author: KENNETH M. ROMINES, J.

text:
    Don VAUGHN and Regina Vaughn, Appellants, v. Arthur GENASCI, James Vieth, James Meyer, City of St. Charles and St. Charles County, Respondents.
    No. ED 94465.
    Missouri Court of Appeals, Eastern District, Division One.
    Oct. 26, 2010.

      Daniel J. McMichael, McMichael & Logan, Kirkwood, MO, for appellants.
    Harold Alexander Ellis, Office of the St. Charles County Counselor, St. Charles, MO, Paul Simon, Jr., Sauerwein, Simon & Blanchard, St. Louis, MO, for respondents.
   Facts

KENNETH M. ROMINES, J.

This is an appeal from a dismissal by the trial court on the pleadings. Appellants Don and Regina Vaughn filed a petition seeking damages from respondents Arthur Genasci, James Vieth, and James Meyer, individually and in their respective official capacities, and from respondents the City of St. Charles and St. Charles County for wrongful conduct and resultant pecuniary loss. Appellants own a home located in unincorporated St. Charles County. Appellants pleaded their home was served by a sewer which is operated by the “City and/or the County of St. Charles.”

James Meyer, an employee of the City of St. Charles, visited Appellant’s at their home to discuss a sinkhole that existed on their street. At that meeting, Meyer provided Appellant’s with a photograph which purported to show a leak in the lateral sewer line connecting their home with the main sewer line. Meyer informed Appellants that this leak in their lateral caused the sinkhole. Arthur Genasci and James Vieth, employees of St. Charles County, sent a letter to Appellants which alleged that they were in violation of Unified Development Ordinance Section 422.070 for allowing illicit discharge from the property due to their broken sewer lateral. The letter demanded that Appellants repair the lateral within six days and threatened “fines up to $1,000 per day of violation and/or a 90-day incarceration” if they failed to comply.

Appellants had the sewer lateral inspected and replaced. They now seek damages from Respondents for ordering the unnecessary replacement of a working lateral even after they informed respondent Ge-nasci an inspection and excavation of their sewer lateral had both indicated their lateral had no defects and did not need to be replaced.

All defendants filed motions to dismiss for failure to state a claim. The trial court sustained the motions and ordered the petition dismissed with prejudice, finding the claims barred by immunity. Accordingly, the trial court entered judgment against the Vaughns in favor of respondents. The Vaughns now appeal the judgment of the trial court. We affirm in part and reverse and remand in part.

Standard of Review

This Court reviews dismissals for failure to state a claim de novo. Hess v. Chase Manhattan Bank, USA, N.A., 220 S.W.3d 758, 768 (Mo. banc 2007). Our review is limited to the contents of Appellant’s First Amended Petition. Richardson v. City of St. Louis, 293 S.W.3d 133, 136 (Mo.App. E.D.2009). We review the facts alleged in the Petition, without any weighing of credibility or persuasiveness, to determine if they meet the elements of any recognized cause of action. Hendricks v. Curators of Univ. of Mo., 308 S.W.3d 740, 742-43 (Mo.App. W.D.2010).

Discussion

A petition should not be dismissed if any set of facts asserted therein, if proven, would entitle Plaintiff to relief. Martin v. City of Washington, 848 S.W.2d 487, 489 (Mo. banc 1993). Under the rule of sovereign immunity, municipalities are generally not liable for torts. Topps v. City of Country Club Hills, 272 S.W.3d 409, 415 (Mo.App. E.D.2008). Liability exists only in limited circumstances. Id. In order for a petition alleging municipal tort liability to survive a motion to dismiss for failure to state a claim, the plaintiff must plead specific facts showing that his claim falls within an exception to the rule. Id. Likewise, municipal employees are protected from tort liability for some of their actions. Davis v. Lambert-St. Louis Intern. Airport, 193 S.W.3d 760, 763 (Mo. banc 2006). In order for a petition alleging municipal employee tort liability to survive a motion to dismiss for failure to state a claim, the plaintiff must plead specific facts demonstrating that the employee failed to perform a statutory or departmentally-mandated duty or that the employee performed a discretionary duty with bad faith or malice. State ex rel. Twiehaus v. Adolf, 706 S.W.2d 443, 446 (Mo. banc 1986); Boever v. Special Sch. Dist. of St. Louis County, 296 S.W.3d 487, 492 (Mo.App. E.D.2009).

City, County and County Employees

In their First Amended Petition, Appellants aver that the City of St. Charles and the County of St. Charles operate the sewer system in St. Charles County. The Petition alleges that the County, through its employees Genasci and Vieth, ordered Appellants, under threats of fines and imprisonment, to make costly unwarranted repairs to their private sewer lateral. The Petition states that the County and its employees knew that the sinkhole across the street was caused by the City and County’s own negligent operation of the sewer system but forced Appellants to make unnecessary repairs in order to shift the cost of maintenance.

These facts, if proven, may entitle Appellants to relief against the City, the County and County employees. In regards to the City and County, Appellants have pleaded facts, negligent operation of the sewer system, which upon further factual development may demonstrate an exception to the rule against municipal tort liability. In regards to County employees, Appellants have also pleaded facts, threats against Appellants with knowledge of the City and County’s negligence, from which one might infer that the employees acted with bad faith or malice. While there are sufficient pleadings for Appellants to withstand a motion to dismiss these defendants, we make no comment as to the result to be reached after discovery.

City Employee

While Appellants are entitled to proceed against the City, County, and County employees, the same cannot be said for City employee Meyer. In their petition, Appellants make no allegations that Meyer’s actions caused them any harm. All harm allegedly sustained by Appellants is attributable to the City and County’s supposed negligent operation of the sewer system and County employees’ malicious enforcement of the ordinance. Meyer simply visited Appellants to discuss the possible cause of the sinkhole. The petition does not allege that Meyer was responsible for either the operation of the sewer or the enforcement of the ordinance. As Meyer caused them no harm, Appellants have no grounds for relief against him.

Conclusion

Appellants pleaded sufficient facts that, if proven, may entitle them to relief against the City, the County and the named County employees. As there were no allegations of harm caused by City employee Meyer in Appellant’s petition, the petition stated no grounds for relief against him. The trial court’s grant of the motion to dismiss as to defendant James Meyer is affirmed. Its grant of the motion to dismiss as to defendants Arthus Genas-ci, James Vieth, City of St. Charles and St. Charles County is reversed and the case is remanded to trial court for proceedings consistent with this opinion.

ROY L. RICHTER, C.J, and STEPHEN K. WILLCOX, SP., J. concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re the MARRIAGE OF Larry S. HAYES and Natalia M. Hayes Larry S. Hayes, Petitioner/Respondent, v. Natalia M. Hayes, Respondent/Appellant.
    No. ED 93940.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 26, 2010.

      Charles E. Stine, Jr., Hannibal, MO, for respondent.
    Molly M. Jones, Christan E. Shelton, Bryan Cave LLP, St. Louis, MO, for appellant.
    Before GLENN A. NORTON, P.J., EATHIANNE KNAUP CRANE, J., and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Mother, Natalia M. Hayes, appeals from that part of a dissolution decree that awarded sole legal and physical custody to father. 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).


text:
    Suzanne WACK, Appellant, v. Nathan S. COHEN, Respondent.
    No. ED 94311.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 26, 2010.
    Patricia A. Zimmer, Belleville, IL, for appellant.
    Thomas J. Hayek, St. Louis, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., LAWRENCE E. MOONEY, J., and GLENN A. NORTON, J.
   ORDER

PER CURIAM.

Suzanne Wack (Client) appeals the judgment of the circuit court after it granted directed verdict in favor of Nathan Cohen (Lawyer) in an action for legal malpractice.

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

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


text:
    Joe BRAZIL, Appellant, v. Jeff ROE, Respondent.
    No. ED 94445.
    Missouri Court of Appeals, Eastern District, Division Five.
    Oct. 26, 2010.

      Daniel M. McLaughlin, Kirkwood, MO, for appellant.
    David L. Marcus, Kansas City, MO, for respondent.
    Before GARY M. GAERTNER, JR., P.J., MARY K. HOFF, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Joe Brazil (Plaintiff) appeals the trial court’s grant of summary judgment in favor of Jeff Roe (Defendant) on Plaintiffs petition alleging defamation and injurious falsehood. Plaintiff claims that the trial court erred in granting summary judgment in favor of Defendant on Plaintiffs defamation claim because there is a genuine issue of material fact concerning the existence of actual malice.

We have reviewed the briefs of the parties and the record on appeal and find no error in any of the respects alleged. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would have no precedential value. We have, however, provided a memorandum for the use of the parties only setting forth the reasons for our decision.

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

      . Plaintiff does not appeal the summary judgment entered on his claim for injurious falsehood.


author: CLIFFORD H. AHRENS, Judge.

text:
    James Mark ROHLMAN, Respondent, v. DIRECTOR OF REVENUE, State of Missouri, Appellant.
    No. ED 94078.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 26, 2010.

      Chris Koster, 'Jefferson City, MO, for appellant.
    Todd Muchnick, Clayton, MO, for respondent.
   CLIFFORD H. AHRENS, Judge.

The Director of Revenue of the State of Missouri (“Director”) appeals from the judgment of the trial court that ordered the Director to remove a sixty-day suspension from the driving record of James M. Rohlman (“Driver”). We reverse and remand.

On April 14, 2009, Director notified Driver that his driving privilege would be suspended for thirty days, beginning on May 15, 2009, based on Driver’s accumulation of points on his driving record. Driver had convictions for speeding on the following dates: February 7, 2008, in St. Louis County, Missouri; November 21, 2008, in Kansas; and March 11, 2009, in Iowa. The notification of April 14, 2009, informed Driver that his driving privilege would be suspended for thirty days effective May 15, 2009, with Driver to be eligible to be reinstated on June 14, 2009. The purpose of the delay between the Director sending the notice and the effective date of suspension is to permit drivers to appeal the decision to suspend to the circuit court. On May 4, 2009, Driver was convicted of another speeding violation in Iowa (“2nd Iowa conviction”), which would warrant the Director to assess three points against Driver’s license. On May 15, 2009, Driver’s thirty-day suspension of his license went into effect. On May 22, 2009, the Director received notification from Iowa of Driver’s 2nd Iowa conviction, assessed three points on Driver’s license, and on June 2, 2009, the Director sent Driver notice that his license was to be suspended for sixty days for point accumulation. Driver timely appealed this second suspension.

