author: JAMES R. DOWD, Judge.

text:
    Norma Jean CUTTER-ASCOLI and Zachary Shane Ascoli, by his next friend, Norma Jean Cutter Ascoli, Respondents, v. Dean Edward ASCOLI, Appellant.
    No. ED 76585.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 21, 2000.
    James C. Dowling, Fulton, for appellant.
    Henry Gerhardt, St. Charles, for respondent.
    Before AHRENS, P.J., CRANDALL, J., and JAMES R. DOWD, J.
   OPINION

JAMES R. DOWD, Judge.

Husband Dean Edward Ascoli appeals from the denial of his motion to set aside a default judgment rendered in favor of his wife, Norma Jean Cutter Ascoli. The judgment dissolved the couple’s marriage, and awarded wife primary legal and physical custody of their son, Zachary. We reverse and remand, with instructions to set aside the default judgment and allow the case to proceed on the merits.

Zachary Ascoli was born to Norma Jean Cutter and Edward Ascoli on May 21, 1993. The Ascoli’s married on July 29, 1995, but their marriage deteriorated rapidly. On December 30, 1996 wife filed for divorce in Callaway County. A bitter dispute soon erupted over Zachary’s custody, prompting extensive discovery, psychological evaluations of husband and wife and the appointment of two successive Guardians ad Litem. Husband and wife actively litigated this dispute for 3 years and 11 months in Callaway County. Zachary is now eight years old.

For reasons unclear from the record, wife elected to dismiss her petition in Cal-laway County and on January 8, 1999, she filed a motion to dismiss that petition. On that same day she filed a second petition for dissolution of marriage in St. Charles County. On January 11, 1999, both parties received notice that wife’s motion to voluntarily dismiss her petition had been denied, and that the Callaway County Court had granted husband leave to file a counter-petition. That order reads:

Respondent given leave to file Counter Petition. Court declines to enter order for dismissal of Petitioner’s Petition there being no showing that Attorney of Record Tim Brady has been given leave to withdraw and that there is outstanding an order for payment of Guardian ad Litem fees. Cause passed to trial setting.

On Feb. 5, 1999 wife challenged the denial of her motion to dismiss by applying for a writ of prohibition with the Western District Court of Appeals, alleging that Callaway County lacked jurisdiction to deny her motion to dismiss. In response, the Western District issued a preliminary writ of prohibition in the form of a “Stop Order.” This order, issued on February 8, commanded the Callaway Court to “refrain from taking further action on the case in any respect other than to dismiss the underlying lawsuit ... until further order of this court.” Because of this order, the Callaway County Court granted wife’s motion to dismiss on February 23,1999.

On February 5, 1999, the same day she applied for her writ of prohibition against the circuit judge in Callaway County, wife obtained service of process on husband in St. Charles County. Under Supreme Court Rule 55.25(a), husband had 30 days to answer wife’s St. Charles petition, but husband did not do so. On the 32nd day, March 9, 1999, wife moved for default judgment in St. Charles.

Two days after wife moved for default judgment in St. Charles, the Western District made a final disposition of wife’s writ application by declaring it moot because the Callaway Court granted wife’s motion to dismiss on February 23,1999.

On March 12, 1999, one day after the Western District’s dismissal of wife’s writ, St. Charles proceeded with wife’s request for a default judgment. Husband did not answer or appear. The St. Charles court then dissolved the Ascoli’s marriage and granted wife primary legal and physical custody of Zachary.

Husband answered wife’s St. Charles petition six days later, on March 18, 1999, and six days after that filed his motion to set aside the March 12 default judgment. In response, wife alleged that husband’s motion to set aside was insufficient because it failed to allege “facts constituting a meritorious defense” as required by Missouri Supreme Court Rule 74.05(d).

On April 23, 1999, The St. Charles court granted husband one week to file a memorandum of law in support of his motion to set aside, but denied husband leave to amend his motion to correct technical defects.

Husband made his proposed amended motion to set aside part of the record by filing it with his memorandum. That amended motion cured the defects of his original motion to set aside, but the court refused to consider it. Rather, the St. Charles Court ruled upon the husband’s original motion to set aside, and denied it because he failed to allege “facts constituting a meritorious defense” as required by Missouri Supreme Court Rule 74.05(d).

Husband and the Guardian ad Li-tem now appeal this ruling. Husband argues that the trial court erred in overruling his motion to set aside because default judgments are especially disfavored where child custody is at issue. Hayes v. Hayes, 671 S.W.2d 428 (Mo.App. E.D.1984); Hinson v. Hinson, 518 S.W.2d 380 (Mo.App.1975). The Guardian ad Litem argues that the court erred in overruling husband’s motion because husband had a meritorious defense on the issues of child custody, child support and property division.

Generally, a decision to sustain or overrule a motion to set aside a default judgment is grounded on the sound discretion of the trial court, and we sustain a refusal to set aside unless it appears “manifest that the refusal to set aside was arbitrary.” Hinson, 518 S.W.2d at 332; see also Hayes, 671 S.W.2d at 423. But where child custody is concerned, the welfare of the child becomes paramount and the trial court’s discretion is more narrowly bounded. Because the adversarial process better protects the child’s interest in a custody proceeding, default judgments in custody cases are strongly disfavored and a refusal to set aside such a judgment is reviewed with heightened scrutiny. Hinson, 518 S.W.2d at 332.

Hinson illustrates this principle and is factually similar to the instant case. In Hinson, a father obtained custody over two young girls when the mother did not appear for trial. The mother moved to set aside the default, alleging, only “in general terms,” facts which constituted a meritorious defense and good cause to set aside the default judgment. Id. at 332. The trial court denied her motion. Id. The Appellate Court reversed, noting that “in the usual civil case and under normal circumstances the facts existing here would not warrant interference by an appellate court ... but because we are extremely concerned with the welfare of [the children] ... whose best interests might be served by an adversary hearing with regard to the fitness of [the parent] to have permanent custody ... we have concluded that the decree below must be set aside.” Id. at 333.

Hayes also acknowledges this principle: Ordinarily, we review the court’s refusal to set aside a default judgment on the basis of whether it is manifest that the refusal to set aside was arbitrary. In applying this standard, we are mindful of the admonition of Judge Weier in Hinson, that strict rules pertaining to such judgments are less rigorously applied in a dissolution case, especially in matters involving child custody.

Hayes, 671 S.W.2d at 425 (internal citations and quotations omitted).

As in Hinson, this case involves child custody and thus requires heightened scrutiny. The unique timing of the motion to dismiss, the denial and subsequent grant of that motion, the filing of the St. Charles dissolution petition, the short period of time between the entry of judgment and the motion to set aside require us to reverse the trial court’s denial of husband’s motion to set aside.

The trial court abused its discretion when it denied husband’s motion to set aside the default judgment of March 12, 1999. We reverse and remand, with instruction to set aside the default judgment and allow the case to proceed on the merits.

AHRENS, P.J. and CRANDALL, J., concur.

      . The court denied husband leave to amend despite Missouri Supreme Court Rule 55.33, which mandates that leave to amend shall be freely granted.

      . Husband's motion to set aside used the phrase "meritorious claim" rather than "meritorious defense.” We note that his terminology is more accurate in the context of this case because husband is not "defending” against a charge from his former wife. Rather, he is “asserting a claim” for the custody of his son.


source: Caselaw Access Project

author: ELLIS, Judge.

license: Public Domain

text:
    Melvin and Judy MILLER, Appellants, v. MISSOURI DEPARTMENT OF TRANSPORTATION, Missouri Highway and Transportation Commission, Charles and Mardella Mears, Respondents.
    No. WD 58055.
    Missouri Court of Appeals, Western District.
    Nov. 21, 2000.

      Mark G. Stingley, Kansas City, for appellants.
    James M. Slone, Lee’s Summit, Stephen J. Briggs, St. Joseph, for respondents.
    Before EDWIN H. SMITH, Presiding Judge, ULRICH and ELLIS, Judges.
   ELLIS, Judge.

Appellants Melvin Miller and Judy Miller appeal the trial court’s grant of summary judgment in favor of Respondents the Missouri Department of Transportation (“MODOT”), Missouri Highway and Transportation Commission (“MHTC”), Charles Mears, and Mardelle Mears. On review of summary judgment granted in favor of the defendant, this Court views the record in the light most favorable to the plaintiff and accords the plaintiff all reasonable inferences that may be drawn from the evidence. Heins Implement Co. v. Missouri Highway & Trans. Comm’n, 859 S.W.2d 681, 693 (Mo. banc 1993). The facts, viewed in that light, are set forth below.

In the summer of 1998, MHTC owned a piece of real property located at 2nd and Garfield Street in Saint Joseph, Missouri (“the Garfield Street property”) which MODOT had used as a maintenance yard for old 71 Highway. At that time, Kevin Keith served as MODOT’s District Engineer in District 1, where the Garfield Street property is located. In August 1998, after determining that MODOT no longer needed the Garfield Street property, Keith decided that MODOT should sell that property.

Keith delegated the legwork involved in selling the property to John Cool, the building and grounds maintenance supervisor for District 1. Subsequently, Cool arranged for the property to be sold through Coldwell Banker Commercial General Properties (“Coldwell Banker”).

