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

text:
    In the ESTATE OF: Irene LAMBUR a/k/a Verna Irene Lambur, deceased. Joyce Baxter, individually, and as Personal Representative of the Estate of Irene Lambur, Ruth Becker, Roland Payne and John W. Payne, Petitioners-Respondents, v. Anna Stidham and Matt Stidham, Respondents-Appellants, v. Jackie Johnson, Third-Party Defendant-Respondent.
    No. SD 29969.
    Missouri Court of Appeals, Southern District, Division Two.
    July 28, 2010.

      Devin S. Kirby of Doniphan, Missouri, for Appellant.
    James Spain, Poplar Bluff, Missouri, for Respondents Estate of Irene Lambur, Joyce Baxter Individually and as Personal Representative of Estate of Irene Lambur, Ruth Becker, Roland Payne and John W. Payne.
    Jackie Johnson, Doniphan, Mo, Respondent pro se.
   WILLIAM W. FRANCIS, JR., Judge.

Anna and Matt Stidham, husband and wife, (collectively “Appellants”) appeal from judgment of the trial court in favor of Joyce Baxter individually, and as personal representative of the Estate of Irene Lam-bur, and Ms. Baxter’s siblings, Ruth Becker, Roland Payne and John W. Payne (“Respondents”), in the amount of $118,134.46. The central issue at the trial court was who, upon the death of Verna Irene Lambur (“Decedent”), was entitled to the proceeds of two bank accounts jointly owned, with rights of survivorship, by Anna Stidham, Jackie Johnson, and Decedent. Appellants contend the trial court erred in concluding, as a matter of law, that Respondents were entitled to the proceeds of the accounts because a question of fact existed concerning Decedent’s intent expressed in her Power of Attorney. Respondents contend that all issues were of law only and judgment was properly entered. We reverse and remand the matter for new trial.

Factual and Procedural History

During the time period relevant to this appeal, Decedent had health problems, which prohibited her from taking care of herself. Decedent was not married and had no children. As a result of her health problems, Decedent was unable to live permanently in her home. Decedent was forced to spend periods of time in a nursing home. Decedent contacted her nephew’s wife, Anna, for advice regarding her situation. Anna contacted an attorney and arranged for him to meet with Decedent and he ultimately agreed to represent Decedent. Decedent’s attorney then arranged for her to be released from the nursing home. He also drafted a Power of Attorney, which Decedent later executed, to give Anna and Jackie the authority to make certain decisions on Decedent’s behalf. The relevant grant of authority in Decedent’s Power of Attorney is set forth below:

To establish, change or revoke survivor-ship rights in property or accounts, beneficiary designations for life insurance, IRA and other contracts and plans, and registrations in beneficiary form; to establish ownership of property or accounts in my name with others in joint tenancy with rights of survivorship and to exercise any right I have in joint property; to exercise or decline to exercise any power given to me to appoint property; to disclaim or renounce transfers to me of property; to make inter vivos gifts of my property to my lineal descendants, including my attorneys in fact, in amounts that are equal by line or class and in an amount for any person that does not exceed in any year the annual gift tax exclusion; to make contributions to my Church and to other religious, charitable and educational organizations; and to make contributions to political organizations and candidates.

Pursuant to Decedent’s Power of Attorney, Anna and Jackie opened two bank accounts, which they co-owned with Decedent. Both of these accounts included rights of survivorship. On May 18, 2005, Decedent died intestate. At the time of Decedent’s death, the combined value of these accounts was $129,134.46. Anna and Jackie met with Decedent’s attorney to discuss Decedent’s estate. During the meeting, Anna claimed Decedent’s attorney advised them they could keep the money, which was in the joint accounts, although he denied that statement. Anna and Jackie initially agreed to split the money; however, Jackie’s father told her she would go to hell if she kept Decedent’s money, so Jackie told Anna to keep it all. Anna subsequently withdrew all the money and closed the joint accounts.

Anna proceeded to dispose of the entire $129,134.46. The major payments were for various personal items, including repayment of personal debt.

On June 30, 2005, Decedent’s sister, Joyce Baxter, was appointed Personal Representative of Decedent’s estate. On April 3, 2006, Joyce filed a Petition for Discovery of Assets against Anna and Matt. The petition requested that the trial court determine the title and right of possession to the proceeds of the two jointly-owned bank accounts and ultimately requested the trial court order the proceeds to be transferred from Appellants to Decedent’s estate. Four of Decedent’s other siblings joined as plaintiffs in this suit.

On October 17, 2008, jury trial was commenced. On October 21, 2008, a mistrial was declared, according to the docket sheet, because the parties were “unable to agree on the number of jurors to render a verdict.” On October 24, 2008, the matter was reset for a jury trial to begin on March 26, 2009.

On March 26, 2009, the morning the second trial was to commence, Respondents filed a “Motion for Judgment as a Matter of Law and/or Motion for Judgment on the Pleadings at the Close of All Evidence” (the “Motion”). Respondents gave this explanation on the record when they filed the Motion: “And we can’t direct a verdict because that jury is gone, but we still think we can ask for a judgment as a matter of law based upon the evidence as the evidence was in that last trial.” The trial court went off the record and invited the parties into chambers to discuss the Motion. The trial court then went back on the record and indicated that “at this point we sent the jury home and [it was] going to take this motion under advisement.” The trial court also asked the parties to submit briefs on the Motion.

On June 22, 2009, the trial court held another hearing regarding the Motion. No evidence was submitted. The trial court again took the matter under advisement. On June 26, 2009, the trial court issued its judgment stating that it “considered [Respondents’] Motion for Judgment as Matter of Law and hereby finds in favor of [Respondents] and against [Appellants].” The trial court then entered judgment in Respondents’ favor and against Appellants in the amount of $118,134.46. This appeal followed.

Standard of Review

Before we can address the standard of review, we are compelled to consider the procedural posture of Respondents’ Motion. The Motion specifically refers to evidence presented at a trial. In the body of the Motion, the trial court is referred to evidence submitted at the first trial, which resulted in a mistrial. Respondents mistakenly assumed, and the trial court acquiesced, that the evidence in the first trial was still before the court at the start of the second trial. This assumption, absent a stipulation, was clearly misguided. A mistrial is a trial that is terminated prior to its normal conclusion. A mistrial itself is the equivalent of no trial. Franklin v. Southwestern Bell Telephone Co., 195 S.W.3d 524, 526 (Mo.App. E.D.2006). Therefore, when the Motion was taken up, there was no evidence before the trial court.

Furthermore, we are troubled that the procedure used here purported to shift the determination of factual issues from the jury to the trial court without a waiver of Appellants’ right to a jury trial. The transcript reveals that the parties were arguing pre-trial motions before the court prior to commencement of the second jury trial, the court went off the record to discuss the Motion and upon going back on the record, the court announced the jury had been sent home and the Motion was taken under advisement. The record is silent as to the basis for this procedure, it is silent as to any waiver of the right to a jury trial, and it is silent as to how the court determined this procedure would be appropriate. The parties are entitled to a trial by jury in a discovery of assets action. Section 473.340.2. A jury trial was demanded by Appellants. No waiver of jury trial was filed or announced on the record.

The record before us, and the judgment entered by the trial court, make it difficult to ascertain the appropriate standard of review in consideration of this appeal. The best we were able to discern is that the court considered the Motion as either a motion for judgment on the pleadings (Rule 55.27(b)), or motion for summary judgment (Rule 74.04), as the foundation for its judgment. A judgment on the pleadings is not appropriate unless the issues presented to the court are strictly issues of law. Eaton v. Mallinckrodt, Inc., 224 S.W.3d 596 (Mo.2007). A trial court can properly grant a motion for judgment on the pleadings only if the facts pleaded by petitioners, together with all reasonable inferences drawn therefrom, show petitioners cannot prevail under any legal theory. A.R.H. v. W.H.S., 876 S.W.2d 687 (Mo.App. E.D.1994). If matters outside the pleadings are presented to the court and not excluded, the motion is treated as one for summary judgment. Union Elec. Co. v. Public Service Commission, 591 S.W.2d 134 (Mo.App. W.D.1979). Our analysis here indicates matters outside the pleadings were presented to the court.

In actuality, the record indicates the parties and the trial court treated the Motion as the equivalent of a motion for summary judgment. We do the same here. Therefore, we conclude — even though the parties did not follow the procedure of Rule 74.04 — the trial court entered its judgment treating the Motion as one for summary judgment. Thus, we will apply a summary judgment standard of review and review the record in the light most favorable to the non-moving party, according the non-moving party the benefit of all inferences which may reasonably be drawn from the record, to determine whether Respondents have met their burden by “showing] a right to judgment flowing from facts about which there is no genuine dispute.” ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 378 (Mo. banc 1993). Our review is de novo. Wilson v. Rhodes, 258 S.W.3d 873, 875 (Mo.App. S.D.2008). We use the same criteria the trial court should have used in initially deciding whether to grant the Motion. Harris v. Smith, 250 S.W.3d 804, 806 (Mo.App. S.D.2008). This review is based upon the record submitted to the trial court. Sexton v. Omaha Property and Cas. Ins. Co., 231 S.W.3d 844, 845 (Mo.App. S.D.2007).

