author: JEFFREY W. BATES, Judge.

text:
    Madolyn HAHN, Personal Representative of the Estate of Jerry L. Hahn, Deceased, Plaintiff-Appellant, v. Patricia TANKSLEY, and Rick Tanksley, and Mona Horrell and Randy Horrell, Defendants-Respondents.
    No. SD 29751.
    Missouri Court of Appeals, Southern District, Division One.
    May 27, 2010.
    Motion for Rehearing or Transfer Denied June 18, 2010.
    Application for Transfer Denied Aug. 31, 2010.

      Tom K. O’Loughlin, II, Cape Girardeau, MO, for Appellant.
    Albert M. Spradling, III, Cape Girar-deau, MO, for Respondents.
   JEFFREY W. BATES, Judge.

Jerry Hahn (Jerry) brought suit against his daughters, Patricia Tanksley (Pat) and Mona Horrell (Mona) (collectively, Daughters), and their husbands, Rick Tanksley and Randy Horrell. Jerry sought to set aside a deed and recover proceeds from certain bank accounts that Daughters had allegedly converted. Shortly after the case was tried to the court, Jerry died. Madolyn Hahn (Hahn), who was Jerry’s third wife, was appointed as the personal representative of his estate. Personal representative Hahn was substituted as the plaintiff in the underlying action. Thereafter, the trial court ruled against Hahn and in favor of Daughters. On appeal, Hahn contends the trial court erred by: (1) refusing to set aside the deed because the only substantial and competent evidence in the case, as well as the weight of the evidence, supported Jerry’s request for rescission of the deed; and (2) refusing to enter a money judgment for the proceeds of the bank accounts because the only substantial and competent evidence in the case showed Jerry did not intend to give the proceeds to Daughters. This Court affirms.

I. Factual and Procedural Background

Jerry was born in 1935. He died in November 2008 at the age of 73. Jerry was married three times and believed he had five children: one son born during his first marriage; the two Daughters born during his 48-year marriage to Glenda Hahn (Glenda); and two other children, a son and a daughter, born out of wedlock to Hahn while Jerry was married to Glenda. Jerry’s belief that Hahn’s children were his offspring was based upon the fact that he had an affair with Hahn while married to Glenda. No tests to determine the paternity of Hahn’s children were ever done, and Hahn never asked Jerry for child support. Glenda died of eancer in October 2003. In February 2006, Jerry married Hahn.

Jerry attended school through the eighth grade. At age 13, Jerry began working for his aunt and uncle, Daisy and Herman Birkman, on their farm (hereinafter, the farm). The farm, which was bisected by Gizzard Creek, was located in Bollinger County just across the Cape Gir-ardeau County line. The property consisted of 105 acres of flat, irrigated land used to grow row crops. It was worth from $300,000 to $350,000. The Birkmans also owned a house in Chaffee (hereinafter, the Birkman house). Herman died first, and then Daisy died in 1988. While married to Glenda, Jerry inherited the farm, the Birk-man house and $14,000 in cash. After inheriting the farm, Jerry rented it to others. At the time of trial, the farm was rented to Terry Givens for $9,400 a year. Daughters never worked on the farm. Jerry and Glenda later decided to trade the Birkman house for a different residence in Chaffee (hereinafter, the Chaffee house). During the marriage, Glenda did not inherit any property. Other than the Birkman inheritance, the couple’s assets were acquired as a result of their employment while they were married.

Beginning at age 10, Jerry had been employed as a school “janitor” making $10.00 a month. Thereafter, he worked at a shoe factory for 11 years. He was a Teamster for 28 years, hauling heavy construction equipment to job sites all over the country. Jerry began smoking two or three packs of cigarettes a day at age 16 or 17 and continued to smoke heavily throughout his working years. After angioplasty in 1990 at age 55, Jerry was disabled and never worked again. Following his disability, Jerry said “he couldn’t do too much.” About eight years prior to the trial, Jerry began breathing with the aid of an oxygen canister he carried with him. His heart and lungs were in failing condition. During the couple’s marriage, Glenda worked at a shoe factory, kept family records, paid bills and made bank deposits. Jerry said he “never had any use for checks” and never wrote a check. He signed checks completed for him by others, including Glenda, Mona, Pat or the payee. He turned his earnings over to Glenda. While she handled the checking and savings accounts, Jerry did know how to review those account statements and did so after he became disabled.

Beginning in 1979, Glenda, Pat and Mona had opened a joint savings account (Account 1). Jerry’s name was not on Account 1 at the time the account was created, but he was added to the account in July 1984. Jerry and Glenda also had another joint savings account (Account 2). Both accounts were at a bank in Chaffee. Daughters also were named on the checking account of Jerry and Glenda, which was used solely for the couple’s expenses.

In the fall of 2003, Glenda was diagnosed as having cancer. In early October 2003, Jerry asked Pat to go to the bank. Jerry told bank employee Denise Haislip (Haislip) that he wanted to deposit $8,200 into Account 1 and have his name taken off of Account 1 and Account 2. Haislip testified that an account holder cannot just remove his or her name from an account. Instead, the account must be closed, and a new account must be opened. Jerry instructed Haislip to do so, which resulted in two new joint accounts being set up in only Daughters’ names. Documentary evidence from the bank confirmed that this procedure was followed. Jerry signed withdrawal slips from Account 1 and Account 2 and then deposited the same amounts into new accounts in Daughters’ names only. A deposit was put into the first new savings account for Daughters (Account 3) in the amount of $31,985.56, which consisted of the money from Account 1 plus the $8,200 deposit. Another deposit was put into the second new savings account for Daughters (Account 4) in the amount of $17,206.27.

Later in October 2003, Jerry went to see Jim Green (Green) while Glenda was in the hospital. Green was a Sikeston lawyer who had done Jerry’s legal work for 20 years. Jerry had never used any other lawyers. As a result of the meeting, Green prepared two beneficiary deeds: one for the farm; and another for the Chaffee house. The deed beneficiaries were Daughters. Jerry and Pat returned to Green’s office to sign the two beneficiary deeds. Because Glenda was in the hospital, she did not go and was unable to sign the deeds. According to Pat, Green advised her to sign her mother’s name on both deeds, although the attestation clauses both said Glenda “personally appeared.” Pat was aware of these deeds and knew generally the legal effect was to make them the owners of the Chaffee house and the farm at the death of the surviving parent. The Daughters also understood that, prior to that event, they could be eliminated as beneficiaries. Jerry described the deeds as “putting somebody else’s name on with yours.” He understood that, because of these two beneficiary deeds, the farm and the Chaffee house would be owned by Daughters when he and Glenda were both deceased. The notarized deeds bore the date October 1, 2003 and were recorded on October 6, 2003. Green also prepared a durable power of attorney for Jerry, appointing Pat and Mona as his attorneys-in-fact to make decisions on Jerry’s behalf in the event he was unable to do so. The durable power of attorney, however, was not executed at that time.

Following Glenda’s death in late October 2003, Daughters (primarily Mona) handled Jerry’s checking account for him and paid his bills. Jerry kept currency in his home safe, and Pat knew the combination. Daughters’ assistance continued from Glenda’s death in October of 2003 until mid-2005. During that time, Daughters would stop to see their father before work and would sometimes stop at noon. Jerry would come to their houses to eat from time to time. They would visit with Jerry before he went to bed. They often took him to the store or picked up items that he needed. In January or February of 2004, Jerry also started seeing Hahn again.

In February 2005, Jerry drove himself to Green’s office to discuss estate planning issues. Jerry asked Pat to meet him there. Jerry wanted to put the farm and the Chaffee house in Daughters’ names “with him having a lifetime estate.” Jerry also wanted to continue receiving the rent from the farm. Jerry asked Green to prepare deeds to accomplish that end. Green said he would prepare the warranty deeds soon and call Jerry to come sign them when they were ready.

Thereafter, Green prepared the deeds as promised. He left a message on Jerry’s answering machine that the deeds were ready, but Jerry never went back to Green’s office to sign the deeds because he got sick. On February 18, 2005, Jerry was admitted to Southeast Missouri Hospital in Cape Girardeau (the hospital). Initially, he was admitted for exacerbation of chronic obstructive pulmonary disease, urinary incontinence and hypertension. Jerry’s medical records note breathing problems “off and on for a few weeks” and that Jerry was seen in the emergency room twice before admission. Jerry’s breathing problems worsened despite breathing treatments. Among other ailments, Jerry had congestive heart failure. He had to be intubated and remained on a ventilator many days. He required tube feeding. He was “very confused” upon being extu-bated. He was given Seroquel, an anti-psychotic drug, because he became “quite confused” and “agitated.” Jerry was taking 11 medications in addition to Seroquel.

On March 12, 2005, Dr. Spitler, a cardiologist treating Jerry, noted that he was confused, but “is oriented.” Dr. Brent Voszler (Dr. Voszler), Jerry’s expert, acknowledged that Dr. Spitler underlined the word “is” before oriented and that, medically speaking, oriented means that person has an orientation to person, place and time. Although Dr. Voszler did not remember Jerry in 2005, Dr. Voszler had examined Jerry while he was at the hospital. Dr. Voszler’s notes did not indicate Jerry was exhibiting any confusion.

On March 14, 2005 Jerry’s physician, Dr. David Catron, noted that Jerry wanted to go to the Chaffee Nursing Center (the nursing home) for physical therapy to improve his strength. According to Dr. Ca-tron’s notes, Jerry’s “mentation had been improving significantly.” Dr. Catron discharged Jerry from the hospital that day, and he was transported to the nursing home. Jerry spoke to Daughters on the 14th and told them “to get down to Jim Green’s office immediately and get those deeds and get them recorded because there’s going to be a hell of a lawsuit.” According to Pat, Jerry was scared of Hahn and had heard that she might be planning a lawsuit against him. Jerry wanted to “transfer the farm into [Daughters’ names] and he wanted to transfer the home into [Daughters’ names], giving him a lifetime estate.” Daughters went to Green’s office and picked up the two warranty deeds, along with a transmittal letter from Green to Jerry. Thereafter, Daughters took the deeds to the Scott County Recorder, Tom Dirnberger, to inquire about the best way to get the deeds completed and accomplish what Jerry wanted. Dirnberger advised Daughters to have the deeds reviewed by another lawyer, Scott Horman (Horman).

