author: KAREN KING MITCHELL, Presiding Judge.

text:
    Richard HOWARD, Appellant, v. David TURNBULL, Nancy Turnbull and Turnbull Investments, LLC, Respondents.
    No. WD 70989.
    Missouri Court of Appeals, Western District.
    May 4, 2010.
    Application for Transfer to Supreme Court Denied June 29, 2010.
    Application for Transfer Denied Aug. 31, 2010.

      James C. Wirken, Kansas City, MO, for Appellant.
    Allan E. Coon, Frank W. Lipsman, and Kevin D. Wait, Olathe, KS, for Respondents.
    Before Division I: KAREN KING MITCHELL, Presiding Judge, and LISA WHITE HARDWICK and CYNTHIA L. MARTIN, Judges.
   KAREN KING MITCHELL, Presiding Judge.

Appellant Richard Howard sued Dave Turnbull, Nancy Turnbull, and Turnbull Investments, LLC (“Turnbull Investments”) (collectively, “Respondents” or “defendants”) for unjust enrichment. On February 20, 2009, the Circuit Court of Jackson County, the Honorable Justine E. Del Muro presiding, held a bench trial on Howard’s claim. On March 31, 2009, the circuit court entered judgment for the defendants. We affirm.

Factual and Procedural Background

This is an unjust enrichment case. Appellant Richard Howard’s claim concerns property that he pledged to secure a line of credit made available to Ganin Homes, LLC (“Ganin Homes”). Ganin Homes was formed in 2002 as a limited liability company whose purpose was real estate development. Ganin Homes was owned by Sa-beam LLC and Turnbull Investments. Turnbull Investments, in turn, was owned by Dave Turnbull and Nancy Turnbull. Sabeam LLC was owned by Greg Howard, Richard Howard’s brother.

On August 26, 2002, Ganin Homes apparently received a loan of $79,000 from the Bank of Blue Valley (“the Bank”), and the loan was apparently secured by (1) a promissory note, executed by Ganin Homes, for the principal amount of $79,000, and (2) the personal guarantees of Dave Turnbull, Nancy Turnbull, Greg Howard, Greg Howard’s trust, and Sa-beam LLC. The next day, August 27, 2002, Ganin Homes executed a second promissory note to the Bank, in the principal amount of $200,000, evidencing a line of credit that the Bank extended to Ganin Homes. The August 27, 2002 promissory note was secured by a deed of trust on property owned by Richard Howard and JoAnn Howard (“Howard Deed of Trust”). The Howard Deed of Trust secured future advances against the line of credit to Ganin Homes up to a maximum principal amount of $150,000. The August 27, 2002 promissory note was also secured by a deed of trust on property owned by Dave Turnbull and Nancy Turnbull (“Turnbull Deed of Trust”). The Turnbull Deed of Trust secured future advances against the line of credit to Ganin Homes up to a maximum principal amount of $50,000.

Appellant contends, and the Respondents apparently do not dispute, that the August 26, 2002 personal guarantees of Dave Turnbull and Nancy Turnbull (“Turnbull guarantees”) were continuing and unlimited, which would mean that they secured all indebtedness of Ganin Homes to the Bank “now existing or hereinafter incurred or created,” including the $200,000 line of credit evidenced by the August 27, 2002 promissory note, despite the fact that the August 27, 2002 promissory note does not state that the line of credit was secured by the pre-existing Turnbull guarantees.

In exchange for granting the Howard Deed of Trust to the Bank, Richard Howard and his wife received from Ganin Homes a resolution (“Resolution”), dated September 11, 2002, that provided as follows:

RESOLVED: Assets committed to secure a line of credit for Ganin Homes, LLC by Dick & JoAnn Howard in the amount of $150,000 and Dave and Nancy Turnbull in the amount of $50,000 will be treated in the following manner:
1.) 5% annual interest will be paid to each party on 100% of the asset committed regardless of whether the line of credit is ever accessed or not for the term of commitment,
2.) Interest payments will be made at 6-month intervals beginning with the first payment on Feb. 28, 2003.
3.) In the event that the line of credit is accessed for operating costs associated with Ganin Homes, ail the other assets of Ganin Homes immediately become attached for the same amount to insure payment of the line of credit and release of the pledged asset.
4.) In the event that something unforeseen occurs and Ganin Homes does not continue operating, it is agreed by all the partners of Ganin Homes that sufficient assets of Ganin Homes necessary to clear any claim on Dick and JoAnn Howard’s property will be liquidated and the proceeds applied towards the secured line of credit. The partners of Ganin Homes will then take whatever action necessary to release Dick and JoAnn Howard’s asset immediately from the line of credit.
5.) The assets will be used to secure the line of credit for a period not to exceed 18 months at which time the line of credit will be retired and all assets will be released.

The Resolution was signed by Greg Howard in his capacity as managing member of Ganin Homes. However, Greg Howard had no authority to speak or act for the Respondents in their individual capacities. In fact, the Turnbulls specifically refused to personally guarantee Howard’s pledge of collateral evidenced by the Howard Deed of Trust.

The line of credit was not retired within eighteen months. Pursuant to the terms of the Resolution, Ganin Homes made interest payments to Richard Howard, totaling $11,500.

Sometime in 2005, Ganin Homes defaulted on its indebtedness to the Bank. The Bank threatened to exercise its rights under the Howard Deed of Trust and the Turnbull Deed of Trust, which included foreclosure. To avoid foreclosure of his property, Richard Howard paid the Bank $150,000 in exchange for a release of the Howard Deed of Trust. Likewise, the Turnbulls paid the Bank $50,000 in exchange for a release of the Turnbull Deed of Trust. In return, the Bank cancelled the August 27, 2002 promissory note. However, at the time of trial, Ganin Homes remained indebted to the Bank for a principal amount of $387,517.50.

Greg Howard abandoned any managerial role in Ganin Homes in 2005, and he has contributed nothing to pay down the company’s debt. By contrast, Dave and Nancy Turnbull are still operating Ganin Homes in an effort to liquidate its assets and pay its debts. In addition, the Turn-bulls paid, from their own funds, the following on behalf of Ganin Homes: $42,667 in interest payments, $14,267 to clear liens from Ganin Homes properties, and $82,116 in various other expenses.

Richard Howard sued the Respondents for unjust enrichment. Howard argued that, because the Turnbull guarantees were continuing and unlimited, they were responsible for the $200,000 line of credit obtained on August 27, 2002, including the $150,000 secured by the Howard Deed of Trust, and thus the Respondents were unjustly enriched in that their debt to the Bank was decreased by $150,000 when Howard paid the Bank $150,000 in exchange for a release of the Howard Deed of Trust. On February 20, 2009, the circuit court held a bench trial on Howard’s claim. On March 31, 2009, the circuit court entered judgment for the Respondents, finding that the evidence did not support a finding of at least two of the three elements required to support awarding a remedy based on the doctrine of unjust enrichment. First, the benefit was not conferred by the plaintiff on the defendants because the benefit was conferred directly upon Ganin Homes, not the defendants. Second, even if a benefit had been conferred on the defendants, the acceptance and retention of the benefit by them would not render the retention inequitable because Howard pledged his property to the Bank “voluntarily, deliberately, and without complaint” and received “precisely what [he] bargained for.” This appeal follows.

Standard of Review

In a court-tried case, we will affirm the circuit court’s judgment unless there is no substantial evidence to support it, it misstates or misapplies the law, or it goes against the weight of the evidence. Conseco Fin. Servicing Corp. v. Mo. Dep’t of Revenue, 98 S.W.3d 540, 542 (Mo. banc 2003) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). “Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.” Murphy, 536 S.W.2d at 32.

Legal Analysis

Howard lists five points on appeal, but he concedes in his reply brief that they can be consolidated into a single point. Howard argues that the trial court erred in entering judgment for the Respondents because he established the necessary elements of his unjust enrichment claim and because no other circumstances apply that would prevent him from recovering under an unjust enrichment theory. We disagree.

