text:
    RALLS COUNTY MUTUAL INSURANCE COMPANY, Respondent, v. RCS BANK, f/k/a Ralls County State Bank, Appellant.
    No. ED 92732.
    Missouri Court of Appeals, Eastern District, Northern Division.
    June 29, 2010.

      Mark S. Wasinger, Hannibal, MO, for Appellant.
    Louis J. Leonatti, Mexico, MO, for Respondent.
   ROBERT G. DOWD, JR., Judge.

RCS Bank i/k/a Ralls County State Bank (“Bank”) appeals from the judgment entered in favor of Ralls County Mutual Insurance Company (“Insurance Company”) imposing a constructive trust in the amount of $126,789.63. We reverse.

Insurance Company is a county mutual insurance company providing casualty and liability insurance located in Center, Missouri. Ted Summers (“Summers”) acted as secretary/treasurer of Insurance Company and managed its day to day operations. In 1998, Summers was elected to Insurance Company’s board of directors. Summers served on Insurance Company’s board of directors and as secretary/treasurer until his resignation in 2001. From 1993 until 1999 when Insurance Company’s operations and records were moved into a new building, Summers’ home served as both the main office and storage facility for Insurance Company’s records. Summers had authority to process all policies, receive all premiums, and pay all claims.

Summers was also a senior vice-president of Bank and a member of its board of directors. Summers managed the Center, Missouri facility and loan portfolio for Bank. Prior to December 2000, the president of Bank, James Behrens (“Behrens”), had no concerns about Summers. In December 2000, Behrens became concerned about Summers’ trustworthiness when the monthly past due loans for Bank jumped dramatically with no explanation from Summers. Summers was fired from Bank in January 2001 because of inaccuracies in reports provided to Bank’s board of directors and bank examiners with regard to the past due loans.

Bank acted as Insurance Company’s depository bank. Bank was also listed as the loss payee on some of the insurance policies of Insurance Company’s customers. From the time Summers became the secretary/treasurer for Insurance Company, Insurance Company directed Bank to send monthly statements for all its accounts solely to Summers. In addition, Insurance Company authorized Summers to sign checks and make withdrawals on behalf of Insurance Company. In 1975 or 1976, Insurance Company opened an account known as the Wind Premium Trust Account at Bank. Insurance Company did not originally provide wind coverage to its policy holders. The Wind Premium Trust Account was a separate account where insurance premiums for wind coverage were deposited. The purpose of the Wind Premium Trust Account was to receive premiums owed for wind coverage and forward the premium to the appropriate insurance company. When the account was established, Summers and the president of Insurance Company were granted signature authority. After the 1970s, Summers was the only person having signature authority on the Wind Premium Trust Account.

In 1993, Insurance Company directed the Wind Premium Trust Account be combined with the other general operating accounts because Insurance Company began to offer its own wind coverage and the Wind Premium Trust Account was no longer necessary. Summers failed to close the Wind Premium Trust Account. The president of Insurance Company, Dean Baker, believed the account had been closed. However, Summers continued to divert premium funds into the Wind Premium Trust Account at Bank. Summers would prepare a yearly report that was submitted to the Department of Insurance of the State of Missouri, and provide Insurance Company’s board of directors with a copy of the yearly tax return. The Department of Insurance conducted audits of Insurance Company in 1995 and 1999. Insurance Company’s board of directors reviewed the audits. None of these documents contained any information about the Wind Premium Trust Account.

After conducting the 1999 audit, the Department of Insurance recommended that Insurance Company hire a certified public accountant to conduct a financial audit. Insurance Company hired Mel Van de Ven (‘Van de Ven”). Summers told Van de Ven that Insurance Company had an operating account and a money market account at Bank. Summers did not disclose the existence of the Wind Premium Trust Account. Van de Ven discovered the existence and account history of the Wind Premium Trust Account. From January 1994 through January 2001, Summers misappropriated $346,597.00 from the Wind Premium Trust Account. Summers removed funds from the Wind Premium Trust Account by writing checks to Bank and others or by purchasing cashier’s checks or personal money orders payable to Bank, many without further endorsements. Summers had authority to issue personal money orders on behalf of Bank. Some of the funds were used for loan payments due to Bank by other customers of Bank.

Insurance Company subsequently filed a suit against Bank and a number of other individuals including Summers, who passed away during the pendency of the lawsuit. By the time of the trial, Insurance Company only sought to proceed on its count for a constructive trust against Bank. In its count for a constructive trust, Insurance Company alleged it was entitled to a constructive trust on the funds Summers “applied [] from the Wind Premium Trust Account and credited [ ] against loans which were delinquent, in default, or just as payments on loans which were current.”

Van de Ven testified at trial that of the $346,597.00 removed from the Wind Premium Trust Account, Summers personally received $90,974.61 and Bank received $172,437.57. Van de Ven arrived at those amounts by preparing a spreadsheet, Exhibit 11, of all the funds withdrawn from the Wind Premium Trust Account, approximately 445 transactions, and placing funds in columns of the person or entity that he determined “received” the funds.

The trial court entered judgment in favor of Insurance Company finding “Bank is the Trustee of a constructive trust in favor and for the benefit of [ ] Insurance Company in the sum of $126,789.63” The trial court found of the $172,437.00 attributed to Bank by Van de Ven, Insurance Company did not show Bank was unjustly enriched as to $45,647.37 in payments of taxes and claims, resulting in the amount of $127,789.63. Bank now appeals.

Bank raises eight points on appeal. We will address Bank’s second point first because we find it is dispositive. In its second point, Bank contends the trial court erred in imposing a constructive trust because Insurance Company “failed to establish all the elements necessary for the imposition of a constructive trust in that [Insurance Company] failed to produce evidence of the res of the trust or to [ ] show any funds were still in the hands of Bank.”

In a court-tried case, we will affirm the judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Technically, constructive trusts are not trusts at all, but equitable devices employed by courts of equity. Brown v. Brown, 152 S.W.3d 911, 916 (Mo.App. W.D.2005). Constructive trusts arise “ ‘by operation of law, or, more accurately, by construction of the court, regardless and independently of any actual or presumed intention of the parties to create a trust[.]’ ” Id. (quoting Schultz v. Schultz, 637 S.W.2d 1, 4 (Mo. banc 1982)(internal quotation marks omitted)). “ ‘The constructive trust may be defined as the device used by chancery to compel one who unfairly holds a property interest to convey that interest to another to whom it justly belongs.’ ” Id. (quoting Kerber v. Rowe, 348 Mo. 1125, 156 S.W.2d 925, 927 (1941)(internal quotation marks omitted)).

“A court of equity may impose or declare a constructive trust to provide a remedy in cases where one who has acquired property under such circumstances as make it inequitable for him to retain it by making him or her a trustee for the person or persons injured thereby.” Brown v. Broum, 152 S.W.3d 911, 916 (Mo.App. W.D.2005)(internal quotation marks omitted). Imposition of a constructive trust as a remedy to prevent unjust enrichment is appropriate under certain limited circumstances. Blue Cross Health Services, Inc. v. Sauer, 800 S.W.2d 72, 75 (Mo.App. E.D.1990). “However, the very essence of the remedy of a constructive trust is the identification of specific property or funds as the res upon which the trust may be attached.” Id. at 76 (citing Bogert, The Law of Trusts and Trustees 2d, Section 471 at 9 (1978)). “To establish a constructive trust, evidence must be unquestionable in character and so clear, cogent and convincing as to exclude every reasonable doubt in the mind of the trial court.” Dayton Const., Inc. v. Meinhardt, 882 S.W.2d 206, 210 (Mo.App. W.D.1994); see also John R. Boyce Family Trust v. Snyder, 128 S.W.3d 630, 638 (Mo.App. E.D.2004).

Here, Bank asserts Insurance Company did not establish through clear, cogent, and convincing evidence any identifiable property or funds as the res upon which a constructive trust could be attached. In response to Bank’s claim, Insurance Company suggests the funds can be traced to Bank’s general operation account. However, review of the record reflects Insurance Company did not identify a res and its assertion that the res could be traced to the general operating account of Bank is not supported by clear, cogent, and convincing evidence from the trial.

Insurance Company’s expert, Van de Ven, attributed seventy-five transactions to Bank for a total of $172,437.57 using Exhibit 11. Insurance Company did not present evidence on all seventy-five transactions attributed to Bank. When asked about the column for Bank on Exhibit 11, Van de Ven explained:

[t]hese are items that were directed to the bank. Some of them were supported by money orders. Some of them were for — they had numbers of what appeared to be loan numbers. And then they were cleared through the bank. And most of them don’t even carry an endorsement at the bank, so they never left the bank. They cleared right within the financial institution.

Of the transactions attributed to Bank testified to by Van de Ven, he could not and did not testify that any of the funds were deposited into Bank. For example, Van de Ven testified regarding check number 677. Exhibit 11, as prepared by Van de Ven, showed check number 677, dated July 1, 1995, in the amount of $1,170.25. The “To Whom” column provides “MONEY ORDER 015557” and the “Description” column provides “UNKNOWN.” Further, the “Bank Description” column provides “No info on Check.” The following exchange took place regarding check number 677:

[Question by Insurance Company’s counsel]. It’s check number 677, is that right?
[Van de Ven], Yes, sir.
Q. And its’ payable July — it’s dated July 1, 1995. And that was used to buy a money order, is that right?
A. Yes, sir.
Q. Do you have the money order? And who was the money order — •
A. Ralls County State Bank.
Q. And are there any endorsements in the back, other than just to show it’s deposited at the bank?
A. No, sir. It shows it was cleared through the bank. It doesn’t say — I think that’s a clearance thing.