The hearing took place on September 22, 2009. The only evidence entered into the record was Exhibit A, which consisted of Driver’s driving record showing his convictions for speeding, and the letters to Driver from Director regarding the initial thirty-day suspension and the second sixty-day suspension of his license. The Commissioner found that the points from Driver’s second Iowa speeding conviction were improperly assessed as to date of occurrence and the number of suspensions, and ordered the sixty-day suspension to be removed from Driver’s record. The Commissioner’s findings were approved by the trial court on October 22, 2009. Director now appeals from this judgment.

This Court will affirm the judgment of the trial court unless there is no substantial evidence to support it, unless it is contrary to the weight of the evidence, or unless the trial court erroneously declares or applies the law. Hinnah v. Director of Revenue, 11 S.W.3d 616, 620 (Mo. banc 2002). If the evidence is uncontro-verted or admitted, so that the issues are purely questions of law, then there is no need to defer to the judgment of the trial court. Id.

In her sole point relied on, the Director contends that the trial court erred in reversing Driver’s second suspension because it misapplied the law in that the Director properly assessed three points and a second suspension upon receiving notice of Driver’s 2nd Iowa conviction.

Section 302.304.2 RSMo 2000 states that

In an action to suspend or revoke a license or driving privilege under this section points shall be accumulated on the date of conviction. No case file of any conviction for a driving violation for which points may be assessed pursuant to section 302.302 may be closed until such time as a copy of the record of such conviction is forwarded to the department of revenue.

This particular subsection of the statute, which provides that points are accumulated on the date of conviction, was amended by the legislature in 1996 to overturn the holding in Buttrick v. Director of Revenue, 804 S.W.2d 19 (Mo. banc 1991). See Jennings v. Director of Revenue, 986 S.W.2d 513, 514 (Mo.App.1999). In Buttrick, 804 S.W.2d at 20, the Missouri Supreme Court had interpreted section 302.304 RSMo 1986 to mean “an accumulation of points for purposes of a suspension pursuant to Section 304.302.2 must refer to points assessed by the Director, not merely a conviction that could result in an assessment of points.” The 1996 amendment made it clear that points accumulated when a driver was convicted of a violation, and was a legislative effort to give some certainty regarding the discrepancy between when points were accumulated and when points were assessed by the Director. Jennings, 986 S.W.2d at 514, n. 3.

Section 302.160 provides that:

When the director of revenue receives notice of a conviction in another state or from a federal court, which, if committed in this state, would result in the assessment of points, the director is authorized to assess the points and suspend or revoke the operating privilege when the accumulated points so require as provided in section 302.304.

Section 302.160, unlike section 302.304.2, was not amended following the decision in Buttrick. Under this statute, the Director is not authorized to assess points until she receives notice of the conviction in another state or from a federal court. In the present case, notice of Driver’s 2nd Iowa conviction was not received by the Director until May 22, 2009. The Director could not assess points until that date; it was impossible for her to assess points against Driver’s Missouri license on the date of the second Iowa conviction.

Section 302.304.3 provides that the Director “shall suspend the license and driving privileges” of anyone whose driving record shows an accumulation of eight points within eighteen months. The Director has no discretion not to suspend the driving privileges when the accumulated point total reaches the statutory amount. See Brown v. Director of Revenue, 97 S.W.3d 82, 83 (Mo.App.2002).

The Director could not assess points against Driver’s license for the 2nd Iowa conviction prior to receiving notice thereof, which he did not receive until May 22, 2009, after Driver’s initial suspension was in effect. Having assessed three points against Driver’s license on or after May 22, 2009, Director was obligated by statute to check the accumulation of points against Driver’s license. The accumulation of points totaled more than eight points within eighteen months, and Director was statutorily obligated to suspend Driver’s license a second time, as the initial suspension that went into effect on May 15, 2009, was still operative. The trial court misapplied the law when it found that Director had improperly assessed points and the number of suspensions, and in ordering that the second suspension of sixty days be removed from Driver’s record. Point sustained.

The judgment of the trial court is reversed and remanded.

SHERRI B. SULLIVAN, P.J., and LAWRENCE E. MOONEY, J., concur.

      . Unless noted otherwise, all further statutory citations are to RSMo 2000.

      . We are cognizant that the interplay between section 302.304.2, section 302.160, and section 320.304.3 appears to raise some of the discrepancy between the accumulation of points and the assessment of points that the legislature sought to eliminate by amending section 302.304.2 in 1996. However, the plain language of section 302.160 is controlling as to when Director is authorized to assess points on convictions from another state or in federal court. Eliminating those potential anomalies is not within the purview of this Court in this case, but rather would appear to be a matter for the legislature.


author: KATHIANNE KNAUP CRANE, Judge.

text:
    CITY OF PORTAGE DES SIOUX, Plaintiff/Respondent, v. KLAUS LAMBERT and Constance Alt, Defendants/Appellants.
    No. ED 94007.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 26, 2010.

      John C. Kress, The Kress Law Firm, LLC, St. Louis, MO, for appellants.
    Stephen A. Martin, The Law Firm of Stephen A. Martin, St. Charles, MO, for respondent.
   KATHIANNE KNAUP CRANE, Judge.

Defendant property owners appeal from a contempt judgment entered against them in favor of plaintiff city. The judgment imposed a $100.00 per day fine until defendants demolished certain buildings on then-property, and if defendants did not demolish the buildings by November 30, 2009, it gave the city authority to demolish them. We dismiss the appeal for lack of a final judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Defendants, Klaus Lambert and Constance Alt, owned real property located in the City of Portage des Sioux (the city), in St. Charles County, Missouri. In early 2004, the city, as plaintiff, filed a petition against defendants seeking an injunction and other relief for defendants’ violations of several city ordinances governing the safety and sanitation of buildings.

On April 27, 2004, the circuit court entered a Judgment and Order finding that defendants violated several of the city ordinances. The court ordered defendants to correct or abate the violations within 60 days of the judgment’s entry, including the removal of a “red/rust colored building” and boat. The court also found that all remaining structures on the property were so damaged as to be unfit for use or habitation and ordered defendants to either restore, elevate, or demolish each structure within 180 days of the judgment. This judgment was affirmed. City of Por tage Des Sioux v. Lambert, 196 S.W.3d 587, 593 (Mo.App.2006). Defendants did not comply with the April 27, 2004 judgment by October 19, 2006, and the court entered a judgment giving defendants 60 additional days to comply with the abatement order that included removal of the red/rust colored building and 180 days to comply with the abatement order requiring defendants to either restore, elevate, or demolish the remaining structures on the property.

On August 4, 2009, the city filed a motion for contempt against each defendant. After a hearing, the court entered a “Judgment/Order” adjudging defendants guilty of contempt of court because of their failure to comply with the April 27, 2004 and October 19, 2006 orders. The court ordered defendants to pay a fine of $100.00 per day “until such time as they have purged themselves of this contempt by demolishing and removing the red/rust colored building and demolishing and removing the remaining buildings on the property.” It further ordered:

to ensure defendants^] compliance with the judgment of April 27, 2004, as extended by the order of October 19, 2006, and this judgment/order, if [defendants] fail to demolish and remove the [] red/ rust colored building and remaining buildings on the property by November 30, 2009, the [city] is hereby authorized to demolish and remove the structures.

Defendants appeal from this “Judgment/Order.”

DISCUSSION

On appeal, defendants raise eleven points of error. However, before we reach the merits of this appeal, we must sua sponte determine whether we have authority to decide this case. In re Marriage of Werths, 33 S.W.3d 541, 542 (Mo. banc 2000); see also Edmondson v. Edwards, 280 S.W.3d 752, 757 (Mo.App.2009). This court does not have authority if there is no final judgment. Missouri Highway and Transp. v. Westgrove, 306 S.W.3d 618, 626 (Mo.App.2010); Werths, 33 S.W.3d at 542. Accordingly, we gave the parties the opportunity to supplement their briefs on the question of whether there has been a final judgment, and they have done so.

A civil contempt order is not a final judgment for purposes of appeal until it has been enforced. In re Marriage of Tibbs, 177 S.W.3d 855, 856-57 (Mo.App.2005). A court must be able to enforce a judgment for the judgment to be valid. Edmondson, 280 S.W.3d at 757. “In order to comply with this requirement, the judgment must adjudicate the controversy to a conclusion which permits issuing and processing of executions or other court orders seeking to enforce the judgment, without the need for external proof and another hearing.” Id. (quoting Superlube Inc. v. Innovative Real Estate, 94 S.W.3d 480, 484 (Mo.App.2003)).

“When enforcement occurs depends on the remedy.” Tibbs, 177 S.W.3d at 857. A judgment cannot be based on actions that may or may not occur in the future. Edmondson, 280 S.W.3d at 758. Judgments that do not become operative unless and until certain conditions occur are not final for purposes of appeal. Id. (quoting Schroff v. Smart, 73 S.W.3d 28, 30 (Mo.App.2002)). “ ‘Generally, where the enforcement of a judgment is conditional upon the occurrence or nonoccurrence of future acts, the performance or nonperformance of which is outside the record, the judgment is deemed indefinite and unenforceable.’ ” Edmondson, 280 S.W.3d at 758 (quoting B.J.M.T. ex rel. McClure v. Teff 21 S.W.3d 154, 156 (Mo.App.2000)).

In Edmondson, the defendants maintained a pond on their property in violation of an injunction. 280 S.W.3d at 754-55. The contempt judgment ordered: “IT IS FURTHER ORDERED that [D]efendants may purge themselves of such contempt by demolishing the pond by July 20, 2007. For failure to do so, execution may issue.” The court of appeals dismissed the appeal because the contempt judgment was not final. Id. at 758. The court determined that the judgment was too indefinite to be final because it failed to adjudicate the controversy to a conclusion without the need for external proof and another hearing on whether defendants complied by demolishing the pond. Id. at 757-58. In addition, the judgment was conditioned on acts that might or might not occur in the future. Id.

This case falls squarely within Edmondson. The judgment was conditioned on defendants’ compliance. The contempt order entered in this case could not be enforced without an additional evi-dentiary hearing or external proof on defendants’ compliance with that part of the order requiring them to demolish their buildings by November 30, 2009. This rendered the enforcement conditional upon the occurrence or nonoccurrence of a future act, the performance of which was outside the record, making the judgment indefinite and unenforceable.

A judgment must “leave [ ] nothing for future determination.” Worths, 33 S.W.3d at 542. Because at the time it was entered, the demolition order left enforcement for future determination, the judgment was not final.

