author: GARYD. WITT, Judge.

text:
    STATE of Missouri, Respondent, v. Kalvin M. LOYD, Appellant.
    No. WD 71692.
    Missouri Court of Appeals, Western District.
    Dec. 21, 2010.

      Meghan A. Litecky, Kansas City, MO, for respondent.
    Frederick J. Ernst, Kansas City, MO, for appellant.
    Before Division Four: LISA WHITE HARDWICK, Chief Judge, Presiding, ALOK AHUJA, Judge and GARY D. WITT, Judge.
   GARYD. WITT, Judge.

After a jury trial, Kalvin Loyd was convicted of driving while intoxicated, Section 577.010 and driving while revoked, Section 302.321. Loyd was sentenced by the trial court to six months incarceration on both counts, with the execution of each sentence suspended, and Loyd was placed on two years of probation. For the reasons stated below, we reverse and remand Loyd’s conviction and sentence.

Factual Background

Loyd was charged in the Circuit Court of Jackson County with the class B misdemeanor of driving while intoxicated, Section 577.010 and the class A misdemeanor of driving while revoked, Section 302.321 for events that occurred on August 25, 2008.

Beginning on August 18, 2009, the case was tried before a jury. At trial, the State presented evidence that on August 25, 2008, after leaving the Isle of Capri casino in Kansas City, Missouri, with his wife at approximately 2:00 a.m., Loyd drove his vehicle while intoxicated and while his license was revoked. After the jury returned a guilty verdict on both counts, the trial court sentenced Loyd to six months incarceration on both counts, with the execution of each sentence suspended, and Loyd was placed on two years of probation. Loyd now appeals.

Further facts pertaining to the circumstances of Loyd’s arrest and conviction will be outlined as relevant in the analysis section.

Analysis

In Point One, Loyd argues that the trial court erred in overruling his motion to suppress evidence because the officer did not have reasonable suspicion or probable cause to stop Mr. Loyd’s car.

Loyd does not dispute that his claim on appeal can be reviewed by this Court only for plain error, which he requests under Rule 30.20. While Loyd argued his motion to suppress immediately prior to the beginning of trial, it is not disputed that he failed to preserve his claim in this regard at trial through an appropriate objection. “Absent an objection at trial to the admission of the evidence challenged in the motion, the issue is not preserved for appellate review.” State v. Williams, 9 S.W.3d 3, 11 (Mo.App. W.D.1999) (“Here, although the appellant filed a pretrial motion to suppress the crack cocaine seized, as well as the rest of the State’s evidence relating to the alleged illegal search of his apartment, the record reflects that he failed to object at trial to the admission of this evidence.”); see also State v. Edwards, 280 S.W.3d 184, 188 (Mo.App. E.D.2009) (“Because a ruling on a motion to suppress is interlocutory, and thus subject to change during the trial, a specific objection must be made when the evidence is offered at trial in order to preserve the issue for appellate review.”).

Rule 30.20 authorizes us to review, in our discretion, “plain errors affecting substantial rights ... when the court finds that manifest injustice or miscarriage of justice has resulted there from.” “Errors are plain if they are evident, obvious, and clear.” State v. Rios, 314 S.W.3d 414, 422 (Mo.App. W.D.2010).

“At a motion to suppress hearing, the State bears the burden of proving that the seizure was constitutionally proper.” State v. Pike, 162 S.W.3d 464, 472 (Mo. banc 2005). “When reviewing the trial court’s overruling of a motion to suppress, this Court considers the evidence presented at both the suppression hearing and at trial to determine whether sufficient evidence exists in the record to support the trial court’s ruling.” Id. “This Court defers to the trial court’s factual findings and credibility determinations, and considers all evidence and reasonable inferences in the light most favorable to the trial court’s ruling.” State v. Sund, 215 S.W.3d 719, 723 (Mo. banc 2007) (citations omitted).

The Fourth Amendment to the United States Constitution guarantees that individuals will not be subject to unreasonable searches or seizures. U.S. Const, amend. IV. “A routine traffic stop based on the violation of state traffic laws is a justifiable seizure under the Fourth Amendment.” State v. Granado, 148 S.W.3d 309, 311 (Mo. banc 2004). “So long as the police are doing no more than they are legally permitted and objectively authorized to do, the resulting stop or arrest is constitutional.” Id. “As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” State v. Johnson, 148 S.W.3d 338, 340 (Mo.App. W.D.2004) (internal quotation marks omitted). ‘Where a driver’s actions are not proscribed by law and would not justify the issuance of a warning, however, there is no probable cause or reasonable suspicion to stop the vehicle.” Id. Whether probable cause existed is based upon the knowledge the police officer had prior to the search or seizure. Hack v. Vincent, 257 S.W.3d 667, 670 (Mo.App. W.D.2008).

Here, Loyd argues that the officer in question that initiated the traffic stop did not have probable cause to believe that Loyd had violated a statute or traffic ordinance, and thus any seizure by the police was inherently unreasonable. We agree.

It is not disputed on appeal that after the police pulled Loyd over, the officer testified that it was readily apparent that Loyd was driving while intoxicated. Accordingly, the propriety of Loyd’s detention, which led to his subsequent arrest, turns on whether the police had probable cause to pull over his vehicle in the first instance.

At the suppression hearing, the State argued that Loyd had committed three different traffic violations, each of which gave the officer in question probable cause to stop Loyd’s vehicle. Accordingly, we analyze these three different traffic violations in turn because the police needed only to have probable cause to believe that Loyd committed one traffic violation in order to have authority to pull Loyd’s vehicle over. In this case the trial court had the benefit of a dash cam video from the officer’s car of the entirety of the activities on the night in question.

A. Failure To Signal

At the suppression hearing, the State argued that the officer’s stop of Loyd’s vehicle was lawful in light of the fact that the police had probable cause to believe that Mr. Loyd had violated a traffic ordinance by failing to signal prior to turning.

It is not disputed on appeal that Loyd’s alleged failure to signal occurred while Loyd’s vehicle was leaving the Isle of Capri Casino’s private parking lot, which took place prior to the vehicle turning on to a public thoroughfare. Specifically, Loyd took a right turn onto Front Street, which is located in Kansas City, Missouri. The first time the officer had an opportunity to observe Loyd’s automobile, it was stopped at the stoplight exiting the casino.

The dash cam video in this case begins during the officer’s previous car stop and runs through the entire interaction between Loyd and the officer. As Loyd left the Isle of Capri Casino, he turned to the right from the Casino parking lot onto Front Street, ending up traveling in the same direction as the officer, in front of the officer. The officer admitted that, based on a slight curve in the road he was on and the angle from which he approached the intersection, he was not in a position to see either the front or rear right hand turn signals of Loyd’s car either before or during the car’s turn. This fact is clearly evidenced by the dash cam video. The officer based his belief that Loyd had not used his turn signal solely on the fact that he believed that the turn signal would not have automatically turned itself off by the time he could see the rear right turn signal light. This belief is based solely on the assumption that Loyd was using a turn signal with an automatic shutoff that the automatic shutoff would not have engaged by the time Loyd finished the turn so the officer could see the rear turn signal, and that Loyd did not override the automatic shutoff and turn the signal off at some point during the turn. The officer did not observe any of Loyd’s activities or driving in the parking lot.

The State did not charge Loyd with the crime of failure to signal, and the dash cam video is clear that there was no evidence to support such a charge. Therefore, State’s argument that this constitutes probable cause for the stop must fail.

The question presented is, even if there was evidence to support that Loyd failed to signal at this intersection, was his failure to signal a violation of the law in light of the fact that the failure to signal occurred on private property. Both the State of Missouri and the City of Kansas City require motorists to signal prior to turning their vehicles under certain circumstances. Section 304.019 is entitled “Hand and mechanical signals, violations, penalty” and states the following in relevant part:

No person shall stop or suddenly decrease the speed of or turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety and then only after the giving of an appropriate signal in the manner provided herein.
(2) An operator or driver intending to turn the operator’s vehicle to the right shall extend such operator’s arm at an angle above horizontal so that the same may be seen in front of and in the rear of the vehicle, and shall slow down and approach the intersecting highway as near as practicable to the right side of the highway along which such operator is proceeding before turning[.]

Id. (emphasis added).

“The primary objective of statutory interpretation is to ascertain the intent of the legislature and give effect to that intent as it is reflected in the plain language of the statute.” State v. Simmons, 270 S.W.3d 523, 531 (Mo.App. W.D.2008). “When the language of the statute is unambiguous, a court must give effect to the language as written.” Id.

