author: GARY W. LYNCH, Presiding Judge.

text:
    Betty HOUSTON, Wayne Keathley, Leslie Marsden, Monica Keathley, Judy Payne, Janet McDowell, Dennis Smith, and Gary McDowell, Plaintiffs-Respondents, v. Sherry L. CRIDER and John L. Crider, Defendants-Appellants.
    No. SD 29879.
    Missouri Court of Appeals, Southern District, Division Two.
    July 20, 2010.

      John M. Albright and Daniel T. Moore, Moore, Walsh & Albright, L.L.P., Poplar Bluff, MO, for Appellants.
    Matthew B. Lee and James E. Spain, Spain, Miller & Spain, L.L.C., Poplar Bluff, MO, for Respondents.
   GARY W. LYNCH, Presiding Judge.

Sherry L. Crider and John L. Crider, (individually “Sherry” and “John” and collectively “Defendants”) appeal the trial court’s judgment setting aside a deed dated September 22, 2003, from Irene Nor-ried conveying to Sherry a house and lot (“property”) owned by Irene in Van Burén, Missouri. Finding no merit in either of Defendants’ claims of trial court error, we affirm.

Factual and Procedural Background

The property was originally owned by Ben Keathley. With his first wife, Ben had a son, Harrison Keathley. Harrison had two children, Jo Ann and David Keathley. Ben and his second wife, Lelah, had five children — Edda Mae, Wayne, Billie, Ervin, and Betty — who are now all deceased. Their children, Ben and Lelah’s grandchildren, are the plaintiffs in this action. After Lelah’s death, Ben married Lelah’s niece, Inez Hughes. Inez was the sister of Irene Norried.

Inez acquired the property upon Ben’s death. Thereafter, she conveyed the property to herself and Irene as joint tenants with right of survivorship. Upon Inez’s death, Irene became the sole owner of the property. On September 1, 2000, Irene executed a beneficiary deed naming Wayne Keathley, Ervin Keathley, Betty Houston, Joan Copper, David Keathley, Gary McDowell, Judy Payne, Janet McDowell, Dennis Smith, Penny Carson, and Kent Smith — all of Ben’s lineal descendants — as beneficiaries of the property upon her death. Irene died on July 1, 2005, at the age of 94.

Sherry was not related to Irene by blood or marriage. Her relationship with Irene began in 1996, before Inez died, when David Keathley, Sherry’s then-boss, asked her to start taking Irene’s mail to her. Over time, Sherry began doing additional things for Irene, such as taking her to the doctor or bank, filling out her checks for bills, and other general chores. Irene was dependent on other people to get her around or bring her things, as she did not drive and had to use a walker for ambulation. As Sherry’s relationship with Irene grew, Irene became more distant and reclusive from family members and friends.

In the last four years of her life, Irene began to physically and mentally deteriorate. During this time, Sherry observed that Irene’s arthritis was bothering her more and more. In addition, according to Sherry, Irene was losing weight, getting weaker, tiring more quickly, and had blurred vision, joint pain, back pain, and muscle weakness. Friends and members of Irene’s family began to notice that she appeared confused, was unable to recognize people she had known for years, and exhibited paranoia. Starting somewhere around 2001, family members who had known Irene for years observed that Irene did not recognize them. Irene began complaining about members of her family throwing sewage on her house and about the smell created by the sewage. None of her family or friends ever observed any sewage or its smell at her house.

David Keathley — Ben’s grandson — and his wife, Joyce, lived next door to Irene. Joyce visited Irene several times a week. During the summer of 2001, Joyce noticed that Irene was becoming confused, more distant from Joyce, and paranoid that family members were trying to kill her. Joyce testified that in 2001, Irene was not able to write checks for herself and, when she signed checks placed in front of her, she was oblivious as to their amount or purpose. That same year, Joyce started hearing complaints from Irene about a smell in her house. Irene complained to her that someone had dug up dead bodies in her yard. Joyce never smelled the odor Irene described to her or saw any dead bodies. According to Joyce, once Irene started to deteriorate mentally, it went fast. Joyce testified that Irene’s vision also began to fail sometime around 2001. Her vision problems were so bad that it forced Irene to stop taking her usual walks because she might fall.

