author: KAREN KING MITCHELL, Judge.

text:
    Gerard P. MENGWASSER, Appellant, v. ANTHONY KEMPKER TRUCKING, INC., Respondent.
    No. WD 70835.
    Missouri Court of Appeals, Western District.
    March 23, 2010.
    As Modified April 27, 2010.

      Randy W. James, Lee’s Summit, MO, for Appellant.
    Russell F. Watters, Chad M. deRoode, and Patrick A. Bousquet, St. Louis, MO, for Respondent.
    Before Division III: JAMES EDWARD WELSH, Presiding Judge, and MARK D. PFEIFFER and KAREN KING MITCHELL, Judges.
   KAREN KING MITCHELL, Judge.

This is a negligence case in which the jury returned a verdict for the defendant. The plaintiff appeals, arguing that the trial court abused its discretion in admitting certain evidence, refusing to admit certain other evidence, and in failing to give a jury instruction proposed by the plaintiff. We affirm.

Factual and Procedural Background

Appellant Gerald P. Mengwasser was a passenger in a pick-up truck that collided with a dump truck which was operated by Dennis Braun and owned by Respondent Anthony Kempker Trucking, Inc. (“Kempker”). The driver of Mr. Meng-wasser’s vehicle was his wife, Sandra Mengwasser. At the time of the accident, Mrs. Mengwasser and Mr. Braun were driving on a two-lane highway. Both vehicles were traveling in the same direction, with Mr. Braun in the lead and several vehicles between his dump truck and Mrs. Mengwasser’s pick-up. Mr. Braun had come to a stop in order to turn left off of the highway. Seeing a line of slow-moving or stopped vehicles in front of her, Mrs. Mengwasser pulled into the left (oncoming traffic) lane and attempted to simultaneously pass at least three, and as many as seven, vehicles, one of which was an eighteen-wheeler. Mr. Braun had turned his blinker on and had begun slowing down a quarter of a mile before he began to turn left. Mr. Braun looked in his rearview mirror before turning left and did not see Mrs. Mengwasser’s vehicle. Mrs. Meng-wasser increased her speed in order to pass the other vehicles. The driver in the vehicle immediately behind the dump truck heard the acceleration of the Meng-wassers’ vehicle as it passed. The Meng-wassers’ vehicle struck the driver’s side of the Kempker truck as the truck turned left. Mr. Mengwasser later told medical professionals at the Rusk Rehabilitation Center that he was frustrated with his wife because he had warned her about the dump truck turning left while she was attempting to pass it.

Mr. Mengwasser was injured in the accident and sued Kempker on the theory that Kempker was vicariously liable for the alleged negligence of Mr. Braun. In its answer, Kempker pled (in the form of denials) that Mr. Braun did not act negligently and that Mr. Braun’s actions did not proximately cause Mr. Mengwasser’s injuries. As an affirmative defense, Mr. Braun pled the comparative fault of both Mr. and Mrs. Mengwasser.

Prior to trial, Mr. Mengwasser settled any claims that he had against Mrs. Meng-wasser. Kempker filed an amended answer, asserting a setoff for the amount received by Mr. Mengwasser in settlement proceeds, $50,000. As it had done in its initial answer, Kempker pled that Mr. Braun did not act negligently and that he did not proximately cause Mr. Mengwas-ser’s injuries. In addition, Kempker again pled the affirmative defense of comparative fault.

The matter was tried by jury on November 19-21, 2008. Mr. Mengwasser filed a motion in limine to exclude all evidence and argument tending to show that Mrs. Mengwasser was at fault in causing the accident. The trial court held that it would listen to the evidence and decide what to do at the instructions conference. The trial court noted, however, that it did not “know how you try an automobile accident without being able to say what both drivers did.” Mr. Mengwasser then moved to have his statement to the medical professionals, regarding his wife’s fault, excluded. The court overruled Mr. Meng-wasser’s motion, ruling that the statement could come in to impeach Mr. Mengwas-ser’s testimony and as an admission “that someone else was at fault and that he warned her about it.”

Kempker’s counsel mentioned Mr. Mengwasser’s statement to the medical professionals, regarding Mrs. Mengwas-ser’s fault, in his opening statement. On cross-examination of Mr. Mengwasser, counsel for Kempker asked him, over a continuing objection, if he had made the statement, and Mr. Mengwasser stated that he did not remember but that he may have. On cross-examination of Mrs. Mengwasser, counsel for Kempker asked her if she thought that passing multiple cars at one time was unsafe. Counsel for Mr. Mengwasser objected on the grounds that the question “[cjalls for a legal conclusion and invades the province of the jury.” The trial court overruled the objection. Mrs. Mengwasser testified that she thought passing multiple cars at one time was unsafe but that she had never passed “multiple” vehicles at once.

Near the close of trial, Mr. Mengwasser moved to admit evidence of the settlement agreement between Mr. Mengwasser and Mrs. Mengwasser and to instruct the jury that “[i]n determining the amount of plaintiffs damages, you are not to consider any evidence of prior payments to plaintiff. The judge will consider any such payment and make an adjustment if required by law.” The court noted that the instruction, Missouri Approved Instruction (“MAI”) 34.05, should be given “[i]f the case is submitted under comparative fault” and that Kempker had not yet submitted a comparative fault instruction. At this time, Kempker formally withdrew its affirmative defense of comparative fault. The trial court then overruled Mr. Mengwas-ser’s motion.

During closing argument, counsel for Kempker stated that the accident occurred “[bjecause somebody was in a hurry to get to the destination, made a bad mistake, and now does not want to take responsibility for that mistake.” Counsel for Mr. Mengwasser then renewed Mr. Mengwas-ser’s motion for the MAI 34.05 instruction and asked that counsel be permitted to mention the settlement in her closing argument. The trial court overruled the motion.

The jury returned a defense verdict. Judgment was entered, noting that the jury had found Kempker to be 0% at fault. This appeal follows.

Mr. Mengwasser argues that the trial court abused its discretion in permitting Kempker to argue that Mrs. Mengwasser was negligent and that her actions proximately caused the accident. Mr. Meng-wasser argues further that the trial court abused its discretion in refusing to admit evidence of Mrs. Mengwasser’s settlement and in failing to instruct the jury that it should disregard prior payments in determining the amount of Mr. Mengwasser’s damages. We affirm.

Standard of Review

We review the issues raised by Mr. Mengwasser under an abuse of discretion standard. Peters v. GMC, 200 S.W.3d 1, 22 (Mo.App. W.D.2006) (holding that the trial court’s ruling on the admissibility of evidence is reviewed under an abuse of discretion standard); Intertel, Inc. v. Sedgwick Claims Mgmt. Servs., Inc., 204 S.W.3d 183, 193 (Mo.App. E.D.2006) (holding that a trial court’s refusal to give a jury instruction is reviewed under an abuse of discretion standard). “The trial court abuses its discretion when its ruling is clearly against the logic of the circumstances then before the trial court and is so unreasonable and arbitrary that the ruling shocks the sense of justice and indicates a lack of careful deliberate consideration.” Peters, 200 S.W.3d at 23.

Legal Analysis

A. Evidence and argument showing that Mrs. Mengwasser’s negligence proximately caused the subject accident.

Mr. Mengwasser first argues that the trial court abused its discretion in admitting evidence of Mrs. Mengwasser’s fault in proximately causing the accident. We disagree.

1. Relevance

Mr. Mengwasser argues that evidence tending to show that Mrs. Mengwas-ser’s conduct proximately caused the accident should have been excluded because it was irrelevant.

The principal criterion for the admission of evidence is relevancy. Evidence is logically relevant if it tends to prove or disprove a fact in issue or corroborate other evidence. Logically relevant evidence is not necessarily admissible; the evidence must also be legally relevant. Legal relevance involves a process through which the probative value of the evidence (its usefulness) is weighed against the dangers of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time or needless presentation of cumulative evidence (the cost of evidence).

Porter v. Toys ‘R’ Us-Del., Inc., 152 S.W.3d 310, 318 (Mo.App. W.D.2004) (internal citations and quotation marks omitted).

Evidence that tended to prove that Mrs. Mengwasser, and not Mr. Braun, proximately caused the accident was logically relevant in that it tended to prove or disprove a fact in issue. In order to be entitled to relief, Mr. Mengwasser had the burden to prove by a preponderance of the evidence that Mr. Braun’s actions were a proximate cause of the accident. Teichman v. Potashnick Constr., Inc., 446 S.W.2d 393, 398 (Mo. banc 1969) (“One of the essential elements of actionable negligence is that it must have been a proximate cause of injury.”). “Proximate cause is commonly defined by the courts as that cause that, in a natural and continuous sequence, unbroken by any efficient intervening cause, produced the result complained of, and without which the result would not have occurred.” Kilmer v. Mun, 17 S.W.3d 545, 551-52 n. 19 (Mo. banc 2000). “The general test for proximate cause is whether an injury is the natural and probable consequence of the defendant’s negligence.” Stanley v. City of Independence, 995 S.W.2d 485, 488 (Mo. banc 1999). “[T]he issue of proximate cause is ordinarily a jury question.... ” Dintelman v. McHalffey, 435 S.W.2d 633, 636 (Mo.1968). Thus, whether Mr. Braun’s actions were a proximate cause of the accident was “at issue,” see Porter, 152 S.W.3d at 318, because Mr. Mengwasser had to prove that his injuries were the “natural and probable consequence of [Mr. Braun’s] negligence.” Stanley, 995 S.W.2d at 488.

