author: Justice SCHRODER.

text:
    James H. BARNETT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2008-SC-000615-MR.
    Supreme Court of Kentucky.
    May 20, 2010.
    Rehearing Denied Aug. 26, 2010.

      Kathleen Kallaher Schmidt, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.
    Jack Conway, Attorney General, Jason Bradley Moore, Assistant Attorney General, Office of Criminal Appeals, Attorney General’s Office, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by

Justice SCHRODER.

Appellant James Barnett appeals as a matter of right from a judgment convicting him of wanton murder and theft. Finding no reversible error, we affirm Appellant’s conviction. We also clarify that under our criminal rules, jurors must be permitted to use their notes during deliberations.

BACKGROUND

On the morning of June 13, 2007, Jamie Townsend saw Appellant driving erratically at a high rate of speed in Clay City, Kentucky. Appellant squealed his tires and pulled into a parking lot where Townsend’s daughter was riding her bicycle. Witnesses saw Appellant drinking something from a bottle. Appellant later admitted to using Xanax, cocaine, and possibly Percocet and methadone that morning.

After witnessing Appellant’s erratic driving, Townsend called 911, and Clay City Police Chief Randy Lacy responded. Chief Lacy arrested Appellant on suspicion of DUI, handcuffing him with his arms in front of his body. Witnesses testified that Appellant and Chief Lacy knew each other, and that Appellant was cooperative. Chief Lacy placed Appellant in the back of his police cruiser, and then went to speak to Townsend and take photographs of the tire marks Appellant left in the parking lot. At some point while Appellant was alone in the police cruiser, he reached through an open partition and took a handgun from the front seat.

While Chief Lacy was driving Appellant to the Powell County Jail in Stanton, Appellant fired a shot from Chief Lacy’s gun. The bullet passed through the partition and struck Chief Lacy in the head, killing him. The cruiser went out of control and •wrecked. Appellant kicked out the back window of the cruiser, but was stopped by witnesses as he left the scene.

Appellant did not deny the underlying facts; his defense was based on intoxication and mental health issues. The Commonwealth sought the death penalty based on the aggravating circumstance of Chief Lacy being a police officer. Due to pretrial publicity and the fact that Chief Lacy was a well-known and respected member of the community, the Powell Circuit Court granted a change of venue to Montgomery County.

After a jury trial, Appellant was found guilty of wanton murder and theft. The jury found Appellant not guilty of escape and intentional murder. After his conviction, Appellant agreed to a sentence of life imprisonment without the possibility of parole for 20 years, to run concurrently with a sentence of 3 years’ imprisonment for the theft. He appeals to this Court as a matter of right, and raises a number of issues related to his trial.

ANALYSIS

I. The Jurors Were Properly Permitted To Use Their Notes, And The Trial Court Did Not Abuse Its Discretion Regarding Review of Trial Testimony

Appellant argues that the trial court erred in allowing the jurors to use their notes in deliberations, and in not allowing jurors to review trial testimony. When the jury retired to begin deliberations, the trial court informed the jurors that they would not be permitted to take their notes with them to the jury room. After approximately four hours, the jury returned and the foreperson requested that the jury be allowed to review the first day of trial testimony. The jury had a number of specific, factual questions, and according to the foreperson, different jurors had different questions. The foreperson also stated, “Our notes would help us out a lot.”

During a bench conference, both the Commonwealth and defense counsel objected to the jurors being permitted to take their notes into the jury room. Both parties suggested that the jury must be allowed to review any testimony it wished. After considering the issue, realizing the number of specific questions the jury had, and reviewing the law, the trial court permitted the jurors to use their notes in deliberations. This was done over the objection of both parties. The court also gave the jurors the admonition regarding notes from RCr 9.72. The court did not permit the jury to review the trial testimony, but stated that it could review specific portions if there were further questions.

The trial judge expressed confusion about whether jurors are permitted to take their notes into the jury room during deliberations. This confusion was understandable, given the current state of the law. RCr 9.72 states:

Upon retiring for deliberation the jury may take all papers and other things received as evidence in the case. The jurors shall be permitted to take into the jury room during their deliberations any notes they may have made during the course of the trial, but upon request of either party the jury shall be admonished that the notes made by jurors shall not be given any more weight in deliberation than the memory of other jurors.

(Emphasis added).

However, this Court stated in Harper v. Commonwealth:

The trial court allowed jurors to take notes for their own use but advised the jury that the notes could not be used to influence other jurors and did not permit the jurors to take the notes into the jury room. We are of the opinion this procedure by the trial judge was proper.

694 S.W.2d 665, 669-70 (Ky.1985). The Court in Harper did not make any reference to RCr 9.72, which was amended to its current form in 1981. And no published case since Harper has discussed RCr 9.72’s requirement that jurors be permitted to take their notes into the jury room. We see no way to reconcile Harper with the plain language of RCr 9.72, which is mandatory in permitting jurors to use their notes during deliberations. Therefore, Harper is overruled to the extent that it conflicts with the plain wording of RCr 9.72.

RCr 9.72 clearly states that jurors are permitted to take their notes into the jury room during deliberations. Upon request of either party, the court is to admonish the jurors that their notes are not to be given any more weight than the memories of other jurors. Id. The trial court gave this admonition. While the trial court initially erred in not permitting the jurors to use their notes, it later corrected this error.

Whether to allow the jury to have testimony replayed during deliberations is within the sound discretion of the trial judge. Baze v. Commonwealth, 965 S.W.2d 817, 825 (Ky.1997). See also Thompson v. Commonwealth, 147 S.W.3d 22, 35 (Ky.2004); Harris v. Commonwealth, 134 S.W.3d 603, 610 (Ky.2004). After the trial court permitted the jurors to use their notes, there were no further questions about the evidence, and no further requests to review trial testimony. The court also made it clear that it would allow review of specific trial testimony if the jury requested it. Under these circumstances, the trial court did not abuse its discretion in refusing to allow the jury to review an entire day of trial testimony.

II. The Trial Court Did Not Abuse Its Discretion In Denying Funds For Additional Expert Witnesses

Appellant had an extensive history of substance abuse and mental health issues. On October 12, 2007, the trial court entered an order authorizing defense counsel to employ Dr. Bobby Miller “as a mental health expert for evaluation of the defendant and for the preparation and presentation of the defense as they, in good faith, believe necessary to render effective assistance of counsel.” The order also authorized the payment of reasonable fees to Dr. Miller.

Dr. Miller’s curriculum vitae was made part of the record. He is a board certified psychiatrist and forensic psychiatrist, who is also board eligible in neurology. He is licensed to practice medicine in West Virginia, Kentucky, and Pennsylvania. His clinical specialties include psychopharma-cology and neuropsychiatry. At the time of trial, he was in private practice in Huntington, West Virginia. Among other previous positions, Dr. Miller had served as an assistant professor of neurology at West Virginia University School of Medicine.

Dr. Miller was paid for his services, and apparently evaluated Appellant in November 2007. However, defense counsel did not submit any report by Dr. Miller, and did not call Dr. Miller as a witness at trial. At a November 12, 2007 hearing, defense counsel stated that its expert (Dr. Miller) was evaluating Appellant. The Commonwealth stated that, following that evaluation, it would likely request that Appellant be evaluated at the Kentucky Correctional Psychiatric Center (KCPC). As a result of this anticipated delay by the Commonwealth and the defense, the court continued the January trial date.

On January 23, 2008, the defense gave notice that it would rely on a mental health defense. In response, the Commonwealth requested that Appellant be evaluated at KCPC. The trial court entered an order on February 4, 2008 that Appellant be evaluated by KCPC “to determine the Defendant’s mental status at the time of the alleged offense, as well as, the present mental state of the Defendant.”

KCPC staff psychiatrist Dr. Amy Trivette, as well as other KCPC staff, evaluated Appellant with respect to his competency to stand trial and his criminal responsibility. Dr. Trivette submitted a report to the court dated April 1, 2008. In her report, she detailed Appellant’s extensive history of psychiatric hospitalization and substance abuse. Dr. Trivette concluded that Appellant was competent to stand trial, and that he could appreciate the criminality of his actions and had the ability to conform his conduct to the requirements of law. Because Appellant reported prior seizures and head trauma, physicians at KCPC ordered an EEG and a head CT. The head CT revealed “mild to moderate su-pratentorial with mild vermian atrophy possibly associated with chronic alcohol abuse and/or malnutrition.” Defense counsel received a copy of the KCPC report on June 16, 2008.

At a June 18, 2008 pretrial conference, defense counsel made a motion for a competency hearing. The Commonwealth then requested that Appellant turn over any reports by Dr. Miller. Defense counsel responded that it had not yet decided whether Dr. Miller would be called as a witness, and expressed the possibility of using Dr. Trivette’s report and testimony instead.

On July 2, 2008, the court held a hearing to determine Appellant’s competency to stand trial, and to address Appellant’s motion to exclude the death penalty due to mental retardation. Dr. Trivette was the sole witness at the July 2 hearing. Following her testimony, the trial court ruled that Appellant was competent to stand trial, but reserved ruling on the motion to exclude the death penalty pending further testimony scheduled for July 7.

Following the July 7 hearing, defense counsel filed a motion for funds for two expert witnesses, and for a continuance to allow these experts to be retained. Appellant sought two additional experts: Dr. James Walker, a neuropsychologist, to “help explain the results of the CT scan, EEG tests, and an independent interpretation of the other KCPC tests”; and Dr. Robert Smith, a clinical psychologist and addiction specialist, to “provide testimony as to the effect of intoxicants on [Appellant] at the time of arrest” and to “give further insight following a complete neu-ropsychological examination as to how intoxicants would specifically affect [Appellant].”

