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

text:
    Kenneth TILLEY, Respondent, v. USF HOLLAND INCORPORATED, Appellant, and Treasurer Of Missouri as Custodian of The Second Injury Fund, Respondent.
    No. ED 94431.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 21, 2010.
    Application for Transfer to Supreme Court Denied Oct. 26, 2010.
    Application for Transfer Denied Dec. 21, 2010.

      Stephen A. McManus, St. Louis, MO, for Appellant.
    M. Mercedes Fort, Frank A. Rodman, Cape Girardeau, MO, for Respondent.
   ROBERT G. DOWD, JR., Judge.

USF Holland Incorporated (“Employer”) appeals from the decision of the Labor and Industrial Relations Commission (“the Commission”) affirming the award of the Administrative Law Judge (“the ALJ”) finding Kenneth Tilley (“Claimant”) was entitled to permanent total disability benefits, temporary total disability benefits, and future medical costs, and Claimant’s wife was entitled to a continuation of Claimant’s permanent total disability benefits under Schoemehl v. Treasurer of State, 217 S.W.3d 900 (Mo. banc 2007). We affirm.

Claimant worked for Employer as driver from 1997 until June 6, 2003, the date of his work injury. At the time of the work injury, Claimant was fifty-eight years old and was married to Linda Tilley (“Wife”), his wife of twenty-eight years. On the day of the work injury, Claimant was unloading canvas rolls from his truck and felt a pop in his low back and left hip area. After experiencing extreme low back and left leg pain, Claimant went to the emergency room where he was given an injection. The pain became worse and Claimant was sent to the company doctor, Dr. James Critchlow. Eventually, Claimant had an MRI and was referred to Dr. Charles Cheung (“Dr. Cheung”) for immediate surgery. Dr. Cheung performed an L5-S1 diskectomy on Claimant on June 24, 2003. Claimant went to physical therapy following the surgery but was still in a lot of pain and had numbness in his lower left leg. Claimant was released by Dr. Cheung on October 17, 2003 with a permanent weight restriction of seventy pounds.

Because he was still experiencing worsening pain and numbness in his left leg, Claimant saw Dr. Kee Park (“Dr. Park”). Dr. Park informed Claimant he needed a second surgery to redo the last surgery and that he needed a fusion at L4-S1. On March 28, 2005, Dr. Park performed the second surgery. Following physical therapy, Dr. Park released Claimant on September 22, 2005.

Thereafter, Claimant filed a claim for workers’ compensation benefits on November 6, 2003. At the hearing in front of the ALJ, Claimant testified he still has pain and numbness in his left leg. Claimant stated he takes daily doses of Hydroco-done and Neurontin for pain, which he said does not do much to help the pain. Claimant testified he is unable to sit or stand comfortably for much more than thirty minutes and unable to walk more than 200 feet without needing to stop. He stated he is unable to squat or bend to pick something up, and has trouble lifting anything over ten pounds. Claimant also has difficulty walking on uneven surfaces. Claimant stated he has trouble performing the simplest tasks and can no longer fish or hunt. Wife also testified regarding Claimant’s limited physical abilities due to his work injury.

Claimant offered the testimony of Dr. Raymond Cohen (“Dr. Cohen”) who examined Claimant on April 20, 2004. Dr. Cohen gave Claimant restrictions including no work that involves any repetitive bending, squatting, kneeling, or stooping, no lifting over ten pounds, and no prolonged sitting or walking, no ladder work, climbing, or walking on uneven surfaces. Dr. Cohen opined Claimant was permanently and totally disabled at that time. Dr. Cohen examined Claimant a second time in March of 2006. Dr. Cohen again stated it was his “medical opinion that within a reasonable degree of medical certainty, [Claimant] is permanently and totally disabled and not capable of gainful employment.”

Claimant also offered the testimony of vocational and rehabilitation counsel, Susan Shea (“Shea”). Shea first evaluated Claimant in August of 2004. Shea also evaluated Claimant following his second surgery. Shea concluded Claimant was not employable in the open labor market.

Employer did not offer medical testimony. Employer did, however, offer the testimony of James England (“England”), a rehabilitation counselor. England testified that after reviewing Claimant’s medical records, he believed Claimant could potentially qualify for a variety of entry-level jobs such as security positions, cashiering, light assembly work, packing jobs, or a cab driver.

On May 22, 2009, the ALJ, after finding the testimony of Claimant, Dr. Cohen, and Shea to be credible, concluded Claimant was permanently and totally disabled. The ALJ also found Claimant was entitled to temporary total disability benefits and future medical costs, and Claimant’s wife was entitled to a continuation of Claimant’s permanent total disability benefits under Schoemehl. Employer filed an application for review with the Commission. The Commission affirmed the decision of the ALJ. This appeal follows.

When a workers’ compensation claim is appealed, we review only questions of law. Section 287.495, ESMo 2000. We can modify, reverse, remand for rehearing, or set aside awards based on factual determinations only on the grounds prescribed by statute; that is, if the Commission acted in excess of its powers, the award was procured by fraud, the facts found by the Commission do not support the award, or there was not sufficient competent evidence to support the award. Id.

In reviewing a decision of the Commission, we examine the whole record to determine if it contains sufficient competent and substantial evidence to support the award, that is, whether the award is contrary to the overwhelming weight of the evidence. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003). To determine whether the award is supported by competent and substantial evidence, we examine the evidence in the context of the whole record. Id. at 223. An award that is contrary to the overwhelming weight of the evidence is, in context, not supported by competent and substantial evidence. Id. The Commission is responsible for determining the credibility of witnesses and the acceptance or rejection of testimony cannot be disturbed on review unless it is against the overwhelming weight of the evidence. Townser v. First Data Corp., 215 S.W.3d 237, 242 (Mo.App. E.D.2007).

In its first point, Employer asserts the Commission erred in awarding permanent total disability benefits to Claimant “because he was offered potential employment within his restrictions and chose not to accept and because James England’s vocational evaluation [was] more credible than Susan Shea’s vocational evaluation.” We disagree.

The term “total disability” means the “inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident.” Section 287.020.6. The test for permanent total disability is the worker’s ability to compete in the open labor market in that it measures the worker’s potential for returning to employment. Knisley v. Charleswood Corp., 211 S.W.3d 629, 635 (Mo.App. E.D.2007). The primary determination is whether an employer can reasonably be expected to hire the employee, given his or her present physical condition, and reasonably expect the employee to successfully perform the work. Id.

Claimant testified regarding his extensive physical limitations due to the pain in his lower back and numbness in his left leg due to his work injury. Claimant stated he takes daily doses of Hydrocodone and Neurontin for pain, which he said does not do much to help the pain. Claimant testified he is unable to sit or stand comfortably for much more than thirty minutes and unable to walk more than 200 feet without needing to stop. He stated he is unable to squat or bend to pick something up, and has trouble lifting anything over ten pounds. Claimant also has difficulty walking on uneven surfaces. Claimant stated he has trouble performing the simplest tasks and can no longer fish or hunt. Claimant testified he did not know of any job he could do. The Commission found Claimant to be credible. The Commission stated it found Claimant’s “testimony to be credible and accepts his testimony regarding his physical limitations and his statement that he is not employable in the open labor market in any capacity.”

Dr. Cohen gave Claimant restrictions including no work that involves any repetitive bending, squatting, kneeling, or stooping, no lifting over ten pounds, and no prolonged sitting or walking, no ladder work, climbing, or walking on uneven surfaces. Dr. Cohen stated it was his “medical opinion that within a reasonable degree of medical certainty, [Claimant] is permanently and totally disabled and not capable of gainful employment.” Employer offered no medical evidence to the contrary and the Commission found Dr. Cohen to be credible.

Shea also concluded Claimant was not employable in the open labor market. She testified she did not believe Claimant was a candidate for vocational rehabilitation and felt he was unemployable. The Commission found Shea to be credible.

The Commission stated it found “the combined testimony of Dr. Cohen and [ ] Shea to be more credible than the testimony of [ ] England.” We defer to the credibility findings of the Commission. Townser, 215 S.W.3d at 242. To .the extent Employer argues England was more credible than Shea, we will not substitute our judgment on the credibility of the witnesses for that of the Commission.

Further, Employer misconstrues the testimony and its assertions regarding the testimony are flawed. Further, Employer’s reliance on Faubion v. Swift Adhesives Co., 869 S.W.2d 839 (Mo.App. W.D.1994) and Carron v. Ste. Genevieve School Dist., 800 S.W.2d 64 (Mo.App. E.D.1990) is misplaced.

Finally, Employer’s contention that Claimant was offered “an opportunity for employment in his present physical condition” and turned it down is also unpersuasive. Employer references a program called “Catalyst” that performs assessments. Employer said this assessment was to see if Claimant “could perform some sort of sedentary work” out of his home that would require a computer and internet connection. Claimant had no recollection of a job offer and vaguely remembered a discussion about the assessment. Claimant does not have a computer or internet access at his home. Claimant does not use the internet and has never operated a computer. There was no evidence of an actual job offer that Claimant turned down and any potential job using a computer would not be reasonable.

The evidence supports the Commission’s finding that Claimant was permanently and totally disabled. The Commission did not err in awarding permanent total disability benefits to Claimant. Point denied.

In its second point, Employer argues the Commission erred in awarding temporary total disability benefits from October 18, 2003 to March 27, 2005 because Claimant did not meet his burden of proof where he did not present evidence that a medical doctor told him he could not work. We disagree.