Evidence that Mrs. Mengwas-ser did proximately cause the accident was “logically relevant” because it tended to show that Mr. Braun did not proximately cause the accident. See Porter, 152 S.W.3d at 318. “[B]oth as a matter of law and as a matter of logic, evidence that a third party caused the injury may be relevant and necessary to the jury’s determination of the negligence and causation issues.” Whisenand v. McCord, 996 S.W.2d 528, 531 (Mo.App. W.D.1999). The rules of evidence do not prevent a defendant from arguing that the act of a third person, even a non-party, was the sole cause of the plaintiffs injuries. Oldaker v. Peters, 817 S.W.2d 245, 253 (Mo. banc 1991) (citing Simpson v. Smith, 771 S.W.2d 368, 373 (Mo.App. S.D.1989)); Whisenand, 996 S.W.2d at 531 (“Defendant may even introduce evidence that someone else is the sole cause of the accident....”). That is what Kempker did, and the trial court did not abuse its discretion in overruling Mr. Mengwasser’s objections.

Mr. Mengwasser does not argue that the cost of the evidence — the danger of unfair prejudice, etc. — outweighed the evidence’s usefulness, and therefore we need not address whether the second prong of the relevancy analysis has been met. Porter, 152 S.W.3d at 318 (holding that evidence must be both logically and legally relevant). Moreover, even if that issue were before us, we see nothing in the record that would indicate that the trial court abused its discretion in finding that the usefulness of the evidence outweighed any potential prejudice or other cost of the evidence.

2. Section 537.060 did not impact the relevancy of evidence tending to show that Mrs. Mengwasser’s negligence proximately caused the accident.

Mr. Mengwasser argues that section 537.060 renders any evidence of his wife’s fault irrelevant. We disagree.

Section 537.060 provides, among other things, that a settling tortfeasor shall be discharged from all liability for contribution or non-contractual indemnity to any other tortfeasor. As a companion to section 537.060, the rule in Missouri is that, for the purpose of determining comparative fault, “fault is only to be apportioned among those at trial.” Jensen v. ARA Servs., Inc., 736 S.W.2d 374, 377 (Mo. banc 1987).

However, Mr. Mengwasser’s argument is inapposite because neither contribution, nor comparative fault, nor apportionment was at issue in this case. Kempker did not seek contribution from Mrs. Mengwas-ser; it did .not submit a comparative fault instruction; it did not ask the trial court to instruct the jury to apportion damages among any other persons, whether parties or non-parties. Kempker sought only to have Mr. Mengwasser’s damages, if any, reduced by the amount of his settlement with Mrs. Mengwasser, as is proper pursuant to section 537.060 (“[S]uch agreement shall reduce the claim by the stipulated amount of the agreement, or in the amount of consideration paid, whichever is greater.”).

Mr. Mengwasser argues that, because a settling party is discharged from liability under section 537.060, the jury is precluded from making a factual finding that her actions proximately caused the subject injuries. Such is not the law.

Nothing in section 537.060 prevents a defendant from arguing that a settling party’s negligence proximately caused the plaintiffs injuries. For example, in Oldaker, the defendant in an automobile accident case argued to the jury that the accident was caused by two other persons, one of whom had settled prior to trial. 817 S.W.2d at 252. As in this case, the plaintiff in Oldaker argued that the evidence should have been excluded because “fault is to be apportioned only among those at trial,” and the settling tortfeasor was not a party to the lawsuit. Id. The trial court disagreed, and the Supreme Court of Missouri affirmed, holding that a defendant may submit evidence of a settling non-party’s negligence “to establish that [the defendant] is not guilty of the negligence charged.” Id. As noted above, the court also found that a defendant may introduce evidence and argue “ ‘that the acts of one other than the defendant were the sole cause of the accident.’ ” Id. at 253 (quoting Simpson, 771 S.W.2d at 373).

Likewise, in Owens v. Dougherty, 84 S.W.3d 542, 548 n. 3 (Mo.App. S.D.2002), the plaintiff settled with several third persons prior to trial. The trial court instructed the jury that the issue of whether the negligence of any of the settling parties contributed to or caused the death of the decedent “is withdrawn from the case and you are not to consider such issue in arriving at your verdict.” Id. at 545. The jury returned a verdict for the plaintiff, but the Southern District of this court reversed, finding that the trial court had abused its discretion in offering the instruction. Id. at 549. In doing so, the Southern District explained that there is a distinction between: (1) arguing that fault should be apportioned among tortfeasors, and (2) arguing that the defendant was not negligent and/or did not proximately cause the plaintiffs injuries because someone else’s conduct was the sole cause of the subject accident. Id. at 548-49. Citing Oldaker, the court held that the defendant was free to argue that “the negligence of someone else, even a non-party, was the sole cause of the incident in question.” Id.; see also Whisenand, 996 S.W.2d at 531 (holding that negligence is an issue for the jury unless the defendant is negligent as a matter of law and holding that defendant can argue negligence of a non-party because it may be relevant and necessary for the jury to determine negligence and causation).

Thus, Mr. Mengwasser confuses what we mean when we say “apportionment of fault.” A defendant seeking an apportionment instruction asks the jury, if it finds him or her at fault, to compare his or her fault to that of another and to apportion it accordingly. Mo. Pac. R.R. Co. v. Whitehead & Kales Co., 566 S.W.2d 466, 474 (Mo. banc 1978). The phrase does not apply to the defendant’s claim that he or she was not negligent and/or that his or her conduct did not proximately cause the plaintiffs injuries. Oldaker, 817 S.W.2d at 252-53; Owens, 84 S.W.3d at 548-49. When such is the defendant’s argument, the jury is not asked to “apportion” fault between the third person and the defendant because the jury is asked to find that the defendant was not at fault at all.

Here, Kempker did not argue the jury should “apportion” fault between Mrs. Mengwasser and Mr. Braun. Such an argument would have been improper because Mrs. Mengwasser was not a party to the lawsuit. Jensen, 736 S.W.2d at 377. Rather, Kempker argued that Mr. Braun was not at fault at all, and, in support of that argument, it was entitled to submit proof that any other person’s negligence, even that of a settling third party, proximately caused the accident. Oldaker, 817 S.W.2d at 252-53; Owens, 84 S.W.3d at 548-49.

3. Kempker did not have to prove that Mrs. Mengwasser’s actions were unforeseeable.

Mr. Mengwasser argues further that, in order to argue that Mrs. Mengwasser’s actions were the sole proximate cause of the accident, Kempker had to prove that Mr. Braun could not have foreseen them. We disagree.

Mr. Mengwasser argues that “Missouri courts have long held that a defendant may not be absolved of its negligence if its negligence combined with that of another caused plaintiffs injuries provided that [the defendant’s negligence] was a substantial factor and not so extraordinary as not to have been reasonably contemplated by the defendant.” (Emphasis added.) However, this argument presupposes that Mr. Braun was found negligent, which the jury, of course, was not required to do. Since the jury found that Mr. Braun was not negligent, Mr. Meng-wasser’s argument cannot prevail.

In essence, Mr. Mengwasser’s argument erroneously seeks to place upon Kempker the burden of proving the defense of an intervening, superseding cause.

When two or more individuals commit consecutive acts of negligence closely related in time, there is a question as to whether the initial act of negligence was the proximate cause or whether an efficient, intervening cause exists.... However, the mere existence of an intervening act is not decisive. The intervening act must be a superseding cause that is independent of the original actor’s negligence and severs the connection between the original actor’s conduct and the plaintiffs injury as a matter of law. For an intervening act to relieve the original tortfeasor from liability, the act cannot be a foreseeable consequence of the original act of negligence.

Buchholz v. Mosby-Year Book, Inc., 969 5.W.2d 860, 862 (Mo.App. E.D.1998) (internal citations omitted). The burden to prove intervening, superseding cause lies on the party asserting it. Kelley v. Wiggins, 291 Ark. 280, 724 S.W.2d 443, 450 (1987).

Here, however, Kempker did not have to prove the elements of intervening, superseding cause because it did not raise the defense. Kempker’s theory of the case did not depend on, or even include, “consecutive acts of negligence.” Buchholz, 969 S.W.2d at 862. Indeed, Kempker argued that only one act of negligence occurred, i.e., that Mrs. Mengwasser was negligent and that Mr. Braun was not. As such, given that Kempker did not raise the affirmative defense of intervening, superseding cause, it did not have to prove the defense’s elements, one of which is that the intervening, superseding act “cannot [have been] a foreseeable consequence of the original act of negligence.” Id.

Evidence showing that Mrs. Mengwas-ser’s negligence proximately caused the accident was relevant in that it tended to disprove necessary elements of Mr. Meng-wasser’s claim, namely that Mr. Braun was negligent and that his conduct proximately caused Mr. Mengwasser’s injuries. Mr. Mengwasser’s arguments regarding section 537.060 and the affirmative defense of intervening, superseding cause do not apply to the facts of this case. Accordingly, we deny Point I of Mr. Mengwasser’s appeal.

B. Refusal to admit evidence of Mrs. Mengwasser’s settlement and refusal to instruct the jury to disregard prior payments.

In Points II and III of his appeal, Mr. Mengwasser argues that the trial court abused its discretion in refusing to admit evidence of Mrs. Mengwasser’s settlement and in refusing to instruct the jury to disregard prior payments made to Mr. Mengwasser. We disagree.