Analysis

The trial court’s judgment does not set forth any findings of fact or conclusions of law to support ruling in favor of Respondents. However, we can infer the trial court’s reasons from the record before us and the facts upon which the parties agree in their briefs on appeal. The trial court entered a judgment against Appellants in the amount of $118,134.46. The value of the joint bank account upon Decedent’s death was $129,134.46. The Power of Attorney authorized Anna and Jackie “to make inter vivos gifts of my property to my lineal descendants, including my attorneys in fact ... in an amount for any person that does not exceed in any year the annual gift tax exclusion.... ” The gift tax exclusion for the year of Decedent’s death was $11,000.00. The difference between $129,134.46 and $118,134.46, is $11,000.00. Thus, we deduce that the trial court determined that (1) Anna made a gift to herself by creating an account which included a right of survivorship to herself, (2) Anna was authorized to make this gift based on the language of the Power of Attorney, but (3) the language of the Power of Attorney also limited the permissible amount of the gift to $11,000.00.

We now turn to Appellants’ points relied on for review. We find the first point to be dispositive and, therefore, need not address the other two points. Appellants’ first point, although inartfully presented, asserts that the trial court erred in sustaining Respondents’ Motion because section 362.471.1 created a presumption that the money in the joint bank accounts became the sole property of Anna and Jackie upon Decedent’s death and that Respondents not only failed to present any evidence to rebut this presumption, there was an issue of fact presented, in addition to issues of law, as to the Decedent’s intent in the Power of Attorney describing inter vivos gifts to lineal descendants and her attorneys in fact.

There was no evidence before the court when the Motion was presented and considered. There was no statement of un-controverted facts, no testimony, no affidavits, no exhibits, nor any admissions or stipulations for the court to consider in ruling on the Motion. There was no compliance with Rule 74.04.

Nevertheless, Respondents’ Motion addressed to the trial court concedes some issues of fact. The Motion asked for judgment against the Appellants in the amount of $129,134.46, the full amount that Anna withdrew from the joint accounts. In that same Motion, the Respondents acknowledge that if the facts were found to be that the intent of the Power of Attorney was that Anna be considered a lineal descendant, then the permissible gift to her would be limited to $11,000.00. That evidently is what the trial court found because judgment was entered in the amount of $118,134.46, which is $11,000.00 less than $129,134.46, the amount withdrawn from the joint accounts by Anna. In the midst of this awkward procedure, the trial court itself remarked on the record on the morning of the second trial that it was taking the Power of Attorney to be ambiguous. The trial court was required to consider matters outside the pleadings to arrive at this judgment. No pleadings admit a permissible gift was made to Anna in the amount of $11,000.00. The trial court took it upon itself to determine the decedent’s intent with respect to any gift to Anna. The Decedent’s intent is a question of fact to be determined by the trier of fact.

It was error for the trial court to enter judgment when the pleadings and Respondents’ own Motion indicated there were issues of fact. None of the requirements as set forth in Rule 74.04 were before the court so that judgment, without a trial or compliance with Rule 74.04, is error. The trial court erred in granting judgment against Appellants in favor of Respondents in the amount of $118,134.46. Appellants’ Point I is granted.

We reverse and remand this matter to the trial court for a new trial under appropriate and recognized procedure, or any other appropriate proceedings which would be dispositive of the case without the necessity of a trial.

SCOTT, C.J., and LYNCH, P.J., concur.

      . Jackie Johnson was named as a third-party defendant. No appeal was taken as to the judgment in her favor and she is not a party to this appeal.

      . For ease of reference, we refer to most of the parties by their first names. We mean no disrespect or familiarity.

      . This motion is also referred to by the trial court as "Motion for Judgment as a Matter of Law”; these motions are one and the same and are collectively referred to herein as the “Motion.”

      . All references to statutes are to RSMo 2000, unless otherwise indicated. All rule refer-enees are to Missouri Court Rules (2010).

      . There was no request for findings of fact and conclusions of law pursuant to Rule 73.01(c). That is not a basis for error in the absence of a request. Hammons v. Ehney, 924 S.W.2d 843, 850 (Mo. banc 1996).

      . The argument portions of both briefs, coupled with the point relied on, sufficiently address the issues on which this appeal turns. Therefore, we review the contentions made in the argument portion of the brief ex gratia. Mann v. City of Pacific, 860 S.W.2d 12, 15 (Mo.App. E.D.1993) and Willis v. Most Worshipful Prince Hall Grand Lodge of Missouri & Jurisdiction, 866 S.W.2d 875 (Mo.App. E.D. 1993).


source: Caselaw Access Project

author: DON E. BURRELL, Judge.

license: Public Domain

text:
    J.K.M., Plaintiff-Appellant, v. Kenneth J. DEMPSEY, M.D., Defendant-Respondent.
    No. SD 29791.
    Missouri Court of Appeals, Southern District, Division One.
    July 28, 2010.

      Daniel H. Rau, Cape Girardeau, MO, for Appellant.
    Robert J. Amsler, Jr., and David L. Hares, St. Louis, MO, for Respondent.
   DON E. BURRELL, Judge.

J.K.M. (“Plaintiff’) appeals the trial court’s dismissal of his civil damages action against Kenneth J. Dempsey, M.D. (“Defendant”) based on Plaintiffs failure to timely file the health care affidavit required by section 538.225. Although Plaintiff attempted to avoid characterizing his claims against Defendant as based on medical negligence, the factual averments set forth in Plaintiffs petition required that such an affidavit be filed. Because Plaintiff did not file a health care affidavit within the time allowed by statute, the trial court was required to dismiss Plaintiffs action without prejudice upon Defendant’s motion and its judgment doing so is affirmed.

Factual and Procedural Background

When reviewing the trial court’s dismissal of a petition, we treat the facts pleaded as true and construe all averments liberally and favorably to the appellant. Kanagawa v. State, 685 S.W.2d 831, 834 (Mo. banc 1985). In accordance with that standard, the following is a summary of the factual averments of Plaintiffs petition.

On April 4, 2001, Plaintiff was taken by his mother to Ferguson Medical Group in Sikeston, Missouri for the treatment of warts he had on his right hand. At that medical facility, Defendant told Plaintiff and his mother that he was going to inject Plaintiff with the “famous Swiss wart burner vaccine.” Defendant then inserted an 18-gauge needle into Plaintiffs right buttock and injected what he later revealed to Plaintiffs mother was merely a saline solution. Plaintiff claims that Defendant did not have Plaintiffs consent to insert the needle into his body or inject him with saline solution and that any alleged consent was obtained by fraud and deceit.

Plaintiffs claims against Defendant were characterized as breach of fiduciary duty and assault and battery. Plaintiffs petition further alleged that “as a direct and proximate result of the aforementioned breach of fiduciary duty by [Defendant], [Plaintiff] has suffered physical injury, severe emotional distress, depression, great indignity, humiliation, nervousness, anxiety and worry.”

Along with his answer to Plaintiffs petition, Defendant filed a “Motion to Dismiss for Failure to File Health Care Affidavit, pursuant to Section 538.225[.]” The trial court heard Defendant’s motion to dismiss on June 26, 2008, at which time it granted Plaintiff thirty days to obtain the required health care affidavit. Plaintiff obtained the affidavit of Dr. James E. Palen, M.D. on July 11, 2008. Presumably in response to the filing of that affidavit, the trial court held a follow-up hearing on July 24, 2008. At that hearing, Defendant again moved to dismiss the petition, based on several alleged deficiencies in the affidavit obtained from Dr. Palen. Defendant’s specific complaints were:

a) It states that the health care provider believes [Defendant] breached the standard of care but fails to use the language set forth in the statute leaving to question whether the health care provider believes [Defendant] failed to use such care as a reasonably prudent and careful health care provider would have under similar circumstances;
b) It states the health care provider believed the breach of the standard of care was the proximate and direct cause of injury but fails to follow the statutory requirement that the health care provider must believe that [Defendant] failed to use such care as a reasonably prudent and careful health care provider would have under similar circumstances;
c) It fails to state whether James Palen, M.D. is licensed;
d) It fails to state whether James Palen, M.D. is currently practicing or whether he authored the written opinion within five years of his retirement;
e) It states that James Palen, M.D. is a general practitioner and he is not in the specialty of [Defendant], who practiced as a dermatologist and;
f) The health care affidavit fails to provide the address and qualifications of James Palen, M.D.

Defendant supported his motion with an affidavit in which he set out his specialization as a board-certified dermatologist. At the close of this hearing, the trial court granted Plaintiff an additional thirty days in which to obtain an appropriate health care affidavit. Plaintiff then filed an amended health care affidavit four days after the trial court’s thirty-day deadline had expired.

Plaintiff apparently understood that his amended affidavit was still deficient and requested by motion additional time, up to September 19, 2008, to obtain an amended affidavit in conformity with the trial court’s order. Although the trial court granted this request for additional time, Plaintiff never filed such an amended affidavit.