The trial court was reluctant to grant a continuance one day before the trial was scheduled to begin. The court also expressed the opinion that Dr. Miller, as a medical doctor, could offer testimony on the results of the CT scan and the effect of drugs on the body. The trial court ultimately denied Appellant’s motions, which Appellant argues was error.

In determining whether an indigent defendant is entitled to funding for an expert witness under KRS 31.110(l)(b), a trial court must consider “1) whether the request has been pleaded with requisite specificity; and 2) whether funding for the particularized assistance is “reasonably necessary”; 3) while weighing relevant due process considerations.” Benjamin v. Commonwealth, 266 S.W.3d 775, 789 (Ky.2008). “Upon review, however, this Court’s analysis is limited to whether the trial court has abused its discretion.” Id. (citing Davenport v. Commonwealth, 177 S.W.3d 763, 773 (Ky.2005), and Dillingham v. Commonwealth, 995 S.W.2d 377, 381 (Ky.1999)).

Dr. Miller, the expert who had already been provided for the defense, was a board certified psychiatrist with specialties in psychopharmacology and neuropsychiatry. The two additional experts requested by Appellant were psychologists — not medical doctors like Dr. Miller. It seems highly unlikely that a psychologist would be more qualified to interpret EEG and CT scan results than Dr. Miller, a medical doctor with a specialty in neuropsychiatry (who had previously served as an assistant professor of neurology and was board eligible in neurology).

We also agree with the trial court that Dr. Miller, as a doctor authorized to prescribe medication, would be perfectly qualified to testify as an expert witness regarding drugs and their effect on the body. This is particularly true given Dr. Miller’s specialization in psychopharmacology. In light of Dr. Miller’s qualifications, the trial court did not abuse its discretion in concluding that additional experts were not reasonably necessary.

Nor was there a violation of Appellant’s due process rights. Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), “provides that when the mental state of a defendant is seriously in question, due process requires a state to provide access to a competent psychiatrist to assist in evaluation, preparation and presentation of the defense.” Crawford v. Commonwealth, 824 S.W.2d 847, 850 (Ky.1992) (internal quotations and citations omitted). However, a defendant is not entitled to additional funds to hire additional experts simply because he is unhappy with the initial expert’s conclusions. Id.

Dr. Miller never filed a report with the court, nor did he testify at trial. We can only assume that Appellant was not satisfied with Dr. Miller’s conclusions. This does not mean that Appellant’s due process rights were violated when the trial court refused to provide him with additional experts. “[AJppellant was afforded the constitutionally and statutorily required expert assistance and, as such, the trial court’s refusal to provide additional examinations or funds did not violate his due process rights.” Id. (citing Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985)).

The trial court did not abuse its discretion in refusing to grant funds for additional experts. As this was the reason Appellant requested a continuance, Appellant’s arguments regarding the denial of the continuance are moot.

III. The Trial Court Did Not Err In Finding Appellant Competent To Stand Trial, And Any Error Related To The Production Of Testing Data Was Harmless

Appellant argues that the trial court erred in finding him competent to stand trial, and in failing to order KCPC raw testing data to be turned over prior to the competency hearing. The test for a defendant’s competency to stand trial is “whether he has substantial capacity to comprehend the nature and consequences of the proceeding pending against him and to participate rationally in his defense.” Commonwealth v. Griffin, 622 S.W.2d 214, 217 (Ky.1981). See also Commonwealth v. Wooten, 269 S.W.3d 857, 865 (Ky.2008); RCr 8.06; KRS 504.100.

After Appellant was evaluated by KCPC, defense counsel filed a motion for discovery of KCPC test materials and results on June 26, 2008. On July 2, 2008, the court held a hearing to determine whether Appellant was competent to stand trial. Dr. Trivette was the only witness at the competency hearing. She testified that Appellant appreciated the seriousness and consequences of the charges, and that she believed he was capable of participating in his defense. Her uncontroverted testimony was that Appellant was competent to stand trial. Following Dr. Trivette’s testimony, the trial court entered a finding that Appellant was competent.

Defense counsel then stated that it would like to present additional evidence of Appellant’s mental retardation in support of Appellant’s motion to exclude the death penalty. The trial court scheduled a hearing for July 7, 2008, so that Appellant’s sisters could testify to Appellant’s developmental disabilities. At the July 2 hearing, the court also granted defense counsel access to the KCPC test materials and data.

In support of his argument that he was incompetent to stand trial, Appellant points to IQ tests, testimony by his sisters regarding his slow development, and evidence of his difficulty with daily living. While this evidence is certainly relevant to the issue of possible mental retardation, it has little relation to the issue of Appellant’s competency to stand trial. The question of Appellant’s mental retardation was relevant to the exclusion of the death penalty. Because Appellant did not receive the death penalty, that issue is moot.

Dr. Trivette’s uncontroverted testimony established that Appellant had the capacity to understand the nature and consequences of proceedings against him, and to participate rationally in his own defense. Therefore, in light of the evidence, we cannot say that the trial court abused its discretion, or made a clearly erroneous finding of fact. See Wooten, 269 S.W.3d at 865.

With regard to the KCPC data, Appellant’s motion requested this data for cross-examination of Dr. Trivette regarding malingering on IQ tests, and for possible mitigation during the penalty phase of the trial. Therefore, the KCPC data had little relation to the issue of Appellant’s competency to stand trial, and the judgment of competency was not substantially swayed by any possible error. See Winstead v. Commonwealth, 283 S.W.3d 678, 688-89 (Ky.2009). Therefore, any error in not providing the data sooner was harmless. Id.

IV. No Reversible Error Occurred With Respect To The Testimony of Amanda Hara

Appellant called Amanda Hara, a television news reporter who interviewed Appellant the day after Chief Lacy’s death, to testify about her observations. During Hara’s interview with Appellant, she apparently stated, “It seems like you’re coming down off of something right now,” and “You would not have done something like this if you weren’t under the influence of drugs.” During Hara’s testimony, the Commonwealth objected when defense counsel began to repeat Hara’s statements from the interview to her. The trial court sustained the objection.

Appellant argues that Hara’s statements and her opinion regarding Appellant’s intoxication should have been admitted. Appellant’s argument conflates Hara’s earlier (hearsay) statements that expressed an opinion about Appellant’s intoxication with the concept of a witness offering an opinion on intoxication at trial. Appellant is correct that “[i]n Kentucky, a lay witness may testify on the basis of observation and appearance that another person was intoxicated at a given point in time.” Motorists Mut. Ins. Co. v. Glass, 996 S.W.2d 487, 446 n. 14 (Ky.1997).

However, it is not entirely clear that there was an attempt to ask Hara her lay opinion of Appellant’s intoxication. The day before Hara testified, the trial court stated that Hara could not offer an opinion, but could testify to what she observed. Defense counsel never asked Hara her opinion of Appellant’s intoxication, but instead attempted to introduce her prior statements. Assuming the trial court prevented Hara from testifying as to her lay opinion of Appellant’s intoxication, this was error, but it was harmless. There was a great deal of evidence presented that Appellant was intoxicated at the time of the murder. Therefore, we can say with fair assurance that this error did not substantially sway the judgment. Winstead, 288 S.W.3d at 688-89.

We now turn to the question of whether the trial court abused its discretion in excluding Hara’s earlier statements. See Brewer v. Commonwealth, 206 S.W.3d 313, 320 (Ky.2006). Hara’s prior statements were unquestionably hearsay. Appellant argues that the trial court should have admitted Hara’s statements as a recorded recollection under KRE 803(5). However, for a hearsay statement to be admissible as a recorded recollection, it must first be established that the witness has insufficient recollection to testify without the recording. See Fields v. Commonwealth, 12 S.W.3d 275, 280 (Ky.2000). It is also unclear what record Appellant intended to use, given that defense counsel was repeating the statements back to Hara.

Appellant also argues that Hara’s statements were admissible as a present sense impression under KRE 803(1). However, this argument was never made to the trial court, and is not properly preserved for our review. See Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky.1976). Nor do we believe that any improper exclusion of Hara’s statements rises to the level of palpable error under RCr 10.26.

V. A Witness’s Statement That Appellant Had Been In Trouble Before Did Not Warrant A Mistrial

During its case-in-chief, the Commonwealth called Garland Lacy, the victim’s brother, to testify. Garland Lacy was employed with the Powell County Sheriff as a bailiff. During direct examination, the prosecutor asked Lacy if he knew Appellant. Lacy responded, “I really didn’t. I understand that he had been in court some and in trouble some but I didn’t....”

Appellant objected, and moved for a mistrial. The prosecutor responded that he did not expect Lacy to give that answer, expecting him instead to simply state that he knew Appellant from the community. The prosecutor requested that the court admonish the jury to disregard the statement. The trial court denied Appellant’s motion for a mistrial, but admonished the jury to disregard Lacy’s last statement.

Appellant argues that he was entitled to a mistrial based on Lacy’s statement. It is undisputed that the statement was inadmissible evidence of prior bad acts under KRE 404(b). The question is whether the trial court’s admonition was sufficient to cure the error. “A jury is presumed to follow an admonition to disregard evidence and the admonition thus cures any error.” Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky.2003) (citing Mills v. Commonwealth, 996 S.W.2d 473, 485 (Ky.1999)).

There are only two circumstances in which the presumptive efficacy of an admonition falters: (1) when there is an overwhelming probability that the jury will be unable to follow the court’s admonition and there is a strong likelihood that the effect of the inadmissible evidence would be devastating to the defendant, or (2) when the question was asked without a factual basis and was “inflammatory” or “highly prejudicial.”