Conclusion

Appeal dismissed.

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

      . Defendants argue that because it is undisputed that they did not comply with the order to demolish by November 30, 2009, the order is no longer conditional and there is no need for a hearing. This argument ignores the fact that we review a judgment for finality at the time it was entered and not on the basis of subsequent events. Defendants also argue that the judgment was definite because it specifically provided what would happen if defendants did not demolish their buildings. The judgment was indefinite because the order giving the city the authority to demolish the buildings was conditional on defendant's noncompliance, see Edmondson, 280 S.W.3d at 758, not because the further remedy may or may not have been phrased in specific terms.


text:
    STATE of Missouri, Respondent, v. Dwayne J. WINGO, Appellant.
    No. ED 93770.
    Missouri Court of Appeals, Eastern District, Division Five.
    Oct. 26, 2010.
    Jessica Hathaway, St. Louis, MO, for appellant.
    Chris Foster, Richard A. Starnes, Jefferson City, MO, for respondent.
    Before: GARY M. GAERTNER, JR., P.J., MARY K. HOFF, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Defendant, Dwayne Wingo, appeals from the judgment entered after a jury found him guilty of robbery in the first degree and attempted robbery in the first degree. No jurisprudential purpose would be served by a written opinion. The parties have been provided with a memorandum for their information only, setting forth the reasons for this decision. The judgment is affirmed pursuant to Rule 30.25(b).


text:
    Jerry JAMES, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 93739.
    Missouri Court of Appeals, Eastern District, Division Five.
    Oct. 26, 2010.
    Lisa M. Stroup, St. Louis, MO, for Mov-ant/Appellant.
    Chris Koster, Attorney General, Mary H. Moore, 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.

Jerry James appeals from the motion court’s Findings of Fact, Conclusions of Law, and Order denying his Rule 29.15 Amended Motion to Vacate, Set Aside, or Correct the Judgment or Sentence on two counts of first-degree assault, two counts of armed criminal action, and one count of first-degree burglary, entered following an evidentiary hearing.

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. The judgment of the motion court is based on findings of fact that are not clearly erroneous. Rule 84.16(b)(2); Rule 29.15(k). No error of law appears. An extended opinion would have no precedential value. We affirm the judgment pursuant to Rule 84.16(b). The parties have been furnished a memorandum for their information only, setting forth the reasons for the order affirming the judgment pursuant to Rule 84.16(b).


text:
    Silvia MORALES, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93729.
    Missouri Court of Appeals, Eastern District, Division One.
    Oct. 26, 2010.

      Stacey Sullivan Rosenberger, Special State Public Defender, St. Louis, MO, for appellant.

      Chris Koster, Attorney General, Karen L. Kramer, Assistant Attorney General, for respondent.
   KENNETH M. ROMINES, J.

Factual and Procedural Background

On 8 March 2007, Appellant was convicted by a jury of Abuse of a Child — Serious Emotional Injury, a B felony. § 568.060 The case stems from abuse inflicted on A.M., Appellant’s son, by Appellant and her boyfriend. Appellant and boyfriend beat A.M. with sticks, switches with thorns, electrical cords, shoes, hands, and a plastic stick used to open blinds. Additionally Appellant abused A.M. by forcing him to kneel on wooden board covered in bottle caps, and locking A.M. in a room with no lights and no food for hours at a time. Appellant was sentenced to twelve years in prison per the jury’s recommendation. This Court affirmed Appellant’s direct appeal of her conviction and sentence. State v. Morales, 254 S.W.3d 903 (Mo.App. E.D.2008).

On 3 September 2008, Appellant filed a Motion to Vacate, Set Aside or Correct Judgment or Sentence pursuant to Rule 29.15 of the Rules of Criminal Procedure. Appellant raised three points of error in her motion. On 24 April 2009, the motion court denied Appellant’s motion without an evidentiary hearing. We Affirm.

Discussion

This Court reviews the findings and conclusions of the motion court under Rule 29.15 for clear error. Supreme Court Rule 29.15. The motion court’s findings and conclusions are clearly erroneous only if review of the record as a whole leaves this Court with the firm and definite impression that a mistake has been made. State v. Taylor, 929 S.W.2d 209, 224 (Mo. banc 1996), cert. denied, 519 U.S. 1152, 117 S.Ct. 1088, 137 L.Ed.2d 222 (1997). On review, the motion court’s findings of fact and conclusions of law are presumptively correct. Wooldridge v. State, 239 S.W.3d 151, 154 (Mo.App. E.D.2007).

Appellant is entitled to an evidentiary hearing on a Rule 29.15 motion only if: 1) the motion alleges facts, not conclusions, warranting relief; 2) the alleged facts are not refuted by the record; and 3) the matter complained of resulted in prejudice against the movant. Supreme Court Rule 29.15; Dickerson v. State, 269 S.W.3d 889, 892 (Mo. banc 2008). With respect to a claim for ineffective assistance of counsel, Appellant must allege facts that: 1) counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances; and 2) that movant was prejudiced by that failure. Dickerson v. State, 269 S.W.3d at 892 (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Movant is prejudiced if, but for counsel’s poor performance, there is a reasonable probability the outcome of the proceeding would have been different. Jackson v. State, 205 S.W.3d 282, 285 (Mo.App. E.D.2006). It is presumed that counsel acted professionally and any challenged action was part of counsel’s reasonable trial strategy. Id.

I

In her first point on appeal, Appellant claims that trial counsel was ineffective for failing to object to the certification of State’s witness Dr. Levin. Dr. Levin is a psychologist who examined A.M. at the request of the State. Dr. Levin diagnosed A.M. with post-traumatic stress syndrome resulting from child abuse. His diagnosis was based on I.Q. and personality tests he had administered to A.M.

Appellant’s point fails the first prong of the Strickland test. Counsel is not ineffective for failing to make a non-meritorious objection. Storey v. State, 175 S.W.3d 116, 132 (Mo. banc 2005). The record shows that there is an overwhelming likelihood Dr. Levin would have been allowed as an expert even if Appellant’s trial counsel had objected. To qualify as an expert, a witness needs to have some knowledge or skill from education or experience that will aid the trier of fact. State v. Blakey, 203 S.W.3d 806, 816 (Mo.App. S.D.2006). The extent of the expert’s training or experience goes to the weight the testimony should be given, not the admissibility. Id. Dr. Levin’s background demonstrates his competency as an expert witness in this field. He has been a clinical psychologist for 16 years, has conducted over 1700 psychological evaluations where there have been questions of abuse or neglect and has testified over 100 times as an expert witness. Additionally, this Court, on direct appeal, found that Dr. Levin was qualified as an expert witness. State v. Morales, 254 S.W.3d 903 (Mo.App. E.D.2008).

Appellant’s argument that Dr. Lev-in would not have been certified as an expert had counsel objected rests on the fact that Levin had most often been certified as an expert in family court. Appellant argues that because the standard of proof for conviction is lower in family court then in criminal court, the standard for certifying experts is lower, and as such, the court would not have considered Levin previous certifications in family court in deciding whether he was qualified to testify in this case. Appellant confuses the standard for conviction with the standard to qualify as an expert witness. The standard of proof for conviction is irrelevant when certifying an expert. The sole question is whether the witness satisfies the test articulated above, i.e. knowledge/skill that will aid the trier of fact. Dr. Levin was more than qualified under that test. Point denied.

II

On her second point, Appellant claims that trial counsel was ineffective for failing to object to hearsay and speculative statements made by Dr. Levin. As to hearsay, Appellant doesn’t preserve this issue for appeal because she fails to identify any statements in the legal file or transcript that violate the rule against hearsay. To preserve an issue for review, Appellant must provide specific page references in the legal file or transcript. McMullin v. Borgers, 806 S.W.2d 724, 730 (Mo.App. E.D.1991). Failure to do so is fatal. Id.

As to the speculative statements, Appellant argues that trial counsel was ineffective for failing to object to statements made by Dr. Levin about his “gut feeling” and his “best guess.” Appellant fails to identify any meritorious objection counsel might have made. Simply using the word “guess” doesn’t not make the testimony of an expert useless. Moore v. Quality Dairy Co., 425 S.W.2d 261, 268 (Mo.App.1968). Such testimony is still admissible and the jury may rely on it. Id. Counsel would not have prevailed on an objection to these statements as they were matters of opinion within the witness’ area of expertise.

Appellant also claims that counsel was ineffective for failing to object to Dr. Levin’s conclusion that A.M. was abused because Levin did not state that his opinion was to a reasonable degree of medical or psychological certainty. § 556.061(27) requires that a finding of “serious emotional injury” be established by testimony of a qualified expert to a “reasonable degree of medical of psychological certainty.” In determining whether the expert’s opinion is rendered with the required degree of certainty, the court should look at the testimony as a whole. The trial court found that Dr. Levin’s testimony was logical and necessary. Since Appellant would not have prevailed on an objection to Dr. Levin’s conclusion, she was not prejudiced by counsel’s failure to make such an objection.

Appellant fails to allege facts that her counsel acted unreasonably or that those actions changed the outcome of her trial, she was not entitled to an evidentiary hearing. Point denied.

Ill

Appellant’s final argument is that appellate counsel was ineffective for failing to argue that the trial court erred in allowing Brenda Mueller to testify regarding A.M.’s serious emotional injury. Brenda Mueller was A.M.’s foster mother. At trial Appellant objected to her testimony. The prosecutor argued that A.M.’s behavior in the foster home needed to be included to show the continuing effects of the abuse A.M. suffered. The trial court overruled Appellant’s objection and allowed Mueller to testify.

Appellate counsel need not raise every non-frivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal. Smith v. Robbins, 528 U.S. 259, 288, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). A trial court has broad discretion to admit or exclude evidence at trial. State v. Dennis, 315 S.W.3d 767, 768 (Mo.App. E.D.2010). If reasonable persons can disagree about the propriety of the trial court’s ruling, the trial court did not abuse its discretion. Id. Appellant argues that Mueller should not have been allowed to testify regarding A.M.’s emotional sufferings because § 556.061(27) requires that emotional suffering be proven by expert testimony. Serious emotional injury “s hall be established by testimony of qualified experts upon the reasonable expectation of probable harm to a reasonable degree of medical or psychological certainty.” § 556.061(27). While this statute requires emotional injury to be established by experts it does not preclude the testimony of a non-expert on the topic. Mueller’s daily interaction with A.M. as his foster parent was not “highly prejudicial” as appellant claims.