Here, it is unambiguous that Section 304.019 applies only to motorists on a “roadway,” which is defined as “that portion of a state highway ordinarily used for vehicular travel, exclusive of the berm or shoulder.” Section 304.001(12) (emphasis added). Of course, because Loyd was on private property prior to turning, there can be no doubt that he was not located on a “state highway.” For this reason, we conclude that the officer did not have probable cause to believe that Loyd violated Section 304.019.

In its municipal code, the City of Kansas City also requires motorists to signal prior to turning under specific circumstances. Section 7CM54 is entitled “Turning movements; required signals” and provides in relevant part the following:

(a) No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in section 70-451, or turn a vehicle to enter a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a roadway, unless and until such movement can be made with reasonable safety. No person shall so turn any vehicle without giving an appropriate signal in the manner provided in this division. (b) A signal of intention to turn right or left, when required, shall be given continuously during not less than the last 100 feet traveled by the vehicle before turning.

Id. (emphasis added).

As defined by the municipal code, it cannot be disputed that Loyd was not at an “intersection” or “roadway” prior to turning since he was on private property that was not “publically maintained,” and therefore he was not required to signal prior to turning. Accordingly, the police could not have had probable cause to believe that Loyd was in violation of Section 7CM54.

For all of these reasons, Loyd’s failure to signal, if he did not do so, while in the Isle of Capri’s parking lot did not provide the police probable cause to pull over Loyd’s vehicle.

B. Failure To Turn In The Nearest Lane

The State also argued at the suppression hearing that the officer’s stop of Loyd was lawful in light of the fact that Loyd did not turn into the nearest lane. We need not be detained by this issue because the State concedes on appeal, as it must, that the officer testified at the hearing that he was unaware of this alleged traffic violation until after he reviewed the dash cam video of the incident, which the officer did not review until after he had detained and arrested Loyd.

“ ‘Probable cause to arrest exists when the arresting officer’s knowledge of the particular facts and circumstances is sufficient to warrant a prudent person’s belief that a suspect has committed an offense.’ ” State v. Clayton, 995 S.W.2d 468, 477 (Mo. banc 1999) (quoting State v. Tokar, 918 S.W.2d 758, 757 (Mo. banc 1996)). “Whether there is probable cause to arrest depends on the information in the officers’ possession prior to the arrest.” Id.

In addition, at the location where these events occurred, any person leaving the parking lot that Loyd was exiting, wishing to get on the entrance ramp to the highway, must immediately cross over into the far lane. The State points us to no statute or ordinance which makes Loyd’s actions, in turning into the far lane rather than the lane closest to the intersection, a criminal violation.

Accordingly, we conclude that the officer did not have probable cause in this regard to detain Loyd for a traffic violation that the officer had no knowledge of prior to Loyd’s arrest.

C. Driving On The Center Line

Finally, the State argues that the officer had probable cause to pull over Loyd in light of the fact that his vehicle’s tires touched the center line of Front Street prior to the officer pulling him over. We disagree.

At the suppression hearing, the officer testified that prior to pulling over the vehicle, he observed Loyd’s car driving “with its right wheels on the center line as it went around the corner.” The dash cam video supports that Loyd’s tires did touch, but not cross, the white stripes dividing the lanes. This Court has previously held that such a minor deviation does not provide the police probable cause to detain the driver in order to cite him for a traffic violation. “[T]here is extensive case law from numerous jurisdictions holding that slightly crossing over the fog line once or twice for a moment does not, in and of itself, justify a traffic stop.” State v. Abeln, 136 S.W.3d 803, 810, n. 7 (Mo.App. W.D.2004) (citations omitted); see also State v. Mendoza, 75 S.W.3d 842, 845-46 (Mo.App. S.D.2002) (holding that driving “onto but not over the left yellow line” did not “justify the issuance of a warning,” and therefore finding that the police “lacked probable cause or reasonable suspicion to stop Mendoza’s vehicle”).

Here, prior to pulling him over, the officer admitted that Loyd was not “swerving”; “wasn’t driving erratically”; “wasn’t speeding”; “wasn’t about to strike anything”; • and “wasn’t straddling two lanes.” All Loyd was doing, which is confirmed by the dash cam video, was driving his ear with his tires touching the center line. But this, alone, was an insufficient basis to provide the police probable cause to conduct a traffic stop. Id.

The State, in its arguments to the trial court and in its brief before this Court, misleadingly uses civil driver’s license revocation cases, dealing with the officer’s probable cause to believe a defendant is intoxicated, to support its argument. The probable cause for the stop is not relevant to the civil driver’s license cases. Wisdom v. Dir. of Revenue, 988 S.W.2d 127, 130 (Mo.App. S.D.1999). The cases the State relies on deal only with the probable cause to believe the driver was intoxicated, not the probable cause for the original stop, which is the issue in this case.

The dash cam video clearly establishes that there was no illegal or unusual driving in this case. “The Court may not supply missing evidence, or give the [State] the benefit of unreasonable, speculative or forced inferences. If the evidence is insufficient to sustain a conviction, plain error affecting substantial rights is involved from which manifest injustice must have resulted.” State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001) (internal citations and quotation marks omitted). There was no probable cause to stop Loyd.

For all of the aforementioned reasons, we find that the State failed to meet its burden of proof in order to demonstrate that the traffic stop was a justifiable seizure pursuant to the Fourth Amendment. Absent probable cause for the stop, all subsequent evidence should have been suppressed. Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939). Without this evidence, there is no way the State could make a submissible case. We find the ruling of the trial court resulted in a manifest injustice. Therefore, we conclude that the trial court plainly erred in failing to grant Loyd’s motion to suppress. Point One is granted.

Conclusion

The judgment of the trial court convicting Loyd of driving while intoxicated and driving while revoked is reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion. It will then be up to the State to decide how it wishes to proceed.

All concur.

      . All statutory citations are to RSMo 2000 as updated through the 2009 Cumulative Supplement, unless otherwise indicated.

      . It should be noted that the record in this case shows' that the trial court never ruled on Loyd’s Motion to Suppress. A hearing was held on the motion on the morning of the trial. At the conclusion of that hearing, the trial judge indicated that "the probable cause here is a little doubtful” and requested the dash cam video for further review prior to ruling and took the matter under advisement. When court went back in session, there were various other motions addressed, and then the jury was brought in without the trial court ever announcing a ruling on the Motion to Suppress.

      . All rule references are to the Missouri Supreme Court Rules (2010), unless otherwise indicated.

      . "We ordinarily review the denial of a motion to suppress to determine if there was substantial evidence to support the decision and will only reverse if the trial court’s ruling is clearly erroneous.” State v. Nylon, 311 S.W.3d 869, 884 (Mo.App. E.D.2010). "Clear error review of the denial of a motion to suppress, however, requires that the moving party properly preserved the trial court error.” Id.

      . Based on our conclusion, discussed infra, that the failure to signal at this location did not constitute a crime, we don’t need to decide the sufficiency of the evidence to support a finding on this issue.

      . Section 1 of this section proscribes the occasions upon which a driver must signal. Subsections (1), (2) and (3) proscribe the way in which a signal must be given for each action and subsection (4) proscribes that the required signal may be given by a signal light or device in lieu of an arm signal.

      . Section 304.001.13 defines "State highway” to be "a highway constructed or maintained by the state highways and transportation commission with the aid of state funds or United States government funds, or any highway included by authority of law in the state highway system, including all right-of-way."

      . We acknowledge that the Southern District analyzed a similar issue and reached a different result in State v. Moore, 271 S.W.3d 641 (Mo.App. S.D.2008). In Moore, motorist was stopped for failing to signal prior to turning and was subsequently arrested for driving while intoxicated. Id. at 642. Notwithstanding the fact that both the road he was traveling on prior, and after turning was not a "roadway,” the Southern District nonetheless concluded that the officer had probable cause to pull over the defendant in light of the fact that "intersecting highway” fell within the broad confines of the definition of "highway” pursuant to Section 304.025. Id. at 643. Section 304.025 defines “highway” tobe “any public road or thoroughfare for vehicles, including state roads, county roads and public streets, avenues, boulevards, parkways or alleys in any municipality.” The Southern District held that the language of subsection (3) of 304.019 which sets forth how the signal is to be given, serves to expand the duty requirements of 304.019.1 which sets forth the duty to signal. We find this to be a strained reading of the statute.
      Here, the "intersecting highway” that Loyd turned on (Front Street) falls within the broad confines of the definition of "highway” under Section 304.025. We conclude, however, that because Loyd was not on a "roadway” prior to turning, the fact that he turned upon a "highway” is of no importance under the clear language of the statute. In reaching this conclusion, we note that this Court has previously held that Section 304.091 is a “criminal statute” that must be "narrowly construed.” See State v. Johnson, 148 S.W.3d 338, 344-45 (Mo.App. W.D.2004) (holding that Section 304.019 does not “apply to a driver pulling away from a curb and proceeding down the street”). We elect to follow the analysis of Johnson as opposed to that in Moore.

