author: PATRICIA L. COHEN, Judge.

text:
    Leroy NOAH, Appellant, v. LINDBERGH INVESTMENT, LLC and Division of Employment Security, Respondents.
    No. ED 94029.
    Missouri Court of Appeals, Eastern District, Division Five.
    Sept. 7, 2010.

      Martin L. Perron, St. Louis, MO, for appellant.

      Lindbergh Investment, LLC (pro se) c/o K. Bahakita, Bridgeton, MO.
    Jeannie D. Mitchell (Div. of Employment Security) Jefferson City, MO, for respondents.
   PATRICIA L. COHEN, Judge.

Introduction

Leroy Noah (Claimant) appeals from the decision of the Labor and Industrial Relations Commission (Commission) finding him ineligible for unemployment compensation benefits because he voluntarily left his employment without good cause attributable to his work or his employer. Because the undisputed evidence before the Commission showed that Claimant did not voluntarily leave his work, but rather was discharged for misconduct, we reverse and remand to the Commission with instructions to modify its decision in a manner consistent with this opinion.

Background

On August 7, 2009, the Deputy of the Division of Employment Security (Division) denied Claimant’s claim for unemployment benefits after determining that Claimant had voluntarily left his work without good causes attributable to his work or his employer, Lindbergh Investments, d/b/a Best Western (Employer). Claimant filed an appeal with the Division’s Appeals Tribunal contending that he did not voluntarily leave his work, but was discharged. The Appeals Tribunal held a hearing where the following undisputed evidence was adduced:

Claimant worked for Employer as a shuttle driver transporting passengers between Employer’s hotel and the airport. Claimant customarily worked the 4 a.m. to 3 p.m. shift on Saturdays and Sundays.

Claimant was scheduled to work on May 23 and 24, 2009, which fell on the Saturday and Sunday of Memorial Day weekend. On April 26, 2009, Claimant requested those days off. On or about May 20, a supervisor called Claimant and informed him that he could not grant Claimant’s request for leave. The supervisor explained that another, employee with more seniority had requested the same days off and that no one else was able to work Claimant’s shift. Claimant acknowledged that his supervisor had the authority to deny him the time off.

The following day, on May 21, 2009, Claimant faxed Employer a message stating, “I will not be in on May 23 + 24, 2009. I am sick.” Claimant admitted that he did not know whether he would actually be sick on May 23 and 24. Rather, Claimant sent the letter so that he could have the weekend off to take his grandson to visit colleges. Claimant did not appear at work for his May 23 and 24 shifts.

The following Friday, May 29, 2009, the general manager called Claimant and told him that she needed to meet with him to discuss his failure to report to work on May 23 and 24. At the time Claimant received the phone call, he was at is other part-time job at a funeral home where he worked on Fridays. Claimant informed the general manager that he could not leave his job to come in and talk that day, but that he could meet with her the following day. The general manager told Claimant that either he “come out here right now to talk to me” or she would not put him on the schedule. Claimant replied, “I can’t come.” Claimant never met with the general manager.

Thereafter, the general manager stopped placing Claimant on the schedule. At first, Claimant continued to show up at work and check the schedule. However, on June 13, Claimant learned that Employer had hired a new driver, and, noticing that the general manager had not scheduled him any shifts, Claimant assumed he was fired. Thereafter, Claimant filed for unemployment benefits.

Based on the foregoing evidence, the Appeals Tribunal determined that Claimant voluntarily left his work without good cause attributable to his employer. The Commission adopted the Appeal’s Tribunal’s decision and denied Claimant unemployment compensation benefits. Claimant appeals.

Standard of Review

On appeal from a decision in an unemployment benefits proceeding, this court may modify, reverse, remand for rehearing, or set aside the award upon finding that: (1) the Commission acted without or in excess of its powers; (2) the award was procured by fraud; (3) the facts found by the Commission do not support the award; or (4) there was not sufficient competent evidence in the record to warrant the making of the award. Mo.Rev.Stat. § 288.210 (Cum.Supp.2005); Korkutovic v. Gamel Co., 284 S.W.3d 653, 655-56 (Mo.App. E.D.2009).

In reviewing the Commission’s decision, we are not bound by the Commission’s conclusions of law or its application of the law to the facts. Difatta-Wheaton v. Dolphin Capital Corp., 271 S.W.3d 594, 595 (Mo. banc 2008). Where, as here, the facts are not in dispute, and the issue is the construction and application of a statute, the issue is one of law that this court reviews de novo. Id.; see also Moore v. Swisher Mower & Machine Co., Inc., 49 S.W.3d 731, 738 (Mo.App. E.D.2001).

Discussion

In his sole point on appeal, Claimant contends that the Commission erred in denying him unemployment benefits. Specifically, Claimant first asserts that sufficient competent evidence showed that he did not leave his work voluntarily. Second, Claimant claims that the evidence showed that Employer discharged him and that the discharge was not for any act or omission which would constitute misconduct to justify a denial of benefits. Upon our review of the record, we agree that the Claimant did not voluntarily leave his employment, but find that Claimant is nonetheless disqualified from unemployment benefits because the undisputed facts showed that Claimant was discharged for misconduct.

Under Section 288.050.1(1), a claimant is not entitled to unemployment benefits if he or she “has left work voluntarily without good cause attributable to such work or to the claimant’s employer.” Mo.Rev.Stat. § 288.050.1(1) (Cum.Supp.2005). “The voluntary quit provision of the Missouri Employment Security Law, like its other disqualifying provisions, must be strictly and narrowly construed in favor of finding that an employee is entitled to compensation.” Moore, 49 S.W.3d at 739. An employee leaves work voluntarily when he “leaves of his own accord, as opposed to being discharged, dismissed, or subjected to layoff by the employer.” Lindsey v. Univ. of Mo., 254 S.W.3d 168, 171 (Mo.App. W.D.2008) (quotation omitted). Conversely, “an employee will not be held to have left work voluntarily when the employer decides to end the employment relationship.” Davis v. School of the Ozarks, Inc., 188 S.W.3d 94, 100 (Mo.App. S.D.2006). Likewise, we will not find that an employee left work voluntarily when the employer obviously discharged the employee for failing to comply with a work rule. Moore, 49 S.W.3d at 739.

There was insufficient evidence in the record to support the Commission’s finding that Claimant voluntarily left his employment. The uncontroverted facts revealed that Employer ceased placing Claimant on the schedule after Claimant did not report to work on May 23 and 24 and subsequently failed to meet with his general manager. Claimant continued to check the schedule at work until it was apparent that the general manager had replaced Claimant with a new driver and terminated his employment.

The Division argues that sufficient evidence supported the conclusion that Claimant voluntarily left his employment by failing to meet with the general manager “even though she told him that she would not put him on the schedule until he met with her.” We disagree. Given the undisputed facts in this case, we find that the Commission erred in determining that Claimant voluntarily quit because he failed to comply with the general manager’s request to meet on May 29. Although Claimant evidenced an intent to work by showing up and checking the schedule, the general manager discontinued Claimant’s shifts and hired a new driver. Claimant’s actions did not constitute a voluntary quit because it is clear that Employer decided to terminate the employment relationship following Claimant’s failure to meet with the general manager. See Davis, 188 S.W.3d at 100.

The second issue raised by the parties is whether Claimant is disqualified from unemployment benefits because Employer discharged Claimant for misconduct. Claimant contends that neither his absence from work on May 23 and 24 nor his refusal to leave his second job to meet with his general manager on May 29 falls within meaning of “misconduct” as defined by Missouri’s Employment Security Law. Conversely, the Commission asserts that Claimant’s failure to report for work and meet with the general manager constituted misconduct because Claimant’s actions were willful and deliberate violations of Employer’s reasonable directives. Although the Commission did not reach the issue of whether Claimant’s actions constituted misconduct, neither party questions our ability to review this issue on the record provided. Because the facts are not in dispute and we review the record de novo, we consider the parties’ arguments. See, e.g., Moore, 49 S.W.3d at 739 (examining whether a claimant was discharged for misconduct after determining that the undisputed facts did not support the Commission’s finding that the claimant voluntarily left his employment).

A claimant is ineligible for unemployment compensation benefits if he or she “has been discharged for misconduct connected with the claimant’s work....” Mo.Rev.Stat. § 288.050.2. The Missouri Employment Security Law defines “misconduct” as:

[A]n act of wanton or willful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of his or her employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer;

Mo.Rev.Stat. § 288.030.1(23) (Cum.Supp.2006). Under the above definition, disqualifying misconduct “ ‘must involve some form of willfulness.’ ” Murphy v. Aaron’s Auto. Prod., 232 S.W.3d 616, 621 (Mo.App. S.D.2007) (quoting Scrivener Oil Co., Inc. v. Div. of Employment Sec., 184 S.W.3d 635, 640 (Mo.App. S.D.2006)). An employee’s willful violation of an employer’s reasonable work rule constitutes misconduct. Moore, 49 S.W.3d at 740. “A single instance of intentional disobedience of an employer’s directive can constitute misconduct.” Finner v. Americold Logistics, LLC, 298 S.W.3d 580, 584 (Mo.App. S.D.2009). Additionally, while a claimant usually bears the burden of proving he or she is entitled to unemployment benefits, the employer bears the burden of proving that a discharge was for misconduct connected with the claimant’s work. Frisella v. Deuster Elec., Inc., 269 S.W.3d 895, 899 (Mo.App. E.D.2008).

Here, the undisputed facts before the Commission showed that Claimant’s failure to report to work for his May 23 and 24 shifts and his failure to meet with his general manager together constituted a willful violation of Employer’s reasonable directive and, accordingly, misconduct. Claimant’s supervisor informed Claimant that he could not grant Claimant’s request for leave over the Memorial Day weekend because no other employee was available to cover his shifts. Claimant acknowledged that it was within his supervisor’s authority to grant or deny him the time off. Claimant, however, disregarded his supervisor’s directive and decided not to report to work on May 23 and 24. Subsequently, the general manager called Claimant on May 29 and requested that Claimant meet with her to discuss Claimant’s absences on May 23 and 24. Claimant refused to meet with his general manager at the appointed time.

