author: KAREN KING MITCHELL, Presiding Judge.

text:
    Carolee NOBLE and Leo Noble and Jo Ann K. Nilges and Wayne Nilges, Appellants, v. SHAWNEE GUN SHOP, INC., d/b/a The Bullet Hole, Respondent.
    Nos. WD 71254, WD 71255.
    Missouri Court of Appeals, Western District.
    April 6, 2010.
    Application for Transfer Denied Aug. 31, 2010.

      Randy W. James and Jessica M. Agnelly, Lee’s Summit, MO, for Appellants.
    Kelly A. Ricke and Nicholas J. Meinheit, Overland Park, KS, Anthony Pisciotti, Florham Park, NJ, for Respondent.
    Before Division III: KAREN KING MITCHELL, Presiding Judge, and JAMES EDWARD WELSH and MARK D. PFEIFFER, Judges.
   KAREN KING MITCHELL, Presiding Judge.

This is an appeal from the Circuit Court of Jackson County, Missouri’s (“trial court”) dismissal of the plaintiffs’ actions based on lack of personal jurisdiction over the defendant Shawnee Gun Shop, Inc., d/b/a The Bullet Hole (“Gun Shop”). We reverse the judgment of the trial court and remand.

Factual and Procedural Background

On April 24, 2007, David W. Logsdon (“Logsdon”), a Missouri resident, entered Gun Shop’s firearm and ammunition retail pro shop and shooting range located in Overland Park, Kansas, four miles from the Missouri state line. Logsdon purchased firearm magazines from Gun Shop with a credit card he had stolen from Patricia Reed, a female neighbor and fellow Missouri resident whom Logsdon is suspected of murdering. The card had Patricia Reed’s name on its face.

On April 29, 2007, Logsdon apparently used the magazines he purchased from Gun Shop in a shooting rampage during which he shot both Luke A. Nilges and Leslie Noble Ballew, each of whom was in his or her car outside of the Ward Parkway shopping center in Kansas City, Missouri. Both Nilges and Ballew were killed.

The parents of Nilges (the Nilgeses) and Ballew (the Nobles) each filed lawsuits against Gun Shop in the trial court seeking damages for the deaths of their children resulting from Gun Shop’s allegedly negligent sale of the magazines to Logsdon. Both the Nilgeses and the Nobles also filed separate lawsuits in the state of Kansas to preserve their rights under the Kansas savings provisions should their Missouri actions fail for want of personal jurisdiction over Gun Shop. Both the Nilg-eses and the Nobles attempted to voluntarily dismiss their claims in the respective Kansas cases without prejudice pending the outcome of their Missouri actions. The Kansas judge in the Noble court allowed the voluntary dismissal. The Kansas judge in the Nilges case did not and requested that the parties brief Gun Shop’s intervening motion to dismiss for failure to state a claim. The Kansas judge in the Nilges action granted Gun Shop’s motion to dismiss and that matter is pending appeal in Kansas.

Meanwhile, after Gun Shop filed motions to dismiss in the Missouri trial court in both the Nilges and Noble actions, the cases were consolidated for the purpose of determining jurisdiction. On January 27, 2009, the plaintiffs filed motions to conduct discovery on the issue of in personam jurisdiction. The motion was granted, and the plaintiffs served a request for production of documents and things on February 5, 2009. Gun Shop filed its responses and objections on March 6, 2009, and plaintiffs responded to Gun Shop’s motion to dismiss.

On April 2, 2009, plaintiffs sought additional discovery, specifically, a corporate representative deposition, a deposition of the employee who sold the magazines to Logsdon, requests for admissions, and interrogatories. The trial court granted the request with respect to written discovery only. Gun Shop responded on May 19, 2009. Plaintiffs asked the trial court to compel Gun Shop to answer the written discovery more fully. However, the trial court denied most of the plaintiffs’ requests, finding that the discovery sought pertained more to the merits of the plaintiffs’ cause of action and not to the jurisdictional issue.

On July 10, 2009, Gun Shop’s motion to dismiss was granted. The trial court found that the causes of action did not arise from the commission of a tortious act within the state of Missouri, as required by the Missouri long-arm statute, section 506.500. This appeal followed.

Legal Analysis

This court first must address Gun Shop’s argument that these proceedings are moot because of the order dismissing the Nilges case in the Kansas state court. Gun Shop claims that the dismissal of the Nilges matter by the Kansas District Court for failure to state a claim serves to bar the plaintiffs’ actions in this case under the doctrines of res judica-ta and collateral estoppel. Res judicata and collateral estoppel are affirmative defenses that normally must either be raised in an answer, by an amendment to the pleadings, or in a motion to dismiss. Patrick V. Koepke Constr., Inc. v. Woodsage Constr. Co., 119 S.W.3d 551, 555 (Mo.App. E.D.2003). Also, for res judicata and collateral estoppel to apply, there must have been a final prior judgment on the merits deciding the same claims or issues. Robin Farms, Inc. v. Beeler, 991 S.W.2d 182, 185 (Mo.App. W.D.1999). In this case, Gun Shop could not raise the issues of res judicata and collateral estoppel before the trial court because the Kansas order dismissing the Nilges claim was not issued until after the Missouri trial court had issued its judgment dismissing the matter for lack of personal jurisdiction. In other words, when the matter was before the Missouri trial court, there had been no final judgment on the merits in Kansas. This is why Gun Shop offers res judicata and collateral estoppel to this court as issues pertaining to mootness.

The order dismissing the Nilges case in the Kansas court for failure to state a claim constitutes a final judgment on the merits under Kansas law. Wirt v. Esrey, 233 Kan. 300, 662 P.2d 1238, 1246 (1983). Under Missouri law, a judgment on the merits at the trial-court level is considered a final judgment for purposes of res judicata and collateral estoppel, even if the appeal of that judgment is still pending. Consumers Oil Co. v. Spiking, 717 S.W.2d 245, 251 (Mo.App. W.D.1986). We note, however, that in Spiking we had already affirmed the “pending” collateral trial-court decision when we took up the res judicata matter, so the “finality” of the collateral decision did not change after the fact. Id. at 248 n. 4. The collateral case had also been affirmed by the time the appellate court took up the res judicata matter in Koepke Construction, 119 S.W.3d at 556. Similarly, in two other Missouri cases holding that the trial-court decision should be considered final pending appeal, the appeals of the two collateral cases were consolidated and affirmed together. See Atlanta Cas. Co. v. Stephens, 825 S.W.2d 330, 331 (Mo.App. W.D.1992); Geringer v. Union Elec. Co., 731 S.W.2d 859, 861 (Mo.App. E.D.1987). In all of these cases, by the time the appellate court had decided that the lower-court collateral decision was “final” and thus served to justify res judicata or collateral estop-pel, the collateral matter had, in fact, become final; there was no real chance of reversal. We have found no other case with the unique timing issues presented in the cases before us, where one lower-court dismissal (here, in Missouri), pending appeal, occurred prior to consideration of a motion to dismiss by a second trial court (Kansas), and then that second court’s decision was held to bar reversal of the first trial-court’s decision (Missouri), all while there was still a possibility that the second trial-court’s decision could be reversed on appeal (Kansas).

Further complicating matters is that the Kansas order, on which Gun Shop relies, only dismissed the Nilgeses’ cause of action. The Nobles also brought an action in Kansas to preserve their rights under the Kansas savings statute, but the judge in their case allowed them to dismiss voluntarily, without prejudice. Accordingly, res judicata, or claim preclusion, would not apply as to the Nobles, who have never had a judgment on the merits issued against them. Also, although Gun Shop’s brief mentions the term collateral estoppel, it is devoid of any argument or analysis as to how it could possibly apply to either plaintiff in this case. Because the Nobles’ claims, at least, have not successfully been shown to be barred by res judicata or collateral estoppel, both affirmative defenses which must be properly pleaded, we find that this appeal is not moot and proceed to analyze whether personal jurisdiction exists over Gun Shop.

Personal Jurisdiction

The plaintiffs’ first point on appeal is that the trial court erred in dismissing their case for lack of personal jurisdiction over Gun Shop. When reviewing a trial court’s dismissal of an action for lack of personal jurisdiction, “ ‘all facts alleged in the petition are deemed true and the plaintiffis are] given the benefit of every reasonable intendment.’ ” Hollinger v. Sifers, 122 S.W.3d 112, 115 (Mo.App. W.D.2003) (quoting Shouse v. RFB Constr. Co., 10 S.W.3d 189, 192 (Mo.App. W.D.1999)). Once the defendant raises the issue of lack of personal jurisdiction, the burden shifts to the plaintiffs to make a prima facie case that personal jurisdiction exists over the defendant. Id. The sufficiency of the plaintiffs’ showing is a legal question that this court reviews independently. Id.

The plaintiffs in this case do not allege that the trial court had general jurisdiction over Gun Shop. Instead, they allege that the trial court had specific jurisdiction pursuant to Missouri’s long-arm statute, section 506.500. To establish specific in personam jurisdiction over a defendant, the plaintiff must show: (1) that the long-arm statute applies to the defendant, and (2) that the principles of due process are satisfied. Longshore v. Norville, 93 S.W.3d 746, 751-52 (Mo.App. E.D.2002). Many Missouri courts, however, have merged the analysis of these two criteria. See, e.g., Conway v. Royalite Plastics, Ltd., 12 S.W.3d 314, 318-19 (Mo. banc 2000) and State ex rel. Bank of Gering v. Schoenlaub, 540 S.W.2d 31, 31-35 (Mo. banc 1976) (applying due process principles to determine if the criteria for the application of the long-arm statute had been met). Other courts have assumed that the long-arm statute applies and have gone straight to the minimum-contacts analysis. See State ex rel. Wichita Falls Gen. Hosp. v. Adolf, 728 S.W.2d 604, 606 (Mo.App. E.D.1987). This assumption may be defended based upon the Missouri Supreme Court’s determination that the Missouri long-arm statute was “intended to extend jurisdiction to the limits permissible under the due process clause of the Fourteenth Amendment.” Id. (citing State ex rel. Deere & Co. v. Pinnell, 454 S.W.2d 889 (Mo. banc 1970)); see also Webb ex rel. J.C.W. v. Wyciskalla, 275 S.W.3d 249, 253 (Mo. banc 2009) (reiterating that the long-arm statute, as applied, “expand[s] the state courts’ jurisdictional reach to the maximum extent permitted by the federal constitution”); State ex rel. Auburn Ford, Inc. v. Westbrooke, 18 S.W.3d 143, 145-46 (Mo.App. S.D.2000) (citing Deere and then proceeding to the due-process analysis).

