author: LAURA DENVIR STITH, Judge.

text:
    STATE of Missouri, Respondent, v. Hosea J. EDWARDS, Appellant.
    No. WD 56953.
    Missouri Court of Appeals, Western District.
    Aug. 22, 2000.
    Motion For Rehearing and/or Transfer to Supreme Court Denied Oct. 3, 2000.
    Application for Transfer Denied Dec. 5, 2000.

      Marc R.H. Joseph, Kansas City, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Krista D. Boston, Asst. Atty. Gen., Jefferson City, for respondent.
    Before Presiding Judge HAROLD L. LOWENSTEIN, Judge LAURA DENVIR STITH and Judge THOMAS H. NEWTON.
   LAURA DENVIR STITH, Judge.

Hosea Edwards was convicted of first-degree assault and armed criminal action for stabbing his girlfriend with a knife, and was sentenced as a prior and persistent offender to seven years imprisonment for first-degree assault and fifteen years imprisonment for armed criminal action. On appeal, he argues that the trial court committed reversible error in admitting a tape and transcript of the victim’s 911 call for help into evidence, as it was admitted for its truth despite the fact that it contained hearsay identifying Defendant as the assailant, and allegedly did not fit within any hearsay exception. Defendant also argues that the court erred in permitting the State to introduce two knives found at the scene into evidence despite the fact that neither was directly connected to the stabbing of the victim.

We find that the 911 tape and transcript themselves were properly qualified as business records, and that the content of the 911 tape was admissible for its truth under the excited utterance exception to the hearsay rule. We further find that the admission of the knives found by the police at defendant’s and the victim’s home shortly after the crime was not reversible error despite the failure of police to definitively tie them to the crime. Accordingly, we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

Viewed in the light most favorable to the verdict, the following evidence was adduced: At approximately 2 a.m. on November 15, 1997, a woman placed a 911 emergency call to the Kansas City, Missouri Police Department. In an excited voice and while trying to regain her breath, her conversation with the 911 operator was as follows:

911 OP: 911, dis-
Caller: I need the, I need the police at 3924 Forest. I need an ambulance.
911 OP: What’s going on?
Caller: I’ve been cut.
911 OP: Who cut you?
Caller: Uh, Hosea Edwards.
911 OP: Okay. Is he still there?
Caller: Yes, he is.
911 OP: Okay, what does he look like?
Caller: He’s about 5’8”, 5’9”.
911 OP: What’s he wearing?
Caller: Right now he’s wearing underwear. And uh-
911 OP: Okay, what’s your name, ma’am?
Caller: Lily Haney.
911 OP: Okay. Is that a house or an apartment?
Caller: It’s a house. 3924 Forest.
911 OP: Okay. What’s your phone number there?
Caller: 561-[XXXX]
911 OP: Okay, we’ll get officers and paramedics out there.
Caller: Thank you.

Within three minutes after learning of the 911 call, Officer Brian Hayes and two other Kansas City, Missouri police officers arrived at 3924 Forest, the address given in the 911 call. A woman was standing on the front porch. The officer was asked at trial whether the woman had identified herself as Lillie Haney, but an objection to this question based on hearsay was sustained. However, the officer was permitted to testify that the woman was waiting for them on the porch of the house indicated in the 911 call and that she told the officers that she had been cut. Officer Hayes saw a four-by-six inch cut on her left shoulder which he described at trial as “deep and open” but not bleeding. He also observed a small laceration to the palm of her right hand and swelling over her right eye. When asked at trial what her demeanor had been when the officers arrived, Officer Hayes testified as follows:

Officer: She was - for the seriousness of her injury, she was pretty calm and calm with us as far as trying to help.
Counsel: So she was cooperative?
Officer: Yeah. She was cooperative.
Counsel: And was she upset or?
Officer: She was upset. She wasn’t irrational, distressed, not cooperating with us. She was able - letting us do our job.
Counsel: Okay. And was she - when she was talking, what was her voice like?
Officer: It was calm. It wasn’t irrational.
Counsel: Okay. Was it loud?
Officer: Yeah. It was loud. It was loud.

When the ambulance arrived, one officer remained with the victim, while Officer Hayes and the other officer entered the house and went upstairs. They found only one other person in the house, a man. He was standing in the middle of one of the upstairs bedrooms. They put him in handcuffs and placed him in the patrol car, under arrest. He was identified as the Defendant, Hosea Edwards. Defendant later signed a waiver of his Miranda rights and gave a statement to police, in which he admitted that he had a verbal altercation with Ms. Haney that night, and admitted he had been very intoxicated and later had passed out. He said he had no memory of cutting her with the knife, but when he woke up he saw that she had been cut.

In the meantime, the ambulance attendants examined the victim and decided that she needed to be placed into the ambulance for immediate transport to the hospital because of the seriousness of her injuries. Officer Hayes followed the ambulance to the hospital. He took photographs of her injuries and spoke with her for about 15 minutes as she was being attended in the emergency room. The conversation took place about 40 minutes from the time that the police first arrived at the house. Officer Hayes was unable to testify as to much of his conversation with the victim because counsel for Defendant objected to the officer’s repetition of most of her statements to him as hearsay. The officer did note that she gave him permission to search the house at 3942 Forest.

After talking with the victim, Officer Hayes and other officers returned to 3942 Forest and searched the premises. The detectives collected a variety of items with apparent blood spots on them, including two bed sheets, a pillow case, one roll of plastic trash bags, and an empty one-liter bottle of Pepsi. One of the detectives also saw a red streak that appeared to be blood on the right-hand side of the wall going up the second flight of stairs, and the detectives found apparent blood spots on the telephone in the bedroom where Defendant was found. They also found a silver-colored knife with a bent blade that appeared to have blood on it on the lower shelf of a coffee table in the living room, and took it. In the kitchen, the detectives found and collected a large kitchen knife with a black handle among other utensils and dishes in the sink. There was no blood on the kitchen knife. Neither of the knives was tested for fingerprints nor was any attempt made to match them with the laceration.

Defendant was charged with one count of first-degree assault in violation of Section 565.050 RSMo.1994 and one count of armed criminal action in violation of Section 571.015 RSMo.1994. Ms. Haney refused to testify at trial, invoking her Fifth Amendment privilege against self-incrimination, despite being subpoenaed by Defendant. Over defense counsel’s objection, the State was permitted to introduce the 911 tape and a transcript of the tape at trial, based on the theory that the tape was a business record and the statements on the tape fell within the “excited utterances” exception to the hearsay rule. The State was also permitted to introduce the bloody knife found in the living room and the kitchen knife found in the sink, over objections that they had not been tied to the victim’s injuries since they had not been tested for fingerprints nor had the blood on the living room knife been tested to see whether it belonged to the victim.

The jury found Defendant guilty on both counts. He was sentenced as a prior and persistent offender to seven years imprisonment on the first-degree assault charge and fifteen years imprisonment on the armed criminal action charge. This appeal followed.

II. STANDARD OF REVIEW

We review the trial court’s judgment “ ‘for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial.’ ” State v. Tokar, 918 S.W.2d 753, 761 (Mo. banc 1996) (citation omitted). Our standard of review also recognizes that the trial court is “vested with broad discretion to admit evidence at trial and we will only reverse if this discretion was clearly abused.” State v. Morrow, 968 S.W.2d 100, 106 (Mo. banc 1998). We review legal issues de novo. State v. Tinoco, 967 S.W.2d 87, 89 (Mo.App. W.D.1998); State v. White, 931 S.W.2d 825, 828 (Mo.App. W.D.1996).

