author: JAMES M. SMART, JR., Judge.

text:
    Steven J. BABER, Respondent, v. DIRECTOR OF REVENUE, STATE of Missouri, Appellant.
    No. WD 71620.
    Missouri Court of Appeals, Western District.
    Aug. 17, 2010.

      Jonathan H. Hale, Jefferson City, MO, for appellant.
    Jeffrey S. Eastman, Gladstone, MO, for respondent.
    Before JAMES M. SMART, JR., P.J., MARK PFEIFFER and CYNTHIA L. MARTIN, JJ.
   JAMES M. SMART, JR., Judge.

The Director of Revenue appeals the reversal of the disqualification of Steven Baber’s commercial driving privilege. The sole point on appeal asserts the director proved a “conviction” as defined in section 302.700.2(8). The judgment is reversed.

Facts

Steven Baber was the holder of a base driving privilege and a commercial driving privilege, Class A (“CDL”). In August 2008, he was arrested in Platte County, Missouri, for driving while intoxicated. Thereafter, the Director of Revenue (“the director”) notified Baber of the pending suspension of his base driving privilege, conducted an administrative hearing regarding the proposed suspension, and notified Baber of the director’s final decision to impose the suspension. The director notified Baber that his CDL would be disqualified for one year, effective November 26, 2008.

Baber timely filed a petition in Platte County seeking a trial de novo pursuant to section 302.535 on the base privilege suspension and review under section 302.311 of the CDL disqualification. The circuit court heard both matters in August 2009 and issued its judgment affirming the suspension of Baber’s base privilege but reversing the disqualification of his CDL. As to Baber’s CDL, the circuit court found that the director failed to prove a “conviction” as defined in section 302.700.2(8).

Baber does not appeal the suspension of his base privilege. The director appeals the circuit court’s reversal of Baber’s CDL disqualification.

Analysis

The director claims the circuit court erred in ordering the removal of the one-year disqualification of Baber’s commercial driving privilege. The circuit court found that the director failed to show that Baber was “convicted” as defined in section 302.700.2(8). The director says the disqualification is required by section 302.755.1(1), because as a result of his arrest, Baber was “convicted” of a first violation of “driving under the influence of alcohol,” as defined in section 302.700.2, subsections (8), (13)(b), (13)(c), and (13)(e).

Standard of Review

“In this court-tried case, the standard of review is that of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).” Fick v. Dir. of Revenue, State of Missouri, 240 S.W.3d 688, 690 (Mo. banc 2007). “This Court will affirm the judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law.” Id. “As long as the trial court’s judgment is supported by substantial evidence, the appellate court will affirm the judgment, regardless of whether the appellate court would have reached the same result.” Martin v. Dir. of Revenue, 248 S.W.3d 685, 687 (Mo.App.2008). “But if the evidence is uncontroverted or admitted, so that the real issue is a legal one as to the legal effect of the evidence, there is no need to defer to the circuit court’s judgment.” Id. Here, the circuit court determined that Baker’s due process rights were violated, and for that reason directed that the disqualification of his CDL privilege be set aside and his privilege restored. Because the issue is strictly a matter of law, we review the ruling de novo. Id.

Base Driving Privilege

Section 302.505.1, RSMo Supp.2001, states that the department of revenue “shall suspend or revoke the license of any person upon its determination that the person was arrested upon probable cause to believe such person was driving a motor vehicle while the alcohol concentration in the person’s blood, breath, or urine was eight-hundredths of one percent or more by weight.” When a law enforcement officer arrests any person for driving while intoxicated, that officer “shall forward to the department a certified report of all information relevant to the enforcement action.” Section 302.510.1, RSMo Supp. 2005. When the department receives this report, it is required to make a determination whether to suspend or revoke that person’s license on the basis of that report, and that determination is final unless an administrative hearing is requested and held. Section 302.505.2.

A person has fifteen days to request an administrative hearing. Section 302.530.1, RSMo Supp.2005. When an administrative hearing is requested and held, the department reviews the matter and makes a final determination based on the evidence received at the hearing. Section 302.505.2. The sole issue at the administrative hearing is whether there is a preponderance of the evidence that the person was arrested on probable cause to believe he was driving with a blood, breath, or urine alcohol concentration of .08% or more. Sections 302.530.4 and 302.505.1. If the department finds “the affirmative of this issue, the suspension or revocation order shall be sustained.” Section 302.530.4. A person who has participated in an administrative hearing is entitled to prompt notice of the post-hearing decision. Section 302.530.6.

A person may challenge the department’s decision by requesting judicial review in the form of a trial de novo within fifteen days from the date notice of the department’s decision was mailed. Id. If a person fails to request judicial review, the department’s decision is final. Section 302.530.7.

Commercial Driving Privilege

Under Missouri’s Commercial Driver’s License Act (“CDLA”), a person is disqualified from driving a commercial motor vehicle for a period of not less than one year if “convicted ” of a first violation. Section 302.755.1, RSMo Supp.2005 (emphasis added). The CDLA defines “conviction” as “an unvacated adjudication of guilt, including pleas of guilt and nolo con-tendré, or a determination that a person has violated or failed to comply with the law in a court of original jurisdiction or an authorized administrative proceeding.” Section 302.700.2(8), RSMo Supp.2005 (emphasis added).

In Strap v. Director of Revenue, 311 S.W.3d 793, 795 (Mo. banc 2010), Strap had both a base driving privilege and a commercial driving privilege. Strap was arrested for driving while intoxicated, though the criminal charges against him were eventually dropped. Id. After a hearing officer sustained the suspension of Strap's base driving privilege, the director notified him that, “as a result of the administrative suspension of his base driving privilege, his commercial driving privilege would be disqualified for one year.” Id. Strup sought review of the suspension of his base driving privilege and the disqualification of his commercial driving privilege. Id.

The circuit court found that Strap’s base driving privilege was properly suspended. Id. “Concerning Strap’s commercial driving privilege, the circuit court ordered the director to remove the disqualification concluding that Strap’s due process rights were violated in that he had no opportunity to present evidence and that the director’s decision to disqualify his base driving privilege was contrary to chapter 302.” Id. “Strup did not appeal the judgment affirming the suspension of his base driving privilege.” Id. “The director timely appealed the judgment reversing the disqualification of Strap’s commercial driving privilege.” Id.

The Missouri Supreme Court found that Strap’s due process rights were not violated. Id. at 796. Its analysis about whether Strap’s commercial driving privilege was properly disqualified directly impacts the analysis as to Baber. On appeal, the director argued that the suspension of Strap’s base driving privilege constituted a “conviction” for the purposes of CDLA, which permits the director to disqualify a driver’s commercial privilege if he or she is “convicted” of a qualifying first violation. Id. at 796-97. The court noted that because Strup did not appeal the decision to uphold the suspension of his base driving privilege, that suspension was final. Id. at 797.

“One of the first violations that establishes a ‘conviction’ and merits disqualification under the CDLA is ‘[d]riving a motor vehicle under the influence of alcohol -’ ” Id. (citing section 302.755.1(1), RSMo Supp.2005). ‘“Driving under the influence of alcohol’ is defined in the CDLA to include [h]aving any state, county or municipal alcohol-related enforcement contact, as defined in subsection 3 of section 302.525.... ” Id. (citing section 302.700.2(13)(e), RSMo Supp.2005). “‘Alcohol-related enforcement contact’ includes “any suspension or revocation under sections 302.500 to 302.540....” Id. (citing section 302.525.3, RSMo Supp.2002).

The Missouri Supreme Court held: “The circuit court erred in reversing the disqualification of Strap’s commercial driving privilege because the suspension of Strap’s base driver’s license constitutes a conviction of driving under the influence of alcohol for the purposes of the CDLA, which is a first violation that merits disqualification of a person’s commercial driver’s privilege for a period of not less than one year.” Id.

Both parties recognize that Strup addresses the issues raised with respect to Baber’s CDL. In response to the holding of Strup v. Director of Revenue, Baber’s counsel declined to file a brief with this court. Similarly, the Department of Revenue waived oral argument in response to Strup v. Director of Revenue and Baber’s resulting decision not to file a brief. As in Strup, the circuit court erred in reversing the disqualification of Baber’s commercial driving privilege, because the suspension of Baber’s base driver’s license constitutes a conviction of driving under the influence of alcohol for the purposes of the CDLA, which is a first violation that merits disqualification of a person’s commercial driver’s privilege for a period of not less than one year.

Conclusion

The trial court erred in setting aside the disqualification of Baker’s Commercial Driver’s License privilege. The judgment is reversed, resulting in the reinstatement of the disqualification of his CDL privilege.

All concur.

      . Baber may not legally drive a commercial vehicle without his base privilege, but the continuing significance of the circuit court’s judgment setting aside the disqualification of his commercial driving privilege is that if the disqualification is not set aside and he receives a qualifying violation and a future disqualification of his commercial privilege, the disqualification would be for a minimum of ten years and possibly for life. Section 302.755.3, RSMo Supp.2009.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jonathan ELDRIDGE, Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondent.
    No. WD 71307.
    Missouri Court of Appeals, Western District.
    Aug. 17, 2010.
    Shelly A. Kintzel, Esq., Jefferson City, MO, for appellant.
    Adam T. Sanderberg, Esq., Columbia, MO, for respondent.
    BEFORE DIVISION FOUR: LISA WHITE HARDWICK, C.J., Presiding, JAMES E. WELSH and GARY D. WITT, JJ.
   ORDER

PER CURIAM.

Jonathan Eldridge appeals the Labor and Industrial Relations Commission’s determination that he is ineligible for unemployment compensation benefits based on his status as a full-time student. For reasons explained in a Memorandum provided to the parties, we find no error and affirm the Commission’s Order.