On September 18, 2008, Defendant filed his “Fourth Amended Motion to Dismiss for Failure to File Health Care Affidavit Pursuant to § 538.225, R.S.Mo[.]” This motion asserted, among other things, that the trial court lacked the “power to extend the time for [Plaintiff] to submit an affidavit pursuant to § 538.225, R.S.Mo. after the expiration of the first one hundred eighty (180) days.” On April 1, 2009, the trial court entered an order dismissing Plaintiffs case. On May 26, 2009, the trial court incorporated its previous order of dismissal and designated it as a judgment. Plaintiff now appeals that judgment of dismissal.

Analysis

Plaintiffs two points on appeal are not in compliance with the requirements of Rule 84.04(d). As Defendant has addressed Plaintiffs points on the merits and we do not believe the deficiencies substantially impede appellate review, we review Plaintiffs points ex gratia. See DeLong Plumbing Two, Inc. v. 3050 N. Kenwood LLC, 304 S.W.3d 784, 788 (Mo.App. S.D. 2010). The gist of Plaintiffs first point is that the trial court erred in requiring him to obtain a health care affidavit at all “in that there was no medical treatment provided by [Defendant] and he: breached the fiduciary duty owed to [Plaintiff]; that [Plaintiff] was assulted [sic] and battered by [Defendant]; and, that [Plaintiff] is entitled to puntivie [sic] damages as a result of the breach of fiduciary duty and/or being assaulted and battered.” Plaintiffs second point alleges, in toto, “The trial court erred in finding that the affidavit filed by [Plaintiff] in compliance with § 538.225 was deficient.”

Standard of Review

We review the grant of a motion to dismiss by the circuit court de novo. Gibbons v. J. Nuckolls, Inc., 216 S.W.3d 667, 669 (Mo. banc 2007). Matters of statutory interpretation and the application of the statute to specific facts are also reviewed de novo. Boggs ex rel. Boggs v. Lay, 164 S.W.3d 4, 23 (Mo.App. E.D.2005).

Point I: Was an Affidavit Required?

Section 538.225 provides:

1. In any action against a health care provider for damages for personal injury or death on account of the rendering of or failure to render health care services, the plaintiff or the plaintiff’s 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.
2. As used in this section, the term “legally qualified health care provider” shall mean a health care provider licensed in this state or any other state in the same profession as the defendant and either actively practicing or within five years of retirement fróm actively practicing substantially the same specialty as the defendant.
3. The affidavit shall state the name, address, and qualifications of such health care providers to offer such opinion.
4. A separate affidavit shall be filed for each defendant named in the petition.
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.
7.Within one hundred eighty days after the filing of the petition, any defendant may file a motion to have the court examine in camera the aforesaid opinion and if the court determines that the opinion fails to meet the requirements of this section, then the court shall conduct a hearing within thirty days to determine whether there is probable cause to believe that one or more qualified and competent health care providers will testify that the plaintiff was injured due to medical negligence by a defendant. If the court finds that there is no such probable cause, the court shall dismiss the petition and hold the plaintiff responsible for the payment of the defendant’s reasonable attorney fees and costs.

Section 538.225 (emphasis added).

Missouri courts have interpreted this section as applying to more than just medical negligence causes of action. Our Supreme Court has stated that “by using the words ‘any action’ in sec. 538.225.1, the legislature clearly demonstrated its intent that the statute not only apply to a negligence action” but should include other claims of personal injury against a health care provider. Budding v. SSM Healthcare Sys., 19 S.W.3d 678, 680 (Mo. banc 2000). The legislature also “intended to impose specific limitations on the traditional tort causes of action available against a health care provider.” Id. “Included in these limitations is [ ... ] the requirement that the cause of action be dependent upon an affidavit by a ‘legally qualified health care provider’ of failure to exercise reasonable care attributable to the defendant health care provider!)]” Id. (quoting section 538.225).

The appropriate question to ask when determining if a health care affidavit is required is whether the allegations against the defendant arise from the defendant’s actions as a health care provider. See Jacobs v. Wolff, 829 S.W.2d 470, 472 (Mo.App. E.D.1992). The plaintiff in Jacobs sued Dr. Wolff on theories of tor-tious interference with contract, negligent infliction of emotional distress, negligence, and prima facie tort. Id. at 471. The Eastern District held that section 538.225 applied because the claim for damages related to wrongful acts alleged against a health care provider, regardless of how the claims were characterized by the plaintiff. Id. at 472. See also Gaynor v. Washington Univ., 261 S.W.3d 650, 653-54 (Mo.App. E.D.2008) (a health care affidavit is still required by section 538.225 in a personal injury action in which proof is based on res ipsa loquitur).

“Health care services” are statutorily defined in Section 538.205(5) as

Any services that a health care provider renders to a patient in the ordinary course of the health care provider’s profession or, if the health care provider is an institution, in the ordinary course of furthering the purposes for which the institution is organized. Professional services shall include, but are not limited to, transfer to a patient of goods or services incidental or pursuant to the practice of the health care provider’s profession or in furtherance of the purposes for which an institutional health care provider is organized!.]

Section 538.205(5). See also Mello v. Gili-berto, 73 S.W.3d 669, 679 (MoApp. E.D. 2002) (quoting section 538.205(5) and holding that a health care affidavit was required when the plaintiffs true claims related to the wrongful acts of health care providers in providing health care services to the patient and the requested damages were for the patient’s personal injuries and resulting death).

This court addressed whether the health care affidavit required by section 538.225 must be filed in an action based on an intentional tort in St. John’s Reg’l Health Ctr., Inc. v. Windler, 847 S.W.2d 168, 171 (MoApp. S.D.1993). In St John’s, expounding on Jacobs, we articulated the test as follows: “[I]f a court determines that the relationship of the parties is that of health care provider and recipient and that the ‘true claim’ relates only to the provision of health care services, then the health care affidavit is mandatory.” Id. at 171. After applying this test, we concluded that the plaintiffs “true claim” required the filing of a health care affidavit because her claim (characterized as false imprisonment) was based on “the incorrect — or totally absent — medical determination that she needed to be confined.” Id. at 171.

The Western District, in Vitale v. San-dow, held that a health care affidavit was required in a suit for libel brought against physicians who published letters stating that the plaintiffs “physical symptoms were due to malingering.” 912 S.W.2d 121, 122 (Mo.App. W.D.1995). The court held that the statements were of a medical diagnosis and “constituted [the doctors’] evaluation of [the plaintiffs] condition, which is the precise reason he was referred to these doctors.” Id. at 122. Further, the court determined that the central issue at trial would be whether the plaintiff was, in fact, malingering. Id. For this reason, “the basis of [the plaintiffs] true claim for damages is that the doctors’ diagnosis was incorrect,” and a medical affidavit was therefore required. Id.

In the case at bar, Plaintiffs petition avers that Plaintiff “went to [Defendant’s] medical practice to obtain medical treatment for various skin conditions including warts.” The petition then claims that Defendant “owed a fiduciary duty to [Plaintiff] to properly inform [Plaintiff] of the medical benefits of the treatment to be performed to properly obtain his informed consent to participate in such treatment.” The petition further claims that Defendant “breached his fiduciary duty of obtaining consent to a worthless and painful course of medical treatment [ ... ].” (Emphases added).

Plaintiffs true claim is that Defendant failed to appropriately obtain informed consent and rendered improper medical services. “‘The basic philosophy in malpractice cases is that the doctor is negligent by reason of the fact that he has failed to adhere to a standard of reasonable medical care and that consequently the service rendered was substandard and negligent.’ ” Wuerz v. Huffaker, 42 S.W.3d 652, 656 (Mo.App. E.D.2001) (quoting Aiken v. Clary, 396 S.W.2d 668, 673 (Mo. banc 1965)). “This applies whether the alleged malpractice consists of improper care or treatment or a failure to sufficiently inform a patient to enable the patient to give informed consent to the treatment.” Wuerz, 42 S.W.3d at 656.

Because the true nature of Plaintiffs claim was that he suffered personal injury as a result of Defendant’s rendering of health care services, the trial court did not err in finding that Plaintiff was required to file a health care affidavit pursuant to section 538.225. Point I is denied.

Point II: Sufficiency of Affidavit Irrelevant Because Not Timely Filed

Section 538.225 requires that a health care 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.” Section 538.225.5. “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 538.225.6 (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). The trial court is required to dismiss the case if the plaintiff does not file the affidavit within the statutory time period. Gaynor v. Washington Univ., 261 S.W.3d at 652-53 (Mo.App. E.D.2008).

Plaintiff filed his Petition on April 20, 2007, and filed his first health care affidavit on July 11, 2008 — over a year after his petition was filed. This delay was well beyond the absolute 180-day limit imposed by section 538.225. Because section 538.225 required the trial court to dismiss Plaintiffs petition (upon Defendant’s motion) after the maximum time allowed for the filing of the health care affidavit had passed, the court committed no error in doing so. Whether Plaintiffs tardy affidavit otherwise complied with the requirements of section 538.225 is moot.

Plaintiffs second point is also denied, and the trial court’s judgment of dismissal is affirmed.

BARNEY, J., and BATES, P.J., concur.

