author: McANULTY, Judge.

text:
    ACSR, INC., Appellant, v. CABINET FOR HEALTH SERVICES and Pulaski Day Services, Inc., Appellees.
    No. 1999-CA-001602-MR.
    Court of Appeals of Kentucky.
    Aug. 25, 2000.
    Case Ordered Published by Supreme Court Oct. 13, 2000.

      Marie Alagia Cull, Cull & Hayden, P.S.C., Frankfort, KY, for Appellant.
    David H. Vance, Walton & Vance, Frankfort, KY, for Appellee Pulaski Day Services, Inc.
    Ellen M. Hesen, Anne Dooling Clarke, Frankfort, KY, for Appellee Commonwealth of Kentucky Cabinet for Health Services.
    Before HUDDLESTON, McANULTY, and MILLER, Judges.
   OPINION

McANULTY, Judge.

ACSR, Inc., appeals from an opinion and order of the Franklin Circuit Court denying its petition for review and affirming the decision of the Cabinet for Health Services to issue a health services certificate of need to Pulaski Day Services, Inc. We affirm.

In January 1997, Pulaski Day Services, Inc., (hereinafter PDS) submitted an application for a certificate of need in connection with the establishment of an adult day care health program in a facility in Somerset. PDS’s application indicated an intent to construct a new building with a capacity of 65-70 patients. Under its program, PDS would provide therapeutic and personal care services to adult patients between 7:00 a.m. and 6:30 p.m. PDS subsequently requested and was granted non-substantive review by the Cabinet pursuant to KRS 216B.095 and 900 KAR 6:015E which allows for an expedited, less comprehensive procedure for review than applies with a formal review. See KRS 216B.015(9) and (13), KRS 216B.040, KRS 216B.095, and 900 KAR 6:050. In April 1997, the Cabinet issued a public notice of PDS’s application, under the nonsubstantive review status and ACSR filed a request for a hearing on the application. ACSR (Active Services Corp. d/b/a Somerset Active Day Center), which currently operates a licensed adult day health care facility in Somerset, opposed the issuance of a certifícate of need to PDS on various grounds under the criteria set forth in KRS 216B.040. ACSR also, however, challenged the validity of 900 KAR 6:050 and the Cabinet’s authority to promulgate the regulation.

Following a hearing at which both sides presented witnesses, an Administrative Law Judge (ALJ) issued findings of fact, conclusions of law, and an order approving PDS’s certificate of need application. The ALJ found that ACSR had not overcome the presumption of need applied to non-substantive applicants by clear and convincing evidence as required by 900 KAR 6:050. Pursuant to KRS 216B.090 and KRS 216B.085(4), ACSR filed a request for reconsideration, which was denied by the ALJ.

In July 1997, ACSR filed an appeal to the Franklin Circuit Court. See KRS 216B.115. Both the Cabinet and PDS filed answers that included requests for dismissal of the petition. The Cabinet later filed a motion requesting dismissal or separation of ACSR’s complaints dealing with the validity of the administrative regulations from its challenge to the certificate of need on the merits. ACSR filed a response to the Cabinet’s motion. On June 10, 1999, the circuit court entered an opinion and order dismissing ACSR’s petition on the merits. The court held that the agency’s regulations dealing with nonsub-stantive review status for a certificate of need application were properly promulgated and did not deprive appellant of any substantive or procedural due process rights. This appeal followed.

ACSR raises three issues on appeal in challenging the validity of the administrative regulations dealing with nonsubstan-tive review of a certificate of need, 900 KAR 6:050 (formerly 900 KAR 6:015E) and 902 KAR 17:035E. First, it claims that the regulations were not authorized by statute. Second, it asserts the nonsub-stantive review hearing process denied it both procedural and substantive due process rights. Third, it contends the two above noted regulations were improperly promulgated as emergency regulations. We find appellant’s claims lack merit.

In connection with its first complaint, ACSR contends that 900 KAR 6:050 unlawfully amends KRS 216B.040 and KRS 216B.095 in violation of KRS 13A.120. KRS 216B.040 requires the Cabinet to promulgate regulations establishing the requirements for obtaining a certificate of need. Subsection (2)(a)(2) lists six factors relevant to the criteria to be established in the regulations for review of certificate of need applications: (1) consistency with the State Health Plan; (2) need and accessibility; (3) interrelationships and linkages; (4) costs, economic feasibility, and resources availability; (5) quality of services; and (6) the existence of skilled nursing and of intermediate and personal care beds in determining the need for freestanding long-term care beds. See also 900 KAR 6:050(7). KRS 216B.040(2)(a)(l) authorizes the Cabinet to promulgate administrative regulations “[t]o establish the certificate of need review procedures, including but not limited to, application procedures, notice provisions, procedures for review of completeness of applications .... ” (Emphasis added). KRS 216B.040(l)(a) indicates that the formal review procedures apply “except as to those applications which have been granted non-substantive review status by the Cabinet.”

KRS 216B.095 deals with the nonsub-stantive review of applications for a certificate of need. An applicant may waive the procedures for formal review of an application and request the expedited nonsub-stantive review. KRS 216B.095 provides in part:

(3) The cabinet may grant nonsubstan-tive review status to an application for a certificate of need which is required:
(a) To change the location of a proposed health facility;
(b) To replace or relocate a licensed health facility, if there is no substantial change in health services or substantial change in bed capacity;
(c) To replace or repair worn equipment if the worn equipment has been used by the applicant in a health facility for five (5) years or more;
(d) For cost escalations;
(e) To establish an industrial ambulance service; or
(f) In other circumstances the cabinet by administrative regulation may prescribe.
(4) Notwithstanding any other provision to the contrary in this chapter, the cabinet may approve a certificate of need for a project required for the purposes set out in paragraphs (a) through (f) of subsection (3) of this section, unless it finds the facility or service with respect to which the capital expenditure is proposed to be made is not required; or to the extent the facility or services contemplated by the proposed capital expenditure is addressed in the state health plan, the cabinet finds that the capital expenditure is not consistent with the state health plan.

900 KAR 6:050 Section 8 provides that in addition to the projects specified in KRS 216B.095(3)(a)-(e), the cabinet may grant nonsubstantive review status to a certificate of need application where “the proposal involves the establishment or expansion of a health facility or health service for which there are no standards or review criteria in the state health plan.” It is undisputed that there are no standards in the state health plan for adult day care facilities. Section 8 also creates a rebutta-ble presumption of need with respect to approval of nonsubstantive review applications. It states in part:

(5) If an application for certificate of need is granted nonsubstantive review status, there shall be a presumption that the facility or service is needed, and the cabinet shall approve applications for certificate of need that have been granted nonsub-stantive review status, unless the presumption of need is rebutted by clear and convincing evidence that there is not a need for the proposed facility or service in the geographic area defined in the application.

ACSR argues that 900 KAR 6:050 represents an unwarranted expansion of the nonsubstantive review status that is contrary to a comprehensive scheme of regulation establishing certificate of need policy and that it modifies or vitiates the intent of the General Assembly in violation of KRS 13A.120(2). See also Flying J. Travel Plaza v. Commonwealth, Transportation Cabinet, Department of Highways, Ky., 928 S.W.2d 344 (1996)(ad-ministrative agency regulatory authority limited by implementing statute). It maintains that by applying the rule of statutory construction, ejusdem generis, KRS 216B.095(3)(f) should be construed to be limited to changes to already approved or licensed health facilities or services. It states that construing Subsection (3)(f) more broadly creates too expansive an exception to the formal review process. We disagree.

First, ACSR’s argument that the doctrine of ejusdem generis would restrict Subsection (3)(f) to licensed facilities or services is inconsistent with the fact that Subsection (3)(e) applies nonsubstantive review status “[t]o establish an industrial ambulance service.” (Emphasis added). Second, KRS 216B.040(l)(a) indicates the legislature’s intent to authorize approval or denial of certificates of need under the nonsubstantive review status outside the formal review process. The General Assembly has given the Cabinet broad discretion in the area of certificates of need and its interpretation of KRS 216B.095(3)(f) to authorize nonsubstantive review status to the establishment or expansion of health facilities or services for which there are no standards in the state health care plan is not unreasonable or disruptive to the general common scheme of regulation. Ejusdem generis is merely a general rule to aid in construing otherwise ambiguous statutory provisions and does not control when the whole context of the statute dictates a different conclusion. Norfolk & Western Railway Co. v. American Train Dispatchers’ Ass’n, 499 U.S. 117, 129, 111 S.Ct. 1156, 1163, 113 L.Ed.2d 95 (1991). Thus, we reject ACSR’s narrow interpretation of KRS 216B.095(3)(f) and do not believe it violates KRS 13A.120(2). Cf. Revenue Cabinet v. Joy Technologies, Ky.App., 838 S.W.2d 406, 409 (1992)(“a regulation is valid unless it exceeds statutory authority or, in some way, is repugnant to the statutory scheme”).

ACSR also contends that 900 KAR 6:050 violates its procedural and substantive due process rights by shifting the burden of proof from the applicant to the affected party challenging the certificate of need in nonsubstantive review proceedings and by requiring the presumption of need to be rebutted by clear and convincing evidence. It argues that the accepted general practice in administrative proceedings requires the applicant before an administrative agency to bear the burden of proof. ACSR asserts that KRS 216B.120(2) establishes substantial evidence as the standard of proof in certificate of need cases.

First, we note that KRS 216B.120 deals with judicial review of administrative agency decisions. The substantial evidence standard is the well-established deferential standard of review of agency action by the judicial branch based on separation of powers. See, e.g., American Beauty Homes Corp. v. Louisville and Jefferson County Planning and Zoning Comm’n, Ky., 379 S.W.2d 450 (1964); Commonwealth, Transportation Cabinet v. Cornell, Ky. App., 796 S.W.2d 591 (1990). ACSR’s suggestion that the substantial evidence standard, rather than a clear and convincing evidence standard, should apply to the administrative hearing constitutes a misunderstanding of the administrative and judicial review process. The substantial evidence standard simply does not apply (unless prescribed by a specific statute or regulatory provision) within the administrative hearing process. The cases relied on by ACSR are not relevant because they all involve judicial review of prior administrative agency decisions.

