the trial court executed a garnishment order against Father in the amount of $18,955.19 to enforce the payment obligations set out in the trial court’s Contempt Judgment. This information is contained in an exhibit submitted to this court by Father, though the exhibit is not a part of the legal file. The record and Father’s exhibit fail to reveal whether Mother has received any payments as a result of the garnishment.

Father filed his notice of appeal from the April 9, 2009 Contempt Judgment on June 8, 2009.

Analysis

Contempt Judgment

Points one, two, three, four, and seven of Father’s appeal contest various findings made by the trial court in the Contempt Judgment. Preliminarily, we address whether the Contempt Judgment is appealable. “A civil contempt order is appealable; but, like other judgments, it must be final before it may be appealed.” Eaton v. Bell, 127 S.W.3d 690, 697 (Mo.App. W.D.2004). “The purpose of a civil contempt order is to compel compliance with the relief granted....” Jones v. Jones, 296 S.W.3d 526, 528 (Mo.App. W.D.2009). A party held in civil contempt has two options: (1) purge himself of the contempt by complying with the trial court’s order, making the case moot and unappealable; or (2) appeal the order, but only after the trial court’s order is enforced by incarceration or otherwise. Lieurance v. Lieurance, 111 S.W.3d 445, 446 (Mo.App. E.D.2003).

Thus, a civil contempt order is not final and appealable until it is enforced. Melson v. Melson, 292 S.W.3d 375, 378 (Mo.App. W.D.2009). There is no right to appeal from an order of civil contempt before it has been enforced. Lieurance, 111 S.W.3d at 446. Enforcement of a contempt order can take the form of imprisonment or the imposition of a fine. Id. The form of enforcement dictates when the contempt order is deemed enforced, and thus when the contempt order becomes final and appealable. Eaton, 127 S.W.3d at 697.

If the enforcement remedy used is imprisonment, the contempt order is not deemed “enforced” until there is actual incarceration pursuant to an order or warrant of commitment. Id. (citing In re Marriage of Crow & Gilmore, 103 S.W.3d 778, 780 (Mo. banc 2003)). Once actual incarceration has occurred, a contemnor is entitled to release on bail pending appeal. Jones, 296 S.W.3d at 529. “[T]he issuance of an order of commitment is [also] suffident to enforce a contempt order.” Eaton, 127 S.W.3d at 698 (citing In re Marriage of Crow, 103 S.W.3d at 781-82). Until the issuance of a warrant of commitment or actual incarceration, however, the contempt order remains interlocutory and unappealable. Id.

In this case, a warrant of commitment was issued in the Contempt Judgment. However, the warrant of commitment was stayed. In Eaton, this court addressed a very similar situation. The trial court sustained a motion for contempt and ordered the contemnor to pay past amounts due. Id. at 694. The trial court committed the contemnor to the county jail, but stayed execution of the commitment and allowed the contemnor to purge the contempt by making monthly payments. Id. We found that staying the execution of the warrant of commitment effectively negated the warrant of commitment. Id. at 698. Because of the stay, the contemnor was not subject to imminent incarceration, and the contempt order “remained a mere coercive threat.” Id. Thus, the contempt order had not been enforced and was not a final, appealable judgment. Id.

We reached a similar conclusion in Melson, 292 S.W.3d at 377, where an order of commitment was issued but execution was stayed to give Father an opportunity to purge contempt. Though the ninety day term of the stay had expired, the trial court had “not taken evidence to determine whether Father ha[d] purged the contempt.” Id. at 379. Thus, we concluded that Father was “not subject to imminent incarceration.” Id. As a result, the contempt order was not a final, appealable judgment. Id.

Father relies on In re Marriage of Crow, where the Supreme Court held that a contempt order was interlocutory and unappealable because the contempt order conditioned incarceration on husband’s failure to purge the contempt. 103 S.W.3d at 780. Though the husband failed to purge, incarceration was never imposed. Id. at 782. Father attempts to draw a meaningful distinction between his case and In re Marriage of Crow, arguing that because his commitment order was not conditioned on his failure to purge, but was instead stayed, the warrant of commitment automatically reverted to an issued warrant of commitment on July 2, 2009. We disagree. Such a conclusion would be contrary to our holdings in Eaton and Melson. There is no practical difference between a stayed and a conditioned warrant of commitment. In either case, the warrant of commitment is essentially negated and presents no imminent threat of incarceration. Unless the contemnor is actually incarcerated on the stayed or conditioned warrant of commitment, or unless the trial court takes evidence to determine whether contempt has been purged and then reissues a warrant of commitment, no “enforcement” has occurred sufficient to render the contempt order final and ap-pealable.

In his reply brief, Father notes that a garnishment order has been issued on behalf of Mother. Father apparently believes the issuance of the garnishment order is evidence that the contempt order is final and appealable. To the contrary, the garnishment order indicates Father is in the process of purging the contempt. In Lieurance, husband was found in contempt for failing to make maintenance payments to wife. 111 S.W.3d at 446. The trial court found the contempt order was moot because husband’s social security benefits had been garnished, resulting in monthly payments to wife. Id. The Eastern District held that because the trial court found the contempt order moot, it was not appealable. Id. In dismissing the appeal, the Eastern District also held that “even if Husband was not fully purged of the contempt, his appeal of this order is premature and not final for purposes of appeal because the enforcement of the contempt order has not been sought by way of incarceration or otherwise.” Id. (emphasis added). Similarly, in this case, the garnishment either renders the Contempt Judgment moot and no longer subject to appeal or leaves unaltered the fact that the Contempt Judgment is not final and appealable as it has not been enforced.

Like the contempt orders in Eaton and Melson, the Contempt Judgment issued a warrant of commitment but stayed the warrant of commitment until July 2, 2009, permitting Father an opportunity to purge his contempt. The stay negated the warrant of commitment. Though July 2, 2009, has clearly passed, the record does not reflect whether the trial court has taken any evidence to determine if Father has purged the contempt. The record does not reflect that a new warrant of commitment has been issued. The record does not reflect that Father has been actually incarcerated as a result of the expiration of the stay of the warrant of commitment. Pursuant to Rule 81.12(c), Father is required to prepare and provide this court with an adequate legal file and record on appeal. “We cannot act as an advocate for the appellant by supplying his argument. ‘An argument should show how the principles of law and the facts of the case interact.’ And, the failure to develop an argument results in our treating the appellant’s point as abandoned.” Boyd v. Boyd, 134 S.W.3d 820, 824 (Mo.App. W.D.2004) (citation omitted). We will not speculate on the facts and arguments that were not asserted. State ex rel. Morgan v. Okoye, 141 S.W.3d 410, 411 (Mo.App. W.D.2004). We necessarily conclude that Father has not demonstrated that he is subject to imminent incarceration. Therefore, Father has not demonstrated that the Contempt Judgment has been enforced. The contempt order is not a final, appealable judgment. Father’s appeal points one, two, three, four, and seven are dismissed.

Father’s Motion

In points five and six of his appeal, Father contends the trial court erred in denying his Motion. Father contends that even if the Contempt Judgment is unappealable, the trial court’s denial of Father’s Motion, where Father sought to abate child support for his daughter and to declare his daughter emancipated, is a final and appealable judgment. We disagree.

Mother’s motion for contempt alleges that Father should be found in contempt for his failure to pay child support and college tuition as required by the Judgment and the Modified Judgment. This related to child support and college tuition owed for the parties’ daughter. In response, Father filed a pleading denominated “Answer” denying most of Mother’s allegations. Father also filed the Motion. The Motion contends, in paragraphs enumerated one through nine,' that Father does not owe college tuition for his daughter because he did not timely receive the notice of her school attendance required by section 452.340.5. Father then prays in paragraph 10 of his Motion that the court find his daughter emancipated and for an abatement of support already paid by him for his daughter since January 12, 2009, on the theory that the daughter’s purported failure to document her status as a full time student would have resulted in his child support obligation ending as of that time. “ ‘The legal character of a pleading is determined by its subject matter and not its designation to the extent that the courts ignore the denomination of a pleading and look to its substance to determine its nature.’ ” Gunter v. City of James, 189 S.W.3d 667, 677 (Mo.App. S.D.2006) (citation omitted). Father’s assertions in the Motion are directly responsive to, and appear intended to contest, Mother’s motion for contempt. We conclude that notwithstanding the “title” of Father’s pleading, Father’s Motion is not an independent motion from which direct appeal is permitted.

Father relies on In re Marriage of Crow, where the Supreme Court held that motions for contempt and to modify are independent from one another and, thus, separate for purposes of appeal. 103 S.W.3d at 783. The present case is distinguishable. Father’s Motion does not seek to modify the Judgment or the Modified Judgment. Rather, Father’s Motion attempts to defend his acknowledged failure to pay court ordered child support and college tuition — and thus to defend the subject matter of Mother’s motion for contempt. The Contempt Judgment makes findings in Mother’s favor and contrary to the arguments advanced in the Motion, consistent with the fact that the Motion amounted to no more that a defense of the motion for contempt. Denial of Father’s Motion did not, therefore, result in a separate, final, appealable order.

Even if we were to review Father’s Motion on the merits, Father would not prevail. The trial court’s denial of the Motion would be reviewed under the standard of review applicable to any other court-tried case. Peine v. Peine, 200 S.W.3d 567, 571 (Mo.App. W.D.2006). “The judgment will be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law.” Id. (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)).

Although Father testified at the hearing that he did not receive timely notice from daughter regarding her college attendance, Mother’s testimony refuted his claim. Mother testified that she always timely provided the required notice documentation to Father by sending it to him or his attorney of record. She further testified that it had been Father’s pattern to claim that he had not received the notices. Mother testified that initially she would request that the school send the information directly to Father, but Father would claim he did not receive it. Then, Mother would get an official copy from the school and mail it to Father, and Father would still deny receiving it. This resulted in Mother using certified mail so that there would be a record of his receipt.