The purpose of temporary total disability benefits is to cover the claimant’s healing period. Chatmon v. St. Charles County Ambulance Dist., 55 S.W.3d 451, 459 (Mo.App. E.D.2001)(overruled on other grounds by Hampton, 121 S.W.3d at 225). Temporary total disability awards are owed until the claimant can find employment or the condition has reached the point of maximum medical progress. Id.

Claimant testified that after his first surgery he had continued back pain and numbness in his left leg that never went away after the first surgery and sought further medical treatment from Dr. Park. Claimant testified he was unable to return to work following his release from Dr. Cheung because of the continued pain in his lower back and numbness in his left leg. The medical records presented showed that when Claimant saw Dr. Park in March of 2005, Dr. Park concluded there had been a failed diskectomy at L4-S1 which explained his continued pain and discomfort. Dr. Park also recommended that a fusion procedure was necessary. Dr. Park’s finding supported the conclusion that Claimant’s first surgery was unsuccessful and his continued pain and numbness was a resulting consequence.

Employer asserts there was no medical evidence that Claimant was unable to work during this timeframe. However, Dr. Cohen concluded Claimant was permanently and totally disabled in April of 2004. At that time, Dr. Cohen gave Claimant restrictions including no work that involves any repetitive bending, squatting, kneeling, or stooping, no lifting over ten pounds, and no prolonged sitting or walking, no ladder work, climbing, or walking on uneven surfaces. Dr. Cohen further concluded Claimant was not capable of gainful employment.

Furthermore, Shea evaluated Claimant in August of 2004 during the timeframe in question. After considering many factors, not merely a seventy-pound lifting restriction, Shea concluded Claimant would not be “capable of performing work as it is practiced in the open labor Market of the State of Missouri or in the national economy.” She also stated that she did “not believe that an employer would consider [Claimant] for hire.” Employer mischar-acterizes the evidence and our review of the record supports the Commission’s award of temporary total disability.

Employer also argues Claimant is not entitled to temporary total disability benefits because of his application for unemployment benefits was “an affirmation that he was capable of substantial gainful employment and that he would seek employment.” However, the fact that Claimant filed for unemployment is not an admission that he could work but that he was willing to try to work. Claimant testified Employer told him it would not give him any work unless he was “[one hundred percent].” Claimant also testified that his union representative said no one would hire him because he had back surgery. Although the record indicates Claimant was willing to work, there was nothing in the record to show he was capable of working. Employer’s assertion that an application for unemployment benefits demonstrates an ability to work fails and its reliance on Thorsen v. Sachs Elec. Co., 52 S.W.3d 611, 622 (Mo.App. W.D.2001)(holding while the claimant’s “application for unemployment benefits is a factor to be considered, upon review of the record, we agree with the Commission and find that [the claimant] sufficiently carried his burden of proof that he was unable to work as a result of his injuries and was still working toward attaining maximum medical improvement during the periods for which the Commission awarded TTD.”) is misplaced.

In light of Claimant’s testimony regarding his continued pain and numbness, the medical records, and the opinion of Dr. Cohen and Shea, Claimant met his burden of proving he was entitled to temporary total disability benefits from October 18, 2003 until March 27, 2005. The Commission did not err in awarding temporary total disability benefits. Point denied.

In its third point, Employer contends the Commission erred in finding Claimant’s wife was entitled to recover under Schoemehl because his award was not pending before the Commission before the change in the law abrogating Schoe-mehl. We disagree.

Under Schoemehl, decided on March 20, 2007, the surviving dependent of an injured worker who has been awarded permanent total disability benefits is entitled to the unpaid, unaccrued balance of benefits for the duration of the dependent’s life. Schoemehl, 217 S.W.3d at 903. The holding has been abrogated by Section 287.230.3, RSMo Cum.Supp.2009, which became effective June 26, 2008 and says, “[i]n applying the provisions of this chapter, it is the intent of the legislature to reject and abrogate the holding in Schoemehl v. Treasurer of the State of Missouri, 217 S.W.3d 900 (Mo.2007), and all cases citing, interpreting, applying, or following this case.” The amended statute is not retroactive and will only apply to claims initiated after the effective date of the amendment. Bennett v. Treasurer of State, 271 S.W.3d 49, 53 (Mo.App. W.D.2008). Thus, “recovery under Schoemehl is limited to claims for permanent total disability benefits that were pending between January 9, 2007, the date the Missouri Supreme Court issued its decision in Schoemehl, and June 26, 2008, the effective date of [the amendment to Section 287.230.3].” Id.

Here, Claimant added Wife to his claim on November 1, 2007. Thus, Claimant’s claiming was pending between January 9, 2007 and June 26, 2008 and the Commission correctly ruled Claimant’s benefits would survive to Wife for her lifetime.

Employer misinterprets Strait v. Treasurer of Missouri, 257 S.W.3d 600 (Mo. banc 2008), to say that Schoemehl only applies to cases that were pending before the Commission or pending on appeal. We do not find that limited holding in our reading of Strait. In Strait, the question before the court was whether the claim was “final — or still pending.” Id. at 603. Here, the Commission properly found the claim was pending between January 9, 2007 and June 26, 2008.

The Commission did not err in finding Claimant’s wife was entitled to recover under Schoemehl. Point denied.

In its final point, Employer claims the Commission erred in finding Claimant was entitled to future medical benefits because Claimant did not meet his burden of proof that there was a reasonable probability that he would need future medical care. We disagree.

In order to receive future medical benefits, a claimant is not required to present “conclusive evidence” of the need for future medical treatment. Fitzwater v. Department of Public Safety, 198 S.W.3d 623, 628 (Mo.App. W.D.2006). Rather, he need only demonstrate a “reasonable probability” that future medical treatment is needed by reason of his work-related injury. Id. “Probable” means founded on reason and experience which inclines the mind to believe but leaves room for doubt. Id. (citing Dean v. St. Luke’s Hosp., 936 S.W.2d 601, 603 (Mo.App. W.D.1997), overruled on other grounds by Hampton, 121 S.W.3d at 227).

Here, Claimant testified that he is in continued pain and has numbness and takes two types of medication daily to try to ease the pain in his lower back as the result of his work injury. Specifically, Claimant stated he takes one to four Hy-drocodone pills per day for pain and Neu-rontin for nerve damage. Further, Dr. Cohen testified Claimant will be on pain medication for the remainder of his life. The Commission found Dr. Cohen to be credible on the issue of future medical care. Employer did not present any medical evidence to contradict Dr. Cohen’s opinion and only argues Dr. Cohen’s opinion is not credible. As stated above, we defer to the Commission on issues involving witnesses’ credibility and the weight to be given their testimony. Conrad v. Jack Cooper Transport Co., 273 S.W.3d 49, 51 (Mo.App. W.D.2008). We will not substitute our judgment on the weight of the evidence or on the credibility of the witnesses for that of the Commission. We find Claimant met his burden of proof that there was a reasonable probability that he would need future medical care.

The Commission did not err in finding Claimant was entitled to future medical benefits. Point denied.

The decision of the Commission is affirmed.

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

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

      . At oral argument, Employer raised the issue that Schoemehl only applies in cases where the claimant is deceased. Employer did not raise this issue in its point relied on or in the argument section of its brief. Thus, we cannot address this issue. Joshi v. St. Luke's Episcopal Presbyterian Hosp., 142 S.W.3d 862, 867 n. 3 (Mo.App. E.D.2004). Employer also asserted that there must have been an award of benefits in the allotted time period for Schoemehl to apply. Employer’s assertion is not supported by case law. In fact, the claimant in Schoemehl died before there was an award of permanent total disability benefits, and the AU allowed the claimant's wife to proceed on the claim for permanent total disability benefits. Schoemehl, 217 S.W.3d at 901.


source: Caselaw Access Project

author: SHERRI B. SULLIVAN, P.J.

license: Public Domain

text:
    Loretta M. HARVEY, Petitioner/Respondent, v. Alfred D. HARVEY, Respondent/Appellant.
    No. ED 93159.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 21, 2010.
    Application for Transfer to Supreme Court Denied Oct. 26, 2010.
    Application for Transfer Denied Dec. 21, 2010.

      Susan M. Hais, Robert Dennis, St. Louis, MO, for Petitioner/Respondent.
    Michael A. Gross, St. Louis, MO, for Respondent/Appellant.
   SHERRI B. SULLIVAN, P.J.

Introduction

Alfred D. Harvey (Husband) appeals from the trial court’s Judgment and Decree of Dissolution of Marriage (judgment) dissolving his marriage to Loretta M. Harvey (Wife). We affirm.

Factual and Procedural Background

Husband and Wife were married on September 4, 1982, and separated on April 1, 2004. On May 3, 2004, Wife filed a petition for dissolution of marriage. The trial court dissolved the parties’ marriage on May 4, 2005, incorporating the parties’ Separation and Settlement Agreement (Agreement) into its Decree of Dissolution (Decree). The Agreement states in pertinent part:

2.2(b) [Wife] and [Husband] agree that [13345 Buckland Hall] shall be immediately listed for sale with an agent at Coldwell Banker as their real estate agent. The parties shall follow the recommendations of their agent as to the list price, price reductions, sale price, frequency of showing said property and all other matters relating to the sale of the property.
4.1 Until the closing on the sale of 13345 Buckland Hall, [Husband] shall continue to pay all payments set forth in the PDL Judgment dated August 18, 2004 and the Amendment to the PDL Judgment dated December 17, 2004. These payments shall terminate on the date of the closing on the sale of 13345 Buckland Hall, [Husband]’s death, [Wife]’s death, [WifeJ’s remarriage, or further order of the court, whichever first occurs.
4.2 [Husband] shall pay to [Wife] modifiable maintenance in the amount of $12,000.00 per month beginning the first day of the first month after the closing on the sale of 13345 Buckland Hall.