The majority of the relevant court opinions, however, have at least attempted to analyze whether the long-arm statute applies before proceeding to due-process analysis. We believe that this is the appropriate approach. Because the long-arm statute enumerates several different circumstances under which personal jurisdiction would attach (such as conducting business or committing a tort), we find that the legislature most likely did not intend “to confer jurisdiction in all cases that the constitution would permit, but that the specific categories of cases over which the legislature did extend jurisdiction should be construed to include all the cases those categories rationally could be understood to include to the extent that due process would permit.” 1 Robert C. Casad & William B. Richman, Jurisdiction in Civil Actions § 4-l[l][b] (3d ed.2004) (emphasis added). A contrary interpretation would effectively ignore the language of the long-arm statute.

The trial court in this case did consider the Missouri long-arm statute and, having found that it did not apply to Gun Shop, did not proceed to conduct the due-process analysis. The statute provides, in relevant part:

Any person or firm, whether or not a citizen or resident of this state, or any corporation, who in person or through an agent does any of the acts enumerated in this section, thereby submits such person, firm, or corporation, and, if any individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of such acts:
(3) The commission of a tortious act ■within this state.

For the statute to apply, the tortious act may occur outside of Missouri, so long as it “produces actionable consequences” in Missouri. Capitol Indem. Corp. v. Citizens Nat’l Bank of Fort Scott, 8 S.W.3d 893, 903 (Mo.App. W.D.2000); § 506.500. Some courts have required the Missouri consequences to have been “intentionally directed” toward Missouri, see, e.g., Nelson v. Greenspan & Co., 613 F.Supp. 342, 345-46 (E.D.Mo.1985), while others have not, see, e.g., State ex rel. William Ranni Assocs. v. Hartenbach, 742 S.W.2d 134, 139 (Mo. banc 1987); Longshore, 93 S.W.3d at 752. The most recent Missouri Supreme Court case applying the statute for an extra-territorial tort did not. Bryant v. Smith Interior Design Group, 310 S.W.Sd 227, 231 (Mo. banc 2010). In any event, it appears that the showing required of the plaintiffs is less stringent when a product is placed in the stream of commerce than when the non-resident defendant is engaged in providing a service. Hollinger, 122 S.W.3d at 117.

As the plaintiffs point out, the tort alleged in Nelson, where the court found that the conduct had to be intentionally directed at Missouri, was an intentional tort (fraud), whereas the tort alleged in this action is negligence. The plaintiffs contend that this difference warrants a slightly different standard due to the differences in mental state required by the different torts — intended versus reasonably should have known. They argue that it does not make sense to require a plaintiff to prove that a defendant intentionally directed its mere negligence at Missouri plaintiffs. Instead, the plaintiffs argue that it should be sufficient to show that the defendant knew or had reason to know that the consequences of its negligence were likely to be felt in Missouri. We appreciate the logic of this argument, especially where, as here, the tort alleged involves a product placed in the stream of commerce as opposed to a service. The fact that Missouri’s long-arm statute makes no distinction between intentional torts and negligence, as Gun Shop counters, is not fatal to the plaintiffs’ position. Indeed, the statute is completely silent as to mental state for extra-territorial torts. Moreover, the statute does not only provide for jurisdiction over tortfeasors who commit intentional torts; it clearly covers negligence and strict liability as well.

We also find support for a more relaxed standard for negligence cases in reviewing “dram shop” cases. In these cases, often a liquor store or tavern located in one state near the border of a neighboring state sells an excessive amount of alcohol to a patron who then drives across the state line and injures a plaintiff in the neighboring state. In several of these cases, the tavern has been found to be subject to the jurisdiction of the state where the injury occurs, although the taverns could not properly be seen as having intended for their patrons to cross the border and cause injury. See, e.g., Ling v. Jan’s Liquors, 237 Kan. 629, 703 P.2d 731, 734 (1985); Lawson v. Barrington, 416 N.W.2d 841, 844 (Minn.Ct.App.1987).

In Lawson, the tavern, located in Iowa several miles south of the Minnesota border, allegedly sold alcohol to an intoxicated person who then drove into Minnesota and injured his passenger in an automobile accident. 416 N.W.2d at 842-43. The court, without much analysis, determined that the Minnesota long-arm statute applied to the Iowa tavern and that, because the tavern advertised in Minnesota, due process allowed Minnesota to assert jurisdiction over the non-resident tavern. Id. at 843-45.

In Ling, a Missouri liquor store allegedly negligently sold liquor to a minor who then drove into Kansas and, in an intoxicated state, struck the plaintiff causing her injury. 703 P.2d at 732-33. The Kansas court found that long-arm jurisdiction under the “tortious act” prong of the Kansas statute applied to render the Missouri store subject to Kansas’s jurisdiction, simply because the injury to the plaintiff occurred in Kansas. Id. at 734.

It appears to this court that the courts in these dram shop cases and others found that the fact that these businesses were located near the border and, in some cases, advertised to residents on both sides of the border, meant that the businesses knew or should have known (although the courts did not analyze their decisions using this wording) that their customers were likely to cross the border after patronizing the businesses. Therefore, it would be foreseeable that a sale originating from their businesses could have consequences in the neighboring state. We find that this standard is appropriate for determining whether the alleged cross-border-negligence of a defendant falls under Missouri’s long-arm statute.

The trial court dismissed the action based on its belief that any extraterritorial tort having consequences in Missouri “must have been deliberately designed to move into Missouri and injure the plaintiff.” We hold that for actions where the tort alleged is negligence, at least in the context of a product having been placed in the stream of commerce and in which the defendant is regularly conducting business with Missouri residents, this requirement does not apply. Accordingly, we find that the trial court erred in granting Gun Shop’s motion to dismiss on this basis.

Applying foreseeability as the standard, we find that there were sufficient facts alleged by the plaintiffs to establish that Gun Shop reasonably knew or should have known that its allegedly negligent sale to Logsdon could have effects in Missouri. Gun Shop advertised to Missouri residents, sold products to Missouri residents, and encouraged Missouri residents to patronize its shooting range. A Missouri customer allegedly took the magazines Gun Shop sold him back to Missouri and fatally wounded the two Missouri victims using the magazines he purchased from Gun Shop. Thus, assuming their negligence claim is meritorious, plaintiffs’ petitions are sufficient to have alleged that Gun Shop committed a tortious act within the state of Missouri so that Gun Shop would be covered by Missouri’s long-arm statute.

After determining that the long-arm statute applies to the defendant, we must analyze whether due process would allow the court to assert jurisdiction as provided by the statute. Due process requires that a non-resident defendant have minimum contacts with Missouri such that a suit against it “does not offend traditional notions of fair play and substantial justice. The due process analysis looks to the foreseeability that the defendant’s conduct and connection with the foreign state is such that the defendant should reasonably anticipate being haled into comí there.” Longshore, 93 S.W.3d at 752 (citation omitted) (internal quotations omitted).

In judging whether minimum contacts exist, Missouri courts look to “the relationship among the defendant, the forum[,] and the litigation.” Ranni, 742 S.W.2d at 138 (citing Colder v. Jones, 465 U.S. 783, 788, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984)). Specifically, we may, although we are not required to, consider five factors: (1) the nature and quality of the defendant’s contacts with Missouri; (2) the quantity of the contacts with Missouri; (3) the relation of the cause of action to the contacts; (4) Missouri’s interest in providing a forum for its residents; and (5) the convenience of the parties. Capitol In-dem., 8 S.W.3d at 902 (setting out five factors); see also Bryant, 310 S.W.3d at 233, n.4 (five-factor analysis not required in Missouri).

Gun Shop sells guns, ammunition, and related equipment to Missouri residents. From 2004 to 2007, the year that the shootings occurred, between 8.05% and 11.63% of Gun Shop’s firearm sales were to Missouri residents. Gun Shop also has accepted members of its shooting club from Missouri, and Missouri residents use its shooting range. Gun Shop does business with Missouri suppliers, and importantly, it advertises to Missouri residents periodically through a Kansas City area-wide newspaper and over Kansas City area radio stations. It has advertised itself as the “Midwest’s Largest Shooting Range,” and “Kansas City’s Largest Indoor Shooting Range,” and has advertised that it has “Kansas City’s Largest Selection of Handguns.” Also, Logsdon, the shooter, was a Missouri resident, the shootings took place in Missouri, and both victims whose deaths are the subjects of these lawsuits were Missouri residents.

We find that Gun Shop has had significant contacts with Missouri in that: (1) it actively solicits business from, and engages in substantial business with, Missouri residents; (2) one of the Missouri residents who patronized Gun Shop, perhaps pursuant to Gun Shop’s advertising efforts, purchased the magazines from Gun Shop that were then moved into Missouri and used in the Missouri shootings; (3) both shooting victims were Missouri residents and, therefore, that Missouri has an interest in providing a forum for these plaintiffs; and (4) Missouri is not an inconvenient forum for the parties, as Gun Shop is located only four miles from the Missouri state line. While making no determinations as to the merits of the plaintiffs’ cases, we do not find that it is unreasonable for Gun Shop to foresee that any allegedly negligent sales might have consequences in Missouri and, therefore, that Gun Shop should reasonably anticipate being haled into Missouri’s courts. We thus find that the trial court erred in dismissing Gun Shop for lack of personal jurisdiction.

Discovery Issues

For their second point on appeal, the Nilgeses and Nobles contend that the trial court erred in sustaining several of Gun Shop’s objections to their discovery requests. We review the trial court’s administration of the rules of discovery for abuse of discretion. Mello v. Giliberto, 73 S.W.3d 669, 673 (Mo.App. E.D.2002). A trial court only abuses its discretion when its 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. at 673-74 (internal quotations omitted). Plaintiffs do not allege that the trial court abused its discretion in sustaining Gun Shop’s objections to their discovery requests.

Furthermore, a review of the record reveals that the trial court carefully considered each of the plaintiffs’ discovery requests and attempted to address them in fairness to the parties. In considering a motion to dismiss due to lack of personal jurisdiction, the trial court considers only the facts relevant to jurisdiction; it does not consider the merits of the underlying action. Hollinger, 122 S.W.3d at 115. Thus, discovery is permissible only as to the jurisdictional issues during this phase of the action. See Rule 56.01.