“The trial court is free to disbelieve all, part or none of the testimony of any witness.” In the Interest of C.C., 32 S.W.3d 824, 829 (Mo.App. W.D.2000). The trial court was free to disbelieve Father’s assertion that he did not receive the required notices until they were sent to him by Mother via certified mail. As a result, the trial court’s denial of Father’s Motion is not against the weight of the evidence.

Father’s Motion is not independently ap-pealable. Thus Father’s points five and six address matters that are simply findings contained within the Contempt Judgment. We have already determined that the Contempt Judgment is not a final, appealable order. Father’s appeal points five and six are dismissed.

Attorney’s Fees

In point eight, Father challenges the trial court’s award of attorney’s fees to Mother. Father does not generally contest the trial court’s authority to award attorney’s fees as a part of the Contempt Judgment. Rather, Father claims the evidence did not support the award, as Mother had not yet paid her attorney and, according to Father, had no intention of doing so.

Father again cites In re Marriage of Crow to argue that an attorney’s fees award in a contempt order is independently appealable. In re Marriage of Crow does, indeed, hold that though an award of attorney’s fees in a civil contempt proceeding is within the court’s discretion, the award is “not a portion of the civil contempt order itself which is to solely coerce compliance.” 103 S.W.3d at 782-83. As such, the attorney’s fee award is independently appealable. We will thus address the merits of Father’s point eight.

We note initially that Father’s point eight is wholly deficient under Rule 84.04 in that it fails to explain any legal reason for Father’s claim of reversible error and fails to include a statement of the standard of review in the argument portion of the brief. Though not obliged to do so, we will elect, ex gratia, to address the merits of Father’s point eight.

The trial court had the authority to award Mother attorney’s fees in this matter pursuant to section 452.355.1. The trial court also had the inherent power to award ‘“attorney’s fees in civil contempt cases for willful disobedience of a court order.’ ” Bruns v. Bruns, 186 S.W.3d 449, 453 (Mo.App. W.D.2006) (quoting McNeill v. McNeill, 708 S.W.2d 751, 754 (Mo.App. E.D.1986)). “A trial court’s award of attorney’s fees in a civil contempt action will be reversed only when the trial court has abused its discretion.” Id. (citing Yeager v. Yeager, 622 S.W.2d 339, 343 (Mo.App. E.D.1981)).

Though Father claims that Mother had no intention of paying her attorney and that her attorney had no intention of pursuing Mother for payment, the testimony of Mother’s attorney does not support Father’s contention. Mother’s attorney testified that though Mother had not yet paid him, he was not providing his services pro bono. Father offers no authority for the proposition that a trial court abuses its discretion in awarding attorney’s fees where the fees have not yet been paid, or even where there is an indication that the fees, if not ordered to be paid by the contemnor, will not be collected from the other party. If attorney’s fees are otherwise awardable, the only meaningful inquiry is whether the amount of attorney’s fees awarded is reasonable — a matter Father does not contest.

The trial court did not abuse its discretion. Point eight is denied.

Conclusion

Father’s appeal of the Contempt Judgment is dismissed as the Contempt Judgment is not a final, appealable order. Father’s appeal of the award of attorney’s fees, which is included within the Contempt Judgment, but which is nonetheless independently appealable, is denied. The trial court’s judgment awarding attorney’s fees is affirmed.

All concur.

      . We refer to the language of the parties’ Marriage Settlement and Separation Agreement that was incorporated into the Judgment. We note that legal custody 'may be either "joint” or "sole.” Section 452.375.1(1). Designation of physical custody as "primary” is erroneous. Malawey v. Malawey, 137 S.W.3d 518, 525 (Mo.App. E.D.2004).

      . The settlement agreement primarily addressed son’s emancipation and the resulting modification of the child support amount. Mother’s first motion for contempt was not included in the record on appeal.

      . Points five and six of Father's appeal also contest findings in the Contempt Judgment, but relate specifically to Father's Motion. Because Father argues the denial of his Motion created an independent basis for appeal, we address points five and six separately later in this Opinion.

      . Collection efforts to enforce payment obligations set forth in a contempt order are not “enforcement” mechanisms designed to coerce performance of the contempt order. The only monetary enforcement mechanism designed to coerce performance of a contempt order is a fine. When the remedy of enforcement of a contempt order is a fine, "the contempt order is 'enforced’ when the moving party executes on the fine.” In re Marriage of Crow, 103 S.W.3d at 781. Execution efforts to enforce a coercive fine are distinguishable, however, from execution efforts to enforce the underlying payment obligation giving rise to the contempt order.

      . Interestingly, though Father claims on appeal that the Contempt Judgment became final and appealable on July 2, 2009, when the stay of the warrant of commitment expired, Father filed his notice of appeal on June 8, 2009.

      . All statutory references are to RSMo 2000 as supplemented unless otherwise indicated.

      . We note that all of Father’s points relied on violate Rule 84.04 by failing to include a list of authorities after each point relied on. Many of the points relied on violate Rule 84.04 by failing to explain the legal basis for the claimed error.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Eugene RENFROW, Jr., Michael Renfrow and Linda Kaufman, Appellants, v. James RENFROW, A Married Person and James Renfrow, Personal Representative in the Estate of Eugene K. Renfrow, Sr., Deceased, Respondent.
    No. WD 70981.
    Missouri Court of Appeals, Western District.
    April 6, 2010.
    Daniel S. Simon, Columbia, MO, for appellants.
    Thomas M. Harrison, Columbia, MO, for respondent.
    Before Division Four: THOMAS H. NEWTON, Chief Judge, Presiding, JAMES M. SMART, JR., Judge and CYNTHIA L. MARTIN, Judge.
   ORDER

PER CURIAM:

Eugene K. Renfrow, Jr., Linda Sue Kaufman, and Michael W. Renfrow appeal from the judgment of the Circuit Court of Howard County following a jury verdict finding in favor of James L. Renfrow that the last will and testament of Eugene K. Renfrow, Sr., as well other lifetime transfers, were all valid and enforceable. Appellants contend that the trial court erred in: (1) not granting Appellants’ Motion for Judgment Notwithstanding the Verdict because the Respondent did not overcome the presumption of undue influence; (2) allowing Respondent to open and close the case; (3) not allowing the testimony of Appellants’ expert witness Bonnie Riley; (4) not removing juror no. 1 for cause; and (4) not dismissing the entire jury and em-panelling a new jury because juror no. 17 made an improper and inflammatory remark. We affirm. 84.16(b).


author: JOSEPH M. ELLIS, Judge.

text:
    STATE of Missouri, ex rel., John P. TANNER, D.D.S., M.D., Relator, v. The Honorable W. Stephen NIXON, Judge of the 16th Judicial Circuit Court, Respondent.
    No. WD 71240.
    Missouri Court of Appeals, Western District.
    April 13, 2010.

      Richard T. Merker, Esq., for Relator.
    Larry Delano Coleman, Esq., for Respondent.
    Before Writ Division: JOSEPH M. ELLIS, Presiding Judge, JAMES M. SMART, JR., Judge and ALOK AHUJA, Judge.
   JOSEPH M. ELLIS, Judge.

John P. Tanner, D.D.S., M.D. (Relator), filed a petition for a writ of mandamus, seeking to compel the Honorable W. Stephen Nixon (Respondent), Judge of the Sixteenth Judicial Circuit Court of Missouri, to dismiss a personal injury action filed by Tiffany Robinson (Plaintiff) for her failure to timely file a health care affidavit as required by § 538.225. On August 24, 2009, we issued our preliminary writ of mandamus, which we now make absolute.

On October 14, 2008, Plaintiff filed a personal injury petition for damages, alleging that Relator, an oral surgeon, was negligent when he treated her for an extraction of third molars. Plaintiff alleged that she suffered multiple injuries, including peeling of her skin, skin cracking and swelling, and discoloration of her skin. On November 7, 2008, Relator filed his answer to Plaintiffs petition in which he asserted, inter alia., that the petition failed to state a claim upon which relief could be granted. On the same date, Relator also filed a motion to dismiss, with suggestions in support thereof, contending that Plaintiff failed to comply with the requirements of § 538.225. That section states:

1. In any action against a health care provider for damages for personal injury ... the plaintiff or the plaintiffs attorney shall file an affidavit with the court stating that he or she has obtained the written opinion of a legally qualified health care provider which states that the defendant health care provider failed to use such care as a reasonably prudent and careful health care provider would have under similar circumstances and that such failure to use such reasonable care directly caused or directly contributed to cause the damages claimed in the petition.
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
5. Such affidavit shall be filed no later than ninety days after the filing of the petition unless the court, for good cause shown, orders that such time be extended for a period of time not to exceed an additional ninety days.
6. If the plaintiff or his attorney fails to file such affidavit the court shall, upon motion of any party, dismiss the action against such moving party without prejudice.

Section 538.225.

On December 22, 2008, the Honorable John R. O’Malley sustained Relator’s unopposed motion to dismiss and found that Plaintiff failed to file a health care affidavit within ninety days, as required by statute. Thereafter, Plaintiff filed a .motion to alter or amend the judgment, asserting that it should be set aside because the time permitted by statute for filing a health care affidavit had not run at the time Judge O’Malley entered his dismissal of the petition.

On April 16, 2009, Respondent sustained Plaintiffs motion and set aside the December 22nd judgment. Relator filed a renewed motion to dismiss, claiming that Plaintiff had still not filed a health care affidavit and the ninety-day period for doing so had now long since expired. Respondent overruled the motion on May 14, 2009. Thereafter, Relator filed this petition for a writ of mandamus. We issued a preliminary writ on August 24, 2009, and Respondent timely filed an answer.

“A writ of mandamus is proper where it is necessary to prevent injustice or great injury.” State ex rel. Joyce v. Baker, 141 S.W.3d 54, 56 (Mo.App. E.D.2004). The party seeking the writ must allege and prove a specific, clear, and unequivocal right to the thing claimed. Id. “Mandamus will issue from this Court to a circuit court where the latter refuses to act in respect to a matter within its jurisdiction when it is its duty to act, that is, when its refusal is, in effect, a failure to perform a duty within its jurisdiction.” State ex rel. Stewart v. McGuire, 838 S.W.2d 516, 518 (Mo.App. S.D.1992).