AFFIRMED. Rule 84.16(b).


author: PER CURIAM:

text:
    In the Matter of the Care and Treatment of Jason SAPP a/k/a Jason E. Sapp, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70987.
    Missouri Court of Appeals, Western District.
    Aug. 17, 2010.
    Emmett D. Queener, Columbia, MO, for Appellant.
    Chris Koster, Attorney General, Jayne T. Woods, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before Division I: JAMES M. SMART, JR., Presiding Judge, and MARK D. PFEIFFER and CYNTHIA L. MARTIN, Judges.
   Order

PER CURIAM:

Jason Sapp appeals the judgment of the Jackson County Probate Court (“trial court”) committing him involuntarily to the Department of Mental Health as a sexually violent predator. On appeal, Sapp argues that the trial court abused its discretion by excluding the testimony of Joy Grace. We disagree and affirm in this per curiam, order and have provided the parties a memorandum explaining our ruling today. Rule 84.16(b).


author: LISA WHITE HARDWICK, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Jacob MCGINNIS, Appellant.
    No. WD 69679.
    Missouri Court of Appeals, Western District.
    Aug. 17, 2010.
    Rosalynn Koch, Esq., Columbia, MO, for appellant.
    Shaun J. Mackelprang, Esq., Robert J. Bartholomew, Esq., Jefferson City, MO, for respondent.
    BEFORE DIVISION FOUR: LISA WHITE HARDWICK, C.J., Presiding, JAMES E. WELSH and GARY D. WITT, JJ.
   LISA WHITE HARDWICK, Chief Judge.

Following a bench trial, Jacob McGinnis challenges the sufficiency of the evidence to support his conviction for first-degree burglary. He contends the State failed to prove the element of unlawful entry. For reasons explained herein, we affirm the judgment of conviction.

Factual and ProceduRal History

On September 9, 2005, Jacob McGinnis arrived at the home of his best friend, Simon, and Simon’s wife, Kathy, to have a drink and watch a movie. Around 10:30 that Friday night, Simon and McGinnis left the home, and Kathy went to sleep.

McGinnis returned to the home at approximately 12:30 am and entered through the unlocked back door. He went into Kathy’s bedroom and woke her up with news that Simon had been arrested after he was involved in a fight. McGinnis told Kathy to wait in the kitchen while he retrieved his cell phone from the car to see whether Simon had called.

McGinnis returned from the car with a shotgun and told Kathy he was in a lot of trouble. He said he had injured or killed three people. McGinnis said Simon had started to “freak out” after the fight, so he had pointed the gun at Simon, duct-taped him, and put him in the trunk of the car to keep him from calling the police. McGin-nis then pointed the gun at Kathy and told her to walk into the bedroom. He again said he was in a lot of trouble but added that he wasn’t going to die or go to jail without first having sex. McGinnis then raped Kathy at gunpoint.

After McGinnis left, Kathy contacted the Kansas City Police Department to report that her husband had been kidnapped and she had been raped by McGinnis. The police, following up on a report of a dead person, found Simon’s body with multiple gunshot wounds near 1-29 and Bethel Road. Investigators concluded that McGin-nis had shot and killed Simon before he went to the home and raped Kathy.

McGinnis was arrested and charged with first-degree murder, forcible rape, first-degree burglary, and two counts of armed criminal action. He waived his right to a jury trial. Following a bench trial, he was convicted on all counts and sentenced to consecutive terms of life imprisonment without parole for murder, life imprisonment for forcible rape, fifteen years for burglary, and fifty years for each count of armed criminal action. In this appeal, McGinnis challenges only the sufficiency of the evidence to support the conviction for first-degree burglary.

Standard of Review

Appellate review in this case “ ‘is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt.’ ” State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993) (quoting State v. Dulany, 781 S.W.2d 52, 55 (Mo.banc 1989)). This court accepts “ ‘as true all the evidence favorable to the state, including all favorable inferences drawn from the evidence and disregards all evidence and inferences to the contrary.’ ” Id. (quoting Dulany, 781 S.W.2d at 55). This standard for reviewing the sufficiency of the evidence applies in both court-tried and jury-tried cases. State v. Sladek, 835 S.W.2d 308, 310 (Mo. banc 1992).

Analysis

The offense of first-degree burglary occurs when a person “knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein” and one of the following three circumstances exists: (1) the person is armed with a deadly weapon; (2) the person causes or threatens immediate physical injury to any person who is not a participant in the crime; or (3) another person, who is not a participant in the crime, is present in the structure. Section 569.160. To obtain a conviction for first-degree burglary, the State must prove each and every element of that offense beyond a reasonable doubt. State v. Sellmeyer, 108 S.W.3d 780, 782 (Mo.App.2003).

The State charged McGinnis with first-degree burglary based on the allegation that he “knowingly entered unlawfully in an inhabitable structure.” McGinnis contends his conviction on that charge must be reversed because the evidence was insufficient to prove that he entered Simon and Kathy’s home unlawfully. Based on his close friendship with Simon, McGinnis asserts he had permission to enter the couple’s home at will. Kathy testified at trial that McGinnis had regularly visited the home on Tuesdays and Fridays during the two-year period preceding the crimes. McGinnis argues the State failed to present any evidence that he entered the home unlawfully, which was an essential element of the first-degree burglary offense.

To prove that a defendant entered a building or inhabitable structure unlawfully, the State need only establish that the defendant “knew he had neither license nor privilege to enter.” State v. Jackson, 896 S.W.2d 75, 77 (Mo.App.1995); see § 569.010(8). If the defendant had “the consent of a resident to enter the home, he is not guilty of burglary, regardless of what other crimes he may have committed therein.” State v. Cooper, 215 S.W.3d 123, 126 (Mo. banc 2007). However, when such consent is obtained through deception or artifice, the entry is considered unlawful. State v. Thomas, 70 S.W.3d 496, 509 (Mo.App.2002); State v. Rollins, 882 S.W.2d 314, 315 (Mo.App.1994).

Here, the State presented evidence that McGinnis entered Kathy and Simon’s home after midnight through an unlocked back door. He went to Kathy’s bedroom and falsely told her that Simon had been arrested. He asked Kathy to wait in the kitchen while he retrieved his cell phone from the car to see if Simon had called. McGinnis came back into the home with a shotgun and falsely told Kathy that he had duct-taped Simon and put him in the trunk of the car. McGinnis then ordered Kathy into the bedroom, where he raped her at gunpoint.

Viewed in a light most favorable to the verdict, the evidence is sufficient to support a finding that McGinnis entered and then re-entered the home with the knowledge that he did not have permission to do so. First, McGinnis had shot and killed Simon before he went to the home after midnight. Despite his longstanding friendship with Simon, McGinnis could not reasonably have believed that he had permission to enter Kathy’s home shortly after he had murdered her husband. Second, McGinnis entered the house at 12:30 a.m. through a back door and went directly to Kathy’s bedroom. Even considering his frequent prior visits, there is no reason to assume that he would have permission to enter the home in the middle of the night, when he knew that Simon was not home, and proceed to a bedroom where Kathy was sleeping. Third, the only way that McGinnis was able to gain entry and then re-entry to the home was by deception. He initially lied to Kathy about his reason for coming to the home at that late hour, and then he lied about having to retrieve his cell phone from the car when he really intended to get his shotgun and use it to forcibly rape Kathy. McGinnis knew that if he told Kathy the truth about what had happened to Simon and what he intended to do to her, he would not be welcome in the home.

While McGinnis points out that Kathy never asked him to leave the home, this is not surprising given that he concocted a story suggesting her husband was in trouble, but still alive, so that she would be cooperative. Because McGinnis was masking his true intentions, any alleged consent was obtained only through artifice.

The court reached a similar conclusion in the first-degree burglary case of State v. Thomas, 70 S.W.3d 496, 502 (Mo.App.2002), where the defendant knocked on the door of the victim’s home and asked to use the phone. When the victim turned to get the phone, the defendant hit her on the head, grabbed her by the neck, and choked her to death. Id. at 502-03. As in the instant case, Thomas was charged with unlawfully entering the house rather than unlawfully remaining in the house. Id. at 508. On appeal, the defendant argued there was no evidence of unlawful entry because the victim allowed him to enter the home. Id. The court affirmed the conviction, concluding the “defendant never had a valid license to be in the victim’s house because he gained access through artifice, i.e., by telling [the] victim that he needed to use her phone when that clearly was not his intention.” Id. at 509.

As in Thomas, the evidence here was sufficient to establish that McGinnis knew he did not have permission to enter the home because he did so under false pretenses. Accordingly, the State proved the element of unlawful entry beyond a reasonable doubt. The circuit court did not err in finding McGinnis guilty of first-degree burglary. The point on appeal is denied.

Conclusion

We affirm the judgment of conviction.

All Concur.

      . The victims, "Simon” and "Kathy,” are referred to by fictitious names in compliance with Section 566.226, Revised Statutes of Missouri (Cum.Supp.2009).

      . All statutory citations are to the Revised Missouri Statutes (2000), as updated by the Cumulative Supplement (2009).

      . Notably, the State did not charge or allege that McGinnis committed first-degree burglary by knowingly remaining in the home unlawfully, as permitted under Section 569.160.


author: DANIEL E. SCOTT, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Donald FERRELL, Appellant.
    No. SD 30172.
    Missouri Court of Appeals, Southern District, Division Two.
    Aug. 17, 2010.
    N. Scott Rosenblum, Eric Selig, Erin R. Griebel, Rosenblum, Schwartz, Rogers & Glass, P.C., for Appellant.
    Chris Koster, Atty. Gen., Daniel N. McPherson, Asst. Atty. Gen. Jefferson City, for Respondent.
   DANIEL E. SCOTT, Chief Judge.

Donald Ferrell (Defendant) appeals from an order denying his release on probation under § 559.115. We dismiss the appeal because said order is not a final, appealable judgment.

There is no right of appeal without statutory authority. State v. Williams, 871 S.W.2d 450, 452 (Mo. banc 1994). In criminal cases, § 547.070 authorizes appeals from “final” judgments; a final judgment occurs when a sentence is entered; and probation is not part of a sentence. Id. “Consequently, there is no right to appeal a trial judge’s decision to grant or deny probation.” Id. See also State v. Mahurin, 207 S.W.3d 662, 662-68 (Mo.App.2006); State v. Carrillo, 935 S.W.2d 328, 329 & n. 1 (Mo.App.1996).

Defendant’s effort to distinguish this precedent is not persuasive, partly because it cites cases that were not direct appeals, but the type of writ actions that Williams called “sufficient” remedies in this situation. See 871 S.W.2d at 452 n. 2. Whatever such cases hold on the merits, they do not support a direct appeal here or undermine Williams on that issue.

Lacking authority to proceed, we dismiss this appeal.

RAHMEYER, P.J., and BATES, J., concur.

      . Statutory citations are to RSMo as amended through 2005.

      . These points wholly disregard Rule 84.04(d)(1)(A) and arguably preserve nothing for review, but we have exercised our discretion not to dismiss on that basis.