III. LEGAL ANALYSIS

A. The 911 Call and Accompanying Transcript.

Defendant argues that the trial court erred when it allowed the 911 tape and the accompanying transcript into evidence because the statements on the tape were admitted for their truth, and thus constituted hearsay evidence. Defendant claims that the statements on the tape, and particularly the caller’s identification of herself as Lillie Haney and of Defendant as the perpetrator, were not admissible for their truth under the business records exception to the hearsay rule because the tape contained “hearsay within hearsay.” And, Defendant argues, the hearsay contained in the 911 tape and transcript did not qualify for admission under any exception to the hearsay rule. We disagree.

As previously noted,'the entire conversation between Ms. Haney and the 911 operator was as follows:

911 OP: 911, dis-
Caller: I need the, I need the police at 3924 Forest. I need an ambulance.
911 OP: What’s going on?
Caller: I’ve been cut.
911 OP: Who cut you?
Caller: Uh, Hosea Edwards.
911 OP: Okay. Is he still there?
Caller: Yes, he is.
911 OP: Okay, what does he look like?
Caller: He’s about 5’8”, 5’9”.
911 OP: What’s he wearing?
Caller: Right now he’s wearing underwear. And uh-
911 OP: Okay, what’s your name, ma’am?
Caller: Lily Haney.
911 OP: Okay. Is that a house or an apartment?
Caller: It’s a house. 3924 Forest.
911 OP: Okay. What’s your phone number there?
Caller: 561 -[XXXX]
911 OP: Okay, we’ll get officers and paramedics out there.
Caller: Thank you.

While, in his brief, Defendant seems to argue that the tape did not qualify as a business record, counsel conceded at argument, and we find, that the tape did qualify as a business record. A document qualifies as a business record if three conditions are met: (1) either the custodian of records or other qualified witness testifies to the identity and mode of preparation of the record; (2) the custodian or qualified witness testifies that the record was made in the regular course of business, at or near the time of the act, condition or event: and (3) the court finds admission of the record is justified by the sources of information and the method and time of preparation of the record. Sec. 490.680 RSMo.1994. Here, because Detective Marks had knowledge of the business operations and methods of record-keeping for 911 calls in the communications unit of the police department, he was a qualified witness. See, e.g., State v. Williamson, 836 S.W.2d 490 (Mo.App. E.D.1992); Interest of H.J.P., 669 S.W.2d 264 (Mo.App. S.D.1984) (in termination of parental rights case, DFS employee who identified and presented a report of the division’s file was a qualified witness under Sec. 490.680). In addition, Detective Marks testified that, in its regular course of business, the police department’s communications unit records all 911 emergency calls and the recordings are kept for a period of 90 days unless there is a request to keep a particular recording for a longer period. Based on this evidence, the trial judge did not abuse his discretion in finding the tape qualified as a business record. Tebow v. Director of Revenue, 921 S.W.2d 110, 113 (Mo.App. W.D.1996) (“The court’s decision whether to admit the business records remains a discretionary determination of the trustworthiness of the records”).

We agree with Defendant, however, that the business records exception does not, in itself, provide a sufficient basis for admission of the 911 tape or transcript. Where, as here, a document is offered to prove the truth of the matters stated in it, then “[ejven if a document falls under the business record exception ... the document will not be admissible if the underlying statement is inadmissible hearsay.” State v. Sutherland, 939 S.W.2d 373, 377 (Mo. banc 1997). Thus, we must determine whether an exception to the hearsay rule applies to the 911 tape.

The State argues, and the court below apparently found, that the statements made by Ms. Haney on the 911 tape constitute excited utterances and thus are admissible under the excited utterances exception to the hearsay rule. We agree. The essential test for admissibility of an excited utterance is whether it was made under such circumstances as to indicate it is trustworthy. The rationale of this exception to the hearsay rule is that, if the statement is made under the immediate and uncontrolled domination of the senses as a result of the shock produced by an event, the utterance may be taken as expressing the true belief of the declarant. State v. Van Orman, 642 S.W.2d 636, 639 (Mo.1982) (citations omitted). See also, State v. Dunn, 821 S.W.2d 512, 515 (Mo.App. W.D.1991). “The utterance must be made under the immediate and uncontrolled dominion of the senses and during the time when consideration of self-interest could not have been brought to bear through reflection or premeditation.” State v. Post, 901 S.W.2d 231, 234 (Mo.App. E.D.1995).

Defendant argues that these requirements are not met here because no evidence was introduced as to the time that had elapsed between the attack on Lillie Haney and her 911 call, and the officer testified that when he arrived at her house 3 minutes after the 911 call was made, her cut was not bleeding. While we agree that this was relevant evidence for the judge below to consider, we do not agree that it precluded the court from finding that the excited utterance exception applied. Our Supreme Court has previously held that “[t]he temporal proximity between the event and the statement need not be simultaneous so long as the statement is provoked by the excitement of the event and apparent spontaneous influence of the occurrence acting on the senses of the speaker in which case it can qualify as an exception to the hearsay strictures.” State v. White, 621 S.W.2d 287, 295 (Mo.1981).

Here, while the record does not reveal exactly how much time elapsed between the knifing and the 911 call, and while the wound was not bleeding when the police arrived, there was substantial circumstantial evidence that the call occurred shortly after the knifing, and while the caller was still in a state of excitement as a result of being wounded. First, the tape of the 911 call itself demonstrates that the caller was not calm, but rather was catching her breath and speaking with emotion. Moreover, the caller did not immediately identify either herself or her assailant, but asked for an ambulance and police because she had been cut by a knife. She gave the operator her name and that of Defendant only in response to the 911 operator’s questions.

Second, although Officer Hayes reported that Ms. Haney’s left shoulder injury was not bleeding when he arrived, he later testified that because of the seriousness of her injuries, the paramedics, who arrived at about the same time he did, immediately loaded her into the ambulance for transport to the hospital. Third, Officer Hayes testified that in responding to the call, he found Ms. Haney waiting at her front door for the police to arrive. Fourth, Natalina Baldwin, of the Kansas City, Missouri Police Department’s domestic violence unit, testified that when she saw Ms. Haney at the hospital at least 40 or so minutes after police originally came on the scene, and after Ms. Haney was treated, “all [her] wounds appeared fresh.” Fifth, both Officer Hayes and Ms. Baldwin took photographs of the injuries, and those photographs were admitted into evidence without objection.

Defendant argues that, even if the caller’s statements would otherwise fall within the excited utterance exception, they cannot do so here because there is no proof that the caller was really Lillie Haney, as opposed to someone just claiming to be Lillie Haney, since she took the Fifth Amendment and refused to testify at trial as to whether she made the telephone call. In support, Defendant cites U.S. v. Blondo, 483 F.2d 635 (8th Cir.1973), for the proposition that “[a] telephone conversation is admissible provided the identity of the speaker is satisfactorily established.” Id at 644.

However, our courts have held that anonymity of the speaker is not a bar to admission of an excited utterance where the circumstances of the statement show trustworthiness. Thus, in State v. Moss, 627 S.W.2d 667 (Mo.App. W.D.1982), the defendant shot the victim in the back and an unknown man immediately said, “He’s dead. You killed him. He’s dead.” Moss, 627 S.W.2d at 668. Mr. Moss complained that because of the failure to identify the unknown man, Mr. X., he was denied his Sixth Amendment right to confront him. However, the court found that “if evidence is within one of the recognized exceptions to the hearsay rule, the reception of that evidence does not violate the Sixth Amendment.” Id. at 669. See also, White, 621 S.W.2d at 295.