      . The events described in Plaintiff’s petition were alleged to have occurred when Plaintiff was twelve years’ old. Plaintiff’s petition was filed six years later. Because this lawsuit was prosecuted in Plaintiff's own name, we presume it was not filed until after his eighteenth birthday. See Rule 52.02 (requiring that civil actions by minors “may be commenced and prosecuted only by a duly appointed guardian of such minor, or if there is no such guardian, by a next friend appointed in such civil action[.]”) Rule 52.02(a), Missouri Court Rules (2007). As the record does not reveal the actual date of Plaintiff's birth, we identify him only by initials out of an abundance of caution. In any event, Plaintiff will have attained the age of majority by the time any new lawsuit might be filed.

      . Unless otherwise indicated, all statutory references are to RSMo, Cum.Supp.2006.

      . Defendant's purported reason for injecting the saline was for its placebo effect.

      . The amended affidavit Plaintiff did file was ruled defective by the trial court in its Judgment and Order dated April 1, 2009.

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

      . Plaintiff argues in support of his first point that Defendant was not a "health care provider” in this case because "the relationship between a health care provider and a recipient is a consensual relationship!,]” that the consent necessary is an informed one, and Plaintiff did not consent to the insertion of the needle into his buttock. We cannot reconcile this argument with Plaintiff’s admission at oral argument that the fiduciary duty he alleges Defendant breached arose out of the doctor-patient relationship. Plaintiff has also failed to' provide any support for the notion that the consent necessary to create a doctor-patient relationship is dependent on consent to undergo specific procedures within a course of treatment. The cases cited by Plaintiff do not help him. In Corbet v. McKinney, 980 S.W.2d 166 (Mo.App. E.D.1998), it was held that no physician-patient relationship with defendant was created when the patient's personal physician merely contacted the defendant physician by telephone and discussed the patient's case. In Spruill v. Barnes Hosp., 750 S.W.2d 732 (Mo.App. E.D.1988), it was held that the plaintiff's breach of contract action was actually a malpractice claim, which was effectively barred under the applicable statute of limitation. In Barnhoff v. Aldridge, 327 Mo. 767, 38 S.W.2d 1029 (1931), it was held that the claim the plaintiff characterized as a breach of contract action was actually a medical malpractice action barred by the applicable statute of limitation.


author: DANIEL E. SCOTT, Chief Judge.

text:
    Dustin D. BURRAGE, Appellant, v. STATE of Missouri, Respondent.
    No. SD 29872.
    Missouri Court of Appeals, Southern District, Division Two.
    July 29, 2010.
    Alexandra E. Johnson, St. Louis, MO, for Appellant.

      Chris Koster, Atty. Gen., Karen L. Kramer, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
   DANIEL E. SCOTT, Chief Judge.

Dustin Burrage (Movant) was found guilty of second-degree murder and armed criminal action in a bench trial. His convictions were affirmed on direct appeal. State v. Burrage, 258 S.W.3d 560 (Mo.App.2008). His Rule 29.15 post-conviction claims were denied after an evidentiary hearing, and his appeal therefrom raises two points. We affirm.

The facts summarized in Burrage, 258 S.W.Bd at 561-63, are not important except as follows: Movant’s trial defense was that he shot the victim accidentally, so he was guilty of involuntary manslaughter, not murder. Movant’s trial counsel (Counsel) so contended in his opening statement and closing argument, and in support of that theory, Movant testified that he and his friends were chasing the victim; Movant had a pistol in his hand; the gun fired accidentally while Movant was trying to hit the victim with it; and Movant did not know he had killed the victim until the next day.

Point I

Movant claims Counsel was ineffective for failing to call Tanisha Richie as a trial witness, and that the motion court clearly erred in finding otherwise. We disagree with Movant for several reasons.

First, Movant failed to show Ms. Richie’s availability and willingness to testify at trial, which is fatal to his claim. See, e.g., Kelley v. State, 24 S.W.3d 228, 234 (Mo.App.2000).

Second, the motion court correctly found that Ms. Richie’s evidentiary hearing testimony, even if believed, did not support the claim in Movant’s amended Rule 29.15 motion that Lionel Jones pulled the trigger.

Third, Ms. Richie’s evidentiary hearing testimony—that she had no reason to think Movant had a gun or shot the victim, and that Movant never left the porch and thus never chased the victim— was contrary to Movant’s trial testimony and defense theory. Counsel explained at the evidentiary hearing that his trial strategy was “absolutely” not to call witnesses who would undercut Movant’s testimony or accident theory. An attorney is not ineffective for not calling a witness who would contradict the defendant’s testimony or undermine the theory of defense. Maclin v. State, 184 S.W.3d 103, 110 (Mo.App.2006). Point I fails.

Point II

Movant also claims Counsel tricked him into waiving a jury. The motion court’s findings and conclusions on this claim were, in pertinent part:

Four days before the trial, movant appeared before the trial court with his attorney and waived his right to trial by jury. On the day of trial, the court recited in open court on the record that movant had waived his right to a jury trial, and its finding that the waiver was made freely and voluntarily with a full understanding by movant of his rights and the consequences of the waiver. There is no showing that the trial court abused its discretion in accepting the waiver. The waiver appears in the record with unmistakable clarity. Movant proceeded to a bench trial without objection, and he did not object to the lack of a jury at sentencing or in his direct appeal. He does not question that he did waive a jury on the advice of his attorney; his claim is that his attorney tricked him into waiving a jury. The court finds that the trial attorney was credible in testifying as to the circumstances of waiving a jury, and the reasons for the waiver. The advice to waive a jury was reasonable trial strategy. Movant did not prove that his attorney tricked or otherwise improperly induced him to waive a jury, and he is not entitled to relief on his claim in paragraph 8(f) of the amended motion.

We will uphold such findings and conclusions unless they are clearly erroneous. Rule 29.15(k). Findings and conclusions are clearly erroneous only if a full review of the record definitely and firmly reveals that a mistake was made. Morrow v. State, 21 S.W.3d 819, 822 (Mo. banc 2000).

We have carefully reviewed the record and find no error, plain or otherwise. Movant alleged that Counsel tricked him into waiving a jury by “saying that he (trial counsel) was on good terms with the judge and could get seven years on a manslaughter charge,” but Counsel testified otherwise at the evidentiary hearing. Counsel may have told Movant that he was on good terms with the trial court, since he was on good terms with most judges, but not to suggest that this would result in any favors. Counsel thought the manslaughter argument would sell better to a judge than a jury, and that a bench trial was in Mov-ant’s best interest since his confession would probably come into evidence and given “the technicality of the distinction on that felony murder rule issue, ... I thought a judge or a person of the law would be better able to decide that.” Counsel and Movant discussed these strategic decisions and jury waiver, but Counsel flatly denied promising that Movant would get no more than a manslaughter conviction or seven years in prison.

Under no circumstances would I promise anyone what a judge will or won’t do. I mean, there’s no way I could make that promise, particularly when he’s charged with second-degree murder and not manslaughter. The hope was that the judge would agree that there was no underlying felonies to support a second-degree murder charge or conviction and the hope was that the judge would understand that technicality and maybe find him guilty of the manslaughter charge.

The motion court credited Counsel’s testimony and was entitled to do so. Fortner v. State, 186 S.W.3d 910, 912 (Mo.App.2006). The findings and conclusions on this issue are not clearly erroneous. We deny Point II and affirm the judgment.

BATES and FRANCIS, JJ., concur.

      . Rule references are to Missouri Court Rules (2008). Statutory cites are to RSMo 2000.

      . Her first and last names are spelled various ways in the record.

      .It also was contrary to Ms. Richie's statement to police, which implicated Movant in the shooting, and which could have been admitted as substantive evidence against Mov-ant if Ms. Richie testified otherwise at trial. See § 491.074.


text:
    In re the Marriage of: Rocio CORTEZ, Petitioner-Appellant, v. Jessus CORTEZ, a/k/a Jesus Cortez, Respondent-Respondent.
    No. SD 30099.
    Missouri Court of Appeals, Southern District, Division One.
    July 29, 2010.

      Susan F. Butler, Joplin, MO, for Appellant.
    Stephen P. Seigel, Springfield, MO, for Respondent.
   DON E. BURRELL, Judge.

Rocío Cortez (“Mother”) sent Jessus Cortez (“Father”) a certified letter informing him that in sixty days she would be moving with their daughter (“Child”) from Noel, Missouri (where Father also resided) to Dallas, Texas. Because Father did not file an objection to Mother’s proposed move within thirty days, Mother left as announced even though Father had at that point filed a motion opposing Child’s relocation. After holding an evidentiary hearing, the trial court entered a judgment denying the relocation and ordering Mother to return Child to Missouri. Under Missouri law, if a notice of proposed relocation complies with the requirements of section 452.377, a failure by the parent receiving the notice to file an objection within 30 days waives any objection to the proposed move and the parent giving notice has “an absolute right to relocate” the child. See Dent v. Dent, 248 S.W.3d 646, 648 (Mo.App. E.D.2008). Because Mother’s proposed relocation notice did not meet all of the requirements of section 452.377.2, Father’s failure to challenge it within thirty days did not deprive the trial court of its authority to deny Child’s relocation.

