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

text:
    Jack SKINNER, Appellant, v. LEGGETT & PLATT, INC., Respondent.
    No. SD 29869.
    Missouri Court of Appeals, Southern District, Division Two.
    Sept. 28, 2010.
    Motion for Rehearing or Transfer to Supreme Court Denied Oct. 20, 2010.
    Application for Transfer Denied Dee. 21, 2010.

      R. Deryl Edwards, Jr., Joplin, MO, for Appellant.
    Ronald G. Sparlin, Joplin, MO, for Respondent.
   WILLIAM W. FRANCIS, JR., Judge.

Jack Skinner (“Appellant”) filed a lawsuit against Leggett & Platt, Inc. (“Respondent”) seeking damages for personal injuries he allegedly sustained when he fell on stairs on Respondent’s property. The jury returned a verdict for Respondent. This appeal followed. We affirm the judgment of the trial court.

Factual History

On July 7, 1997, Appellant’s employer, Midwestern Telephone, sent him to Respondent’s facility in Carthage, Missouri, to install a paging system. Upon arrival, Appellant proceeded to the safety manager’s office and was given a “safety tour” of the plant. Before Appellant began his work, he was requested to move his vehicle because it was blocking the dock area. As Appellant left the safety manager’s office, he walked down a hallway, opened a door, and started down a set of stairs without handrails. Appellant fell and alleged as a result of the fall, he sustained physical and psychological injuries.

Appellant alleged Respondent was negligent per se for the lack of handrails required by the Carthage city code, which had adopted the “Building Officials Building Code/1965 (‘BOCA’),” and for violating the Occupational Safety & Health Administration (“OSHA”) workplace regulations “29 C.F.R. § 1910.21-24 and 29 C.F.R. § 1926.” Respondent denied any knowledge of the incident until a lawsuit was filed in July 2002. Respondent asserted as affirmative defenses Appellant’s failure to mitigate damages and his comparative fault in failing to follow his treating physicians’ instructions.

Substantial evidence was presented concerning Appellant’s medical condition. Dr. Christopher Andrew (“Dr. Andrew”) treated Appellant approximately two months after his accident and testified as a part of Appellant’s case. He is a neurologist in Joplin, Missouri. He described the diagnostic testing and treatment he recommended in the early stages of Appellant’s care. He testified Appellant failed to follow medical advice by declining to complete an electroencephalogram (“EEG”) test of his brain and refusing various prescription medications. Dr. Andrew acknowledged that Appellant did not receive the intended benefit and improvement anticipated because he failed to take the prescribed medication. He also opined that permitting Appellant’s multiple symptoms to go untreated could lead to psychiatric disorders such as somatoform disorders or conversion disorders. Dr. Andrew explained, “Well, it kind of ties our hands, there’s not a whole lot I can do if a patient’s not going to try to buy into his healthcare and try to improve his own healthcare.”

Appellant offered the testimony of Dr. Lester Zackler (“Dr. Zackler”), a psychiatrist from Sherman Oaks, California, specializing in consultation liaison psychiatry. Dr. Zackler was hired by Appellant to assess his alleged brain injury and explain the impairment from that injury. During cross-examination, Dr. Zackler agreed that Appellant had failed to take medication prescribed by his doctors and failed to follow doctors’ orders. He admitted that his hope and purpose in prescribing medication is to make a patient better, and that a patient’s condition might worsen if they do not follow doctors’ instructions.

Similar testimony came from Dr. Jeffrey Schaeffer (“Dr. Schaeffer”), an expert from Los Angeles California, retained by Appellant to perform a neuropsychological examination. Dr. Schaeffer testified that Appellant had been “noncompliant with great frequency” in his medical treatment. He also agreed that Appellant either failed to follow the recommended treatment or only partially complied.

Appellant admitted there were numerous occasions when he failed to follow through on physician-recommended treatments or evaluations, including refusal to fill prescriptions, take prescribed medication, return for suggested follow-up appointments, obtain suggested chiropractic treatments, and get recommended diagnostic studies. Appellant explained that he decided to ignore his doctors’ advice because “it was my life and health.” He testified he had sixty doctors.

Appellant’s wife, Margaret Skinner, testified that she told Appellant not to take medication prescribed for him.

At the close of evidence, the trial court conducted a conference to review jury instructions and determined the evidence supported submission of Appellant’s comparative fault to the jury.

Over Appellant’s objection, the trial court submitted “Instruction 7” as a verdict director, which read as follows:

In your verdict, you must assess a percentage of fault to defendant if you believe:
First, Defendant failed to install handrails to the defendant’s stairwell, and
Second, such failure directly caused or directly contributed to cause damage to plaintiff.

Instruction 7 was a modification to Missouri Approved Instructions (“MAI”) 17.17 permitted by 37.01 (the comparative fault verdict directing modification) and 19.01 (the verdict directing modification if multiple causes of damage are in evidence). The trial court also gave separate instructions on Respondent’s affirmative defenses that Appellant failed to mitigate his damages and was comparatively at fault for failure to follow his doctors’ instructions.

The jury returned a verdict in favor of Respondent assessing zero fault against Respondent.

Appellant contends the trial court erred in refusing his proffered verdict directing instruction because there was not sufficient evidence of comparative fault to support Instruction 7. Appellant also contends the trial court erred in giving additional separate comparative fault instructions based upon Appellant’s refusal to follow his doctors’ instructions. Respondent contends the jury was instructed appropriately and any errors, if present, were not prejudicial.

The issues for our determination are:

1. Was it error to refuse Appellant’s proposed Instruction 7, which excluded consideration of Appellant’s comparative fault?
2. Was Appellant prejudiced by the submission of comparative fault instructions based upon Appellant’s failure to follow his physicians’ instructions?

Standard of Review

“[W]e review the court’s refusal to give a proffered verdict director de novo, evaluating whether the instruction was supported by the evidence and the law.” Ploch v. Hamai, 213 S.W.3d 135, 139 (Mo.App. E.D.2006). “In making this determination as to a particular instruction, this Court views the evidence in the light most favorable to its submission.” Edgerton v. Morrison, 280 S.W.3d 62, 65-66 (Mo. banc 2009). Before reversal can be predicated on instructional error, the complaining party must show that the instruction misdirected the jury, thereby resulting in prejudice. Lee v. Mirbaha, 722 S.W.2d 80, 83 (Mo. banc 1986).

Analysis

Failure to Refuse Proposed Verdict Directing Instruction

First, we consider whether it was error to refuse Appellant’s proposed Instruction 7, which excluded submission of Appellant’s comparative fault.

Missouri recognizes the submission of a party’s comparative fault for failure to mitigate damages as appropriate. In Love v. Park Lane Medical Center, 737 S.W.2d 720, 725 (Mo. banc 1987), the Supreme Court noted that fault includes an unreasonable failure to avoid injury or to mitigate damages. The Court further explained that “[ejxpressing mitigation of damages as a percentage of fault reducing plaintiffs damages is the proper method for fairly accounting for the failure to mitigate ....” Id.

In this case Respondent pled, as a part of Appellant’s failure to mitigate damages and comparative fault, his failure to follow his doctors’ instructions. The failure of a party to follow doctors’ instructions has previously been recognized as appropriate to submit to the jury as comparative fault. See Stone v. Duffy Distributors, Inc., 785 S.W.2d 671, 676 (Mo.App. S.D.1990). In oral argument, Appellant’s counsel admitted that Instruction 7 was appropriate if there was evidence of Appellant’s failure to follow his doctors’ instructions. In determining if there is evidence to support Instruction 7, this Court must consider the evidence most favorable to that instruction with all favorable inferences reasonably drawn, and must disregard Appellant’s evidence unless it supports the submission in that instruction. Smith v. Brown & Williamson Tobacco Corp., 275 S.W.3d 748, 759 (Mo.App. W.D.2008). Following this standard, we find an abundance of evidence that Appellant failed to follow his doctors’ instructions and contributed to the conditions of which he complained. Appellant’s conduct in refusing to take medication and pursue diagnostic tests were conscious decisions, which the jury could consider on the issue of comparative fault and how that affected mitigation of damages.

First, we look to Dr. Andrew’s testimony. He testified that as the early inter-vener in Appellant’s treatment, he was certain he “was not missing anything and ... treating [Appellant’s] symptoms appropriately.” He explained that if a patient does not take the prescribed medication, he is not going to get the benefits of the medication. Dr. Andrew also testified that he recommended an EEG evaluation to examine brain wave activity and determine if there was any damage to the brain such as swelling or seizure-like activity. However, Appellant never appeared for the EEG test despite Dr. Andrew’s recommendation. Finally, Dr. Andrew testified that allowing Appellant’s multiple symptoms to go untreated could lead to psychiatric disorders such as somatoform disorders or conversion disorders.

Appellant’s retained experts, Drs. Zack-ler and Schaeffer, offered similar observations concerning Appellant’s failure to take prescribed medication and comply with his doctors’ instructions.

Significantly, Appellant himself admitted he made a conscious decision to ignore his doctors’ advice and refuse some of the treatment and medication recommended to him.

Accordingly, there was sufficient evidence for the trial court to submit to the jury the issue of Appellant’s comparative fault for failure to follow the physicians’ instructions. It was not prejudicial error for the trial court to refuse Appellant’s proposed verdict directing instruction, which did not include submission of Appellant’s comparative fault to the jury. To the contrary, submission of the instruction proffered by Appellant would have been error in view of the evidence of Appellant’s refusal to follow his doctors’ instructions. Appellant’s point is denied.

No Prejudice from Comparative Fault Instructions

Next, we consider whether Appellant was prejudiced by the submission of two comparative fault instructions based upon Appellant’s failure to follow his doctors’ instructions. We find no prejudice resulted from any alleged misdirecting of the jury; thus, it is unnecessary for us to reach a decision on Appellant’s remaining points raising instructional error in the comparative fault instructions. See Hudson v. Carr, 668 S.W.2d 68, 71 (Mo. banc 1984).