Several of the plaintiffs’ discovery requests were overly broad as to time frame, sought information that is protected from discovery by federal law, or pertained to the merits of their negligence actions as opposed to the discoverable issue of personal jurisdiction over Gun Shop. While the plaintiffs’ point is well taken that some of the discovery they sought would have been warranted had they been required to prove that Gun Shop’s actions were intentionally directed at Missouri, our finding above that this element of proof is not required obviates the need for discovery of these issues at this time. Therefore, we do not find that the trial court abused its discretion with respect to plaintiffs’ discovery requests. Point two of the appeal is denied.

Conclusion

For the above reasons, we reverse the judgment of the trial court dismissing the plaintiffs’ actions and remand to the trial court for further proceedings consistent with this opinion.

JAMES EDWARD WELSH, Judge, and MARK D. PFEIFFER, Judge, concur.

      . A magazine is a "compartment in some types of firearms, often a small detachable box, in which cartridges are held to be fed into the firing chamber." The American Heritage Dictionary 1050 (4th ed.2006). There is no evidence that cartridges were sold with the magazines.

      . Nothing in the record indicates why the Kansas judge in the Nilges action did not allow the voluntary dismissal; however, as noted below, the Missouri trial court had dismissed the Nilgeses' claim for lack of jurisdiction before the motion to dismiss for failure to state a claim was fully briefed and argued in the Kansas trial-level court.

      . All statutory references will be to RSMo 2000, as updated through the 2009 cumulative supplement, unless otherwise indicated.

      . The appellants in the Spiking case wanted this court to reverse the later trial-court decision because the collateral appeal was still pending at the time the trial court ruled on the preclusion issue.

      . We do acknowledge, however, that there will often be significant overlap in the analysis of application of the long-arm statute and the analysis of minimum contacts, particularly in the cases involving extra-jurisdictional torts, where foreseeability is a factor in both determinations.

      . Originally, one of the plaintiffs also alleged that Gun Shop fell under subsection (1) of the statute, which covers any person who transacts business within the state. The plaintiff has abandoned this argument on appeal.

      . Gun Shop also cites several other cases in support of its position. We do not find that these cases, in fact, support Gun Shop’s position. In Capitol Indemnity Corporation, 8 S.W.3d at 903, the court mentions the language Gun Shop cites, but it is dicta; in that case, the court found that no tort had occurred at all, within the state or otherwise. In Childers v. Schwartz, 262 S.W,3d 698 (Mo. App. W.D.2008), the court did not analyze whether a tort had been committed, having found that no minimum contacts existed. Longshore, 93 S.W.3d at 751-52, as mentioned above, does not require the tortious conduct to have been purposely directed at Missouri plaintiffs. Finally, Naegler v. Nissan Motor Co., simply found that the alleged tor-tious act had no Missouri consequences; the case involved a plaintiff who was injured in an automobile accident in Germany, in a car that had been purchased in Germany and had been manufactured in Japan. 835 F.Supp. 1152, 1156 (W.D.Mo.1993).

      . Although after reviewing the recent Biyant case, it is not clear whether even intentional torts need to be "purposely directed” toward Missouri plaintiffs. Bryant, 310 S.W.3d at 234.

      . This court makes no judgment as to the merits of plaintiffs' negligence claims, deciding only the jurisdictional issues at this time.

      . Once again, this analysis turns on consideration of the same facts considered in evaluating application of die long-arm statute. It may be that applying foreseeability under due process and "knew or should have known” under the tort provision of the long-arm slat-ute effectively render these analyses indistinguishable.

      . The Kansas City metropolitan area spans the border between Missouri and Kansas and includes several counties in both states.

      . Gun Shop is not located in either Kansas City, Missouri or Kansas City, Kansas.

      . Because of the unique timing issues in these cases, and the possibility that the Kansas appellate court, where the Nilges matter is fully briefed and awaiting oral argument, could overturn the Kansas trial-court decision, judicial economy might warrant that the Missouri trial court stay any further proceedings pending the Kansas appellate decision.


source: Caselaw Access Project

author: CYNTHIA L. MARTIN, Judge.

license: Public Domain

text:
    STATE, EX REL. MISSOURI PARKS ASSOCIATION, Village of Arrow Rock and Friends of Arrow Rock, Respondents, v. MISSOURI DEPARTMENT OF NATIONAL RESOURCES, et al., Missouri Farm Bureau Federation, Missouri Cattlemen’s Association, Missouri Dairy Association, Missouri Pork Producers Association, and Missouri Egg Council, Appellants.
    Nos. WD 70564, WD 70565, WD 70787.
    Missouri Court of Appeals, Western District.
    April 6, 2010.
    Application for Transfer Denied Aug. 31, 2010.

      Richard W. Miller, Kansas City, MO, for respondents.
    Timothy P. Duggan, Dana L. Frese, Robert J. Brundage and Mark W. Comley, Jefferson City, MO, for appellants.
    Before Division Four: THOMAS H. NEWTON, Chief Judge, Presiding, JAMES M. SMART, JR., Judge and CYNTHIA L. MARTIN, Judge.
   CYNTHIA L. MARTIN, Judge.

The Missouri Department of Natural Resources and its Director, Mark N. Tem-pleton, (collectively, hereinafter, “DNR”) appeal the trial court’s grant of summary judgment in favor of Missouri Parks Association, the Village of Arrow Rock, and Friends of Arrow Rock (collectively, hereinafter, “MPA”) and against DNR. Missouri Farm Bureau Federation (“Farm Bureau”) and Missouri Cattlemen’s Association, Missouri Dairy Association, Missouri Pork Producers Association, and Missouri Egg Council (collectively, hereinafter, “Cattlemen”) appeal the trial court’s denial of their motions to intervene and the trial court’s grant of summary judgment in favor of MPA.

DNR requests that we vacate the trial court’s judgment because: (1) the matter the trial court was asked to address was moot at the time of entry of the judgment from which this appeal is taken; (2) the trial court’s judgment is advisory or hypothetical because it adjudicates future controversies and permits for which no one has applied; (8) the trial court’s judgment usurps statutes that specifically govern air pollution control, concentrated animal feeding operations (CAFO) permitting, and use of manure in crop fields; (4) the matter addressed by the trial court’s judgment was not ripe because MPA did not exhaust available administrative remedies; and (5) the use of admissions to the detriment of nonparties is not authorized by Supreme Court Rule 59.01.

Farm Bureau and Cattlemen appeal separately. Both allege that the trial court erred in: (1) denying their respective motion’s to intervene; (2) entering the judgment because the matter before the trial court was moot; (8) entering the judgment because MPA failed to exhaust administrative remedies; (4) entering a judgment that exceeds the relief initially requested and that affects the rights of nonparties; and (5) prohibiting a CAFO within a buffer radius that directly contradicts section 640.710.2, which expressly provides for buffer distances. We vacate the Second Amended Judgment and order this matter dismissed with costs to Respondents.

Factual and Procedural History

On August 31, 2007, DNR issued to Dennis Gessling (“Gessling”) a one-year construction permit that authorized construction of a CAFO for 4,800 hogs in Saline County, Missouri, near the Village of Arrow Rock. DNR issued the permit pursuant to its authority under the Clean Water Law, Chapter 644, and the “Hog Bill,” sections 640.700 through 640.755. The permit automatically expired on August 30, 2008. A petition was filed with the Administrative Hearing Commission (“AHC”) to initiate an appeal to the Missouri Clean Water Commission (“CWC”). One of the Respondents, Friends of Arrow Rock, is a party to the appeal challenging the permit.

On October 11, 2007, and while administrative review of the issuance of the permit remained pending, MPA filed a petition for declaratory judgment and mandamus in the Circuit Court of Cole County. The petition named DNR and its then Director as the Defendants.' Gessling was not named as a Defendant. The petition alleged that Arrow Rock is identified as a distinctive destination by the National Trust for Historic Preservation and is home to numerous historic buildings. The petition also alleged that Sappington Cemetery State Historic Site and two other landmarks listed on the National Register of Historic Places are in or near Arrow Rock. Count I of the petition sought a judgment declaring that DNR must revoke Gessling’s construction permit because odors and pollutants from a CAFO would threaten the health and welfare of those near Arrow Rock, and because DNR has a duty to protect and preserve state parks and state historic sites. Count II of the petition sought a preliminary order in mandamus commanding DNR’s Director to perform a purported duty to preserve and protect state parks and historic sites and declaring that “the issuance of the permit and any similar CAFO permit would be an abrogation” of said duties. (Emphasis added.)

On May 19, 2008, MPA served 149 requests for admissions on DNR, On June 19, 2008, one day after DNR’s responses to the requests were due, DNR filed a motion for an extension of time to respond to the requests for admissions. On June 20, 2008, DNR filed objections to the requests for admissions alleging, among other things, that the sheer number of requests was burdensome and that many of the requests expressed subjective impressions and opinions which could not be truthfully admitted or denied, contained legal conclusions and opinions, sought admissions on matters or opinions espoused by third parties which could not be truthfully admitted or denied, or were compound statements.

On June 30, 2008, MPA filed a motion for summary judgment. The motion for summary judgment asserted as an “uncon-troverted fact” service of the requests for admission on DNR. All of the remaining “uncontroverted facts” asserted in the motion for summary judgment were drawn verbatim from the requests for admissions. DNR’s motion for extension of time to respond to, and objections to, the requests for admissions were still pending at the time the motion for summary judgment was filed. DNR did file suggestions in opposition to MPA’s motion for summary judgment and responded to each of MPA’s alleged “uncontroverted facts,” contesting the uncontroverted nature of most of them.

On August 25, 2008, five days before Gessling’s construction permit was set to naturally expire, the trial court entered a judgment (hereinafter “Initial Judgment”). The Initial Judgment declared that DNR had not shown sufficient cause to be afforded an extension of time to respond to the requests for admission. Pursuant to Rule 59.01(a), the trial court deemed the 149 requests admitted. The Initial Judgment then granted summary judgment. To do so, the Initial Judgment necessarily relied on the deemed admissions, notwithstanding the fact that DNR had filed a response to the motion for summary judgment controverting most of MPA’s contentions. In the Initial Judgment, the trial court made numerous “findings of fact,” each cross referenced to a nearly identical request for admission. The Initial Judgment then entered numerous “conclusions of law,” the vast majority of which were cross referenced to a nearly verbatim request for admission.