On March 15, 2005, the day after Jerry was transferred to the nursing home, the social services progress note from Carolyn Price, SSW (Price) indicated Jerry was “alert and oriented X3. Score of 2 on SPMSQ indicates intact intellectual functioning.” That same day, Jerry executed the durable power of attorney that Green prepared in 2003, which appointed Daughters as Jerry’s attorneys-in-fact. Price witnessed his signature. That same day, Daughters contacted Horman and explained that Jerry wanted to transfer to Daughters ownership of the farm and the Chaffee house, with a life estate for Jerry, as soon as possible. Horman understood Jerry wanted a life estate reserved in the warranty deed for the Chaffee house only. He told Pat that, if there is no home on a farm, a life estate is not usually reserved. Because the farm warranty deed that Green prepared reserved a life estate for Jerry, Horman explained he would prepare that deed differently to provide for an outright conveyance without a reserved life estate. Horman also explained that he would meet with Jerry personally to ensure that this was, in fact, what he wanted.

On March 16, 2005, Horman met with Jerry in the physical therapy room of the nursing home. Jerry said he wanted the Chaffee house and the farm deeded to Daughters. Jerry and Horman discussed the deeds that he had prepared, and Jerry said he wanted to sign the deeds. Prior to Jerry executing the deeds, Horman asked Jerry a series of questions to see if he was competent to proceed and understand what was transpiring. Horman asked Jerry about his marital status, the date, day of the week, his address, etc. Horman prepared a memorandum concerning his meeting with Jerry and the questions he was asked to answer. After Jerry answered a series of questions correctly, Horman formed an opinion that Jerry was competent to sign the deeds. Horman based his belief on Jerry’s demeanor, the fact he knew Horman, and the fact that Jerry was oriented to person, place and time. In addition, Horman served as a Guardian Ad Litem (GAL) around 150 times. In Horman’s capacity as a GAL, he would question a proposed ward to determine whether the person understood the nature and extent of his or her property. Horman posed similar questions to Jerry. The deeds that Horman prepared were identical to the deeds Green prepared, except that the Horman deeds eliminated the reserved life estate on the farm. Horman discussed this difference with Jerry before he signed the deeds. According to Hor-man, Jerry knew that he was not going to have a life estate interest in the farm. Jerry signed the warranty deeds in the nursing home, and they were notarized by a nursing home employee. While the notary was present, Jerry exhibited no reservations about executing the two deeds.

Other witnesses also testified Jerry was competent to sign the deeds that Horman prepared. A summary of their testimony follows.

Sherry Kinder (Kinder), a friend of Jerry and Glenda, saw Jerry a couple times each week while he was in the hospital. Kinder had conversations with Jerry. According to her, Jerry appeared to act just like he always did and seemed to know what he was doing. Kinder also visited Jerry in the nursing home on one occasion. Once again, he did not appear confused and continued to act like the same old Jerry.

Danny Bollinger (Bollinger) had been Jerry’s friend off and on for 40 years. Bollinger saw Jerry while he was in the hospital at least once or twice a day. In Bollinger’s opinion, Jerry knew what he was doing and did not appear confused while he was in the hospital. Bollinger also visited Jerry in the nursing home once or twice a day. Once again, Bollinger opined that Jerry did not appear confused. Bollinger witnessed Jerry’s signature on a power of attorney that Jerry signed on March 15, 2005. According to Bollinger, Jerry did not appear confused or unaware of what he was doing. While Jerry was in the nursing home, Bollinger did not see anything that caused him to believe Jerry was confused or was acting funny or strange. Except for when Jerry was on a ventilator in the hospital, Bollinger never believed that Jerry was unable to understand what was happening, either in the hospital or in the nursing home.

Pat testified that she and Mona were with Jerry at the hospital “24/7.” Pat observed Jerry while he was in the hospital and in the nursing home. Pat opined that Jerry knew what he was doing, particularly with respect to the deeds. According to Pat, Jerry expressed no reservations about the transfer of ownership. After Jerry returned home, he resumed driving his car and was able to get around. Jerry also bought and was able to ride a 4-wheeler. He resumed riding his horse. Jerry was capable of cooking, cleaning the house and performing his own personal hygiene tasks. The only physical task Jerry could not do was mowing the yard. In 2005 and 2006, Jerry’s mother was in a nursing home in Chaffee. Jerry took care of his mother’s affairs, which included selling her house and making any health care decisions that needed to be made before she died. At no time up to this point did Jerry question his transfer of ownership of the farm, the Chaffee house or the savings accounts.

In October 2005, Daughters voluntarily deeded the Chaffee house back to Jerry at his request. At the same time, Jerry executed another beneficiary deed conveying the house back to Daughters upon his death. Daughters also voluntarily agreed to pay Jerry all of the rent derived from the farm as long as he lived. Thereafter, Jerry received the farm rent pursuant to that agreement. Jerry and Hahn got married in February 2006. Jerry’s relationship with Hahn caused considerable family discord.

In December 2006, Daughters first learned Jerry was demanding that they return the real property Jerry had deeded to them and the proceeds from Accounts 1 and 2. In January 2007, Jerry filed a petition to set aside the deed to the farm and to recover the proceeds from Accounts 1 and 2 based on the alleged conversion of those accounts by Daughters. Jerry’s petition alleged that the deed he signed, conveying the farm to Daughters, was void because it was procured by undue influence and fraud at a time when he was incompetent. The petition further alleged that Daughters breached a confidential and fiduciary relationship with Jerry. Daughters’ position was that Jerry knew what he was doing when he conveyed the farm to Daughters and gave the proceeds of Accounts 1 and 2 as gifts to them. Daughters claimed that Hahn was the cause of the dispute between Jerry and Daughters.

Trial of this case ended in October 2008. Jerry testified that he did not know what he was doing while he was in the hospital and in the nursing home in 2005. Jerry’s expert, Dr. Voszler, reviewed Jerry’s medical records and opined that Jerry must have been incompetent at that time. An independent neuropsychological evaluation of Jerry by a professional psychologist was ordered by the court. As of the time of trial, no definitive diagnosis of incompetency was made. With respect to the savings accounts, Jerry testified that he only wanted Glenda’s name removed from the accounts and that he did not intend to give Daughters the proceeds of these accounts.

Jerry died in November 2008 before the court rendered any decision in the lawsuit. Personal representative Hahn was substituted as plaintiff. In April 2009, the trial court found in favor of Daughters and against personal representative Hahn. After hearing all of the evidence, the court made a specific finding that “Jerry Hahn was capable of determining his property and to whom he wished to give it.” The court also found that Jerry “just seemed to change his mind from time to time but the greater weight of the evidence is that he wished to give his property to his daughters Patricia and Mona.” The court also specifically found that, at the time of the deeds’ execution in 2005, Jerry was competent to transfer the farm to Daughters, and that the facts did not support a finding of fraud or undue influence. The court further found that Jerry voluntarily and intentionally transferred the savings accounts to Mona and Pat in 2003, so no conversion took place. This appeal followed.

II. Standard of Review

In this court-tried case, the judgment must be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Ewanchuk v. Mitchell, 154 S.W.3d 476, 478 (Mo.App.2005); Rule 84.13(d). The trial court’s judgment is presumed correct, and Hahn bears the burden of proving it erroneous. Surrey Condominium Ass’n, Inc. v. Webb, 163 S.W.3d 531, 535 (Mo.App.2005).

On appeal, this Court views the evidence and all reasonable inferences in the light most favorable to the judgment and disregards all contrary evidence and inferences. Strobl v. Lane, 250 S.W.3d 843, 844 (Mo.App.2008). The credibility of the witnesses and the weight to be given to their testimony is for the trial court, which is free to believe none, part or all of the testimony of any witness. Christian Health Care of Springfield West Park, Inc. v. Little, 145 S.W.3d 44, 48 (Mo.App.2004). This Court defers to the credibility determinations of the trial court “because it is in a better position to not only judge the credibility of witnesses directly, but also their sincerity and character as well as other trial intangibles which may not be completely revealed by the record.” Tichenor v. Vore, 953 S.W.2d 171, 174 (Mo.App.1997); Brown v. Brown, 152 S.W.3d 911, 913-14 (Mo.App.2005); Rule 84.13(d)(2). “An appellate court exercises extreme caution in considering whether a judgment should be set aside on the ground that it is against the weight of the evidence and will do so only upon a firm belief that the judgment was wrong.” Simpson v. Strong, 234 S.W.3d 567, 578 (Mo.App.2007). The phrase “weight of the evidence” means its weight in probative value, rather than the quantity of evidence. Nix v. Nix, 862 S.W.2d 948, 951 (Mo.App.1993). The weight of the evidence is not determined by mathematics, but depends on its effect in inducing belief. Id.

III. Discussion and Decision

Point I

In Hahn’s first point, she contends the trial court erred in refusing to set aside the March 2005 warranty deed to the farm. “A suit to have a deed declared void invokes the most extraordinary power of equity.” Lee v. Hiler, 141 S.W.3d 517, 523 (Mo.App.2004). “Consequently, a party seeking cancellation of a deed bears the burden of establishing by clear, cogent, and convincing evidence the basis for exercising such power.” Id.; Blackburn v. Spence, 384 S.W.2d 535, 539 (Mo.1964). The evidentiary burden imposed by the clear, cogent and convincing standard of proof requires “the trial court be clearly convinced of the proposition to be proved.” Celtic Corp. v. Tinnea, 254 S.W.3d 137, 141 (Mo.App.2008); see Grissum v. Reesman, 505 S.W.2d 81, 85-86 (Mo.1974).

Where, as here, the basis for setting aside a deed is the grantor’s alleged lack of mental capacity, “[t]he burden is upon those who seek to have the deed set aside to establish that, at the time of its execution, the grantor lacked sufficient mental capacity.” Estate of Helmich v. O’Toole, 731 S.W.2d 474, 478 (Mo.App.1987). The grantor’s mental capacity on the date of execution may be demonstrated with evidence of the grantor’s condition before and after the execution. Id. The issue to be determined is whether the grantor “had the mental capacity at the time of execution of the deeds sufficient to understand the nature of the transaction, the extent of his property and the ability to recognize the objects of his bounty.” Gifford v. Geosling, 951 S.W.2d 641, 644 (Mo.App.1997). Where the grantor’s conveyance is to a blood relative, courts are more reluctant to declare such a conveyance as an unnatural disposition of the grantor’s property. Wingate v. Griffin, 610 S.W.2d 417, 420 (Mo.App.1980). “Instances of illness, imperfect memory, forgetfulness, physical and intellectual weaknesses associated with old age, and mental confusion are generally not sufficient evidence to invalidate a deed.” Thurmon v. Ludy, 914 S.W.2d 32, 34 (Mo.App.1995); Gifford, 951 S.W.2d at 644.