      . Section 70-1 defines the applicable terms of "intersection,” "roadway,” "street,” and "highway.” Without outlining the full language that defines each and every one of these terms, it is sufficient to say that to fall within any one of these definitions the area in question must be “publically maintained.” We also note that section 70-454 itself distinguishes a "roadway” from a "private road or driveway.”

      . In addition the ordinance requires the person to signal "before turning” not during or after the turn. As was previously noted, the officer admitted that he had no way of knowing whether or not Loyd signaled before he turned.

      . We do not reach the merits of Loyd’s other claims herein in light of the fact that Point One is dispositive of this appeal.


source: Caselaw Access Project

author: JAMES EDWARD WELSH, Presiding Judge.

license: Public Domain

text:
    Larry Gene WELCH, Appellant, v. STATE of Missouri, Respondent.
    No. WD 71156.
    Missouri Court of Appeals, Western District.
    Dec. 21, 2010.

      Margaret Johnston, Columbia, MO, for Appellant.
    Shaun Mackelprang, Jefferson City, MO, for Respondent.
    Before JAMES EDWARD WELSH, P.J., MARK D. PFEIFFER, and KAREN KING MITCHELL, JJ.
   JAMES EDWARD WELSH, Presiding Judge.

Larry Gene Welch appeals the circuit court’s judgment denying his Rule 24.035 motion for post-conviction relief. He claims that the circuit court clearly erred in denying his motion because he proved that he was prejudiced by plea counsel’s erroneously advising him that he would serve only forty to fifty percent of his sentence prior to parole eligibility when, in fact, the statute required him to serve a minimum of eighty-five percent before becoming eligible for parole. We affirm.

Welch was indicted on two counts of involuntary manslaughter and two counts of second-degree assault. During his guilty plea hearing, Welch admitted that, on the morning of November 4, 2007, he was driving his truck on Route C in Cole County. Although Welch was traveling east, he was driving in the westbound lane. A car, occupied by Eric and Jean Olsen and their two children, Tobias and Johanna, approached. The Olsens were traveling west in the westbound lane. To avoid Welch’s truck, Eric Olsen, who was driving, swerved into the eastbound lane. At the same time, Welch swerved into the eastbound lane and hit the passenger side of the Olsens’ car. The collision killed Jean and Tobias Olsen. Eric and Johanna Olsen survived the crash but suffered permanent injuries. Welch admitted that his negligence caused the collision and that his blood alcohol content at the time was “in excess of what the law presumes to be impaired.”

Welch offered his plea of guilty as a “blind plea,” because he had no plea agreement with the State. The court informed Welch that the range of punishment on each of the two involuntary manslaughter charges was five to fifteen years in prison, and the punishment on each of the two second-degree assault charges ranged from a fine to up to seven years in prison. Welch testified that he understood the range of punishment on all of the charges. The court accepted Welch’s guilty plea after finding that it was knowingly and voluntarily made. The court sentenced Welch to two concurrent terms of fifteen years imprisonment on the involuntary manslaughter convictions and two terms of five years imprisonment on the second-degree assault convictions. The sentences for the second-degree assault convictions were to run concurrently with each other but consecutively to the sentences for the involuntary manslaughter convictions. Hence, Welch’s consecutive sentences total twenty years imprisonment.

Welch subsequently filed a timely Rule 24.035 motion for post-conviction relief. In his motion, he alleged that his plea counsel was ineffective for misinforming him that he would have to serve only forty to fifty percent of his sentence prior to parole eligibility, instead of the statutorily-required eighty-five percent, which was applicable to his involuntary manslaughter convictions. The court held an evidentia-ry hearing on Welch’s motion.

During the evidentiary hearing, Welch testified that his plea counsel had told him that he would have to serve approximately forty to fifty percent of his sentence prior to parole eligibility. Welch further testified that, if he had known that he was going to have to serve eighty-five percent of his sentence prior to parole eligibility, he would not have entered his guilty plea. On cross-examination, Welch admitted that, when he entered his plea, he was aware that the court could have given him consecutive sentences totaling forty-four years imprisonment pursuant to the maximum range of punishment for each of his offenses. Welch’s plea counsel also testified at the hearing. Plea counsel testified that he had misread the statute and erroneously advised Welch that he would have to serve approximately fifty percent of his sentence before becoming eligible for parole.

The circuit court denied Welch’s motion. In its judgment, the circuit court assumed, without deciding, that plea counsel’s erroneous advice regarding the percentage of time Welch would have to serve fell below an objective standard of reasonableness. The circuit court concluded, however, that Welch failed to demonstrate that he was prejudiced by counsel’s erroneous advice. Welch appeals.

Our review of the circuit court’s ruling on a Rule 24.035 motion is limited to determining whether its findings and conclusions are clearly erroneous. Rule 24.035(k). Findings and conclusions are clearly erroneous only if we have a definite and firm impression that a mistake was made. Dobbins v. State, 187 S.W.3d 865, 866 (Mo. banc 2006). By pleading guilty, Welch “waived any claim that counsel was ineffective except to the extent that the conduct affected the voluntariness and knowledge with which the plea was made.” Worthington v. State, 166 S.W.3d 566, 573 (Mo. banc 2005). Welch claims that his plea was involuntarily and unknowingly made because his plea counsel misinformed him that he would be eligible for parole after serving forty to fifty percent of his sentence instead of the statutorily-required eighty-five percent.

To succeed on his claim of ineffective assistance of counsel, Welch must show by a preponderance of the evidence that his plea counsel’s performance did not conform to the degree of skill, care, and diligence of a reasonably competent attorney and that he was thereby prejudiced. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Welch must satisfy both prongs— ineffective assistance and prejudice — to be entitled to relief. Haskett v. State, 152 S.W.3d 906, 909 (Mo.App.2005). If Welch fails to show either ineffective assistance or prejudice, we do not need to consider the other. Id.

In his sole point on appeal, Welch claims that the circuit court clearly erred in concluding that he failed to establish prejudice from his plea counsel’s erroneous advice about his parole eligibility. He argues that the evidence established that the case against him, while emotionally compelling, was factually only “average.” Specifically, he claims that there were many facts in his favor, such as that the only evidence of his blood alcohol content at the time of the collision was based solely upon retrograde extrapolation; the collision happened at 10:30 a.m. on a Sunday; and the collision actually occurred while Welch was driving in his own lane. Because of these facts, Welch contends that there is a reasonable probability that, but for his plea counsel’s erroneous advice concerning his parole eligibility, he would have chosen to go to trial rather than to plead guilty. We disagree.

The record before us does not support Welch’s claim that these facts were actually favorable to the defense. Welch contends that, because his blood alcohol content was derived from retrograde extrapolation, “[tjhere might have been a persuasive defense argument as to reasonable doubt,” but he offers nothing to support this bare assertion. Moreover, that the collision occurred at 10:30 on a Sunday morning is hardly favorable to Welch. While the Olsen family was driving home from church, Welch was driving while impaired, mid-morning on a Sunday. Lastly, although the collision may have occurred in Welch’s lane, the evidence was that, immediately before the collision, Welch was driving in the wrong lane and Eric Olsen swerved into what should have been Welch’s lane only to avoid hitting Welch, who then swerved into his lane and hit the Olsens. These facts do not provide a basis for concluding that, but for his plea counsel’s erroneous advice concerning parole eligibility, there is a reasonable probability that Welch would have insisted on going to trial.

Even if these facts could be viewed as favorable to the defense, however, the facts and circumstances unfavorable to the defense were compelling and quite damning. Welch’s plea counsel testified at the evidentiary hearing that he had advised Welch that a jury trial would not be in his best interest because (1) Welch’s entire defense would rest largely upon Welch’s testimony, and Welch would not be a good witness due to his flat demeanor, poor memory, and prior convictions; (2) the State’s evidence against Welch included graphic and gruesome photographs of the collision and the victims that would elicit “huge emotion” on the part of the jury; and (8) the jury’s sympathy would clearly lie with the victims, as the collision caused the deaths of two members of the Olsen family. The circuit court agreed with this assessment of the weaknesses of the defense, finding that Welch was not a strong witness during the evidentiary hearing, that some of the State’s photographs depicting the “devastating nature of the crash and the fatal injuries suffered by Jean and Tobias Olsen” would have been admissible, and that the evidence against Welch was both “strong and aggravating” and would show that Welch, “in an instant, killed half a family.”