      .Defendant principally cites two mandamus cases: State ex rel. Mertens v. Brown, 198 S.W.3d 616, 619 (Mo. banc 2006) and State ex rel. Dane v. State, 115 S.W.3d 876, 879 (Mo.App.2003).


text:
    STATE of Missouri, Respondent, v. Courtney C. WALKER, Appellant.
    No. WD 70968.
    Missouri Court of Appeals, Western District.
    Aug. 24, 2010.
    Susan L. Hogan, for Appellant.
    Robert J. Bartholomew, for Respondent.
    Before Division Three: JAMES M. SMART, JR., Presiding Judge, JOSEPH M. ELLIS, Judge and GARY D. WITT, Judge.
   ORDER

PER CURIAM:

Courtney Walker appeals his convictions of one count of murder in the second degree and one count of armed criminal action and contends that the trial court erred in overruling his motions for judgment of acquittal when the State’s evidence was insufficient to prove that he acted with the required mental culpability. After a thorough review of the record, we conclude that there was sufficient evidence from which the trial court could have found Walker guilty beyond a reasonable doubt. An extended opinion would have no prece-dential value but a memorandum explaining or reasoning has been provided to the parties. Judgment affirmed. Rule 30.25(b).


text:
    Larry J. BARBER, Appellant, v. Robert L. HALL, M.D., et al., Respondents.
    No. WD 70866.
    Missouri Court of Appeals, Western District.
    Aug. 24, 2010.
    John H. Norton, for Appellant.
    Reid F. Holbrook, for Respondents.
    Before Division Three: JAMES M. SMART, JR., Presiding Judge, JOSEPH M. ELLIS, Judge and GARY D. WITT, Judge.
   ORDER

PER CURIAM:

Larry Barber appeals from a judgment entered in the Circuit Court of Clay County in favor of Dr. Robert Hall, Dr. Jonathan Blake, and Orthopedic Surgeons, Inc. in an action for medical malpractice filed by Barber. After a thorough review of the record, we conclude that the judgment is supported by substantial evidence, is not against the weight of the evidence, and that no error of law appears. No jurisprudential purpose would be served by a formal written opinion; however, the parties have been provided with a memorandum explaining the reasons for our decision.

Judgment affirmed. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Curtis L. CORNELIUS, Appellant.
    No. WD 70429.
    Missouri Court of Appeals, Western District.
    Aug. 24, 2010.
    Susan E. Summers, Kansas City, MO, for appellant.
    Shaun J. Mackelprang and Dora A. Fichter, Jefferson City, MO, for respondent.
    Before JAMES M. SMART, JR., P.J., JOSEPH M. ELLIS, and GARY D. WITT, JJ.
   Order

PER CURIAM:

Curtis L. Cornelius appeals his conviction of forcible rape. He argues that the trial court erred by denying his request for mistrial when the DNA analyst testified that his DNA standard was submitted under a different case number. He argues that this was inadmissible evidence of uncharged misconduct. Affirmed. Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Roger E. WERNER, Appellant.
    No. WD 70986.
    Missouri Court of Appeals, Western District.
    Aug. 24, 2010.
    Daniel N. McPherson, for Respondent.
    Andrew M. Curley, for Appellant.
    Before Division Three: JAMES M. SMART, JR., Presiding Judge, JOSEPH M. ELLIS, Judge and GARY D. WITT, Judge.
   ORDER

PER CURIAM:

Roger Werner appeals from his conviction by jury of one count of possession of a controlled substance (methamphetamine), § 195.202, and the four-year prison sentence he received as a result of that conviction. No jurisprudential purpose would be served by a formal written opinion; however, a memorandum explaining the reasons for our decision has been provided to the parties.

Judgment affirmed. Rule 30.25(b).


author: VICTOR C. HOWARD, Judge.

text:
    Dudley O. NEVINS, Respondent, v. Felicia A. GREEN, Appellant.
    No. WD 71750.
    Missouri Court of Appeals, Western District.
    Aug. 24, 2010.

      Felicia A. Green, Appellant Pro-se.
    Sandra G. Hessenflow, for Respondent.
    Before Division Three: VICTOR C. HOWARD, Presiding Judge, THOMAS H. NEWTON, Judge and GARY D. WITT, Judge.
   VICTOR C. HOWARD, Judge.

Felicia Green (“Mother”) appeals the trial court’s judgment determining paternity, child custody, and child support. In her five points on appeal, Mother claims that the trial court erred in: (1) including a 29% overnight visitation adjustment in its retroactive child support order; (2) awarding Dudley Nevins (“Father”) an excessive overnight visitation adjustment; (3) awarding Father a $354.00 credit based on health insurance expenses; (4) awarding Father the dependent tax exemption every other year; and (5) accepting a parenting plan that Mother had not approved. The judgment is reversed and remanded in part and affirmed in part.

Factual and Procedural Background

Mother and Father’s child (“Daughter”) was born on July 2, 1998. Mother and Father were never married and never lived together. Daughter has primarily resided with Mother for her entire life. For the first nine years of Daughter’s life, Mother and Father worked out an arrangement by which Father had overnight visitation with Daughter on Wednesdays and Fridays. During this period of time, the parties did not have a court-ordered visitation or custody arrangement, and neither Father nor Mother had been ordered to pay child support.

In March of 2008, Mother filed an administrative case seeking child support from Father. At the time Mother filed the case, Father’s overnight visitation with Daughter ceased. In April of 2008, the Family Support Division ordered Father to pay $601.00 per month in child support and ordered Father to maintain health insurance for Daughter.

On July 3, 2008, Mother was served with Father’s petition for determination of paternity, child support, and child custody. Mother and Father settled some issues prior to trial, leaving the amount of child support and the allotment of custody time as the primary issues before the trial court. Both parties agreed that they would have joint custody of Daughter and that Father would receive significant custody time. However, under Father’s plan, his time with Daughter would be in larger blocks surrounding the weekends, and under Mother’s plan, Father’s days with Daughter were spread throughout the week and weekend. The trial court found that Mother’s parenting plan was in the best interests of Daughter because it more closely resembled the visitation arrangement Daughter was already used to.

Both parties submitted Form 14s to the trial court. The trial court rejected Mother’s Form 14 because it did not accurately calculate Father’s overnight visitation adjustment and also rejected Father’s Form 14 because it did not accurately reflect Mother’s income. In its own Form 14, the court included a 29% overnight visitation adjustment for Father based on the number of days he would keep Daughter overnight. This resulted in a presumed child support amount of $315.00 per month. The trial court found that the amount was not rebutted as being unjust or inappropriate.

The trial court made the child support award retroactive to July 3, 2008, the date on which Mother was served with Father’s petition. The court stated that it was aware that the award included a reduction for visitation that Father did not actually exercise during the pendency of the case. However, the court found that a retroactive overnight visitation adjustment was nonetheless justifiable because the testimony at trial indicated that Mother would not allow Father to have the visitation he previously enjoyed during the pendency of the case. The retroactive application resulted in an overage of $3,432.00, and the court accepted Father’s recommendation that the overage be used as a credit against his. future child support obligations.

Although the administrative order required Father to enroll Daughter in a health benefit plan, Mother and Father agreed that Mother would provide health insurance for Daughter. However, Father testified that he would not be able to drop Daughter from his coverage for several months. Father also testified that his cost for health insurance coverage for himself and Daughter was $118.00 per month. The court divided that figure by two to determine the cost of providing coverage to Daughter and multiplied it by the number of months Father would have to pay for coverage until he could remove daughter from his plan. This resulted in $354.00 in expenses to Father, and the trial court found that Father was entitled to a credit of $354.00 toward his future child support obligations.

Lastly, the trial court’s judgment included a paragraph which gave Mother the right to claim Daughter as a dependent on her federal and state income tax returns for even-numbered years and gave Father the same right for odd-numbered years. While this provision was included in Mother’s parenting plan, when asked at trial whether it was correct that she did not have a problem with the court allocating the exemption to Father every other year, Mother responded, “No.” However, because the trial court adopted Mother’s parenting plan, its judgment included the tax exemption provision.

This pro se appeal by Mother followed.

Standard of Review

The judgment of the trial court in a paternity action will be affirmed on appeal unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. K.L.A. v. Aldridge, 241 S.W.3d 458, 460 (Mo.App. W.D.2007). The appellate court defers to the trial court’s determinations of credibility and views the evidence and reasonable inferences drawn therefrom in the light most favorable to the judgment. Id.

Retroactive Child Support Award

In her first point on appeal, Mother contends that the trial court erred in including a 29% overnight visitation adjustment in its retroactive award of child support. The trial court justified the inclusion of the adjustment by stating that, although Father did not exercise visitation during the pendency of the case, the testimony at trial indicated that this was only because Mother denied visitation. Mother claims that this finding was against the weight of the evidence in that Father did not testify that Mother denied him visitation.

In determining an award of child support, the trial court must follow a two-step procedure. Ricklefs v. Ricklefs, 39 S.W.3d 865, 869-70 (Mo.App. W.D.2001). In the first step, the trial court must determine and find for the record the presumed child support amount (“PCSA”) in accordance with Form 14. Id. at 870. In the second step, “the court, after considering all relevant factors, must determine whether to rebut the PCSA as being unjust or inappropriate.” Id. In determining the PCSA, Line 11 of Form 14 provides for an adjustment for a portion of the amounts expended by the parent obligated to pay child support during periods of overnight visitation or custody. The Directions, Comments for Use and Examples for Completion of Form No. 14, Line 11, provide that the adjustment shall be calculated by multiplying the basic child support amount on Line 5 by a percentage “based on the number of periods of overnight visitation or custody per year awarded to and exercised by the parent obligated to pay support under any order or judgment.”

A trial court has discretion to order the effective date of a child support order at a time subsequent to the date of filing. Overstreet v. Overstreet, 214 S.W.3d 347, 348 (Mo.App. E.D.2007); see also § 452.340.1 (providing that a court may make an award of child support retroactive to the date of the filing of the petition). However, Mother does not contend that the trial court may not make the child support award effective as of the date she was served with the petition but, rather, claims that the court erred in including the overnight visitation credit in the retroactive award because the inclusion of the credit was not supported by the evidence.

In applying the award of child support retroactively, the court noted that it was aware that the award including a reduction for visitation that Father did not actually exercise while the case was pending; however, the court found that there was testimony indicating that Mother would not allow Father to exercise the visitation he had previously enjoyed during the pen-dency of the case. Therefore, the court found that the inclusion of the credit in the retroactive award was proper in that it would be inequitable to allow Mother to gain financially for failing to allow Father to have visitation with Daughter while the case was pending. Mother claims that this finding is not supported by the evidence in that Father never testified that Mother denied him visitation.