Starting around 2000 or 2001, Joyce began noticing that Sherry was over at Irene’s house with much more frequency than in the past. Joyce testified that as Sherry’s relationship with Irene grew, Irene’s relationship with the rest of the family cooled. Joyce did not know why Sherry was paying so much attention to Irene, but it gave her cause for concern.

David, a licensed attorney, testified that from the year 2000 until her death, he saw Irene almost every day. Beginning in 2001 and thereafter, David noticed that Irene was having hallucinations and that she was vulnerable and paranoid. On numerous occasions, Irene spoke to David of her fear of being kicked out of the home, and did not understand that she owned the home. Irene’s actions concerned David enough that, although he wanted to buy Irene’s house and grant her a life estate to allay her fears, he would not do it without the approval of all members of the family because he believed that Irene was not competent to dispose of her property. David never saw any improvement in Irene’s mental or physical faculties after 2001, but rather, he observed her continual deterioration.

According to David, Sherry started focusing attention on Irene after Inez died. David noticed that the closer Sherry became with Irene, the more strained Irene’s relationships became with family members. He testified that, starting in 2002, Irene eventually became convinced that her family was trying to kill her. At one point after Sherry was going to Irene’s house more and more often, David informed Sherry she did not have to do so much for Irene. Sherry responded to him, “It will be worth my time.”

On April 11, 2002, Sherry drove Irene to First Midwest State Bank, where Irene banked. A letter, typed by someone other than Irene but signed by her, was given to the bank requesting it to release to Sherry any and all information regarding Irene’s accounts, safety deposit box, and certificates of deposit. Four days later, at least three of Irene’s certificates of deposit were made payable on death to Sherry. Before this change, Sherry had no actual or potential interest in any of Irene’s assets. In November 2002, Sherry’s name was added to Irene’s checking account. On November 20, 2002, Sherry’s name was added to Irene’s safety deposit box at the bank. After Sherry was granted such authority, no one other than Sherry ever accessed Irene’s safety deposit box again.

Irene signed a durable power of attorney on December 9, 2002, naming Sherry as her attorney-in-fact. This she did after Sherry called an attorney to set up an appointment for Irene and drove her to the attorney’s office. Also, starting in December 2002, Irene began periodically signing checks to Sherry in varying amounts, the largest of which was $2,300.00. On May 22, 2008, Irene executed a will leaving all of her property, regardless of its nature or location, to Sherry.

On September 22, 2003, by general warranty deed, Irene deeded the property to Sherry. Sherry drove Irene to the attorney’s office to execute this deed. Thus, between April 2002 and September 2003, Irene had named Sherry as the beneficiary of almost all of her property. Irene died on July 1, 2005, leaving Sherry $39,292.60 in certificates of deposit, $43,000.00 in a checking account, and the property.

After Irene’s death, Plaintiffs instituted this action to set aside the September 22, 2003, deed to the property from Irene to Sherry, claiming that it was procured by Sherry’s exertion of undue influence over Irene. Following a bench trial, the trial court entered judgment setting aside the deed. This appeal followed.

Standard of Review

On appeal of an equitable action to set aside a deed, the trial court’s judgment will be sustained unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Landers v. Sgouros, 224 S.W.3d 651, 655 (Mo.App.2007). “When reviewing a court-tried case, we view all evidence and inferences in the light most favorable to the judgment and disregard all contrary evidence and inferences.” Id. (quoting Ortmann v. Dace Homes, Inc., 86 S.W.3d 86, 88 (Mo.App.2002)). “We defer to the trial court’s determinations as to the credibility of witnesses.” Id.

Discussion

Defendants raise two points on appeal. Both are governed by the following principles.

“A deed procured by the exercise of undue influence is rendered invalid.” Pike v. Pike, 609 S.W.2d 397, 402 (Mo. banc 1980). “The test is whether the grantor’s free agency and voluntary action were thwarted.” Id. “While neither direct testimony nor overt acts operating at the moment of the instrument’s execution need be shown, the facts and circumstances from which undue influence can be inferred must be proved by clear, cogent and convincing evidence.” [ ] Id. at 402-03 (internal citations omitted); see Lee v. Hiler, 141 S.W.3d 517, 523 (Mo.App.2004).
“The cases recognize that undue influence is seldom susceptible of direct proof and that generally it must be deduced from the circumstances of the particular case.” Reeves v. Boone, 591 S.W.2d 118, 121 (Mo.App.1979). “It is necessary that the undue influence be operative at the time of execution of the deed sought to be set aside.” Robertson, 15 S.W.3d at 413.