Claimant contends that neither his “absence from work on May 23 and May 24 nor his refusal to abandon his [other] job ... to speak with the General Manager on May 29 approaches the type of deliberate, unreasonable defiance of a work place rule which could constitute misconduct.” In support of his argument, Claimant relies on Dameron v. Drury Inns, Inc., 190 S.W.3d 508 (Mo.App. E.D.2006). Dameron, however, is of no assistance to Claimant. In Dameron, the employer discharged a claimant for missing seven work days and leaving work early due to a migraine headache. Id. at 510. In finding insufficient evidence of misconduct, the Dameron court acknowledged “the well-settled rule that absences due to illness or family emergency, where properly reported to the employer, do not constitute willful misconduct -within the meaning of section 288.050.2.... The reason for the rule is obvious — if absences are due to illness or family emergency, a claimant has not willfully violated an employer’s rule.” Id. at 511 (emphasis in the original). The employer in Dameron only provided evidence regarding the circumstances surrounding the claimant’s last absence, where the claimant left work early due to a migraine headache. Id. at 510. Because the claimant’s migraine headache was a “legitimate medical complaint” that the claimant reported to the employer, the Dameron court found there was insufficient evidence of -willful misconduct. Id. at 512. Unlike the claimant in Dameron, Claimant did not miss work due to “illness or a family emergency.” Claimant’s absence from work on May 23 and 24 was due to his decision to take his grandson to visit colleges rather than report to work despite his Employer’s denial of his request for time off. Taking a grandson to visit colleges, although commendable, does not constitute an illness or family emergency. Moreover, Claimant coupled his absences on May 23 and 24 with his refusal to meet with his general manager as requested. Given the instant record, we find that the undisputed facts show that Employer discharged Claimant for his willful misconduct in failing to follow Employer’s reasonable directives.

Conclusion

We reverse and remand to the Commission with instructions to modify its decision in a manner consistent with this opinion.

GARY M. GAERTNER, JR., P.J. and MARY K. HOFF, J., Concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Plaintiff/Respondent, v. Steven L. WILKERSON, Defendant/Appellant.
    No. ED 93689.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 7, 2010.
    Shaun J. Mackelprang, John W. Grant-ham, Jefferson City, MO, for Respondent.
    Craig A. Johnston, Columbia, MO, for Appellant.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Steven L. Wilkerson (Appellant) appeals from the trial court’s judgment convicting him of second-degree domestic assault and felonious restraint. We have reviewed the briefs of the parties and the record on appeal and conclude that the trial court did not err in denying Appellant’s motion for judgment of acquittal because there was sufficient evidence from which reasonable persons could have found him guilty of the charged offense. State v. Edwards, 280 S.W.3d 184, 189 (Mo.App. E.D.2009). An extended opinion would have no prece-dential 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 Criminal Procedure 30.25(b).


author: PER CURIAM:

text:
    Jamie R. KAMPE, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70644.
    Missouri Court of Appeals, Western District.
    Sept. 7, 2010.
    Matthew Ward, Columbia, MO, for appellant.
    Shaun J. Mackelprang and Daniel N. McPherson, Jefferson City, MO, for respondent.
    Before Division Three: JAMES M. SMART, JR., Presiding Judge, JOSEPH M. ELLIS, and GARY D. WITT, JJ.
   ORDER

PER CURIAM:

Jamie Kampe appeals the denial of his Rule 24.035 post-conviction motion. He says his plea counsel failed to litigate a motion to suppress that would have been meritorious and resulted in all incriminating evidence being suppressed. The judgment is affirmed. Rule 84.16(b).


text:
    Bruce W. BALLARD, Jeremiah Ballard, a Minor By and Through His Next Friend B. Marie Ballard and B. Marie Ballard, Appellants, v. Berkely HUDSON, Milbre Burch and Oakstone Construction Company, Inc., Respondents.
    No. WD 70755.
    Missouri Court of Appeals, Western District.
    Sept. 7, 2010.
    Vincent A. Banks, III, St. Louis, MO, for appellant.
    Robert W. Cockerham, Esq., Corey L. Kraushaar, Esq., and Richard I. Woolf, Esq., St. Louis, MO, for respondent.
    Before: MARK D. PFEIFFER, P.J., and VICTOR C. HOWARD and ALOK AHUJA, JJ.
   ORDER

PER CURIAM:

Appellants Bruce W. Ballard, et al. appeal the Boone County Circuit Court’s grant of a directed verdict at the close of opening statements in favor of defendants Milbre Burch, Berkely Hudson, and Oak-stone Construction Company. Ballard argues that the facts he recited during opening statement were sufficient to establish submissible claims of negligence and trespass against the defendants, and that the trial court erroneously excluded the testimony of one of his expert witnesses. We affirm. Because a published opinion would have no precedential value, a memorandum setting forth the reasons for this order has been provided to the parties. Rule 84.16(b).


text:
    Kevin D. WEBB, Appellant, v. STATE of Missouri, Respondent.
    No. WD 71020.
    Missouri Court of Appeals, Western District.
    Sept. 7, 2010.
    S. Kathleen Webber, for Appellant.
    Evan J. Buchheim, for Respondent.
    Before Division Two: JOSEPH M. ELLIS, Presiding Judge, ALOK AHUJA, Judge and KAREN KING MITCHELL, Judge.
   ORDER

PER CURIAM:

Kevin Webb appeals from the motion court’s denial of his Rule 24.035 motion for post-conviction relief. After a thorough review of the record, we conclude that the judgment is based on findings of fact that are not clearly erroneous and that no error of law appears. An extended opinion would have no precedential value but a memorandum explaining our reasoning has been provided to the parties.

Judgment affirmed. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Rex Lee GREEN, Appellant.
    No. WD 71273.
    Missouri Court of Appeals, Western District.
    Sept. 7, 2010.
    John H. Edmiston, Warrensburg, MO, for Appellant.
    Kristen L. Ellis and Julie A. Cahalane, Assistant Prosecuting Attorneys, Lexington, MO, for Respondent.
    Before Division II: JOSEPH M. ELLIS, Presiding Judge, and ALOK AHUJA and KAREN KING MITCHELL, Judges.
   Order

PER CURIAM:

The State filed an information charging Appellant Rex Lee Green (“Green”) with felony possession of a controlled substance, section 195.202, RSMo 2000; misdemeanor possession of a controlled substance, id.; maintaining or keeping a public nuisance, section 195.130, RSMo 2000, which the State dismissed prior to trial; and possession of drug paraphernalia with the intent to use, section 195.233, RSMo 2000.

Green waived trial by jury, and the circuit court found Green guilty of felony possession of a controlled substance, misdemeanor possession of a controlled substance, and misdemeanor possession of drug paraphernalia.

On July 14, 2009, the circuit court found Green guilty of the felony possession charge but suspended imposition of sentence pending successful completion of five years probation. Further, the court fined Green $100 for each misdemeanor charge. Green appeals the circuit court’s judgment with respect to the misdemeanor convictions.

The issues on appeal are whether the circuit court abused its discretion in admitting the out-of-court statements of Jennifer Green, Green’s wife, and whether there was sufficient evidence to prove beyond a reasonable doubt that Green had access to and control over the controlled substances and the drug paraphernalia. We affirm. Rule 30.25(b).


text:
    STATE of Missouri, ex rel. Chris KOSTER, Missouri Attorney General, Respondent, v. Dwight CLARK, Appellant.
    No. WD 71378.
    Missouri Court of Appeals, Western District.
    Sept. 7, 2010.
    Rehearing Denied Dec. 7, 2010

      Laura E. Elsbury, Jefferson City, MO, for respondent.
    Dwight Clark, Appellant pro se.
    Before Division Three: JAMES M. SMART, JR., Presiding Judge, JOSEPH M. ELLIS, and GARY D. WITT, JJ.
   ORDER

PER CURIAM:

Dwight Clark appeals the judgment allowing the State of Missouri to recover incarceration costs under the Missouri Incarceration Reimbursement Act (MIRA). He argues that the Attorney General failed to meet the “good cause” prerequisite to bringing the action. The judgment is affirmed. Rule 84.16(b).


text:
    Paul A. LEWIS, Appellant, v. STATE of Missouri, Respondent.
    No. WD 71920.
    Missouri Court of Appeals, Western District.
    Sept. 7, 2010.
    Ruth B. Sanders, Appellate District Defender, Kansas City, MO, Attorney for Appellant.
    Chris Koster, Attorney General, Dora A. Fichter, Assistant Attorney General, Jefferson City, MO, Attorneys for Respondent.
    Before Division II: JOSEPH M. ELLIS, Presiding Judge, and ALOK AHUJA and KAREN KING MITCHELL, Judges.
   Order

PER CURIAM:

Paul A. Lewis appeals the motion court’s denial, without an evidentiary hearing, of his amended Rule 24.035 motion to vacate, set aside, or correct judgment and sentence. He alleges one point of motion court error. We affirm. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Douglas HERVEY, Appellant.
    No. ED 93489.
    Missouri Court of Appeals, Eastern District, Division Five.
    Sept. 14, 2010.
    Timothy Forneris, St. Louis, MO, for appellant.
    Chris Koster, John W. Grantham, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, JR., P.J., MARY K. HOFF, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Douglas Hervey appeals from a judgment of conviction for tampering in the first degree, in violation of Section 569.080.1(2). We have reviewed the briefs of the parties and the record on appeal and conclude that no reversible error occurred. An extended opinion would have no jurisprudential purpose. 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 Criminal Procedure 30.25(b) (2010).


text:
    STATE of Missouri, Plaintiff/Respondent, v. Odis AMMONS, Defendant/Defendant.
    No. ED 93892.
    Missouri Court of Appeals, Eastern District, Division Five.
    Sept. 14, 2010.
    Deborah B. Wafer, St. Louis, MO, for Appellant.
    Chris Koster, Attorney General, Karen Kramer, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before GARY M. GAERTNER, P.J., MARY K. HOFF, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Odis Ammons (Defendant) appeals from the judgment upon his conviction by a jury for one count of assault in the first degree, in violation of Section 565.050, RSMo 2000, and one count of armed criminal action, in violation of Section 571.015, for which Defendant was sentenced to ten-years and three-years imprisonment, respectively, with the sentences to run consecutively. We affirm.

We have reviewed the briefs of the parties and the record on appeal and find Defendant is entitled to no relief on appeal. An extended opinion would have no precedential value. We have, however, provided a memorandum opinion for the use of the parties setting forth the reasons for our decision. We affirm the trial court’s judgment pursuant to Rule 30.25(b).

      . Unless otherwise indicated, all further statutory references are to RSMo 2000.


text:
    STATE of Missouri, Respondent, v. Matthew E. WILSON, Appellant.
    No. ED 93298.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 14, 2010.