Here, the trial court determined that Jerry was competent to execute the warranty deeds in question, specifically finding that Jerry “was capable of determining his property and. to whom he wished to give it.” Hahn essentially argues that the court’s determination of competency is based on insufficient evidence and is against the weight of the evidence. This Court is not persuaded by either argument.

Ample evidence supports the court’s determination that Jerry was competent at the time he executed the deeds on March 16, 2005. When Jerry arrived at the nursing home on March 15th, Price’s social services progress note stated that Jerry was alert and orientated with intact intellectual functioning. Before the deeds were signed the next day, Horman questioned Jerry at length. Horman similarly determined Jerry was oriented to person, place and time, and understood what was taking place. Horman had extensive experience as a GAL and, based on that experience, determined Jerry was competent to proceed. Horman testified that, before Jerry signed the warranty deeds, he knew: (1) the deed to the farm was different than that prepared by Green; and (2) Jerry no longer had a life estate reserved on the farm. In addition, Jerry’s long-time friends Kinder and Bollinger both testified that when they saw Jerry in the nursing home, Jerry did not appear to be confused to them and that he was the same old Jerry. Moreover, Jerry’s actions before and after he executed the deeds demonstrated his intention that Daughters ultimately own both the farm and the Chaffee house. Not only did he make his intention clear in the 2003 beneficiary deeds and the 2005 unsigned deeds prepared by Green before March 2005, but also afterwards in October 2005 when Jerry once again executed another beneficiary deed conveying the Chaffee house to Daughters after they had voluntarily deeded it back to him. In addition, Jerry took care of his mother’s affairs in 2005 and 2006 until her death. All this evidence is more than sufficient to support the trial court’s finding that Jerry was competent to execute the March 2005 deed to the farm.

Hahn’s argument that the trial court’s findings are against the weight of the evidence fares no better. Hahn argues that the “overwhelming weight of the un-refuted medical records, medical opinion and Jerry’s testimony” show that Jerry did not understand the nature and effect of the deeds. Hahn’s argument essentially asks this Court to attribute greater weight to the above-described evidence and find it more credible than that of Daughters. This we cannot do. The credibility of the witnesses and the weight to be given to their testimony is for the trial court, which is free to believe none, part or all of the testimony of any witness. Christian Health Care of Springfield, West Park, Inc. v. Little, 145 S.W.3d 44, 48 (Mo.App.2004). The trial court was not required to believe Dr. Voszler’s testimony, the portions of the medical records upon which Hahn relies, or Jerry’s subjective testimony that he was incompetent when he executed the deeds. In re Gene Wild Revocable Trust, 299 S.W.3d 767, 781 (Mo.App.2009). As is evident from the trial court’s findings, the court did not believe that evidence was credible. This Court defers to the trial court’s credibility determinations. See id.; Rule 84.13(d)(2). This Court’s independent review of the record has not left us with a firm belief that the judgment was wrong. Consequently, the trial court’s finding of competency is not against the weight of the evidence. See Simpson v. Strong, 234 S.W.3d 567, 578 (Mo.App.2007).

In short, the trial court found that Hahn failed to satisfy her burden of showing by clear, cogent and convincing evidence that Jerry lacked the mental capacity to execute the March 2005 warranty deeds. The trial court’s finding is supported by the evidence and is not against the weight of the evidence. Point I is denied.

Point II

In Hahn’s second point, she contends the trial court erred in refusing to find that Daughters converted the proceeds from Account I and Account 2. Hahn argues that the trial court’s finding that Jerry made a gift of the savings accounts to Daughters is not supported by sufficient evidence. Hahn relies upon Jerry’s trial testimony that he only wanted Glenda’s name removed from the accounts and that he did not intend to give Daughters the proceeds of these accounts. We find Hahn’s argument unpersuasive.

Conversion is the unauthorized assumption of the right of ownership over personal property of another to the exclusion of the owner’s rights. Reynolds County Memorial Hosp. v. Sun Bank of America, 974 S.W.2d 663, 666 (Mo.App.1998). “Obviously, if the owner consents, there is no unauthorized taking.” Maples v. United Sav. and Loan Ass’n, 686 S.W.2d 525, 527 (Mo.App.1985); see DeMean v. Ledl, 796 S.W.2d 415, 422 (Mo.App.1990) (no unauthorized taking, hence no conversion).

With respect to Account 1, Daughters were already joint owners of that account prior to October 2003. “A joint account is the property of those persons so named as joint tenants and may be paid to any one of such persons during his lifetime or to any of the survivors of them after the death of any one or more of them.” Estate of Rogers v. Battista, 125 S.W.3d 334, 343 (Mo.App.2004); §§ 362.470, 369.174 RSMo (2000). After Account 1 was closed at Jerry’s behest and Account 3 was opened in Daughters’ names alone, they continued to be joint owners of the money deposited into that new account. Daughters could not convert their own property. Therefore, the trial court correctly determined that Daughters did not convert the proceeds of Account 1.

With respect to Account 2, the trial court found that Jerry personally authorized the closing of that account and the transfer of the proceeds into Account 4 as a gift to Daughters. Giving the trial court’s factual findings the deference they are due on appeal, that determination was correct. “The requirements for completion of an inter vivos gift transfer are: (1) the donor’s present intention to make a gift to the donee; and (2) acceptance of the gift by the donee, whose ownership takes effect immediately and absolutely.” Estate of Thompson v. Hicks, 148 S.W.3d 32, 35 (Mo.App.2004); Kennedy v. Milligan, 915 S.W.2d 784, 789 (Mo.App.1996). Generally, a gift must be proven by clear and convincing evidence. Kennedy, 915 S.W.2d at 789. Here, the court’s finding that Jerry made a gift of the proceeds of Account 2 to Daughters was supported by Haislip’s testimony and the documentary evidence relating to the closing of Account 2 and the opening of Account 4. The trial court could, and did, disbelieve Jerry’s contrary testimony. See Christian Health Care of Springfield West Park, Inc. v. Little, 145 S.W.3d 44, 48 (Mo.App.2004). Thus, Daughters presented clear and convincing evidence that Jerry intended to make a gift of the proceeds of Account 2 to them. Because Jerry authorized and, therefore, consented to this change in the ownership of Account 2, the trial court correctly determined that Daughters did not convert the proceeds of that account. Point II is denied.

The judgment of the trial court is affirmed.

BARNEY and BURRELL, JJ., Concur.

      . Because several persons mentioned in this opinion share the same surname, we refer to each such person by his or her first name for puiposes of clarity.

      . Documentary evidence consisting of the savings withdrawal slips with Jerry's signature and the new deposit slips showing these transactions were admitted in evidence by stipulation as Defendants’ Exhibits E and F.

      .The 2003 beneficiary deeds were admitted in evidence by stipulation as Plaintiff’s Exhibits 1 and 2.

      . The 2005 unsigned warranty deeds prepared by Green were admitted in evidence by stipulation as Defendants' Exhibits A and B.

      . Jerry's medical records were admitted in evidence by stipulation as Plaintiff’s Exhibit 22.

      . At that time, Horman was a general practitioner. As of the time of trial, he was an associate circuit judge in Scott County.

      . This memorandum was admitted in evidence by stipulation as Plaintiffs Exhibit 5. The deeds prepared by Horman were admitted in evidence by stipulation as Plaintiffs Exhibits 6 and 7.

      . Although Jerry executed this durable power of attorney in March 2005, it was never utilized by Pat or Mona for any purpose.

      . Jerry later revoked that deed and added Hahn's name onto the title to the home.

      . The record shows that some of the rent was later paid into the registry of the court and released to Jerry by agreement of all parties.

      . For example, Jerry's name was omitted as a grandparent of Pat's son in a newspaper notice she submitted relating to her son’s graduation. Pat did this because she was upset when her mother, Glenda, was omitted from the obituary of Jerry's mother, who had died in June 2006. According to Pat, Jeriy's mother had written her own obituary before her death and included Glenda as preceding her in death. When the obituary was published in the paper, Glenda was omitted. In addition, on the way to depositions in this case, Jerry and Hahn had a car wreck, and Jerry claimed that Daughters “drove by [him] like a skunk laying in the road.”

      .Jerry also sought a declaratory judgment for recovery of additional rent, which is not at issue in this appeal.

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

      . This Court’s review of the record reveals that the medical records and medical testimony were not as one-sided as Hahn’s argument suggests. Daughters presented medical opinion testimony and portions of the medical records, as well as lay testimony, which tended to support the trial court's findings.

      . Hahn asserts similar arguments with respect to alleged trial court error in its findings on the issues of fraud and undue influence. Because the court’s findings on these issues similarly turn on its assessment of credibility, we likewise defer to these credibility determinations and do not separately address these arguments. Lastly, Hahn asserts in her point that the farm deed should have been rescinded because Daughters "were in a fiduciary and confidential relationship with Jerry as holders of a durable power of attorney” at the time of the deed's execution. Before any presumption of undue influence could arise based upon the execution of the durable power of attorney, Hahn had to prove that Daughters received a pecuniary benefit from the execution of the instrument. Puzzanchera v. Loetel, 293 S.W.3d 51, 60-61 (Mo.App.2009). The record contains no such evidence. Jerry had only executed the durable power of attorney the preceding day, and there is absolutely no evidence that Daughters received any pecuniary benefit whatsoever from that document’s execution. Indeed, the record reveals that Daughters never used Jerry's durable power of attorney for any purpose.

      . As the trial court correctly noted, when Jerry closed Accounts 1 and 2 and opened Accounts 3 and 4 in October 2003, there were no allegations or evidence that he did so due to incapacity, fraud or undue influence.


source: Caselaw Access Project

author: GARY W. LYNCH, Presiding.

license: Public Domain

text:
    WILL INVESTMENTS, INC., Danny Street, and Catherine Street, Plaintiffs-Appellants, v. Peter J. YOUNG, Defendant-Respondent.
    No. SD 29586.
    Missouri Court of Appeals, Southern District, Division Two.
    June 10, 2010.
    Motion for Rehearing and Transfer Denied July 2, 2010.
    Application for Transfer Denied Aug. 31, 2010.

