text:
    Michael W. MURRAY, Respondent, v. Susan J. MURRAY, Appellant.
    No. ED 94260.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 23, 2010.

      Jody H. Wolff, Clayton, MO, for appellant.
    Michael W. Murray, St. Louis, MO, pro se.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   PER CURIAM.

Susan Murray, n/k/a Susan May (“Mother”) appeals from the judgment of the trial court denying her first amended motion for judgment of contempt against Michael Murray (“Father”). Mother raises four points on appeal. We summarily deny two of these claims and find that no jurisprudential purpose would be served by an exposition of the detailed facts and law. Rule 84.16(b).

Mother and Father were married on August 21, 1976, and divorced on February 26, 1998. During the course of the marriage, three children were born: Colleen, d.o.b. September 26, 1978; Heather, d.o.b. February 25, 1981; and Erin, d.o.b. December 13, 1984. At the time of the dissolution, Heather and Erin were still minors. The dissolution decree (“Dissolution Decree”), which incorporated the separation agreement of Mother and Father, provided, in part, that Father would pay child support for Heather and Erin until they were twenty-three years old, provided that they were still pursuing a post-secondary education. The Dissolution Decree also provided that Mother and Father would each pay half of the medical expenses not covered by insurance, and that Father and Mother would divide the cost of post-secondary education for the children on a 60-40 basis, unless and until Mother re-married, at which time the educational obligation would become 50-50. The educational provisions were subject to several limitations, which included the following:

The maximum cost each party shall be responsible for in any given school year will be in an amount of no more than their respective percent of the cost of an education at any school the parties find mutually acceptable, but in no event, more than their respective percent of the cost of the primary state school or university (currently the University of Missouri-Columbia) in the state where the minor children may reside at the time he has been accepted.

Time passed. The children went to college. Mother remarried. Father remarried. Father did not pay for the post-secondary education of his children. After Erin turned twenty-three years old, Father sent mother a letter stating that he had overpaid child support, and that he believed that Mother owed him that excess sum. Whereupon Mother retained counsel and on February 29, 2008, filed an application for order to show cause and motion for judgment of contempt, subsequently amended. In the application/motion, Mother alleged that Father had failed and refused to pay “those sums” required for their children’s post-secondary education as ordered in the Dissolution Decree, and had failed to pay her any portion of the children’s uncovered medical expenses since the date the Dissolution Decree had been granted in 1998 up to the date of the filing of the application/motion. She also claimed that Father had the ability to comply with the Dissolution Decree, and that she lacked an adequate remedy at law, and accordingly requested that the trial court hold Father in contempt and order him to pay “the amounts owed” to her and her attorney’s fees. Father then filed a motion to recover overpaid support and a motion to dismiss order to show cause, later followed by a motion for contempt and for sanctions. Mother in turn filed her first amended motion for order to show cause and motion for judgment of contempt (“Amended Motion”).

The trial court held a hearing on all of the pending motions. Mother and Father testified, as did all of their children. Mother attempted to introduce into evidence a “tub” of purported carbon copies of her checks over the years indicating expenses that she paid for which Father was allegedly obliged to pay for the children, along with her self-created summary of the information from the carbon copies of the checks. Mother had not produced either the collection of carbon copies or the summary in response to Father’s request for production of documents during discovery. The trial court excluded these items from evidence, although it did permit Mother to use them to refresh her recollection. Two exhibits, AA and MM, which related to the college expenses of Erin and Heather respectively, were admitted into evidence without any objection from Father.

The trial court issued findings of fact, conclusions of law, and its judgment on September 15, 2009. It ultimately denied Father’s motion to recover “overpaid” child support, denied his motion for contempt, and denied Mother’s Amended Motion.

Mother now appeals from this judgment.

Our review is governed by Murphy v. Carrón, 536 S.W.2d 30 (Mo. banc 1976). We will sustain the trial court’s judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or misapplies the law. Id. at 32. Dissolution decrees and the property agreements incorporated therein are enforceable like any other judgment. Booker v. Booker, 125 S.W.3d 354, 356 (Mo.App.2004). This Court defers to the trial court’s determinations of credibility, and views the evidence and the inferences that may reasonably be drawn therefrom in the light most favorable to the judgment. Neal v. Neal, 281 S.W.3d 330, 337 (Mo.App.2009). In reviewing bench trials, this Court will uphold the judgment of the trial court if there is any tenable basis for the result. State v. Entertainment Ventures I, Inc., 44 S.W.3d 383, 388 (Mo. banc 2001).

We will first examine Mother’s second point on appeal as it is dispositive. In her second point relied on, Mother argues that the trial court misstated the law and facts in denying her Amended Motion for failure to state a claim because a paragraph of her motion “specifically requests that a sum certain be determined by the Court” and she presented evidence from which the trial court could calculate the amount due and owing, thereby stating a claim for relief.

Mother avers that a number of the trial court’s findings are “contrary to the law” and the evidence adduced at trial. She is correct in stating that the title of a motion is not dispositive; rather, the contents of the motion must be considered. Dunkle v. Dunkle, 158 S.W.3d 823, 831-32 (Mo.App.2005). As Mother states, paragraph 13 of her amended motion avers that:

[Mother] has no adequate remedy at law and therefore seeks this Court’s Judgment holding [Father] in Contempt for the reasons set forth above; and order [Father] to pay the amounts owed to [Mother] and [Mother’s attorney’s fees; and enter judgment against [Father] for all sums due to [Mother], including interest, if any.

Broadly construed, this would appear to be a request to reduce sums to judgment, and the record suggests that this issue was tried before the trial court, by consent if not by pleading. With that in mind, the trial court did in paragraph 11(f) of its judgment find that “a proper motion would have been a motion to reduce sums to Judgment, and the record in this case is unclear as to what sums have been adduced and what sums have been paid by [Mother], if any.” The trial court is correct in this statement about the proper motion; however, it did not decide the matter based on the style of Mother’s Amended Motion, which would be an error. The remainder of the trial court’s findings and conclusions reflect that the trial court in effect treated Mother’s Amended Motion as a joint motion to reduce sums to judgment and motion for contempt. In paragraph 16 of its findings and conclusions, the trial court found that “[Mother’s Motion for Contempt cannot be reasonably construed as a Motion to Reduce Sums to Judgment, as the record is devoid of any facts which would allow the Court to make the determination of the sums that are. due and owing by [Father].” (Emphasis added). Essentially, the trial court found that there was insufficient substantial, competent, credible evidence for it to reduce the sums to judgment, not that it refused to treat Mother’s Amended Motion as a request to reduce sums to judgment. Mother stated a claim for which relief could be granted, but the trial court, the finder of fact, was not persuaded by her evidence. It specifically found that Mother’s testimony “lacks credibility and is not supported by the testimony of the parties or the evidence adduced therein.” It found that that she failed to show that she ever made demand for any payment of medical-related bills for the children to Father, and that her own testimony on the subject was contradictory. The trial court found that Mother testified that she had not spoken to Father in years, but also stated that she had made demand on him in writing, but she could not produce any evidence submitted in the record that she made a demand on Father, and that she failed to show the actual expenses incurred, whether they were covered partially or totally by health insurance, or when those expenses were incurred or that she paid those expenses.

We note that Erin testified that she did not recall bringing Father any letters from Mother, or recall being given letters by Mother with instructions to give them to Father so he could give her money. Heather testified that she never gave Father a bill that he refused to pay. Their testimony is in marked contrast to that of Mother, who claimed to have sent letters and bills to Father through the two young women.

There is a lack of substantial, credible evidence regarding the medical expenses of the children that were not covered by insurance. The trial court did not err. in concluding that Mother failed to prove her claim for those expenses.

Regarding college expenses, the trial court found that Mother testified to different amounts regarding college expenses for the children, “was unclear” as to the amounts she had actually paid, what amounts were loans to the children, what amounts of loans she had paid, and what the children had paid. The trial court found that the Dissolution Decree required specifically that Mother and Father mutually choose an acceptable educational institution for the children, but there was no evidence that there was ever such a mutual agreement, “and the evidence of the parties’ lack of communication would indicate that the parties at no time reached a consensus on where to send the then minor children to college.” The trial court also found that despite Father’s request for production of evidence showing payments for college expenses, no such evidence was produced, and that the only records produced regarding bills were not contemporaneous records or records submitted by the appropriate custodian of records under affidavit.

The trial court is incorrect in its findings and conclusions regarding the children’s post-secondary education expenses. Father admitted that he was aware the children were going to the University of Missouri and Truman State University, both state schools. Father testified he went up to Truman, and every January his daughters gave him copies of their class schedules. Father acknowledged that he knew his children had college expenses, and did not know who was paying them. Father stated that the reason he did not pay the college expenses was that he “didn’t have the money” and he thought the girls would play sports. When he talked to the children about school costs, they said their mother was taking care of it. Exhibits AA and MM were admitted into evidence without objection by Father, and in fact apparently subpoenaed from the University of Missouri-Columbia and Truman State University respectively by Father. Exhibit AA has accompanying affidavits from the custodians of records. These exhibits show the charges and credits for the education of Erin and Heather in considerable detail. While it is true that these exhibits are not, in and of themselves, bills and do not show who paid the charges, other than through student loans, they do provide competent and substantial evidence of the children’s post-secondary educational expenses. There is sufficient information contained therein, when coupled with the terms of the Dissolution Decree regarding the payment of post-secondary education expenses, for the trial court to determine Father’s portion of the expenses, given that Father testified that he paid nothing towards their education. The Dissolution Decree states that “costs and expenses shall include books, tuition, fees, and dormitory costs” with the costs payable by Mother and Father reduced by scholarships and financial aid that reduces the actual costs. It further provides that “loans to the student shall not be considered scholarship or other aid” that would reduce “costs.” The Dissolution Decree also specifies what percentages of the educational expenses were to be borne by Father. The trial court erred in its judgment on the claim for educational expenses. Point denied in part and sustained in part.