Again, in State v. Dunn, 821 S.W.2d 512, the defendant challenged an officer’s testimony regarding CB transmissions he heard while on patrol regarding a vehicle traveling southbound in the northbound lanes of 1-29 less than fifteen minutes before defendant’s car was found with defendant in the vehicle. Specifically, defendant claimed that the CB transmissions which were admitted for their truth were inadmissible hearsay because the identities of the declarants were unknown. However, the court considered that the officer did testify that the drivers travelling on the interstate were excited when describing in the CB transmission the actions of defendant’s car and their determination as to his location was sufficiently close to where he was ultimately found. Thus, the evidence was found to support the conclusion that the CB transmissions which the officer testified about were excited utterances and that the consistent number of accurate reports from different declarants showed they had personal knowledge of defendant’s activities, and were tmstworthy and admissible. Dunn, 821 S.W.2d at 515-16

As in the above cases, direct evidence confirming Ms. Haney’s identity as the caller was not necessary for “anonymity is not fatal to the admissibility of the statements once the statements qualify within the exception.” Id. at 516. Instead, the key to admissibility of an excited utterance is trustworthiness. Post, 901 S.W.2d at 234; Dunn, 821 S.W.2d at 515; State v. Griffin, 662 S.W.2d 854, 858 (Mo. 1983); Van Orman, 642 S.W.2d at 639; Walsh v. Table Rock Asphalt Const. Co., 522 S.W.2d 116, 121 (Mo.App. S.D.1975). Moreover, even the Blondo case cited by Defendant notes that the identity of the caller may be shown by circumstantial evidence. Blondo, 483 F.2d at 644. Missouri law is in accord. See, e.g., State v. Beaver, 784 S.W.2d 871, 872 (Mo.App. E.D.1990); State v. Gardner, 743 S.W.2d 472, 473 (Mo.App. E.D.1987) (sufficient circumstantial evidence for jury to infer that defendant was the caller). Beaver noted that:

Our Supreme Court has recognized that the subject matter of a phone call can serve as a circumstantial basis to show the identity of the caller. Zimmerman v. Associates Discount Corporation, 444 S.W.2d 396, 397 (Mo. banc 1969). In criminal cases, this rule has been used to identify the defendant as a participant in a telephone conversation when the defendant discusses facts which most likely only he would know. See, State v. Deaver, 6 Wash.App. 216, 491 P.2d 1363 (1971), 79 A.L.R.3d 79, 174-76 (1977).

Id. Comparing Beaver to the case at bar, Ms. Haney gave the address and telephone number of the house where the knifing occurred, she knew the man’s name who was in the house - Hosea Edwards - she was also found waiting at the front door when the police arrived, and she had injuries identical to those described on the 911 tape. Additionally, on the same day that the 911 call was made, after treatment for her injuries, Ms. Haney went to police headquarters by her own effort to provide a statement to Officer Bell, and Defendant admitted he and Ms. Haney had been fighting and that, while he did not recall knifing her, when he woke up he found she had been knifed. This circumstantial evidence is more than sufficient to provide a basis for finding that it was indeed Ms. Haney who made the emergency 911 call on November 15,1997.

For these reasons, we find that the tape was properly admitted under the excited utterance and business records exceptions to the hearsay rule.

B. The Knives Found at the Scene

Defendant also argues that the court committed reversible error in permitting the State to introduce evidence that the police found and seized two knives from Ms. Haney’s and Defendant’s home when they searched it for evidence following the knifing. He argues that the State was required to show that the knives had a connection to Defendant or to the injury to the victim before they could be admitted, and that the State failed to meet this burden since it did not test the knives for fingerprints or test the blood on the knife found in the living room to determine whether it belonged to Ms. Haney. While we agree that the State did not do a very thorough job of explaining the connection of the knives to the crime, we do not find that their admission was prejudicial error on the facts of this case.

As a general rule, physical evidence will be admitted if “it is relevant to a material matter at issue.” State v. Kreutzer, 928 S.W.2d 854, 869 (Mo. banc 1996). Here, while no expert testified that either of the two weapons was the one which caused Ms. Haney’s wound, Detective Marks was permitted to testify, without objection, how police found the weapons during a search of Defendant’s and Ms. Haney’s home. He explained that as they searched the house, they found a number of items with blood on them, and found blood smears on the wall by the stairs. They then found a small, bloody knife with a bent blade under the coffee table, and seized it because they believed it might be the weapon used by the attacker. They continued searching and found a butcher knife in the sink. The Detective admitted that the butcher knife had no blood on it and was with other utensils and dishes in the sink, but explained that he seized it because he believed it might be the weapon used in the stabbing.

Defense counsel did not object to the officer’s testimony about the knives. He objected only to introduction of the knives into evidence. The court overruled the objections in light of the State’s argument that the knives were admissible because they were found at the crime scene and it appeared that they could have been used to cause the injury to the victim. Once admitted, the officers later explained that they could not determine whether or not the knives were used by Defendant to stab the victim by testing them for fingerprints, since Defendant lived in the home and his prints would be expected to be found on the knives. Defense counsel effectively brought out the weak connection of the knives to the crime, and the fact that the police did not really know which, if either, of the knives was the weapon used by the attacker.

Our Supreme Court addressed alleged error in admitting evidence of a knife in State v. Taylor, 701 S.W.2d 725 (Mo. banc 1985). The victim in that case was stabbed and killed in her home. Defendant, her husband, found the body and called the police. In the course of searching the crime scene, the police searched the kitchen and seized a knife found in a kitchen drawer some five hours after the stabbing. Expert testimony established that it could have been used to make the wounds, but there was no evidence showing that it had been used to make the wounds. Defendant argued that it therefore should not be admissible. Taylor held that:

A weapon with which the crime might have been committed, found near the time and scene of the crime, is relevant to show the means by which the crime was committed. State v. Dodson, 642 S.W.2d 641, 642 (Mo.1982). ‘Articles, instruments and weapons that have a tendency to explain the manner in which a crime was committed that are found at or near the scene of the crime subsequent to the commission of the crime are generally admissible.’ State v. Bolder, 635 S.W.2d 673, 688 (Mo. banc 1982).

Id. at 728. In Bolder, relied on in Taylor, the Supreme Court similarly found no error in admitting a knife into evidence despite the fact that it was not positively tied to the defendant or the crime where defendant was seen making stabbing motions over the victim and was later found in a building wiping blood off of his hands, and the knife was found in a room down the hall in the same building, without fingerprints but with blood on it of the same type as that of the victim.

In State v. Ramsey, 820 S.W.2d 663 (Mo.App. W.D.1991), this Court similarly ruled that no reversible error occurred in admitting evidence of a shotgun found at the house where a drug buy had occurred, where the evidence showed that a man had been holding a similar shotgun during the drug transaction in question three and one-half hours earlier, even though no evidence was introduced showing that it was the same weapon, stating:

Weapons found at or near the crime scene or which tend to explain the manner in which a crime is committed are generally found to be admissible. State v. Reyes, 740 S.W.2d 257, 261 (Mo.App. 1987). Where the evidence in question tends to connect a defendant with the crime, proves the identity of the deceased, shows the character of wounds or throws light upon a material fact in issue, it is properly admissible.

Id. at 666. See also, State v. Cuckovich, 485 S.W.2d 16, 23 (Mo. banc 1972) (holding that it was not error to admit into evidence a gun which had the same characteristics as the murder weapon, but which could not be conclusively shown to be the murder weapon, which was found in a dresser of defendant’s house, because it was shown to be in the room where defendant was arrested and was similar to the murder weapon).