The Initial Judgment entered judgment in favor of MPA and against DNR “on all claims set forth in the Petition.” Specifically, the Initial Judgment declared (a) DNR has a constitutional duty to protect state parks and historic sites; (b) a CAFO, including the proposed Gessling CAFO, should not be allowed within a fifteen mile radius of Arrow Rock or any “nearby” state parks and historic sites and that “no CAFO can transport waste from its operation within a fifteen mile radius of Arrow Rock and “nearby” state parks and historic sites; (c) that DNR must revoke Gessling’s permit because of odor and pollutant concerns threatening those around Arrow Rock; and (d) that failure to revoke Gessling’s permit would permit DNR to avoid its duty to protect state parks and historic sites. The Initial Judgment then entered a Writ of Mandamus commanding DNR to revoke Gess-ling’s permit and prohibiting DNR from “issuing any such permit to Gessling or anyone else ” to construct or operate a CAFO within a distance of at least a fifteen mile radius from Arrow Rock and nearby state parks and historic sites, or to permit transporting of CAFO waste within the same radius. (Emphasis added.) Though the Initial Judgment established a fifteen mile buffer radius, a buffer radius was not sought as relief in MPA’s petition, and none of the “uncontroverted facts” in MPA’s summary judgment motion addressed a buffer radius. The record reveals no evidence of any kind was before the trial court supporting the establishment of a buffer radius of any dimension, and certainly no evidence to support a buffer radius of fifteen miles.

The Initial Judgment then described two scenarios over which the trial court would exercise continuing jurisdiction — relief not sought by MPA’s petition or by the motion for summary judgment. First, the trial court declared its belief that CAFO’s located beyond the fifteen mile radius it had established could nonetheless harm Arrow Rock and nearby state parks and historic sites. As such, the trial court summarily ordered that “this Court shall maintain jurisdiction over any such application [referring to any application for a CAFO beyond the fifteen mile radius] for a permit to construct or operate or both a Concentrated Animal Feeding Operation in order to consider the issuance of such a permit and to hear any objections to the issuance of a permit.” Second, the trial court declared:

If dangerous pollutants or odor or both from Concentrated Animal Feediny Operations reach or threaten to reach those areas [referring to Arrow Rock and nearby state parks and historic sites] and since DNR and its Director have a history of failing to honor and enforce Stay Orders issued by the Administrative Hearing Commission as to such situations, then this Court shall retain jurisdiction of this matter to ensure that the DNR and its Director take immediate steps to shut down and [sic] such offendiny Concentrated Animal Feediny Operations until positive, adequate steps are taken that ensure such will not occur or reoccur.

(Emphasis added.)

On August 30, 2008, Gessling’s construction permit expired. Gessling never commenced construction of the CAFO covered by the permit. Gessling did not apply for an extension of the permit. Gessling cannot construct a CAFO without a permit.

On September 23, 2008, DNR filed a motion to vacate and set aside the Initial Judgment, arguing Gessling’s permit had expired, rendering the action moot. In the alternative, DNR sought to reopen the case, arguing, among other things, that MPA had failed to join indispensible parties and that the trial court had erroneously imposed a fifteen mile buffer radius and had entered orders affecting nonparties. On the same day, Farm Bureau and Cattlemen filed motions to intervene.

On December 9, 2008, the trial court entered an amended judgment (“First Amended Judgment”). The First Amended Judgment was substantively identical to the Initial Judgment except: (a) all references to a fifteen mile buffer radius were changed to a two mile buffer radius; (b) the motions to intervene filed by Farm Bureau and Cattlemen were denied; (c) the trial court added a finding of fact addressing DNR’s claim of mootness, finding that Gessling was petitioning to transfer “his operating permit which expired on August 30, 2008 to his company name”; (d) the trial court added a conclusion of law, stating that “if such transfer is permitted,” the same threats that had warranted the Initial Judgment could occur, causing the trial court to “decline to rule the instant lawsuit is moot”; (e) the trial court deleted the first of the two circumstances over which the trial court had summarily asserted an entitlement to exert “continuing jurisdiction”; and (f) the trial court slightly modified the scope of its orders to delete reference to “a CAFO,” “no CAFO,” or “anyone else,” which references had suggested application of those portions of the Initial Judgment to CAFO’s other than the one authorized by the specific construction permit issued to Gessling. However, the First Amended Judgment retained the language relating to the trial court’s purported continuing jurisdiction to address “dangerous pollutants or odors” from unspecified CAFO’s threatening Arrow Rock and specified state parks and historic sites, and ordering DNR to take immediate steps to shut down “such offending Concentrated Animal Feeding Operations.” Before the First Amended Judgment was entered, no evidentiary hearing was conducted and no other motion for summary judgment was filed to support the trial court’s new finding of fact about an alleged attempt by Gessling to transfer the subject construction permit.

On December 22, 2008, MPA filed a motion asking the trial court to clarify the First Amended Judgment to correct a typographical error and to add specific reference in various paragraphs of the judgment to two additional historic facilities that had been addressed in the requests for admissions and the motion for summary judgment.

On January 9, 2009, the trial court again entered an amended judgment (“Second Amended Judgment”). The Second Amended Judgment was substantively identical to the First Amended Judgment except: (a) all of the “clarifications” sought by MPA in its December 29, 2008 motion were incorporated; and (b) the trial court added a new final paragraph as follows:

The Court has been advised by counsel for Defendants that there presently exists Concentrated Animal Feeding Operations within a two (2) mile radius from the Village of Arrow Rock, Arrow Rock State historic Site, the Sappington Cemetery State Historic Site and the National Register-Listed Prairie Park and this Second Amended Judgment shall not be construed to prevent each such Concentrated Animal Feeding Operation from operating as each was operating prior to the entry of the initial Judgment on August 25, 2008; but each such Concentrated Animal Feeding Operation shall be conscious of protecting the environment and the water and shall not be entitled to amplify, expand or enlarge how it was conducting its Concentrated Animal Feeding Operation beyond what each was doing prior to the entry of this initial judgment on August 25, 2008.

(Emphasis added.)

DNR filed a notice of appeal. The notice of appeal purports to take an appeal from the First Amended Judgment and the Second Amended Judgment. Farm Bureau and Cattlemen also filed notices of appeal from the First Amended Judgment and the Second Amended Judgment.

Judgment Appealed From

As a preliminary matter, we must determine whether the First Amended Judgment or the Second Amended Judgment is the appropriate subject of this appeal. The trial court’s authority to enter amended judgments is a question of law which we review de novo. In re Marriage of Jeffrey, 53 S.W.3d 173, 175 (Mo. App. E.D.2001).

“Unless an amended judgment shall otherwise specify, an amended judgment shall be deemed a new judgment for all purposes,” including the time from which a party can file an authorized post-trial motion from the amended judgment. Rule 78.07(d) (emphasis added); Cotter v. Miller, 54 S.W.3d 691, 694 (Mo.App. W.D. 2001). Neither the First Amended Judgment nor the Second Amended Judgment included language suggesting the trial court intended the preceding judgment to survive. In fact, the successively entered judgments are virtually identical to one another, save the few deletions or insertions we have herein noted, suggesting each successive judgment was intended to replace, in its entirety, the preceding judgment. Thus, subject to discussion of the timeliness of each judgment’s entry, the Initial Judgment was rendered a nullity with the entry of the First Amended Judgment, and the First Amended Judgment was rendered a nullity with the entry of the Second Amended Judgment. Rule 78.07(d); Investors Title Co. v. Chicago Title Ins. Co., 18 S.W.3d 70, 74 (Mo.App. E.D.2000) (“[T]he original judgment quite simply is not the trial court’s judgment ... the trial court’s judgment is the amended judgment.... ”).

The caveat to this principle depends on whether the trial court was authorized to enter either the First Amended Judgment or the Second Amended Judgment. Both amended judgments were entered more than thirty days after entry of the preceding judgment, and thus after the trial court lost the authority to vacate, reopen, correct, amend, or modify the preceding judgment under Rule 75.01. However, Rule 73.01(d) permits (though it does not require except as mandated by Rule 78.07(c)) the filing of “a motion for new trial or a motion to amend the judgment or opinion, or both, as provided by Rule 78.04” in a court tried case. If no such after-trial motion is filed, the judgment becomes final at the expiration of thirty days after its entry. Rule 81.05(a)(1). If a timely motion for new trial or motion to amend the judgment is filed, however, Rule 81.05(a)(2)(A) permits the trial court up to ninety days from the date the motion was filed to rule on the motion, after which the motion is deemed denied. If an authorized after-trial motion is filed, the judgment is deemed final for purposes of appeal on the day the motion is denied or deemed denied. Rule 81.05(a)(2)(A) and (B). The combined effect of these Rules is to afford the trial court the authority to modify its judgment for any reason for good cause within thirty days of its entry, and the authority between the thirty-first and ninetieth day following entry of a judgment to modify its judgment to remediate a matter raised by a party in an authorized after-trial motion. Massman Constr. Co. v. Highway & Transp. Comm’n, 914 S.W.2d 801, 802 (Mo. banc 1996).

Following entry of the Initial Judgment, DNR filed a motion to vacate the judgment or to reopen the case. Following entry of the First Amended Judgment, MPA filed a motion to clarify the judgment. Neither motion is titled “motion for new trial” or “motion to amend judgment.” However, in evaluating whether a pleading is an authorized after-trial motion, we do not concern ourselves with the title of the pleading or with a party’s citation to a particular Rule, but we look instead to the substance of the pleading. Blue Ridge Bank & Trust Co. v. Hart, 152 S.W.3d 420, 425 (Mo.App. W.D.2005).

DNR’s motion alleges the Initial Judgment should be vacated as moot or in the alternative modified or the matter reopened because there was no basis for the trial court to impose a fifteen mile buffer radius on all CAFO operations or to incorporate into its judgment numerous conclusions of law and orders which impact permits, applicants, and CAFO’s other than the specific construction permit issued by DNR to Gessling. DNR’s motion is tantamount to a motion to amend or for new trial. Taylor v. United Parcel Serv., Inc., 854 S.W.2d 390, 393 (Mo. banc 1993) (motion titled “Motion to Reconsider the Order of the Court Granting Defendant’s Motion for Summary Judgment” treated as a motion for new trial). MPA’s motion to clarify the judgment alleges errors in the language of the First Amended Judgment and is tantamount to a motion to amend the judgment. See Worley v. Worley, 19 S.W.3d 127, 129 (Mo. banc 2000) (“A pleading is judged by its subject matter-not its caption.”) Thus, both DNR and MPA filed after-trial motions expressly authorized by Rule 73.01(d). In fact, to the extent either motion alleged error in the form or language of the trial court’s judgment, Rule 78.07(c) required the allegations to be raised as a condition of preserving the issue for appellate review.