We need not address Mother’s first point relied on, as our holding on her second point relied on is dispositive regarding the trial court’s judgment.

The judgment of the trial court is affirmed in part and reversed and remanded in part with instructions to the trial court to determine the sum that Father owes based on Exhibits AA and MM pursuant to the terms of the Dissolution Decree for the educational expenses of Erin and Heather.

      . Father has not favored this court with a Respondent's brief on appeal.

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

      . The record reflects that the records from Truman State University had an accompanying affidavit from the custodian of records when sent to Father’s counsel, but that affidavit does not appear as part of Exhibit MM. However, Exhibit MM was admitted into evidence without objection by Father.

      . The trial court was correct in finding that the record was unclear as to what Mother paid towards the post-secondary educational expenses of Erin and Heather. However, the issue is what Father is obligated to pay towards educational expenses under the Dissolution Decree, not what Mother paid.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Brian TAYLOR, Appellant.
    No. ED 93895.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 23, 2010.
    Timothy J. Forneris, Assistant Public Defender, St. Louis, MO, for appellant.
    Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J., and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Brian Taylor (hereinafter, “Defendant”) appeals from the trial court’s judgment entered after a jury found him guilty of second-degree murder, Section 565.021 RSMo (2000), first-degree assault, Section 565.050, and two counts of armed criminal action, Section 571.015. The trial court sentenced Defendant to thirty years’ imprisonment.

On appeal, Defendant raises two allegations of error. Defendant challenges the trial court’s late endorsement of a witness, claiming he had no opportunity to prepare his defense. He also claims the trial court erred in admitting a photograph of his victim.

We have reviewed the briefs of the parties and the record on appeal. An extended opinion would have no precedential value. We have, however, provided a memorandum opinion, only for the use of the parties, setting forth the reasons for our decision.

The judgment is affirmed pursuant to Rule 30.25(b).

      . All further statutory references are to RSMo (2000) unless otherwise indicated.


author: ROY L. RICHTER, Chief Judge.

text:
    OAK CREEK WHITETAIL RANCH, LLC., Appellant, v. Glendon B. LANGE, et al., Respondents.
    No. ED 94712.
    Missouri Court of Appeals, Eastern District.
    Nov. 23, 2010.
    Dale C. Doerhoff, Heidi Doerhoff Vol-lett, Jefferson City, MO, for appellant.
    William S. Lewis, Mark F. Foglesong, Smithville, MO, Dana M. Harris, Charles A. Edgeller, Kansas City, MO, Christopher P. Rackers, Brad C. Letterman, Jefferson City, MO, for respondents.
   ROY L. RICHTER, Chief Judge.

Oak Creek Whitetail Ranch, L.L.C., (“Oak Creek”) appeals the trial court’s decision to grant summary judgment in favor of Glendon Lange, et al., (“the Defendants”). We reverse.

I. BACKGROUND

Oak Creek is a deer breeding and hunting business. On December 10, 2006, three dogs, allegedly owned by the Defendants, entered Oak Creek’s property, broke through the pen where the breeder deer were kept, and killed twenty one of Oak Creek’s deer.

The deer killed were “breeder deer,” including bucks, does, and fawns. The deer killed (and their parents) were all penned and hand-fed, and lacked the defensive abilities of wild deer. The deer were being raised for their genetic ability to produce male offspring with extraordinarily large antler racks. The breeder deer were valuable animals, some selling well into six figures.

Oak Creek sued Defendants under Section 273.020 RSMo 2000 , which places liability on the dog owner when that dog kills or maims a domestic animal. Defendants filed a motion for summary judgment asserting that deer were not domestic animals. The trial court agreed and granted the motion. Oak Creek appeals.

II. DISCUSSION

In Oak Creek’s sole point on appeal, it argues that the trial court erred in granting summary judgment because Oak Creek’s breeder deer that were killed are “domestic animals” under Section 273.020. We agree.

Review on appeal 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). Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.

Section 273.020 creates a liability of the owner or keeper of a dog, when said dog kills or maims a sheep or “other domestic animal.” Section 273.020. The trial court interpreted the term “domestic animal” to mean “traditional domestic farm animals” such as “cattle, swine, chickens and horses.” We find that this interpretation violates the rules of statutory interpretation.

“Absent a statutory definition, the primary rule of statutory interpretation is to give effect to legislative intent as reflected in the plain language of the statute.” Brinker Mo. Inc. v. Director of Revenue, 319 S.W.3d 433, 437-38 (Mo. banc 2010). Here, there is no statutory definition of “domestic” so we look to the plain meaning of the word.

Webster’s Dictionary defines the word “Domestic,” as related to animals, to mean “[l]iving in or near the habitation of man; domesticated; tame; as, domestic animals.” Webster’s New International Dictionary (2nd Ed.). “Domestic Animal” is in turn defined as “[a]ny of various animals, as the horse, ox, or sheep, which have been domesticated by man so as to live and breed in a tame condition.” Id.

This plain language definition of “domestic” describes Oak Creek’s breeder deer. The deer killed have never been in the wild. They were all penned and hand-fed, raised in an environment that did not allow them to move freely beyond their confined area.

Based on the plain language definition of “domestic”, we find that the “domestic animals” referred to in Section 273.020 are not limited to solely “traditional domestic farm animals”, and would include Oak Creek’s breeder deer which had been domesticated and lived and bred in a tame condition. Therefore, the trial court erred in granting the Defendants’ summary judgment motion. Point granted.

III. CONCLUSION

The judgment of the trial court is reversed and the cause is remanded for further proceedings.

KATHIANNE KNAUP CRANE and SHERRI B. SULLIVAN, JJ„ concur.

        . Unless otherwise noted, all further refer-enees are to RSMo 2000.


text:
    Johnny SITTNER, Appellant, v. STATE of Missouri, Respondent.
    No. ED 94643.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 23, 2010.
    Mark A. Grothoff, Office of the Missouri Public Defender, Columbia, MO, for Appellant.
    Chris Koster, Attorney General, Jamie Pamela Rasmussen, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before: KURT S. ODENWALD, P.J., ROBERT G. DOWD, JR., J. and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Johnny Sittner appeals from the motion court’s denial, without an evidentiary hearing, of his amended Rule 29.15 motion for post-conviction relief. On direct appeal, this Court affirmed Sittner’s convictions, following a jury trial, of first-degree statutory rape, first-degree statutory sodomy, and two counts of incest. State v. Sittner, 294 S.W.3d 90 (Mo.App. E.D.2009). Sitt-ner alleges that he received ineffective assistance of counsel because his trial counsel failed to move to exclude, or object at trial, to the testimony of a social worker who commented on the truthfulness of the complaining witness, and therefore, invaded the province of the jury. We affirm the motion court’s decision.

We have reviewed the briefs of the parties and the record on appeal and find the claim of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no prece-dential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order affirming the judgment pursuant to Rule 84.16(b).


text:
    Ronald E. WORD, Appellant, v. STATE of Missouri, Respondent.
    No. ED 94502.
    Missouri Court of Appeals, Eastern District. Division Two.
    Nov. 23, 2010.
    Edward S. Thompson, Assistant Public Defender, St. Louis, MO, for appellant.
    Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J., and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Ronald E. Word (hereinafter, “Movant”) pleaded guilty to first-degree statutory sodomy, Section 566.062 RSMo (2000), and first-degree sexual misconduct, Section 566.083. Movant was sentenced to twelve years’ imprisonment for the sodomy count and four years’ imprisonment for the sexual misconduct count, to run concurrently. Movant now appeals from the judgment denying his Rule 24.035 motion for postconviction relief without an eviden-tiary hearing. Movant raises one point on appeal, alleging the motion court erred in denying his post-conviction motion because his plea counsel issued a dire warning that his sentence would be lengthy if he proceeded to trial.

We have reviewed the briefs of the parties and the record on appeal. We find no error of law. No jurisprudential purpose would be served by a written opinion. We have, however, provided a memorandum opinion, only for the use of the parties, setting forth the reasons for our decision.

The judgment of the trial court is affirmed pursuant to Rule 84.16(b).

      . All further statutory references herein are to RSMo (2000) unless otherwise indicated.


text:
    Earl ANDERSON, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93748.
    Missouri Court of Appeals, Eastern District, Division Five.
    Nov. 23, 2010.
    Alexandra Johnson, Assistant Public Defender, St. Louis, MO, for appellant.
    Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, JR., P.J., MARY K. HOFF, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Earl Anderson (Movant) appeals from the judgment of the St. Charles County Circuit Court denying his Rule 24.035 motion for post-conviction relief. Movant contends the motion court erred in denying his motion for post-conviction relief after a hearing because the motion court had no authority to vacate or amend the amended judgment and sentence entered on October 17, 2007.

We have reviewed the briefs of the parties and the record on appeal and find the motion court’s decision was not clearly erroneous. An extended opinion would have no precedential value. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision.

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


text:
    Stephen W. SELL, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 94714.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 23, 2010.
    Lisa M. Stroup, St. Louis, MO, for appellant.
    Chris Koster, Jamie Pamela Rasmussen, Attorney General, Jefferson City, MO, for respondent.
    Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J., and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Movant, Stephen W. Sell, appeals from a judgment denying on the merits his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. The findings and conclusions of the motion court are based on findings of fact that are not clearly erroneous. No error of law appears. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order.