Additionally, KRS 216B.095(4) explicitly creates a presumption in favor of approval of a certificate of need involving nonsub-stantive review status when it states: “the cabinet may approve a certificate of need ... unless it finds the facility or service with respect to which the capital expenditure is proposed to be made is not required .... ” (Emphasis added). Given this statutory language, ACSR’s reliance on cases citing the general rule that an applicant has the burden of proof is unpersuasive.

Moreover, ACSR has confused the procedural concepts of burden of proof and burden of production of evidence. 900 KAR 6:050 Section 8 states that a rebutta-ble presumption sufficient to justify approval is created if there is need for the proposed facility. This regulation does not shift the burden of proof or persuasion; rather, it merely shifts the burden of production of evidence to the non-applicant to rebut the presumption. This procedure is consistent with the statutory language of KRS 216B.095(4).

Finally, in addition, because the statute is silent on the standard or level of evidence necessary to rebut the presumption, the imposition of a clear and convincing standard is not contrary to the agency’s authority. KRS 1SA.100(4) gives agencies the authority to prescribe “[t]he procedures to be utilized by the administrative body in the conduct of hearings by or for the administrative body unless such procedures are prescribed by statute.” KRS 216B.095(1) requires that all hearings concerning the grant or denial of nonsub-stantive review be conducted as provided in KRS 216B.085. In turn, KRS 216B.085(3) sets forth the minimum due process procedures applicable to certification hearings.

At the hearing, any party to the proceedings shall have the right to be represented by counsel, and to present oral or written arguments and evidence relevant to the matter which is the subject of the hearing, and may conduct reasonable cross-examination under oath of persons who make factual allegations relevant to such matters. A full and complete record shall be maintained of the hearing.

ACSR received notice and an opportunity to be heard as required by KRS 216B.085. It filed written memoranda explaining its arguments. It has failed to demonstrate any denial of due process.

ACSR’s third complaint involves the promulgation of 900 KAR 6:015E and 902 KAR 17:035E as emergency regulations. KRS 13A.190(l)(a) sets forth the basis for the promulgation of emergency regulations on a temporary basis in order to: “(1) [m]eet an immediate threat to public health, safety, or welfare; or (2)[p]revent a loss of federal funds; or (3)[m]eet a deadline for the promulgation of an administrative regulation that is established by state law, or federal law or regulation; or (4)[p]rotect human health and the environment.” The statement of emergency accompanying the issuance of 900 KAR 6:015E stated a need for initial oversight of health services and facilities through the nonsubstantive certificate of need review process in order to address an imminent threat to public health and safety. ACSR contends that no true emergency existed to justify the Cabinet’s action, but it offers no evidence to support its assertion. This argument also conflicts with ACSR’s position that a full formal certificate of need review process should apply to establishment of health facilities such as adult day care centers even though they are not covered by the state health plan. As the trial court noted, an administrative regulation within the scope of the authority of the agency is presumed valid and the party challenging the regulation has the burden of proving its invalidity. See Hohnke v. Commonwealth, Ky., 451 S.W.2d 162, 166 (1970); Kentucky Airport Zoning Commission v. Kentucky Power Co., Ky.App., 651 S.W.2d 121, 124 (1983). ACSR has failed to establish that the Cabinet’s evaluation of the need for the two emergency regulations was unreasonable or erroneous. See also KRS 13A.090 (re-buttable presumption of correctness of contents of administrative regulation). Thus, it has not demonstrated that 900 KAR 6:015E and 902 KAR 17:035E were not valid and applicable to PDS’s application for a certificate of need.

For the foregoing reasons, we affirm the opinion and order of the Franklin Circuit Court.

All concur.

      . This administrative regulation was later superseded and replaced with 900 KAR 6:050, but the substantive provisions relevant to this appeal were not changed. For ease of reference, we will cite primarily to 900 KAR 6:050 in the remainder of this opinion.

      . There are no standards or review criteria in the State Health Plan for adult day care health facilities. See 900 KAR 6:050(8)(l)(a).

      . Ejusdem generis means of the same kind, class, or nature. Under this doctrine, where general words follow a designation of specific subjects or things, the meaning of the general words will not be read in their widest extent but will be held to apply only to things or subjects of the same kind, class, or nature as those specifically enumerated, unless there is a clear manifestation of a contrary intent. See Steinfeld v. Jefferson County Fiscal Court, 312 Ky. 614, 229 S.W.2d 319, 320 (1950); Robinson v. Ehrler, Ky., 691 S.W.2d 200, 204 (1985).

      . See infra note 1.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    Brian PARSLEY, Appellant, v. KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY, Appellee.
    No. 1999-CA-000808-MR.
    Court of Appeals of Kentucky.
    Sept. 29, 2000.
    Alton L. Cannon, Leitchfield, for Appellant.
    Kelly Mark Easton, Elizabethtown, for Appellee.
    Before: HUDDLESTON, JOHNSON and KNOPF, Judges.
   OPINION

JOHNSON, Judge:

Brian Parsley has appealed from a declaratory judgment entered by the Gray-son Circuit Court that ruled that Kentucky Farm Bureau Mutual Insurance Company has no duty to defend its insured, Steve Crawford, and is not obligated, under the terms of the homeowner’s policy it had issued to Crawford, to provide coverage for the damages sustained by Parsley while a guest in Crawford’s home. Crawford’s insurance policy excluded from personal liability and medical coverage any “bodily injury or property damage [ ] which is expected or intended by the [insured.” Parsley argues that the trial court erred in deciding, as a matter of law, that Crawford “intended the consequences of [his] action[s],” which, he insists “is normally a question of fact and not one of law.” Since we believe there is no possibility that Crawford was merely negligent, we affirm the declaratory judgment.

On the evening of August 2, 1993, Parsley sustained serious injuries at Crawford’s home after being beaten by Crawford and three of Crawford’s other guests, Russell Bush, Robert Bush, and Michael Mattingly. After hitting Parsley with their fists, kicking him with their feet, and assaulting him with various objects including an ax handle, numchucks, and homemade brass knuckles, Crawford and his three guests put Parsley in the trunk of a car and transported him to a deserted bridge. Parsley was then subjected to further beatings and other indignities by the four men and was then thrown off the bridge. Parsley fell 15 feet to the creek below where he was left to drown. After some period of time, Crawford returned and took Parsley to the hospital for treatment.

The four men who participated in the beating and kidnaping of Parsley, were indicted on various criminal charges and tried before a jury in the Grayson Circuit Court on March 23, 1994. Crawford, who acknowledged at his criminal trial that he hit Parsley three or four times, was convicted of two counts of complicity to commit assault in the first degree and complicity to commit kidnaping; he was sentenced to serve five years in prison.

On August 2, 1994, Parsley filed a lawsuit against Crawford, Robert Bush, Russell Bush and Mattingly. In his complaint, Parsley alleged that Crawford and the others, “intentionally, willfully or negligently caused [him] serious physical injury.” He sought damages to compensate him for his physical and mental pain and suffering, lost wages, the permanent impairment of his ability to earn wages, and his hospital and medical expenses. Farm Bureau, which had filed an answer on behalf of its insured, Crawford, under a reservation of rights, moved for leave to file an intervening petition for declaratory judgment claiming that it had no duty to defend or indemnify its insured on the basis that his actions were intentional and thus excluded by the terms of his insurance policy.

In response to Farm Bureau’s motion for summary judgment, both Crawford and Parsley argued that the events of August 2, 1993, comprised an “accident,” as defined by the homeowner’s policy and that, essentially, they were in the wrong place at the wrong time. They described Crawford’s conduct on the night Parsley was beaten as passive and merely negligent in allowing the other three to get drunk and inflict injury on Parsley. They also relied on the fact that Crawford had been convicted of the crimes of complicity to commit the offenses of assault and kid-naping, and not the underlying offenses themselves. They argued that since a person could be found guilty of complicity if he fails to perform a legal duty to prevent the commission of an offense, a jury could believe that Crawford did not intend for Parsley to be injured.

The matter was set for trial to commence in March 1999. On December 15, 1998, the trial court entered its opinion -and order granting Farm Bureau’s motion for summary judgment. The trial court ruled that the jury’s verdict necessarily required the jury to find that Crawford intended the injuries Parsley suffered as follows:

[Crawford’s] homeowner’s policy excludes from coverage an “intentional[”] loss, meaning any loss arising out of any act committed: (a) by or at the direction of an insured; and (b) with the intent to cause a loss. [Crawford] was convicted of having aided and assisted the others in committing the offenses causing the loss with the intent to promote or facilitate the offense. In this case not only was actual intent to facilitate the offense found by the jury but the jury also found that he actually acted to aid in the commission of the crime. Certainly, in this case [Crawford] acted along with others to intentionally cause the injuries sought to be recovered for.

The order dismissing Farm Bureau was made final and appealable by the trial court, and the matter was continued generally pending this appeal.

In this appeal, Parsley argues that the dispute should be governed by the Restatement (Second) of Torts § 318 (1965), which was adopted by this Court in Grimes v. Hettinger, a case in which a swimming pool owner was determined to have a duty to control the behavior of his guests “to prevent an unreasonable risk of harm” to any of them. We do not, however, find this section of the Restatement to be applicable under the circumstances presented in the case sub judice. The record reveals that Crawford did not merely fail to protect Parsley from unreasonable harm caused by the behavior of his other guests, but rather that Crawford actively participated in the harm-producing conduct.

We agree with the trial court, that the language of Crawford’s policy and settled case law interpreting the same or similar provisions, preclude a determination that Crawford’s homeowner’s policy affords coverage for the injuries sustained by Parsley, injuries which relate to, and result from, the criminal acts for which the insured was convicted. Parsley’s argument that Crawford’s conduct should be viewed as negligent conduct rather than criminal conduct overlooks the fact that a jury determined that Crawford was not merely negligent, but that his conduct constituted the crime of complicity to commit assault in the first degree and complicity to commit kidnaping.