On September 4, 1998, the Mears presented Coldwell Banker with a proposed contract offering to buy the Garfield Street property for the list price of $40,000, subject to a satisfactory EPA audit and a corner stake survey. The proposed contract was on a form that Mr. Mears had obtained from his place of employment. This was the first offer made by any prospective purchaser. The proposed contract provided for a closing date of October 23, 1998. At the instruction of Coldwell Banker, Mr. Mears added the language, “This contract is subject to the approval of the Missouri Highway Commission,” to his proposed contract. Mr. Mears also presented Coldwell Banker with an earnest money check for $1,000.

On September 8, 1998, Coldwell Banker took the Mears’ proposal to Cool. On September 9, 1998, the Mears’ document was signed by Keith and given back to Cold-well Banker.

Later on September 9, 1998, the Millers went to Coldwell Banker and offered to buy the Garfield Street property for $40,-000. They signed a proposed contract on a Coldwell Banker form proposing to buy the property for $40,000 with no contingencies. They gave Coldwell Banker an earnest money check for $1,000. Coldwell Banker took the proposed contract and check to Cool. Cool went to Keith and suggested that they enter into the contract with the Millers as a back-up contract in case the Mears’ deal failed to close. Keith agreed to accept a back-up contract with the Millers. He added language to the Millers’ proposed contract specifying that it was subject to the approval of MHTC and included a “Back Up Contract Addendum.” That addendum provided:

It is understood and agreed that this is a back up contract to a contract dated 9-9-98, with a closing date of October 23, 1998. If the First contract does not close on or by November 23, 1998, then this contract shall go into full force and effect. If the First contract closed on or before November 23, 1998, then this contract shall be null and void and the earnest deposit shall be returned to the buyer.

The Millers agreed to the back-up contract addendum, and Keith and the Millers executed the document.

On September 15, 1998, Cool told Cold-well Banker that MODOT intended to consider any and all offers submitted for the property prior to September 23, 1998. This information was conveyed to everyone who had expressed an interest in the property.

On September 16, 1998, Cool notified Coldwell Banker that MODOT had changed its position and decided to honor the original Mears’ contract proposal. He stated that any other contracts would be considered back-up contracts. The Miller’s were informed of this change in plans. On September 17,1998, the closing date on the Mears transaction was extended by amendment to November 23,1998.

On September 22, 1998, the Millers informed MODOT that they would pay $50,000 for the property. On September 23, 1998, the Millers and Keith executed a new contract document reflecting a purchase price of $50,000. It contained the same “Back Up Contract Addendum” as their original contract document and stated that it was subject to the approval of MHTC.

On November 22 and 23, 1998, Mr. Miller called Coldwell Banker and Keith to find out the status of the Mears closing. These calls were not returned.

The Mears appeared to close on the Garfield Street property on November 23, 1998, but MODOT failed to show up. When the Mears called MODOT, they were informed that MODOT had not been able to obtain the deed in time. The Mears and MODOT agreed to extend the closing date until December 4, 1998, and executed an extension agreement on November 24,1998.

On November 30, 1998, Mr. Miller went to the Coldwell Banker office and told them that he intended to purchase the Garfield Street property pursuant to the back-up contract. That same day, the Millers’ attorney sent a letter to Keith informing him that the Millers were prepared to immediately close on the property pursuant to their back up contract.

On December 2, 1998, Thelma Kelley sent Keith an inter-office correspondence stating that MODOT’s Chief Counsel’s Office would not approve the Mears’ contract. Kelley’s correspondence indicated that a standard form from the Chief Counsel’s Office had to be used for the sale of any MHTC property by an outside realtor.

Later on December 2, 1998, MODOT sent a new contract to the Mears on the MHTC standard form. The new contract was for the originally agreed sales price of $40,000. The Mears executed this contract and returned it to MODOT. Assistant District Engineer Donald Hillis executed this sales agreement on behalf of MODOT, signing Keith’s name without his approval.

On December 8, 1998, the Millers’ attorney sent a letter to Coldwell Banker indicating that the Millers still wanted to purchase the property. On December 14, 1998, Coldwell Banker answered that letter. Coldwell Banker stated that the Miller contract had a clause providing that it was subject to the approval of MHTC. Coldwell Banker stated that MHTC had indicated that it would not honor any contract that was not on the MHTC standard form. The letter went on to state, “So long as the first offerors agreed to purchase the property based on the terms in the Highway Commissions [sic] contract they were willing to proceed to close with that party. The State contract was offered to the first parties and they agreed to it and signed same and this has been forwarded to the main office in Jefferson City for further handling.”

MODOT and MHTC transferred the Garfield Street property to the Mears on January 26, 1999, presumably pursuant to the MHTC standard form contract signed on December 2,1998.

Prior to that closing, on January 11, 1999, the Millers filed suit against MO-DOT, MHTC, and the Mears. Count I of their petition sought specific performance of the second contract between MODOT and the Millers. In Count II, the Millers asserted a claim for declaratory relief against the Mears asking the court to declare the transfer of the Garfield Street property to the Mears void. Finally, Count III of the petition asserted a claim for damages from MODOT and MHTC for breach of contract.

On November 22, 1999, the Circuit Court entered summary judgment against the Miller’s on all three counts of their petition. The Millers challenge that judgment on appeal.

Our review of the trial court’s grant of summary judgment is essentially de novo, and the issue of whether the trial court properly granted summary judgment is an issue of law. Graves v. Berkowitz, 15 S.W.3d 59, 61 (Mo.App. W.D.2000). “As the trial court’s judgment is founded on the record submitted and the law, [this Court] need not defer to the trial court’s order granting summary judgment.” Kruse Concepts, Inc. v. Shelter Mut. Ins., 16 S.W.Sd 734, 737 (Mo.App. E.D.2000). On review of summary judgment granted in favor of the defendant, this Court views the record in the light most favorable to the plaintiff and accords the plaintiff all reasonable inferences that may be drawn from the evidence. Heins Implement Co., 859 S.W.2d at 693. “Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits filed in connection with the motion, demonstrate that there is no genuine issue as to any material fact and that the mov-ant is entitled to judgment as a matter of law.” Id.

On appeal, the Millers offer alternative arguments, the applicability of which depends upon whether the various contracts are deemed to be valid. Therefore, in addressing this appeal, we must first determine which, if any, of the four contracts for the Garfield Street property were valid.

“Before a state officer can enter into a valid contract he must be given that power either by the Constitution or by the statutes.” Aetna Ins. Co. v. O’Malley, 343 Mo. 1232, 124 S.W.2d 1164, 1166 (banc 1938). “All persons dealing with such officers are charged with knowledge of the extent of their authority and are bound, at their peril, to ascertain whether the contemplated contract is within the power conferred.” Id. “In order to enter into a valid contract, the [state official] must exercise his authority ‘in manner and form as directed by the Legislature.’ ” State ex rel. Strieker v. Hanson, 858 S.W.2d 771, 775 (Mo.App. W.D.1993) (quoting O’Malley, 124 S.W.2d at 1166). A contract is void where the public agency fails to follow proper procedures and exceeds its statutory authority. Id. at 776.

Section 227.290 grants the MHTC authority to sell property that it no longer needs. That section provides:

Whenever in the opinion of the state highways and transportation commission the advantageous use of any interest in land or any leasehold which has heretofore or may hereafter be acquired by the commission has ceased, the state highways and transportation commission shall have authority to convey the same for the best available cash price by deed signed by its chairman or vice chairman and attested by its secretary.

§ 227.290.

MHTC, in turn, delegated limited authority to MODOT to institute sales of those properties no longer necessary to MODOT’s operations. The MHTC “Delegation of Authority Execution of Documents Policy” issued June 5, 1998, states that the Commission has authorized the Chief Engineer of MODOT or his designee to execute documents affecting certain transactions without prior submission to the Commission and notes that the Chief Engineer, in turn, has made certain designations. Section 38(e)(4) of that policy indicates that the Chief Engineer had delegated authority to district engineers to authorize the sale of property appraised for $50,000 or less, provided that the Chainnan or Vice Chairman of the Commission executes the conveyance document. Section 38(e)(1) provides that District Engineers are authorized by the Chief Engineer to enter into Standard Form sales agreements with potential purchasers of excess property if the contract requires the purchaser to pay ten percent of the negotiated purchase price prior to Commission action on the sale.

With regard to the procedures and forms that must be utilized in the sale of property, the “Delegation of Authority Execution of Documents Policy” begins by stating:

All documents executed on behalf of the Missouri Highway and Transportation Commission and referenced herein shall be approved as to form by the Chief Counsel or an authorized Assistant Counsel, signed by an authorized Commission representative, and attested to by the Secretary who shall affix the official seal of the Missouri Highway and Transportation Commission; however, the transactions designated “STANDARD FORM” may be executed by the authorized Commission representative without approval as to form, attestation, of affixing the seal.

As previously noted, Section 38(e)(1) authorizes district engineers to enter into standard form sales agreements with potential buyers of excess property. Section 5-4.5 of the MODOT Right of Way Manual directs district engineers to utilize the proper standard form in any contract for the sale of property over $5,000. That section states:

The district shall use the Sales Agreement Form 5-4.5 on all disposals of $5,000 or more. When using the sales agreement, a 10% security deposit shall be collected at the signing of the agreement. ... The sales agreement shall be signed by the district engineer.