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


text:
    STATE of Missouri, Respondent, v. Willie BATES, Defendant, Donald Hawkins c/o Safety National Casualty Corporation, Surety/Appellant.
    No. ED 93339.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 23, 2010.
    Nick A. Zotos, Saint Louis, MO, for Surety/Appellant.
    Brad Elkin, Office of the Circuit Attorney, Saint Louis, MO, for Respondent.
    Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J. and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Safety National Casualty Corporation, as surety of an appearance bond, appeals from a bond forfeiture judgment. No error of law appears. An extended opinion would have no precedential value. We have, however, provided the parties with a memorandum setting forth the reasons for our decision. We affirm the judgment under Rule 84.16(b).


text:
    STATE of Missouri, Plaintiff/Respondent, v. Ronald BURSTON, Defendant/Appellant.
    No. ED 93805.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 23, 2010.
    Shaun J. Mackelprang, John M. Reeves, Jefferson City, MO, for Plaintiff/Respondent.
    Edward S. Thompson, St. Louis, MO, for Defendant/Appellant.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Ronald Burston appeals from the trial court’s judgment entered upon a jury verdict convicting him of first-degree tampering. We have reviewed the briefs of the parties and the record on appeal and conclude that the trial court committed no plain error. Rule 30.20; State v. Nylon, 311 S.W.3d 869, 884 (Mo.App. E.D.2010). An extended opinion would have no prece-dential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only.

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

      . All rule references are to Mo. R.Crim. P.2009, unless otherwise indicated.


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

text:
    Tamara VENZ, Appellant, v. CONVERGYS CUSTOMER MANAGEMENT GROUP, INC. and Division of Employment Security, Respondents.
    No. ED 94479.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 23, 2010.

      John J. Ammann, St. Louis, MO, for Appellant.
    Convergys Customer Management, Group, Inc., St. Louis, MO, pro se.
    Jeannie D. Mitchell, Division of Employment Security, Jefferson City, MO, for Respondent.
   ROBERT G. DOWD, JR., Judge.

Tamara Venz (“Claimant”) appeals the decision of the Labor and Industrial Relations Commission (“the Commission”) denying her unemployment benefits after she was terminated from Convergys Customer Management Group (“Convergys”). Claimant argues the Commission erred in concluding that she committed misconduct because the Commission’s decision (1) was contrary to the law in that it impermissibly put the burden on Claimant to prove her absences were not willful, and (2) was not supported by competent and substantial evidence that Claimant committed miseon-duct pursuant to Section 288.210, RSMo 2000. We reverse.

Claimant began working for Convergys on November 10, 2008 as a customer service representative. Convergys utilized a no-fault point system attendance policy. Under the policy, certain point values were assessed for certain incidents of absenteeism, including being tardy or leaving early. The policy provided that within one rolling year if an employee accumulated a certain amount of points, the following disciplinary measures were taken: three points-note to file, six points-verbal warning, nine points-written warning, and twelve points-termination. Claimant was made aware of Con-vergys’ attendance policy when she began working there.

In accordance with the policy, Claimant received a note to her file after reaching three points on January 27, 2009. Claimant also received a verbal warning after she reached six points on March 27, 2009. Claimant received a written warning about her attendance after she reached nine points on June 12, 2009. Claimant reached twelve and one half attendance points on July 14, 2009. On July 15, 2009, her employment was terminated due to absenteeism.

Claimant subsequently applied for unemployment benefits. A deputy denied Claimant’s petition for unemployment benefits, finding she was discharged for misconduct connected with work. Claimant appealed this initial determination, and the appeals tribunal affirmed the deputy’s decision, finding “the evidence showed that the majority of the points [Claimant] accumulated under the [Convergys] attendance policy, resulting in her discharge, were for absences that were avoidable or willful.” Thus, the appeals tribunal found Claimant’s absenteeism constituted misconduct.

Claimant filed an application for review with the Commission. The Commission adopted and affirmed the decision of the appeals tribunal, finding it was supported by the competent and substantial evidence on the whole record and was in accordance with the law. This appeal follows.

The standard of review when reviewing a decision by the Commission on unemployment benefits is contained in Section 288.210, which provides that we may reverse, modify, set aside, or remand a decision by the Commission on the following grounds and no other: 1) that the Commission acted without or in excess of its powers; 2) that the decision was procured by fraud; 3) that the facts found by the Commission do no support the award; or 4) that there was no sufficient competent evidence in the record to warrant the making of the award. Stewart v. Duke Mfg. Co., 292 S.W.3d 495, 497 (Mo.App. E.D.2009). The factual findings of the Commission, if supported by competent and substantial evidence, in the absence of fraud, shall be conclusive and our review shall be limited to questions of law. Id. However, whether a claimant’s actions constituted misconduct connected with work is a question of law, which we review de novo. Finner v. Americold Logistics, LLC, 298 S.W.3d 580, 584 (Mo.App. S.D.2009).

We will address both of Claimant’s points at the same time. In her first point, Claimant argues the Commission erred in concluding that she committed misconduct because the Commission’s decision was contrary to the law in that it impermissibly put the burden on Claimant to prove her absences were not willful. In her second point, Claimant argues the Commission erred in concluding that she committed misconduct because the Commission’s decision was not supported by competent and substantial evidence.

Section 288.050.2 provides “[i]f a deputy finds that a claimant has been discharged for misconduct connected with the claimant’s work, such claimant shall be disqualified for waiting week credit and benefits, and no benefits shall be paid....” Further, Section 288.080 defines “misconduct” as

an act of wanton or willful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of his or her employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the. employer.

Although the burden of proving eligibility for unemployment compensation benefits initially lies with the claimant, once an employer alleges that the claimant was discharged for misconduct connected with work, the burden shifts and the employer must demonstrate such misconduct. Freeman v. Gary Glass & Mirror, LLC, 276 S.W.3d 388, 391 (Mo.App. S.D.2009). In order to do so, the employer must show, by a preponderance of the evidence, that the claimant willfully violated the rules or standards of the employer or that the claimant knowingly acted against the employer’s interest. Id. There is a distinction between the violation of an employer’s rule justifying the employee’s discharge and the violation of an employer’s rule that warrants a finding of misconduct connected to the employee’s work. Id.

In Division of Employment See. v. Gardner-Denver Machinery, Inc., 941 S.W.2d 13, 14 (Mo.App. W.D.1997), the Commission determined an employee had been discharged for misconduct connected with work and disallowed benefits. In that case, the court reversed the Commission because the employer did not keep track of the reasons for its employees’ absences, and therefore, there was no record from which it could determine whether the employee was guilty of misconduct. Id. at 15. The court noted that case could be distinguished from cases which disallow benefits to employees who have chronic unexcused absenteeism where the employer maintains a record of the reasons for the absences. Id. However, the court found that without a more substantial explanation for the employee’s absences, it could not say the conduct reached a level sufficient to be misconduct connected with work. Id.

In this case, Claimant incurred attendance infractions and was assessed points as follows: three points on January 27, 2009, six points on March 27, 2009, nine points on June 12, 2009, and twelve and one half attendance points on July 14, 2009. On July 15, 2009, her employment was terminated due to absenteeism.

Although Employer did not keep records indicating the reasons for the infractions leadings to these points, Claimant did testify as to the reasons for some of them. In particular, the Commission found Claimant’s absence for shifts on November 28, 2008, and May 4, June 27, July 13, and July 14, 2009 was not willful. The Commission found the absence on January 12, 2009, when Claimant left work after thirty minutes because she was excited and anxious about the birth of her grandson, was willful. However, with respect to the remaining occurrences, there was no record as to why Claimant was absent.

It is clear that the Commission erred in placing the burden on Claimant to explain her attendance infractions. Once an employer alleges that the claimant was discharged for misconduct connected with work, the burden shifts and the employer must demonstrate such misconduct. Freeman, 276 S.W.3d at 392. The misplaced burden is demonstrated by the Commission’s decision, which stated it did

not believe that [the January 12, 2009] incident rose to the level of a family emergency such that [C]laimant’s absence was not willful. With respect to the remaining occurrences of the [C]laimant’s absence, the [Claimant did not recall why she was absent. Thus, with respect to those occurrences, the evidence failed to show that the [Claimant’s absences were unavoidable or un-willful.

Claimant provided an explanation for the January 12, 2009 absence, and the Commission’s finding above makes it clear that the Commission was placing the burden on Claimant to show her absence was not willful. Because Claimant did not provide reasons for the other infractions, the Commission improperly found Claimant had not met her burden. As a result, the Commission concluded “the evidence showed that the majority of the points [Claimant] accumulated under the under [Convergys] attendance policy, resulting in her discharge, were for absences that were avoidable or willful. As such, [the Commission found] that the [C]laimant’s absenteeism constituted misconduct.”

Thus, if we apply the correct burden, we find the evidence shows the absences on November 28, 2008, and May 4, June 27, July 13, and July 14, 2009 were not willful. The only arguable willful absence occurred on January 12, 2009. There is no evidence concerning the avoidableness or willfulness of the remaining absences and infractions. Thus, there is no evidence that the majority of points Claimant accumulated under the Convergys attendance policy, resulting in her discharge, were for absences that were avoidable or willful. Therefore, under the correct burden, the record does not support the conclusion that Claimant’s attendance infractions amounted to misconduct.

Therefore, the Commission erred in concluding that Claimant committed misconduct because the Commission’s decision was contrary to the law in that it imper-missibly put the burden on Claimant to prove her absences were not willful. We further note that under the correct burden the Commission’s decision was not supported by competent and substantial evidence. Points granted.

The decision of the Commission is reversed.

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

      . Convergys did not file a respondent’s brief for this appeal.

      . All further statutory references are to RSMo 2000.

      . One member of the Commission dissented.