Even if Mueller’s testimony was improperly admitted, in order to warrant reversal the admitted evidence must be so prejudicial that it is outcome determinative. State v. Barriner, 34 S.W.3d 139, 150 (Mo. banc 2000). Evidence is only outcome determinative when it so influenced the jury that, when considered with and balanced against all the properly admitted evidence, there is a reasonable probability that the jury would have acquitted but for the erroneously admitted evidence. State v. Black, 50 S.W.3d 778, 786 (Mo. banc 2001). There was ample expert testimony for the jury to convict Appellant. Any claim Appellate counsel might have raised on direct appeal regarding Mueller’s testimony would not have required reversal. Point denied.

Conclusion

The motion court did not clearly err in denying Appellant’s Rule 29.15 request for post-conviction relief. We affirm.

ROY L. RICHTER, C.J., and STEPHEN K. WILLCOX, Sp., J., concur.

      . All statutory references are to RSMo 2000, unless otherwise noted.


text:
    STATE of Missouri, Plaintiff/Respondent, v. Steven J. DIERSEN, Defendant/Appellant.
    No. ED 93712.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 26, 2010.
    Kent Denzel, Assistant Public Defender, Columbia, MO, for appellant.
    Chris Koster, Daniel N. McPherson, Attorney General, Jefferson City, MO, for respondent.
    Before GLENN A. NORTON, P.J, KATHIANNE KNAUP CRANE, J, and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Defendant, Steven J. Diersen, appeals from a judgment entered upon a jury verdict finding him guilty of driving while intoxicated (DWI), in violation of section 577.010 RSMo (2000). The trial court found defendant to be an aggravated offender based on three prior DWI convictions, which enhanced the classification for his fourth DWI to a class C felony pursuant to section 577.023.4 RSMo (Cum.Supp. 2005). It sentenced defendant to six years imprisonment.

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

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


author: GARY M. GAERTNER, JR., Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Bruce GERMANY, Appellant.
    No. ED 93245.
    Missouri Court of Appeals, Eastern District, Division Five.
    Oct. 26, 2010.

      Nancy A. McKerrow, Columbia, MO, for appellant.
    Chris Koster, Terrence M. Messonnier, Jefferson City, MO, for respondent.
   GARY M. GAERTNER, JR., Presiding Judge.

Introduction

Bruce Germany (Germany) appeals from a judgment of conviction for fifteen counts of sexual contact with a student by a teacher, a class D felony, in violation of Section 566.086 RSMo. He asserts that the trial court erred in issuing instructions with disjunctive verdict directors, and in overruling his motion for judgment of acquittal, because the State failed to prove an essential element of sexual contact under Section 566.086. We affirm in part and reverse in part.

Factual and Procedural Background

On May 13, 2009, Germany was indicted by information for nineteen counts of sexual contact with a student by a teacher while on public school property. Speeifi-cally, Counts I-IX alleged sexual contact with B.L. between September 1, 2006 and April 30, 2007; Count X alleged sexual contact with B.L. on May 1, 2007; Counts XI-XIII alleged sexual contact with R.K. between December 1, 2006 and April 30, 2007; and Counts XIV-XIX alleged sexual contact with A.K. between June 5, 2006 and April 30, 2007. Viewed in a light most favorable to the verdict, the following evidence was adduced at Germany’s trial.

For the State, B.L. testified to the following. She was a resident student at Lakeside Center, a juvenile detention facility (Lakeside), from July 2006 to May 2007. She had been ordered by the juvenile court to attend Lakeside due to truancy. During that time Germany was a teacher’s assistant and substitute teacher at Lakeside. B.L. was approximately 16 years old, and Germany was approximately 53 years old. Germany had a reputation as the “coolest” teacher because he was lenient with discipline and would give the students candy.

B.L. had romantic feelings toward Germany, and frequently stayed late in classes where he was the teacher’s assistant or substitute teacher to try to be alone with him. In October of 2006, Germany began touching B.L. He touched her “pretty much everywhere[:][o]n [her] clothing, like [her] breasts, [her] vagina, [her] butt, everywhere. But never underneath the clothes.” For the most part, the sexual contact would occur in the art classroom, which had long L-shaped tables, rather than individual desks. In the art room, Germany would sit next to B.L. and “would” rub her vagina over her clothes under the table with his hand. In addition to the art room, if no one was in a classroom with them, Germany “would touch” her breasts, and there were a “few times” when he would grab her butt as she was walking out of a classroom. Between October 2006 and April 30, 2007, the referenced “touching” took place “at least once a week.” Germany told her that he was going to leave his girlfriend to be with her, and they agreed that once B.L. was released from Lakeside, they would have sex and be a couple. B.L. wrote “I [heart] you” on a school folder, and when she showed it to Germany, he colored in the heart and added the word “too.”

When confronted by her therapist, B.L. denied that Germany would touch her, because she thought she was in love with him and did not want to get him — or herself— into trouble. Eventually, however, she told her personal counselor, who reported Germany to the principal and the police. B.L. and another victim, R.K., were Mends and were roommates at one point. They discussed how Germany was touching both of them and that they both had feelings for Germany. B.L. was hurt but not angry to discover that Germany was also touching other girls, and she and R.K. did not conspire to get Germany into trouble.

R.K. testified that she was a resident at Lakeside from March 2006 to July 2007, when she was ages 15 and 16. She had been ordered to Lakeside for truancy. She liked Germany and thought that he was “cool.” They would flirt with each other, and, beginning in December 2006 until May 2007, he grabbed her butt approximately ten times, touched her breast with his hand once, and “kind of stuck [his] hand between [her] legs once.” Specifically, when Germany was sitting next to R.K. in the art room, he put his hand under the table and between her legs and rubbed her inner thigh and vagina outside of her clothing. She would flirt with him and grab his butt as well. Germany would tell her that she looked hot and that he wanted to “f — ” her.

A.K. testified that she was a resident at Lakeside from August 2005 to May 2007 when she was ages 17 and 18. She had been ordered there for violation of probation for curfew violations. She liked Germany and thought he was “super nice” because he was lenient with the rules. When she first arrived at Lakeside in 2005, Germany commented several times that he could imagine what it would be like to “f — ” her, and that he imagined her being a “freak” and “wild” in bed. Starting in June 2006, Germany would rub her butt and breasts as he passed her in the classrooms and hallways, even though there was plenty of room to pass without touching. Once, while they were watching a movie in the science classroom, Germany sat at a desk close to hers and touched her breasts. Another time in the science classroom, when she put her head down on her desk in class, to wake her up, he rubbed his hand between her inner thighs and touched her vagina over her clothes. Germany touched her “breast, [her] butt or [her] vagina” “more often than once a week” between June 2006 and April 30, 2007.

Lana Newport testified that she has been an art teacher at Lakeside for seven years, and that she worked with Germany. In the 2006-2007 school year, she walked into the art room and noticed Germany sitting very close to B.L. with his hands under the table. She thought it was weird and inappropriate. When she asked him what he was doing, he responded that he was counseling the students. She told him not to sit that close to a student again. A week or two later, she again walked into the art room and saw him sitting even closer to B.L., with the whole sides of their bodies touching. She had not previously seen him sitting that close to a student. That same school year, she observed him look A.K. up and down and tell her “you’re looking good today” in a way that sounded inappropriate. On cross-examination, she testified that she never saw Germany do anything inappropriate with his hands, but also that she could not see his hands under the table when she saw him sitting with B.L.

For the defense, Daniel Bransford, John Higgins, Joy Weber, and William Everett — all teachers or teacher’s assistants at Lakeside with Germany — testified that they never witnessed Germany engage in inappropriate or sexual behavior with the students, never reprimanded Germany for inappropriate contact with students, and never received complaints from students about Germany’s behavior. They also testified that B.L. and R.K. were well-behaved kids who did not generally get into trouble; A.K. had a “bit of a temper” but was mostly well-behaved.

At the close of evidence, the State moved to amend the information regarding Count X to reflect the evidence, changing “May 1, 2007” to “between September 1, 2006 and April 30, 2007.” The court granted the amendment over Germany’s objection. Germany’s motion for judgment of acquittal at the close of all the evidence was overruled.

Instructions Nos. 6 through 15, instructed the jury that as to Counts I-X,

[I]f you find and believe from the evidence beyond a reasonable doubt:
First, that between September 1, 2006 and April 30, 2007, but separate and distinct from [the other Counts], in the County of St. Louis, State of Missouri, the defendant touched the genitals or anus or breast of [B.L.], through the clothing, and
Second, that he did so for the purpose of arousing his own sexual desire, and
Third, that defendant at the time was an employee with the Special School District of St. Louis County [,] a public school, and
Fourth, that [B.L.] at the time was a student of [that] school, and Fifth, that this conduct occurred inside the school, which is located on public school property, then you will find the defendant guilty under Count [s I— X] of sexual contact with a student.
' However, unless you find and believe from the evidence beyond a reasonable doubt each and all these propositions, you must find the defendant not guilty of that offense.

Instructions Nos. 16 through 18 issued identical instructions to the jury as to Counts XI-XIII, pertaining to R.K. between December 1, 2006 and April 30, 2007. Instructions Nos. 19 through 24 issued identical instructions to the jury as to Counts XIV-XIX, pertaining to A.K. between June 5, 2006 and April 30, 2007. Instruction No. 26 stated that defendant was charged with separate offenses in each of the nineteen counts submitted, that each count must be considered separately, and that the jury should return separate verdicts for each count. Counsel for Germany objected to the “giving of the instructions” as “unsupported by the evidence entirely and in total.”

The jury returned guilty verdicts for Counts I-XV and not guilty verdicts for Counts XVI-XIX, all involving A.K. The jury recommended a sentence of four years on Counts I-X, a sentence of two years on Counts XI-XIII, and a sentence of two years on Counts XIV and XV. Germany moved for a new trial, asserting, inter alia, that the court erred in failing to direct verdicts of acquittal due to the inconsistent verdicts and punishments rendered by the jury. The trial court denied the motion. The trial court then sentenced Germany to four years concurrent on Counts I-VIII, four years consecutive on Count IX, three years consecutive on Count X, two years consecutive on Count XI, and two years concurrent on Counts XII-XV, for a total of thirteen years of imprisonment in the Missouri Department of Corrections. Germany timely appealed.

Discussion

Point I

In his first point on appeal, Germany asserts that the trial court plainly erred in submitting jury instructions with disjunctive verdict directors, because the evidence did not support all three alternative theories of guilt, thus denying his right to due process, to a unanimous jury verdict, and to be free from double jeopardy. We disagree.

