author: ROBERT S. BARNEY, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Bruce Wayne PERDUE, Appellant.
    No. 29759.
    Missouri Court of Appeals, Southern District, Division One.
    Aug. 3, 2010.

      Kent Denzel, Columbia, for appellant.
    Chris Koster, Atty. Gen. and Jayne T. Woods, Asst. Atty. Gen., Jefferson City, for respondent.
   ROBERT S. BARNEY, Presiding Judge.

Bruce Wayne Perdue (“Appellant”) appeals his conviction by a jury for one count of the class B felony of child molestation in the first degree, a violation of section 566.067, for subjecting a female child, R.B. (“Victim”), “to sexual contact.” Appellant was sentenced by the trial court to five years in the Missouri Department of Corrections. In his two points on appeal, Appellant challenges the sufficiency of the evidence to support his conviction as well as the trial court’s ruling on an evidentiary issue. We affirm the judgment and sentence of the trial court.

Viewing the evidence in the light most favorable to the jury’s verdict, State v. Tolen, 295 S.W.3d 883, 884 (Mo.App.2009), the evidence adduced at trial showed that Appellant began dating A.R. (“Mother”) in May of 2004. Mother had two daughters from a previous relationship: A.Y., who was born in October of 1993, and Victim, who was born in April of 1999. Appellant and Mother became engaged in December of 2004 and they resided in a home with Victim. Appellant’s brother and his wife lived nearby with their children, including their daughter E.M., who was born in September of 2000, and their daughter A.M., who was born in September of 2002. E.M. would often spend the night with Victim.

One evening Mother left E.M. and Victim alone with Appellant when she went to McDonald’s restaurant. Before she left, Mother gave Victim and E.M. permission to write on the bedroom door with chalk; however, when Appellant discovered what they were doing he told them to stop. When Victim tried to explain to Appellant that Mother had given them permission, Appellant pulled her pants and underwear down and stuck his finger in her vagina. Victim recounted that Appellant said to her, “I told you to stop [writing on the door]” when he had his finger inside her vagina. Victim then asked him to stop but he only removed his finger when Mother entered the room after returning home. Victim immediately reported the incident to Mother. According to Victim, she thought this incident happened when she was “five or two,” but she was unable to testify as to an exact date of the incident. Mother did not report this incident to authorities at that time.

In addition to her testimony about the incident in question, Victim also related that Appellant had also put his “pee-pee” or penis in her vagina, but she was unable to remember how many times that had occurred. Likewise, she testified that she had talked to Mother “a lot” about the incident in question, that Mother had “been telling [her] a lot about what happened,” and that she did not really remember much about the incident such that Mother “kind of told [her] what happened. ...”

At some point in time after the incident in question, Victim began having problems with her teeth and she began developing wart-like sores in her mouth. Victim was treated for gingivitis, but by August of 2007 the growths were developing rapidly and to such an extent that oral surgery was necessary to remove them. At that time Victim was diagnosed with the sexually transmitted disease of HPV Type 6 and 7 which is also referred to commonly as genital warts. The oral surgeon treating Victim contacted the Children’s Division of the Department of Social Services and an investigation was opened.

On June 13, 2008, Appellant was charged by Information with nine criminal counts. In addition to Count I upon which he was convicted, Appellant was initially charged with the following additional criminal counts: Counts II and III for the class B felony of child molestation in the first degree, violations of section 566.067, for subjecting A.Y. “to sexual contact;” Count IV for the class B felony of child molestation in the first degree, a violation of section 566.067, for subjecting A.M. “to sexual contact;” and Counts V, VI, VII, VIII and IX for the class B felony of child molestation in the first degree, violations of section 566.067, for subjecting E.M. “to sexual contact.”

At trial, Mother testified that she had never contracted genital warts from Appellant despite the fact that she had engaged in sexual contact with him on numerous occasions. She indicated that Victim had genital warts and that “they’re not passed to every person.” Counsel for Appellant objected to this testimony and the trial court ordered Mother’s comment be stricken. Then, on re-cross, Mother testified that genital warts were a sexually transmitted disease. Following a side bar with the trial court, Mother then related that “[n]ot everyone will contract [genital warts]. Some people carry it, some people will never have it.” Appellant’s counsel did not object to this testimony.

Appellant testified on his own behalf that he did not commit the crimes with which he was charged. He also related that he had been tested for sexually transmitted diseases on two occasions since his incarceration and “both times [the test results] c[a]me back negative.”

At the close of the State’s evidence, the trial court granted Appellant’s motion for judgment of acquittal on Counts IV, V, and IX. The remaining counts were submitted to the jury. Following deliberations, the jury convicted Appellant on Count I as stated above; acquitted him of Count VIII; and was unable to reach a verdict on the remaining Counts II, III, VI and VII such that the trial court declared a mistrial on those counts. As already stated, following his conviction for Count I, Appellant was sentenced by the trial court to five years imprisonment. This appeal followed.

In his first point relied on, Appellant maintains the trial court erred in denying his motion for judgment of acquittal as to Count I and in entering judgment on Count I “because the rulings violated [Appellant’s] right to due process of law....” He maintains there was insufficient evidence to prove his guilt beyond a reasonable doubt

in light of [Victim’s] testimony that she did not really remember what happened, and she was basing her testimony on her talks with [Mother], and [Mother] told her what happened, her testimony was so inherently incredible or self-destructive that its validity was thereby rendered doubtful and left the mind clouded with doubt.

(internal quotations omitted).

“We review the denial of a motion for acquittal to determine if the State adduced sufficient evidence to make a submissible case.” State v. Davis, 219 S.W.3d 863, 866 (Mo.App.2007). In our review, we determine whether sufficient evidence existed from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. Id.) State v. Benwire, 98 S.W.3d 618, 623 (Mo.App.2003). “In applying this standard, the reviewing court must consider the record in the light most favorable to the verdict, taking as true the evidence and all logical inferences that support a finding of guilt and ignoring the evidence and inferences that do not support a finding of guilt.” State v. Tolen, 295 S.W.3d 883, 886 (Mo.App.2009). “We view the evidence in the light most favorable to the verdict and defer to the jury’s assessment of the credibility of witnesses.” State v. Willis, 239 S.W.3d 198, 199 (Mo.App.2007).

Section 566.067.1 provides: “[a] person commits the crime of child molestation in the first degree if he or she subjects another person who is less than fourteen years of age to sexual contact.” Section 566.010(3) defines “sexual contact” as “any touching of another person with the genitals or any touching of the genitals or anus of another person, or the breast of a female person, or such touching through the clothing, for the purpose of arousing or gratifying sexual desire of any person .... ”

Appellant argues that the doctrine of destructive contradictions and the corroboration rule apply to Victim’s testimony because her testimony alone lacked such probative value that it “was not sufficient to support [Appellant’s] conviction.... ” Specifically he points to the following alleged contradictions: (1) that Victim testified the incident at issue was the only time “this ever happened” and then also testified that Appellant put his “pee-pee” in her vagina; and (2) that Victim admitted she spoke with Mother “a lot” about the incident, that she did not really remember the details of the incident, and that Mother “kind of told [her] what happened.”

“It has long been held that “ ‘the uncorroborated testimony of the victim in a case of sexual assault is sufficient to sustain a conviction.’ ” State v. Paulson, 220 S.W.3d 828, 833 (Mo.App.2007) (quoting State v. Waddell, 164 S.W.3d 550, 553 (Mo.App.2005)). Yet, the Supreme Court of Missouri recognizes an exception to this rule referred to as the “ ‘destructive contradictions’ doctrine. The doctrine is properly invoked only when the testimony is so inherently incredible, self-destructive or opposed to known physical facts on a vital point or element that reliance on the testimony is necessarily precluded.” State v. Wright, 998 S.W.2d 78, 81 (Mo.App.1999) (quoting T.L.C. v. T.L.C., 950 S.W.2d 293, 295 (Mo.App.1997)). “The doctrine specifically does not apply to contradictions between the victim’s trial testimony and prior out-of-court statements, to contradictions as to collateral matters, or to inconsistencies not sufficient to make the testimony inherently self-destructive.” Id. “Further, it does not apply where the inconsistencies are between the victim’s statements and those of other witnesses; the latter types of inconsistencies in testimony simply create questions of credibility for jury resolution.” Id.

Appellant asserts the doctrine of destructive contradictions applies here. We disagree. First, Victim testified that Appellant put his finger in her vagina and “that’s the only time this ever happened .... ” This testimony then followed:

THE STATE: Did Bruce ever put his pee-pee in your pee-pee?
VICTIM: Yes.
THE STATE: Okay. So, there’s another time that you think it happened, is that right?
VICTIM: Yes.
THE STATE: Do you remember which one it was, whether it was a finger or a pee-pee?
VICTIM: It was both.
THE STATE: Okay, so it was more than once? Is that right? Or do you remember?
VICTIM: I don’t remember.

There is nothing contradictory about this testimony from Victim. Her statement that in addition to placing his finger in her vagina on one occasion Appellant also placed his penis inside her vagina on another occasion is related to two separate instances. There is simply no inconsistency and, thus, the doctrine of destructive contradictions does not apply.

Second, Victim’s testimony that she spoke with Mother “a lot” about the incident, that she did not really remember the details of the incident, and that Mother “kind of told [her] what happened” was not contradictory testimony. It was impeachment evidence offered to undermine the veracity of Victim’s testimony. As already stated, such evidence relating to the credibility of witnesses is for the jury to determine. See Willis, 239 S.W.3d at 199. Additionally, “[i]t is well-established that, because a young child is less skilled in articulation and can become understandably confused in a court setting, a child can contradict herself in some respects without leaving a reasonable juror unconvinced as to the veracity of her testimony.” Wright, 998 S.W.2d at 82. “Thus, ‘it is not uncommon for there to be some ... memory lapses during the testimony of a child of tender years.’ ” Id. (quoting State v. Harvey, 641 S.W.2d 792, 800 (Mo.App.1982)). The doctrine of destructive contradictions is inapplicable to the present matter.