      . Section 288.050.3 provides: "Absenteeism or tardiness may constitute a rebuttable assumption of misconduct, regardless of whether the last incident alone constitutes misconduct, if the discharge was the result of a violation of the employer’s attendance policy, provided the employee had received knowledge of such policy prior to the occurrence of any absence or tardy upon which the discharge is based.” Thus, there could have been some basis for shifting the burden onto Claimant to prove her attendance infractions did not constitute misconduct. However, in this case, the Commission only makes a passing reference to Section 288.050.3 before analyzing and deciding the case according to Section 288.030.1(23), the statute defining misconduct. In reversing the Commission in Williams v. Enterprise Rent-A-Car Shared Services, LLC, 297 S.W.3d 139, 143 (Mo.App. E.D.2009), we similarly found that the Commission relied on the section 288.030.1(23), which defines misconduct, and did not base its finding on Section 288.050.3.


text:
    Billy J. CHAFFIN, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 94262.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 23, 2010.
    Maleaner Harvey, Assistant Public Defender, St. Louis, MO, for appellant.
    Chris Koster, Dora A. Fichter, Attorney General, Jefferson City, MO, for respondent.
    Before GLENN A. NORTON, P.J., ■ KATHIANNE KNAUP CRANE, J., and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

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


text:
    Robert HAYNES, Claimant/Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondent/Respondent.
    No. ED 94687.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 23, 2010.
    Robert C. Haynes, Florissant, MO, pro se.
    Ninion S. Riley, Jefferson City, MO, for respondent.
    Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J., and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Claimant, Robert Haynes, appeals pro se from the Order of the Labor and Industrial Relations Commission affirming the decision of the Appeals Tribunal of the Division of Employment Security finding claimant ineligible for unemployment benefits because claimant was not available for work. The Order of the Labor and Industrial Relations Commission is supported by competent and substantial evidence on the whole record. A written opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum opinion, for their information only, setting forth the facts and reasons for this order.

We affirm the Order of the Labor and Industrial Relations Commission pursuant to Rule 84.16(b).


text:
    Lloyd MILLENDER, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93986.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 23, 2010.
    Jo Ann Rotermund, Saint Louis, MO, for Appellant.
    Chris Koster, Attorney General, Evan J. Buchheim, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J. and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Lloyd Millender appeals the judgment denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. Millender argues he was denied his right to effective assistance of trial counsel. We find the motion court’s findings and conclusions are not clearly erroneous. An extended opinion would have no precedential value. We have, however, provided the parties a memorandum setting forth the reasons for our decision. The judgment of the motion court is affirmed under Rule 84.16(b).


text:
    In the Interest of: K.C.H.
    No. ED 94458.
    Missouri Court of Appeals, Eastern District, Southern Division.
    Nov. 23, 2010.
    Vonnedele Phillips, Farmington, MO, for appellant.
    Tammy Steward, David Orzel, Jill McKay, Farmington, MO, Gary Gardner, Missouri Attorney General’s Jefferson City, MO, Catherine Keefe, Clayton, MO, Brad Zee, Potosí, MO, for respondents.
    Before MARY K. HOFF, P.J., SHERRI B. SULLIVAN, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Carl Hedrick (“Father”) appeals from a judgment terminating his parental rights to his daughter, K.C.H. He claims seven points on appeal asserting that the trial court erred in: (1) refusing to grant paternal grandmother an evidentiary hearing on her motion to intervene in the termination of parental rights (“TPR”) case; (2) denying Father’s timely filed motions to disqualify the trial court because the TPR was a separate proceeding from the earlier abuse and neglect case; (8) terminating Father’s parental rights by finding that Father had failed to comply with the social services plan to stay free from drugs and that he had neglected and sexually abused K.C.H.; (4) terminating Father’s parental rights by finding that K.C.H. had been in foster care for fifteen of the most recent twenty-two months; (5) finding clear and convincing evidence that Father committed a severe act of sexual abuse against his daughter; (6) and abused its discretion in overruling Father’s objections to the Juvenile Officer playing a videotape of K.C.H.’s forensic interview; and (7) terminating Father’s parental rights in that no social and investigative study was timely filed as required under Section 211.455.

In a separate appeal consolidated with Father’s appeal, Debbie DiMeo (“Grandmother”), appeals from the trial court’s denial of her motion to intervene. Grandmother claims two points on appeal. First, she claims the trial court erred in denying her motion to intervene in the TPR case without holding an evidentiary hearing. Second, she claims the trial court erred in denying her motion to intervene on the basis of res judicata.

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

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

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


author: NANNETTE A. BAKER, Judge.

text:
    Joyce STABLER, Appellant, v. Joseph STABLER and Janell Stabler, Respondents.
    No. ED 94411.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 30, 2010.

      James Leightner, Clayton, MO, for appellant.
    Matthew Rossiter, Clayton, MO, Andrew Callahan Co-Counsel, Kathie Dudley Co-Counsel, St. Louis, MO, for respondent.
   NANNETTE A. BAKER, Judge.

Introduction

Joyce Stabler (“Appellant”) appeals from the judgment of the Circuit Court of St. Louis County dismissing her Second Amended Petition (“Petition”) against Joseph Stabler and Janell Stabler (collectively “Respondents”) for lack of standing. Appellant claims the trial court erred by considering matters that were not part of the pleadings in dismissing the Petition. Appellant also claims the trial court erred in finding she lacked standing to assert claims against Respondents. We affirm in part and reverse in part.

Factual and Procedural Background

In 1992, Ernest F. Stabler (“Stabler”) established the Ernest F. Stabler Revocable Living Trust (“Trust”) to provide for his health, maintenance, comfort and support. The trustees of the Trust are Stabler’s children, the Respondents. Stabler married Appellant on July 11, 1998. He and Appellant entered into an ante nuptial agreement before the marriage. Stabler was diagnosed with Alzheimer’s disease and the St. Louis County Probate Division adjudged him to be fully incapacitated and disabled. In 2004, the Probate Division established a conservatorship estate (“Conservatorship”) for Stabler. The Probate Division appointed Mark Harford to serve as the guardian and conservator of the Conservatorship. Stabler died on July 27, 2008. After his death, Respondents were appointed as co-personal representatives of his estate.

On September 11, 2009, Appellant filed a three-count Petition asserting claims against Respondents in their capacities as trustees of the Trust and as the personal representatives of Stabler’s estate. In the Petition, Appellant claims that, during Stabler’s life, she was a beneficiary of the Trust and of two life insurance policies, one of which was owned by the Trust, and one of which was owned by Stabler’s Estate. In Count I of the Petition, Appellant claims Respondents, as trustees, failed to provide her with a regular accounting of Trust property during Stabler’s life. She seeks an accounting of Trust property from the time Respondents became trustees until the date of Stabler’s death. Appellant did not attach a copy of the Trust to the Petition. She pled the following facts related to her status as a beneficiary of the Trust:

13. Pursuant to the terms of the Uniform Trust Code, Section 456 RSMo., “[Appellant] was, during the lifetime of [Stabler], a beneficiary and/or permissible distributee and/or qualified beneficiary of the [Trust].”
15. That [Appellant] is a permissible beneficiary pursuant to Section 456 RSMo.

In Count II, Appellant alleges Respondents, as trustees, engaged in self-dealing and mismanagement of Trust assets by conserving the Trust assets instead of using the assets to provide for Stabler’s health, maintenance, comfort, and support. Appellant claims that Respondents’ failure to administer the Trust effectively caused the Conservatorship to deplete the assets of the Conservatorship in order to provide for Stabler. Appellant contended that the principal asset of the Conservatorship was a life insurance policy of which Appellant was the beneficiary.

In Count III, Appellant claims Respondents, as personal representatives of Stabler’s estate and as trustees, were unjustly enriched because they ultimately benefited from the Trust assets that Appellant contends should have been expended by the Trust to provide for Stabler’s health, maintenance, comfort, and support. Appellant claims Respondents “accumulate[d] Trust assets, from which they ultimately benefited, rather than using those Trust assets for the [Trust purpose].”

Respondents did not file an answer to the Petition but instead filed two separate motions to dismiss. One motion to dismiss (“Trustee Motion”) was filed on behalf of Respondents as trustees of the Trust. The Trustee Motion claimed the Petition failed to state a claim against the Trustees because “[Appellant] is not a beneficiary, qualified beneficiary or permissible distrib-utee of the Stabler Trust.” The Trustee Motion also claimed Appellant lacked standing. The second motion to dismiss (“Personal Representative Motion”) was filed on behalf Respondents as the personal representatives of Stabler’s estate. The Personal Representative Motion claimed the Petition failed to allege any facts to support a cause of action against Respondents in their capacity as personal representatives of Stabler’s estate.

The trial court granted both motions on the grounds that Appellant lacked standing. This appeal follows.

Standard of Review

We review a trial court’s grant of a motion to dismiss de novo. White v. Tariq, 299 S.W.3d 1, 3 (Mo.App. E.D.2009). “In reviewing the dismissal of a petition, the sole issue to be decided is whether, after allowing the pleading its broadest intendment, treating all facts alleged as true and construing all allegations favorably to the plaintiff, the plaintiff is entitled to relief.” Richardson v. City of St. Louis, 293 S.W.3d 133, 136 (Mo.App. E.D.2009). “If the petition sets forth any set of facts that, if proven, would entitle the plaintiff to relief, then the petition states a claim.” Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo.2008). This court also reviews the issue of standing de novo. Miller v. City of Arnold, 254 S.W.3d 249, 252 (Mo.App. E.D.2008).

Discussion

1. Evidence Outside the Pleadings

In Appellant’s first point on appeal, she claims the trial court erred by considering evidence of the terms of the Trust, which was not in the pleadings, in deciding Respondents’ motions to dismiss. We disagree.

Evidence outside the pleadings cannot serve as the basis for granting a motion to dismiss, including a motion to dismiss for lack of standing. Breeden v. Hueser, 273 S.W.3d 1, 15 (Mo.App. W.D.2008). After reviewing the record, including the trial court’s order, we find nothing that overcomes the presumption that the trial judge knew and properly applied the law. Evergreen Nat’l Corp. v. Carr, 129 S.W.3d 492, 497 (Mo.App. S.D.2004). The trial court did not reference the Trust document in its order and did not specify the reasons for its decision that Appellant lacked standing. Therefore, we will presume the trial judge considered only the evidence that a proper application of the law would permit him to consider. Appellant’s first point is therefore denied.