In general, this court reviews de novo the issue of whether a jury received proper instructions. Harvey v. Washington, 95 S.W.3d 93, 97 (Mo. banc 2003). In order to preserve for review claims of instructional error, counsel must make a specific claim of error and again raise the error in a motion for new trial. State v. Richards, 300 S.W.3d 279, 281 (Mo.App. W.D.2009).. As Germany concedes, his general objection to the instructions was insufficient to preserve for appeal his objection to the disjunctive verdict director. His motion for new trial citing “inconsistent” jury verdicts and punishments was likewise insufficient. Berra v. Danter, 299 S.W.3d 690, 703 (Mo.App. E.D.2009) (“[a] point on appeal may not enlarge or change the objection made at trial”) (internal quotation omitted).

Because this point was unpre-served at trial, we review it for plain error. Plain error review under Rule 30.20 is discretionary and granted where a claim of plain error establishes on its face substantial grounds for believing that manifest injustice or miscarriage of justice has resulted. State v. Wurtzberger, 40 S.W.3d 893, 897-98 (Mo. banc 2001). Instructional error is seldom plain error. State v. Wright, 30 S.W.3d 906, 912 (Mo.App. E.D.2000). For instructional error to rise to the level of plain error, the defendant must establish not mere prejudice, but that the trial court’s instructional error so misdirected or so failed to instruct the jury, that it actually affected the jury’s verdict and caused manifest injustice or a miscarriage of justice. State v. Haynes, 158 S.W.3d 918, 919 (Mo.App. W.D.2005).

Germany does not allege error in the trial court’s submission of the instruction prongs addressing touching the victims’ breasts and vaginas. Reviewing the record in a light most favorable to the jury’s verdict, the evidence was overwhelming that Germany touched the breasts and va-ginas of B.L., R.K., and A.K. State v. Nylon, 311 S.W.3d 869, 879 (Mo.App. E.D.2010) (view evidence in light most favorable to verdict). Because his guilt was clear, we conclude that the effect of the disjunctive verdict director on the jury’s verdict, if any, did not result in manifest injustice. Haynes, 158 S.W.3d at 919-20 (when evidence for one prong of alternative instruction was overwhelming, no manifest injustice resulted from use of disjunctive verdict director injury instructions even where evidence did not support other prong).

Likewise, Germany’s assertions that the disjunctive verdict director deprived him of a unanimous verdict and subjected him to double jeopardy are unavailing. First, a “jury need only be unanimous as to the ultimate issue of guilt or innocence, and need not be unanimous as to the means by which the crime was committed.” State v. Fitzpatrick, 193 S.W.3d 280, 292 (Mo.App. W.D.2006). Here, there was no question as to Germany’s guilt of the charges: the evidence was overwhelming that Germany, an employee of the school, had sexual contact with one or more students while on public school property. Section 566.086.

Second, because each incident of sexual contact was separate and distinct from the others, Germany was not subjected to double jeopardy. Protections against double jeopardy provide that no person shall be subject to multiple punishments for the same offense. State v. Flenoy, 968 S.W.2d 141, 143 (Mo. banc 1998). Here, Germany violated Section 566.086 multiple times with multiple victims; thus, he may be properly convicted of each separate crime. State v. Wadsworth, 203 S.W.3d 825, 833 (Mo.App. S.D.2006) (double jeopardy does not arise when defendant is punished for more than one offense arising from same set of facts, even if offenses are multiple violations of same statute). To the extent Germany asserts that he may be subject to additional prosecution in the future based on the same facts, we decline to so speculate.

Point denied.

Point II

In his second point on appeal, Germany argues the trial court erred in overruling his motion for acquittal at the end of all the evidence, because there was insufficient evidence to support the convictions in that touching a student’s butt is not prohibited by Section 566.086. We review challenges to sufficiency of the evidence supporting a criminal conviction for whether sufficient evidence was presented at trial from which a reasonable juror might have found the defendant guilty of all the essential elements of the crime. State v. Gibbs, 306 S.W.3d 178, 181 (Mo.App. E.D.2010). We accept as true all evidence supporting the jury’s verdict, including all favorable inferences therefrom, and disregard all contrary evidence and negative inferences. Id.

Section 566.086 prohibits a teacher or employee of a public school district from having sexual contact with a student on public school grounds. Sexual contact is defined as “any touching of the genitals or anus of another person, or the breasts of a female person, or such touching through the clothing, for the purpose of arousing or gratifying sexual desire of any person.” Section 566.010(3) (emphasis added). For conviction under these statutes, it is not required that the State prove the defendant touched the anus of the victim; rather, evidence that the defendant touched the victim’s genitals or the female victim’s breasts, directly or through the clothing is sufficient for conviction.

We agree with Germany that the terms “butt” and “anus” are not synonymous, and thus that evidence of touching a student’s butt is insufficient to demonstrate contact with the anus. State v. Tolen, 295 S.W.3d 883, 887 (Mo.App. E.D.2009) (discussing definitional differences between butt and anus). The evidence presented at trial was insufficient to show that Germany touched the anuses of any of his victims. Regardless, the record is rife with other evidence of sexual contact between Germany and B.L., R.K., and A.K.

B.L. testified to multiple incidents of sexual contact, touching genitals or breast, with Germany. She did not testify to specific dates or specific number of occasions of the abuse, but stated that he “would” touch her breasts and vagina in the art classroom and that he “would touch” her breasts in another classroom. She testified that he touched her approximately once a week between October of 2006 and April 30, 2007, and further testified that there were a “few times” when he grabbed her butt. Although she did not specify whether the weekly touchings were of her breasts, butt, or vagina, her statement that he grabbed her butt a “few” times, indicates that the majority of the contact was with her breasts and vagina. Germany indicated to B.L. that he loved her and would leave his girlfriend for her, and they planned to have sex and be a couple after she was released from Lakeside. Under our standard of review, we cannot say that there was insufficient evidence for a reasonable jury to have found Germany guilty of ten counts of sexual contact by a teacher or school employee with a student on school grounds, by touching her genitals and breasts for the purpose of arousing or gratifying sexual desire under Sections 566.086 and 566.010(3). Gibbs, 306 S.W.3d at 181.

Regarding R.K., viewing the evidence in a light most favorable to the verdict, the record showed that Germany touched her breasts once and her vagina once while on school grounds. During the same time, Germany commented to R.K. that she looked hot and that he wanted to have sex with her. Thus, there was sufficient evidence to support convictions for two counts of sexual contact under Sections 566.086 and 566.010(3), but not a third. The State concedes this point. We reverse Count XI and remand to allow the trial court to reconsider its sentence.

Of the five charges of sexual contact with A.K., Germany was convicted of two. The record showed that in the school’s science classroom Germany once touched A.K.’s breasts, and he once rubbed his hand between her inner thighs and touched her vagina over her clothes. In addition, Germany commented several times that he wanted to have sex with her and speculated on her sexual abilities. Viewing the record in a light most favorable to the verdict, there was sufficient evidence to support convictions for Counts XIV and XV for sexual contact under Sections 566.086 and 566.010(3).

Point granted in part and denied in part.

Conclusion

The judgment of the trial court is affirmed in part and reversed in part. We reverse Count XI and remand to the trial court for resentencing in accordance with this opinion.

MARY K. HOFF and PATRICIA L. COHEN, JJ., concur.

      . All statutory references are to RSMo (Supp. 2006), unless otherwise indicated.

      . We note that the State's submission of the disjunctive verdict directors was ill-advised. Under a different standard of review, we will find reversible error in the State's submission of a disjunctive verdict director if the evidence does not support each alternate basis of guilt. See e.g. State v. Davison, 46 S.W.3d 68, 75 (Mo.App. W.D.2001).


author: D. MICHAEL SWINEY, J.,

text:
    Robert STRINE, et al. v. Joshua WALTON, et al.
    Court of Appeals of Tennessee, at Knoxville.
    March 10, 2010 Session.
    April 15, 2010.
    Permission to Appeal Denied by Supreme Court Aug. 25, 2010.

      Dan C. Stanley and Travis E. Venable, Knoxville, Tennessee, for the Appellants, Robert and Grace Strine, individually and as guardian and next friend of Ashley Strine, a minor.
    Jon M. Cope and Hudson T. Ellis, Knoxville, Tennessee, for the Appellees James Rice and Kevin Rice.
   OPINION

D. MICHAEL SWINEY, J.,

delivered the opinion of the court,

in which HERSCHEL P. FRANKS, P.J., and CHARLES D. SUSANO, JR., J., joined.

On July 7, 2005, Ashley Strine (“Plaintiff”) was injured while riding in a vehicle being driven by Joshua Walton (“Walton”). The vehicle was owned by James Rice (“Father”), who had given the vehicle to his son, Kevin Rice (“Son”), for Son’s personal use. On the day of the accident, Son had given Walton permission to use his vehicle to pick up Plaintiff. Walton and Plaintiff were planning on attending a birthday party later that day. Plaintiff originally sued only Walton and Father. As to Father, Plaintiff asserted liability based on the family purpose doctrine and negligent entrustment. Over two years later, Son was added as a defendant. An order of compromise and dismissal was entered as to Walton. Thereafter, Father and Son filed a joint motion for summary judgment. The Trial Court granted Father summary judgment on Plaintiffs claims pursuant to the family purpose doctrine and negligent entrustment. With regard to Son, the Trial Court concluded that all claims against him were barred by the one-year statute of limitations. Plaintiff appeals. We affirm the judgment of the Trial Court.

Background

In this car wreck lawsuit, Plaintiffs complaint was filed on January 30, 2006, and alleges that on July 7, 2005, Plaintiff was a passenger in a vehicle being driven by Walton. Plaintiff claimed that Walton “failed to stop at a stop sign and failed to yield to the right of way of another vehicle being driven by Joseph Clabo, causing [Plaintiff] serious and life-threatening injuries.” Plaintiff alleged that Walton was both negligent and negligent per se. Plaintiff also sued Father, the owner of the vehicle being driven by Walton. Plaintiff alleged as to Father:

At the time of the collision, defendant Joshua Walton was driving a vehicle owned or co-owned by and registered to [Father] and was operating said vehicle with the permission of [Father]; his negligence is therefore imputed to [Father] by virtue of the doctrine of respon-deat superior and T.C.A. § 55-10-311: Prima facie evidence of ownership of automobile and use in owner’s business and T.C.A. § 55-10-312: Registration prima facie evidence of ownership and that operation was for owner’s benefit, and the family purpose doctrine. (Emphasis in original).