Johnson, 105 S.W.3d at 441 (emphasis original) (internal citations omitted).

Lacy’s statement was isolated and ambiguous. It did not refer to any specific act by Appellant. There is simply no reason to believe the jury was unable to follow the trial court’s admonition. Further, Lacy’s statement was an unexpected response to an innocuous question by the prosecutor. The trial court’s admonition cured the error.

VI. There Was No Reversible Error Stemming From Appellant’s Request For Production Of The Victim’s KASPER Data Or From The Testimony Of The Victim’s Physician

Prior to trial, Appellant filed a motion for discovery of a complete KAS-PER report on the victim Randy Lacy, showing all controlled substances Chief Lacy legally obtained since 2007. The medical examiner’s report revealed that Chief Lacy had hydrocodone and other drugs in his system at the time of his death. Appellant sought production of Chief Lacy’s KASPER report to determine whether these drugs had been prescribed, which Appellant argued could be relevant in mitigation of punishment.

Appellant never obtained a ruling on his motion for discovery; therefore, the issue is not properly preserved for review by this Court. See Brown v. Commonwealth, 890 S.W.2d 286, 290 (Ky.1994). Rather, defense counsel conceded that the KAS-PER data was not relevant to Appellant’s guilt or innocence, but only relevant in mitigation of punishment. The issue of mitigation became moot when Appellant agreed to a sentence.

Nor do we find any palpable error. This Court recently held that a criminal defendant’s constitutional right to exculpatory information must prevail over statutes and rules preventing disclosure of KASPER data, provided the defendant makes a showing that the data does in fact contain exculpatory information. Commonwealth, Cabinet for Health & Family Serv. v. Bartlett, 311 S.W.3d 224, 227 (Ky.2010) (establishing for KASPER data the procedure outlined in Commonwealth v. Barroso, 122 S.W.3d 554 (Ky.2003)). Appellant made no showing that Chief Lacy’s KASPER data contained exculpatory information.

Because Appellant was not granted access to Chief Lacy’s KASPER data, he alleges error in Dr. Julie Keenon, one of Appellant’s physicians, being permitted to testify. Appellant elicited on cross-examination of the medical examiner that Chief Lacy had hydrocodone in his system at the time of his death. In response, the Commonwealth called Dr. Keenon to testify that the medications found in Chief Lacy’s system after his death had been prescribed to him. Dr. Keenon testified only after Appellant had opened the door regarding Chief Lacy’s medications. In addition, defense counsel was permitted to inspect all of Dr. Keenon’s medical records on Chief Lacy prior to her testifying. There was no error.

VII. The Trial Court Did Not Abuse Its Discretion In Permitting Blaze Tomlin To Be Cross-Examined Regarding Possible Motive For Bias

During his case-in-chief, Appellant called Blaze Tomlin, an attorney with the Department of Public Advocacy (DPA), who was assigned to speak to Appellant when he was taken to the hospital just after his arrest. Tomlin testified to Appellant’s state of extreme intoxication.

Early in the Commonwealth’s cross-examination, the prosecutor asked a number of questions about Tomlin’s background.

Prosecutor: Where did you complete your legal education?
Tomlin: Ohio Northern University
Prosecutor: Are you a native of Ohio?
Tomlin: I am. Southern Ohio.
Prosecutor: How long have you lived in Kentucky?
Tomlin: Five and a half years.
Prosecutor: Did you come to Kentucky to join the Department of Public Advocacy?
Tomlin: No, sir.
Prosecutor: Have you worked as an attorney for any law firm for yourself or in any capacity other than the Department of Public Advocacy?
Prosecutor: You’re a full-time employee of the Department of Public Advocacy, the same as Mr. Jones [Appellant’s attorney]?

Appellant raises two objections to the Commonwealth’s questions: that the questions about Tomlin’s background were irrelevant, and that Appellant was prejudiced when his attorney was revealed to be a public defender. We review a trial court’s evidentiary rulings for an abuse of discretion, i.e. “whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999).

The credibility of a witness is always at issue. Commonwealth v. Maddox, 955 S.W.2d 718, 721 (Ky.1997); KRE 611(b) (“A witness may be cross-examined on any matter relevant to any issue in the case, including credibility.”) The trial court also maintains broad discretion to regulate cross-examination. Maddox, 955 S.W.2d at 721.

The fact that Tomlin and Appellant’s attorney both worked for the Department of Public Advocacy was relevant to Tomlin’s credibility, as it showed a possible motive for bias. As the trial court pointed out, if a witness worked at the same law firm as an attorney in the case, this would be a relevant subject for cross-examination.

The Commonwealth’s questions about Tomlin’s background, we believe, were intended to demonstrate that Tomlin had moved to Kentucky to work for DPA, and thus to show a possible motive for bias. The questions, however, could have been phrased differently, and it is concerning that the Commonwealth attempted to portray Tomlin — in the words of defense counsel — as a “foreigner.” However, we cannot say that the trial court abused its discretion in allowing the questions, which were relevant to the issue of possible bias.

Nor do we believe there was any identifiable prejudice to Appellant resulting from his attorney being “unmasked” as a public defender. There is nothing inherently prejudicial about having an attorney who is a public defender. The probative value of Appellant’s counsel and Tomlin being employed by the same agency is not substantially outweighed by the danger of undue prejudice. KRE 403. The trial court did not abuse its discretion.

VIII. Issues Related To The Testimony Of Appellant’s Wife Are Not Preserved

Appellant argues that the trial court erred in failing to admit the testimony of Appellant’s wife Roberta Barnett regarding statements Appellant made the morning of the murder. Mrs. Barnett began to testify that Appellant said, “I love you; I’ll be right back,” and that he said he was going to run somewhere. At this point, her testimony was cut off by the Commonwealth objecting to the hearsay. However, before the trial court could rule on the objection, defense counsel instructed Mrs. Barnett that she could not testify as to what anyone said.

While Appellant argues that the statements were either not hearsay or were admissible under a hearsay exception, it is clear that the issue is not preserved. The trial court never had an opportunity to rule; therefore, the court could not have erred. Nor does the failure to allow this testimony rise to the level of palpable error under RCr 10.26.

CONCLUSION

For the forgoing reasons, the judgment of the Montgomery Circuit Court is hereby affirmed.

All sitting. All concur.

      . Ky. Const. § 110(2)(b).

      . At the time, defense counsel had not revealed the identity of its expert. Dr. Miller's name is used for clarity.

      . Defense counsel proffered what Hara would testify to, but no video or transcript of the interview was introduced as an avowal exhibit.

      . In his reply brief, Appellant has requested palpable error review of several unpreserved issues.

      . Kentucky All-Schedule Prescription Electronic Reporting.


source: Caselaw Access Project

author: Justice CUNNINGHAM.

license: Public Domain

text:
    Luther Wilbert SEXTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2008-SC-000731-DG.
    Supreme Court of Kentucky.
    May 20, 2010.
    Rehearing Denied Aug. 26, 2010.
    Samuel N. Potter, Department of Public Advocacy, Assistant Public Advocate, Frankfort, KY, Counsel for Appellant.

      Jack Conway, Attorney General, Todd Dryden Ferguson, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by

Justice CUNNINGHAM.

On July 21, 2005, the Pulaski County Public School Child Care Program took approximately 24 children, between the ages of five and twelve years, to the General Burnside Island State Park. As the children were swimming with other patrons at the pool, Brenda McDowell, the Director of the program, noticed Appellant, Luther Wilbert Sexton, across the road by a shelter. He was squatted down, holding a video camera. Appellant then entered his truck and left the premises; however, one of the parents at the pool was able to make out the license plate number and the model of the vehicle as Appellant was driving away.

The police were called and Pulaski County Sheriffs Deputy, Troy McClin, responded. After acquiring the address through the license plate check, Deputy McClin went to Appellant’s home. When McClin asked Appellant if he had been at the pool earlier, Appellant initially denied that he had. Appellant later recanted his denial after McClin informed him that his truck had been observed at that location. Initially, Appellant stated that he had just been sitting there, but later indicated that he did have a video camera. However, Appellant denied videotaping the children in the swimming pool. Instead, he said that he was attempting to film a houseboat he had seen in the lake, but was unable to retrieve his camera in time. In other words, he denied doing any actual videotaping. McClin then asked Appellant if he could view the tape in his camera, and Appellant complied. After briefly scanning a portion of the videotape, McClin did not see any footage of the children swimming in the pool or of a houseboat. The footage viewed by McClin was actually a recording of a television show. At this point, McClin returned the videotape to Appellant. After warning Appellant not to return to the pool, McClin left the premises.

Sometime after McClin left Appellant’s home, an arrest warrant was taken for Appellant, charging him with disorderly conduct at the pool earlier that day. Also, a search warrant was issued for Appellant’s house after it was learned that Appellant was on bond for three counts of sexual abuse in Wayne County. Two hours after the initial encounter, McClin returned to Appellant’s house to serve the warrants. The search of Appellant’s house did not reveal the videotape that McClin had previously watched, nor were any forms of child pornography or any other criminal material discovered in Appellant’s home. Appellant refused to tell the police where the videotape was located, and he was subsequently charged with tampering with physical evidence. KRS 524.100.

Prior to trial, the Commonwealth gave notice of its intention to introduce evidence that Appellant was a registered sex offender with prior convictions in other states. KRE 404(b). The Commonwealth contended that this evidence would show that a previous conviction in Florida involved Appellant’s having videotaped young children in swimsuits playing at the beach, thus supporting the Commonwealth’s theory that the videotape contained footage of the children at the Burnside pool, as well as proving Appellant’s alleged motive for destroying the tape.