Respondent first contends that we lack jurisdiction over this petition, citing article V, section 3 of the Missouri Constitution, which generally addresses the jurisdiction of the Supreme Court of Missouri. However, our jurisdiction derives from article V, section 4, which states that “[t]he supreme court and districts of the court of appeals may issue and determine original remedial writs.” Accordingly, we have jurisdiction over this petition for writ of mandamus. McGuire, 838 S.W.2d at 517-18.

Respondent next argues that we should not issue a writ of mandamus because a health care affidavit is not required in res ipsa loquitur cases. He cites Sides v. St. Anthony’s Medical Center, 258 S.W.3d 811 (Mo banc. 2008), as support for his contention. Contrary to Respondent’s assertion, however, the Sides Court expressly held that a health care affidavit was required in a medical malpractice case based on res ipsa loquitur. Id. at 820. The primary issue in Sides was whether expert testimony could be used to support a res ipsa loquitur claim in medical malpractice. Id. at 814. The Court held that a medical malpractice case can proceed under a res ipsa loquitur theory where the plaintiff offers a medical expert opinion that plaintiffs injury would not have occurred in the absence of negligence by the defendant. Id. at 819. The defendants in Sides alternatively argued that, even it was otherwise appropriate to apply a res ipsa loquitur theory in a medical malpractice case, “use of that theory is prohibited by section 538.225.” Id. at 820. Defendants claimed that § 538.225.1 “requires that only a specific negligence theory can be brought against a medical malpractice defendant.” Id. The Court rejected the argument, stating:

[The defendants] cite simply to the fact that the legislature has required proof that some act of defendant cause or contributed to cause the injury. This is required to be shown in res ipsa loqui-tur cases also, however, and provides no basis on which to determine that the legislature would disapprove of the use of res ipsa loquitur in malpractice cases.

Id. Thus, Sides does not support Respondent’s argument that a plaintiff proceeding under a res ipsa loquitur theory need not submit a healthcare affidavit under § 538.225.

Moreover, in Budding v. SSM Healthcare System,, 19 S.W.3d 678, 680-81 n. 4 (Mo. banc 2000), the Court rejected dicta in Mahoney v. Doerhoff Surgical Services, Inc. 807 S.W.2d 503, 508 (Mo. banc 1991), suggesting that health care affidavits were not required in medical malpractice cases relying on the res ipsa loquitur theory. The Budding Court expressly declared that “nothing in sec. 538.225 exempts a plaintiff from filing an affidavit who shows ‘that the medical malpractice ... is of that untypical kind that does not require proof of standard of care by expert opinion.” Id. at 680-81 n. 4; See also, Gaynor v. Washington University, 261 S.W.3d 650, 654 (Mo.App. E.D.2008) (“Budding held that section 538.225.1 did not exempt from its affidavit requirement a medical malpractice case that does not require proof of the standard of care by expert opinion. A medical malpractice case based on res ipsa loquitur does not require ... testimony on the standard of care. Accordingly, section 538.225.1 does not exempt medical malpractice actions against health care providers in which proof is based on res ipsa loquitur.” (Citations omitted)).

The requirement in § 538.225 is clear and unambiguous that “in any action against a health care provider for personal injury” a plaintiff must file an affidavit within ninety days of filing a petition. (Emphasis added.) The sanction for noncompliance is also clear — “the court shall, upon motion of any party, dismiss the action.” § 538.225.6 (emphasis added). “When a statute mandates that something be done by providing that it ‘shall’ occur and also provides what results ‘shall’ follow a failure to comply with the statute, it is clear that it is mandatory and must be obeyed.” SSM Health Care St. Louis v. Schneider, 229 S.W.3d 279, 281 (Mo.App. E.D.2007).

Although the December 22, 2008 judgment was premature because ninety days had not yet passed for the Petitioner to file an affidavit, when Respondent set aside the December 22nd judgment on April 16, 2009, Plaintiff had still not filed an affidavit and the ninety-day period had expired. Moreover, Plaintiff had still not filed an affidavit at the time Respondent denied Relator’s renewed motion to dismiss on May 14, 2009 (or for that matter by the time this case was argued). There is no dispute that the Plaintiff failed to submit her affidavit within ninety days after filing her petition. Under § 538.225.6, therefore, the trial court was required to dismiss Plaintiffs action without prejudice. See, e.g., White v. Tariq, 299 S.W.3d 1, 5 (Mo.App. E.D.2009). By failing to do so, the Respondent has, “in effect, [failed] to perform a duty within [his] jurisdiction.” McGuire, 838 S.W.2d at 518.

For the foregoing reasons, the preliminary writ of mandamus is made absolute, and Respondent is directed to enter an order dismissing Plaintiffs cause of action against Relator without prejudice.

All concur.

      . All statutory references are to RSMo Cum. Supp.2005, unless otherwise indicated.

      . The suggestion of res ipsa loquitur is based on the Mahoney Court’s citation to Null v. Stewart, 78 S.W.2d 75, 78-79 (Mo.1934). 807 S.W.2d at 508.

      . Five years after the Supreme Court's decision in Budding, the legislature amended § 538.225 with no change to the statute that would change its application over res ipsa loquitur cases. "When, after a statute has been construed by a court of last resort, the legislature re-enacts it, carries it over without change, or re-incorporates the exact language previously construed, we presume that the legislature knew of and adopted the judicial construction given to that language.” Gaynor v. Washington Univ., 261 S.W.3d 650, 653-54 (Mo.App. E.D.2008).

      . In the 2005 amendments to § 538.225, the legislature made dismissal mandatory for failure to file a health care affidavit. The previous language, found in RSMo 2000, stated "[i]f the plaintiff or his attorney fails to file such affidavit the court may, upon motion of any party, dismiss the action against such moving party without prejudice.” § 538.225.5, RSMo 2000 (emphasis added).


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Henry L. CARMICAL, Appellant.
    No. ED 92894.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 13, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 1, 2010.

      Nancy A. McKerrow, Office of the Missouri Public Defender, Columbia, MO, for Appellant.
    Chris Koster, Attorney General, Daniel N. McPherson, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before: KURT S. ODENWALD, P.J., GEORGE W. DRAPER, III, J., and GLENN A. NORTON, J.
   ORDER

PER CURIAM.

Henry Carmical (Defendant) appeals from his conviction, following a jury trial, of one count each of murder in the second degree, in violation of Section 565.021.1(2), RSMo 2000 , burglary in the second degree, in violation of Section 569.170, and misdemeanor stealing, in violation of Section 570.030. The trial court sentenced Defendant to life imprisonment on the murder count, consecutive with a term of seven years of imprisonment on the burglary charge and one year of imprisonment on the stealing charge. We affirm.

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would serve no jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 30.25(b).

      . All subsequent statutory citations are to RSMo 2000, unless otherwise indicated.


text:
    Reginald D. SILVERS, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70923.
    Missouri Court of Appeals, Western District.
    April 20, 2010.
    Susan L. Hogan, Kansas City, MO, for Appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for Respondent.
    Before JAMES EDWARD WELSH, P.J., MARK D. PFEIFFER, and KAREN KING MITCHELL, JJ.
   ORDER

PER CURIAM:

Reginald D. Silvers appeals the circuit court’s judgment denying his Rule 29.15 motion for post-conviction relief after an evidentiary hearing. We affirm. Rule 84.16(b).


text:
    Carla Kay CLAY, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70592.
    Missouri Court of Appeals, Western District.
    May 11, 2010.

      Timothy J. Forneris, St. Louis, MO, for appellant.
    Shaun J. Mackelprang and James B. Farnsworth, Jefferson City, MO, for respondent.
    Before Division One: KAREN KING MITCHELL, Presiding Judge, LISA WHITE HARDWICK, Judge and CYNTHIA L. MARTIN, Judge.
   CYNTHIA L. MARTIN, Judge.

Carla Clay appeals the motion court’s judgment denying her Rule 29.15 motion for post-conviction relief after an eviden-tiary hearing. Clay was found guilty of two counts of first degree murder and sentenced to two terms of life imprisonment without the possibility of parole. Clay contends that the trial court erred in denying her motion for post-conviction relief because trial counsel was ineffective for failing to: (1) object to expert witness testimony; (2) file a motion to sever the two counts of murder in the first degree; and (3) depose Clay’s father. We affirm.

Factual and Procedural History

On June 8, 2003, police officers received a phone call from Clay’s home that a baby was not breathing. When the officers arrived, Clay was crying nearby. Clay told the officers that she had put her son, Randy, to bed the night before and when she checked on him the next morning, she found him lying on his back, arms extended, with a white, twenty-six inch teddy bear lying on top of him. Specifically, the bear’s mouth was on Randy’s face. The next day, the Child Fatality Review Board (CFRB) ruled the manner of death an accident, determining that the teddy bear had a collapsing nose that could form a three to five inch pocket over the face of the child. At the time of his death, Randy was 2 1/2-months old. Randy’s pediatrician, Dr. Sayonara Mato, was out of town at the time of Randy’s death and did not participate in the investigation of his death. When Dr. Mato learned of Randy’s death, she was suspicious about the circumstances.

One year later, on June 21, 2004, police officers were again called to Clay’s home because an infant was not breathing. When the officers arrived at the house, three women were outside and “fairly hysterical.” Clay’s daughter, Audrey, was limp, her eyes were closed, her skin was pale, her lips were blue, and she had no pulse. Efforts to resuscitate Audrey lasted for almost an hour but failed. Audrey’s pediatrician, Dr. Mato, was called to the hospital. Dr. Mato noticed bruising on the bridge and tip of Audrey’s nose. A search of the house was conducted and some pacifiers were seized. One green pacifier was still in its packaging. It was determined that Audrey’s death was caused by mechanical asphyxia using an object, which obstructed her nose and mouth for a period of time causing lack of oxygen supply to the body and, ultimately, death. At the time of her death, Audrey was 1 1/2-months old.