      Richard L. Schnake and Judson P. Pop-pen, Neale & Newman, L.L.P., Springfield, for appellants.
    Donald L. Cupps, Ellis, Cupps and Cole, P.C., Cassville, Darlene F. Parrigon, Parri-gon Law Office, L.L.C., Pierce City, for respondent.
   GARY W. LYNCH, Presiding.

Will Investments, Inc., a Kansas corporation, Danny Street, and Catherine Street (“Plaintiffs”) appeal the judgment of the Circuit Court of Barry County denying their claims for injunctive relief and damages for trespass against Peter J. Young (“Defendant”) and reforming the language of an easement granted in favor of Defendant. Finding that the reformation of the easement was not in error and that it precludes the grant of affirmative relief to Plaintiffs on their claims, we affirm the trial court’s judgment.

Factual and Procedural Background

In 1962, Grover and Freda Renick purchased approximately thirty-five acres situated on a peninsula between the main channel of Table Rock Lake and Mill Creek in Barry County. Lake Road 39-9 runs north to south through the property and bisects the peninsula. The Renicks’ property bordered the main channel on the east side and Mill Creek on its south side. In September 1999, the Renicks offered for sale a 10.25-acre parcel. Monte Goodman, a real estate broker with Goodman Realty in Shell Knob, represented the Renicks and listed this parcel for sale.

The 10.25-acre parcel was situated in an area without boat dock zoning adjacent to the property, as placement of a boat dock on the main channel of Table Rock Lake was not allowed. However, Mr. Renick was aware that zoning for a boat dock existed along the shoreline of Mill Creek on the south side of his property. In order to entice a prospective purchaser desiring a boat dock, the Renicks were prepared to grant an easement for boat dock access on the southern portion of their property, “across the road and south, within a quarter of a mile of’ the 10.25 acres. Mr. Renick instructed Goodman to “investigate getting a boat dock.” However, Mr. Renick instructed Goodman to try to sell the property without having to provide such an easement, if possible.

Goodman investigated the procedures necessary to acquire a permit from the Army Corps of Engineers (“Corps”) for the placement of a boat dock along the shoreline of the property bordering Mill Creek. Dock zoning for a community boat dock was available along approximately 400 feet of shoreline on Mill Creek, proximate to the area where the Renicks’ remaining property was situated. The Corps refers to such a zone as a “red zone.” According to permit requirements, community docks must provide a minimum of twelve stalls and can have no more than twenty. The dock must be placed perpendicular to the shoreline and at least 100 feet away from any other dock. In this location, the Corps’ regulations required “[pjroof of access and parking on private property within 200 [feet] from the 915 msl (mean sea level) elevation” to the government fee take line (“GFTL”). However, this requirement may be waived, as it was for Defendant here, where the distance is greater than 200 feet if access and parking can be located on private property directly above the dock site being considered. At a minimum, one parking area — 10 feet by 20 feet — for every three boat slips on the dock is required.

Mr. Renick set forth the dimensions of an easement utilizing the known Corps markers as shown on a drawing of the plat. He sketched the boundaries of an easement extending approximately 200 feet westward from the roadway across the Mill Creek side of the property then owned by the Renicks and south of the 10.25 acres offered for sale. The easement measured 25 feet in width at the roadway on the east, continued at that width westward, and then flared to a width of 50 feet at the GFTL. Mr. Renick believed these dimensions would accommodate parking and meet the minimum requirements to allow for the placement of a community boat dock immediately adjacent to the easement.

In a letter dated March 26, 2000, the Renicks informed Goodman of the terms of the easement they were proposing to grant “for the purpose of locating a boat dock.” Along with the letter, the Renicks sent the sketch of the easement they proposed to grant. The letter provided that “[t]he easement would be 25 feet wide and approximately 200 feet long with 50 foot lake frontage.” It was also stated that “[t]he longest dimensions of the dock must be perpendicular to the lake shore line.” The Renicks further indicated that they “would be interested in buying one or maybe two slips in this new dock.”

In February 2004, Defendant contacted Goodman about purchasing the 10.25-acre parcel. Within a few weeks, Defendant made an offer to purchase the parcel, as well as the “boat dock easement on Section 22 owned by seller[.]” Defendant wanted the easement as part of the transaction so that he could place a community dock adjacent to the easement. Attached to Defendant’s offer was a copy of Mr. Renick’s sketch of the easement Mr. Renick provided to Goodman Realty, labeled “Dock Zoning Easement.”

After the Renicks accepted Defendant’s offer to purchase, Monte Goodman took the contract and Mr. Renick’s sketch of the easement to Richard Asbury, of As-bury Land Title Company, who ultimately drafted the language of the easement and the warranty deed, and the easement was incorporated into the warranty deed when the property sold. The reference to the easement in the warranty deed between

Defendant and the Renicks included the following language: “Together with an easement for ingress and egress to dock area over and across the following described tract[.]” On March 29, 2004, As-bury Land Title closed the transaction between Defendant and the Renicks.

After closing, Defendant employed Austin Survey to survey and flag the easement. No further work was performed on the easement until late April or early May 2006, at which time Defendant employed Bob Stewart of Lakeshore Construction to clear trees and install a culvert on the easement.

Apparently, at the same time the Ren-icks listed the above-referenced 10.25 acres with Monte Goodman, they also had listed with another realtor, Jennifer Bu-sen, from Kimberling Hills Realty, a 24-acre parcel situated south of the 10.25 acres that Defendant purchased. This parcel did not sell for some time, and at some point, Ms. Busen ceased to represent the Renicks in their attempt to sell.

In mid-January 2005, Mike Fitzpatrick, a self-employed marina contractor who was interested in developing property around the lake, contacted Busen to determine if the remaining southern portion of the Renicks’ property was for sale. Fitzpatrick initially partnered with Danny Street, a contractor, and his wife, Catherine, in planning a residential development, Mill Creek Landing, which included at least one community dock. Fitzpatrick later introduced Danny Street to Chuck Singleton, who ultimately joined in the endeavor after Fitzpatrick bowed out. Singleton was sole owner of Will Investments, Inc., a plaintiff herein. Although no longer a principal in the development, Fitzpatrick continued to assist in the acquisition of the real estate.

At the time Fitzpatrick contacted her, Busen no longer represented the Renicks, but she contacted them with information that she had an interested purchaser and obtained a new listing from them. The Renicks dealt only with Busen and had no contact with Fitzpatrick, the Streets, or Singleton. Mr. Renick informed Busen of the sale of the 10.25 acres to Defendant and the easement burdening the parcel that Plaintiffs wanted to purchase. He provided to Busen a copy of the drawing and the easement and discussed the fact that there was an easement “ ‘[t]o get through it,’ that he had sold some land to another guy.” Busen could not remember if she showed the drawing to Fitzpatrick and had “no idea” if a boat dock was discussed, but she was sure that he knew of the easement, and “[Fitzpatrick] didn’t have a problem with it.” Busen further stated that she communicated only with Fitzpatrick and never met Street or Singleton.

After Busen informed Fitzpatrick of the easement granted to Defendant, Fitzpatrick shared that information with Singleton and the Streets. In an attempt to learn whether the easement as granted would allow for Defendant’s placement of a community boat dock, Fitzpatrick spoke with a Corps duty ranger and discussed the language of the easement, particularly in reference to the “ingress and egress” provision, and the easement drawing. Plaintiffs were concerned about whether the language of the easement would allow parking rights, as access for parking is necessary to meet the Corps’ requirements for approval of a community dock. Parking rights are not required for private boat docks. Believing that the language of the easement would not permit parking, Fitzpatrick reported back to Street and Sta-pleton that they could move forward with their purchase of the property.

Fitzpatrick and Danny Street personally inspected the site of Defendant’s easement and measured from the GFTL at the north corner to the shoreline along Deféndant’s easement. Plaintiffs intended to place their dock “immediately in front of the boundary line between the Mill Creek Landing easement and [Defendant’s] easement.” The admitted intent of this placement was to prevent Defendant from placing a dock within a distance of 200 feet from his easement; placement of a dock at any greater distance, they believed, would not be approved by the Corps.

Danny Street admitted that prior to Plaintiffs’ purchase of the property from the Renicks, he was aware of the easement language and had seen Defendant’s warranty deed, in addition to “a drawing showing the location of the easement,” which was labeled “Dock Zoning Easement” at the top. Street further admitted that he saw the March 26, 2000, letter from the Renicks setting forth the details for the easement before the transaction closed. In this letter from the Renicks to Goodman Realty, the Renicks state, in part: “Enclosed is my drawing showing the easement we discussed earlier pertaining to the prospective buyers of a nearby parcel of real estate. The location is almost flat and should be ideal for their gaining access to the [GFTL] for the purpose of locating a boat dock. The longest dimension of the dock must be perpendicular to the lake shore line.” In closing, the Renicks further stated, “We would be interested in buying one or maybe two slips in this new dock.” Street also had experience with the development of another community dock in addition to the one Plaintiffs installed at Mill Creek Landing.

Singleton testified that before closing on the Plaintiffs’ property, he saw the language of the easement on the deed between Defendant and the Renicks and had seen a copy of the sketch setting forth the shape of Defendant’s easement. He never talked to the Renicks, Defendant, or Goodman to inquire further. He relied on the “easement for ingress and egress to dock area” language, knowing from previous experience as both a community dock owner and a private dock owner that a “parking easement” for additional owners of slips was necessary.

The transaction for the sale of the twenty-four acres between the Renicks and Will Investments, Inc., Danny Street, and Catherine Street was closed March 81, 2005, through Asbury Land Title. Plaintiffs subdivided the property into sixty-six lots and further planned to build three parking lots and install three community boat docks.

Plaintiffs applied for a community dock permit and received approval to install one 20-slip community dock. Plaintiffs’ dock was delivered in April or May 2006. Plaintiffs placed their dock “directly in front of both easements, leaving a situation to where another dock placed by someone else would [require] an access directly across Corps property, increasing the distance way more than 200 feet, which [Plaintiffs] knew the [Corps] would not allow.” Plaintiffs intended to obstruct Defendant’s placement of either a community dock or a private dock.