The corroboration rule is likewise inapplicable. Under the corroboration rule, corroboration of a victim’s testimony “ ‘is mandated only when the victim’s testimony is so contradictory and in conflict with physical facts, surrounding circumstances and common experience, that its validity is rendered doubtful such that corroboration of the victim’s testimony is required to sustain the conviction.’ ” State v. Paxton, 140 S.W.3d 226, 230 (Mo.App.2004) (quoting State v. Baker, 23 S.W.3d 702, 709 (Mo.App.2000)). “‘Further, the rule is not applied merely because the testimony of the victim includes inconsistencies or contradictions as to minor points of a nonessential nature.’” Id. (quoting Baker, 23 S.W.3d at 709). “ ‘Conflicts of [a] nonessential nature and issues regarding the credibility of witnesses are matters for the jury to determine.’ ” Id. (quoting Baker, 23 S.W.3d at 709). “The corroboration rule is only triggered when ‘the victim’s testimony is so contradictory or inconsistent as to deprive it of all probative force.’ ” Id. (quoting State v. Benwire, 98 S.W.3d 618, 623 n. 2 (Mo.App.2003)).

Having already found there were no inconsistencies or contradiction in Victim’s testimony as it related to the incident at issue, there is no need to more fully examine whether application of the corroboration rule was necessary in this matter. It clearly was not. There was sufficient evidence submitted by the State to prove that Appellant was guilty of child molestation beyond a reasonable doubt. See Wright, 998 S.W.2d at 82. The trial court did not err in denying Appellant’s motion for judgment of acquittal. Point I is denied.

In his second point relied on, Appellant asserts the trial court erred in “failing to instruct the jury to disregard the State’s improper elicitation of medical testimony from [Mother].... ” Specifically, he maintains

there was no foundation for [Mother] to testify as an expert that [Appellant] could transmit genital warts without having the disease, because her ‘research’ and hearsay from [Victim’s] surgeon did not qualify her as an expert or give her knowledge that the jury lacked. The [trial] court’s failure to instruct the jury to disregard the improper evidence, if left uncorrected, will inexorably result in a miscarriage of justice because the jury was led to convict [Appellant] because [Mother] gave the jury reason to believe her though [Appellant] did not have the [sexually transmitted disease] that the State claimed he gave to [Victim].

It has long been held that “[a]n objection to the admission of evidence must be made to preserve the issue for appeal.” State v. Johnson, 284 S.W.3d 561, 582 (Mo. banc 2009). Appellant acknowledges that he failed to properly object to this evidence at trial; thus, he requests plain error review under Rule 30.20.

Plain error will only be found where the error is plain and obvious and a manifest injustice or miscarriage of justice will result from the failure to correct the alleged error. State v. Fewell, 198 S.W.3d 691, 693 (Mo.App.2006). “A plain error claim must establish on its face substantial grounds for us to believe a manifest injustice or miscarriage of justice will result if the error is left uncorrected.” Id. “The plain error rule is to be used sparingly, and it does not provide an avenue of relief for every trial court error that has not been properly preserved.” Id.

At trial, during the cross-examination of Mother, the following colloquy occurred:

COUNSEL FOR APPELLANT: When you and [Appellant] were living together, did the two of you have some sort of sexual relation[ship]
MOTHER: Yes.
COUNSEL FOR APPELLANT: And you’ve never had genital warts, have you?
MOTHER: No.
COUNSEL FOR APPELLANT: But [Victim] has them?
MOTHER: Yes. But they’re not passed to every person. Not every person gets them.
COUNSEL FOR APPELLANT: And I would ask that be stricken as non responsive, your Honor.
THE COURT: Ordered stricken.

On re-cross, this exchange transpired:

COUNSEL FOR APPELLANT: The disease that your daughter has contracted, is it a sexually transmitted disease?
MOTHER: It is.
COUNSEL FOR APPELLANT: Nothing further.
THE STATE: Your Honor?
THE COURT: Yes.
THE STATE: If she can testify that it’s a sexual transmitted disease, may I ask her if everyone that comes into contact gets it?
THE COURT: If she knows, and has the basis of knowing?
THE STATE: She’s allowed that it’s a sexually transmitted disease-
THE COURT: No, no. Let[’]s not argue about this.
THE STATE: Okay.
THE COURT: I have ruled.

On re-direct, the State then made this inquiry of Mother:

THE STATE: Do you have a basis for knowing anything about how the disease that your daughter [has] is transmitted?
MR. MITCHELL: Your Honor, may we approach?
THE COURT: You may.
(WHEREUPON, the following proceedings were held at the bench, outside the hearing of the jury:)
COUNSEL FOR APPELLANT: I believe this is going to require medical testimony on how something is or is not—
THE COURT: You opened it, when you asked her what it was.
COUNSEL FOR APPELLANT: But she needs to lay a foundation.
THE COURT: Well, we’ll find out what kind of foundation she lays. Okay?
COUNSEL FOR APPELLANT: All right.
THE COURT: All right.
(THEREAFTER, further proceedings were held within the hearing of the jury:)
THE STATE: Do you have any basis for that knowledge?
MOTHER: I have done research and I also know what the oral surgeons have told me. And it is sexually transmitted. She also has them in her vaginal area.
THE STATE: Do you have any basis for knowing whether or not everyone who comes [into] contact with this, I think [it is] HPV Type 6—
MOTHER: Not everyone will contract it. Some people carry it, some people will never have it.
THE STATE: Nothing else.
THE COURT: Any other questions of this witness?
COUNSEL FOR APPELLANT: No, your Honor.
THE COURT: You may step down.

Here, Mother testified that her information about genital warts was derived from her own research and from conversations she had with Victim’s oral surgeons. Mother’s testimony was clearly based on hearsay evidence. Hearsay evidence “is any out-of-court statement offered to prove the truth of the matter asserted and such statements are generally inadmissible, unless they fit within certain hearsay exceptions.... ” State v. Lucio, 247 S.W.3d 131, 134 (Mo.App.2008). “ ‘It is well-established law in Missouri that hearsay admitted without objection may properly be considered as evidence by the trier of fact.’” Id. (quoting State v. Goodwin, 43 S.W.3d 805, 818 (Mo. banc 2001)). Further, it has been held that “[hjearsay evidence offered without objection is not plain error.” State v. Brown, 912 S.W.2d 643, 646 (Mo.App.1995); see State v. Mayabb, 43 S.W.3d 429, 435 (Mo.App.2001). While Appellant’s counsel objected to a portion of Mother’s testimony, he failed to object to the questions asked of her on re-direct by the State which elicited hearsay testimony. There was no plain error in this instance. Point II is denied.

The judgment and sentence of the trial court is affirmed.

LYNCH and BURRELL, JJ., concur.

      . All statutory references are to RSMo 2000, unless otherwise specified.

      . A.Y. did not reside full-time with Mother and Appellant; however, she visited every other weekend during the summer.

      . E.M. is identified in the Information as "M.M.” She is apparently referred to by her middle name.

      . E.M. testified that Appellant took the same actions against her, but that she did not see Victim being molested.

      . Mother testified she noticed the sores in Victim’s mouth in August of 2004.

      . We note the Information in this matter states that Appellant was charged with violating section 566.068, child molestation in the second degree, as opposed to section 566.067, child molestation in the first degree. This appears to be an error on the part of the charging document as the judgment and transcript refer exclusively to child molestation in the first degree under section 566.067.

      . At the sentencing hearing it was revealed that the first test did not test for all sexually transmitted diseases and that the second test was not completed.

      . The trial court's docket entry incorrectly states that Count I was part of the judgment of acquittal. The record clearly reveals this not to be the case and that he was acquitted on Count V instead.

      . All rule references are to Missouri Court Rules (2010).


source: Caselaw Access Project

author: DON E. BURRELL, Judge.

license: Public Domain

text:
    David SHIELDS, Claimant-Appellant, v. L & P TRANSPORTATION, LLC, Employer-Respondent, and State of Missouri, Division of Employment Security, Respondent.
    No. SD 30058.
    Missouri Court of Appeals, Southern District, Division One.
    Aug. 4, 2010.
    David Shields, Carthage, pro se.
    John A. Nicholas, Carthage, MO, for Respondent L & P Transportation.
    Jeannie D. Mitchell, Jefferson City, MO, for Respondent State of Missouri Division of Employment Security.
   DON E. BURRELL, Judge.

David Shields (“Claimant”), proceeding pro se, is attempting to appeal the order of the Labor and Industrial Relations Commission (“the Commission”) affirming the decision of the Division of Employment Security (“the Division”) that Claimant was ineligible to receive unemployment compensation benefits because his employer, L & P Transportation, LLC (“Employer”), had fired him for work-connected misconduct.

On March 17, 2010, the Division filed a motion to strike Claimant’s brief and dismiss his appeal for failure to comply with the requirements of Rule 84.04. That motion was taken with the case. Because the deficiencies in Claimant’s brief substantially impede appellate review, we grant the Division’s motion and dismiss Claimant’s appeal.

Briefing Deficiencies

Claimant’s briefing deficiencies are substantial and numerous. As noted by the Division in its motion, Claimant’s brief “does not contain a proper jurisdictional statement or point relied on, the argument section does not substantially follow the order of the points relied on, the statement of facts and argument sections contain no citation to the record, and the brief does not have an appendix.”

The requirements of Rule 84.04 are mandatory. Yates v. Briggs & Stratton, 302 S.W.3d 776, 777 (Mo.App. S.D.2010). The failure to comply with Rule 84.04 constitutes grounds for dismissal. Hankins v. Reliance Auto., Inc., 312 S.W.3d 491 (Mo.App. E.D.2010) (dismissing an employee’s appeal of the denial of unemployment compensation benefits for failing to substantially comply with Rule 84.04).

Rule 84.04(b) provides that an appellant’s brief must contain a jurisdictional statement that “set[s] forth sufficient factual data to demonstrate the applicability of the particular provision or provisions of Article V, section 3, of the Constitution, whereon jurisdiction is sought to be predicated.” Although Claimant’s brief contains a paragraph preceded by the words “Jurisdictional Statement,” that paragraph simply identifies three things he believes should be at issue in his appeal and says nothing about this court’s authority to actually consider and resolve his appeal.