In his brief, Father states that he testified that, once Mother filed the administrative child support case, Mother would not provide adequate visitation and that the visitation Mother did offer was very sporadic. The transcript pages Father cites for this testimony reveal that, when Father’s attorney asked whether his visits with Daughter ceased after Mother filed the administrative case, Father simply responded, “Yes.” When Father’s attorney asked whether his visits with Daughter had been sporadic during the last year, Father responded, “Very sporadic.” Father’s attorney did not ask him why visitation had ceased, and at no point in his testimony did Father state that Mother had prevented him from seeing Daughter.

Father points to other testimony which he alleges supports the court’s finding that Mother denied him visitation. Father testified that he did not have an enforceable parenting plan during the pendency of this case, and there was evidence that the parties had participated in three mediations in which they were unable to agree upon a visitation schedule. While Father agreed on cross-examination that it was unfair for him to receive a credit for overnight visitation that he did not exercise, he also agreed on re-direct that it was unfair that he did not have overnight visits when he did not have a parenting plan in effect. Lastly, Father testified that, at the time the administrative order went into effect, the visitation arrangement he and Mother had agreed on no longer worked for him.

Although this testimony may indicate that Father no longer agreed with the visitation arrangement the parties had been following, and that Mother and Father could not come to an agreement on a new plan during the mediations, nothing in Father’s testimony suggests that Mother denied Father his regular Wednesday and Friday visitation. Father’s attorney asked Father if visitation ceased but did not question Father as to why this had occurred or ask Father if Mother denied him visitation. Where the testimony at trial did not establish that Father’s visitation ceased because Mother denied him visitation with Daughter, the trial court’s finding that Mother did not allow Father to have the visitation he previously enjoyed was not supported by substantial evidence. Therefore, the trial court erred in including a 29% overnight visitation credit in its retroactive child support award. Mother’s first point is granted, and the trial court’s inclusion of the 29% credit in its retroactive award of child support is reversed and remanded.

Overnight Visitation Adjustment Percentage

In her second point on appeal, Mother contends that the trial court erred in awarding Father a 29% overnight visitation credit. Mother claims that the credit is excessive in that Father never presented evidence to establish that he would incur significant expenses as a result of overnight visitation or custody.

The Directions, Comments for Use and Examples for Completion of Form No. 14, Line 11, set forth a table of percentages to be used in calculating an overnight visitation credit. If the parent obligated to pay support is awarded 92 to 109 overnight periods, the table provides for an adjustment of 10%. However, if the parent is awarded overnight periods of more than 109 days per year, the court may apply an adjustment greater than 10%. Mother argues that that there was no evidence to support a credit above 10%. However, it is clear from the record that both Mother and Father’s parenting plans provided that Father would have custody of Daughter for 155 overnight periods. Father presented evidence as to how the number of overnight periods was used to arrive at the 29% credit. Mother does not challenge this calculation.

Mother’s only remaining argument is her contention that Father did not introduce any evidence to establish that he would incur significant expenses as a result of overnight periods of custody. The Directions, Comments for Use and Examples for Completion of Form No. 14, Line 11, Comment B(2) provides that the overnight visitation adjustment may be rebutted if the parent obligated to pay child support does not incur significant expenditures due to periods of overnight visitation or custody. Therefore, Father did not have the burden of presenting evidence that he incurred significant expenditures in order to receive the adjustment; rather, Mother was required to submit evidence showing that Father did not incur such expenditures in order to rebut the adjustment. Where Mother did not present evidence rebutting the adjustment and does not claim that the court incorrectly calculated the adjustment, the trial court did not err in awarding Father a 29% adjustment based on expenditures resulting from overnight periods of custody. Mother’s second point is denied.

Health Insurance Credit

In her third point on appeal, Mother contends that the trial court erred in awarding Father a $354.00 credit toward future child support based on expenditures associated with maintaining insurance for Daughter. Mother does not claim that the court should not have awarded Father a credit at all but, rather, argues that the amount of the credit was incorrect.

Although the administrative order required Father to maintain health insurance for Daughter, Mother and Father agreed prior to trial that Mother would maintain health insurance. However, Father testified that he would not be able to terminate his health coverage plan for Daughter for five to six months when a new open enrollment period began. Father testified and introduced exhibits showing that his health plan for both himself and Daughter cost $118.00 per month. The trial court divided this amount in half to arrive at the conclusion that it cost Father $59.00 per month to provide insurance for Daughter. The court then multiplied this figure by six, the number of months during which Father could not drop Daughter from his health plan. The ultimate amount Father had to expend during that period was $354.00.

Mother argues that Father’s pay stubs reflect an expense of $30.00 per month for the cost of health insurance, which, under the trial court’s calculation, would mean that Father expended only $15.00 per month on insurance for Daughter. Mother claims that, therefore, Father is entitled to only a $90.00 credit based on the six months during which he cannot drop Daughter from his health plan. Mother’s reference to an amount of $30.00 only includes Father’s expenditures for medical insurance. Mother’s calculation ignores, without explanation, the evidence that Father incurred expenses for other types of insurance for Daughter, including dental and vision. Where there was evidence of Father’s expenses and evidence to support the trial court’s calculation of the $354.00 credit, Mother has not demonstrated that the trial court erred in awarding Father the $354.00 credit. Mother’s third point is denied.

Award of Tax Exemptions

In her fourth point on appeal, Mother contends that the trial court erred in allowing Father to claim Daughter as a dependent on his federal and state income tax returns for odd-numbered years. Mother claims that the trial court’s award does not comply with 26 U.S.C. § 152(e) and that Assumption 7 of Form 14 presumes that the parent entitled to receive child support gets the tax exemption.

For federal tax purposes, the parent who has custody for the greater portion of the calendar year is referred to as the “custodial parent.” 26 U.S.C. § 152(e)(4)(A). The other parent is referred to as the “noncustodial parent.” Id. at § 152(e)(4)(B). Based on the trial court’s judgment, Mother will be the custodial parent of Daughter for federal tax purposes. Under federal law, the custodial parent will receive the exemption. Simon-Harris v. Harris, 138 S.W.3d 170, 182 (Mo.App. W.D.2004). An exception to the general rule provides that the noncustodial parent may claim the child as a dependent if the custodial parent signs a written declaration that he or she will not claim the child as a dependent for the taxable year, and the noncustodial parent attaches the declaration to his or her return for the taxable year. 26 U.S.C. § 152(e)(2)(A)-(B).

Missouri courts have held that, based on the language of § 152(e), “the trial court does not have the authority to merely order that the non-custodial parent get the dependency exemption.” See, e.g., Simon-Harris, 138 S.W.3d at 183. To effectuate the allocation of the tax exemption to Father, the noncustodial parent, the trial court is required to order Mother, the custodial parent, to sign the declaration described in § 152(e) for each odd-numbered year. Therefore, on remand the trial court must modify its order to require Mother to sign the declaration for each odd-numbered year so that Father may take the exemption for those years.

Mother also argues that the trial court erred in giving Father the exemption because the Form 14 assumptions presume that the parent entitled to receive child support gets the exemption. Assumption 7 of Form 14 provides that “[t]he schedule of basic child support obligations assumes that the parent entitled to receive support claims the tax exemption for the children entitled to support.” This court has held that, because the Form 14 child support calculation “is based, in part, on Assumption 7, to award a dependent tax exemption to the child-support obligor, the trial court is required to rebut the PCSA as being unjust or inappropriate, even if the dollar amount is not rebutted.” See, e.g., Jarvis v. Jarvis, 131 S.W.3d 894, 898 (Mo.App. W.D.2004). Therefore, to award Father the tax exemption, the trial court was required to rebut the PCSA and make a written finding that it was unjust or inappropriate. See id. Because the trial court expressly found that the PCSA of $315.00 per month was not rebutted as being unjust or inappropriate, the court erred in awarding Father the tax exemption. On remand, the trial court must either make a finding that the PCSA is unjust or inappropriate or reverse the tax exemption award to Father. As noted earlier, if on remand the court allocates the tax exemption to Father, it must order Mother to sign the declaration described in § 152 of the Internal Revenue Code.

Adoption of Mother’s Parenting Plan

In her final point on appeal, Mother contends that the trial court erred in accepting a parenting plan that she did not approve of or sign before it was submitted in court. In arguing that she did not approve of the plan, Mother refers to various matters outside the record, particularly in her reply brief. Although Father filed a motion to strike her reply brief, we deny Father’s motion as we do not consider the matters outside the record to which Mother refers.

Mother cites only Rule 55.03(a) in support of her argument that the parenting plan must be signed by the parent before being submitted to the court. Rule 55.03(a) provides that “[ejvery pleading, motion and other filing shall be signed by at least one attorney of record in the attorney’s individual name.” However, a parenting plan is not a pleading, a motion, or the type of filing described in the rule. Furthermore, the rule requires only that the party’s attorney sign such a document, not the client herself. Therefore, Mother has failed to demonstrate error on the part of the trial court in accepting her parenting plan. Mother’s final point is denied.

Father’s Motion for Sanctions

After Mother filed her pro se appeal, Father filed a motion for damages pursuant to Rule 84.19 alleging that Mother’s appeal was frivolous. The trial court has already awarded Father $2,500.00 to partially offset Father’s expenses in defending the appeal. Furthermore, because we have determined that two of Mother’s points on appeal are meritorious, Father’s motion for damages is denied.

Conclusion

The trial court’s inclusion of a 29% overnight visitation credit in its retroactive child support award is reversed and remanded. Additionally, the trial court’s award of the tax exemption to Father for odd-numbered years is reversed and remanded. On remand, the trial court must either find that the PCSA is unjust or inappropriate or reverse the award of the tax exemption to Father. If the court chooses to allocate that tax exemption to Father, it must also order Mother to sign a written declaration for each year in which Father is awarded the tax exemption. The remainder of the trial court’s judgment is affirmed.

All concur.

      . We note that Father claims that the issue of whether the child support award would be retroactive was decided by the parties prior to trial. However, when the trial court asked Father's attorney to sum up the issues in the case at the end of the trial, counsel for Father stated that Mother had raised an issue regarding whether Father should get a credit for visitation that he did not have during the pendency of the case.