During the same time period, Defendant made an initial payment on a 14-slip dock on January 2, 2006. His application for a boat dock permit with the Corps was submitted January 27, 2006. Approval was granted February 22, 2006, after the Corps waived the requirement that Defendant’s dock be placed within 200 feet of the easement. This dock was installed around Memorial Day 2006. Soon thereafter, Defendant and other slip owners utilizing Defendant’s dock were parking in the easement.

Defendant received a letter on June 12, 2006, from Jeffery Goodnight who represented Will Investments, Inc., alleging that Defendant’s clearing of the easement “was an excessive use of [his] easement for ingress and egress.” Goodnight further requested that Defendant immediately “cease and desist destroying trees and other fixtures along the easement, and ... that [Defendant] put the property back into the shape it was prior to the grant of the easement[.]”

Another attorney, Judson Poppen, who represented Plaintiffs, wrote to Cheryl Wanko at the Little Rock District of the Corps, on June 29, 2006. Therein, Poppen advised that Plaintiffs had retained his firm to represent them in their dispute with Defendant and requested that the Corps “reconsider its permitting decisions with respect to [Defendant],” in light of their belief that pending litigation would preclude Defendant from the ability “to provide parking on private property near the dock area — a Corps of Engineer requirement for obtaining a boat dock permit.”

On June 30, 2006, Plaintiffs filed the underlying action for injunctive relief and damages against Defendant, alleging in part trespass, in that Defendant’s use of an easement across property owned by Plaintiffs exceeded the scope of the easement and was unreasonable. Plaintiffs further sought a temporary restraining order, a preliminary injunction, and a permanent injunction to preclude Defendant from further activities on the easement. Defendant answered and later amended his answer, asserting affirmative defenses of laches, equitable estoppel, and unclean hands, and counter-petitioned for reformation of the language of the easement at issue to conform to the actual intentions of the parties.

In his counter-petition, Defendant alleged that after Plaintiffs’ purchase of the property from the Renicks, Plaintiffs claimed restrictions on the easement granted by the Renicks to Defendant, and further, “[i]f the Plaintiffs’ interpretation of the easement language is incorrect then the description ... of the easement intended to be conveyed was incomplete, and in fact does not adequately describe the easement conveyed to Defendant.” Defendant claimed that the language of the easement “was incomplete due to scrivener’s error and mutual mistake of the parties to the deed and should have specifically included the right to construct a parking area and park vehicles on the easement so as to leave no doubt as to the extent of the agreement of the parties.” He proposed the following reformation of the language of the easement at issue: “Grantors grant the Grantees and his heirs, assigns, servants, agents, licensees and invitees a perpetual easement for ingress, egress and parking for access and utilization of a boat dock(s) and the boat dock area.”

Following a bench trial, the trial court entered judgment in favor of Defendant and against Plaintiffs on Plaintiffs’ claims in their petition and, in accordance with Defendant’s counter-petition, ordered reformation of the language of the easement. The trial court determined that the language of the easement granted by the Renicks to Defendant is vague, ambiguous, and incomplete, and that the easement’s grantor and grantee intended that Defendant and his assigns have the right to utilize the easement to support a community boat dock, including parking rights. Finding that there was a mutual mistake in that the language of the easement in the warranty deed did not adequately describe the easement intended to be conveyed to Defendant, the trial court ordered that the warranty deed “is reformed to read as follows: Grantors grant the Grantees and his heirs, assigns, servants, agents, licensees and invitees a perpetual easement for ingress, egress and parking for access and utilization of a boat dock(s) and the boat dock area.”

This appeal timely followed. Plaintiffs present seven points relied on. Their seventh point is dispositive. In this point, Plaintiffs contend that the trial court erred in reforming the language of the easement granted in Defendant’s deed and in broadening the scope of the use of the easement, in that Plaintiffs were bona fide purchasers of their property without notice of the intentions of Defendant and the grantors of the easement. Plaintiffs contend that they exercised due diligence in their attempt to discover the scope of Defendant’s intended use of the easement in accordance with the language of the easement as recorded.

Standard of Review

This Court will affirm the judgment of the trial court unless there is no substantial evidence to support it, the judgment is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). “In determining whether the judgment is supported by substantial evidence, we view the evidence in the light most favorable to the judgment and defer to the trial court’s credibility determinations.” Barrows v. Firstar Bank, 103 S.W.3d 386, 390 (Mo.App.2003). “Further, we grant the respondent the benefit of all reasonable inferences favorable to the judgment and disregard all contrary inferences and evidence.” Id.

Analysis

In its judgment the trial court found that “[t]he Plaintiffs had actual knowledge of the intended extent of the easement prior to purchasing the servient property.” Nevertheless, Plaintiffs allege in Point VII that certain facts “show that Plaintiffs had no knowledge that by using the words ‘an easement for ingress and egress to dock area over and across’ aetually served to grant Defendant the right to park on the easement and allow others to park.” Plaintiffs claim that they “investigated the easement,” in that “[t]hey considered the easement language and physically looked at the ground where the easement was located.” Furthermore,

[t]he trial court’s finding that ‘Plaintiffs had actual knowledge of the intended extent of the easement prior to purchasing the servient property’ ..., is unsupported by the evidence or is against the clear weight of the evidence.[] There is no evidence, let alone clear and convincing evidence to justify vitiating the assumption upon which Plaintiffs based their purchase of the property — that the easement did not permit parking, and hence it would not support a community dock. Plaintiffs should be able to rely on the state of the title as it appears in the recorded land records. The judgment reforming the easement grant should be reversed.

“ ‘Reformation of a written instrument is an extraordinary equitable remedy and should be granted with great caution and only in clear cases of fraud or mistake.’ ” Ethridge v. Tierone Bank, 226 S.W.3d 127, 132 (Mo. banc 2007) (quoting Morris v. Brown, 941 S.W.2d 835, 840 (Mo.App.1997)). “ ‘[R]eformation is a remedy by which a party to a contract ... may obtain modification of the terms of the contract such that those terms reflect the parties’ original intent in forming the contract.’ ” Brown v. Mickelson, 220 S.W.3d 442, 448 (Mo.App.2007) (quoting Lunceford v. Houghtlin, 170 S.W.3d 453, 464 (Mo.App.2005)). “Equity will reform an instrument which, through mutual mistake of the parties, does not accurately set forth the terms of the agreement actually made or which does not incorporate the true prior intentions of the parties.” King v. Riley, 498 S.W.2d 564, 565 (Mo.1973).

“A mutual mistake occurs when both parties, at the time of contracting, share a misconception about a basic assumption or vital fact upon which they based their bargain.” Husch & Eppenberger, LLC v. Eisenberg, 213 S.W.3d 124, 134 (Mo.App.2006) (quoting Alea London Ltd. v. Bono-Soltysiak Enterprises, 186 S.W.3d 403, 415 (Mo.App.2006)). “This is normally a question of fact.” Id. “In a bench-tried case such as this, the trial judge is the finder of fact.” Kerr v. Jennings, 886 S.W.2d 117, 125 (Mo.App.1994). “[T]o establish a mutual mistake in an instrument, it is not necessary to show that the parties theretofore had agreed upon any particular words or language to be used in the instrument, but it is sufficient to show that they agreed to accomplish a particular object by the instrument to be executed and that such instrument, as executed, is insufficient to effectuate their intention.” Allen v. Smith, 375 S.W.2d 874, 880 (Mo.App.1964).

Trial “court[s] can reform a written instrument only upon clear, cogent, and convincing evidence that leaves no room for reasonable doubt.” Cardinal Partners, LLC v. Desco Investment Co., L.L.C., 301 S.W.3d 104, 110 (Mo.App.2010). “This degree of proof relates not only to the existence of a mutual mistake, but also to establishment of the actual agreement allegedly made.” Id.

The “party seeking reformation must show that: (1) a preexisting agreement between the parties affected by the proposed reformation is consistent with the change sought; (2) a mistake was made in that the deed was prepared other than as agreed; and (3) the mistake was mutual, i.e., it was common to both parties.” Id. Mr. Renick, Defendant,'and the realtor who brokered the sale all agree that the parties intended that the easement at issue provide access to the lake-shore, accommodate parking sufficient for five vehicles, and comply with the Corps’ requirements for the placement of a community boat dock. The trial court found that Defendant met this burden, and Plaintiffs do not challenge that finding in this appeal. Indeed, Plaintiffs point does not challenge this finding of the trial court, but rather, assumes it to be correct.

Nevertheless, Plaintiffs assert that “the evidence shows that Plaintiffs were bona fide purchasers of their servient property without notice of the secret intentions of the Renicks and Defendant,” and such status defeats reformation of the easement. Plaintiffs cite to Lacy v. Schmitz, 639 S.W.2d 96, 99 (Mo.App.1982), which holds that “[i]t is settled that ‘no reformation will be granted against a bona fide purchaser without notice of the facts.’ ”

“A ‘bona fide purchaser’ is one who pays a valuable consideration, has no notice of outstanding rights of others, and who acts in good faith.” Community Bank of Chillicothe, Missouri v. Campbell, 870 S.W.2d 838, 842 (Mo.App.1993). “The party claiming to be a bona fide purchaser bears the burden of proving those elements by a preponderance of the evidence.” Brown, 220 S.W.3d at 452.

The record supports that Plaintiffs purchased their parcel from the Renicks for approximately $465,000.00. Accordingly, Plaintiffs paid a valuable consideration in exchange for the property they purchased. The record, however, does not support the elements of lack of notice or good faith.

“The notice sufficient to defeat a claim to bona fide purchaser status is actual or constructive notice of facts that would place a reasonably prudent person upon inquiry as to the title he or she is about to purchase.” Evans v. Wittorff, 869 S.W.2d 872, 876 (Mo.App.1994). “[T]he grant of an easement need not declare a specific purpose.” Hoelscher v. Simmerock, 921 S.W.2d 676, 679 (Mo.App.1996). “A person who purchases land with knowledge or with actual, constructive, or implied notice that it is burdened with an easement in favor of other property ordinarily takes the estate subject to the easement.” Nolte v. Corley, 83 S.W.3d 28, 33 (Mo.App.2002).