Here, the verdict returned was unequivocally in favor of Respondent explicitly finding Respondent “0%” at fault. We must assume that the jury followed the instructions they were given and would have assessed a percentage of fault to Respondent had they found that each of the hypothesized facts were established by Appellant’s case. Barnes v. Tools & Machinery Builders, Inc., 715 S.W.2d 518 (Mo. banc 1986).

The court in Lee, considered similar facts and noted:

The jury necessarily must have concluded that the plaintiffs failed to establish at least one of the propositions necessary to return a verdict in their favor. Because of this conclusion, the jury was never required to reach the question of apportionment of fault. Because the jury found no liability on the part of the defendants and returned a general verdict for the defendants under instructions not dependent on Instruction Nos. 11 and 18, we find no prejudice to have resulted to the plaintiffs.

722 S.W.2d at 84 (internal footnote omitted) (citing Barnes, 715 S.W.2d at 518).

Likewise, the verdict in this case, finding zero fault in Respondent, negates any allegation of error in giving a comparative fault instruction. The jury did not reach issues of comparative fault so any error in the instructions was harmless. See Lee, 722 S.W.2d at 84.

Appellant’s reliance on Beers v. Western Auto Supply Co., 646 S.W.2d 812 (Mo.App. W.D.1982), and Nugent v. Hamilton & Son, Inc., 417 S.W.2d 939 (Mo. banc 1967), is misplaced in that both of those decisions discuss the use of jury instructions prior to the adoption of comparative fault in Missouri, pursuant to Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983).

We conclude Appellant was not prejudiced by the submission of comparative fault instructions, based upon his failure to follow his doctors’ instructions, because the jury returned a verdict finding no liability on the part of Respondent. Appellant’s remaining points are denied.

Judgment for Respondent is affirmed.

SCOTT, C.J. and RAHMEYER, P.J., Concur.

      . Appellant offered an alternative Instruction 7 which read as follows:
      Your verdict must be for plaintiff if you believe:
      First, defendant failed to install handrails in the defendant’s stairwell, and
      Second, as a direct result of such conduct, plaintiff sustained damage.


source: Caselaw Access Project

author: ROBERT G. DOWD, JR., Judge.

license: Public Domain

text:
    ASSET ACCEPTANCE, Respondent, v. Marjorie P. LODGE, Appellant.
    No. ED 93264.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 28, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 17, 2010.

      Patrie A. Lester, St. Louis, MO, for Appellant.
    William F. Whealen, Jr., Stephen J. Barber, St. Louis, MO, for Respondent.
   ROBERT G. DOWD, JR., Judge.

Marjorie Lodge (“Lodge”) appeals from the entry of judgment in favor of Asset Acceptance, LLC (“Asset”) on Asset’s petition for breach of contract. Lodge asserts the trial court erred (1) in entering judgment in favor of Asset because Asset lacked standing to sue, (2) in finding there was a contract between Lodge and Asset. Lodge maintains there was not substantial, competent evidence of the specific terms and conditions of the purported agreement, and (3) in admitting into evidence Exhibits 1 and 2 because the documents did not constitute business records of Asset. Finding the trial court erred and abused its discretion in admitting Exhibits 1 and 2 into evidence, we reverse.

Asset, the assignee of HSBC Consumer Lending (“HSBC”), filed a petition for breach of contract against Lodge. Asset alleged Lodge executed a contract by signing a loan check and owed a balance of $5,181.52, plus interest and attorney’s fees. Asset attached to its petition copies of the front and back of a check dated December 29, 2003, issued by HSBC, the original creditor, in the amount of $5,000.33 and made payable to Lodge. The check provided on both its back and front that “[signing this check will result in a loan that must be repaid with interest and fees.” The check further provided on the back, “By endorsing this check you agree to the terms and conditions of the attached Promissory Note.” Lodge’s signature appeared on the signature line immediately below this statement.

Prior to testimony being adduced, the trial court heard Lodge’s motion in limine, in which she objected, on hearsay and foundation grounds, to the admission of several documents, including the check attached to Asset’s petition and the bill of sale of the account from HSBC, the original creditor, to Asset. Lodge also asserted the “terms and conditions” referred to on the check should not be admitted because it was not produced by the discovery deadline. The trial court granted the motion in limine as to the “terms and conditions” and denied the remainder of Lodge’s motion in limine.

At the trial, Asset presented the testimony of Mike Beach (“Beach”), Asset’s legal director. Beach stated he had worked in the credit industry for nearly twenty years at the time of trial, and had worked for Asset for ten years. Beach testified he was familiar with how records were prepared in the industry.

Beach testified Asset purchased some accounts from HSBC. Over Lodge’s objection, Beach identified and testified to Exhibit 1, the “Assignment and Bill of Sale” from HSBC to Asset and an “Account Purchase and Sale Agreement.” Beach also identified that last few pages of Exhibit 1 as the data record for the specific account of Lodge. The data record listed Lodge’s name, account number, address, telephone number, the current balance of $5,181.52, the date of last payment, and the original lender.

Beach stated he was familiar with the transactions between Asset and the various entities from whom it purchased accounts, and while he himself did not prepare the purchase agreement, he was familiar with what went on with those transactions. Beach testified the documents in Exhibit 1 were the standard types of documents relating to such transfers and stated “that is the standard contract for purchasing debt.” Based on his review of the file and his experience, Beach stated that Exhibit 1 was the purchase agreement that Lodge’s account fell under. Beach further testified that he was familiar with the method and manner of preparation of the documents such as Exhibit 1, and asserted that such documents were prepared in the ordinary course of business, and “would have had to been” prepared at or near the time of the transaction reflected in the documents. Beach could not testify to the actual mode or time of preparation of these particular documents.

Beach also identified Exhibit 2, a copy of the front and back side of the check provided to Lodge by HSBC. Exhibit 2 was also admitted into evidence over Lodge’s objection.

The trial court entered judgment in favor of Asset in the amount of $5,181.00. Lodge now appeals.

We will address Lodge’s third point first because it is dispositive. In her third point, Lodge asserts the trial court erred and abused its discretion in admitting Exhibits 1 and 2 into evidence. Lodge contends the documents did not constitute the business records of Asset because they were not created by Asset in the ordinary course of Asset’s business at or near the time of the events they purported to record. We agree.

Before a document may be received in evidence, it must meet a number of foundational requirements including relevancy, authentication, the best evidence rule, and hearsay. Estate of West v. Moffatt, 32 S.W.3d 648, 653 (Mo.App. W.D.2000). The authenticity of a document cannot be assumed, and what it purports to be must be established by proof. Id. Thus, before a document can be admitted into evidence and considered by the trial court, its proponent must show that it is, in fact, what it is purported to be. Id. The determination of whether a sufficient foundation was laid for admission of the evidence is within the sound discretion of the trial court. Id. Therefore, there can be no error absent a showing that the court abused its discretion. C & W Asset Acquisition, LLC v. Somogyi, 136 S.W.3d 134, 137 (Mo.App. S.D.2004).

Section 490.680, RSMo 2000, which sets forth the foundational requirements for a document to be admitted under the business record exception to the hearsay rule, provides:

A record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.

The qualification of records within the business records exception to the hearsay rule requires testimony as to the mode of preparation of the record and that it was made at or near the time of the act, condition or event it purports to show. Estate of West, 32 S.W.3d at 653. A witness is qualified to testify regarding a business record if he or she has sufficient knowledge of the business operation and methods of keeping records of the business to give the records probity. Id.

Exhibits 1 and 2 do not meet the statutory requirements for admission under the business records exception. The only testimony regarding the documents came through Beach, an employee of Asset. Beach could not specifically testify to the mode of the documents preparation or the time of their preparation given the documents were prepared by HSBC. Although personal knowledge of the sponsoring witness as to the mode of preparation of the documents sought to be admitted as business records is not required for the admission of those documents, C & W Asset Acquisition, LLC v. Somogyi, 136 S.W.3d at 137, these documents were not even prepared by Asset in its ordinary course of business. The documents prepared by HSBC were merely transferred to Asset by HSBC as part of the transaction between Asset and HSBC.

In Zundel v. Bommarito, 778 S.W.2d 954, 958 (Mo.App. E.D.1989), the court held “[t]he business records exception to the hearsay rule applies only to documents generated by the business itself.” Thus, documents that are part of a file belonging to a holder’s business but were not generated or prepared by the holder in the holder’s ordinary course of business do not fall under the business records exception. Id. In Zundel, the court found the trial court properly excluded documents contained in a file that were not generated by the holder in the business’s ordinary course of business but were generated elsewhere. Id. The court in Zundel stated, “[wjhere the status of the evidence indicates it was prepared elsewhere and was merely received and held in a file but was not made in the ordinary course of the holder’s business it is inadmissible and not within a business record exception to the hearsay rule under [Section] 490.680.” Id.

In the present case, as in Zundel, Asset did not prepare the documents in question, but rather only received the documents from HSBC and held them in their files. Beach was not qualified to testify regarding documents not prepared by Asset. Thus, the documents do not fall under the business records exception. The trial court erred and abused its discretion in admitting Exhibits 1 and 2 into evidence under the business records exception. Point granted.

To warrant reversal, improperly admitted evidence must have prejudiced the defendant. Alberswerth v. Alberswerth, 184 S.W.3d 81, 102 (Mo.App. W.D.2006). “Unless the error materially affects the merits of the action, the judgment should not be reversed.” Id. Clearly, as the only evidence supporting Asset’s claim of breach of contract, the erroneous admission of the documents in Exhibits 1 and 2 prejudiced Lodge.