Here, as in the above cases, while neither knife was shown to have been the one used to stab the victim, both were found at the scene of the crime shortly after it occurred. One had blood on it, and the other was in the sink in water and the detectives reasonably could have thought that it might have been used to commit the crime and been placed in the sink to wash off the blood or conceal its presence. While, as we noted in Ramsey and in State v. Perry, 689 S.W.2d 123 (Mo.App. W.D.1985), introduction of weapons unconnected with the crime and which lack any probative value has been held to be reversible error, we cannot say on these facts that the knives had no probative value or had no connection with the crime. Moreover, the only issue raised on appeal is whether the court erred in admitting the weapons in evidence as exhibits. Detective Marks was permitted to testify about finding the knives without objection, and in fact defense counsel questioned him about them, and argued their irrelevance, and allowed the State to argue their relevance without objection, and Defendant does not claim on appeal that this was error.

In this circumstance, similarly to State v. Shanz, 716 S.W.2d 472 (Mo.App. S.D.1986), even if admission of one or both of the knives into evidence was erroneous, we are convinced that it could not have been prejudicial. In Shanz, the appellate court found that the trial court had erred in admitting evidence of a second gun found at defendant’s residence, when other testimony clearly established that a different gun also found at the scene was the murder weapon. The court found the admission was not prejudicial, however, where defense counsel had permitted the prosecutor to question a witness about finding the gun at defendant’s residence, and only objected when the prosecutor offered the gun into evidence. The prosecutor did not refer to the gun thereafter. On these facts, the court found, no prejudice could have resulted from the erroneous admission of the gun, stating:

If evidence is improperly admitted, but other evidence before the court establishes essentially the same facts, there is no prejudice and no reversible error, [citations omitted] That rule applies here. The receipt of Exhibit 25 in evidence, and the officer’s explanation of why he seized it, added nothing prejudicial to what the jurors had already learned before defense counsel’s objection, and the prosecutor, so far as the record shows, made no prejudicial use of Exhibit 25 thereafter.

Shanz, 716 S.W.2dat479.

Here, as in Shanz, we cannot find that admission of the knives into evidence caused prejudicial error.

For all the reasons stated above, we affirm.

Presiding Judge HAROLD L. LOWENSTEIN and Judge THOMAS H. NEWTON concur.


source: Caselaw Access Project

license: Public Domain

text:
    Beverly Sue RYAN Conservator of the ESTATE OF Brandon S. REECE, minor, Respondent, v. John R. REECE, et al., Appellant.
    No. WD 57785.
    Missouri Court of Appeals, Western District.
    Aug. 22, 2000.
    As Modified Oct. 3, 2000.
    Motion For Rehearing and/or Transfer to Supreme Court Denied Oct. 3, 2000.
    Application for Transfer Denied Dec. 5, 2000.

      James P. Barton, Jr., Thomas E. Deacy Jr., Spencer Brown, Kansas City, for appellant.
    John Shank Jr., Gwen Edwards, Gladstone, for respondent.
    Before Presiding Judge HAROLD L. LOWENSTEIN, Judge LAURA DENVIR STITH and Judge THOMAS H. NEWTON.
   LAURA DENVIR STITH, Judge.

Plaintiff Beverly Sue Ryan, as Conservator for the Estate of Brandon Shane Reece, filed a petition for discovery of assets under Section 473.340 RSMo 1994 against John Robert Reece, Isla Faye Reece, and Reece Farms, L.L.C. (“Reece Farms”) (herein referred to as “Defendants”). Judge John A. Borron found all three defendants liable as a sanction for their alleged violation of certain discovery rules. After a hearing on damages, he awarded $7,820,000.00 in actual damages and $4,092,085.38 in pre-judgment interest against Mr. Reece, $720,000.00 in actual damages and $333,766.72 in pre-judgment interest against Mrs. Reece, and $75,000 in actual damages against Reece Farms. Mrs. Reece and Reece Farms appeal. Because we find that the trial court lacked subject matter jurisdiction over Plaintiffs claims against them in this petition for discovery of assets proceeding, we reverse and remand with directions to dismiss the claims against Mrs. Reece and Reece Farms.

I. FACTS AND PROCEDURAL HISTORY

Further discussion of the underlying facts can be found at State ex rel. Abele v. Harman, 962 S.W.2d 945 (Mo.App. W.D.1998), State ex rel. Knight v. Harman, 961 S.W.2d 951 (Mo.App. W.D.1998), and Ryan v. Ford, 2000 WL 196638 (Mo.App. W.D. 2000). For purposes of this appeal, we note that the causes of action stem from a serious two-car accident that occurred on November 27, 1980. Involved in that accident were Brandon Shane Reece and his parents, John Robert Reece and Julia Reece, who were riding in the car driven by Mr. Reece, and Gerald Pendleton, who was driving the other car. The accident caused Brandon severe and permanent injuries and caused the death of his mother, Julia. In the years that followed, a number of lawsuits were filed, dismissed, and later re-filed on behalf of Brandon, seeking to establish liability and recover damages from Mr. Pendleton, Brandon’s father, and various medical care providers, based on claims of wrongful death or personal injury. Eventually the claims were settled, with $720,000.00 going to Mr. Reece, $380,000.00 in cash and $6,430.00 per month for life with a minimum guaranteed term of 20 years going to Brandon, and $1,200,000.00 going to the attorneys who represented Brandon and Mr. Reece. The settlement was approved by two different courts.

On April 23, 1997, Plaintiff filed a petition for discovery of assets in the Probate Division of the Circuit Court of Clay County, Missouri against Defendants Mr. and Mrs. Reece and Reece Farms; against Douglas Abele, who served as conservator ad litem for Brandon’s estate in the litigation of Brandon’s tort cases; and against the former attorneys for Brandon’s estate and Mr. Reece in the tort cases, Hamp Ford, Larry Ferguson, and the partners of the Knight law firm (collectively as the “Knight lawyers”), seeking to recover assets she alleged were misappropriated from and belonged to the estate.

Sometime thereafter, the Knight lawyers and Mr. Abele each filed a writ of prohibition with this Court asserting that the probate court lacked subject matter jurisdiction to hear Plaintiffs claims. In support, the Knight lawyers claimed that “because the claims alleged against them in the petition for discovery of assets are for legal malpractice and do not involve any property in the possession of the Knight law firm in which [the estate] has any claim or ownership interest,” the probate court was without subject matter jurisdiction. Mr. Abele argued that, for similar reasons, the court lacked subject matter jurisdiction over the breach of fiduciary duty claim asserted against him in the discovery of assets proceeding.

This Court granted both Petitions for Writ of Prohibition. In holding that the probate court lacked subject matter jurisdiction of the claims filed against the Knight lawyers, we stated:

The allegations of legal malprae-tice/breach of fiduciary duty contained in the petition for discovery of assets levied against the Knight law firm are .not appropriate claims for [a discovery of assets proceeding], as such claims do not involve the determination of title and/or the right to possession of property which is claimed to belong to Brandon’s estate. The allegations of legal malpractice against the attorneys that represented an estate in its personal injury cause of action, are not properly brought under a statute that deals with the “determination of the title, or right to possession thereof’ of property that is “being adversely withheld or claimed” pursuant to [Section] 473.340.1.
As such, this action is not a discovery of assets proceeding because its purpose is to seek recovery of monetary damages, including punitive damages. Our second amended preliminary writ in prohibition is, therefore, made absolute as it relates to the Knight law firm. The probate court is hereby directed to sustain the Relator’s motion to dismiss, as the probate court lacks jurisdiction to hear the claims set forth in the petition to discovery of assets that are pending against the Knight law firm.