Due to difficulties created by Wife in showing 13345 Buckland Hall to prospective buyers and effectuating its sale, Allan Stewart (Stewart) was appointed by the trial court as special master in charge of selling 13345 Buckland Hall. Stewart had the property listed with Janet McAfee, Inc. (the real estate agent). Husband submitted a contract to purchase 13345 Buck-land Hall. On August 2, 2007, Husband and Wife, as the sellers, and Husband, as the buyer, entered into a Residential Sale Contract for 13345 Buckland Hall. Husband received a General Warranty Deed upon closing on the property. The General Warranty Deed transfers 13345 Buckland Hall from Husband and Wife, the Grantors, to Husband, the Grantee, to-wit: “does by these presents Grant, Bargain and Sell, Convey and Confirm” unto Husband the real property known and numbered as 13345 Buckland Hall.

Wife received the sum of $92,450.58 from the sale and Husband received $68,950.57. A sales commission of $48,812.50 was paid to the real estate agent.

Stewart testified that Husband purchased the Buckland Hall property for $1,775,000.00, and, prior to Husband’s offer to buy Buckland Hall, another contract was submitted by a third party in the amount of $1,750,000.00. The third party increased its offer to $1,800,000.00, which Husband did not accept.

The sale of 13345 Buckland Hall triggered Husband’s contractual obligation under the Agreement to commence maintenance payments to Wife in the amount of $12,000.00 per month. On November 21, 2007, Husband filed a Motion to Modify, requesting that the trial court terminate or reduce the maintenance award to Wife. On January 30, 2008, Wife filed a Motion to Determine Sums Due and Owing and a Motion to Cite for Contempt. On October 1, 2008, October 3, 2008, and January 23, 2009, the trial court heard the parties’ motions and, on May 6, 2009, entered its Findings of Fact, Conclusions of Law and Judgment (judgment), determining that the sale of 13345 Buckland Hall occurred when Husband purchased and received a General Warranty Deed for the property; and that Husband’s purchase of 13345 Buckland Hall constituted a sale of the property, triggering Husband’s maintenance obligation as set forth in paragraph 4.2 of the Agreement. In its judgment, the trial court also granted Wife’s Motion to Determine Sums Due; denied Wife’s Motion to Cite for Contempt, and granted in part and denied in part Husband’s Motion to Modify, reducing Husband’s maintenance obligation to Wife from $12,000.00 to $10,500.00 per month. This appeal follows.

Point on Appeal

Husband maintains that the trial court erred in concluding that the transaction in which Husband refinanced the existing mortgage debt of, and purchased Wife’s interest in, 13345 Buckland Hall was a “sale” of the property, triggering the parties’ contractual maintenance formula, because either (a) the term “sale” was unambiguous and precluded that determination in the context of the Agreement, or (b) the term “sale” was ambiguous and the court’s resolution of that ambiguity was unreasonable, in that the terms of the Agreement and the evidence of circumstances attending its execution establish that the parties’ intention was to defer the $12,000.00 per month maintenance award until Husband no longer was responsible for $15,000.00 plus per month cost of owning 13345 Buckland Hall.

Standard of Review

The standard of review is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). This court will affirm the judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Id. at 32.

Discussion

In interpreting a separation agreement incorporated into a decree, the normal rules of contract construction apply. Hughes v. Hughes, 23 S.W.3d 838, 840 (Mo.App. W.D.2000). When the language of a provision is in dispute, the court must determine the parties’ intent as manifested in the document itself and not by what the parties say they intended. Id. This is done by giving the words of the agreement their plain and ordinary meaning as understood by a reasonable and average person. Id.

Where the parties have expressed their final and complete agreement in writing and there is no ambiguity in the contract, the intent of the parties must be determined solely from the four corners of the contract itself. Eveland v. Eveland, 156 S.W.3d 366, 368 (Mo.App. E.D.2004). It is only when the language of the decree is ambiguous that a court may determine the interpretation of the settlement agreement by reference to evidence beyond the face of the decree itself. Id. at 369. Whether a contract is ambiguous is a question of law that we determine without deference to the trial court’s decision. Id. An ambiguity arises when, from the four corners of the contract alone, it appears that the terms are susceptible of more than one meaning so that reasonable persons may fairly and honestly differ in their construction of the terms. Id.

In the instant case, the plain and ordinary meaning of “sale” is “[t]he transfer of property or title for a price.” Black’s Law Dictionary 1200 (7th ed.1999). A sale of land, or of an interest therein, is a transmutation of such property from one person to another in consideration of a sum of money or of some price or recompense in value. 92 C.J.S. Vendor and Purchaser § 2 (2010). The term “sale” can be broadly defined as the transfer of property rights for valuable consideration. Century 21-Johnmeyer, Inc. v. Lugar, 813 S.W.2d 944, 946 (Mo.App. E.D.1991). In the sale of real estate, valuable consideration may include the release of a valid promissory note and deed of trust. Id. A sale of real property contemplates a consideration or price, a seller, a purchaser, and a delivery of the thing sold. 92 C.J.S. Vendor and Purchaser § 2.

The term “sale” in the agreement is unambiguous and has a plain and ordinary meaning. The Agreement provides: “Until the closing on the sale of 13345 Buck-land Hall, [Husband] shall continue to pay all payments set forth in the PDL Judgment ... These payments shall terminate on the date of the closing on the sale of 13345 Buckland Hall.... ” Husband is not actually disputing the meaning of the word “sale” in the Agreement but, rather, whether or not his transaction in acquiring the 13345 Buckland Hall in his name only was in fact a sale and not merely a “refinancing.” We find that it was a sale based on the following evidence in the record.

There was a mutual agreement in the form of a written Residential Sales Contract; Wife received money consideration in the amount of $92,450.58 for her interest in 13345 Buckland Hall; and transfer of 13345 from the seller to the buyer occurred at the closing by way of the General Warranty Deed. See Burkhardt, 295 S.W. at 840. There was a transfer of property rights in 13345 Buckland Hall from Husband and Wife to Husband, who is now the sole owner of the property, for a sale price of $1,775,000.00. Century 21-Johnmeyer, Inc., 813 S.W.2d at 946.

In contrast to the position he takes on appeal, Husband testified several times at trial that he bought Wife’s interest in 13345 Buckland Hall. Husband testified that he bought Wife’s interest in 13345 Buckland Hall in order to sell it and make a bigger profit from the sale. Husband entered into a written Residential Sale Contract with regard to 13345 Buckland Hall and received a General Warranty Deed for it. The General Warranty Deed transfers 13345 Buckland Hall from Husband and Wife, as Grantors, to Husband, as Grantee, and states that it “does by these presents Grant, Bargain and Sell, Convey and Confirm” unto Husband the real property known and numbered as 13345 Buckland Hall. Husband and Wife as sellers of the property received proceeds of $68,950.57 and $92,450.58, respectively, from the conveyance. Husband closed upon the sale. A sales commission of $48,812.50 was paid to the real estate agent.

Although the parties to the Agreement may have contemplated a decrease in Husband’s mortgage responsibility before the increase in Husband’s maintenance obligation, Husband defeated that purpose by his own actions in purchasing the 13345 Buckland Hall himself instead of allowing a third.party to purchase the property. Indeed, a third party had made an offer to purchase the property for $25,000.00 more than Husband did, but Husband rejected the offer. Husband’s actions in purchasing the property himself do not change the fact that a sale of 13345 Buckland Hall occurred, triggering his maintenance obligations.

Based on the foregoing, Husband’s point on appeal is denied.

Conclusion

The trial court’s judgment is not against the weight of the evidence, is supported by substantial evidence, and does not erroneously declare or apply the law. As such, the judgment is affirmed.

CLIFFORD H. AHRENS and LAWRENCE E. MOONEY, JJ., concur.

      . Respondent's Motion to Dismiss Appeal is denied.


author: LAWRENCE E. MOONEY, P.J. GLENN A. NORTON, Judge,

text:
    STATE of Missouri ex rel. Wendy Wexler HORN, Prosecuting Attorney, St. Francois, County, Missouri, Relator, v. The Honorable Thomas RAY, Circuit Court, St. Francois County, Twenty-Fourth Judicial Circuit, Associate Division III, Respondent.
    No. ED 94968.
    Missouri Court of Appeals, Eastern District, Writ Division Two.
    Sept. 21, 2010.
    Motion for Rehearing or Transfer to Supreme Court Denied Nov. 19, 2010.
    Application for Transfer Denied Dec. 21, 2010.

      Joseph J. Lanter, Farmington, MO, for relator.
    Carl D. Kinsky, Ste. Genevieve, MO, for respondent.
   LAWRENCE E. MOONEY, P.J.