To establish the elements of an unjust enrichment claim, the plaintiff must prove that (1) he conferred a benefit on the defendant; (2) the defendant appreciated the benefit; and (3) the defendant accepted and retained the benefit under inequitable and/or unjust circumstances. Hertz Corp. v. RAKS Hospitality, Inc., 196 S.W.3d 536, 543 (Mo.App. E.D.2006); Graves v. Berkowitz, 15 S.W.3d 59, 61 (Mo.App. W.D.2000). Even if a benefit is “conferred” and “appreciated,” if no injustice results from the defendant’s retention of the benefit, then no cause of action for unjust enrichment will lie. White v. Pruiett, 39 S.W.3d 857, 863 (Mo.App. W.D. 2001). Unjust retention of benefits only occurs when the benefits were “conferred (a) in misreliance on a right or duty; or (b) through dutiful intervention in another’s affairs; or (c) under constraint.” Graves, 15 S.W.3d at 62 (quoting Rolla Lumber Co. v. Evans, 482 S.W.2d 519, 520 (Mo.App.1972) (internal quotation marks omitted).

In addition, “[t]here can be no unjust enrichment if the parties receive what they intended to obtain.” Am. Standard Ins. Co. of Wisconsin v. Bracht, 103 S.W.3d 281, 293 (Mo.App. S.D.2003). If the plaintiff has entered into an express contract for the very subject matter for which he seeks recovery, unjust enrichment does not apply, for the plaintiffs rights are limited to the express terms of the contract. Farmers New World Life Ins. Co. v. Jolley, 747 S.W.2d 704, 707-08 (Mo.App. W.D.1988); 66 Am.Jur. 2d Restitution and Implied Contracts § 24 (1998). Further, a voluntary payment, made under a mistake of law but not fact, cannot be recovered in an unjust enrichment claim. Am. Motorists Ins. Co. v. Shrock, 447 S.W.2d 809, 811 (Mo.App.1969).

1. No benefit to the Respondents

The trial court found that the How-ards conferred a benefit on Ganin Homes, not the Respondents. We agree.

For the purposes of unjust enrichment, the owners of a limited liability company do not receive a benefit when a third party pledges collateral to secure a debt incurred by the company. Beeler v. Martin, 306 S.W.3d 108, 112-13 (Mo.App. W.D. 2010). In such cases, the benefit flows to the limited liability company itself, not to the owners of the company. Id.; see also JB Contracting, Inc. v. Bierman, 147 S.W.3d 814, 820 (Mo.App. S.D.2004) (holding that, for the purposes of plaintiffs unjust enrichment claim, the benefit of improvements to property owned by a limited liability company did not flow to the defendant, who owned the company).

Beeler is directly on point. There, the parents of one of the owners of a limited liability company pledged their $46,000 certificate of deposit as collateral for a loan made to the company. 306 S.W.3d at 109-10. The owners of the company guaranteed the loan in their individual capacities. Id. at 109-10. The company defaulted, the creditor bank seized the certificate of deposit, and the parents sued the owners of the company for indemnity and unjust enrichment, seeking to recover the entire $46,000. Id. at 110. The trial court found that the owners had been unjustly enriched only to the extent they disbursed company assets to themselves that were worth more than the company’s liabilities. Id. at 112. However, with respect to the remainder of the $46,000, the trial court found that the individual owners had not been unjustly enriched. Id. at 112. We affirmed, holding that, in pledging the certificate of deposit as collateral for the loan to their son’s company, the parents had benefitted the borrower, i.e., the company, not the owners of the company, even though the owners guaranteed the loan in them individual capacities. Id. at 112-13. To the extent the company’s assets (in excess of its liabilities) were in the defendants’ hands, the parents could recover; however, the individual owners were not otherwise personally benefitted by the pledge, and therefore no further recovery could be had from them by way of an unjust enrichment claim. Id. at 112-13.

It is true that, if owners of a limited liability company have personally guaranteed the company’s debt, and if the plaintiff has paid a portion of the company’s debt, a cause of action may or may not lie against the owners for contribution among cosureties, depending on whether the plaintiff unofficiously paid more than his or her proportionate share of a jointly owed debt. § 433.110; Beeler, 306 S.W.3d at 112-13 n. 5; Restatement of Restitution, § 84 (1937). It is also true that, if one of two secondary obligors occupies the position of a swh-surety to the other’s position of principal surety, reimbursement may be had, under certain circumstances, from the latter when the former discharges the obligation. Restatement (Thisd) of Suretyship & Guarantee, §§ 53, 59-60 (1996). However, a circuit court does not err, when, as here, it declines to advocate for the plaintiff by treating his unjust enrichment claim as one for contribution or subsuretyship. See Beeler, 306 S.W.3d at 111-12 n. 4 (holding that the trial court did not err in refusing to treat, plaintiffs claim for indemnity as one for contribution).

Thus, the trial court did not err in finding that, for the purposes of Howard’s unjust enrichment claim, the Respondents did not directly benefit by Howard’s execution of the Howard Deed of Trust as collateral for the loan made to Ganin Homes. Id.

2. Any enrichment was not unjust

The trial court also found that, even if Howard had conferred a benefit on the Respondents, Howard could not recover because any benefit was conferred “voluntarily, deliberately, and without complaint” and because Howard received “precisely what he bargained for.” As such, the court found that the Respondents were not unjustly enriched. We agree.

A venture voluntarily entered into, with known risks and with the expectation of a profit, cannot be compensated for via a claim for unjust enrichment. Jol-ley, 747 S.W.2d at 707 (holding that plaintiffs entering into an agreement with known risks precluded recovery under an unjust enrichment claim when an anticipated contingency occurred); Bierman, 147 S.W.3d at 820 (holding that, when the benefits to the defendant were created by the plaintiff in the expectation of receiving a profit, a cause of action for unjust enrichment did not lie). When a person enters into a potentially risky venture, it is simply not unjust for him to bear the adverse consequences of the risk, given that he surely would have accepted the beneficial consequences had they materialized. Jolley, 747 S.W.2d at 707; Bierman, 147 S.W.3d at 820. In other words, under such circumstances, the retention of a benefit by the defendants would not have been inequitable.

In Jolley, the plaintiffs insured had disappeared, and he was presumed dead. 747 S.W.2d at 704-05. The plaintiff agreed to settle with the presumed decedent’s wife after she had filed suit on her husband’s life insurance policy. Id. at 705. The settlement provided that the wife would repay the settlement proceeds ($250,000), plus interest and attorneys’ fees, should her husband be found alive. Id. However, the insurance company entered into no agreement with the wife’s attorney, despite knowing that he would be paid a percentage of the settlement proceeds pursuant to his contingency fee agreement with the wife. Id. at 706. The husband was found alive, and the insurance company (having exhausted its remedies against the wife but still being owed $113,000 plus interest and attorneys’ fees) sued the attorney for unjust enrichment. Id. at 705-06. The circuit court entered summary judgment for the defendant, and we affirmed. In doing so, we noted that “[t]he situation is one of a contract in which one of the parties ... was unable completely to perform. [The attorney] is a third person, not a party to the contract, and not the insurer of the promise of its client.” Id. at 706. Further, we held that, in entering into the settlement agreement, with the knowledge that the insured could have been alive, the plaintiff “assume[d] the risk of payment in order to avoid difficulty which might arise from nonpayment. In such case, the [plaintiff] is not entitled to restitution” beyond the specific protections that were built into the settlement agreement. Id. at 707.

Likewise, Howard assumed the risk inherent in his execution of the Howard Deed of Trust, with full knowledge that Ganin Homes could default on its debt and in the expectation that he would receive the benefits of the Resolution. Had the venture gone as planned, Howard would have received regular interest payments on his property, the use of which he continued to enjoy; his brother’s company would have succeeded, which was apparently a valuable consideration to Howard; and Ganin Homes would have secured the release of the Howard Deed of Trust at no cost to Howard. Just as it would not have been unjust for Howard to have reaped these benefits, it is not unjust for him to bear the adverse consequences of the risk he voluntarily undertook. See Jolley, 747 S.W.2d at 707; Bierman, 147 S.W.3d at 820.

Howard contends that the above principles of law do not apply because, in reliance on the Resolution and the personal guarantees, he mistakenly believed that the Turnbulls were required to repay him and that, as a consequence, he did not pledge his property “voluntarily” and he did not receive what he expected (repayment).