Thus, Keith, as the district engineer for District # 1, was only authorized by MHTC and MODOT’s Chief Engineer to enter into contracts utilizing the specified sales agreement form and was not granted authority to enter into contracts utilizing other forms if the sales price was $5,000 or more.

In this case, none of the first three contract documents executed by Keith utilized the proper sales agreement form. Moreover, these contract documents did not require the requisite 10% security deposit, and a sufficient deposit was not obtained from either the Mears or the Millers upon the signing of these agreements. Accordingly, Keith failed to follow the proper procedure- and lacked authority to enter into any of the three proposed contracts on behalf of MODOT and MHTC, and therefore, these agreements were not valid or binding on MODOT or MHTC. See Strieker, 858 S.W.2d at 775.

With regard to the fourth and final contractual document, while it was executed on the proper form, it was signed by Hillis, a MODOT employee who did not have any authority to execute such a document. Therefore, that document is also invalid. See Sager v. State Highway Comm’n, 349 Mo. 341, 160 S.W.2d 757, 763 (1942) (holding that assistant engineers had no authority to enter into an oral agreement to vary the terms of a written contract and that such an agreement could not be enforced by estoppel).

In sum, since Keith and Hillis failed to follow the proper procedures and exceeded their authority in signing the various contracts, none of the four contracts was valid. Since neither of the Miller contracts was valid, the trial court cannot be deemed to have erred in granting summary judgment on Counts I and III of the Millers’ petition, both of which asserted breach of contract claims against MODOT and MHTC.

This does not, however, end our inquiry. Count II of the Millers’ petition, on which the trial court also granted summary judgment, alleged that the sale of the Garfield Street property to the Mears was unlawful under § 227.290. Count II asked the trial court to enter an order declaring the sale of the property to the Mears null and void and to further order the return of legal title of the property to MODOT and MHTC for conveyance to the Millers. This claim is not resolved by our determination that the various contracts were void.

On appeal, the Millers assert that the trial court erred in granting summary judgment in favor of the various defendants because MODOT violated § 227.290 by accepting an offer that was not the best cash price available for the property. The Millers claim that because MODOT violated § 227.290 the transaction between the Mears and MODOT must be considered void.

MODOT and the MHTC argue that they did not violate § 227.290 because the proper time to assess the best available cash offer was September 9, 1998, when Keith signed the first Mears’ contract proposal for $40,000. MODOT and MHTC claim that the Mears obtained contractual and equitable rights to purchase the property at that point and that no better price was available at that time.

As noted, supra, Keith was not authorized to enter into the original contract with the Mears. “ ‘Public officers have and can exercise only such powers as are conferred on them by law, and a state is not bound by contracts made in its behalf by its officers or agents without previous authority conferred by statute or the constitution ...’” O’Malley, 124 S.W.2d at 1166 (quoting 59 C.J. States § 286 (1932)). A contract is void where the public agency fails to follow proper procedures and exceeds its statutory authority. See Strieker, 858 S.W.2d at 776. Accordingly, neither MODOT nor MHTC was contractually bound to sell the property to the Mears by virtue of Keith’s execution of the Mears’ first contract form.

Likewise, MODOT and MHTC were not bound under principles of equity to sell the property to the Mears for $40,-000. “ ‘[A] state cannot by estoppel become bound by the unauthorized contracts of its officers; nor is a state bound by an implied contract made by a state officer where such officer had no authority to make an express one.’ ” O’Malley, 124 S.W.2d at 1167 (quoting 59 C.J. States § 286 (1932)); See also Sager, 160 S.W.2d at 763. While Keith may have felt an obligation to honor his word to the Mears, MODOT and MHTC did not share an obligation to honor that agreement. Accordingly, September 9, 1998, is not the proper date to utilize in determining whether MO-DOT and MHTC conveyed the property for the best available cash price.

As noted, supra, the Legislature extended authority to the MHTC to sell excess property for the best available cash price. § 227.290. At the time that the property was transferred to the Mears, the Millers were offering to pay $10,000 more than the Mears for the Garfield Street property. The uncontroverted evidence establishes that MODOT and MHTC were aware of the Millers’ willingness to pay a higher price at the time the property was sold. Indeed, they had been aware of the Millers’ higher offer since September 22, 1998. Furthermore, MODOT and MHTC were not bound under a valid contract to sell the property to the Mears at the time the Miller offer was originally extended. Accordingly, MODOT and MHTC did not sell the Garfield Street property for the best available cash price and exceeded the authority granted by § 227.290 in the transfer of the property.

Finally, the Mears assert that § 227.290 does not apply because there were never two different offers for the property existing at the same time. They claim that in order for an offer to exist, it must comply with the statute of frauds. This argument has no merit. The statute of frauds applies to enforcing and proving the existence of a contract and is not applicable in determining whether an offer exists. The existence of an offer can be established through testimony and its continued viability can be inferred from the evidence. See Crabb v. Mid-American Dairymen, Inc., 735 S.W.2d 714, 715-16 (Mo. banc 1987). In this case, the evidence viewed in the light most favorable to the Millers sufficiently establishes that MODOT and MHTC were aware that the Millers were willing to pay $50,000 for the Garfield Street property from September 22, 1998, to the present day. There is no evidence that this offer was ever withdrawn. Therefore, at the time the property was conveyed, the $50,000 offer by the Millers was the best available cash price.

Because MODOT and MHTC violated § 227.290 in transferring the Garfield Street property to the Mears, and because the Mears were on notice that the transfer was being made over the objection of the highest bidder, the transfer of that property must be deemed void. Accordingly, the trial court’s entry of summary judgment must be reversed as to Count II of the Miller’s petition and the cause remanded to the circuit court for further proceedings consistent with this opinion.

All concur.

      . All statutory references are to RSMo (1994) unless otherwise indicated.


author: PER CURIAM.

text:
    Charlene D. EHLL, Respondent, v. Joseph K. WELPLY, Appellant.
    No. ED 76127.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 21, 2000.
    Michael P. Cohan, Cordell & Cordell, St. Louis, for Appellant.
    Susan M. Hais, Philip E. Adams, Hais & Carmody, P.C., Clayton, for Respondent.
    Before LAWRENCE E. MOONEY, P.J. and PAUL J. SIMON and SHERRI B. SULLIVAN, JJ.
   ORDER

PER CURIAM.

Joseph Welply (Husband) appeals the judgment of dissolution of his marriage to Charlene Ehll (Wife) entered by the Circuit Court of St. Charles County.

On appeal, Husband contends the trial court erred by: (1) awarding sole legal custody of the child to Wife and failing to award joint legal custody because the award was not supported by substantial evidence, was against the weight of the evidence, and erroneously applied the law; (2) failing to award sole physical custody of the child to Husband because the award was not supported by the evidence, was against the weight of the evidence, and erroneously applied the law in that an analysis of specific custody factors under Section 452.375.2(1) through (8) RSMo 1994 would have shown that it is in the child’s best interest to be in Husband’s sole physical custody, or, in the alternative, the trial court erred in limiting Husband’s temporary custody of the child to a schedule which did not include overnight visits during the week because the schedule violates Section 452.375.4 RSMo 1994 requiring both parents have frequent, continuing, and meaningful contact with their children and there was no credible evidence to limit Husband’s temporary physical custody to less than a standard schedule; (3) awarding Wife $94,794.80 as and for her half of the marital property because the award was not supported by substantial evidence, was against the weight of the evidence, and erroneously applied the law in that Husband proved that other than the $68,635.00 in his savings and investment plan, all of the other value was his non-marital property; and (4) ordering Husband to pay all outstanding guardian ad litem fees because the court should have directed Wife to pay part of the fees in that Husband had already paid part of the fees and Wife was in an equal financial position to pay the outstanding fees and Wife’s actions necessitated the fees.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. An extended opinion reciting detailed facts and restating principles of law would have no precedential value. We affirm the judgment pursuant to Rule 84.16(b).


text:
    Debora L. PALO, Petitioner/Appellant, v. Eli R. PALO, Respondent.
    No. ED 77944.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 21, 2000.
    Kenneth A. Leeds, Clayton, for appellant.
    Michael B. Stern, Clayton, for respondent.
    Before CLIFFORD H. AHRENS, P.J.,. WILLIAM H. CRANDALL, J. and JAMES R. DOWD, J.
   ORDER

PER CURIAM.

The trial court entered judgment finding husband, Eh R. Palo, in contempt for his failure to comply with the decree of dissolution of his marriage to wife, Debora L. Palo. Wife appeals from that part of the judgment denying her request for attorney’s fees.

We have reviewed the record on appeal as to the court’s denial of attorney’s fees. No error of law appears. An opinion on that issue would have no precedential value. That part of the judgment denying wife attorney’s fees is affirmed pursuant to Rule 84.16(b).


author: AHRENS, Presiding Judge.

text:
    DUCKETT CREEK SEWER DISTRICT OF ST. CHARLES COUNTY, Missouri, Plaintiff/Appellant, v. GOLDEN TRIANGLE DEVELOPMENT CORPORATION, Defendant/Respondent.
    No. ED 77404.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 21, 2000.