“The basic rule, in Missouri and elsewhere, is that evidence of settlement agreements is not admissible. This is because settlement agreements tend to be highly prejudicial and, thus, should be kept from the jury unless a clear and cogent reason exists for admitting a particular settlement agreement.” O’Neal v. Pipes Enters., Inc., 930 S.W.2d 416, 423 (Mo.App. W.D.1995) (internal citation omitted).

Here, Mr. Mengwasser argued to the trial court that the settlement agreement should be admitted for the purpose of mitigating what Mr. Mengwasser viewed to be the trial court’s error in admitting the evidence of Mrs. Mengwas-ser’s negligence. For the reasons stated above, the trial court did not err in admitting evidence tending to show that Mrs. Mengwasser’s negligence proximately caused the accident. Since there was no trial court error to be mitigated, Mr. Mengwasser’s argument was not a “clear and cogent reason” to deviate from the general rule regarding the inadmissibility of settlement agreements. See id. Mr. Mengwasser takes particular exception to Kempker’s counsel’s remarks made in closing argument that Mrs. Mengwasser “does not want to take responsibility for [her] mistake.” Attorneys are allowed substantial latitude in closing argument; trial courts are given wide discretion in ruling on closing arguments; and we will not reverse the trial court absent abuse of discretion and a showing of prejudice. State v. Francis, 60 S.W.3d 662, 672 (Mo. App. W.D.2001).

Here, we find no abuse of discretion in the trial court’s refusal to admit evidence of the settlement agreement in response to defense counsel’s closing argument. Defense counsel stated that “somebody was in a hurry to get to the destination, made a bad mistake, and now does not want to take responsibility for that mistake.” Mr. Mengwasser argues that the statement gives the impression that Mrs. Mengwasser had not taken financial responsibility for her actions and that the statement was false in that Mrs. Mengwas-ser had made a good-faith settlement with her husband. While that is one interpretation of defense counsel’s statement, it is not the only reasonable interpretation. The statement can also be read to mean that Mrs. Mengwasser did not want to “take responsibility for [her] mistake” in that she refused to concede that her actions alone, and not those of Mr. Braun, proximately caused Mr. Mengwasser’s injuries. The trial court was in a better position to evaluate the tone, meaning, and effect of the comment. See Oldaker, 817 S.W.2d at 254 (holding that the trial court was in a better position to evaluate the effect and tone of comments made in closing argument).

Accordingly, the trial court did not abuse its discretion in refusing to admit the settlement agreement, and we deny Point II of Mr. Mengwasser’s appeal.

Moreover, given that the trial court did not err in refusing to admit the settlement agreement, it follows that it did not err in refusing to instruct the jury to disregard prior payments. Absent evidence of the settlement agreement, no evidence of prior payments was before the jury. Moreover, Mr. Mengwasser’s proposed instruction, MAI 34.05, is to be given “if the case is submitted under comparative fault,” MAI 34.05 Note 1, and, as noted, this case was not so submitted. Further, MAI 34.05 is part of the damage instruction, and thus the jury would not have considered this language because it did not award damages. As such, the trial court did not abuse its discretion in refusing to instruct the jury to disregard evidence of prior payments, and we deny Point III of Mr. Mengwasser’s appeal.

Conclusion

For the reasons stated above, we hold that: (1) the trial court did not abuse its discretion in admitting evidence tending to show that Mrs. Mengwasser’s conduct proximately caused Mr. Mengwasser’s injuries, and (2) the trial court did not abuse its discretion in refusing to admit evidence of Mrs. Mengwasser’s settlement and in refusing to instruct the jury to disregard prior payments to the plaintiff. Accordingly, we affirm the trial court’s judgment.

JAMES EDWARD WELSH, Presiding Judge, and MARK D. PFEIFFER, Judge, concur.

      . We view the facts in the light most favorable to the jury’s verdict. Dhyne v. State Farm Fire & Cas. Co., 188 S.W.3d 454, 455 (Mo. banc 2006).

      . We note that a finding that Mrs. Mengwas-ser's conduct proximately caused Mr. Meng-wasser’s injuries would not be dispositive of the issue of proximate causation with respect to Mr. Braun because there may be more than one proximate cause of an accident. See Andres v. Alpha Kappa Lamda Fraternity, Nos. WD37546 & WD37547, 1986 Mo.App. LEXIS 4693, at* 14 (Mo.App.W.D. Sept. 16, 1986). However, an issue need not be dispositive to be relevant.

      . Statutory references are to RSMo, 2000, as updated through the 2009 cumulative supplement.

      . We note that, even if Kempker had maintained its alternative, affirmative defense of comparative fault, evidence tending to show that Mr. Braun did not proximately cause the accident would still have been relevant for the reasons stated above.

      . A party may not, of course, argue that a third person was negligent when that person has been dismissed from the lawsuit on the merits, i.e„ when there has been a judicial determination that the third person was not negligent. Whisenand, 996 S.W.2d at 531.

      . Mr. Mengwasser’s argument implies that Mr. Braun’s actions were negligent as a matter of law. Mr. Mengwasser did not preserve this point, and, even if he had, we would reject the argument.

      . We again note that, even if Kempker had raised this affirmative defense, it could have done so in the alternative, and the evidence tending to show that Mrs. Mengwasser's negligence proximately caused the accident would still have been relevant for the reasons stated above.


source: Caselaw Access Project

author: CLIFFORD H. AHRENS, Judge.

license: Public Domain

text:
    Stephen M. COLEMAN, et al., Appellants, v. Robin CARNAHAN, et al., Respondents.
    No. ED 93726.
    Missouri Court of Appeals, Eastern District, Division One.
    April 20, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 8, 2010.

      Larry Delano Coleman, Raytown, MO, for appellant.
    Chris Koster, Christopher J. Quinn, St. Louis, MO, for respondent.
   CLIFFORD H. AHRENS, Judge.

Stephen Coleman and his companies, Daedalus Capital, LLC and Chicken Little Fund Group, Inc., appeal the circuit court’s dismissal of their petition against Robin Carnahan and Lori Neidel. We affirm.

Background

Respondents, in their official capacities as Missouri Secretary of State and former Chief Enforcement Counsel of the Securities Division, respectively, opened an investigation into Appellants’ business dealings after the “demise” of the Chicken Little Fund Group. Respondents ultimately issued cease-and-desist orders and instituted proceedings to revoke Appellants’ licensures for alleged violations of the Missouri Securities Act of 2008.

Mr. Coleman, an investment advisor of African descent, on behalf of himself and his companies, filed suit against Respondents alleging that Respondents’ actions were racially motivated and thus in violation of the Missouri Human Rights Act. Specifically, the petition claims that (1) Mr. Coleman was denied the full, free and equal use of Missouri securities laws in violation of sections 213.065 RSMo in that he was denied public accommodations as defined in section 213.010(15)(e) and (2) Appellants were wrongfully vilified in violation of section 213.070 prohibiting employment discrimination.

Respondents moved to dismiss the petition for failure to state a claim. The trial court granted the motion, and this appeal followed.

Standard of Review

Our review of a dismissal for failure to state a claim upon which relief can be granted is de novo. Chochorowski v. Home Depot U.S.A., Inc., 295 S.W.3d 194, 197 (Mo.App.2009). A motion to dismiss for failure to state a claim is solely a test of the adequacy of the petition. Id. When we consider whether a petition fails to state a claim, we accept all properly pleaded facts as true, giving the pleadings their broadest intendment. Id. We construe all allegations favorably to the pleader and determine if the facts alleged meet the elements of a recognized cause of action. Id.

Discussion

Appellants essentially argue that the trial court erred by failing to construe the Missouri Human Rights Act liberally enough to encompass their allegation that Respondents’ securities investigation was racially motivated. Appellants rely on two statutory bases for their claim.

First, Appellants assert that they were denied full and equal use of a public accommodation in violation of section 213.065. The specific public accommodation allegedly denied them is identified in their petition as “the securities laws of the State of Missouri.” Appellants cite no authority for the proposition that Missouri securities laws constitute a public accommodation but suggest that such an interpretation would be consistent with the spirit of the MHRA.

Section 213.065 of the MHRA was enacted to provide all persons within the jurisdiction of the state of Missouri “full and equal use and enjoyment within this state of any place of public accommodation.” Section 213.010(15) defines places of public accommodation as “places or businesses offering or holding out to the general public goods, services, privileges, facilities, advantages, or accommodations for the peace, comfort, health, welfare, and safety of the general public, or such public places providing food, shelter, recreation, and amusement ...” That sub-section then sets out six paragraphs enumerating various types of “plaees of public accommodation” to which the protections of the MHRA apply, generally: (a) lodging establishments, (b) restaurants, (c) gas stations, (d) entertainment and sporting venues, (e) public facilities, and (f) any establishment located on the premises of the foregoing places. As is pertinent here, sub-paragraph (e) encompasses “any public facility owned, operated, or managed by or on behalf of this state or any agency or subdivision thereof.” Appellants observe that, like a courthouse, a physical office of the Secretary of State falls within this definition. But Appellants do not allege that they were denied access to the premises of Respondents’ office or that they were sub-jéct to discrimination on Respondents’ premises. Rather, they plead that they were denied full and equal use and enjoyment of the securities laws of the state of Missouri. By characterizing Missouri securities laws as a place of public accommodation, Appellants misinterpret the legislative intent of the MHRA and grossly distort its written expression. “The primary rule of statutory construction is to ascertain the intent of the lawmakers by construing words used in the statute in their plain and ordinary meaning.” Hyde Park Housing Partnership v. Dir. of Revenue, 850 S.W.2d 82, 84 (Mo. banc 1993). Just as no dictionary refers to the law as a “place,” Missouri securities laws do not constitute a “place” for purposes of public accommodation discrimination analysis under Chapter 218.