Factual and Procedural Background

Viewed in the light most favorable to the trial court’s judgment, Dixon v. Dixon, 62 S.W.3d 589, 592 (Mo.App. W.D.2001), the facts are as follows. Child resided primarily with Mother. On or about December 7, 2008, Mother sent Father the following letter by certified mail (“notice”):

I[,] [Mother][,] notify by this notarized letter the reason I need to leave the State of Missouri. I have Carp [sic] tunnel on my hands, which [sic] I just had a surgery on my left elbow not to [sic] long ago do [sic] to my job. I haven’t recovered well from that surgery[.] I still have a lot of pain and my doctor recommends me [sic] to leave my job because it can cause complications in my hands.
I believe that if I continue with this job I will not be able to provide a better future for my daughter. That’s why I have decided to move to Dallas, Texas, where I have the opportunity to go to school and educate myself and get a better job and maybe be self-employed for my daughter and me.
Also, I’ll be closer to my family, which right now I have [sic] my mom very ill, she was diagnosed with leukemia. Through this letter and this [sic] reasons I let [Father], father of my daughter [Child] know 60 days in advanced [sic] that I’m leaving the State of Missouri, and the addresses were [sic] we are going to live and the school where my daughter [Child] will be attending.
Towards the visitations we need to come to an agreement for the well being of my daughter and us. People who I will be living with are [a woman’s full name] and her son[,] [the son’s full name].

The address of the persons Mother said she would be residing with, along with the full name and address of the school Mother said Child would be attending, were then set out beneath Mother’s notarized signature.

On January 29, 2009 (fifty-three days after the date on Mother’s notice), Father filed an “Affidavit and Motion for Order Preventing Relocation of the Residence of the Minor Child, or in the Alternative, Modify the Judgment of Dissolution of Marriage.”

Without waiting for any ruling by the court on Father’s alternative motions, Mother moved with Child to Dallas on or about March 3, 2009. Father found out about the move by chance one day before it occurred when someone from Child’s school called to ask him if he wanted Child’s transcripts of her records. When Father said he did not understand what he was being asked about, Father related that the person on the phone said, “[W]ell, your ex just pulled her out of school and she— they’re leaving to Texas.”

On March 18, 2009, Mother filed a motion to dismiss Father’s motion to prevent relocation or modify the existing dissolution decree on the same grounds asserted in this appeal.

The trial court held an evidentiary hearing regarding Child’s relocation on July 30, 2009. According to Mother, she is not fluent in English but “can read it a little and [] write it a little.” When Mother was asked by Father’s counsel about the purpose of her move to Texas, the following exchange took place:

Q. And what was the purpose of you moving to Texas?
A. Because I want to go to school, I’m attending school there in Texas, I have exams next week and I want to improve myself. While I was here, I never did.
Q. Why did you move to Dallas?
A. Because I wanted to be with my family, my mother was sick and my mother has since passed away, but I had already sent the letter and everything.
Q. Was it your mother that was sick or your grandmother?
A. She was my mother because she’s the one that raised me. And I’m registered with all of her last names and everything.
Q. They live in Dallas?
A. No, she was in Mexico and that’s closer for me to get there than from here to there.
Q. So do you have any family that lives in Dallas?
A. No, just friends.[]

Mother also testified that the schooling she referred to was to help her “get [her] GED.” Mother testified that she was unable to find appropriate GED classes near Noel because none in that area were taught in Spanish.

Father testified that before Mother left for Texas, Father “saw [Child] every day at school, I would eat lunch with her ... on a daily basis.” Child also typically stayed with Father for an hour after school three or four times a week. Father had Child every Wednesday until 8:00 p.m. Once every two weeks, Child would stay with Father from Friday through Monday. Father was also the vice-president of the “pareni/teacher’s [sic] partnership” at Child’s school.

At the conclusion of the hearing, the trial court announced it was “going to deny the relocation. Also going to deny, and I think there was both, both sides have in the alternative, a motion to modify, [] those will be denied. We’ll stick with the original court order.” The trial court then ordered Mother to return Child to Missouri by September 7, 2009. On August 19, 2009, the trial court memorialized its previously announced ruling in the written judgment Mother now timely appeals.

Standard of Review

“Our review of the trial court’s ruling with respect to a § 452.377 motion to prevent a proposed relocation is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). We will affirm the trial court’s ruling if it is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law.” Herigon v. Herigon, 121 S.W.3d 562, 564-65 (Mo.App. W.D.2003) (internal citations omitted).

Analysis

In a single, narrow point relied on, Mother claims the trial court erroneously declared or applied the law when it ordered Mother to return Child to Missouri because Mother acquired an absolute right to relocate Child when Father did not object to her proposed relocation within 30 days of receiving Mother’s notice.

Section 452.377 governs the relocation of minor children of divorced parents and provides, in pertinent part:

1. For purposes of this section and section 452.375, “relocate” or “relocation” means a change in the principal residence of a child for a period of ninety days or more, but does not include a temporary absence from the principal residence.
2. Notice of a proposed relocation of the residence of the child, or any party entitled to custody or visitation of the child, shall be given in writing by certified mail, return receipt requested, to any party with custody or visitation rights. Absent exigent circumstances as determined by a court with jurisdiction, written notice shall be provided at least sixty days in advance of the proposed relocation. The notice of the proposed relocation shall include the following information:
(1) The intended new residence, including the specific address and mailing address, if known, and if not known, the city;
The home telephone number of the new residence, if known;
(2) The date of the intended move or proposed relocation;
(4) A brief statement of the specific reasons for the proposed relocation of a child, if applicable; and
(5) A proposal for a revised schedule of custody or visitation with the child, if applicable.

Section 452.377 (emphasis added).

“[T]o satisfy fully the notice requirements of § 452.377.2, other than the requirement that the notice be in writing by certified mail, the actual notice must also include the informational requirements of that subsection.” Herigon, 121 S.W.3d at 565 (citing Baxley v. Jarred, 91 S.W.3d 192, 205 (Mo.App. W.D.2002)).

Although Mother’s notice arguably did not state a “date” for her proposed move as required by section 452.377.2(3), it did provide Father with at least 60 days advance notice of her intent to relocate Child. In any event, we need not decide whether Mother’s notice met the intended date of move requirement set forth in section 452.377.2(3) because her failure to include in her notice a “proposal for a revised schedule of custody or visitation with [Child]” as required by section 452.877.2(5) is fatal to her claim.

The only reference to custody or visitation in Mother’s notice stated, “Towards the visitations [sic] we need to come to an agreement for the well being of my daughter and us.” We are not convinced that an announcement of a need to come to an agreement at some unspecified future time is the equivalent of the “proposal for a revised schedule of custody or visitation” mandated by section 452.377.2(5). See Swisher v. Swisher, 124 S.W.3d 477, 484-85 (Mo.App. W.D.2003), and Dorman v. Dorman, 91 S.W.3d 167, 172 (Mo.App. W.D.2002) (cases in which the parents providing notice of a proposed relocation had complied with section 452.377.2(5) by attaching revised parenting plans).

Although Mother correctly acknowledges in her brief that section 452.377.2 states a proposed relocation notice “shall” include the information required by each of its five subsections, Mother nowhere claims that her notice included a proposal for a revised contact schedule as mandated by section 452.377.2(5). Instead, Mother cites Baxley v. Jarred, supra, as support for an assertion that “strict compliance with [section 452.377.2] is not required.” As earlier noted, Baxley stands for the proposition that notice by certified mail is not required if actual notice is proven and all other requirements of section 4,52.377 are satisfied. 91 S.W.3d at 205-06 (emphasis added). As a result, Baxley is easily distinguishable and does not help her.

The trial court did not misstate or misapply the law. Mother’s point is denied, and the judgment is affirmed.

BARNEY, J„ and BATES, P.J., Concur.

      . Father’s first name is spelled in various pleadings as either "Jessus” or "Jesus.” We use the spelling used by Mother in her notice and by Father in his brief.

      . All statutory references are to RSMo 2000.

      . This concept of automatic approval is sometimes referred to as "non-court-ordered relocation.” See, e.g., Melton v. Collins, 134 S.W.3d 749, 751 (Mo.App. S.D.2004).

      . Although a copy of the dissolution decree was not included in the record on appeal, the parties' marriage was apparently dissolved on July 2, 2008, in a decree that awarded them “joint custody” of Child and designated Mother's address as Child's principal residence.

      . Although the record does not reveal the date on which Father actually received Mother’s notice, Father does not dispute Mother's claim that he received it more than 30 days before he filed any objection to Mother’s announced intention to relocate.

      . An unidentified person was sworn in by the trial court to interpret the proceedings for Mother.

      . One of Father’s concerns about Child’s relocation to Texas was that Mother was pregnant with a child fathered by Mother's boyfriend who was an illegal alien from Mexico. According to Father, Mother had threatened “that at some point they could probably just get up and leave to Mexico and I'd never see [Child] again.”

      . We presume this is an acronym for "general equivalency diploma.”

      . Although one of the caption headings in Mother’s written response to Father’s alternative motions was entitled “Motion to Modify,” that response simply asked the trial court to deny Father’s motions — it did not request modification of the existing decree.