Approximately one month later, the coroner in Randy’s death filed an affidavit to change the manner of death on Randy’s death certificate to “homicide.” Clay was charged with two counts of first degree murder. After a jury trial, Clay was found guilty of both counts and was sentenced to two terms of life imprisonment without eligibility for probation or parole. Clay’s convictions were affirmed by this court on direct appeal. Clay, 225 S.W.3d at 463. Clay filed a Rule 29.15 motion for post-conviction relief. Appointed counsel then filed an amended Rule 29.15 motion. The trial court denied Clay’s motion after an evidentiary hearing. Clay appeals.

Standard of Review

Our review of the denial of Clay’s Rule 29.15 motion is “limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous.” Rule 29.15(k); Peterson v. State, 149 S.W.3d 583, 585 (Mo.App. W.D.2004). “The motion court’s findings and conclusions are clearly erroneous if, after a review of the entire record, we are left with the definite and firm impression that a mistake has been made.” Peterson, 149 S.W.3d at 585.

Analysis

Clay must prove by a preponderance of the evidence the two-pronged Strickland test in order to establish ineffective assistance of counsel: “(1) that counsel’s performance did not conform to the degree of skill, care, and diligence of a reasonably competent attorney; and (2) that [Clay] was thereby prejudiced.” Haskett v. State, 152 S.W.3d 906, 909 (Mo.App. W.D.2005) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). If Clay fails to demonstrate either prong of the Strickland test, her post-conviction motion will be denied. Id.

To establish the performance prong, Clay bears a heavy burden and must overcome a strong presumption that her counsel provided competent assistance. Deck v. State, 68 S.W.3d 418, 425 (Mo. banc 2002). Clay must demonstrate “ ‘that counsel’s representation fell below an objective standard of reasonableness.’” Id. at 426 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). To demonstrate this, Clay “must identify specific acts or omissions of counsel that resulted from unreasonable professional judgment, and the ‘court must determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professional competent assistance.’ ” Id. (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052). We judge the reasonableness of counsel’s conduct based on the facts of each case. Williams v. State, 205 S.W.3d 300, 305 (Mo.App. W.D.2006).

To establish prejudice, Clay must show that there is a reasonable probability that but for her counsel’s ineffectiveness, the result would have been different. Patterson v. State, 110 S.W.3d 896, 900 (Mo.App. W.D.2003). “ ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Id. (citations omitted). A showing of error that could have a conceivable effect on the outcome is insufficient. Williams, 205 S.W.3d at 305.

Point I

In Clay’s first point on appeal, Clay argues that the trial court clearly erred in denying post-conviction relief because trial counsel was ineffective for failing to object to Dr. Mato’s expert opinion that a teddy bear falling on Randy’s face did not explain his death. Clay contends there was insufficient foundation for this opinion because Dr. Mato only saw a photograph of the bear, never physically saw the bear, and did not know its weight or composition. Clay claims this ineffective assistance of counsel prejudiced her because the jury “used the evidence of Dr. Mato’s opinion as proof that Randy had to be suffocated because he was sufficiently developed and strong to move his head away from the bear if it has fallen upon him.” The essence of Clay’s claim is, therefore, that but for the absence of a proper foundation objection, the outcome of her trial would have been different. We disagree.

First, we question whether the specific argument raised on appeal has been preserved. In Clay’s motion for post-conviction relief, Clay contends that “counsel failed to object on proper grounds to the admissibility of Dr. Mato’s opinion at trial that Randy was of sufficient physiological development that he could have pushed the bear off his face, had it accidently fallen over on him as the defense claimed.” Later in the post-conviction motion, Clay contends that trial counsel should have spelled out that Dr. Mato had no information with respect to the weight or composition of the bear to permit such an opinion. The trial court found that Dr. Mato described Randy’s progress as excellent and testified that a 2 1/2-month old child should be able to turn its head to either side without trouble. The trial court found that Clay’s post-conviction motion mischaracterized Dr. Mato’s testimony as claiming Randy could have pushed the bear off of his face. Clay has “reframed” her claim of ineffective assistance of counsel on appeal and now contends that trial counsel failed to sufficiently object to the lack of foundation for Dr. Mato’s testimony that Randy was sufficiently developed and strong to move te head away from the bear. The allegation raised on appeal is materially different from the allegation raised in Clay’s post-conviction motion. We do not review claims which were not raised in the post-conviction motion. State v. Gray, 926 S.W.2d 29, 34 (Mo.App. W.D.1996).

Even were we to reach the merits of Clay’s claim, Clay would be unable to sustain her burden to demonstrate ineffective assistance of counsel. It is true that trial counsel’s motion in limine (which claimed Dr. Mato’s testimony was speculative) and trial counsel's objection at trial (which referenced the “previously filed motion in limine to lack of foundation”) were very general. It is also true that on direct appeal, Clay’s claim that there was insufficient foundation for Dr. Mato’s testimony was unsuccessful because this court held that the argument raised on appeal that Dr. Mato had never seen the bear and had no knowledge of its weight was not preserved in Clay’s trial objection. Clay, 225 S.W.3d at 465. Though our finding in Clay might seem to support Clay’s claims of ineffective assistance of counsel, to prove ineffective assistance for failing to properly object, Clay must show that the objection would have been meritorious and that the failure to object substantially deprived her of a fair trial. Mitchem v. State, 250 S.W.3d 749, 755 (Mo.App. W.D.2008). Clay has done neither. Trial counsel is not ineffective for failing to make a nonmeritorious objection. Id. at 755-56. Here, had a specific foundation objection been made at trial, it is unlikely the objection would have been sustained, and/or it is unlikely the foundation necessary to overcome the objection could not have been laid.

Dr. Mato testified in response to cross-examination by Clay’s trial counsel that although she had never seen the actual bear involved in Randy’s death, “I was explained back then you know, the size and the weight of the bear.” Thus, Dr. Mato did have information about the size and weight of the bear and apparently relied on that information to support her opinion about Randy’s ability to move his head to avoid suffocation from the bear. Though trial counsel did not assert a specific foundation objection to Dr. Mato’s testimony, trial counsel did inquire during cross-examination about the very matters Clay now claims as objectionable omissions. That cross-examination yielded testimony from Dr. Mato that is inapposite to Clay’s assumption that a specific foundation objection would have been sustained. We do not believe, therefore, that trial counsel’s failure to more specifically object to Dr. Mato’s testimony constituted ineffective assistance. Dr. Mato’s opinion with respect to Randy’s development was based upon her personal observations as she had been Randy’s treating pediatrician prior to his death. That fact, coupled with her testimony that she had been informed of the size and weight of the bear, suggest that even had an “appropriate” objection with respect to foundation been made, the testimony of Dr. Mato would not have been excluded.

In any event, Clay has not alleged how, even if trial counsel was ineffective in failing to more specifically object to Dr. Mato’s testimony, there is a reasonable probability that the result would have been different. There was other overwhelming evidence of Clay’s guilt which suggests otherwise. Less than three weeks after Audrey died, Clay went out with her sister and some friends. On the way home after a night of drinking, Clay, who was very drunk, started yelling and crying. She screamed, “I killed my babies.” When one of the other passengers asked Clay how her babies had died, Clay replied that she killed her babies, “one with a pillow, one with a teddy bear.” Anderson v. State, 66 S.W.3d 770, 778 (Mo.App. W.D.2002) (where there is overwhelming evidence of guilt, such that it cannot be reasonably said that, but for the challenged actions of trial counsel, the result would be different, the movant suffers no prejudice).

The trial court did not clearly err in denying Clay’s post-conviction motion based upon Clay’s claim of ineffective assistance of counsel due to counsel’s failure to assert a specific foundational objection to Dr. Mato’s testimony. Point one is denied.

Point II

Clay next contends that trial counsel was ineffective for failing to file a motion requesting the trial court sever the two counts of murder in the first degree relating to Randy and Audrey. Clay fails to meet her burden on either prong of the Strickland test.

“Whether to file a motion to sever is part of a counsel’s trial strategy which we will not second guess on appeal.” State v. McNeal, 880 S.W.2d 325, 331 (Mo.App. E.D.1994) (abrogated on other grounds as recognized in State v. Dunn, 889 S.W.2d 65 (Mo.App. E.D.1994); State v. Little, 861 S.W.2d 729, 731 (Mo.App. E.D.1993)). Trial strategy generally does not constitute ineffective assistance of counsel and “ ‘[strategic choices made after a thorough investigation of the law and the facts relevant to plausible opinions are virtually unchallengeable.’ ” Taylor v. State, 126 S.W.3d 755, 759 (Mo. banc 2004) (citations omitted); State v. Tucker, 866 S.W.2d 932, 934 (Mo.App. E.D.1993).

Clay’s trial counsel testified at the post-conviction hearing that the decision not to file a motion to sever counts one and two was a strategic decision. Trial counsel testified the strategy was to use the accidental death determination initially reached by the CFRB with respect to Randy’s death to attack the credibility of the investigation of Audrey’s death. Counsel’s theory was that the murder charge involving Randy’s death was so weak that this would assist an argument challenging the murder charge involving Audrey. Trial counsel’s decision not to sever counts one and two was made after all discovery had been complete and after consideration of the available means for attacking the credibility of the State’s witnesses. The trial court’s judgment on Clay’s post-conviction motion reflects findings consistent with trial i counsel’s testimony, indicating the trial court determined trial counsel’s testimony to be credible. Clay v. State, 297 S.W.3d 122, 124 (Mo.App. S.D.2009) (appellate courts presume the findings of the motion court are correct and defer to the motion court’s determinations of credibility). Clay has not established by a preponderance of the evidence that her trial counsel’s strategic decision constitutes ineffective assistance of counsel.

In any event, Clay presented no evidence (and the trial court so found) that, even had a motion to sever been filed, the trial court would have favorably entertained the motion or would have been found to have abused its discretion had it denied the motion. State v. Davis, 825 S.W.2d 948, 953 (Mo.App. E.D.1992) (no prejudice unless appellant can show that it would have been an abuse of trial court’s discretion to deny severance). Clay has thus failed to establish any prejudice.

The trial court did not clearly err in denying Clay’s post-conviction motion based upon Clay’s claim of ineffective assistance of counsel due to counsel’s failure to file a motion to sever. Point two is denied.