However, Howard’s alleged mistake does not permit him to recover. While a mistake of fact may affect the voluntariness of a payment, a mistake of law does not. Rather, a voluntary payment, made under a mistake of law but not fact, cannot be recovered in an unjust enrichment claim. Shrock, 447 S.W.2d at 811 (“The rule of law is well settled that where money has been voluntarily paid with full knowledge of the facts it cannot be recovered on the ground that the payment was made ... under a mistake of law.”). Here, Howard knew that the Respondents had signed no personal guarantees to him; he knew that the Resolution was not signed by the Respondents in their individual capacities (or in any capacity); he knew that there was a possibility that Ga-nin Homes would default on its debt and that the Bank would exercise its rights under the Howard Deed of Trust. That Howard was under the erroneous impression that he could enforce either the Turn-bulls’ personal guarantees (which were executed in favor of the Bank, not Howard) or the Resolution (which bound Ganin Homes, not the Respondents) is irrelevant. Howard’s mistake was one of law, not fact, and such a mistake does not insulate him from the principles stated above, which bar recovery for unjust enrichment under circumstances such as this. See Shrock, 447 S.W.2d at 811; Jolley, 747 S.W.2d at 707; Bierman, 147 S.W.3d at 820.

As such, Howard’s voluntary pledge of his property, with knowledge of the potential risks, in the expectation of a profit, and under no mistake of relevant fact, renders the principles of unjust enrichment inapplicable to the facts of this case.

Conclusion

For the reasons stated above, we deny Howard’s points on appeal and affirm the trial court’s judgment in all respects.

LISA WHITE HARDWICK and CYNTHIA L. MARTIN, JJ., concur.

      . In an appeal from a bench-tried case, we review the facts in the light most favorable to the judgment. Stahlhuth v. SSM Healthcare of St. Louis, 289 S.W.3d 662, 664 (Mo.App. E.D.2009).

      . The August 26, 2002 promissory note was not entered into evidence below, nor was it attached as an exhibit to the appeal.

      . Although they were introduced as trial exhibits, the personal guarantees were not included as exhibits to this appeal (although an unsigned portion of one of the guarantees appears as an attachment to a motion in the legal file). It is the appellant’s responsibility to include trial exhibits that are necessary to our disposition of the appeal, Rule 81.12(e), and his failure to do so results in an assumption that the guarantee documents are immaterial to the appeal. Rule 81.16(c). The guarantees, however, are clearly not immaterial: they are in fact crucial to appellant's theory of the case. Appellant's failure to attach documents that are critical to his appeal would ordinarily be grounds for dismissal. However, since we would affirm the trial court's judgment even if the guarantees had been attached to the appeal, we will exercise our discretion and address the merits.

      . "Misreliance,” in this context, means mistake of fact. Rolla Lumber Co. v. Evans, 482 S.W.2d 519, 522 n. 1 (Mo.App. 1972).

      .Howard contends that he only “conferred a benefit” when he actually paid the Bank $150,000 in exchange for a release of the Howard Deed of Trust. The contention is meritless. Howard testified that his property was worth well in excess of $150,000. Under the Howard Deed of Trust, the Bank, upon Ganin Homes’s default, could have foreclosed on the property and collected $150,000 even if Howard had not paid for the release. Thus, the fact that Howard paid the $150,000 is irrelevant, for he had already conferred a $150,000 benefit on Ganin Homes the moment he executed the Howard Deed of Trust.

      . Or, in the Turnbulls’ cases, the owners of a separate limited liability company that in turn owned a part of the limited liability company that received the loan.

      . No such facts are present here: Ganin Homes's assets are worth less than its liabilities, and Ganin Homes therefore has not (and could not) disburse left-over equity in the company to the Respondents.

      . Although subsuretyship is recognized by the Restatement (Third) of Suretyship a Guarantee, we express no opinion on whether we would recognize the theory had it been properly pled.

      . Howard also argues that Jolley does not apply because Jolley concerned a contract, whereas Howard entered into no contract with the Respondents. However, the plaintiff in Jolley had no contract with the defendant either, for the subject contract was only between the insurer and the defendant’s client. 747 S.W.2d at 705-06. The rule is that, where "a third person benefits from a contract entered into between two other persons,
        in the absence of some misleading act by the third person, the mere failure of performance by one of the contracting parties does not give rise to a right of restitution.” 66 Am.Jur. 2d Restitution and Implied Contracts § 32 (1998) (emphasis added). No misleading act on the defendant’s part was alleged in Jolley, and no such act is alleged here. Accordingly, even if the defendants benefitted from, but were not parties to, the agreement Howard made with Ganin Homes (evidenced by the Resolution), Jolley would still apply, for the defendant in that case was also a third party beneficiary of, and not a party to, the subject agreement.

      . Again, based on the Resolution, Howard may or may not have had a valid contract claim against Ganin Homes. However, unjust enrichment cannot be used to make the owners of a limited liability company liable for the company's obligations, absent circumstances that would justify piercing the company’s corporate veil. Beeler, 306 S.W.3d at 111 n. 3. Therefore, Howard cannot simply recast his potential breach of contract claim against Ganin Homes as a claim for unjust enrichment against the owner and managing members of that entity.


source: Caselaw Access Project

author: CYNTHIA L. MARTIN, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Joseph R. GAINES III, Appellant.
    No. WD 70896.
    Missouri Court of Appeals, Western District.
    May 4, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 29, 2010.
    Application for Transfer Denied Aug. 31, 2010.

      Brian R. Barjenbruch, Richard “Jake” Jacoby and Michael R. Taylor, Independence, MO, for appellant.
    Shaun J. Mackelprang and Jayne T. Woods, Jefferson City, MO, for respondent.
    Before Division One: KAREN KING MITCHELL, Presiding Judge, LISA WHITE HARDWICK, Judge and CYNTHIA L. MARTIN, Judge.
   CYNTHIA L. MARTIN, Judge.

Joseph Gaines appeals from the trial court’s judgment finding him guilty of two counts of child molestation in the first degree and one count of statutory sodomy in the first degree after a jury trial. Gaines alleges that the trial court erred: (1) in limiting the scope of his cross-examination of D.T. (“Mother”); (2) in admitting the videotaped interview of J.T.; (3) in admitting expert testimony; (4) in denying his motion for judgment of acquittal at the close of the State’s evidence; (5) in denying his motion for judgment of acquittal at the close of all evidence; and (6) in overruling his objection to the State’s closing argument. We affirm.

Factual and Procedural History

Sisters J.T. and E.T. are Gaines’s granddaughters through his adopted daughter, Mother. At the time of trial, J.T. was thirteen and E.T. was fifteen. J.T. and E.T. frequently visited Gaines and his wife at their home. When J.T. was approximately nine years old, Gaines touched the inside and outside of her vagina with his penis, fingers, and tongue. Gaines also made J.T. touch his penis with her hand. J.T. estimated that this conduct occurred thirty to forty times and generally about every two weeks at Gaines’s home. On some occasions, Gaines would take J.T. out in his truck or on his motorcycle and touch her vagina. Gaines told J.T. that Mother would go to jail if J.T. told anybody about the abuse.

One day, J.T. was watching a television show about molestation with Mother. J.T. asked Mother to explain what molestation meant. Mother explained that molestation is when “someone touches you in the wrong spots, in the private spot.” J.T. responded that Gaines had done that to her. Mother called 911. J.T. was interviewed at the Children’s Advocacy Center in St. Joseph. J.T.’s interview was videotaped.

E.T. is deaf and attended the Missouri School for the Deaf in Fulton, Missouri, where she resided during the week. The weekend following J.T.’s report to Mother, E,T. returned home. Mother informed E.T. of J.T.’s disclosure. E.T. reported that Gaines began having sex with her when she was eight or nine years old at his home. Gaines would pick E.T. up to take her to school but would instead take her to his house where he forced her to have sex with him, to look at “gross” magazines, to take off her clothes, and to allow Gaines to take pictures of her naked. E.T. was interviewed at the Children’s Advocacy Center in Columbia. Her interview was also videotaped.

Gaines was charged with two counts of first degree child molestation and two counts of first degree statutory sodomy. After a jury trial, Gaines was found guilty on both counts of child molestation and one count of statutory sodomy. Gaines was sentenced to concurrent terms of ten years imprisonment on the two counts of child molestation and a consecutive term of fifteen years imprisonment on the statutory sodomy. Gaines appeals.