Under Rule 84.04(d)(2), an appellant’s brief challenging the decision of an administrative agency must present points relied on that: “(A) identify the administrative ruling or action the appellant challenges; (B) state concisely the legal reasons for the appellant’s claim of reversible error; and (C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.” Claimant’s points do not identify the agency ruling he is challenging (they instead complain of certain actions or inac-tions of Employer) and do not state any legal grounds for what should have been his claim that the Commission erred.

The argument portion of Claimant’s brief fails to restate his points relied on. Perhaps for this reason, it then fails to “substantially follow” the order of those points as required by Rule 84.04(e) and the small amount of argument actually presented appears to be an attempt to address them all together. Claimant has also failed to “include a concise statement of the applicable standard of review for each claim of error” as required by Rule 84.04(e).

While we do not condone any of these failures to comply with Rule 84.04, the fundamental obstacle to our determining whether Claimant might have a meritorious claim is that we could not do so without abandoning our proper position of neutrality and inappropriately becoming his advocate. See Reliable Roofing, LLC v. Jones, 302 S.W.3d 232, 236 (Mo.App. S.D.2009); Yates, 302 S.W.3d at 777.

The portion of Claimant’s brief encompassing his “Jurisdictional Statement,” “Statement of Facts,” “Points Relied On,” “Argument,” and “Conclusion” is covered in a mere four-and-one-half pages. More importantly, none of the “facts” Claimant refers to in his Statement of Facts and Argument sections are accompanied by any references to the transcript or legal file as required by Rule 84.04(i). “In order to address the issues discussed in the argument, this Court would be required to seine the record to find the relevant facts, independently research the issues and find relevant authority in order to determine whether error occurred. That would effectively require this Court to become [Appellant’s] advocate on appeal.” Reliable Roofing, 302 S.W.3d at 236.

We should point out that the argument section of Claimant’s brief does cite appropriate legal authority for the propositions that an employer has the burden of proving an employee’s misconduct and that misconduct involves an element of willfulness. But Claimant then fails to demonstrate, in the context of this case, how that authority supports his claims of reversible error. See Rules 84.04(d)(2)(C) and 84.04(d)(4).

“[E]stablished Missouri precedent holds that ‘[a]ppellate courts are not required to review an appeal on the merits where there are flagrant violations of Rule 84.04 concerning the requirements of an appellate brief in a civil case.’ ” Blakey v. AAA Prof'l Pest Control, Inc., 219 S.W.3d 792, 794 (Mo.App. E.D.2007) (quoting Coleman v. Gilyard, 969 S.W.2d 271, 273 (Mo.App. W.D.1998)). As in Yates, we have concluded that the deficiencies of Claimant’s brief “are so serious as to impede appellate review.” 302 S.W.3d at 236.

The Division’s motion is granted, and Claimant’s appeal is dismissed.

BARNEY, J„ and BATES, P.J., Concur.

      . A litigant is certainly entitled to proceed pro se. But a self-represented litigant "is bound by the same rules of procedure as parties who are represented by counsel.” Yates v. Briggs & Stratton, 302 S.W.3d 776, 776 (Mo.App. S.D.2010) (citing Kline v. Casey's Gen. Stores, Inc. 998 S.W.2d 140, 141 (Mo.App. S.D.1999)). "While this Court recognizes the problems faced by pro se litigants, we cannot relax our standards for non-lawyers. ‘It is not for lack of sympathy but rather it is necessitated by the requirement of judicial impartiality, judicial economy and fairness to all parties.' " Reliable Roofing, LLC v. Jones, 302 S.W.3d 232, 234 (Mo.App. S.D.2009) (quoting Kline, 998 S.W.2d at 141) (internal citations omitted).

      . All rule references are to Missouri Court Rules (2010). The brief the Division moved to strike was actually Claimant’s second attempt to file an appropriate brief. We refused to accept for filing Claimant’s first brief and returned it to him on Januaiy 15, 2010, with a notation that it was not in compliance with Rules 84.04, 84.05, and 84.06.

      . While Claimant’s brief contains a section labeled "Appendix,” other than containing a copy of the Commission's order, the remainder is not in compliance with Rule 84.04(h). On April 6, 2010, Claimant moved to strike the Division's brief in an unsigned motion. Claimant’s motion takes issue with some of the factual assertions contained in the Division's brief but cites no legal grounds for his claim that it should be stricken. Claimant’s motion to strike is denied.

      . While we are unable to reach the merits of Claimant’s claim, it should be noted that repeated instances of negligence may be sufficient to demonstrate the willfulness necessary to sustain a finding of misconduct under certain circumstances. See Freeman v. Gary Glass & Mirror, LLC, 276 S.W.3d 388, 393 (Mo.App. S.D.2009) (repeated failure to follow the employer’s specific directions, without explanation and with ability, demonstrated willfulness). Further, "[w]hen strict adherence to [safety] rules is required to protect the lives and safety of others, the employee is held to a high degree of care in the exercise of his duties.” Finner v. Americold Logistics, LLC, 298 S.W.3d 580, 584 (Mo.App. S.D.2009).


author: WILLIAM W. FRANCIS, JR., Judge.

text:
    Lonnie MCCAIN, Appellant, v. STATE of Missouri, Respondent.
    No. SD 29910.
    Missouri Court of Appeals, Southern District, Division Two.
    Aug. 5, 2010.

      Gwenda Renee’ Robinson, St. Louis, MO, for Appellant.
    Chris Koster, Attorney General and Jamie Pamela Rasmussen, Assistant Attorney General, Jefferson City, for Respondent.
   WILLIAM W. FRANCIS, JR., Judge.

Lonnie McCain (“Movant”) was convicted by a jury of (1) assault of a law enforcement officer in the first degree, pursuant to section 565.081; (2) misdemeanor driving while intoxicated (DWI), pursuant to section 577.010; and (3) misdemeanor driving while license was revoked (DWR), pursuant to section 302.821. His direct appeal was dismissed by this Court, pursuant to Rule 30.14, for failure to perfect the appeal. Movant then filed a motion for post-conviction relief, pursuant to Rule 29.15, alleging ineffective assistance of counsel. After conducting an evidentiary hearing, the motion court denied the motion. Because the motion court’s judgment was not clearly erroneous, we affirm.

Facts and Procedural Posture

Movant was stopped by Trooper Wil-mont, (Wilmont) after Movant was observed swerving from the shoulder of the road into the opposite lane of traffic. Wil-mont testified that (1) Movant had slurred speech and blood-shot eyes; (2) Movant smelled of alcohol; (3) Movant’s vehicle contained several open containers of alcohol; (4) Movant stated he did not have a valid driver’s license or proof of insurance; (5) Movant admitted that he had been drinking; (6) Movant refused to submit to a breath test; (7) Movant failed three standardized field sobriety tests; and (8) while attempting to place Movant under arrest, Movant forcefully punched Wilmont in the chest, throat, face and jaw and wrestled him to the ground.

Following his convictions, Movant was sentenced as a prior and persistent offender to fifteen years for the assault, one year for the DWI, and one year for the DWR, all to be served concurrently.

Movant retained private counsel for the sentencing phase and postconviction motions. While Movant was free on appellate bond, a dispute ensued due to Movant’s failure to pay for the appeal transcript and failure to maintain adequate contact with his counsel. Consequently, Movant’s counsel filed a motion to withdraw which was granted by this Court. Subsequently, this Court dismissed the direct appeal, pursuant to Rule 30.14, because Movant failed to perfect the appeal.

Movant then filed a pro se motion to vacate, set aside or correct the judgment or sentence pursuant to Rule 29.15, which was later amended by appointed counsel. At the evidentiary hearing, Movant testified that he did not learn of his attorney’s withdrawal or dismissal of the appeal until February, 2008, approximately twenty months after the motion to withdraw was filed. The motion court entered its findings of fact and conclusions of law denying Movant’s motion for postconviction relief. Movant appeals from the motion court’s judgment.

Standard of Review

Review of Movant’s appeal is limited to whether the motion court’s findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k); Weekley v. State, 265 S.W.3d 319, 322 (MoApp. S.D. 2008). “Findings of fact and conclusions of law are clearly erroneous only when, after reviewing the entire record, this court is left with the definite and firm impression that a mistake has been made.” Bryan v. State, 134 S.W.3d 795, 798 (MoApp. S.D. 2004). Moreover, the findings of the motion court are presumptively correct and the movant bears the burden of proving otherwise.

Points on Appeal

Ineffective Assistance of Trial Counsel

Movant raises two points on appeal. In his first point, Movant contends that the motion court committed reversible error when it denied his claim of ineffective assistance of trial counsel. Movant claims trial counsel was ineffective because during opening statement and closing argument, trial counsel conceded Movant’s guilt regarding the DWI and DWR charges, over Movant’s express objections. Conversely, trial counsel testified that Movant agreed to the trial strategy, which included admitting Movant’s guilt regarding these specific charges in order to gain credibility with the jury before asserting Movant’s innocence with respect to the assault charge.

In order to prevail on a claim of ineffective assistance of counsel, Movant must establish by a preponderance of the evidence that “[trial] counsel’s performance failed to conform to the degree of skill, care, and diligence of a reasonably competent attorney, and that the defendant was thereby prejudiced.” State v. Tokar, 918 S.W.2d 753, 761 (Mo. banc 1996). Trial strategy formulated after a thorough investigation, however, is all but unchallengeable. Id. As such, this Court does not “review or reassess the judgment of trial counsel on questions of strategy, trial tactics or trial decisions.” State v. Burnett, 931 S.W.2d 871, 876 (Mo.App. W.D.1996). We defer to the motion court concerning matters pertaining to -witness credibility. Fortner v. State, 186 S.W.3d 910, 912 (Mo.App. S.D.2006).