While the easement granted to Defendant was not excepted in the warranty deed from the Renicks to Plaintiffs, Busen had received a copy of Mr. Renick’s sketch of the easement which she showed to Fitzpatrick “early in the game.” Plaintiffs obtained a copy of the warranty deed between the Renicks and Defendant, which included the following language in reference to the easement at issue: “Together with an easement for ingress and egress to dock area over and across the following described tract[.]” This deed also contained a legal description of the easement setting forth its shape and, more particularly, that it flared from 25 feet in width to 50 feet in width near the GFTL. Plaintiffs likewise viewed Mr. Renick’s sketch of the easement before they purchased their property. Defendant had a surveyor stake out the easement in 2004 before Fitzpatrick and Danny Street physically inspected the easement in 2005, which was before Plaintiffs purchased their parcel. Plaintiffs do not claim that they were not on notice of the exact location, size, or shape of the easement or that the easement’s purpose was to allow Defendant to have and maintain a boat dock. Rather, Plaintiffs contend that there was no substantial evidence that they had notice that the easement would allow parking as required by the Corps to support the maintenance of a community boat dock by Defendant. We disagree.

Fitzpatrick took the information he obtained from Busen and met with Cheryl Wanko, a duty ranger with the Corps in Branson, showed her the easement, and asked her if it would be accepted as an easement for a community dock. It is reasonable to infer that Fitzpatrick would not have taken this action unless he had knowledge and was on notice that the size, shape, and location of the easement might support a community boat dock.

Similarly, Danny Street’s and Singleton’s knowledge of the size, shape, and location of the easement, coupled with their previous experience with boat docks, put them on notice that Defendant’s easement might support a community boat dock. Plaintiffs claim that the specific wording in the deed granting the easement only put them on notice that the easement was for ingress and egress, yet they offer no explanation for their knowledge of the legal description in the deed that described the easement with a flare toward the GFTL. The trial court could have reasonably inferred that the flare to a width of 50 feet at the GFTL put Plaintiffs on notice that the Renicks and Defendant intended some purpose for the easement in addition to just ingress and egress, which could have been accomplished with a rectangular easement only 25-feet wide. It was also reasonable for the trial court to infer that the additional purpose was for parking in the flare.

Danny Street had knowledge of the contents of the March 26, 2000, letter from Mr. Renick to his realtor, which was the basis for the agreement between the Ren-icks and Defendant. This letter stated that “[t]he longest dimension of the dock must be perpendicular to the lake shore line” and that the Renicks “would be interested in buying one or maybe two slips in this new dock.” As a private boat dock can have no more than two boat slips, neither of these statements have any meaning outside the context of a reference to a community boat dock. Combined with Plaintiffs’ prior experience with both private and community boat docks, the trial court could have reasonably inferred that this knowledge put Plaintiffs on notice that the Renicks and Defendant contemplated an easement that would support the Corps’ requirements for a community boat dock, including parking.

“If there are circumstances which in common reason and prudence ought to put a party to particular inquiry and by which inquiry he [or she] could have discovered the facts, the party is not considered a purchaser without notice.” Walters v. Tucker, 308 S.W.2d 678, 675 (Mo.1957). Here, Plaintiffs purchased their property from the same sellers who granted Defendant the easement. Given Plaintiffs’ knowledge of the circumstances surrounding the creation of that easement, Plaintiffs could have easily asked the Ren-icks prior to their purchase about the easement granted to Defendant that ran through their prospective property and, specifically, whether it was intended to include the right to park and was otherwise intended to support a community boat dock. Moreover, Plaintiffs could have made the same inquiry of Defendant.

Plaintiffs’ failure to so inquire gives rise to a reasonable inference that they chose to be willfully blind as to the actual intentions of the Renicks and Defendant related to the easement and, thus, did not act in good faith. This inference is buttressed by their later action in placing their boat dock in such a manner as to obstruct any attempt by Defendant to place his dock in the approved area.

The above facts provide substantial evidence that at the time Plaintiffs purchased their property they had notice that Defendant’s easement, even in the absence of a specific provision for parking, would accommodate a community boat dock that required parking and supports the trial court’s finding that “Plaintiffs had actual knowledge of the intended extent of the easement prior to purchasing the servient property.” Therefore, Plaintiffs failed to carry their burden in establishing their status as bona fide purchasers. Plaintiffs’ Point VII is denied.

Decision

The trial court’s judgment is affirmed.

Judge SCOTT, C.J., and CORDONNIER, Sp. J., concur.

      . Under Points I and II, Plaintiffs allege that the trial court’s finding that Plaintiffs failed to meet their burden of proof on claims for injunctive relief and damages for trespass was unsupported by the evidence (Point I) and erroneously declared or applied the law (Point II), in that Plaintiffs proved that Defendant exceeded the scope of his easement for ingress and egress by parking on the easement and allowing others to park. Plaintiffs, in Point III, challenge the trial court’s ruling that Plaintiffs are equitably estopped to assert their claims because Plaintiffs had actual knowledge of Defendant’s intentions to place a community dock proximate to his easement and their silence amounted to concealment of a material fact. In Point IV, Plaintiffs assign error to the trial court’s ruling that Plaintiffs’ claims are barred by the doctrine of laches, in that they delayed filing their action alleging trespass "until Defendant began and/or completed the construction of his boat dock and parking area.” Plaintiffs claim under Points V and VI that the trial court erred in ruling that their claims are barred by the doctrine of unclean hands because Plaintiffs had knowledge of the existing easement when they purchased their property and nevertheless sought to limit Defendant’s use of the easement in order to deprive Defendant of a boat dock (Point V) and further attempted to place their dock in a location proximate to Defendant's easement to prevent the installation of Defendant’s dock (Point VI). As conceded by Plaintiffs’ counsel during oral argument, the reformation of the easement in accordance with Defendant’s counter-petition, which Plaintiffs unsuccessfully challenge in Point VII, necessarily precludes the grant of any relief on Plaintiffs’ claims.

      . Plaintiffs raised their against-the-weight-of-the-evidence argument for the first time in the argument section under Point VII in their brief. It is not raised in their point relied on. "We need not consider arguments not raised in the point relied on.” Eltiste v. Ford Motor Co., 167 S.W.3d 742, 750 (Mo.App.2005). Even if we ignored this requirement and consider it, Plaintiffs fail to develop this argument any further after it is raised. "An argument should show how the principles of law and the facts of the case interact.” Boyd v. Boyd, 134 S.W.3d 820, 824 (Mo.App.2004). Where an appellant fails to develop an argument, we consider it abandoned. Id.


author: DON E. BURRELL, Judge.

text:
    In the Interest of: T.R.W., Minor. T.D.W., Natural Father, Appellant, v. Greene County Juvenile Office, Respondent.
    No. SD 30220.
    Missouri Court of Appeals, Southern District, Division One.
    June 16, 2010.
    Rehearing Denied July 8, 2010.
    Application for Transfer Denied Aug. 31, 2010.

      John E. Kelly, Springfield, MO, for Appellant.
    Bill Prince, Springfield, MO, for Respondent.
   DON E. BURRELL, Judge.

T.D.W. (“Father”), the biological father of the minor child T.R.W. (“Child”), appeals the judgment that terminated his parental rights to and over Child. Father asserts two points of alleged error: 1) that the trial court’s findings that Father had both abandoned Child and failed to rectify the conditions that initially caused Child to come under the protection of the court were not supported by substantial evidence and were against the weight of the evidence; and 2) that the trial court abused its discretion in finding that the termination of Father’s parental rights was in Child’s best interests. We affirm the judgment.

Factual and Procedural Background

When reviewing a judgment to terminate parental rights, we “consider the facts and the reasonable inferences derived therefrom in a light most favorable to the judgment.” In re L.N.D., 219 S.W.3d 820, 822 (Mo.App. S.D.2007) (citation omitted). This recitation of the relevant facts is made in accordance with that standard.

Child was taken into protective custody on November 30, 2007. Father was incarcerated in a federal penitentiary at the time. At some point after February of 2008, Jim Snare (“Snare”), a social worker with the Children’s Division, was assigned to Child’s case and sent Father a letter “instructing him that we have a court hearing.”

In response to Snare’s letter, Father sent Snare a request for — in Snare’s words — “records that I have in order to, I guess, make a ease to get his child.” This request for records by Father constituted the only communication Father would make with the Children’s Division. Although Father would have been allowed to have contact with Child if he had requested it, Father wrote no letters to Child and made no other attempts to “provide any sort of parental relationship -with [Child].” Father also did not provide Child with any financial or in-kind support after he learned that Child had been taken away from her mother and placed into protective custody.

Father was personally served with a copy of the juvenile officer’s petition to terminate Father’s parental rights on January 20, 2009. Over the final few months before the termination trial began, the juvenile officer sent Father three separate attorney applications which advised Father of his right to legal counsel. The juvenile officer received no response from Father. Trial was held on the petition to terminate parental rights on September 25, 2009. Father, who was still incarcerated, did not appear at that trial either in person or by counsel.

On October 21, 2009, the trial court entered its judgment terminating T.D.A.’s and Father’s parental rights. Father now appeals that judgment. Additional facts relevant to the resolution of Father’s appeal will be set forth as necessary in the context of our analysis of his specific allegations of error.

Analysis

Point I: Statutory Grounds for Termination

We review a trial court’s decision that one or more statutory ground exists for terminating parental rights to determine “whether the ruling is supported by substantial evidence, is against the weight of the evidence, or involves an erroneous application or declaration of the law.” In re C.A.M., 282 S.W.3d 398, 404 (Mo.App. S.D.2009); In re 160 S.W.3d 355, 362 (Mo. banc 2005). We will reverse the trial court’s decision only if we are left with a firm belief that the decision was wrong. Id. If we find that at least one statutory ground for termination was properly pleaded and proven, we will affirm the decision of the trial court. In re C.A.M., 282 S.W.3d at 404-05 (citing In re A.M.S., 272 S.W.3d 305, 308 (Mo.App. W.D.2008)). We view any conflicting evidence in the light most favorable to the judgment and defer to the trial court’s assessment of witness credibility. In re C.A.M., 282 S.W.3d at 405 (citing In re A.S.W., 137 S.W.3d 448, 452-53 (Mo. banc 2004); In re C.F.C., 156 S.W.3d 422, 426 (Mo.App. E.D.2005)).