The relator, the prosecuting attorney for St. Francois County (“the State”), petitioned this Court for a writ of prohibition, requesting that the respondent, the Honorable Thomas Ray, be restrained from denying the State’s motion to disqualify counsel Carl Kinsky from simultaneously representing both the defendant and his alleged victim (collectively “the clients”) in the State’s prosecution of the defendant for second-degree domestic assault. After a hearing, the trial court denied the State’s motion to disqualify counsel. We issued our preliminary order in prohibition. The respondent has filed an answer. We dispense with further briefing and make the preliminary order permanent.

Under the Missouri Supreme Court Rules of Professional Conduct, counsel’s dual representation of both the defendant and his alleged victim (whom we hereinafter refer to as “the victim”) in the State’s prosecution of the defendant for the crime allegedly committed against the victim constitutes a concurrent conflict of interest, to which a client cannot consent. Further, such dual representation could compromise the defendant’s Sixth Amendment rights. Finally, such dual representation undermines the court’s institutional interest in maintaining the integrity of the judicial system and public confidence in the system. Therefore, we conclude that the respondent abused his discretion when he denied the State’s motion to disqualify counsel. Our preliminary order in prohibition is made permanent, and we direct the trial court to grant the State’s motion to disqualify counsel.

Facts

Farmington police responded to a report of a woman shouting and striking a parked car. A.L., the victim, told police that her husband, the defendant T.L., pushed her against a wall and then down to the floor several times. The police observed redness and bruising on the victim. The State charged the defendant with second-degree domestic assault, in violation of section 565.073 RSMo. (2000), and the trial court conditioned the defendant’s bond on his having no contact with the victim. The State further charged that the defendant was a prior domestic-violence offender, having been found guilty in 2009 of third-degree domestic assault. Counsel entered his appearance on the defendant’s behalf in February 2010. Three months later when the case came up for preliminary hearing, counsel informed the State and the trial court that he represented both the defendant and the victim in this case, and that the victim did not wish to testify against the defendant and would not speak to the prosecutor. Each client purported to consent to the conflict of interest in writing.

The State sought to disqualify counsel from the dual representation. The trial court held a hearing. The record does not disclose whether the victim attended the hearing. The defendant and another attorney were the only witnesses. The defendant testified that he had a conversation with attorney Kathleen Aubuchon about a conflict of interest in counsel’s joint representation of the defendant and the victim. Counsel was not present during the conversation. The defendant testified that attorney Aubuchon explained the nature of the conflict and discussed its waiver with him. The defendant confirmed that he waived the conflict and had no questions for Aubuchon. Attorney Renee Murphy testified that she is familiar with Aubuchon from their time in the public defender’s office. Attorney Murphy offered hearsay testimony that Aubuchon intended to discuss the waiver and the defendant’s rights with the defendant. Murphy said she saw Aubuchon talking to the defendant.

The trial court received into evidence short written statements from Aubuchon and Murphy. Aubuchon’s statement recorded that she discussed the conflict and its waiver with the defendant, and that he knowingly waived the conflict. Murphy’s statement explained that she discussed the conflict with the victim, who waived the conflict. The record, however, contains no evidence of what was explained to the clients — other than the right not to testify — to secure these waivers.

The respondent then overruled the State’s motion. The respondent found that Missouri Supreme Court Rule 4-1.7 does not apply in this case because the victim is not a party to the litigation, and that the victim’s engagement of counsel was voluntary. The State suggests in its writ petition that the respondent may have relied on an outdated version of Rule 4-1.7, which did not contain the explicit conditions for consentable conflicts now contained in Rule 4-1.7(b). Indeed, counsel provided an outdated copy of Rule 4-1.7 (2007) to the respondent judge. The judge thereafter announced that he would analyze the question of whether a conflict existed between the defendant and a material witness, rather than a conflict between the defendant and the victim.

The State petitioned this Court for a writ of prohibition, requesting that the respondent be restrained from denying the State’s motion to disqualify counsel. The respondent, through counsel, concedes that a conflict exists, at least potentially, but asserts that the defendant and the victim have each properly waived it. The record before this Court contains affidavits executed by the clients waiving “any conflict of interest” and asserting that neither client will testify. Other than the right not to testify, the record offers no insight into what information was explained to the clients about the conflict of interest and the ways in which the conflict might affect counsel’s representation of each client.

Discussion

Standard of Review

A writ of prohibition does not issue as a matter of right, but lies within the sound discretion of the Court in which the petition has been filed. State ex rel. Linthicum v. Calvin, 57 S.W.3d 855, 856-57 (Mo. banc 2001); State ex rel. Bannister v. Goldman, 265 S.W.3d 280, 283 (Mo.App. E.D.2008). We will issue a writ of prohibition to prevent an exercise of extra-jurisdictional power, to prevent an abuse of judicial discretion, or to avoid irreparable harm to a party. Linthicum, 57 S.W.3d at 857; Bannister, 265 S.W.3d at 283.

The disqualification of counsel lies within the trial court’s sound discretion. Polish Roman Catholic St. Stanislaus Parish v. Hettenbach, 303 S.W.3d 591, 598 (Mo.App. E.D.2010). A writ of prohibition, however, is an appropriate remedy where a judge’s refusal to disqualify counsel amounts to an abuse of discretion. State ex rel. Burns v. Richards, 248 S.W.3d 603, 604 (Mo. banc 2008); St. Stanislaus, 303 S.W.3d at 598.

Nature of the Conflict

As an initial matter, counsel and the respondent have mischaracterized the nature of the alleged conflict. The conflict is not merely between a defendant and a material witness as argued by counsel and as analyzed by the trial court. The conflict is between a defendant and his victim, who had accused the defendant of committing a violent crime against her. The Illinois Supreme Court observed that the victim’s role in the case is distinctive from that of a material witness. People v. Hernandez, 231 Ill.2d 134, 324 Ill.Dec. 511, 896 N.E.2d 297, 307 (2008). “While it is certainly true Cepeda could have been a witness for the state, the distinctive feature here, which the appellate court failed to recognize, is that Cepeda was also the alleged, victim of defendant’s crime.” Id. (emphasis added). In United States v. Alex, the court determined that counsel’s attempt “to represent one of the alleged perpetrators of the criminal activity when he and his firm previously represented individuals who were allegedly victims of the very same criminal activity ” in itself strongly militated in favor of disqualification. 788 F.Supp. 359, 364 (N.D.Ill.1992)(emphasis in original).

The Missouri Constitution confirms the unique status of the victim in the criminal-justice system, and provides victims with many enumerated rights: to be present at all criminal-justice proceedings at which the defendant has such a right; to be informed of and heard at guilty pleas, bail hearings, sentencing hearings, probation-revocation hearings, and parole hearings; to be informed of trials and preliminary hearings; to restitution; to speedy disposition and appellate review of their case; to reasonable protection from the defendant; to information concerning the escape of an accused and the defendant’s release from incarceration; and to information about the workings of the criminal-justice system. Mo. Const. art I, sec. 32. Material witnesses have no comparable bill of rights. Here, the respondent failed to recognize the victim’s distinctive status in the criminal-justice proceedings.

Analysis

Three broad and overlapping considerations compel our conclusion that counsel cannot represent the interests of both the defendant and the victim. First, such dual representation violates Rule 4-1.7 of the Rules of Professional Conduct. Second, such dual representation compromises the defendant’s Sixth Amendment right to the effective assistance of the counsel. Third, such representation threatens the integrity of the judicial system and public confidence in the system. We shall address each in turn.

A. Ethical standards under the Rules of Professional Conduct

“A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” Mo. R. Profl Conduct, pmbl., para. [1]. We cannot confine our analysis to the defendant’s Sixth Amendment rights because Rule 4-1.7 applies to counsel’s representation of both the defendant and the victim. This rule runs parallel to a trial judge’s obligation to protect a defendant’s Sixth Amendment rights by rejecting an invalid waiver, but does not supplant that obligation. State ex rel. Kinder v. McShane, 87 S.W.3d 256, 265 (Mo. banc 2002).

Missouri adopted the current version of Rule 4-1.7 effective July 1, 2007. Except for its internal references to other paragraphs of Rule 4-1.7, the Missouri rule is identical to Rule 1.7 of the American Bar Association’s Model Rules of Professional Conduct. Rule 4-1.7(a) forbids and defines concurrent conflicts of interest.

(a) Except as provided in Rule 4-1.7(b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer.

Although the circumstances of either (1) or (2) constitute a concurrent conflict of interest, we conclude that both are implicated here.

This precise issue is one of first impression in Missouri, but cases from other jurisdictions buttress our conclusion that the interests of the defendant and the victim are necessarily adverse. Hernandez, 324 Ill.Dec. 511, 896 N.E.2d at 305 (per se conflict exists where counsel represents defendant and victim of defendant’s alleged conduct); In re S.G., 175 N.J. 132, 814 A.2d 612, 614 (2003)(interests of defendant and victim are adverse, resulting in prohibited actual conflict under Rule of Professional Conduct 1.7(a)); State v. Taylor, 155 N.C.App. 251, 574 S.E.2d 58, 67 (2002)(counsel’s representation of defendant “would inescapably be adverse to the victim, within the meaning of Revised Rule of Professional Conduct 1.7”); Okeani v. Superior Court, 178 Ariz. 180, 871 P.2d 727, 727-28 (1993)(public defender’s representation of defendant was directly adverse to office’s representation of alleged victim in unrelated matter, and office could not ethically represent both clients); Alex, 788 F.Supp. at 362 (positions of victims and defendant are incompatible; interests are diametrically opposed and may not be reconciled).