Preliminarily, we note Gaines’s failure to comply with Rule 84.04 throughout his brief. In particular, the points relied on are numbered and separated differently throughout the brief. There are six points listed in the table of contents, nine points listed in the summary of points relied on, and six points addressed in the argument section. The contentions in the points vary, leaving this court to discern which point in the argument section relates to which point in the summary of points relied on. Further, each point fails to comply with Rule 84.04(d) as each fails to state the legal reason for the claim or explain why, in the context of the case, the legal reason supports the claim. Gaines’s failure to comply with the requirements of Rule 84.04 is a sufficient basis to dismiss his appeal. Moreland v. Div. of Employment Sec., 273 S.W.3d 39, 41 (Mo.App. W.D.2008). However, we offer our analysis ex gratia.

Point I

For his first point, Gaines asserts that the trial court erred in limiting the scope of Gaines’s cross-examination of Mother to topics raised on direct examination.

Standard of Review

The trial court has broad discretion in deciding the scope of cross-examination. State v. Watts, 919 S.W.2d 287, 291 (Mo.App. W.D.1996). We will not interfere absent a clear abuse of discretion. Id. “In matters involving admission of testimony, review is for prejudice, not mere error. Reversal will result only if error was so prejudicial that it deprived defendant of a fair trial.” Id. at 292.

Analysis

Section 491.070 provides that “[a] party to a cause, civil or criminal, against whom a witness has been called and given some evidence, shall be entitled to cross-examine said witness (except where a defendant in a criminal case is testifying in his own behalf) on the entire case.” “Entire case” means the whole case. State v. Gardner, 8 S.W.3d 66, 72 (Mo. banc 1999). The scope of cross-examination is not limited to matters covered on direct examination and may cover all matters within a fair purview of the direct examination. Watts, 919 S.W.2d at 291.

Gaines asked the following two questions on cross-examination of Mother: (1) whether Gaines had thirty-five foster children in his house, and (2) whether it was true that Mother told her son that E.T. was pregnant with Gaines’s child, that E.T. had a miscarriage, and that Mother had a DNA sample proving that Gaines was the father. The State objected that these questions exceeded the scope of direct examination. The trial court sustained the objections. This was error. Id. Gaines argues that the trial court’s error effectively denied him the ability to defend the charges against him. We disagree.

Although the trial court erred in sustaining the State’s objection to the cross-examination, Gaines was not prejudiced. See State v. Sayers, 58 Mo. 585 (Mo. banc 1875). At trial, when the trial court sustained the State’s objection, Gaines responded by stating that he could call Mother when he presented his case. When Gaines put on his defense, his first witness was Mother. Gaines specifically inquired of Mother about the fact that she had been adopted by Gaines. Gaines had every opportunity to question Mother regarding his history as a foster parent to thirty-five children. However, he failed to do so. Gaines did call other witnesses who testified about his history as a foster parent.

Gaines elected not to inquire of Mother when on the stand as his witness about her alleged statements to her son about E.T.’s claimed pregnancy. However, Gaines did call Mother’s son as a witness. Son testified that Mother had told him that E.T. was pregnant with Gaines’s child, that the pregnancy resulted in a miscarriage, and that Mother had a DNA sample proving that Gaines was the father.

Gaines was thus able through his casein-chief to present evidence on the only two subjects on which he had been denied the opportunity to cross-examine Mother. Gaines suggests no other subject matters about which he would have cross-examined Mother but for the trial court’s error in sustaining the State’s objection. Although Gaines concedes that he was able to present evidence on the two subjects on which he was unable to cross-examine Mother, Gaines maintains that there in an intangible value to the cross-examination of witnesses as it relates to their credibility. However, given the nature of the subject matters here, and the fact that Gaines concedes that all of the evidence he sought to introduce was put into evidence as a part of his case-in-chief, and argued to the jury during Gaines’s closing, we can discern no basis to conclude that Gaines’s inability to cross-examine Mother on the two subject matters identified prejudiced his defense.

The Supreme Court addressed a similar situation in Sayers and held that the trial court erred in precluding the defendant from cross-examining a witness on the basis that it exceeded the scope of direct examination. Id. at 586. However, the Supreme Court held the defendant was not prejudiced, as he called the witness during his case-in-chief and elicited all of the evidence that had been sought during cross-examination. Id.

Similarly, Gaines obtained all of the evidence he sought on cross-examination during his case-in-chief. Gaines was not denied his defense. Gaines was not prejudiced by the trial court’s erroneous ruling. Point one is denied.

Point II

For his second point, Gaines asserts that the trial court erred in admitting the videotaped interview of J.T. at the Children’s Advocacy Center. Gaines claims the videotape denied him his right to confrontation, was inadmissible hearsay, and improperly bolstered J.T.’s live testimony at trial.

At trial, Gaines objected to the admission of the videotaped interview by stating, “I object to it. I don’t believe there’s an indicia of reliability to this out-of-court statement.” Although Gaines did not specifically state his objection was a hearsay objection, we find the objection was sufficiently specific to apprise the trial court that inadmissible hearsay was the basis for the objection, particularly in light of the trial court’s previous finding at a pre-trial hearing that the videotaped interview had sufficient indicia of reliability to be admissible hearsay. State v. Mattic, 84 S.W.3d 161, 168 (Mo.App. W.D.2002). However, the hearsay objection is the only objection that was preserved for appellate review. Id. “ ‘The grounds asserted on appeal are limited to those stated at trial.’ ” Id. (citation omitted). Gaines may not broaden the objection or rely on a different theory than asserted at trial. Id.

Standard of Review

With respect to Gaines’s claim that J.T.’s videotaped interview was not admissible hearsay, the trial court’s decision to admit the testimony is reviewed for abuse of discretion. State v. Sprinkle, 122 S.W.3d 652, 658 (Mo.App. W.D.2003).

Gaines’s arguments that the admission of the videotaped interview violated his right to confrontation and improperly bolstered J.T.’s testimony were not raised at trial and, therefore, were not preserved. Mattie, 84 S.W.3d at 168. These arguments are only subject to plain error review. “Review of plain error under Rule 30.20 involves a two-step process. First, we must determine if the claim on its face establishes substantial grounds to find that manifest injustice or miscarriage of justice has resulted.” State v. Lewis, 243 S.W.3d 523, 525 (Mo.App. W.D.2008) (citation omitted). Not all prejudicial error can be deemed plain error. State v. Calhoun, 259 S.W.3d 53, 58 (Mo.App. W.D. 2008). “Plain error is evident, obvious, and clear error.” Id. If plain error is evident on the face of the claim, then we may proceed to consider whether or not a miscarriage of justice or manifest injustice will occur if left uncorrected. Lewis, 243 S.W.3d at 525. Where no plain error appears on the face of the claim, we should decline to exercise our discretion to review the claim. Id.

Analysis

(i) Inadmissible Hearsay

Gaines argues that although section 491.075 provides for an exception to the hearsay rule allowing admission of an out-of-court statement of a child witness under the age of fourteen, J.T.’s videotaped interview does not qualify for the exception because it lacked sufficient indicia of reliability. We disagree.

Section 491.075 provides a hearsay exception in child sexual abuse cases which states:

1. A statement made by a child under the age of fourteen relating to an offense under chapter 565, 566, 568 or 573, RSMo, performed with or on a child by another, not otherwise admissible by statute or court rule, is admissible in evidence in criminal proceedings in the courts of this state as substantive evidence to prove the truth of the matter asserted if:
(1) The court finds, in a hearing conducted outside the presence of the jury that the time, content and circumstances of the statement provide sufficient indi-cia of reliability; and
(2)(a) The child testifies at the proceedings.

Sprinkle, 122 S.W.3d at 660-61 (emphasis added). To determine the reliability of a child’s out-of-court statements for the purposes of this section, Missouri courts look to the totality of the circumstances. Id. at 661. In making this determination, the following non-exclusive factors are considered: “(1) spontaneity and consistent repetition; (2) the mental state of the declar-ant; (3) the lack of motive to fabricate; and (4) knowledge of subject matter unexpected of a child of similar age.” Id. “The lapse of time between when the acts occurred and when the victim reported them is also a factor to consider.” Id. “The trial court decides whether or not to admit the victim’s out-of-court statements based on the information provided at the hearing.” Id.

Here, the trial court held a pre-trial hearing to consider the admission of the videotaped interviews of J.T. and of E.T. After viewing the tapes and receiving testimony from the interviewers, the trial court found that J.T.’s videotaped interview was admissible but that the videotaped interview of E.T. was not, as it lacked sufficient indicia of reliability.