The facts in this case are nearly identical to those in Willis v. Hamilton Mutual Insurance Co., with the exception that the insured in Willis was convicted of assault and not, as Crawford, complicity to commit assault in the first degree. However, the attempt to rely upon such a distinction is unavailing since, by definition, the crime of complicity contains the element of intent. Furthermore, in order to convict Crawford, the instructions in the criminal case required the jury to believe that he intended to promote or facilitate the assault on Parsley. Clearly, Crawford’s conviction of complicity to commit the crimes of assault and kidnaping, implicates the policy’s provision which excludes coverage for “bodily injury ... expected or intended by the [i]nsured.”

We agree with Parsley’s observation that one’s intent is normally a question for the jury. However, this Court has recognized that intent may be inferred as a matter of law in certain circumstances. For example, in Walker, this Court upheld a summary judgment applying a policy exclusion to deny coverage to the plaintiff who was injured after being hit in the face by the insured. This Court observed in Walker that striking another in the face is “an act so certain to cause a particular kind of harm that we can say a person who performed the act intended the resulting harm.” By comparison, Parsley’s beating was many times more severe and more certain to cause harm than the single punch in the face experienced by Mr. Walker. Accordingly, we hold that since the crimes for which Crawford was convicted required a finding of intent, that this finding precludes re-litigation of the issue of Crawford’s subjective intent to cause bodily injury within the policy’s exclusion.

The judgment of the Grayson Circuit Court is affirmed.

ALL CONCUR.

      . The standards governing the trial court’s resolution of a motion for summary judgment pursuant to Kentucky Rules of Civil Procedure (CR) 56.03, and this Court's standard of review of a summary judgment, are set forth in Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476 (1991) and Scifres v. Kraft, Ky.App., 916 S.W.2d 779 (1996), respectively.

      . The video record of the testimony in the criminal case was made a part of the record in the case sub judice. Crawford testified at his criminal trial that he tried to get the other defendants to stop hitting Parsley and that the only reason he hit Parsley was to keep from incurring the same fate as Parsley. The other defendants testified that Crawford was a very active participant in the beating and that it was Crawford that wanted Parsley beaten in the first place. They testified that Crawford was motivated to harm Parsley by a belief that Parsley had informed authorities about his alleged marijuana operation.

      . On March 17, 1999, the trial court denied Parsley’s CR 59 motion to vacate the summary judgment.

      . Because the four defendants were incarcerated as a result of their criminal convictions and apparently without assets worth pursuing, Parsley informed the trial court that he was not interested in proceeding to trial should it be determined that there was no insurance coverage to satisfy any damages that might be awarded.

      . Ky.App., 566 S.W.2d 769, 774 (1978).

      . Ky.App., 614 S.W.2d 251 (1981)(insurer not liable for judgment against its insureds for assault against plaintiff).

      . See Kentucky Revised Statutes 502.020(1) which reads:
      A person is guilty of an offense committed by another person when, with the intention of promoting or facilitating the commission of the offense, he:
      (a) Solicits, commands, or engages in a conspiracy with such other person to commit the offense; or
      (b) Aids, counsels, or attempts to aid such person in planning or committing the offense; or
      (c) Having a legal duty to prevent the commission of the offense, fails to make a proper effort to do so.

      . The jury was instructed in the criminal case, in part, to find Crawford guilty on both counts of complicity to commit assault in the first degree if it believed beyond a reasonable doubt that "Steve Crawford, with the intention of promoting or facilitating Assault in the First Degree upon Brian Parsley aided and/or assisted other persons in their commission of the offense, and this act was not justified under Instruction No. 12(6)." The instruction for complicity to commit kidnaping contained identical language regarding intent.

      . James Graham Brown Foundation, Inc. v. St. Paul Fire & Marine Insurance Co., Ky., 814 S.W.2d 273 (1991).

      . Willis, supra at 252. See also Thompson v. West American Insurance Co., Ky.App., 839 S.W.2d 579, 581 (1992) (some conduct is "so inherently injurious, or substantially certain to result in some injury, that the intent to injure, or the expectation that injury will result, can be inferred as a matter of law”); Goldsmith v. Physicians Insurance Co. of Ohio, Ky.App., 890 S.W.2d 644 (1994) (intent inferred as a matter of law despite claim of diminished capacity to form intent); Walker v. Economy Preferred Insurance Co, Ky.App., 909 S.W.2d 343, 345 (1995) ("trial judge may, in some circumstances, conclude as a matter of law that the party intending to act also intended the resulting damage”).

        . Walker (citing Clark v. Allstate Insurance Company, 22 Ariz.App. 601, 529 P.2d 1195 (1975)).


author: EMBERTON, Judge.

text:
    Sharon CORNETTE, Parent and Statutory Guardian of Kristy Cornette, a Minor, Appellant, v. HOLIDAY INN EXPRESS; John Doe Manufacturer; John Doe Installer and John Doe Retailer, Appellees.
    No. 1999-CA-001830-MR.
    Court of Appeals of Kentucky.
    Oct. 20, 2000.

      Brian Cumbo, Inez, for Appellant.
    Daniel E. Murner, David W. Zahniser, Lexington, for Appellee for Holiday Inn Express.
    Before BARBER, EMBERTON and GUIDUGLI, Judges.
   OPINION

EMBERTON, Judge.

This appeal challenges the summary dismissal of appellant’s action seeking damages for injuries incurred when her daughter, Kristy, was lacerated by a loosened section of a handrail while swimming in a pool operated by appellee, Holiday Inn Express. In granting appellees’ motion for summary judgment, the trial court apparently concluded that appellant could not prevail, as a matter of law. She was unable to produce evidence as to the length of time the defective condition of the handrail had existed or maintenance records showing inspections on the pool portion of the premises. We are convinced, however, that under the facts such evidence is not essential to avoid summary judgment. It does not direct itself to the appropriate standard for assessing liability based upon the motel’s negligence in failing to provide premises that are reasonably safe for persons invited on the property for business purposes. Accordingly, we reverse the judgment of dismissal and remand the case for further proceedings.

The facts are not in dispute. While swimming as a guest at the appellee motel, appellant’s daughter cut her leg on a metal ring that had come loose from the railing on steps leading into the shallow end of the pool. Although Kristy was transported to Humana Hospital in Lexington for treatment, the cut subsequently developed into a keloid scar midway between her knee and hip which continues to be raised and unsightly. Because of this scarring, Kristy has been undergoing treatment from a plastic surgeon in an attempt to reduce the size, color and inflamed nature of the scar.

Discovery prior to appellees’ initial motion for summary judgment consisted of interrogatories and a deposition of appellant. Appellees’ responses to the interrogatories produced the following information: (1) the hotel was sold after the accident; (2) Lexington Pools, Inc., installed the pool; (3) Jordan Palmer was working the front desk at the time of the accident; (4) Mike Riddle, the manager, was on the premises at the time of the accident; (5) Robert Cole made daily inspections of the pool; and (6) the ring that cut Kristy’s leg was subsequently repaired. Appellees emphasize in their brief the fact that appellant, in response to questioning in her deposition as to what the motel had done wrong, stated that the desk clerk had mistreated Kristy by not being as attentive as he should have been and by not closing the pool for a long enough period after the incident. Appellees thereafter filed a motion for summary judgment arguing that because the negligence alleged by appellant in her deposition occurred after the injury, it could not have been the proximate cause of the injury. At the hearing on the motion, the trial court stated that it was hesitant to dismiss the action simply on the basis of appellant’s failure to know all possible theories of recovery in her case. The trial court subsequently denied the summary judgment motion based on counsel’s statement that additional discovery was necessary, giving appellant 120 days to complete discovery. Additional time was granted for appellant to depose a witness who was present when the incident occurred, as well as the current manager of the motel who testified that no maintenance records could be located for the time period in question. The trial court subsequently conducted a pretrial conference at which she granted appellees’ motion for summary judgment.

Appellant’s basic argument in this appeal is that the trial court, in granting summary judgment, applied the wrong standard in assessing the duty the motel owed to its guests in keeping its premises reasonably safe for use in a manner consistent with the purpose of the invitation to use its facilities. We agree.

It appears that the case was practiced by applying the standard utilized in “slip and fall” cases, that is, whether the condition causing injury existed for a sufficient period of time that in the exercise of ordinary care the motel could, or should, have discovered it in time to remedy the situation or warn its guests. Had Kristy’s laceration been caused by broken glass or other foreign objects in the pool, we would agree that the “slip and fall” standard provides the appropriate inquiry. But where, as here, the instrumentality causing the injury was peculiarly within the control of the motel, its duty to its invitees goes further requiring an inspection of the premises “to discover dangerous conditions not known to him and to ‘take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement or use.’ ” This rationale was utilized by the Supreme Court of Nevada in reinstating a jury verdict for damages sustained by a motel guest when a handrail on a slide suddenly gave way:

Here, the swimming pool and the slide were an inducement to attract travelers to patronize the motel. The motel owed a duty to provide their patrons with a safe slide and to warn their guests of any dangers known to them in using the slide. Their duty went further, however, and included a duty to inspect the slide for latent or concealed dangers, and if a reasonable inspection would have revealed such danger they were chargeable with constructive notice of it. Whether the motel fulfilled these duties were questions of fact to be submitted to the jury. (Emphasis added).

The Twardowski analysis is in full accord with Kentucky case law on the subject of duties owed to business invitees. Thus, liability in this case (as in Twardowski ) is predicated upon the motel’s negligence in the failure to maintain its premises in a reasonably safe condition and, to that end, the motel may be charged with constructive notice of conditions that a reasonable inspection would have disclosed. We are therefore convinced that appellant’s inability to obtain through discovery maintenance records that were within the control of appellees, or its successor, is certainly not fatal to her case. In fact, the negative impact of the inability to produce such records would appear to fall more heavily upon appellees’ defense than upon appellant’s ability to make her case.