On April 7, 2006, Walton answered the complaint and admitted that he was involved in an automobile accident and that Plaintiff was a passenger in the vehicle. Walton admitted that the vehicle was owned by and registered to Father. Walton expressly averred, however, that he was operating the vehicle with the permission of Son.-Walton generally denied being negligent and further denied any liability to Plaintiff.

In July of 2006, Plaintiff amended her complaint to sue Alta Hart and Frank and Twylia Preston d/b/a Hillcrest Orchard, claiming that a sign owned by the Prestons and located on land owned by Hart contributed to the accident because the sign was placed in such a way as to create a defective or unreasonably dangerous condition. These three new defendants were voluntarily dismissed in December of 2007. Even though Son was expressly identified in Walton’s April 2006 answer as the person who gave Walton permission to drive the vehicle, Plaintiff did not attempt to add Son as a defendant when she amended her complaint in July 2006.

Father answered the amended complaint on September 20, 2006. In his answer, Father admitted that he was the owner of the. vehicle being driven by Walton on the day of the accident, and that the vehicle was registered in his name. Father, however, asserted that “defendant Walton was operating the vehicle without the express or implied permission of [Father].” Father denied the remaining pertinent allegations contained within the complaint and denied any liability to Plaintiff.

In June of 2008, Plaintiff again sought to amend the complaint. This time, Plaintiff sought to add Son as a defendant. Specifically, Plaintiff asserted that she sought to “amend [her] Complaint to add defendant Kevin Rice ... under the doctrine of negligence and negligent entrustment.” On July 9, 2008, the Trial Court allowed the complaint to be amended even though it was amended: (1) three years after the accident occurred; (2) over two years and four months after the original complaint was filed; and (3) two years and two months after Son initially was identified as the person who gave Walton permission to drive the vehicle.

On July 21, 2008, an Order of Compromise and Dismissal was entered as to defendant Walton, and he was dismissed from the case. This lawsuit proceeded against Father and Son.

In September 2008, Father and Son filed a joint motion for summary judgment. Father and Son claimed that, based on the undisputed material facts, the family purpose doctrine and the doctrine of negligent entrustment did not apply in this case. They further alleged that the undisputed material facts established that they could not be held liable for Walton’s negligence. Finally, Son claimed that the statute of limitations had run against him. Son also claimed that the discovery rule was inapplicable and, therefore, could not toll the running of the statute of limitations as to him. Plaintiff, of course, opposed the motion for summary judgment. Several depositions were filed in support of and in opposition to the motion for summary judgment. These depositions were of Plaintiff, Walton, Father, and Son, and we will discuss the pertinent portions of these depositions.

Walton testified in his deposition that he was eighteen years old at the time of the accident and had been licensed to drive for one year. Walton testified that he was involved in another automobile accident about six months before the accident giving rise to this lawsuit. When asked to describe the previous accident, Walton explained that he “was going around a turn and a truck had hit the back end of me, spun me around, and went into a driveway.” Walton added that this accident was “blamed” on him. Walton acknowledged that Son was aware of this previous accident. Prior to the accident in question, Walton had “a couple” of speeding tickets and a ticket for “failure to use a blinker.” He also was cited for illegal window tinting and non-working taillights. Since the accident in July 2005, Walton has been involved in another accident. When describing this new accident, Walton stated it was raining “real bad” and his brakes locked up and he rear-ended a car that was in front of him.

On the day of the accident, Walton owned a vehicle but it was not in working condition. Walton explained that he and Son were staying temporarily with a friend, Louis Lara, while Mr. Lara’s father was out of town. Walton and Son had been friends for a year and a half and went to school together. Walton never met Father before the accident. The vehicle Son had been driving was a 1995 Nissan Alti-ma. Prior to the accident, Walton had never driven Son’s vehicle.

When asked about the accident, Walton testified that he and Plaintiff were intending to go to a birthday party at Aladdin’s Castle located at East Town Mall in Knoxville. The day before the party, Walton asked Son if he could borrow his car the following day to go pick up Plaintiff. Son was not going to be using his car at that particular time because he would be at work with Mr. Lara, and they were going to ride to work together. Walton explained that since Son was not going to be using his vehicle, Son agreed to let Walton use the car and gave him the car keys. Walton intended to pick Plaintiff up the next day and return to Lara’s residence with Plaintiff. Thereafter, Son was going to take Walton and Plaintiff to Aladdin’s Castle to attend a birthday party for one of Plaintiffs friends. After dropping Walton and Plaintiff off at the mall, Son was going to return to Lara’s residence. In other words, Son was not going to stay at the mall with Walton and Plaintiff.

On the day of the accident, Walton called Plaintiff and told her he was on his way to pick her up. Walton then left in Son’s car to go get Plaintiff. While Walton remembers picking up Plaintiff and driving with her in the car, he has no memory at all of the accident or how the accident took place. Walton testified that even though he always stopped at the stop sign where the accident occurred, he has no memory of whether he actually stopped at the stop sign on the day of the accident.

Son never told Walton that he (i.e., Son) did not have permission to let anyone else drive the Altima. Other than the day of the accident, Walton has never driven a car owned or being used by Son. However, according to Walton, Son had allowed Mr. Lara to borrow his car several times. Walton stated that after the accident, Son told him that he was not supposed to let anyone drive the car. Walton responded, “Well, it’s a little late for that, isn’t it, now?” Walton stated that his trip to get Plaintiff was purely for his personal benefit. Neither Father nor Son received any benefit from Walton’s use of the Altima.

Plaintiff testified that at the time of the accident, she was seventeen years old. Plaintiff does not remember much about the day of the accident. Obviously, she and Walton had made plans, and she remembers speaking to Walton on the telephone. Plaintiff did not know where Walton had come from prior to picking her up, and she did not recognize the car he was driving. She remembers Walton being at her front door, but does not remember anything after that. She has vague memories of being in the hospital. Plaintiff has no memory at all of how the accident happened. Plaintiff was told that Walton ran a stop sign and they were “t-boned” by another car. Plaintiff does not recall who told her this.

Plaintiff never met Father or Son before the depositions taken in this case. Although Plaintiff and Walton had dated a few times, they were not going on a date on the day of the accident. When asked if Walton was running an errand or going somewhere for the benefit of anyone else on the day of the accident, Plaintiff responded “[n]ot that I’m aware of.” When asked if Walton was working or delivering anything at the time of the accident, Plaintiff responded “[n]ot that I’m aware of.” Plaintiff stated that she had no personal knowledge as to whether Walton had permission to use the car he was driving at the time of the accident. Plaintiff stated that based on the accident report, she is aware that Walton was not the owner of the car that he was driving.

Plaintiff testified that “sometimes” she was nervous about Walton’s driving capabilities because he would fool around or drive too fast. However, on the day of the accident she obviously felt safe enough to get into the car with Walton driving. Plaintiff is not aware if Walton has any sort of a reputation with respect to his driving abilities.

Son’s deposition was filed with the Trial Court. Son currently drives a 2000 Mercury Mountaineer which he owns. Prior to that, Son drove a 1994 Ford Ranger which was given to him by Father and which was titled in Son’s name. Son did not let anyone drive the Ranger. Prior to the Ranger, Father had given Son a Toyota pickup truck and a Jeep Cherokee. Both of these cars were titled in Son’s name but were given to Son by Father.

Son acknowledged that Father owned the Altima that Walton was driving at the time of the accident. Son initially testified that he had no memory of any conversations he had with Father about the Altima after it was purchased. Son later testified that there were several occasions where Father told him not to let anyone else drive the Altima. Son had been driving the Altima for approximately a year and a half when the accident occurred. Son denied letting Louis Lara drive his vehicle. The Altima was registered in Father’s name, and Father gave Son permission to drive the vehicle. Son stated that other than his mother, no one else was supposed to drive the Altima. Son’s mother had driven the Altima once or twice.

Son described Walton as a “crazy” driver. Son rode with him once or twice, and Walton was “always wanting to speed and stuff.” Son stated that he was “worried” when he let Walton borrow his car because the car was unreliable. The only time Son loaned his car to someone other than his mother was when Walton borrowed the car and wrecked it. On the day of the accident, both Son and Walton were staying with Louis Lara. Walton’s car was not running and needed a new clutch. Son initially testified that he did not tell anyone that the Altima was Father’s car and that he was not allowed to let anyone else drive the Altima. Son later testified that both Walton and Lara knew that he was not supposed to let anyone drive the Alti-ma. Son then testified that he was not sure who he told that no one was allowed to drive the Altima, but he was sure he had told at least one person.

According to Son, on the day of the accident he and Lara had carpooled to work together. They got back to Lara’s residence about 3:00 p.m. and learned that Walton had been in a wreck and was in the hospital. Son acknowledged that he told Walton he could borrow his car. Son did not ask Father for permission to let Walton borrow the car. Son stated that he should have asked Father for permission to let Walton drive the car. When asked if he thought Father would have allowed Walton to drive the ear, Son stated “no.”

Son let Walton borrow his car so Walton could go get Plaintiff, whom Son had never met. Son told Walton to have the car back at Lara’s residence by the time Son returned from work. After the accident, Father “reprimanded” Son several times over the fact that he was not supposed to let anyone else drive the vehicle. After the Altima was wrecked, Father gave Son a Jeep Cherokee. Father signed the Jeep Cherokee over to Son. The Altima was the only car where Father put any restrictions on Son’s use. Son never met Plaintiff prior to the accident and met her for the first time at his deposition.

Father also was deposed. Father testified that he has never met Walton. Father acknowledged that he was the registered owner of the Altima that Walton was driving on the day of the accident. Father occasionally drove the Altima, but that car primarily was for Son’s use. Father paid for the car insurance on the Altima and paid extra for Son to be covered. Even though Son had full use of the vehicle on the day of the accident, Father had told Son not to let anyone else drive that vehicle. If Father had known that Son had let someone drive the Altima, he would have taken the car away from Son. When asked if he talked to Son about the accident, Father stated that Son told him that Walton had asked to borrow the car when Son was “half asleep” and that Son said he could.