      Ellen H. Flottman, Columbia, MO, for Appellant.
    Christopher A. Koster, Attorney General, Daniel N. McPherson, Asst. Attorney General, Jefferson City, MO, for Respondent.
    Before KURT S. ODENWALD, P.J. and ROBERT G. DOWD, JR. and NANNETTE A. BAKER, JJ.
   ORDER

PER CURIAM.

Matthew Wilson (“Defendant”) appeals from the judgment upon his convictions by a jury for one count each of robbery in the first degree, Section 569.020, RSMo 2000, felonious restraint, Section 565.120, RSMo 2000, forcible sodomy, Section 566.060, RSMo 2000, and sexual abuse, Section 566.100, RSMo 2000, and four counts of armed criminal action, Section 571.015. RSMo 2000. Defendant was sentenced as a prior and persistent offender to a total of two consecutive terms of life imprisonment plus fifty years’ imprisonment. Defendant contends the trial court plainly erred in allowing him to proceed to trial without counsel because he did not knowingly, voluntarily, and intelligently waive his right to counsel.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion reciting the detailed facts and restating principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Elijah HARRIS, Appellant.
    No. ED 93008.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 14, 2010.
    Raymund J. Capelovitch, Capelovitch Law, L.L.C., Clayton, MO, for Appellant.
    Chris Koster, Attorney General, Jamie Pamela Rasmussen, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before: KURT S. ODENWALD, P.J., ROBERT G. DOWD, JR., J. and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Defendant Elijah Harris (Harris) appeals from a judgment following his conviction of one count of trafficking in the second degree, in violation of Section 195.223, RSMo 2000, and one count of possession of marijuana, in violation of Section 195.202. Harris was sentenced as a prior and persistent drug offender to twelve years of incarceration for the trafficking violation and thirty days, time served, for the possession charge. Harris argues that his rights to due process and trial by a jury consisting of a fair cross-section of his community were violated when one venireperson was removed improperly for cause. Because the trial court properly exercised its discretion when granting the State’s motion to strike the venireperson in question, we affirm Harris’s conviction.

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:
    Sean MATHIS, Appellant, v. STATE of Missouri, Respondent.
    No. ED 92737.
    Missouri Court of Appeals, Eastern District, Division One.
    Sept. 14, 2010.
    Jo Ann Rotermund, St. Louis, MO, for appellant.
    Chris Koster, Atty. Gen., Shaun Mackel-prang, Jefferson City, MO, for respondent.
    Before: ROY L. RICHTER, C.J., KENNETH M. ROMINES, J., and MICHAEL BULLERDIECK, Sp., J.
   ORDER

PER CURIAM.

Sean Mathis appeals the Judgment of the Circuit Court of St. Louis County, the Honorable Gary M. Gaertner, Jr. presiding. Mathis pled guilty to robbery in the first degree and armed criminal action. Mathis filed a Rule 24.035 motion for post-conviction relief, alleging ineffective assistance by his trial counsel. The motion was denied after an evidentiary hearing.

On appeal, Mathis argues that the motion court erred in denying his Rule 24.035 for post-conviction relief because his trial counsel failed to act as a reasonably competent attorney under the same or similar circumstances when he failed to timely communicate a 15-year offer to Mathis causing Mathis to not have adequate time to consider the offer.

We have reviewed the briefs and the record on appeal, and find no error of law in this case. Thus, a written opinion would have no precedential value. The judgment is affirmed pursuant to Rule 84.16(b).

AFFIRMED.


text:
    Brian ROZELLE, Respondent/Cross-Appellant, v. Vickie ROZELLE, Appellant/Cross-Respondent.
    Nos. ED 94167, ED 94235.
    Missouri Court of Appeals, Eastern District, Division Five.
    Sept. 14, 2010.
    Vickie Rozelle, St. Louis, MO, for appellant.
    Tonya McAlpine-Morris, St. Louis, MO, for respondent.

      Before: GARY M. GAERTNER, JR., P.J., MARY K. HOFF, J., and PATRICIA L. COHEN, J.
   PER CURIAM.

Introduction

Vickie Rozelle (Mother), pro se, and Brian Rozelle (Father) appeal from the trial court’s judgment. Mother argues the trial court erred in finding the parties’ older son, Brian L. Rozelle II (Brian), emancipated at the age of twenty-two and in ordering her to repay support Father paid for Brian in the amount of $5,709.42. Father contends the trial court erred in its calculation of the repayment amount and in failing to terminate child support for the parties’ younger son, Brandon J. Rozelle (Brandon), who was enrolled in an institute of higher education but taking fewer than 12 credit hours per semester. With respect to Father’s appeal, we affirm the judgment of the trial court, with modifications. As to Mother’s appeal, we have reviewed her contentions and find no error. An extended opinion as to Mother’s appeal would have no precedential value. Therefore, Mother’s appeal is affirmed in accordance with Rule 84.16(b). We have furnished the parties a memorandum setting forth the reasons for this decision.

Background

The parties’ marriage was dissolved in 2000. The dissolution judgment awarded primary physical custody to Mother and joint legal custody to Mother and Father, and gave Mother sole decision-making authority as to the children’s educations. The dissolution judgment ordered Father to pay $861.00 per month for support of the two children born of the marriage: Brian, born on March 8, 1985, and Brandon, born on July 25, 1989. In the event that Father was required to pay support for only one child, the sum would be $627.00 per month. Mother filed for an income-withholding order.

Brian

In 2003 Brian timely entered a post-secondary institution of higher education as a full-time student, enrolling in and successfully completing a minimum of 12 credit hours per semester until he graduated in December 2008, at the age of twenty-three. Brian turned twenty-one years old on March 8, 2006. As best this court can discern from the trial court docket sheet, in March 2009 Father filed an affidavit for termination of child support for Brian, to which Mother objected. On July 9, 2009, the trial court terminated child support for Brian, preliminarily giving his emancipation date as March 8, 2006, the date he attained the age of twenty-one. The amount of overpayment of child support remained contested, and the issue was set for further hearing.

Thereafter, Mother argued that Brian did not emancipate until the age of twenty-two. She noted that the 2007 statutory amendment to Section 452.340.5 RSMo lowered the emancipation age to twenty-one for minor children attending an institute of higher education, but argued that the court should apply the statute in effect at the time of the dissolution, which provided for emancipation at the age of twenty-two. She further asserted that because Brian emancipated on his birthday, she gave Father “actual notice” of Brian’s eventual emancipation date on the day he was born. She argued that because Father was aware of Brian’s twenty-second birthday, she should not be obligated to give Father additional notice of Brian’s emancipation on that date. She did not deny Father’s assertion that she failed to submit to Father a sworn statement or affidavit notifying him of Brian’s emancipation. Likewise, she contended that because Father continued to provide support for Brian after knowing that Brian was twenty-two and therefore emancipated, Father’s overpayments should be considered gifts.

To support his request for termination, Father argued that the age of emancipation is governed by the statute in effect at the time of the claimed emancipation. Further, because Brian’s emancipation could have occurred under several circumstances, Mother’s duty to notify Father of the emancipation is never waived. Any payments made following Brian’s emancipation were not voluntary gifts, because, due to the wage withholding order, child support was automatically deducted from his paychecks and Father could not unilaterally terminate the wage-withholding order.

Brandon

Brandon reached the age of 18 on July 25, 2007. He timely enrolled for the Fall 2007 semester in an institution of higher education. Brandon enrolled in 14 credit hours; however, in his first semester he completed only 8 credit hours. Brandon thereafter continued attending an institute of higher education, enrolling in at least 12 credit hours each semester, but completing 9 credit hours in his Spring 2008 semester, 12 credit hours in his Fall 2008 semester, and 9 credit hours in his Spring 2009 semester.

In April 2009 Father filed an affidavit for termination of child support for Brandon. In response, Mother argued that the 2007 amendment to Section 452.340.5 provides that when a child receives failing grades in half or more of his course load, child support may be terminated. Accordingly, applying the 2007 amended statute, because Brandon had enrolled in 12 credit hours per semester and completed 8-12 credit hours, he had fulfilled the requirements for continued child support under the amended law. Section 452.340.5.

Trial Court’s Order/'Judgment

On November 16, 2009, the trial court determined Brian reached the age of emancipation on March 8, 2007, his twenty-second birthday. The court noted that Section 452.370.4 mandates that the parent receiving support “s hall” have the duty to notify the paying parent of a child’s emancipation; and that if the parent receiving support fails to do so, then he or she “s hall” be liable for any support paid following emancipation, plus interest. Because Mother did not notify Father when Brian emancipated, she was liable for any over-payments. Accordingly, the court ordered mother to reimburse Father in the amount of $5,238.00 for child support paid for Brian between April 2007 and June 2009, plus 9% interest in the amount of $471.42. The court reached this amount by' subtracting $627.00 from $861.00, to reach the amount of $194.00 per month, multiplied by 27 months (April 2007 through June 2009).

As to Brandon, the court denied Father’s request to terminate child support. The court noted both (1) the statutory language providing that child support shall continue “so long as” the child enrolls for and completes at least 12 credit hours per semester, and (2) the discretionary language, added in the 2007 statutory amendment, providing that the support “may” be terminated if the child received failing grades in 50% or more of his courseload. See Section 452.340.5. Further noting Missouri’s public policy of promoting the pursuit of higher education and Brandon’s continuing efforts to complete his undergraduate degree, the court used its discretionary authority to hold that Brandon would not be emancipated until his twenty-first birthday.

Both parties timely appealed.

Standard of Review

Our review of a trial court’s Judgment granting a motion for emancipation and termination of child support is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), under which we must affirm the trial court’s judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Kerr v. Kerr, 100 S.W.3d 912, 914 (Mo.App. W.D.2003). Further, we view the evidence in a manner favorable to the judgment and disregard contrary evidence, and we defer to the trial court even if the evidence could support a different conclusion. Wynn v. Wynn, 738 S.W.2d 915, 918 (Mo.App. E.D.1987). The party seeking emancipation has the burden of showing facts that prove emancipation. Wilkins v. Wilkins, 300 S.W.3d 594, 598 (Mo.App. E.D.2009). No deference is owed, however, to the trial court’s statutory construction, which we review de novo. See Finnegan v. Old Republic Title Co. of St. Louis, Inc., 246 S.W.3d 928, 930 (Mo. banc 2008).

Discussion

Point I

In his first point on appeal, Father asserts the trial court made a mathematical error in its repayment order. The trial court ordered Mother to repay the difference between $861.00 per month for two children and $627.00 per month, which it characterized as $194.00 per month, for 27 months plus 9% interest, for a total of $5,709.42.