The court found that, given these “harsh facts,” and in light of the possible sentence that Welch could have faced compared to the sentence he actually received, Welch’s assertion that he would have proceeded to trial had he known about the eighty-five percent rule was “incredible.” We defer to the circuit court’s credibility determinations in a post-conviction relief proceeding. Miller v. State, 260 S.W.Sd 393, 396 (Mo.App.2008).

We, therefore, affirm the circuit court’s judgment denying Welch’s Rule 24.036 motion.

All concur.

      . Section 565.024.2, RSMo Cum.Supp.2006, requires that a defendant convicted of involuntary manslaughter under these circumstances serve a minimum of eighty-five percent of his sentence.

      . The circuit court’s assumption was correct. In Miller v. State, 260 S.W.3d 393, 395 (Mo.App.2008), a case with strikingly similar facts, we found that plea counsel provided ineffective assistance when he erroneously advised Miller that she would be eligible for parole after serving forty percent of her sentence instead of eighty-five percent. We ultimately rejected Miller’s claim, however, after finding that the record did not support her assertion that, but for counsel's erroneous advice, she would not have pleaded guilty but would have insisted upon going to trial. Id. at 395-96.

      . Welch’s blood alcohol content was not tested until three hours after the collision. At that time, it was below .08 percent. Based upon this reading, a chemist for the State extrapolated that Welch’s blood alcohol content at the time of the collision was .12 percent.

      . The record is unclear as to whether Welch’s prior convictions were alcohol related. His plea counsel testified that Welch had "some priors” and that they did not "necessarily appear to be alcohol-related.” Nevertheless, even if they were not alcohol related, Welch’s prior convictions would have impacted his credibility as a witness.

      . We note that Welch would have remained subject to the eighty-five percent rule with respect to the involuntary manslaughter charges whether he pled guilty or took his case to trial.


author: CYNTHIA L. MARTIN, Judge.

text:
    Dawn STEVENSON, Respondent, v. AQUILA FOREIGN QUALIFICATIONS CORP., Appellant.
    No. WD 72214.
    Missouri Court of Appeals, Western District.
    Dec. 21, 2010.

      Ronald D. Marney, David A. Schatz and Derek T. Teeter, Kansas City, MO, for appellant.
    Herbert W. McIntosh, Steven L. Hob-son and Gary L. Leftridge, Kansas City, MO, for respondent.
    Before Division Three: ALOK AHUJA, Presiding Judge, VICTOR C. HOWARD, Judge and CYNTHIA L. MARTIN, Judge.
   CYNTHIA L. MARTIN, Judge.

Aquila Foreign Qualifications Corp. appeals from the trial court’s judgment denying its motion for set-off and credit. Aquila contends that it was entitled to a set-off pursuant to section 537.060 because Dawn Stevenson reached a settlement in another action for the same injuries for which she obtained a judgment against Aquila. We affirm.

Factual and Procedural History

On July 5, 2000, Stevenson was in an automobile accident (the “2000 accident”) with an Aquila employee. Aquila concedes that the negligence of its employee was the sole cause of the 2000 accident. The impact of the collision was such that Stevenson’s vehicle spun around three times, crossed the center line, left the roadway, returned to the roadway crossing the center line again, and then came to rest off the roadway on the opposite side. Stevenson struck her head and immediately complained of head and neck pain to the emergency personnel. Stevenson was placed in a cervical collar by the emergency medical personnel and transported to the hospital. In the months following, Stevenson sought medical treatment for numbness in her left arm, head and neck pain, and excruciating headaches.

On February 3, 2003, Stevenson was involved in another accident (the “2003 accident”) when she was rear ended by Alissa Durbin, who had been rear ended by Julie Filley while stopped at a stoplight. Stevenson described this accident as minor but within a minute after the collision, she felt pain radiating up the side of her head. Stevenson was transported to the hospital from the scene by emergency medical personnel. Stevenson again sought medical treatment for head and neck pain and for numbness in her left arm. On February 23, 2003, an MRI showed that Stevenson had a herniated disc at C5-6. In July 2003, Stevenson underwent surgery to repair the herniated disc. The surgeon who performed this surgery opined that the herniated disc was caused by the 2000 accident. Stevenson’s treating physician following the 2000 accident had originally diagnosed neck sprain. However at trial, after being provided with additional information from a CT scan taken three weeks after the 2000 accident, the treating physician diagnosed a “herniated disc” as a result of that accident.

On December 30, 2004, Stevenson filed her petition against Aquila seeking damages from the 2000 accident. Stevenson alleged injury “to her cervical and lumbar spine of a severe, permanent and progressive nature, and injuries to her right hip.” In the Aquila lawsuit, Stevenson claimed entitlement to medical expenses associated with the July 2003 herniated disc surgery and related treatment.

After filing the suit against Aquila, Stevenson filed separate suits against Durbin and Filley. The Durbin and Filley suits were consolidated. In the consolidated suit against Durbin and Filley, Stevenson sought damages for “injury to her head, neck, and chest, and ... a herniated disk at the C5-6 level of a severe, permanent and progressive nature.” In interrogatory responses filed in the Durbin/Filley lawsuit, Stevenson claimed injuries to her “[n]eck, chest wall and left knee”; among other things, she sought to recover as damages the medical expenses associated with the July 2003 herniated disc surgery and related treatment.

Stevenson settled with Durbin and Fil-ley. Aquila then filed a third amended answer to Stevenson’s petition to plead an additional affirmative defense. Aquila alleged that Stevenson claimed injuries to her head and neck from the 2003 accident, that Stevenson had settled her claims with Durbin and Filley from the 2003 accident, and that any award obtained against Aquila should be reduced by Stevenson’s settlement with Filley and Durbin.

The Aquila lawsuit was tried by a jury on January 25-29, 2010. Stevenson requested a judgment of $600,000 for damages including medical bills of approximately $60,000, lost wages, future value of lost wages, and loss of enjoyment of life. The jury found in favor of Stevenson but awarded her only $65,000. On February 16, 2010, Aquila filed a post-trial motion for set-off and credit seeking to reduce the judgment by the amount of Stevenson’s settlement with Durbin and Filley. The motion was denied by the trial court. The trial court entered judgment for Stevenson in the amount of $65,000. Aquila appeals.

Standard of Review

The sole issue on appeal relates to the trial court’s refusal to reduce the judgment entered for Stevenson by the amount of the settlement with Durbin and Filley. We will affirm the judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

We defer to the trial court on factual issues and view the evidence and all reasonable inferences drawn there from in the light most favorable to the trial court’s judgment, disregarding all contrary evidence. Essex Contracting, Inc., 277 S.W.3d at 652. However, we independently evaluate whether the trial court properly declared or applied the law to the facts presented. Mo. Land Dev. Specialties, LLC v. Concord Excavating Co., L.L.C., 269 S.W.3d 489, 496 (Mo.App. E.D.2008).

The trial court denied Aquila’s motion for set-off without a hearing and did not issue any findings of fact or conclusions of law. In the absence of findings of fact or conclusions of law, an appellate court assumes that the trial court resolved all issues of fact in accordance with the result reached. State ex rel. Mo. Highways and Transp. Comm’n v. Muslet, 213 S.W.3d 96, 98 (Mo.App. W.D.2006).

Analysis

In its sole point relied on, Aquila contends that the trial court erred in denying its motion for set-off and credit because Stevenson settled her claims against Filley and Durbin for the “same injuries” for which she obtained a judgment against Aquila, entitling Aquila to a set-off or credit against the judgment under section 537.060. We disagree.

Section 537.060 provides in part: When an agreement by release, covenant not to sue or not to enforce a judgment is given in good faith to one of two or more persons liable in tort for the same injury or wrongful death, such agreement shall not discharge any of the other tort-feasors for thé damage unless the terms of the agreement so provide; however such agreement shall reduce the claim by the stipulated amount of the agreement, or in the amount of consideration paid, whichever is greater.

(Emphasis added.) A credit pursuant to section 537.060 “is similar in nature to the common law defense of satisfaction.” Walihan v. St. Louis-Clayton Orthopedic Grp., Inc., 849 S.W.2d 177, 180 (Mo.App. E.D.1993).