Second, Appellants assert that Respondents’ alleged vilification constitutes a violation of section 218.070, which prohibits discrimination in employment, disability, and housing. Specifically, Appellants claim that Respondents’ actions constitute employment discrimination. But Appellants do not allege any potential or actual employer/employee relationship between the parties. Rather, Mr. Coleman is self-employed. As such, section 213.070 is inapplicable here. See Sloan v. Bankers Life & Cas. Co., 1 S.W.3d 555, 562 (Mo.App.1999) (stating that the MHRA applies only to employer/employee relationships).

Point denied.

Conclusion

Even accepting the facts alleged by Appellants as true, the statutory provisions upon which Appellant relies do not provide a basis for relief. The trial court’s dismissal with prejudice was not erroneous. The judgment is affirmed.

KATHIANNE KNAUP CRANE, P.J., and NANNETTE A. BAKER, J., concur.

      . State public accommodations laws were originally enacted to prevent discrimination in traditional places of public accommodation — like inns and trains. Boy Scouts of America v. Dale, 530 U.S. 640, 656, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000).


author: NANNETTE A. BAKER, Judge.

text:
    Tom BIRKENMEIER, T.J. Birkenmeier, Inc., d/b/a Orca Partnership, Respondents/Cross-Appellants, v. KELLER BIOMEDICAL, LLC, Perio Protect, LLC, Duane Keller and Carol Keller, Appellants.
    No. ED 92671.
    Missouri Court of Appeals, Eastern District, Division One.
    April 20, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 8, 2010.

      Colleen Jones, Jason Turk Co-Counsel, St. Louis, MO, for Appellants.
    Brian McGovern, Robert Miller Co-Counsel, Chesterfield, MO, for Respondents.
   NANNETTE A. BAKER, Judge.

Introduction

The appellants, Duane and Carol Keller (“the Kellers”), Keller Biomedical, LLC and Perio Protect (collectively “Defendants”) appeal from the trial court’s judgment in favor of the respondent and cross appellant, Tom Birkenmeier (“Birkenmeier”) d/b/a Orea Partnership, Inc. After the Kellers transferred the Keller Biomedical assets to Perio Protect, Birkenmeier filed an eleven count petition alleging that he was a member of Keller Biomedical. Birk-enmeier cross appeals from the trial court’s dismissal of two of the counts and its grant of summary judgment on four of the other counts in his second amended petition.

The Kellers raise two points on appeal. First, they claim that the trial court erred in admitting Birkenmeier’s Exhibit 99, a portion of their personal tax return, the Schedule C, because Birkenmeier failed to establish a foundation for its admission. Second, they claim that the trial court erred in rejecting their proffered jury instruction on recoupment and accepting Birkenmeier’s jury instruction.

Birkenmeier raises three points on cross appeal. First, he claims that the trial court erred in dismissing Count III for promissory estoppel and Count IV for violation of Missouri Uniform Fraudulent Transfer Act, Sections 428.005 to 428.059 (“MUFTA”). Second, he claims that the trial court erred in finding that there was no genuine issue of material fact that Birk-enmeier was not a member of Keller Biomedical and granting partial summary judgment. Third, Birkenmeier claims that the trial court erred in granting partial summary judgment on Count XI, breach of contract, because he was not required to be a member of Keller Biomedical to state a cause of action for breach of contract against the Kellers. We find no error and affirm.

Factual and Procedural Background

Birkenmeier discussed entering into an agreement with the Kellers to form a limited liability company (“LLC”) in order to market a dental product. The Kellers’ lawyers drafted an agreement for the formation of the LLC. Birkenmeier testified that he never signed a final version; however, he believed the parties had an oral agreement with details to be worked out at a later date.

On July 13, 2004, the Kellers filed Articles of Organization with the State of Missouri for Keller Biomedical to form the company as an LLC. On September 9, 2004, the Kellers deposited a check from Birkenmeier for $2,000 to Keller Biomedical’s bank account and noted it as a “capital contribution” in the deposit detail. Birkenmeier, doing business as Orea Partnership, printed brochures for marketing the product. Birkenmeier testified that he believed that he was a member of Keller Biomedical pursuant to an oral agreement. In his deposition, Birkenmeier testified that he believed that he and two other individuals each owned a five percent share of Keller Biomedical and the Kellers owned the remaining eighty-five percent. The Kellers marketed the product to dentists by conducting seminars and sending out letters and brochures printed by Orea Partnership.

On January 21, 2005, the Kellers transferred the liquid assets of Keller Biomedical to Perio Protect, a company they wholly owned. On August 5, 2005, Birk-enmeier filed a petition for relief for damages arising from his claimed breach of the agreement against the Kellers, Keller Biomedical and Perio Protect. Birken-meier filed his first amended petition on February 17, 2006. One month later, the Kellers filed a motion to dismiss Birken-meier’s first amended petition.

Duane Keller and Keller Biomedical filed counterclaims against Birkenmeier on October 6, 2006.

On November 6, 2006, Birkenmeier filed an answer and a motion for a more definite statement to Duane Keller’s counterclaim, and a motion to dismiss Keller Biomedical’s counterclaim. On November 9, 2006, Birkenmeier filed a motion for leave to file a second amended petition and a proposed second amended petition.

On February 6, 2007, Defendants filed an answer to the second amended petition. Defendants amended their motions to dismiss various counts. On April 23, 2007, the trial court denied Defendants’ motions to dismiss Counts I and II and granted their motions to dismiss Counts III and IV. On February 26, 2008, Defendants filed a motion for summary judgment. On June 16, 2008, the trial court granted summary judgment on Counts I, II, VI and XI.

At the time of trial, the remaining counts were: Count V for accounting, Count VII for breach of contract by Keller Biomedical against Orea, Count VIII for quantum meruit and Count X for alter ego. At trial, the court admitted a portion of the Kellers’ tax return, Schedule C. The document showed that the Kellers claimed a greater amount for printing, production costs and sales and marketing than they showed on their profit and loss statement. Examining the document, Carol Keller testified that the discrepancy between the two amounts was $66,162.82.

The jury found in favor of Birkenmeier on his breach of contract claims and awarded him $83,496.00. Pursuant to the agreement and stipulation, the parties filed before the trial, the court held all Defendants jointly and severally liable. On Duane Keller’s counterclaim against Birk-enmeier, the jury found in favor of Duane Keller and set damages at $2,500.00. The trial court entered the judgment and taxed costs against Defendants. Defendants filed this appeal and Birkenmeier filed this cross appeal.

Points on Appeal

The Kellers raise two points on appeal. First, they claim that the trial court erred in admitting Birkenmeier’s Exhibit 99, a portion of their tax return, the Schedule C, because Birkenmeier failed to establish a foundation for its admission. Second, they claim that the trial court erred in rejecting their proffered jury instruction on recoupment and accepting Birkenmeier’s proffered jury instruction.

Exhibit 99, Keller Biomedical’s Schedule C

A trial court has considerable discretion in deciding whether to admit or exclude evidence at trial. Williams v. Trans States Airlines, 281 S.W.3d 854, 872 (Mo.App. E.D.2009). We give great deference to the trial court’s evidentiary rulings and will reverse the trial court’s decision on the admission of evidence only if the court clearly abused its discretion. Id. When reviewing for an “abuse of discretion,” we presume the trial court’s finding is correct and reverse only when the ruling is “clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration; if reasonable persons can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” Id. Upon finding an abuse of discretion, this Court will reverse only if the prejudice resulting from the improper admission of evidence is outcome-determinative. Id. (internal citations omitted).

The Kellers argue that the admission of a portion of Keller Biomedical’s tax return, specifically the Schedule C, confused the jury and was prejudicial. They claim that there was no foundational support for the document because the document required expert testimony to establish its foundation as a business record, and that the document misled the jury into finding in favor of Birkenmeier. They argue that the return should not have been admitted as either a business record or an admission of a party opponent. Section 490.680 sets out three foundational requirements for the admission of a business record under the business records exception: (1) the custodian or other qualified witness testifies to its identity and the mode of its preparation; (2) the custodian or other qualified witness testifies that it was made in the regular course of business, at or near the time of the act, condition or event; and (3) in the opinion of the court, the sources of information, method and time of preparation justified its admission. Section 490.680; In re Estate of Newman, 58 S.W.3d 640, 646 (Mo.App. W.D.2001).

The Kellers, in lieu of allowing Birken-meier access to their accountants, entered into a joint stipulation. The stipulation stated that Joel Weltman and his accounting firm were the Kellers’ accountants in 2004 and 2005 for their personal and business returns, that the 2004 form 1040 Schedule C was prepared for the Kellers as part of their 2004 tax return and that it was filed with the IRS and never amended. Based on the stipulation, the trial court held that the document was admissible as a business record. The stipulation met the requirements as provided in Section 490.680 and laid out in Newman, and the trial court accepted it as accurate. Because of the stipulation that the document was prepared in the course of normal business, no expert testimony was required to lay a foundation. Thus, the trial court properly admitted the document into evidence.

This point is denied.

Proffered Jury Instruction

In their second point on appeal, the Kellers claim that the trial court erred in rejecting their proffered jury instruction on recoupment and accepting Birkenmeier’s proffered jury instruction instead. They argue that recoupment is a cause of action of its own for damages, as their pleadings evidenced, and that Birkenmeier’s instruction improperly characterized their claim of recoupment as an affirmative defense.