Because DNR and MPA each filed authorized after-trial motions, the trial court had the general authority to enter the First Amended Judgment and the Second Amended Judgment as both, though entered more than thirty days after entry of the judgment each amended, were entered within ninety days of the filing of the authorized after-trial motion. Here, though the trial court did not enter separate orders granting or denying DNR’s or MPA’s after-trial motions, it is evident from review of both the First Amended Judgment and the Second Amended Judgment that most of the modifications to each judgment were responsive to the pending motions.

The First Amended Judgment expressed the trial court’s declination to treat the matter before it as moot and can be construed as a denial of that aspect of DNR’s after-trial motion. The First Amended Judgment seemingly “reopened” the case to address DNR’s concern with the fifteen mile buffer radius and the Initial Judgment’s impact on nonparties, as the First Amended Judgment summarily modified the buffer radius to two miles and deleted some (but not all) of the language in the judgment which applied to other CAFO’s or permit applications. The trial court apparently took advantage of DNR’s request to “reopen” the case to add a finding of fact and a conclusion of law addressing Gessling’s efforts to transfer the permit to bolster the trial court’s denial of DNR’s motion to vacate the Initial Judgment for mootness.

The Second Amended Judgment made each of the “clarifications” to the First Amended Judgment sought by MPA and can be construed to have granted MPA’s after-trial motion. However, the Second Amended Judgment also added a new “order” as its final paragraph, acknowledging existing CAFO’s within the two mile buffer radius established by the Second Amended Judgment and ordering that said CAFO’s “shall be conscious of’ the environment and “shall not be entitled to amplify, expand or enlarge” beyond current operations. This “relief’ was not sought in any pending after-trial motion and constitutes an unauthorized modification to the First Amended Judgment as the Second Amended Judgment was entered thirty one days after the First Amended Judgment and, thus, one day after the trial court lost its general authority to modify the judgment. Massman, 914 S.W.2d at 802.

The net effect of the trial court’s actions is that the Initial Judgment and the First Amended Judgment were each rendered a nullity upon entry of a subsequent judgment. Rule 78.07(d). The Second Amended Judgment is the only judgment in this case, and it is, therefore, the judgment appealed from.

Mootness/Advisory Judgment

In its first two points on áppeal, DNR contends the Second Amended Judgment is moot, as the construction permit issued to Gessling had expired and as the Second Amended Judgment was an advisory opinion since it prohibited DNR from issuing Gessling any future permit and ordered DNR to shut down other existing CAFO’s within the two mile buffer radius if they threatened those near Arrow Rock. We will review these two points together as they are interrelated.

“ ‘A threshold question in any appellate review is the mootness of the controversy.’ ” State ex rel. Acoff v. City of University City, 180 S.W.3d 83, 84 (Mo. App. E.D.2005) (citations omitted). This court must determine whether the trial court’s judgment was a nullity because of the absence of a justiciable controversy. Auto. Club Inter-Ins. Exch. v. Nygren, 975 S.W.2d 235, 238 (Mo.App. S.D.1998). “If there is no justiciable controversy, we lack jurisdiction to consider the appeal and may dismiss sua sponte.” O’Banion v. Williams, 175 S.W.3d 673, 675 (Mo.App. W.D.2005).

DNR contends that the underlying matter which gave rise to MPA’s petition for declaratory relief — the construction permit DNR issued to Gessling — became moot when Gessling’s permit expired on August 30, 2008, with no construction activity having been undertaken by Gessling. DNR thus contends that the Second Amended Judgment entered after the permit’s expiration is a nullity. We agree.

“Missouri courts do not determine moot causes of action. ‘A cause of action is moot when the question presented for decision seeks a judgment upon some matter which, if the judgment was rendered, would not have any practical effect upon any then existing controversy.’ ” River Fleets, Inc., v. Creech, 36 S.W.3d 809, 813 (Mo.App. W.D.2001) (citations omitted); Asher v. Carnahan, 268 S.W.3d 427, 429-30 (Mo.App. W.D.2008). Missouri courts do not issue opinions that have no practical effect and that are only advisory as to future, hypothetical situations. River Fleets, 36 S.W.3d at 813.

A cause of action is rendered moot when an event occurs making it impossible for the court to grant relief. In order to grant a declaratory judgment, a trial court must have a justicable controversy before it. ‘A justicable controversy exists where the plaintiff has a legally protectable interest at stake, a substantial controversy exists between the parties with genuinely adverse interests, and that controversy is ripe for judicial determination.’

Id. (citations omitted). There must be a “presently existing controversy” for “specific relief’ not an advisory or hypothetical situation. Id. (citations omitted). “ ‘The question must be ready for judicial decision. If it is not, the judgment is a nullity.’ Auto. Club, 975 S.W.2d at 238 (citations omitted and emphasis added).

In this case, it is undisputed that the trial court entered the Second Amended Judgment five months after Gessling’s permit expired. MPA suggests that the Second Amended Judgment is not moot because Gessling’s permit had not expired at the time the Initial Judgment was entered. However, as we have previously noted, the Initial Judgment was rendered a nullity by the First Amended Judgment. The First Amended Judgment (which was itself entered four months after Gessling’s permit expired) was rendered a nullity upon entry of the Second Amended Judgment. The Second Amended Judgment orders DNR to revoke a permit that is already expired. The Second Amended Judgment makes findings of fact and conclusions of law projecting harms that will occur upon construction of a CAFO that is not under construction and cannot be constructed given the expired permit. The Second Amended Judgment is moot and is thus a nullity. Id.

The trial court attempted to overcome the mootness of both the First Amended Judgment and the Second Amended Judgment by incorporating a new finding of fact in both judgments to the effect that Gessling was threatening to transfer his permit to a corporation he controlled. The trial court then concluded as a matter of law in both judgments that because there was a possibility such a transfer could permit Gessling to operate another CAFO in the area which could expose the community to harms, the matter was not moot. This was erroneous.

First, the permit expired on August 30, 2008. There was no justiciable controversy before the trial court relating to the expired permit at the time of entry of the Second Amended Judgment, whether the permit was held in Gessling’s name or was subject to a purported transfer attempt. Second, the trial court attributes DNR’s after-trial motion as the “support” for its new finding of fact and conclusion of law. In that motion as a part of DNR’s request that the matter be reopened to address the fifteen mile buffer radius, DNR apprised the trial court that Gessling was attempting to acquire an existing CAFO six miles from the site identified in the expired construction permit — information shared with the trial court to lend credence to DNR’s argument that the trial court’s Initial Judgment would impact other CAFO’s already in existence. From this, the trial court extrapolated a finding that the construction permit DNR had issued Gessling was being transferred by Gessling to a corporation he controlled. The trial court’s factual finding that Gessling “has petitioned to transfer his operating permit which expired on August 30, 2008 to his company name” was not only procedurally improper but was also wholly unsupported by any evidence. Gessling did not have an operating permit for a CAFO. He had only a construction permit and it expired on August 30, 2008. Moreover, the construction permit Gessling was issued was for a site completely unrelated to the site of the existing CAFO Gessling was attempting to acquire. Because the trial court’s finding of fact is wholly unsupported by any evidence, the trial court’s related conclusion of law declaring that the First Amended Judgment and Second Amended Judgment are thus not moot is erroneous.

Curiously, though MPA denies that the controversy it presented to the trial court by its petition was moot at the time of entry of the Second Amended Judgment in that portion of its brief addressing DNR’s first and second points relied on, MPA later concedes mootness of the controversy before the trial court. In response to DNR’s point relied on suggesting MPA’s failure to exhaust available administrative remedies barred MPA’s lawsuit, MPA states: “[s]ince the Gessling permit has expired, it is clear the Administrative Hearing Commission would refrain from addressing Respondents’ concerns since the issue would have become moot during the process. There thus is no administrative remedy available to Respondents.” (Emphasis added.) For the same reason, the matter before the trial court was moot. The Second Amended Judgment is a nullity.

We are also concerned that many of the trial court’s findings of fact and conclusions of law in the Second Amended Judgment went well beyond declaring rights relating to the specific Gessling construction permit and attempted to control future permit issuance and/or the future operation of existing CAFO’s. For exam-pie, the Second Amended Judgment includes an order prohibiting “DNR from issuing any such permits to Gessling to construct or operate a Concentrated Animal Feeding Operation within a distance of a two (2) mile radius” from specified areas. This order is clearly intended to limit DNR’s authority with respect to future permit applications Gessling may file. Further, the trial court afforded itself continuing jurisdiction over any CAFO which threatens Arrow Rock or nearby state parks and historic sites, and prospectively ordered DNR to shut down any such operation. Moreover, the Second Amended Judgment ordered that existing CAFO’s within the two mile buffer radius “shall not be entitled to amplify, expand or enlarge.” The trial court’s orders relating to future Gessling permit applications and to existing CAFO’s are advisory, addressing disputes not yet in existence and occurrences of a hypothetical nature. Thus, even if the Second Amended Judgment was not already a nullity because it is moot, the Second Amended Judgment would be a nullity because it is an improper advisory opinion. River Fleets, 36 S.W.3d at 813; Auto. Club, 975 S.W.2d at 238.

DNR’s points one and two are granted. We vacate the Second Amended Judgment as a nullity and order this matter dismissed.

DNR’s Remaining Points on Appeal

Our determination that the Second Amended Judgment is a nullity and an advisory opinion disposes of this case. However, we are compelled to comment on other errors asserted by DNR on appeal which would independently afford grounds to vacate the Second Amended Judgment.