In the absence of this evidence, there is no other evidence and the judgment is not supported by substantial evidence. Thus, we need not remand for a new trial. See American Family Mut. Ins. Co. v. Millers Mut. Ins. Ass’n, 971 S.W.2d 940, 942 (Mo.App. E.D.1998).

The judgment is reversed.

KURT S. ODENFELD, P.J., and NANNETTE A. BAKER, J., concur.

      . Accordingly, we need not specifically address Lodge’s first and second points.


author: PER CURIAM.

text:
    Charles REEDER, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93723.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 28, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 17, 2010.
    Application for Transfer Denied Dec. 21, 2010.
    Edward Thompson, MO Public Defender Office, St. Louis, MO, for appellant.
    Shaun Mackelprang, MO, John Reeves, Co-Counsel, Jefferson City, for respondent.
    Before KURT S. ODENWALD, P.J., ROBERT G. DOWD, JR., J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Charles L. Reeder (“Movant”) appeals from the judgment of Circuit Court of the City of St. Louis denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. We affirm.

We have reviewed the briefs of the parties and the record on appeal. The findings and conclusions of the motion court are based on findings of fact that are not clearly erroneous. No error of law appears. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

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

      . All rule references are to Mo. Sup.Ct. R. (2010), unless otherwise indicated.


text:
    STATE of Missouri, Appellant, v. Carlos Lamont FISHER, Respondent.
    No. ED 93587.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 28, 2010.
    Application for Transfer to Supreme Court Denied Nov. 2, 2010.
    Application for Transfer Denied Dec. 21, 2010.
    Michael Cross, St. Louis, MO, for appellant.
    Shaun Mackelprang, Jefferson City, MO, for respondent.
    Before KURT S. ODENWALD, P.J., ROBERT G. DOWD, Jr., J„ and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Carlos Fisher (“Defendant”) appeals from the judgment entered upon a jury verdict convicting Defendant of possession of a controlled substance in violation of Section 195.202. The trial court sentenced Defendant to ten years’ imprisonment. We find no error and affirm.

No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

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

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


author: GARY W. LYNCH, Judge.

text:
    Ashley LYNCH, Plaintiff-Appellant, v. SHELTER MUTUAL INSURANCE COMPANY, Defendant-Respondent.
    No. SD 30270.
    Missouri Court of Appeals, Southern District, Division One.
    Oct. 7, 2010.
    Motion for Rehearing and Transfer Denied Oct. 27, 2010.
    Application for Transfer Denied Dec. 21, 2010.

      Jason M. Pottenger, Hans H.van Zan-ten, and Thomas R. Onik, Yonke & Potten-ger, L.L.C., Kansas City, MO, for Appellant.
    Angela K. Drake and Kory D. Stubble-field, Lowther Johnson, Attorneys at Law, L.L.C., Springfield, MO, for Respondent.
   GARY W. LYNCH, Judge.

Ashley Lynch sued Shelter Mutual Insurance Company (“Shelter”) seeking $200,000.00 in underinsured motorist benefits under the terms of four Shelter insurance policies for injuries that resulted from a motor vehicle collision. The trial court entered summary judgment in favor of Shelter, holding that, due to the unambiguous set-off clause and anti-stacking language in the Underinsured Motorist (“UIM”) Endorsement to each policy, Shelter did not owe any money to Lynch. On appeal, Lynch contends that the set-off and anti-stacking provisions are ambiguous and should be construed in favor of coverage. Finding no ambiguities as alleged by Lynch, we affirm the trial court’s judgment.

Factual and Procedural Background

On July 1, 2006, Lynch was a passenger in Michael Glavin’s vehicle when Glavin lost control of the vehicle, causing it to strike a guard rail. As a result of the accident, Lynch sustained various and severe injuries, including a right pelvis fracture, a skull fracture, a fracture to the sacroiliac joint, and a herniated disk. The parties stipulate that Lynch suffered in excess of $300,000.00 in damages as a result of the accident.

Glavin’s insurer at the time, SAFECO Insurance Company of America (“SAFE-CO”), provided a policy with liability limits of $100,000.00 per person and $300,000.00 per occurrence. SAFECO paid the policy limit of $100,000.00 to Lynch in settlement of any and all claims she might have against Glavin.

At the time of the accident, Lynch was an insured under four separate policies issued by Shelter, each covering a different vehicle. All four policies were in full force and effect at the time of the collision. Each included a declared limit of liability for underinsured motorist coverage in the amount of $50,000.00 per person and $100,000.00 per occurrence. Lynch filed a petition against Shelter in August 2008 seeking $200,000.00 in underinsured motorist coverage under the terms of the four Shelter policies. In claiming this amount, she asserted that the $50,000.00 declared limit of liability of each of the four policies should be “s tacked” together.

The relevant provisions of the UIM Endorsement, which is the same for each policy, are as follows:

ADDITIONAL DEFINITIONS USED IN THIS ENDORSEMENT As used in this Coverage E-l,
(2) Damages means the full amount of compensation due for bodily injury.
(3) Uncompensated damages means the portion of the damages which exceeds the total amount paid or payable to an insured by, or on behalf of all persons legally obligated to pay those damages.
INSURING AGREEMENT FOR COVERAGE E-l
If an insured sustains bodily injury as a result of an accident involving the use of a motor vehicle, and is entitled to damages from any person as a result of that bodily injury, we will pay the uncompensated damages subject to the limit of our liability stated in this endorsement.
LIMIT OF OUR LIABILITY
The limit of liability for this Coverage will be the limit of liability stated for this particular endorsement number in the Declarations, subject to the following limitations:
(2) The limit of liability stated in the Declarations will be reduced by all amounts paid or payable to the insured making the claim by, or on behalf of, all persons legally obligated to pay any portion of the damages to that insured.
(5) Regardless of the number of:
(a) vehicles involved in the accident,
(b) persons insured,
(c) claims made, or
(d) premiums paid,
the limits for this Coverage may not be added to, combined with, or stacked onto the limits of other under-insured motorists coverage to determine the total limit of underinsured motorists coverage available to any insured for any one accident.
OTHER INSURANCE
If an insured’s claim under this Coverage arises out of bodily injury sustained while occupying the described auto, no other policy of underinsured motorist insurance, issued by us will apply to such a claim. However, the insurance provided by this Coverage will apply as excess insurance over any other company’s underinsured motorists insurance available to the insured as a result of the same accident. The insurance under this policy will then apply only if the total of the limits of all such other insurance is less than the limit of liability of this Coverage. In that instance, we will be liable, under this Coverage, for only that amount by which its limit of liability exceeds the total limits of all such other insurance.

Shelter filed a motion for summary judgment asserting that because Glavin’s insurance company paid Lynch $100,000.00, the set-off provision of subsection (2) under the “Limit of Our Liability” section of the Endorsement reduced Lynch’s recovery to zero, because the per-person declared liability limit of $50,000.00 must be reduced by the $100,000.00 paid by Glavin’s insurer. Furthermore, Shelter argued that the anti-stacking language found in subsection (5) under that same section unambiguously prohibited stacking.

The trial court entered judgment in favor of Shelter on all of Lynch’s claims. Lynch’s timely appeal followed.

Standard of Review

We review a trial court’s grant of summary judgment de novo and view the record in the light most favorable to the party against whom judgment was entered. Seeck v. Geico Ins. Co., 212 S.W.3d 129, 182 (Mo. banc 2007); American Std. Ins. Co. v. Hargrave, 34 S.W.3d 88, 89 (Mo. banc 2000). Summary judgment is appropriate where there is no genuine issue as to material fact and the movant is entitled to judgment as a matter of law. American Std. Ins. Co., 34 S.W.3d at 89.

“The interpretation of an insurance policy is a question of law that this [Cjourt determines de novo.” Jones v. Mid-Century Ins. Co., 287 S.W.3d 687, 690 (Mo. banc 2009). “In construing the terms of an insurance policy, this Court applies ‘the meaning which would be attached by an ordinary person of average understanding if purchasing insurance,’ and resolves ambiguities in favor of the insured.” Id. (quoting Seeck, 212 S.W.3d at 132; Martin v. United States Fid. & Guar. Co., 996 S.W.2d 506, 508 (Mo. banc 1999)).

Discussion

The determinative issue on appeal is whether the UIM Endorsement provisions in Shelter’s policy are ambiguous. On this issue, Lynch raises two points on appeal. We address them in the order presented.

No ambiguity in set-off provisions

Lynch contends in her first point that, by using ambiguous set-off language in the UIM Endorsement, Shelter improperly set off the payments made by Glavin’s insurance company from its declared liability limits and the trial court’s judgment in favor of Shelter on this point was erroneous. Specifically, Lynch argues that

the definitions contained within the UIM Endorsement indicate [Lynch] was to be compensated for the full extent of the damages she sustained up to the stated policy limits after deducting any amounts paid by the tortfeasor from [Lynch’s] total damages; and the Limit of Our Liability section purports to compensate [Lynch] up to the maximum limit of liability stated in the policy Declarations but uses set-off language to then take that coverage away.

Ambiguity exists “when there is duplicity, indistinctness, or uncertainty in the meaning of the language in the policy.” Jones, 287 S.W.3d at 690 (quoting Seeck, 212 S.W.3d at 132). “Language is ambiguous if it is reasonably open to different constructions.” Id. Furthermore, “if a contract promises something at one point and takes it away at another, there is an ambiguity.” Seeck, 212 S.W.3d at 132. Policy language that is ambiguous will be construed against the insurer. Id. Disagreement between the parties regarding the interpretation of a term or clause in an insurance policy, however, does not create an ambiguity. Windsor Ins. Co. v. Lucas, 24 S.W.3d 151, 153 (Mo.App.2000) (citing Lang v. Nationwide Mut. Fire Ins. Co., 970 S.W.2d 828, 830 (Mo.App.1998)). A court is not permitted to create an ambiguity or distort the language of an unambiguous policy in order to enforce a particular construction that it deems more appropriate. Rodriguez v. Gen. Accident Ins. Co., 808 S.W.2d 379, 382 (Mo. banc 1991). Absent any ambiguity, an insurance policy ■will be enforced according to its terms. Id. Finally, it is well established that “[c]ourts should not interpret policy provisions in isolation but rather evaluate policies as a whole.” Ritchie v. Allied Property & Cas. Ins. Co., 307 S.W.3d 132, 135 (Mo. banc 2009).