      . The only testimony indicating that Mother denied visitation was Mother’s admission that she told Father not to pick Daughter up for his next regular visitation day after he had received notice of the administrative case. Mother testified that Father had been angry, and she wanted to give him time to cool off. However, this single instance of a denial of visitation cannot be the basis for the trial court's finding because it occurred prior to the pendency of this case.

      . Father argues that the court’s inclusion of the credit was based on other concerns, namely the court's belief that the previously ordered child support amount was too high. However, this is not a proper basis upon which to award a credit for amounts expended during overnight visitation when Father did not actually exercise visitation, and the testimony at trial did not establish that Mother denied visitation.

      . Mother also claims in this point that Father submitted two Form 14s in violation of Rule 88.01. Nothing in Rule 88.01 prohibits parties from submitting more than one Form 14. Furthermore, this court has considered numerous cases in which a party has submitted more than one Form 14. See, e.g., Gerlach v. Adair, 211 S.W.3d 663, 667 (Mo.App. W.D.2007). The trial court did not err in receiving two Form 14s from Father.

      . Mother appears to claim that the administrative order required Father to provide medical insurance only, but the order states that Father must maintain or enroll Daughter in a "health benefit plan” and does not limit Father's responsibility to medical insurance only.

      . Father claims that Mother's allegation of error relates to a technical wording error and that, therefore, Mother's failure to file a Rule 78.07(c) motion to amend the judgment left her claim unpreserved. However, Mother argues not only that language ordering her to sign the declaration should have been included but also that the trial court did not have the authority to make the order it did make in that it contravenes § 152 of the Internal Revenue Code. Furthermore, resolution of this issue benefits Father by ensuring that the trial court orders Mother to sign the declaration so that he can take the exemption. Additionally, resolution of the issue serves the purpose of § 152(e), which is to achieve certainty in the allocation of the dependency exemption in order to resolve dependency disputes without the involvement of the Internal Revenue Service. See Vohsen v. Vohsen, 801 S.W.2d 789, 791 n. 2 (Mo.App. E.D.1991).

      . Father again argues that the issue was not preserved due to Mother’s failure to file a Rule 78.07(c) motion to amend the judgment requesting that the court make a finding that the PCSA was unjust or inappropriate. However, as in Jarvis, Mother argues that the finding the court did make was erroneous— i.e., that the PCSA was not unjust or inappropriate — and that this finding was inconsistent with the award of the tax exemption to Father. Therefore, we find that Mother did not have to file a Rule 78.07(c) motion in order to preserve this issue.


text:
    Richard MCMAHON, Clifford Hall and Linda Burgess, Derivatively on Behalf of Save-A-Connie, Inc., A Missouri Corp. d/b/a The Airline History Museum, Appellants, v. Foe GELDERSMA, Bob Love, Adam Lannon and Marcellus Cole, Respondents.
    No. WD 71515.
    Missouri Court of Appeals, Western District.
    Aug. 24, 2010.

      Kenneth E. Barnes, for Appellant.
    James D. Boggs, for Respondent.
    Before Division Three: VICTOR C. HOWARD, Presiding Judge, THOMAS H. NEWTON, Judge and GARY D. WITT, Judge.
   VICTOR C. HOWARD, Judge.

Richard McMahon, Clifford Hall, and Linda Burgess (Plaintiffs) appeal the judgment of the trial court dismissing the derivative action filed by them on behalf Save-A-Connie, Inc. d/b/a Airline History Museum (Corporation) against four former officers and board members of the company, Foe Geldersma, Bob Love, Adam Lan-non, and Mareellus Cole (Defendants). They claim that trial court erred in dismissing their action because they had already shown, and the trial court had already ruled, that their petition was brought by the requisite number of derivative members pursuant to section 355.221, RSMo 2000, and a motion to intervene filed by Corporation rendered the motion to dismiss moot. The judgment is affirmed.

Factual and Procedural Background

Plaintiffs filed this derivative lawsuit under section 355.221 on behalf of Corporation against Defendants for breach of contract, breach of fiduciary duty, conversion, and civil conspiracy in April 2007. Section 355.221.1 provides that a proceeding may be brought in the right of a nonprofit corporation to procure a judgment in its favor “by any member or members having ten percent or more of the voting power or by fifty members, whichever is less, or by any director.” In their petition, Plaintiffs named themselves as plaintiffs and further alleged that they were bringing the action on behalf and with consent of the requisite number of members of Corporation (over 50).

Soon thereafter, Defendants filed a motion to dismiss asserting, inter alia, that the petition failed to comply with the requirements of section 355.221. After a hearing on the motion, Plaintiffs filed an amended petition. The amended petition also alleged that Plaintiffs were bringing the action on behalf and with consent of the requisite number of members of Corporation (over 50).

In an interrogatory to Plaintiffs, Defendants requested the name and contact information for the fifty requisite members referenced in the petition. Defendants also requested the production of documents regarding the members’ intent to file or authorization for the lawsuit. Plaintiffs filed a motion for protective order for the information sought by Defendants claiming that they believed that Defendants’ main purpose in obtaining the information was to harass and potentially damage their case against Defendants. Defendants subsequently filed a motion to compel discovery claiming Plaintiffs had refused to provide the requested information and documents regarding the members. After a hearing on the motions, the trial court ordered Plaintiffs to provide Defendants all the requested information within thirty days and Defendants to submit to depositions within fifteen days after receipt of the outstanding discovery. Thereafter, Plaintiffs provided Defendants with a list of the members bringing the lawsuit as well as a list of every member of Corporation. Defendants then filed a motion for sanctions for Plaintiffs’ failure to provide discovery. Specifically, Defendants claimed, inter alia, that Plaintiffs failed to produce documents regarding members’ intent to sue as ordered by the trial court. Plaintiffs also filed a motion for sanctions regarding depositions of Defendants.

In the meantime, Defendants filed a motion for summary judgment asserting that the petition only named three plaintiffs and did not name the requisite number of members as plaintiffs as required by section 355.221.1. Plaintiffs filed suggestions in opposition to the motion arguing that it should be treated as a motion to dismiss and that section 355.221.1 does not require that each plaintiff member be named in the petition. The motion for summary judgment was eventually denied.

The trial court then appointed a special master under Rule 68.01(a) to hear the issues raised in discovery and report his conclusions to the court. Thereafter, Defendants filed a motion to stay depositions alleging that interrogatories should be answered by the members bringing the action before conducting any further discovery. Defendants alleged that the interrogatories were sent because they had been contacted by members who were named as plaintiffs but contended that they were not plaintiffs in the case and never had been. After a hearing on the motion, the special master entered an order and report staying all discovery and ordering that the members must answer interrogatories by April 24, 2009, as to whether they are plaintiffs in the case and whether they intended to be plaintiffs on the date of filing of the petition in April 2007. Plaintiffs opposed the special master’s report arguing that the trial court had already found, by denying Defendants’ motions to dismiss and for summary judgment, that the derivative action was brought by the required fifty or more members and that Defendants were barred by collateral estoppel from litigating the issue for a third time. On April 24, 2009, after a hearing on Plaintiffs’ objections, the trial court confirmed the special master’s report.

Defendants then filed a motion to dismiss on May 4, 2009, arguing that Plaintiffs had failed to submit the interrogatory answers from the members as ordered by the special master and confirmed by the trial court and that Plaintiffs had failed to produce any evidence that the members identified by them as plaintiffs in discovery were in fact plaintiffs or intended to be plaintiffs at the time the petition was filed. On June 24, 2009, Corporation filed a motion to intervene in the place of the members arguing that it “now wishes to protect its interests and proceed with this action without burden on its membership.” The parties argued their motions to dismiss and intervene at a hearing on July 22, 2009, and the trial court took the matters under advisement. On August 25, 2009, Defendants filed another motion to dismiss arguing that an identical lawsuit was filed by Corporation against Defendants on June 24, 2009. The trial court denied Corporation’s motion to intervene and granted Defendant’s motion to dismiss on September 2, 2009. This appeal by Plaintiffs followed.

Grant of Motion to Dismiss

In their first point on appeal, Plaintiffs claim that the trial court erred in dismissing their derivative action filed on behalf of Corporation because they had already shown, and the trial court had already ruled, that their petition was brought by the requisite number of members pursuant to section 355.221.

Review of a trial court’s grant of a motion to dismiss is de novo. Heidbreder v. Tambke, 284 S.W.3d 740, 742 (Mo.App. W.D.2009). Where the trial court does not state the grounds for dismissal, the reviewing court presumes that the decision was based on one or more grounds alleged in the motion to dismiss. Id. “The dismissal will be affirmed if it was proper as a matter of law based on any ground alleged in the motion to dismiss.” Id. Here, dismissal was sought based on a lack of requisite members to bring the suit under section 355.221.1 and the pendency of another action between the same parties for the same cause under Rule 55.27.

Section 355.221.1 provides that a proceeding may be brought in the right of a nonprofit corporation to procure a judgment in its favor “by any member or members having ten percent or more of the voting power or by fifty members, whichever is less, or by any director.” “[E]ach complainant shall be a member or director at the time of bringing the proceeding.” § 355.221.2.

Early in the case, Defendants challenged Plaintiffs’ compliance with section 355.221.1 in motions to dismiss and for summary judgment. Both were denied. The special master subsequently ordered the members to answer further interrogatories after Defendants alleged they had received new information that certain members weren’t plaintiffs in the case and never intended to be. The trial court confirmed the special master’s order. When Plaintiffs did not submit the interrogatory answers from the members, Defendants filed another motion to dismiss claiming that Plaintiffs failed to produce any evidence that the members were plaintiffs or intended to be plaintiffs at the time the petition was filed. Plaintiffs contend that under the doctrine of collateral estoppel, Defendants were barred from relitigating for a third time the issue of whether the petition was brought by the requisite number of members because the trial court had previously denied their motions to dismiss and for summary judgment on the same issue.

“Collateral estoppel precludes parties from relitigating issues previously adjudicated.” Metal Exch. Corp. v. J.W. Terrill, Inc., 173 S.W.3d 672, 676 (Mo.App. E.D.2005). In determining whether collateral estoppel applies, four factors are considered:

(1) is the issue in the present case identical to the issue decided in the prior adjudication; (2) was there a judgment on the merits in the prior adjudication; (3) is the party against whom collateral estoppel asserted the same party or in privity with a party in the prior adjudication; and (4) did the party against whom collateral estoppel is asserted have a full and fair opportunity to litigate the issue in the prior suit.