Section 537.060 does not alter, but rather implements the common law rule that a plaintiff is entitled to only one satisfaction for the same wrong. Accordingly, the receipt of full satisfaction from either tortfeasor for the wrong for which both are liable would bar plaintiffs recovery from the other for the same injury. Further, when the injured plaintiff settles with one of the tortfeasors for a portion of the wrong for which each is liable, ‘the injured person still retains her cause of action against the other tort-feasors and recovery may be had for the balance of the injury.’

Id. (citations omitted) (emphasis added). Thus, section 537.060 codifies a subset of the common law defense of satisfaction. However, by its terms, section 537.060 does not apply unless the predicate condition — multiple tortfeasors being liable for the same injury — is established.

As Aquila notes in its brief, the predicate condition to application of section 537.060 is established when an injury is caused by joint tortfeasors, referring to defendants whose alleged tortious conduct causes injury to the plaintiff in the same transaction of facts. Teeter v. Mo. Highway & Transp. Comm’n, 891 S.W.2d 817, 820 (Mo. banc 1995) (two defendants sued for wrongful death arising from the same automobile collision); Elsie v. Firemaster Apparatus, 759 S.W.2d 305, 307 (Mo.App. E.D.1988) (three defendants liable for personal injuries sustained in the same automobile collision). These cases demonstrate that “same injury” refers to a scenario where the same transaction of facts causes an injury that is “indivisible” with respect to the relative culpability of the multiple tortfeasors contributing to same. “Same injury” is, therefore, synonymous with “indivisible injury.”

The predicate for application of section 537.060 is also established in the rare case where technically “independent” torts occur under circumstances making it impossible to differentiate which injuries were caused by which defendant, rendering the tortfeasors joint and the injuries “indivisible.” In Barlow v. Thornhill, 537 S.W.2d 412, 414-15 (Mo. banc 1976), plaintiff filed one action against two defendants as the result of two rear end collisions that occurred at the same location within ten to fifteen minutes of each other. Plaintiffs physician testified that he could not attribute the injuries to either collision and that plaintiffs injuries were caused by both collisions. Id. at 415. In finding that the ten to fifteen minutes between the collisions did not preclude the application of the indivisible injury rule, the Supreme Court stated:

The gist of the rule with respect to injuries is not so much the time separating the collisions as it is the impossibility of definitely attributing a specific injury to each collision. Each case must be judged in the circumstances of the case.

Id. at 419 (emphasis added). Barlow thus does not stray from construing “same injury” as an indivisible injury caused by a single transaction of facts. Barlow simply recognizes that in the rare case, two technically independent events are essentially a single transaction of facts causing an indivisible injury because there is insufficient intervening time between the occurrences to permit any other conclusion.

Aquila relies on Brown v. Kneibert Clinic, 871 S.W.2d 2 (M.oApp. E.D.1993), to argue that section 537.060 applies not just to joint tortfeasors but broadly to injuries to the same part of the body caused by independent tortfeasors. Aquila’s reliance is misplaced. In Brown, plaintiff brought a malpractice action against a clinic that performed a surgical procedure during which a medical instrument broke, perforating the plaintiffs colon. 871 S.W.2d at 3. The verdict against the clinic was reduced by the amount of the plaintiffs settlement with the manufacturer of the medical instrument. Id. at 4. The Eastern District noted that the clinic and the manufacturer committed “separate” torts. Id. at 3. However, that observation did not mean that the manufacturer and the clinic were independent (as opposed to joint) tortfeasors. In fact, all joint tortfeasors necessarily commit “separate” torts. What makes “separate” tort-feasors “joint tortfeasors,” however, is the commission of the “separate” torts in a single transaction of facts. That is precisely what occurred in Brown. The “separate torts” of the clinic and the manufacturer coalesced in a single transaction of facts to cause an indivisible injury-a perforated colon. Id. As a result, the manufacturer and the clinic may have committed technically separate torts, but they were legally joint tortfeasors. Thus, section 537.060 applied to require the plaintiffs settlement with the manufacturer of the medical device to be credited against the verdict against the clinic. Brown does not stand for the proposition that where independent tortfeasors cause a plaintiff similar injuries, section 537.060 will apply as a matter of law to require a credit in the event of settlement with one of the tortfea-sors. As in Barlow, Brown does not stray from treating “same injury” as an indivisible injury caused by a single transaction of facts.

Aquila is not a joint tortfeasor in this case. The 2000 accident and the 2003 accident were not a single transaction of facts and did not occur so close in time as to permit the conclusion that the accidents were essentially the same transaction of facts as in Barlow. In fact, Aquila concedes that the injuries Stevenson sustained from the 2000 and the 2003 accidents are not completely identical. However, Aquila nonetheless maintains that because Stevenson claimed in her separate lawsuits that her neck and back injuries were sustained in each accident, section 537.060 requires a credit against the judgment for the amount Stevenson received in settlement from Durbin and Filley. We disagree.

“Same injury” as that term is employed in section 537.060 does not turn on a plaintiffs bare assertion of causation but on whether the plaintiffs injury was, in fact, caused by a single transaction of facts as to render the injury indivisible and subject to joint liability among multiple tortfeasors. A credit pursuant to section 587.060:

is not appropriate ... when the injuries involved are not the same. Thus, where separate torts result in both an original injury and an aggravation thereof, such as when a physician negligently treats the original injury, the successive tort-feasor, e.g., the physician, is not liable for the underlying injury and is only responsible for the harm flowing from his own negligence.

Walihan, 849 S.W.2d at 180 (emphasis added).

The logic of this construction of section 587.060 is revealed in cases where a trial proceeds against independent tortfeasors who have caused a plaintiff similar and/or aggravated injuries. In State ex rel. Retherford v. Corcoran, 643 S.W.2d 844, 845 (Mo.App. E.D.1982), a plaintiff instituted a single action to litigate three separate automobile accidents. Because there were three separate accidents, the defendants were not joint tortfeasors but were independent and successive tortfeasors. The action alleged that the plaintiffs injuries, which included aggravation and re-injury to the same parts of the body, could not be allocated between the three accidents. Id. The Eastern District held that the plaintiff had the burden to establish the injuries that were caused by each defendant. Id. at 846. The Court stated that damages that include aggravation of preexisting conditions:

may create proof problems in differentiating the severity of injuries attributable to each accident. But difficulty of proof does not create joint liability for these independent and unrelated torts. Each defendant has liability for, and only liability for, the injuries sustained by plaintiff as a result of that defendant’s accident .... There is no common liability among the defendants ....

Id. at 846-47 (emphasis added). See also State ex rel. Jinkerson v. Koehr, 826 S.W.2d 346 (Mo. banc 1992) (holding that each defendant is responsible only for the injuries the defendant caused where a plaintiff was involved in two separate accidents occurring almost a year apart).

Similarly, in State ex rel. Nixon v. Dally, 248 S.W.3d 615 (Mo. banc 2008), a plaintiff was involved in two separate rear end collisions occurring ten months apart. Id. at 615-16. The plaintiff filed one action against both defendants. Id. at 616. The evidence indicated that first accident was the primary trigger while the second accident aggravated the prior injury and added symptoms. Id. The Supreme Court held that although joinder of both defendants in a single action was proper, joinder did not mean that the defendants were joint and severally liable. Id. at 618 n. 4. The Supreme Court stated that each defendant would only be liable for the damages each separately caused. Id. The Supreme Court thus held that joint liability is inappropriate where the defendants are independent and successive tortfeasors. Id.

These cases reveal that although a plaintiff may allege his injuries are attributable to multiple independent tortfeasors, the plaintiff will not be able to recover for the same injuries from each independent tort-feasor and will, instead, have the burden of proving causation between each tortfea-sor’s culpable conduct and the injuries actually caused by that conduct. In other words, these cases reveal that a mere claim that multiple independent tortfea-sors caused a plaintiffs injury does not establish joint liability for the injury. It follows that a mere claim that multiple independent tortfeasors caused the plaintiffs injury does not trigger the application of section 537.060 should the plaintiff settle with one of the independent tortfeasors.