Finally, appellees argue that this court should not consider the arguments advanced for reversal because of appellant’s failure to demonstrate in her brief how the issues were preserved for review as required by CR 76.12(4)(c)(iv). We are convinced that the failure to comply with the rule is not fatal in this instance because the record consists only of a few pleadings, a few brief hearings related to the motions for summary judgment, and a few very brief depositions. Reference to the specific portion of this brief record is not essential where the propriety of summary disposition was clearly joined at every stage of the proceeding.

In summary, because we are of the opinion that appellant has produced sufficient evidence of negligence on the part of the motel to withstand appellees’ motion, the summary judgment of dismissal is reversed and the case remanded for further proceedings consistent with this opinion.

ALL CONCUR.

        . Twardowski v. Westward Ho Motels, Inc., 86 Nev. 784, 476 P.2d 946, 947-48 (Nev.1970), citing Prosser, Handbook of the Law of Torts 402 (3d ed.1964).

      . 476 P.2d at 948.

      . See Lexington Country Club v. Stevenson, Ky., 390 S.W.2d 137 (1965).


author: JOHNSON, Judge.

text:
    Stephanie Kay GOSSETT, Appellant, v. Donald Steven GOSSETT, Appellee.
    No. 1998-CA-001720-MR.
    Court of Appeals of Kentucky.
    Oct. 20, 2000.

      William Thomas Klapheke, III Glasgow, KY, for Appellant.
    Robert M. Alexander Glasgow, KY, for Appellee.
    Before COMBS, JOHNSON and KNOPF, Judges.
   OPINION

JOHNSON, Judge.

Stephanie Kay Gossett has appealed from an order of the Barren Circuit Court entered on June 12, 1998, which concluded that Donald Steven Gossett is entitled to a reduction of his child support obligation as a matter of law. We vacate the order as entered and remand with directions that the trial court resolve the factual issues bearing on the issue of Donald’s motion for a reduction in child support.

The Gossetts were married in 1984. The union produced two children: Whitney was born November 17, 1987; Derek was born January 13, 1995. The parties separated in late 1995, and their marriage was dissolved on August 12,- 1996. The parties agreed on the resolution of all the issues arising from their twelve-year marital relationship with the exception of the appropriate amount of Donald’s child support obligation. For a considerable period prior to the parties’ separation, Donald worked full-time at R.R. Donnelley & Sons and he also worked part-time at a second job for Barren-Metcalfe Ambulance Service. Donald would not agree to pay child support calculated by using both of his incomes, and as a result the issue of the amount of his child support obligation was litigated before the domestic relations commissioner. On August 23, 1996, an order was entered setting child support at $200.13 per week ($867.24 monthly), which amount reflected Donald’s total monthly income from both jobs of $3,555.

In April 1998, Donald moved for a reduction of his child support obligation. At the hearing conducted on May 11, 1998, Donald testified that his income had decreased over 40% since the 1996 hearing, to $2,121 per month. He attributed the decrease in his income to the fact that he had voluntarily quit his job with the ambulance service and because he was not working as much overtime as before at his primary job. He justified quitting his part-time job in order to have more time with his family, although he acknowledged, and the record clearly demonstrates, that he was not having regular visitation with his children.

In its order, the trial court found and concluded as follows:

1. The parties were divorced on or about August 13, 1996 in Barren Circuit Court. The parties have two children under the age of eighteen. At the time of the divorce [Donald] was employed at R.R. Donnelley & Sons, Co., and was working all the overtime that he could and was also working on a part-time basis with the Barren Metcalfe Ambulance Service and was also doing some other work of a self-employment nature.
2. [Donald’s] income at the present time is $2,121.43 per month and his only source of income is through his employment at R.R. Donnelley & Sons, Co. This is full-time employment and [Donald] could not reasonably find work -with greater income potential eohsidering his education, work experience, and the community in which he lives. The Court finds that [Donald] is not required by law to maintain more than one job or to work to the exclusion of any other activities of life.
3. [Donald’s] income is $2,121.43 per month. [Stephanie’s] income is $1,278.71 per month. Statutory guidelines provide that child support should be set at $588.38 per month....
2. KRS 403.212 provides “income” is actual gross income of a parent if employed to full capacity. This Court concludes that a full-time job at R.R. Don-nelley and Sons, Co., constitutes full employment. The statutes do not require a person to work at a second job.

In this appeal, Stephanie argues that considering Donald’s history of working at two jobs and all the overtime he could get to support his family, the trial court erred in failing to determine that he was voluntarily underemployed as contemplated by the statutes relating to child support for purposes of addressing his motion for modification. She further insists that the trial court abused its discretion in reducing Donald’s support obligation where the evidence is uncontradicted that Donald willfully and voluntarily reduced his ability to earn income.

Donald argues that the trial court was “able to judge for itself [his] credibility and sincerity [ ], as well as the reasonableness of his actions, and found that [he] was not voluntarily underemployed.” Elsewhere in his brief, Donald states that whether he is voluntarily underemployed is a “factual determination” which the trial court resolved in his favor.

We agree that whether a child support obligor is voluntarily underemployed is a factual question for the trial court to resolve. Certainly, the findings of a trial court cannot be disturbed by this Court if they are supported by substantial evidence. However, as we view the order from which this appeal has been taken, the trial court did not make a factual determination, but rather held, as a matter of law, that a child support obligor could not be required to work at two jobs and, for that reason alone, refused to impute to Donald any income other than his salary of R.R. Donnelley.

The statutory provisions relevant to this appeal provide as follows:

“Income” means actual gross income of the parent if employed to full capacity or potential income if unemployed or underemployed.
If a parent is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income, except that a determination of potential income shall not be made for a parent who is physically or mentally incapacitated or is caring for a very young child, age three (3) or younger, for whom the parents owe a joint legal responsibility. Potential income shall be determined based upon employment potential and probable earnings level based on the obligor’s or obligee’s recent work history, occupational qualifications, and prevailing job opportunities and earnings levels in the community. A court may find a parent to be voluntarily unemployed or underemployed without finding that the parent intended to avoid or reduce the child support obligation.
The Kentucky child support guidelines may be used by the parent, custodian, or agency substantially contributing to the support of the child as the basis for periodic updates of child support obligations and for modification of child support orders for health care. The provisions of any decree respecting child support may be modified only as to installments accruing subsequent to the filing of the motion for modification and only upon a showing of a material change in circumstances that is substantial and continuing.

The purpose of the statutes and the guidelines relating to child support is to secure the support needed by the children commensurate with the ability of the parents to meet those needs. “Both our statutory scheme and our case law demand that whenever possible the children of a marriage should be supported in such a way as to maintain the standard of living they would have enjoyed had the marriage not been dissolved.” KRS 403.212 mandates that earnings and income from all sources be considered when setting child support. While we agree that it is generally not appropriate to impute additional income to a parent already working a full 40 hour week, we disagree with the trial court’s resolution of the issue as one of law. Rather, we believe that the issue is one of fact as reflected in the following reasoning employed by the Virginia Court of Appeals when confronted with the issue:

[A]s a general rule a court should not impute to a person income from more than one job. However, this is not a rule to be applied in all cases as a matter of law. Depending upon the circumstances peculiar to each case, particularly where there is a history of a spouse having had two jobs, the trial court may find it appropriate to consider imputing to a spouse income from more than one job. The court should consider the previous history of employment, the occupational qualifications, the extent to which the parent may be under employed in the primary job, the health of the individual, the needs of the family, the rigors of the primary job and the second job, and all other circumstances.

Cochran, supra concerned the initial setting of child support. In the case sub judice, Donald was seeking a modification based on his voluntary reduction in income. It is incumbent upon the trial court, before addressing the issue in the context of the above factors, to make findings with respect to Donald’s entitlement to a modification in the first instance. Stephanie argues that a support obligor who voluntarily reduces his income is not entitled to seek modification. Certainly a parent may not “voluntarily impoverish himself in order to avoid his support obligation.” Indeed, even some involuntary changes in circumstances are not sufficient grounds for modification if the change is the result of the obligor’s voluntary action. However, in the ease sub judice, the trial court found that Donald continues to work full-time despite his voluntary reduction in hours. Thus, we are unwilling to hold, as Stephanie suggests, that Donald is not entitled to a reduction in his child support as a matter of law.

The trial court could find from the evidence that Donald quit his second job and reduced his overtime primarily to reduce his child support obligation. A “change in circumstances” contemplated by KRS 408.213(1) does not include voluntary changes made for the primary purpose to reduce the support owed. “Courts should not-and do not-view the freedom to deprive family members of support because of personal animosity or miserliness as one that deserves consideration or protection.” Thus, on remand the trial court should make explicit findings concerning the circumstances surrounding Donald’s reduction in his income. On remand, the trial court should determine whether Donald is entitled to a modification by using factors similar to those outlined in Cochran, supra.

Accordingly, the judgment is vacated and the matter is remanded for further proceedings consistent with this Opinion.

ALL CONCUR.

      . Kentucky Revised Statutes.

      . Kentucky Rules of Civil Procedure 52.01.

      .KRS 403.212(2)(a).

      . KRS 403.212(2)(d).

      . KRS 403.213(1).

      . Stewart v. Madera, Ky.App., 744 S.W.2d 437, 439 (1988).

      . Cochran v. Cochran, 14 Va.App. 827, 419 S.E.2d 419, (1992).

        . Commonwealth, ex. rel. Marshall v. Marshall, Ky.App., 15 S.W.3d 396, 401 (2000). See also Downey v. Rogers, Ky.App., 847 S.W.2d 63, 65 (1993) (support obligor’s inability both to meet his own needs and pay child support because of consumer debt is not a basis for a reduction in child support).

      . Marshall, supra (incarcerated support obli-gor held to be voluntarily unemployed despite inability to obtain employment).

      . Becker, Spousal and Child Support and the "Voluntary Reduction of Income” Doctrine, 29 Conn.L.Rev. 647, 658 (1997).