State ex rel. Johns v. Kays, 181 S.W.3d 565, 566 (Mo. banc 2006).

The denial of a motion for summary judgment is not a final judgment on the merits. Metal Exch. Corp., 173 S.W.3d at 677. Moreover, the denial of a motion to dismiss is an interlocutory order and not a judgment on the merits. Stevenson v. City of St. Louis Sch. Dist., 820 S.W.2d 609, 611 (Mo.App. E.D.1991). “An interlocutory order may be reconsidered, amended, reversed or vacated by the trial court at any time prior to final judgment being entered.” Macke Laundry Serv. Ltd. P’ship v. Jetz Serv. Co., 931 S.W.2d 166, 176 (Mo.App. W.D.1996).

The denials of Defendants’ motions to dismiss and for summary judgment were interlocutory and were not judgments on the merits. Collateral estoppel, therefore, did not apply to bar further action by the special master and trial court on the issue of whether the petition was brought by the requisite number of members after Defendants asserted new evidence on the issue. The point is denied.

Denial of Corporation’s Motion to Intervene

Plaintiffs next argue that the trial court erred in dismissing their derivative action because the Corporation’s motion to intervene rendered the motion to dismiss moot. After Defendants filed their May 4, 2009 motion to dismiss based on lack of requisite number of members to bring the suit on behalf of Corporation, Corporation filed a motion to intervene as a matter of right in the place of Plaintiffs under Rule 52.12(a). They also argued that, at a minimum, their right to intervene was permissible under Rule 52.12(b). The trial court denied the motion.

Denial of a Rule 52.12 motion to intervene as a matter of right is affirmed on appeal unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. State ex rel. Nixon v. Am. Tobacco Co., 34 S.W.3d 122, 126 (Mo. banc 2000). Rule 52.12(a) provides:

Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an unconditional right to intervene or (2) when the applicant claims an interest relating to the property or transaction that is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

In the absence of a statute conferring an unconditional right to intervene, an applicant seeking intervention must file a timely motion showing three elements: “(1) an interest relating to the property or transaction which is the subject of the action; (2) that the applicant’s ability to protect the interest is impaired or impeded; and (3) that the existing parties are inadequately representing the applicant’s interest.” Am. Tobacco, 34 S.W.3d at 127 (internal quotes and citation omitted). “The proposed intervenor carries the burden of establishing the presence of all three elements required for intervention as a matter of right.” Id. When an applicant satisfies the elements, the right to intervene is absolute, and the motion to intervene may not be denied. Id.

Subsection b of Rule 52.12 governs permissive intervention. It provides, in pertinent part, that upon timely application, anyone may be permitted to intervene in an action “when an applicant’s claim or defense and the main action have a question of law or fact in common.” Rule 52.12(b). Review of a trial court’s decision regarding permissive intervention is for abuse of discretion. Am. Tobacco, 34 S.W.3d at 131. “Judicial discretion is abused when the trial court’s ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration....” Id. (internal quotes and citation omitted).

Here, Corporation failed to carry its burden of establishing the three elements required for intervention as a matter of right or to show that the trial court abused its discretion in denying permissive intervention. That Corporation has an interest in the derivative action brought on its behalf is obvious. Similarly, its claims have questions of law and fact in common with the derivative action. However, Corporation did not allege, much less establish, how its ability to protect its interest would be impaired but only asserted that it “now wishes to protect its interests and proceed with this action without the burden on its membership and with the full support of the Board of Directors and President.” The parties concede and the Missouri court system’s automated case record service, CaseNet, confirms that Corporation filed a separate action against Defendants in Clay County Circuit Court in case 09CY-CV06792 in June 2009 and that that case is pending. Given the availability of alternative relief, the trial court’s denial of Corporation’s motion to intervene was not so clearly against the logic of the circumstances or so arbitrary and unreasonable as to shock the sense of justice. See Id. (trial court did not abuse its discretion in not permitting intervention of applicant given the availability of alternative relief and possibility of undue delay and prejudice to original parties). The trial court did not err or abuse its discretion in denying Corporation’s motion to intervene, and such motion did not render Defendants’ motion to dismiss moot. The point is denied.

The judgment of the trial court dismissing the derivative action is affirmed.

All concur.

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

      . Plaintiffs argue that they were not given adequate time to answer the interrogatories ordered by the special master because the trial court confirmed the special master’s report on the day the answers were due on April 24, 2009. However, counsel for Plaintiffs admitted at the hearing on the motion to dismiss three months later on July 22, 2009, that Plaintiffs still had not sent the interrogatories to the members.


author: KAREN KING MITCHELL, Judge.

text:
    Rick ROBSON, Appellant, v. Bobbi Jo DIEM, et al., Respondents.
    No. WD 71084.
    Missouri Court of Appeals, Western District.
    Aug. 24, 2010.

      Steven M. Leigh and Beverly M. Weber, Kansas City, MO, and Shawn T. Briner, St. Louis, MO, for Appellant.
    Ryan Edward Shaw and John T. Cogh-lan, Kansas City, MO, for Respondents Bobbi Jo Diem and Abdulhamid Zlitni.
    Scott D. Mosier, Chesterfield, MO, for Respondent Countrywide Home Loans, Inc., and Federal National Mortgage Association.
    Before Division II: JOSEPH M. ELLIS, Presiding Judge, and JAMES M. SMART, JR., and KAREN KING MITCHELL, Judges.
   KAREN KING MITCHELL, Judge.

Appellant Rick Robson appeals the trial court’s grant of summary judgment in favor of Countrywide Home Loans, Inc. (“Countrywide”) and Bobbi Jo Diem and Abdulhamid Zlitni (collectively, “the Diems”), and the denial of Robson’s own motion for summary judgment. Robson’s amended petition sought declaratory judgment quieting title to the property legally described as Lot 15 of Shelly Estates in Parkville, Missouri. The Diems filed a counterclaim against Robson seeking his ejectment and damages for trespass. We reverse the judgment of the trial court and remand for further proceedings.

Factual and Procedural Background

Until late December, 2002, Thomas Walker and Katherine Walker (“the Walkers”) owned two tracts of land located in Parkville, Platte County, Missouri. The tracts were legally described as:

TRACT I:
ALL OF LOT 20, SHELLY ESTATES, A SUBDIVISION OF LAND IN PLATTE COUNTY, MISSOURI, ACCORDING TO THE RECORDED PLAT THEREOF. ALSO A STRIP OF LAND IN THE SOUTHEAST QUARTER OF SECTION 21, TOWNSHIP 51, RANGE 34, PLATTE COUNTY, MISSOURI, BEING BOUNDED AND DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 20; THENCE SOUTH 11 DEGREES 25 MINUTES 09 SECONDS EAST ALONG THE EAST LINE OF SAID LOT 20, 255.45 FEET MEASURED 251.60 FEET (PLAT) TO THE SOUTHEAST CORNER OF SAID LOT 20; THENCE SOUTHWESTERLY ON A CURVE TO THE LEFT HAVING A RADIUS OF 67.07 FEET, AN ARC DISTANCE OF 92.31 FEET TO A POINT ON THE SOUTHWESTERLY LINE OF SAID LOT 20; THENCE NORTH 64 DEGREES 56 MINUTES 45 SECONDS WEST ALONG THE SOUTHWESTERLY LINE OF SAID LOT 20 AND ITS NORTHWESTERLY PROLONGATION THEREOF 367.73 FEET TO A POINT IN THE WEST LINE OF SAID SOUTHEAST QUARTER; THENCE NORTH 0 DEGREES 07 MINUTES 18 SECONDS WEST ALONG THE WEST LINE OF SAID SOUTHEAST QUARTER 79.04 FEET; THENCE NORTH 77 DEGREES 00 MINUTES 07 SECONDS EAST ALONG THE NORTH LINE OF SAID LOT 20 AND ITS WESTERLY PROLONGATION THEREOF 348.76 FEET TO THE POINT OF BEGINNING, EXCEPT ANY PART IN ROADS, IF ANY.

and

TRACT II:
ALL OF LOT 15, SHELLY ESTATES, A SUBDIVISION OF LAND IN PLATTE COUNTY, MISSOURI, ACCORDING TO THE RECORDED PLAT THEREOF. AND A TRACT OF LAND 30.0 FEET IN WIDTH LYING WEST OF AND ADJACENT TO LOT 15, SHELLY ESTATES, A SUBDIVISION OF LAND IN PLATTE COUNTY, MISSOURI, ACCORDING TO THE RECORDED PLAT THEREOF, BEING BOUNDED AND DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 15, THENCE SOUTH 0 DEGREES 07 MINUTES 18 SECONDS EAST ALONG THE WEST LINE OF SAID LOT 15, 314.72 FEET TO THE SOUTHWEST CORNER OF SAID LOT 15, THENCE SOUTH 77 DEGREES 07 MINUTES 7 SECONDS WEST 30.77 FEET TO A POINT IN THE WEST LINE OF THE SOUTHEAST QUARTER OF SECTION 21, TOWNSHIP 51, RANGE 34, PLATTE COUNTY, MISSOURI; THENCE NORTH 0 DEGREES 07 MINUTES 18 SECONDS WEST ALONG THE WEST LINE OF SAID SOUTHEAST QUARTER 321.86 FEET; THENCE SOUTH 89 DEGREES 34 MINUTES 54 SECONDS EAST 30.01 FEET TO THE POINT OF BEGINNING, EXCEPT ANY PART IN ROADS, IF ANY.

On December 3, 2002, the Walkers executed a real estate contract with Robson to sell Lot 15 to Robson. At the time, the lot was unimproved, and it was Robson’s intention to build a residence on the lot.

On December 5, 2002, the Walkers executed a real estate contract with Sharia Johnson to sell Lot 20 to Johnson, which had an address of 12318 N.W. 65th Street, Parkville, Missouri. Lot 20 had been improved with a single-family residence, and Johnson paid a total of $235,000 to the Walkers. On December 23, 2002, at the closing of the sale to Johnson, the Walkers executed a warranty deed in order to convey Lot 20. The warranty deed, however, which was not prepared by the Walkers nor by Johnson, inadvertently included the legal property descriptions of both Lot 20 and Lot 15. On the same date, Johnson executed a deed of trust to First Magnus Financial Corporation (“First Magnus”) to secure a loan of $223,000 that First Mag-nus made to Johnson so that she could purchase the property. The First Magnus deed of trust also mistakenly included the legal descriptions to both Lot 20 and Lot 15. Although both the Walkers and Johnson signed the documents required for the various transactions, both the Walkers and Johnson later stated in affidavits that they were unaware of the mistake in the legal descriptions and that their intention was that only Lot 20 be conveyed to Johnson. Johnson also stated that only Lot 20 was to be secured by the First Magnus deed of trust.