Even were the clients’ interests not directly adverse, the representation of one client interest may well materially compromise counsel’s responsibilities to the other. The attorney’s duty of loyalty to multiple clients, even in a non-litigation setting, can severely limit the attorney’s ability to advise and advocate for any one client.

Even where there is no direct adverseness, a conflict of interest exists if there is a significant risk that a lawyer’s ability to consider, recommend, or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities or interests. For example, a lawyer asked to represent several individuals seeking to form a joint venture is likely to be materially limited in the lawyer’s ability to recommend or advocate all possible positions that each might take because of the lawyer’s duty of loyalty to the others. The conflict in effect forecloses alternatives that would otherwise be available to the client.

Rule 4-1.7 cmt. [8].

Having established that a conflict of interest exists, we now consider whether the clients could validly consent to the conflict. Rule 4-1.7(b) sets forth the conditions under which a client can consent to a conflict.

(b) Notwithstanding the existence of a concurrent conflict of interest under Rule 4-1.7(a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.

The trial court found that the victim’s engagement of counsel was “voluntary,” but the critical question is whether the clients can consent to the conflict. In some circumstances, they can. Rule 4-1.7(b). Some conflicts, however, are nonconsenta-ble, meaning that counsel cannot properly ask clients to consent to the conflict, nor can the lawyer provide representation based on client consent. Rule 4-1.7 cmt. [14]. The question of consentability must be resolved as to each client. Id.

Clients cannot consent to a concurrent conflict of interest unless, inter alia, the lawyer reasonably believes that he or she will be able to provide competent and diligent representation to each affected client, and the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal. Rule 4-1.7(b). Given these considerations, we conclude that the clients here cannot consent to the conflict of interest.

Rule 4 — 1.7(b)(1) prohibits representation where the lawyer cannot reasonably conclude that he or she can provide competent and diligent representation. Rule 4-1.7 cmt. [15]. While counsel avows that he reasonably believes that he can provide competent and diligent representation to each client, we hold such belief unreasonable.

“Loyalty and independent judgment are essential elements in the lawyer’s relationship to a client.” Rule 4-1.7 cmt. [1]. The duty of loyalty to his or her clients is one of the most basic responsibilities incumbent on a lawyer. S.G., 814 A.2d at 616. Here, where counsel’s representation of the defendant would be “inescapably adverse” to the victim, counsel cannot possibly fulfill his duties to each client of undivided loyalty, zealous advocacy, and independent judgment. The lawyer-client relationship is grounded in the fundamental understanding that a lawyer will give his or her complete and undivided loyalty to the client, fully applying the lawyer’s professional training, ability, and judgment. Id. In our circumstances, counsel’s duty of loyalty to one client naturally compromises his duty of loyalty to the other.

Counsel has suggested that because the victim has chosen not to testify, the clients’ interests are now the same. We are not persuaded. We fail to see how either client would even be free to tell counsel his or her version of the events leading to the charges against the defendant. In doing so, each client would almost certainly reveal information advantageous to one and detrimental to the other that counsel would ethically be prohibited from using. And even where a victim does not testify, that does not mean that the victim’s interests are not adverse to those of the defendant. See id. at 618 (although murder victim could not testify, his interests were nonetheless adverse to defendant’s interests during two weeks when firm represented both clients).

The victim may ultimately refuse to testify, but we are presently at a preliminary stage of the proceedings. At this juncture, the victim should be considering her options. Counsel’s duty of loyalty to the defendant, however, prevents counsel from fairly presenting to the victim all possible courses of action because some of those options — most notably testifying against the defendant — would be detrimental to the defendant. Counsel’s duty of loyalty to the defendant thus plainly forecloses alternatives that otherwise might be recommended to the 'victim.

Likewise, counsel’s duty of loyalty to the victim prevents counsel from fairly presenting to the defendant all possible courses of action because some of those options — such as testifying that the victim lied about events leading to the instant charges or claiming self defense — would be detrimental to the victim. Thus, counsel’s duty of loyalty to the victim forecloses alternatives that would otherwise be available to the defendant, and also implicates the defendant’s right to a fair trial under the Sixth Amendment, which we shall consider more fully below. In Gibbs v. State, counsel served both as a child’s guardian ad litem in a juvenile dependency case, and represented the defendant on criminal charges of molesting the child. 287 Ga. App. 694, 652 S.E.2d 591, 592 (2007). The Georgia Court of Appeals held that “the ‘mere existence of such an obvious and deleterious conflict’ necessarily had an adverse impact on trial counsel’s representation of [the defendant].” Id. at 595 (quoting Howerton v. Danenberg, 279 Ga. 861, 621 S.E.2d 738, 741 (2005)).

Given the obvious difficulties with undivided loyalty to, and zealous advocacy for, both the defendant and the victim, counsel’s asserted belief that he can provide competent and diligent representation to both clients simultaneously in the same criminal proceeding against the defendant is patently unreasonable. The unreasonableness of counsel’s belief is further demonstrated by his recent filing with this Court of a joint motion of the defendant and the victim, seeking to amend the condition of the defendant’s bond that requires the defendant to have “no contact with [the] victim!” (Emphasis in original). At the time the trial court set bond, the court believed it necessary to emphatically prohibit contact between the defendant and the victim. We find it incredible that now counsel contends he can provide competent and diligent representation to each client without compromising his loyalty to either. As the Court stated in Gibbs, “[t]hat conflict placed trial counsel squarely between the proverbial Scylla and Charybdis, in that he could either zealously defend [the defendant] or protect the interests and confidential information of [the child]. He could not, however, do both.” Id.

Rule 4-1.7(b)(3) prohibits representation that involves assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal. In this case, the trial court appears to have relied on the reference to opposing parties in litigation in comment 23 to Rule 4-1.7 in concluding that Rule 4-1.7 does not apply because the victim is not a party. Our nationwide research has revealed no case that holds such dual representation is permissible because the alleged victim is not a party to the proceedings, and we do not so construe the rule. Rather, we look to the plain language of the rule itself, which refers to clients in the same litigation, not parties. “Representation of opposing persons in the same lawsuit is prohibited by [Model] Rule 1.7(a)(1). This type of conflict is not waivable.” CtR. FOR Prof’l Responsibility, Am. Bar Ass’n, Annotated Model Rules of Professional Conduct 123 (6th ed.2007). Representation of clients whose interests are directly adverse in the same litigation constitutes the “most egregious conflict of interest.” Nunez v. Lovell, Civil No.2005-7, 2008 WL 4525885, *3 (D.Vi. Oct.3, 2008).

Under Rule 4-1.7(b)(3) the institutional interest in vigorous development of each client’s position when the clients are aligned directly against each other in the same litigation, or other proceeding before a tribunal, renders certain conflicts non-consentable. Rule 4-1.7 cmt. [17]. We must examine the context of the proceeding to determine whether clients are aligned directly against each other within the meaning of the rule. Id.

Again, Rule 4-1.7(b)(3) does not speak of opposing parties, but rather bars an attorney from representing two clients in the same case involving one client’s assertion of a claim against the other. Counsel argues that the victim has made no claim against the defendant, or vice versa, and that neither could assert any such claim in this litigation. We disagree.

First, “claim” means “[t]he aggregate of operative facts giving rise to a right enforceable by a court,” and “[a]n interest or remedy recognized at law; the means by which a person can obtain a privilege, possession, or enjoyment of a right or thing.” Black’s Law Dictionary 240 (7th ed.1999). Here, the victim had told police that the defendant pushed her against a wall and then to the floor. In reporting this information to police, the victim asserted certain operative facts. This assertion led the victim to seek the State’s protection and might later be reasserted in tort or domestic litigation. In S.G., the Court castigated counsel for representing the person accused of committing a crime and patently tortious act against another firm client, observing that the victim’s estate’s interest in pursuing a tort action was directly contrary to the firm’s representation of the victim’s alleged shooter. 814 A.2d at 618-19. “The pointedly direct and adverse position inherent in defending [the victim’s] accused killer is exactly the sort of conflict that the professional rules of conduct ought not and do not permit.” Id. at 619.

To the extent that counsel and the respondent relied on the clients’ consent to the dual representation, that reliance is misplaced. In discussing Rule 4-1.7(b)(3), counsel cites People v. Hernandez for the proposition that a conflict created when an attorney represents both a defendant and the victim is subject to waiver. 896 N.E.2d at 308. Hernandez, however, did not even mention the ethical rules and confined its analysis to the defendant’s Sixth Amendment right to effective assistance of counsel. Moreover, Hernandez did not involve a lawyer’s purported representation of both a defendant and his victim in the defendant’s prosecution for his alleged crime against the victim. Hernandez involved representation of the defendant and his victim in separate cases. Id. at 301.

The instant case is more akin to United States v. Alex, where the attorney sought to represent an alleged perpetrator of criminal activity when the attorney and his firm previously represented alleged victims in the government’s investigation of the very same criminal activity. 788 F.Supp. at 364. In Alex, the court relied heavily on Rule 1.7 when it cautiously considered the alleged victims’ consents to the defendant’s representation. Id. at 363. The Alex court concluded that the waivers were “by no means binding on this court.” Id. See also S.G., 814 A.2d at 619 (“Given the actual conflict that existed in this case [between the defendant and the murder victim] and the obligation to ensure that defendant receives a fair trial, [the defendant’s] proffered consent is immaterial because an actual and direct conflict may not be waived in this setting”). We likewise hold that the clients cannot consent to such a conflict of interest.