Focusing on the definition of “uncompensated damages,” the premise of Lynch’s ambiguity argument in this point is that “[t]he definitions within the Endorsement dictates [sic] that [Lynch] would be compensated for ‘the portion of the damages which exceeds the total amount paid or payable’ to [Lynch] by the negligent tortfeasor — Michael Glavin.” Relying upon the language in Seeck, 212 S.W.3d at 132, she then reasons from this premise that the set-off language in subsection 2 of the limitation of liability section takes away this promised compensation, thereby creating an ambiguity. The flaw in this argument is that the premise is faulty. While the definition of “uncompensated damages” describes a formula for ascertaining the existence and amount of such damages, it contains no promise of compensation. Such a promise must be found elsewhere in the policy.

According to the “INSURING AGREEMENT FOR COVERAGE E-l,” Shelter agreed to pay Lynch her “uncompensated damages subject to the limit of our liability stated in this endorsement.” While this policy language promises coverage for “uncompensated damages,” the “subject to” clause immediately after that defined term clearly and plainly suggests to the ordinary person of average understanding that Shelter’s liability for Lynch’s uncompensated damages is not absolute but is subject to the “limit of our liability” in the policy. The application of this promise of coverage is straightforward and unambiguous under the other provisions in the policy endorsement.

A few paragraphs after the insuring agreement appears a section aptly titled, “LIMIT OF OUR LIABILITY.” This section provides that Shelter will only be liable for the agreed-upon declared liability limit, which in this case is $50,000.00, subject to the “following limitations.” Included in the list of limitations is subsection 2, which states, “The limit of liability stated in the Declarations will be reduced by all amounts paid or payable to the insured making the claim by, or on behalf of, all persons legally obligated to pay any portion of the damages to that insured.” Here, the latter clause refers to Glavin, whose insurer paid $100,000.00 in damages to Lynch. The application of subsection 2 sets off the $100,000.00 paid by Glavin’s insurer against the $50,000.00 declared liability limit for underinsured motorist coverage. Applying this straightforward calculation, the total amount due to Lynch under the UIM Endorsement is $50,000.00 minus $100,000.00, which equals an amount less than zero. Thus, Shelter owes zero to Lynch for uncompensated damages.

Given the clarity with which the policy states that Shelter will pay uncompensated damages “subject to” the limit of its liability and then later explicitly defines the contours of that limit, an ordinary person of average understanding could not read the policy endorsement provisions otherwise.

Moreover, this set-off language tracks the set-off language that was discussed and approved by the Supreme Court of Missouri in Rodriguez, 808 S.W.2d at 383. In that case, the insurance contract provided that “the limit of liability shall be reduced by all sums paid because of the ‘bodily injury’ by or on behalf of persons or organizations who may be legally responsible.” Id. at 382. The Court held that this limitation on underinsured motorist coverage was “neither ambiguous nor misleading.” Id. Likewise, we hold that the set-off provision here is similarly unambiguous.

Rodriguez is by no means an anomaly, for Missouri courts have long held that unambiguous set-off provisions in insurance policies are enforceable. In Krombach v. Mayflower Ins. Co., the Supreme Court of Missouri found the set-off provision at issue to be ambiguous, but noted that the insurance company could have properly effected a set-off if it had only done so “in plain and unequivocal terms.” 827 S.W.2d 208, 211 (Mo. banc 1992). The Court cited the policy in Rodriguez as an example of unambiguous set-off language. Id. See also Nolan v. American States Preferred Ins. Co., 851 S.W.2d 720 (Mo.App.1993) (upholding the enforcement of an underinsurance policy reduction clause very similar to Shelter’s in the case at bar). Most recently, in Ritchie, our Supreme Court affirmed unequivocally that unambiguous set-off provisions are enforceable, even though it construed the particular set-off provision at issue as ambiguous and in conflict with other sections of the policy. 307 S.W.3d at 140-41. In that case, the insurance company provided underinsured motorist coverage at a limit of $100,000.00 per person. Id. In a relevant footnote, the majority explained:

The dissent is incorrect in characterizing this opinion as holding that limitation of liability clauses are never enforceable. A policy that plainly states it will only pay the difference between the amount recovered from the underinsured motorist and $100,000 is enforceable. In such a case, the mere fact that $100,000 will never be paid out is not misleading, for the policy never suggests that this is its liability limit and never implies that it may pay out that amount....

Id. at 141 n. 10.

Accordingly, in the instant case, Shelter’s UIM Endorsement plainly states it will pay only the insured’s “uncompensated damages” subject to the limit of liability contained in the UIM Endorsement. The limits that follow make it clear that Shelter is only liable for the difference between the $50,000.00 coverage amount and any payments already made by the tortfeasor. The policy — while it contains a degree of nuance, in that one must read all the sections together before accurately understanding the limit of liability — never states or even implies that Shelter promises to pay the full amount of its coverage limit without first reducing amounts already paid by one legally obligated to do so. Indeed, “definitions, exclusions, conditions are necessary provisions in insurance policies. If they are clear and unambiguous within the context of the policy as a whole, they are enforceable.” Todd v. Missouri United School Ins. Council, 223 S.W.3d 156, 163 (Mo. banc 2007).

Embedded within Lynch’s argument is the assertion that “Shelter is entitled to twice reduce its limit of liability by all amounts paid to [Lynch] by the tortfea-sor.” Lynch not only failed to include this claim in her point relied on, but also failed to demonstrate in her argument how any such alleged double reduction occurs under any interpretation of the language used in the endorsement.

Lynch correctly points out that the endorsement employs the phrase, “the total amount paid or payable to an insured by, or on behalf of all persons legally obligated to pay those damages[,]” as part of the definition of “uncompensated damages” and that in the “LIMIT OF OUR LIABILITY” section, the declared limit of liability is “reduced by all amounts paid or payable to the insured making the claim by, or on behalf of, all persons legally obligated to pay any portion of the damages to that insured.” Nowhere in her argument, however, does she explain or demonstrate how this parallel use of setoff language operates in a cumulative manner to allow or provide for a double reduction for the amounts paid by or on behalf of the tortfeasor in the amount due the insured under the endorsement. The definition of “uncompensated damages” addresses the existence and amount of such damages, a threshold coverage issue, while the limit of liability language addresses the amount payable by the insurer toward those damages, if they exist in the first instance. Lynch has failed to advance any other interpretation an ordinary person of average understanding would attach to these provisions that would allow the insurer a double reduction for the amounts paid by the tortfeasor.

In support of this assertion, Lynch cites to Buck v. Am. Family Mut. Ins. Co., 921 S.W.2d 96 (Mo.App.1996). Buck is not applicable because it involves a UIM policy with completely different language and structure than the policy at issue here. Id. at 97-98. There, set-off language was used in the definition of “underinsured motor vehicle” and in the limit of liability section that also expressly relied upon the “underinsured motor vehicle” defined term. Id. This cumulative use of set-off language was found to be duplicitous and, therefore, ambiguous. Id. at 98. Here, there is no such cumulative use of set-off language. The defined term “uncompensated damages” is not mentioned in the “LIMIT OF OUR LIABILITY” section. This difference alone distinguishes Buck without any need for further consideration of the other language and structural differences in the respective UIM policies.

Lynch also argues that to interpret the policy as allowing a set-off would render ambiguous and deceptive the UIM Endorsement’s statement in the insuring agreement section that “we will pay the uncompensated damages[.]” Lynch might be right if the sentence ended at that point, but it does not. As we have discussed, the UIM Endorsement specifies that Shelter will pay uncompensated damages “subject to the limit of our liability stated in this endorsement.” The language is unequivocal and the “LIMIT OF OUR LIABILITY” section sufficiently explains the application of the set-off. Lynch simply attempts to consider one portion of a sentence in isolation and lifted out of context in order to create ambiguity where none exists.

Lynch further argues that Jones, 287 S.W.3d at 693, controls and supports her construction of the policy language that would require Shelter to pay the declared $50,000.00 limit of liability under each policy. This analysis is misguided, however, because the policy in Jones contained an obvious deficiency not present in the Shelter policy. It read:

[T]he most we will pay will be the lesser of:
1. The difference between the amount of an insured person’s damages for bodily injury, and the amount paid to that insured person by or for any person or organization who is or may be held legally liable for the bodily injury; or
2. The limits of liability of this coverage

Jones, 287 S.W.3d at 690.

The mistake in the policy, as the Court noted, is that it failed to include the following words at the end of the second option: “minus the amount already paid to that insured person.” Id. at 691. Without these added words of clarification, the policy language implied that the insurance company would pay up to the full extent of its policy limits if that equaled the lesser of the two amounts, a promise that contradicted another section of the policy not reproduced here. Id. Due to this inconsistency, the Court held the policy to be ambiguous, for an insurance contract cannot promise coverage in one place and then take it away in another. Id. at 692-93. Shelter’s policies here do not suffer from this mistake, for the UIM Endorsement plainly states that its limit of liability will be reduced by amounts paid by one legally required to make a payment, i.e., the tortfeasor. Because “the holding in Jones was specific to deficient drafting of a policy that created a promise to pay the full amount,” Jones has no bearing on the outcome of this case. See Ritchie, 307 S.W.3d at 143 (Price, J., dissenting).