First, the Second Amended Judgment decided the rights and duties of non-parties (DNR’s point relied on eight). The Second Amended Judgment ordered DNR to revoke Gessling’s or his successor’s permit and ordered DNR not to issue Gess-ling or his successor any future permit. Yet Gessling was not named a party to MPA’s action. The Second Amended Judgment also exerted continuing jurisdiction over all CAFO’s which threaten Arrow Rock or nearby state parks and historic sites in the future and ordered DNR to shut down the offending CAFO’s should the trial court in the exercise of its “continuing jurisdiction” later determine a possible, hypothetical harm had become a real harm. Yet, the owners and operators of these unidentified CAFO’s were not named as parties. The Second Amended Judgment ordered that all existing CAFO’s within the two mile buffer radius established by the trial court must “be conscious of protecting the environment and water” and “shall not be entitled to amplify, expand or enlarge” beyond current operations. Yet, these existing CAFO’s are not identified, and their owners and operators were not parties to the proceedings. Farm Bureau’s and Cattlemen’s efforts to intervene in this case after the Initial Judgment is itself an indication that non-parties believed the trial court’s judgment affected them rights.

“When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceedings.” Rule 87.04. “[T]he presence of an indispensable party is a jurisdictional requirement. Accordingly, when an indispensable party to a declaratory judgment action is not joined in the case, any judgment rendered in that party’s absence is a nullity.” Auto. Club, 975 S.W.2d at 289 (citation omitted). The Second Amended Judgment clearly affected the rights of nonparties. Though MPA argues on appeal that the Second Amended Judgment is a narrow judgment affecting only Gessling’s permit, the inaccuracy of this position is readily apparent from a simple reading of the Second Amended Judgment. Moreover, even if MPA’s argued view of the Second Amended Judgment could be reconciled with the judgment’s plain language, MPA provides no explanation for its failure to join Gessling as a party to its lawsuit when the suit was undertaken for the express purpose of securing revocation of the permit Gessling had been issued. The Second Amended Judgment violates Rule 87.04 and is a nullity.

In points five and seven on appeal, DNR argues that MPA failed to exhaust available and required administrative remedies as enacted by the legislature. Chapter 644 describes the procedure for both aggrieved permit applicants and third parties who are aggrieved by the issuance of a permit to appeal to the CWC. It also provides that the final determinations of the CWC are subject to judicial review, but only after all administrative remedies have been exhausted. Section 644.071.1. An appeal to the CWC is initiated by filing a petition with the AHC. Section 640.010.1; Mo.Code Regs. Ann. tit. 10. Section 20-6.020(5)(C) (2009). “Generally, parties must exhaust adequate administrative remedies before resorting to an action at law or in equity.” State ex rel. Whiteco Indus., Inc. v. Bowers, 965 S.W.2d 203, 206 (Mo.App. E.D.1998).

The Second Amended Judgment includes the following conclusion of law:

An appeal has been filed with the Administrative Hearing Commission from the DNR granting the construction permit to Gessling to construct the two barns and CAFO operation sought by Gessling. Even if the appeal is sustained by the Administrative Hearing Commission, the Plaintiffs are without adequate remedy since the DNR has not within the past five years enforced, complied with or honored any Stay Order rendered by the Administrative Hearing Commission.

The Second Amended Judgment thus concedes that available administrative remedies were being pursued and had not been exhausted as required by section 644.071.1. MPA argues that it was not required to exhaust administrative procedures because no adequate remedy lies through the administrative process. The cases MPA cites in support of this proposition bear no relationship to the circumstances of this case and afford the trial court no authority to dispose of a matter that is the subject of available, unexhausted administrative remedies.

In Whiteco, a billboard owner secured a preliminary writ of prohibition, the trial court finding Whiteco was not required to secure a building permit from file city because the city’s building code and billboard ordinance were preempted by the Missouri Billboards Act. Id. at 205. The city argued that because Whiteco had not first sought and been denied a building permit, its action to determine the applicability of the city’s building code and billboard ordinance to Whiteco’s billboard was not ripe as Whiteco had not exhausted its administrative remedies. Id. at 206. The Eastern District disagreed, noting “Whi-teco’s challenge is to the [city’s] authority to impose certain regulations on its billboard construction,” an exception to the obligation to exhaust administrative remedies. Id,, at 206-07. Under the authority of Premium Standard Fawns, Inc. v. Lincoln Township, administrative remedies need not be exhausted when “the authority of the political subdivision to impose particular regulations is challenged.” 946 S.W.2d 234, 237 (Mo. banc 1997) (cited with approval in Whiteco, 965 S.W.2d at 206). The case before us does not involve any challenge to DNR’s authority to issue permits for CAFO’s or any challenge to CWC’s authority to hear appeals from DNR’s issuance of a permit to construct a CAFO.

In Farm Bureau Town, & County Insurance Co. of Missouri v. Angoff, 909 S.W.2d 348, 353 (Mo. banc 1995), the Supreme Court concluded that a declaratory judgment action to determine the constitutionality of a statute regulating the insurance industry was premature as the constitutionality claim was necessarily mixed with other claims involving construction and violation of the statute. As a result, the plaintiff had not exhausted its administrative remedies. Id. The court did generally note that “there are exceptional circumstances where declaratory relief may be granted against an agency without exhaustion of the administrative remedies. The exceptions are usually characterized by the inadequacy of the administrative remedy.” Id. However, the Court declared that the plaintiff had an adequate remedy to preserve its constitutional claims in the administrative proceeding, as those claims could later be raised and addressed in the judicial review portion of the administrative proceeding. Id. Here, MPA contends that DNR has failed to honor stay orders issued by the AHC in the past. Yet MPA fails to explain why MPA would be unable to intervene as an aggrieved party empowered to seek enforcement of an ignored stay should that hypothetical scenario occur in connection with a future permit sought by Gessling. The possibility that DNR might ignore an AHC mandate with respect to a Gessling permit is no more than a hypothetical scenario, and MPA cannot establish that it has an inadequate remedy at law to redress DNR’s issuance of a future permit to Gessling through the exhaustion of its administrative remedies.

Until an agency had made a final determination that finds facts, applies the law to those facts, and construes the applicable statutes, it is impossible to know if a subsisting justiciable controversy exists between the agency and the party seeking declaratory relief. Prior to the agency’s decision, the controversy remains hypothetical and premature. Declaratory judgment actions should not be resorted to for the purpose of giving advisory opinions.

Id. at 353.

Similarly, State ex rel. Ag Processing, Inc. v. Public Service Commission, 276 S.W.3d 303 (Mo.App. W.D.2008), offers no support for MPA’s contention that it has an inadequate remedy of law warranting abandonment of administrative remedies. In Ag Processing, rate payers argued that judicial review should be afforded a PSC rate making decision notwithstanding a pending petition for rehearing because of a concern the adjusted rate would be collected while the petition for rehearing was pending, affording no recourse for the rate payers to recover amounts paid if the rate was later determined excessive. Id. at 307. This court disagreed, finding the circumstances did not establish that the rate payers had an inadequate remedy at law warranting relief from the obligation to exhaust administrative remedies. Id. at 310-11.

In short, MPA cites no authority for the proposition that its fear that DNR will not abide by a stay order excuses it from exhausting administrative remedies. The trial court exceeded its authority by entertaining MPA’s declaratory judgment action given MPA’s acknowledged failure to exhaust administrative remedies. The Second Amended Judgment is a nullity as it was entered unlawfully. Parker v. City of Saint Joseph, 167 S.W.3d 219, 221 (Mo.App. W.D.2005).

In points three, four, and six on appeal, DNR contends the Second Amended Judgment usurps specific legislative authority established by section 640.710.2 (addressing buffers for CAFO’s), assigned by Chapter 643 to the Missouri Air Conservation Commission (addressing odor regulations), and assigned by state and federal clean water laws (which allow and protect the proper use of CAFO waste for agronomic purposes). DNR also argues that the Second Amended Judgment misapprehends the law with respect to DNR’s purported duty to protect parks. We express very serious concern that the trial court has likely overreached with its determinations that are implicated by these legislative schemes. However, we need not decide these issues given our decision that the Second Amended Judgment is a nullity for the multiple reasons herein stated.

Motions to Intervene

Farm Bureau and Cattlemen appeal the denial of their motions to intervene and also appeal on the merits. Farm Bureau and Cattlemen were not parties to this proceeding and thus had no standing to appeal on the merits. State ex rel. Strohm v. Bd. of Zoning Adjustment of Kansas City, 869 S.W.2d 302, 303 (Mo.App. W.D.1994). However, given the circumstances, we have elected to treat the briefs of Farm Bureau and Cattlemen as amicus briefs pursuant to Rule 84.05(f), and have considered the arguments advanced by these nonparties accordingly. Given our nullification of the Second Amended Judgment, we need not address the trial court’s denial of Farm Bureau’s or Cattlemen’s motions to intervene.

Conclusion

The subject matter of MPA’s petition was moot at the time the trial court entered the Second Amended Judgment. There was no justiciable controversy warranting the entry of a declaratory judgment or a writ of mandamus, rendering the Second Amended Judgment an improper advisory opinion. The Second Amended Judgment improperly declared and affected the rights of nonparties not before the court. The Second Amended Judgment improperly addressed matters which were the subject of unexhausted administrative remedies. For each and all of these reasons, the Second Amended Judgment is a nullity. The Initial Judgment and the First Amended Judgment were rendered nullities by the entry of subsequent judgments and no further action need be taken by this court to vacate those judgments. We vacate the Second Amended Judgment and order the underlying matter dismissed with costs assessed to MPA.

All concur.

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

      . Requests for admissions are limited by Rule 59.01 to the admission of facts, not legal principles or conclusions. The trial court's reliance on requests for admissions to support conclusions of law in the Initial Judgment evidences the objectionable nature of many of the requests for admissions.

      . Some modifications went beyond the pending after-trial motions, however, and for reasons we will hereinafter discuss, any such modifications were made by the trial court without authority.

      . Though the trial court had the authority to reopen the case, the trial court did not have the authority to summarily modify its Initial Judgment to include new factual determinations and new conclusions of law wholly unsupported by the evidence in the record prior to entry of the Original Judgment.

      . Even had the trial court's new ''order'' addressing existing CAFO’s been added to the Second Amended Judgment within thirty days of the First Amended Judgment, Rule 75.01 would have required the trial court to give the parties an opportunity to be heard on the subject. That obviously did not occur here.

      . DNR also filed a motion to dismiss this appeal based on mootness which we have taken with the case. Because the mootness issue is addressed in response to the similar point relied on raised in DNR's brief, we need not separately rule on the motion to dismiss.

      .DNR also contends the First Amended Judgment was a nullity as moot. Though we agree, we have already determined that the First Amended Judgment was rendered a nullity upon entry of the Second Amended Judgment, and thus the mootness of the First Amended Judgment is no longer an issue.