      . Because Mother's point claims only that she was entitled to an automatic relocation, our review in this case is correspondingly narrow. Mother has not challenged the sufficiency of the evidence to support the trial court’s decision, has not claimed that the court abused its discretion, and has not asserted that the denial of relocation was not in Child’s best interest. Instead, Mother has chosen to rely entirely on her claim that Father’s failure to timely object to her announced relocation gave her an absolute right to non-court-ordered relocation and deprived the trial court of "jurisdiction to hear the case.” In accordance with the principles set forth in J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009), we construe Mother's assertion that the trial court lacked "jurisdiction” as a claim that it lacked the statutory authority necessary to hear Father’s request for relief.

      . Because of the significant distance between Noel, Missouri and Dallas, Texas, the contact schedule being utilized by the parties before the relocation was no longer practicable and would have to be modified. See In re S.E.P. v. Petry, 35 S.W.3d 862, 871-72 (Mo.App. W.D.2001) (stating it was unrealistic to expect the father and child to have a visitation schedule including single and part-day visits given the distance between them). As a result, we find that a "proposal for a revised schedule” was "applicable” in this case. Melton v. Collins, 134 S.W.3d 749 (Mo.App. S.D.2004), is instructive here. The notice in Melton was defective because it was sent after the move, provided only a temporary address and "failed to include all of the information required by section 452.377.2, in that it did not provide the home telephone number, the date of the intended move or relocation, a brief statement of the specific reasons for the proposed relocation, or a proposal for a revised schedule of custody or visitation." Id. at 754 (emphasis added).

      . Further, when Father argued in his brief that Mother’s failure to include a proposed contact schedule defeated her claim that she had complied with all of the provisions of section 452.377, Mother stood silent and did not file a reply brief challenging that assertion.


author: JEFFREY W. BATES, Presiding Judge.

text:
    Terry W. Dixon and Cynthia CROSSLAND, Plaintiffs-Appellants/Respondents, v. Thomas D. THOMPSON, Defendant-Cross-Appellant/Respondent.
    Nos. SD 29900, SD 29913.
    Missouri Court of Appeals, Southern District, Division One.
    July 30, 2010.

      John Alan Cowherd, Mt. Vernon, MO, for Appellant/Respondent Terry W. Dixon.
    James Michael Riehn, Cassville, MO, for Appellant/Respondent Cynthia Crossland.
    Craig Frederick Lowther, Springfield, MO, for Cross-Appellant/Respondent.
   JEFFREY W. BATES, Presiding Judge.

This case arises from a delinquent land tax auction, conducted pursuant to Chapter 140 RSMo, at which Terry Dixon and Cynthia Crossland (referred to individually by their surnames and collectively as Purchasers) bought real estate previously owned by Thomas Thompson (Thomas). In an action to quiet title, the trial court found in favor of Purchasers, but they were ordered to pay Thomas for improvements to the real estate. Purchasers appealed from the ruling concerning the improvements. Thomas cross-appealed. He contends Purchasers failed to provide proper notice of Thomas’ redemption rights as required by § 140.405. This Court agrees with Thomas. Therefore, the judgment is reversed, and the cause is remanded with instructions.

I. Standard of Review

Our standard of review in a court-tried action is well established. The trial court’s judgment will be sustained unless no substantial evidence supports it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Drake Development & Constr., LLC v. Jacob Holdings, Inc., 306 S.W.3d 171, 173 (Mo.App.2010).

II. Factual and Procedural Background

In September 1995, Thomas purchased a home and surrounding property located in Crestwood West subdivision near Shell Knob, Missouri (hereinafter, the property), from Ed and Ella Evans (the Evanses). Thomas was represented at the closing by attorney David Cole (Cole). At the time of purchase, a deed of trust was placed on the property in favor the Evanses, who lived in Aurora, Missouri. Thomas testified that the deed of trust remains on the property, and he still makes payments to the Evanses.

Thomas and his father Vern Thompson (Vern) were partners operating a livestock farm known as Thompson Hereford Farms. Vern lived in Truro, Iowa. The partners provided all necessary funding for the property in Shell Knob, including paying all taxes and bills for the property. The partners used Vern’s address in Truro (the Truro address) as the mailing address for such items.

Prior to 2000, Thomas received his tax statements for real estate taxes on the property from the Barry County Collector’s Office (the Collector’s Office) at an address in Hatfield, Missouri (the Hatfield address). In 2000, Thomas updated his address with the Collector’s Office to the Truro address. Thomas testified that the Collector’s Office successfully changed his address to the Truro address on the personal property tax rolls. Thomas received personal property tax statements each year and paid them. The Collector’s Office, however, did not change the address on the real estate tax rolls. The address on that tax roll was left as the old Hatfield address. Consequently, Thomas did not receive the real estate tax statements and did not pay them in 2001 through 2003. At some point in 2004, Thomas decided to sell the property. He placed a for-sale sign, which included his 641 area code Iowa telephone number, in his yard.

In August 2004, the Barry County Collector (the Collector) sold the property to recover the delinquent real estate taxes. Purchasers were the high bidders and paid $6,800 to the Collector. On August 23, 2004, Purchasers received a “Receipt of Bid” and a “Certificate of Bid” from the Collector. On August 25, 2005, Purchasers received a Collector’s Deed. From August 2004 through August 2005, Purchasers were represented with respect to the tax sale issues by attorney Cole.

In September 2005, Purchasers filed a petition to quiet title. Thomas did not file an answer or appear at the trial held on November 22, 2005. That same day, Purchasers obtained a judgment from the trial court divesting Thomas of title to the property and confirming valid title in Purchasers. Within a few days, Thomas learned of the judgment and obtained counsel. On November 28, 2005, Thomas’ attorney sent Purchasers a letter, which, inter alia, offered to repay Purchasers the charges they had incurred for taxes on the property together with interest, “in exchange for a complete release and novation of the [Collector’s] deed.” When that offer was not accepted, Thomas filed a motion to set aside the judgment. After a hearing, Thomas’ motion was denied. On appeal, this Court reversed and remanded with directions for the trial court to sustain Thomas’ motion to set aside the judgment and grant him a new trial. Dixon v. Thompson, 235 S.W.3d 568, 574 (Mo.App.2007).

In September 2008, Thomas filed a four-count, first amended counterclaim. Count I asked the trial court to quiet title. Count II asked the court to invalidate the Collector’s Deed and declare Thomas the sole owner of the property. Counts III and IV requested alternative relief. Count III asked the court to award Thomas the value of his improvements to the property pursuant to § 524.160 RSMo (2000). Count IV asked the court to award Thomas the difference in the property’s value before and after the improvements, whichever was greater, to cure any unjust enrichment. In March 2009, the court conducted a bench trial and heard evidence on Purchasers’ petition to quiet title and Thomas’ counterclaim. The following is a summary of the evidence at trial concerning Purchasers’ efforts to provide notice to Thomas of his redemption rights at his last known available address.

As noted above, attorney Cole represented Purchasers during the tax sale. Cole’s legal assistant, Lisa Deffenbaugh (Deffenbaugh) testified on behalf of Purchasers. Deffenbaugh said that she “did most of the work” when Cole handled a tax sale. Dixon gave Deffenbaugh the Purchaser’s Receipt of Bid, Certificate of Purchase, and an instruction letter from the Collector. She then performed a title search and reviewed the results. On May 17, 2005, she sent the statutory notice (the notice) by certified mail to: (1) the Ev-anses, who held the publicly-recorded deed of trust on the property, at an Aurora, Missouri address; and (2) Thomas at the Hatfield address, which was obtained from real estate records in the Collector’s Office. The notice stated:

You are hereby notified, pursuant to R.S.Mo. 140.405, that the undersigned did on the 23rd of August, 2004, purchase the above-described real estate at tax sale for non-payment of county real estate taxes; that after 90 days from the date of this notice, the undersigned will apply to the county collector of Barry County, Missouri, at Cassville, Missouri, for a collector’s deed for taxes conveying said real estate to the undersigned, or his assigns; that should you have any right to redeem your security or claim on the real property, you should exercise such right prior to the expiration of said 90 day period.

Both the notice to the Evanses and the notice to Thomas were returned, “not deliverable as addressed, unable to forward.” Thomas did not receive the statutory notice mailed to the Hatfield address.

In May 2005, Dixon obtained Thomas’ 641 area code telephone number from the for-sale sign in Thomas’ yard and delivered it to Cole’s office. Deffenbaugh testified that she then attempted to call Thomas, which is something she did not typically do on a tax sale. No one answered when Deffenbaugh called that number, so she left a message. On May 26, 2005, she received a phone message about the call and was asked to call back at a different 641 area code number. When she called that number, she spoke with Vern. Deffen-baugh indicated the following occurred during that conversation. “I said, ‘There are some problems with [Thomas’] taxes. If you could have [Thomas] return our call or he might check into that.’ I did not give a lot of information because it was not the owner of the property.” Vern responded by saying “[t]here’s no problem with the taxes.” Neither person said anything more after that comment. Deffen-baugh could not remember whether she asked Vern for Thomas’ current address. Deffenbaugh thought she probably left her number with Vern, but she could not remember for sure.