Knight, 961 S.W.2d at 955. In similar fashion, we granted Mr. Abele’s Petition for Writ of Prohibition, stating:

Essentially, the claims against Abele are that if he had not breached his fiduciary duties to Brandon, Brandon’s estate would have received more money in the settlement of the tort claims. Therefore, the requirements to bring a discovery of assets claim are not met as to the claims against him. A discovery of assets action is not the proper vehicle for the breach of fiduciary duty claims levied against Abele.

Abele, 962 S.W.2d at 948.

Subsequent to our decisions in Abele and Knight, Mr. Reece and Reece Farms petitioned this Court for a writ of prohibition on the same grounds. The petition filed by Mr. Reece and Reece Farms was denied, without opinion, on May 21, 1998.

On the same day that Defendants’ petition for a writ was denied, Plaintiff filed an amended petition for discovery of assets against Defendants (the subject of this appeal), which set forth three claims. In Count I, Plaintiff sought actual and exemplary damages based on the constructive fraud of Mr. Reece for alleged breaches of his fiduciary duty owed to Brandon in his handling of Brandon’s claims arising out of the accident. In Count II, Plaintiff alleged that the Reeces unlawfully obtained $1,080,000 as a result of the settlement agreements among the parties to the underlying tort suits, and that those funds should be held in constructive trust for the benefit of Brandon. Finally, in Count III, Plaintiff sought to impose a constructive trust on $75,000 in assets held by Reece Farms that Plaintiff alleged it received from Mr. Reece out of the proceeds of the settlements.

On June 10,1998, counsel for the Reeces and Reece Farms filed a motion to dismiss the claims made in Plaintiffs amended petition and another motion seeking a protective order permitting the Reeces and Reece Farms to forego responding to Plaintiffs discovery requests until their motion to dismiss had been ruled upon.

Before ruling on all of the pending motions, or on Plaintiffs subsequently filed motion to compel discovery, Judge Har-man recused himself and Judge Borron was assigned to the case. Judge Borron overruled the motion to dismiss and vacated the stay on discovery. A period of legal maneuvering ensued between August 1998 and December 1998, resulting in a ruling by the probate court striking the answers of Mr. Reece and Reece Farms for failure to timely respond to Plaintiffs discovery requests, and a consequent finding in favor of Plaintiff on the issue of liability. Approximately three months later, and for similar reasons, the probate court entered an order striking Mrs. Reece’s answer and finding her liable to the estate as well. The probate court then held a trial solely on the issue of damages, after which it found Defendants hable to the estate in the following amounts: Mr. Reece, for $11,912,085.38 ($7,820,000.00 in actual damages; $4,092,085.38 in pre-judgment interest); Mrs. Reece, for $1,053,766.72 ($720,000.00 in actual damages; $333,766.72 in pre-judgment interest); and Reece Farms, for $75,000.00. This appeal by Mrs. Reece and Reece Farms followed.

II. STANDARD OF REVIEW

Defendants raise a number of issues on appeal, including error in imposing sanctions, error in the amount of damages awarded, and lack of subject matter jurisdiction to hear the claims raised by Plaintiff in a discovery of assets proceeding. We must affirm the trial court’s judgment unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 586 S.W.2d 30, 32 (Mo. banc 1976). With regard to the question of subject matter jurisdiction, as the essential facts are not disputed, the issue is one of law which we review de novo. Cook v. Polineni, 967 S.W.2d 687, 690 (Mo.App. E.D.1998). See also, Palmer v. Bean, 636 S.W.2d 691, 694 n. 1 (Mo.App. E.D.1982).

III. LACK OF SUBJECT MATTER JURISDICTION

Because we find the issue of subject matter jurisdiction is dispositive, we address only that issue in this opinion.

Pursuant to Section 473.340, the probate court has the authority to oversee an action for discovery of assets whereby an estate, through its representatives, seeks to determine the “estate’s title, right to possession, or both of specific property.” Estate of Williams v. Williams, 12 S.W.3d 302, 305 (Mo. banc 2000) (emphasis added). Section 473.340 states:

1.Any personal representative, administrator, creditor, beneficiary or other person who claims an interest in property which is claimed to be an asset of an estate or which is claimed should be an asset of an estate may file a verified petition in the probate division of the circuit court in which said estate is pending seeking determination of the title, or right of possession thereto, or both. The petition shall describe the property, if known, shall allege the nature of the interest of the petitioner and that title or possession of the property, or both, are being adversely withheld or claimed. The court may order the joinder, as a party, of any person who may claim an interest in or who may have possession of any such property.
2. Service of summons, petition and answer thereto together with all subsequent proceedings shall be governed by the Missouri Rules of Civil Procedure. Any party may demand a jury tidal.
3. Upon a trial of the issues, the court shall determine the persons who have an interest in said property together with the nature and extent of any such interest. The court shall direct the delivery or transfer of the title or possession, or both, of said property to the person or persons entitled thereto and may attach the person of any party refusing to make delivery as directed. If the party found to have adversely withheld the title or possession, or both, of said property has transferred or otherwise disposed of the same, the court shall render a money judgment for the value thereof with interest thereon from the date the property, or any interest therein, was adversely withheld. In addition to a judgment for title and possession, or either, or for the value thereof, the court may enter a judgment for all losses, expenses and damages sustained, if any, but not including attorney fees, if it finds that the property was wrongfully detained, transferred or otherwise disposed of.
4. If the court finds that a complete determination of the issues cannot be had without the presence of other parties/ the court may order them to be brought in by an amended or supplemental petition. The court shall order the joinder of the personal representative of the estate if he is not named as a party.

Sec. 473.340 RSMo 1994 (emphasis added).

Here, Plaintiff asserts that the assets she sought to discover in this case are “dioses in action,” which are designated as personal property under Section 472.010(25) RSMo 1994. She does not, however, assert that Defendants took the choses in action and prosecuted them in their own name and kept the proceeds received. Rather, she alleges that Defendant Mr. Reece, in the course of pursuing these choses in action on behalf of Brandon in his capacity as guardian, conservator and father of Brandon, mishandled the claims for his own benefit rather than for the benefit of Brandon by agreeing to settle the claims for less than their true value, and by then arranging to be awarded more of the settlement than he had a right to receive. By maneuvering the claims as he did, Plaintiff claims, Mr. Reece depleted the estate’s property by devaluing its choses in action. She then alleges that he shared these proceeds with Mrs. Reece and Reece Farms, and that all are therefore liable to the estate for these allegedly converted estate assets. She seeks not the return of specific dollar amounts allegedly taken, but of the amounts which Mr. Reece was awarded in earlier court-approved settlements, of other consequential damages resulting from his alleged breach of duty and of prejudgment interest.

While Plaintiffs claim is innovative, we find it to be without merit. A petition for discovery of assets is the appropriate mechanism for determining the right and title of the estate to specific assets. We have explicitly held, however, that it is “not intended as a device to test general fiduciary conduct, improper administration of the estate, or general disputes between heirs,” In re Goldenberg’s Estate, 601 S.W.2d 637, 639 (Mo.App. E.D.1980), nor does it provide a forum for the probate court “to try an action for breach of contract.” Estate of Woodrum, 859 S.W.2d 259, 262 (Mo.App. S.D.1993).