      . We use the term "evidence” loosely here, as no proper proceeding for the presentation of evidence occurred between the entry of the Initial Judgment and the entry of the First Amended Judgment.

      . We have already ruled that this latter order exceeded the trial court's authority as added to the Second Amended Judgment more than . thirty days after the First Amended Judgment was entered.

      . DNR also argues that the effect of the Second Amended Judgment was to treat its "deemed” admissions to the requests for admissions as admissions of non-parties in violation of Rule 59.01. Though that is the effect of the Second Amended Judgment, the essential concern is that the trial court entered a declaratory judgment that impaired the rights of non-parties in violation of Rule 87.04.

      . This "conclusion of law” was drawn from one of the requests for admission the trial court deemed admitted by DNR.

      . The other three exceptions to the obligation to exhaust administrative remedies authorized by Premium are "[1] no adequate remedy lies through the administrative process ... [3] the validity of the agency rules or the threatened application thereof is at issue, [or][4] the authority of a municipal corporation to enact certain regulations under the statutory enabling acts granting it the power to zone is challenged.” 946 S.W.2d at 237.

      . Though nearly all of the trial court's conclusions of law are "supported" by a request for admission the trial court deemed DNR to have admitted, we would not be bound by DNR's deemed admissions, and would have the authority to review the trial court’s conclusions of law de novo.

      . MPA filed motions to strike points relied on in Farm Bureau’s and Cattlemen's briefs that went to the merits of the judgment and beyond the denial of their respective motions to intervene. Both motions were taken with the case but are rendered moot by our decision.


author: KAREN KING MITCHELL, Judge.

text:
    STATE of Missouri, Respondent, v. Kenneth Leroy JOHNSON, Appellant.
    No. WD 70816.
    Missouri Court of Appeals, Western District.
    April 13, 2010.
    Application for Transfer Denied Aug. 31, 2010.

      Nancy A. McKerrow, Assistant State Public Defender, Columbia, MO, for Appellant.
    Chris Koster, Attorney General, Mary H. Moore, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before Division III: JAMES EDWARD WELSH, Presiding Judge, and MARK D. PFEIFFER and KAREN KING MITCHELL, Judges.
   KAREN KING MITCHELL, Judge.

The State charged Appellant Kenneth L. Johnson with possession of a controlled substance. § 195.202, RSMo 2000. Johnson was convicted by a jury in the Circuit Court of Boone County, the Honorable Gary Oxenhandler presiding. Johnson preserved his right to appeal the circuit court’s adverse ruling on his pre-trial motion to suppress evidence, which, if it had been granted, would have resulted in an acquittal. We affirm.

Facts and Procedural Background

On July 3, 2007, Officer Jonathan Logan and Officer Lance Bolinger were patrolling Douglas Park in Columbia, Missouri, during a special event. Logan was off-duty but was wearing his police uniform. Logan observed Johnson riding his bicycle. Logan testified that he had knowledge that there was an outstanding warrant for Johnson’s arrest. Logan testified that he could not remember where he had obtained the information, but he remembered hearing about the outstanding warrant within the two weeks prior to his arrest of Johnson. Logan testified that he normally learned of warrant information at shift meetings, from other officers, or from the department’s memorandum system. Logan was familiar with Johnson because he had arrested him in the past. When Logan heard about the outstanding warrant, Logan placed Johnson’s name on a personal list that he maintained. Logan periodically checked his personal list of outstanding warrants to verify that they were still active; however, Logan did not check his list on July 3, 2007.

Logan stopped Johnson and said, “Kenny, I think you have a warrant.” Logan and Bolinger stepped in front of Johnson’s bicycle, blocking his progress. Logan asked for Johnson’s full name and date of birth so that he could check the police records to verify that the warrant for Johnson’s arrest was still active. Logan testified that, had he not briefly detained Johnson, he could not have confirmed the active status of the warrant because “there’s thousands of Kenny Johnsons.... You need a date of birth and a Social Security number to help confirm that.”

Both Logan and Bolinger testified that, while they were verifying that the warrant was still active, Johnson was not free to leave.

Through contacting the joint communications office of the police department, Bolinger verified that a warrant for Johnson’s arrest was active. The warrant was issued by Monroe County on a misdemean- or charge of driving while intoxicated.

The police officers then handcuffed and searched Johnson. The search revealed two marijuana cigarettes. Bolinger transported Johnson to the police station. The police conducted an inventory search of Johnson. Turning out Johnson’s pockets, the police found crack cocaine. The crack cocaine was not discovered during the initial search because it was pushed into the seam and not discoverable without turning the pocket inside out. The crack cocaine is the controlled substance at issue in this appeal.

Johnson filed a motion to suppress the evidence of the crack cocaine on the ground that its discovery resulted from an unlawful seizure of his person. Johnson argued that the police violated his rights under the Fourth Amendment to the United States Constitution when they initially stopped him. On July 8, 2008, the circuit court denied the motion to suppress.

Johnson went to trial. At trial, Johnson maintained a continuing objection to the admission of any evidence of the crack cocaine or marijuana. The trial court overruled the motion and denied Johnson’s motion for an acquittal. The jury found Johnson guilty of possession of a controlled substance. The circuit court sentenced Johnson as a prior and persistent offender to seven years in prison. The court denied Johnson’s motion for acquittal notwithstanding the verdict, or, in the alternative, for a new trial.

This direct appeal follows. In his only point on appeal, Johnson argues that the circuit court erred in denying his motion to suppress the evidence of the crack cocaine.

Standard of Review

Once the accused files a motion to suppress evidence, the State has the burden to show that the evidence is admissible. State v. Hernandez, 954 S.W.2d 639, 642 (Mo.App. W.D.1997). In reviewing the circuit court’s denial of a motion to suppress evidence, our inquiry is limited to whether the decision is supported by substantial evidence. Jackson, 186 S.W.3d at 879. We consider the facts in the light most favorable to the ruling, and we disregard any contrary evidence and/or adverse inferences. Id. We defer to the circuit court for factual findings and credibility determinations, but we review questions of law de novo. Id. “An appellate court will not reverse a trial court’s ruling on a motion to suppress unless the decision is clearly erroneous and leaves the appellate court with a definite and firm impression a mistake has been made.” Id.

Legal Analysis

The question presented by this appeal is whether, at the time he stopped Johnson, Logan had reasonable suspicion that there was an active warrant for Johnson’s arrest.

I. The Fourth Amendment

Johnson alleges that by stopping and subsequently searching him, the police violated his rights under the Fourth Amendment of the United States Constitution and article I, section 15 of the Missouri Constitution. The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const, amend. IV. The Fourteenth Amendment to the United States Constitution rendered the Fourth Amendment applicable to state action. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). While the Missouri Constitution may extend protections farther than those provided by the United States Constitution, such is not the case with respect to searches and seizures, for article I, section 15 of the Missouri Constitution is parallel to and co-extensive with the Fourth Amendment. State v. Rushing, 935 S.W.2d 30, 34 (Mo. banc 1996).

II. The Terry Stop exception to the Fourth Amendment’s warrant requirement

Subject to only a few specific and well-delineated exceptions, warrantless searches and seizures are deemed per se unreasonable. State v. Martin, 79 S.W.3d 912, 916 (Mo.App. E.D.2002). The exception at issue here was first acknowledged by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 30-31, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). There, the Court established the “stop and frisk” or “Terry stop” exception to the Fourth Amendment’s warrant requirement. Id.

Under the Terry stop exception, a police officer acts reasonably, and therefore does not violate the Fourth Amendment, when he or she “briefly stops or detains an individual ... to investigate when the officer has a reasonable suspicion supported by specific and articulable facts that criminal activity is afoot.” Martin, 79 S.W.3d at 916 (citing State v. Slavin, 944 S.W.2d 314, 317 (Mo.App. W.D.1997)); see also State v. Dixon, 218 S.W.3d 14, 22 (Mo.App. W.D.2007) (“[T]he Fourth Amendment requires that all warrantless ‘seizures’ of an individual be founded upon at least reasonable suspicion that the individual seized is engaged in wrongdoing”). The suspected criminal activity need not be ongoing — if a police officer has reasonable suspicion that a crime has occurred in the past, he or she may briefly stop the suspected individual for investigative purposes. United States v. Hensley, 469 U.S. 221, 227, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985).

The standard for “reasonable suspicion” is “whether the facts available to the officer at the moment of the seizure warrant a person of reasonable caution in the belief that the action taken was appropriate.” State v. Lanear, 805 S.W.2d 713, 716 (Mo.App. W.D.1991). This standard requires less certainty than that sufficient to establish “probable cause”; however, a justified Terry stop must still be supported by “ ‘some minimal level of objective justi-fieation.’ ” Id. (quoting Immigration & Naturalization Serv. v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984)). In determining whether the standard for “reasonable suspicion” has been met, the court must evaluate all of the relevant circumstances and must consider them together, not in isolation. United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). In evaluating whether the “reasonable suspicion” standard has been met, we are mindful that police officers are permitted to make use of all of the information available, to them, and they may make inferences from that information that would not be made by members of the public, who lack access to the officer’s knowledge, information, and training. Id.

Assuming that reasonable suspicion exists at the outset of a Terry stop, the scope of the search and/or seizure that follow must be “ ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” Terry, 392 U.S. at 19, 88 S.Ct. 1868 (quoting Warden v. Hayden, 387 U.S. 294, 310, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (Fortas, J., concurring)).

III. The Terry stop exception as applied to Logan’s stop of Johnson

1. A seizure occurred before Logan confirmed that the warrant for Johnson’s arrest was active.

The State argues that no “seizure” of Johnson’s person occurred before the officers confirmed that the warrant for Johnson’s arrest was active. According to the State, the active status of the warrant gave Logan probable cause to arrest Johnson, and, prior to receiving confirmation that the warrant was active, the police officers had neither searched Johnson nor seized his person. We disagree.

The State is, of course, correct that, once the officers had confirmed the active status of the warrant for Johnson’s arrest, the arrest of Johnson was constitutionally permissible. State v. Stacy, 121 S.W.3d 328, 333 (Mo.App. W.D.2003). However, as explained below, the police officers “seized” Johnson’s person before they confirmed that the warrant was active, and therefore we must decide whether they had reasonable suspicion to do so. See Dixon, 218 S.W.3d at 22 (holding that seizure of defendant’s person in advance of determining that an outstanding warrant existed needed to have been supported by, at a minimum, reasonable suspicion); State v. Sund, 215 S.W.3d 719, 725 (Mo. banc 2007) (holding that evidence must be suppressed when it was obtained after a stop which, at its inception, violated the Fourth Amendment).