Gaines argues that J.T.’s videotaped interview also lacked sufficient indi-cia of reliability because it was contradicted by testimony presented at trial from J.T. and other witnesses. Gaines argument fails because it is based solely on evidence presented at trial, not evidence presented at the pre-trial hearing. Id. (holding that trial court must decide whether to admit statements based on the evidence produced at the section 491.075 hearing). The evidence presented at the pre-trial hearing reflects that J.T. informed the interviewer of the abuse spontaneously and unprompted, J.T. consistently described the details of the abuse, J.T. stated she knew the difference between the truth and a lie, and that J.T. was telling the truth. The totality of the circumstances indicates that J.T.’s statements had sufficient indicia of reliability. The trial court did not abuse its discretion in admitting J.T.’s videotaped interview.

(ii) Right of Confrontation

Gaines’s claim that the admission of the tape after J.T. testified live during the trial violated his right of confrontation is without merit. Criminal defendants have the right to confront witnesses against them pursuant to the Confrontation Clause of the Sixth Amendment, made applicable to states through the Fourteenth Amendment. Id. at 660. J.T. testified at trial. Gaines had the opportunity to confront her. There are no temporal restraints on the declarant’s appearance at trial to satisfy the Confrontation Clause as long as the declarant appears and is available for cross-examination at any point during the trial. Crawford v. Washington, 541 U.S. 36, 59 n. 9, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Prior to J.T.’s live testimony at trial, Gaines was aware of the content of her videotaped interview and that the State had been authorized by the trial court to admit the interview pursuant to section 491.075. Gaines had the opportunity to confront J.T. about the taped statement and, in fact, actually questioned J.T. regarding her taped statement during cross-examination. Gaines’s argument that his constitutional right to confront witnesses has been denied is without merit. We thus find no evident, obvious, or clear error to warrant plain error review.

(iii) Improper Bolstering

Similarly, Gaines’s claim that the admission constituted improper bolstering of J.T.’s testimony is also without merit. Improper bolstering occurs when out-of-court statements are offered solely to duplicate or corroborate trial testimony. State v. Holmquest, 243 S.W.3d 444, 449 (Mo.App. W.D.2007). Statements admitted pursuant to section 491.075 do not improperly bolster the victim’s trial testimony where they are informal and not planned as a substitute for trial testimony and, therefore, do not have the effect of duplicative testimony. State v. Bunch, 289 S.W.3d 701, 705 (Mo.App. S.D.2009). “A child victim’s out-of-court statements possess unique strengths and weaknesses and are distinct evidence from the child’s trial testimony.” Id. at 706. Gaines fails to identify any portions of the recording he claims to be improper but merely summarily concludes that the videotape was offered for the purpose of letting the jury hear from J.T. a second time. This bare allegation is insufficient to demonstrate a right to relief. Id. There is no evident, obvious, or clear error, and therefore, we will not afford Gaines’s contention plain error review.

The trial court did not abuse its discretion in admitting the videotaped interview of J.T. Point two is denied.

Point III

For his third point, Gaines asserts that the trial court erred in admitting the expert testimony of Joyce Estes. Gaines contends that the trial court erred in admitting Estes’s testimony because it: (1) lacked sufficient factual foundation in that her testimony was based on her review of J.T.’s videotaped statement and the police reports and not on actual contact with J.T.; and (2) invaded the province of the jury.

Standard of Review

We review a trial court’s decision whether to admit evidence for an abuse of discretion. State v. Allen, 274 S.W.3d 514, 520 (Mo.App. W.D.2008). The same standard of review governs the admission of expert testimony. Id.‘A trial court’s decision to admit evidence is an abuse of discretion when it is clearly against the logic of the circumstances then before the court, and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration.’ ” Id. (citation omitted).

Analysis

The State called Estes to testify regarding why some children delay in reporting abuse and why some children maintain contact with their abuser. Prior to Estes taking the stand, Gaines objected stating, “I anticipate she will testify to two things. One, why the kids report late. She will try to get this in, that kids tell the truth. I’ll object to anything about her vouching for the truthfulness of other children.” The trial court deferred ruling on the objection but noted that Gaines put everyone on notice. After Estes testified to her credentials, the State asked her, “Can you tell us why some children delay in disclosing abuse?” Gaines objected stating, “I would object to her testifying. Her knowledge of this goes to one video. She hasn’t done anything and she’s going to testify in a general manner why kids report late and not about this case, why this child might have reported late.” The trial court overruled the objection and stated, “I’ll overrule. There’s been demonstration of sufficient foundation to show [Estes] has the educational background to testify, and based on her knowledge and working with abused children [sic]. And she can testify in general [sic] why children might report late.”

In his motion for judgment of acquittal or in the alternative, motion for new trial, Gaines claims that the trial court erred in admitting Estes’s testimony only on the basis that there was insufficient foundation for the testimony. In his post-trial motion, Gaines did not allege that the trial court erred in admitting the testimony of Estes’s on the basis that it invaded the province of the jury. Thus, Gaines’s argument that Estes’s testimony invaded the province of the jury was not preserved for appeal. State v. Pennington, 24 S.W.3d 185, 188 (Mo.App. W.D.2000). Gaines unpreserved argument is nonetheless disposed of by our analysis of Gaines’s alternative contention that Estes’s testimony lacked foundation.

In child molestation cases, there are typically two types of expert testimony: generalized and particularized. An expert gives generalized testimony when [she] describes the general behaviors and characteristics commonly found in children who have been abused. This type of evidence is admissible. On the other hand, an expert gives particularized testimony when [she] gives testimony regarding the specific victim’s credibility. This type of evidence is inadmissible because it usurps the jury’s province to determine the credibility of witnesses.

State v. D.W.N., 290 S.W.3d 814, 817 (Mo. App. W.D.2009) (citations omitted).

At trial, the State established that Estes had been the executive director of the Northwest Missouri Children’s Advocacy Center for five years and had worked there for fifteen as a counselor. Estes testified regarding her professional memberships and her educational background. Estes testified that she is a licensed clinical social worker and that her specialty is in child abuse. Estes testified that she had been working with child abuse for twenty five years and has had over 600 hours of specialized training. She explained in a general way some of the reasons why children delay in reporting abuse and the disclosure process. Estes thus only offered generalized testimony. She did not attempt to provide particular testimony about why J.T. delayed in her reports. Gaines’s objection that Estes’s testimony lacked foundation because she had not actually talked with J.T. is, therefore, without merit, as the objection incorrectly presumed the intent of Estes’s testimony was to provide a specific explanation about why J.T. delayed reporting her abuse. A specific discussion with J.T. was not required to establish foundation for Estes’s generalized testimony. Moreover, as Estes offered no specific testimony about why J.T. delayed reporting, her testimony did not usurp the jury’s province to determine the credibility of witnesses. Gaines’s arguments are without merit.

The trial court did not abuse its discretion in admitting the expert testimony of Estes. Point three is denied.

Point IV

For his forth point, Gaines asserts that the trial court erred in denying his motion for judgment of acquittal at the close of the State’s evidence. This point is denied as it was waived by Gaines.

A defendant waives any claim of error in the denial of his motion for judgment of acquittal at the close of the State’s evidence when he subsequently presents evidence on his behalf. State v. May, 71 S.W.3d 177, 182 (Mo.App. W.D.2002).

Here, after the State presented its case, Gaines filed his motion for judgment of acquittal at the close of State’s evidence. When his motion was denied, Gaines proceeded to present evidence in support of his case. By doing so, Gaines effectively waived any claim of error in the trial court’s denial of his motion for judgment of acquittal at the close of the State’s evidence.

As Gaines waived this claim of error, Point four is denied.

Point V

For his fifth point, Gaines alleges that the trial court erred in denying his motion for judgment of acquittal at the close of all the evidence. Gaines alleges that: (1) the State failed to prove a necessary element of Count I, in that the State did not introduce sufficient evidence to establish that Gaines had “sex” with E.T.; (2) the evidence was insufficient to establish the location, date, time, and specific conduct of Gaines; (3) J.T. did not make an in-court identification of Gaines; and (4) there was no evidence that Gaines committed the alleged acts for the purpose of gratifying his own sexual desire.