      Jay A. Summerville, St. Louis, MO, for appellant.
    Brian E. McGovern, Chesterfield, MO, for respondent.
   AHRENS, Presiding Judge.

Duckett Creek Sewer District of St. Charles County, Missouri (“sewer district”) appeals from a declaratory judgment in favor of Golden Triangle Development Corporation (“developer”). The trial court found that sewer district was required to enter into a sewer main extension contract and reimburse the developer the cost of constructing an off-site sewer line to serve developer’s subdivision. We reverse.

Golden Triangle is the developer of a subdivision known as Cambridge Estates, which did not have a sewer main. To obtain planning approval from St. Charles County for the Cambridge Estates subdivision, developer needed to show that it could provide Cambridge Estates with sewer service. This would require an off-site sewer main across an adjacent subdivision known as Reddington Oaks. The developer knew when it purchased Cambridge Estates that a sewer main connection would have to go through Reddington Oaks. The developer of Reddington Oaks granted an easement to the developer of Cambridge Estates for the construction of a sewer line across Reddington Oaks.

Duckett Creek is a sewer district created under Missouri Law. Chapter 249 RSMo 1994. In 1992, sewer district adopted -written Rules, Rates, and Regulations (“rules”), which set out the procedure for how developers may recoup the cost of constructing certain sewer main extensions through a sewer main extension contract which must be entered into by the developer and the sewer district. Article II, section 23 of the sewer district’s rules defines a sewer main extension as “a sewer main constructed by a developer across property not owned by the developer (off-site) to service the developer’s project and for which the District will grant a sewer main extension contract as provided in Article XIX.” The rules require that the sewer contract be in writing and signed by both parties.

The developer knew the sewer district used sewer main extension contracts. Pri- or to this lawsuit, the developer had obtained recoupment for construction of other sewer mains pursuant to written sewer main extension contracts executed prior to the construction.

In August 1996, prior to the construction of the sewer line, the sewer district approved the developer’s plans and proposed costs of $48,582.50. They entered into an escrow agreement in which the developer set aside funds sufficient to guarantee construction of the sewer line at the cost of $48,582.50.

In late 1996, the developers constructed a sewer line across Reddington Oaks subdivision. Actual construction costs for the sewer line were $76,443.73. No written sewer main extension contract was ever entered into by the developer and the sewer district to obtain recoupment for the sewer line across the adjacent subdivision.

On April 17, 1997, the developer orally requested recoupment and a sewer main extension contract and made a payment to the sewer district for tap-on fees at the rate of $200.00 per unit. The sewer district then informed the developers that it was not entitled to recoupment and that the tap-on fees were $400.00 per unit, not $200.00. Sewer district based its denial on what it claims was a “consistent” interpretation of its rules to deny requests for recoupment for construction of any sewer main extension across property already being developed by another developer or likely to be developed during the time of the applicant’s own development. On February 9, 1998, the developer dedicated the sewer line to the sewer district but renewed its request for recoupment.

On August 10, 1998, the sewer district sought a declaratory judgment that the developer was not entitled to a sewer main extension contract or recoupment under the sewer district’s rules. The developer counterclaimed seeking a determination that it was entitled to the contract and recoupment. The parties submitted the case to the court on a stipulation of facts. The trial court entered judgment in favor of developer, stating that developer was entitled to a sewer main extension contract for the off-site sewer. In addition, the trial court ruled that the developer was entitled to reimbursement of $200.00 per existing lateral tap into developer’s Cambridge Estates off-site sewer and $200.00 for any future taps for a period of ten years from the date of execution of the sewer main extension contract. The sewer district filed this appeal.

In a court-tried case, the trial court’s judgment will be sustained unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Since this case was tried on stipulation of facts, the only issue on appeal is whether the trial court drew the proper legal conclusions from the stipulated facts. State Farm Mutual Auto. Ins. Co. v. Sommers, 954 S.W.2d 18, 19 (Mo.App.1997).

In the sewer district’s first point on appeal, it contends that the trial court erred in ordering it to execute a sewer main extension contract which would reimburse the developer. The sewer district argues the developer is barred as a matter of law by the statute of frauds dealing with Missouri public entities because section 432.070 RSMo 1994 requires all contracts with a Missouri public body to be in writing and supported by future consideration.

As a sewer district, Duckett Creek is a “municipal corporation” under Missouri law, State ex rel. Becker v. Wellston Sewer Dist. of St. Louis County, 332 Mo. 547, 58 S.W.2d 988, 991 (1933), and is therefore subject to the section 432.070 statute of frauds. Section 432.070 provides:

No county, city, town ... municipal corporation shall make any contract, unless the same shall be within the scope of its powers or be expressly authorized by law, nor unless such contract be made upon a consideration wholly to be performed or executed subsequent to the making of the contract; and such a contract, including the consideration, shall be in writing and dated when made, and shall be subscribed by the parties thereto....

In Missouri the law ,is clear that all contracts with a municipal corporation must be in writing and all persons dealing with a municipal corporation are charged with notice of that law. Vochatzer v. Public Water Supply Dist. No. 1 of Lafayette County, 637 S.W.2d 418, 420 (Mo.App.1982). Moreover, “[a]ny contract made in violation of [this] requirement is void.” Id.

It is undisputed that developer failed to comply with the portion of the sewer district’s rules, which specifically required the execution of a written sewer main extension contract. Notwithstanding the lack of a written contract, developer contends that it was entitled to a sewer main extension contract because it complied with all the conditions and requirements for such a contract set out in the sewer district’s rules. Alternatively, developer conténds the sewer main extension contract was a government subsidy and benefit program to which it was entitled without a written contract. We reject developer’s contentions.

The failure to comply with the requirement of a writing mandated by the section 432.070 statute of frauds bars a developer from recoupment of sewer construction costs, even though reimbursement of those costs was authorized by ordinance. Allen v. City of Fredericktown, 591 S.W.2d 723 (Mo.App.1979). The developers in Allen sought recoupment from the city for the costs of construction of water and sewer lines within a subdivision under a municipal ordinance which provided for reimbursement by the city to the developers. Id. at 724. The trial court ruled in favor of the city and the developers appealed. This court affirmed the judgment “on the ground that there was no written contract.” Id. at 723.

The developers argued that “the existence of [the ordinance] providing for reimbursement of water and sewer line expenses, creates a unilateral or executory contract which needs only some action or performance by [developers] to complete the contract with the ordinance serving as the written document.” Id. at 725. This court stated that it is a fundamental precept that a municipality must reduce its contract to writing under the mandate of section 432.070. Id. Furthermore, the ordinance “cannot serve as any kind of paradigm for a contract. It is, at most, the authority which could lead to the preparation of a written contract for the construction and reimbursement provisions for sewer and water fines in a subdivision.” Id. The ordinance cannot constitute the written contract required by section 432.070. Id.

Here, as in the case of a municipal ordinance with a provision for reimbursement, the sewer district adopted rules setting out the procedure for applying for a sewer main extension contract. These rules, like the ordinance in Allen, do not constitute a written contract. Moreover, the rules specifically required a separate sewer main extension contract. Article XIX, Section 11(A)(3) provides that “[a]fter approval by the District of cost estimates, a Sanitary Sewer Main extension Contract will be executed.... ” The sewer district’s rules require a written contract and section 432.070 requires a written contract. “[T]he law will not make that valid without a writing which the law requires to be in writing; [for] ... the statute prescribed the manner for its exercise and it could not be exercised otherwise.” Donovan v. Kansas City, 352 Mo. 430, 175 S.W.2d 874, 881 (1943). We conclude that sewer district’s rules did not constitute a contract to satisfy the statute of frauds, section 432.070. For the same reasons that the rules do not constitute a unilateral contract, we conclude that they also do not constitute a government subsidy or benefit which create an entitlement for developer. This is particularly so where the rules specifically required the execution of a written contract. Since the developer never entered into a written contract with the sewer district, it may not be reimbursed.

In addition to the lack of a written contract, the developer’s request for re-coupment and a contract after construction must also fail because of the lack of any future consideration. Section 432.070 requires that contracts can only be for “consideration wholly to be performed or executed subsequent to the making of the contract.” Section 432.070. Here, however, the developers constructed the sewer main extension prior to requesting a written contract. The sewer line was completed in 1996. On April 17, 1997, when the developer requested a sewer main extension contract from the district, the developer had nothing to offer for consideration. If the sewer district had entered into a contract after the construction and dedication, it would be void and unenforceable for lack of consideration “wholly to be performed or executed subsequent to the making of the contract.” Section 432.070.

On the issue of consideration, developer asserts that at the time the cost estimates were approved, and before construction of the sewer line, sewer district was required to issue the sewer main extension contract. Accordingly, developer contends there was present consideration at that time to satisfy the statute of frauds. There is no evidence in the record that developer attempted to obtain a written contract with sewer district prior to beginning construction. Although developer had previously entered into written sewer main extension contracts prior to construction, developer instead chose to proceed with construction in this case without the benefit of a written contract. Under these circumstances, developer’s argument that consideration may have existed prior to the construction is of no benefit to developer.