2. Standing

In Appellant’s second point on appeal, she claims the trial court erred in dismissing the Petition for lack of standing. We find the trial erred in dismissing the Petition against Respondents in their capacity as trustees. We find no error in the trial court’s dismissal of the Petition against Respondents in their capacity as personal representatives of the Stabler estate.

Dismissal Against Respondents As Trustees

“This court determines standing as a matter of law on the basis of the petition, along with any other non-contested facts....” Kinder v. Holden, 92 S.W.3d 793, 803 (Mo.App. W.D.2002). “To have standing to sue, a plaintiff must have an interest in the subject of the lawsuit which, if valid, gives plaintiff a right to relief.” Switzer v. Hart, 957 S.W.2d 512, 514 (Mo.App. E.D.1997). Where a plaintiff alleges standing as a beneficiary, the “petition may be dismissed for lack of standing only if it appears [she] is unable to prove any set of facts which would make [her] a beneficiary.” Id. “To ascertain whether [a plaintiff] may be a beneficiary, we consider the petition, along with any additional non-contested facts which all parties accept as true.... We then engage in a summary judgment mode of analysis to determine whether standing is resolved as a matter of law on the basis of the undisputed facts.” Id. (internal citations omitted).

In the present case, Appellant specifically pled that she was a beneficiary to the Trust. Appellant did not plead the terms of the Trust or attach the Trust document itself; however, Respondents fail to cite any authority that requires Appellant to do so to establish standing. As noted above, standing is determined solely on the basis of the Petition, Kinder, 92 S.W.3d at 803, and after reviewing the Petition, we cannot say that Appellant would be unable to prove any set of facts that would make her a beneficiary to the Trust.

Respondents argue that the terms of the Trust document prove that Appellant is not a beneficiary of the Trust. Respondents therefore urge this court to consider the terms of the Trust, which are not contained in the Petition. The Western District of this court recently determined that evidence not included within the pleadings could not be considered in determining whether a plaintiff lacked standing. Breeden, 273 S.W.3d at 15. In Breeden, the defendants argued that one of the plaintiffs lacked standing because that plaintiff had filed a bankruptcy petition and therefore the plaintiffs claim against Defendants could only be properly asserted by the trustee of the bankruptcy estate. Id. The court dismissed this argument, stating:

Defendants’ arguments here are not of the type properly considered in granting a motion to dismiss. Since they depend on the existence and timing of a bankruptcy petition and whether or not certain claims were exempt from a bankruptcy proceeding, certain facts would have to be established before the circuit court could make a determination. Evidence outside the pleadings cannot serve as the basis of granting a motion to dismiss.

Breeden, 273 S.W.3d at 15. (internal citations omitted). The external evidence of the bankruptcy in Breeden was not considered by the court because it was not part of the pleadings. In the present case, Respondents’ argument that Appellant lacks standing is based upon language in the Trust document, which is not contained within the only pleading on record, the Petition. Therefore, we cannot consider the Trust document on this appeal.

Our holding shall not be construed as resolving the issue of whether Appellant is a beneficiary to the Trust. We hold only that the trial court erred in dismissing the Petition for lack of standing because the Petition does not indicate that Appellant would be unable to prove any set of facts that would make her a beneficiary to the Trust. Switzer, 957 S.W.2d at 514. Appellant’s second point on appeal is therefore granted as to Respondents in their capacity as trustees.

Dismissal Against Respondents As Personal Representatives

We will affirm a judgment of dismissal if it can be sustained on any ground supported by the motion to dismiss, regardless of whether or not the trial court actually relied on that ground. Boulds v. Chase Auto Fin. Corp., 266 S.W.3d 847, 850 (Mo.App. E.D.2008). Here, the only ground asserted for dismissal in the Personal Representative Motion was that the Petition failed to state a claim against Respondents in their capacity as personal representatives. Specifically, the motion stated, “... [Appellant] makes no factual allegations whatsoever in the [Petition] to support any cause of action against the personal representatives ...” Therefore, we may sustain the trial court’s dismissal of the Petition if we find the Petition fails to state a claim against Respondents as personal representatives, regardless of the fact the Petition was dismissed for lack of standing. Id.

Accepting all facts in the Petition as true and construing all allegations favorably to the plaintiff, we find that the Petition fails to state a claim against Respondents as personal representatives. The Petition states that Respondents were appointed as copersonal representatives of the Stabler estate in August of 2008, one month after Stabler’s death. However, the alleged acts which serve as the basis for Count III occurred before Stabler’s death. Therefore, regardless of whether Respondents committed the acts alleged in Count III, they could not have been acting as personal representatives because they had not yet been appointed to that role when the acts were allegedly committed. We therefore find the Petition fails to set forth any set of facts that, if proven, would entitle Appellant to relief from Respondents in their capacity as personal representatives. Lynch, 260 S.W.3d at 836.

Because Count III is the only count in which Appellant attempts to assert a claim against Respondents as personal representatives, the Petition was properly dismissed against Respondents as personal representatives. Appellant’s second point on appeal is therefore denied as to Respondents in their capacity as personal representatives.

Conclusion

For the above stated reasons, the decision of the trial court is reversed in part and affirmed in part. We remand this cause for further proceedings consistent with this opinion.

KURT S. ODENWALD, P.J., and ROBERT G. DOWD, JR., J., concur.

      . Respondents argue the trial court properly considered evidence outside the pleadings because the trial court took judicial notice of the external material. However, there is nothing before us indicating the trial court took judicial notice of anything outside the pleadings.

      . Respondents were granted leave by this court to file supplemental legal record material under seal. Appellant filed a motion to strike the supplemental material. Appellant's motion to strike is hereby granted; we therefore decline to consider the supplemental material provided by Respondents.


author: MARY K. HOFF, Presiding Judge.

text:
    Ronald Lynn BRADDY, Petitioner/Respondent, v. Lauralee BRADDY n/k/a Lauralee Schnaare, Respondent/Appellant.
    No. ED 94194.
    Missouri Court of Appeals, Eastern District, Southern Division.
    Nov. 30, 2010.

      Steven A. Waterkotte, Stanley D. Schnaare, Anthony R. Dorsett, Hillsboro, MO, for Appellant.
    David R. Orzel, Farmington, MO, for Respondent.
   MARY K. HOFF, Presiding Judge.

OPINION

Lauralee Braddy, n/k/a Lauralee Schnaare (Mother), ex-wife of Ronald Lynn Braddy (Father), appeals from the Judgment terminating child support for the parties’ three children. On appeal, Mother argues the trial court erred in finding that: (1) no jurisdiction existed to modify the dissolution judgment because she did not file a motion to extend child support prior to J.L.B. and J.L.B (Twins) turning 22; (2) the Twins were emancipated by operation of law; (3) she failed to prove the Twins’ insolvency under the statute; and (4) Father does not owe a minimum of $13,000 for the children’s uninsured medical expenses. We reverse and remand.

Factual and Procedural Baclcground

Mother and Father were married on April 28, 1979, and divorced on May 25, 1990. Three children were born of the marriage: R.L.B., born August 8, 1982, and, the Twins, born August 7, 1984. The Judgment of Dissolution awarded custody of the children to Mother. Father was ordered to pay child support in the sum of $175 every two weeks as support in gross for the three children, with no reduction until the last child was emancipated. Father was also ordered to pay fifty percent of all uncovered medical expenses, and to obtain insurance when available from his employer and when not available through employment, to pay sixty percent of the medical expenses “until said children become emancipated by law.” The Judgment of Dissolution made no finding that the Twins were disabled or incapacitated.

On May 11, 2005, Father filed a pro se affidavit for termination of child support alleging his oldest child was emancipated by completing school, and the Twins were previously emancipated by operation of law when they graduated from high school after their eighteenth birthday. At the time of this filing, the Twins were twenty years old.

On May 26, 2005, counsel for Mother filed an entry and request for additional time to file an answer. Subsequently, on July 5, 2005, Mother filed an Answer to Affidavit for Termination of Child Support, a Countermotion to Petitioner’s Affidavit for Termination of Child Support, and a Motion for Determination of Amount Due and Owing. Mother also filed amendments to her Countermotion to Petitioner’s Affidavit for Termination of Child Support and her Motion for Determination of Amount Due and Owing.

In Mother’s Answer to Affidavit for Termination of Child Support, she asserted that the Twins are incapacitated and incapable of earning substantial income to provide for themselves. Furthermore, Mother moved the court to (1) conduct a hearing for the determination as to the Twins’ capacity; (2) deny Father’s request for termination of child support; and (3) order Father to provide reasonable child support for the duration of the lives of the Twins. In her Countermotion to Petitioner’s Affidavit for Termination of Child Support, Mother moved the trial court for a modification of child support and asserting that “[the Twins] are unmarried, insolvent, and physically and irreversibly mentally incapacitated from becoming self-supporting.” Mother further requested that the trial court order Father to continue paying child support for the Twins because of their incapacity; that Father be required to repay past health insurance premiums for the children; that Father be ordered to provide health insurance for the Twins; that Father be required to repay fifty percent of the past uninsured medical, and dental, and orthodontia costs for the children, among other relief.

Finally, in Mother’s Motion for Determination of Amount Due and Owing, she requested the trial court to order Father to pay various medical and dental expenses, insurance premiums, and educational expenses incurred.

On July 29, 2005, in response to Mother’s three motions, Father filed several pleadings including a Motion to Dismiss Mother’s Answer, Countermotion, and Motion to Determine Amount Due, Answer to Motion to Determine Amount Due and Owing, Response to Answer to Affidavit for Termination of Child Support, and Answer to Countermotion.

On May 22, 2008, Mother filed a Petition for Appointment of Guardian and Conservator with respect to the Twins. On June 21, 2009, the trial court deemed the Twins to be partially incapacitated and totally disabled as defined in Section 475.010, RSMo 2000, and therefore, legally disabled as provided by Section 475.078.2. The trial court appointed Mother as guardian and conservator of the Twins.