Movant speculates that but for trial counsel’s purportedly unreasonable strategy, there was a reasonable probability that the outcome of the trial would have been different; however, the only evidence offered in support of this contention is the State’s failure to introduce the results of a breathalyzer test. “Allegations in a post-conviction motion are not self-proving.” Cole v. State, 223 S.W.3d 927, 931 (Mo. App. S.D.2007). Movant has the burden of producing evidence in support of his post-conviction relief claims by a preponderance of the evidence. Armstrong v. State, 983 S.W.2d 643, 647 (Mo.App. S.D.1999); Rule 29.15(i). Notwithstanding the absence of the results of the breathalyzer test, there was a litany of evidence which the jury could have relied upon to convict Movant of the DWI and DWR charges. Such evidence included: (1) Movant’s slurred speech and blood-shot eyes; (2) Movant’s inability to maintain his vehicle in a designated lane; (3) the presence of open containers of alcohol in Movant’s vehicle; (4) the strong odor of alcohol emanating from Movant; (5) Movant’s admission that he had been drinking; (6) Movant’s refusal to submit to a breathalyzer test; (7) Movant’s inability to pass three field sobriety tests; and (8) Movant’s admission that he did not have a valid driver’s license. Proof of intoxication by means of a chemical test is not required for a DWI conviction obtained pursuant to section 577.010. State v. Farmer, 548 S.W.2d 202, 205 (Mo.App. S.D.1977).

Trial counsel’s testimony supports the claim that the decision to admit guilt was a reasonable trial strategy. The motion court found the testimony of Movant to be without credibility and instead chose to believe the testimony of trial counsel, which was its prerogative. The motion court found Movant’s assertion that he was prejudiced by the strategy speculative and conclusory. Moreover, the motion court found that the strategy was not ineffective given Movant’s prior convictions of felony burglary, robbery, and armed criminal action and the extent of the evidence against him. Finally, the motion court found that Movant was not prejudiced by the strategy. Trial counsel’s performance did not fail to conform to the degree of skill, care and diligence of a reasonably competent attorney. After reviewing the entire record, this Court is not left with a definite and firm impression that a mistake was made. Point I is denied.

Ineffective Assistance of Appellate Counsel on Direct Appeal

In his second point, Movant asserts that the motion court clearly erred when it denied his claim of ineffective assistance of appellate counsel. Specifically, Movant asserts appellate counsel, on the direct appeal, was ineffective because he withdrew without providing notice to Movant which ultimately caused the appeal to be dismissed for failure to perfect the appeal.

The test for ineffective assistance of appellate counsel is “essentially the same as that employed for trial counsel ... the movant must show deficient performance of counsel and resulting prejudice.” Evans v. State, 70 S.W.3d 483, 485 (Mo.App. W.D.2002) (internal citation omitted). Moreover, there is a strong presumption that counsel provided adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Walker v. State, 34 S.W.3d 297, 300 (Mo.App. S.D.2000). “[I]t is only where the defendant in a criminal case wishes to appeal and his attorney either refuses or negligently fails to pursue the appeal that the question of ineffective assistance of counsel arises.” Chas-tain v. State, 688 S.W.2d 58, 61 (Mo.App. S.D.1985).

In this case, appellate counsel testified that he sent between 12 and 15 letters to Movant, but communication with Movant became attenuated as time passed. Additionally, appellate counsel testified that he had a conversation with Movant and Mov-ant’s family and informed them that he was withdrawing from the case. Movant conceded that appellate counsel sent a letter to his last known address, informing Movant that he had five days to remit payment for expenses incurred and services to be rendered otherwise counsel would withdraw, but Movant asserts that he never received such letter.

Notwithstanding the fact that Movant never remitted payment or attempted to contact appellate counsel within the allotted five-day period, appellate counsel sent Movant a second notice of his intent to withdraw. Only one letter sent from appellate counsel to Movant was returned as “unclaimed” despite Movant’s failure to inform appellate counsel that his mailing address had changed. Furthermore, this Court required appellate counsel to evince that a notice of his withdrawal was sent to Movant before the motion was granted. Approximately one month after the motion was granted, this Court sent Movant notice that the appeal was docketed for dismissal. Fifteen days after such notice was sent, this Court entered an order of dismissal for failure to perfect.

Despite the multiplicity of such notices, Movant testified that he never received any notices concerning the dismissal of his appeal or appellate counsel’s withdrawal. The motion court found Movant’s testimony to be without credibility. Furthermore, the motion court found that appellate counsel withdrew only after Movant failed to maintain contact with counsel and remit payment for appellate representation. The motion court found that appellate counsel was not ineffective, owed no duty to Movant after his withdrawal, and Mov-ant failed to satisfy his burden of proving prejudice.

Movant relies principally on two cases in support of his proposition that counsel was ineffective: State v. Frey, 441 S.W.2d 11 (Mo.1969) and State ex rel. Hahn v. Stub-blefield, 996 S.W.2d 108 (Mo.App. E.D. 1999). Both cases are distinguishable from the instant case. Unlike the instant case, in Frey, the attorney admitted that he deliberately chose not to file an appeal, in direct contradiction to his client’s express wishes, because he thought it was in the best interests of his client. Frey, 441 S.W.2d at 12-13. Additionally, the attorney did not inform his client of this decision even though the client continued to write the attorney and the clerk of the court seeking the status of his appeal. Id. at 13. Similarly, in Stubblefield, the attorney admitted that the cause of the untimely appeal was through no fault of the defendant; rather the attorney asserted the cause of the late appeal was the circuit clerk’s inability to correctly file the notice. Stubblefield, 996 S.W.2d at 104-05. Unlike in Frey and Stubblefield, here Movant failed to take steps to perfect the appeal notwithstanding counsel’s admonishment to Movant that he obtain immediate legal assistance. Additionally, unlike the facts of Frey and Stubblefield, Movant was afforded sufficient time in which to perfect the appeal after appellate counsel provided notice of his intent to withdraw — counsel sent his final notice on May 11, 2006, and the appeal was dismissed on July 11, 2006. Finally, unlike the cited cases, here the failure to perfect the appeal was not the result of appellate counsel’s negligence or refusal to pursue the appeal; rather the failure to perfect the appeal was a result of Movant’s omissions.

The record supports the finding that appellate counsel was not negligent in failing to pursue the appeal and therefore the motion court’s finding that he was not ineffective was not clearly erroneous. Point II is denied.

After reviewing the entire record, we are not left with the definite and firm impression a mistake has been made. The motion court’s finding that Movant did not receive ineffective assistance of counsel is supported by the record. Consequently, we do not find the motion court’s findings and conclusions are clearly erroneous.

The judgment of the motion court is affirmed.

SCOTT, C.J., and RAHMEYER, P.J., Concur.

      . All references to statutes are to RSMo 2000, unless otherwise indicated.

      . All rule references are to Missouri Court Rules (2010).


author: PER CURIAM.

text:
    Robert E. GEORGE, Plaintiff-Appellant, v. Samuel E. JONES, Defendant-Respondent.
    No. SD 30637.
    Missouri Court of Appeals, Southern District, Division One.
    Aug. 5, 2010.

      Bruce A. Copeland, and Jeremy K. Brown, Copeland & Brown, Joplin, MO, for Appellant.
    Philip Baker, Phil Baker Law Office, Fenton, MO, for Respondent.
    Before BARNEY, P.J., BATES, J., and LYNCH, J.
   PER CURIAM.

This is an election contest case brought pursuant to § 115.575, RSMo Cum.Supp. 2003, wherein appellant Robert E. George challenged the qualifications of respondent Samuel E. Jones to run for associate circuit judge of Lawrence County. At issue in this appeal is whether Jones “resided in” Lawrence County for a one-year period prior to the date of the election as required by § 478.320.6. The trial court determined that, although Jones maintained a physical residence in Jackson County, he nevertheless had sufficient contacts with Lawrence County to qualify as a candidate. George brings three points on appeal. Finding no merit in these points, we affirm.

STANDARD OF REVIEW

As an initial matter, George contends, “[t]he facts and evidence are not in dispute”; thus, he argues no deference is due to the trial court’s judgment and the only issue “is the legal effect of such evidence.” George is mistaken. “Residency is a question of fact that is to be determined from the acts and intentions of an individual citizen.” State ex rel. Thomas v. Neeley, 128 S.W.3d 920, 927 (Mo.App.2004). “Conduct is an important factor in determining intention as actions speak louder than words.” Barrett v. Parks, 352 Mo. 974, 180 S.W.2d 665, 666 (1944). Where the facts conflict, there is a presumption strongly in favor of an original or former residence as against an acquired one. Marre v. Reed, 775 S.W.2d 951, 955 (Mo. banc 1989). In this case, Jones unequivocally testified to his intention to return to Lawrence County, and he maintains considerable ties therewith. On the other hand, George points to other actions of Jones, such as registering to vote in Jackson County, as evidence of his intent to create a permanent residence in another county. As such, the evidence is conflicting, and the usual deference must be given to the trial court’s judgment. See Fritzshall v. Bd. of Police Comm’rs, 886 S.W.2d 20, 25-28 (Mo.App.1994).

“In a court-tried case, our standard of review is that the court’s decision will be sustained 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 erroneously applies the law.” Landwersiek v. Dunivan, 147 S.W.3d 141, 146 (Mo.App.2004). “[I]n our review we [are] mindful of the trial court’s opportunity to have judged the credibility of the witnesses and we afford the trial court due deference in that regard.” State ex rel. Thomas, 128 S.W.3d at 927. “In determining the issue of residence, the fact finder is entitled to believe all, none, or part of the declarations of the person subject to the inquiry.” Fritzshall, 886 S.W.2d at 23. “[I]f the evidence would warrant either of two opposed findings, an appellate court must uphold the factual determinations the [trial court] made.” Id.

On appeal, this Court must “accept as true the evidence and reasonable inferences therefrom in favor of the prevailing party and disregard the contrary evidence.” Landwersiek, 147 S.W.3d at 146.

STATEMENT OF FACTS

As demanded by the standard of review that we must follow, supra, we cite only those facts and inferences favorable to Jones and the judgment, disregarding all evidence and inferences favorable to George.