Pursuant to Missouri Rule of Civil Procedure 84.14, the court of appeals may dispose of a case by giving “such judgment as the court ought to give.” Accordingly, when an error is merely mathematical in nature, this court can modify the judgment to correct the error and then affirm the judgment of the trial court as modified. Mo. R. Civ. P. 84.14 (2010); Andrews v. Andrews, 289 S.W.3d 717, 726 (Mo.App. E.D.2009). We will recalculate the proper reimbursement amount, and enter judgment accordingly. The difference between $861.00 and $627.00 is $234.00. That amount multiplied by 27 months is $6,318.00. Father has not alleged error in the trial court’s method of calculating interest; thus, we adopt the same method and calculate a total of $6,886.62: $6,318.00 plus 9% simple interest. Thus, Mother shall repay to Father $6,886.62 for his overpayment of child support following Brian’s emancipation.

Point granted.

Point II

In his second point on appeal, Father argues that the trial court erred in finding that Brandon will not emancipate until his twenty-first birthday even though he failed to complete 12 credit hours at the end of his first semester. We disagree.

The foremost rule of statutory interpretation is to ascertain the intent of the legislature from the language used, by considering the words in their plain and ordinary sense. S. Metropolitan Fire Protection Dist. v. City of Lee’s Summit, 278 S.W.3d 659, 666 (Mo. banc 2009). We are conscious that “it is the function of the courts to construe and apply the law and not to make it.” Renner v. Dir. of Revenue, 288 S.W.3d 763, 765 (Mo.App. E.D.2009) (citation omitted). We do not construe clear and unambiguous language, but if an ambiguity exists, we will attempt to read the statute in a way that does not render an absurd result. Id. In reading the statute, we look not to an isolated sentence, but rather to the provisions of the law in its entirety, and to its object and policy. Id. at 766.

Because Missouri public policy encourages children to pursue higher education, this court will liberally construe the continuing-education requirements. See Wilkins, 300 S.W.3d at 598. Father contends that Brandon emancipated in, at the earliest, December of 2007, and thus this court will apply the 2007 statute. See Hall v. Deters, 1 S.W.3d 581, 584 (Mo.App. E.D.1999) (apply law in effect at time of claimed emancipation).

In 2007, the Missouri legislature modified Section 452.340.5 by adding the following language, italicized below:

If the child is enrolled in an institute of vocational or higher education not later than October first following graduation from a secondary school ... and so long as the child enrolls for and completes at least twelve hours of credit each semester, ... the parental support obligation shall continue until the child completes his or her education, or until the child reaches the age of twenty-one, whichever occurs first.... When enrolled in at least tiuelve credit hours, if the child receives failing grades in half or more of his or her courseload in any one semester, payment of child suppoH may he terminated and shall not be eligible for reinstatement.

Section 452.340.5 (emphasis added). This italicized provision appears to replace the former language, added in 2005, which stated: “If the child has pursued a path of continuous attendance and has demonstrated evidence of a plan to continue to do so, the court may enter a judgment abating support for a period of up to five months for any semester in which the child completes at least six but less than twelve credit hours.” Section 452.340.5 RSMo 2005 (emphasis added). Prior to the 2005 amendment, the statute simply provided that child support would continue “so long as the child enrolls for and completes at least twelve hours of credit each semester.” Section 452.340.5 RSMo 1999.

Looking to the language of the present statute, the “so long as” provision and the discretionary provision added in 2007 appear in direct conflict with each other. Prior to the 2005 and 2007 amendments, Missouri courts typically interpreted the “so long as” provision as requiring the minor child to complete 12 credit hours per semester to avoid emancipation. See e.g., Lombardo v. Lombardo, 35 S.W.3d 386, 389-91 (Mo.App. W.D.2000). The Missouri legislature must have been aware of this longstanding judicial interpretation when it modified Section 452.340.5 to allow trial courts discretion. Harding v. Lohman, 27 S.W.3d 820, 824 (Mo.App. W.D.2000) (“[t]he Legislature is presumed to have acted with full awareness and complete knowledge of the present state of the law, including judicial and legislative precedent”). In light of Missouri’s public policy encouraging higher education, a reasonable interpretation of this conflict is that, by adding the discretionary language, the Missouri legislature intended to allow minor children who are actively pursuing higher education but fall below 12 credits per semester to receive child support; while it intended the stricter “so long as” language to be directed toward the parental responsibility to provide support. See Donaldson v. Crawford, 230 S.W.3d 340, 342 (Mo. banc 2007) (statutory construction is to be reasonable and logical).

Further, comparing the 2007 and 2005 versions of the statute, the 2007 amendment appears to indicate the Missouri legislature’s priority to provide continuing support to any child who is continuing his higher education, regardless of academic struggles. Notably, the 2005 law’s abatement provision has been replaced with the current language allowing courts the discretion to order child support to continue despite one or more failing grades. S. Metropolitan Fire Protection Dist., 278 S.W.3d at 666 (ascertain intent of legislature from language used). Here, Brandon’s educational path is that envisioned and specifically protected by the 2007 amendment: he enrolled as a fulltime student immediately after high school, has attempted a full courseload every semester since, and is continuing his schooling despite his struggles. Thus, the trial court did not err in exercising its discretion to find that because Brandon was actively pursuing his degree, he would not be emancipated until the age of twenty-one.

Point denied.

Conclusion

The judgment of the trial court is affirmed as modified.

      . This court is unable to discern the basis for either the emancipation or Mother's objection, as neither party submitted a copy of the affidavit as part of the legal file.

      . All statutory references are to RSMo Supp. 2010, unless otherwise indicated.

      . Nine percent interest is consistent with the provisions of Section 408.040. S.L.J. v. R.J., 783 S.W.2d 508, 509 (Mo.App. E.D.1990).


author: KATHIANNE KNAUP CRANE, Judge.

text:
    In re the MARRIAGE OF Kim E. GARDNER and Claire Gardner Kim E. Gardner, Petitioner/Appellant, v. Claire Gardner, Respondent/Respondent.
    Nos. ED 94126, ED 94164.
    Missouri Court of Appeals, Eastern District, Division Two.
    Sept. 14, 2010.

      Susan K. Roach, Chris D. Elster, W. Edwin Roussin, The Roach Law Firm, Clayton, MO, for appellant.
    Susan M. Hais, J. Robert Dennis, Hais, Hais, Goldberger & Coyne, P.C., Clayton, MO, for respondent.
   KATHIANNE KNAUP CRANE, Judge.

Husband appeals from that part of the trial court’s judgment pendente lite awarding wife attorney’s fees and litigation costs on account in a dissolution case. We affirm.

Husband, Kim E. Gardner, and wife, Claire Gardner, were married on May 18, 1991. The parties separated on October 15, 2007. On April 6, 2009, husband filed a Petition for Dissolution of Marriage, and on June 16, 2009, wife filed a cross-petition and a motion entitled “Motion and Affidavit for Maintenance, Child Support, Child Custody, Attorney’s Fees, Restraining Order, Suit Money, and Other Orders Pen-dente Lite ” (PDL motion). In her PDL motion, wife alleged, with respect to attorney’s fees and litigation costs, that she was without adequate assets to support herself during the pendency of the lawsuit, that husband was employed, and that he had a substantial income that enabled him to pay on account the attorney’s fees, litigation costs, and other expenses of the dissolution proceeding. Wife requested an order requiring husband to pay wife’s attorney’s fees and litigation costs on account.

On November 24, 2009, the court held a lengthy evidentiary hearing on wife’s PDL motion. Wife testified on her behalf and called husband to testify. As relevant to this appeal, wife adduced evidence on the parties’ incomes, husband’s assets, and husband’s sale of real estate and the proceeds therefrom. We summarize this evidence as follows.

Income: At the time of separation, husband owned a consulting company and earned an average of $14,999 per month as a consultant for Ameren UE. In June 2009 husband gave up consulting and became an employee. As a result, his monthly income was reduced to $8,500 per month. Wife earned $300 per week.

Assets: Husband had an interest in eight limited liability companies (LLCs), which he valued at $2,795,625 in his April 9, 2009 Statement of Property; real estate; and personal property. Husband and his LLCs had an interest in ten bank accounts. Husband also had a Merrill Lynch 401(k) account with a value of $169,492, which funds were acquired during the marriage, and three IRAs. On October 13, 2009, husband filed a second Statement of Property. It showed that three of his LLCs had no present value, although on his April 9, 2009 Statement of Property he had assigned the same three LLCs a combined present value of over $57,000.

Real Estate Sale and Proceeds: In November and December of 2008, husband sold some of the real estate. Husband received $456,000 net from the sale of one property and $400,000 from the sale of another property, and deposited these amounts. Husband’s October 13, 2009 Statement of Property showed no cash on hand. Husband admitted that he spent $400,000 in a six-month time period from one bank account and spent another $400,000 from other bank accounts. However, at the PDL hearing, husband could not document where the money went. Husband testified he was paying bills and paying down debt, but did not have those checks or information about the amounts.

At the hearing,- wife testified that she was requesting money to pay her attorney’s fees, to hire someone to appraise the real estate, and to hire a certified public accountant (CPA) to value the assets owned by the LLCs and to trace the funds in the bank accounts. Wife’s attorney explained that a CPA was needed because husband had received and disposed of $800,000 in a very short period of time and husband could not account for where the money had gone. Wife’s attorney also explained that she needed an appraisal of the properties.

Several times during the hearing, the court expressed frustration with husband’s failure to have accounted for his spending, or to have computed any debt on the real estate sold, and it suggested that husband provide this information at the hearing. The court advised the parties:

[T]his case is big enough that I think it needs an expert. Unfortunately, experts are very expensive. I don’t know — I guess a forensic guy will give you some help in tracing it, but that’s going to be huge.

During the hearing, the court estimated that the expert witness fees to track the money would be $40,000 to $60,000, and the court later indicated that it was going to order husband pay $20,000 to wife for her share of the expert witness fees. The court also estimated that ánother $40,000 would be required for the two parties’ attorney’s fees and indicated it would order husband to pay wife $20,000 for her fees. Neither party commented on the trial court’s fee estimates.