Because of the clarity with which the underinsured motorist coverage is defined in the UIM Endorsement, we hold that the extent of the coverage is neither ambiguous nor misleading. Furthermore, the meaning of the set-off provision is plain and unequivocal. The $50,000.00 coverage limit provided for in the policy was properly reduced by the $100,000.00 payment from Glavin’s insurer; therefore Lynch is not entitled to any payment from Shelter. Lynch’s first point is denied.

No ambiguity in anti-stacking provisions

Lynch claims in her second point that the trial court erred in granting summary judgment in favor of Shelter on the issue of stacking because the anti-stacking provisions in the UIM Endorsement are ambiguous. As a result, Lynch asserts that the anti-stacking provisions are not enforceable and, thus, the coverage provided by the four Shelter policies should be stacked to provide her a total of $200,000.00 in UIM coverage.

“ ‘Stacking’ refers to an insured’s ability to obtain multiple insurance coverage benefits for an injury either from more than one policy, as where the insured has two or more separate vehicles under separate policies, or from multiple coverages provided for within a single policy, as when an insured has one policy which covers more than one vehicle.”

Ritchie, 307 S.W.3d at 135(quoting Niswonger v. Farm Bureau Town & Country Ins. Co. of Missouri, 992 S.W.2d 308, 313 (Mo.App.1999)). Because there is no statutory requirement in Missouri that drivers purchase underinsured motorist coverage, the limits of coverage and any stacking or anti-stacking provisions are determined by the contract entered into by the insured and the insurer — in this case, Shelter and Lynch. See Noll v. Shelter Ins. Co., 774 S.W.2d 147, 151 (Mo. banc 1989). Therefore, as long as the policy language disallowing stacking is unambiguous, the anti-stacking provisions will be enforced according to their terms. Seeck, 212 S.W.3d at 132.

For convenience of the reader, we repeat here the relevant policy language related to stacking:

LIMIT OF OUR LIABILITY
The limit of liability for this Coverage will be the limit of liability stated for this particular endorsement number in the Declarations, subject to the following limitations:
(5) Regardless of the number of:
(a) vehicles involved in the accident,
(b) persons insured,
(e) claims made, or (d) premiums paid,
the limits for this Coverage may not be added to, combined with, or stacked onto the limits of other under-insured motorists coverage to determine the total limit of underinsured motorists coverage available to any insured for any one accident.
OTHER INSURANCE
If an insured’s claim under this Coverage arises out of bodily injury sustained while occupying the described auto, no other policy of underinsured motorist insurance, issued by us will apply to such a claim. However, the insurance provided by this Coverage will apply as excess insurance over any other company’s underinsured motorists insurance available to the insured as a result of the same accident. The insurance under this policy will then apply only if the total of the limits of all such other insurance is less than the limit of liability of this Coverage. In that instance, we will be liable, under this Coverage, for only that amount by which its limit of liability exceeds the total limits of all such other insurance.

Lynch contends that the broad anti-stacking language in subsection 5 of the “LIMIT OF OUR LIABILITY” section is ambiguous when read in conjunction with the first sentence of the “OTHER INSURANCE” section directly below it, because the latter provision describes only one specific circumstance where stacking is not permitted “while occupying the described auto[.]” Because her injuries did not occur while she was occupying a “described auto,” Lynch argues “there is uncertainty as to whether subsection (5)’s anti-stacking language is to be applied to the particular facts of this case, or whether, as required by the anti-stacking language of the ‘Other Insurance’ provision, stacking is only to be prohibited in the special situation where the insured is occupying the ‘described auto.’ ” Lynch reasons that because the two anti-stacking provisions are unclear when taken together, they should be construed in her favor to permit her to stack the policies. This would yield a total coverage amount of $200,000.00 ($50,000.00 coverage limit multiplied by the four policies that covered Lynch at the time of the accident). After applying the set-off provision discussed in Lynch’s first point, supra, stacking the policies in this manner could arguably allow Lynch to recover $100,000.00 from Shelter.

As Lynch concedes, there is no reasonable uncertainty as to the meaning of subsection 5; it clearly disallows stacking in any and every circumstance. Shelter suggests that we focus on the clarity of subsection 5 and disregard the “OTHER INSURANCE” clause because it is irrelevant to this case, in that Lynch was not occupying the “described auto” covered by any of the Shelter policies at the time of the accident.

We initially note that Lynch is asking this Court to lift the first sentence of the “OTHER INSURANCE” section out of the context of that section and consider it in isolation as compared to the general anti-stacking provision in subsection 5 of the “LIMIT OF OUR LIABILITY” section. We are reluctant to do so because, as previously stated, “[cjourts should not interpret policy provisions in isolation but rather evaluate policies as a whole.” Ritchie, 307 S.W.3d at 135.

Considering the policy as a whole, the “OTHER INSURANCE” section addresses the existence, availability and relationship of other UIM insurance to the coverage provided by this policy. It provides that the coverage under this policy is “excess insurance over any other company’s underinsured motorists insurance available to the insured as a result of the same accident.” The first sentence clarifies that if the injury is “sustained while occupying the described auto,” this policy applies to provide such excess coverage to the exclusion of any other UIM insurance issued by the insurer. In this context, nothing in this section relates to stacking as Lynch concedes is prohibited by subsection 5 of the “LIMIT OF OUR LIABILITY” section.

Nevertheless, if we were to consider it out of context, as Lynch suggests, the issue before us, then, would be whether the first sentence of the “OTHER INSURANCE” section, which is seemingly redundant to the general anti-stacking provision in subsection 5 of the “LIMIT OF OUR LIABILITY” section, creates an ambiguity. We find it does not.

Although the first sentence of the “OTHER INSURANCE” section, when considered in isolation, is arguably superfluous and unnecessary in light of subsection 5 of the “LIMIT OF OUR LIABILITY” section, redundancy is not the same as ambiguity. See Purdy v. Farmers Ins. Co. of Idaho, 138 Idaho 443, 65 P.3d 184, 188 (2003) (“Although redundancy may be considered when interpreting an ambiguous provision in an insurance policy, redundancy does not by itself make an insurance policy ambiguous”). Moreover, the two provisions are harmonious and not in conflict, because both prohibit the insured from stacking multiple policies in the situation where the insured suffers bodily injury while occupying the “described auto” under a policy. This is not a situation where the policy allows stacking in one section and then reneges on that promise in another section, see Seeck, 212 S.W.3d at 134, because neither of the provisions allow stacking.

In order to find ambiguity on this point, we would have to infer the existence of an additional sentence in the “OTHER INSURANCE” section. That sentence would read something like: “If the injury occurs while not occupying the described auto, stacking is permitted.” We simply will not insert a sentence into a policy to create ambiguity where none exists, and this is essentially the leap that Lynch is asking us to make. See Nolan, 851 S.W.2d at 723 (stating that “[c]ourts will not create an ambiguity in order to distort the language of an unambiguous insurance policy.”). Furthermore, it is unreasonable to think an ordinary person of average understanding would, after reading both anti-stacking provisions, assume and mentally insert that additional sentence and as a result be confused as to whether stacking is ever allowed under the policy.

Therefore, because the anti-stacking provisions are clear in meaning, we interpret them according to their terms. Lynch is not entitled to stack the underin-sured motorist coverage in the four Shelter policies. Lynch’s second point is denied.

Decision

The trial court’s judgment is affirmed.

BARNEY, P.J., and BURRELL, J., concur.

      . The "Declarations” page for each policy provided, in pertinent part: "THE FOLLOWING ENDORSEMENTS ARE A PART OF THIS POLICY AND ARE ATTACHED: A-577.1-A UNDERINSURED MOTORISTS $50,000 PER PERSON/ $100,000 PER ACCIDENT[.]”

      . We distinguish the policy in the present case from the one in Ritchie, which our Supreme Court determined to be ambiguous. In Rit-chie, as the Court noted, the set-off provision on which the insurer relied "conflicted with the clear statement in other portions of the policy that the stated limit of liability is the ‘most we will pay’ and that 'we will pay up to the limits of liability shown in the schedule.' ” Ritchie, 307 S.W.3d at 140. Here, Shelter's policy does not contain this "most we will pay” language, and furthermore contains the essential "subject to the limit of our liability” clarification that was not present in the Rit-chie policy.

      . Similarly, Lynch’s reliance on Buck v. Am. Family Mut. Ins. Co., 921 S.W.2d 96 (Mo.App.1996) is misplaced. The policy in Buck initially promised coverage without reservation by stating, "We will pay compensatory damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an underinsured motor vehicle[,]” while elsewhere limiting that coverage in the Limits of Liability section of the policy. Id. at 97. The Eastern District of our Court determined that the application of the Limits of Liability section to deny the promised coverage "would completely take away on the one hand what [the policy] purports to offer with the other." Id. at 99. As discussed, supra, the promise of coverage here has the express reservation that it is subject to the limit of liability.

      . In analyzing this point, we assume arguendo that the set-off amount is applied once to the total stacked amount of coverage rather than applied to each individual policy’s limit of liability, which would deny any recovery. Given that neither party addressed this issue in their briefs and our determination that the coverages cannot be stacked in any event, this issue need not be addressed or decided.


text:
    Larry LOCKHART, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 93681.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 12, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 23, 2010.
    Jo Ann Rotermund, Assistant Public Defender, Eastern Appellate/PCR Division, Public Defender’s Office, St. Louis, MO, for appellant.
    Chris Koster, Robert J. Bartholomew, Attorney General, Jefferson City, MO, for respondent.
    Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J., and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Movant, Larry Lockhart, appeals from the judgment denying on the merits his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. The findings and conclusions of the motion court are not clearly erroneous, and an extended opinion would have no prece-dential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order affirming the judgment pursuant to Rule 84.16(b).


text:
    KING, KREHBIEL, HELLMICH & BORBONUS, LLC, Plaintiff/Respondent, v. Carl D. ESSEN, Defendant/Appellant.
    No. ED 94161.
    Missouri Court of Appeals, Eastern District, Division Five.
    Oct. 12, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 17, 2010.
    Application for Transfer Denied Dec. 21, 2010.
    Jane C. Hogan, St. Louis, MO, for Appellant.
    Vincent D. Vogler, James E. Klene, St. Louis, MO, for Respondent.
    Before GARY M. GAERTNER, JR., P.J., and MARY K. HOFF, J., and PATRICIAL. COHEN, J.
   ORDER

PER CURIAM.