Additionally, developer argues that consideration exists because sewer district continues to receive benefits following construction of the sewer line, through expansion of sewer district’s facilities as a result of the extension and receipt of monthly service fees for connections. We disagree. “The fact a municipality has received the benefit of a performance by the other party does not make the municipality liable either on the theory of a ratification, estoppel or implied contract.” Allen, 591 S.W.2d at 725 (quoting Mo. Int’l Investigators, Inc. v. City of Pacific, 545 S.W.2d 684 (Mo.App.1976); Kansas City v. Rathford, 353 Mo. 1130, 186 S.W.2d 570, 574 (1945)). Under section 432.070, “it is as much ultra vires for a Missouri municipality to incur a liability in the nature of a contractual obligation in the absence of a writing as to incur a liability not within the scope of its corporate powers or one not expressly authorized by law.” Donovan, 175 S.W.2d at 882.

Developer also contends that the sewer district should be estopped from arguing the lack of a sewer main extension contract because it entered into sewer main extension contracts with other developers after the construction of sewer lines on five other occasions. Developer was not involved in any of these projects. Developer cites no authority in support of this assertion, and we can find none. As noted previously, in the absence of a written contract, a municipal body cannot become liable based on estoppel. Allen, 591 S.W.2d at 725.

We hold that the developer’s claim for a contract and recoupment violates section 432.070 which requires a written contract supported by future consideration. Since sewer district’s point one is dispositive, we need not address point two.

The judgment of the trial court is reversed.

CRANDALL, J., concurs.

JAMES R. DOWD, J., concurs.

      . The developer filed three counter-claims. Count I sought a determination that the sewer district must execute a sewer main extension contract with the developer. Count II sought recovery under breach of an oral sewer main extension contract. Count III sought recov-eiy under equitable estoppel. Counts II and III were later dismissed by the developer without prejudice.

      . All other statutory references are to 1994 unless otherwise indicated.


text:
    Harold W. DAVIS, Respondent, v. Steve A. AZAR, Appellate.
    No. ED 77036.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 21, 2000.
    Fred Roth, Clayton, for appellant.
    Ryan S. Shaughnessy, Clayton, for respondent.
    Before CLIFFORD H. AHRENS, P.J., WILLIAM H. CRANDALL, J., and JAMES R. DOWD, J.
   ORDER

PER CURIAM.

Steve A. Azar appeals from a judgment in favor of Harold Davis in the amount of $3,953.00 for failure to return personal property. We have examined the briefs and the record on appeal and find no error of law. An extended opinion reciting the detailed facts and restating the principles of law would serve no precedential or jurisprudential value.

The judgment is affirmed in accordance with Rule 84.16(b).


text:
    COMMERCE BANK, a national banking association, Plaintiff/Appellant, v. Francis B. STEIN, III, a/k/a Bernard F. Stein, III, a/k/a Benney Stein, and First State Bank and Trust Company, Inc., and Addco, Inc., Defendants/Respondents.
    No. ED 77058.
    Missouri Court of Appeals, Eastern District, Southern Division.
    Nov. 21, 2000.
    Stephen R. Southard, Law firm of Spra-dling & Spradling, Cape Girardeau, MO, for Appellant.
    Francis B. Stein, Poplar Bluff, pro se.
    Rice Petree Burns Jr., Sikeston, for Respondent First Bank.
    Robert B. Fuchs, Sikeston, for Respondent ADDCO, Inc.
    Before HOFF, C.J., SULLIVAN, J., and DRAPER, J.
   ORDER

PER CURIAM.

Commerce Bank appeals from a trial court judgment finding against Commerce Bank and in favor of First State Bank and Trust Company, Inc. for negligent misrepresentation and in favor of Addco, Inc. as an owner and holder in due course. We have reviewed the briefs of the parties and the record on appeal and conclude that the judgment of the trial court is supported by substantial evidence, it is not against the weight of the evidence, nor does it erroneously declare or apply the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). An extended opinion would have no prece-dential value. We have, however, provided a memorandum opinion setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).


text:
    John E. CLARK, Appellant, v. DIRECTOR OF REVENUE, Respondent.
    No. ED 77189.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 21, 2000.
    Bernard F. Edwards, Jr., St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, for respondent.
    Before CLIFFORD H. AHRENS, P.J., WILLIAM H. CRANDALL, Jr., J., and JAMES R. DOWD, J.
   ORDER

PER CURIAM.

John E. Clark appeals from a circuit court decision upholding a revocation of his driving privileges by The Director of Revenue. The Director of Revenue revoked Clark’s privileges pursuant to § 577.041, RSMo Supp.1999, after Clark refused a chemical sobriety test. Clark filed a petition for review of the Director’s action in St. Louis City Circuit Court. Following a hearing, the circuit court denied Clark’s petition. We have examined the briefs and the record on appeal and find no error of law. An extended opinion reciting the detailed facts and restating the principles of law would serve no precedential or jurisprudential value.

The judgment is affirmed in accordance with Rule 84.16(b).


text:
    STATE of Missouri, ex rel., Julian Alexander JOHNSON, by Lorrie Stewart WATKINS, et al., Petitioners/Respondents, v. Steven Eric JOHNSON, Respondent/Appellant.
    No. ED 77203.
    Missouri Court of Appeals, Eastern District, Division Five.
    Nov. 21, 2000.

      Joseph Howlett, Howlett and Koester, Clayton, for appellant.
    Linda A. Colburn, Clayton, for respondents.
    Before HOFF, C.J. and CRANE, J. and CRIST, S.J.
   ORDER

PER CURIAM.

Steven Eric Johnson (Father) appeals from the trial court’s judgment in this paternity action under the Uniform Parentage Act, Sections 210.817 to 210.852 RSMo.1994 and Cum.Supp.1997.

We have reviewed the briefs of the parties, the legal file, and the record on appeal, and find the claims of error are without merit. The trial court’s judgment is supported by substantial evidence and is not against the weight of the evidence. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. The judgment is affirmed in accordance with Rule 84.16(b).

The parties have been furnished with a memorandum, for their information only, setting forth the reasons for the order affirming the judgment pursuant to Rule 84.16(b).


text:
    Jack L. FERGUSON, Respondent, v. REGIONAL PRIMARY CARE, INC. and Family Practice Specialty Center, Appellant.
    No. ED 77238.
    Missouri Court of Appeals, Eastern District, Southern Division.
    Nov. 21, 2000.
    John L. Oliver, Jr., Oliver, Oliver & Waltz, P.C., Jason G. Crowell, Cape Girar-deau, for appellant.
    John P. Lichtenegger, Liehtenegger, Weiss Fetterhof, Jackson, for respondent.
    Before MARY K. HOFF, C.J., RICHARD B. TEITELMAN, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Regional Primary Care, Inc., appeals from the judgment entered in the Circuit Court of Cape Girardeau County in favor of Jack L. Ferguson in his suit seeking recovery for a breach of employment contract.

We have reviewed the briefs of the parties and the record on appeal and no error of law appears. No precedential or jurisprudential purpose would be served by an extended opinion reciting detailed facts and restating principles of law. We have, however, provided the parties with a memorandum opinion for their exclusive use detailing the reasons for this decision. We affirm the judgment pursuant to Rule 84.16(b).


text:
    Devaneius BOSTIC, Appellant, v. Cortez MEEKS, by and through Marie MEEKS and the State of Missouri, Division of Family Services, Respondent.
    No. ED 77341.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 21, 2000.

      Randall D. Grady, Clayton, for appellant.
    Susan Smith Frederick, St. Louis, for respondent.
    Before CLIFFORD H. AHRENS, P.J., WILLIAM H. CRANDALL, J., JAMES R. DOWD, J.
   ORDER

PER CURIAM.

Devaneius Bostic appeals from the trial court’s dismissal of his suit on the pleadings. We have reviewed the brief, the record on appeal and considered the claims made at oral argument. We conclude that the judgment of the circuit court did not abuse its discretion in dismissing Bostic’s suit on the pleadings. 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 for their information only, setting forth the facts and reasons for this order. The judgment is affirmed pursuant to Rule 84.16(b).


author: ROBERT E. CRIST, Senior Judge.

text:
    CITY OF ST. LOUIS, Respondent, v. James H. ROLLINS and Beverly Taylor, Appellants.
    Nos. ED 77897, ED 77898.
    Missouri Court of Appeals, Eastern District, Division Five.
    Nov. 21, 2000.

      Bernard F. Edwards, Jr.; St. Louis, MO, for appellant.
    Edward J. Hanlon; Deputy City Counselor; Roberta L. Jestus; Assistant City Counselor, St. Louis, MO, attorney for respondent.
   ROBERT E. CRIST, Senior Judge.

James Rollins and Beverly Taylor (collectively referred to as “Appellants”) appeal the judgments dismissing their applications for trial de novo after the municipal court convicted both of them for multiple building code violations. We affirm the judgment against Taylor, but reverse and remand the judgment against Rollins.