Van de Ven testified that he attributed the funds to Bank simply because they “cleared through” Bank without outside endorsement. Van de Ven never used the word “deposited” but rather always used the phrases like “cleared through the bank,” “dealt within,” “handled through,” “it doesn’t appear it left the bank,” or “never left the bank.” On redirect examination, when specifically asked about the money orders drawn from funds from the Wind Premium Trust Account made payable to Bank, Van de Ven was asked if “they were deposited in the Ralls County State Bank,” to which Van de Ven answered:

they were cleared through the Ralls County State Bank. It doesn’t indicate on the back of the check that it was deposited anywhere. It just simply has the clearing from the Ralls County Bank indicating that it didn’t go outside to the

Federal Reserve or anywhere else. Insurance Company’s expert did not and could not testify that the funds were deposited into Bank or into the general operating account of Bank.

Van de Ven also testified he attributed transactions to Bank because the check or money orders were signed by Summers, who was an agent of Bank. Van de Ven could not say whether cash was given to whoever presented the money orders. Further, he could not state whether Summers had written the check or purchased the money order and then been given cash in return. Van de Ven could not state with certainty the total amount attributed to Bank was for proper payments or as payments as a loss payee. In addition, Insurance Company’s former President, Baker, testified that if Bank was listed as a loss payee it would have properly received payments.

Bank president, Behrens, testified that at the time of trial there was no record of where the misappropriated funds actually went. He testified that money orders from a bank do not require a bank employee’s signature to be valid, but rather only the purchaser of a money order is required to sign the instrument. He also stated even when Bank is listed as the payee on a money order it does not mean Bank actually ever received the funds. If Bank is listed as payee on the money order, the individual bringing the instrument to Bank directs the application of the funds. Beh-rens testified that the individual with a money order could direct it to “be deposited, cashed, [or] paid on something.” According to Behrens, the only way to determine if cash was received from the money orders was to reconcile the cash out slips and Insurance Company never reconciled the cash out slips.

After reviewing the record in this case, there is not clear, cogent, and convincing evidence showing where the funds attributed to Bank by Van de Ven went, whether the funds were deposited into Bank, or whether Bank retained those funds. The evidence is not so unquestionable in character and so clear, cogent and convincing as to exclude every reasonable doubt that the funds were deposited into Bank and can be traced into the general operating account of Bank.

Insurance Company failed to present clear, cogent, and convincing evidence identifying any specific funds as the res upon which the trust could be attached. Identification of the specific res is essential in establishing a constructive remedy. Blue Cross Health Services, Inc., 800 S.W.2d at 75. Because we find Insurance Company did not identity the specific res, we reverse the judgment. Bank’s second point is granted.

Judgment reversed.

ROY L. RICHTER, P.J. and KURT S. ODENWALD, J., concur.

      . By the time of the trial, all claims against other defendants had been dismissed or settled except for the Bank and the Estate of Ted L. Summers. Insurance Company settled with Marilyn Summers, Summers’ wife, and Jennifer Summers, Summers’ daughter, individually for the amount of $7,500.00 and with the individual directors of Insurance Company in the amount of $83,474.61, representing the $90,974.61 Summers retained from the funds he removed from the Wind Premium Trust Account. The settlement with the individual directors of Insurance Company arose out of an intervening petition filed by a policy holder of Insurance Company alleging Insurance Company’s board of directors was negligent in failing to oversee the conduct of Summers.

      . The remaining $83,184.82 of the total $346,597.00 was attributed to other parties and entities not part of the underling judgment or this appeal.

      . The trial court also dismissed Insurance Company’s claim against the Estate of Ted L. Summers.

      . In its judgment, the trial court stated Bank “did not unjustly benefit from the paying of taxes to Edwin Riggs of $1,223.83 nor the payment of claims of Moore, the Failore, Richards, Smith, Hummel, Fesseden, the Kay-lors and Gibson in the sum of $44,423.54 as payments of claims to claimants or to the Bank on loans to claimants.” This finding was supported by Exhibit 11 and the testimony at the trial.

      . Because we find Bank’s second point is dispositive, we need not address Bank’s remaining seven points on appeal.


source: Caselaw Access Project

author: LAWRENCE E. MOONEY, Judge.

license: Public Domain

text:
    Theresa PARKER, Respondent/Cross-Appellant, v. AMERICAN PUBLISHING CO., et. al., Appellants/Cross-Respondents.
    Nos. ED 92334, ED 92386.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 29, 2010.
    Thomas R. Carnes, St. Louis, MO, for appellants.
    D.B. Amon, St. Charles, MO, for respondent.
   LAWRENCE E. MOONEY, Judge.

Introduction

In this tort action, defendants DeAmon White and The Firm Entertainment Group appeal. The plaintiff, Theresa Parker, cross-appeals. Because the trial court’s March 10, 2008 order denying the defendants’ motion to set aside the interlocutory order of default is not an independent, final judgment, and because the trial court’s October 31, 2008 judgment is not a final, appealable judgment, we dismiss the appeal.

Factual and Procedural Background

The plaintiff filed a six-count first amended petition seeking damages against eight defendants for libel, slander, tortious interference, and defamation of character. Four of the defendants — DeAmon White, Maurice Rankin, William Hart, and The Firm Entertainment Group, L.L.C. (“the defendants”) — were served but did not answer or otherwise respond to the petition. The trial court found the defendants in default and entered an interlocutory order of default against them on April 10, 2007. On plaintiffs motion for inquiry, the trial court held a hearing on April 18, 2007. At the end of the hearing, the court took the matter under submission. In the late summer and early fall of 2007, the defendants moved to set aside the interlocutory order of default. The trial court denied the defendants’ request, by order entered on March 10, 2008.

Two other series of events are important for purposes of this appeal. First, shortly after the trial court denied the defendants’ motion to set aside, the plaintiff sought leave to amend by interlineation certain language in her first amended petition. The trial court granted the plaintiffs request. The defendants then filed answers to what they termed to be plaintiffs “first amended petition further amended by in-terlineation.” The plaintiff moved to strike these answers. The defendants countered, contending the plaintiff had abandoned her first amended petition and the default judgment when she amended her petition by interlineation. The trial court found that the plaintiffs addition did not materially change her original cause of action or introduce a new or additional claim of relief. Thus, the court concluded that the plaintiff had not abandoned her default judgment, and that the defaulting defendants were not entitled to file answers. Consequently, the court struck the defendants’ answers.

The next event of note came on October 6, 2008, when the defendants requested a jury trial to assess damages. The trial court denied the defendants’ request as untimely, noting the court had already held a hearing on damages on April 18, 2007.

The trial court entered judgment in the case on October 31, 2008. The court first addressed liability, concluding that under Missouri’s laws pertaining to limited liability companies, defendants William Hart and Maurice Rankin could not be held liable for the acts of defendant DeAmon White and, thus, no damages could be assessed against those two parties. Rather, the court concluded that all damages resulting from the conduct of DeAmon White must be assessed against Mr. White and The Firm Entertainment Group. The court then addressed the counts of the plaintiffs petition and assessed damages. On Count I, the court assessed damages and granted judgment against defendants DeAmon White and The Firm Entertainment Group, jointly and severally, in the amount of $25,000. On Count II, the court assessed damages and granted judgment against defendants DeAmon White and The Firm Entertainment Group, jointly and severally, in the amount of $25,000. On Count III, the court found that the alleged statement, upon which the claim was based, did not sufficiently identify the plaintiff to result in damages. Thus, the court assessed no damages for the conduct alleged in Count III. And finally, on Count IV, the court found the damages sought in that count were the same damages as in Count I and Count II. Therefore, the court assessed no damages under Count IV. The court did not explicitly address either Count V or Count VI.

The plaintiff as well as defendants DeAmon White and The Firm Entertainment Group appealed. The plaintiff asserts that all four defendants should be held liable. Defendants White and The Firm Entertainment Group advance three points of trial-court error. First, they contend the trial court erred in denying their motion to set aside the interlocutory order of default. Second, they contend the trial court erred in striking their answers, filed after the plaintiff amended her petition by interlineation. And third, they argue the trial court erred in denying their request for a jury trial to assess damages. We cannot reach the merits of any of these points on appeal.

Discussion

In every case, before considering claims raised on appeal, this Court has a duty to sua sponte determine whether we have authority to decide the appeal. Acclaim Systems, Inc. v. Lohutko, 247 S.W.3d 601, 603 (Mo.App. E.D.2008); Comm. for Educ. Equal. v. State, 878 S.W.2d 446, 450 (Mo. banc 1994). That determination in this case requires us to look at two different rulings by the trial court — the March 10, 2008 order denying the defendants’ motion to set aside and the October 31, 2008 judgment. For distinct reasons, we have no authority to review either ruling. We shall discuss each in turn.

March 10, 2008 Order

The defendants allege the trial court erred in denying their motion to set aside the interlocutory order of default. The defendants filed their motion pursuant to Rule 74.05(d), which provides that “an interlocutory order of default or a default judgment” may be set aside “[u]pon motion stating facts constituting a meritorious defense and for good cause shown.” Rule 74.05(d). The Rule further provides that a motion filed under Rule 74.05(d) is an independent action. Rule 74.05; Brungard v. Risky’s Inc., 240 S.W.3d 685, 687 (Mo. banc 2007); In re Marriage of Coonts, 190 S.W.3d 590 (Mo.App. S.D.2006). A determination made on the basis of Rule 74.05(d) requires an independent, final judgment for purposes of appeal. Dixon v. Thompson, 235 S.W.3d 568, 570 (Mo.App. S.D.,2007); Koenig Law Firm, L.L.C. v. James A. Rohm, L.L.C., 229 S.W.3d 643, 644 (Mo.App. W.D.2007); Section 512.020(5).