A two-day trial was held in Pulaski County, where the jury returned guilty verdicts for second-degree disorderly conduct and tampering with physical evidence. Appellant then pled guilty to being a persistent felony offender in the first-degree. The jury recommended an enhanced sentence of 12 years in prison and a fine of $250.00, which the trial court ultimately accepted. Appellant appealed as a matter of right to the Court of Appeals, who affirmed the convictions. Thereafter, this Court granted discretionary review.

For the following reasons, we reverse the Court of Appeals and hold that Appellant was entitled to a directed verdict on the charge of tampering with physical evidence. As this issue is dispositive, we need not address the issue of the admissibility of KRE 404(b) evidence.

On a motion for a directed verdict, the trial judge must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. Commonwealth v. Benham, 816 S.W.2d 186 (Ky.1991). The standard for appellate review of a denial of a motion for a directed verdict based on insufficient evidence is if, under the evidence as a whole, it would be clearly unreasonable for a jury to find the defendant guilty, then he is entitled to a directed verdict of acquittal. Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky.1983). “The Commonwealth bears a burden of proof in establishing each element of the charged crime, else a motion for a directed verdict by the defendant must be properly entertained.” Williams v. Commonwealth, 721 S.W.2d 710, 712 (Ky.1986).

KRS 524.100 provides:

(1) A person is guilty of tampering with physical evidence when, believing that an official proceeding is pending or may be instituted, he:
(a) Destroys, mutilates, conceals, removes or alters physical evidence which he believes is about to be produced or used in the official proceeding with intent to impair its verity or availability in the official proceeding; or
(b) Fabricates any physical evidence with intent that it be introduced in the official proceeding or offers any physical evidence, knowing it to be fabricated or altered.
(2) Tampering with physical evidence is a Class D felony.

From the evidence introduced at trial, we believe that it was clearly unreasonable for a jury to find Appellant guilty of tampering with physical evidence. The Court of Appeals’ opinion focuses primarily on Appellant’s subjective knowledge of imminent proceedings. However, this ignores a crucial step. The Commonwealth still must prove the existence of some physical evidence that Appellant allegedly tampered with. In this instance, the Commonwealth simply failed to produce any evidence that Appellant was actually videotaping anyone or anything while at the General Burnside Island State Park. Appellant maintained that he was attempting to videotape a passing houseboat, but was unable to get to his camera in time. This story is seemingly confirmed by the fact that the videotape in Appellant’s camera that MeClin viewed was of a television show. MeClin did not see any footage of either a houseboat or of children swimming in the Burnside pool on the videotape, which is why he subsequently returned the tape to Appellant.

As it stands, the Commonwealth failed to produce any evidence that a videotape, filmed by Appellant, of children swimming at the Burnside pool even exists. Absent such a videotape, it strains the bounds of reason to conclude that Appellant in some way actively “concealed] ... physical evidence ... with the intent to impair its verity or availability in the official proceeding.” Because the Commonwealth did not present evidence that would prove all ele-raents of tampering with physical evidence, it would be clearly unreasonable for a jury to find guilt. Accordingly, the trial court erred in denying a directed verdict on this charge.

We, therefore, set aside Appellant’s conviction for tampering with physical evidence. This, then, requires that Appellant’s conviction for being a first-degree persistent felony offender be vacated as well, since KRS 532.080(3) requires conviction of a third felony after having been previously convicted of two prior felonies. The failure of the underlying felony conviction would render improper Appellant’s conviction for being a first-degree persistent felony offender. Also, the Court of Appeals did not find error in the trial court’s denial of Appellant’s directed verdict motion as to the disorderly conduct charge; however, this issue was not made part of the appeal before this Court.

For the reasons set forth herein, we reverse the decision of the Court of Appeals and remand this case to the Pulaski Circuit Court for entry of a new sentence in accordance with this opinion.

All sitting. All concur.


author: GARY M. GAERTNER, JR., Judge.

text:
    David ADAMS, et al., Appellants, v. USAA CASUALTY INSURANCE COMPANY, and Shelter Mutual Insurance Company, Respondents.
    No. ED 93802.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 20, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 1, 2010.
    Application for Transfer Denied Aug. 31, 2010.
    See also 275 S.W.3d 324.

      E. Ryan Bradley, Clayton, MO, for appellants.
    Thomas J. Magee, Meg. L. Fowler, Seth G. Gausnell, Michael S. Hamlin, St. Louis, MO, for respondents.
   GARY M. GAERTNER, JR., Judge.

Introduction

David Adams, Landon Adams by Next Friend David Adams, and La Crysta Adams by Next Friend David Adams (Landon and La Crysta Adams hereinafter referred to collectively as “the Adams children”; all Adams collectively referred to as “Plaintiffs”) appeal from the trial court’s grant of summary judgment in favor of USAA Casualty Insurance Company (USAA) and Shelter Mutual Insurance Company (Shelter) (USAA and Shelter collectively referred to as “Defendants”) in the Plaintiffs’ action alleging tortious interference with contractual relations and conspiracy to commit fraud. We reverse and remand.

Factual and Procedural Background

The Underlying Petition, Initial Responses, and Stay of Action

On or about January 7, 2008, Plaintiffs filed their cause of action, containing three counts: Count I-Tortious Interference of Contractual Relations, Count II-Negligent Interference with Contractual Relations, and Count Ill-Conspiracy to Commit Fraud. In this Petition, Plaintiffs alleged the following, as pertinent.

Timothy King (King), a Louisiana resident, was involved in a motor vehicle accident involving David Adams’s wife La Jena Adams, and the Adams children. This accident caused the death of La Jena Adams, and significant personal injury to the Adams children.

At the time of the accident, King had a policy of automobile liability insurance issued by USAA in the State of Louisiana that provided limits of liability of $10,000 per person and $20,000 per accident. King was an “uninsured motorist” under Missouri law due to the limits of his liability coverage. David and La Jena Adams were insured under three separate Shelter insurance policies at the time of the accident: two with uninsured motorist liability limits in the amount of $25,000 per person and $50,000 per accident and one (on the car involved in the accident) with uninsured motorist limits of $50,000 per person and $100,000 per accident.

As designated beneficiaries under the terms of the Shelter policies, Plaintiffs made a demand for payment for the limits of their uninsured motorist coverage on all three policies. Plaintiffs received correspondence from USAA indicating that USAA would be “liberalizing” its policy by increasing the coverage to $25,000 per person and $50,000 per accident, to comply with Missouri’s financial responsibility laws. The letter indicated that USAA transmitted a copy of this correspondence to Shelter. USAA knew Plaintiffs were insured under three separate contracts with Shelter.

After USAA afforded King additional coverage, Shelter took the position Plaintiffs were not entitled to recover under their uninsured motorist coverage and denied payment. Thereafter, Plaintiffs filed an action against Shelter in the Circuit Court of Oregon County, Missouri, in order to force Shelter to pay the uninsured motorist benefits to Plaintiffs.

In Count I of the Petition filed in this cause, Plaintiffs claimed that USAA intentionally interfered with their contractual relations with Shelter, causing or inducing a material breach of the three insurance policies without justification. Plaintiffs averred that, as a result of USAA’s intentional conduct, Shelter denied their claim for compensation, causing them to sustain damages.

In Count III, Plaintiffs claimed that USAA and Shelter conspired to commit fraud upon Plaintiffs by engaging in an arrangement whereby USAA would pay more money than required by law or by its contractual relationship with King, thereby depriving Plaintiffs of their right to recover uninsured motorist benefits from Shelter. Plaintiffs alleged that USAA and Shelter concocted a scheme whereby Shelter would confer a benefit to USAA by “liberalizing” its policy limits, thereby minimizing the combined exposure for the two companies and allowing them to receive a windfall at Plaintiffs’ expense. Plaintiffs alleged they made reasonable attempts to determine what information had been communicated between Defendants, but that Shelter failed to respond to their discovery attempts, giving Plaintiffs a reasonable basis to file their conspiracy count. After making this allegation, Plaintiffs stated: “As such, Plaintiffs file this lawsuit in an effort to elicit additional information to support its allegations in this Count.”

Thereafter, Defendants moved to dismiss, to transfer due to improper venue, and to stay the cause. In support of its Motion to Stay the Cause of Action, USAA argued that the cause should be stayed because issues arising from the accident were pending appeal in a lawsuit filed in Oregon County, Missouri. On March 6, 2008, the trial court granted Defendants’ motions to stay, and deferred ruling on their motions to dismiss and to transfer.

The Southern District Appeal in the Oregon County Lawsuit

Subsequently, the Missouri Court of Appeals, Southern District, reversed a grant of summary judgment to Shelter in the Oregon County action, in which the circuit court found that King was not the operator of an uninsured motor vehicle because USAA’s policy provided liability coverage in the minimum amounts required by Missouri financial responsibility law ($25,000 per person and $50,000 per accident). Adams v. King, 275 S.W.3d 324, 326-28 (Mo.App. S.D.2008). After Application for Transfer was denied, the court issued its mandate on February 26, 2009.

In the Southern District appeal, Shelter had contended that King’s vehicle was not uninsured because USAA voluntarily paid Plaintiffs benefits equal to the amount required by Missouri law, in accordance with the following language contained in King’s USAA policy: “If an auto accident to which this policy applies occurs in any state or province other than the one in which your covered auto is principally garaged, your policy will provide at least the minimum amounts and types of coverages required by law.” Id. at 326-27. The Southern District, however, concluded that because no Missouri law required King to have liability insurance in accordance with Missouri’s financial responsibility minimums, the language of the policy did not obligate USAA to pay these mínimums. Id. The Southern District specifically stated that USAA’s offer to pay the statutory minimum did not override the policy’s language.