Landers, 224 S.W.3d at 660. The existence of one particular circumstantial scenario has been recognized as raising a presumption of undue influence in procuring the execution of a deed. Duvall v. Brenizer, 818 S.W.2d 332, 335 (Mo.App.1991). “The ‘presumption’ is raised when there is a confidential relationship, a deed favoring the one acting in the fiduciary capacity, and some evidence ‘from which the Court can infer undue influence!)]’ ” Id. (quoting Davis v. Pitti, 472 S.W.2d 382, 387-89 (Mo.1971)). Substantial evidence supporting all three prongs of the presumption, even in the face of contrary evidence tending to rebut the presumption, is sufficient to support a judgment that a deed was the product of undue influence. Id.

Trial Court did not rely upon and, thus, misapply section 4-61.054-

Defendants assert in their first point that the trial court misapplied the law by relying upon section 461.054, related to procuring a beneficiary designation by undue influence, to reach its legal conclusion that Sherry exerted undue influence upon Irene to procure the execution of the deed in her favor. While section 461.054 is not mentioned in the trial court’s judgment, Defendants argue, nevertheless, that the trial court relied upon that statute in reaching its conclusion because the three cases cited by the trial court in its judgment are “actions brought pursuant to Chapter 461” and are, thus, “inappropriate precedence.” Defendants’ point has no merit.

In its judgment, the trial court cited to In re Estate of Goldschmidt, 215 S.W.3d 215, 221 (Mo.App.2006), for the proposition that “a presumption of undue influence arises where there is substantial evidence showing (1) a confidential and fiduciary relationship, (2) that the fiduciary obtained a benefit, and (3) some additional evidence from which there is an inference of undue influence.” While Defendants are correct that Goldschmidt was an action under section 461.054, the three prongs of the undue-influence presumption articulated by the Court in that case, and relied upon by the trial court in its judgment here, are substantively identical to the three prongs of the undue-influence presumption in an equitable action to set aside a deed due to undue influence, as previously discussed. Duvall, 818 S.W.2d at 335; Davis, 472 S.W.2d at 387-89. In applying the undue-influence presumption, the trial court explicitly found that Defendants conceded the first two prongs of the presumption— that a confidential and fiduciary relationship existed between Irene and Sherry and that Sherry obtained a benefit from that relationship, i.e., the deed in her favor. Neither of these findings is challenged by Defendants in this appeal.

The trial court next turned to the third prong of the presumption as the only issue in dispute — “whether there is substantial evidence from which there is an inference of undue influence.” In its judgment, the trial court quoted from Duerbusch v. Karas, 267 S.W.3d 700, 708 (Mo.App.2008), and In the Estate of Gross, 840 S.W.2d 253, 257 (Mo.App.1992), that “undue influence is often proved by circumstantial evidence” and “persons exerting undue influence will do so in as subtle, furtive, indirect and elusive a manner as possible and such influence may therefore be shown indirectly by the reasonable and natural inferences drawn from the facts and circumstances proved.” As previously discussed in the general principles governing this case, the former proposition has been explicitly applied in suits in equity to set aside a deed due to undue influence. Landers, 224 S.W.3d at 660; see also Davis, 472 S.W.2d at 387. The latter concept — that the concealed nature of acts of undue influence can give rise to reliance upon reasonable inferences drawn from the surrounding circumstances to find undue influence — has been utilized in the context of an equitable action to set aside a deed for undue influence. See Davis, 472 S.W.2d at 387. Other than the bare assertion that Duer-busch and In re Gross were Chapter 461 actions, Defendants make no argument that the underlying propositions articulated by the trial court do not apply to the facts in this case or should not have been relied upon by the trial court in entering its judgment in this case.

Defendants have failed to direct us to, or otherwise argue that, any specific legal conclusion supported by the trial court in its judgment by citation to Gold-schmidt, Duerbusch, or In re Gross, has no application to this action or is otherwise in any way a misapplication of the law concerning a determination of undue influence in a suit in equity to set aside a deed. Defendants’ first point is denied.