Carl D. Essen (Essen) appeals from the trial court’s judgment in favor of King, Krehbiel, Hellmich, and Borbonus, LLC (Respondent). Following a bench trial, the trial court found that Respondent was entitled to recover on a contract for an account of $5,475.00 plus interest. We find that substantial evidence supports the trial court’s judgment and we affirm the judgment.

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

We affirm the trial court’s judgment pursuant to Rule 84.16(b).


author: JEFFREY W. BATES, Judge.

text:
    Antonio AMERSON, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. SD 29983.
    Missouri Court of Appeals, Southern District, Division One.
    Oct. 15, 2010.
    Motion for Rehearing or Transfer Denied Nov. 8, 2010.
    Application for Transfer Denied Dec. 21, 2010.

      Jessica Hathaway, St. Louis, MO, for Appellant.
    Chris Koster, Atty. Gen., Daniel McPherson, Asst. Atty. Gen., St. Louis, MO, for Respondent.
   JEFFREY W. BATES, Judge.

Antonio Amerson (Amerson) appeals from the denial of his Rule 29.15 motion for post-conviction relief without an evi-dentiary hearing. We affirm.

I. Factual and Procedural Background

Amerson was a passenger in a car being driven by Albert Daniels. While Daniels was approaching a stop sign, Casio Armour drove up in another vehicle. Cory Clay was in the front passenger seat of Armour’s vehicle. Clay flagged down Daniels and exited Armour’s car. Clay suspected Daniels of stealing the speakers from Clay’s vehicle. After talking for about 10 seconds, Clay pulled out a pistol and fired four shots. Daniels was killed, and Amerson was seriously wounded. He got out of the vehicle and ran between two nearby houses. Paramedics and police found Amerson lying on the ground beside a chain link fence with $989 on his person.

Sgt. Terry Mills of the Missouri Highway Patrol helped collect evidence at the crime scene. In the slats of a wooden fence near the place where Amerson had been lying, Sgt. Mills discovered individually packaged quantities of crack cocaine. Sgt. Mills later questioned Amerson at the hospital. During that interview, Sgt. Mills asked Amerson about the cocaine that had been found in the slats of the wooden fence. At first, Amerson denied that the drugs were his. Eventually, however, he admitted that the crack cocaine was his and that police would find his fingerprints and blood on the bag. Amerson denied that he intended to distribute the cocaine.

The amended information charged Am-erson with committing the class B felony of possessing cocaine, a controlled substance, with the intent to deliver. See § 195.211. His case was tried to a jury. Prior to voir dire, the trial court read instruction MAI-CR 3d 300.02 to the veni-re. In relevant part, this instruction stated:

The Court will now read to you an instruction on the law applicable to all criminal cases.
The charge of an offense is not evidence, and it creates no inference that any offense was committed or that the defendant is guilty of an offense.
The defendant is presumed to be innocent unless and until, during your deliberations upon your verdict, you find him guilty. This presumption of innocence places upon the state the burden of proving beyond a reasonable doubt that the defendant is guilty.
A reasonable doubt is a doubt based upon reason and common sense after careful and impartial consideration of all the evidence in the case.
Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. The law does not require proof that overcomes every possible doubt. If, after your consideration of all the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you will find him guilty. If you are not so convinced, you must give him the benefit of the doubt and find him not guilty.
Is there any of you who, if selected as a juror, could not, for any reason, follow that instruction? If so, would you please raise your hand.

The record reflects no venireperson responded to this question.

The venire was questioned first by the prosecutor. During his voir dire, he made the following statements:

There are probably people on the, on this, in this jury panel, who detest drug use. Just because you have a negative feeling about drugs, or drug user[s], or drug sellers does not necessarily make you an unfair juror. All you have to do to be fair is to follow the judge’s instructions and decide this case based on the facts of this case. If everybody who detested drugs refused to be fair, then drug cases would be judged by persons who do not detest drugs, and that would not be fair. Knowing that, is there anybody who would not be fair to both sides regardless of their feelings about drugs if they serve on the jury? If so, please raise your hand. You might be thinking to yourself, well, that’s hard to do. And, maybe, so, but to get good fair juries, we have to ask you to do that. For example, nobody likes child murderers, a rapist, but in order to get a fair juror on those types of cases, we have to have people that will be fair to both sides, so that’s why I ask you. A trial is a search for the truth of a case. It is not a search for reasonable doubt. Does anyone disagree with that statement? Please raise your hand if you do. Does anyone believe that in order to find a person guilty beyond a reasonable doubt of anything that you, the jury would have to have seen the crime committed with your own eyes? Of course, you wouldn’t be on the jury if that were the situation[.] But does anyone feel that way, you can’t find anybody guilty beyond a reasonable doubt unless I saw it? Does anyone feel like that? My burden of proof in this case, as in all criminal cases, is proof beyond a reasonable doubt....

Amerson’s counsel did not object to any of the prosecutor’s statements, and the record reflects no response by a venireper-son to any of the prosecutor’s inquiries. During Amerson’s voir dire of the venire, defense counsel stated:

Mr. Amerson has been charged with a very serious crime, and he has pled not guilty.... Is there anybody here that feels that because the Prosecutor has said he is guilty, or because he is sitting here as a defendant, that he must be guilty? If so, please raise your hand_Mr. Amerson is presumed innocent until proven guilty. I’m sure /all have heard of it, or presumed innocent until proven guilty. That started today when he walked into the courtroom, you had to say, as a juror, you must sit here and say, he’s presumed innocent until the Prosecutor proves beyond a reasonable doubt that he’s guilty. Is there anybody here that cannot, or will have a problem with presuming Mr. Amerson’s innocence until he is proven guilty? If so, please raise your hand. The State has the burden of proof in this case. Which means, the Prosecutor must prove that Mr. Amerson is guilty beyond a reasonable doubt. This means that you must be firmly convinced that what the Prosecutor says Mr. Amerson did, he did. This is the highest degree of standard, standard of, standard of proof that the Prosecutor will have to prove. Does anybody think this burden is too high? If so, please raise your hand.

The record reflects no response by a veni-reperson to any defense counsel’s questions.

Just prior to closing argument, the trial court read the instructions to the jury. Instruction No. 4 informed the jurors that the State bore the burden of proof. This instruction, which was based upon pattern instruction MAI-CR 3d 302.04, stated:

The charge of any offense is not evidence, and it creates no inference that any offense was committed or that the defendant is guilty of an offense.
The defendant is presumed to be innocent, unless and until, during your deliberations upon your verdict, you find him guilty. This presumption of innocence places upon the state the burden of proving beyond a reasonable doubt that the defendant is guilty.
A reasonable doubt is a doubt based upon reason and common sense after careful and impartial consideration of all the evidence in the case.
Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. The law does not require proof that overcomes every possible doubt. If, after your consideration of all the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you will find him guilty. If you are not so convinced, you must give him the benefit of the doubt and find him not guilty.

After all of the instructions were read, the State gave the opening portion of its closing argument. After thanking the jurors for their attention to the case, the prosecutor stated:

Our nation faces a lot of terrible problems, and one of them is the drug problem. Drugs kill hope, innocence, and ambition. It’s been stated that we have a war on drugs. If we’re really fighting a war on drugs, then we’re losing. It seems like every time you hear about a crime, you hear the words drug related, or drugs were involved, and, often, it is crack cocaine, or cocaine. In this case we have a murder, an assault first, and we have drugs. Drugs are at epidemic level, especially among our young people. At one point in time, in the history of man kind, we could run away from those kind of problems. That’s the type of problems that we’re facing today in regard to serious crimes. Used to be that drugs were only in the cities. Not rural areas. Certainly not in Southeast, Missouri. I can remember when we didn’t have any, I, I’m sure maybe some of you can as well, but, unfortunately we cannot say that anymore. It used to be if you lived in the city, you could move to a rural area, but, today it’s a different world. There’s no place to go. If we want to live in a world that’s fit to live in, we must be willing to fight in our own communities. That’s what I’m asking to you do today, by your verdict, is to fight against those who bring crime, and, drugs in our communities.

Defense counsel did not object to this argument.

The prosecutor then summarized the evidence that had been presented and explained why it supported Amerson’s conviction. Toward the end of the prosecutor’s argument, he made the following statements:

The defense attorney is probably gonna talk to you some about reasonable doubt. You will all remember in voir dire, I asked you all, and you all agreed, that a trial is a search for the truth, not a search for reasonable doubt. Well there’s no reasonable doubt in this case, folks. And you’ve got the definition in your Instruction No. Four. “Reasonable doubt is a doubt based on reason and common sense. It does not require proof that overcomes every possible doubt.” It’s common sense, folks, you recall on voir dire, you use it everyday, that’s the reason why when you meet a car on the highway, you don’t run into the ditch. That’s the reason why when you go to the bank and you want to deposit a hundred in the checking account, you go there, and you give the teller the hundred. Well, why do you do that? Well that teller might steal your hundred dollars and not put it in your cheeking account, but you believe beyond a reasonable doubt they’re gonna put it in your checking account, or you wouldn’t give them the hundred dollars. Reasonable doubt is all about the common sense, folks.