For nearly his entire life, Jones had a physical residence in Lawrence County “[b]ecause that’s home.” In 1946, when Jones was 18 months old, his family moved to Mt. Vernon in Lawrence County, living at the same address until he was 17 years old. At that time, Jones enrolled in college in Springfield, Missouri, returning home for the summer months to his mother’s new address in Lawrence County. Jones graduated in 1966 and served in the army the following two years. He returned home for a short while before enrolling in law school in Columbia, Missouri.

Jones graduated law school in 1971, returned to Mt. Vernon, and opened his own law practice. For the next ten years, Jones lived in Mt. Vernon, operating his private practice and serving as prosecuting attorney. In 1981, the governor appointed Jones chairman of the State Tax Commission. He moved to Jefferson City for his tenure, but he still maintained a home in Lawrence County. From 1986 to 1991, Jones obtained employment in various cities — Kansas City, Chicago, and Oklahoma City — but he still retained a Lawrence County address.

In 1991, the governor appointed Jones associate circuit judge for Lawrence County, prompting his move back to Mt.Vernon. Jones served the community as November 2001, when President Bush appointed him regional administrator of the Small Business Administration (“SBA”). This prompted a move to the Kansas City area, but Jones was aware that such an appointment would last only as long as the president desired. Jones and his wife sold their home, but they kept a business and an apartment in Mt. Vernon, intending to return once his appointment concluded. Jones’s position with the SBA officially ended on January 20, 2009, when President Obama took the oath of office.

At the time of trial in May 2010, Jones testified that he still lived in the Jackson County house, but that the family was in the process of moving back to Lawrence County. Although physically residing elsewhere, Jones maintains close ties to Lawrence County. He travels there “several” times per week; he maintains a business and an apartment in Mt. Vernon; he pursues his hobbies in the county; he supports the local businesses; he pays taxes to the county and is currently registered to vote there; and he belongs to a local church, the Rotary Club, and the American Legion. Jones keeps up with local issues as well, reading his hometown newspaper and regularly visiting with the city administrator. He has a long-term relationship with the local bank and keeps many personal belongings in Mt. Vernon.

In response to questioning regarding his reasons for remaining in Jackson County, Jones testified that his wife suffers from cancer, and their current house is close to the medical facility where she undergoes chemotherapy. As stated by Jones to opposing counsel: “[I]f you could tell me when and if Janice is going to recover from her illness and when the two of us would have the energy quite frankly to keep that house in condition to show at the drop of a hat, I could give you a better idea when we can be ready to leave. But right now our plate is pretty full.” Jones further testified that as soon as the couple could manage it, “I’m moving.” Jones also testified that, given the depressed nature of the real estate market, if he sold the Jackson County house, he would be “ruined there economically.” Finally, as every witness testified, there was no question of Jones’s intent to move back to Lawrence County.

The trial court found in favor of Jones on May 24, 2010. This appeal timely followed.

DISCUSSION

On appeal, George contends that Jones’s conduct shows his true intent to create a permanent home in Jackson County. George’s three points on appeal all advance variants of that basic contention. Because these points lack merit, the trial court’s judgment is affirmed.

Point I: The Meaning of “Resided In

In his first point, George contends the trial court misapplied the law when it determined that the § 478.320.6 phrase “resided in” has the same meaning as the phrase “resident of’ as used in article V, section 21 of the Missouri Constitution. In State ex rel. King v. Walsh, 484 S.W.2d 641 (Mo. banc 1972), our Supreme Court defined the phrase “resident of’ the state, as it is used in article IV, section 3 of the Missouri Constitution. For purposes of that case, the court held that residence and domicile had the same meaning and that this “does not mean and require actual, physical presence, continuous and uninterrupted” for a requisite period. Id. at 644. The Court found that the candidate, although living out of the state for numerous years, always had the intention to return to his home in Mexico, Missouri. Id. at 645-46. Even though the candidate indicated other out-of-state residences on certain official documents — such as a bar application, tax filings, and a title to a car — this evidence did not “outweigh[]” evidence that he did not intend to abandon his Missouri residence. Id. at 647. If this is the correct standard to apply in this case, then Jones clearly meets the requirements. However, George argues that the legislature was aware of the State ex rel. King case and clearly intended a different requirement because it used different words when it enacted the later amendment to § 478.320. George contends that “resided in” must mean actual, physical presence within the county. Such contention is without merit.

Under § 478.320.6, Jones must reside in Lawrence County for one year prior to the date of the election. George argues that the legislature must have intended an additional requirement because it amended the statute after the State ex rel. King case, and the Missouri Constitution already required associate circuit judges to be “residents of the county[.]” Mo. Const. art. V, § 21 (1976). “[T]he [Missouri] Supreme Court has instructed that the primary rule of statutory construction is to glean legislative intent by understanding the statute according to its objective.” In re Estate of Bruce, 260 S.W.3d 398, 405 (Mo.App.2008). “[A] proper analysis [ ] must consider the context in which the General Assembly used the words, the purposes that it intended to accomplish, and the evils that it intended to cure.” Harper v. Dir. of Revenue, 118 S.W.3d 195, 199 (Mo.App.2003).

In construing § 478.320.6, our Supreme Court declared: “The purpose of residency statutes is to ensure that governmental officials are sufficiently connected to their constituents to serve them with sensitivity and understanding.” Lewis v. Gibbons, 80 S.W.3d 461, 466 (Mo. banc 2002). To equate “resided in” with “lived in continuously for one year,” as George contends, would unduly restrict the legislative purpose of the residency requirement articulated in Lewis. Thus, Jones’s continuous physical presence in Lawrence County for at least one year prior to the election is not required. Rather, according to the Supreme Court in Lewis, 80 S.W.3d at 466, the issue is whether he is sufficiently connected to Lawrence County to serve the constituents with sensitivity and understanding. If one looks only at the evidence favoring Jones and the trial court’s judgment, as our standard of review compels us to do, Jones meets that requirement. He travels to Mt. Vernon several times per week, owns a local business, has a residence there, frequently discusses local issues with the Mt. Vernon city administrator, has long-time personal and business relationships within the county, considers Mt. Vernon his home, and previously served as an associate circuit judge in that county for seven years.

Moreover, the “evil” the statutory amendment intended to cure was not to change the meaning of the residency requirement, but to add a timeframe to measure it. In the constitutional provision, the only limitation is that associate circuit judges must be “residents of the county[.]” Mo. Const, art. V, § 21. The amendment answers the question of when. The focus of the amendment is not the words “resided in,” but that the candidate reside in the county “at least one year prior to the date of his election[.]” § 478.320.6. Without the latter language, the amendment would add nothing to the constitutional provision and would allow a candidate to reside in the county from “birth to eighteen months, to leave the county and [ ] return 50 or 60 years later and be eligible to run.” Lewis, 80 S.W.3d at 466. To remedy this evil, the legislature provided the time requirement. This Court’s analysis of the statute must take into account that goal. Harper, 118 S.W.3d at 199.

Further, the fact that the legislature used different terminology is of no import. George claims that if the legislature did not want to substantively change the residency requirement, it would have simply used the same words as the constitutional provision. Equally likely, though, the legislature viewed the phrases as equivalent. In other words, the constitution provides a residency requirement and the legislature addressed only the duration, and not the substance, of that requirement. This follows for two reasons. First, it has used the phrases interchangeably in the past. For instance, in statutes relating to third-class cities, a councilman must be “a resident of the ward from which he is elected[.]” § 77.060 (emphasis added). In the next chapter providing for optional forms of third-class cities, a councilman “must reside within the ward he represents.” § 78.720 (emphasis added). If George’s thesis is correct, then the legislature would require something more of a council member simply because the optional statutes were used. Clearly, this illogical result cannot be sustained. The only logical interpretation of these statutes is that the legislature believed “resident of’ and “reside within” mean the same thing.

Second, we must presume the legislature knew of the interpretations courts have given to the phrases “resident of’ and “reside in.” Belcher v. State, 299 S.W.3d 294, 296 (Mo. banc 2009). Appellate courts throughout our history have used the terms interchangeably. See Barrett, 180 S.W.2d at 667 (“resided in” and “citizen of’); State ex rel. McKittrick v. Wiley, 349 Mo. 239, 160 S.W.2d 677, 686 (1942) (“residence in,” “residing in,” and “resident of’); Pearson, 231 S.W. at 595 (“resided in” and “resident of’); Scotton, 359 S.W.2d at 506-08 (“resided within,” “residents within,” and “resident of’). We presume the legislature was aware of the fact that appellate courts typically use such terminology interchangeably. If the legislature desired the phrases “resident of’ and “resided in” to be interpreted or used differently, then it would have provided an explicit definition. See § 143.101 (defining resident).

The trial court did not err when it determined that the phrase “resided in” did not require an actual, continuous, physical presence in the county for continued residency. The phrases “resided in” and “resident of’ merely require Jones to be “sufficiently connected to [his potential] constituents to serve them with sensitivity and understanding.” Lewis, 80 S.W.3d at 466. The evidence demonstrates Jones’s ties to Lawrence County meet the statutory purpose. As such, Jones is a resident of and resides in Lawrence County. George’s first point is denied.

Point II: Effect of Voting in Jackson County

In his second point, George argues that because Jones voted in Jackson County, it is “conclusively established that he was a ‘resident of Jackson County[.]” George asserts that because the Missouri Constitution requires a voter to be a resident of the county in which he votes, “one of two things must therefore be true”: Respondent must either be a resident of Jackson County, or he committed a crime under § 115.631, i.e., voter fraud. We disagree.