On October 30, 2009, shortly before the start of the trial in this case, the trial court asked whether there were preliminary matters that needed to be addressed, at which point Mother’s counsel informed the court that Mother was proceeding with her amended motions that were filed. The trial court and both parties asserted that it was their understanding that Mother was proceeding on her amended motions.

At trial, Mother testified that, upon graduation from high school, the Twins entered a vocational rehabilitation program to help them find employment, help them fill out applications, and provide them on-the-job training until they learned the job. Mother further testified that the Twins worked at fast food restaurants, worked less than forty hours per week, earned minimum wage, and never handled money as part of their job duties. Mother testified that the Twins started receiving Supplemental Security Income (SSI) and Social Security benefits in 2004, and the SSI and Social Security benefits vary from month to month due to offsets from their job earnings. Mother stated that she typically did not allow the Twins to carry more than $20 in their wallets because they had difficulty managing money. During cross-examination, Mother stated that her income was approximately $475 per week, and the total amount of expenses for the three children in her custody, including the Twins, was $1,290 per month. Mother admitted, without objection, voluminous books containing certified school records for the Twins that carefully detailed their mental capacities and deficiencies.

Mother’s current husband and stepfather of the Twins also testified on Mother’s behalf. He testified that he married Mother on March 20, 1992, and took an active role in raising the Twins. He further testified that he was able to observe the Twins’ delayed cognitive and educational progress on a daily basis and corroborated Mother’s testimony as to their virtual inability to handle money. He stated that, “[i]n a competitive industrial environment where they had to maintain a situation of attention to duty and where they were given multiple tasks, it would be completely impossible for them to [perform forty-hour work weeks].”

Father, who was the only witness to testify on his behalf, testified that, while he agreed the Twins were mentally incapacitated “[to] a level,” he did not believe they were incapable of earning a living. Father did not object to the introduction of the Twins’ school records into evidence.

After hearing all the evidence, the trial court issued its Judgment finding that the Twins were emancipated and that Mother had failed to establish insolvency of the Twins. This appeal follows.

Standard of Review

Our review of a trial court’s judgment on a motion to terminate child support is limited to determining whether the judgment is supported by substantial evidence, is against the weight of the evidence, or it erroneously declares or applies the law. Burke v. Hutto, 243 S.W.3d 431, 433 (Mo.App. E.D.2007). We must view the evidence in a light most favorable to the judgment, giving deference to the trial court’s credibility determinations. Id. No deference is owed, however, to questions of law, which we review de novo. Id.

Jurisdiction

In her first point, Mother argues the trial court erred in finding that she did not file a motion to extend child support prior to the Twins’ turning 22, and thus had no “jurisdiction” to modify the judgment. We find the trial court had authority to modify the judgment. Webb ex rel. J.C.W. v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009).

Father’s position that Mother did not file a timely motion to modify is incorrect. On July 5, 2005, Mother filed several motions, including an Answer to Affidavit for Termination of Child Support, Countermotion to Petitioner’s Affidavit for Termination of Child Support, and Motion for Determination of Amount Due and Owing. At the time Mother filed her responsive pleadings, the Twins were twenty years of age. Therefore, the responsive pleadings were filed timely. Section 452.340.4.

Moreover, Father is incorrect in arguing and the trial court erred in finding that the numerous motions filed by Mother on July 5, 2005, were not or could not be considered a motion to modify under Section 452.340.11(4). Mother’s first paragraph of her timely-filed Countermotion to Petitioner’s Affidavit for Termination of Child Support with Amended Prayer states that she “moves for a Modification of Child Support.” A plain reading of Section 452.340.11(4) would designate this Coun-termotion as a motion to modify.

Section 452.340.11(4) does not require the responsive pleadings to Father’s pro se affidavit for termination of child support be an officially titled “Motion to Modify.” Section 452.340.11(4) only requires that the denial be a sworn statement or affidavit. Mother’s Counter Motion requesting the Modification of Child Support was a sworn affidavit that was notarized, therefore meeting the sworn statement or affidavit requirements of a motion to modify under Section 452.340.11(4). Point I is granted.

Emancipation and Insolvency

We address Mother’s second and third points together as they are interrelated. In her second point, Mother argues the trial court erred in finding that the Twins were emancipated by operation of law in June 2004 after their graduation from high school. Mother contends Section 452.340.3 provides that child support payment shall terminate when the child reaches the age of 18, unless the child is physically or mentally incapacitated, insolvent, and unmarried, under Section 452.340.4, and, in the instant case, the Twins met all three requirements of the statute and therefore were not emancipated in June 2004. In her third point, Mother argues the trial court erred in finding that she failed to prove the Twins are not insolvent within the meaning of Section 452.340.4 because Mother submitted substantial evidence of the Twins’ insolvency, defined as the “inability to pay debts as they become due in the ordinary course of business.” Lueckenotte v. Lueckenotte, 34 S.W.3d 387, 398 (Mo. banc 2001). We agree on both points.

In its Judgment, the trial court found that, “[the Twins] graduated from High School in June of 2004, did not further their education, and were therefore emancipated by operation of law at that time.” The trial court ordered Father’s child support obligation terminated because “[the Twins] are each emancipated by operation of law prior to the filing of [Father’s] Affidavit of emancipation on May 11, 2005.” The trial court erred in finding the Twins were emancipated upon graduating from high school in June 2004.

Section 452.340 provides the obligation to support a child generally terminates when that child reaches the age of eighteen. Section 452.340.3. However, the duty to support a child past the age of eighteen extends in the case of an incapacitated child. Section 452.340.4. The intention of Section 452.340.4 was to authorize a trial court to extend a divorced parent’s child support obligation past the child’s eighteenth birthday only if the child, at the time he reaches age eighteen, is insolvent, unmarried, and physically or mentally incapacitated from supporting himself. Bright v. Bright, 989 S.W.2d 196, 200 (Mo.App. S.D.1999). If a child reaches age eighteen with no such incapacity, Section 452.340.4 does not authorizes a court to impose a child support obligation on a divorced parent if the child, at some future time, were to become mentally or physically incapacitated. Id. In light of Missouri case law, the relevant inquiry to determine whether the Twins were emancipated by law turns on whether they were mentally or physically incapacitated on their eighteenth birthday, which was on August 7, 2002.

Contrary to Father’s contentions, despite the fact that the Twins had reached the age of majority, graduated from high school and did not further their education, the trial court had jurisdiction to order that Father’s child support obligation be extended. Id. Missouri courts have upheld orders which continued child support for adult mentally incapacitated children when there was evidence to support a finding of a limitation on a child’s functioning with respect to the ability to support himself on his eighteenth birthday. See Hicks v. Quednow, 197 S.W.3d 217, 220 (Mo.App. W.D.2006); King v. King, 969 S.W.2d 903, 904 (Mo.App. W.D.1998), Racherbaumer v. Racherbaumer, 844 S.W.2d 502, 504 (Mo.App. E.D.1992). The evidence needed to show insolvency and mental or physical incapacitation must be substantial. Hicks, 197 S.W.3d at 220.

At trial, Mother and her current husband testified at great length regarding the Twins’ disability and incapacitation. Additionally, Mother introduced voluminous school records, without objection, which chronicled the Twins’ developmental history and their disabilities, including their intelligence quotient, speech, awareness, and basic mathematical abilities.

On the issue of incapacity, the trial court found in its Judgment that the Twins “have a diagnosed disability and a guardian.” On the issue of the insolvency, the trial court made the following finding in its Judgment:

[Mother] presented no evidence as to either of the twins’ insolvency. In fact, the evidence was that each boy is working part time at different fast food restaurants. [Mother] presented no evidence as to either [of the Twins] actual income. Furthermore, each receives Social Security and SSI which varies from month to month due to a partial set off depending on the sums they earned in the preceding month, but when combined with their incomes, each exceed seven hundred sixty-five dollars each per [sic] month, the amount reflected received during the month of February 2008 in government benefits alone, ... and that each has restricted savings account with more than a thousand dollars in it. The testimony of [Mother] was that the savings accounts have remained relatively stable for more than a year. [Mother], as their guardian, controls the twins’ spending and saving. There was absolutely no evidence of any debts of either [of the Twins]. There was no evidence of any expenditures. Therefore, neither is insolvent within the meaning of section 452.340.4. RSMo.

Insolvent is defined as “the inability to pay debts as they become due in their ordinary course of business.” Denney v. Winton, 184 S.W.3d 110, 116 (Mo.App. S.D.2006) (quoting Racherbaumer, 844 S.W.2d at 505). Additionally, showing a child’s insolvency under Section 452.340.4 “requires some evidence of the child’s earnings, living expenses, and ability to meet obligations.” State ex rel. Albert v. Sauer, 869 S.W.2d 853, 855 (Mo.App. W.D.1994). The same facts that establish the child’s inability to support himself, because of mental incapacity, can establish the child’s inability to meet obligations. Id. If the child, at the time he reaches age eighteen, is insolvent, unmarried, and physically or mentally incapacitated from supporting himself then the statute’s requirements are satisfied. Bright, 989 S.W.2d at 200.

Based on the trial court’s findings in its Judgment, it failed to correctly apply the law. All of the trial court’s findings were relevant to the Twins’ present situation. For instance, the trial court made findings as to the Twins’ current employment and wages earned through their employment, their Social Security and SSI benefits they currently receive, and the amounts in their bank account at or near the time of trial. The trial court, however, made no findings relating to the Twins’ insolvency at or near the time of their eighteenth birthday despite evidence produced in this regard.