At the conclusion of the hearing, the trial court entered an order reciting that the PDL had been heard and submitted, and it gave the parties a week to provide the court with a plan for obtaining $40,000 as and for attorney’s fees and expert witness fees. On December 2, 2009, the trial court entered an order and judgment ordering husband to pay $40,000 for wife’s attorney’s fees and expert witness costs PDL on or before December 9, 2009. Husband filed a motion for relief from the court’s order and to reopen the record for additional evidence, which the trial court denied. Husband did not pay the sum by December 9, 2009, and as a result, on December 14, 2009, the trial court entered an order and judgment ordering husband to liquidate a sufficient portion of the Merrill Lynch 401 (k) account as necessary to pay the $40,000. It provided that the amount shall be considered “$20,000 on account for legal fees” and that the remainder was for expert fees and costs for which wife “s hall account to this Court at the end of these proceedings.”

On January 8, 2010, the trial court entered findings of fact, conclusions of law, and a pending dissolution disposing of all of the remaining issues and incorporating its previous orders regarding expert fees and attorney’s fees on account. In this judgment, the trial court made a finding of fact that wife had shown that husband had a large cash flow, but that husband had not responded to the court’s “urgings” that he provide backup information to confirm his expenses in these transactions at the time of the PDL. In its conclusions of law, the court recited:

8. Among the factors to be considered in awarding attorney fees is the extent to which the other party’s conduct required expenses of attorney fees or unreasonably engendered increased litigation. Gendron v. Gendron, 996 S.W.2d 668 (Mo.App. W.D.1999).

DISCUSSION

I. Premature Notices of Appeal

Before we address the merits of this appeal, we need to address husband’s two premature notices of appeal and identify the judgment from which this appeal is taken. On December 10, 2009, husband filed a notice of appeal from the November 24 and December 2 orders. Thereafter, on December 14, 2009, the trial court issued a third order on attorney’s fees and costs, and husband filed a notice of appeal from this order on December 16, 2009. The trial court did not enter a judgment disposing of all the issues raised in the PDL motion until January 8, 2010. Husband did not file a new notice of appeal from this judgment. Because the notices of appeals were filed before the January 8 judgment became final, they were premature. Accordingly, the trial court retained jurisdiction over the case to make its subsequent orders and enter a judgment, and we consider the appeal to be from the January 8 judgment and to have been filed after the January 8 judgment became final. Rule 81.05(b); Williams v. Williams, 41 S.W.3d 877, 878 (Mo. banc 2001); Coleman v. Coleman, 187 S.W.3d 331, 333 (Mo.App.2006); see also Reynolds v. Reynolds, 109 S.W.3d 258, 269 (Mo.App.2003).

II. Attorney’s Fees and Costs on Account

For his sole point on appeal, husband contends that the trial court erred in awarding attorney’s fees and expert witness costs to wife because the court did not hear evidence of the work needed to be done by the attorneys or experts and there was no evidence to establish the nature and extent of the charges to be expended.

Section 452.355.1 RSMo (2000) authorizes a trial court “from time to time after considering all relevant factors including the financial resources of both parties” to order a party in a dissolution action to pay a reasonable amount of the other party’s attorney’s fees and costs in defending or maintaining the action. A court may award attorney’s fees and litigation costs on account in a PDL action. See, e.g., Guillen v. Guillen, 820 S.W.2d 732, 733 (Mo.App.1991); Tzinberg v. Tzinberg, 631 S.W.2d 681, 683 (Mo.App.1982).

We review PDL orders under the Murphy v. Carron standard. Laubinger v. Laubinger, 5 S.W.3d 166, 171 (Mo.App.1999); Fox v. Fox, 866 S.W.2d 501, 503 (Mo.App.1993). Accordingly, we will uphold the PDL judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Fox, 866 S.W.2d at 503 (citing Murphy, 536 S.W.2d at 32). We review the award of attorney’s fees in a PDL action for abuse of discretion. Baldwin v. Baldwin, 926 S.W.2d 912, 914 (Mo.App.1996); Hermelin v. Hermelin, 766 S.W.2d 670, 673 (Mo.App.1989); Tzinberg, 631 S.W.2d at 683.

However, “[t]he court’s discretion in awarding temporary maintenance and attorney’s fees pendente lite is broader than at the dissolution hearing.” Fox, 866 S.W.2d at 508; see also Laubinger, 5 S.W.3d at 171; Camden v. Camden, 844 S.W.2d 75, 78 (Mo.App.1992). “ ‘A reviewing court is extremely cautious about altering judgments regarding such allowances because they are temporary and their effects do not extend beyond the final hearing of the case.’ ” Fox, 866 S.W.2d at 508 (quoting Cross v. Cross, 790 S.W.2d 928, 929 (Mo.App.1990)).

An award of fees “on account” is based upon the estimated or anticipated legal work required in a case. Muegler v. Muegler, 784 S.W.2d 839, 841 (Mo.App.1990); State ex rel. Carlson v. Aubuchon, 669 S.W.2d 294, 297 (Mo.App.1984). The award is not a final determination of the amount earned because there is always the possibility that more or less work will be needed on a case. Muegler, 784 S.W.2d at 841. An award on account contemplates the possibility of a further allowance, either as the lawsuit progresses or after a trial on the merit s, when the trial court “would be more fully informed of the nature and extent of the legal services rendered [to the party], and in a better position to judge the reasonable value of such services.” Gross v. Gross, 319 S.W.2d 880, 884 (Mo.App.1959).

Because of the nature of an award on account, and because of the substantial deference we give to temporary awards, we do not require that these awards be supported by the same level of evidence as awards of attorney’s fees and costs in a final judgment. See Guillen, 820 S.W.2d at 733; Hermelin, 766 S.W.2d at 673; see also Laubinger, 5 S.W.3d at 182.

Although a court is free to consider evidence of a spouse’s attorney’s hourly fees, a trial court may make a PDL award of attorney’s fees and costs on account to a spouse without hearing evidence on the amount of work performed or expected to be performed by the attorneys or on what the monies for costs would be spent. Guillen, 820 S.W.2d at 733. This evidence is not required because courts are considered experts on the question of attorney’s fees, and the judge who tries a case and is acquainted with the issues can fix the amount of attorney’s fees without the aid of evidence. Id. at 733.

To support a PDL award of fees and costs on account, a trial court may consider “evidence of the parties’ financial resources, its own expertise regarding legal costs[,] and any other relevant information.” Id.; see also Laubinger, 5 S.W.3d at 182 (holding that the spouse’s request for $5,000 in attorney’s fees and $2,500 for an appraisal, combined with the fact that the parties presented substantial evidence of their respective incomes and expenses, was sufficient evidence to support the trial court’s exercise of discretion to determine the spouse’s ability to pay and need for attorney’s fees and costs PDL). Other relevant information the court may consider includes the parties’ anticipation that “a large amount of costs would be incurred due to the complexity of the litigation.” Hermelin, 766 S.W.2d at 673 (holding that the trial court did not abuse its discretion in awarding wife $25,000 in attorney’s fees and $15,000 in costs in its PDL order).

In this case, there was substantial evidence of the parties’ incomes and expenses. The court found that husband historically had a more significant annual income than at the time of the hearing and that wife’s reasonable monthly expenses exceeded her income. There also was substantial evidence that husband controlled significant assets and that husband had received a large amount of cash from the sale of some assets, but at the hearing he could not account for the cash or identify any indebtedness that offset his receipts. Wife argued that an expert would be required to trace these funds, and the court agreed. Although wife did not adduce evidence of what an attorney or expert would charge, at the hearing the trial court estimated an expert would cost in the range of $40,000 to $60,000 and that the parties would each expend about another $20,000 each in attorney’s fees. Neither party disagreed with the trial court’s estimates.

The record demonstrated the amount and nature of the assets under husband’s control and the complexity of resolving the financial and other remaining issues. As a result, this was a situation in which the trial court was well-acquainted with the issues to be resolved. Accordingly, we defer to the trial court’s expertise on estimating the amount of fees and costs required to litigate the issues in this case. Additional evidence of the work required or the nature and extent of the charges was not required. The trial court did not abuse its discretion in awarding $20,000 to wife as attorney’s fees on account and $20,000 for expert witness costs, for which she would be required to account to the court.

Conclusion

The judgment of the trial court is affirmed.

GLENN A. NORTON, P.J. and GEORGE W. DRAPER III, J., concur.

      . 536 S.W.2d 30, 32 (Mo. banc 1976).


text:
    Cassandra A. JONES, Respondent, v. Randy E. JONES, Appellant.
    No. ED 94043.
    Missouri Court of Appeals, Eastern District, Division Five.
    Sept. 14, 2010.
    Beverly A. Appling, Bowling Green, MO, for appellant.
    Candy L. Ries, Louisiana, MO, for respondent.
    Before: GARY M. GAERTNER, P.J., MARY K. HOFF, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Randy E. Jones appeals from the trial court’s Judgment of Dissolution of Marriage. We have reviewed the briefs of the parties and the record on appeal, and we conclude the trial court’s decision is supported by substantial evidence and does not erroneously declare the law, Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), and is not an abuse of discretion, Slattery v. Slattery, 185 S.W.3d 692, 697-98 (Mo.App. E.D.2006). 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) (2009).


text:
    In re the MARRIAGE OF Mary Karen COTE and Gene N. Cote. Mary Karen Cote, Petitioner/Respondent, v. Gene N. Cote, Respondent/Appellant.
    No. ED 93954.
    Missouri Court of Appeals, Eastern District, Division Two.
    Sept. 14, 2010.
    Justin C. Cordonnier, Erin E. Rathjen, Green Cordonnier & House, LLP, St. Louis, MO, for respondent/appellant.
    Hardy C. Menees, Gerald P. McMana-ma, Menees, Whitney, Burnet & Trog, St. Louis, MO, for petitioner/respondent.
    Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J., and GEORGE W. DRAPER, III, J.
   ORDER

PER CURIAM.

Husband, Gene N. Cote, appeals from a decree of dissolution of marriage. The judgment is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order.

We affirm pursuant to Rule 84.16(b).


author: GEORGE W. DRAPER III, Judge.

text:
    Robert W. DAVIS, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93936.
    Missouri Court of Appeals, Eastern District, Division Two.
    Sept. 14, 2010.

      Edward S. Thompson, St. Louis, MO, for Appellant.
    Shaun J. Mackelprang, John M. Reeves, Jefferson City, MO, for Respondent.
   GEORGE W. DRAPER III, Judge.