Defense counsel did not object to this argument.

During Amerson’s closing argument, defense counsel made the following responsive argument:

One of the first questions I asked you about this morning, earlier this morning when I first spoke to you, was not guilty until proven innocent. And, when y’all go back to that jury room, you’re supposed to start out, Mr. Amerson is innocent. We have to find the evidence that’s shown you beyond a reasonable doubt that he did commit this crime. Talking about reasonable doubt, Mr. Hazel talked about a checking account. You have common sense that the teller is going to deposit that $100 into the checking account, but I guarantee every one of you, I know I do, gets a receipt to make sure that this 100 is actually deposited. There’s a difference between common sense and beyond a reasonable doubt. Getting that receipt is beyond a reasonable doubt. Each of the State’s witnesses today stood up here and told you that they had no personal knowledge of how the drugs got in that fence. Mr. Hazel gave you some, during his closing argument, gave you some pointers on how you could jump to that conclusion. I want to remind you, like the judge said earlier, that our closing arguments are not evidence. The only thing that I want you to consider when you go in that jury room is what you heard from the witness stand.

Defense counsel then reminded the jurors of testimony from several specific witnesses who said they had no personal knowledge of how the drugs in the fence got there. Counsel also reminded jurors of the evidence that a crowd of 15-20 people had gathered at the scene after the shooting occurred. Finally, counsel noted that Clay had returned to the scene after the shooting and had both the opportunity and a motive to tamper with the crime scene. Counsel argued that, “based upon physical evidence that testimony, from the people that you heard from the stand, there is reasonable doubt, there’s a number of possibilities of the way those drugs got to that location.”

During deliberations, the foreman sent out two notes relating to the DNA evidence. The jury convicted Amerson of the charged offense, and he was given a 10-year sentence. On direct appeal, this Court affirmed Amerson’s conviction. See State v. Amerson, 259 S.W.3d 91 (Mo.App.2008).

Amerson filed a timely motion for post-conviction relief pursuant to Rule 29.15. After appointment of counsel, an amended motion was filed. This motion alleged that Amerson’s trial counsel was ineffective in two respects: (1) counsel failed to object and request a curative instruction when the prosecutor stated, during voir dire and again during closing arguments, that a trial is a search for the truth and not a search for reasonable doubt; and (2) counsel failed to object to the State’s closing argument when the prosecutor mentioned that the war on drugs had spread from cities to rural communities. The motion court determined that the case file and records conclusively showed Amerson was not entitled to relief, so his post-conviction motion was denied without an evidentiary hearing. This appeal followed.

II. Standard of Review

Amerson’s two points on appeal assert that trial counsel was ineffective. He bore the burden of proving, by a preponderance of the evidence, that: (1) counsel’s performance did not conform to the degree of skill, care, and diligence of a reasonably competent attorney; and (2) counsel’s poor performance prejudiced the defense. See Rule 29.15(i); Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Hall, 982 S.W.2d 675, 680 (Mo. banc 1998). To satisfy the first prong, Amerson must establish that “counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. To satisfy the second prong, Amerson must establish that, but for counsel’s unprofessional errors, there is a reasonable probability the result of the proceeding would have been different. Strong v. State, 263 S.W.3d 636, 655 (Mo. banc 2008). In order to prevail on an ineffective assistance claim, each prong of the performance and prejudice test must be proven. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987). If one prong is not met, a court need not consider the other. Childress v. State, 248 S.W.3d 653, 654 (Mo.App.2008).

The motion court denied relief without conducting an evidentiary hearing. To be entitled to an evidentiary hearing, Amerson must: (1) allege facts, not conclusions, that would warrant relief if true; (2) these facts must raise matters not refuted by the record and files in the case; and (3) the matters complained of must have resulted in prejudice to Amerson. Barnett v. State, 103 S.W.3d 765, 769 (Mo. banc 2003). If the files and records of the case conclusively show that Amerson is not entitled to any relief, no evidentiary hearing is required. Rule 29.15(h); Barnett, 103 S.W.3d at 769.

Our review is limited to a determination of whether the motion court’s findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k); Smith v. State, 207 S.W.3d 228, 230 (Mo.App.2006). We presume the motion court’s findings and conclusions are correct. Edwards v. State, 200 S.W.3d 500, 509 (Mo. banc 2006). Findings and conclusions are clearly erroneous only if, after a full review of the record, we are left with the definite and firm impression that a mistake has been made. Id:, State v. Taylor, 929 S.W.2d 209, 224 (Mo. banc 1996).

III. Discussion and Decision

Point I

In Amerson’s first point, he contends the motion court clearly erred in denying relief without conducting an evi-dentiary hearing because defense counsel failed to object and ask for a curative instruction when the prosecutor stated in voir dire and closing argument that a trial is a search for the truth and not a search for reasonable doubt. The motion court decided that, if the prosecutor had not made these comments, there was no reasonable probability the verdict would have been different. Amerson argues that he was entitled to an evidentiary hearing on this ground of his motion because there was no reasonable trial strategy for defense counsel’s failure to object, and the prosecutor’s comments diminished and confused the jury about the State’s burden of proof.

We agree that the prosecutor’s comments in voir dire and closing argument border on the limits of what is proper and should not be repeated in other cases. See State v. Tate, 850 S.W.2d 385, 387-88 (Mo.App.1993). We do not agree, however, with Amerson’s argument that these comments diminished the State’s burden of proof or confused the jury in the case at bar. The motion court decided there was no reasonable probability the verdict would have been different if these comments had not been made. The court’s conclusion is not clearly erroneous.

Before voir dire commenced, the trial court read MAI-CR 3d 300.02 to the veni-re. This instruction contained an explanation of the presumption of innocence, the State’s burden of proving Amerson guilty beyond a reasonable doubt and how jurors should decide what constitutes a reasonable doubt. All of the venirepersons agreed to follow this instruction, and there is no contention on appeal that any aspect of this instruction was incorrect.

After the now-challenged comment in voir dire was made by the prosecutor, he reminded jurors that he had to prove Am-erson guilty beyond a reasonable doubt. During voir dire by defense counsel, he reminded the venirepersons that Amerson was presumed innocent. Defense counsel then stated:

The State has the burden of proof in this case. Which means, the Prosecutor must prove that Mr. Amerson is guilty beyond a reasonable doubt. This means that you must be firmly convinced that what the Prosecutor says Mr. Amerson did, he did. This is the highest degree of standard, standard of, standard of proof that the Prosecutor will have to prove. Does anybody think this burden is too high?

Defense counsel’s statement of the law was correct, and none of the venirepersons responded that they believed the State’s burden of proof was too high.

Prior to closing argument, the trial court read Instruction No. 4 to the jury. This pattern instruction, based upon MAI-CR 3d 802.04, told the jurors that: (1) the charges against Amerson created no inference of guilt; (2) he was presumed innocent; (3) the State had the burden of proving Amerson’s guilt beyond a reasonable doubt; (4) a reasonable doubt is “a doubt based upon reason and common sense after careful and impartial consideration of all the evidence in the case”; and (5) proof beyond a reasonable doubt required the jurors to be “firmly convinced” of Amerson’s guilt, but the law did not require proof that overcame every possible doubt. There is no contention on appeal that Instruction No. 4 misstated the law in any respect, and this instruction was available to the jurors during deliberations.

Toward the end of the opening portion of the State’s closing argument, the prosecutor made the now-challenged comment “that a trial is a search for the truth, not a search for reasonable doubt.” Immediately after making that remark, however, the prosecutor told jurors that Instruction No. 4 explained what constituted a reasonable doubt. During Amerson’s closing argument, defense counsel responded to the prosecutor’s argument by reminding the jurors that Amerson was presumed innocent and had to be proven guilty beyond a reasonable doubt. Counsel told jurors that they could only consider the evidence they heard from the witness stand in deciding whether that burden had been met. Counsel reviewed the evidence and pointed out several facts which created reasonable doubt in his view. During deliberations, the jurors sent out two notes. Neither one suggested that jurors were confused in any way about the concept of reasonable doubt. Instead, the record suggests the jurors were focused on the evidence presented at trial because each note asked a question about the DNA evidence introduced by the State.

After reviewing the entire record, we agree with the motion court that there is no reasonable probability the verdict would have been different if the prosecutor’s comments in voir dire and closing argument had not been made. In light of the multiple times the jurors were correctly instructed by the trial court about the presumption of innocence, the State’s burden of proving Amerson guilty beyond a reasonable doubt and how jurors should determine whether reasonable doubt existed, Amerson was not prejudiced by defense counsel’s failure to object to the prosecutor’s voir dire and closing argument comments. Because the record conclusively shows that Amerson was not entitled to relief based upon this ground of his motion, Point I is denied.

Point II

Amerson’s second point relates to a statement made by the prosecutor at the outset of his closing argument. No objection was made to this argument, which was set out in full earlier in this opinion. The gist of the argument was that: (1) the war on drugs was being lost; (2) drug use and crimes arising therefrom had moved from urban to rural areas; and (3) by rendering a guilty verdict, the jurors would be fighting drugs and drug-related crime in their rural community. Amerson contends the motion court clearly erred in denying relief without conducting an evidentiary hearing because the prosecutor’s closing argument impermissibly pandered to fears and prejudices about urban crime invading rural Missouri. Amerson argues that the record reflects no reasonable trial strategy for counsel’s failure to object to that argument.

To prove that trial counsel was ineffective, Amerson had to show that an objection to the prosecutor’s argument would have been meritorious and that defense counsel’s failure to object substantially deprived Amerson of a fair trial. Mitchem v. State, 250 S.W.3d 749, 755-56 (Mo.App.2008). Amerson cannot meet the first prong necessary for relief: a meritorious objection.