Deffenbaugh testified that, other than talking to Vern by telephone, she made no other efforts to contact or locate Thomas. Deffenbaugh admitted that Cole did not ask her to find Thomas. Neither Cole nor Deffenbaugh performed an internet search or looked within the office’s own files to find Thomas’ 1995 contact information.

Cole testified that he normally seeks the last known address for individuals at the Collector’s Office, and he followed his “normal procedure” in this case. After the letter to the Hatfield address was returned, Cole said he did not have another address for Thomas. On cross-examination, Cole acknowledged that his firm closed the transaction when Thomas purchased the property and signed a deed of trust in the mid-1990s. Cole admitted Thomas’ file, that included at least initial contact information from which to follow up, was still in his office. Although he knew Thomas was not claiming mail at the Hatfield address, Cole admitted he did “no independent investigation to try to find” Thomas. Cole knew about the phone number delivered by Dixon. He instructed Deffenbaugh to call the number, which was an “unusual step” for Cole. He could not remember if he ever asked Dixon for a new address for Thomas, but he stated he relied on Dixon to give him all of the information Dixon had to find Thomas.

Dixon testified that he lived near the property and was a landowner, along with Crossland, in the Crestwood West subdivision. Dixon admitted he was a member of the board of directors for the Crestwood West Lot Owners Association, Inc. (the association) during 2003, 2004 and 2005. He knew there was a homeowners’ association directory (directory) produced by the association. The directory for August 2004 had the following entry: “Thomas Thompson, [the Truro address], [641 area code phone number], [417 area code number].” Based on the information provided to the association, Thomas received the water bill for the property from the association at the Truro address. Those bills were paid by Thomas.

Dixon admitted he had a 2004 directory on top of his refrigerator. Dixon also admitted that Thomas’ correct address, the Truro address in Iowa, was on file with the association. Nevertheless, Dixon did not obtain any other address for Thomas and did not provide the Truro address to Cole. Dixon also testified that he believed Yern was the actual owner of the property. Dixon admitted he had called Vern for approval on a dock proposal and knew how to reach Vern “when [Dixon] needed him.” Dixon did not call Vern, however, to discuss the tax sale or obtain a good address for him.

Dixon further testified that he knew Thomas could redeem the property within one year, and that he “didn’t want to know” who was maintaining the property during the year after the tax sale. During that time, Thomas and his family installed new shutters and siding over Christmas 2004, and a new deck in the summer of 2005. Dixon also admitted he noticed someone was mowing the yard at the property during the year after the tax sale, but never wondered who was doing the mowing. Dixon knew someone was paying for the utilities and water during the year after the tax sale, but he did not check to see who was doing so. Despite this knowledge, the only thing Dixon did when Thomas’ statutory notice came back undelivered was to pass along the number on the property’s for-sale sign to Cole’s office. Dixon did nothing else to find a good address for Thomas.

Thomas testified about numerous contacts he had with Dixon over several years. Thomas testified about an incident that occurred at a boat dock in June 2003:

Q. Can you tell the Court about— about this instance at the dock?
A. We were down there. Mr. Dixon, obviously, he’d come down. He’s pretty distinguished. You can know who he is. You could recognize him if you saw him once. We were down there. He asked who I was, and I told him that I owned a house up above him, I had — I can be there because you have to be a lot owner or a homeowner or with somebody that owns to be down there on the docks or be using the facilities there. And I told him who I was, where I live. I don’t live only probably a hundred yards or so up the road from him. And then he — he told me — then, he goes, ‘Well, if you guys don’t quiet down, I’ll call the law on you.” So right there, he — like I say, he had asked who I was, you know, did I own a home there. Yes, I did.
Q. And you’re sure this was Terry Dixon?
A. Yes.

During July 2005, Dixon drove by the property while Thomas was building a deck on the house. Dixon saw Thomas and waved at him. This was after Dixon and Crossland had purchased the property at the tax sale. Dixon did not stop, talk to Thomas or ask why he was building a deck on a house that Dixon believed he and Crossland had purchased. At no time after August 28, 2004, when Dixon saw Thomas did Dixon ever mention anything about the tax sale, the Collector’s Deed, or this case. Dixon never called, wrote or left notes on the property.

In June 2009, the trial court entered judgment in favor of Purchasers. The trial court found that “the last known available address was obtained from the Collector’s office.” The court decided Purchasers “made reasonable efforts” in updating the address because Dixon obtained the telephone number from the for-sale sign on the property and delivered it to Cole’s office. The court reasoned that “[Deffenbaugh] called the number and left a message stating there were problems with the taxes on the real estate in question.” The court found that Thomas “chose to ignore the telephone call regarding the tax problems.” The court decided Purchasers acted in good faith and exercised due diligence in obtaining Thomas’ last known available address to notify him of his right to redeem the property. The court quieted title to the property in Purchasers. The court also found that Thomas was entitled to reimbursement for improvements to the property and rendered a money judgment in his favor for $15,845.49. This appeal and cross-appeal followed. Additional facts necessary to the disposition of the case are included below.

III. Discussion and Decision

Purchasers present four points on appeal. Each point alleges that the trial court erred in its determination that Thomas was entitled to reimbursement for improvements to the property. Thomas presents seven points in his cross-appeal. Because Thomas’ first point has merit and is dispositive of all issues in these two appeals, we need not address the parties’ other points.

In Thomas’ first point, he contends the trial court erred in determining that Purchasers acted in good faith and exercised due diligence in providing notice of Thomas’ redemption rights at his last known available address, as required by § 140.405. In pertinent part, this statute states:

Any person purchasing property at a delinquent land tax auction shall not acquire the deed to the real estate, as provided for in section 140.420, until the person meets with the following requirement or until such person makes affidavit that a title search has revealed no publicly recorded deed of trust, mortgage, lease, lien or claim on the real estate. At least ninety days prior to the date when a purchaser is authorized to acquire the deed, the purchaser shall notify any person who holds a publicly recorded deed of trust, mortgage, lease, lien or claim upon that real estate of the latter person’s right to redeem such person’s publicly recorded security or claim. Notice shall be sent by certified mail to any such person, including one who was the publicly recorded owner of the property sold at the delinquent land tax auction previous to such sale, at such person’s last known available address. Failure of the purchaser to comply with this provision shall result in such purchaser’s loss of all interest in the real estate.

Id. (emphasis added). “A delinquent tax sale purchaser’s failure to comply with any of the above notice requirements will result in its losing all interest in the real estate as a matter of law.” CedarBridge, LLC v. Eason, 298 S.W.3d 462, 466 (Mo.App.2009) (italics in original); see Valli v. Glasgow Enterprises, Inc., 204 S.W.3d 273, 276-77 (Mo.App.2006). If proper notice is not given, then the collector’s deed is void. Schlereth v. Hardy, 280 S.W.3d 47, 53 (Mo. banc 2009).

In Bullard v. Holt, 158 S.W.3d 868 (Mo.App.2005), this Court explained what is meant by “last known available address” in § 140.405:

In order to satisfy the statutory requirement that notice be given to the owner at the “last known available address,” we hold that the purchaser must use due diligence to notify the owner at the last known “available” address. What that means is that the word “available” in section 140.405 encompasses the concept that reasonable efforts should be used to notify the owner that someone else is claiming an interest in the property.

Id. at 871.

The trial court found that Purchasers used due diligence to notify Thomas at his last known available address. Thomas contends this ruling was erroneous for two reasons.

Thomas first argues that the judgment is not supported by the evidence because Purchasers’ decision to send notice only to the Hatfield address on file at the Collector’s Office was not reasonable, given the other means readily available to Purchasers to ascertain Thomas’ actual address. This Court agrees.

In Bullard, the purchaser sent the requisite notice only to the address listed by the county collector’s office, and that notice was returned as undeliverable. Purchaser was aware of a for-sale sign on the property listing the realty contact information and had actually contacted the realty office to inquire about purchasing the property. The title owner’s correct address was contained in the realty company’s records. Bullard, 158 S.W.3d at 870. Purchaser, however, did not contact the realty company to update the title owner’s address for sending the notice. Purchaser also admitted she made no further effort to notify the title owner of his rights to redeem the property. Purchaser claimed she had no further statutory duty to provide notice to the title owner of the property under § 140.405. The issue before this Court was “whether a purchaser complies with the statute by only sending notice to the address on the tax records when the purchaser has actual notice that the address is incorrect and when the correct address is readily attainable.” Id. at 871. This Court concluded that the purchaser did not comply with the statute, explaining that “[w]e acknowledge that due diligence will be a factual question that varies from case to case, but we have no problem holding, under the facts of this case, that the purchaser did not make any reasonable effort to notify the titled owner of the property about her claimed interest in the property.” Id. at 871-72; see also Schler-eth, 280 S.W.3d at 52-53 (statutory notice of redemption rights under § 140.405 sent to former property owner via certified mail, which was returned unclaimed, was insufficient notice under due process clause; some follow-up is required to ensure notice reaches former property owner). We reach the same conclusion here.