These limitations on the power of the probate court in a discovery of assets proceeding are fatal to Plaintiffs, suit against Mrs. Reece and Reece Farms. Plaintiff does not assert that any specific assets which were actually a part of the estate were actually converted by Defendants, nor does she allege that Defendants converted specific assets to which the estate had been determined to have a legal right. To the contrary, Plaintiff is claiming that, as a result of Mr. Reece’s breach of his fiduciary duty to Brandon, the structured settlements yielded a lesser amount for the estate than that which could have been obtained were there no such breach, and that any funds now held by Defendants resulting from the settlement should therefore be held in constructive trust for the estate, and other resulting damages should be awarded. She nonetheless argues that she has thus shown that Defendants possess assets which “should be an asset” of the estate, and thus she has a right to pursue her claim under Section 473.340 by filing a petition for discovery of assets proceeding such as this one and the court below thus had subject matter jurisdiction over her claims.

Plaintiffs expansive reading of the phrase “should be an asset” of the estate was expressly rejected by this Court in granting writs of prohibition in both Knight and Abele. Thus, in Abele, 962 S.W.2d at 948, we held that, while plaintiff styled her claim as a petition for discovery of assets, she was not really pursuing specific assets which she alleged Mr. Abele had taken from the estate, but rather was alleging that the estate had less assets than it should have had due to his breach of fiduciary duty. The latter is a tort claim, we held, and therefore “the requirements to bring a discovery of assets claim are not met as to the claims against [Mr. Abele]. A discovery of assets action is not the proper vehicle for the breach of fiduciary duty claims levied against Abele.” Id.

Plaintiff also attempts to distinguish Abele on the ground that Mr. Abele did not have possession of particular estate property, but only of fees paid by the estate to him in his capacity as conservator ad litem, and, therefore, this Court was correct in granting Mr. Abele’s request for a writ of prohibition. Here, by contrast, Plaintiff alleges, Mr. Reece had possession of specific property of the estate - the choses in action and settlement proceeds eventually realized from prosecuting them. As Mr. Reece actually received part of the settlements, he therefore had assets which “should have been” part of the estate, she claims. And, because Mr. Reece gave some of those assets to Mrs. Reece and Reece Farms, Plaintiff argues, it is proper to proceed against them in this petition for discovery of assets proceeding as well. In support, she cites to our Supreme Court’s recent decision in Estate of Williams v. Williams, 12 S.W.3d 302, 305 (Mo. banc 2000), claiming that Williams held that a common law claim for conversion of estate assets and a punitive damages claim associated with the conversion claim must be brought in the probate division of the circuit court.

Williams nowhere so states. It states only that:

a common law action alleging the conversion of property belonging to a decedent’s estate and seeking a common law claim for punitive damages associated with that conversion may be pursued in a discovery of assets proceeding in the probate division of the circuit court.

Williams, 12 S.W.3d at 305 (emphasis added). Thus, it said that a discovery of assets proceeding in the probate division of the circuit court was merely a forum for pursuing a claim for conversion of estate assets, not the only such forum.

More relevant to the instant suit, it also clearly noted that such a suit is to be brought where it is alleged that defendant converted propeHy belonging to the decedent’s estate. Clearly, that is the law of Missouri. This begs the question, however, whether the property which Plaintiff seeks has been converted from the estate. In Williams, the property at issue clearly had been converted from the estate, for decedent’s mother, in her capacity as personal representative of the estate, directed the issuer of an annuity that distributions from the annuity should be made in her name and made directly to her, instead of to the estate. After the mother kept many of these distributions, the decedent’s sister filed a petition for discovery of assets asserting that the mother took the checks generated from the annuity company for herself and held them against the estate, and that because she did so in a malicious manner, punitive damages should be awarded. Id. at 303-04.

While the issue in Williams was whether a plaintiff in a discovery of assets proceeding could seek punitive damages, the court clearly recognized that the claim itself was one to discover specific assets, i.e. annuity checks, that were converted by the mother from the estate, and, therefore, were within the subject matter jurisdiction of the probate division under Section 473.340. In so holding, Williams cited and reaffirmed this Court’s ruling in Abele that because in that case “the claim was that the conservator had breached a fiduciary duty by failing to more zealously pursue a settlement of certain tort claims,” then “the question of ownership of estate property was not at issue, [and so] the court [properly] held the discovery of assets proceeding was not the proper procedural vehicle.” Williams, 12 S.W.3d at 305.

While Williams is thus not controlling, Knight is. There, similarly to here, Plaintiff alleged that the Knight firm had been awarded $1,200,000 in legal fees by the probate court in settlement of Brandon’s claims, and that the Knight lawyers had breached their fiduciary duty to Brandon in settling for too small an amount, in allowing too much of the settlement to go to Mr. Reece, and in taking too much money as a fee. Therefore, Plaintiff argued, the Knight lawyers wrongfully possessed a portion of the settlement proceeds and “petitioner asked that the probate court impose a constructive trust ... against the Knight law firm because they had unjustly received estate assets which they should not enjoy.” Knight, 961 S.W.2d at 953.

We rejected Plaintiffs argument that a petition for discovery of assets was the proper mechanism to use to proceed against the Knight lawyers, holding that the “allegations of legal malpractice/breach of fiduciary duty contained in the petition for discovery of assets levied against the Knight law firm are not appropriate claims for [a discovery of assets proceeding], as such claims do not involve the determination of title and/or the right to possession of property which is claimed to belong to Brandon’s estate.” Knight, 961 S.W.2d at 955. In other words, in Knight, as in the case at bar, there was no specific asset or item alleged to have been taken from the estate. Rather, in Knight, a court had awarded the law firm the $1,200,000 in fees at issue, just as, here, two courts approved the award to Mr. Reece of the funds which Plaintiff now says he received only by breaching his fiduciary duty to and defrauding Brandon. Thus, in Knight, as here, even assuming that a breach of fiduciary duty or malpractice occurred, it did not result from conversion of assets the estate had or should have had, but resulted from mismanagement of an estate asset - the choses in action - so that they did not bring in as much value to the estate as they should have done, as a result of alleged self-dealing.

Plaintiff asks us to overrule Knight, arguing that it imposed too narrow a limit on the use of a discovery of assets proceeding. We find that the holding in Knight is well-grounded in prior Missouri law governing the power given the probate court to determine common law claims in a discovery of assets proceeding. In re Goldenberg’s Estate, 601 S.W.2d 637 (Mo.App. E.D. 1980), is particularly instructive. In Goldenberg, Harry Goldenberg, decedent, died leaving his wife, Yolanda Goldenberg Gray, and his son, Jerome B. Goldenberg, as co-executors of his will. Goldenberg’s Estate, 601 S.W.2d at 638. Two years after the death of her husband, Ms. Gray sought to discover the assets of decedent’s estate, claiming that her son was wrongfully withholding some property of the estate. Id. The Court found, however, that the trial court committed no error when it struck some of the allegations in Ms. Gray’s petition, for they were outside the purview of a discovery of assets claim. Specifically, the Court found that allegations of “improper management of her husband’s business by her son, her failure to receive her widow’s allowance and tax refund, and the loss of personal property belonging to her,” “at best relate to the administration of the estate but not to the discovery of assets.” Id. at 639 (emphasis added). Thus, it held, claims for mismanagement of an estate or breach of fiduciary duty are not cognizable under a discovery of assets claim.