On September 20, 1999, in the municipal division of the circuit court, the City of St. Louis (“City”) filed informations alleging thirty counts of building code violations against each appellant. Appellants jointly owned the property allegedly in violation at 1400 Glasgow. After trial, the municipal court found each appellant guilty of ten counts of building code violations. The record does not reveal the penalty assessed against each appellant. Regardless, Appellants filed separate applications for trial de novo in the circuit court. On February 23, 2000, the circuit court mailed individual notices to Appellants informing them that their request for a jury trial had been sustained and ordering them to appear on March 24, 2000 at 9:30 a.m. to be placed on the docket for trial. Both Appellants admittedly received the notice.

On March 24 at the appointed time, Taylor failed to appear at the circuit court. Rollins did appear and filed several motions pro se, including a motion to proceed with discovery, a motion to consolidate his case with Taylor’s case, and a motion to dismiss the City’s cause. Rollins also sought a motion for continuance so he could obtain counsel. According to Appellants, and not denied by City, the events of March 24 were not placed on the record and no transcript exists of those events. The legal file shows the circuit court denied all of Rollins’s motions at that time. In Taylor’s case, the circuit court found she had failed to appear and denied her application for trial de novo for failure to prosecute, remanding her cause to the municipal court for further proceedings. In Rollins’s case, the circuit court entered an order denying his trial de novo for failure to prosecute as well and remanded it to the municipal court.

Appellants filed motions to set aside the circuit court’s orders dismissing their causes and remanding them. The circuit court held a hearing on the motions. At the hearing, Taylor admitted she failed to appear because she was out of town at a church convention in Omaha, Nebraska. She admitted she received notice, but failed to discuss a continuance with any one at the court. Rollins, on the other hand, testified that he did appear on the appointed date and sought continuances for both Taylor and himself. It was revealed that at the March 24 proceeding the City had informed the court that Rollins had denied the City access to the property to determine if Rollins had remedied the violations.

The circuit court denied both motions to set aside. The court found Taylor’s reasons for failing to appear were inadequate. The court further found that “the actions of Mr. Rollins throughout these proceedings has been for the expressed purposes of hindering the judicial process and flow of the procedure.”

Appellants contend the circuit court erred in dismissing their applications for trial de novo for failure to prosecute without granting them a jury trial because their written request had already been sustained. Appellants argue that under the Rules of Criminal Procedure, the circuit court could not dismiss their cases without a jury trial after docketing them. As a new proceeding, Appellants assert the City had the burden of proving them guilty and they had no duty to prosecute their case.

We agree that under the law Appellants had the opportunity to require the City to establish their guilt a second time. In the circuit court, Appellants maintain their status of innocence and have no burden of “going forward.” State ex rel. Garrett v. Gagne, 531 S.W.2d 264, 267 (Mo. banc 1975). However, in trial de novo proceedings, Appellants may also suffer the dismissal of their application prior to trial. The filing of an application for trial de novo alone does not vacate or annul the municipal court’s judgment but merely suspends it pending a final disposition of the trial de novo in the circuit court. Id. at 266. Certainly, if trial had commenced, Appellants would have been entitled to a jury trial. However, until the trial commenced, the judgment of the municipal division remained in effect and was available for full reinstatement without a jury trial. Therefore, under certain circumstances, the circuit court could dismiss Appellants’ cases and remand them to the municipal court.

The question remains, however, whether any of those circumstances existed in Appellants’ cases. Dismissal of a trial de novo can occur for various reasons. First, prior to trial, an applicant could dismiss or withdraw his or her petition for trial de novo. Rule 37.72. Further, the court could find the applicant had abandoned the trial de novo. Rule 37.72 provides:

The filing of an application for trial de novo or review shall suspend the execution of the judgment of the municipal division. If the applicant for trial de novo withdraws the application or, if before the commencement of trial, the court enters a finding that the applicant has abandoned the trial de novo, the case shall be remanded to the municipal division for execution of judgment.

In addition, the applicant could fail to appear in the circuit court, providing the court with the discretion to either dismiss the de novo proceeding and remand the case to the municipal court or to issue a capias warrant and have the applicant brought to the circuit court for the trial de novo. Id. at 267; City of Kansas City v. Johnney, 760 S.W.2d 930, 932 (Mo.App. W.D.1988).

Here, Taylor failed to appear because she was out of town. “Absent some reason making it impossible to appear, an accused by his [or her] absence evidences his [or her] disdain for the law and its legal processes.” Gagne, 531 S.W.2d at 267. Here, the circuit court found Taylor had an inadequate reason for failing to appear. Certainly, it was not impossible for her to appear. As such, the circuit court could properly dismiss her application for trial de novo and remand it to the municipal court. See, State v. Coplin, 588 S.W.2d 48, 49-50 (Mo.App. E.D.1979). Therefore, we affirm the trial court’s judgment dismissing her application and remanding her case back to the municipal court.

However, none of the circumstances set forth in the rule or in the Gagne decision apply to Rollins. Rollins did appear at the circuit court and defended his ease on March 24 by filing several motions. He did not withdraw his application or abandon his trial de novo. We find, therefore, no grounds for dismissal of his application for trial de novo. Accordingly, we reverse the judgment dismissing his application and remand it for further proceedings in the circuit court.

Affirmed in part and reversed and remanded in part.

HOFF, Chief Judge and CRANE, Judge, concur.


text:
    PVI, INC., and William G. Skelly, Appellants, v. Klaus LICHTENBERGER, et al., Respondents.
    No. WD 58068.
    Missouri Court of Appeals, Western District.
    Nov. 21, 2000.
    Robert B. Best, Jr., Kansas City, for appellants.
    Tamra Wilson-Setser, Kansas City, for respondents.
    Before EDWIN H. SMITH, Presiding Judge, ULRICH, Judge and ELLIS, Judge.
   ELLIS, Judge.

PVI, Inc., and William G. Skelly (“appellants”) brought an action against Martec Pharmaceutical, Inc. (“Martec”) and certain individual members of Martec’s Board of Directors, asserting claims for breach of fiduciary duties and requesting damages and injunctive relief. On December 2, 1999, the trial court granted the defendants’ Motion for Summary Judgment and found all other pending motions moot. This appeal follows.

Plaintiffs filed their petition on October 31, 1996, and alleged that they were the minority shareholders of Martec, owning 49% of Martec’s outstanding shares. The petition further generally alleged the following. Martec was engaged in the distribution and sale of generic pharmaceuticals in the United States and was wholly owned by PVI. On March 1, 1990, PVI entered into a written agreement with Martec, ra-tiopharm and Mepha. One of the purposes stated in this agreement was to make Martec into a “major pharmaceutical company.” When ratiopharm and Mepha failed to provide the expected generic products for Martec to market, Martec’s projected revenues and profits suffered. To ameliorate the problems caused by that delay, ratiopharm proposed establishing manufacturing facilities at Martec’s premises so that Martec’s new products could be developed and manufactured entirely in the United States. Thereafter, ratiop-harm caused Martec to borrow between five and six million dollars to design, construct and equip an on-site manufacturing facility. This facility was completed in late summer of 1996.

In mid-October 1996, appellants discovered that ratiopharm had formed a new wholly-owned subsidiary, Martec Scientific, Inc., and that ratiopharm intended, through its control of the Martec directors named as defendants, to transfer ownership of the new Martec manufacturing facility to Martec Scientific. That transfer was ultimately accomplished. The result was to remove the manufacturing facility from a company in which appellants owned 49% of the stock to a company in which ratiopharm owned 100% of the stock. Appellants alleged that they were damaged due to the substantial depletion of the assets of Martec and that this was a breach of the fiduciary duties owed by the defendants to appellants as minority shareholders.

Prior to the present State court action against Martec and the other defendants, appellants filed a lawsuit in the United States District Court for the Western District of Missouri against ratiopharm. Upon motion made, the instant case was stayed pending the completion of discovery in the federal case. The federal case was apparently concluded in March 1999. Respondents then filed a motion to dismiss the instant action asserting that appellants lacked standing to sue derivatively on behalf of Martec. They also amended their answer in this case to assert that the appellants’ claims were barred by res judi-cata and collateral estoppel arising from the judgment in the federal case. The appellants filed suggestions in opposition to the motion to dismiss on May 3, 1999. Also, on May 10, 1999, appellants filed a motion for leave to file a first amended petition, with the proposed petition attached, and suggestions in support thereof. The trial court held a hearing on September 2, 1999, to hear arguments on the respondents’ motion to dismiss. The court apparently took the motion to dismiss under advisement. Thereafter, on November 30, 1999, respondents filed a motion for summary judgment raising the issues of standing, res judicata and collateral estop-pel. On December 2, 1999, before the appellants had responded to the motion, the trial court entered its order sustaining the motion for summary judgment. This appeal follows.

Our review of the grant of summary judgment is essentially de novo. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Thus:

[t]he criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially. The propriety of summary judgment is purely an issue of law. As the trial court’s judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court’s order granting summary judgment.

Id. (citations omitted).

The grant of summary judgment will be affirmed on appeal if: (1) there are no genuine disputes of material fact, and (2) the movant is entitled to judgment as a matter of law. Id. at 378.

When considering appeals from summary judgments, the [cjourt will review the record in the light most favorable to the party against whom judgment was entered. The facts set forth by affidavit or otherwise in support of a party’s motion are taken as true unless contradicted by the non-moving party’s response to the summary judgment motion. We accord the non-movant the benefit of all reasonable inferences from the record.