“[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions.” Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). “Police officers may request identification and examine that identification, and those actions, by themselves, are permissible and do not constitute a seizure.” Stacy, 121 S.W.3d at 333 (citing Delgado, 466 U.S. at 216, 104 S.Ct. 1758). However, “whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” Terry, 392 U.S. at 16, 88 S.Ct. 1868 (emphasis added). A “seizure” of the defendant’s person occurs when a reasonable person would not feel free to disregard the police and go about his or her business. Bostick, 501 U.S. at 434, 111 S.Ct. 2382 (citing California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)). Once a police officer has stopped an individual and asked for identification, whether the individual has been “seized” is a question of whether a reasonable person, given the totality of the circumstances, would feel free to walk away. Dixon, 218 S.W.3d at 20-21 (holding that, when the police took the defendant’s driver’s license, told the defendant to remain in his truck, and took the driver’s license back to the patrol car, the defendant’s person had been “seized” for the purposes of the Fourth Amendment).

Here, the record is undisputed that, before they confirmed the active status of Johnson’s warrant, Logan and Bolinger restrained Johnson’s freedom to walk way, Terry, 392 U.S. at 16, 88 S.Ct. 1868, so that a reasonable person would not have felt free to disregard the police and go about his or her business. Bostick, 501 U.S. at 434, 111 S.Ct. 2382. Logan testified that he called out to Johnson, saying “Kenny, I think you have a warrant.” Then, both Logan and Bolinger stepped in front of Johnson’s bicycle, impeding his progress. The officers both testified that, at this point (before they confirmed the warrant), Johnson was not free to leave. Given that the officers stopped Johnson, informed him there might be a warrant for his arrest, physically stood in his way so as to impede his progress, and testified that, at that point, he was not free to leave, we hold that the officers’ initial stop of Johnson constituted a “seizure” of his person. Id.

2. Logan had reasonable suspicion that a warrant for Johnson’s arrest was active.

Given that a seizure occurred, the police were required to have had, at a minimum, reasonable suspicion, supported by articulable facts, that criminal activity was afoot. Terry, 392 U.S. at 30, 88 S.Ct. 1868; Martin, 79 S.W.3d at 916. They did.

“[P]olice officers can, within the bounds of the fourth amendment, briefly detain an individual in order to determine whether he is a person for whom they have an outstanding arrest warrant, so long as the stop is based on a reasonable, articulable suspicion....” United States v. Reese, 108 F.Supp.2d 1338, 1341 (M.D.Ala.2000). “Armed with the knowledge a warrant recently had been issued, it is reasonable for the officer briefly to detain an individual in order to determine the status of the warrant.” People v. Conway, 222 Cal.App.3d 806, 814, 271 Cal.Rptr. 832 (Cal.Ct.App.1990).

Here, Logan had reasonable suspicion, based on articulable facts, that a warrant had recently been issued for Johnson’s arrest. Logan testified that he had learned of Johnson’s warrant within the previous two weeks. Although he could not remember precisely where he had learned of that information, he testified that it was either from a shift meeting, the department’s “memo system,” or from other officers. Police officers are entitled to rely on information from official channels, like fellow officers, police memoran-da, and shift meeting directives, provided that the source of the information was itself based on probable cause or reasonable suspicion. Hensley, 469 U.S. at 231, 105 S.Ct. 675 (holding that an investigative stop in reliance on another police department’s wanted flier, which was issued based on articulable facts supporting reasonable suspicion, was constitutionally reasonable); State v. Franklin, 841 S.W.2d 639, 644 (Mo. banc 1992) (holding that, because there was no evidence that the dispatch relied upon by the officer was supported by reasonable suspicion, the stop of the defendant was invalid). Furthermore, Logan was familiar with Johnson from past arrests, and this familiarity had prompted him to place Johnson’s name on a personal list that he maintained of persons for whom warrants had been issued. Though Logan had not checked the list to ensure that it was current on the day he stopped Johnson, he testified that he checked the list regularly.

Given the temporal proximity of Logan’s receipt of reliable information, Logan’s familiarity with Johnson from previous arrests, and Logan’s placement of Johnson’s name on a list of active warrants that he checked regularly, we hold that Logan had at least reasonable suspicion, based on ar-ticulable facts, that there was an active warrant for Johnson’s arrest.

3. Logan’s stop of Johnson was no more intrusive than the circumstances required.

Since we have determined that the seizure of Johnson’s person was justified at its inception, we must now decide “whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Terry, 392 U.S. at 20, 88 S.Ct. 1868. It was.

“[W]here police have been unable to locate a person suspected of involvement in a past crime, the ability to briefly stop that person, ask questions, or check identification in the absence of probable cause promotes the strong government interest in solving crimes and bringing offenders to justice.” Hensley, 469 U.S. at 229, 105 S.Ct. 675. “The governmental interest in apprehending individuals with outstanding arrest warrants outweighs the minimal intrusion on the liberty of an individual occasioned by a brief detention to determine the status of the warrant.” Conway, 222 Cal.App.3d at 814-15, 271 Cal.Rptr. 832.

Here, Logan and Bolinger detained Johnson only briefly while they verified the status of his warrant. Logan testified that he did not verify the status of the warrant before detaining Johnson because it would have been impossible, given the common name “Kenny Johnson,” to have determined whether a warrant was active for this specific Kenny Johnson. Logan therefore stopped Johnson, asked for his date of birth and full name, and verified that the warrant was active. In doing so, he neither physically restrained Johnson nor performed any type of search until after the warrant had been verified. Thus, the officers’ brief detention of Johnson was commensurate with the initial purpose of the stop: to verify the status of the warrant.

Accordingly, we find that the stop of Johnson was “reasonably related in scope to the circumstances which justified the interference in the first place.” Terry, 392 U.S. at 20, 88 S.Ct. 1868.

Conclusion

For the reasons stated above, we find that the police officers in this case performed a valid Terry stop of Johnson. Accordingly, the cocaine found during the search of Johnson did not result from an invalid seizure of Johnson’s person, and the trial court did not clearly err in denying the motion to suppress. Affirmed.

JAMES EDWARD WELSH, Presiding Judge, and MARK D. PFEIFFER, Judge, concur.

      . We view the evidence in the light most favorable to the circuit court's ruling on the motion to suppress. State v. Jackson, 186 S.W.3d 873, 879 (Mo.App. W.D.2006).

      . The State also argues that the “escape rule” should apply here and that we should not reach the merits of Johnson’s appeal because of it. Under the escape rule, an appellate court can, in its discretion, dismiss an appeal if the delay caused by an accused’s escape adversely impacted the criminal justice system. State v. Janson, 964 S.W.2d 552, 554 (Mo.App. S.D.1998). Here, Johnson failed to appear for his January 26, 2009 sentencing hearing, purportedly because he did not know that his January 14, 2009 hearing had been continued to that date. After Johnson had been taken back into custody in February, the circuit court saw fit to release him on bond, and Johnson then appeared at the next scheduled hearing on March 16, 2009. Under these circumstances, we do not think that the criminal justice system was so burdened by Johnson's conduct that his right to appeal should be extinguished. See id. (holding that the escape rule did not apply when the accused's sentencing hearing had to be rescheduled due to his failure to appear and when no one was injured during the "escape”). Accordingly, we reach the merits.

      . The State also argues that, due to Logan's previous knowledge that a warrant had been issued for Johnson's arrest, Logan had probable cause to arrest Johnson before he confirmed the status of the warrant. Since we conclude below that Logan had reasonable suspicion to stop Johnson, we need not decide whether Logan's previous knowledge would satisfy the higher standard of probable cause.

      .. No trae Hensley or Franklin problem is presented by the facts of this case. Those cases stand for the proposition that " 'the failure of the issuing police agency to have reasonable suspicion to stop ... cannot be immunized from a Fourth Amendment objection by passing the information on to another police officer [who] then acts upon it.’ ” Franklin, 841 S.W.2d at 642 n. 1 (quoting Kaiser v. State, 296 Ark. 125, 752 S.W.2d 271, 274 (1988)). Therefore, if one police department issues a flier or a radio bulletin based on information from a confidential informant or based on other suspicions, the State will have the burden to come forward with evidence at the suppression hearing that the information upon which the first agency relied was supported by reasonable suspicion or probable cause. See id. However, here, the underlying information was a warrant issued by a neutral magistrate, cf. id. at 643 n. 2 (distinguishing the facts in Franklin from those at issue in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), where the underlying information relied upon by the officer was a warrant issued by a neutral magistrate), and, at the suppression hearing, Johnson did not dispute that his arrest warrant was based on probable cause. Given that the probable cause supporting the underlying information was not at issue here, Logan was entitled to rely on it, Hensley, 469 U.S. at 232-33, 105 S.Ct. 675, assuming, of course, that he in fact had prior knowledge of the arrest warrant. By denying the motion to suppress, the circuit court implicitly found that Logan did, in fact, possess prior knowledge of the warrant, and, as noted above, we defer to the trial court on factual and credibility issues such as this. Jackson, 186 S.W.3d at 879.

      . There is no question that, once the warrant's active status had been confirmed, the officers were entitled to perform a search incident to the arrest of Johnson. State v. Brasel, 538 S.W.2d 325, 332 (Mo. banc 1976). Likewise, there is no question that the police were entitled to perform an inventory search of Johnson once he had been taken to jail. State v. Friend, 711 S.W.2d 508, 510 (Mo. banc 1986).


author: PER CURIAM:

text:
    STATE of Missouri, Respondent, v. Ahmad H. AL-HAYDAR, Appellant.
    No. WD 70501.
    Missouri Court of Appeals, Western District.
    April 20, 2010.
    Application for Transfer Denied Aug. 31, 2010.
    Ahmad H. Al-Haydar, Bowling Green, MO, pro se.
    Shaun J. Mackelprang, Jefferson City, MO, for Respondent.
    Before THOMAS H. NEWTON, C.J., JOSEPH M. ELLIS, and CYNTHIA L. MARTIN, JJ.
   ORDER

PER CURIAM:

Mr. Ahmad Al-Haydar appeals pro se from a conviction entered after a jury trial for sexual assault, section 566.040. He raises five points on appeal. For reasons stated in the memorandum provided to the parties, we affirm. Rule 30.25(b).