Standard of Review

“In determining the sufficiency of the evidence, all evidence and inferences reasonably drawn from the evidence are viewed in the light most favorable to the verdict, and contrary evidence and inferences are disregarded.” Id. at 183. Our review of the sufficiency of the evidence is limited to determining whether the evidence was sufficient for reasonable jurors to have found the defendant guilty beyond a reasonable doubt. Id. “Credibility of witnesses and inconsistencies in testimony are for the jury to consider.” Id.

Analysis

(i)Count 1

In Count I, Gaines was charged with child molestation of E.T. in the first degree. Pursuant to section 566.067, “[a] person commits the crime of child molestation in the first degree if he or she subjects another person who is less than fourteen years of age to sexual contact.” “Sexual contact” is defined as “any touching of another person with the genitals or any touching of the genitals or anus of another person, or the breast of a female person, or such touching through the clothing, for the purpose of arousing or gratifying sexual desire of any person.” Section 566.010(3).

E.T. testified that Gaines forced her to have sex. E.T. testified that Gaines raped her, that Gaines touched her vagina with his hands and penis, and that “it was my first time and grandpa took that.”

Gaines concedes that E.T.’s testimony that Gaines touched her vagina with his hand and with his penis meets the statutory definition of sexual contact. However, Gaines contends that E.T.’s testimony required corroboration, and, standing alone, was insufficient to support his conviction, because E.T. gave contradictory descriptions as to what constituted “having sex.” We disagree.

As we stated above, the “[cjredi-bility of witnesses and inconsistencies in testimony are for the jury to consider.” May, 71 S.W.3d at 183. Moreover, “[generally, in sexual offense cases the victim’s testimony alone is sufficient to sustain a conviction even if uncorroborated.” Sprinkle, 122 S.W.3d at 666. Gaines offers no authority for the proposition that merely because E.T.’s testimony about what constitutes “having sex” was inconsistent, her uncorroborated testimony about Gaines’s conduct that did fall within the statutory definition of “sexual contact” could not independently support his conviction. We conclude that E.T.’s testimony was sufficient to support Gaines’s conviction of child molestation in the first degree. Any inconsistencies in E.T.’s testimony were to be weighed by the jury as it assessed E.T.’s credibility.

(ii) Venue/Evidence of Specific Conduct

Gaines contends that the evidence was insufficient to establish location, date, time, and specific conduct of Gaines. Gaines claims: (1) that the evidence was insufficient to find that Gaines engaged in criminal conduct in Atchison County, Missouri; (2) that E.T.’s testimony was inconsistent with regard to her description of sex and that E.T. never specified which town she lived in or where the acts occurred; and (3) that J.T.’s testimony was vague and inconsistent regarding whether or not Gaines penetrated her and that J.T. did not testify to a specific date when the abuse occurred. These claims are without merit.

Although Gaines frames the first part of this argument in terms of the sufficiency of the evidence, in fact, Gaines is attempting to inject an unpreserved, waived venue argument. The Supreme Court addressed a similar issue in State v. Taylor, where it stated, “[v]enue is not ‘jurisdictional.’ Venue is not an element of the offense. An objection to venue must be presented, and ruled on, prior to trial.” 238 S.W.3d 145, 146 (Mo. banc 2007). In Taylor, the victim testified that Taylor raped her in the city of St. Louis but that she was unsure of the exact location. Id. at 147. The Court held that location is not an essential element of the crime of forcible rape. Id. at 148. Thus, the State did not need to prove location beyond a reasonable doubt. Id. In so finding, the Court noted that correct venue is an important procedural right provided by the Missouri Constitution. Id. at 149. However, the venue requirement is not absolute and can be waived. Id. Similarly, if Gaines believed the venue for his trial was incorrect, then he was- required to timely object. Id. A case can be tried even though venue is otherwise incorrect. Id. As in Taylor, location is not an essential element to the crime of child molestation in the first degree or statutory sodomy in the first degree. The State was not required to prove Gaines’s conduct occurred in Atchison County. Because Gaines failed to challenge venue prior to trial, his objection is waived and is not preserved for our review.

In any event, the record reflects that J.T. testified that the conduct occurred in the bedroom of Gaines’s house in Tarkio and in the basement bedroom and bathroom of Gaines’s house in Fairfax. J.T. testified that Gaines molested her more than once in Tarkio. E.T. testified that Gaines had sex with her and raped her at his house in Fairfax when she was nine or ten. E.T. also testified that Gaines had sex with her in a town which started with a “T” and in Rockport. All three of these towns are located in Atchison County, Missouri. As such, Gaines’s claim that the record fails to support that he eommit-ted criminal conduct in Atchison County is without merit.

In addition to improvidently arguing venue, Gaines claims there was insufficient evidence of his specific conduct. Gaines reargues that E.T.’s testimony was inconsistent. We have already addressed this allegation and concluded that any inconsistencies in E.T.’s testimony were to be weighed by the jury. Gaines also argues that J.T. inconsistently testified about whether he penetrated her. The alleged inconsistencies in J.T’s testimony regarding penetration were also properly submitted to the jury for its consideration. May, 71 S.W.3d at 183. In any case, penetration is not a required element of the offense of child molestation in the first degree or statutory Sodomy in the first degree. J.T.’s inconsistent testimony on this point did not involve, therefore, an essential element of the crimes with which Gaines was charged.

Finally, Gaines objects that neither J.T. nor E.T. testified about specific dates on which their abuse occurred. However, time is not essential in child sexual abuse cases because it can be impossible to ascertain specific dates of the sexual abuse, particularly when, as here, there is a continuous series of abusive acts. Sprinkle, 12.2 S.W.3d at 660. The State need only prove the offense was committed on any day before the date of the information and within the period of limitation. Bunch, 289 S.W.3d at 703.

(iii) In-court Identification of Gaines

Gaines contends that the judgment convicting him of counts II and IV (those relating to J.T.) should be reversed because J.T. did not make an in-court identification of Gaines. His argument is without merit.

The evidence at trial must show defendant was the person who committed the crime, but an in-court identification is not always required. The procedure used at trial to identify the defendant is left to the discretion of the trial court. Each case must be examined on its own facts looking at the totality of the circumstances.

State v. Baker, 23 S.W.3d 702, 708 (Mo. App. E.D.2000) (citations omitted) (where victim never physically indicated defendant’s presence in the courtroom, but there was sufficient evidence to identify defendant as the accused).

Although J.T. did not identify Gaines by pointing at him, when asked if Gaines was in the courtroom, J.T. responded that he was and identified him as wearing stripes. Further, E.T. pointed at Gaines when she identified him. Mother also identified Gaines as did several of his own character witnesses. Looking at the totality of the circumstances we find no ambiguity as to Gaines’s identity.

(iv) Arousing or Gratifying the Sexual Desire of Any Person

Gaines contends that there was insufficient evidence that the alleged acts were done with the purpose of arousing or gratifying his sexual desire. Although Gaines quotes the language of the applicable statute correctly requiring conduct engaged in “for the purpose of arousing or gratifying the sexual desire of any person,” Gaines incorrectly argues that the purpose of his gratification was a necessary element of the crimes charged.

Pursuant to section 566.067, “[a] person commits the crime of child molestation in the first degree if he or she subjects another person who is less than fourteen years of age to sexual contact.” “Sexual contact” is defined as “any touching of another person with the genitals or any touching of the genitals or anus of another person, or the breast of a female person, or such touching through the clothing, for the purpose of arousing or gratifying sexual desire of any person.” Section 566.010(3) (emphasis added). “A person commits the crime of statutory sodomy in the first degree if he has deviate sexual intercourse with another person who is less than fourteen years old.” Section 566.062. “Deviate sexual intercourse” is defined as “any act involving the genitals of one person and the hand, mouth, tongue, or anus of another person or a sexual act involving the penetration, however slight, of the male or female sex organ or the anus by a finger, instrument or object done for the purpose of arousing or gratifying the sexual desire of any person or for the purpose of terrorizing the victim.” Section 566.010(1) (emphasis added).