Robert W. Davis (hereinafter, “Movant”) appeals the denial of his Rule 24.035 post-conviction motion without an evidentiary hearing. Movant pleaded guilty to one count of first degree robbery, Section 569.020 RSMo (2000), one count of first degree burglary, Section 569.160, five counts of felonious restraint, Section 565.120, six counts of armed criminal action, Section 571.015, and one count of resisting arrest, Section 575.150. Movant was sentenced as a prior and persistent offender to a total term of twenty years’ imprisonment. In his sole point on appeal, Movant alleges the trial court lacked subject matter jurisdiction to accept his guilty plea because he was not brought to trial within 180 days pursuant to the Uniform Mandatory Disposition of Detainers Law (hereinafter, “UMDDL”). We affirm.

Movant was convicted of these offenses following a jury trial in St. Charles County and appealed. The Missouri Supreme Court reversed Movant’s convictions and remanded the case for retrial on all counts after it determined the trial court committed reversible error by admitting evidence of a prior unrelated robbery. State v. Davis, 211 S.W.3d 86, 89 (Mo. banc 2006).

After the Missouri Supreme Court issued its mandate ordering Movant’s case be remanded for retrial, Movant filed a pro se motion on February 8, 2007, asking for a “180 Day writ” wherein “[a]ll pending charges against [him] be brought to Court within 180 days or be dismissed with prejudice.” The cause was called for hearing on February 15, 2007, and continued for Movant to obtain counsel. After Movant obtained counsel, the parties agreed on a trial date of September 10, 2007. On August 22, 2007, the State filed a motion for a continuance, which the trial court granted because a material witness was unavailable on that trial date. The matter was reset for trial on January 15, 2008.

Movant filed a motion to dismiss with prejudice for the alleged violation of his right to a speedy trial on January 11, 2008. At the hearing on this motion, defense counsel conceded Movant was not confined in a department correctional facility when he filed his pro se motion; however, defense counsel requested the motion be considered one for speedy trial, rather than one for relief under the UMDDL. The trial court denied the motion, acknowledging defense counsel strenuously argued against the State’s motion for a continuance in August, which the trial court granted for good cause shown. On January 15, 2008, Movant entered his guilty plea to fourteen of the eighteen charges against him.

Movant filed a timely Rule 24.035, motion alleging the trial court lacked subject matter jurisdiction to enter a judgment of conviction and to sentence Movant because the State did not bring Movant’s case to trial within 180 days of his request for disposition pursuant to the UMDDL. The motion court denied his motion, finding: (1) the UMDDL did not apply to Movant because he was not a person confined in a department correctional facility nor was he serving a sentence in the Missouri Department of Corrections (hereinafter, “the DOC”) on any other charges; (2) Movant did not address his request to the St. Charles County prosecutor; and (3) to the extent Movant’s pro se motion invoked his speedy trial rights, the matter was continued for good cause shown because a material witness was unavailable on the trial date. Movant appeals.

Appellate review is limited to determining whether the motion court’s findings and conclusions are clearly erroneous. Rule 24.035(k); Soto v. State, 226 S.W.3d 164, 166 (Mo. banc 2007); Carter v. State, 215 S.W.3d 206, 208 (Mo.App. E.D.2006). The motion court’s findings and conclusions are clearly erroneous if, after reviewing the entire record, this Court is left with the definite and firm impression that a mistake has been made. Adams v. State, 210 S.W.3d 387, 388 (Mo.App. E.D.2006).

Movant raises one point on appeal, arguing the trial court lacked subject matter jurisdiction to enter judgment and sentence him on his guilty plea. Movant alleges he properly invoked his right to relief under the UMDDL when he filed his pro se motion from the St. Charles County jail. As a result, Movant believes the State’s failure to bring him to trial within 180 days deprived the trial court of jurisdiction to accept his guilty plea. We disagree.

We first address Movant’s jurisdictional claim that the trial court lacked subject matter jurisdiction to accept his guilty plea. This analysis of “subject matter jurisdiction” under the UMDDL is no longer tenable in light of the Missouri Supreme Court’s recent holding in J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249, 252 (Mo. banc 2009). Wyciskalla explained Missouri courts recognize only two types of jurisdiction based upon constitutional principles: subject matter jurisdiction and personal jurisdiction. Id. “Subject matter jurisdiction is governed by article V of the Missouri Constitution,” which encompasses “the court’s authority to render judgment in a particular category of cases.” Id. at 252-53. Article V, Section 14 of the Missouri Constitution provides, “[t]he circuit courts shall have original jurisdiction over all cases and matters, civil and criminal.” Id. at 253.

The Southern District resolved this exact issue in Schmidt v. State, 292 S.W.3d 574 (Mo.App. S.D.2009). In Schmidt, the movant pleaded guilty and then argued in his Rule 24.035 motion the trial court lacked subject matter jurisdiction to accept his guilty plea. Id. at 575. The court found the holding in Wyciskalla refuted his claim because “the plea court unquestionably had subject matter jurisdiction to accept [the movant’s] guilty plea.” Id. at 576.

Similar to the case at bar, the movant in Schmidt predicated his subject matter jurisdiction argument on the provisions of Section 217.460. Section 217.460 specifically states, “If the indictment, information or complaint is not brought to trial within the period and if the court finds that the offender’s constitutional right to a speedy trial has been denied, no court of this state shall have jurisdiction of such indictment, information or complaint ....” (emphasis added). Relying on Wyciskalla, the Schmidt court stated, “[w]hen a statute speaks in jurisdictional terms or can be read in such terms, it is proper to read it as merely setting statutory limits on remedies or elements of claims for relief that the court may grant.” Schmidt, 292 S.W.3d at 577 (quoting Wyciskalla, 275 S.W.3d at 255); see also, Hightower v. Myers, 304 S.W.3d 727, 733 (Mo. banc 2010). Therefore, “the jurisdictional language in Section 217.460 operates as a statutory bar to relief, and a circuit court’s alleged noncompliance with this statute is reviewed for legal error only.” Schmidt supra. After reviewing for legal error only, the Schmidt court determined the movant waived all nonjurisdictional errors by pleading guilty; hence, the motion court did not err in denying his Rule 24.035 motion. Id. at 577.

We reach the same result here. It is undeniable based upon the holding in Wyciskalla that the plea court had subject matter jurisdiction to accept Movant’s guilty plea. Movant’s claim that the UMDDL was violated is not a jurisdictional argument, and therefore, can be reviewed for legal error only. “The general rule in Missouri is that a guilty plea waives all nonjurisdictional defects, including statutory and constitutional guaranties.” Schmidt 292 S.W.3d at 577. Thus, Movant waived any complaint that the trial court erred in failing to dismiss his criminal case because of alleged noncompliance with Section 217.460 of the UMDDL when he entered his guilty plea.

Based on the foregoing, we hold the trial court had the authority to enter judgment and sentence Movant pursuant to his guilty plea. The motion court did not clearly err in denying Movant’s Rule 24.035 motion for post-conviction relief. Point denied.

The motion court’s judgment is affirmed.

GLENN A. NORTON, P.J., and KATHIANNE KNAUP CRANE, J., concur.

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


text:
    Antoine PEARSON, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93791.
    Missouri Court of Appeals, Eastern District, Division Five.
    Sept. 14, 2010.
    Timothy J. Forneris, Assistant Public Defender, St. Louis, MO, for appellant.
    Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.

      Before GARY M. GAERTNER, Jr., P.J., MARY K. HOFF, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Antoine Pearson (Movant) appeals from the judgment of the Circuit Court of St. Louis County denying his Rule 29.15 motion for post-conviction relief. Movant claims that the motion court clearly erred in denying his claims that defense counsel was ineffective in: (1) failing to file a motion in limine and object to testimony and argument relating to the forensic interviewer’s opinion that the victim’s disclosure did not appear to be coached; and (2) failing to provide the trial court with a redacted recording of Movant’s police interview. We affirm.

We have reviewed the briefs of the parties and the record on appeal and find the motion court’s decision was not clearly erroneous. An extended opinion would have no precedential value. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision.

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


text:
    STATE of Missouri, Respondent, v. Darrell J. ALEXANDER, Appellant.
    No. ED 93754.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 14, 2010.
    Rosalynn Koch, 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., ROBERT G. DOWD, JR., J. and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Darrell Alexander (Alexander) appeals from the trial court’s judgment, following a jury trial, convicting him of one count of class C felony second degree domestic assault, in violation of Section 565.073. Alexander argues that the trial court erred by denying his motion for a continuance, by not ruling on his request to waive assistance of counsel, and by admitting evidence of his prior uncharged misconduct. We affirm.

We have reviewed the briefs of the parties and the record on appeal and find that Alexander is entitled to no relief on appeal. An extended opinion would have no prece-dential value. We have, however, provided a memorandum opinion for the use of the parties setting forth the reasons for our decision.

We affirm the trial court’s judgment pursuant to Rule 30.25(b).


text:
    Antione D. JOHNSON, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93692.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 14, 2010.
    Lisa M. Stroup, St. Louis, MO, for Appellant.
    Chris Koster, Attorney General, Jamie P. Rasmussen, Asst. Attorney General, Jefferson City, MO, for Respondent.
    Before KURT S. ODENWALD, P.J., and ROBERT G. DOWD, JR., and NANNETTE A. BAKER, JJ.
   ORDER

PER CURIAM.

Antione Johnson (“Movant”) appeals from the denial of his Rule 24.035 motion for post-conviction relief without an evi-dentiary hearing. Movant contends the motion court clearly erred in denying his Rule 24.035 motion without an evidentiary hearing because he alleged facts, not conclusively refuted by the record, that his plea counsel was ineffective for advising him to admit to being a prior and persistent offender and prior and persistent drug offender without requiring the State to independently prove his prior and persistent offender and prior and persistent drug offender status.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. The motion court’s findings of fact and conclusions of law are not clearly erroneous. Rule 24.035(k). An opinion reciting the detailed facts and restating principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 84.16(b).


text:
    Kenneth ROUNDTREE, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93595.
    Missouri Court of Appeals, Eastern District, Division One.
    Sept. 14, 2010.
    Jessica Hathaway, Office of the State Public Defender, St. Louis, MO, for Appellant.
    Chris Koster, Atty. Gen., Dora A. Fichter, Jefferson City, MO, for Respondent.

      Before ROY L. RICHTER, C.J., KENNETH M. ROMINES, J., and MICHAEL BULLERDIECK, Sp.J.
   ORDER

PER CURIAM.

Kenneth Roundtree appeals the motion court’s denial of his Rule 24.085 motion for post-conviction relief without an evidentia-ry hearing. 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 for their information only, setting forth the facts and reasons for this order.