Id. at 376 (citations omitted).

In their first point, appellants claim the trial court erred in granting summary judgment to the respondents because it entered the judgment before appellants filed a response to the motion and long before their time for filing a response expired, all in violation of Rule 74.04(c)(2) & (3). As noted previously, the respondents filed their motion for summary judgment on November 30, 1999, and the trial court entered its judgment on December 2, 1999, the second day after the motion was filed.

Rule 74.04(c)(2) declares that after a motion for summary judgment has been filed, the adverse party shall serve a response on all parties within thirty days. Rule 74.04(c)(3) provides, in pertinent part:

Rulings on Motions for Summary Judgment After the response has been filed or the time for filing the response has expired, whichever is earlier, the judgment sought shall be entered forthwith if a motion for summary judgment and response thereto show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

As this court recently noted:

Given the fact that summary judgment ‘borders on a denial of due process,’ any summary judgment procedure, in order to avoid violating a non-movant’s rights to due process, must necessarily provide for a reasonable time within which the non-movant can respond to the motion for summary judgment. In this regard, Rule 74 .04(c)(2) allows the non-movant 30 days within which to respond.

Lawrey v. Reliance Insurance Company, 26 S.W.3d 857, 863 (Mo.App. W.D.2000) (citations omitted). “The rule is designed to allow the adverse party time and opportunity to file affidavits in opposition to the motion as well as to gather and then present its evidence at the hearing.” Joachim Sav. & Loan Ass’n v. State Farm Fire & Cas. Co., 764 S.W.2d 648, 650 (Mo.App. E.D.1988).

In this case, the record reveals that the trial court granted summary judgment two days after the filing of the motion for summary judgment. This was a clear violation of the rule and deprived the appellants of the opportunity to file affidavits in opposition to the motion. It was error for the trial court to grant the motion for summary judgment without allowing appellants an opportunity to respond. Morris v. Johnson, 949 S.W.2d 678, 681 (Mo.App. E.D.1997).

Respondents nevertheless argue that the trial court was actually granting their previously filed and argued motion to dismiss and treating it as a motion for summary judgment rather than granting their motion for summary judgment filed on November 30, 1999. They argue that under Rule 55.27(a), where a motion to dismiss includes matters outside the pleadings and those matters are not excluded by the court, the motion is converted to one for summary judgment and disposed of as provided by Rule 74.04. The argument overlooks the fact that the trial court does not suggest anywhere that it was treating the previously filed motion to dismiss as one for summary judgment. Moreover, the court’s judgment specifically states that it is granting the respondents’ motion for summary judgment and acknowledges that other motions, such as the motion to dismiss, were pending but that they became moot by virtue of the grant of sum-mai*y judgment. Accordingly, respondents’ contention is without merit.

The grant of summary judgment in favor of respondents is reversed and the cause is remanded to the trial court for further proceedings consistent with this opinion.

All concur.


author: MARY RHODES RUSSELL, Judge.

text:
    STATE of Missouri, Respondent, v. Demetrius BATTLE, Appellant.

      No. ED 76669.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 21, 2000.

      James C. Ochs, Richard D. Klein, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, for respondent.
   MARY RHODES RUSSELL, Judge.

Demetrius Battle (“defendant”) appeals from a judgment entered after a jury verdict convicting him of murder in the second degree in violation of section 565.021 RSMo 1994 and armed criminal action in violation of section 571.015. Defendant was sentenced to concurrent terms of life imprisonment for second-degree murder and thirty years for armed criminal action. Defendant contends that the trial court erred in refusing to instruct the jury on the lesser included offenses of voluntary manslaughter and involuntary manslaughter. We agree in that the court must instruct on a lesser included offense if there is a basis for acquittal of the charged offense and conviction of the lesser included offense. We reverse and remand for a new trial.

In determining whether a basis existed to support a lesser included offense instruction, we recite the facts and review the evidence in the light most favorable to the defendant. State v. Hill, 17 S.W.3d 157, 159 (Mo.App.2000). In the early morning on May 10, 1998, defendant went to a nightclub in downtown St. Louis, where he met his girlfriend. The victim, King Wade Jones (“victim”), who had formerly dated and had a child with defendant’s girlfriend, was also at the nightclub. Victim apparently believed that defendant and his girlfriend were interfering with his ability to see his child. While at the nightclub, victim made sarcastic remarks to defendant’s girlfriend and continuously stared at her and defendant. Victim nudged defendant several times with his elbow so as to spill defendant’s drink and, while glaring at him in an intimidating manner, stated, “What the f_you looking at?” and “You ain’t going to keep me from my kid.”

Defendant and his girlfriend left the nightclub at 3 a.m., just as it was closing. As defendant and his girlfiiend were standing near defendant’s car, victim parked his car nearby and began complaining to a friend that defendant’s girlfriend would not let him see his child. He stated that he wished he had not bought her something for Mother’s Day. Victim became enraged when he heard someone yelling from the direction of defendant and his girlfriend. He jumped out of his car and yelled towards defendant and his girlfriend, “What the f_did you say?” Defendant and his girlfriend did not reply, but got in defendant’s car and left. Victim remained in the parking lot for a few more minutes, while his friend tried to calm him down. Victim then left by himself and followed after defendant and his girlfriend.

While travelling west on Interstate 70, victim pulled up behind defendant’s car and began flashing his headlights. Victim then pulled his car alongside defendant’s and demanded that defendant pull over. When defendant refused, victim swerved at defendant’s car several times in an unsuccessful attempt to run defendant’s car off the road. Defendant sped up but was unable to elude victim, who followed defendant to his St. Charles County residence at speeds of up to 100 miles per hour.

As defendant was pulling into his driveway, he told his girlfriend, “Let’s run inside.” Defendant then parked the car with the lights on and the engine running, jumped out, and ran to the front door of his residence. Before his girlfriend could get out of the car, however, victim was at her door. Victim reached inside the car and struck defendant’s girlfriend in the face. Defendant’s girlfriend then exited the car screaming and crying. She repeatedly implored victim to leave, at which point victim grabbed her shirt and neck and said, “You stupid bitch, I’ll f_kill you. You don’t know who I am.”

While unlocking the door to his residence, defendant witnessed the altercation between his girlfriend and victim. He was frightened and ran inside “to try to find something to scare [victim] off.” He stumbled down his basement stairs and, upon hearing his girlfriend screaming outside, grabbed a gun from his bedroom. He ran outside with the gun pointed at victim and, in a scared and frightened voice, commanded him to leave. Victim replied, “You stupid f_, you don’t know who the f— I am.... F_you, you ain’t doing shit to me. You don’t know who I am. This is — this is not over.” After defendant told him to leave three or four times, victim started to get into his ear, but the two men continued arguing. As victim was getting into the car, he grabbed the gun and tried to pull it away from defendant. The gun, however, discharged. Defendant did not know where the first shot went, but saw victim turn and lean toward the passenger seat in the direction of the glove compartment. Defendant believed victim was trying to grab a weapon, so he panicked and fired two more shots. The gun discharged a fourth time when it hit the car door as defendant was backing away from the car.

Evidence adduced at trial indicated that all four shots struck victim. The first bullet entered victim’s left cheek, just below the cheekbone. There was no evidence that this wound rendered victim unconscious. The sequence of the final three shots was unclear. One of the bullets grazed the back of victim’s left shoulder. The other two bullets struck victim in the left back area, puncturing victim’s lung and aorta. These were the fatal shots.

The jury was instructed on first-degree murder, second-degree murder, self-defense, and armed criminal action. Defendant was convicted of murder in the second degree and armed criminal action, for which he was sentenced to concurrent terms of life imprisonment and thirty years, respectively. He now appeals.

Defendant contends the trial court erred in failing to instruct the jury on the lesser included offenses of voluntary and involuntary manslaughter.

A trial court must instruct on a lesser included offense if there is a basis for acquittal of the charged offense and conviction of the lesser included offense. Section 556.046.2; Hill, 17 S.W.3d at 159. A defendant is entitled to a requested instruction that is supported by the evidence and any inferences logically flowing from the evidence. Id. The court should submit a requested instruction, “if the evidence arguably shows lack of an essential element of the higher offense which would not only authorize acquittal of the higher, but sustain conviction of the lesser.” Id. Any doubts about whether to instruct on a lesser included offense should be resolved in favor of instructing on the lesser offense, leaving it to the jury to decide which of two or more grades of an offense, if any, the defendant is guilty of. Id.; State v. Santillan, 948 S.W.2d 574, 577 (Mo. banc 1997).

Voluntary manslaughter occurs when one causes the death of another under circumstances that would constitute murder in the second degree except that the death was caused “under the influence of sudden passion arising from adequate cause.” Section 565.023.1(1). “Sudden passion” means “passion directly caused by and arising out of provocation by the victim or another acting with the victim which passion arises at the time of the offense and is not solely the result of former provocation.” Section 565.002(7). “Adequate cause” means “cause that would reasonably produce a degree of passion in a person of ordinary temperament sufficient to substantially impair [his] capacity for self-control.” Section 565.002(1).