B. The defendant’s Sixth Amendment rights

The accused in all criminal prosecutions shall enjoy the right to the assistance of counsel for his or her defense, U.S. Const. amend. VI, although the right to preferred counsel is not absolute, Wheat v. United States, 486 U.S. 153, 158-59, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). The purpose of assistance of counsel is to ensure that criminal defendants receive a fair trial. Id. at 159, 108 S.Ct. 1692. In evaluating Sixth Amendment considerations, the appropriate inquiry focuses on the adversarial process, not on the defendant’s relationship with his or her lawyer. Id. Thus, while the Sixth Amendment comprehends the right to select and be represented by counsel of the defendant’s choice, the Sixth Amendment’s essential aim is to guarantee an effective advocate for the defendant, rather than to ensure that the defendant will inevitably have the counsel he or she prefers. Id.

A defendant’s waiver of a conflict of interest does not automatically resolve the Sixth Amendment issue. Id. at 161— 62, 108 S.Ct. 1692. Where the court finds an actual conflict of interest that impairs counsel’s ability to conform to the ethical rules, as we have found here, the court should not be required to tolerate inadequate representation of the defendant. Id. at 162, 108 S.Ct. 1692 (quoting United States v. Dolan, 570 F.2d 1177, 1184 (3d Cir.1978)).

It appears to us that the defendant is receiving quite effective legal assistance at the moment, now that the victim has retained the same counsel and declared that she will not testify against the defendant. Nonetheless, the “mere existence of such an obvious and deleterious conflict” between a defendant and the victim necessarily has an adverse impact on counsel’s representation of the defendant. Gibbs, 652 S.E.2d at 595. Where counsel’s representation of a defendant may be hampered by the duty of loyalty and care to two competing interests, as when counsel represents both the defendant and the defendant’s alleged victim, the defendant is precluded from receiving the advice and assistance sufficient to afford the defendant the quality of representation the Sixth Amendment guarantees. Taylor, 574 S.E.2d at 67. Moreover, should the victim decide at the last minute to testify against the defendant, a mistrial would result because counsel would be forced to withdraw rather than impeach his own client, and the defendant would thus require new counsel. Kinder, 87 S.W.3d at 262.

Despite counsel’s arguments to the contrary, where an actual conflict of interest exists, as in this case, or even where the potential for a conflict of interest at trial is of the magnitude presented here, the defendant’s waiver does not resolve the matter. Id. at 263. The court’s institutional interest in protecting the truth-seeking function of the proceedings over which it presides requires the court to consider whether the defendant has effective assistance of counsel, regardless of any purported waiver. Id. (quoting United States v. Stewart, 185 F.3d 112, 122 (3d Cir.1999)). While courts must recognize a presumption in favor of a defendant’s counsel of choice, that presumption may be overcome either by a showing of actual conflict or by a showing of a serious potential for conflict. Wheat, 486 U.S. at 164, 108 S.Ct. 1692. As the U.S. Supreme Court’s reasoning throughout Wheat confirms, the right to counsel does not automatically override a broader public interest in the effective administration of justice and maintenance of public confidence in the integrity of our legal system. See id. at 158 n. 2, 108 S.Ct. 1692 (quoting In re Paradyne Corp., 803 F.2d 604, 611 n. 16 (11th Cir.1986)).

C. The interests of the court and the public

We now turn to our third consideration, the court’s institutional interest in maintaining the integrity of the judicial system and public confidence in the system. The courts have not only the duty to dispense justice, but the equally important duty to maintain the integrity of the judicial system. St. Stanislaus, 303 S.W.3d at 597. The court has the inherent power to do what is reasonably necessary for the administration of justice, including disqualifying an attorney where a conflict of interest clearly calls into question the fair or efficient administration of justice. State ex rel. Humphries v. McBride, 220 W.Va. 362, 647 S.E.2d 798, 805 (2007). Unregulated multiple representation may jeopardize not only the defendant’s interest but the institutional interest in rendering just verdicts. Wheat, 486 U.S. at 160, 108 S.Ct. 1692; Kinder, 87 S.W.3d at 261-62. “Federal courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.” Wheat, 486 U.S. at 160, 108 S.Ct. 1692; Kinder, 87 S.W.3d at 261. We should expect no less from Missouri courts.

The federal court in Alex observed that by switching sides during a pending investigation, from that of the victims to that of an alleged perpetrator, “[counsel’s] conduct challenge[d] the very integrity of our adversary system.” 788 F.Supp. at 365. Counsel’s conduct here likewise challenges the very integrity of our judicial system. The dual representation smells of collusion between counsel, the defendant, and the victim.

Consequently, a victim must be represented by counsel who is a zealous advocate whose loyalty to the victim is undiluted by loyalty to the defendant charged with assaulting the victim. Even if no scheme exists here, counsel’s attempt to represent both the defendant and the victim in the State’s prosecution of the defendant for assaulting the victim threatens the integrity of our judicial system and undermines public confidence in the system because of the appearance of impropriety.

Conclusion

“[A] court has the inherent power and responsibility to supervise and regulate the conduct of attorneys who appear and practice before it.” Terre Du Lac Property Owners’ Ass’n, Inc. v. Shrum, 661 S.W.2d 45, 47 (Mo.App. E.D.1983). The court’s power to disqualify counsel derives from its inherent authority to supervise the professional conduct of attorneys appearing before it. Nunez, 2008 WL 4525835, at *2. “The judiciary bears the responsibility of ‘preserving the fiduciary responsibility that lawyers owe their clients.’ ” S.G., 814 A.2d at 616 (quoting Cohen v. Radio-Electronics Officers Union, 146 N.J. 140, 679 A.2d 1188, 1195 (1996)).

Counsel’s representation of both the defendant and the victim in the State’s prosecution of the defendant on charges of assaulting the victim is, despite the clients’ purported consent, so tainted that disqualification of counsel is necessary to ensure loyal and zealous advocacy for all persons in this matter under Missouri’s ethical rules, to ensure the defendant’s constitutional right to a fair trial, and to preserve the sanctity of these proceedings arid public confidence in our judicial system. Dual representation of a defendant and the victim in the State’s prosecution of the defendant for his alleged crime against the victim is improper. We hold that the respondent abused his discretion in failing to disqualify counsel. The trial court is directed to grant the State’s motion to disqualify counsel. Counsel shall not represent either the defendant or the victim in connection with the instant second-degree domestic-assault charges. Our preliminary writ in prohibition is made permanent.

GLENN A. NORTON, J., dissents in separate opinion.

GARY M. GAERTNER, JR., J„ concurs with majority opinion.

GLENN A. NORTON, Judge,

dissenting.

The majority concludes Respondent abused his discretion in fading to grant Relator’s (“the Prosecutor”) motion to disqualify Counsel, finding that defendant and his wife could not have validly consented to the alleged conflict of interest created by Counsel’s representation of them both. This conclusion effectively assumes wife, as an alleged victim of domestic assault, loses her ability to make her own choices. It also denies defendant counsel of his choosing. Based upon the abuse of discretion standard of review, whether defendant and his wife could validly consent to the conflict of interest was a decision more properly made by the trial court, not the Court of Appeals. I disagree with the majority because no conflict of interest presently exists, and any previous conflict of interest was validly waived.

I. DISCUSSION

The majority’s opinion is based on three independent considerations. First, that Counsel’s representation of both defendant and his wife violates the Rules of Professional Conduct. Second, that such representation compromises defendant’s right to effective assistance of counsel under the Sixth Amendment. Third and finally, that such representation threatens the integrity of the judicial system as well as the public’s confidence in the system. I disagree with each of the majority’s conclusions.

A. No Conflict of Interest Presently Exists

In this case, the majority essentially advocates a per se conflict of interest if the clients are a defendant and an alleged victim because their positions are “necessarily adverse.” Each part of the majority’s analysis assumes defendant and his wife are “opposing persons” because of their “necessarily adverse” interests. However, there is no evidence in the record to support such a conclusion. Instead, at the preliminary hearing, wife refused to testify against defendant based upon the marital privilege and her right against self-incrimination. This decision would certainly align her interests with defendant’s interests, even in light of the Prosecutor’s pursuit of criminal charges against him. If the interests of defendant and his wife are now the same, no conflict of interest presently exists.

Nevertheless, for purposes of this discussion, I am willing to concede a conflict may have existed, at least at some point. As discussed below, any previous conflict was properly waived by valid consent from defendant and his wife, and the trial court did not abuse its discretion in denying the Prosecutor’s motion to disqualify Counsel.

B. Any Previous Conflict of Interest was Properly Waived

Pursuant to Rule 4-1.7(b), there are certain circumstances in which a lawyer may represent a client notwithstanding the existence of a conflict of interest. These are:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.