The legal validity of Jones’s registration to vote or of his actual instances of voting in Jackson County is not at issue in this case, and we do not decide or express any opinion on any question related to either. See, e.g., State ex rel. King, 484 S.W.2d at 648. The only issue here is whether Jones was a resident of Lawrence County for the requisite time period, which, as previously discussed, is a question of fact. Id. at 644. While any statement made by Jones in connection with voting in Jackson County is evidence tending to support the inference that he intended to abandon his Lawrence County residence and establish his new residence in Jackson County, it is not conclusive upon that issue. Id. at 647 (statement of residency to the Georgia Board of Law Examiners as required by Georgia statute is not conclusive and may be outweighed by evidence to the contrary). George has not cited us to any legal authority mandating a trial court make a factual finding of residency based solely upon the conclusiveness of one particular circumstantial fact before it. The trial court committed no legal error in considering and weighing the evidence of Jones’s voting in Jackson County along with all of the other evidence in the record to make its factual finding as to Jones’s residency. George’s second point is denied.

Point III: Finding that Jones Did Not Abandon His Lawrence County Residency is Not Against the Weight of the Evidence

The trial court found that, while Jones’s “bodily presence” was in Jackson County, he “did not exercise the intention to abandon Lawrence County as his residence.” In his third point, George asserts that this finding is against the weight of the evidence. We disagree.

“Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). “The phrase ‘weight of the evidence’ means its weight in probative value, rather than the quantity or amount of evidence.” Puzzanchera v. Loetel, 293 S.W.3d 51, 61 (Mo.App.2009). “The weight of the evidence is not determined by mathematics, but depends on its effect in inducing belief.” Ray Klein, Inc. v. Kerr, 272 S.W.3d 896, 898 (Mo.App.2008).

We have previously recounted the evidence supportive of this finding, which George has essentially omitted from his against-the-weight-of-the-evidence analysis, and there is no necessity to repeat it here. George merely argues that other evidence — voting in Jackson County, not moving, income tax returns, and bar enrollment — shows otherwise. The trial court was faced with conflicting evidence and had to weigh that evidence to determine which reasonable inference to draw therefrom — whether Jones intended to retain his residency in Lawrence County while living in Jackson County or whether he intended for Jackson County to become his new residence. “If the evidence would warrant either of two opposed findings, we must affirm.” Fritzshall, 886 S.W.2d at 28. This is especially true when, as here, there is no question as to Jones’s original domicile in Lawrence County. “When the facts are conflicting as to a person’s intent, his original domicile is favored as his legal domicile.” Id. at 27. Because we are not firmly convinced that the trial court’s factual finding is wrong, Point III is denied.

The trial court’s judgment is affirmed.

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

      . A home is not limited to physical location— there is an:
      element of sentiment, that quality, intangible and elusive though it may be ... that lifts it from an adjunct of living to an object of life — that goes beyond the law's language and animates the image with the breath of family affection and the gentle warmth of hospitality shared with friends and endows it with comfort in affliction, with respite from care, and the promise of pleasant repose.

        State ex rel. Reardon v. Mueller, 388 S.W.2d 53, 57 (Mo.App. 1965).

      . In his brief, George employs well-known rules of statutory construction. As such, George concedes the phrase "resided in” is ambiguous. Harper, 118 S.W.3d at 199. Given the varied treatment of words such as resident, reside, residence, domicile, etc., we assume for purposes of this case that the phrase is ambiguous. See § 143.101 (resident means domiciled in state); State ex rel. Bowden v. Jensen, 359 S.W.2d 343, 349 (Mo.1962) (dictionary definition of "reside”); Barrett, 180 S.W.2d at 666 (reside and residence have same meaning and this meaning depends upon statutory purpose); State v. Pearson, 288 Mo. 103, 231 S.W. 595 (1921) ("resided in” does not mean "live in”); Johnson v. Otey, 299 S.W.3d 308, 310 (Mo.App.2009) (residence and domicile are different); Genrich v. Williams, 869 S.W.2d 209, 210 (Mo.App.1993) (finding caselaw has "combined and shuffled" definitions of domicile, bona fide residence, legal residence, and residence); Scotton v. Scotton, 359 S.W.2d 501, 506-07 (Mo.App.1962) (resided means domiciled).

      . The only caveat is that the council member must meet the requirement under the other statute, namely, he or she must reside within the ward for six months preceding the election.


author: VICTOR C. HOWARD, Judge.

text:
    STATE of Missouri, ex rel., HUMANE SOCIETY OF MISSOURI, Relator, v. Honorable Jon E. BEETEM, Respondent.
    No. WD 72661.
    Missouri Court of Appeals, Western District.
    Aug. 11, 2010.

      Heidi D. Vollet, for Relator.
    Charles W. Hatfield, for Respondent.
    Before Writ Division: JAMES M. SMART, JR., Presiding Judge, VICTOR C. HOWARD, Judge and JAMES E. WELSH, Judge.
   VICTOR C. HOWARD, Judge.

This discovery dispute arrives at the court of appeals in the context of a challenge to Secretary of State Robin Carna-han’s (the Secretary) ballot summary statement for an initiative petition proposed by the Humane Society of Missouri (HSMO). HSMO is part of a coalition group called Missourians for Protection of Dogs (MPD) that is advocating a statewide ballot measure to enact a new statutory provision to be known as the “Puppy Mill Cruelty Prevention Act.” Relator seeks a ■writ of prohibition from this court forbidding the compulsory disclosure of materials known as “Document 10.” This court issued a preliminary writ and then heard arguments. Because of the timeliness of the issue, we made our substantive ruling immediately after oral argument. We now issue our full opinion.

When an initiative petition for a statutory change is proposed, it is the responsibility of the Secretary to certify the official ballot title of the initiative. § 116.180. The ballot title consists of two parts: a summary statement and a fiscal note summary. § 116.010(4). The summary statement describing the initiative must not exceed 100 words and “shall be in the form of a question using language neither intentionally argumentative nor likely to create prejudice either for or against the proposed measure.” § 116.334. This summary statement is attached to the petition as it circulates for signatures and appears on the ballot at Election Day. § 116.010(4).

On December 28, 2009, the Secretary certified the ballot title for HSMO’s initiative, which included the summary statement reading as follows:

Shall Missouri law be amended to:

• require large-scale dog breeding operations to provide each dog under their care with sufficient food, clean water, housing and space; necessary veterinary care; regular exercise and adequate rest between breeding cycles;
• prohibit any breeder from having more than 50 breeding dogs for the purpose of selling their puppies as pets; and
• create a misdemeanor crime of “puppy mill cruelty” for any violations?

Missouri citizen and taxpayer Karen Strange filed a Petition for Declaratory Judgment and Injunctive Relief against the Secretary in the Circuit Court of Cole County challenging the Secretary’s summary statement as being “insufficient and unfair” for a variety of reasons. HSMO was allowed to intervene as an additional defendant. Pertinent to this appeal, Strange is alleging in the circuit court that use of the phrase “puppy mill cruelty” in the third bullet point of the summary is “inherently prejudicial and misleading” because the phrase is “derogatory.” Strange is asking the circuit court to rewrite the summary and has submitted alternate language in accordance with section 116.190, RSMo Cum.Supp.2009, which allows a citizen to challenge ballot language.

The Secretary and HSMO both deny the term is prejudicial. The Secretary points to the fact that she merely recites the title of the proposed crime and does so in quotation marks to demonstrate to the reader that these are not her words but those of the initiative. HSMO further contends any disclosure of Document 10 would violate its First Amendment free speech rights.

This writ application arises out of the underlying challenge to the ballot summary which is now pending in the circuit court. HSMO seeks protection from an order of the circuit court requiring it to disclose and turn over to plaintiff Karen Strange information gathered by HSMO and its partners, including the findings from a series of focus group studies. The documentation was developed to formulate political strategy, craft messaging, and analyze how the opponent’s political messaging might resonate with the public. This information is contained in what is referred to as Document 10. Prior to the time Respondent, Judge Beetem, assumed management of the case in the trial court, a previous judge ordered that Document 10 be disgorged. After the previous judge recused himself, the trial court declined to reverse course and ruled that the previous discovery order involving Document 10 remained in full force and effect. The trial court reasoned that it was going to be required to analyze the plain meaning of words to determine if the Secretary’s ballot language was likely to create prejudice for or against the measure because the name of the proposed new crime, “puppy mill cruelty,” was incorporated into the summary. In its order, the trial court states that “Document 10 contains evidence as to the meaning of words to the general public.” “It is likened to an additional dictionary which is possessed solely by the Defendants.” It found that Document 10 is relevant and material because “it is evidence of how people perceive certain words.” We disagree. We hold that the trial judge, who is educated and skilled in the English language, is able to determine as a matter of law whether the Secretary’s summary is prejudicial without having to resort to the type of information contained in Document 10. Document 10 is not relevant to the issue to be decided, nor is it reasonably calculated to lead to the discovery of admissible evidence. Accordingly, we need not address HSMO’s claim that the discovery order violates its First Amendment rights.

A trial court has broad discretion in controlling, managing, and administering the rules of discovery. State ex rel. Ford Motor Co. v. Messina, 71 S.W.3d 602, 607 (Mo. banc 2002); State ex rel. Am. Standard Ins. Co. of Wis. v. Clark, 243 S.W.3d 526, 529 (Mo.App. W.D.2008). We will interfere with the trial court’s exercise of discretion regarding discovery issues only when we deem it to have abused its discretion. See Am. Standard Ins. Co. of Wis., 243 S.W.3d at 529. “The trial court abuses [its] discretion if its order is clearly against the logic of the circumstances, is arbitrary and unreasonable, and indicates a lack of careful consideration.” Ford Motor Co., 71 S.W.3d at 607. A writ of prohibition is the proper remedy for an abuse of discretion during discovery. Id. The party seeking the writ has the burden of proving that the trial court abused its discretion. Am. Standard Ins. Co. of Wis., 243 S.W.3d at 529.

Rule 56.01(b) governs the scope of discovery. Pursuant to that rule, “[parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action.” Rule 56.01(b)(1). The discovery sought need not be admissible at trial, but must appear “reasonably calculated to lead to the discovery of admissible evidence.” Id. The party seeking to obtain discovery has the burden of establishing the relevance of the information in order to obtain it. Id. Under the current discovery rules, “the purposes of discovery are to eliminate concealment and surprise, to assist litigants in determining facts prior to trial, and to provide litigants with access to proper information through which to develop their contentions and to present their sides of the issues as framed by the pleadings.” See State ex rel. Woytus v. Ryan, 776 S.W.2d 389, 391 (Mo. banc 1989) (citations omitted).