In February of 2009, the Trial Court granted the joint motion for summary judgment. According to the Trial Court:

1. The defendant, James Rice, has negated an essential element of the plaintiffs’ claims by showing that based on the undisputed material facts of this case that the defendant, James Rice, did not owe any duty to the plaintiffs and further, that the defendant, James Rice, cannot be vicariously liable as a matter of law to any of the plaintiffs under any applicable legal doctrine and/or law.
2. The burden shifted to the plaintiffs to show that there was a genuine issue of material fact in dispute regarding defendant, James Rice.
3. Plaintiffs have failed to show that there is a genuine issue of material fact as to whether the defendant, James Rice, owed any duty to the plaintiffs, and/or was vicariously liable under any applicable doctrine and/or law.
4. The defendant, James Rice, is entitled to Summary Judgment as a matter of law.
5. Defendant, Kevin Rice, has asserted and put forth in the record sufficient proof to establish an affirmative defense regarding the one-year statute of limitations for personal injuries. Tenn.Code Ann. § 28-3-104. As such, the defendant, Kevin Rice, is entitled to Summary Judgment as a matter of law regarding all of the plaintiffs’ claims against him, as said claims are barred by the applicable one year statute of limitations for personal injuries in the State of Tennessee.

Plaintiff appeals raising the following issues, which we take verbatim from her brief:

I. Did the Trial Court err in holding as a matter of law that James Rice could not be held liable for Plaintiffs injuries pursuant to T.C.A. § 55-10-311?
II. Did the Trial Court err in holding as a matter of law that James Rice could not be held liable for Plaintiffs injuries pursuant to the Family Purpose Doctrine?
III. Did the Trial Court err in holding as a matter of law that James Rice could not be vicariously liable for the actions of his son, Kevin Rice, who negligently loaned the Rice vehicle to an incompetent driver, who caused injuries to Plaintiff?
IV. Did the Trial Court err in holding that [the] discovery rule did not apply to Kevin Rice, and that any cause of action against Kevin Rice is barred by the one-year statute of limitations pursuant to T.C.A. § 28-3-104?

Discussion

Our Supreme Court reiterated the standard of review in summary judgment cases as follows:

The scope of review of a grant of summary judgment is well established. Because our inquiry involves a question of law, no presumption of correctness attaches to the judgment, and our task is to review the record to determine whether the requirements of Rule 56 of the Tennessee Rules of Civil Procedure have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.1997); Cow-den v. Sovran Bank/Cent. S., 816 S.W.2d 741, 744 (Tenn.1991).
A summary judgment may be granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.1993). The party seeking the summary judgment has the ultimate burden of persuasion “that there are no disputed, material facts creating a genuine issue for trial ... and that he is entitled to judgment as a matter of law.” Id. at 215. If that motion is properly supported, the burden to establish a genuine issue of material fact shifts to the non-moving party. In order to shift the burden, the movant must either affirmatively negate an essential element of the nonmovant’s claim or demonstrate that the nonmoving party cannot establish an essential element of his case. Id. at 215 n. 5; Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 8-9 (Tenn.2008). “[C]onclusory assertion[s]” are not sufficient to shift the burden to the non-moving party. Byrd, 847 S.W.2d at 215; see also Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn.1998). Our state does not apply the federal standard for summary judgment. The standard established in McCarley v. West Quality Food Service, 960 S.W.2d 585, 588 (Tenn.1998), sets out, in the words of one authority, “a reasonable, predictable summary judgment jurisprudence for our state.” Judy M. Cornett, The Legacy of Byrd v. Hall: Gossiping About Summary Judgment in Tennessee, 69 Tenn. L.Rev. 175, 220 (2001).
Courts must view the evidence and all reasonable inferences therefrom in the light most favorable to the non-moving party. Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn.1997). A grant of summary judgment is appropriate only when the facts and the reasonable inferences from those facts would permit a reasonable person to reach only one conclusion. Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn.2000). In making that assessment, this Court must discard all countervailing evidence. Byrd, 847 S.W.2d at 210-11. Recently, this Court confirmed these principles in Hannan.

Giggers v. Memphis Housing Authority, 277 S.W.3d 359, 363-64 (Tenn.2009).

Plaintiffs first issue is her claim that the Trial Court erred “in holding as a matter of law that James Rice could not be held liable for Plaintiffs injuries pursuant to T.C.A. § 55-10-311.” In relevant part, Tenn.Code Ann. § 55-10-311 provides as follows:

In all actions for injury to persons and/or to property caused by the negligent operation or use of any automobile, auto truck, motorcycle, or other motor propelled vehicle within this state, proof of ownership of the vehicle shall be pri-ma facie evidence that the vehicle at the time of the cause of action sued on was being operated and used with authority, consent and knowledge of the owner in the very transaction out of which the injury or cause of action arose, and the proof of ownership likewise shall be pri-ma facie evidence that the vehicle was then and there being operated by the owner, or by the owner’s servant, for the owner’s use and benefit and within the course and scope of the servant’s employment. ...

Tenn.Code Ann. § 55-10-311 (2008).

In Godfrey v. Ruiz, 90 S.W.3d 692 (Tenn.2002), our Supreme Court gave an in-depth discussion of the application of Tenn.Code Ann. § 55-10-311, stating as follows:

This case turns on the application of Tennessee Code Annotated section 55-10-311(a) (1998).... The plaintiffs rely exclusively on this statute to establish that the van that struck their vehicle was operated with the defendants’ knowledge and consent and that it was operated for the defendants’ use and benefit and within the course and scope of the driver’s employment. The defendants argue that their undisputed testimony establishes that there was no agency, relationship. That testimony, they assert, is sufficient to overcome the prima facie evidence of agency that the statute creates.
In Hamrick v. Spring City Motor Co., this Court observed that Tennessee Code Annotated section 55-10-311 does not contain the word “presumption,” although prior versions of the statute did. 708 S.W.2d 383, 387 (Tenn.1986). We concluded that as a consequence of this legislative change “a serious question is presented as to whether or not [a] prima facie case can be overcome pre-trial by motion for summary judgment.” Id. In Warren v. Estate of Kirk, this Court’s most recent case construing Tennessee Code Annotated section 55-10-311(a), we reiterated that “[s]ummary judgment is not ordinarily the proper procedure for determining whether a prima facie case has or has not been overcome by countervailing evidence.” 954 S.W.2d 722, 724 (Tenn.1997) (quoting Hamrick, 708 S.W.2d at 388). In both Hamrick and Warren, we reversed the grant of summary judgment in favor of the defendant. In this case, too, summary judgment is unwarranted.
Tennessee Code Annotated section 55-10-311 is clearly intended to eliminate the difficulty encountered by injured parties who are trying to prove that the driver was operating with the owner’s permission at the time of the accident. See Racy Cream Co. v. Walden, 1 Tenn.App. 653, 668 (1925) (holding that an earlier version of the statute, enacted by Chapter 162 of the Public Acts of 1921, was intended to ease the difficulty of proving an agency relationship between a vehicle’s driver and its owner). We decline to permit parties to overcome the statutorily created prima facie evidence of an owner-driver agency relationship by simply asserting that no consent was ever given. Such a construction would defeat the legislative intent that Tennessee Code Annotated section 55-10-311 be liberally construed.
The plaintiffs in this case are entitled to rely solely on the owner-driver agency relationship created by Tennessee Code Annotated section 55-10-311(a) to overcome the defendants’ motion for summary • judgment. Although the defendants offer uncontroverted testimony in support of their motion for summary judgment, their status as interested witnesses places their credibility in question. The defendants’ uncorroborated testimony that Mr. Corpus was not a permissive user simply fails to rebut the prima facie evidence established by statute. Therefore, their motion for summary judgment was improperly granted.
There may be rare cases involving the application of Tennessee Code Annotated section 55-10-311 in which summary judgment is appropriate. As we noted in Hamrick, “[there may be some instances where summary disposition could be warranted.]” 708 S.W.2d at 389. Thus, we do not hold that proof of ownership is always sufficient to overcome summary judgment, regardless of the facts presented by the defendants .... We preserve the possibility that courts may grant summary judgment or a directed verdict on behalf of a vehicle’s owner in a negligence case if the owner has provided evidence other than his own testimony that the driver was not acting as the owner’s agent when the accident occurred....
We hold that an owner’s testimony negating the issue of agency, standing alone, cannot overcome the statutorily created prima facie evidence of an owner-driver agency relationship created by Tennessee Code Annotated section 55-10-311(a). Therefore, the lower courts erred in granting the defendants’ motion for summary....

Godfrey, 90 S.W.3d at 695-96.

We agree with Plaintiff that Father’s evidence was insufficient to overcome the prima facie evidence established by Tenn.Code Ann. § 55-10-311. The first part of this statute creates prima facie evidence that the vehicle was being operated with the authority, consent, and knowledge of the owner, i.e., Father. The only evidence that Walton in fact was not operating the vehicle with Father’s authority, knowledge, or consent comes from the testimony of Father and Son, both of whom are interested witnesses. Walton testified that Son never told him that he was not allowed to drive the vehicle. This is not the same as affirmatively testifying that he drove the vehicle without Father’s consent. Because the only proof addressing whether Walton actually was operating the vehicle with Father’s consent comes from Father and Son, two very interested witnesses, we conclude that Father’s evidence was insufficient to overcome the pri-ma facie evidence created by the statute that Walton was operating the vehicle with Father’s authority, knowledge, and consent.

Although the statute creates pri-ma facie evidence that Walton was operating the vehicle with the authority, knowledge, and consent of Father, this does not automatically mean that Father is liable for Walton’s actions. Tenn.Code Ann. § 55-10-311 does not create any cause of action but rather establishes certain prima facie evidence. “Permissive use, standing alone, establishes only a bailment. In and of itself it is not a basis for the imposition of personal liability upon the owner of a vehicle.” Hamrick v. Spring City Motor Co., 708 S.W.2d 383, 385 (Tenn.1986). To hold otherwise would create strict liability for a vehicle owner anytime someone was allowed to drive his or her vehicle, which is not the law in Tennessee; hence the law addressing agency relationships, the family purpose doctrine, and the tort of negligent entrustment, etc.