The majority effectively concludes Counsel could not possibly competently and diligently represent both parties because their interests are necessarily adverse. This approach is inconsistent with the general principles discussed in the comments following Rule 4-1.7 of the Rules of Professional Conduct. The Missouri Supreme Court, in its comments to Rule 4-1.7, contemplates nonconsentable conflicts; however, the Court instructs that whether clients are aligned directly against each other within the meaning of Rule 4-1.7 requires “examination of the context of the proceeding.” Rule 4-1.7 cmt. [17]. The majority’s conclusion that a per se noncon-sentable conflict of interest exists here does not take into account the particular circumstances of this case. While unfortunate that a married couple’s relationship reached such a point where allegations of domestic abuse were made, those allegations do not necessarily result in the conclusion that neither party is thereafter competent to determine his or her options. Instead, both defendant and his wife have made an informed choice to be represented by the same lawyer. That lawyer has assured the trial court he believes he can provide competent and diligent representation to each of his clients, and it was well within the discretion of the trial court to believe Counsel’s statement was reasonable based upon the circumstances here. Moreover, as explained above, it is speculation to conclude that defendant and his wife necessarily have such adverse interests as to result in the conclusion that any conflict of interest could not be waived. Here, any conflict of interest was validly waived, consistent with Rule 4-1.7, through informed, written consent. The Rules of Professional Conduct provide the guidelines for conflicts of interest and the requirements to waive such conflicts. Counsel followed these rules.

In addition, the majority cites several cases from other jurisdictions in support of its conclusion that the parties here could not consent to dual representation. The majority particularly relies upon In re S.G., 175 N.J. 132, 814 A.2d 612, 614 (2003) and United States v. Alex, 788 F.Supp. 359, 364 (N.D.Ill.1992). It is important to note neither case interprets Missouri’s Rule 4-1.7, but instead focuses upon different rules of professional conduct.

The majority also bases its conclusion that the trial court abused its discretion in denying the Prosecutor’s motion to disqualify in part because the dual representation “smells of collusion” among Counsel, defendant, and his wife. Although the majority acknowledges the decision to disqualify counsel lies within the sound discretion of the trial court, In re Marriage of Goodman, 267 S.W.3d 783, 786 (Mo.App. S.D.2008), its finding of suspected “collusion” undermines the role of the trial court as the finder of fact.

An abuse of discretion occurs only where the trial court’s decision is clearly against the logic of the circumstances before the trial court and is so arbitrary and unreasonable that it shocks the sense of justice and indicates a lack of careful consideration by the trial court. Id. The trial court in this case exercised its discretion, after a detailed hearing, to deny the motion to disqualify. The trial court’s decision was not so clearly against the logic of the circumstances nor so arbitrary and unreasonable as to shock the sense of justice, and nothing in the record indicates a lack of careful consideration by the trial court. Therefore the trial court did not abuse its discretion. For this Court to determine otherwise would not only usurp the sound discretion of the trial court, but also the ability of the parties involved to choose their counsel.

C. Sixth Amendment Considerations

The majority also discusses defendant’s Sixth Amendment right to the assistance of counsel. According to the majority, the existence of the “obvious and deleterious conflict” between defendant and his wife necessarily results in the conclusion that Counsel cannot provide effective assistance to defendant. The majority states in the face of this conflict, defendant’s waiver is essentially meaningless. I disagree.

The majority does cite authority for the proposition that where a conflict of interest exists and impairs counsel’s ability to conform to the ethical rules, the trial court should not tolerate the “inadequate representation of the defendant.” See Wheat v. United States, 486 U.S. 153, 158-59, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). However, the majority’s reliance upon this authority presumes Counsel was unable to conform to ethical rules. As discussed above, I disagree. Counsel acted well within the Rules of Professional Conduct, and nothing in the record indicates any deficiency in his representation of defendant.

Moreover, the Sixth Amendment right to effective counsel belongs to defendant. Should any deficiency or inadequacy of counsel arise, defendant could pursue the proper remedies himself without the purported protection the Prosecutor is now seeking. Interestingly, the practical result of the majority’s decision is to deny defendant counsel of his choosing. This outcome seems more an infringement on defendant’s Sixth Amendment right to counsel than a protection of it.

D. Public Policy Considerations

The majority’s final consideration is the integrity of the judicial system and the public’s confidence in the system. The majority concludes Counsel’s dual representation in this case “threatens the integrity of our judicial system and undermines public confidence in the system because of the appearance of impropriety.” The discussion, however, seems more focused on what it refers to as the suspected “collusion” among Counsel, defendant and his wife. This suspected “collusion” is no more than a wife deciding not to testify against her husband after an allegation of domestic abuse. Regardless of wife’s motivation here, it seems wrong to profess protection of the integrity of our system when it is clear Counsel attempted to follow the ethical rules in place for just such protection, seeking to secure valid consent to any conflict of interest. Sound public policy would allow a competent adult to make an informed, written waiver of a conflict of interest where such waiver is consistent with the Rules of Professional Conduct adopted by our Supreme Court.

Allowing a prosecutor to challenge a defendant’s or alleged victim’s choice of counsel when such counsel has carefully adhered to the Rules of Professional Conduct only serves to weaken the system. To argue that the integrity of the judicial system and the public’s confidence in the system is somehow threatened by that choice seems implausible.

II. CONCLUSION

The trial court acted well within its sound discretion to deny the Prosecutor’s motion to disqualify Counsel, and I would deny the request for writ of prohibition.

      . All rule references are to Missouri Supreme Court Rules (2010) except as otherwise indicated.

      . In the respondent’s suggestions in opposition to the petition for writ of prohibition, counsel acknowledges that "[h]e is aware of the potential for conflicts in the current situation. If Mr. Kinsky had thought there was no conflict, he would not have taken the steps he did to have [the clients] waive the conflict.”

      . Prior to July 1, 2007, Rule 4-1.7 provided that:
      (a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
      (1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
      (2) each client consents after consultation.
      (b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person or by the lawyer’s own interests, unless:
      (1) the lawyer reasonably believes the representation will not be adversely affected;
      (2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.
      This is the version of Rule 4-1.7 that counsel provided to the trial court along with his supplemental motion in opposition to the State’s motion to disqualify counsel.

      . The American Bar Association ("ABA”) promulgated the first version of its Canons of Ethics in 1908. State ex rel. S.G., 175 N.J. 132, 814 A.2d 612, 616 (2003). The Canons prohibited an attorney from representing a client when to do so would require the attorney to take a position adverse to another client's interests. Id. The ABA House of Delegates adopted the Model Rules of Professional Conduct in 1983. Ctr. for Prof’l Responsibility, Am. Bar Ass'n, Annotated Model Rules of Professional Conduct (6th ed.2007). The Rules of Professional Conduct continue the prohibition on representing adverse interests. S.G., 814 A.2d at 616.

      . In fact, we have trouble envisioning any defense that counsel could present that would not somehow be detrimental to the victim and thus breach counsel’s duty of loyalty to her.

      . We deny all pending motions.


author: ROBERT S. BARNEY, Presiding Judge.

text:
    Timothy A. BELDEN, Respondent, v. Steve DONOHUE, Appellant.
    No. SD 30000.
    Missouri Court of Appeals, Southern District, Division One.
    Sept. 24, 2010.
    Motion for Rehearing or Transfer Denied Oct. 20, 2010.
    Application for Transfer Denied Dec. 21, 2010.

      R. Lynn Myers, Springfield, for Appellant.
    Stuart H. King, Springfield, for Respondent.
   ROBERT S. BARNEY, Presiding Judge.

Steve Donohue (“Appellant”) appeals the Judgment of the trial court entered in favor of Timothy A. Belden (“Respondent”) which granted Respondent’s request to quiet title in certain property purchased by him under a sheriffs deed pursuant to execution. Appellant asserts three points of trial court error. We affirm the Judgment of the trial court.

Viewing the record in the light most favorable to the trial court’s judgment, Schroeder v. Proctor, 280 S.W.3d 724, 726 (Mo.App.2009), the record reveals that Respondent and his wife, Paula Annie Belden (“Ms. Belden”), were divorced on April 30, 2004. In its judgment the dissolution court ordered the implementation of the parties’ property settlement agreement that provided that the parties would hold the marital home at 2865 East Catalpa (“the Property”) in Springfield, Missouri, as tenants in common for one year,

or until [Ms. Belden] aequire[d] a loan in her own name (whichever comes first). However, if [Ms. Belden] is not able to assume the balance of the existing loan or is not able to attain a loan in her own name entirely, the [Property will remain tenants in common until the sale of the [Property, the proceeds thereof will be equally divided, after expenses among the parties.

The Property was valued at approximately $125,000.00.

As best we discern the dissolution decree was thereafter modified at the request of Respondent in January 18, 2007. It was adjudged that Ms. Belden pay Respondent additional child support and this judgment became a lien on Ms. Belden’s undivided interest in the Property. Respondent’s attorney, James R. Royce (“Mr. Royce”), was also awarded a judgment against Ms. Belden for attorney fees in the amount of $6,150.00, which also became a judgment lien on the Property. These judgment liens attached to the Property on January 18, 2007. See § 511.350.1 and § 511.360, RSMo Cum.Supp.2002.

On April 6, 2007, Appellant, who was apparently romantically involved with Ms. Belden, loaned Ms. Belden $68,324.00, which was then memorialized by a promissory note secured by the lien of a deed of trust upon the Property and which was recorded at the office of the Recorder of Deeds of Greene County, Missouri.