The judgment is affirmed pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Darryle L. NOEL, Appellant.
    No. ED 93547.
    Missouri Court of Appeals, Eastern District, Division Five.
    Sept. 14, 2010.
    Jessica Hathaway, Assistant Public Defender, St. Louis, MO, for appellant.
    Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, JR., P.J., MARY K. HOFF, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Darryle Noel (Defendant) appeals the judgment of conviction entered after a jury found him guilty of robbery in the first degree and armed criminal action. Defendant claims the trial court abused its discretion in overruling his motions to suppress identification evidence and receiving into evidence, over defense counsel’s objection, the victim’s out-of-court identifications of Defendant.

We have reviewed the briefs of the parties and the record on appeal and no error of law appears. An extended opinion would have no precedential value. We have, however, prepared a memorandum opinion for the use of the parties only setting forth the reasons for our decision.

We affirm the judgment pursuant to Rule 30.25(b).


text:
    Fred W. PUESCHEL, Appellant, v. Diane Sue PUESCHEL, Respondent.
    No. ED 93858.
    Missouri Court of Appeals, Eastern District, Division Two.
    Sept. 14, 2010.

      Daniel L. Goldberg, St. Charles, MO, for Appellant.
    Michael P. Shea, Joseph Kuhl, St. Charles, MO, for Respondent.
    Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J., and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Fred Pueschel (hereinafter, “Husband”) appeals from the trial court’s judgment of dissolution from Diane Sue Pueschel (hereinafter, “Wife”). Husband raises three points on appeal. First, Husband claims the trial court erred in its calculation of Wife’s share of the marital residence because it was in violation of the parties’ antenuptial agreement. Second, Husband argues the trial court erred in failing to value two pieces of personal property, which he claims caused the marital property distribution to be improper. Third, Husband claims the trial court improperly imputed income to him when calculating the child support award.

We have reviewed the briefs of the parties, the legal file, and transcript on appeal. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. We have, however, provided a memorandum opinion for the use of the parties only, setting forth the reasons for our decision. The trial court’s judgment is affirmed pursuant to Rule 84.16(b).


text:
    Tracy WILD, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 94535.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 21, 2010.
    Ellen H. Flottman, Columbia, MO, for movant/appellant.
    Shaun J. Mackelprang, John W. Grant-ham, Jefferson City, MO, for respondent/respondent.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Tracy Wild (Appellant) appeals from the motion court’s judgment dismissing with prejudice her Missouri Rule of Criminal Procedure 24.035 motion for postconviction relief. We have reviewed the briefs of the parties and the record on appeal and conclude that the motion court did not clearly err in dismissing Appellant’s motion as untimely. Rule 24.035(b); Thomas v. State, 249 S.W.3d 234, 238 (Mo.App. E.D.2008). 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).


author: SHARON G. LEE, J., WILLIAM C. KOCH, JR., J.,

text:
    Amanda ELLIOTT v. R. Michael COBB.
    Supreme Court of Tennessee, at Jackson.
    April 6, 2010 Session.
    Sept. 23, 2010.

      Jeffrey P. Boyd and Laura Ann Elizabeth Bailey, Jackson, Tennessee, for the appellant, Amanda Elliott.
    Marty R. Phillips, Michelle Greenway Sellers, and Ashley D. Cleek, Jackson, Tennessee, for the appellee, R. Michael Cobb, M.D.
    John A. Day, Brandon E. Bass, and Wayne A. Ritchie, Nashville, Tennessee, for the Amicus Curiae, Tennessee Association for Justice.
    David L. Steed, Nashville, Tennessee, for the Amicus Curiae, Tennessee Medical Association.
   OPINION

SHARON G. LEE, J.,

delivered the opinion of the Court,

in which JANICE M. HOLDER, C.J., CORNELIA A. CLARK and GARY R. WADE, JJ„ joined.

The issue presented in this interlocutory appeal is whether a plaintiff in a medical malpractice action is prohibited from arguing or suggesting to the jury any monetary amounts for noneconomic damages. We hold that the language of Tennessee Code Annotated section 29-26-117 (2000) prohibits the plaintiff from disclosing the amount of damages requested in the plaintiff’s pleading, but does not preclude the plaintiff from arguing or suggesting monetary amounts for non-economic damages to jurors at trial. The judgment of the trial court is reversed, and this case is remanded for further proceedings.

I.

This appeal arises out of a medical malpractice action brought by Amanda J. Elliott against her surgeon, Dr. Michael R. Cobb. Before trial, Dr. Cobb filed a motion in limine requesting that the trial court prohibit Ms. Elliott from disclosing to the jury “the amount [of] damages sought in this case or making any statements concerning the ultimate monetary worth of this action or stating any amount for any element of non-economic damages.” The trial court granted Dr. Cobb’s motion and entered an order prohibiting Ms. Elliott from making “any reference or suggestion at any point in the trial to any specific sum for any element of non-economic damage or the ultimate monetary worth of the action.”

The trial court granted Ms. Elliott’s application for permission to file an interlocutory appeal on the issue of whether the motion in limine was correctly granted. The Court of Appeals denied her interlocutory appeal, and Ms. Elliott appealed to this Court. See Tenn. R.App. P. 9(c). We granted Ms. Elliott’s application in order to address the issue of whether Tennessee Code Annotated section 29-26-117, which provides in part that “[i]n a medical malpractice action the pleading filed by the plaintiff may state a demand for a specific sum, but such demand shall not be disclosed to the jury during a trial of the case,” prohibits a plaintiff from arguing or suggesting any monetary amounts for non-economic damages or the ultimate monetary worth of the action to the jury in a medical malpractice case.

II.

In Tennessee, counsel for civil litigants are allowed to:

(1) “read the counsel’s entire declaration, including the amount sued for, to the jury at the beginning of the lawsuit, and may refer to the declaration in argument or summation to the jury,” Tenn.Code Ann. § 20-9-302 (2009), and

(2) “argue the worth or monetary value of pain and suffering to the jury; provided, that the argument shall conform to the evidence or reasonable deduction from the evidence in such case.” Tenn.Code Ann. § 20-9-304 (2009).

In medical malpractice cases, the first of these general rules was modified with the enactment of the Medical Malpractice Review Board and Claims Act of 1975. The section of the Act at issue here provides: “In a medical malpractice action the pleading filed by the plaintiff may state a demand for a specific sum, but such demand shall not be disclosed to the jury during a trial of the case; notwithstanding the provisions of § 20-9-302 to the contrary.” Tenn.Code Ann. § 29-26-117 (originally codified as § 23-3416).

Ms. Elliott and amicus curiae Tennessee Association for Justice argue that Tennessee Code Annotated section 20-9-304, which provides that “[i]n the trial of a civil suit for personal injuries, counsel shall be allowed to argue the worth or monetary value of pain and suffering to the jury ...,” applies in any civil case, including a medical malpractice case. They submit that in a medical malpractice action, the plain and unambiguous language of section 29-26-117 prohibits either party from disclosing to the jury only the monetary amount of the demand in the plaintiffs complaint (also known as the ad damnum clause), and that the trial court’s expansive interpretation prohibiting the plaintiff from arguing or suggesting any monetary amounts for non-economic damages such as pain and suffering, loss of enjoyment of life, and permanent impairment or disfigurement, at trial was unwarranted.

Dr. Cobb and amicus curiae Tennessee Medical Association argue that the trial court’s interpretation should be upheld because allowing a plaintiff to argue the monetary value of non-economic damages would circumvent the intention of the legislature in enacting section 29-26-117. Secondly, Dr. Cobb argues that section 29-26-117 (applying to medical malpractice actions) is more specific than the general provisions of section 20-9-304 (applying to all civil lawsuits for personal injuries), and to the extent the sections conflict, the specific section 29-26-117 should control.

The issue before us involves what plaintiffs counsel may argue to the jury regarding damages. Trial courts have wide latitude with regard to their control of arguments of counsel. Crowe v. Provost, 52 Tenn.App. 397, 374 S.W.2d 645, 652 (1963); Cosmopolitan Life Ins. Co. v. Woodward, 7 Tenn.App. 394, 404 (1928). These decisions lie within the trial court’s discretion. Ferguson v. Moore, 98 Tenn. 342, 39 S.W. 341, 343 (1897); Davis v. Hall, 920 S.W.2d 213, 217 (Tenn.Ct.App.1995); J. Avery Bryan, Inc. v. Hubbard, 32 Tenn.App. 648, 225 S.W.2d 282, 287 (1949). Accordingly, we review the trial court’s decision regarding jury argument using the “abuse of discretion” standard. A trial court abuses its discretion by “(1) applying an incorrect legal standard, (2) reaching an illogical or unreasonable decision, or (3) basing its decision on a clearly erroneous assessment of the evidence.” Lee Medical, Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn.2010).

During arguments to the jury, counsel may argue their analysis of the evidence that has been presented at trial. Skoretz v. Cowden, 707 S.W.2d 529, 533 (Tenn.Ct.App.1985); Rogers v. Murfreesboro Hous. Auth., 51 Tenn.App. 163, 365 S.W.2d 441, 446 (1962). However, statements and arguments of counsel are neither evidence nor a substitute for testimony. Metropolitan Gov’t of Nashville and Davidson County v. Shacklett, 554 S.W.2d 601, 605 (Tenn.1977); Hathaway v. Hathaway, 98 S.W.3d 675, 681 (Tenn.Ct.App.2002).

Although this Court has not previously addressed the issue presented here, the application of Tennessee Code Annotated section 29-26-117 has been addressed in dicta in a few cases. In Runnells v. Rogers, 596 S.W.2d 87, 91 (Tenn.1980), the amount of the ad damnum clause was disclosed to the jury, and this Court stated that “[ajssuming, but not deciding, the validity of this portion of the law, the error, if any, was harmless beyond doubt” where the verdict was for $1,224.48 and the amount sued for was $25,000. In Guess v. Maury, 726 S.W.2d 906, 918-20 (Tenn.Ct.App.1986), plaintiffs’ counsel referred to the case as “possibly a multi-million-dollar lawsuit” in his closing argument to the jury, despite the trial court’s prior specific ruling disallowing any reference to any amount of money sought in the lawsuit. The Guess court ruled that the plaintiffs counsel clearly violated the trial court’s instructions and that “to some degree the labeling of this litigation as a ‘multi-mil-lion-dollar lawsuit’ likely had its effect upon the jury.” Id. Although the court concluded that this was “yet another collective reason for a new trial,” the issue of whether the plaintiff was precluded from making any reference to monetary amounts sought in the lawsuit was not at issue on appeal, and therefore the Guess court’s observations regarding that ruling were merely dicta. Id. at 920. In DeMilt v. Moss, No. 02A01-9611-CV-00283, 1997 WL 759440, at *7 (Tenn.Ct.App. Dec. 10, 1997), plaintiffs counsel stated in closing argument, “well for those four years I think she ought to have $50,000.00 a year.” The ad damnum clause in plaintiffs complaint had requested ten million dollars in damages. Id. at *8. The Court of Appeals found counsel’s statement likely had an effect on the jury’s award and was “a further reason” for granting a new trial. Id. Again, as in Guess, the issue of the propriety of the plaintiffs argument of non-economic damages was not before the court.