      . The test is similar to the one set forth in Barbarine v. Barbarine, Ky.App., 925 S.W.2d 831 (1996), which concerns a motion to reduce maintenance predicated upon the early retirement of the obligor.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Andrew CELLA, et al., Appellants.
    No. SC 81941.
    Supreme Court of Missouri, En Banc.
    Nov. 14, 2000.
    Rehearing Denied Dec. 12, 2000.

      Andrew J. Celia, Donald L. Young, Floyd L. Heubner, Dennis P. Logan, Roger A. Peek, Michael A. Peek, Donald R. Schaefer, Donald L. Schaefer, Rhineland, for appellants.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Theodore A. Bruce, Asst. Atty. Gen., Jefferson City, for respondent.

      . The appellants in this case are Andrew James Celia, Floyd Lee Heubner, Dennis Patrick Logan, Michael Andrew Peek, Roger Allen Peek, Donald Ray Schaefer, Donald Lee Shaffer, and Donald Lee Young.

   PER CURIAM.

On February 3, 1996, Amanda Brook Lenk received two traffic tickets. Lenk’s grandfather and another visited the judge to whom the matter was assigned. The visitors told the judge that the case should be dismissed and, if it was not dismissed, that they would proceed against him in “their court.” The case was not dismissed.

A group of individuals caused a paper labeled an “order to appear” to be served on the judge. The “order,” which had no legal effect, sought to require the judge to appear before “Our One Supreme Court,” an entity not recognized by the federal or state constitutions or statutes. The “order” informed the judge that if he did not appear, a “judgment,” which these individuals had no legal basis to impose, would be entered in the amount of $10,804,000. The judge did not appear.

Following the judge’s failure to appear, various individuals, purporting to act as a “grand jury,” prepared another “order,” also having no legal effect, that various documents be recorded with the county recorder’s office. The next day, hens were filed in the recorder’s office against the property of the judge.

The defendants were subsequently charged and convicted of the crime of tampering with a judicial officer. Section 565.084, RSMo Supp.1995. Logan was sentenced to seven years imprisonment; ah other defendants in this appeal were sentenced to four years imprisonment. Appellants raise at least thirteen points on appeal. They also filed a “petition new found [sic] evidence for reversal and dismissal with prejudice.” All of these claims are either not preserved for appellate review, are untimely, or are devoid of merit. Finding no prejudicial error, the judgments are affirmed.

Because appellants challenge the constitutionality of a statute, we have jurisdiction. Mo. Const, art. V, sec. 8.

It is fundamental that on appeal the trial court’s action is presumed to be correct, and the burden is on the appellant to establish that the action was erroneous. Linzenni v. Hoffman, 937 S.W.2d 723, 725 (Mo. banc 1997). Having the burden of demonstrating error, it is appellant’s obligation to prepare and file a transcript that incorporates the proceedings showing that the trial court erred. State v. Cleveland, 627 S.W.2d 600, 601(Mo.1982). It is appellant’s responsibility to prepare a complete record on appeal. State v. Dunn, 817 S.W.2d 241, 244 (Mo. banc 1991). The appellants filed a joint legal file and joint briefs.

The Court originally placed the case on a dismissal docket because of appellants’ failure to file a transcript. Appellants were granted time to correct the deficiency. In lieu of filing a transcript, appellants filed a petition/motion in opposition to dismissal asserting that no transcript was necessary as they presented no questions on appeal that required resort to a transcript. Consequently, appellants did not file a transcript.

Appellants first contend that the bill containing section 565.084 includes more than one subject, violating article III, sec. 23 of the state constitution. This contention was not raised in a motion for new trial filed on behalf of appellants. To preserve a constitutional question for review on appeal, it must be preserved in the motion for new trial. State v. Flynn, 519 S.W.2d 10, 12 (Mo.1975). As this question is not preserved, the appellants are not entitled to review. Appellants’ request for plain error review is declined, as the record on appeal is not sufficient to engage in such review.

Appellants’ claim that sec. 565.084 is special legislation, violating article III, sec. 40(28), also was not preserved. Moreover, there is no plain error. A “special law” is a law that includes less than all who are similarly situated. A law is not special if it applies to all of a given class alike and the classification is made on a reasonable basis. Fust v. Attorney Gen. for the State of Mo., 947 S.W.2d 424, 432 (Mo. banc 1997). The statute applies to all judicial officers. The classification is a reasonable one, seeking to assure the public that judges confine their decisions to the evidence and law applicable to a case rather than threats and intimidation.

Appellants’ claim that the statute is void for vagueness cannot be reviewed in the absence of a transcript. In reviewing vagueness challenges, the language is to be evaluated by applying it to the facts at hand. Cocktail Fortune, Inc. v. Supervisor of Liquor Control, 994 S.W.2d 955, 959 (Mo. banc 1999). Absent a transcript it is not possible to determine the “facts at hand.”

Appellants next claim that the state could not file charges against them by using an information in lieu of indictment. This issue is not preserved, as these appellants did not file a motion for new trial. No plain error occurred because the use of an information in lieu of indictment is permitted by article I, sec. 17, of the state constitution. State v. Martin, 395 S.W.2d 97, 99 (Mo.1965).

For their next claim, appellants assert that they cannot be charged as principals and convicted as accessories. As with their other claims, this claim is not preserved for appellate review. No plain error occurred. Long ago, this Court eliminated the common law distinction between principals and accessories. This was also reflected in sections 556.170 to 556.190, RSMo 1969. All persons who act together with a common intent and purpose in the commission of a crime are equally guilty. An indictment or information may charge a defendant either as a principal or as an aider and encourager with the same legal effect. It is proper to submit to the jury a theory of accomplice liability despite charging the defendant as a principal. State v. Isa, 850 S.W.2d 876, 898 (Mo. banc 1993).

Did the trial court commit plain error by permitting the case to be prosecuted by assistant attorneys general? This is appellants’ next unpreserved claim. The trial court did not commit prejudicial error.

Section 56.110 permits the appointment of a special prosecutor due to a prosecutor’s conflict of interest. State v. Fears, 803 S.W.2d 605, 610 (Mo. banc 1991). The trial court appointed the attorney general. Section 27.010 provides that assistant attorneys general shall assist the attorney general in the duties of the office and have authority under the attorney general’s direction to represent the attorney general in the discharge of all the duties of that office. Moreover, appellants fail to articulate any prejudice resulting from the appointment. See Fears, 803 S.W.2d at 610.

In connection with this claim, appellants filed a “petition,” which is treated as a motion, asserting newly “found” evidence. The evidence consists of a statement from the secretary of state’s office that the oaths of office for assistant attorneys general are not on file with the Missouri state archives. Such evidence does not constitute newly discovered evidence as it could have been discovered before trial. A necessary element to establish newly discovered evidence is that movant exercise due diligence in discovering the evidence. State v. Taylor, 589 S.W.2d 302, 305 (Mo. banc 1979). There is no apparent reason why the evidence claimed to be newly “found” could not have been discovered prior to trial. Further, that the oaths are not on file with the Missouri state archives fails to prove that the oaths do not exist. The motion is overruled.

It is difficult to ascertain appellants’ next claim of error. The point relied on states:

THE TRIAL COURT PLAINLY ERRED COMMITTED MANIFESTED INJUSTICE AND ABUSED JUDICIAL DISCRETION BY DENYING VARIOUS MOTIONS IN BAR WHICH WERE SUBMITTED AND NOTIFIED THAT TRIAL COURT THAT THE CAUSE WAS CONSTITUTIONALLY BARRED AND WAS BEGUN UPON A FRAUD COMMITTED BY UNAUTHORIZED LAWYERS AND ACCEDED TO BY THE TRIAL JUDGE.

The point clearly fails to comply with Rule 30.06(c) in that it fails to state the legal reasons for the claim of reversible error and, therefore, fails to explain why those legal reasons support the claim of reversible error. The Court declines to grant plain error review in light of the uncertainty as to the claim.

Although appellants contend that the trial judge was without jurisdiction to try the case, this Court assigned said judge by order of November 5, 1998. A certified copy of the order is contained in appellants’ legal file. The original of the order contained in this Court’s records contains the signature of the chief justice. There is no authority cited to support appellants’ contention that only a party could request a new judge upon the recusal of the judge who originally heard the case. In fact, Rule 32.10 sets out the procedure to follow when a judge disqualifies without application. That rule does not contemplate or require the participation of a party to secure the assignment of a new judge by this Court.

Appellants next allege that the trial judge was required to recuse due to his bias and prejudice. The principal basis for this claim is the judge’s refusal to conclude that the assistant attorneys general were not authorized to prosecute this case. As previously discussed, this claim is without merit; therefore, there is no basis to conclude the judge was biased and prejudiced. Moreover, a disqualifying bias and prejudice is one with an extrajudicial source that results in the judge forming an opinion on the merits based on something other than what the judge has learned from participation in the case. State v. Nicklasson, 967 S.W.2d 596, 605 (Mo. banc 1998). There is no showing of an extrajudicial source.

Appellants’ next point relied on seeks plain error review for the denial of petitions and motions and demands. The point fails to identify the petitions, motions, and demands that were erroneously denied or overruled by the trial court. The point preserves nothing for review. The argument portion of the brief refers to various motions to suppress. Even if the motions were overruled, appellants fail to file a transcript that would enable the Court to determine if the evidence sought to be suppressed was introduced into evidence over objection.

The legal file also fails to include any indication as to the relevant testimony that would be offered by various witnesses subpoenaed by appellants. The trial court quashed these subpoenas. Absent the necessary record, there is no basis to conclude that the trial court committed prejudicial error. To the extent appellants include in this point another attempt to claim the assistant attorneys general were not authorized to act, the claim is again rejected. See State v. Elgin, 391 S.W.2d 341, 343-44 (Mo.1965).