In reviewing a jury instruction, this Court views the evidence and the inferences in the light most favorable to the instruction and disregards contrary evidence. McBryde v. Ritenour Sch. Dist., 207 S.W.3d 162, 168 (Mo.App. E.D.2006). We will reverse on instructional error only where the instruction misled, misdirected, or confused the jury, and the instruction resulted in prejudicial error. Id.

In Schroeder v. Prince Charles, Inc., the Missouri Supreme Court held that a “ ‘counterclaim’ is a counter demand existing in favor of a defendant against a plaintiff and includes set-off and recoupment, and recoupment is a purely defensive matter growing out of the transaction constituting plaintiffs cause of action, and is available only to reduce or satisfy a plaintiffs claim and permits of no affirmative judgment.” 427 S.W.2d 414, 419 (Mo.1968) (emphasis added) (internal citation omitted).

Under Missouri law, “the doctrine of recoupment — whether called a counterclaim or an affirmative defense — is solely a matter of defense.” Boone Nat’l Savings & Loan Ass’n. F.A. v. Crouch, 47 S.W.3d 371, 374 (Mo. banc 2001). It is not a method for obtaining affirmative relief, but “is available only to reduce or satisfy a plaintiffs claim and permits no affirmative judgment.” Id. “Under Missouri’s pleading rule, Rule 55.08, if an affirmative defense is called a counterclaim ... the court is to treat the counterclaim ... as though it were properly labeled.” Id.

The Kellers tendered a jury instruction on recoupment that was not an MAI approved instruction. It stated:

Your verdict must be for Defendants on Plaintiffs claim as submitted in Instruction no. _if you believe:
First, Plaintiff either: Failed to complete the contract work in a good and workmanlike manner, or Failed to complete the contract work in a timely manner, and Second, because of such failure Plaintiffs’ contract obligations were not substantially performed, and,
Third, Defendants were thereby damaged.

The Kellers argue that because their re-coupment claim was pled as a counterclaim, it was a separate cause of action and not an affirmative defense. They argue that their tendered instruction was not for an affirmative defense, and that the instruction that was given was an instruction for an affirmative defense. However, it would have been error for the trial court to give the Kellers’ proffered jury instruction since their recoupment claim was an affirmative defense as a matter of law. Further, the instruction as submitted was substantially identical to their proffered instruction with the exception of the provision for damages. Since the language given to the jury allowed it to find for the Kellers if they believed that Birkenmeier failed to comply with his contract, the Kel-lers were not prejudiced by the court’s failure to give their proffered instruction. This point is denied.

Points on Cross Appeal

Birkenmeier raises three points on cross appeal. First, he claims that the trial court erred in dismissing Count III for promissory estoppel and Count IV for violation of MUFTA. Birkenmeier argues that all the elements of the counts were properly pled and that the trial court should have assumed all allegations in the petition to be true. Second, Birkenmeier claims that the trial court erred in specifically finding that there was no genuine issue of material fact that Birkenmeier was not a member of Keller Biomedical and in granting partial summary judgment. Third, Birkenmeier claims that the trial court erred in granting partial summary judgment on Count XI for breach of contract against the Kellers and specifically finding that there was no genuine issue of material fact that he was not a member of Keller Biomedical because as a matter of law, he is not required to be a member of Keller Biomedical to state a cause of action for breach of contract against the Kellers.

Dismissed Count for Promissory Estop-pel

In Birkenmeier’s second amended petition, he raised a count for promissory estoppel, alleging that the Kellers promised him a partial ownership stake in Keller Biomedical, that he relied on that promise by expending time, energy and money in an effort to promote the dental product and help the company succeed, and that the Kellers could foresee that he would rely on their promise. He also sought enforcement of the promise in the form of “an amount to be proven at trial (in excess of $25,000.00), interest, attorney’s fees, costs expended herein, and for such other and further relief as the court deems just and proper.”

A claim of promissory estoppel contains four elements: (1) a promise; (2) on which a party relies to his or her detriment; (3) in a way the promisor expected or should have expected; and (4) resulting in an injustice that only enforcement of the promise could cure. Clevenger v. Oliver Ins. Agency, Inc., 237 S.W.3d 588, 590 (Mo. banc 2007). In Missouri, promissory estoppel is not a favorite of the law, and each element must clearly appear and be proven by the party seeking its enforcement. Id.

Here, Birkenmeier alleged that the Kel-lers promised to form Keller Biomedical as an LLC, with him as a member. Birken-meier claims that he relied on that promise and expended significant time, energy and capital developing business plans, business relationships and developing business operations on behalf of Keller Biomedical. He claimed that Duane Keller could reasonably foresee that that Birkenmeier would take action and perform work in reliance on that promise. However, Birk-enmeier did not seek enforcement of the promise; instead, he sought monetary damages. Similar to the plaintiff in Cle-venger, Birkenmeier was not seeking specific enforcement of the promise, and was instead seeking a remedy at law. Therefore, application of promissory estoppel was inappropriate. Clevenger, 237 S.W.3d at 591.

Dismissed Count of MUFTA

Birkenmeier’s fourth count in his second amended petition sought relief from the Kellers under MUFTA. Specifically, he claimed that the Kellers transferred the assets of Keller Biomedical to Perio Protect with inadequate consideration and in a method different from the usual transacting of its business. Birken-meier claimed that the Kellers’ and Keller Biomedical’s actions in transferring ownership and rights to the dental product to Perio Protect were intended to delay, hinder and/or defraud him in violation of MUFTA.

To set aside a transfer as fraudulent under MUFTA, it is necessary to show that the transfer was made with an intent to hinder, delay, or defraud creditors. Taylor v. Clark, 140 S.W.3d 242, 251 (Mo.App. S.D.2004). Intent to defraud must be shown by clear and convincing evidence. Taylor, 140 S.W.3d at 251. Fraudulent intent is rarely proven by direct evidence; thus, it is acceptable in Missouri courts to determine the presence of fraud by considering particular badges of fraud. Id. The badges of fraud include: 1) a conveyance to a spouse or near relative; 2) inadequacy of consideration; 3) transactions different from the usual method of transacting business; 4) transfers in anticipation of suit or execution; 5) retention of possession by the debtor; 6) the transfer of all or nearly all of the debtor’s property; 7) insolvency caused by the transfer; and 8) failure to produce rebutting evidence when circumstances surrounding the transfer are suspicious. Id. For a transfer to be found fraudulent, several indicia of fraud must be shown. Id. More than one badge of fraud must be present. Id.

Allegations of fraud and fraudulent conveyance must be pled with particularity. Rule 55.15. Batek v. Curators of Univ. of Missouri, 920 S.W.2d 895, 900 (Mo. banc 1996). See also Keehn v. Ruzicka Elec. & Sons, Inc., 251 S.W.3d 388, 390 (Mo.App. E.D.2008). No claim is stated without compliance with Rule 55.15. Schauer v. Gundaker Movits Real Estate Co., 813 S.W.2d 112, 114 (MoApp. E.D.1991). A plaintiff must plead every essential element of a cause of action, and failure to plead any element renders the claim defective and subject to dismissal. Id. ; see also Hanrahan v. Nashua, 752 S.W.2d 878, 883 (Mo.App. E.D.1988).

In this case, Birkenmeier’s petition was not pled with particularity. In his second amended petition, Birkenmeier merely set forth allegations that mirrored the badges of fraud. For example, he alleged, “[t]he rights to the Product were transferred to Defendant Perio Protect with inadequate consideration” and “[t]he transaction is different from the usual method of transacting business for Keller Biomedical.” He also alleged, “The transfer was made in anticipation of suit or claims by Plaintiffs.” Birkenmeier failed to set forth any facts in support of these allegations. Therefore, his allegations were not sufficient to state a cause of action under MUFTA and the trial court properly dismissed this count. The first point of the cross appeal is denied.

Summary Judgment on Counts I, II and VI

In his second point on cross appeal, Birkenmeier .claims that the trial court erred in granting summary judgment on his counts of: breach of fiduciary duty against the Kellers; breach of duty of loyalty and duty of good faith and fair dealing against the Kellers; constructive trust against the Kellers and Perio Protect; and breach of contract against the Kellers. Specifically, he claims that there was sufficient evidence to create a genuine issue of material fact as to whether Birk-enmeier was a member of Keller Biomedical and contributed to the formation and development of the LLC. The issue of Birkenmeier’s alleged membership in Keller Biomedical is critical to the grant of summary judgment on Counts I, II and XI

When considering appeals from summary judgments, this court will review the record in the light most favorable to the party against whom judgment was entered. ITT Commercial Fin. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Our review of a grant of summary judgment is de novo. Id. Summary judgment is designed to permit the trial court to enter judgment, without delay, where the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute, a right to judgment as a matter of law. Rule 74.04. We will affirm the trial court’s judgment if, as a matter of law, it is sustainable on any theory. Citibrook II v. Morgan’s Foods of Missouri, Inc., 239 S.W.3d 631, 634 (Mo.App. E.D.2007).

Section 347.037.2 provides that: “A limited liability company is formed when the articles of organization are filed with the secretary or on a later date set forth in the articles of organization, not to exceed ninety days from the filing date.”

Birkenmeier argues that there is substantial evidence that Keller Biomedical was indeed formed and did business as an LLC. He directs us to the Articles of Organization filed with the State of Missouri in the record. The record reflects that Keller Biomedical conducted business for six months, marketed and advertised the dental product, and that it accepted a capital contribution from Birkenmeier to do so. Additionally, there is evidence that Birkenmeier provided Keller Biomedical with plans, ideas, promotional materials and helped generate revenue for the company.