The trial court denied the defendants’ motion by order. That order is not denominated as a “judgment” or “decree,” as required by Rule 74.01(a). The trial court’s ruling, therefore, is not an independent judgment. And because the trial court’s ruling is not a judgment, there is no final judgment for purposes of appeal. Without an independent, final judgment, the trial court’s determination regarding the defendants’ motion to set aside is not subject to appellate review, and we must dismiss the point. Dixon, 235 S.W.3d at 571; Koenig Law Firm, 229 S.W.3d at 644; Coonts, 190 S.W.3d at 604. Accordingly, we dismiss the defendants’ first point on appeal. This, then, leaves the remaining two points of the defendants’ appeal, as well as the plaintiffs appeal, all taken from the trial court’s October 31, 2008 judgment.

October 81, 2008 Judgment

As mentioned, before this Court can consider the merits of an appeal, we first must determine our authority to do so. S & P Properties, Inc. v. Bannister, 292 S.W.3d 404, 407 (Mo.App. E.D.2009). A final judgment is a prerequisite to appellate review. Comm. for Educ. Equality, 878 S.W.2d at 450; S & P Properties, 292 S.W.3d at 407; Section 512.020(5). If there is no final judgment, this Court must dismiss the appeal. Avidan v. Transit Cas. Co., 20 S.W.3d 521, 523 (Mo. banc 2000); In re Marriage of Boden, 136 S.W.3d 824, 825 (Mo.App. E.D.2004). A final judgment disposes of all parties and all issues in the case and leaves nothing for future consideration. Avidan, 20 S.W.3d at 523; S & P Properties, 292 S.W.3d at 407; see also Rule 74.01(b).

Here, the trial court’s October 31, 2008 judgment does not dispose of all the claims and issues presented by the plaintiffs first amended petition. That petition consisted of six counts. The record does not show a disposition of Count VI. The October 31, 2008 judgment is not a final judgment. As a result, we must dismiss the appeal for lack of a final, appealable judgment.

In sum, because the trial court’s March 10, 2008 order is not an independent, final judgment, and because the trial court’s October 31, 2008 judgment is not a final, appealable judgment, we dismiss the appeal.

GLENN A. NORTON, P.J., and MARY K. HOFF, J., concur.

      . Specifically, the defendants named and served were: American Publishing Corporation, Leamon J. Beene (aka Delores Shante), Radio One, Inc., Craig Shields (aka Craig Blac), DeAmon White, Maurice Rankin, William Hart, and The Firm Entertainment Group, L.L.C. The petition, although not a model of clarity, sets out the following six counts:

        Count I: Libel — Print Media. The plaintiff initially stated she was bringing this action against all defendants. However, in her prayer for relief under this count, she specifically identified defendants American Publishing Corporation, Leamon J. Beene, Maurice Rankin, William Hart, "William Hart,” and The Firm Entertainment Group, L.L.C. The plaintiff identified a second defendant "William Hart” in the body and her prayer for relief under this count, despite the fact she had not named, or served, a second "William Hart.” In the body of her petition under this count, the plaintiff additionally referred to defendant DeAmon White, as well as defendant "Maurice White,” despite the fact she had not named, or served, a "Maurice White.”

        Count II: Libel — Internet. The plaintiff initially stated she was bringing this action against all defendants. However, in her prayer for relief under this count, she specifically identified defendants American Publishing Corporation, Leamon J. Beene, Maurice Rankin, William Hart, "William Hart,” and The Firm Entertainment Group, L.L.C. The plaintiff again referred to a second defendant "William Hart” in the body and prayer for relief under this count, despite the fact she had not named, or served, a second "William Hart.”

        Count III: Slander — Radio. Against defendants Radio One, Inc., Craig Shields, Maurice Rankin, William Hart, "William Hart,” and The Firm Entertainment Group. The plaintiff again referred to a second defendant "William Hart” in the body and prayer for relief under this count, despite the fact she had not named, or served, a second "William Hart.” She also referred to defendant "AOI,” despite the fact she had not named, or served, any such-named defendant.

        Count IV: Tortious Interference. Against "defendants.”

        Count V: Tortious Interference. Against defendants DeAmon White, "Maurice White,” William Hart, and The Finn Entertainment Group. The plaintiff referred to defendant "Maurice White” in the body of the petition and the prayer for relief under this count, despite the fact she had not named, or served, a defendant "Maurice White.”

        Count VI: Defamation of Character. Against "defendants.”

      . The other four defendants — American Publishing Corporation, Leamon J. Beene (aka Delores Shante), Radio One, Inc., and Craig Shields (aka Craig Blac) — answered the petition. These defendants later settled with the plaintiff, and the plaintiff dismissed with prejudice her claims against them.

      . According to the plaintiff's first amended petition, the alleged conduct giving rise to plaintiff’s claims was performed by DeAmon White, alleged to be an owner/operator of a night club doing business as The Firm Entertainment Group, L.L.C. The plaintiff alleged that defendants William Hart and Maurice Rankin were also owners/operators of that same night club.

      . Rule 74.01(a) provides, in pertinent part, that “[a] judgment is entered when a writing signed by the judge and denominated 'judgment' or 'decree' is filed.”

      . Rule 74.01(b) provides an exception to the finality rule, permitting a trial court to enter judgment as to “one or more but fewer than all of the claims or parties,” when more than one claim for relief is presented or when multiple parties are involved in an action, and to certify such judgment as final for purposes for appeal upon an express determination that there is "no just reason for delay." This exception, however, does not apply in this case.

      . When the trial court rendered judgment as to Count IV, it may have implicitly disposed of Count V, which alleges the same tortious conduct as Count IV but narrows the focus to certain named defendants. Upon remand, the disposition of Count V should be clarified. In addition, the petition may contain parties whose names are erroneously repeated and parties who are erroneously named. Upon remand, the plaintiff should address these matters.

      . We strongly urge plaintiff’s counsel to review Rule 84.04 before submitting further briefs to this Court. An appellant's compliance with the briefing requirements of Rule 84.04 is mandatory. Thornton v. City of Kirk-wood, 161 S.W.3d 916, 919 (Mo.App. E.D. 2005). “Failure to substantially comply with Rule 84.04 preserves nothing for our review and warrants dismissal of the appeal.” Cul-ley v. Royal Oalcs Chrysler Jeep, Inc., 216 S.W.3d 235, 236 (Mo.App. E.D.2007). The plaintiff’s brief on cross-appeal is wholly deficient. Counsel's failure to substantially comply with the rules of appellate procedure would have warranted dismissal of the plaintiff's cross-appeal in this case, had we not dismissed for lack of final, appealable judgment. We deny all pending motions before this Court.


author: PATRICIA L. COHEN, Judge.

text:
    STATE of Missouri, Respondent, v. Steven E. SMITH, Appellant.
    No. ED 92056.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 29, 2010.

      Margaret M. Johnston, Columbia, MO, for appellant.
    Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.
   PATRICIA L. COHEN, Judge.

Introduction

Steven Smith (Defendant) appeals from the judgment of the Circuit Court of St. Charles County convicting him of forcible rape, forcible sodomy, assault in the second degree, felonious restraint, and three counts of armed criminal action. Defendant claims that the trial court erred in sustaining the State’s objections to: (1) the admission of evidence of prior consensual sexual conduct between Defendant and the victim (S.F.); (2) Adrian Smith’s testimony regarding S.F.’s poor reputation for truthfulness; and (3) Darryl Southard’s testimony regarding S.F.’s poor reputation for truthfulness. We affirm.

Background

Viewed in the light most favorable to the verdict, the evidence at trial revealed the following: Defendant was married to S.F.’s mother before she died from cancer on July 12, 2006. At the time of her mother’s death, S.F. was twenty-nine yeai's old.

On the morning of October 6, 2006, S.F. received a phone call from Defendant who sounded “really down.” Subsequently, S.F. drove to the trailer park where Defendant lived and picked him up. During the day, S.F. brought Defendant along to visit with family members and run errands before returning to Defendant’s trailer home that afternoon. While at Defendant’s trailer, the two talked and drank alcoholic beverages.

Later in the evening, S.F. decided to spend the night at Defendant’s trailer and fell asleep on the loveseat in the living room. In the middle of the night, S.F. felt Defendant playing with her hair and trying to kiss her. S.F. asked Defendant to leave her alone because she was trying to sleep. Defendant told her to take off her clothes. S.F. thought Defendant was “kidding around” and again told him to leave her alone. Defendant then pulled out a knife and instructed S.F. to “take off your clothes or I’m going to slit your F-ing throat.” Still unsure whether Defendant was serious, S.F. told him to leave her alone. Defendant then started “stabbing” at S.F. and held the knife to S.F.’s throat and said, “I told you to take off your fucking clothes.”

S.F. began to remove her clothes. As she took off her sweatshirt, S.F. noticed that her white t-shirt was “full of blood” and that blood was running down her arms, legs, and stomach. S.F. realized that she had been stabbed in her left breast and upper left arm.

Defendant ordered S.F. into his bedroom. Once in the bedroom, Defendant had S.F. remove the rest of her clothes. Defendant then instructed S.F. to lie down on the bed and spread her legs. By this point, S.F. was “screaming”, “bawling”, had “snot rolling down [her] nose”, and “could hardly breathe.” S.F. sat on the bed, but when she would not open her legs, Defendant climbed on top of S.F., forced her legs open, and put his penis in her vagina. While having sex, Defendant held the knife to S.F.’s throat. Later, Defendant turned S.F. over and penetrated her vagina from behind.