For their next claim, the appellants assert that the jury was improperly instructed with respect to the facts necessary to convict them. The brief fails to include the instructions in the argument portion of the brief as required by Rule 30.06(c). Appellants appear to contend that the instructions were flawed because they required the jury to find that a person who was not a defendant engaged in certain activities. No authority is cited for this' theory. Such a theory requires an examination of the transcript to determine the evidence that was presented. Appellants failed to file such a transcript. Without authority or a transcript, the trial court cannot be found to have committed prejudicial error.

For their final point, appellants argue that the record does not show that they were arraigned. In the record filed by appellants, one docket entry notes the formal arraignment of an unnamed defendant. That docket entry also demonstrates, however, that the arraignment was done to correct a defect in the defendant’s prior arraignment. There is no indication that the appellants were not arraigned and no indication in the record on appeal that any motion was made to the trial court alleging a failure to arraign the appellants. In these circumstances, as in several others, the trial court cannot be found to have committed prejudicial error.

PRICE, C.J., LIMBAUGH, WHITE, HOLSTEIN and WOLFF, JJ., concur.

COVINGTON and BENTON, JJ., not participating.

      . The facts contained in this opinion are taken from State v. Cella, 976 S.W.2d 543, 545-48 (Mo.App.1998), the appeal taken from the first convictions of the defendants.

      . Unless otherwise indicated, all statutory citations are to RSMo 1994.

      . It may have been helpful to the Court for the respondent to file suggestions in opposition to the "petition.”

      . It may have been helpful to the Court for the respondent to file a supplemental record on appeal setting out the fact of each defendant's arraignment.


text:
    STATE of Missouri, Plaintiff/Respondent, v. Michael WEST, Defendant/Appellant.
    No. ED 75245.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 13, 2000.
    Mary S. Choi, Asst. Public Defender, St. Louis, for appellant.
    Benicia Baker-Livorsi, Asst. Prosecuting Atty., Gwendolyn Frvidl, St. Charles, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., ROBERT G. DOWD, Jr., J. and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Defendant Michael West appeals from the judgment entered on his conviction by a jury of driving while intoxicated, in violation of Section 577.010 RSMo (1994). The trial court sentenced defendant in accordance with the jury’s recommendation to six months confinement in the county jail and imposed a fine of $200.00.

No error of law appears and no jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment is affirmed in accordance with Rule 30.25(b).


author: LAWRENCE E. MOONEY, Judge.

text:
    H & B MASONRY CO., INC., Respondent/Cross-Appellant, v. Larry DAVIS and Jeff Aubuchon d/b/a Stix & Steins, A Partnership, Respondents/Cross-Respondents, and F.F. Kirchner, Inc., Appellant/Cross Respondent.
    Nos. ED 76251, ED 76252.
    Missouri Court of Appeals, Eastern District, Southern Division.
    June 13, 2000.

      W. Dudley McCarter, Clayton, for appellant.
    Terry R. Rottler, Ste. Genevieve, Jack Davis, Park Hills, for respondents.
   LAWRENCE E. MOONEY, Judge.

F.F. Kirchner (“Kirchner”) appeals the trial court’s judgment in favor of H & B Masonry Co., Inc. (“H & B”) and Larry Davis and Jeff Aubuchon (“Davis and Au-buchon”) and against Kirchner in the amount of $10,000, arising from a contractual dispute between the parties. According to Kirchner, the trial court: (1) misapplied Missouri law in awarding damages against Kirchner in the amount of $10,000 based upon a diminution-of-value measure of damages; (2) erred in applying the diminution-of-value measure of damages despite a lack of evidence in the record as to the fair market value of the building as constructed; (3) erred in awarding prejudgment interest in that the amount of damages was disputed throughout the litigation, and H & B failed to properly plead or request prejudgment interest; (4) failed to exercise independent judgment by adopting, almost verbatim, the proposed judgment filed by Davis and Aubuchon, without providing notice to or soliciting proposed judgments from the other parties, and because the judgment entered is not otherwise supported by the evidence; and (5) erred in denying Kirchner’s motion for change of judge for cause and failing to recuse himself for cause once the case had been remanded.

H & B has filed a cross-appeal, arguing that even if this court reverses the trial court’s decision, we should either enter judgment reallocating liability between Davis and Aubuchon and Kirchner or remand the decision to the trial court for the presentation of additional evidence. We reverse and render judgment.

Facts

H & B agreed to provide Davis and Aubuchon certain labor and materials valued at $21,650 necessary to construct a billiard hall and bar and grill. H & B ordered split-faced block, which was to be used on the building’s exterior, from Kirchner. After the building was completed, Davis and Aubuchon took possession of the bar and grill, but withheld $10,000 of the agreed upon price due to a dispute over variation in the color of the concrete block used in the building’s construction.

In order to collect the withheld $10,000, H & B filed a three-count petition against Davis and Aubuchon and Kirchner. In Count I of its petition, H & B sought repayment of the $10,000 unpaid balance from Davis and Aubuchon for the labor and material provided. H & B alternatively sued Davis and Aubuchon in Count II of its lawsuit for recovery of the $10,000 under a quantum meruit or unjust enrichment theory. H & B also sought to recover against Kirchner in a separate court under a theory of implied warranty contending Kirchner’s failure to provide suitable blocks meant that Davis and Aubu-chon were not required to pay the $10,000 owed on the account.

At trial, evidence was presented from all three parties regarding the specifications of concrete block ordered by Davis and Aubuchon, which H & B purchased from Kirchner. Mr. Rottler, an H & B representative, testified that he ordered white, split-faced rock from Kirchner. He further stated that he thought Davis and Aubuchon informed him that the building was not to be painted, and that Kirchner was aware of such fact. Les Staggemeier, a Kirchner sales representative, testified that H & B ordered split-faced gray concrete blocks, which could be stained or painted. Moreover, both Mr. Davis and Mr. Aubuchon testified that they wanted the bricks to be uniform in color because he had no intention of painting or staining the bricks.

Evidence was also adduced at trial regarding the estimated cost to repair the discolored bricks. Mr. Rottler testified that he had received a bid of approximately $2,400 to stain the building. Moreover, both Mr. Rottler and Mr. Staggemeier testified that such staining would be a reasonable and appropriate corrective measure to remedy brick discoloration. Mr. Davis and Mr. Aubuchon both testified that they did not want their building to look like the other buildings in the commercial mall area, which appeared to be painted concrete-block buildings. Therefore, Mr. Davis stated that they deducted $10,000 from the project’s total cost, which they felt was a fair deduction for the discolored bricks.

The trial court, without a jury, heard the case on October 30, 1997. A proposed judgment, submitted by counsel for Davis and Aubuchon, was adopted by the trial court and a judgment was entered on January 9, 1998. Kirchner appealed, but the appeal was dismissed and the case remanded to the trial court pursuant to H & B’s motion for remand given that the judgment was void under section 511.111.2 RSMo. (1994) as it was entered more than thirty days after the matter was tried and submitted to the trial court.

On remand, Kirchner filed a motion for change of judge for cause or for the judge to recuse himself. The trial court denied this motion as well as Kirchner’s subsequent requests for leave to file memoranda of law and proposed judgments, and findings of fact and conclusions of law. H & B filed its proposed judgment on April 27, 1999, which was adopted by the court sometime after being submitted, yet was dated April 15, 1999. This judgment was in favor of H & B and against Kirchner in the amount of $10,000. However, the trial court was notified that it had predated the judgment, and a new judgment was entered on May 5, 1999, but with a date of April 27, 1999. This revised judgment again awarded H & B $10,000, but assessed $5,000 in damages against Kirchner and $5,000 against Davis and Aubuchon. Again, the trial court was notified of the discrepancies between the judgments, and thus entered another judgment in favor of H & B on May 5, 1999, assessing the entire $10,000 judgment against Kirchner alone and awarding prejudgment interest on this amount. Kirchner filed this timely appeal, while H & B filed its timely cross-appeal.

Analysis

We review the trial court’s judgment pursuant to Murphy v. Carrón, and accordingly will affirm the judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously applies the law. 536 S.W.2d 30, 32 (Mo. banc 1976). With this standard in mind, we turn to Kirchner’s allegations of error.

Points I and II: Correct Measure of Damages

Kirchner’s first and second allegations of error contend that the trial court misapplied Missouri law by applying a diminution-in-value measure of damage rather than the preferred cost-to-repair measure of damage, especially where there was substantial credible evidence that the cost-to-repair was significantly less than $10,000 and no evidence was adduced as to the fair market value of the building as constructed. We will address both arguments simultaneously, as both stem from the damages award.

The proper measure of damages is a question of law for determination by the trial court. Gee v. Payne, 939 S.W.2d 383, 385 (Mo.App. W.D.1997). Questions of law are matters reserved for de novo review by the appellate court, and we therefore give no deference to the trial court’s judgment in such matters. Boillot v. Conyer, 861 S.W.2d 152, 155 (Mo.App. E.D.1993).

In cases involving breach of implied warranty, the theory on which H & B sued Kirchner in Count III of its petition, the court is to apply the lower of the cost-to-repair or diminution-in-value in assessing the amount of damages. Crawford v. Whittaker Const., Inc., 772 S.W.2d 819, 822 (Mo.App. E.D.1989); Schulze v. C & H Builders, 761 S.W.2d 219, 223 (Mo.App. E.D.1988). According to the cost rule, damages are measured by the cost-to-repair the defective work, while the “diminished value rule” measures the difference between the property’s value with the defective work and what its value would have been if constructed according to the agreed upon terms. Schulze, 761 S.W.2d at 223.

Here, it appears that the trial court applied the diminution-in-value measure of damages in its May 5, 1999 judgment by requiring Defendant Kirchner to pay Plaintiff $10,000 as a result of the nonconformity of the materials Kirchner provided to Plaintiff. However, the record reveals that the cost-to-repair the discolored bricks would be only $2,400, obviously much less than the $10,000 “diminished value” damages assessed by the trial judge. Mr. Rottler, Mr. Davis, Mr. Aubu-chon, and Mr. Staggemeier all testified that the building could have been painted or stained, and Mr. Rottler and Mr. Stag-gemeier stated that such paintings or staining would cure the discoloration of the bricks. Further, Mr. Rottler, a Kirchner representative, testified that he received a repair estimate of $2,400 for staining the building, an amount substantially less than the $10,000 diminution-in-value award against Kirchner.