This leads us to Plaintiffs next issue, which is her claim that the Trial Court erred when it granted Father summary judgment on her claim pursuant to the family purpose doctrine. In Camper v. Minor, 915 S.W.2d 437 (Tenn.1996), our Supreme Court stated:

The family purpose doctrine has been in effect in Tennessee for nearly eighty years, King v. Smythe, 140 Tenn. 217, 204 S.W. 296 (1918), and according to at least one court, has been “firmly established in this state.” Stephens v. Jones, 710 S.W.2d 38, 42 (Tenn.App.1984). Under the doctrine, the head of a household who maintains a motor vehicle for the general use and convenience of the family is liable for the negligence of any member of the family driving the vehicle, provided the driver received express or implied consent.
The family purpose doctrine is applicable when two requirements have been satisfied. First, the head of the household must maintain an automobile for the purpose of providing pleasure or comfort for his or her family. Scates v. Sandefer, 163 Tenn. 558, 44 S.W.2d 310 (1931). Second, the family purpose driver must have been using the motor vehicle at the time of the injury “in furtherance of that pmpose with the permission, either expressed or implied, of the owner.” Redding [v. Barker, 33 Tenn.App. 132], 230 S.W.2d [202] at 205 [ (1950) ]. See also Stephens v. Jones, 710 S.W.2d 38 (Tenn.App.1984); Long v. Tomlin, 22 Tenn.App. 607, 125 S.W.2d 171 (1938) (emphasis added).

Camper, 915 S.W.2d at 447. As noted by this Court in Gray v. Mitsky, 280 S.W.3d 828 (Tenn.Ct.App.2008), the “true test is whether the driver was engaged in the owner’s business at the time of the accident, with business here meaning the furnishing of pleasure to the owner’s family.” Id. at 831 (quoting Thurmon v. Sellers, 62 S.W.3d 145, 156 (Tenn.Ct.App.2001)) (emphasis added).

Based on the depositions of Plaintiff, Walton, Father, and Son, there simply is no genuine issue as to whether Walton was operating the vehicle for the purpose of furnishing “pleasure to the owner’s family.” Id. The undisputed material facts show that Walton was operating the vehicle purely for the benefit of himself and Plaintiff. In short, Walton was picking up Plaintiff so he and Plaintiff later could attend a birthday party of one of Plaintiffs friends. Plaintiff had never even met Father or Son. Neither Father nor Son obtained any benefit whatsoever by Walton’s use of the vehicle. Likewise, the undisputed material facts demonstrate that Walton was not acting as an agent for Father or Son at the time of the accident. Walton’s and Plaintiffs testimony mandates this finding. We conclude that the Trial Court correctly granted summary judgment to Father on Plaintiffs claim brought pursuant to the family purpose doctrine.

Plaintiffs next issue is her claim that the Trial Court erred when it held that Father “could not be vicariously liable for the actions of [Son], who negligently loaned the Rice vehicle to an incompetent driver, who caused injuries to Plaintiff.” The fatal problem with this argument is that Plaintiff never argued to the Trial Court that Father should be held vicariously liable for Son’s negligent entrustment of the vehicle to Walton. Plaintiff argued below that Father was directly ha-ble for negligently entrusting the vehicle to Son, and that Son was directly liable for negligently entrusting the vehicle to Walton. We, however, have reviewed the complaint, the amended complaints, as well as Plaintiffs response to Defendants’ motion for summary judgment, and Plaintiff never alleged or argued that Father could be held vicariously liable for Son’s negligent entrustment of the vehicle to Walton, an altogether separate theory from what Plaintiff alleged in the pleadings.

There is nothing in the Trial Court’s final judgment indicating that this argument was made to or rejected by the Trial Court. We cannot conclude that the Trial Court committed error when ruling on an issue if there is nothing in the record establishing that the issue actually was raised below. It is well-settled that an issue not raised in the trial court cannot be raised for the first time on appeal. See Barnes v. Barnes, 193 S.W.3d 495, 501 (Tenn.2006) (“Issues not raised in the trial court cannot be raised for the first time on appeal.”).

We next discuss whether the Trial Court correctly granted summary judgment to Father on Plaintiffs claim of negligent entrustment for Father’s entrusting the vehicle to Son. In Watrous v. Johnson, No. W2007-00814-COA-R3-CV, 2007 WL 4146289 (Tenn.Ct.App. Nov. 21, 2007), no appl. perm, appeal filed, this Court stated:

Tennessee recognizes the tort of negligent entrustment as defined in the Restatement (Second) of Torts. West v. East Tenn. Pioneer Oil Co. d/b/a Exxon Convenience Store, 172 S.W.3d 545, 554 (Tenn.2005) (citations omitted). Section 390 of the Restatement provides:
One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.
Restatement (Second) of Torts § 390 (1965).... Thus, to succeed on a claim of negligent entrustment, a plaintiff must demonstrate that “a chattel was entrusted to one incompetent to use it with knowledge of the incompetence, and that its use was the proximate cause of injury or damage to another.” West [v. East Tennessee Pioneer Oil Co., 172 S.W.3d 545, 554 (Tenn.2005)]....

Watrous, 2007 WL 4146289, at *2, *3 (emphasis added).

We hold that the Trial Court correctly granted summary judgment to Father on Plaintiffs claim that Father had negligently entrusted the vehicle to Son. The reason for this is simple: Son was not driving the vehicle at the time of the accident. Thus, even assuming (without deciding) that one and a half years before the accident, Father negligently entrusted the vehicle to Son, Plaintiff cannot satisfy the second element of her claim, i.e., that the vehicle’s use by the person to whom the vehicle was negligently entrusted was the proximate cause of the injuries. In short, Son was not using the vehicle at the time of the accident.

In reaching this conclusion, we emphasize two things. First, even though we conclude that Plaintiffs negligent entrustment claim against Father properly was dismissed, this does not mean that Father, as owner of the vehicle, could not have been held vicariously liable under agency principles for Son negligently entrusting the vehicle to Walton. As stated previously, however, such a claim never was' alleged in the Trial Court by Plaintiff.

Second, our conclusion as to Father does not affect whether Son could be held liable for negligently entrusting the vehicle to Walton. This leads us to Plaintiffs final issue, which is whether the Trial Court correctly determined that the statute of limitations against Son had run by the time the complaint was amended for the second time.

The parties are in agreement that Plaintiffs personal injury claim against Son has a one-year statute of limitations. See Tenn.Code Ann. § 28-3-104(a)(1) (2000). On appeal, Plaintiff argues that the statute of limitations against Son was tolled because Plaintiff did not discover that it was Son who had loaned the vehicle to Walton until after the one year statute of limitations had run. In short, Plaintiff relies on the discovery rule to extend the running of the statute of limitations.

This Court discussed the discovery rule in Grindstaff v. Bowman, No. E2007-00135-COA-R3-CV, 2008 WL 2219274 (Tenn.Ct.App. May 29, 2008), no appl. perm, appeal filed, as follows:

[T]he statute of limitations for personal injury actions is one year from the accrual of the cause of action. Tenn.Code Ann. § 28-3-104(a)(l). “When the cause of action accrues is determined by applying the discovery rule.” John Kohl & Co. P.C. v. Dearborn & Ewing, 977 S.W.2d 528, 532 (Tenn.1998). The discovery rule recognizes the “Hornbook principle that a cause of action in tort does not exist until a judicial remedy is available to the plaintiff; [and] that before a judicial remedy exists, two elements must coalesce, (1) a breach of some legally recognized duty owed by the defendant to the plaintiff; (2) that causes the plaintiff some legally cognizable damage.” Foster v. Harris, 633 S.W.2d 304, 305 (Tenn.1982). Thus, the statute of limitations will not run against a plaintiff “until he discovered, or reasonably should have discovered, (1) the occasion, the manner and means by which a breach of duty occurred that produced his injury; and (2) the identity of the defendant who breached the duty.” Id. ...

Grindstaff, 2008 WL 2219274, at *5 (emphasis in the original).

In Grindstaff, we also recognized that a plaintiff has a duty to act with reasonable diligence to ascertain the identity of a defendant. We stated:

Moreover, the plaintiffs cannot simply wait for information regarding a potential defendant to come to them. They have a duty to investigate and discover pertinent facts “through the exercise of reasonable care and due diligence.” Calaway ex rel. Calaway v. Schucker, 193 S.W.3d 509, 520 (Tenn.2005). If their lack of knowledge was due to a lack of due diligence, they will not be allowed to plead ignorance and effectively extend the statute of limitations, by way of the discovery rule, simply because they later discovered “new” information that they “reasonably should have discovered” much earlier.

Id., at *6.

We note that in her brief on appeal, Plaintiff does not state exactly when she initially “discovered” that it was Son who potentially was liable for her personal injuries. Nevertheless, we know that the accident occurred on July 7, 2005. The original complaint which alleged, among other things, negligence and negligent entrustment by Father was filed on January 30, 2006. Walton filed his answer on April 7, 2006. The complaint was amended to add Son as a defendant on June 9, 2008.

In Walton s answer filed on April 7, 2006, Walton expressly identified Son as the person who loaned him the car. More specifically, Walton stated: (1) that he was operating the vehicle with the permission of Son, referred to in the answer as “Kevin Rice”; and (2) that the vehicle was owned by Father, referred to in the answer as “James Rice.” Thus, exercising reasonable diligence (i.e., by reading Walton’s answer), Plaintiff knew, or reasonably should have known, no later than April 7, 2006, that it was Son, not Father, who loaned Walton the vehicle. Plaintiff did not amend her complaint to add Son as a defendant until June 9, 2008, over two years later. Thus, the Trial Court properly held that the statute of limitations on any personal injury claim against Son had run, and we affirm the Trial Court on this final issue.

Conclusion

The judgment of the Trial Court is affirmed, and this cause is remanded to the Circuit Court of Jefferson County solely for collection of the costs below. Costs on appeal are taxed to the Appellants, Robert and Grace Strine, individually and as guardian and next friend of Ashley Strine, a minor, and their surety, for which execution may issue, if necessary.

      . The complaint was filed by Ashley Strine’s parents, individually and on behalf of their daughter, who was a minor at the time of the accident. For ease of reference only, we will refer to Ashley Strine singularly as “Plaintiff".

      . For purposes of this appeal, the current version of Tenn.Code Ann. § 55-10-311 (2008) remains essentially unchanged from the version at issue in Godfrey.

      . The first part of the statute establishes pri-ma facie evidence of knowledge and consent on the part of the owner. The second part of the statute establishes prima facie evidence of an agency relationship when the vehicle is being operated by the owner's servant/employee. Both parts of the statute were at issue in Godfrey and the Supreme Court held that the owner had failed to negate the prima facie evidence of an agency relationship. The present case does not involve a servant/employment situation, and thus there is no statutorily created prima facie agency relationship.

      . If an owner of a vehicle were liable simply because they allowed someone to use their car, then we would be imposing strict liability and there would be no need whatsoever for the family purpose doctrine or the tort of negligent entrustment.

      . The order granting summary judgment indicates that a hearing was held on January 12, 2009. We have not been provided a transcript of that hearing on appeal.