The court’s judgment found that the juvenile officer had proven by clear and convincing evidence three statutory grounds for terminating Father’s parental rights: abandonment (see section 211.447.5(1)); neglect (see section 211.447.5(2)); and what is commonly referred to as “failure to rectify” (see section 211.447.5(3)). As earlier noted, Father has challenged the trial court’s findings in regard to only two of the three grounds: abandonment and failure to rectify.

When the trial court finds multiple statutory grounds for termination of parental rights, in order to affirm the judgment this Court need only find that one of the statutory bases was proven and that the termination was in the best interests of the child. In re T.F.S., 52 S.W.3d 44, 48 (Mo.App. S.D.2001); see also In re J.L.M., 64 S.W.3d 923, 925 (Mo.App. S.D.2002) (“[o]ne ground for termination adequately pleaded and proven is sufficient to support termination.”). Thus, if an appellant fails to challenge each of the termination grounds found by the trial court, it is unnecessary for the appellate court to address the specific ground that is challenged. In re B.J.K., 197 S.W.3d 237, 246 (Mo.App. W.D.2006). “However, because the termination of parental rights is one of the most serious acts a court is empowered to perform, In re B.S.B., 76 S.W.3d 318, 324 (Mo.App. W.D.2002), we review the evidence ex gratia to determine whether the juvenile officer established at least one ground for termination by ‘[c]lear, cogent, and convincing evidence.’ ” In re B.N.W., 115 S.W.3d 869, 871 (Mo.App. S.D.2003).

In re J.B., 214 S.W.3d 353, 355 (Mo.App. S.D.2007). Our ex gratia review of the trial court’s abandonment finding shows that it is supported by substantial evidence.

The relevant portion of the statute at issue provides that parental rights may be terminated if:

(1) The child has been abandoned. For purposes of this subdivision a “child” means any child over one year of age at the time of filing of the petition. The court shall find that the child has been abandoned if, for a period of six months or longer:
(b) The parent has, without good cause, left the child without any provision for parental support and without making arrangements to visit or communicate with the child, although able to do so[.]

Section 211.447.5 (bolding in original).

The gravamen of Father’s complaint is “that the testimony of the sole witness, case[-]carrying worker [Snare], was insufficient to establish the grounds for termination but rather such trial court finding relied on matters outside [Snare]’s personal knowledge including hearsay and documents lacking proper evidentiary foundation.”

As previously indicated, Snare’s testimony was not the only evidence before the trial court. It took judicial notice of two court files, the contents of which have not been provided to this court for its review. In addition, five documentary exhibits were received into evidence by the court without objection. Father has failed to identify which, if any, of these exhibits contained hearsay that was relied on by the trial court in reaching its judgment.

Snare was assigned Child’s case in February of 2008. We presume that a copy of Snare’s letter to Father would be in the underlying abuse/negleet file that the court took judicial notice of and that Father has failed to provide. Assuming the date of that letter would be favorable to the court’s ruling, we presume the letter was sent to Father shortly after Snare became responsible for Child’s case. Snare testified that between the time he sent the letter to Father and the date of trial, Father made no attempt to contact Child in any manner and provided Child with no financial support of any kind. Father complains that Snare’s testimony was inconsistent and should not have been believed by the court. Those credibility determinations, however, are for the trial court to make, and we presume they were made in a manner consistent with the judgment. In re CAM, 282 S.W.Bd at 405.

In regard to Father’s failure to provide any financial support to Child, although Father was incarcerated during the entire period of time Child was in care,

... substantially reduced wages received by an incarcerated parent do not excuse his obligation under section 211.447 to make monetary contributions toward support of his child. [In re] M.N.M., 906 S.W.2d [876] at 879 [ (Mo.App.S.D.1995) ]; [In re] M.L.K., 804 S.W.2d [398] at 402 [ (Mo.App.W.D.1991) ]. While such a contribution from an incarcerated parent will not significantly assist in providing the child with essentials, even a minimal contribution evinces a parent’s intent to continue the parent/child relationship. Id. Evidence of this intent is lacking, however, where a parent fails to make any contribution, no matter how diminutive the amount. Id.

In re R.K, 982 S.W.2d 803, 807 (Mo.App.W.D.1998).

Inferences favorable to the court’s judgment that may be drawn from the fact that Father responded to Snare’s letter with a request for records are: 1) Father received Snare’s letter; 2) Father knew that Child was in the custody of the court; and 3) Father knew that Snare was a person with knowledge about Child’s situation. Despite this knowledge, Father failed to provide Child with any parental communication or support for a period of time approximately three times longer than the required statutory minimum of six months. Father evinced no intent to preserve the parent-child relationship, and his lack of contact constituted an abandonment of Child. Point I is denied.

Point II: Best Interests Finding

In reviewing a claim that termination was not in the child’s best interest, we examine the record for an abuse of discretion. In re C.A.M., 282 S.W.3d at 405 (citing In re I.Q.S., 200 S.W.3d 599, 603 (Mo.App. W.D.2006)). As in our review of the evidence supporting the statutory grounds for termination, we view any conflicting evidence in the light most favorable to the judgment and defer to the trial court’s assessment of witness credibility. In re CAM, 282 S.W.3d at 404-05 (citing In re A.S.W., 137 S.W.3d 448, 452-53 (Mo. banc 2004); In re C.F.C., 156 S.W.3d 422, 426 (Mo.App. E.D.2005)).

Child was born in December of 2002 and was taken into the protective custody of the court a few days before her fifth birthday. Father was incarcerated in a federal prison at the time Child was taken from her mother and remained incarcerated at the time of trial. Child has no emotional ties or bonds with either of her parents and does not ask about them. Child is currently residing with her paternal grandfather, is in good health, and is doing well in school. Child’s grandfather is meeting all of her needs and is willing to provide her with a stable, permanent home through either guardianship or adoption.

It would perhaps be the ultimate irony if, as seemingly argued by Father, the legal relationship of parent and child could not be terminated and the child forced to remain in legal limbo by an incarcerated parent’s knowing refusal to maintain even a scintilla of an actual relationship with his child. The trial court did not abuse its discretion in finding that the termination of Father’s parental rights was in Child’s best interests.

Point II is also denied, and the judgment of the trial court is affirmed.

BARNEY, J., and BATES, P.J., Concur.

      . T.D.A., Child’s natural mother — whose parental rights were also terminated by the judgment — is not a party to this appeal.

      . The record on appeal does not contain all of the evidence presented to the trial court. At the beginning of the trial, the juvenile officer asked the trial court to take judicial notice of the contents of two court files: Child's underlying abuse/neglect file and the case file started when the petition for termination was filed. No objection was made to that request, and the court took judicial notice of the files. Neither of these files has been included by Father in the record on appeal. As a result, these "evidentiary omissions will be taken as favorable to the trial court’s ruling and unfavorable to the appellant.” In re Carl McDonald Revocable Trust Dated Oct. 1, 1979, 942 S.W.2d 926, 932 (Mo.App. S.D.1997).

      . All references to section 211.447 are to RSMo, Cum.Supp.2009.

      . Although Father has also challenged the trial court's abandonment finding as against the weight of the evidence, Father has cited no evidence against which to weigh the evidence that supports the court’s finding, and our own review has failed to reveal any.

      . See n2, supra.


author: NANCY STEFFEN RAHMEYER, Judge.

text:
    Emma FRANCE, Plaintiff-Appellant, v. Rita HUNTER, John Joseph Podleski, Crandall & Podleski, P.C., and Stephen Bazzano, Defendants-Respondents.
    No. SD 30004.
    Missouri Court of Appeals, Southern District, Division Two.
    July 9, 2010.

      R. Lynn Myers, Springfield, MO, for Appellant.
    Michael J. Patton, George W. “Jake” Reinbold, IV, Springfield, MO, for Respondent Rita Hunter(no brief), Podleski and Crandall & Podleski, P.C.
   NANCY STEFFEN RAHMEYER, Judge.

Emma France (“Appellant”) filed two actions, one in federal District Court (“District Court”) and one in state trial court (“trial court”), arising from the appointment of Rita Hunter (“Ms. Hunter”), the Public Administrator of Jasper County, as Appellant’s guardian and conservator. Appellant filed her first action in District Court on February 8, 2008, against three parties: the lawyer and law firm that represented Ms. Hunter in the guardianship appointment, John Podleski and Crandall & Podleski, P.C. (“Respondents”), and Ms. Hunter, individually and in her capacity as Public Administrator. In her Complaint, Appellant alleged that Respondents violated her rights under the Fourth and Fourteenth Amendments of the United States Constitution and 42 U.S.C. section 1983. Respondents filed a motion to dismiss for failure to state a claim, and the District Court granted the motion and dismissed the claims against Respondents with prejudice. Two days later, the District Court ordered the remaining parties to show cause why the matter should not be dismissed for lack of subject matter jurisdiction. Appellant and Ms. Hunter filed their responses, and on May 22, 2008, the District Court entered an Order dismissing Appellant’s claims against Ms. Hunter without prejudice because the District Court lacked subject matter jurisdiction over those claims.

On July 1, 2008, Appellant filed her second action in Jasper County, Missouri, against Respondents, Ms. Hunter, and Stephen J. Bazzano, D.O. (“Dr. Bazzano”), which was nearly identical to Appellant’s federal Complaint. Respondents filed a second motion to dismiss for failure to state a claim, arguing, among other things, that Appellant’s claim was barred by res judicata. On July 7, 2009, the trial court entered its Judgment, sustaining Respondents’ motion to dismiss and dismissing Appellant’s claims against them with prejudice. The trial court held that because the second action against Respondents was identical to the first, all of Appellant’s claims against Respondents were barred by the doctrine of res judicata. We affirm the judgment of the circuit court.

Standard of Review

While the issue of res judicata was presented to the trial court through a motion to dismiss, because the parties and trial court considered matters outside the pleadings, they essentially treated the matter as a motion for summary judgment. See Heins Implement Co. v. Missouri Highway & Transp. Comm’n, 859 S.W.2d 681, 685 (Mo. banc 1998), abrogated on other grounds by Southers v. City of Farmington, 263 S.W.3d 603, 614 n. 13 (Mo. banc 2008). We review accordingly.