Lift of Stay Order and Subsequent Filings

Defendants subsequently moved the trial court to lift the stay in this action, contending the underlying matter on appeal was concluded. Shelter filed a Motion to Dismiss, or, in the Alternative, Motion for More Definite Statement; USAA filed a Motion to Dismiss, or, in the Alternative, Motion for Summary Judgment. Shelter subsequently filed an Amended Motion to Dismiss. On March 24, 2009, Plaintiffs filed a Motion to Stay Ruling on Defendant USAA’s Motion to Dismiss, averring that the Circuit Court of Oregon County had not yet made its final ruling in the underlying matter and asking the court either to stay its ruling on USAA’s motion or to deny the motion. In the event the court determined to hear the motion, Plaintiffs also requested to be allowed at least six months to conduct discovery.

On April 23, 2009, the trial court sustained Defendants’ motions to lift the stay, announced that it would treat Defendants’ motions to dismiss and alternative motions for summary judgment as summary-judgment motions, gave Plaintiffs thirty days to file their response to the motions, and allowed Defendants five days to file a reply to Plaintiffs’ response.

The Summary Judgment and Dismissal Motions

In its Motion for Summary Judgment, USAA argued that, as to Plaintiffs’ tor-tious-interferenee-with-contractual-rela-tions count, the alleged interference by USAA did not induce or cause a breach of Plaintiffs’ business expectancy because the Southern District determined USAA’s offer to increase its limits was ineffective and irrelevant to override the policy’s language. USAA further contended that Plaintiffs failed to allege that a breach was induced or caused by USAA’s alleged intentional interference and therefore failed to assert a claim based on tortious interference with a contractual relationship. As to Plaintiffs’ conspiracy-to-commit-fraud count, USAA argued that Plaintiffs did not allege with the required particularity their claim of fraud against USAA, thus failing to state a cause of action for civil conspiracy against Defendants. In support of its motion, USAA submitted a copy of a June 25, 2007 Interlocutory Order issued by the Oregon County circuit court and a memorandum of law. In this supporting memorandum, USAA additionally argued that Plaintiffs were collaterally es-topped from bringing their cause of action because Plaintiffs were attempting to relit-igate an issue of coverage already determined by a Missouri court. USAA also asserted in its memorandum that because USAA was contractually obligated by the language of King’s policy and the law of Missouri to provide coverage of $25,000 per person and $50,000 per accident, USAA had justification for the alleged interference.

In its Amended Motion to Dismiss, Shelter argued that, as to the conspiracy-to-commit-fraud count (Plaintiffs’ only count directed against Shelter), Plaintiffs failed to plead sufficient facts to state a claim for damages. Shelter further argued Plaintiffs failed to sufficiently state an underlying wrongful act or tort that would give rise to a conspiracy claim and failed to plead with any degree of particularity the false and material representations made by Defendants. In support of its motion, Shelter referenced the Petition and submitted a copy of the Southern District opinion.

In their response to Shelter’s argument that Plaintiffs did not sufficiently plead their damages, Plaintiffs claimed that as a consequence of the Defendants’ conspiracy, Plaintiffs incurred additional attorneys’ fees and costs they would not have otherwise incurred in prosecuting the Oregon County case. Plaintiffs additionally asserted that Landon Adams’s health was compromised as a result of their inability to pay for and obtain needed medical treatment, and that their inability to pay medical bills damaged their credit. They also claimed the conspiracy caused them mental pain and suffering.

As to Shelter’s assertion that their allegations of false and material representations were not pleaded with the required degree of particularity, Plaintiffs argued Shelter’s failure to move for a more definite statement as to the averments of fraud waived any objection as to the particularity of the averments. Plaintiffs contended that the court should deny Shelter’s motion and allow Plaintiffs reasonable discovery to determine what facts support their claims.

Finally, Plaintiffs maintained that Defendants’ motions were premature and that Plaintiffs had not been afforded any discovery due to the stay order. Plaintiffs’ counsel submitted his affidavit, which indicated that the parties had been unable to engage in written or oral discovery until the stay order was lifted on April 23, 2009, and that Plaintiffs had a good-faith basis to believe a conspiracy existed between Defendants and needed to engage in discovery to present facts supporting this belief.

As to USAA’s claim that Plaintiffs were collaterally estopped from asserting their claim, Plaintiffs first contended that the Southern District’s opinion confirmed USAA acted without any legal basis in increasing its liability, giving rise to a claim for tortious interference with contract. Plaintiffs then argued that they were not collaterally estopped from pursuing their claim against USAA because neither USAA nor King was a party to the Oregon County declaratory judgment action.

Plaintiffs responded to USAA’s “no breach” argument by stating that USAA’s actions caused Shelter to breach its contract with them and to fail to pay money owed to Plaintiffs. They asserted that whether USAA’s actions prompted Shelter to breach the contract was a factual issue for the jury to determine.

Plaintiffs argued that USAA also waived its objection to pleading fraud with particularity by failing to file a motion for more definite statement. Plaintiffs again objected to the motions as premature and maintained the need for discovery to support their allegations of fraud.

USAA filed a reply to Plaintiffs’ response, and attached a copy of an April 15, 2009 Judgment entered in the Oregon County action. In this April 15 Judgment, the circuit court held that Plaintiffs were entitled to the contraeted-for amount under each of their Shelter insurance policies, that the policies should be stacked, and that Plaintiffs were entitled to uninsured motorist benefits from Shelter in the amount of $200,000. In its reply, USAA argued that Plaintiffs would have incurred increased attorney’s fees regardless of USAA’s position, because Shelter would not have paid what Plaintiffs demanded and thus, they still would have had to pursue their claim that the policies required stacking of limits. Regarding Plaintiffs’ claim of insufficient time to conduct discovery, USAA averred that Plaintiffs had not served interrogatories or set depositions and were unable to point to any discovery that would be relevant in light of the Southern District’s ruling.

In a supplemental response to Defendants’ motions, Plaintiffs argued the Oregon County court’s ruling established that Shelter breached its contracts of insurance with them and conclusively proved breach in connection with Plaintiffs’ claims for tortious interference with contractual relations and conspiracy to commit fraud.

The Trial Court’s Judgment in the City of St. Louis

The trial court issued its Memorandum, Order and Judgment (Judgment) on August 3, 2009. In this Judgment, the court noted Plaintiffs had objected the summary judgment motions were premature, complaining that, due to the previous stay order, they had been afforded little or no opportunity for discovery. The court indicated that it perceived no need for further discovery on the issues raised by Defendants’ motions, and announced that the only items outside the pleadings it would consider were the opinions and orders entered by the Southern District Court of Appeals and the circuit court in the parallel litigation involving Plaintiffs and Shelter.

The trial court noted that, after the Southern District determined King was uninsured and remanded the matter, the Oregon County circuit court found in favor of Plaintiffs and held they were entitled to uninsured motorist benefits from Shelter in the amount of $200,000. Although the trial court determined Plaintiffs were not estopped by the Southern District or circuit court judgments, the court concluded as to their tortious-interference-with-con-tractual-relations count that, as a matter of law, Plaintiffs could not show there was an absence of justification for USAA’s offer to increase its policy limits.

Further finding that Plaintiffs’ petition was “bereft of any allegations that either Defendant made a false representation of fact upon which Plaintiffs relied to their detriment,” the trial court held that Plaintiffs’ Count III wholly failed “to state a claim for relief, either for fraudulent misrepresentation or for conspiracy to commit fraud.” The court further determined Plaintiffs did not and could not allege that either defendant committed a tortious act or agreed to commit a tortious act, and concluded no claim for conspiracy was stated. After indicating that it saw “no realistic likelihood that Plaintiffs could amend their Petition to state a viable claim,” the trial court declined to make provision for leave to amend, and granted summary judgment to Defendants.

Thereafter, Plaintiffs filed a Motion to Reconsider on August 19, 2009, which was heard and taken under submission on October 1. The trial court denied Plaintiffs’ motion on October 8. Plaintiffs filed their Notice of Appeal on October 19, 2009. This appeal follows.

Points on Appeal

Plaintiffs raise three points on appeal. First, Plaintiffs claim the trial court erred in granting summary judgment in favor of USAA and Shelter because the trial court sua sponte raised, and based its ruling on, matters outside the scope of any issues raised in Defendants’ Motions for Summary Judgment or Plaintiffs’ Response. Second, Plaintiffs claim the trial court erred in granting summary judgment in favor of Defendants based on the trial court’s determination that Plaintiffs could not prove absence of justification as a matter of law, because absence of justification is an issue of fact, not a matter of law. Finally, Plaintiffs claim the trial court erred in denying Plaintiffs’ motion for additional time to conduct discovery, in violation of Plaintiffs’ due process rights.

Discussion

The Judgment below addressed Plaintiffs’ two remaining claims: tortious-interference with contractual relations, directed only to USAA, and conspiracy to commit fraud, directed against both Defendants. Plaintiffs’ tortious-interference-with-contract claim would require them to prove: 1) a contract; 2) USAA’s knowledge of the contract; 3) intentional interference by USAA inducing or causing a breach of the contract; 4) absence of justification; and 5) damages. Misischia v. St. John’s Mercy Med. Ctr., 30 S.W.3d 848, 863 (Mo.App. E.D.2000). For their claim of conspiracy, Plaintiffs would need to show: 1) two or more persons; 2) with an unlawful objective; 3) after a meeting of the minds; 4) committed at least one act in furtherance of the conspiracy; and 5) plaintiffs thereby suffered damage. Id. at 864.