According to the trial transcript in this matter, on May 30, 2007, two writs of execution were issued by the trial court upon application by Respondent and Mr. Royce. Thereafter, “notices of levy” were issued levying upon Ms. Belden’s interest in the Property. A certified copy of the affidavit of mailing filed by the Sheriffs office showing notice of the Property’s sale was sent to Ms. Belden at her last known address, which was the mailing address for the Property. On July 3, 2007, Ms. Bel-den’s interest in the Property was auctioned off at a sheriffs sale. At the time of the auction, the Property was encumbered by the following liens: a “mortgage” and a home equity loan held by Bank of America in an unknown amount; Respondent’s judgment lien in the amount of $28,471.69; Mr. Royce’s judgment lien in the amount of $6,909.63; and Appellant’s lien of $68,324.00. Respondent purchased Ms. Belden’s interest at the Sheriffs sale and the Sheriff of Greene County thereafter signed a “SHERIFF’S DEED UNDER EXECUTION” in favor of Respondent and this deed was timely recorded. According to Respondent, at that time he was unaware of Appellant’s deed of trust encumbering the Property.

On September 20, 2007, Respondent filed his “Petition to Quiet Title” against Appellant in which he asserted that the “Sheriffs sale of July 3, 2007[,] extinguished any purported lien created by [Appellant’s] April 4, 2007[,] deed of trust....” As such, Respondent contended Appellant “holds no right, title or interest in or claim against the [Property]” and because the deed of trust created a cloud upon Respondent’s title, he requested the trial court quiet title to the Property in Respondent.

The trial court entered its Judgment on July 17, 2009, in which it declared Respondent to be “the owner in fee simple” of the Property. The trial court also found that any interest Appellant may have had in the Property per his deed of trust “was extinguished by the sale of the Property by the Sheriff of Greene County, Missouri,] under Writ of Execution on July 3, 2007.” The trial court also ordered Appellant to pay costs in the amount of $516.95. This appeal followed.

Our standard of review in quiet title actions is the same as in other court-tried cases and it is well established that such review is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); McCord v. Gates, 159 S.W.3d 369, 373 (Mo.App.2004). We must affirm the judgment if it is supported by substantial evidence, it is not against the weight of the evidence, and the trial court did not erroneously declare or apply the law. Schroeder, 280 S.W.3d at 726. In reviewing the trial court’s judgment “[a]ll evidence and inferences are viewed in the light most favorable to the judgment, and all contrary evidence and inferences are disregarded.” Id. Further, “[d]ue regard shall be given to the opportunity of the trial court to have judged the credibility of witnesses upon appellate review of a case tried without a jury ...” and the “trial court is vested with the discretion to believe or disbelieve all, part, or none of any witness’ testimony.” McCord, 159 S.W.3d at 373. “Plaintiffs in a quiet title suit must succeed on the strength of their own title and if they fail to prove, prima facie, that they hold record title, their cause must fail.” Id. at 374.

In his first point relied on, Appellant maintains the trial court erred in ruling in Respondent’s favor because state law requires “that the writ of execution state the date of the judgment and the judgment upon which the execution is based.... ” Specifically, he asserts “the judgment upon which Respondent[’s] ... title is based was the original dissolution decree of April 30, 2004[,] in which [neither] [Respondent] nor [Mr.] Royce were ... awarded damages.” We note, however, that the issue raised under this point relied on was not pled by Appellant in the pleadings nor was it raised at trial. “ ‘An issue raised for the first time on appeal and not presented to or decided by the trial court is not preserved for appellate review.’ ” Poe v. Mitchener, 275 S.W.3d 375, 382 (Mo.App.2009) (quoting Care and Treatment of Burgess v. State, 72 S.W.3d 180, 184 (Mo.App.2002)). Point I is denied.

In his second point relied on, Appellant asserts the trial court erred in ruling in favor of Respondent because

Missouri law states that homestead property is absolutely exempt from execution and the exemption is self-enforcing if the property has no equity value after all liens, judgments and the homestead exemption is compared to its value before execution in that this property had liens, judgments and the homestead exemption of $178,204[.00] at the low end and $198,204[.00] at the high end and was valued at little over $125,000.00 at the time of the execution.

As with Point I above, this issue was likewise not raised in the trial court and this Court is unable to find the phrase “homestead exemption” in any of the pleadings or the trial testimony presented by the parties. Complaints on appeal must have been raised before the trial court; otherwise, such issues present nothing for our review. See id. Point II is denied.

In his third point relied on, Appellant maintains the trial court erred in ruling in Respondent’s favor because “Missouri law does not allow a writ of execution to set aside a prior deed of trust lien without notice to that lien holder....”

Section 511.350.1, RSMo Cum.Supp. 2003, provides that

judgments and decrees entered by the ... circuit court ... by any circuit court and any probate division of the circuit court ... shall be liens on the real estate of the person against whom they are entered, situate in the county for which or in which the court is held.[]

Regarding the commencement and duration of such judgment liens, section 511.360, RSMo Cum.Supp.2002, sets out in pertinent part that

[t]he lien of a judgment or decree shall extend as well to the real estate acquired after the rendition thereof, as to that which was owned when the judgment or decree was rendered. Such liens shall commence on the day of the rendition of the judgment, and shall continue for ten years, subject to be revived as herein provided....

Based on the foregoing statutory provisions, Respondent’s judgment lien as well as the judgment lien in favor of Mr. Royce attached to the Property in question on January 18, 2007. As best we discern from the record, at that time the only other senior liens against the Property were the “mortgage” and a home equity loan in favor of Bank of America.

Thereafter, on April 6, 2007, Appellant filed his deed of trust showing the Property as security. Then on May 30, 2007, execution and levy documents were issued and Ms. Belden seasonably received notice of the forthcoming Sheriff’s sale. The Sheriffs sale was then held on July 3, 2007.

Regarding the sale of real property by a county official, Rule 76.16 sets out in part that “[njotice of a sale of land under execution shall be published in each county in which any of the land to be sold is located.” Further, Rule 76.17 provides that notice must be provided to the party whose property is the subject of the levy:

[a]t least thirty days before the sale of land the judgment creditor shall serve a notice of sale on the person whose land is levied upon by personal service or by mailing a copy thereof to the person’s last known address.
Service may be shown by acknowledgement of receipt, written return of service, or by affidavit or by written certificate of counsel making such mailing.
Proof of service shall be filed in the court.

Additionally, there are statutory provisions regulating notice in a Sheriffs sale. For example, section 513.205, RSMo 2000, provides that

[wjhen real estate shall be taken in execution by an officer, it shall be his duty to expose the same to sale at the courthouse door, having previously given twenty days’ notice of the time and place of sale, and what real estate is to be sold and where situated, by advertisement in some newspaper printed in the county ... and if not, by at least six printed or written handbills, signed by such sheriff, and put up in public places in different parts of the county; and the printer’s fee for such advertisement shall be taxed and paid as other costs....

This Court finds no statute or rule which requires that notice of a Sheriffs sale be provided to other lienholders, especially those whose interests are junior to the interest which is the catalyst for the Sheriffs sale. Nor has Appellant furnished this Court with any citation of authority to this effect. Indeed, at trial, counsel for Appellant admitted “[t]here is no statute [requiring notice to Appellant in this matter], but if [Respondent] wants to take the property free of [Appellant’s] lien, he’s got to give [him] notice.”

This Court determines there was no requirement that Respondent or any public official was required to provide notice to Appellant, a junior lienholder, of the execution proceedings. “A sheriffs deed duly executed and delivered relates back and conveys title as of the inception of the hen of the execution or judgment, except as to intervening innocent purchasers— purchasers without notice.” Decker v. Evans, 221 S.W.2d 127, 129 (Mo.1949). Appellant, of course, did not enjoy the status of a “purchaser without notice.” The trial court did not err in quieting title to the Property in Respondent and extinguishing Appellant’s deed of trust. Point III is denied.

The Judgment of the trial court is affirmed.

LYNCH, J., and RAHMEYER, P.J., concur.

      . At trial Ms. Belden’s counsel acknowledged that Ms. Belden was not contesting that the sale was ineffective as to her, and the trial court observed that "she does not contest the execution was effective as against her.”

      . This encumbrance was variously described as a "mortgage” and/or a "deed of trust" in the testimony at trial.

      . Section 511.350.2, RSMo Cum.Supp.2004, likewise, provides that
      [¡Judgments and decrees rendered by the associate divisions of the circuit courts shall not be liens on the real estate of the person against whom they are rendered until such judgments or decrees are filed with the clerk of the circuit court pursuant to sections 517.141 and 517.151.

      . As best we discern, after his purchase of the entire interest in the property at issue Respondent assumed the entire indebtedness to Bank of America and continued making payments in a timely manner.

      . All rule references are to Missouri Court Rules (2007).

      . It is undisputed that notice was properly published in this matter.

      . We do note that pursuant to section 443.325, RSMo 2000, that "[a]ny person desiring notice of sale under any deed of trust or mortgage with power of sale upon real property may, at any time subsequent to recordation of such deed of trust or mortgage, cause to be filed for record ... a duly acknowledged request for such notice of sale.” Likewise, section 443.310, RSMo 2000, provides that
      [a]ll sales of real estate under a power of sale contained in any mortgage or deed of trust executed after August 28, 1989, shall be made in the county where the land to be sold is situated, and not less than twenty days’ notice of such sale shall be given, whether so provided in such mortgage or deed of trust or not....
      These statutory provisions, of course, have no application to the factual scenario in the instant matter involving a levy and execution pursuant to judgment.

      . Further, as best we discern, Appellant makes no argument that he was without actual notice of Respondent's judgment and resulting lien.