S.F. attempted on several occasions to escape from Defendant’s trailer. The first time, S.F. attempted to exit through the back door while Defendant was in the kitchen grabbing cigarettes, but the door was locked. On the second attempt, S.F. tried to leave through the front door, but it was also locked. When Defendant caught S.F. attempting to escape through the front door, a struggle ensued. A lamp was knocked off a table and a recliner was flipped over. Eventually, Defendant grabbed S.F. by her hair and, with the knife, ordered S.F. back to the bedroom. While back in the bedroom, Defendant instructed S.F. to lie on the bed and Defendant put his mouth on S.F.’s vagina.

Defendant returned to the kitchen, and S.F. managed to escape from the trailer. S.F. ran naked to the neighbor’s trailer “banging” on the door “screaming help, help!” The neighbors, however, were out of town. Defendant caught up to S.F. and grabbed her by the hair and started dragging her back to his trailer, while holding a butcher’s knife.

Tim Russell, who lived in one of the neighboring trailers, heard the “banging” and “yelling” outside. Mr. Russell went outside and saw Defendant dragging S.F. by her arm. S.F. was naked and Defendant was holding a knife in his hand. Mr. Russell saw S.F. “trying to get away” from Defendant. Mr. Russell went back in his trailer and had someone call the police.

Back in his trailer, Defendant ordered S.F. into the bedroom. Defendant told S.F., I was “going to let you go, but now that I got to looking at your tits ... it’s not going to happen.”

S.F. managed to escape the trailer a second time. This time, S.F. ran to Mr. Russell’s trailer. S.F. beat on the door yelling for the people inside to help her. Mr. Russell opened the door and let her inside to wait for the police to arrive. S.F. was still naked and had blood on her.

Soon thereafter, police officers arrived at the scene and entered Defendant’s trailer. The officers saw a lamp lying on the floor and other items “strewn about in the living area.” Then, the officers heard Defendant announce that he was in the bedroom. As the officers entered the bedroom, they saw Defendant lying on the bed with a “folding knife protruding from the center of his chest.” The officers asked Defendant what had happened, and Defendant told the officers to leave him alone so he could die. Other than the knife wound, the officers did not observe any other injuries on Defendant. Defendant made a statement to the officers where he said that he had “stabbed the girl and stabbed himself.”

Paramedics arrived at Defendant’s trailer and treated Defendant. The paramedics observed that there was no bleeding from Defendant’s knife wound. The paramedics also noticed blood on the pillow in the bedroom where Defendant was, but the amount of blood was substantially greater than any attributable to the visible wounds on Defendant. After the paramedics transported Defendant to the hospital, doctors discovered a wound on one of Defendant’s arms in addition to the knife wound in his chest. Both injuries were “superficial” and were treated with steri-strips — “butterfly bandages.” The doctors noticed that Defendant was “behaving in an intoxicated manner.” Defendant’s toxicology report tested positive for cocaine and showed a blood alcohol level of .246%.

At the trailer park, the police officers also found S.F. at Mr. Russell’s home. The officers noticed that S.F. was “shaking” and “crying” and that she had “fresh” cuts on her left arm and chest. Paramedics transported S.F. to a hospital where hospital personnel treated her stab wounds and administered a rape kit. S.F.’s stab wounds were one to two centimeters deep. The rape kit revealed that, in addition to the stab wounds, S.F. had bruises to her neck and right buttock and she had some redness on the base and opening of her vagina and an abrasion on her cervix.

Following the incident, the police arrested Defendant. Subsequently, a grand jury charged Defendant by indictment of forcible rape, forcible sodomy, second degree assault, felonious restraint, and three counts of armed criminal action.

Prior to his trial, Defendant filed a motion seeking to offer evidence of prior consensual sexual conduct between himself and S.F. as evidence that S.F. consented to sex on October 7, 2006. See Mo.Rev.Stat. § 491.015.1(1) (2000). In support of the motion, Defendant testified during a pretrial hearing that he had consensual sexual intercourse with S.F. on three separate occasions between two months and six weeks prior to the date of the charged offenses. Defendant also testified that he had told his friend, Daryl Southard, about the first and third occasions. Defendant further stated that he called Mr. Southard on the day of the crime and told him that S.F. was at his house and they would probably have sex again. Mr. Southard testified at the hearing and stated that Defendant had told him about his sexual encounters with S.F. After the hearing, the trial court issued findings of fact and conclusions of law denying Defendant’s motion.

At the pre-trial hearing, Mr. Southard also testified as to his opinion that S.F. had a poor reputation for truthfulness. The trial court sustained the prosecution’s objection to Mr. Southard’s testimony, and the defense did not attempt to call Mr. Southard at trial.

At trial, the State called S.F., who testified as to the events that occurred on October 6, 2006 and the morning of October 7, 2006. The State also called the neighbor, Mr. Russell, the responding police officers, the paramedics, the doctors who treated Defendant’s and S.F.’s wounds, and the nurse who administered the rape kit.

After the State rested, the defense called Adrian Smith to testify as to his opinion of S.F.’s poor reputation for truthfulness in the community. Mr. Smith testified that he was S.F.’s ex-boyfriend who, at one point, had lived with S.F., S.F.’s mother, and Defendant for approximately three months. Defense counsel asked Mr. Smith about his opinion of S.F.’s reputation for truthfulness, and Mr. Smith stated that she was not truthful. The State objected to Mr. Smith’s testimony and the trial court sustained the objection.

Defendant testified on his own behalf. According to Defendant, he and S.F. had consensual sex on the night in question. Defendant testified that S.F. had called him on the morning of October 6, 2006, and that they ran errands before returning his trailer. At his trailer, he performed oral sex on S.F. and then they had sexual intercourse. Defendant said that after he and S.F. had sex, S.F. became upset. Defendant testified that he and S.F. began arguing about some of S.F.’s mother’s belongings. Defendant stated that he asked her “would she feel better if I were dead too and then she could have all of this crap.” Then, Defendant said that, in an attempt to calm S.F. down, “I picked up [a] knife just jokingly with her and she started teasing me and we started wrestling with the knife.” Defendant testified that while wrestling, both he and S.F. “got stuck.” Defendant said that S.F. subsequently ran out of the trailer naked and he chased after her. Defendant denied having a knife in his hand while outside the trailer. Defendant stated that after they returned to his trailer, they began arguing again. According to Defendant, he again asked S.F. if she would feel better if he were dead, and then he stabbed himself. S.F. ran out of the trailer as Defendant fell onto his bed with the knife in his chest.

The jury found Defendant guilty on all seven counts. Following the jury’s recommendation, the trial court sentenced Defendant to concurrent sentences of twenty-five and fifteen years for the forcible rape and forcible sodomy counts, respectively, as well as one ten-year, two five-year, and two seven-year sentences for the remaining five counts to run concurrently to each other but consecutive to the sentences for forcible rape and forcible sodomy. Defendant appeals.

Standard of Review

“Trial courts retain broad discretion over issues of relevancy and admissibility of evidence, and we will not interfere with those decisions unless there is a clear showing of abuse of discretion.” State v. Steger, 209 S.W.3d 11, 20 (Mo.App. E.D.2006). A trial court abuses its discretion when its ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Id. Additionally, we -will affirm a trial court’s exclusion of evidence if it is correct for any reason, regardless of the reason articulated by the trial court. State v. Edwards, 918 S.W.2d 841, 844 (Mo.App. W.D.1996).

Discussion

A. Evidence of Prior Sexual Conduct with Victim

In his first point, Defendant asserts that the trial court erred in sustaining the State’s objection and prohibiting Defendant from presenting evidence of his prior consensual sexual conduct with S.F. Defendant claims that the evidence was admissible under Mo.Rev.Stat. § 491.015 to prove consent, which was Defendant’s defense to the charges of forcible rape and forcible sodomy.

Section 491.015, commonly referred to as the “rape shield” statute, creates a presumption that evidence of a rape victim’s prior sexual conduct is irrelevant. State v. Osterloh, 773 S.W.2d 213, 218 (Mo.App. W.D.1989) (citing State v. Brown, 636 S.W.2d 929, 933 (Mo. banc 1982), cert. denied 459 U.S. 1212, 103 S.Ct. 1207, 75 L.Ed.2d 448 (1983), overruled in part on other grounds, State v. Jones, 716 S.W.2d 799, 800 (Mo. banc 1986)). Section 491.015.1(l)-(4) sets forth four exceptions to the presumption and recognizes that, in limited circumstances, prior sexual conduct may be relevant. Id. The exception at issue here allows “[e]vidence of the sexual conduct of the complaining witness with the defendant to prove consent where consent is a defense to the alleged crime and the evidence is reasonably contemporaneous with the date of the alleged crime[.]” Mo.Rev.Stat. § 491.015.1(1). If proffered evidence falls within one of the statutory exceptions, it is “admissible only to the extent that the [trial] court finds the evidence relevant to a material fact or issue.” Mo.Rev.Stat. § 491.015.2; State v. Smith, 157 S.W.3d 379, 382 (Mo.App. E.D.2005).

Prior to trial, Defendant filed a motion under Section 491.015 seeking to offer evidence of prior consensual sexual conduct between S.F. and Defendant. In support of his motion, Defendant testified during a pre-trial hearing that he and S.F. had sexual intercourse on three separate occasions between two months to six weeks before the charged offense. Defendant and his friend, Mr. Southard, both testified that after the first and third occasion, Defendant called Mr. Southard and told him about his sexual encounters with S.F. Defendant sought to introduce the evidence of his prior sexual conduct with S.F. on the basis that it was reasonably contemporaneous with the date of the charged offense and was relevant to his defense of consent to the forcible rape and forcible sodomy charges.