Estate of Woodrum, 859 S.W.2d 259 (Mo.App. S.D.1993), also addressed the breadth of a probate court’s subject matter jurisdiction in discovery of assets claims. In that case, prior to the death of his wife, Mr. Woodrum served as her conservator and guardian as she was incapacitated and disabled. The court, however, revoked his appointment because of his failure, inter alia, to maintain his official duties. Ms. Woodrum’s son from a prior marriage, Mr. Weyrauch, succeeded as guardian and conservator. Id. at 260-61. After Ms. Wood-rum’s death and during the administration of her estate, Mr. Weyrauch filed a petition for discovery of assets naming as defendants Mr. Woodrum and his surety during his tenure as guardian and conservator over his wife, Western Surety Company (“Western”). As against Mr. Woodrum, it was alleged that he was adversely withholding, and claiming as his own, personal property believed to belong to Ms. Wood-rum’s estate. The order to dismiss these allegations was reversed and the claim was allowed to proceed. As against Western, Mr. Weyrauch claimed it was liable to the estate on its surety bond since Mr. Wood-rum had failed in his duty as guardian and conservator of his wife. However, because recovery on a surety bond is a contract action, the court found that the discovery of assets petition did not state a cause of action as such a claim was not cognizable in the probate court. Id. at 262.

The principles set out in Knight, Goldenberg’s Estate and Woodrum are applicable here. The monies sought by Plaintiff result not from the taking of the estate’s choses of action, but from alleged breaches of fiduciary duty causing the estate to be deprived not of the existing or potential choses of action themselves, but of a greater portion of the proceeds from the settlement of those actions. In other words, although Mr. Reece may have made the choses of action less valuable to the estate, he did not take them from the estate. Indeed, Plaintiff is not claiming that Defendant took ownership of the choses in action, but only that the assets were rendered less fruitful to the estate because of Defendant’s breach of fiduciary duty. And, in awarding damages, the court below did not simply find that specific assets were converted and order them returned, nor even order Mr. Reece to return the amount he received in settlement of the underlying tort claims, but actually awarded the estate the additional amounts the court found might have been recovered by the estate had its claims arising out of the accident been better handled. Assuming, without deciding, that Mr. Reece, like Mr. Goldenberg, may have mismanaged the assets of an estate, even to an extent that he acted below the level of diligence required of a fiduciary, and that he may be liable in tort to the estate under some other theory, he did not convert to himself specific assets of the estate and the estate’s claims against Mrs. Reece and Reece Farms cannot be pursued in the context of this petition for discovery of assets proceeding.

For these reasons, we find that Plaintiffs claims are beyond the subject matter jurisdiction of the probate division of the circuit court pursuant to a petition for discovery of assets, as she seeks recovery of damages for Defendants’ breach of fiduciary duty to the estate and not to discover and recover specific assets held against the estate. Accordingly, we reverse and remand with directions to dismiss the claims against Mrs. Reece and Reece Farms.

Presiding Judge HAROLD L. LOWENSTEIN and Judge THOMAS H. NEWTON concur.

      . The claim against Mr. Reece has been stayed by the bankruptcy court due to his filing of bankruptcy, and he is therefore not a participant in this appeal.

      . A petition for a writ is not a substitute for appeal nor does its denial affect this Court’s consideration of the merits of a later appeal. State ex rel Douglas Toyota III, Inc. v. Keeter, 804 S.W.2d 750, 752 (Mo. banc 1991); State ex rel. Lester E. Cox Medical Center v. Wieland, 985 S.W.2d 924, 927 (Mo.App. S.D.1999).

      . Ms. Gray also alleged that her husband had at the time of his death four specified certificates of deposit that were not inventoried into the estate, and the court held that she did "state a cause of action for discovery of [these] specific assets" of the estate. Id.


author: HAROLD L. LOWENSTEIN, Judge.

text:
    Chelmer L. and Barbara BARROW, Appellant, v. BOONEVILLE # 1, INC, and Donald and Pamela Bedell, Respondent.
    No. WD 57555.
    Missouri Court of Appeals, Western District.
    Aug. 22, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 3, 2000.
    Application for Transfer Denied Dec. 5, 2000.

      Randal Owings, Columbia, for appellant.
    Richard Wunderlich, St. Louis, for respondent.
    Before: LOWENSTEIN, P.J., ULRICH and HOLLIGER, JJ.
   HAROLD L. LOWENSTEIN, Judge.

INTRODUCTION

This appeal evolves from a dispute over the lease of a nursing home. The parties to the lease are two couples who jointly bought the property at a tax sale. One couple then’ incorporated, and leased the home from essentially themselves and the other couple. Both couples executed the lease as Landlords to the corporation (the sole shareholders of which are one of the couples). The Landlord (only the couple who had not incorporated) then filed suit to declare the lease null and void. After protracted legal wrangling over the validity of the lease, the litigation entered into repose and the parties then entered into settlement negotiations over the lease which resulted in an out-of-court agreement for an increase in rent. Seventeen months after the rent was increased and had been consistently paid by the Tenant-corporation and accepted by the Landlord, the Tenant filed a motion to compel enforcement of the settlement agreement. The trial court granted the Tenant’s motion, and Landlord appeals. The following facts and chronology will aid the reader in understanding the current appeal.

FACTS

The underlying case was originally filed in September 1996, by the appellants-landlord (hereafter Landlord), Chelmer and Barbara Barrow, against the respondent-Tenant, Boonville # 1 Inc. (hereafter Tenant), of which Donald and Pamela Bedell are the sole shareholders. The initial petition alleged two counts relating to the validity of the lease of property used as a nursing home which had been signed by both parties on June 25,1992.

Count I alleged that the lease was intended to be temporary and, therefore, “it should be declared null and void.” Count II alleged that in the alternative, Tenant was in default under the lease because it “permitted and allowed the physical structure...to deteriorate inside, to become unsightly, and to be injurious to patrons of the home....” The home was in fact cited for numerous violations of sub-standard care and fined by the State of Missouri Division of Aging for the interior condition of the property. Count II likewise petitioned the court to declare the lease “null and void” as relief for the alleged breach of the contract terms.

In November 1996, Tenant filed a Motion to Dismiss for Failure to State a Claim which was granted on the basis that the “declaration of a lease as ‘null and void’ is not a remedy for breach of contract cognizable under Missouri law.” The trial court gave Landlord thirty days to amend the petition to include a cognizable remedy. Landlord never attempted to amend.

Within the next year however, the parties entered into settlement negotiations and the attorney for each side exchanged letters negotiating an increase in the monthly rental amount under the lease. The parties, through their attorneys’ written correspondence, agreed upon raising the monthly rental amount from $2,000.00 to $4,000.00 to become effective starting January 1, 1998. A February 12, 1998 letter from Landlord’s attorney to Tenant’s attorney read as follows:

Mr. and Mrs. Barrow will accept the terms of your November 3, 1997, FAX with the increased payment of $4,000.00 to them to date from January 1, 1998. Please let me know how you want to handle the Amendment and dismissal of the lawsuit.

Tenant agreed and increased the rental payments by $2000.00 per month. Beginning January 1, 1998, and still continuing, Landlord has accepted those increased rental payments. However, despite accepting the benefit of the increased monthly payment, Landlord has consistently refused to sign the amended lease.

As a result of the appellant-Landlord’s refusal to sign the amended lease, the Tenant filed a Motion to Compel Enforcement of the Settlement in June of 1999. Tenant alleged that an agreement had been made to raise the monthly rental, and that at the time of filing this appeal, Landlord had accepted the increased rental payments for over seventeen months. Landlord admitted to accepting the increased amount. Further, Landlord did not contest the validity of the attorneys’ letters offered to the court by Tenant to demonstrate and prove the agreement. Landlord did, however, argue in opposition that their attorney did not have authority “to fully settle all of the issues relating to the lawsuit,” but rather he only had authority to settle the monthly rental payment issue. As a result, Landlord argues the entire lease dispute was not settled and, therefore, Landlord should not be compelled to sign the amended lease. Landlord’s attorney who handled the negotiations withdrew in May of 1999. Their present counsel did not take part in the negotiations.