The concept of sudden passion arising from adequate cause is an objective standard that is measured by the ordinary person’s capacity for self-control. State v. Fears, 803 S.W.2d 605, 609 (Mo. banc 1991). Passion may be rage, anger, or terror, but it must be so extreme that, for the moment, the action is being directed by passion rather than reason. Id. Sudden passion is not established where there has been time for the passion to cool. Id. To be “adequate,” the provocation must be of a nature calculated to inflame the passions of the ordinary, reasonable, temperate person and must result from a sudden, unexpected encounter or provocation tending to excite the passion beyond control. Id. Words alone, no matter how offensive or insulting, are not sufficient to show adequate provocation. Id. The defendant has the burden of injecting the issue of influence of sudden passion arising from adequate cause. Section 565.023.2.

In the hours preceding the shooting, victim continuously glared at defendant and his girlfriend; nudged defendant several times so as to spill his drink; tried to ran defendant’s car off the road; followed defendant to his residence at speeds of up to 100 miles per hour; physically struck defendant’s girlfriend on multiple occasions; and made numerous threatening remarks to defendant and his girlfriend, such as “I’ll kill you” and “This ain’t over.” Victim also lunged for defendant’s gun, causing it to discharge. Victim then leaned toward the passenger seat in the direction of the glove compartment. Defendant did not know that the first shot struck victim and, in any event, there is no evidence that the first shot rendered victim unconscious and incapable of reaching for or using a weapon on defendant or his girlfriend. All these events were close in time, particularly those occurring at defendant’s residence, and could have caused a reasonable person to lose control and act out of passion rather than reason. On these facts, there is a basis for the jury to have convicted defendant of voluntary manslaughter and, therefore, the trial court erred in not instructing on voluntary manslaughter.

The crime of involuntary manslaughter requires that the defendant recklessly cause the death of another person. Section 565.024.1(1). A person acts recklessly if he “consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” Section 562.016.4. Recklessness is similar to knowing conduct in that it involves awareness, but it is an awareness of risk that is of a probability less than a substantial certainty. State v. Beeler, 12 S.W.3d 294, 299 (Mo. banc 2000). By contrast, the second-degree murder offense of which defendant was convicted requires that he cause the death of a person either knowingly or with the purpose of causing serious physical injury. Section 565.021.1(1). To act knowingly is to be aware that the conduct is practically certain to cause a result. Section 562.016.3.

The Supreme Court of Missouri has found that recklessness includes the conscious firing of a gun with disregard for a substantial and unjustifiable risk that death will result and that such conduct constitutes a gross deviation from what a reasonable person would do to protect himself. Beeler, 12 S.W.3d at 297. Thus, the court concluded, reckless conduct is not inconsistent with self-defense where unreasonable force is used. Id. at 299. The court explained:

The jury could believe the defendant acted unreasonably in defending himself, but not believe defendant had the requisite intent for second degree murder; that is, he did not knowingly cause the victim’s death or have a purpose to do great harm to the victim. The jury in such case would acquit of second degree murder. At the same time, the jury could consistently find that the homicide involved a conscious disregard of a substantial and unjustifiable risk of death to the victim and that the force used was a gross deviation from that force reasonably necessary for defendant to protect himself. Because there is neither a statutory prohibition nor a logical inconsistency between acquittal of second degree murder involving a claim of self-defense and conviction of involuntary manslaughter, the giving of the lesser included offense instruction is not necessarily error. Indeed, where the evidence permits an inference of reckless conduct and the state or accused requests the instruction, the trial court is obligated to give a proper involuntary manslaughter instruction.

Id. at 300 (citation omitted).

This court has previously recognized that, under Beeler, it is proper to give an involuntary manslaughter instruction in a factual situation such as this, where second-degree murder is charged and self-defense is at issue in the shooting death of a person in a stopped vehicle. State v. Davis, 26 S.W.3d 329, 332 (Mo.App.2000).

A reasonable jury could have found that defendant acted recklessly when he responded to the perceived threat of a weapon by aiming and discharging his gun in defendant’s direction. The jury could believe that defendant lacked the intent for second-degree murder, while also determining that defendant disregarded a substantial and unjustifiable risk that death would result and that the force used was a gross deviation from what a reasonable person would do to protect himself. Thus, the trial court erred in failing to give an involuntary manslaughter instruction. Point granted.

We do not address defendant’s remaining points on appeal as their resolution would require an analysis of facts and circumstances existing at the time of this trial, which will likely be different when the case is retried.

Reversed and remanded for a new trial consistent with this opinion.

ROBERT G. DOWD, Jr., P.J., and RICHARD B. TEITELMAN, J., concur.

      . All further statutory references are to RSMo 1994 unless otherwise indicated.


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    STATE of Missouri, Respondent, v. William R. WRIGHT, Appellant.
    No. ED 77015.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 21, 2000.
    Rosalynn Koch, Asst. Public Defender, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Atty Gen., Jefferson City, for respondent.
    Before AHRENS, P.J., CRANDALL, J., and JAMES R. DOWD, J.
   ORDER

PER CURIAM.

William R. Wright (“defendant”) was charged by amended information with murder in the first degree, section 565.020 RSMo 1994, and armed criminal action, section 571.015 RSMo. A jury convicted defendant of both charges. The court sentenced defendant to life imprisonment without the possibility for probation or parole on the murder charge and a consecutive sentence of life imprisonment for the armed criminal action charge. Defendant appeals from the judgment on his conviction.

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

The judgment of the trial court is affirmed in accordance with Rule 30.25(b).


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    Mack McCAIN, Respondent, v. Cheryl WASHINGTON, Appellant.
    No. 77487.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 21, 2000.
    Kayla Vaughan, Legal Services of Eastern Missouri, Inc., St. Louis, for appellant.
    Before AHRENS, P.J., CRANDALL, J., JAMES R. DOWD, J.
   ORDER

PER CURIAM.

Cheryl Washington appeals from the Circuit Court of St. Louis County judgment finding that she must pay a total of $1,000 in damages for ten months she unlawfully occupied a three-bedroom home owned by Dr. Mack McCain. We have reviewed appellant’s brief and the record on appeal and conclude that the judgment of the circuit court is supported by substantial evidence and is not against the weight of the evidence. An opinion reciting the detailed facts and restating the principles of law would have no prece-dential value; but the parties have been furnished with a memorandum for their information, setting forth the facts and reasons for this order. The judgment is affirmed pursuant to Rule 84.16(b).


author: PER CURIAM:

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    Joshua HURSHMAN, Appellant, v. STATE of Missouri, Respondent.
    No. WD 58079.
    Missouri Court of Appeals, Western District.
    Nov. 21, 2000.
    Tara L. Jensen, Asst. Public Defender, Kansas City, for Appellant.

      Jeremiah W. (Jay) Nixon, Atty. Gen., John M. Morris, Asst. Attorney General, Jefferson City, MO, for Respondent.
    Before LOWENSTEIN, P.J., LAURA DENVIR STITH and NEWTON, JJ.
   ORDER

PER CURIAM:

Mr. Joshua Hurshman pled guilty to robbery in the first degree, a class A felony, in violation of Section 569.020, RSMo 1994, and armed criminal action, in violation of Section 571.015, RSMo 1994. He was sentenced to concurrent terms of eighteen and five years imprisonment. Mr. Hurshman filed a pro se and amended Rule 24.035 motion claiming ineffective assistance of counsel. The motion court issued findings of fact and conclusions of law denying the Rule 24.035 motion without a hearing. We affirm. Rule 84.16(b).


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    Michael Lee DALTON, Respondent, v. Angela M. DUNZ, Appellant.
    No. WD 58024.
    Missouri Court of Appeals, Western District.
    Nov. 21, 2000.
    Kevin W. Kenney, Kansas City, for Appellant.
    Lynn K. Ballew, Harrisonville, for Respondent.
    Before SPINDEN, C.J., and EDWIN H. SMITH and HOWARD, JJ.
   ORDER

PER CURIAM.

Angela M. Dunz appeals from the trial court’s denial of her motion to modify custody with respect to her daughter, Rachel Dalton.

Affirmed. Rule 84.16(b).


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    Mark KONRADT, Appellant, v. ORKIN EXTERMINATING, INC., et al., Respondents.
    No. ED 77564.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 21, 2000.
    Keith E. Link, St. Louis, for appellant.
    Timothy M. Tierney, Mary Anne Lindsey, Evans & Dixon, L.L.C., St. Louis, for respondent.
    Before: CLIFFORD H. AHRENS, P.J., WILLIAM H. CRANDALL, Jr., J„ ' JAMES R. DOWD, J.
   ORDER

PER CURIAM.

Mark Konradt appeals the Labor & Industrial Relations Commission award denying him benefits because he failed to prove that a back injury he sustained was clearly work-related. We affirm.

We have reviewed the briefs of the parties and the record on appeal, and we have considered the points made during oral argument. We find no error of law and the order of the Commission is supported by substantial evidence. An opinion reciting the detailed facts and restating the principles of law would have no prece-dential value. We have, however, furnished the parties with a memorandum setting forth the facts and reasons for this order. The award is affirmed pursuant to Rule 84.16(b).