At trial, Mother presented substantial evidence to prove that the Twins were insolvent on their eighteenth birthday and remain insolvent to this day. According to the evidence at trial, the Twins began receiving Social Security and SSI benefits shortly before they graduated from high school in 2004, at the age of nineteen. Furthermore, Mother’s current husband and stepfather to the Twins testified that they never were able to work more than part-time jobs and only with a great deal of supervision. The school records around the time of the Twins’ eighteenth birthday further indicate that the Twins “[do] not know basic math facts that should have been mastered, [make] careless computational errors frequently, [do] not understand place value [and] ... cannot apply mathematics to daily situations.” The school records indicate the Twins were operating at a third or fourth grade cognitive level when they were approximately eighteen.

The ability to pay debts as they become due not only means the ability to cover the expenses of those debts, but also the physical ability to actually pay them. See King, 969 S.W.2d at 904-905 (finding that the adult child was insolvent based on evidence that he was unable to handle his own money, unable to consistently meet his financial needs without the help of his mother, and not capable of earning an income sufficient to live outside the home); see also In re Marriage of D.R.S., 817 S.W.2d 615, 618 (Mo.App. S.D.1991) (finding that the adult child was insolvent based on the fact that she worked part-time as a housekeeper earning minimum wage, lived with her mother, and her mother paid for the food, utilities, medicine, monthly doctor bills, and her car insurance). Here, based on the evidence and testimony, the Twins were incapable of supporting themselves and handling their basic finances.

The trial court heard testimony and received evidence as to the Twins expenditures, their Social Security and SSI benefits, and their job earnings. Trial testimony indicated that the amount of benefits each child received was dependent and partially setoff based on the amount the Twins earned from their job wages. As to the Twins’ present situation regarding their savings accounts, there was testimony that there was roughly $1,000 in one and $800 in the other.

Given them meager savings accounts, an average of approximately $185 received per month in combined benefits, part-time minimum wage jobs where they never worked forty hours per week, and their difficulty to do even basic math, Mother presented substantial evidence to demonstrate the Twins were insolvent on their eighteenth birthday and continue to be insolvent to the present time. Based on the evidence presented at trial and under Missouri law, the trial court erred in finding that the Twins were emancipated in June 2004 because the Twins met all three requirements on their eighteenth birthday of being “physically or mentally incapacitated, insolvent, and unmarried.” Section 452.340.4. Point II and Point III are granted.

Reimbursement of Insurance and Non-Covered Medical Expenses

In her fourth and final point, Mother argues the trial court erred in finding that Father’s reimbursements of approximately $13,000 to Mother for insurance coverage, medical, dental, and eyecare are offset by Father’s overpayment of child support to Mother in the amount of almost $15,000. Specifically, Mother argues that Missouri law provides that a parent who exceeds or overpays child support payments is presumed to have voluntarily overpaid and, as such, in the instant case, Father cannot be given credit against his other obligations. We agree.

In its Judgment, the trial court made the following finding: “the reimbursements for insurance coverage and medical, dental and eye care are approximately equal to the overpayment of child support from the date of filing the affidavit of emancipation, therefore, the Court orders neither party to pay any further moneys to the other.” The trial court found that “[Father] is obligated to reimburse [Mother] for his portion of the uncovered medical, dental and eye care cost for both [Twins] incurred until June 30, 2004.” The trial court further found that “[Father] has overpaid [Mother] for support by almost $15,000.00 and owes [Mother] at least $13,000.00 for necessaries prior to emancipation.”

The trial court’s conclusions regarding Father’s overpayments are premised on its erroneous finding that the Twins were in fact emancipated on June 2004. As determined by this Court under Point I, however, the Twins were not emancipated under Section 452.340.B. Furthermore, as previously discussed, June 2004, the date the Twins graduated from high school is irrelevant to determining emancipation. Instead, the proper date to determine whether the Twins were emancipated is August 7, 2002, their eighteenth birthday. Section 452.340.4.

Having found the Twins were not emancipated on August 7, 2002, Father’s child support payments prior to the filing of his pro se affidavit for termination of child support, on May 11, 2005, cannot be used to offset the amount he owes Mother. Given our finding of non-emancipation, the trial court improperly allowed Father’s child support payments to offset a portion of the $13,000 he owed Mother for unreim-bursed medical expenses. Point IV is granted.

Conclusion

We reverse the trial court’s Judgment and hold that the Twins were not emancipated on their eighteenth birthday, and therefore Father’s child support obligation continues. We remand for the trial court to consider Mother’s motion to modify and to determine any past child support owed to Mother consistent with these findings and to not allow any offset for unreim-bursed medical expenses.

SHERRI B. SULLIVAN, Judge, and NANNETTE A. BAKER, Judge, concur.

      . Unless otherwise indicated, all further statutory references are to RSMo 2000.

      . These judgments were admitted into evidence at trial without objection.

      . At Mother's request, the case was continued numerous times.

      .The third child in Mother’s custody was a stepdaughter from her current marriage.

      . In 2007, the legislature substituted in Section 452.340.3(6) "twenty-one” for "twenty-two” and "twenty-first" for "twenty-second” as the age parental support would cease unless otherwise provided in the child support order. The legislature also amended Section 452.340.11(1) and substituted "twenty-one” for "twenty-two" as the age child support would terminate, unless otherwise required by a child support order.

      . Father argues that his motion to dismiss, which was filed but never set for a hearing, should have put Mother on notice that her pleadings were in question. Father's argument is without merit.

      .The record shows that the Twins were unmarried and have never been married. This fact was admitted in Father’s Answer to Counter Motion and is not challenged on appeal. Therefore, the only questions to be resolved by this Court are whether the Twins were insolvent and mentally incapacitated from supporting themselves at the age of eighteen. Section 452.340.4.

      . Mother does not contest the amount of $13,000 awarded but only the offset granted to Father by the trial court.


text:
    Gerri L. ZSCHETZSCHE, Petitioner/Respondent, v. DIRECTOR OF REVENUE, Defendant/Appellant.
    No. ED 94296.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 30, 2010.
    James A. Chenault, III, Special Assistant Attorney General, Jefferson City, MO, for appellant.
    Lawrence E. Wines, St. Peters, MO, for respondent.
    Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J., and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

The Director of Revenue appeals from the trial court’s judgment reinstating the driving privileges of petitioner, Gerri L. Zschetzsche, after the Director suspended them pursuant to section 302.505 RSMo (Cum.Supp.2006). The judgment is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order.

We affirm pursuant to Rule 84.16(b).


author: HOLLY M. KIRBY, J.,

text:
    Stephanie JONES and Howard Jones v. Renga I. VASU, M.D., the Neurology Clinic, and Methodist LeBonheur Hospital.
    Court of Appeals of Tennessee, Western Section, at Memphis.
    Feb. 24, 2010 Session.
    April 22, 2010.
    Permission to Appeal Denied by Supreme Court Oct. 12, 2010.
    Petition to Rehear Rule 11 Denial Denied Nov. 9, 2010.
    Emily Turner Landry and Quinn N. Carlson, Memphis, Tennessee, for Defendant/Appellant, Methodist Healthcare-Memphis Hospitals.
    Jerry E. Mitchell and Justin E. Mitchell, Memphis, Tennessee, for Defendanl/Ap-pellants, Renga I. Vasu, M.D., and The Neurology Clinic.
    Bryant D. Guy, Jackson, Mississippi, and Regina Guy and Joanie Perkins Potter, Memphis, Tennessee, for Plaintiff/Ap-pellees, Stephanie Jones and Howard Jones.
   OPINION

HOLLY M. KIRBY, J.,

delivered the opinion of the Court,

in which DAVID R. FARMER, J., and J. STEVEN STAFFORD, J., joined.

This appeal involves delay of service of process. The plaintiffs filed a complaint against the defendants, alleging medical malpractice by the defendants almost a year earlier. The plaintiffs delayed service on the defendants until they had an expert witness review their claim. Summonses were issued to the defendants over eleven months after the complaint was filed. The defendants filed a motion to dismiss or for summary judgment, alleging insufficiency of service of process, and asserting that the plaintiffs’ claims were barred by the one-year statute of limitations. The trial court denied the defendants’ motion. The defendants appeal. We reverse and remand for entry of an order dismissing the complaint, finding that the delay of prompt service of process rendered the filing of the complaint ineffective to commence the action and stop the running of the statute of limitations.

Facts and Proceedings Below

Between September 13, 2006, and September 30, 2006, Plaintiff/Appellee Stephanie Jones received medical treatment at Defendant/Appellants The Neurology Clinic and Methodist Healthcare — Memphis Hospitals (“Methodist”), under the primary care of Defendant/Appellant Renga I. Vasu, M.D. (“Dr. Vasu”). Ms. Jones asserts that the medical care she received during this time period fell below the applicable standard of care, and that she suffered serious injury as a result of the negligence of Dr. Vasu, The Neurology Clinic, and Methodist.

On September 27, 2007, Stephanie Jones and her husband Howard Jones (collectively “Jones” or “Plaintiffs”) filed a complaint against Dr. Vasu, The Neurology Clinic, and Methodist (collectively “Defendants”) alleging medical malpractice. Jones did not submit any summonses to the clerk for service of process on the Defendants at that time. Instead, Jones proceeded to obtain the opinion of an expert in support of the claim of medical malpractice. After the opinion of an appropriate expert was secured, on August 29, 2008, some eleven months after the complaint was filed, Jones had process served on the Defendants through a private process server.

On October 29, 2008, Methodist filed its answer, denying liability and asserting, inter alia, insufficiency of service of process and that the complaint was time-barred.

On December 12, 2008, Dr. Vasu and The Neurology Clinic filed a motion to dismiss and, in the alternative, for summary judgment, asserting that Jones’ complaint was barred by the one-year statute of limitations applicable to medical malpractice actions. See T.C.A. § 29-26-116(a)(1) (2000). Citing Rule 4.01(3) of the Tennessee Rules of Civil Procedure, the motion for summary judgment claimed that, because Jones intentionally delayed service of process for over eleven months, the filing of the complaint was ineffective, and the applicable limitations period expired.