Evidentiary relevance is directly related to the issue to be decided. Evidence relevant in the context of a given issue or subject matter may not be relevant in another context. The issue to be decided in the context of a ballot title challenge is set forth in section 116.190. A citizen may challenge a ballot title by bringing an action in the Circuit Court of Cole County. § 116.190.1. The petition must set forth “the reason or reasons why the summary statement portion of the official ballot title is insufficient or unfair and shall request a different summary statement portion of the official ballot title.” § 116.190.3 (emphasis added). The trial court then “shall consider the petition, hear arguments, and in its decision certify the summary statement portion of the official ballot title to the secretary of state.” § 116.190.4. We have previously defined “insufficient and unfair”: “Insufficient means ‘inadequate; especially lacking adequate power, capacity, or competence.’ The word ‘unfair’ means to be ‘marked by injustice, partiality, or deception.’ Thus, the words insufficient and unfair ... mean to inadequately and with bias, prejudice, deception and/or favoritism state the [consequences of the initiative].” Hancock v. Sec’y of State, 885 S.W.2d 42, 49 (Mo.App. W.D.1994) (internal citations omitted).

In this ease insufficiency is not an issue. Strange does not claim that the Secretary’s summary language inaccurately describes the initiative. Indeed, the term “puppy mill cruelty” is lifted directly from the initiative. The trial court will be deciding only if the summary is fair in the context of whether the language is likely to create prejudice for or against the measure. So, the ultimate issue before the trial court is whether the Secretary’s use of “puppy mill cruelty,” the title of the proposed crime, is likely to create prejudice for or against the measure.

Strange argues that the term “puppy mill” is a slur and is “inherently prejudicial.” As she advances her argument that Document 10 is discoverable, Strange strikes several chords: it may contain admissions from the drafters of the petition that they intended to be prejudicial in their selection of words (improper motive); that, in essence, focus group results are just an additional dictionary to help define words; and the document may contain other evidence to establish that certain words in the statement are likely to create prejudice.

The motives and political strategies of initiative proponents are not relevant to the court’s analysis of the Secretary’s summary statement. The Secretary had the independent duty to draft official ballot language in accordance with the law. Her duty required that she use her own judgment, and materials such as Document 10 are irrelevant to the exercise of that duty. We judge the final product of her efforts— not the dreams, wishes, and internal calculations of HSMO. If courts must determine the plain meaning of words to resolve an issue, we go where the law tells us to go— the dictionary. See, e.g., Burns v. Smith, 303 S.W.3d 505, 512 n. 5 (Mo. banc 2010). Focus group information is not a valid substitute.

Document 10 itself warns of many limitations in its findings because of the limited number of respondents. It points out that the study is not scientific and “cannot be considered reliable or valid in the statistical sense.” It also notes that “some of the information will seem inconsistent.”

In reaching our decision, we keep in mind that a court’s role “is not to act as a political arbiter between opposing viewpoints in the initiative process.” Missourians Against Human Cloning v. Carnahan, 190 S.W.3d 451, 456 (Mo.App. W.D.2006). Prior to a vote on an initiative, the role of a court is to “ ‘consider only those threshold issues that affect the integrity of the election itself.’” Id. (quoting United Gamefowl Breeders Ass’n of Mo. v. Nixon, 19 S.W.3d 137, 139 (Mo. banc 2000)). A finding that Document 10 is relevant and may be considered in the context of the issue presented in this case would likely distort and improperly expand the court’s role beyond its limited function of determining only whether the language of the summary statement is insufficient or unfair such that it likely creates prejudice for or against the measure. Judicial intervention is not an appropriate substitute for the give and take of the political process.

Therefore, we find that the determination of whether the Secretary’s summary language is unfair, in the context of this case, is essentially a question of law. Accordingly, the political strategy, slogan testing, and random perceptions of focus group participants contained in Document 10 are not relevant to the determination of whether the Secretary’s language is unfair. The trial judge is well equipped to decide the issue presented in this case without resort to Document 10. Document 10 is not discoverable, nor is it reasonably calculated to lead to the discovery of admissible evidence.

Accordingly, the preliminary writ of prohibition is made absolute in accordance with this opinion. In all other respects, the writ application is denied.

All concur.

      . The other three members of MPD are the Missouri Alliance for Animal Legislation, the American Society for the Prevention of Cruelty to Animals, and the Humane Society of the United States.

      . All statutory references are to RSMo 2000, unless otherwise noted.

      . The fiscal note summary is not at issue in this case.

      . The parties agree that the Secretary had no access to Document 10.

      . Particularly where Strange argues that the language is "inherently prejudicial," and the order refers to the information sought as an "additional dictionary," the circumstances of this case suggest that it is a question of law for the court to determine whether the language in the summary is inherently prejudicial, i.e., " ‘whether the language fairly and impartially summarizes the purposes of the initiative.' ” See Missourians Against Human Cloning, 190 S.W.3d at 457 (quoting Bergman v. Mills, 988 S.W.2d 84, 92 (Mo.App. W.D.1999)).

      . Clearly the contested language in the ballot title is not the language of the Secretary. A person looking at the ballot summary will easily discern that the phrase "puppy mill cruelty” is the language of the initiative's proponents. The phrase "puppy mill cruelty” was set out in quotation marks to indicate the content of the initiative.


author: GARY W. LYNCH, Presiding Judge.

text:
    BACA CHIROPRACTIC, P.C., Plaintiff-Respondent, v. Jerry COBB and Christie Cobb, Defendants-Appellants.
    No. SD 30271.
    Missouri Court of Appeals, Southern District, Division Two.
    Aug. 16, 2010.

      James E. Corbett, David T. Tunnell, Matthew W. Corbett, and Daniel P. Mol-loy, Corbett Law Firm, Springfield, MO, for Appellant.
    Raymond Lampert, Springfield, MO, for Respondent.
   GARY W. LYNCH, Presiding Judge.

Jerry Cobb and Christie Cobb (individually, “Jerry” and “Christie,” and collectively, “the Cobbs”) appeal the trial court’s judgment granting Baca Chiropractic, P.C.’s motion for summary judgment and awarding it $6,533.17 in unpaid fees. The Cobbs argue that the trial court erred in granting summary judgment because there was a genuine dispute as to whether the fees charged by Baca Chiropractic were reasonable, and therefore it was not entitled to judgment as a matter of law. We agree, reverse the trial court’s judgment, and remand for further proceedings.

Factual and Procedural Background

The Cobbs were in an automobile accident on May 29, 2004. Before that accident, from May 4, 2001, to December 20, 2002, both had received chiropractic treatment from Steven Baca, a chiropractor and the owner of Baca Chiropractic. Following the accident, the Cobbs again received treatment from Dr. Baca, this time from August 3, 2004, to March 3, 2005.

Dr. Baca sent the Cobbs a letter requesting payment on their outstanding account balances for treatment following the accident, which amounted to $3,485.00 on Christie’s account, and $1,415.00 on Jerry’s account, for a total of $4,900.00. In that letter, Dr. Baca gave the Cobbs until January 2, 2008, to contact his office regarding payment of the accounts or he would turn the accounts over to his collections attorney. On January 10, 2008, Creditors Financial Services, L.L.C., sent the Cobbs a letter demanding payment in the amount of $6,533.17; that letter did not contain an itemization of the charges.

The following month, Baca Chiropractic filed a two-count petition against the Cobbs. Count I alleged that the Cobbs owed Baca Chiropractic $6,533.17, which included “reasonable collection fees,” and that both individuals should be held liable for the entire amount. Count II alleged that the Cobbs were unjustly enriched by accepting Dr. Baca’s treatment without submitting payment. Attached to the petition was the sworn affidavit of Dr. Baca averring that he had provided the requested services, that his fees were reasonable, and that the Cobbs refused to pay; an “itemized and true copy of the accounts]”; a “Doctor’s Lien” relating to Christie and a “Clinic Lien” relating to Jerry; health history questionnaires for both Cobbs; a request for Jerry’s medical records; and the two collection letters described supra.

In their answer, the Cobbs contended that the fees sought were unreasonable as the fees were the product of “price gouging,” that they were charged different rates before and after their accident, that Baca Chiropractic charged the higher rate after the accident because it “thought it could engage in price gouging,” that they were not made aware of the price difference until after their treatment, and that they would not have continued with treatment from Dr. Baca had they known about the increased prices.

Baca Chiropractic then filed a motion for summary judgment, arguing that

[t]he [Cobbs] have admitted in their pleadings and in discovery that Baca offered and they accepted the services and they promised to pay the bill. They have not contradicted the reasonable charges affidavit. There is therefore no genuine issue of material fact and the Court should enter judgment in favor of [Baca Chiropractic] for the full amount due plus attorney fees.

Baca Chiropractic went on to argue that, even though “[i]n their answer, the [Cobbs] denied that [the] charges are reasonable[, nevertheless they have not provided the affidavit required under § 490.525.2 to rebut the established presumption of reasonableness. Because [Baca Chiropractic] has filed the required affidavit there is sufficient evidence to support that the charges were reasonable.” Accompanying Baca Chiropractic’s motion for summary judgment was “Plaintiffs Statement of Facts,” which alleged three facts: “1. [The Cobbs] requested that [Baca Chiropractic] provide them chiropractic services, and [Baca Chiropractic] provided said services to [the Cobbs]”; “2. [Baca Chiropractic’s] charges for said services were reasonable[;]” and “3. Said charges were not paid.” These facts were supported by citation to the pleadings, Dr. Baca’s affidavit, and deposition testimony of both Jerry and Christie, portions of which were also attached to the motion for summary judgment.

The Cobbs filed their response to the motion for summary judgment again asserting the unreasonableness of Dr. Baca’s charges. Attached to this motion were Jerry’s affidavit, Christie’s affidavit, and itemized billing statements from Baca Chiropractic from both before and after the automobile accident.