In its entry of judgment in favor of Defendants and against Plaintiffs on both of Plaintiffs’ claims, the trial court “ORDERED, ADJUDGED AND DECREED that the motions of [USAA] and [Shelter] for summary judgment be and the same are hereby granted, there being no genuine issue of material fact and Defendants being entitled to judgment as a matter of law.” Although the Judgment purports to grant summary judgment to Defendants and against Plaintiffs on both claims, our examination reveals an important distinction between the court’s rulings on the two claims, a difference that necessarily impacts the standard we employ upon review, and our consideration of Plaintiffs’ points on appeal.

As an initial matter, we note that in disposing of Plaintiffs’ conspiracy count, the trial court considered only the pleadings, and concluded Plaintiffs failed to state a claim for relief. Consequently, we will review the trial court’s ruling on Plaintiffs’ conspiracy claim as a grant of a motion to dismiss. Where a trial court rules, as a matter of law, that a petition fails to state a cause of action, the trial court’s ruling, even if entered in response to motion for summary judgment, will be reviewed as the grant of a motion to dismiss. George Ward Builders, Inc. v. City of Lee’s Summit, 157 S.W.3d 644, 646 (Mo.App. W.D.2004). As our analysis of the court’s ruling on the conspiracy count is dependent, in part, on our determination concerning the court’s ruling on Plaintiffs’ claim for tortious interference with contractual relations, we turn our attention first to that ruling.

Although the trial court previously notified the parties that Defendants’ motions would be treated as motions for summary judgment, in its subsequent Judgment the trial court acknowledged the strictures of Wallingsford v. City of Maplewood, 287 S.W.3d 682 (Mo. banc 2009), and announced it would consider only the pleadings and the two opinions in the Oregon County matter in its disposition of the tortious-interference-with-contractual-rela-tions count. Because the trial court considered materials outside the pleadings in rendering judgment on Plaintiffs’ tortious-interferenee-with-contraetual-relations count, the proper standard of review is not that applied to a trial court’s dismissal for failure to state a claim, or for judgment on the pleadings, but rather, that for summary judgment. See Chochorowski v. Home Depot U.S.A., Inc., 295 S.W.3d 194, 197 (Mo.App. E.D.2009) (dismissal for failure to state claim upon which relief can be granted is challenge to sufficiency of petition); Twehous Excavating Co. Inc. v. L.L. Lewis Inv., L.L.C., 295 S.W.3d 542, 545-46 (Mo.App. W.D.2009) (motion for judgment on pleadings presents question whether moving party is entitled to judgment as matter of law on face of pleadings; if .matters outside pleadings are considered, motion treated as one for summary judgment under Rule 74.04).

“The propriety of a summary judgment is purely an issue of law which an appellate court reviews de novo on the record submitted.” Southard v. Buccaneer Homes Corp., 904 S.W.2d 525, 528 (Mo.App. S.D.1995). The criteria on appeal are no different from those that should be employed by the trial court in its determination of the propriety of granting the motion initially. ITT Commercial Fin. v. Mid-Am. Marine, 854 S.W.2d 371, 376 (Mo. banc 1993).

The trial court concluded that USAA’s offer to increase its policy limits could not be considered tortious interference with contract. In reaching this conclusion, the court found that the language in King’s USAA insurance policy (contained in the two considered opinions) could be interpreted to require such an offer. Accordingly, the trial court held that Plaintiffs could not show the tort’s required absenee-of-justification element because USAA made the offer prior to the Southern District’s determination that USAA did not have a legal obligation to make the offer. After holding that, as a matter of law, Plaintiffs could not show an absence of justification for USAA’s offer to increase its policy limits, the trial court granted judgment for USAA on Plaintiffs’ tortious-interference-with-contractual-relations claim.

However, under the circumstances, a grant of summary judgment on either of Plaintiffs’ counts would be inappropriate because the trial court did not require the parties to comply with the specific procedures set forth in Rule 74.04. Wallingsford, 287 S.W.3d at 686-87. Rule 74.04(c) requires summary judgment movants not only to state summarily the legal basis for their motion and file a legal memorandum explaining why summary judgment should be granted, but also to submit a statement of uncontroverted material facts. Id. In pertinent part, the rule states that motions for summary judgment must set out with particularity material facts “with specific references to the pleadings, discovery, exhibits or affidavits” in asserting the lack of a genuine issue of fact. Mo. R. Civ. P. 74.04(c)(1) (2009). Summary judgment borders on a denial of due process; therefore, strict compliance with the rule’s requirements is necessary to prevent summary judgment proceedings “from crossing over the border.” Jones v. Hous. Auth. of Kansas City, 118 S.W.3d 669, 674 (Mo.App. W.D.2003).

Neither USAA nor Shelter submitted a statement of uncontroverted facts. Shelter filed only an Amended Motion to Dismiss, arguing that the Petition failed to state a claim and to plead with particularity the false and material representations made by Defendants. Shelter’s motion referenced only Plaintiffs’ Petition and the Southern District opinion to support its argument for dismissal. In its Motion for Summary Judgment, USAA argued that its alleged interference did not induce or cause a breach and that Plaintiffs failed to so allege. USAA also argued that Plaintiffs did not allege their claim of fraud with the necessary particularity. To support its motion, USAA submitted only a copy of an Interlocutory Order issued in the Oregon County matter and a memorandum of law. This memorandum expanded USAA’s argument to assert collateral estoppel and justification.

Clearly, neither Defendant was required to comply substantially with the requirements of Rule 74.04; moreover, each defendant was allowed to raise new factual issues, grounds and arguments to which Plaintiffs were not afforded a sufficient opportunity to respond. Wallingsford, 287 S.W.3d at 686-87. Only eight days after the Oregon County circuit court issued its judgment, the trial court lifted the stay, announced its decision to treat Defendants’ motions as ones for summary judgment, and required Plaintiffs to file any response within thirty days. Here, the trial court did not require Defendants to proceed with their motions in accordance with Rule 74.04, and did not provide the parties opportunity to conduct any discovery prior to proceeding summarily.

Defendants’ lack of compliance, coupled with the prejudice caused to Plaintiffs, necessarily requires reversal as to the trial court’s grant of summary judgment on Plaintiffs’ tortious-interference count. Id. at 686-87. Accordingly, we reverse the trial court’s grant of summary judgment for Defendants and remand the matter for further proceedings, with the instruction that the Plaintiffs be afforded adequate time to conduct discovery and to amend their pleadings accordingly, if required. “When faced with a motion for summary judgment asserting that a claimant cannot prove all the essential elements of the cause of action asserted, the motion can only be sustained after the claimant is entitled to a reasonable period of discovery.” Eastwood v. N. Cent. Mo. Drug Task Force, 15 S.W.3d 65, 70 (Mo.App. W.D.2000).

We next consider the court’s ruling as to Plaintiffs’ conspiraey-to-com-mit fraud count, treating it as a grant of a motion to dismiss. George Ward Builders, Inc., 157 S.W.3d at 646. A motion to dismiss for failure to state a claim upon which relief can be granted is a challenge to the sufficiency of the petition. Chochorowski, 295 S.W.3d at 197. Upon review, we assume all pleaded facts are true, giving the pleadings their broadest intendment and construing all allegations favorable to the plaintiff. Id. It is not our function to weigh the allegations to determine their credibility or persuasiveness. Id. Rather, we review the petition almost academically to determine if the facts alleged meet the elements of a recognized cause of action, or a cause that could be brought in the case. Id. Determination of factual questions or whether the party is entitled to relief on the merits is not appropriate on a motion to dismiss. Id.

We conclude that Plaintiffs’ conspiracy count alleged enough facts to survive a motion to dismiss. Chochorowski, 295 S.W.3d at 197. Plaintiffs allege Defendants, with the objectives of unlawfully depriving Plaintiffs of their right to recover their contracted-for uninsured motorist benefits from Shelter and reducing each Defendants’ financial exposure, determined between themselves that USAA would increase King’s coverage, and that USAA did so. These allegations would support the first four conspiracy claim elements. See Misischia, 30 S.W.3d at 864 (elements for conspiracy include: 1) two or more persons; 2) with unlawful objective; 3) after meeting of minds; 4) committed at least one act in further of conspiracy; 5) thereby causing damage to plaintiffs). Plaintiffs’ allegation that Shelter’s subsequent refusal to pay the uninsured motorist benefits caused them to suffer damages, including increased attorney’s fees and mental pain and suffering, would support the fifth element. A cause of action for conspiracy is necessarily premised upon an underlying tort claim. Id. Because Plaintiffs’ conspiracy count is based on their tortious-interferenee-with-contrac-tual-relations claim, we examine the sufficiency of the allegations as to that claim, as well.

We further conclude Plaintiffs’ tortious-interference claim sufficiently alleges the existence of a contract with Shelter; USAA’s knowledge of the contract; intentional interference by USAA inducing or causing a breach of the contract by Shelter; and resulting damage to Plaintiffs. Misischia, 30 S.W.3d at 863. Not every interference with contractual relations gives rise to a claim for damages; however, where such interference is wrongful, a cause of action exists. Pillow v. Gen. Am. Life Ins. Co., 564 S.W.2d 276, 283 (Mo.App.1978).