Defendants fail to demonstrate that the judgment is not supported by substantial evidence or is against the weight of the evidence

In their second point, Defendants assert that the trial court’s judgment setting aside the deed as a product of Sherry’s undue influence upon Irene is not supported by substantial evidence and is against the weight of the evidence. This is so, Defendants argue, because

[Irene] gave all of her property to the people who assisted her during her lifetime, the medical records showed no sign of mental infirmity, those claiming mental infirmity never sought a guardianship, nor did they try to set aside the deed during the grantor’s lifetime and, rather than giving weight to the grant- or’s independent advice of counsel in the preparation of the deed, the trial court sought to infer undue influence based on the Appellant driving the grantor to the lawyer.

We begin our analysis of this point noting that “[t]he trial court’s judgment is presumed valid and the burden is on the appellant to demonstrate its incorrectness.” Bowles v. All Counties Inv. Corp., 46 S.W.3d 636, 638 (Mo.App.2001) (quoting Schaefer v. Rivers, 965 S.W.2d 954, 956 (Mo.App.1998)).

“Substantial evidence is that which, if true, has probative force upon the issues, and from which the trier of fact[ ] can reasonably decide the case.” Williams v. Daus, 114 S.W.3d 351, 359 (Mo.App.2003) (internal citations and quotations omitted).- We view the evidence and the reasonable inferences drawn from the evidence in the light most favorable to the judgment, disregard all evidence and inferences contrary to the judgment, and defer to the trial court’s superior position to make credibility determinations. Landers, 224 S.W.3d at 655. Due to that superior position, “ ‘a trial court is free to believe or disbelieve all, part, or none of the testimony of any witness.’ ” Lueckenotte v. Lueckenotte, 34 S.W.3d 387, 394 (Mo. banc 2001) (quoting Burkhart v. Burkhart, 876 S.W.2d 675, 678 (Mo.App.1994)). Thus, any citation to or reliance upon evidence and inferences contrary to the judgment is irrelevant and immaterial to an appellant’s point and argument challenging a factual proposition necessary to sustain the judgment as being not supported by substantial evidence. Such contrary facts and inferences provide no assistance to this Court in determining whether the evidence and inferences favorable to the challenged proposition have probative force upon it, and are, therefore, evidence from which the trier of fact can reasonably decide that the proposition is true. See Williams, 114 S.W.3d at 359.

On the other hand, “[w]eight of the evidence refers to weight in probative value, not quantity or the amount of evidence. The weight of evidence is not determined by mathematics, but on its effect in inducing belief.” Gifford v. Geosling, 951 S.W.2d 641, 643 (Mo.App.1997) (quoting Silver Dollar City v. Kitsmiller Constr., Inc., 931 S.W.2d 909, 918 n. 18 (Mo.App.1996)). Thus, an against-the-weight-of-the-evidence challenge presupposes the threshold issue of the existence of substantial evidence supporting a proposition necessary to sustain a judgment, but, nevertheless, challenges the probative value of that evidence to induce belief in that proposition when viewed in the context of the entirety of the evidence before the trier of fact. Although consideration of probative value necessarily involves some consideration of evidence contrary to the judgment, we nevertheless “defer to the trial court as the finder of fact in our determination as to whether ... that judgment is against the weight of the evidence.” Wildflower Cmty. Ass’n, Inc. v. Rinderknecht, 25 S.W.3d 530, 536 (Mo.App.2000) (quoting Venture Stores, Inc. v. Pacific Beach Co., Inc., 980 S.W.2d 176, 180 (Mo.App.1998)). Accordingly, where the resolution of conflicting testimony is required to determine the merits of an against-the-weight-of-the-evidence argument, we defer to the trial court’s credibility determinations in the same manner as in the resolution of a not-supported-by-substantial-evidence argument. Luecken-otte, 34 S.W.3d at 394. A court will set aside a judgment as “against the weight of the evidence” only when it has a “firm belief that the judgment is wrong.” Gifford, 951 S.W.2d at 643.

From the above, a distinct analytical framework emerges for each type of challenge to the evidentiary basis of a judgment. A not-supported-by-substantial-evidence challenge requires completion of three sequential steps:

(1) identify a challenged factual proposition, the existence of which is necessary to sustain the judgment;
(2) identify all of the favorable evidence in the record supporting the existence of that proposition; and,
(B) demonstrate why that favorable evidence, when considered along with the reasonable inferences drawn from that evidence, does not have probative force upon the proposition such that the trier of fact could not reasonably decide the existence of the proposition.