On February 27, 2003, the Walkers executed and delivered to Robson a warranty deed conveying Lot 15 to Robson.

On September 8, 2003, a scrivener’s affidavit was recorded attempting to correct the warranty deed from the Walkers to Johnson so that the legal description would include only Lot 20. The scrivener’s affidavit was executed by Annette F. Elms, an employee of Premiere Land Title, who was the trustee to First Magnus under the deed of trust Johnson executed with First Magnus.

On approximately November 30, 2003, Robson began constructing a residence on Lot 15. No one requested Robson to quit possession of Lot 15 claiming an interest in the property. The Robson residence now has as its address 12315 N.W. 66th Street, Parkville, Missouri.

Johnson ultimately defaulted on her loan and on May 5, 2004, Millsap & Singer, P.C., as successor trustee under the First Magnus deed of trust, foreclosed on the First Magnus deed of trust. Only Johnson was given notice of the foreclosure sale. The foreclosure sale resulted in a successor trustee’s deed, which contained the same erroneous legal description (including both Lot 15 and Lot 20), to Federal National Mortgage Association (“FNMA”), the successful purchaser.

On August 5, 2004, FNMA executed a special warranty deed to the Diems. This deed contained the legal descriptions of both Lot 20 and Lot 15, but only listed the address of Lot 20. On October 19, 2005, the Diems executed a deed of trust to Home Loan Center, Inc., d/b/a Lending Tree Loans (“Home Loan Center”) to secure the repayment of $228,000. This deed of trust was recorded on November 9, 2005. The Home Loan Center deed of trust contains the legal description of both Lot 20 and Lot 15, although it again lists only the address of Lot 20. On January 25, 2006, the Diems executed a “second mortgage” deed of trust to First Horizon Home Loan Corporation to secure a note for $28,500. This deed of trust also lists as the “property address” the address of Lot 20, and includes the legal descriptions of both Lot 15 and Lot 20.

On April 25, 2008, Robson filed his first amended petition to quiet title pursuant to section 527.150, RSMo 2000, and for unjust enrichment/compensation for improvements. Countrywide, successor to First Magnus, raised as affirmative defenses that Robson lacked standing to seek the relief he requested and that he was es-topped from contesting title to Lot 15 because he was on notice as of February 27, 2003, the date the Johnson deed was executed and recorded, that Lot 15 had already been conveyed to Johnson. The Diems raised as an affirmative defense that they were bona fide purchasers of Lot 15. Robson, the Diems, and Countrywide submitted cross-motions for summary judgment to the trial court.

On May 18, 2009, the trial court granted Countrywide’s motion for summary judgment, finding that Robson has no interest in Lot 15 and that the Diems are the record owners of Lot 15. The trial court also granted summary judgment to the Diems on their claim for ejectment against Robson. The trial court denied Robson’s motion for summary judgment. Robson appeals.

Standard of Review

This court’s review of the trial court’s grant of summary judgment is essentially de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The criteria for testing the propriety of summary judgment are the same as those which the trial court should use to determine whether the motion for summary judgment should be sustained initially. Id. Initially, the defendants to Robson’s quiet title action could have shown that they were entitled to summary judgment if they had shown: (1) facts negating any element of Robson’s quiet title action; (2) that Robson, after an adequate period of discovery, would have been unable to produce evidence sufficient to establish any of the elements of his quiet title action; or (3) that there was no dispute as to any facts necessary to support one of the defendants’ properly pleaded affirmative defenses. See Shifflette v. Mo. Dep’t of Natural Res., 308 S.W.3d 331, 333 (Mo.App. W.D. 2010). The propriety of summary judgment is a matter of law, and as such we do not defer to the trial court’s order granting summary judgment. ITT, 854 S.W.2d at 376. We review the record in the light most favorable to the party against whom summary judgment was entered, according him the benefit of all reasonable inferences from the record. Shifflette, 308 S.W.3d at 333.

Robson also .appeals the trial court’s denial of his motion for summary judgment. “Generally, an order denying a motion for summary judgment is not a final judgment and therefore is not reviewable on appeal.” Stone v. Crown Diversified Indus. Corp., 9 S.W.3d 659, 664 (Mo.App. E.D.2000). In some cases, however, the denial of a motion for summary judgment is reviewable, because “the merits of [the] motion are intertwined with the propriety of an appealable order granting summary judgment to another party.” Id. Robson claims that this is such a case.

Legal Analysis

Robson’s first point on appeal is that the trial court erred in excluding extrinsic evidence that established the superiority of his title to that of either Countrywide or the Diems. Specifically, Robson argues that he should have been permitted to present evidence establishing: (1) his equitable title; and (2) that the legal title that passed to Countrywide, as successor to First Magnus, through foreclosure on the loan made to Johnson, was based upon mutual mistake in the recording of the Johnson warranty deed and the First Magnus deed of trust.

A suit to quiet title, such as that filed by Robson, is a statutory action, and it is an appropriate means to determine the respective estates, titles, and interests of multiple people claiming an interest in land. Jetz Serv. Co. v. K.C. Citadel Apartments, L.L.C., 59 S.W.3d 527, 529 (Mo.App. W.D.2001). Section 527.150.1 provides:

Any person claiming any title, estate or interest in real property, whether the same be legal or equitable, certain or contingent, present or in reversion, or remainder, whether in possession or not, may institute an action against any person or persons having or claiming to have any title, estate or interest in such property, whether in possession or not, to ascertain and determine the estate, title and interest of said parties, respectively, in such real estate, and to define and adjudge by its judgment or decree the title, estate and interest of the parties severally in and to such real property-

“The statute is remedial in nature and is to be liberally construed.” Jetz, 59 S.W.3d at 529. In quiet title actions, the burden of establishing superior title is on the party bringing the action, and he must “prevail on the strength of [his] own title and not on any weakness in the title of the other party.” Id. Robson, therefore, first needed to establish his equitable title in order to prevail. “ ‘[E]quitable title is the right in the party to whom such title belongs to have the legal title transferred to him upon the performance of a specified condition.’ ” Carolan v. Nelson, 226 S.W.3d 923, 926 (Mo.App. W.D.2007) (quoting Reinhold v. Fee Fee Trunk Sewer, Inc., 664 S.W.2d 599, 603 (Mo.App. E.D.1984)). A person who enters into a contract for sale of a piece of real property with the legal owner of the property acquires equitable title. Allied Pools, Inc. v. Sowash, 735 S.W.2d 421, 424 (Mo.App. W.D.1987); see also Bath v. Bath, 233 S.W.3d 742, 743 (Mo.App. S.D.2007). Because Robson entered into a contract, which he incorporated into his petition by reference, to purchase Lot 15 from the Walkers on December 3, 2002, and because the Walkers owned the property on the date of the contract, Robson alleged equitable title from that date.

When a party, such as Robson, has alleged that he has equitable title, he may, in a quiet title action, present extrinsic evidence to prove that title and to establish that his title is superior to that of other parties. See § 527.150; Thompson v. Pinnell, 237 Mo. 545, 141 S.W. 605, 606-07 (1911); Mason v. Black, 87 Mo. 329, 345 (1885); Harrington v. Utterback, 57 Mo. 519, 520 (1874). Robson attempted to present such evidence to the trial court, by attaching to his amended petition items including: (1) the Johnson Warranty deed; (2) the First Magnus Deed of Trust; (3) the scrivener’s affidavit, attempting to correct the mistaken property descriptions found in the aforementioned deeds; (4) the real estate contract between the Walkers and Johnson for the sale of Lot 20; (5) the Robson warranty deed; (6) the real estate contract between the Walkers and Robson for the sale of Lot 15; and (7) various deeds recorded by or on behalf of the Diems.

The evidence Robson offered is relevant to establishing his equitable title. Robson contends that the evidence he attempted to introduce with his motion for summary judgment would also have shown the mutual mistake in the recording of the Johnson warranty deed and the First Magnus deed of trust and would have supported his claim that he, and not Johnson, actually owned Lot 15 prior to the foreclosure sale. Robson contends that the proffered evidence would have shown that Lot 15 was never properly offered as security for Johnson’s loan from First Magnus. Countrywide, successor to First Magnus, counters that because the chain of title, as reflected by the recorded deeds and deeds of trust, is clear and unambiguous, the extrinsic evidence was properly excluded.

As Countrywide points out, a party to a deed cannot use parol evidence to controvert the language used in the deed if that language is clear and unambiguous. Ethridge v. TierOne Bank, 226 S.W.3d 127, 131 (Mo. banc 2007). However, Robson is not a party to the allegedly mistaken deeds in this case. “The rule excluding extrinsic evidence sought to be introduced for the purpose of affecting a written instrument is applied only where the controversy is between the parties to the instrument or to their privies.” Am. Bank v. Wegener, 776 S.W.2d 922, 925 (Mo.App. W.D.1989) (emphasis added). A third party seeking to challenge the validity of a seemingly unambiguous instrument may present extrinsic evidence to prove his case. Burk v. Walton, 337 Mo. 781, 86 S.W.2d 92, 96 (1935). The rule excluding such evidence

“cannot affect third persons, who, if it were otherwise, might be prejudiced by things recited in the writings, contrary to the truth, through the ignorance, carelessness, or fraud of the parties; and who, therefore, ought not to be precluded from proving the truth, however contradictory to the written statements of others.”

Id. (quoting 1 Greenleaf on Evidence § 279 (16th ed.)).

Moreover, when there is clear evidence of fraud or mistake, even parties to the deed may introduce parol evidence to effect reformation of the defective deed. Ethridge, 226 S.W.3d at 132. While Robson is not a party to the mistaken deeds covering Lot 15, and thus may not have standing to seek reformation, we find the applicable law relevant to the court’s consideration in this instance. To establish that reformation is appropriate in cases where a scrivener’s error is alleged, the party seeking reformation must show, by “clear and convincing evidence”: (1) a preexisting agreement between the parties; (2) a scrivener’s mistake in drafting the agreement; and (3) that the mistake was mutual as between the grantors and the grantees. Id. While Missouri courts have fairly consistently stressed the need to look solely to the language of the document to determine the intent of the parties, when deciding whether reformation of a deed containing a mistake is proper, the courts have, by necessity, looked at extrinsic or parol evidence. See, e.g., id. at 129 (court considered that only husband signed a note and considered wife’s testimony as to circumstances surrounding closing); Church v. Combs, 332 Mo. 334, 58 S.W.2d 467, 469 (1933) (court considered that wife did not contribute to purchase price of property and considered testimony of notary preparing the deed as to circumstances surrounding closing).