Moreover, the $10,000 damages award solely against Kirchner is not supported by substantial evidence, as the only testimony presented in support of the $10,000 award, that of Mr. Davis and Mr. Aubuchon, must be rejected. Although we recognize that an owner of real estate may testify regarding his opinion of its value because an owner is presumed to be familiar with the property and its uses, this presumption is overcome and evidence of his opinion of the value of the property should be rejected where the record shows that the owner does not have specialized knowledge regarding the real estate. Lustig v. U.M.C. Industries, Inc., 637 S.W.2d 55, 61 (Mo.App. E.D.1982) (owner of leased factory building and parking area was allowed to testify to the value of the leased property in statutory waste case).

Here, the evidence presented in support of the $10,000 award consists solely of Mr. Davis’s testimony that, “[W]e felt [$10,000] was a value that our building has been decreased by because of the looks of the building ... We came up with a figure of $10,000. That’s what we feel like.” However, he admits that he did not compare the building with any others when arriving at the $10,000 figure, and had no appraisal done to support his contention that the discolored bricks devalued the property. Mr. Aubuchon further testified that he had no idea what the building was worth at the time of trial, because he “was not into real estate” but more involved with running the business. This evidence presented by Davis and Aubuchon as to their opinion of the property’s decreased value must be rejected, given that they had no specialized knowledge regarding their real estate.

Therefore, the trial court’s award to H & B and solely against Kirchner in the withheld amount of $10,000 is not supported by substantial evidence. In fact, the only evidence in the record was that the cost-to-repair the building would be $2,400, and therefore the trial court erred in failing to award H & B damages in the amount of $2,400, the lesser of the cost-to-repair and diminution-in-value.

Point III: Prejudgment Interest

Kirchner further contends that the trial court erred in awarding H & B prejudgment interest, because the proper amount of damages was disputed throughout the litigation and H <& B failed to properly plead or request prejudgment interest in its pleadings or at any time during or after trial. We agree, and reverse the trial court’s award of prejudgment interest given that the measure of damages was uncertain.

Section 408.020, the statute regarding prejudgment interest, states as follows:

Creditors shall be allowed to receive interest at the rate of nine percent per annum, when no other rate is agreed upon, for all moneys after they become due and payable, on written contracts, and on accounts after they become due and demand of payment is made; for money recovered for the use of another, and retained without the owner’s knowledge of the receipt, and for all other money due or to become due for the forbearance of payment whereof an express promise to pay interest has been made.

Under the statute, prejudgment interest is “awarded whenever the amount due is liquidated or, if not strictly liquidated, readily ascertainable by reference to recognized standards.” St. John’s Bank & Trust Co. v. Intag, Inc., 938 S.W.2d 627, 630 (Mo.App. E.D.1997), quoting Dierker Assocs., D.C., P.C. v. Gillis, 859 S.W.2d 737, 746 (Mo.App. E.D.1993). Further, prejudgment interest is not awarded where the amount of damages is unclear. Fohn v. Title Ins. Corp., 529 S.W.2d 1, 5 (Mo. banc 1975).

Here, the amount of damages was unliquidated given that all parties hotly disputed the correct amount of damages; therefore, H & B was not entitled to prejudgment interest. Thus, we reverse the trial court’s award of prejudgment interest.

Points TV and V: Trial Court’s Failure to Exercise Independent Judgment and Recuse Himself

Kirchner raises two additional points on appeal, alleging that the trial court erred in failing to exercise independent judgment by adopting, without notice to Kirchner, the proposed judgments filed by Davis and Aubuchon and H <& B Masonry, and in denying Kirchner’s motion for change of judge for cause and for failing to recuse himself. We need not address these issues, given our decision to reverse the trial court’s judgment on other grounds.

Cross-Appeal by H & B Masonry

H & B files a cross-appeal, asking that in the event the trial court’s decision is reversed, our court should either reallocate liability and enter judgment accordingly or remand to the trial court in order for additional evidence to be presented.

At the outset, we note that H & B’s Point Relied On fails to comply with the Rule 84.04(d), which requires an appellant to state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous, which with citations of authorities thereunder. We, nonetheless, prefer to decide the issue on its merits and review the appeal ex gratia. See Ward v. State Farm Life Ins. Co., 833 S.W.2d 484, 487 (Mo.App. E.D. 1992); Wilkerson v. Prelutsky, 943 S.W.2d 643, 647 (Mo. banc 1997).

Rule 84.14 states in pertinent part that an “appellate court shall award a new trial or partial new trial, reverse or affirm the judgment or order of the court, or give such judgment as the court ought to give. Unless justice otherwise requires, the court shall dispose finally of the case.” Based upon our finding above, that the trial court’s judgment against Kirchner should have been entered in the amount of $2,400, we conclude that Davis and Aubu-chon are responsible for the remaining $7,600 they withheld in payment to H & B. See Adams v. Orkin Exterminating Co., 763 S.W.2d 318, 320 (Mo.App. E.D.1988). Judgment is accordingly entered for H & B in the amount of $10,000, and against Kirchner for $2,400 and Davis and Aubu-chon for $7,600.

We reverse and render judgment.

RICHARD B. TEITELMAN, P.J., and SHERRI B. SULLIVAN, J., concur.

      . All further statutory references are to RSMo. (1994) unless otherwise indicated.

      . We note that although Mr. Staggemeier testified that a bid of $1,020 was given for staining the building, such testimony was not substantively admitted into evidence by the trial court, but was merely allowed for the purpose of impeaching the testimony of Mr. Rottler.

      . We need not address whether H & B properly requested that prejudgment interest be awarded given that we reverse for other reasons.


author: KATHIANNE KNAUP CRANE, Presiding Judge.

text:
    Kenneth KALB, Petitioner/Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Respondent/Appellant.
    No. ED 76234.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 13, 2000.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, for appellant.
    No brief filed for respondent.
   KATHIANNE KNAUP CRANE, Presiding Judge.

The Director of Revenue (Director) appeals from the circuit court judgment reinstating the driving privileges of the petitioner, Kenneth Kalb, pursuant to Section 303.290.2 RSMo (1994). Director contends that because petitioner did not file his petition for review in the trial court within the statutorily required 30-day period, the trial court lacked subject matter jurisdiction and the trial court’s decision should be reversed.

On July 27, 1998, Director held a hearing to determine if petitioner’s driving privileges should be suspended for failing to maintain financial responsibility pursuant to Section 303.025 RSMo (Cum.Supp. 1997). On August 17, 1998, Director notified petitioner by certified mail that his driving privileges would be suspended for 60 days and notified petitioner that he had thirty days “after notice is given” of the final decision pursuant to Section 303.290.2 in which to file a petition for review of the decision in the trial court. On September 18, 1998, 32 days after notice of the suspension was mailed, petitioner filed his petition for review in the trial court. Director moved to dismiss for lack of subject matter jurisdiction. The trial court heard the matter and reversed Director’s decision on the grounds it was unreasonable. On appeal Director contends that the trial court erred in setting aside the license suspension because the trial court did not have subject matter jurisdiction as required by Section 303.290.2.

On appeal, we review the decision of the trial court, not of the director. Altman v. Director of Revenue, 926 S.W.2d 705, 706 (Mo.App.1996). The decision of the trial court will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id.; Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

For Director’s sole point, he contends that the trial court erred in setting aside the petitioner’s revocation because the trial court did not have subject matter jurisdiction, pursuant to Section 303.290.2, due to petitioner’s failure to file his petition for review of the administrative decision within the statutorily prescribed 30-day period.

Section 303.290.2 RSMo (1994), states in relevant part, that:

[a]ny decision, finding or order of the director ... shall be subject to review by appeal to the circuit court of the county of the residence of the licensee, at the instance of any party in interest ... at any time within thirty days after notice is given the licensee of such decision, finding or order.

Section 303.290.2 (emphasis added).

The date notice is given is the date of mailing of the administrative decision. Gilbert v. Director of Revenue, 974 S.W.2d 655, 656 (Mo.App.1998). Rule 44.01(e), which provides petitioner with an additional three days after mailing to file his petition, does not apply to administrative decisions. Benbrook v. Director of Revenue, 873 S.W.2d 688, 689 (Mo.App.1994). The phrase “within thirty days” has been interpreted to mean that the appeal must be filed on or before the thirtieth day. Franklin v. Director of Revenue, 909 S.W.2d 759, 761 (Mo.App.1995). Failure to timely file the petition for review deprives the trial court of subject matter jurisdiction. Gilbert, 974 S.W.2d at 656. Without subject matter jurisdiction, any action taken by the trial court is null and void. Benbrook, 873 S.W.2d at 689.

Here, Director gave notice on August 17, 1998 when he sent petitioner the letter notifying him of the suspension. The thirtieth, and thus final day, on which to file the petition for review was September 16, 1998. Petitioner untimely filed his petition in the trial court on September 18, 1998, thirty-two days after he received notice of the suspension. Because petitioner did not file his petition for review within the 30-day time period, the trial court lacked subject matter jurisdiction and its decision reversing the director’s suspension is null and void. Point one is granted.

The trial court’s judgment is reversed and the case is remanded with instructions to the trial court to dismiss the petition.

ROBERT G. DOWD, Jr., J. and SHERRI B. SULLIVAN, J. concur.


text:
    STATE of Missouri, Plaintiff/Respondent, v. Jody A. JONES, Defendant/Appellant.
    No. ED 76719.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 13, 2000.

      Amy M. Bartholow, Asst. Public Defender, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Gregory L. Barnes, Asst. Atty. Gen., Jefferson City, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., ROBERT G. DOWD, Jr., J, and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Defendant Jody A. Jones appeals from the judgment entered on his conviction by a jury of stealing, in violation of Section 570.030 RSMo (Cum.Supp.1998). The trial court found he was a prior and persistent offender and sentenced him to five years imprisonment.