However, evidence of Keller Biomedical’s formation as an LLC does not establish that Birkenmeier was ever a member of the company. The Missouri statute governing LLC’s defines a member as:

any person that signs in person or by an attorney in fact, or otherwise is a party to the operating agreement at the time the limited liability company is formed and is identified as a member in that operating agreement and any person who is subsequently admitted as a member in a limited liability company in accordance with sections 347.010 to 347.187 and the operating agreement, until such time as an event of withdrawal occurs with respect to such person.

Section 347.015(11) (emphasis added).

In the case before us, Birkenmeier testified in his deposition that a formal operating agreement was never finalized. The record is replete with references to his meeting with the Kellers to discuss forming an LLC. Birkenmeier stated that they had “discussed conceptually” how it would work; that the terms of the LLC were not “nailed down” and specific terms were not agreed to; that details of a possible relationship with the Kellers had not been worked out; that actual terms of the business were not yet known in their entirety; that all of the terms of an agreement had not been defined or fleshed out; and that there was only a draft operating agreement provided to him.

An operating agreement is defined as “any valid agreement or agreements, written or oral, among all members, or written declaration by the sole member concerning the conduct of the business and affairs of the limited liability company and the relative rights, duties and obligations of the members and managers, if any.” Section 347.015(13).

Although an operating agreement may be oral, there must still be an agreement. Id. A review of the record shows that there was no agreement as to material terms between the parties to form Keller Biomedical. Absent such an agreement, Birkenmeier could not have been a member of the LLC at the time it was formed. The determination of Birkenmeier’s membership in Keller Biomedical is dispositive regarding whether the trial court correctly granted summary judgment on the counts for breach of fiduciary duty, breach of the duties of loyalty and good faith and fair dealing, and constructive trust.

Breach of Fiduciary Duty

To establish a breach of fiduciary duty claim, the proponent must prove that a fiduciary duty existed between the proponent and the defending party, that the defending party breached the duty, and that the breach caused the proponent to suffer harm. Shervin v. Huntleigh Sec. Corp., 85 S.W.3d 737, 740 (Mo.App. E.D. 2002). A fiduciary relationship may arise as a matter of law by virtue of the parties’ relationship, e.g., attorney-client, or it may arise as a result of the special circumstances of the parties’ relationship where one places trust in another so that the latter gains superiority and influence over the former. Id. at 740-41. The question in determining whether a fiduciary or confidential relationship exists is whether or not trust is reposed with respect to property or business affairs of the other. Id. at 741.

In this case, Birkenmeier is claiming that a fiduciary duty existed between the Kellers and himself because he was a minority member of Keller Biomedical. However, because he was not a member of the LLC, there was no fiduciary duty to be breached. Therefore, the trial court did not err in its grant of summary judgment on Birkenmeier’s breach of fiduciary duty claim because it properly found that Birk-enmeier was not a member.

Breach of the Duties of Loyalty and Good Faith and Fair Dealing

Likewise, Birkenmeier’s claim of breach of the duties of loyalty and good faith and fair dealing must fail. In this count, he alleges that the Kellers violated these duties by transferring the assets of Keller Biomedical to Perio Protect without adequate consideration and ignoring their obligations and duties to Birkenmeier as a minority member of the LLC. Under Section 347.088, those duties arise to “another member, manager, or other person that is party to or otherwise bound by an operating agreement.” Because the trial court found that Birkenmeier was not a member of nor a party to an operating agreement with Keller Biomedical, it properly found that there could be no breach of those duties.

Constructive Trust

Birkenmeier’s claim for a constructive trust is also without merit. A constructive trust is an equitable device employed by courts of equity to remedy a situation where a party has been wrongfully deprived of some right, title or interest in property as a result of fraud or violation of confidence or faith reposed in another. Lynch v. Lynch, 260 S.W.3d 834, 837 (Mo. banc 2008).

Birkenmeier has failed to show that he was entitled to any rights or interest in property to Keller Biomedical. He has not established that he was ever a member of Keller Biomedical. Therefore, Birkenmeier had no “right, title or interest in property” to be remedied by a constructive trust.

Furthermore, Birkenmeier failed to properly plead a claim for fraudulent transfer, a necessary element for a court to impose a constructive trust. See supra Point I of the cross appeal. Thus, the trial court properly granted summary judgment against Birkenmeier’s claim of constructive trust.

For the reasons discussed above, Birk-enmeier’s second point on cross appeal relating to the grant of summary judgment as to the three counts for breach of fiduciary duty, breach of the duties of loyalty and good faith and fair dealing, and constructive trust is denied.

Summary Judgment for Breach of Contract

In the remaining prong of his second point on cross appeal, Birkenmeier argues that the trial court erred in granting summary judgment on his claim of breach of contract because there was sufficient evidence to create a genuine issue of material fact that he was a member of Keller Biomedical. In his third point on cross appeal, Birkenmeier argues that even if the court found that he was not a member of Keller Biomedical, it still erred in granting summary judgment on the claim because he need not be a member of the LLC in order to have a cause of action against the Kellers. We will discuss both of these together as they are both dependent on the existence of a valid agreement.

Birkenmeier’s claim for breach of contract cannot stand without evidence that a valid and enforceable contract existed. The essential elements of a contract in Missouri are: “(1) competency of the parties to contract; (2) subject matter; (3) legal consideration; (4) mutuality of agreement; and (5) mutuality of obligation.” Dancin Dev. LLC v. NRT Missouri, Inc. 291 S.W.3d 739, 745 (Mo.App. E.D.2009). Mutuality of agreement is determined by looking to the intentions of the parties, as expressed or manifested in their words or acts. Id. If the parties have reserved the essential terms of the contract for future determination, there can be no valid agreement. Id.

Here, there was undisputed evidence that the parties were not specific in their negotiations and thereby reserved the essential terms of the operating agreement for a future determination. Birkenmeier admitted in his deposition that essential terms were not yet agreed upon. Accordingly, because the element of mutuality of agreement is lacking, Birkenmeier’s breach of contract claim must fail.

In his third point on cross appeal, Birk-enmeier now appears to be arguing that the parties merely had an agreement to form a company, and that this is a simple case of a breach of an oral agreement. Yet the agreement to which he refers is the operating agreement to form an LLC that, by his own testimony, was never finalized.

As we discussed above, there was no mutuality of agreement between Birken-meier and the Kellers. Contract law explicitly holds that if the parties have reserved the essential terms of the contract for future determination, there can be no valid agreement. Dancin Dev. LLC, 291 S.W.3d at 745. Without a valid agreement, there can be no breach. At best, Birkenmeier provided evidence that an agreement was discussed and specific terms were to be worked out later among the parties. Those facts alone are not enough to prove a claim for breach of contract, whether or not Birkenmeier was a member of Keller Biomedical. The trial court did not err in granting summary judgment on this count. This point, as well as the final prong of the second point is denied.

Conclusion

For the foregoing reasons, we affirm the judgment of the trial court.

KATHIANNE KNAUP CRANE, P.J., and CLIFFORD H. AHRENS, J., concur.

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

      . This court has reviewed the Motion taken with the case. Appellants’ Motion to Strike and/or Dismiss Respondents’ Points Relied on is denied.

      . The instruction the trial court gave was:
      Your verdict must be for Defendant Keller Biomedical, LLC on Plaintiff T.J. Birkenmeier, Inc. d/b/a ORCA Partnership’s claim as submitted in Instruction no. 7 if you believe:
      First, Plaintiff either:
      Failed to perform the contract work in a good and workmanlike manner, or Failed to perform the contract work in a timely manner, and Second, because of such failure Plaintiffs’ contract obligations were not performed.

      . All rule references are to Mo. Rules Civ. P.2009, unless otherwise indicated.


author: SHERRI B. SULLIVAN, P.J.

text:
    REALTY RESOURCE, INC., Plaintiff/Respondent, v. TRUE DOCUGRAPHICS, INC., Defendant/Cross-Claimant/Respondent, v. Bernadette Business Forms, Inc., Defendant/Cross-Claimant/Appellant.
    No. ED 93031.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 27, 2010.
    Rehearing Denied June 8, 2010.

      Michael P. Stephens, Clayton, MO, for Plaintifi/Respondent.
    Neil G. Beachem, St. Louis, MO, for Respondents/Cross-Appellant True Docu-graphics, Inc., and Defendants Steven R. Truetkan, Personal Representative of the Estate of James R. Truetkan, Deceased; Roger T. Truetkan, Steve A. Truetkan, William L. Johnson, Donna L. Johnson and Edward C. Fronick.
    Michael J. Sewell, Stephen M. Cohen, Clayton, MO, for Appellant/Cross Respondent Bernadette Business Forms, Inc.
    Before SHERRI B. SULLIVAN, P.J., ROBERT G. DOWD, JR., and PATRICIA COHEN, JJ.
   SHERRI B. SULLIVAN, P.J.

Introduction

Bernadette Business Forms, Inc., f/k/a JPB Investments V, Inc. (BBF) appeals from the summary judgment of the trial court entered in favor of Realty Resource, Inc. (Realty Resource) on Count III of Realty Resource’s Second Amended Petition alleging breach of contract against BBF and in favor of True Docugraphics, Inc., f/k/a Bernadette Business Forms, Incorporated (TDI) on TDI’s Cross-Claim against BBF for Indemnification. TDI appeals from the trial court’s judgment awarding attorney’s fees. We affirm in part and reverse and remand in part.