Although no liability for procuring a breach of contract exists if the breach results from an act one has a definite legal right to perform without any qualification, “[i]t is not justification to knowingly procure the breach of a contract where the defendant acted with an improper purpose and sought not only to further his own interests, but in doing so employed improper means.” Id. at 281-82. Plaintiffs’ claim that, in return for a benefit conferred by Shelter, USAA “liberalized” its policy, offering Plaintiffs a larger sum than it was required by Missouri law to pay and informing Shelter of this offer prior to Shelter’s denial of benefits, if true, is an allegation from which one could infer: 1) that USAA acted with the improper purpose of enabling Shelter to evade paying uninsured motorist benefits to Plaintiffs; 2) that USAA sought to further its and Shelter’s interests by minimizing their combined financial exposure; and 3) that USAA employed improper means to do by acting in concert with Shelter. Accordingly, we also conclude that Plaintiffs allege enough facts to support absence of justification. Id.

Accepting all properly pleaded facts as true, giving the pleadings their broadest intention, and construing all allegations favorably to Plaintiffs, we cannot agree with the trial court’s determination that the Petition failed to show any ground for relief, nor with the court’s conclusion that there was “no realistic likelihood that Plaintiffs could amend their Petition to state a viable claim[.]” Chochorowski, 295 S.W.3d at 197. The trial court erred in dismissing Plaintiffs’ conspiracy to commit fraud count.

Conclusion

The judgment of the trial court is reversed and remanded for further proceedings in accordance with this opinion.

KURT S. ODENWALD, P.J., and GEORGE W. DRAPER III, J., concur.

      . Plaintiffs’ Petition actually titled this count as "Tortious Interference of Contractual Relations” also, but the language of the count sounds in negligence. After USAA argued that negligent tortious interference with contract was not a recognized cause of action in Missouri, Plaintiffs dismissed with prejudice this count on April 29, 2009, and it is not subject to this appeal.

      . Although our determination of the propriety of the trial court's grant of summary judgment does not require us to reach this issue, we do address the absence-of-justification element in our discussion of the trial court's dismissal of Plaintiffs’ conspiracy count.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Patrick MOORE, Appellant.
    No. ED 92612.
    Missouri Court of Appeals, Eastern District, Division One.
    April 20, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 8, 2010.
    Application for Transfer Denied Aug. 31, 2010.
    Adam Fein, Richard Starnes, Co-Counsel, Jefferson City, MO, for Appellant.
    Shaun Mackelprang, Erin Griebel, Co-Counsel, Jefferson City, MO, for Respondent.
    Before KATHIANNE KNAUP CRANE, P.J., CLIFFORD H. AHRENS, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Patrick Moore (“Defendant”) appeals from the judgment entered upon a jury verdict convicting Defendant of two counts of assault in the first degree in violation of Section 565.050 , two counts of armed criminal action in violation of Section 571.015, and one count of unlawful use of weapon by discharge of a firearm at or from a motor vehicle in violation of Section 571.030.1(10). The trial court sentenced Defendant as a persistent offender to five life sentences to be served consecutively.

No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

We affirm the judgment pursuant to Rule 80.25(b).

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


author: SHERRI B. SULLIVAN, J.

text:
    Karl SHELLABARGER, Plaintiff/Appellant, v. Gene and Eugenia SHELLABARGER, individually and as Trustees of the Gene L. Shellabarger and Eugenia L. Shellabarger Trust, Defendants/Respondents.
    No. ED 93618.
    Missouri Court of Appeals, Eastern District, SLU Division.
    April 27, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 8, 2010.
    Application for Transfer Denied Aug. 31, 2010.

      Ann P. Hagan, Joe E. Maxwell, Mexico, MO, for Plaintiff/Appellant.
    Edward C. Clausen, Brittany A. Bar-rientos, Jefferson City, MO, for Defendants/Respondents.
   SHERRI B. SULLIVAN, J.

Introduction

Karl Shellabarger (Appellant) appeals from the trial court’s partial summary judgment entered in favor of Gene and Eugenia Shellabarger, individually (Gene and Eugenia, respectively) and as trustees of the Gene L. Shellabarger and Eugenia L. Shellabarger Trust (Trust) (collectively Respondents), as to Counts I, II, III and IV of Appellant’s five-count petition. We reverse and remand.

Factual and Procedural Background

The following facts are gleaned from the Respondents’ statement of undisputed material facts in support of their motion for summary judgment, and Appellant’s response to Respondents’ statement of undisputed material facts.

Appellant and Gene entered into a contract involving an interest in real estate. Appellant composed a contract to memorialize their agreement. This contract, dated April 12, 1995, is signed by Gene and Appellant. The contract provided that Appellant could purchase the real estate in the future, following an 18-month holding period after Respondents had purchased the real estate. On November 12, 1996, the holding period was no longer in effect. The contract did not provide a definite date for performance or closing.

On April 22, 2008, Appellant filed a five-count petition against Respondents, alleging in Count I — Specific Performance; Count II — Breach of Contract; Count III — Fraud; Count IV — Unjust Enrichment/Constructive Trust, and Count V— Damages for Crop Loss. Respondents filed a motion for partial summary judgment on Counts I though IV alleging that they were entitled to summary judgment based on the statute of frauds, the statute of limitations, and laches. Appellant filed his response to said motion. After hearing argument and taking the matter under advisement, the trial court granted Respondents’ motion, without explication, other than noting that it found “that there is no general [sic] dispute as to any material facts and, accordingly, Defendants are entitled to judgment as a matter of law on Counts I through IV of Plaintiffs petition.” Appellant filed a motion for reconsideration, which was denied. Appellant dismissed Count V without prejudice. This appeal follows.

Points on Appeal

In his first point, Appellant claims that the trial court erred in sustaining Respondents’ motion for summary judgment based on the statute of frauds because:

(a) the contract for the sale of real property was in writing and contained all the essential elements of a contract in that it is signed by the parties and recites the subject matter, the consideration, the price, and the promises for both sides; and

(b) both parties performed under this contract for over twelve (12) years and therefore the statute of frauds does not apply; and

(c) Count III of Appellant’s petition pled fraud which is an exception to the statute of frauds; and

(d) Count IV of Appellant’s petition specifically sought additional equitable remedies which also creates an exception to the statute of frauds.

In his second point, Appellant contends that the trial court erred in sustaining Respondents’ motion for summary judgment based on either a five-year or a ten-year statute of limitations because there are genuine issues of fact regarding when the statute of limitations started to run, in that Appellant’s evidence demonstrates that Respondents never sought to repudiate the contract until 2006 and this action was first brought in 2008.

In his third point, Appellant asserts that the trial court erred in sustaining Respondents’ motion for based on laches because there was a “general [sic] issue of fact” regarding Respondents’ claim of laches because Respondents cannot rely on equity as a defense in that Respondents have “unclean hands” as Appellant’s evidence clearly demonstrates that he made every payment due under the contract, changed his position in reliance on the contract, expended substantial amounts of money improving the real property, and at no time did Respondents indicate that they were not going to honor the contract until, at best, 2006.

Standard of Review

Our review of the trial court’s grant of summary judgment is essentially de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.banc 1993). The propriety of summary judgment is purely an issue of law. Id. Summary judgment is proper only in those situations in which the movant can establish that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. ITT, 854 S.W.2d at 377; Rule 74.04. The movant has the burden to show a right to judgment flowing from facts about which there is no genuine dispute. ITT, 854 S.W.2d at 378. We review the record in the light most favorable to the party against whom judgment was entered, and accord the non-movant the benefit of all reasonable inferences from the record. ITT, 854 S.W.2d at 376.

If there is no contradiction and the mov-ant has shown a right to judgment as a matter of law, the non-movant must create a genuine dispute by supplementing the record with competent materials that establish a plausible, but contradictory, version of at least one of the movant’s essential facts. ITT, 854 S.W.2d at 376. It is not the “truth” of the facts upon which the court focuses, but whether those facts are disputed. Id. Where they are not, the facts are admitted for purposes of analyzing a summary judgment motion. Id.

If the trial court grants summary judgment without specifying the basis upon which it was granted, we will uphold the decision if it was appropriate under any theory. Taryen Dev., Inc. v. Phillips 66 Co., 31 S.W.3d 95, 97-98 (Mo.App. E.D.2000). Here, the trial court’s grant of summary judgment is premised upon affirmative defenses raised by Respondents. To affirm the judgment below, therefore, we must conclude that Respondents’ motion sets forth undisputed facts which establish every element of one of those affirmative defenses. Transatlantic Ltd. v. Salva, 71 S.W.3d 670, 674 (Mo.App. W.D.2002).

Discussion

Statute of Frauds — Point I

Respondents’ motion for summary judgment raised a single alleged violation of the statute of frauds, to-wit: the lack of a date certain for transfer of the real estate. Respondents cite no applicable authority in support of their assertion that the lack of a date certain for transfer in the agreement sub judice violates the statute of frauds. The statute of frauds provides that “[n]o action shall be brought ... upon any contract made for the sale of lands, tenements, hereditaments, or an interest in or concerning them ... unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith.... ” Section 432.010. To satisfy the statute of frauds, when the party to be charged is the putative seller of real estate, there must be a writing signed by that party reflecting a promise to sell. Smith v. International Paper Co., 87 F.3d 245, 247 (8th Cir.1996); Gillespie v. Pulsifer, 655 S.W.2d 123, 125 (Mo.App. W.D.1983). The existence of a writing signed by Appellant and Gene reflecting a promise to sell the real estate is an uncontested fact in this case.