No error of law appears and no jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment is affirmed in accordance with Rule 30.25(b).


text:
    STATE of Missouri, Plaintiff/Respondent, v. Charles EULENTROP, Defendant/Appellant.
    Nos. ED 76671, ED 76748.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 13, 2000.
    Irene Earns, Asst. Public Defender, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Catherine Chatman, Asst. Atty. Gen., Jefferson City, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., ROBERT G. DOWD, Jr., J. and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Defendant Charles Eulentrop appeals from the judgment entered on his conviction by a jury of assault in the second degree, in violation of Section 565.060 RSMo (1994) and armed criminal action, in violation of Section 571.015 RSMo (1994). The trial court found that he was a prior offender and sentenced him to consecutive terms of six and three years, respectively.

No error of law appears and no jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment is affirmed in accordance with Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Lisa L. PARTEE, Appellant.
    No. ED 76292.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 3, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 9, 2000.

      Frank A. Anzalone, St. Louis, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Susan K Glass, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
    Before GARY M. GAERTNER, P.J., LAWRENCE G. CRAHAN, J., and GEORGE W. DRAPER, III, J.
   ORDER

PER CURIAM.

Lisa Partee (hereinafter, “Appellant”) appeals the judgment entered upon her convictions of voluntary manslaughter and armed criminal action. Appellant challenges the admission of a tape recorded statement by the victim and the testimony of a police officer as hearsay, claiming that the admission of this evidence resulted in prejudicial error. We have reviewed the briefs of the parties, the legal file, and the transcripts and find no error.

An opinion reciting the detailed facts and restating the principles of law would have no precedential value. We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision.

The judgment is affirmed. Rule 84.16(b).


author: DRAPER, Judge.

text:
    Richard MERTZ, Appellant, v. BLOCKBUSTER, INC., Respondent.
    No. ED 76962.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 10, 2000.
    Rehearing Denied Nov. 9, 2000.

      Irwin M. Roitman, St. Louis, for appellant.
    Michael M. Godsy, St. Louis, for respondent.
   OPINION

DRAPER, Judge.

Richard Mertz (hereinafter, “Mertz”) appeals the judgment in conversion based on his unauthorized possession of Blockbuster Inc.’s (hereinafter, “Blockbuster”) video tapes and games. Following a jury trial, judgment was entered pursuant to a verdict for actual damages of $6,120 and punitive damages of $5,000. We affirm.

In July 1998, a Blockbuster store manager contacted Officer Keith Weber (hereinafter, “Officer Weber”) of the Saint Louis County Police Department requesting assistance in investigating three suspicious applications received by his store. Blockbuster granted these applicants temporary memberships with rental privileges. After being granted their temporary memberships, the applicants rented multiple copies of the same video tapes and games. When the rental period expired for these items, the applicants failed to return the merchandise. Blockbuster personnel attempted to contact the applicants to alert them to the expired rental period, but their attempts failed due to the invalid addresses and phone numbers registered by the applicants.

The Blockbuster manager recognized a pattern whereby applications were falsified, large quantities of merchandise rented, and nothing was ever returned to the store. The Blockbuster manager placed these accounts on hold and alerted other stores in the Saint Louis area via their computer network.

After the regional alert, an applicant at another Blockbuster store used a similar false name in filling out his application. The applicant was denied temporary membership and rental privileges. As the applicant left the store, the Blockbuster employee obtained the license plate number from his car. Officer Weber instigated a registration inquiry on the license plate number and discovered the car was registered to a Missouri resident named Terry Black (hereinafter, “Black”), and he issued a nationwide alert via REJIS for the vehicle.

Subsequently, Black was stopped for a traffic violation in Kentucky. When his license plate number appeared on the nationwide alert, police impounded the car and the merchandise in the trunk. Officer Weber was contacted, and the Kentucky police sent him the impounded merchandise.

Officer Weber returned to the Blockbuster store with the impounded merchandise to determine whether it belonged to Blockbuster. Officer Weber and the Blockbuster managers used a store scanner to determine that each of the boxes of impounded merchandise contained Blockbuster property. Black subsequently contacted Officer Weber from Kentucky requesting return of the impounded merchandise. Black informed Officer Weber that the merchandise was on consignment from Mertz, and he was attempting to sell it. Mertz in fact claimed he owned the merchandise when he called Officer Weber to attempt retrieval of the video tapes and games.

Mertz owns a business dealing in the purchase, sale, and trade of used video tapes, video games, music CDs, and music cassettes. Black is a friend of Mertz. Additionally, Mertz employed Black for business. On at least one prior occasion, Black drove a car of merchandise to Kentucky to sell at a flea market for Mertz.

Based upon information given to Officer Weber by Black that the merchandise came from Mertz’s store, Officer Weber, on October 2, 1998, investigated Mertz’s business. Two Blockbuster managers accompanied Officer Weber and brought a list of the merchandise which had been appropriated from Blockbuster by falsified applications. Upon arriving at Mertz’s store, all three were able to view merchandise bearing Blockbuster labels from the front window while standing outside of the store.

Officer Weber contacted Mertz. Once Mertz arrived, Officer Weber explained he suspected there was stolen property in the store and read Mertz his Miranda rights. Mertz stated he understood his rights and consented to a search of his store. Before entering the store, Mertz commented to Officer Weber that “all businesses have ... purchased stolen merchandise and that all businesses have stolen merchandise in them.” Upon a detailed search of the store, there were over 100 video games identified and seized.

Mertz filed suit in replevin; Blockbuster counter-claimed in conversion. Following presentation of the evidence and arguments, the case was submitted to the jury. The jury returned its verdict finding for Blockbuster on its counterclaim and against Mertz on his suit in replevin. The jury awarded Blockbuster $6,120 in actual damages and $5,000 in punitive damages. The trial court denied Mertz’s motion for judgment notwithstanding the verdict (hereinafter, “JNOV”) and new trial. Mertz appeals.

Mertz alleges that the trial court erred in its denial of his motion for directed verdict, and his JNOV motion and motion for new trial. In regard to the denial of Mertz’s motion for directed verdict, Mertz fails to state why the trial court erred in its denial and what evidence was before the court supporting the correct ruling; accordingly, we do not review this allegation. See J.A.D. v. F.J.D., 978 S.W.2d 336, 338 (Mo. banc 1998). However, in the same point relied on, Mertz alleges that the trial court improperly denied his JNOV motion in that each of the “three proofs” to sustain a conversion claim by Blockbuster were unsupported by a preponderance of evidence.

In order to recover under a theory of conversion, Blockbuster must show that it had the right to possession of the converted property at the time of the alleged conversion. Simul Vision Cable Systems Partnership v. Continental Cablevision of St. Louis County, Inc., 983 S.W.2d 600, 603 (Mo.App. E.D.1999). Conversion is the “unauthorized assumption of the right of ownership over the personal property of another to the exclusion of the owner’s rights.” Colton, McMichael, Lester, Auman, Visnovske, Inc. v. Mueller, 896 S.W.2d 741, 742 (Mo.App. E.D.1995). It is a tort against the right of possession rather than against the right of title. Auto Alarm Supply Corp. v. Lou Fusz Motor Co., 986 S.W.2d 467, 468 (Mo.App. E.D.1998). A conversion claim may be proved by showing: (1) a tortious taking; (2) any use or appropriation to the use of the person in possession, indicating a claim of right in opposition to the rights of the owner; or (3) a refusal to give up possession to the owner on demand. Id. (Emphasis added.) It is possible to infer intent to convert from the facts and circumstances of the situation. Ware v. McDaniel, 899 S.W.2d 170, 173 (Mo.App. W.D.1995).

A motion for JNOV challenges the submissibility of the plaintiffs case. Allstates Transworld Vanlines, Inc. v. Southwestern Bell Telephone Co., 937 S.W.2d 314, 316 (Mo.App. E.D.1996). In review of the denial of a JNOV motion, this Court accepts the evidence and reasonable inferences favorable to the verdict and disregards all contrary evidence and inferences. Quinn v. Lenau, 996 S.W.2d 564, 567 (Mo.App. E.D.1999). To establish its conversion claim, Blockbuster must prove: (1) it was the owner of the property or entitled to possession of it; (2) Mertz took possession of the property with the intent to exercise some control over it; and (3) Mertz, thereby, deprived Blockbuster of the right to possession of the property. MAI 23.12(1) (1989).

Here, Blockbuster presented evidence establishing that it owned the video tapes and games. Blockbuster attaches semi-permanent labels to its merchandise prior to renting to its members. At trial, a Blockbuster manager testified that Blockbuster does sell used video tapes to the public without removing the affixed Blockbuster label. However, Blockbuster never offered the seized video games for sale prior to October 2, 1998. All of the video tapes and games seized from Mertz’s store carried the attached Blockbuster label. It is reasonable for the jury to infer that Blockbuster was the owner or entitled to possession of the video games.

Mertz is in the business of selling used video tapes and games he stocked in his store. His inventory included Blockbuster property. It is apparent that Mertz attempted to sell Blockbuster’s property for his own financial gain. Further, by offering Blockbuster property for sale, Mertz exercised exclusive control over it. He attempted to deprive Blockbuster of its possessory rights.

Additionally, Blockbuster presented evidence as to the average length of time the video tapes and games were not available for rental and the average revenue which Blockbuster would have received for those rentals. There is no objection in the transcript from Mertz as to the introduction of this testimony.

Blockbuster made a submissible conversion claim. The cause was properly submitted to the jury, and the trial court properly denied Mertz’s JNOV motion. The judgment of the trial court is affirmed.

GARY M. GAERTNER, P.J., and CRAHAN, J., concur.

      . REJIS a data processing center for govem-mental agencies in the Saint Louis area. The acronym stands for Regional Justice Information Service. See www.rejis.org

      . We remind attorneys when drafting their points relied on to review the dictates of Thummel v. King, 570 S.W.2d 679 (Mo. banc 1978). Rule 84.04(d)