The trial court entered findings of fact and conclusions of law denying Defendant’s motion. The trial court first reasoned that Defendant was not advancing the defense of consent and Section 491.015.1(l)’s exception did not apply because Defendant testified that he did not have sex with S.F. following the third occasion in August 2006. Based on this testimony, the trial court deduced that Defendant was not claiming that he had consensual sex with S.F. on October 7, 2006, the date of the charged offense. Second, the trial court found, without explanation, that the alleged instances of consensual sex between Defendant and S.F. were not reasonably contemporaneous to the date of the charged offenses.

Initially, we note that the trial court’s conclusion that Defendant was not relying on consent as a defense is not supported by the record. The record is clear that Defendant consistently maintained that the sexual conduct between him and victim on October 7, 2006 was consensual.

We next consider whether the record supports the trial court’s determination that Defendant’s prior sexual conduct with S.F. was not reasonably contemporaneous with the date of the charged offense. In State v. Jones, our Supreme Court, while stating that “[a] definition of ‘reasonably contemporaneous’ is elusive[,]” provided guidance for applying the “reasonably contemporaneous” standard in Section 491.015. 716 S.W.2d at 801-02.

First, the Jones Court addressed the “reasonably contemporaneous” standard as it relates to the temporal relationship between the date of the defendant and victim’s prior sexual conduct and the date of the charged offense. Specifically, the Jones Court quoted with approval the following statement from State v. Crisp:

Reasonably means within the bounds of common sense. Contemporaneous means originating, or happening, during the same period of time. It is not common sense to say that events that happened almost three years apart were reasonably contemporaneous.

Id. at 801 (quoting State v. Crisp, 629 S.W.2d 475, 479 (Mo.App. S.D.1981)). Second, the Jones Court cautioned that “judicial review by the use of clocks or calendars is not enough[,]” and that we must examine whether, under the circumstances, the exclusion of the evidence deprived the defendant of a fair trial. Id.

In assessing whether the exclusion of Defendant’s proffered evidence deprived Defendant of a fair trial, we find the analysis in Jones instructive. In Jones, the defendant sought to offer evidence that he had consensual sexual intercourse with the victim approximately three and one-half to four and one-half months before the date of the charged offense. Id. The Jones Court affirmed the trial court’s exclusion of the evidence as not “reasonably contemporaneous” within the meaning of the “rape shield” statute, Mo.Rev.Stat. § 491.015.1(1) (1978). Id. at 801-02. The Court noted that “[i]f this case involved merely a swearing match between the complaining witness and the accused on the issue of consent we would be inclined to reverse and remand for new trial.” Id. at 801. However, because the victim’s testimony was sufficiently supported by corroborating evidence, the Court concluded that the defendant was not deprived of a fair trial. Id. at 801-02. Specifically, the complaining witness testified that she awoke with a pah* of hands around her neck, and that the defendant told her that if she said anything he would kill her and her children. Id. at 801. The victim’s account was corroborated by an emergency room physician who testified that, upon his examination of the victim, he discovered “a cervical tear, redness on the side of her neck and bruising on the back of her neck.” Id.; see also State v. Foulk, 725 S.W.2d 56, 61 (Mo.App. E.D.1987) (holding that the trial court did not abuse its discretion and the defendant was not deprived a fair trial because “[t]he instant case is not a mere swearing match. The complaining witness’ testimony was corroborated by medical testimony.”). Cases subsequent to Jones have explained that, while a defendant is guaranteed a right to a fair trial, this right must be properly balanced with the underlying objective of the “rape shield” statute. State v. Murray, 842 S.W.2d 122, 125 (Mo.App. E.D.1992). The objective of the “rape shield” statute is to provide protection for the privacy of complaining witnesses which, in turn, encourages victims of rape to report and prosecute such crimes without the threat to expose intimate details of prior sexual conduct, if any, to the public. Id.; Brown, 636 S.W.2d at 933; see also Michigan v. Lucas, 500 U.S. 145, 149-50, 111 S.Ct. 1743, 1746 114 L.Ed.2d 205 (1991) (holding that Michigan’s “rape shield” statute “represents a valid legislative determination that rape victims deserve heightened protection against surprise, harassment, and unnecessary invasions of privacy.”). Where the testimony of the complaining witness is a key element of the State’s case, the defendant’s right to cross-examine the witness and present evidence tending to disprove the witness’s testimony is crucial and outweighs the need to protect the victim’s privacy interests. Murray, 842 S.W.2d at 125 (citing Davis v. Alaska, 415 U.S. 308, 317, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347, 354 (1974)). Conversely, when a rape victim’s testimony is sufficiently supported by corroborating evidence, “the probative value of evidence of prior consensual sexual conduct with the defendant is outweighed by the need to protect the victim’s privacy.” Id. at 126.

There was sufficient evidence adduced in the present case corroborating S.F.’s account of the assault by Defendant. Specifically, the nurse who administered the rape kit testified that she found bruises on S.F.’s neck and right buttock and redness on the base and opening of her vagina, and an abrasion on her cervix. In addition to the medical evidence, the State offered evidence consistent with S.F.’s version of the incident, which showed that some of the blood on Defendant’s bed came from S.F.; items of furniture in the living room had been overturned during the struggle between Defendant and S.F.; and Defendant was holding a butcher’s knife when he left the trailer to retrieve S.F. The State also elicited evidence of Defendant’s prior inconsistent statement to the arriving police officers that Defendant had “stabbed” S.F. and then stabbed himself. Under these circumstances, we conclude that Defendant was not denied a fair trial and that the trial court did not abuse its discretion in excluding the evidence of prior sexual conduct. Point denied.

B. Evidence of Victim’s Poor Reputation for Truthfulness

In his second and third points, Defendant asserts that the trial court abused its discretion in sustaining the State’s objections and refusing to allow Adrian Smith and Darryl Southard to testify as to S.F.’s poor reputation for truthfulness. Defendant contends that because S.F. testified at trial, he was entitled to impeach her credibility with evidence of her poor reputation for truthfulness and veracity. Defendant further claims that Mr. Smith and Mr. Southard knew S.F. in the community and were qualified to testify as to their opinion of S.F.’s reputation.

As with any witness who testifies at trial, a victim in a sex offense case places her reputation for truthfulness at issue by taking the stand, and the defense may impeach the victim’s testimony by evidence of her poor reputation for truthfulness and veracity. State v. Trimble, 638 S.W.2d 726, 735 (Mo. banc 1982); State v. Foster, 854 S.W.2d 1, 4 (Mo.App. W.D.1993). A person is qualified to testify as to another witness’s reputation for truthfulness and veracity if it is shown that the person is familiar with “the general reputation of the witness in the neighborhood or among the people with whom the witness associates....” State v. Woods, 428 S.W.2d 521, 523 (Mo.1968) (quotation omitted). Conversely, it is irrelevant what the person personally knows of the general conduct of the witness to be impeached because personal opinion as to a witness’s truthfulness and veracity “is immaterial and not admissible.” State v. Schell, 843 S.W.2d 382, 384 (Mo.App. E.D.1992) (quoting State v. Huffman, 607 S.W.2d 702, 704 (Mo.App. E.D.1980)).

With regard to Adrian Smith, Mr. Smith testified that he dated S.F. and lived with S.F., S.F.’s mother, and Defendant for “[m]aybe three months at the most.” Mr. Smith stated that while he “didn’t know too many people” in S.F.’s neighborhood, he did know some people “that lived in the community.” Mr. Smith also testified that he “[m]et a few friends of [S.F.’s] family.” Defense counsel asked Mr. Smith what was his “opinion on [S.F.’s] reputation for truthfulness” based on his interactions with the people he met in S.F.’s household. Over the State’s objection, Mr. Smith responded, “[S]he’s not very truthful.” On cross-examination, the prosecutor asked Mr. Smith whether his opinion that S.F. was untruthful was “based on [his] personal experience.” Mr. Smith answered affirmatively. The prosecutor then objected and moved to strike Mr. Smith’s testimony regarding S.F.’s poor reputation for truthfulness. The trial court sustained the objection, struck the testimony, and instructed the jury to disregard Mr. Smith’s answer. In an offer of proof that followed, Mr. Smith again testified that he lived with S.F. and her family and that he formed an opinion as to S.F.’s reputation for truthfulness, and that her reputation was “[n]ot good.” The trial court refused the offer of proof.

The trial court did not abuse its discretion in sustaining the State’s objection to Mr. Smith’s testimony because the testimony was based on Mr. Smith’s personal opinion and not on his knowledge of S.F.’s reputation in the community. See Huffman, 607 S.W.2d at 704. Although Mr. Smith knew some people in S.F.’s neighborhood, there was no evidence that Mr. Smith talked with any of those people about S.F.’s reputation. Additionally, Mr. Smith admitted that his opinion of S.F.’s reputation was based on his “personal experience.”

Turning to Mr. Southard’s proposed testimony, we, at the outset, note that Defendant’s claim is not properly preserved for appeal because Defendant never attempted to call Mr. Southard as a witness at trial. To preserve a claim regarding the trial court’s exclusion of evidence, the proponent of the evidence must attempt to present the evidence at trial. State v. Speaks, 298 S.W.3d 70, 85 (Mo.App. E.D.2009). We review unpreserved claims only for plain error. State v. Washington, 260 S.W.3d 875, 879 (Mo.App. E.D.2008). Plain error review involves two steps: (1) the trial court must have committed “evident, obvious and clear error that affected substantial rights”; and (2) the error resulted in “manifest injustice or a miscarriage of justice.” Id. (quotation omitted).