On the other hand, an against-the-weight-of-the-evidence challenge requires completion of four sequential steps:

(1) identify a challenged factual proposition, the existence of which is necessary to sustain the judgment;
(2) identify all of the favorable evidence in the record supporting the existence of that proposition;
(B) identify the evidence in the record contrary to the belief of that proposition, resolving all conflicts in testimony in accordance with the trial court’s credibility determinations, whether explicit or implicit; and,
(4) demonstrate why the favorable evidence, along with the reasonable inferences drawn from that evidence, is so lacking in probative value, when considered in the context of the totality of the evidence, that it fails to induce belief in that proposition.

It is within this framework that we now turn to discuss Defendants’ second point. In that point, Defendants challenge the proposition, as found in the trial court’s judgment, that Sherry exerted undue influence over Irene to obtain the deed. Defendants challenge this proposition as being both not supported by substantial evidence and against the weight of the evidence. Defendants’ identification of this proposition satisfies the first step of each challenge. Similarly, Defendants have extensively and thoroughly set out the evidence in the record contrary to this proposition, which, while not related or relevant to their not-supported-by-substantial-evidence challenge, satisfies the third step of their against-the-weight-of-the-evidence challenge. Defendants, however, trip on the second step of each challenge — identification of the evidence in the record favorable to the judgment — and, thus, doom their ability to satisfy the last step of each challenge.

Defendants cite no facts favorable to the trial court’s finding of undue influence in their point relied on and make only minimal references to such evidence in their argument on this point. Those references are scattered throughout Defendants’ argument and are limited to the facts that: (1) Sherry drove Irene to her doctor, bank, and attorney’s office; (2) Sherry was designated as attorney-in-fact under Irene’s durable power of attorney, granted access to Irene’s safety deposit box, designated as a payable-on-death beneficiary on several of Irene’s certificates of deposit, and added to Irene’s checking account; (3) the record includes many years of Irene’s checks, Sherry filled out the checks, and many of the checks were payable to Sherry; (4) Irene had strange complaints that her house smelled funny and Sherry laid new carpet in response to those complaints; and, (5) the “case included a claim [that Sherry] said caring for Irene would be worth her time.”

In taking this minimalist approach, Defendants fail to identify evidence of Irene’s general state of confusion, inability to recognize people she knew, belief that her family members were trying to kill her, belief that sewage was being thrown on her house, belief that dead bodies had been dug up in her yard, or inability to comprehend the amount or purpose of the checks she signed. Similarly, Defendants fail to identify the evidence of Irene’s diminishing physical condition during the relevant time period. Likewise, Defendants do not mention any evidence of Irene’s growing isolation and emotional distancing from her family, hallucinations, paranoia, and general diminished mental capacity, which occurred during the same time period that Sherry made herself increasingly available to provide for Irene’s needs. Nor do they identify the evidence that, in addition to driving Irene to the attorney’s office, Sherry made the appointments with the attorney and may have provided the legal description for the deed to the attorney. Defendants also fail to acknowledge the typed letter signed by Irene that was presented to the bank authorizing the release of information to Sherry on all of Irene’s accounts at the bank. While there was no direct evidence as to who prepared this letter, its existence and delivery to the bank immediately after Sherry drove Irene there, coupled with Irene’s diminished mental capacity, growing isolation from family, and Irene’s concomitant dependence upon Sherry within a confidential and fiduciary relationship, gives rise to a reasonable inference that Sherry either prepared the letter or caused it to be prepared.

It follows that Defendants’ failure to fully identify and develop the evidence favorable to the finding of undue influence necessarily undermines their ability to demonstrate how that favorable evidence did not have probative force upon the issue of undue influence such that the trier of fact could not reasonably decide its existence — the third and last step necessary to mount a not-supported-by-substantial-evidence challenge. The exclusion of material favorable evidence renders Defendants’ attempted demonstration analytically useless and provides no support for sustaining Defendants’ challenge.

Similarly, the failure to fully identify all material favorable evidence undermines Defendants’ ability to demonstrate why that evidence was so lacking in probative value, when considered in the context of the totality of the evidence, that it failed to induce belief in the existence of undue influence — the fourth and last step necessary to mount an against-the-weight-of-the-evidence challenge. The omission of material favorable evidence from the weighing process strips Defendants’ purported demonstration of any analytical value or persuasiveness.