In light of the foregoing discussion, we conclude that a non-settling tort-feasor who claims a settlement affords a right to reduction under section 537.060 bears the burden of proving it had joint liability with the settling tortfeasor, a burden which is not met by the fact a plaintiff has merely claimed joint liability. If joint liability does not legally exist, then section 537.060 does not apply, notwithstanding a plaintiffs assertions attributing responsibility for the same injury to multiple independent tortfeasors. Aquila did not meet this burden. Aquila was not jointly liable with Durbin and Filley for Stevenson’s neck and back injuries. Though Stevenson did not file a single lawsuit against Aquila, Durbin, and Filley, had she done so, she would have been unable to secure a joint judgment against all three of the defendants for the entirety of her neck and back injuries. Instead, Stevenson would have been required to establish the neck and back injuries that were caused by each accident. As such, Stevenson’s mere claim in the two separate lawsuits she filed that her neck and back injuries were caused by each accident was insufficient to trigger the application of section 537.060.

The manner in which this case was tried and instructed is consistent with our conclusion. At trial, the jury heard about both accidents and about the claimed injuries sustained in both accidents. Evidence of the treatment that Stevenson received following both accidents was presented through testimony and exhibits which provided the dates of treatment, the identity of treatment providers, and a description of the treatments. Notwithstanding, the jury was instructed to award Stevenson only “such sum as you believe will fairly and justly compensate [Stevenson] for any damages you believe she sustained and is reasonably certain to sustain in the future that the collision with [Aquila] directly caused or directly contributed to cause.” This instruction is completely consistent with Stevenson’s obligation as described in Retherford and Nixon to establish which injuries or damages she sustained as a result of the 2000 accident. Aquila had and took every opportunity during trial to contest causation between Stevenson’s claimed injuries and the 2000 accident and to attempt to attribute Stevenson’s claimed injuries to the 2003 accident. Certainly, Aquila did not believe it was jointly liable for any injuries Stevenson sustained from the 2003 accident. Aquila cannot be heard, therefore, to complain that the trial court failed to give it the benefit of a reduction of plaintiffs judgment pursuant to section 537.060 when the necessary predicate for the application of that statute — -joint liability — did not exist.

Having rejected Aquila’s contention that section 587.060 applied to this case, we also reject Aquila’s reliance on Hogan v. Armstrong World Industries, 840 S.W.2d 230 (Mo.App. W.D.1992), for the proposition that Stevenson had the burden to prove that her settlement with Durbin and Filley did not compensate her for amounts she was awarded by the judgment in the Aquila lawsuit. In Hogan, Donald Hogan asserted product liability claims against several asbestos manufacturers for personal injuries he suffered as a result of exposure to asbestos. Id. at 232. Mr. Hogan’s wife asserted claims for loss of consortium. Id. In causes of action relating to asbestos, common law joint and several liability applies. Sofie v. Fibreboard Corp., 780 P.2d 260 (Wash.1989). Thus, as the multiple tortfeasors in Hogan were joint tortfea-sors, section 537.060 applied. Mr. Hogan and his wife settled with several of the jointly liable defendants prior to trial. Hogan, 840 S.W.2d at 232-33. The settlements did not allocate the amounts paid to the separate claims of Mr. and Mrs. Hogan. Id. at 237. A jury subsequently entered a verdict in favor of Mr. Hogan but against Ms. Hogan following a trial with a non-settling tortfeasor. Id. at 232. The trial court reduced Mr. Hogan’s verdict by the amount of the pretrial settlements paid to Mr. and Mrs. Hogan. Id. at 233. On appeal, Mr. Hogan claimed that some of the settlement payments should have been allocated to his wife’s claim for loss of consortium. Id. at 237. This court disagreed, finding that it was “impossible to determine the intent of the parties as to the separate allocations [of the settlement amounts] for Mr. and Mrs. Hogan’s claims.” Id. This court thus held that the collective settlement of Mr. and Mrs. Hogan’s claims without allocation “indicates the intention of treating [the separate claims] as indivisible.” Id. at 238.

Hogan only applies where joint liability exists and where a credit under section 537.060 is thus required. Hogan simply holds that where plaintiffs with separate claims settle with a joint tortfeasor without allocating the settlement amongst their separate claims, the court will treat the separate claims as an “indivisible claim” for purposes of affording credit against a later judgment under section 537.060. See Walihan, 849 S.W.2d at 181-82 (noting that, in Hogan, “the defendants were jointly liable for all claims brought by husband and wife,” holding Hogan inapplicable in case “involve[ing] separate injuries resulting from successive torts”). Hogan does not stand for the proposition that a settlement between a plaintiff and an independent tortfeasor must allocate the purpose for the settlement payments in order to prevent the settlement from being credited against a later judgment involving another independent tortfeasor. As we discuss, infra, such an interpretation of Hogan would improperly shift the burden to prove the affirmative defense of satisfaction from a defendant to the plaintiff.

Although section 537.060 did not apply to this case, Aquila was not foreclosed from demonstrating that Stevenson received a “double recovery” outside the scope of section 537.060 but within the remaining parameters of the common law defense of satisfaction. As noted in Walihan, “[s]ection 537.060 does not alter, but rather implements the common law rule that a plaintiff is entitled to only one satisfaction for the same wrong.” 849 S.W.2d at 180. As “satisfaction” is an affirmative defense, Aquila bore the burden to plead and prove that the settlement between Stevenson and Durbin and Filley compensated Stevenson for an injury or damage included within the judgment entered against Aquila. Norman v. Wright, 100 S.W.3d 783, 785 (Mo. banc 2003).

Aquila clearly pled the affirmative defense of satisfaction. In order to prove the affirmative defense of satisfaction, Aquila was required to prove that Stevenson double recovered. In other words, Aquila was required to prove an overlap between: (i) the injuries or damages Durbin, Filley, and Stevenson intended their settlement to cover, and (ii) the injuries or damages the jury included in the judgment entered against Aquila. Aquila failed to do either of these things.

We realize Aquila unsuccessfully sought discovery regarding Stevenson’s settlement. In the ordinary case, the details of a settlement with an independent tortfeasor could be viewed as beyond the permissible bounds of discovery as there should be no overlap in a plaintiffs recoveries given the absence of joint liability. However, where a plaintiff expressly alleges a right to recover for the exact same injury or damage from independent tort-feasors, as Stevenson did in this case, the non-settling independent tortfeasor should be permitted to conduct limited discovery regarding the details of a settlement with the other tortfeasor. Otherwise, the non-settling independent tortfeasor is deprived access to evidence necessary to prove the affirmative defense of satisfaction. We are not suggesting a plaintiff who settles with an independent tortfeasor has any obligation to allocate the settlement in order to avoid a presumption of double recovery. We are merely saying that under certain narrow circumstances, where a plaintiff has expressly created the prospect of double recovery by the plaintiffs assertion that multiple independent tortfeasors are liable for the exact same injury or damage, a non-settling independent tort-feasor should be permitted to determine through limited discovery whether a settlement with an independent tortfeasor bears any attributes which would permit a fact finder to conclude how the settling parties intended the settlement to be allocated.

Aquila has not expressly claimed in this appeal that the trial court erred in denying it access to discovery regarding Stevenson’s settlement. However, Aquila asks us to remand this case to permit it to conduct the discovery necessary to support its defense of satisfaction. We decline to do so. Even had Aquila been afforded the right to conduct discovery regarding Stevenson’s settlement, Aquila would have been unable to sustain its burden to prove the defense of satisfaction.

Stevenson asked the jury in the Aquila lawsuit to return a verdict of $600,000. Stevenson put on evidence of medical expenses approximating $60,000. The jury returned a verdict of $65,000. Aquila did nothing to permit the trial court to assess what the jury’s general verdict was intended to compensate. As a result, even had there been evidence about the injuries or damages the Durbin/Filley settlement was intended to compensate, the trial court would have been unable to determine whether the jury’s verdict compensated Stevenson for the same injuries or damages. Aquila “failed to meet its burden, ‘[a]s the party asserting the affirmative defense [of satisfaction] ... to posture the case to ensure that the trial court could apply its defense.’ ” Ozark Air Lines, Inc. v. Valley Oil Co., L.L.C., 239 S.W.3d 140, 145 (Mo.App. W.D.2007) (quoting Kansas City Power & Light Co. v. Bibb & Assocs., Inc., 197 S.W.3d 147, 157 (Mo.App. W.D.2006)).

Conclusion

We affirm the trial court’s judgment.

All concur.

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

      . We view the evidence and all reasonable inferences drawn in the light most favorable to the trial court’s judgment and disregard all contrary evidence. Essex Contracting, Inc. v. Jefferson Cray., 277 S.W.3d 647, 652 (Mo. banc 2009).

      . Although it is undisputed that Stevenson filed suit against Durbin and Filley and that the actions were consolidated, the record on appeal fails to include any file stamped pleadings from either of those actions. The only pleadings from those actions included in the legal file are the petition against Filley, which is attached as an exhibit to Aquila’s suggestions in support of its motion for set-off, and Stevenson’s answers to interrogatories propounded by Durbin.