On February 3, 2009, Methodist filed a motion to dismiss or, in the alternative, for summary judgment, likewise asserting that Jones’ complaint was time-barred, for the same reason. The motion included a notice of joinder in the motion for summary judgment and motion to dismiss filed by Dr. Vasu and The Neurology Clinic.

On February 20, 2009, Jones filed a response to the motions to dismiss and/or for summary judgment. In the response, Jones admitted that service of process was intentionally delayed until August 29, 2008. Jones explained that service of process was delayed because they experienced “difficulty obtaining an opinion from an expert, authorized to render such opinion testimony.” Had such an expert opinion not been obtained, Jones claimed, the complaint would have been dismissed. Jones asserted that process was issued within one year after the filing of the complaint, as required under Rule 3 of the Tennessee Rules of Civil Procedure. Jones maintained that any delay in the issuance and service of process was the result of excusable neglect, and asked the trial court to enlarge the period for issuance and service of process or toll the statute of limitations, pursuant to its authority under Rule 6.02(2) of the Tennessee Rules of Civil Procedure.

After a hearing on the motions, the trial judge issued a letter ruling on March 31, 2009, denying the Defendants’ motions. After citing and reviewing the applicable caselaw, the trial court explained its reasoning:

[T]his Court is under the impression that with the amendment to rule 4.01 and the addition of subsection (3), the Tennessee Courts are more inclined to find intentional delay of issuance of summons as rendering the complaint ineffective to toll the statute of limitations.
However, this Court finds the plain language of Rule 3 of [the] Tennessee Rules of Civil Procedure highly persuasive in that it allows up to [a] year in which service of process may be issued after the filing of the complaint. Additionally, this Court is of [the] impression that under Rule 6.02(2) of [the] Tennessee Rules of Civil Procedure, it has a wide discretion, in circumstances of excusable neglect, to enlarge the period for issuance and service of process and/or toll the statu[t]e of limitations. Thus, for the sake of preserving Plaintiffs medical malpractice claim, this Court finds that the failure to issue summons in this case falls under excusable neglect, and thus, the Defendants’ Motion is denied. This Court believes that the danger of prejudice to the Defendants is not outweighed by the fact that Plaintiff, in good faith, somewhat ahead of current law, firmly believed that it was necessary to secure the opinion of an expert witness to be able to go forward with its cause.

Thus, the trial court denied the Defendants’ motions to dismiss or, in the alternative, for summary judgment.

The Defendants filed motions for permission for interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. The trial court denied permission for interlocutory appeal. The Defendants then filed an application for extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure. This Court granted the application.

Issues on Appeal and Standard of Review

On appeal, the issue presented is whether Jones’ intentional delay in issuance and service of process rendered the filing of the complaint ineffective under Tenn. R. Civ. P. 4.01(3), and thus whether Jones’ claims are time-barred.

Here, we review the trial court’s denial of the Defendants’ motions to dismiss or, in the alternative, for summary judgment. Rule 12.02 of the Tennessee Rules of Civil Procedure provides that if “matters outside the pleading are presented to and not excluded by the court,” then a motion to dismiss shall be treated as a motion for summary judgment. Tenn. R. Civ. P. 12.02. The Defendants’ motions were predicated on the date of service of process, a matter outside the Jones’ complaint. Therefore, on appeal, we treat the order as a denial of a motion for summary judgment.

Summary judgment is warranted when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. We review the trial court’s conclusions of law de novo without a presumption of correctness. Campbell v. Fla. Steel Corp., 919 S.W.2d 26, 35 (Tenn.1996). Accordingly, we review the denial of a motion for summary judgment de novo without a presumption of correctness. Johnson v. LeBonheur Children’s Med. Ctr., 74 S.W.3d 338, 342 (Tenn.2002) (citing Webber v. State Farm Mut. Auto. Ins. Co., 49 S.W.3d 265, 269 (Tenn.2001)).

Analysis

It is undisputed on appeal that the alleged acts of medical malpractice occurred between September 13, 2006 and September 30, 2006. The complaint was filed on September 27, 2007. The Defendants were served with process no earlier than August 29, 2008.

It is also undisputed that a one-year statute of limitations is applicable to Jones’ claims of medical malpractice. Thus, unless the filing of Jones’ complaint was effective to toll the statute of limitations, the claims set forth in the complaint are time-barred.

Rule 4.01 provides:

4.01. Summons; Issuance; By Whom Served; Sanction for Delay
(1) Upon the filing of the complaint the clerk of the court wherein the complaint is filed shall forthwith issue the required summons and cause it, with necessary copies of the complaint and summons, to be delivered for service to any person authorized to serve process. This person shall serve the summons, and the return indorsed thereon shall be proof of the time and manner of service....
(3)If a plaintiff or counsel for plaintiff (including third-party plaintiffs) intentionally causes delay of prompt issuance of a summons or prompt service of a summons, filing of the complaint (or third-party complaint) is ineffective.

Tenn. R. Civ. P. 4.01. This Court addressed Rule 4.01(3) in Estate of Butler v. Lamplighter Apartments, 278 S.W.3d 321 (Tenn.Ct.App.2008). Butler involves a wrongful death and personal injury action arising out of a fatal fire. The plaintiffs’ attorney filed the complaint within the limitations period, but made a deliberate decision to withhold the summons because she hoped to settle the case. Addressing the applicability of Rule 4.01(3), the Butler court stated:

The plaintiffs filed a Complaint and obtained issuance of summons for service on each defendant prior to October 14, 2005. The filing of the initial Complaint, however, was not effective because counsel for Plaintiffs intentionally caused the delay of prompt service of a summons. See Tenn. R. Civ. P. 4.01(3). The plaintiffs did not effectively file a complaint until after the statute of limitations had expired. Accordingly, all of the plaintiffs’ claims are time barred.

Id. at 324 (emphasis in original). Thus, because the plaintiffs’ counsel intentionally delayed issuance of the summons, the Butler court found under Rule 4.01(3) that the filing of the complaint was ineffective to commence the action and toll the statute of limitations.

Similar reasoning was employed in Jones v. Cox, 316 S.W.3d 616 (Tenn.Ct.App.2008), perm. app. denied June 1, 2009. In Jones, the plaintiff filed a complaint alleging legal malpractice. However, at that time, the case that was the basis for the legal malpractice claim was not completely resolved. Id. at 618. A summons was issued the day the legal malpractice complaint was filed, but service was not attempted until some nine months later. Id. at 619.

During the intervening nine months, the plaintiffs attorney engaged in numerous settlement discussions. Id. Believing that he had time to effect service of process under Rule 3 of the Tennessee Rules of Civil Procedure, the attorney delayed service until the underlying case was resolved on appeal. Id. at 620. After service was effected, the defendant lawyer filed a motion to dismiss, asserting that the legal malpractice claim was time-barred, citing Rule 4.01(3). Id. at 618. The trial court denied the motion to dismiss, and the defendant lawyer appealed.

On appeal, this Court explained:

Under Tenn. R. Civ. P. 4.01(3) it is the intent to withhold service of process that is the test. From ... [the plaintiffs attorney’s] own sworn statements, it is clear that he intentionally withheld service of process in this case, albeit for a very reasonable purpose. As we determined in Butler, ... an intentional delay under Tenn. R. Civ. P. 4.01(3) mandates a conclusion that the original complaint was not effectively filed.

Id. at 622. Therefore, the Jones court found that, even though service was delayed for a reasonable purpose, the fact that service was intentionally delayed “mandated” a finding that the filing of the complaint was ineffective to commence the action and toll the statute of limitations. Consequently, the appellate court reversed the trial court’s decision and remanded the case for entry of an order granting the defendant lawyer’s motion to dismiss. Id.

We find that Butler and Jones are squarely on point and applicable to the case at bar. In this case, Jones’ attorney intentionally delayed service of process in order to obtain an expert opinion to support the medical malpractice claim. As in Butler and Jones, the result may be harsh, but the directive in Rule 4.01(3) is clear. If the plaintiff or his counsel “intentionally causes delay of prompt issuance ... or prompt service of a summons, filing of the complaint ... is ineffective.” Tenn. R. Civ. P. 4.01(3). Thus, we find that the filing of Jones’ complaint was ineffective to commence the action and the complaint must be dismissed as time-barred.

The decision of the trial court is reversed and the cause is remanded for entry of an order granting summary judgment in favor of the Defendants. Costs of this appeal are taxed against Plaintiff/Ap-pellees Stephanie Jones and Howard Jones, for which execution may issue, if necessary.

      . The complaint apparently mistakenly referred to Methodist as Methodist LeBonheur Hospital.

      . Rule 9 of the Tennessee Rules of Appellate Procedure provides in pertinent part:
      (a) Application for Permission to Appeal; Grounds. Except as provided in rule 10, an appeal by permission may be taken from an interlocutory order of a trial court from which an appeal lies to the Supreme Court, Court of Appeals or Court of Criminal Appeals only upon application and in the discretion of the trial and appellate court.
      Tenn R.App. P. 9(a).

      . Rule 10 of the Tennessee Rules of Appellate Procedure provides in pertinent part:
      (a) Original Application for Extraordinary Appeal; Grounds. An extraordinary appeal
      may be sought on application and in the discretion of the appellate court alone of interlocutory orders of a lower court from which an appeal lies to the Supreme Court, Court of Appeals or Court of Criminal Appeals: (1) if the lower court has so far departed from the accepted and usual course of judicial proceedings as to require immediate review, or (2) if necessary for complete determination of the action on appeal as otherwise provided in these rules. The appellate court may issue whatever order is necessary to implement review under this rule.
      Tenn. R.App. P. 10(a).

      . The plaintiffs counsel in Jones explained: "I did not intentionally delay service of the complaint on [the defendant lawyer] to achieve any tactical advantage or benefit. Service on [the defendant lawyer] was solely withheld in order to see whether the [underlying] case ... would be salvaged.” Jones, 316 S.W.3d at 620.