“It has long been recognized that the prosecutor is permitted to argue such propositions as the prevalence of crime in the community, the personal safety of its inhabitants, and the jury’s duty to uphold the law as well as inferences from its failure to convict, and such pleas may call upon common experience.” State v. Newlon, 627 S.W.2d 606, 619 (Mo. banc 1982), overruled on other grounds by State v. Carson, 941 S.W.2d 518, 520 (Mo. banc 1997). A prosecutor also may comment on the necessity of law enforcement and the evils that will befall society if a jury fails in its duty. State v. Beal, 840 S.W.2d 881, 881-82 (Mo.App.1992). In the case at bar, the prosecutor did no more than appeal to the jurors to uphold the law and protect their community from the danger of drugs and drug-related crime. Such an argument is permissible. See, e.g., State v. Roper, 268 S.W.3d 392, 399-400 (Mo.App.2008); State v. Burton, 219 S.W.3d 778, 781-82 (Mo.App.2007); State v. Smith, 849 S.W.2d 677, 680-81 (Mo.App.1993); State v. Hatcher, 835 S.W.2d 340, 344 (Mo.App.1992). Amerson’s counsel “cannot be faulted for not making non-meritorius objections.” Hatcher, 835 S.W.2d at 346. Accordingly, the motion court did not clearly err by denying relief as to this ground of Amerson’s post-conviction motion without conducting an evidentiary hearing. State v. Gola, 870 S.W.2d 861, 865-66 (Mo.App.1993); State v. Lumpkin, 850 S.W.2d 388, 395-96 (Mo.App.1993). Because the record conclusively shows that Amerson was not entitled to relief based upon this ground of his motion, Point II is denied.

The order denying Amerson’s amended Rule 29.15 motion is affirmed.

BARNEY and BURRELL, JJ., Concur.

      . All references to rules are to Missouri Court Rules (2010). All references to statutes are to RSMo Cum.Supp. (2005).

      . The three Missouri cases cited by Amerson are factually distinguishable. Each involved an attempt by a prosecutor to define reasonable doubt in a manner inconsistent with the approved MAI definition. See State v. Shelby, 634 S.W.2d 481, 483-84 (Mo.1982) (the prosecutor argued that, if the jury believed the defendant did it and that thought was reasonable, then the state met its burden of proving defendant guilty beyond a reasonable doubt); State v. Jones, 615 S.W.2d 416, 420 (Mo.1981) (same argument and holding); State v. Mahly, 68 Mo. 315, 319-20 (1878) (the prosecutor argued that the preponderance of the testimony favored conviction and, upon such evidence, the jury must convict).


text:
    FRONTENAC BANK, Respondent, v. SIERRA LAND COMPANY I, LLC, Joseph Glenn Nothum and Deborah A. Nothum, Appellants.
    No. ED 94473.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 19, 2010.
    Application for Transfer to Supreme Court Denied Nov. 23, 2010.
    Donald Carmody, Jessica Kennedy, John Hilton, St. Louis, MO, for appellant.
    Brian Pezza, Lawrence Parres, St. Louis, MO, for respondent.
    Before KURT S. ODENWALD, P.J., ROBERT G. DOWD, JR., J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Joseph and Deborah Nothum (“the Not-hums”) and Sierra Land Company I, LLC (“Sierra”) (collectively “Appellants”) appeal from the trial court’s grant of summary judgment to Frontenac Bank (“Respondent”) on its motion. Appellants claim two points on appeal. First, Appellants claim that the trial court erred in granting Respondent’s motion for summary judgment because Respondent’s breach of duty of good faith and fair dealing creates a genuine issue of material fact. Second, Appellants claim that the trial court erred in granting Respondent’s motion for summary judgment because it disregarded Appellants’ evidence as to the value of the property.

No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

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


text:
    Robert L. FLAUGHER, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93974.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 19, 2010.
    Rehearing Denied Nov. 23, 2010.
    Mark Grothoff, Columbia, MO, for appellant.
    Shaun Mackelprang, Karen Krammer, Co-Counsel, Jefferson City, MO, for respondent.
    Before KURT S. ODENWALD, P.J., ROBERT G. DOWD, JR., J„ and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Robert Flaugher (“Movant”) appeals from the judgment of the Circuit Court of Osage County denying his Rule 29.15 motion alleging ineffective assistance of counsel. Finding no error, we affirm.

We have reviewed the briefs of the parties and the record on appeal. The findings and conclusions of the motion court are based on findings of fact that are not clearly erroneous. No error of law appears. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

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

      . All rule references are to Mo. Sup.Ct. R. (2009), unless otherwise indicated.


author: PER CURIAM:

text:
    James O. RICHARDSON, Appellant, v. STATE of Missouri, Respondent.
    No. WD 72449.
    Missouri Court of Appeals, Western District.
    Nov. 30, 2010.
    James O. Richardson, Appellant pro-se.
    Jamie P. Rasmussen, for Respondent.
    Before Division One: THOMAS H. NEWTON, Presiding Judge, JAMES M. SMART, JR., Judge and JOSEPH M. ELLIS, Judge.
   ORDER

PER CURIAM:

James Richardson appeals from the Circuit Court of Chariton County’s denial of his motion to reopen his Rule 29.15 motion for post-conviction relief. After a thorough review of the record, we conclude that the judgment is based on findings of fact that are not clearly erroneous and that no error of law appears. No jurisprudential purpose would be served by a formal written opinion; however, a memorandum explaining the reasons for our decision has been provided to the parties.

Judgment affirmed. Rule 84.16(b).


text:
    David ORR, Appellant, v. George LOMBARDI, Respondent.
    No. WD 72029.
    Missouri Court of Appeals, Western District.
    Nov. 30, 2010.
    David Orr, Appellant pro se.
    Jennifer Redel-Reed, Jefferson City, MO, for respondent.
    Before Division Four: LISA WHITE HARDWICK, Chief Judge, Presiding, ALOK AHUJA, Judge and GARY D. WITT, Judge.
   ORDER

PER CURIAM:

David Orr, an inmate, filed a suit pertaining to inmate grievance procedures against George Lombardi, Director of the Missouri Department of Corrections (“the Department”). The Department moved to dismiss the Petition, and the trial court dismissed the lawsuit.

We affirm. Rule 84.16(b). A memorandum setting forth the reasons for this order has been provided to the parties.


text:
    Brandon SANDERS, Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondent.
    No. WD 71953.
    Missouri Court of Appeals, Western District.
    Nov. 30, 2010.
    Brandon Sanders, Appellant pro se.
    Bart A. Matanic, Jefferson City, MO, for respondent.
    Before Division Four: LISA WHITE HARDWICK, Chief Judge, Presiding, ALOK AHUJA, Judge and GARY D. WITT, Judge.
   ORDER

PER CURIAM:

Brandon Sanders appeals the Labor and Industrial Relations Commission’s denial of his claim for unemployment benefits. We affirm. Rule 84.16(b). A memorandum explaining the reasons for our decision has been provided to the parties.


text:
    In the Estate of Aspen SCHIRO; Michael Gemkow, Respondent, v. Michelle GEORGE, Appellant.
    No. WD 71715.
    Missouri Court of Appeals, Western District.
    Nov. 30, 2010.
    Elizabeth K. Magee, Esq., Columbia, MO, for appellant.
    Kyle T. Hilger, Esq., Columbia, MO, for respondent.
    Before Division Four: LISA WHITE HARDWICK, Chief Judge Presiding, JAMES E. WELSH, J. and BRIAN WIMES, Sp. J.
   ORDER

PER CURIAM.

Michelle George appeals the judgment appointing Michael Gemkow as guardian of minor Aspen Schiro. For reasons explained in a Memorandum provided to the parties, we find no error and affirm the judgment.

AFFIRMED. Rule 84.16(b).


text:
    Kirk CARSON, et al., Appellants, v. H. William MCINTOSH, et al., Respondents.
    No. WD 71706.
    Missouri Court of Appeals, Western District.
    Nov. 30, 2010.
    James M. Crabtree, Lenexa, KS, for appellants.
    James W. Tippin and Dana C. Tippin Cutler, Kansas City, MO, for respondents.
    Before Division Three: ALOK AHUJA, Presiding Judge, VICTOR C. HOWARD, Judge, CYNTHIA L. MARTIN, Judge.
   ORDER

PER CURIAM:

This is an appeal from a judgment granting a motion for summary judgment in a malicious prosecution and negligence action. The action was filed by Kirk Carson and Tamara Carson against William McIntosh and his law firm, The McIntosh Law Firm, following the resolution, in Mr. Carson’s favor, of a wrongful death lawsuit filed by McIntosh. McIntosh filed a motion for summary judgment contending that the Carsons could not establish that the wrongful death lawsuit was filed without probable cause. In their sole point on appeal, the Carsons claim there were genuine issues of material fact in dispute regarding whether McIntosh had probable cause to initiate the wrongful death lawsuit. We affirm. Rule 84.16(b).


text:
    Michael C. MALONE, Appellant, v. STATE of Missouri, Respondent.
    No. WD 71561.
    Missouri Court of Appeals, Western District.
    Nov. 30, 2010.
    Nancy A. McKerrow, for Appellant.
    Shaun J. Mackelprang, for Respondent.
    Before Division Three: ALOK AHUJA, Presiding Judge, VICTOR C. HOWARD, Judge and CYNTHIA L. MARTIN, Judge.
   ORDER

PER CURIAM:

Michael Malone appeals the judgment of the motion court denying his Rule 24.035 motion for post-conviction relief following an evidentiary hearing. He sought to vacate his conviction for the class D felony stealing, section 570.030, RSMo Cum.Supp. 2009, and sentence of four years imprisonment. In his sole point on appeal, he asserts that the motion court clearly erred in denying his motion because he received ineffective assistance of plea counsel. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment of the motion court is affirmed. Rule 84.16(b).