      . Aquila contends that Stevenson entered into a settlement agreement with Filley and Dur-bin but cites only to Stevenson’s motion in limine to support that fact. The motion in limine does not provide any details of the settlement. Aquila concedes that the amount of the settlement is unknown but "based on information and belief" believes the settlement amount was $50,000. A copy of the settlement agreement was unsuccessfully sought by Aquila during discovery. However, Aquila has not claimed error on this appeal associated with the trial court’s apparent refusal to permit that discovery.

      . Durbin and Filley were joint tortfeasors with respect to the 2003 accident. However, they were not joint tortfeasors with Aquila for the 2000 accident, and Aquila was not a joint tortfeasor with Durbin and Filley for the 2003 accident.

      . Stevenson claimed neck and back injuries from all three defendants but claimed right hip injuries from only Aquila, and head, chest and left knee injuries from only Durbin and Filley.

      . We discuss, infra, that the common law defense of satisfaction can apply if a plaintiff is compensated for an injury or damage from one independent tortfeasor then seeks compensation for the same injury or damage from another independent tortfeasor. Such a scenario is not, however, encompassed within the scope of section 537.060.

      . A plaintiff may allege multiple tortfeasors are liable for the same injury or damage because the plaintiff is not sure which of the multiple tortfeasors will be determined by a finder of fact to be liable for the injury. To be . clear, however, once a plaintiff has in fact recovered for an injury or damage from an independent tortfeasor (as opposed to a contractually liable entity subject to the collateral source rule), the plaintiff will not be able to recover for that same injury or damage again from a different independent tortfeasor. The prohibition against double recovery in the case of independent tortfeasors is not, however, addressed in section 537.060 but remains within the scope of the broader common law defense of satisfaction, as we discuss, infra.

      . Aquila could, for example, have requested special damage interrogatories as a part of the jury instructions.


author: PER CURIAM:

text:
    STATE of Missouri, Respondent, v. Joseph A. SAVALA, Appellant.
    No. WD 72318.
    Missouri Court of Appeals, Western District.
    Dec. 21, 2010.
    Jonathan L. Laurans, for Appellant.
    Shaun J. Mackelprang, for Respondent.
    Before Division Three: ALOK AHUJA, Presiding Judge, VICTOR C. HOWARD, Judge and CYNTHIA L. MARTIN, Judge.
   ORDER

PER CURIAM:

Joseph Savala appeals his conviction for statutory sodomy in the second degree, section 566.064, RSMo 2000, and sentence to two years imprisonment and a $500 fine. He raises three points on appeal regarding the sufficiency of the evidence to support the conviction, the prosecutor’s comments on his post-Miranda silence, and the submission of a jury instruction regarding sentencing. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment is affirmed. Rule 30.25(b).


author: LAWRENCE E. MOONEY, Judge.

text:
    In the ESTATE OF: A.T.
    No. ED 94089.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 14, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 18, 2010.
    Regina Hayes, St. Louis, MO, pro se.
    John J. Ammann and Marie Amendola Kenyon, St. Louis, MO, for respondent.
   LAWRENCE E. MOONEY, Judge.

The maternal grandmother, Regina Hayes, appeals the order of the probate division of the Circuit Court of the City of St. Louis appointing the paternal grandmother, Sharond Thorpe, as statutory guardian for the minor child, A.T., and designating the paternal grandmother as representative payee of the minor’s social-security benefits. Based on the record presented, we affirm the appointment of the paternal grandmother as statutory guardian. However, because a state court has no authority to designate a representative payee of a minor’s social-security benefits, we modify the trial court’s order to eliminate that provision. As modified, we affirm.

A.T. was born in 2004 to the mother, Shanay Branner, and the father, Brandon Thorpe. Shortly after A.T.’s birth, A.T. and her parents moved into the paternal grandmother’s home. Early in 2005, the mother suffered a head injury in a motorcycle accident and spent several months in the hospital. When the mother left the hospital, she moved in with the maternal grandmother, with whom she continued to live at the time of trial. The mother underwent physical, occupational, and speech therapy, and was preparing to undergo more therapy at the time of trial, nearly five years after the accident. A.T. has not lived with her mother since the 2005 accident.

After the mother’s accident, A.T. continued to live with her father and paternal grandmother. In 2007, the father secured sole physical custody of A.T., and the parents shared joint legal custody. The mother enjoyed temporary custody and visitation. The father suffered brain trauma in a motor-vehicle accident in 2008. The father lived in a nursing facility at the time of trial, and the paternal grandmother testified that she believed the father was unaware of his surroundings.

The paternal grandmother petitioned for guardianship of A.T. after the father’s accident. The mother opposed the paternal grandmother’s petition, and the maternal grandmother cross-petitioned for guardianship. The paternal grandmother, the maternal grandmother, and the mother testified at trial as part of the paternal grandmother’s ease. Neither the mother nor the maternal grandmother called any witnesses. The evidence showed that A.T. has lived with the paternal grandmother since A.T. was two months old, and that the paternal grandmother has provided for all of A.T.’s daycare, school, and medical needs since the father’s accident. A.T.’s guardian ad litem recommended that the court appoint the paternal grandmother as A.T.’s guardian. The trial court concluded that both parents were unable to care for A.T., and that it was in A.T.’s best interest to appoint her paternal grandmother as guardian. The maternal grandmother appeals.

In three points on appeal, the maternal grandmother challenges the trial court’s appointment of the paternal grandmother as A.T.’s guardian and as representative payee of A.T.’s social security benefits.

In her first two points, the maternal grandmother challenges the trial court’s appointment of the paternal grandmother as A.T.’s statutory guardian. In point one, she asserts that the trial court erroneously applied a best-interest-of-the-child analysis in appointing the paternal grandmother as A.T.’s guardian. In point two, the maternal grandmother argues that the evidence was insufficient to overcome the mother’s rebuttable presumption that she, as a natural parent, is the appropriate custodian for A.T. Because the analyses of the maternal grandmother’s first two points are interrelated, we consider them together.

We must affirm the trial court’s judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Flynn v. Flynn, 34 S.W.3d 209, 211 (Mo.App. E.D.2000). We give due regard to the trial court to judge the credibility of witnesses, Estate of Williams, 922 S.W.2d 422, 423 (Mo.App. S.D.1996), and the court may accept all, some, or none of a witness’s testimony, Malawey v. Malawey, 137 S.W.3d 518, 522 (Mo.App. E.D.2004).

Three statutes govern appointment of a guardian for a minor. Flynn, 34 S.W.3d at 211. Section 475.025 RSMo. (2000) provides that the father and mother are the natural guardians of a minor child. Section 475.030.4 authorizes the court to appoint a statutory guardian in three instances, including where, as here, the parents, or the sole surviving parent, are unwilling, unable, or adjudged unfit to assume guardianship duties. Finally, section 475.045.1 RSMo. (Supp.2009) gives the parent(s) first priority in appointment as guardian, except as otherwise provided in section 475.030. If the parents cannot fulfill guardianship duties, then the court should appoint the most suitable person willing to serve, whose appointment serves the best interests of the child for a stable and permanent placement. 475.045.3 RSMo. (Supp.2009).

Reading these statutes together, a court should not appoint a guardian for a child unless there is no parent available, willing, and able to care and provide for the child as a natural guardian. Flynn, 34 S.W.3d at 211. These statutes create a rebuttal presumption that a natural parent is the appropriate custodian for his or her child. Cotton v. Wise, 977 S.W.2d 263, 264 (Mo. banc 1998); Flynn, 34 S.W.3d at 211. Evidence that a parent is unwilling, unable, or unfit to take charge of the child, however, will overcome this presumption. Cotton, 977 S.W.2d at 264; Flynn, 34 S.W.3d at 211.

Here, the trial court found that neither the father nor the mother was able to serve as A.T.’s natural guardian because of their physical and mental disabilities. The paternal grandmother testified that AT.’s father suffered brain trauma in a motor-vehicle accident in 2008 that rendered him unable to care for A.T. The father lived in a nursing facility at the time of trial, and the paternal grandmother believed that the father was unaware of his surroundings.