A hearing was conducted on June 14, 1999, to argue the Motion to Compel Enforcement of Settlement with both parties present and prepared to present witnesses and evidence. However, due to an emergency in an unrelated matter, the court was short on time and the judge stated, after hearing the status of the case and asking how much time the attorneys predicted they would need, “There’s no way I can do it today...I’m already an hour behind because of the problems that the sheriffs department has... [WJhat I am going to do is show it taken under advisement and look at it. And if I feel that it’s -there’s a basis for ruling it, I will; if not, I’ll set it for a hearing.” Landlord’s counsel then requested that the court verify it would not make a decision on the motion without hearing testimony. To this, the court responded, “I don’t know. I’m going to look at it and see what it says. If it’s clear enough, I may, but I don’t know.” Landlord’s counsel then reiterated his desire to have an opportunity to put on evidence if there was any question after the court reviewed the file.

The trial court subsequently found the following without having conducted an additional hearing: the parties did enter into a settlement agreement that amended the disputed terms of the initial written lease; the agreement for amendment was specific only to relief of the monthly rental amount; no other disputed terms were at issue in the negotiations conducted between counsel for the parties; the amended agreement was entered into by both parties effective as of January 1,1998, and appellants have accepted the benefit thereof for many months without claim that it did not constitute the full and complete settlement; and finally, that it was inequitable to permit appellants to reject the agreement as the full and complete settlement. Appellants now appeal the trial court’s order enforcing the settlement agreement.

STANDARD OF REVIEW

“The decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.1976).

POINTS RELIED ON

Landlord first argues the trial court erred in granting Tenant’s Motion to Compel Enforcement of Settlement by claiming the judgment was not supported by clear and convincing evidence and the trial court erroneously applied the law because no evidence was presented by either party at the hearing for the Motion to Compel and, as a result, Tenant did not meet the required burden of proof. Landlord alleges that because the trial court’s judgment was based solely on the pleadings, exhibits, and arguments of counsel rather than on evidence presented to the court, that it was not supported by clear and convincing evidence.

The fact that a full evidentiary hearing, having been specifically requested, was not conducted after the June 14, 1999 hearing, raises doubts as to whether there was substantial evidence to support the judgment. Tenant attached to the motion letters between Tenant’s and Landlord’s attorneys concerning the negotiations, and Tenant did not dispute their validity. The trial court did have letters containing Landlord’s admissions agreeing to accept an increased monthly rental payment as a result of the settlement discussion. Also, it was undisputed that Landlord received and accepted the increased payments, the result of the negotiations, for over 17 months.

At oral argument, when Landlord’s attorney was asked point blank what he would have presented in evidence at the hearing, he responded that he would have shown evidence that his clients did not have full knowledge of all material facts of the negotiations and, therefore, they could not have ratified the letters their former attorney had sent to Tenant’s attorney accepting the settlement agreement.

The moving party requesting specific performance of a settlement agreement has the burden of proving the agreement by clear, convincing and satisfactory evidence, Randall v. Harmon, 761 S.W.2d 278 (Mo.App.1988). The out-of-court admissions, and the Landlord’s acceptance of the increased monthly rental amount leads to an application of the doctrine of ratification. “As a general rule, by accepting benefits a person may be estopped from questioning the existence, validity, and effect of a contract. A party will not be allowed to assume the inconsistent position of affirming a contract in part by accepting or claiming its benefits, and disaffirming it in part by repudiating or avoiding its obligations, or burdens.” Dubail v. Medical West Bldg. Corp., 372 S.W.2d 128, 132 (Mo.1963) quoting 31 C.J.S. Estoppel § 110, pp. 350-51. This principle applies to settlement contracts as well. See e.g. Fritsch v. Nat’l City Bank of St. Louis, 24 S.W.2d 1066 (Mo.App.1930).

It has long been established that “one who ratifies an act done in his name without previous authority must ratify it as done, and he cannot accept in part, and reject in part.... Consequently, if he sees fit to adopt an unauthorized act at all, he must adopt it as a whole, and in its entirety.” Id. at 1067. (citations omitted). “It is an elementary principle of law that a ratification relates back, and is equivalent to prior authority, by which we mean that it goes back to the time when the unauthorized act was done, and makes it as effective from that time as though it had been originally authorized....” Id. at 1069.

Under the particular facts of this appeal, despite the undisputed facts of the negotiations and the actions of Landlord in accepting the increased rent, this court, however, deems it necessary to reverse and remand to allow the Landlord to present evidence as to how the rent issue was not the only issue between the parties in their negotiations. Landlord had requested the opportunity to present evidence. Through no fault of Landlord, or the court for that matter, Landlord has not had the chance to present evidence favorable to a conclusion that the rent issue was not the sole portion of the lease to be amended.

CONCLUSION

The judgment granting the respondent’s motion to compel settlement is reversed and remanded for an evidentiary hearing.

All concur.


author: PER CURIAM.

text:
    Kevin WINSTON, Appellant, v. STATE of Missouri, Respondent.
    No. ED 76299.
    Missouri Court of Appeals, Eastern District, Division One.
    Aug. 22, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 4, 2000.
    Application for Transfer Denied Dec. 5, 2000.
    Elizabeth A. Haines, Asst. Sp. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Andrea L. Mazza, Asst. Atty. Gen., Jefferson City, for respondent.
    Before: ROBERT G. DOWD, P.J., MARY RHODES RUSSELL, J., and RICHARD B. TEITELMAN, J.
   ORDER

PER CURIAM.

Kevin Winston (Movant) appeals from the denial of his Rule 29.15 motion for post-conviction relief. The convictions sought to be vacated were for three counts of burglary in the second degree and three counts of stealing over $150, for which Movant was sentenced to six concurrent terms of fifteen years’ imprisonment. Movant contends the motion court erred in denying his claim that his trial counsel was ineffective for failing to strike for cause four allegedly unqualified venirepersons. We have reviewed the briefs of the parties and record on appeal. The motion court’s ruling was based on findings and conclusions that are not clearly erroneous. Rule 29.15(k). An extended opinion would have no precedential value. We have, however, provided the parties with a memorandum for their use only explaining the reasons for this decision. The judgment is affirmed pursuant to Rule 84.16(b).

      . This Court has previously affirmed the underlying judgment and sentence in the direct appeal of Movant's criminal case. See State v. Winston, 959 S.W.2d 874 (Mo.App. E.D.1998).


text:
    Joel CHANEY, Appellant, v. STATE of Missouri, Respondent.
    No. ED 76371.
    Missouri Court of Appeals, Eastern District, Division One.
    Aug. 22, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 4, 2000.
    Application for Transfer Denied Dec. 5, 2000.
    Jane Berman, Asst. Sp. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Catherine Chatman, Asst. Atty. Gen., Jefferson City, for respondent.
    Before: ROBERT G. DOWD, Jr., P.J., MARY RHODES RUSSELL, J., and RICHARD B. TEITELMAN, J.
   ORDER

PER CURIAM.

Movant appeals from the denial of his Rule 29.15 motion for post-conviction relief following an evidentiary hearing.

The judgment of the motion court is based on findings of fact and conclusions of law that are not clearly erroneous. No error of law appears. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order.

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