A writing satisfies the statute of frauds’ “memorandum” requirement if it sets forth the essential terms of a contact. In re Estate of Looney, 975 S.W.2d 508, 515 (Mo.App. S.D.1998). The essential elements of an agreement to convey real property are: the parties, the subject matter, the consideration, the price, and promises upon both sides. Id., Skaggs v. Dial, 861 S.W.2d 188, 192 (Mo.App. W.D.1993). When these essential provisions exist in a document, it is specifically performable even though it may leave something to be desired in draftsmanship or could have been more clearly stated. Looney, 975 S.W.2d at 515. A writing need not be an explicit and complete contract, and the terms therein need not be definite, as long as the substance of the agreement appears from the writing. Id. The terms may be made certain when the circumstances are shown by extrinsic evidence. Id.; see also, Teets v. American Family Mut. Ins. Co., 272 S.W.3d 455, 465 (Mo.App. E.D.2008), quoting G.H.H. Inv. L.L.C. v. Chesterfield Mgmt., 262 S.W.3d 687, 695 (Mo.App. E.D.2008) (“While we agree the Agreement contains no date marked on a calendar or specific time period that delineates the end of the Agreement, this Court has held that ‘[t]ime for performance may be specifically determined by external events.’ ”).

Here, although the contract at issue does not contain a date certain for performance, that omission does not implicate a violation of the statute of frauds. The “essential” terms of unperformed promises must be stated; “details or particulars” need not. Restatement (Second) of Contracts: The Statute of Frauds § 131 General Requisites of a Memorandum (1981). What is essential depends on the agreement and its context and also on the subsequent conduct of the parties, including the dispute which arises and the remedy sought. Id. In the instant case, the date of Gene’s sale of the property to Appellant was not essential or pertinent to their particular agreement. What was essential in terms of time constraints was that the property not be sold before 18 months. That was the nature of their agreement, and the time for it to be sold by Gene to Appellant was not of the essence in their agreement. “A memorandum of an agreement for the sale of land is not necessarily insufficient to satisfy the requirements of the statute of frauds because the time for performance is hot stated therein.” 72 Am.Jur.2d Statute of Frauds § 340 (1974). The memorandum need contain no reference to time where, if no time is agreed upon, the law will imply a reasonable time. 10 Samuel Willi-ston & Richard A. Lord, A Treatise on the Law of Contracts § 29:8 (4th ed.1999). See also, 72 Am.Jur.2d, supra, (“In case of an executory contract of sale, where time for execution of conveyance or transfer is not limited, law implies it to be done within reasonable time, and failure to incorporate in memorandum such a statement does not render it insufficient”) and Kludt v. Connett, 350 Mo. 793, 168 S.W.2d 1068, 1072 (1943) (memorandum is sufficient even though fails to state time and place for performance of contract; law implies a reasonable time).

The Restatement provides an illustration of the above stated principle:

A and B enter into an oral contract for the sale of Blackacre by A to B. A memorandum is made and signed which states sufficiently the parties, subject matter and terms of the oral bargain except that, though the parties in fact orally agreed that the price should be payable on delivery of a deed, the memorandum contains no statement as to when the price is payable. The memorandum is sufficient.

Restatement (Second) of Contracts § 131, cmt. g, illus. 15. The Restatement also instructs that “[o]mission or erroneous statement of an agreed term makes no difference if the same term is supplied by implication or by rule of law.” Restatement (Second) of Contracts § 131.

For the foregoing reasons, we find that the trial court should not have granted summary judgment in favor of Respondents on the basis of the statute of frauds, as they did not show that as a matter of law, the agreement’s lack of a date certain for performance violated the statute of frauds. Accordingly, Point I is granted.

Statute of Limitations — Point II

Respondents contend that Appellant’s ability to assert any right to purchase the subject real estate would have accrued no later than November 12, 1996, 18 months after the date Respondents purchased the real estate. Consequently, according to Respondents, any claim Appellant had to enforce the terms of the contract expired ten years later, on November 12, 2006. See Section 516.110. Section 516.110(1) provides:

What action shall be commenced within ten years

Within ten years:

(1) An action upon any writing, whether sealed or unsealed, for the payment of money or property;.. ..

Respondents contend that as Appellant first maintained his cause of action in this matter on October 31, 2007, his cause of action is barred by the statute of limitations, as a matter of law.

There are insufficient facts in Respondents’ statement of undisputed facts to support their affirmative defense of the statute of limitations. Respondents did not state that Appellant first maintained his cause of action in this matter on October 31, 2007 in their statement of undisputed facts. They stated that Appellant failed to formally assert any legal or equitable rights involving the real estate for an eleven-year period following “any right, valid or not, to purchase the real estate.” This “right, valid or not, to purchase the real estate” is a legal determination or conclusion ill-suited to a statement of fact, and is vague at that. The statement of facts does not assert a date the statute of limitations began to allegedly run. Furthermore, Appellant denied this statement in his response to Respondents’ statement of undisputed facts. Therefore, this statement was neither an undisputed “fact,” nor was it admitted for purposes of Respondents’ motion for summary judgment based on the statute of limitations.

Accordingly, the summary judgment record was insufficient to establish that there was no disputed material issue of fact regarding the expiration of the applicable statute of limitations in this case. Therefore, Respondents are not entitled to judgment as a matter of law on this basis. Point II is granted.

Laches — Point III

Respondents assert that the doctrine of laches also bars Appellant’s claims against them. “The invocation of laches requires that a party with the knowledge of facts giving rise to its rights unreasonably delays asserting them for an excessive period of time and the other party suffers legal detriment therefrom.” Nahn v. Soffer, 824 S.W.2d 442, 444-45 (Mo.App. E.D.1991). In determining whether the doctrine of laches applies in a particular case, an examination is made of “the length of delay, the reasons therefor, how the delay affected the other party, and the overall fairness in permitting the assertion of the claim.” Id. at 445.

Respondents claim that:

Appellant, as drafter of the writing under which he seeks relief, had knowledge of the facts that gave rise to his rights, if any, while unreasonably delaying any assertion of those rights for an excessive period of time. This was to Respondents’ legal detriment as it has subjected them to litigation more than a decade after Appellant’s alleged cause of action accrued. Additionally, despite always being aware of his alleged rights, Appellant waited more than 10 years after the date the 18-month holding period concluded to bring this claim and assert his legal rights to the property in question. This Court should find this delay was unreasonable delay.

Respondents claim they have been damaged by numerous changes of position that would have not occurred but for the delay, to-wit: they have paid taxes on the property; they have leased the property to another tenant; they have transferred the property to their trust; and they had to respond to Appellant’s claims.

Again, the vast majority of these facts were not set forth in Respondents’ statement of uncontroverted facts in support of their motion for summary judgment based on their affirmative defense of laches, and their claims are therefore wholly unsupported by the summary judgment record. “All facts must come into the summary judgment record in the manner required by Rule 74.04(c)(1) and (2), that is, in the form of a pleading containing separately numbered paragraphs and a response addressed to those numbered paragraphs.” Cross v. Drury Inns, Inc., 32 S.W.3d 632, 636 (Mo.App. E.D.2000). “When a movant needs to supplement the motion with new facts, the movant should withdraw the original motion and file a new or amended motion incorporating the additional evidence.” Id. A second motion for summary judgment based on an expanded record is permissible. Id., M & P Enterprises, Inc. v. Transamerica Financial Services, 944 S.W.2d 154, 162 (Mo. banc 1997).

In the instant case, Respondents expanded their laches argument with additional facts not included in the record pursuant to Rule 74.04(c)(1) and (2). The facts properly in the record are wholly deficient to support a claim of laches. As such, Respondents are clearly not entitled to summary judgment based on this affirmative defense. For these reasons, Point III is granted.

Conclusion

The summary judgment of the trial court is reversed and this case is remanded for further proceedings consistent with this opinion.

KATHIANNE KNAUP CRANE, P.J., and ROBERT G. DOWD, JR., J., concur.

      . Count V, entitled Damages for Crop Loss, was dismissed without prejudice by Appellant in order to facilitate a final judgment for this appeal.

      . All rule references are to Mo. R. Civ. P.2008, unless otherwise indicated.

      . Respondents cite Johnson v. Cook, 167 S.W.3d 258, 263-64 (Mo.App. E.D.2005), for the proposition that “ ‘the date for performance or closing date' must be proven by clear, cogent, unequivocal and convincing evidence, at a minimum, for purposes of determining whether exceptions apply to the statute of frauds.” [Emphasis added]. Johnson involved an oral contract to which the appellant was attempting to introduce parol evidence by virtue of the fraud exception to the statute of frauds. Our resolution of the statute of frauds issue in this case does not rely upon an exception thereto.

      . All statutory references are to RSMo 1994, unless otherwise indicated.

      . If Respondents maintain the statute of limitations began to run at the expiration of the 18-month holding period, they are wrong as a matter of law. The contract clearly sets forth no specific date that the sale and purchase of the property was to be accomplished. The right to sue arises "on the failure to do the thing contracted for at the time and in the manner contracted.” Hart v. Dick, 570 S.W.2d 820, 822 (Mo.App.K.C.1978). There was no time specified in the agreement for Respondents to sell and Appellant to purchase the property. "If no exact time was specified then a cause of action did not accrue and the statute of limitations did not begin to run.” Id. The law then implies a reasonable time for performance. Hemsath v. City of O’Fallon, 261 S.W.3d 1, 6 (Mo.App. E.D.2008). (See also our discussion of Point I). Thus, the element which Respondents were required to establish, or at least allege in their statement of undisputed facts, to defeat Appellant’s claim of specific performance under the statute of limitations was an exact date on which it was agreed the deed would be delivered. This they did not do.