Along with their response to the motion for summary judgment, the Cobbs also filed a “Motion for Leave of Court to File Counteraffidavits Pursuant to RSMo. § 490.525.5 Out of Time.” The counteraffi-davits referred to in and attached to this motion were the same affidavits of Jerry and Christie that were referenced in and attached to their response to the motion for summary judgment.

Jerry’s and Christie’s affidavits aver that Dr. Baca charged them different rates after the accident than he had charged before the accident, that Dr. Baca had represented to the Cobbs that he would charge them the same rates as he had charged before the accident, that the ultimate fees sought were unreasonable, that neither Christie nor Jerry would have treated with Dr. Baca had they known what the charges would be, and that they believed Dr. Baca charged higher rates because he knew an insurance company would be paying the bill.

The trial court granted Baca Chiropractic’s motion for summary judgment and entered judgment accordingly on December 3, 2009. In its judgment, the trial court awarded Baca Chiropractic $6,533.17, the amount requested in its petition, against the Cobbs. This appeal timely followed.

Standard of Review

In reviewing a trial court’s grant of a motion for summary judgment, “we employ a de novo standard of review.” Neasler v. Keirsbilck, 307 S.W.3d 193, 194 (Mo.App.2010) (citing City of Springfield v. Gee, 149 S.W.3d 609, 612 (Mo.App.2004)). As such, we will not defer to the trial court’s decision, Murphy v. Jackson Nat’l Life Ins., Co., 83 S.W.3d 663, 665 (Mo.App.2002), but rather, we will use the same standards the trial court should have used in reaching its decision to grant the motion for summary judgment. Stormer v. Richfield Hospitality Servs., Inc., 60 S.W.3d 10, 12 (Mo.App.2001). “We view the record in the light most favorable to the party against whom judgment was entered, and we accord that party the benefit of all inferences which may reasonably be drawn from the record.” Neisler, 307 S.W.3d at 194-95 (citing ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993)). “The propriety of summary judgment is purely an issue of law.” ITT Commercial Fin. Corp., 854 S.W.2d at 376.

Discussion

In their sole point relied on, the Cobbs contend that the trial court erred in granting Baca Chiropractic’s motion for summary judgment because there was a genuine issue of material fact as to whether its charges were reasonable. We agree.

To be entitled to summary judgment under Rule 74.04 as a claimant, the mov-ant must establish that (1) it is entitled to judgment as a matter of law and (2) there is no genuine dispute as to the material facts upon which it would have the burden of persuasion at trial.... Once the movant has made this prima facie showing as required by Rule 74.04, the non-movant must demonstrate that one or more of the material facts asserted by the movant as not in dispute is, in fact, genuinely disputed.... The non-moving party may not rely on mere allegations and denials of the pleadings, but must use affidavits, depositions, answers to interrogatories, or admissions on file to demonstrate the existence of a genuine issue for trial.

Midwestern Health Mgmt., Inc. v. Walker, 208 S.W.3d 295, 297 (Mo.App.2006) (internal citations omitted).

Here, in order to make a prima facie case for summary judgment on its open account action, Baca Chiropractic was required to plead in its summary judgment motion all of the facts necessary to establish each and every element of its claim, referencing any pertinent pleadings, discovery, or affidavits. ITT Commercial Fin. Corp., 854 S.W.2d at 380.

“An action on account is an action based in contract.” Midwestern Health Mgmt., Inc., 208 S.W.3d at 297 (citing Heritage Roofing, L.L.C. v. Fischer, 164 S.W.3d 128, 133 (Mo.App.2005); St. Luke’s Episcopal-Presbyterian Hosp. v. Underwood, 957 S.W.2d 496, 498 (Mo.App.1997)). There are three elements that must be proven in a suit on open account: “(1) the defendant requested the plaintiff to furnish goods or services, (2) the plaintiff accepted the defendant’s offer by furnishing the goods or services, and (3) the charges were reasonable.” Id.

In its motion for summary judgment, Baca Chiropractic alleged all three of these elements with references to the applicable documents, including Dr. Baca’s affidavit, which stated that the fees Baca Chiropractic charged the Cobbs for chiropractic services “were reasonable!.]” Dr. Baca’s affidavit was the only evidence offered by Baca Chiropractic in support of its contention that the fees it charged the Cobbs were reasonable. In their response, the Cobbs admitted both that they had requested treatment from Dr. Baca and that treatment was provided; the only element of Baca Chiropractic’s claim that they disputed was that the charges were reasonable.

Section 490.525 provides that,

[u]nless a controverting affidavit is filed as provided by this section, an affidavit that the amount a person charged for a service was reasonable at the time and place that the service was provided and that the service was necessary is sufficient evidence to support a finding of fact by judge or jury that the amount charged was reasonable or that the service was necessary.

Section 490.525.2. Thus, as expressly provided in this statute, absent a “controverting affidavit,” Baca Chiropractic’s use of Dr. Baca’s affidavit as to the reasonableness of the charges provided sufficient evidence to support its motion for summary judgment. The Cobbs, however, filed a controverting affidavit.

Section 490.525 states:

5. A party intending to controvert a claim reflected by the affidavit shall file a counteraffidavit with the clerk of the court and serve a copy of the counteraf-fidavit on each other party or the party’s attorney of record:
(1) Not later than:
(a) Thirty days after the day he receives a copy of the affidavit; and
(b) At least fourteen days before the day on which evidence is first presented at the trial of the case; or
(2) With leave of the court, at any time before the commencement of evidence at trial.

Section 490.525.5.

Baca Chiropractic first argues that the Cobbs filed their counteraffidavits out of time. The Cobbs admit that they did not file their counteraffidavits within the time required by section 490.525.5(1). The Cobbs contend, however, and we agree, that the trial court treated their counteraf-fidavits as having been timely filed, and thus the counteraffidavits were properly before the trial court by leave of court, in accordance with section 490.525.5(2). While there was no express ruling by the trial court on the Cobbs’ motion for leave to file the counteraffidavits out of time, the trial court articulated in the judgment that it had “considered said Motion [for summary judgment] and [the Cobbs’] Response, the documents attached thereto, and the arguments of counsel.” (Emphasis added). Because the documents attached to the Cobbs’ response included the counteraffidavits, the trial court’s consideration of them implicitly granted the Cobbs’ motion for leave to file them out of time in accordance with section 490.525.5(2). Cf. Premier Golf Missouri, LLC v. Staley Land Co., L.L.C., 282 S.W.3d 866, 871 (Mo.App.2009) (grant of motion for summary judgment on petition implicitly denied motions for summary judgment on counterclaims involving the same issues and evidence); State v. Tidwell, 888 S.W.2d 736, 743 (Mo.App.1994) (grant of motion for continuance for the purpose of obtaining defendant’s blood sample implicitly granted pending motion for order requiring defendant to submit blood sample); Midwest Materials Co. v. Vill. Dev. Co., 806 S.W.2d 477, 501 (Mo.App.1991) (finding of lack of bias and prejudice was implicit in the trial court’s overruling of the motion for new trial).

Baca Chiropractic next argues that, even if the affidavits were considered timely, the Cobbs were not qualified to make such affidavits as they are not “experts” within the meaning of the statute. The statute, in pertinent part, provides:

6. The counteraffidavit shall give reasonable notice of the basis on which the party filing it intends at trial to controvert the claim reflected by the initial affidavit and must be taken before a person authorized to administer oaths. The counteraffidavit shall be made by a person who is qualified, by knowledge, skill, experience, training, education or other expertise, to testify in contravention of all or part of any of the matters contained in the initial affidavit.

Section 490.525.6.

Baca Chiropractic contends that “a non-expert is not competent to testify that a professional’s charge for his services is unreasonable.” The statute, however, is void of any reference to an “expert”; rather, the statute requires that a coun-teraffidavit “be made by a person who is qualified, by knowledge, skill, experience, training, education or other expertise, to testify in contravention of all or part of any of the matters contained in the initial affidavit.” Section 490.525.6. Under the unique facts in this case, we find that the Cobbs were qualified to make such an affidavit by reason of their personal knowledge of and personal experience with Baca Chiropractic’s prior rates and Dr. Baca’s promise to adhere to those prior rates during the Cobbs’ post-accident treatment. The facts in the counter-affidavits support that Jerry and Christie were treated by Dr. Baca for a lengthy period of time before their accident, during which they were charged a certain amount for particular services; after their accident, Dr. Baca told the Cobbs that he would charge the same amount for the same services; and Dr. Baca instead charged the Cobbs a higher amount than he had previously charged them for the same services. Under this set of facts, the Cobbs were uniquely qualified to specifically contest the reasonableness of Baca Chiropractic’s fees based upon their knowledge and experience.

As the counteraffidavits were properly before the trial court, all that remains to be determined is whether the contents of the Cobbs’ counteraffidavits raise a genuine issue of material fact as to the reasonableness of Baca Chiropractic’s fees. “A ‘genuine issue’ exists where the record contains competent evidence of ‘two plausible, but contradictory, accounts of the essential facts.’” Robinson v. Mo. State Highway & Transp. Comm’n, 24 S.W.3d 67, 75-76 (Mo.App.2000) (quoting ITT Commercial Fin. Corp., 854 S.W.2d at 382). “A ‘genuine issue’ is a dispute that is real, not merely argumentative, imaginary or frivolous.” Id.

Here, both Jerry and Christie aver that Dr. Baca told them “he would charge the same rates post-accident as he did pre-accident[,]” but that Dr. Baca “charged higher rates for the treatment provided after the automobile accident compared with the rates he charged prior to the automobile accident.” Belief of these facts would support an inference that Baca Chiropractic’s fees in excess of those agreed to be charged are unreasonable. Therefore, these facts contradict the conclusory inference in Dr. Baca’s affidavit that the fees were “reasonable.” This contradiction raises a genuine issue of material fact as to the reasonableness of the fees and, accordingly, summary judgment was inappropriate. The Cobbs’ point is granted.

Decision

The trial court’s judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

SCOTT, C.J., and RAHMEYER, J., concur.

      . All statutory references are to RSMo Cum. Supp.2004, unless otherwise indicated.