As with Mr. Smith, Mr. Southard was not qualified to testify regarding S.F.’s reputation for truthfulness because there was no evidence that Mr. Southard was familiar with S.F.’s reputation in the community. Mr. Southard, at no time, testified that he was familiar with the people in S.F.’s neighborhood or had discussed with others S.F.’s reputation for truthfulness. Moreover, when asked by defense counsel whether he knew of S.F.’s reputation for truthfulness in the community, Mr. South-ard responded, “I never really knew her to be truthful.” Mr. Southard’s own testimony demonstrates that his opinion of S.F.’s truthfulness was based on his own experience and not her reputation in the community. Consequently, Mr. Southard’s testimony was not proper evidence of S.F.’s poor reputation for truthfulness and the trial court did not err, plainly or otherwise, in excluding it. See Woods, 428 S.W.2d at 523. Points denied.

Conclusion

The judgment of the trial court is affirmed.

SHERRI B. SULLIVAN, P.J., and ROBERT G. DOWD, JR., J„ Concur.

      . All statutory citations are to Mo.Rev.Stat. (2000), unless otherwise specified.

      . The three other statutory exceptions in the "rape shield” statute are as follows:
      (2) Evidence of specific instances of sexual activity showing alternative source or origin of semen, pregnancy or disease;
      (3) Evidence of immediate surrounding circumstances of the alleged crime; or
      (4)Evidence relating to the previous chastity of the complaining witness in cases, where, by statute, previously chaste character is required to be proved by the prosecution.
      Mo.Rev.Stat. § 491.015.l(2)-(4).

      . Defendant claims that he properly preserved his objection to the trial court’s exclusion of Mr. Southard's testimony because he offered the evidence at the pre-trial hearing on his Section 491.015 motion and during trial he "reoffered the offer of proof he had presented at the motion hearing, incorporating it by reference.” A review of the record, however, reveals that Defendant only sought to re-offer the evidence of his prior sexual conduct with S.F. at trial. Defendant did not attempt to re-offer Mr. Southard’s testimony regarding S.F.’s poor reputation for truthfulness.

      . We note that for his arguments regarding the admissibility of both Mr. Smith's and Mr. Southard’s testimony, Defendant relies heavily on State v. Allen, 641 S.W.2d 471 (Mo.App. E.D.1982). Allen, however is inapposite. In Allen, the court found that the trial court improperly excluded testimony of two witnesses regarding the defendant’s reputation for truthfulness when the witnesses testified that they were familiar with the reputation of the defendant and that they had general discussions with others about the defendant's reputation. Id. at 472-73. The Allen court held that it was not necessary for the witnesses "to recount specific instances where defendant’s reputation was discussed or remember specific instances where they had asked about defendant's reputation.” Id. at 473. Unlike in Allen, there was no evidence that Mr. Smith or Mr. Southard had any discussions with others in the community regarding S.F.'s reputation, and it was clear that their opinion of S.F.’s untruthfulness was based on personal experience.


author: MARK D. PFEIFFER, Presiding Judge.

text:
    Janice M. KOETTING, Appellant, v. STATE BOARD OF NURSING, Respondent.
    No. WD 71766.
    Missouri Court of Appeals, Western District.
    July 6, 2010.

      Richard D. Watters, Margaret Scavotto, St. Louis, MO, for Appellant.
    Chris Roster, Attorney General, Jonathan M. Hensley, Assistant Attorney General, Jefferson City, MO, for Respondent.

      Before Division II: MARK D. PFEIFFER, Presiding Judge, and VICTOR C. HOWARD and ALOK AHUJA, Judges.
   MARK D. PFEIFFER, Presiding Judge.

We examine this case on appeal to determine whether the Administrative Hearing Commission (AHC) had sufficient evidence to discipline Janice Koetting (Koetting) under section 335.066.2(1) RSMo. In subjecting Koetting to such discipline, the AHC ruled in favor of the Missouri State Board of Nursing (Board). Koetting appealed to the Cole County Circuit Court (trial court), and the trial court affirmed the disciplinary decision of the AHC. Koetting timely appealed to this court and we affirm.

Summary of Facts

Koetting is licensed by the Missouri State Board of Nursing as a registered professional nurse (R.N.), and her license was current and active at all times relevant to this case. Koetting was employed as an R.N. at Cedar County Memorial Hospital (Cedar County) in El Dorado Springs, Missouri. Her duties included assessing patients, giving medications, giving guidance to aides, and assisting with patient care. The genesis of this case was a pattern of absenteeism beginning in December of 2003. Koetting was scheduled to work on December 15 and 16, 2003, but called in sick. Subsequently, Koetting was on the Cedar County nurses’ schedule to work January 18, 2004, but was absent without explanation. The schedule further showed that Koetting was to work January 26-31, 2004, but called in sick for those six days. In February, Koetting’s pattern of absences continued. She was scheduled to work February 3-7, 10, and 12-14, 2004, but was absent without explanation all nine of those days. In total, during a sixty-day period Koetting missed eighteen days of work.

Sue Hughes (Hughes), Director of Nurses for Cedar County, became aware that Koetting’s absences were related to a struggle with alcohol. Koetting met with Hughes, and they discussed Koetting’s problems with alcohol. Koetting also met with Julia Phillips (Phillips), Assistant Director of Nurses for Cedar County, and discussed this pattern of absenteeism. The result of their discussion was that Koetting was granted an unpaid leave of absence, with the understanding that she was to seek treatment for her alcohol abuse.

After the leave of absence and before Koetting was allowed to come back to work at Cedar County, Hughes drafted a “Return to Work Agreement” with direct input from hospital administration on the restrictions and requirements to be imposed. On March 15, 2004, Hughes met with Koetting, they read the agreement together, and Koetting agreed to the terms and signed the document, which stated, in pertinent part:

Cedar County Memorial Hospital granted you unpaid leave of absence due to inability to meet the requirements of the job i.e. attendance due to alcohol impairment.

(Emphasis added.)

The agreement also required Koetting to submit to alcohol and drug testing prior to returning to work and randomly as requested by the hospital, to report to the emergency room if she called in to miss work for any reason, and to submit to an alcohol and drug screening if such a step was indicated by her appearance, demean- or, or conduct.

Three days later, Koetting was scheduled to work on March 18, 2004, and did not call or show up at the hospital. Koet-ting’s friend and nursing colleague, Lerri Burchett (Burchett), went to Koetting’s home to check on Koetting on March 18, 2004. Koetting told Burchett that she had been drinking the night before and was tired and depressed. Finding Koetting in the condition that she found her, Burchett believed it was necessary to take Koetting to an alcohol treatment facility, and Koet-ting agreed.

Cedar County then terminated Koet-ting’s employment and reported her termination and the reasons for her termination to the Board.

The Board filed a complaint alleging that Koetting’s use of alcohol was to such extent that it impaired her ability to perform the work and duties of a professional nurse. The Board asserted that Koet-ting’s nursing license was therefore subject to discipline under sections 335.066.2(1), (5) and (12). The AHC entered an order granting partial summary determination for Koetting, finding no grounds for discipline under section 335.066.2(12). A hearing was held before the AHC on April 11, 2008. On December 23, 2008, the AHC entered its final decision, finding Koetting subject to discipline under section 335.066.2(1) but not under section 335.066.2(5). Pursuant to this ruling, the Board placed Koetting’s nursing lieense on probation for one year. Koet-ting appealed to the Cole County Circuit Court (trial court), and the trial court affirmed the disciplinary decision of the AHC. This timely appeal follows.

Standard of Review

We review the decision of the AHC and not the trial court’s judgment. Bird v. Mo. Bd. of Architects, Prof'l Eng’rs, Prof'l Land Surveyors & Landscape Architects, 259 S.W.3d 516, 520 (Mo. banc 2008). We examine the decision to determine if, upon due consideration to the whole record, there is sufficient competent and substantial evidence to support the decision. Albanna v. State Bd. of Registration for Healing Arts, 293 S.W.3d 423, 428 (Mo. banc 2009) (citing Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003)). We look to see if the decision of the AHC is “the rare case when the award is contrary to the overwhelming weight of the evidence.” Hampton, 121 S.W.3d at 223. We do not review the evidence in the light most favorable to the decision. Id. However, the AHC “ ‘is the sole judge of the credibility of witnesses and the weight and value to give to the evidence.’” Clayton v. Langco Tool & Plastics, Inc., 221 S.W.3d 490, 493 (Mo.App. S.D.2007) (quoting Blackwell v. Puritan-Bennett Corp., 901 S.W.2d 81, 85 (Mo.App. E.D.1995)). Our review of issues of law is de novo. State Bd. of Registration for Healing Arts v. McDonagh, 123 S.W.3d 146, 152 (Mo. banc 2003).

Sufficiency of the Evidence and Grounds for Discipline Under Section 335.066.2(1)

In her first two points on appeal, Koet-ting argues (1) that the AHC’s decision was not supported by competent and substantial evidence, because she argues there was no evidence that Koetting’s absences from work were caused by alcohol use; and (2) even if the absences were alcohol related, those absences did not impair Koetting’s ability to perform the work of a nurse and consequently were not subject to discipline under section 335.066.2(1).