Factual and Procedural Background

On May 1, 2005, Realty Resource and TDI entered into a Listing Agreement. The Listing Agreement provided that Realty Resource would procure a sublessee for a portion of space at TDI’s place of business at 8950 Pershall Road (Pershall Building), and would be paid a commission for doing so. Also, the Listing Agreement provided that if the sublessee renewed its lease, TDI would pay Realty Resource a commission for such renewal.

On December 27, 2005, Graham Packaging Company (Graham), as the sublessee, entered into a Sublease Agreement with TDI, as sublessor. On December 29, 2005, pursuant to the terms of the Listing Agreement, TDI paid Realty Resource a portion of the commission due for the initial term of the sublease. The terms of the Listing Agreement were reiterated in Article XIII of the Sublease Agreement, to-wit:

13.01 Sublessee and Sublessor and Owner hereby acknowledge that the following disclosures have been previously made and accepted: Realty Resource, Inc. is acting as Sublessor’s Broker and is serving solely as agent for the Subles-sor in connection with this transaction and shall receive, from Sublessor upon the execution hereof, a leasing commission in an amount equal to six percent (6%) of the gross lease payments payable in the Initial Term hereunder and upon execution of the Renewal Option by Sublessee, a leasing commission in an amount equal to six percent (6%) of the gross lease payments payable in the Renewal Term. Colliers Turley Martin Tucker is acting as Sublessee’s Broker and is serving solely as agent for the Sublessee in connection with this transaction and shall receive forty-five percent (45%) of any leasing commission paid to Realty Resource, Inc. in connection with this Sublease and Sublessor shall cause Realty Resource, Inc. to pay such commission to Colliers Turley Martin Tucker. Sublessor and Sublesses [sic] agree to indemnify, defend and hold the other free and harmless from and against all claims for broker’s commissions or finder’s fees by any other person(s) claiming to have been retained by such party in connection with this transaction or to have caused this transaction.

On January 24, 2006, TDI entered into an Asset Purchase Agreement (Purchase Agreement) with BBF. The Purchase Agreement provided that the Sublease Agreement was among the contracts and obligations acquired by BBF through the Purchase Agreement. Accordingly, BBF, as the sublessor, received lease payments from Graham. On March 16, 2006, BBF, as sublessor, paid Realty Resource the remaining balance of the commission due for the initial term of the Sublease. On June 4, 2007, pursuant to the terms of the Sublease Agreement, Graham exercised its renewal option to remain in the Pershall Building after January 1, 2008. Graham remained in the Pershall Building, and made its lease payments to BBF during the renewal term. However, despite repeated demands by Realty Resource, both TDI and BBF refused to pay the 6% renewal commission due under the terms of the Sublease Agreement and the Listing Agreement.

On September 20, 2007, Realty Resource filed suit against TDI and BBF for the renewal commission. On July 28, 2008, Realty Resource filed a motion for summary judgment seeking recovery under the Listing Agreement against the prior sublessor, TDI, and, if TDI was determined to be insolvent, then against its Shareholders. Realty Resource also sought recovery as a third-party beneficiary under the Sublease Agreement against the current sublessor, BBF. In response to Realty Resource’s motion for summary judgment, TDI claimed that it was solvent and that BBF owed the commission to Realty Resource because BBF assumed the Sublease under the Purchase Agreement. BBF argued that TDI owed the commission to Realty Resource because BBF had no such liability under the Sublease Agreement and BBF did not assume the terms of the Listing Agreement, and thus had no liability to Realty Resource under the Purchase Agreement.

On December 2, 2008, the trial court entered a Partial Judgment wherein it found that Realty Resource had performed its obligations under the Listing Agreement, but TDI had not. The trial court thus found TDI was liable to Realty Resource for the renewal commission in the amount of $27,950.20, plus 9% prejudgment interest from June 4, 2007, in the amount of $3,762.93, for a total judgment of $31,713.13, plus court costs. The trial court also found that Realty Resource was a third-party beneficiary to the Sublease Agreement, which BBF had expressly assumed under the Purchase Agreement, and, accordingly, BBF was jointly and severally liable to Realty Resource for the renewal commission in the amount above stated.

On January 22, 2009, the trial court held a hearing on the cross-motions for 'summary judgment between TDI and BBF wherein each argued that the other was liable to Realty Resource for the renewal commission under the terms of the Purchase Agreement. On February 19, 2009, the trial court entered its Amended and Final Judgment, expressly incorporating its Partial Judgment and amending it by further finding that (1) the sublessor was required to pay a renewal commission to Realty Resource under the Sublease Agreement; (2) under the Purchase Agreement between TDI and BBF, BBF had assumed the Sublease Agreement; (3) the sublessee had renewed the Sublease; (4) as successive sublessors, TDI and BBF were jointly and severally liable to pay the renewal commission to Realty Resource; and (5) under Article 8 of the Purchase Agreement, BBF was obligated to indemnify TDI against Realty Resource’s claims; thus BBF was liable to TDI for any amount recovered by Realty Resource from TDI as well as any interest thereon, and $1,000.00 in legal fees. On May 14, 2009, the trial court certified the judgment as final for appeal. This appeal by BBF and cross-appeal by TDI follow. .

Points on Appeal

In its first point, BBF maintains that the trial court misapplied the law and erred in finding that Realty Resource is a third-party beneficiary to the Sublease Agreement that is the subject of this action and in thereby entering summary judgment against BBF, because the intent of the parties to a contract is paramount in determining whether a non-party to a contract is a third-party beneficiary of same, and the clear paramount intent of the parties to the Sublease Agreement' was to provide a mutual benefit solely to them, not to Realty Resource.

In its second point, BBF declares that the trial court misapplied the law in ordering joint and several liability between BBF and TDI as to the Listing Agreement, because whether a party is jointly and severally liable on a contract depends on the intent of the parties to the contract, and BBF is not a party to the Listing Agreement, BBF did not assume the Listing Agreement, BBF never' expressed an intent to be jointly and severally obligated on the Listing Agreement, and the trial court, more importantly, did not even enter judgment against BBF as to the Listing Agreement.

In its third point, BBF claims that the trial court misapplied the law and erred in finding that BBF is obligated to indemnify, defend and hold harmless TDI from and against the claims asserted by Realty Resource against TDI, because, pursuant to the Purchase Agreement, BBF is hable to TDI only for the liabilities of TDI assumed by BBF, and BBF assumed no obligation of TDI to pay the commission.

In its fourth point, BBF states that the trial court misapplied the law and erred in finding that BBF is liable to Realty Resource for prejudgment interest from June 4, 2007, because prejudgment interest on a contract accrues from the date on which demand for payment is made, and if none is made, then it accrues from the day on which suit is filed, and Realty Resource provided no evidence of the date on which it allegedly made such demand on BBF.

Standard of Review

Our review of a summary judgment is essentially de novo. Kansas City Hispanic Ass’n Contractors Enterprise, Inc. v. City of Kansas City, 279 S.W.3d 551, 555 (Mo.App. W.D.2009). We view the record in the light most favorable to the party against whom judgment was entered and give that party the benefit of all reasonable inferences from the record. Id. We will uphold the grant of-summary judgment on appeal if the movant is entitled to judgment as a matter of law and 'no genuine issues of material fact exist. Id. A defendant may establish a right to judgment as a matter of law by showing that there is no genuine dispute as to the existence of each of the facts needed to support the movant’s properly pleaded affirmative defense. Id.

Discussion

Points I and II

Third-Party Beneficiary and Indemnity

These two points can be discussed together, as they both .hinge on whether BBF assumed the obligation, to pay Realty Resource’s commission.

The Purchase Agreement entered into between BBF and TDI provided that the Sublease Agreement, which includes the commission due Realty Resource, was among the contracts and obligations assumed by BBF. BBF acted accordingly in the following ways. BBF, as the subles-sor, accepted lease payments from Graham, as the sublessee. Furthermore, BBF, as the sublessor, paid Realty Resource the remaining balance of the commission due for the initial term of the Sublease Agreement. These actions are contradictory to the posture BBF takes in this litigation.

■ Schedule 1.1(e), entitled “Assumed Contracts,” attached to the Purchase Agreement, specifically lists Graham’s premises lease with renewal option. The plain language of the Sublease Agreement obligates the sublessor, BBF, to pay the renewal commission to Realty Resource. Article XIII states that Realty Resource “shall receive, from Sublessor ... upon execution of the Renewal Option ... a leasing commission in an amount equal to six percent (6%) of the gross lease payments payable in the Renewal Term.” Pursuant to the terms of the Purchase Agreement, BBF is the sublessor.

In its judgment, the trial court found that Realty Resource was a third-party beneficiary of the Sublease Agreement, and therefore was entitled to direct Count III of its petition against BBF for payment of its commission, even though Realty Resource was not privy to the Sublease Agreement. BBF claims this finding was error, as the clear paramount intent of the parties to the Sublease Agreement was to provide a mutual benefit solely to them, not to Realty Resource.