Point III

In Clay’s third point on appeal, Clay contends trial counsel was ineffective for failing to depose Clay’s father, who died prior to trial, to preserve his testimony for trial. We disagree.

To the extent trial counsel intended to call Clay’s father as a witness at trial, that opportunity was lost due to Clay’s father’s death. The evidence suggests that Clay’s father had been ill and bedridden for some time prior to his death. In fact, Clay’s father was ill and bedridden at the time of Audrey’s death. Clay contends that had her father’s testimony been preserved, his testimony would have supported other evidence of the panic and commotion that ensued in the household immediately following the discovery that Audrey was not breathing. Clay’s argument thus presumes that her father’s testimony would have demonstrated a state of mind inconsistent with one who had just suffocated her child to death.

The trial court noted that the decision whether to depose a witness is generally a matter of trial strategy and not the basis for a claim of ineffective assistance of counsel. We agree. See State v. Brittain, 895 S.W.2d 295, 301 (Mo.App. E.D.1995) (“The decisions of trial counsel in terms of investigation are given great deference, and the decision whether to depose a witness is generally a matter of trial strategy.”). Further, there is the practical difficulty that Clay failed to establish in the post-conviction hearing that trial counsel knew or should have known that Clay’s father would not survive to the time of trial. This is not a circumstance where trial counsel elected not to call a witness at trial. Rather, it is a circumstance where trial counsel is accused of not having the foresight to appreciate that a witness might die before trial. Under the circumstances, we do not believe trial counsel’s failure to depose Clay’s father to be ineffective assistance of counsel. In any event, Clay made no showing whatsoever during her post-conviction hearing that her father’s testimony would have impacted a jury’s determination of her guilt. Clay’s father’s testimony would have been merely cumulative to the testimony of other defense witnesses relating to Clay’s emotional state at the time of Audrey’s death. Id. at 301-02 (claim defective where fails to allege what statements would have come to light in a deposition and how those statements could have caused the result of the proceeding to be different).

The trial court did not clearly err in denying Clay’s post-conviction motion on this basis. Point three is denied.

Conclusion

After review of the entire record, we conclude that the trial court did not err in denying Clay’s Rule 29.15 motion. The trial court’s findings were not clearly erroneous. The judgment of the trial court denying Clay’s Rule 29.15 post-conviction relief motion is affirmed.

All concur.

      . The recited facts are drawn from the opinion disposing of Clay's direct appeal in State v. Clay, 225 S.W.3d 462 (Mo.App. W.D.2007), or are otherwise viewed in the light most favorable to the jury's verdict. State v. Clark, 280 S.W.3d 625, 627 (Mo.App. W.D.2008).

      . Although Clay concedes that issues decided on direct appeal cannot be relitigated on a theory of ineffective assistance of counsel, she claims that the issue is properly raised he-cause review was denied on direct appeal. We need not address this claim as Clay’s point fails on the merits.

      . The record reflects that the bear was destroyed shortly after the initial determination following Randy’s death that his death was accidental.


text:
    In the Interest of: L.A.H., A.I.K., and L.K.J., Minor children.
    No. ED 93373.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 18, 2010.
    Laura E. Sidel, St. Louis, MO, for Appellant, Brian J. Henry.
    Steven W. Neimeyer, Chesterfield, MO, for Appellant, Tynishia Jones.
    Chris Koster, Attorney General, Gary L. Gardner, Assistant Attorney General, Jefferson City, MO, for Respondent, Missouri Children’s Division.
    Allison Wolff, Clayton, MO, for Respondent (Juvenile Officer).
    John Richard Bird, St. Louis, MO, for Guardian Ad Litem.
    Before KURT S. ODENWALD, P.J., GEORGE W. DRAPER, III, J., and GARY M. GAERTNER, JR., J.
   ORDER

PER CURIAM.

Mother appeals from the judgment of the family court terminating her parental rights with respect to her minor children L.A.H. (D.O.B. 5/8/2004), A.I.J. (D.O.B. 5/1/2005), and L.K.J. (D.O.B. 12/5/2006), pursuant to Section 211.447, RSMo Supp. 2007. Father appeals from the same judgment terminating his parental rights with respect to L.A.H., pursuant to the same section. We affirm.

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would serve no jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).

      . All subsequent statutory citations are to RSMo Supp.2007 unless otherwise indicated.

      . The trial court also terminated the parental rights of the legal and natural fathers of A.I.J. and L.K.J., but the rights of those individuals are not the subject of this appeal.


author: GARY M. GAERTNER, JR., J.

text:
    In The Matter of: Alphonse FORBECK, Respondent.
    No. ED 93195.
    Missouri Court of Appeals, Eastern District, Northern Division.
    May 18, 2010.

      Edwin D. Akers, Kathie B. Dudley, David S. Purcell, Paul M. Ganter, John M. Challis, Robert J. Selsor, St. Louis, MO, for appellants.
    Malaine P. Hagemeier, Troy, MO, for respondents.
   GARY M. GAERTNER, JR., J.

Introduction

Joann Mulkey (Mulkey), David S. Purcell (Purcell), Purcell & Amen, L.L.C. (Purcell & Amen), and Alphonse Forbeck appeal from the judgment entered by the probate division of the circuit court (probate court) approving the dismissal by James L. Forbeck and Joseph A. Schneider (Petitioners) of their “Petition for Appointment of Guardian and Conservator for Forbeck” (Petition). We dismiss the appeal.

Procedural and Factual Background

Petitioners filed their Petition on or about February 26, 2009, alleging that they were nephews of Alphonse Forbeck (Forbeck), a ninety-year-old man who had never married, had no children, but had three surviving siblings. The Petition alleged that Forbeck, a resident at Elsberry Healthcare Center, owned real property worth more than $1,000,000.00, and personal property with a value also exceeding $1,000,000.00. Petitioners alleged that they sought appointment of a guardian for Forbeck because he was nearly blind; suffered from cancer; and was unable to manage his legal or financial affairs due to his advanced age. Petitioners further alleged that the Department of Health and Senior Services (DHSS) was investigating a complaint involving suspected abuse and financial wrong-doings by Mulkey, who had been Forbeck’s health care assistant. Petitioners requested that they be issued Letters of Co-Guardianship and Co-Con-servatorship.

In support of their Petition, Petitioners attached, and incorporated by reference, their own affidavit and the affidavit of Linda M. Haake (Haake), Administrator of Elsberry Health Care Center. In their affidavit, Petitioners reiterated their allegation concerning the DHSS investigation of Mulkey, and additionally stated that Mul-key unduly influenced Forbeck, and alienated him from his family to such an extent that his health and financial well-being were at risk.

In her affidavit, Haake stated that For-beck had been a resident of Elsberry Health Care Center since December 3, 2008, and had confided to Haake on several occasions during his residency at the nursing facility. Haake attested that, during the week of February 26, 2009, For-beck told Haake he was going to see his attorney. When Haake asked him why he was going to see an attorney, Forbeck said that he did not know, but that Mulkey told him he had to go. Haake further attested that Mulkey, against doctors’ orders, advised Forbeck not to take his medication. Haake attested that, although Forbeck was excited about going to a family party, he confided to Haake that Mulkey would not allow him to attend it, and that Mulkey told Forbeck that if he went to the party, Mulkey would never see him again and would never do anything for him again. Haake stated that she and her staff once saw Mulkey take Forbeck outside of the health care facility, grab him by both sides of his jacket, and pull him close to her in an aggressive manner. Haake opined that Mulkey exerted undue influence on For-beck and that Forbeck feared Mulkey.

Thereafter, the probate court entered an order appointing attorney Chris Mennem-eyer (Mennemeyer) to represent Forbeck and setting the matter for hearing at 4:30 p.m. on February 26, 2009. Forbeck was served with notice of the hearing that day at 12:50 p.m. Petitioners and Mennemeyer appeared at the hearing for emergency appointment of Conservator ad Litem and Guardian ad Litem. During this hearing, Petitioners and Mennemeyer stipulated to the admission of Petitioners’ and Haake’s affidavits.

As Forbeck’s guardian ad litem (GAL), Mennemeyer testified that she had visited Forbeck at the nursing home and that she had also met with Haake. During Men-nemeyer’s visit, Forbeck told her that he realized that he could not live independently at home, and said that he was happy living at the nursing home. Mennemeyer testified that Forbeck related the names of his family members and indicated to her that he was on good terms with all of them, including Petitioners. Forbeck told Mennemeyer that it did not matter to him who took care of his affairs and finances, and that Mulkey had told him she would do it. However, Mennemeyer stated that when she would bring Mulkey’s name into a discussion, Forbeck “seemed to really shift mannerism and seemed nervous [.]” Mennemeyer testified that Forbeck had difficulty seeing and that Mennemeyer believed he had signed multiple documents without knowing what he was signing. Mennemeyer further testified that Mulkey, a healthcare worker unrelated to Forbeck, transferred large assets belonging to For-beck into Mulkey’s name. Mennemeyer opined that she believed it would be prudent for Forbeck’s family to step in and care for him and to obtain an accounting of his assets. She further opined:

[Tjhere would be no harm if the Court entered the order temporarily because he’s in a good place. There’s not a financial issue where he’s going to be kicked out. He doesn’t have anything that needs to be managed between now and when you can have a hearing that would be detrimental if the Court issues the order.
If the Court doesn’t issue this order, I think he’s at grave risk for the person that the allegations are against will continue to take immediate action and further deplete his assets and things of that nature. Kind of perpetuate the cycle, if you will, that’s going on. So I would recommend that the Court entertain what has been asked for by the petitioners to protect the respondent.

Although Mennemeyer indicated that she did not see a medical emergency for the order, Petitioners argued that, as stated in Haake’s affidavit, Mulkey unduly influenced Forbeck, and had told him not to take his prescribed medication. Petitioners further argued Mulkey had told For-beck that she would remove him from the nursing facility due to the DHSS investigation. Mennemeyer confirmed that Haake had confided to her that during Haake’s twelve-year tenure at the nursing facility, she had never been as concerned about an individual being unduly influenced as she was about Forbeck. Mennemeyer testified that Haake was not the first person to whom Forbeck had confided at the nursing home; he had previously confided to two nurses, reporting similar instances that suggested Mulkey was exerting undue influence on Forbeck.