The issue is whether there was competent and substantial evidence to support discipline under section 335.066.2(1), which states, in pertinent part:

The board may cause a complaint to be filed with the administrative hearing commission ... against any holder of any ... license ... for any one or any combination of the following causes: (1) Use or unlawful possession of any ... alcoholic beverage to an extent that such use impairs a person’s ability to perform the work of any profession licensed or regulated by sections 335.011 to 335.096.

Koetting maintains that the “Return to Work Agreement” is the only evidence indicating that Koetting’s alcohol use was an impairment to her ability to come to work when scheduled or otherwise impacted her ability to work. It was not disputed at the AHC hearing, at the trial, or in this appeal that Koetting signed the “Return to Work Agreement,” which expresses that her ability to perform her work was impaired, “i.e. attendance due to alcohol impairment.” The agreement also states that Koetting was granted a leave of absence in order for her to seek and receive treatment and counseling, presumably for such alcohol impairment. Although its admission was not objected to at the AHC hearing, Koetting now asserts this agreement was given undue weight by the AHC because it was not a voluntary admission.

In arguing that the document is not credible evidence, Koetting cites Around The World Importing, Inc. v. Mercantile Trust Co., N.A., for the requirements for admitting an admission by a party-opponent, specifically “a conscious or voluntary acknowledgment by a party-opponent of the existence of certain facts.” 795 S.W.2d 85, 89 (Mo.App. E.D.1990). Koetting cites this standard in arguing that the “Return to Work Agreement” is an involuntary admission that is not credible evidence, because Koetting’s only options were to sign it or to lose her job. However, the issue of admissibility of the “Return to Work Agreement” has not been preserved and is not before this court. That argument was waived when no objection to the admission of the “Return to Work Agreement” was made at the AHC hearing. In fact, at the oral argument of this appeal, Koetting’s counsel stated on numerous occasions that Koetting was not contesting the admissibility of the “Return to Work Agreement.” Nonetheless, given Koetting’s argument as to the lack of credibility of the allegedly involuntarily signed agreement, it is not clear on appeal whether Koetting is asking us to consider the issue of admissibility under a plain error review or is trying to use the standard for admissibility to call into question the reliability and credibility of Koetting’s admission.

Even if we consider the argument on admissibility, Missouri courts have held the “conscious or voluntary acknowledgement” element of this rule to be met in circumstances where there was dispute as to whether the admission was voluntary or coerced. See Teel v. May Department Stores Co., 352 Mo. 127, 176 S.W.2d 440, 445 (1943) (conflicting testimony concerning the circumstances under which the statement was signed); Ogle v. Todd, 514 S.W.2d 38, 41 (Mo.App.1974) (admission made and admissible when stronger party threw weaker party against a wall and demanded an answer to a question).

Questions about the voluntariness of an admission go to the weight a fact finder can give the admission and not its admissibility. Ogle, 514 S.W.2d at 41. “[A]n admission made under duress by a party-opponent in a civil case is admissible, subject of course to comment on its weight.” IV John Henry Wigmore, Evidence in Trials at Common Law § 1050 (Chadbourn rev.1972). Where the admission is evidence probative of a material issue, “[t]he weight and credibility to be attached to it is a matter for the [finder of fact] to determine.” Ogle, 514 S.W.2d at 41. The AHC “[i]s the sole judge of ... the weight and value to give to the evidence.” Clayton, 221 S.W.3d at 493 (quoting Blackwell, 901 S.W.2d at 85).

Koetting proffered no evidence before the AHC challenging the credibility of the “Return to Work Agreement,” aside from the testimony of Hughes that Koetting could not return to work without signing the agreement or initiating a grievance procedure with hospital administration. There was no testimony by Koetting that this demand forced her to lie or to assent to untrue statements. In fact, Koetting did not testify or otherwise present witness testimony asserting the document to be inaccurate or coerced by threats. There is no evidence on the record that Koetting herself ever denied that alcohol use caused her frequent absenteeism or protested the accuracy of the “Return to Work Agreement.” This court gives deference to the findings of fact proffered by the AHC, who determined the “Return to Work Agreement” signed by Koetting to be competent and substantial evidence of Koetting’s alcohol impairment and resultant absenteeism from her nursing job caused by such alcohol impairment.

Notwithstanding Koetting’s assertion that the “Return to Work Agreement” was the only evidence that she used alcohol to an extent that such use impaired her ability to perform the work of a professional nurse, we find additional competent and substantial evidence of such conduct in the testimony of Koetting’s friend and former colleague, Burchett. Burchett was a licensed practical nurse who worked with Koetting at Cedar County. She testified at the AHC hearing that she went to Koet-ting’s home March 18, 2004, the day Koet-ting was a no-call, no-show at work. Bur-chett testified that Koetting told Burchett that she had been drinking the night before and was tired and depressed. As a result of the condition Burchett found Koetting in on March 18, 2004, Burchett testified that she felt compelled to take her friend and colleague to an alcohol treatment facility and, notably, Koetting agreed with Burchett and stated that she was ready for such treatment.

Furthermore, the circumstances of Koetting’s absence on March 18, 2004, logically connect Koetting’s absence to alcohol impairment. Koetting’s decision not to call or show up to work on March 18, 2004, is consistent with the testimony of Bur-chett and a finding that Koetting had abused alcohol the night before and continued the pattern of not showing up for work due to alcohol impairment that had led to the March 15, 2004 “Return to Work Agreement” in the first place. The March 18, 2004, absence from work occurred just three days after Hughes had explained the agreement to Koetting — an agreement which Koetting read, assented to, and signed. That agreement made it perfectly clear that if Koetting missed work for any reason, including illness, she would have to personally appear at the hospital, and the agreement further specified that if Koetting evidenced any signs of alcohol abuse, she would have to submit to testing for alcohol in her system or lose her job. The fact that on March 18, 2004, just three days after signing the agreement, she was absent from work without calling or showing up at the hospital, despite knowing the consequences of such a course of action, constitutes substantial, circumstantial evidence of alcohol impairment and the resulting consequence that, yet again, Koetting was disregarding her professional responsibilities to the members of her health team and the patients whom her health team served.

We agree with the AHC that Hoot-ting's disregard of her professional responsibilities by engaging in alcohol use, which caused a pattern of absenteeism, impaired her ability to work as a nurse and was subject to discipline under section 335.066.2(1). “Professional nursing” is defined in section 335.016(10) to include, among other things, “[t]he coordination and assistance in the delivery of a plan of health care with all members of a health team” and contemplates that nurses possess unique expertise through education and experience that is vital to quality patient care. It is the unique expertise of a nurse in the setting of a health team that makes habitual absences from work due to alcohol misuse so critical to the performance of the duties of a licensed nurse.

For example, Koetting uses the analogy of golf professional, Tiger Woods, and states that “[n]o one would argue that Tiger Woods is ‘impaired’ in his professional golfing abilities because he has missed some tournaments.” The difference is fundamental to the analysis of this case: Where Tiger Woods is a team of one, Koetting is one of a team. Where Tiger Woods’s profession is hitting a golf ball and has nothing to do with the health and well-being of others, Koetting’s profession is serving as a member of a “health team” in which the health and well-being of patients has everything to do with Koet-ting’s profession, and these patients depend heavily upon Koetting and her profession on a daily basis. Koetting seems to argue that since none of the hospital’s patients appear to have suffered harm due to her repeated alcohol-induced absences, there is no evidence that her repeated absences negatively impacted the duties of her profession and she should not be subject to discipline. However, the duty of the Board is broader than responding to harm — its duty is to proactively seek to prevent harm by members of this profession before it happens when the Board has knowledge of the sort of professional wrongdoing contemplated by section 335.066.2(1).

Koetting argues that “[a] nurse’s failure to report to work on one occasion does not indicate that [the] nurse is impaired in her ability to perform the professional work of a nurse” and furthermore “[absenteeism does not constitute a nurse’s professional work and therefore is not a basis for discipline under Chapter 335.”

In response, the substantial evidence before the AHC was that (1) Koetting’s alcohol impairment, by Koetting’s own admission in the “Return to Work Agreement” and by her subsequent conduct and conversations with Nurse Burchett, was such that her absences from work due to alcohol impairment were not isolated — they were habitual; (2) Koetting’s habitual absences from work due to alcohol impairment were so substantial that multiple members of Koetting’s health care team (i.e. Director of Nursing Hughes and Nurse Burchett) sought to intervene with Koetting and attempted to get her alcohol counseling and treatment; (3) Due to Koetting’s alcohol problems, Koetting failed to “coordinate and assist” her “health team” members “in the delivery of a plan [i.e. schedule] of health care” due to her self-induced alcohol-related absences on multiple and continuing occasions.

While the AHC did not specify the dates of Koetting’s absences due to alcohol impairment, the AHC documented a significant and habitual pattern of absences from work, followed by Koetting’s admission in the “Return to Work Agreement” that her attendance problems were due to alcohol impairment, followed by Koetting’s continued pattern of drinking and missing work, followed by Koetting’s ultimate assent to Nurse Burchett that it was time to get alcohol counseling and treatment. Under these substantial and substantiated facts, we hold the AHC’s decision was supported by competent and substantial evidence to support discipline under section 335.066.2(1) for use of alcohol to an extent that such use impaired Koetting’s ability to perform the work of a professional nurse. Specifically, Koetting’s alcohol abuse impaired Koetting’s ability to reasonably participate in “[t]he coordination and assistance in the delivery of a plan of health care with all members of a health team.”