Sections 566.010(1) and (3) do not require proof that the culpable conduct was engaged in for the purpose of the defendant’s gratification. Rather, there need only be evidence that the culpable conduct was engaged in for the purpose of someone’s gratification. See In the Interest of J.A.H., 293 S.W.3d 116, 121 (Mo. App. E.D.2009) (no evidence that conduct was for the defendant’s or victim’s arousal or gratification); State v. McMeans, 201 S.W.3d 117, 121 (Mo.App. S.D.2006) (sufficient evidence that defendant’s conduct was for the purpose of arousing or gratifying the sexual desire of 22-month old victim). Gaines’s gratification was not an element that the State was required to prove. As such, Gaines’s point is without merit.

Even if Gaines’s argument could be construed as a contention that there was insufficient evidence his conduct was engaged in for the purpose of gratifying any person, his claim would fail. Intent is derived from a defendant’s mental state and is usually inferred from circumstantial evidence. State v. Love, 134 S.W.3d 719, 722 (Mo.App. S.D.2004). The language “for the purpose of arousing or gratifying sexual desire” is meant “to exclude innocent contacts from being deemed criminal conduct.” Id. at 723. In assessing this intent, a fact-finder looks at the circumstances of the particular case. Id.

At trial, E.T. testified that Gaines made her look at “gross” magazines, books and pictures, requested that she take off her clothes, took pictures of her naked and told her not to tell anyone. J.T. testified that Gaines also told her not to tell and that if she did, her Mother would go to jail. J.T. testified that during the alleged conduct that Gaines would ask her, “Does that feel good?” Such conduct clearly indicates that Gaines intent was not innocent. There was sufficient evidence from which the jury could have found beyond a reasonable doubt that Gaines’s conduct was for the purpose of sexual gratification.

Point five is denied.

Point VI

For his sixth and final point, Gaines contends that the circuit court erred in overruling his objection to the State’s rebuttal argument because the State argued facts that were not in evidence. In particular, Gaines complains that the State improperly made reference to the nature and frequency of Mother’s contact with E.T.

Standard of Review

The trial court has broad discretion in controlling closing argument, and we review the trial court rulings during closing argument for abuse of discretion. State v. Forrest, 183 S.W.3d 218, 226 (Mo. banc 2006). “ ‘[C]ounsel is traditionally given wide latitude to suggest inferences from the evidence on closing argument.’ ” Nelson v. Waxman, 9 S.W.3d 601, 606 (Mo. banc 2000) (quoting Moore v. Mo. Pac. R.R. Co., 825 S.W.2d 839, 844 (Mo. banc 1992)). “This is so ‘even though the inferences drawn are illogical or erroneous.’ ” Id. (citations omitted).

Analysis

In its rebuttal, the State argued: [E.T.] spends, at a minimum, 10 out of every 14 days in Fulton, Missouri, far away from the influence of her mother. You saw what the communication was like between her and I. Is there any evidence the communication was better between her and [Mother],

Gaines objected that the State’s argument improperly commented on Mother’s inability to influence E.T. to wrongfully accuse Gaines because the argument was unsupported by the evidence. The objection was overruled by the trial court.

The State’s rebuttal was supported by the evidence. The record reflects that both J.T. and E.T. testified that E.T. only came home on some weekends and that the rest of the week E.T. was at the Missouri School for the Deaf in Fulton.

Moreover, the State’s argument was directly responsive to Gaines’s theory of defense that Mother manipulated E.T. to make accusations against Gaines. The State is entitled to contest a theory suggested by the defendant. State v. Sanchez, 186 S.W.3d 260, 265 (Mo. banc 2006) (the State has considerable leeway to make retaliatory arguments at closing and may retaliate to an issue raised by the defense even if the prosecutor’s comment would be improper).

The State’s closing argument was not improper. It was supported by the evidence and it rebutted the defense’s argument that Mother improperly manipulated her children. The trial court did not abuse its discretion in overruling Gaines’s objection. Point six is denied.

Conclusion

We affirm the judgment of the trial court.

All concur.

      . All statutory references are to RSMo 2000 as supplemented unless otherwise indicated.

      . The statements attributed to Mother were not truthful.

      . Gaines relies on Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), a case referenced in oral argument, although not cited in his brief. Delaware is distinguishable. The State does not contend, nor do we suggest, that Gaines had an obligation to demonstrate that the trial court’s error was outcome determinative. Having said that, Gaines was obliged to demonstrate meaningful prejudice by virtue of the error. He has not done so.

      . In arguing this point, Gaines relies solely on the argument he set forth in support of point four. We thus address that argument in our analysis of point five.


author: MARY K. HOFF, Judge.

text:
    Laurence EPSTEIN and Frank L. Root, Individually and as Representatives of a Class of The Owners of Certain Condominiums Within Villa Dorado Condominiums, Respondents, v. VILLA DORADO CONDOMINIUM ASSOCIATION, INC., Appellant.
    No. ED 93467.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 4, 2010.

      Ira Michael Berkowitz, Marvin J. Nodiff, Co-Counsel, St. Louis, MO, for Appellant.
    Steven W. Koslovsky, Maryland Heights, MO, for Respondent.
   Opinion

MARY K. HOFF, Judge.

Villa Dorado Condominium Association, Inc. (Association) appeals from the trial court’s judgment, following a bench trial on stipulated facts, in favor of Laurence Epstein and Frank L. Root (collectively referred to as Owners) in their action for declaratory judgment and injunctive relief. On appeal, Association argues the trial court erred in (1) granting judgment in favor of Owners and holding that the cost of elevator repairs must be assessed exclusively against those units in buildings that have elevators, rather than to all units in Villa Dorado Condominium (Condominium) as provided in Section 448.080, RSMo 2000, of the Missouri Condominium Property Act (MCPA) and Section 448.3-115 of the Missouri Uniform Condominium Act (MUCA) and the recorded governing documents of Association; (2) granting judgment in favor of Owners as class representatives; and (3) awarding Owners attorney’s fees. We need only address Point II. Finding the trial court lacked jurisdiction to enter judgment in favor of Owners on behalf of all the owners of units not served by elevators when the trial court did not certify such as a class, we reverse and remand for proceedings consistent with this opinion.

Factual and Procedural Background

Owners filed a suit for declaratory judgment and injunctive relief against Association for adoption of a special assessment to undertake elevator repairs within Condominium. In the declaratory judgment count, Owners prayed that the trial court enter a judgment declaring the assessment against Owners and other class members, consisting of all unit owners not served by elevators, illegal, invalid, and void. The Owners further requested that the assess-raents be rescinded, any assessments refunded, together with interest and costs for attorney’s fees. In the injunctive relief count, the Owners prayed that the trial court enter a permanent injunction against Association and its agents from attempting to assess the cost of elevator repair or any other limited common element from Owners or any member of the class. The trial court tried the issues presented by the declaratory judgment and injunctive relief action based on stipulated facts submitted by the parties. The stipulated facts are as follows:

1. [Condominium] is a residential community located in St. Louis County. It consists of 264 total units in 45 separate buildings. Of these approximately 264 units approximately 72 are located within 9 buildings equipped with elevators. The remaining approximately 192 units are located in buildings which do not have elevators.
2. In order to use one of the elevators, a key is required. Keys are only issued to owners of units in the 9 buildings with elevators.
3. The Condominium was created under and is subject to the [MCPA] and certain applicable provisions of the [MUGA],
4. The Amended and Restated Condominium Declaration For The Villa Dora-do Condominium Association, dated March 9, 1995, and recorded at Book 10475, Page 450 of the St. Louis County records, is attached hereto and incorporated by reference herein.
5. Plaintiff Laurence Epstein is the owner of a condominium unit known and numbered as 11835 Cresta Verde Drive. Plaintiff Frank L. Root previously owned a condominium unit known and numbered as 11843 Cresta Verde Drive. Neither of these units is located within a buildings (sic) served by an elevator.
6. Defendant [Association] is the unit owners association of the Condominium and is organized as a Missouri nonprofit corporation. It acts through its board of Managers.
7. In April, 2008, the Board voted to undertake certain repairs to the elevators within the buildings described above. The repairs are a common expense. The estimated cost of these elevator repairs was $351,000.
8. In order to pay for these repairs, the Board voted to make a special assessment against all units within the Condominium including those within buildings not served by an elevator. This special assessment was made in April, 2008, in the following amounts:
G-2 2 Bedroom Units $1,145.00
G-3 3 Bedroom Units $1,395.00
G-3E 3 Bedroom (W/ elevator) Units $1,479.00
T-3 3 Bedroom Units $1,494.00
T-3R 3 Bedroom Units $1,589.00
T-3R4 3 Bedroom Units $1,653.00
T-4 3 Bedroom Units $1,770.00
9.These special assessments were made to Plaintiffs and their respective units.