At the close of the hearing, the probate court entered a temporary order, appointing Mennemeyer as Forbeck’s temporary emergency guardian, appointing Petitioners temporary emergency co-guardians and temporary emergency co-conservators, issuing Temporary Letters of Emergency Guardianship and Conservatorship to Petitioners, and setting the matter for hearing on March 25, 2009. The probate court concluded:

This Court, based upon the petition for appointment, based upon the affidavit by both petitioners Forbeck and Schneider, as well as Linda M. Haake, and not in small part upon the testimony of Ms. Mennemeyer, finds that it is necessary to appoint a co — a temporary emergency co-guardian and co-conservator at this time for Forbeck’s benefit.
The Court has clear concerns as to whether or not this gentlemen is incapacitated, which by law is required for a finding here. And I’m telling you that right now. There are other avenues available for what is being sought here, tort actions and other actions. However, based upon the petition presented and the evidence here today I am making this finding.

On February 27, 2009, counsel for Mul-key entered her appearance in the matter. The probate court entered an order continuing the appointment of Mennemeyer as Forbeck’s attorney on March 2. The hearing on the Petition was rescheduled for March 19.

On March 3, David Purcell (Purcell) of Purcell & Amen entered his appearance on behalf of Forbeck. Thereafter, Purcell filed a motion to vacate the emergency guardianship and conservatorship order, alleging that the court’s temporary order did not afford Forbeck reasonable notice or any other elements of procedural due process. This motion alleged that the temporary order did not comply procedurally with Chapter 475 RSMo, and that the order was entered without competent or clear and convincing evidence in support of the Petition’s allegations. Among other things, the motion alleged that Petitioners and Elsberry Health Care Center had ignored or circumvented Forbeck’s health care advance directive and health care power of attorney, and had denied him the benefit of contact with his own chosen care provider, Mulkey.

The motion filed by Purcell further alleged “Forbeck has made previous adequate provisions for management of his financial affairs through creation of an in-tervivos trust and durable powers of attorney and is receiving adequate assistance with those affairs through Joann Mulkey and David S. Purcell, attorney at law and the Purcell & Amen LLC law firm [.]” The motion stated that, because Forbeck did not own any personal or real property, a conservatorship was inappropriate. The motion additionally stated, “Forbeck is not mentally incapacitated and if he were, by virtue of his durable power of attorney, and trust, neither a guardianship nor con-servatorship would be necessary and even if a guardianship or conservatorship were appropriate, he has exercised his rights under Section 475.050 to choose his own fiduciary.” (emphasis added).

On March 5, Mulkey filed a “Motion to Dismiss Petitions for Guardianship and Conservatorship or, in the Alternative, to Appoint Attorney in Fact.” In her motion to dismiss, Mulkey alleged that she was Forbeck’s duly appointed attorney-in-fact for healthcare and financial matters. Mul-key asserted that no guardian or conservator was needed because Forbeck was able to receive, evaluate and communicate decisions, and if he needed assistance, he had a duly-appointed attorney-in-fact for health care and financial matters. Mulkey asserted that the Petition should be dismissed for failure to allege any specific physical or mental condition as a basis for the finding of incapacity or disability. Mulkey contended that the court’s temporary order should be vacated due to Petitioner’s failure to inform the court that durable powers of attorney existed, and averred that the order undermined the authority of Mulkey as attorney-in-fact without notice and due process.

Alternatively, Mulkey asserted that, should the probate court determine after a full hearing that Forbeck was in need of a guardian or conservator, the court was required, except for good cause shown, to appoint Mulkey because she was the attorney-in-fact named in a durable power of attorney within five years of the hearing. Mulkey submitted excerpts from a Durable Health Care Power of Attorney and a copy of a General Durable Power of Attorney, prepared by Purcell and naming Mul-key as attorney-in-fact for Forbeck. Upon review of the Petition and the filed motions, the probate court ordered that the rules of civil procedure would apply to the cause and its proceedings.

Subsequently, Purcell and Mulkey filed various motions opposing the Petition. As well, counsel representing Purcell & Amen in the law firm’s capacity as fiduciary to Forbeck (Special Co-Trustee of the For-beck Living Trust) entered its appearance, and filed a “Motion Incorporating and Joining in Certain Motions Filed by Respondent.”

On March 23, Mennemeyer filed a motion to strike all filings by Purcell & Amen and Purcell. Thereafter, Purcell & Amen filed notices to take Forbeck’s deposition; in response, Mennemeyer filed a motion to quash, and a motion for protective order. Petitioners filed a motion for leave to file a First Amended Petition and Amended Witness List on March 25.

At an April 3 hearing regarding various motions filed by the parties, the trial court also received evidence concerning Forbeck’s wish to be represented by private counsel and his capacity to make such a choice. Mennemeyer, as GAL, presented the testimony of Forbeck. Forbeck testified that he understood that he was present in court concerning a possible guardianship being established for him. Forbeck stated that he did not contact Purcell to represent him in the guardianship matter, nor did he direct anyone else to contact Purcell on his behalf. Although he was aware that Purcell was present and wanted to represent him in the matter, Forbeck testified that he did not want Purcell’s representation and did not want him as his attorney.

Forbeck was aware that the court had appointed Mennemeyer to represent him and he had met with her several times concerning the proceedings. Mennemeyer brought him documents she had enlarged so that he could read them for himself. He and Mennemeyer also drafted documents together. When Purcell entered his appearance in the matter on Forbeck’s behalf, Mennemeyer showed Forbeck the documents that Purcell had filed. At that time, Forbeck told Mennemeyer that he did not want Purcell to be his attorney. Contrary to Purcell’s claim that he had been Forbeck’s attorney for years, the only legal services for which Forbeck had employed Purcell involved preparation of estate-planning documents with Mulkey; Forbeck had never needed an attorney for anything else.

Forbeck testified that Mulkey drove him to Purcell’s office in St. Louis County on several occasions to have Purcell draft a trust for him. Forbeck recalled that the documents established Mulkey as his co-trustee of his trust. Forbeck testified that, although he signed the trust documents, he did not know what he was signing at the time. Forbeck testified that he only signed the documents because he thought that any decisions would have to be made jointly by him and Mulkey, but that was not the way matters had been handled. He further testified that he did not want Mulkey to be involved in his affairs.

Although Forbeck was not aware Petitioners were going to file their Petition and had not talked to Petitioners about the matter before he was served with the papers, he had planned to have them act as his guardians and conservators.

During his cross-examination by Petitioners, Forbeck testified that he did not call Purcell to ask him to come to Elsberry Health Care Center, and did not know Purcell was coming there to visit him until he arrived. He testified that he did not ask anyone to contact Purcell on his behalf, and did not authorize Mulkey to pay $12,500.00 of his money to Purcell for representation in this matter. Forbeck testified he was confident that Mennemeyer was representing his interests in the proceeding, and he believed Purcell was acting against his interests. He testified that he had not signed any documents for Purcell in the proceeding, and he asked the probate court to not allow Purcell to continue to represent him.

Petitioners called Purcell to testify. Purcell recalled that he had a conversation with Forbeck at Elsberry Health Care Center five weeks prior to that day’s hearing, after Mulkey told Purcell that For-beck was not going to be able to come to Purcell’s office for an appointment Mulkey had scheduled for that Friday morning. At some point during this visit, Purcell learned of the court proceedings. Purcell immediately went to the courthouse to view the probate court file in this matter. Purcell never contacted Mennemeyer personally after he learned she had been appointed to represent Forbeck; Purcell first saw her at a court hearing. Purcell admitted that Forbeck did not contact him to represent him in this proceeding, and that he heard Forbeck state in court that he did not want Purcell to represent him.

During cross-examination, Purcell testified that, between his initial 2005 contact and the filing of the guardianship proceeding in February of 2009, he had met with Forbeck approximately six times and had spoken with him by phone approximately six times. After speaking with Forbeck at the nursing facility, Purcell had the “impression” that Forbeck wanted Purcell to represent him in the “general context” of resisting efforts to take away his rights and control of his property.

Forbeck testified on redirect following Purcell’s testimony, and stated that he did not personally contact Purcell to ask him to come to the nursing facility, he had never asked him to represent him in the guardianship/conservatorship proceeding, and he had not asked him to act as his attorney “whenever things happened.” He reiterated that he did not want Purcell as his attorney.

Mulkey testified on her own behalf. When Mulkey discovered DHSS was conducting an investigation of her handling of Forbeck’s affairs, she went to the nursing facility to talk to Forbeck. When Mulkey called Purcell on the Friday morning before he came to the Elsberry Health Care Center, she told Purcell that she could not see Forbeck anymore. Further, Mulkey said she could not bring him to his appointment with Purcell, because the nursing facility had received an order from the probate court stating that Mulkey was not allowed to have contact with Forbeck.

At the conclusion of the hearing, Men-nemeyer and Petitioners argued that Purcell & Amen, as special co-trustee, was not a proper party to the guardianship/conser-vatorship proceeding. Purcell asked the probate court to “consider whether there should be a guardianship and conservator-ship at all.” The court continued the temporary emergency letters issued to Petitioners, pending a full hearing.

On April 7, the probate court entered a Judgment and Order, first noting that Petitioners’ motion for leave to file their First Amended Petition and Amended Witness List was consented to by the parties. Among other things, the court denied the motions to strike Purcell’s and Purcell & Amen’s filings. Thereafter, Purcell & Amen filed an Answer and Affirmative Defenses to Petitioners’ First Amended Petition. Mulkey also filed an Answer and Affirmative Defenses.