All of the evidence that Robson attempted to introduce supports his claim of mistake in the legal descriptions of property contained in the Johnson deed and the First Magnus warranty deed, which would tend to support his claim that his title was superior to that of either Johnson or First Magnus (or Countrywide as successor). We therefore agree with Robson that the trial court’s exclusion of Robson’s extrinsic evidence was in error.

Robson’s second point on appeal is that the trial court erred in granting summary judgment in favor of Countrywide and in denying Robson’s motion for summary judgment in that the trial court erroneously determined that Robson was not an owner of record of Lot 15 and therefore not entitled to notice of the foreclosure sale. Section 443.325 requires notice of a foreclosure sale to be sent to “the person shown by the records in the office of the recorder of deeds to be the owner of the property as of forty days prior to the scheduled date of foreclosure sale.” Robson’s contention is that, since the statute does not define the word “owner,” it is subject to more than one meaning, and so the purpose of the statute must be considered in determining the meaning of the word “owner” as it appears in the statute. Countrywide claims, on the contrary, that the statute does define “owner,” or at least instructs as to how one is to determine who the owner might be. It further contends that only Johnson was shown “by the records in the office of the recorder of deeds” to be the owner of both Lot 15 and Lot 20 and, therefore that she was the only person entitled to notice of the foreclosure sale.

We agree that section 443.325 instructs one attempting to effect a foreclosure sale for any piece of real property as to how to determine the owner of the property who is entitled to notice. Clearly the records in the office of the recorder of deeds are to be consulted to determine the “owner” of the property for this purpose. § 443.325.3(2). However, the fact that Robson’s interest might not be discovered during a search in the county’s grantee-grantor index does not necessarily end the inquiry. The Supreme Court of Missouri, en banc, has declared that the “owner” of real property, under this very statute, should be “broadly” construed “to include ‘any person beneficially interested in [the] property.’ ” Williams v. Kimes, 949 S.W.2d 899, 900 (Mo. banc 1997) (quoting Siemer v. Schuermann Bldg. & Realty Co., 381 S.W.2d 821, 826 (Mo.1964)). One reason for the broad construction of the term “owner” under this statute is to ensure that all people with a beneficial interest in the property are afforded an opportunity to protect that interest. Also, foreclosure sales under this statute and a power of sale are sales conducted without a court order and, as such, are scrutinized “very closely” for irregularities. Mercantile Bank v. Keith (In re Keith), 211 B.R. 355, 358 (Bankr.W.D.Mo.1997). In cases where the questionability of ownership creates a practical concern in providing notice of foreclosure sale, the Missouri Supreme Court recommends judicial foreclosure. Williams, 949 S.W.2d at 900-01.

In this case, an examination of the records in the office of the recorder of deeds might have yielded evidence of the warranty deed to Johnson, the warranty deed to Robson, the scrivener’s affidavit, and the First Magnus deed of trust. More importantly, Robson had possession of Lot 15 at the time of the foreclosure. Robson claims that the records on file and Robson’s possession are sufficient to have put Millsap & Singer, P.C., as successor trustee, on notice that Robson claimed some ownership interest in Lot 15. See also 14 RICHARD R. POWELL, Powell On Real PropeRty, § 82.02[1 ][d](iii)(A) (Michael Allan Wolf, ed.2010) (possession of property by person other than record owner provides notice of his potential interest in the property). Therefore, he contends that Millsap & Singer should have either provided Robson notice of the sale or sought judicial foreclosure. The only notice of the sale in this case was sent to Johnson at her (Lot 20) address. No notice was sent to Robson.

Countrywide counters that Robson should have requested notice under section 443.325.1, which provides that

[a]ny person desiring notice of sale under any deed of trust or mortgage with power of sale upon real property may, at any time subsequent to recordation of such deed of trust or mortgage, cause to be filed for record in the office of the recorder of each county in which any part or parcel of the real property is situated a duly acknowledged request for such notice of sale.

While Robson certainly could have requested notice of sale pursuant to this portion of the statute, it is unclear whether Robson had any reason to know that First Magnus, or Countrywide as its successor, claimed any security interest on Lot 15 more than forty days prior to the sale, the time before which all requests for notice under section 443.325.1 must be made. Johnson and the Walkers both apparently have always acknowledged that Lot 15 was never intended to have been offered to secure Johnson’s loan to First Magnus, and Robson could have believed the mistake to have been corrected by the scrivener’s affidavit filed and recorded earlier. If Robson had been aware that Johnson’s lender claimed a security interest in Lot 15, he would have been wise to request notice of foreclosure sale pursuant to section 443.325.1. However, we find that there is at least a factual issue as to whether this was the case, which would make summary judgment inappropriate. Moreover, the facts as alleged by Robson indicate that notice should arguably have been provided to Robson under section 443.325.3(2). If Robson is correct, the failure of the trustee to notify Robson under this provision would itself be enough to invalidate the foreclosure sale. Williams, 949 S.W.2d at 901. Because there are genuine issues of fact pertaining to Robson’s entitlement to notice under section 443.325.3(2), summary judgment was inappropriate.

Robson’s third point on appeal is that the trial court erred in denying Robson’s motion for summary judgment in that his title is superior to that of Countrywide and the Diems. Generally, the court of appeals does not review the denial of a motion for summary judgment by the trial court because such an order is not a final judgment on which an appeal may be taken. Stone, 9 S.W.3d at 664. This is so even when the appeal arises from a final judgment in a case, such as the trial court’s grant of a summary judgment, unless the merits of the competing motions are so intertwined as to make such review appropriate. Id. We do not feel that the trial court’s denial of Robson’s motion for summary judgment in this case is appropriate for review by this court. The trial court did not admit Robson’s proffered extrinsic evidence, and thus it was never considered. We also find, as mentioned above, that factual issues exist as to what Robson, First Magnus and its successors and trustees, and the Diems knew or should have known about the condition of the title to Lot 15. Accordingly, this court’s entry of summary judgment for Robson would be inappropriate.

Conclusion

For all of the above reasons, we reverse the judgment of the trial court to the extent that it grants summary judgment to any party and remand the case for trial.

JOSEPH M. ELLIS, Presiding Judge, and JAMES M. SMART, JR., Judge, concur.

      . Because the trial court granted summary judgment, we review all facts in the light most favorable to the party against whom summary judgment was entered, in this case, Robson. See ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).

      . There is no evidence in the record that Johnson's loan agreement with First Magnus depended upon security of any property other than Lot 20. Although the record does not contain Johnson’s loan agreement, there is no claim by either First Magnus or Countrywide as its successor that Lot 20 was not of sufficient value by itself to secure Johnson’s loan from First Magnus.

      . Because Premier Land Title was trustee to First Magnus, there are issues as to whether First Magnus was thus on notice of the mistake in the Johnson deeds and as to whether Elms’s acknowledgment of the mistake had any binding effect on First Magnus as to the scope of its security interest in Lot 15. The parties do not address the legal effects of the fact that a Premier Land Tide employee completed the scrivener’s affidavit, or whether Elms was acting in her capacity as trustee or as an employee of the title company, and we need not decide those issues here.

      . By this time, Countrywide Home Loans, Inc. (“Countrywide") had succeeded First Magnus as the holder of Johnson’s note and deed of trust.

      . On this same date, the Diems executed a deed of trust to the trustee for Bank of Blue Valley, assignor to Wells Fargo, to secure a repayment of $179,900. This loan has been repaid and the lien released.

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

      . Robson’s original petition was filed on March 1, 2006.

      . Typically, when a sale for a piece of land closes, the buyer tenders the purchase price to the seller and the seller executes a deed in favor of the buyer, which is then recorded. When the buyer accepts the deed from the owner of the property, he obtains legal title to the property. In this case, Robson never obtained the legal title to Lot 15 because the Walkers had already mistakenly deeded the property to Johnson. Robson is not proceeding here under the warranty deed he received from the Walkers, nor is he proceeding under a claim of equitable lien which he may have received from paying the purchase price of Lot 15 to the Walkers. Robson does not seek money damages, but he wants the title to Lot 15 free and clear.

      . See also Cordes v. Straszer, 8 Mo.App. 61 (1879) (rule never intended to apply to third parties). Similarly, parties to an instrument may present parol evidence against a third party making a claim. Nieman v. First Nat’l Bank of Joplin, 420 S.W.2d 20, 22 (Mo.App.1967).

      . Even if the mistake is unilateral, if there is inequitable conduct by the other party, such as if the other party knows of the mistake but keeps silent, reformation may be proper. 14 RICHARD R. POWELL, Powell On Real Property, § 81A.07[3][b](4) (Michael Allan Wolf, ed.2010). See also Gierhart v. Consol. Rail Corp.-Conrail, 656 N.E.2d 285, 287 (Ind.Ct.App.1995).

      .Of course, to succeed at trial, Robson would also have to prove that his title is superior to that of the Diems, who claim to be bona fide purchasers. The Diems are correct that they would have an affirmative defense to Robson's quiet title action if they were bona fide purchasers. A bona fide purchaser, however, must take tide without notice of the other party’s claim of title to the land and must purchase for value. Jackson v. Klein, 320 S.W.2d 553, 556 (Mo.1959). There appear to be factual issues as to whether Robson’s possession of Lot 15 should have put the Diems on notice of his potential interest in Lot 15 and as to whether the value the Diems paid is sufficient consideration to support their claim of being bona fide purchasers of
        both Lots 15 and 20. See 14 POWELL, supra n. 10, at § 81A.04(l)(v). The trial court, however, did not consider any affirmative defenses, or whether any factual issues remain pertaining to those defenses, having granted summary judgment solely on its finding that Robson lacked any title to Lot 15. Therefore, the Diems’ affirmative defense is not before this court.

      . While the Robson warranty deed and the scrivener’s affidavit are outside the chain of title, title searches can sometimes be done by tract, and not only by chain of title, so it is not impossible that they would be found during a title search. Indeed, the final title policy issued to the Diems is for only Lot 20, indicating that the title company issuing the policy was aware of some issues as to the title of Lot 15.