Upon submitted briefs, the trial court issued its judgment, which held that the special assessment was illegal, invalid, and void as to all owners in buildings without elevators, and ordered Association to refund all assessments collected from such units. The trial court further held that Association was permanently enjoined from taking further action to enforce said assessment. The trial court ordered Association to pay Owners’ attorney’s fees in the amount of $2,500. This appeal followed.

Discussion

Initially, we address the issue of our jurisdiction over this appeal in light of the Supreme Court’s recent holding in J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249, 251 (Mo. banc 2009). In Webb, the court held that Missouri recognizes two kinds of jurisdiction: subject matter jurisdiction and personal jurisdiction. Id. at 253. “[Pjersonal jurisdiction refers quite simply to the power of a court to require a person to respond to a legal proceeding that may affect the person’s rights or interests.” Id,. When a court says that it lacks personal jurisdiction, it means simply that the constitutional principle of due process bars it from affecting the rights and interests of a particular person. Id. A court obtains jurisdiction over a plaintiff by the filing of a petition, which then continues through all stages of litigation. Manning v. Fedotin, 64 S.W.3d 841, 848 (Mo.App. W.D.2002).

In their First Amended Petition (Petition), Owners sought an order certifying them as “representatives of a class of owners of condominiums within Villa Dora-do who reside in buildings which are not served by elevators.... The proposed class members are so numerous as to make joinder of all members impracticable. There are questions of law and fact common to the class. The claims of [Owners] are typical of the claims of the class. [Owners] will fairly and adequately protect the interests of the class.”

Before the trial court can certify a case for class action, pursuant to Rule 52.08, all the requirements of the rule must be satisfied. Dale v. DaimlerChrysler Corp., 204 S.W.3d 151, 164 (Mo.App. W.D.2006). As to these requirements, the party seeking class certification has the burden of proof. Id. Rule 52.08, which governs class actions, states in pertinent part:

(c) Determination by Order Whether Class Action to Be Maintained — Notice — Judgment—Actions Conducted Partially as Class Actions.
(1) As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this Rule 52.08(c)(1) may be conditional and may be altered or amended before the decision on the merits.
(2) In any class action maintained under Rule 52.08(b)(3), the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that: (A) the court will exclude the member from the class if requested by a specified date; (B) the judgment, whether favorable or not, will include all members who do not request exclusion; and (C) any member who does not request exclusion may, if desired, enter an appearance through counsel.

Rule 52.08. Pursuant to Rule 52.08(c)(1), certification of a class action must be determined by court order. Here, however, the trial court never issued an order certifying a class such as that requested by Owners in their Petition. Additionally, nothing in the record indicates that the unit owners proposed as part of the class received proper notice as required by Rule 52.08(c)(2).

The requirements of Rule 52.08 have been carefully drafted to take into consideration the fact that class actions are a procedural exception to the general principle of jurisprudence that one is not bound by a judgment in personam entered in litigation to which he was not designated as a party or made a party by service of process or entry of appearance. Dale, 204 S.W.3d at 164. As Missouri courts have consistently held, the requirement of Rule 52.08 are not merely technical or directory, but mandatory. Id.; Beatty v. Metropolitan St. Louis Sewer Dist., 914 S.W.2d 791, 795 (Mo. banc 1995); State ex rel. Niess v. Junlcins, 572 S.W.2d 468, 470 (Mo. banc 1978); Moore v. City of Pacific, 534 S.W.2d 486, 493 (Mo.App.1976). Beyond the request in the Petition, the record is devoid of any evidence introduced at any time during the lawsuit that would indicate the trial court considered class issues or that the requirements of Rule 52.08 were established. Because there was never proper class certification under Rule 52.08, the trial court erred when it extended the judgment to parties not named in the suit. Beatty, 914 S.W.2d at 795-96.

Further, it was error under both Section 527.110 and Rule 87.04 to extend the judgment to those unit owners not a party to the case. Section 527.110 and Rule 87.04 provide, in pertinent part, that “[w]hen declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceedings.”

Here, all unit owners not served by elevators were not made parties to the proceedings; however, any declaration made by the trial court affected these owners directly, and therefore, all owners without elevator access had an obvious interest in any judicial declaration regarding the elevators, rendering them an indispensable party to the trial-court proceeding. See Clubhouse at Fairway Pines, L.L.C. v. Fairway Pines Estates Owners Ass’n, 214 P.3d 451 (Colo.App.2008); Ceno v. Hilroc Condominium Unit Owners Ass’n, Inc. Not Reported in N.E.2d, 2004 WL 529106 (Ohio App. 8 Dist., 2004). As a result, we do not reach the merits of the case.

Conclusion

The judgment is reversed and remanded for the trial court to allow the Owners an opportunity to join parties or to comply with the requirements of Rule 52.08 for class certification.

GLENN A. NORTON, Presiding Judge and LAWRENCE E. MOONEY, Judge, concur.

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

      . Given our disposition of the jurisdictional issue, Owners' motion for attorney's fees and Association’s motion to dismiss, taken with the case, are denied as moot.

      . In Beatty, the Missouri Supreme Court stated as follows with respect to whether a party, purportedly a class representative, can request relief to all other similarly situated individuals, not only those named in the suit:
      Whether this type of an action is suited for class action procedure is certainly worthy of consideration. Such a determination, however, must occur in the proper course of a lawsuit. Plaintiffs did not establish either that this was a proper case for class certification or that they were proper class representatives pursuant to Rule 52.08.... It was error for the trial court to order relief concerning individuals and entities who were not parties to the case. 914 S.W.2d at 795-96.

      . In Hardware Center, Inc. v. Parkedge Corp., 618 S.W.2d 689, 694 (Mo.App. E.D. 1981), this court, in discussing the Declaratory Judgment Act, Section 527.010, et. seq., stated: "[t]he Act does not enlarge the jurisdiction of the court over subject matter or parties ... It merely opens the doors of the court to certain potential defendants or plaintiffs at a stage prior to that justifying an action for other traditional relief.”

      . In their entirety. Section 527.110 and Rule 87.04 read as follows:
      When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceedings. In any proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party, and shall be entitled to be heard, and if the statute, ordinance or franchise is alleged to be unconstitutional, the Attorney General of the state shall also be served with a copy of the proceeding and be entitled to be heard.

      .Other jurisdictions have confronted very similar factual situations and held that it was reversible error for the trial court to render a declaratory judgment in the absence of all necessary and indispensable parties.
      In Cerio, individual property owners filed suit against a condominium association seeking a declaratory judgment regarding whether a special assessment could be imposed on the entire association to repair balconies that only certain unit owners could access. Cerio, 2004 WL 529106, *1. The individual property owners argued that the balconies were "limited common areas” and therefore outside the scope of a special assessment to all owners.
        Id. The trial court found the balconies to be "limited common areas” and permanently enjoined the association from placing any liens on the property or pursuing any other remedy for the collection of assessments for the balcony repairs. Id. On appeal, the Court of Appeals of Ohio held that the declaratory judgment was void unless all necessary parties were joined. Id. at *3. In so holding, the court cited to a provision in Ohio's Declaratory Judgment Act, identical to Missouri's, that provides "all persons who have or claim any interest that would be affected by the declaration shall be made parties to the action or proceeding.” Id. at *2. The court concluded that any judgment rendered would affect the legal interests and claims of those unnamed unit owners and, therefore, their inclusion in the action was required to avoid "piecemeal decisions in numerous cases." Id. The court reversed the judgment and remanded the case to the trial court for joinder of all necessary parties. Id.

      Similarly, in Clubhouse at Fairway Pines, L.L.C., the Colorado Court of Appeals determined lot owners in a development were indispensable parties in an action where a golf club facility asserted breach of the declaration against the owners association. Clubhouse at Fairway Pines, L.L.C., 214 P.3d at 456. The court found that any judgment rendered would affect the owners' "club dues” and because its interpretation of the declaration would run with the land, it would affect all owners, making them indispensable parties. Id. at 454. The court reversed the trial court's judgment for failure to join, as indispensable parties, the lot owners who belonged to the Association, vacated the attorney's fees order, and remanded for further proceedings. Id. at 457.