On April 20, Petitioners and Forbeck filed a Notice of Dismissal. The Memorandum of Dismissal indicated that Petitioners, Forbeck, Forbeck as Grantor and Trustee of the Forbeck Revocable Living Trust, and Mennemeyer were jointly filing a stipulation of dismissal, with court costs assessed to Petitioner and a guardian-ad-litem fee awarded to Mennemeyer. The Memorandum of Dismissal indicated that all assets acquired by the ad litem conservators were to be returned to Forbeck. Forbeck, individually and in his capacity as Grantor and Trustee, waived accounting, inventory, appraisement, or turn-over settlement by the ad litem conservators. This Memorandum of Dismissal was signed by Petitioners and their counsel; Forbeck, individually and as Grantor and Trustee; and Mennemeyer. As well, the Memorandum of Dismissal was signed by Judge Burkemper, following the notation “SO ORDERED,” and dated April 20, 2009. The probate court forwarded copies of the Order of Dismissal to all parties.

On April 28, Mulkey filed a “First Amended Request for Instructions and to Declare Rights.” Mulkey filed an “Application for Attorneys’ Fees” on April 30. Purcell & Amen filed its “Special Co-Trustee’s Request for Instructions and Application for Compensation, Fees, and Costs” on April 29. Mulkey filed a “Supplement to First Amended Request for Instructions and to Declare Rights” on May 13.

A hearing was conducted on May 18, following which all motions were taken under advisement. On May 19, Purcell & Amen filed a “Special Co-Trustee’s Motion to Amend the Judgment, For a New Trial, and/or To Set Aside the Judgment,” with a supporting memorandum and exhibits. That same date, Mulkey filed her “Motion to Amend or Set Aside the Order or Judgment of the Court Entered on April 20, 2009 Dismissing Petitioners’ Cause of Action and for a New Trial.” Both parties’ after-trial motions argued that the probate court should have dismissed the Petition and the Amended Petition for failure to meet statutory requirements. Mennemeyer filed a “Memorandum in Opposition to Court Action Following Voluntary Dismissal.” Purcell & Amen and Mulkey filed responses to Mennemeyer’s memorandum.

On June 16, 2009, the probate court entered a Judgment and Order, denying all of Mulkey’s and Purcell & Amen’s after-trial motions. In this Judgment and Order, the probate court notified the parties that it had modified the “Memorandum of Dismissal” entered by the court on April 20, 2009 by designating it a “Judgment” for appeal purposes. Mulkey filed her Notice of Appeal on June 25, 2009. On June 29, Purcell filed a Notice of Appeal on behalf of Forbeck, Purcell individually, and Purcell & Amen as Special Co-Trustee. These appeals were consolidated.

Discussion

On January 6, 2010, other counsel for Forbeck entered an appearance before this Court. On February 16, 2010, counsel filed a “Motion to Dismiss Appeals of Alphonse Forbeck, Purcell & Amen and Joann Mulkey” (Motion to Dismiss Appeals). In this motion, Forbeck submitted an affidavit dated February 3, 2010, in which he attested, among other things, that he did not ask or authorize Purcell or Mulkey to file any appeals concerning the probate matter. He also stated, “I want both appeals to be dismissed.” Forbeck also submitted the affidavit, dated February 5, 2010, of his treating physician who attested that Forbeck was competent to handle his own affairs and that Forbeck demonstrated no mental incapacity or disability during the time period since this physician began seeing him in December 2008.

Purcell, who claimed to be representing Forbeck, did not file a response to the motion or challenge any of the facts in the affidavits, other than to assert in his reply brief that the Court should not consider the affidavits because they were neither part of, nor introduced with, the record at the trial in this matter.

Rule 84.09 allows an appellant to file a dismissal of his appeal with this Court at any time prior to the submission of the cause. We believe the affidavit filed by Forbeck was sufficient to constitute a voluntary dismissal of his appeal. Even if Purcell had been authorized to file an appeal on Forbeck’s behalf, Forbeck still retains the right to voluntarily dismiss his appeal. See State ex rel. McMullin v. Satz, 759 S.W.2d 839, 840 (Mo. banc 1988). Accordingly, Forbeck’s appeal is dismissed.

Petitioners and Forbeck further argue that we are without jurisdiction to consider the appeal, because the dismissal of a petition for guardianship/conservatorship by the petitioners, with consent of the respondent and the probate court, is not appeal-able. They also assert that the Notices of Appeal were untimely filed, and that Mul-key, Purcell, and Purcell & Amen lack standing to appeal.

In her suggestions in opposition to the Motion to Dismiss Appeals, Mulkey contends that the April 20 order was much more than a simple dismissal, because accounting, inventory, appraisement, or a turn-over settlement was waived and the GAL was awarded fees. She argues that Rule 67.01 (allowing a plaintiff to dismiss an action without order of the court at anytime prior to the introduction of evidence at the trial of the matter) is inapplicable to the April 20 order, because the order was more than a simple dismissal; because the order concerned a petition in guardianship proceedings and required court approval before dismissal; and because evidence was submitted in the February 26 emergency hearing and at the April 3 motion hearing. Mulkey also asserts that the April 20 order was not a final judgment because it did not dispose of all claims and issues in the case.

Mulkey further avers, however, that her Notice of Appeal was timely filed because, as her after-trial motions were authorized by Rule 81.05, the probate court retained jurisdiction over the matter until it issued the June 16, 2009 Judgment, disposing of the remaining issues and denominating the April 20 Order a “Judgment.” Mulkey argues that she has standing to appeal the judgment because she had been named attorney-in-fact in a Durable Power of Attorney executed within five years of the filing of the Petition, and because she was a fiduciary pursuant to Section 475.075.2.

In their Reply Brief, Purcell, and Purcell & Amen join in Mulkey’s suggestions in opposition. Purcell, and Purcell & Amen contend they have standing to appeal the April 20 dismissal because they were proper parties to the initial proceeding — Purcell as Forbeck’s private attorney, and Purcell & Amen as Special Co-Trustee of Forbeck’s Trust — and because they fit Section 475.010’s definition of interested persons, in that they had a “claim against the estate of a [ward].”

We find, however, that Rule 67.02(b), providing for the voluntary dismissal of an action at the plaintiffs instance “upon order of the court upon such terms and conditions as the court deems proper [,]” is applicable here and requires us to dismiss the appeals for lack of an appealable judgment. As an initial matter, we find it ironic — and quite revealing— that Mulkey, Purcell, and Purcell & Amen are now appealing the approved voluntary dismissal of the very same Petition they urged the probate court to dismiss while they were purporting to act in Forbeck’s best interests. Moreover, these very same parties continued to argue in their after-trial motions that the probate court should have dismissed the Petition and Amended Petition for failure to meet statutory requirements. However, even were we to assume, for the sake of argument, that Rule 67.02(b) does not apply to voluntary dismissals of guardianship/conservatorship petitions with court approval, our review of the record reveals several grounds requiring us to dismiss these two consolidated appeals.

The right to appeal from a probate court’s judgment is purely statutory. Estate of Juppier, 81 S.W.3d 699, 700 (Mo.App. E.D.2002). Sections 472.160 and 472.170 address appeals from the probate division. Matter of Couch v. Couch, 824 S.W.2d 65, 70 (Mo.App. W.D.1991). Section 472.170 allows appeals from the probate division in any case in which a final adjudication in an investigation of the mental condition of any person alleged to be disabled, incapacitated, or mentally ill has been made. Clearly, as no final adjudication as to Forbeck’s mental condition was made by the probate court, Section 472.170 would not be applicable here.

On appeal, Mulkey, Purcell, and Purcell & Amen vigorously argue that Forbeck was declared “incapacitated and disabled” on February 26, 2009. We disagree; the probate court’s actions on that date were merely to appoint counsel for Forbeck as statutorily required, to determine whether Forbeck was capable of understanding the proceeding and contributing to the protection of his own interests, and to take immediate action to protect the personal welfare and property of Forbeck. Matter of Jessee, 744 S.W.2d 514, 516 (Mo.App.1988); Section 475.075.11. The finding required to appoint a guardian ad litem or conservator ad litem as the probate court did on February 26 is the existence of an emergency presenting a substantial risk that serious physical harm will occur to an alleged incapacitated or disabled person or that irreparable damage will occur to the individual’s property because of that person’s failure or inability to provide for his human needs or to protect his property. Section 475.075.11. There was no formal or final adjudication of Forbeck’s incapacity, partial incapacity, disability, or partial disability, and indeed, such an adjudication could not have been made at the emergency stage under Section 475.075.11 during the February 26 court proceeding without violating the rights afforded Forbeck in Section 475.075.8. Matter of Jessee, 744 S.W.2d at 516 (among other rights, alleged incapacitated or disabled person has right to hearing conducted in accordance with civil rules of evidence, right to present evidence and to cross-examine adverse witnesses, and right to be present at the hearing); see also Matter of Myhre, 772 S.W.2d 415, 416 (Mo.App. W.D.1989) (petitioners have burden to prove incapacity by clear and convincing evidence). Section 475.075.11 contemplates a situation following the filing of a petition, where counsel for the alleged incapacitated or disabled person has been appointed but a hearing on the ultimate question of incapacity has not yet been conducted. See Matter of Jessee, 744 S.W.2d at 516; John A. Borron, Jr., Probate Law & Practice, 3d. ed. (5C Mo. Prac. Seet.1936-1939, 1979 pp. 428-40, 518) (2000).

Section 472.160 specifically enumerates thirteen types of cases from which an aggrieved interested party may appeal, and additionally provides for appeals in all other cases “where there is a final order or judgment of the probate division of the circuit court under this code except orders admitting to or rejecting wills from probate.” Our review of this section fails to reveal a provision under which an appeal of the probate court’s dismissal could be taken.

In most instances, when a cause is dismissed without prejudice, a party may file another action in the same court; thus, such a dismissal is not a final judgment for the purpose of appeal. Estate of Johnson, 912 S.W.2d 560, 561 (Mo.App. E.D.1995); Matter of Myhre, 772 S.W.2d at 416 (when question of whether evidence presented in support of petition for declaration of incapacity and for appointment of guardian is sufficient to make fact issue of alleged incapacity is not adjudicated before dismissal, petition may be refiled and cause retried upon same or new evidence with no effect on result because of prior dismissal); Rule 67.01. The dismissal here does not purport to be an adjudication of any procedural or substantive aspects of Forbeck’s condition, and does not foreclose the filing of another petition if Forbeck’s situation warrants it in the future. Matter of Myhre, 772 S.W.2d at 416.