This Court reviews the grant of a motion for summary judgment de novo. ITT Commercial Finance Corp. v. Mid-Am. Marine Supply, 854 S.W.2d 371, 376 (Mo. banc 1993). Under this standard, we view the facts in the light most favorable to the nonmovant. Id. Here, the trial court’s grant of summary judgment is premised upon the affirmative defense of res judica-ta, which was raised by Respondents. To affirm the trial court, we must find that Respondents’ motion “sets forth undisputed facts which establish every element of [the] affirmative defense[ ].” Transatlantic Ltd. v. Salva, 71 S.W.3d 670, 674 (Mo.App. W.D.2002).

Analysis

Appellant’s sole point on appeal states:

[t]he trial court erred in sustaining [Respondents’] motion to dismiss for failure to state a claim based upon res judicata because the [District Court] in the previous case did not have subject matter jurisdiction in that any action or order of the [District Court] except to dismiss the previous case without prejudice was void as a matter of law.

(emphasis added). Essentially, Appellant is arguing that because the District Court lacked subject matter jurisdiction over the entire claim, its only option was to dismiss the case without prejudice and any other action by the District Court was void. As a result, Appellant contends that the District Court’s Order, granting Respondents’ motion to dismiss for failure to state a claim and dismissing Respondents with prejudice, was void. Therefore, according to Appellant, if the District Court’s Order was void, the trial court could not rely on it as the basis for res judicata in granting Respondents’ motion to dismiss them with prejudice from the trial court claim. We disagree.

Appellant claims that the District Court did not have subject matter jurisdiction over the entire claim, meaning that its dismissal without prejudice applied to both Ms. Hunter and Respondents. Appellant, however, fails to recognize that by the time the District Court entered its dismissal for lack of subject matter jurisdiction, Respondents had already been dismissed from the lawsuit with prejudice. Furthermore, the District Court never addressed subject matter jurisdiction when it granted Respondents’ motion to dismiss— instead the sole basis for granting the motion was Appellant’s failure to state a claim. It is evident from the District Court’s Order that it only intended to dismiss the case against Ms. Hunter without prejudice because it lacked subject matter jurisdiction over the claims against her— not against the Respondents. The District Court does not mention Respondents in its Order dismissing Ms. Hunter without prejudice, and in fact, it removed Respondents from the case caption on that Order. All of these factors together demonstrate that Respondents were no longer part of the federal lawsuit once the District Court dismissed them with prejudice. Because Appellant is only arguing that the trial court erred in sustaining the motion to dismiss on res judicata grounds, we only need to address Appellant’s claim against Respondents.

“Res judicata” is a common-law doctrine that means “a thing adjudicated,” and precludes a party from relitigating a formerly-made claim. Chesterfield Village, Inc. v. City of Chesterfield, 64 S.W.3d 315, 318 (Mo. banc 2002). Res judicata bars a claim from being relitigated if it is a cause of action that has been previously adjudicated by the same parties or those in privity with them. Deatherage v. Cleg-horn, 115 S.W.3d 447, 454 (Mo.App. S.D.2003). Here, Appellant raised identical claims against Respondents in both the District Court and the trial court. Not only are the claims identical, but Appellant also seeks the same relief against the same Respondents. Appellant did file an Amended Petition before the trial court; however, Appellant only changed a few words and the claims against Respondents remained unchanged. “ ‘A dismissal for failure to state a cause of action is sufficient to raise res judicata in a later proceeding, and it is immaterial that the wording of the counts has been changed in an apparent attempt to correct the defects in the original pleadings.’ ” Bentch v. Collins, 28 S.W.3d 453, 456-57 (Mo.App. E.D.2000) (quoting Greening v. Klamen, 719 S.W.2d 904, 906 (Mo.App. E.D.1986)). Therefore, because the claims, parties, and relief sought are identical to the allegations in the District Court, Appellant’s state claims against Respondents are barred by the doctrine of res judicata.

We affirm the judgment.

LYNCH, P.J., and FRANCIS, J„ concur.

      . We recognize that Appellant may have filed more than two actions in this matter; however, we will only discuss the two lawsuits relevant to this appeal.

      . Rule 55.27(a) provides, in pertinent part:
      If, on a motion ... to dismiss for failure of the pleadings to state a claim ..., matters outside of the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 74.04.
      While the rule provides for such treatment, it is recommended that the motion is initially filed as one for summary judgment to ensure that the trial court and parties comply with Rule 74.04.

      . All defendants in the lawsuit filed motions to dismiss in Jasper County; however, Respondents were the only defendants whose motion to dismiss was granted based on res judicata, which is what Appellant is contesting in this appeal. Ms. Hunter brought a motion to dismiss pursuant to immunity and failure to state a claim under 42 U.S.C. section 1983. The trial court overruled both of her motions. Dr. Bazzano brought a motion to dismiss pursuant to immunity, which was also overruled.

      . Because Appellant only argues that she was aggrieved by the trial court’s judgment as to Respondents, we need not address any issues relating to Ms. Hunter or Dr. Bazzano.


text:
    George FULLER, Plaintiff-Appellant, v. Mike KEMNA, et al., Defendant-Respondent.
    No. SD 29805.
    Missouri Court of Appeals, Southern District, Division Two.
    July 12, 2010.

      George Fuller, Cameron, MO, Appellant Acting Pro Se.
    Chris Koster, Atty. Gen., Cheryl Ann Schuetze, Jefferson City, for Respondent.
   NANCY STEFFEN RAHMEYER, Judge.

George Fuller (“Appellant”) is an inmate in the custody of the Missouri Department of Corrections (“DOC”) at Crossroads Correctional Center (“Crossroads”). On or about November 15, 2002, Appellant was visited by a supposed private investigator, Gary Compton, who had allegedly been hired by Appellant’s sister to assist in his case. Appellant gave Compton several legal documents that Appellant claims demonstrated his actual innocence. Appellant later discovered that Compton was an imposter, posing as an investigator in an effort to defraud Appellant’s sister out of money. After unsuccessful attempts at gaining relief for his alleged invasion of privacy through administrative remedies in 2004, and in federal court in 2007, Appellant filed the action subject to this appeal.

On July 25, 2008, Appellant filed suit against Tom Clements, an Assistant Director of the DOC, Mike Kemna, the Warden of Crossroads, Steve Lakey, a Functional Unit Manager at Crossroads (collectively “Respondents”), and Captain Norris, an officer at Crossroads, alleging they invaded Appellant’s privacy and denied him access to courts by not verifying the credentials of Compton. Respondents filed a motion to dismiss on November 18, 2008, alleging, among other things, that the petition was barred by the statute of limitations. Appellant never responded to the motion to dismiss, but on December 3, 2008, asked for a sixty-day extension to respond. The trial court sustained the motion to dismiss on January 9, 2009. This appeal followed. We affirm because Appellant was time barred from bringing the claims as the one-year statute of limitations, pursuant to section 516.145, had expired.

Appellant’s pro se brief is difficult to interpret. From best we can discern, Appellant’s central points on appeal are that the trial court erred in declining to grant his motion for a sixty-day extension to reply to Respondents’ motion to dismiss. Respondents counter, as they did in the trial court, that Appellant’s claims are time barred. For the reasons stated below, we agree and decline to address Appellant’s additional points.

We review a trial court’s grant of a motion to dismiss de novo. Huch v. Charter Communications, Inc., 290 S.W.3d 721, 724 (Mo. banc 2009). During such review, we accept as true all of the plaintiffs averments and view the allegations in the light most favorable to the plaintiff. Bosch v. St. Louis Healthcare Network, 41 S.W.3d 462, 464 (Mo. banc 2001). When the trial court does not provide reasons for its dismissal of the petition, we will affirm if dismissal was appropriate on any grounds stated in the motion to dismiss. Fenlon v. Union Elec. Co., 266 S.W.3d 852, 854 (Mo.App. E.D.2008).

Section 516.145 provides that all actions brought by an inmate in the custody of the DOC against the department or its employees “for an act in an official capacity, or by the omission of an official duty,” be filed within one year of when the cause of action accrues. Section 516.145. An inmate’s cause of action accrues when the damage resulting from the alleged wrongs is capable of ascertainment. Section 516.100. Section 506.384, however, requires exhaustion of administrative remedies prior to filing a civil action. Section 506.384.1. Because section 516.145 does not provide a tolling provision while the administrative remedies are being pursued, the Supreme Court of this State had to reconcile the statutes in Cooper v. Minor, 16 S.W.3d 578, 581 (Mo. banc 2000). The Supreme Court decided that the remedy for circumstances where the inmate is unable to exhaust administrative remedies prior to the running of the statute of limitations is not a tolling of the statute of limitations, but a stay of a timely filed lawsuit, i.e. a stay of the lawsuit filed within the one year period proscribed by section 516.145. Id. at 582.

In this case, Appellant brought suit against Respondents, officers of the DOC, for not verifying the credentials of Respondents’ ill-intentioned visitor, Compton. The incident leading to the suit occurred on or about November 15, 2002. The suit was not filed until over five years later, on July 25, 2008. Appellant sought administrative remedies in 2004, and filed a petition based on the same claims in federal court in 2007, which shows his knowledge of any alleged damage resulting from the alleged wrongs as of those dates. Appellant did not file this action until July 25, 2008, more than one year later. Appellant made no showing why he did not timely file suit and seek a stay pending his administrative proceedings. As such, Appellant’s suit is time barred by section 516.145. Id. at 581. The untimely petition was properly dismissed.

The judgment of the trial court is affirmed.

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

      . Appellant, in his brief, maintains he filed suit in federal court on January 17, 2007, and included the court’s order dismissing the case on August 7, 2007, in the appendix to his brief; however, he provided us with nothing in the record on appeal to allow us to verify these dates.

      . Counsel for Respondents filed an Entry of Appearance on November 6, 2008, "on behalf of defendants Larry Crawford, Mike Kemna, and Steve Lakey,” (emphasis added) and waived service of process for said defendants. Counsel also advised that Captain Norris was no longer employed by the DOC. However, defendants' Motion to Dismiss refers to the collective defendants as "Tom Clements, Mike Kemna, and Steve Lakey,” as does the trial court’s Amended Judgment and Order. Based on the limited record before us, this Court’s understanding is that the proper defendants/Respondents on appeal are Clements, Kemna, and Lakey, while Norris is not a party to the appeal.

      .All rule references are to Missouri Court Rules (2010), and all references to statutes are to RSMo 2000, unless otherwise specified.