Two additional considerations support our affirmance of the Board’s reading of section 335.066.2(1). First, we note that this provision is worded in an importantly different way than section 335.066.2(5). Second, we note that prior case law holds that the grounds for discipline specified in such a professional-licensing statute should be liberally construed to protect the public. The Missouri Supreme Court initially held that physician disciplinary statutes were penal in nature, and therefore were required to be liberally construed in favor of the physician, and strictly construed against the state. State ex rel. Spriggs v. Robinson, 253 Mo. 271, 161 S.W. 1169, 1172 (1913). This principle was later overruled, however, with the Court expressly holding that “powers conferred upon boards of health to enable them effectively to perform their important functions in safeguarding the public health should receive a liberal construction.” State ex rel. Horton v. Clark, 320 Mo. 1190, 9 S.W.2d 635, 638 (1928); see also Younge v. State Bd. of Reg. for the Healing Arts, 451 S.W.2d 346, 349 (Mo.1969); Hughes v. State Bd. of Health, 348 Mo. 1236, 159 S.W.2d 277, 278-79 (1942). More recent cases make clear that, in construing the physician disciplinary statutes, “all reasonable doubts [should be] resolved in favor of applicability of the statute to the particular case.” Perez v. Mo. State Bd. of Reg. for the Healing Arts, 803 S.W.2d 160, 165 (Mo.App. W.D.1991); see also Bhuket v. Bd. of Reg. for the Healing Arts, 787 S.W.2d 882, 885 (Mo.App. W.D.1990). This rule of liberal construction justifies the Board’s reading of section 335.066.2(1), even if a narrower construction that limited the provision to on-the-job impairment could conceivably be supported.

Koetting insists that absenteeism, in general, is not subject to Board jurisdiction. However, we find that the language “Use ... of any ... alcoholic beverage to an extent that such use impairs a person’s ability to perform the work of any profession licensed or regulated by sections 335.011 to 335.096,” makes clear that section 335.066.2(1) is broad enough in scope to include habitual absenteeism due to alcohol use. While a nurse may not be disciplined solely because of absence from work, when such absence is caused by alcohol impairment, and more particularly when such conduct becomes frequent or habitual, discipline under section 335.066.2(1) is appropriately invoked.

Koetting’s first two points on appeal are denied.

Scope of Acts Subject to Discipline

In her third point on appeal, Koet-ting asserts that the AHC’s findings were internally and inherently inconsistent. To support this point, Koetting takes the AHC’s finding that Koetting was not subject to discipline under section 335.066.2(5), which only allows for discipline of a nurse for acts performed while on the job, and argues that such a finding is inconsistent with disciplining Koetting under section 335.066.2(1). In essence, Koetting is arguing that because the AHC found that Koetting could not be disciplined under section 335.066.2(5), she also could not be disciplined under section 335.066.2(1). Koetting’s interpretation of section 335.066.2(5) would cause section 335.066.2(1) to be superfluous statutory language, a statutory construction we presume was not intended by the legislature.

In interpreting statutes, “ ‘[e]ach word, clause, sentence and section of a statute should be given meaning.’ ” State ex rel. Womack v. Rolf, 173 S.W.3d 634, 638 (Mo. banc 2005) (quoting Hadlock v. Dir. of Revenue, 860 S.W.2d 335, 337 (Mo. banc 1993)). We reject an interpretation of a statute that will cause us to ignore the language of the statute. Id. It is a general presumption of statutory construction that the legislature did not include superfluous language. Norwin G. Heimos Greenhouse, Inc. v. Dir. of Revenue, 724 S.W.2d 505, 508 (Mo. banc 1987).

As the AHC noted in its decision, sections 335.066.2(1) and (5) itemize different standards for discipline, and Koetting asserts no cognizable argument for why they should be treated identically when the language simply is not identical. Where section 335.066.2(5) describes discipline associated with misconduct “in the performance of the functions or duties” of a nurse, section 335.066.2(1) describes discipline associated with drug or alcohol impairment that causes the nurse to be unable to perform the work of a nurse (i.e. so impaired that the nurse is unable to come to work to perform the functions or duties of a nurse). Where section 335.066.2(5) describes nursing misconduct by affirmative acts of the nurse, section 335.066.2(1) describes nursing misconduct and a corresponding inability to act by the nurse.

Koetting’s retained expert witness, Dr. Rita Tadych, testified that Koetting should not be disciplined “[b]eeause there was actually good judgment used [by Koetting] in not coming to work if she was impaired,” and Koetting should not be disciplined in light of the fact that Koetting “[w]as an honest individual in identifying her alcohol problems in not coming in to care for patients which would put her in a position to violate the nursing practices act.” While these comments are applicable (and were apparently persuasive to the AHC) to the charge that Koetting violated section 335.066.2(5), these comments are not relevant to the charge that Koetting violated section 335.066.2(1).

Simply stated, Koetting’s argument ignores the clear distinction the AHC correctly makes between section 335.066.2(5), which is limited to those acts that occur “in the performance of the functions or duties” of the profession, and section 335.066.2(1), which does not express such a limitation. Referring to discipline specifically under section 335.066.2(5), the AHC’s decision states that “[i]ncompetence, gross negligence and misconduct in the performance of the functions or duties of the nursing profession are limited to those acts that occur while on duty as a nurse.” (Emphasis added.) The AHC goes on to make the distinction in its decision that “[although we have concluded that Koetting is subject to discipline under § 335.066.2(1) for alcohol use that impaired her ability to perform her work because it prevented her from going to work[,] [sjection 335.066.2(5) is limited to those acts that occur in the course of 'performing the functions or duties of the profession.” (Emphasis added.)

Consequently, we find that Koetting’s argument in this point misconstrues the AHC’s decision and is without merit. We hold that the AHC’s findings were not internally and inherently inconsistent. Instead, the AHC’s decision was consistent with a plain and harmonized reading of sections 335.066.2(1) and 335.066.2(5). Koetting’s third point on appeal is denied.

Public Policy

Koetting’s fourth point on appeal argues that the AHC’s finding is arbitrary, capricious or unreasonable in that it allegedly ignores and puts at risk the public policy of honoring a nurse’s decision not to report to work while under the influence of alcohol. Koetting argues that imposition of discipline under section 335.066.2(1) in this case creates a dangerous incentive, allegedly encouraging nurses and other health professionals to report to work when they are impaired.

A nurse who has voluntarily placed himself or herself under the influence of alcohol at a time when he or she is aware of a preexisting commitment to work has a choice. He or she can go to work while impaired by alcohol, which creates the probability of invoking discipline under section 335.066.2(5), or remain absent from work, which, if the absences are prolonged and habitual could possibly and eventually result in discipline under section 335.066.2(1). It is not reasonable to assume that, when faced with this choice, the decision of the AHC would encourage a nurse to go to work impaired and risk discipline under section 335.066.2(5) to avoid the possible discipline under section 335.066.2(1) if a nurse consistently misses work for alcohol-related reasons.

The AHC’s decision supported the capacity of the Board to punish Koetting’s pattern of poor decisions to consume enough alcohol to impair her ability to work as a nurse. A holding that habitual absenteeism caused by alcohol abuse does not support disciplinary action, which we decline to support, could adversely affect patient care by potentially leaving hospitals understaffed or forcing some nurses to work double shifts, putting patients at greater risk, especially in rural areas of Missouri where hospitals have fewer options.

Our ruling today does not encourage nurses to risk driving drunk to work or to perform the work of a professional nurse while under the influence of alcohol. It does discourage habitual, excessive alcohol use by professional nurses that would impair their ability to practice their profession. Koetting’s fourth point on appeal is denied.

Conclusion

The AHC’s decision was supported by substantial and competent evidence and is, in all other respects, not subject to reversal. The judgment below is affirmed.

VICTOR C. HOWARD, Judge, and ALOK AHUJA, Judge, concur.

      . All statutory citations are to the 2000 Revised Statutes of Missouri, unless otherwise indicated.

      . Thus, while Koetting's lawyers may now argue that there is no direct evidence of Koet-ting's alcohol impairment and a corresponding negative impact on the ability of Koetting to do her nursing job, this document reflects Koetting’s admission that her alcohol use was, in fact, an impairment causing numerous absences from work and, by her further admission, these absences reflected her inability to meet the requirements of her nursing job.

      . The disciplinary probation order has been stayed pending appeal.

      . Koetting argues that the "Return to Work Agreement” is nothing more than an agreement between an employer and employee and should not constitute substantial evidence of anything more than a dispute between an employer and its employee over absenteeism. This argument belies the fact that the underlying basis for the agreement was that Koetting had missed eighteen days of work that she was scheduled for in a two-month time period, and the basis for the absenteeism was Koetting's admitted alcohol problem that had caused her to miss days of work due to alcohol impairment. Not only is this evidence relevant to the proceedings below, it is highly credible evidence of a pattern of alcohol impairment that was so strong that Koetting could not make it 72 hours past signing the agreement before she was drinking again and missing work, such that a friend and colleague felt compelled to take her to an alcohol treatment facility.

      . The definition of "professional nursing" has subsequently been amended by location only to section 335.016(15).

      . "[A] professional license is not a vested right, but rather a privilege.” Mo. Real Estate Comm’n v. Rayford, 307 S.W.3d 686, 691 (Mo.App. W.D.2010) (numerous internal citations omitted).

      . Our ruling today is fact specific. Koetting’s relevant conduct was not isolated — it was habitual and it was the sort of conduct that reflected an unwillingness by Koetting to “coordinate and assist” Koetting's "health team,” a responsibility that Koetting statutorily owes to her profession.

      . Tadych's testimony is further support for the AHC's conclusions that (1) Koetting had an alcohol abuse problem; (2) Koetting's alcohol use often led to alcohol impairment; and (3) Koetting’s alcohol impairment was so severe at times that she simply could not perform the work of a nurse and, hence, Koetting was habitually absent.