Purchasers sent the notice only to the address listed by the Collector’s Office and knew the notice was returned as undeliverable. Although Purchasers did obtain the telephone number from the property’s for-sale sign, calling that number did not result in an updated address. Both Dixon and Cole had several other opportunities to update Thomas’ address, but neither acted on any of those opportunities that were easily accessible to them. Thomas’ correct address was in the 2004 homeowner’s association directory on top of Dixon’s refrigerator, but he did not use it to ascertain Thomas’ true address. Dixon also was on the association’s board, and its records likewise contained Thomas’ correct address. Dixon did not consult those records. Dixon testified that he believed Vern owned the property, and Dixon had contacted Vern for other purposes such as boat dock issues. Dixon did not contact Vern to obtain an updated address. Dixon ignored the obvious fact that the property was being maintained and improved after the August 2004 tax sale occurred. He did not visit the property or make any inquiry about who was doing the maintenance or improvements. He did not ask who was paying the water and utility bills during the redemption period. Dixon admitted that he “didn’t want to know” this information. In addition, Cole had Thomas’ file from his earlier purchase of the property, which contained contact information for him. Cole did not even check his own file to find a correct address for Thomas. The record abounds with evidence that Purchasers could have found Thomas’ correct address with very little effort and provided him with the statutory notice to which he was entitled pursuant to § 140.405. By sending the notice only to the address listed on the real estate tax rolls at the Collector’s Office, Purchasers failed to act in good faith and exercise due diligence in obtaining Thomas’ last known available address so as to notify him of his right to redeem the property. See Bullard, 158 S.W.3d at 871-72. The trial court’s contrary finding is not supported by the evidence.

Thomas also argues that the trial court misapplied the law in relying on Deffenbaugh’s phone message regarding the property’s tax problems as being sufficient notice under § 140.405. Thomas asserts that this telephone message was insufficient because Deffenbaugh did not tell Vern when the redemption period ended. Once again, we agree with Thomas.

After purchasing the property at the tax sale, Purchasers were not entitled to a deed to the real estate unless they provided Thomas with the notice required by § 140.405. Glasgow Enterprises, Inc. v. Rossel, 209 S.W.3d 498, 503 (Mo.App.2006). Deffenbaugh’s telephone conversation does not satisfy the statutory requirements because the notice was neither personally served upon Thomas nor sent to him by certified or regular mail. Id. In addition, Deffenbaugh did not tell Vern that: (1) the property had been sold at a tax sale; (2) Purchasers intended to apply for a collector’s deed; or (3) how long Thomas had to redeem the property. Thus, the purported “notice” given orally by Deffenbaugh was insufficient as a matter of law. Id.; Drake Development & Constr., LLC v. Jacob Holdings, Inc., 306 S.W.3d 171, 174 (Mo.App.2010) (holding that a redemption notice must inform persons of the time frame for redemption); Hames v. Bellistri, 300 S.W.3d 235, 239 (Mo.App.2009) (notice failed to state the correct redemption period).

For both of the reasons discussed above, the trial court erred in determining that Purchasers exercised good faith and due diligence in providing notice to Thomas at his last known available address. See Schlereth, 280 S.W.3d at 52-53; Glasgow, 209 S.W.3d at 503; Bullard v. Holt, 158 S.W.3d 868, 871-72 (Mo.App.2005).

Purchasers argue, however, that Thomas is not entitled to have the Collector’s Deed set aside as void because he failed to comply with the provisions of § 140.600 RSMo (2000), which states:

1.No suit or action in any of the courts of this state, either at law or in equity, shall hereafter be maintained by any person or corporation, against any other person or corporation, for the determination of the title to, or for the recovery of the possession of, any lands which shall have been sold for taxes, or any interest in any such lands, or for the setting aside or cancellation of any tax deed or sale of land for taxes alleged to have been void, voidable or defective, unless such person or corporation so seeking to recover such lands, or some interest therein, or the setting aside of such tax deed or tax sale, shall in his petition offer to refund to the defendant therein, or to such other person or corporation, from whom and against whom such recovery is sought, in such action, all taxes paid by such defendant, or other persons, and his grantors, remote or immediate, or by those under whom he claims, together with interest thereon from the date of payment of such taxes to the date of the judgment in such action.
2. No actual tender shall be required to be made by such plaintiff or other person seeking such recovery or cancellation of such deed, but it shall be deemed sufficient if an offer to pay the same, as soon as the amount thereof shall be ascertained, shall be made and set out in such petition.
3. All courts before which any such action may be brought or maintained shall, if the judgment in such action be adverse to the defendant, or defendants therein, and the recovery of such land, or any interest therein, be adjudged or decreed, find and adjudge by its decree or judgment the amount of money due to the defendant, or to other persons, on account of taxes or interest thereon paid as aforesaid by defendant or his grantors as aforesaid, and all such courts may, if such relief be prayed for in the answer, or the other pteading of the defendant, or other person, entitled to reimbursement, adjudge and decree that the amount so found by the court, or a jury, shall be and constitute a lien upon the lands recovered or in controversy.

Id. The following additional facts are relevant to this argument.

In Thomas’ counterclaim, he did not include an offer to refund all taxes paid by Purchasers. At trial, the November 28, 2005 letter in which Thomas offered to refund Purchasers all the taxes paid, plus interest, was admitted in evidence. Thomas also testified that such an offer had been made and continues to be made. Thomas later moved that the pleadings be amended to conform to the evidence, and the court granted Thomas’ motion. On appeal, Purchasers do not challenge the court’s rulings admitting evidence of the offer or amending the pleadings. Instead, Purchasers maintain Thomas is barred from recovery under § 140.600.1 RSMo (2000) because he failed to include the offer “in his petition.”

Thomas argues that, because the pleadings were amended to conform to the evidence, the pleadings contain the offer and thereby meet the statutory requirement of § 140.600.1 RSMo (2000). See Rudd v. Scott, 351 Mo. 1206, 175 S.W.2d 774, 775-76 (1943) (although offer not made in petition, evidence of offer was admitted at trial; the petition was considered amended to conform to the proof). Under the circumstances, Purchasers’ argument that Thomas is barred from recovery completely lacks merit. Id. Moreover, even if no offer had been made for the repayment of taxes and interest, the trial court could cure any deficiency by ordering the party seeking relief to pay back the taxes and interest. See, e.g., Glasgow Enterprises, Inc. v. Kusher, 231 S.W.3d 201, 204 (Mo.App.2007) (“the trial court could satisfy the statute’s intent where the party had not”); Greenwich Condominium Ass’n v. Clayton Inv. Corp., 918 S.W.2d 410, 415 (Mo.App.1996) (similar holding).

Thomas’ first point is granted. Because Purchasers failed to comply with the notice provisions under § 140.405, they lost all interest in the property. § 140.405; Drake Development & Constr., LLC v. Jacob Holdings, Inc., 306 S.W.3d 171, 174 (Mo.App.2010). Accordingly, the Collector’s Deed to Purchasers is void. Schlereth, 280 S.W.3d at 53. In conformity with Thomas’ offer at trial, he must reimburse Purchasers for “all taxes paid ... together with interest thereon from the date of payment of such taxes to the date of the judgment in such action.” § 140.600.1 RSMo (2000); CedarBridge, LLC v. Eason, 293 S.W.3d 462, 470 (Mo.App.2009); Rudd, 175 S.W.2d at 776; Heppler v. Esther, 534 S.W.2d 533, 537 (Mo.App.1976). If necessary, the court may take additional evidence on this issue.

The trial court’s judgment is reversed, and the cause is remanded. On remand, the court is instructed to: (1) vacate the June 2009 judgment; (2) declare the Collector’s Deed void; (3) quiet title to the property in Thomas; (4) determine the amount Thomas owes Purchasers for taxes they paid, plus interest; and (5) enter judgment in favor of Purchasers and against Thomas for that sum.

BARNEY and BURRELL, JJ., concur.

      . All references to statutes are to RSMo Cum. Supp. (2004) unless otherwise specified. Because the transcript contains references to both Thomas Thompson and his father, Vern Thompson, we will refer to them by their given names.

      . The bid amount bid included: (1) payment of real estate taxes that had accrued from 2001 — 2003, which totaled $2,053.21; (2) an advertising fee of $35; and (3) a surplus of $4,711.79.

      . Vern testified he did not remember receiving any such a telephone call from Deffen-baugh. Thomas testified that he did not know about any such telephone call until after the fact.

      . Although the phone call was to Vem, the trial court imputed knowledge of the tax problems to Thomas because he and Vern were partners.

      . At trial, Thomas testified that he believed he had paid all of his real and personal property taxes when he paid the tax bill he received from the Collector's Office. In the judgment, the court found that "it was [Thomas] who did not exercise due diligence and acted in bad faith believing that he was receiving a windfall regarding the tax bill.”

      . In Schlereth, the Court explained that a tax sale buyer is well advised to ensure notice reaches the former owner because "[t]he interest 'of the tax buyer ... is to quiet title and settle his interest in the property so that his title cannot be set aside on the grounds that the notice — which he is required to send to the tax-delinquent former owner as to [his or her] redemption rights — was constitutionally insufficient.” Schlereth, 280 S.W.3d at 52-53.

      . As noted in Schlereth, if the certified mail notice is unclaimed, a tax purchaser would be well advised to personally serve the notice using a process server or send the notice by regular mail, with the presumption of receipt that arises from such action. Schlereth, 280 S.W.3d at 52-53.