Moreover, again assuming only for the sake of argument, that the after-trial motions filed with the probate court were authorized and acted to extend the time for filing notices of appeal, the June 16 Judgment denying Mulkey’s, Purcell’s and Purcell & Amen’s requests and motions obviously did not affect the rights of all parties: among other things, the significant issue of Forbeck’s alleged incapacity was never adjudicated. Because the probate court’s dismissal does not finally dispose of the case, it is therefore unappeala-ble. Id. Accordingly, for all of the reasons discussed, we lack authority to address the merits of the action and must dismiss the appeal. Id.

Even if we had authority to address the merit s, however, we would still dismiss the appeal, because neither Mul-key, Purcell, nor Purcell & Amen have standing to appeal the probate court’s dismissal, as they are not aggrieved interested parties. Section 472.160.1. As noted, Mulkey asserts that she has standing to appeal the dismissal “due to her status as a named attorney-in-fact in a Durable Power of Attorney executed within five years of the proceeding and because she was a fiduciary pursuant to Section 475.075.2.” Purcell, and Purcell & Amen claim they have standing because they were proper parties to the initial proceeding and they fit Section 472.010’s definition of interested persons, in that they have a “claim against the estate of a [ward].”

Section 472.010(15) defines “interested persons” to mean: “heirs, devisees, spouses, creditors or any others having a property right or claim against the estate of a decedent being administered and includes children of a protectee who may have a property right or claim against or an interest in the estate of a protectee.” Mulkey, Purcell, and Purcell & Amen are not heirs, devisees, or spouses of Forbeck, nor do any of these parties have a vested financial interest in Forbeck’s estate; therefore, they would not have standing to appeal, even if the dismissal were a final appealable order. Matter of Walker, 875 S.W.2d 147, 150-51 (Mo.App. E.D.1994). If a party does not have standing, the appeal must be dismissed. Estate of Juppier, 81 S.W.3d at 701.

Although Mulkey’s assertion of standing by virtue of her attorney-in-fact and fiduciary status might facially appear to have some merit, we note that, prior to the dismissal, Forbeck not only verbally repudiated his nomination of Mulkey under oath, but also revoked the Durable Power of Attorney and removed Mulkey as Co-Trustee in a document. Nevertheless, given that Mulkey would be bringing the appeal as attorney-in-fact for Forbeck, his motion to dismiss would still be dispositive.

We dismiss the appeals for the reasons discussed.

Conclusion

The consolidated appeals herein are dismissed.

ROY L. RICHTER, P.J., and MARY K. HOFF, J. concur.

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

      . Interestingly, Purcell brought a gerontologist social worker with him to the nursing home when he visited Forbeck.

      . The probate court's approval of the voluntary dismissal of the Petition was necessary. State ex rel. Standefer v. England, 328 S.W.2d 732, 738 (Mo.App.1959) (interest of public is such that petition in guardianship proceedings cannot by dismissed by petitioner except by consent of probate court acting in its discretion for best interests of public and individual whose competency is questioned).

      . During this hearing, Purcell testified that he had put in an additional twenty-four hours of time, at $300 per hour, after Forbeck testified on April 3 that he did not want Purcell's services. In a discussion concerning fees and costs that Purcell was asking to be awarded, Purcell indicated the social worker who accompanied Purcell to the nursing home during his visit with Forbeck had opined that Forbeck had the mental competence of a seven-year-old. However, there was no testimony from the gerontologist; moreover, neither an affidavit nor a report was offered or submitted.

      . All rule citations are to Mo. R. Civ. P. (2010), unless otherwise indicated.

      . We acknowledge generally, that an appellate court will not consider affidavits or evidence that was not before the trial court. Sleater v. Sleater, 42 S.W.3d 821, 822 n. 1 (Mo.App. E.D.2001). However, we are not using the affidavits to consider the merits of the appeal, but rather to determine whether Forbeck's voluntary dismissal of his appeal filed during the appeal is effective. A voluntary dismissal of the appeal necessarily occurs after the judgment has been entered and an appeal has been filed. The motion to strike the affidavits is denied.

      . Rule 67.02, outlining the effect of voluntary dismissals, provides in pertinent part:

        (a) Except as provided in Rule 52, a civil action may be dismissed by the plaintiff without order of the court anytime:

      (2) In cases tried without a jury, prior to the introduction of evidence at the trial.

      (b) Except as provided in Rule 67.02(a), an action shall not be dismissed at the plaintiff's instance except upon order of the court upon such terms and conditions as the court deems proper....

      . Section 472.160.1 provides:
      Any interested person aggrieved thereby may appeal to the appropriate appellate court from the order, judgment or decree of the probate division in any of the following cases:
      (1) On the allowance of any claim against an estate exceeding one hundred dollars;
      (2) On all settlements of the personal representative;
      (3) On all apportionments among creditors, legatees or distributes;
      (4) On all orders directing the payment of legacies, making distribution or making allowances to the surviving spouse or unmarried minor children;
      (5) On all orders for the sale of assets of the probate estate;
      (6) On all orders for the sale of real estate;
      (7) On judgments for waste;
      (8) On proceedings to recover balances es-cheated to the state;
      (9) On all orders revoking letters testamentary or of administration;
      (10) On orders making allowances for the expenses of administration;
      (11) On orders for the specific execution of contracts;
      (12) On orders compelling legatees and dis-tributees to refund;
      (13) On all orders denying any of the foregoing requested actions;
      (14) In all other cases where there is a final order or judgment of the probate division of the circuit court under this code except orders admitting to or rejecting wills from probate.

      . See Rules 74, 75, and 78.

      . Section 475.075.2 provides: “The respondent shall be served in person with the following: A copy of the petition; a written notice stating the time and place the proceeding will be heard by the court, the name and address of appointed counsel, and the names and addresses of the witnesses who may be called to testify in support of the petition; and with a copy of the respondent’s rights as set forth in subsections 7 and 8 of this section. The notice shall be signed by the judge or clerk of the court and served in person on the respondent a reasonable time before the date set for the hearing. The petition shall state the names and addresses of the spouse, parents, children who have reached eighteen, any person serving as his guardian, conservator, limited guardian or limited conservator, any person having power to act in a fiduciary capacity with respect to any of the respondent's financial resources, and any person having his care and custody known to the petitioner. Each person so listed shall be served with like notice in any manner permitted by section 472.100, RSMo. If no such spouse, parent or child is known, notice shall be given to at least one of his closest relatives who have reached eighteen.”

      . Purcell and Purcell & Amen's April 28, 2010 motion for attorney's fees in the amount of $115,190.00 is denied.


text:
    STATE of Missouri, Plaintiff/Respondent, v. Anthony P. ROBERSON, Defendant/Appellant.
    No. ED 93131.
    Missouri Court of Appeals, Eastern District, Division One.
    May 18, 2010.

      Craig A. Johnston, Columbia, MO, for appellant.
    John W. Grantham, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., CLIFFORD H. AHRENS, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Defendant, Anthony P. Roberson, appeals from a judgment entered upon a juiy verdict finding him guilty of driving while intoxicated (DWI), in violation of section 577.010 RSMo (2000). The trial court found defendant to be a chronic offender based on two prior manslaughter convictions and five prior DWI convictions, which enhanced the classification for his sixth DWI to a class B felony pursuant to section 577.023 RSMo (Cum.Supp.2005). It sentenced defendant to fifteen years imprisonment.

No error of law appears and no jurisdictional purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment is affirmed in accordance with Rule 30.25(b).

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


text:
    In re the MARRIAGE of Deborah Lynn WESTHOFF, f/k/a Deborah Sauder, Petitioner/Respondent, and Donald Sauder, Jr., Respondent/Appellant.
    No. ED 93119.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 18, 2010.
    Prudence Fink Johnson, Union, MO, for Petitioner/Respondent.
    Francis J. Murphy III, St. Louis, MO, for Respondent/Appellant.
    Before SHERRI B. SULLIVAN, P.J., ROBERT G. DOWD, JR., J., and PATRICIA COHEN, J.
   ORDER

PER CURIAM.

Donald Sauder, Jr. appeals from the trial court’s Judgment of Modification (judgment) modifying the decree dissolving his marriage to Deborah Lynn Westhoff, f/k/a Deborah Sauder. We have reviewed the parties’ briefs and the record on appeal and conclude that the judgment is not against the weight of the evidence nor did the trial court abuse its discretion. See, Malawey v. Malawey, 137 S.W.3d 518 (Mo.App. E.D.2004) (child custody); Forde v. Forde, 190 S.W.3d 521 (Mo.App. E.D.2006) (child support); Mehra v. Mehra, 819 S.W.2d 351, 357 (Mo.banc 1991) (attorney’s fees). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).


text:
    Pelayo ERRASTI, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 92519.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 18, 2010.
    Alexandra Johnson, Office of the Missouri Public Defender, St. Louis, MO, for Appellant.
    Chris Foster, Attorney General, Dora A. Fichter, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before: KURT S. ODENWALD, P.J., GEORGE W. DRAPER, III, J., and GARY M. GAERTNER, JR., J.
   ORDER

PER CURIAM.

Movant, Pelayo Errasti, appeals from the judgment denying his Rule 24.035 motion without an evidentiary hearing. An extended opinion would have no prece-dential value. The parties have been provided with a memorandum for their information only, setting forth the reasons for this decision. The judgment is affirmed pursuant to Rule 84.16(b).


text:
    Tyrone MILLER, Appellant, v. Erma DUPREE, Respondent.
    No. ED 93042.
    Missouri Court of Appeals, Eastern District, Division One.
    May 18, 2010.
    Brian C. Howe, St. Louis, MO, for appellant.
    Joseph F. Yeckel, St. Louis, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., CLIFFORD H. AHRENS, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Tyrone Miller appeals from the judgment of the trial court in favor of his sister, Erma Dupree, on his petition for a permanent injunction, and in her favor on her counterclaim for ejectment.

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

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