In construing statutes, the Court’s role is well established — we seek to ascertain the legislative intent and purpose by examining the natural and ordinary meaning of the words used in a statute “without unduly restricting or expanding a statute’s coverage beyond its intended scope.” Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73, 83 (Tenn.2001). “Our approach to statutory construction begins with the statute’s language, and if it can end there — with our finding of a clear meaning of the Legislature’s intent — then we must stop.... [wjith no recourse to the broader statutory scheme, legislative history, historical background, or other external sources of the Legislature’s purpose.” Calaway ex rel. Calaway v. Schucker, 193 S.W.3d 509, 516 (Tenn.2005); see also Lee Medical, Inc. v. Beecher, 312 S.W.3d 515, 527 (Tenn.2010) (“When a statute’s text is clear and unambiguous, the courts need not look beyond the statute itself to ascertain its meaning.”).

Applying these rules of statutory construction, we find the language of Tennessee Code Annotated section 29-26-117 is clear and unambiguous. The statute provides that “[i]n a medical malpractice action the pleading filed by the plaintiff may state a demand for a specific sum, but such demand shall not be disclosed to the jury during a trial of the case; notwithstanding the provisions of § 20-9-302 to the contrary.” Tenn.Code. Ann. § 29-26-117 (emphasis added). It is clear that “such demand” refers to the “demand for a specific sum” stated by the plaintiffs pleading. Section 29-26-117 precludes either party from disclosing only the amount demanded in “the pleading filed by the plaintiff.” The General Assembly obviously correctly observed that section 29-26-117 was in direct conflict with Tennessee Code Annotated section 20-9-302, which provides that “[i]n the trial of any civil suit, counsel shall be permitted to read the counsel’s entire declaration, including the amount sued for, to the jury ...,” and the legislature therefore indicated its intent to repeal section 20-9-302 in medical malpractice cases.

Section 29-26-117 makes no reference to non-economic damages such as pain and suffering. However, Tennessee Code Annotated section 20-9-304 allows plaintiffs to argue the monetary value of a claim for pain and suffering as long as the argument conforms to the evidence or reasonable deduction from the evidence. If the legislature had intended to repeal section 20-9-304 in medical malpractice cases, it easily could have done so, as it did with section 20-9-302. We must “assume that whenever the legislature enacts a provision, it is aware of other statutes relating to the same subject matter.” Shorts v. Bartholomew, 278 S.W.3d 268, 277 (Tenn.2009) (citing Wilson v. Johnson County, 879 S.W.2d 807, 810 (Tenn.1994)). The new provision is presumed to be in accord with the same policy embodied in the prior statutes unless the newer statute expressly repeals or amends the old one. Id. We must construe statutes on the same subject, although in apparent conflict, in harmony if reasonably possible. In re Akins, 87 S.W.3d 488, 493 (Tenn.2002). Shorts, 278 S.W.3d at 277; see also State v. Hicks, 55 S.W.3d 515, 523 (Tenn.2001) (stating that “courts should find repeals by implication only when statutes cannot be construed harmoniously”); Sharp v. Richardson, 937 S.W.2d 846, 850 (Tenn.1996) (noting that “repeals or alterations of existing statutes by implication [are] disfavored”).

We do not find sections 29-26-117 and 20-9-304 to be in conflict. Interpreted in accordance with the clear and unambiguous language of each section, the statutory scheme allows a plaintiff to argue or suggest a monetary value to be placed on non-economic damages such as pain and suffering and to make an argument concerning the ultimate monetary worth of his or her action, but precludes either party from disclosing the amount of the ad dam-num clause in the plaintiffs complaint. The United States District Court for the Eastern District of Tennessee has reached the same conclusion. Donathan v. Orthopaedic & Sports Med. Clinic, PLLC, No. 4:07-cv-18, 2009 WL 3584263, at *11 (E.D.Tenn. Oct. 26, 2009) (“Reading these two statutes [sections 29-26-117 and 20-9-304] together, it is apparent that Plaintiffs may argue the worth or monetary value of pain and suffering to the jury, but they may not disclose the specific sum sought in the Amended Complaint.”).

To hold otherwise would be to effectively rewrite the statute, adding an additional provision regarding non-economic damages and unduly expanding the scope of the statute. “Courts are not authorized to alter or amend a statute, and must ‘presume that the legislature says in a statute what it means and means in a statute what it says there.’ ” Limbaugh, 59 S.W.3d at 83 (quoting Mooney v. Sneed, 30 S.W.3d 304, 307 (Tenn.2000)). To the extent that Guess and DeMilt conflict with our holding that Tennessee Code Annotated section 29-26-117 does not prohibit a plaintiff in a medical malpractice case from arguing or suggesting a monetary valuation for non-economic damages or the ultimate worth of the action to the jury, those cases are overruled.

III.

The judgment of the trial court is reversed, and the case is remanded to the Madison County Circuit Court for further proceedings consistent with this opinion. Costs on appeal are assessed to the appel-lee, R. Michael Cobb, M.D., for which execution may issue if necessary.

WILLIAM C. KOCH, JR., J., filed a separate concurring opinion.

WILLIAM C. KOCH, JR., J.,

concurring.

I concur with the Court’s conclusion that Tenn.Code Ann. § 20-9-304 (2009) permits lawyers to “argue the worth or monetary value of pain and suffering to the jury” in medical malpractice cases. I have prepared this separate opinion to call attention to two related matters.

First, Tenn.Code Ann. § 20-9-304 requires lawyers’ arguments regarding the worth or value of pain and suffering to “conform to the evidence or reasonable deduction[s] from the evidence.” Thus, without evidence of pain and suffering, an argument regarding the worth or monetary value of pain and suffering should not be permitted. When an argument regarding the worth or monetary value of pain and suffering is made, the trial court should instruct the jury, in accordance with T.P.I. — Civil 15.03 (2010), that “statements or arguments made by the attorneys during the trial are not evidence.”

Second, our interpretation of TenmCode Ann. § 20-9-304 in this case did not require us to review or to approve any particular argument regarding the worth or monetary value of pain and suffering. Accordingly, this opinion should not be construed as necessarily approving “per diem” arguments that are frequently used by lawyers to guide jurors in assessing non-economic damages. See generally Joseph H. King, Jr., Counting Angels and Weighing Anchors: Per Diem Arguments for Noneconomic Personal Injury Tort Damages, 71 Tenn. L.Rev. 1, 49 (2004). Issues relating to the propriety of particular arguments must await the appropriate cases.

      . "Non-economic damages” include "pain and suffering, permanent impairment and/or disfigurement, and loss of enjoyment of life— both past and future.” Overstreet v. Shoney’s, 4 S.W.3d 694, 715 (Tenn.Ct.App.1999); see also Health Cost Controls, Inc. v. Gifford, 239 S.W.3d 728, 733 (Tenn.2007); Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 388 (Tenn.Ct.App.2006).

      . The General Assembly in 1985 repealed sections 29-26-101 to 29-26-114, including the title, and no new title was substituted. See Act of April 8, 1985, ch 184, § 4(c), 1985 Tenn. Pub. Acts 340, 341.

      . Tennessee Code Annotated section 20-9-302 (2009) provides that "[i]n the trial of any civil suit, counsel shall be permitted to read the counsel's entire declaration, including the amount sued for, to the jury at the beginning of the lawsuit, and may refer to the declaration in argument or summation to the jury.”

      .Tennessee has joined a number of states that have enacted provisions relating to the ad damnum clause in medical malpractice cases. See Ala.Code § 6-5-483 (2005) (providing that "[t]he ad damnum clause in complaints alleging medical liability shall be eliminated” but allowing attorneys to request or suggest a specific sum during trial); Alaska Stat. § 09.55.547 (2008) (barring ad damnum clauses in medical malpractice complaints); Ariz.Rev.Stat. Ann. § 12-566 (2003) (providing that "no dollar amount or figure shall be included in the complaint” for medical malpractice); Ark. Code Ann. § 16-114-205 (2006) (providing that pleading in medical malpractice cases "shall not specify the amount of damages claimed”); Cal.Civ.Proc. Code § 425.10 (2004) (barring ad damnum clauses in all actions for personal injury or wrongful death); Me. Rev. Stat. Ann. tit. 24, § 2901 (2000) (providing that "[n]o dollar amount or figure shall be included in the demand in any malpractice complaint”); Mass. Gen. Laws Ann. ch. 231, § 60C (West 2000) (barring ad damnum clauses in medical malpractice complaints); N.H.Rev.Stat. Ann. § 507-C:6 (2010) (barring ad damnum clauses in medical practice complaints and prohibiting the amount of damages claimed from being "communicated to the jury in argument or otherwise”) (held unconstitutional on other grounds by Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980)); N.M. Stat. Ann. § 41-5-4 (West 1996) (providing that "no dollar amount or figure shall be included in the demand in any complaint asserting a malpractice claim”); Tex. Civ. Prac. & Rem.Code Ann. § 74.053 (Vernon 2005) (barring ad damnum clauses in medical malpractice cases but allowing parties to "mention[] the total dollar amount claimed in ... argument to the court or jury”); Utah Code Ann. § 78B-3-409 (2008) (providing that "[a] dollar amount may not be specified in the prayer of a complaint filed in a malpractice action”); W. Va.Code Ann. § 55-7B-5 (2008) (providing that "no specific dollar amount or figure may be included in the complaint” for medical professional liability action); Wis. Stat. Ann. § 655.009 (West 2004) (providing that the complaint in a malpractice action "shall not specify the amount of money to which the plaintiff supposes to be entitled”).

      . Pursuant to Supreme Court Rule 4(G), the unpublished DeMilt opinion is persuasive, not controlling, authority.