A third-party beneficiary is one who is not privy to a contract or its consideration but who nonetheless may maintain a cause of action for breach of the contract. Andes v. Albano, 853 S.W.2d 936, 942 (Mo.banc 1993). A creditor beneficiary is “one upon whom the promisee intends to confer the benefit of the performance of the contract and thereby discharge an obligation or duty the promisee owes the beneficiary.” OFW Corp. v. City of Columbia, 893 S.W.2d 876, 879 (Mo.App.W.D.1995). “A person is a creditor beneficiary if the performance of the promise will satisfy an actual or supposed or asserted duty of the promisee to the beneficiary.” L.A.C. ex rel. D.C. v. Ward Parkway Shopping Center Co., L.P., 75 S.W.3d 247, 260 (Mo.banc 2002). “It must be shown that the benefit to the third party was the cause of the creation of the contract.” OFW Corp., 893 S.W.2d at 879. “Only those third parties for whose primary benefit the contracting parties intended to make the contract may maintain an action.” Id.

Here, it is clear from the terms of the Sublease Agreement that it creates a right in Realty Resource to receive payment upon Graham’s renewal of the Sublease Agreement. Graham, as sublessee, is making payments to BBF, as sublessor, based upon its renewal of the lease. Accordingly, Realty Resource is entitled to its commission as a third-party beneficiary. It was Realty Resource that brought Graham to the table as a sublessee to execute the Sublease Agreement with TDI as sub-lessor. Clearly this was performed by Realty Resource with the intent of earning the commission. The benefit to Realty Resource “was the cause of the creation of the contract.” OFW Corp., 893 S.W.2d at 879.

BBF also argues in its third point that the trial court erred in finding it had to indemnify TDI for the commission because BBF assumed no obligation of TDI to pay the commission. This argument is without merit. Article 8 of the Purchase Agreement states:

Without limiting any other remedies contained in this Agreement, Purchaser agrees to indemnify, defend and hold harmless the Seller and each of the Shareholders, officers, directors, agents and representatives, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Seller Indemnified Parties”) from and against and in respect of any and all claims, liabilities, obligations, losses, costs, expenses, penalties, fines and judgments (at equity or at law, including statutory and common law) and damages whenever arising or incurred (including, without limitation, amounts paid in settlement, costs of investigation and reasonable attorney’s fees and expenses) arising out of or relating to: (a) any of the Assumed Liabilities from and after the Closing Date; (b) any other liability or obligation relating to the conduct of the Business or ownership of the Purchased Assets after the Closing Date other than the Excluded Liabilities....

For the reasons above stated, BBF did assume the obligation to pay the commission to Realty Resource and, therefore, the trial court did not err in finding that BBF has a duty to indemnify TDI pursuant to the clear indemnification clause set forth in Article 8 of the Purchase Agreement.

For the foregoing reasons, Points I and III are denied.

Point III

Joint and Several Liability

In its second point on appeal, BBF maintains that the trial court erred in finding joint and several liability between BBF and TDI as to the Listing Agreement, because BBF was not a party to the Listing Agreement. However, the trial court did not make such a finding. Rather, it found that BBF and TDI had joint and several liability under the Sublease Agreement, which is clearly established by the language therein, and which BBF does not dispute in this point. Accordingly, Point II is denied.

Point IV

Prejudgment Interest

In its fourth point, BBF claims that the trial court erred in finding that BBF is liable to Realty Resource for prejudgment interest from June 4, 2007, because prejudgment interest on a contract accrues from the date on which demand for payment is made, and if none is made, then it accrues from the day on which suit is filed, and Realty Resource provided no evidence of the date on which it allegedly made such demand on BBF, but simply states in its pleadings it is entitled to prejudgment interest from June 4, 2007, and that Graham exercised its renewal of the Sublease on June 4, 2007. BBF maintains that since Realty Resource filed this action on August 15, 2008, such date is the one on which prejudgment interest should begin to accrue.

This point is not preserved for our review, as BBF did not raise it at the trial court level. Therefore we review for plain error only.

In actions for breach of contract, interest ordinarily runs from the date of the breach or the time when payment was due under the contract. Wulfing v. Kansas City Southern Industries, Inc., 842 S.W.2d 133, 160 (Mo.App. W.D.1992). The plaintiff in Wulfing made the same argument as BBF does here, which we reject for the same reasons as did our Western District colleagues:

Section 408.020 grants to a creditor interest ... when no other rate is agreed upon, for all moneys after they become due and payable, on written contracts, and on accounts after they become due and demand of payment is made ... The premise that in a claim for money damages for breach of a written contract, demand upon the contrac-tee initiates accrual of prejudgment interest is found in neither Section 408.020 nor in our authoritative decisions.

Id. at 160-61.

Section 408.020 provides:

Creditors shall be allowed to receive interest at the rate of nine percent per annum, when no other rate is agreed upon, for all moneys after they become due and payable, on written contracts, and on accounts after they become due and demand of payment is made; for money recovered for the use of another, and retained without the owner’s knowledge of the receipt, and for all other money due or to become due for the forbearance of payment whereof an express promise to pay interest has been made.

In this case, Article XIII of the Sublease Agreement provides that the commission “shall” be received by Realty Resource “upon execution of the Renewal Option by the Sublessee.” Article II of the Sublease Agreement states that “[t]o exercise the Renewal Option, Sublessee shall provide Sublessor with written notice of such renewal on or before July 1, 2007.” Graham provided written notice of its execution of the renewal option on June 4, 2007. Accordingly, the trial court did not err in ordering prejudgment interest to accrue from the date of June 4, 2007.

For the foregoing reasons, Point IV is denied.

Points on Cross-Appeal

In its first point, TDI asserts that the trial court abused its discretion when it entered an award of attorney’s fees in its favor in the amount of $1,000.00, without considering any evidence of the attorney’s fees it incurred in the case.

In its second point, TDI argues that it is entitled to recover its attorney’s fees incurred from the date the trial court entered judgment in its favor on its cross-claim through the conclusion of this appeal.

Standard of Review

The determination of reasonable attorney’s fees is in the sound discretion of the trial court. Williams v. Trans States Airlines, Inc., 281 S.W.3d 854, 877 (Mo.App. E.D.2009). This determination shall not be reversed unless the amount awarded is arbitrarily arrived at or is so unreasonable as to indicate indifference and a lack of proper judicial consideration. Id. at 877-78. The trial court is considered an expert on the issue of attorney’s fees such that, in the absence of a contrary showing, the trial court is presumed to know the character of the attorney’s services rendered in duration, zeal, and ability. Id. at 878.

Discussion

Point I

Attorney’s Fees, Trial

In the instant case, the trial court awarded TDI $1,000.00 in attorney’s fees in its judgment. The record is devoid of evidence upon which this award was based.

Upon receipt of the judgment, TDI filed a post-trial motion to amend the judgment asking the trial court to reconsider its award of attorney’s fees, because TDI had not been accorded the opportunity to submit evidence of those fees. However, the trial judge who had tried this case had moved to another division, and therefore a visiting judge heard and denied the motion without considering TDI’s evidence.

A party seeking attorney’s fees on appeal must show the extent of the necessary services to be rendered by counsel, and the expenses related thereto, so that the trial court may make an award based on evidence of such services and expenses. This also gives the appellate court evidence to examine, in connection with other relevant circumstances, in gauging the propriety of the trial court’s discretionary actions.

Hihn v. Hihn, 237 S.W.3d 607, 609 (Mo.App. E.D.2007).

Because none of the evidence of TDI’s claimed attorney’s fees was considered by the trial court, this Court cannot consider same. Thus, we have no evidence to examine to gauge the propriety of the trial court’s discretionary actions in determining the amount of the award. However, we do find that the failure of the trial court to receive and consider evidence of TDI’s attorney’s fees indicates a lack of careful consideration of the time and effort TDI spent preparing for and defending this litigation spanning several years, and suggests that the award of $1,000.00 in attorney’s fees was unreasonable and arbitrary. See Trout v. State, 269 S.W.3d 484, 489 (Mo.App. W.D.2008).

We cannot affirm an award of attorney’s fees on appeal unless it is supported by substantial evidence. In re Marriage of Crow, 103 S.W.3d 778, 783 (Mo.banc 2003). Here, it is not. Accordingly, we reverse the $1,000.00 award and remand for reception and consideration of TDI’s evidence of attorney’s fees. See Hills v. Greenfield Village Homes Ass’n, Inc., 956 S.W.2d 344, 350 (MoApp. W.D.1997) (reversed and remanded because record inadequate to determine on appeal the issue raised by appellant as to an award of attorney’s fees). TDI’s first point on appeal is granted.

Point II

Attorney’s Fees, Appeal

As hereinbefore noted, Article 8 of the Purchase Agreement provides for indemnification. In pertinent part it provides that:

Purchaser agrees to indemnify ... against .... any and all claims ... costs, expenses, penalties, fines and judgments ... including, without limitation, amounts paid in settlement, costs of investigation and reasonable attorney’s fees and expenses ....

Based on this provision, TDI is entitled to recover its attorney’s fees incurred in defending BBF’s appeal, if TDI prevails. Point II of ■ TDI’s appeal is therefore granted.

Conclusion

The judgment of the trial court is reversed to the extent of its award of attorney’s fees to TDI; remanded for determination of same as well as of attorney’s fees incurred by TDI on appeal; and affirmed in all other respects consistent with this opinion.

ROBERT G. DOWD, JR. and PATRICIA L. COHEN, JJ., concur.

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

      . BBF’s Motion to Strike TDI’s Reply is denied. TDI’s Motion for Attorney’s Fees is denied, as the issues raised within it are du-plicative of the issues presented in its points on cross-appeal, and have already been addressed by this Court in this opinion. TDI's Motion is denied for the further reason that it presents evidence to this Court that was not before the trial court. BBF's Motion to Strike TDI’s Motion for Attorney’s Fees is denied as moot.