AT.’s mother suffered a head injury in a motorcycle accident in 2005, and she spent some eight months in the hospital. While the mother has had temporary custody of, and visitation with, A.T., she has not lived with the child since the 2005 accident. The mother underwent physical, occupational, and speech therapy, and expected to undergo more therapy at the time of trial, nearly five years post-injury. The maternal grandmother testified that the mother had no checking account because she could not write checks. The mother had difficulty answering questions that required more than a “yes” or “no” answer, and the trial court observed that she exhibited “severely impaired speech.” The mother had to count “one, two, three, four — five” when asked A.T.’s age. When asked what she and AT. liked to do together, the mother could only say, “[tjhat stuff, stuff.” The guardian ad litem recommended that the court appoint the paternal grandmother as AT.’s guardian in light of the mother’s limitations and the guardian ad litem’s belief that the mother could not provide primary care for A.T.

Substantial evidence supported the trial court’s conclusion that AT.’s parents are unable to care for her and to serve as her natural guardians, thus overcoming the mother’s rebuttable presumption that she is the appropriate custodian for A.T. Having determined that the parents were unable to care for A.T., the court correctly applied the law in considering the child’s best interests in appointing the paternal grandmother as A.T.’s statutory guardian. We deny the maternal grandmother’s first and second points.

In her third point, the maternal grandmother asserts that the trial court erred in naming the paternal grandmother as the representative payee of AT.’s social-security benefits without appointing the paternal grandmother as conservator of A.T.’s estate. Where a minor’s entire estate does not exceed $10,000, the court has the discretion to dispense with a conservator-ship, and to authorize payment or delivery of the estate to the person having custody of the minor. Section 475.380.1. It is undisputed that AT.’s estate does not exceed $10,000.

Regardless of the value of AT.’s estate, however, the probate court erred in purporting to designate the paternal grandmother to serve as representative payee of A.T.’s social-security benefits. Malawey, 137 S.W.3d at 528. The Commissioner of Social Security has the authority to determine the representative payee to receive benefit payments on behalf of an individual. 42 U.S.C. 1383(a)(2)(A)(ii)(I); Malawey, 137 S.W.3d at 528. Nothing in this section confers authority on a state court to determine a representative payee for a child’s social-security benefits. Id. Federal regulations set forth who will be appointed as representátive payee for a minor child, with first preference given to a custodial parent or guardian. 20 C.F.R. 416.621(c)(1). Given these regulations, the paternal grandmother could apply to the Commissioner of Social Security to be named AT.’s representative payee, but the trial court has no authority to designate her as such. We grant the maternal grandmother’s third point.

Rule 84.14 permits us to enter the judgment that the trial court ought to give, and unless justice otherwise requires, we shall dispose finally of the case. Therefore, we modify the portion of the trial court’s order by eliminating the provision that the paternal grandmother serve as A.T.’s representative payee of A.T.’s social-security benefits. As modified, we affirm the order.

SHERRI B. SULLIVAN, P.J., and CLIFFORD H. AHRENS, J., concur.

      . The parties have advised us that the father died shortly after trial.

      . All statutory references are to RSMo. (2000) except as otherwise indicated.

      . The maternal grandmother inconsistently argues that the mother is not unable to care for A.T. while at the same time seeking her own appointment as A.T.’s guardian. If the mother was willing, able, and fit to care for A.T., then the mother would be the natural guardian and appropriate custodian for A.T., and a court would have no basis to appoint the maternal grandmother, or anyone else, as A.T.'s statutory guardian. Flynn, 34 S.W.3d at 211. While it is true that appellants are free to advance inconsistent arguments, judges remain free to point out the inconsistencies.


author: PER CURIAM.

text:
    REHNQUIST DESIGN & BUILD INC. and Robert Rehnquist, Respondents, v. Dr. John WELTMER and Peggy Weltmer, Appellants.
    No. ED 93444.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 19, 2010.
    Application for Transfer to Supreme Court Denied Dec. 1, 2010.
    Nelson L. Mitten, Michael P. Wolf, St. Louis, MO, for Appellant.
    .Eugene Portman, Michael J. Lach, Clayton, MO, for Respondent.
    GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J., and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Joseph and Peggy Weltmer (hereinafter and collectively, “Appellants”) appeal from the trial court’s judgment in favor of Rehnquist Design & Build, Inc. (hereinafter, “Contractor”) on their claim for breach of contract and against Robert Rehnquist on their claim for Missouri Merchandising Practices Act violations. Appellants raise four points on appeal. First, Appellants argue the trial court erred in granting partial summary judgment in Contractor’s favor on its second amended counterclaim for restitution. Second, Appellants argue the trial court erred in denying their motion for directed verdict, motion for judgment notwithstanding the verdict, and motion for new trial in that Appellants claim they did not materially breach the contract because the parties mutually agreed to terminate the contract. Third, Appellants claim the trial court erred in denying their motion for new trial on their breach of contract claim against Contractor because the verdict was against the weight of the evidence. Finally, Appellants argue the trial court abused its discretion in awarding them only $6,000 in attorneys’ fees.

We have reviewed the briefs of the parties, the legal file, and transcript on appeal. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. We have, however, provided a memorandum opinion for the use of the parties only, setting forth the reasons for our decision. The trial court’s judgment is affirmed pursuant to Rule 84.16(b).


text:
    Kris KOMSKY, Pat Ford, Diane Komsky, Next Friend of Alexandra Komsky, a Minor, and of Victoria Komsky, a Minor, Plaintiffs/Respondents, v. UNION PACIFIC RAILROAD COMPANY and Mick J. Howard, Respondents, v. Commerce and Industry Insurance Company, Intervenor/Appellant.
    No. ED 94562.
    Missouri Court of Appeals, Eastern District, Division Five.
    Oct. 19, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 1, 2010.
    Mary Anne Lindsey, Lawrence Pratt, Evans & Dixon LLC, St. Louis, MO, for Intervenor/Appellant, Commerce and Industry Insurance Company.
    Mark I. Bronson, St. Louis, MO, Steven M. Bronson, Co-Counsel, Newman, Bronson & Wallis, Dallas, TX, for Respondents, Diane Komsky, Alexandra Komsky, Victoria Komsky.
    James R. Dowd, Co-Counsel, St. Louis, MO, for Respondents, Pat Ford, Kris Komsky.
    Paul M. Malone, Slayton, MN, for Respondents, Alexandra Komsky, Victoria Komsky, by their next friend, Diane Kom-sky.
    James Robert Garrison, Gundlach, Lee, Eggmann, Boyle & Roessler, Belleville, IL, for Respondents Union Pacific Railroad Company and Mick J. Howard.
    Before GARY M. GAERTNER, JR., P.J., MARY K. HOFF, J. and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Commerce and Industry Insurance Company (CIIC) appeals from the Motion to Set Aside the October 21, 2009 Order and Judgment as Void, and Requesting that the Court Rule on CIIC’s September 28, 2009 Motion to Intervene. We affirm.

We have reviewed the briefs of the parties, the legal file, and the record on appeal, and find the claims of error to be without merit. An extended opinion would have no precedential value or serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order pursuant to Rule 84.16(b).


text:
    C.M., Respondent, v. Todd S. PHILLIPS, Respondents.
    No. ED 94280.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 19, 2010.
    Rehearing Denied Dec. 13, 2010.

      Frederick P. Tucker, Macon, MO, for Appellant.
    Holly L. Yoakum, Union, MO, for Respondent.
    Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J., and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Todd S. Phillips (hereinafter, “Appellant”) appeals the trial court’s judgment granting a full order of protection in favor of CM. (hereinafter, “Petitioner”) against him pursuant to Section 455.020 RSMo (2000). In his sole point on appeal, Appellant asserts the trial court erred in granting a full order of protection because the trial court lacked a preponderance of evidence to support its ruling that Appellant abused Petitioner.

We have reviewed the briefs of the parties, the legal file, and transcript on appeal. The trial court’s grant of a full order of protection is supported by substantial evidence. Barazi v. Eckoldt, 180 S.W.3d 507, 510 (Mo.App. E.D.2005). An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. We have, however, provided a memorandum opinion, for the use of the parties only, setting forth the reasons for our decision. The trial court’s judgment is affirmed pursuant to Rule 84.16(b).


text:
    In the ESTATE OF: Lucille K. DEFFAA.
    No. ED 94321.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 26, 2010.
    Rehearing Denied Dec. 1, 2010.
    Gregory D. O’Shea, St. Louis, MO, for appellant.
    Debra K. Schuster, St. Louis, MO, for respondent.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Janet Robinson appeals from the trial court’s judgment dismissing her petition to be appointed guardian and conservator for her mother, Lucille K. Deffaa. An opinion would have no precedential value. We have furnished the parties with a memorandum, for their information only, explaining the reasons for our decision. We affirm. Rule 84.16(b)(1).