To support a favorable decision for Defendants on this point would require this Court to devise and articulate its own demonstration of how the omitted favorable evidence, either by itself or considered along with the partial favorable evidence included by Defendants in their argument, is not substantial evidence or is lacking in probative value as compared to the totality of the evidence, so as to be against the weight of the evidence. Such action on our part would thrust us into becoming an advocate on Defendants’ behalf; a role we are prohibited from assuming. Boyd v. Boyd, 134 S.W.3d 820, 824 (Mo.App.2004). Defendants’ second point is denied.

Decision

The trial court’s judgment is affirmed.

SCOTT, C.J., and MCGHEE, Sr.J., concur.

      . Because some family members share the same last name, we use first names for clarity. No disrespect or familiarity is intended. Also for clarity, we refer to the respective parties as referenced in the trial court: Plaintiffs and Defendants.

      . The trial court’s judgment also set aside a subsequent deed to the property dated July 5, 2005, from Sherry and John to themselves as husband and wife. Because the validity of this deed is dependent upon the validity of the first deed from Irene to Sherry, the parties in their briefs and this Court in this opinion have limited the discussion solely to the validity of the first deed.

      . The preceding factual background was prepared in accordance with this standard of review.

      . All statutory references are to RSMo 2000.

      . Section 461.054 provides, in pertinent part:
      1. A beneficiary designation or a revocation of a beneficiary designation that is procured by fraud, duress or undue influence is void. ⅜ ⅜ ⅜ ⅜
      3. On petition of any interested person or the transferring entity, the trier of fact shall determine whether a beneficiary designation or a revocation of a beneficiary designation is void by reason of subsection 1 of this section. ... The trier of fact may mitigate the effect of subsection 1 or 2 on any person as the trier of fact determines justice requires. Any party may demand a jury trial.

      . We note that Defendants are incorrect in their characterization of In re Estate of Gross as a Chapter 461 action. It was a discovery-of-assets proceeding under section 473.340, seeking to recover personal property held by decedent and the defendant as joint tenants. In re Estate of Gross, 840 S.W.2d at 255.

      . Defendants argue in their point and in the relevant argument portion of their brief that the trial court failed to make findings of fact or conclusions of law on a number of issues other than those which the trial court supported by citation to one of these three cases. Defendants made no request for such findings of fact or conclusions of law, as provided by Rule 73.01(c). In the absence of such a request, a trial court does not err in failing to make findings of fact or conclusions of law. Hammons v. Ehney, 924 S.W.2d 843, 850 (Mo. banc 1996). Moreover, Defendants did not raise such claimed omissions in a timely motion to amend the judgment, pursuant to Rule 78.07(c). Thus, Defendants have waived and failed to preserve for appellate review any allegations of error related to the language of the judgment or any required findings. Rule 78.07(c); Stuart v. Ford, 292 S.W.3d 508, 517 (Mo.App.2009).
      All rule references are to Missouri Court Rules (2009).

      . A challenge to the admissibility of evidence is a third type of challenge to the evidentiary basis of a judgment, but no such challenge is raised in this appeal. We note, however, that admissibility challenges must be resolved first in order to determine the universe of evidence from which to decide whether a proposition necessary to sustain a judgment is not supported by substantial evidence or is against the weight of the evidence. We also note that an admissibility-of-evidence challenge may not be raised “under the guise of a sufficiency of evidence argument.” Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 860 (Mo. banc 1993).

      . Because each challenge requires differing views of the evidence and how that evidence relates to the evidentiary support for the challenged proposition, best practice would dictate that each challenge should be asserted in separate points relied on. Separating the two challenges in this manner assists an appellant in presenting a clear, cogent, and concise argument for each relying only upon the view of the evidence relevant to that particular challenge. It would also eliminate the natural tendency, which we observe on a regular basis when these challenges are combined in one point, to rely upon and argue evidence and inferences contrary to the proposition in attempting to demonstrate that it is not supported by substantial evidence, when such evidence and inferences are only relevant and material to an against-the-weight-of-the-evidence challenge.

      . From our review of the record to determine whether Defendants fully identified all the material favorable evidence in the record supporting a finding of undue influence, leading to our conclusion that they did not, we ex gratia note that the trial court’s finding of undue influence, based upon the existence of all three prongs of the presumption of undue influence, as discussed under Defendant’s first point, is supported by substantial evidence and is not against the weight of the evidence. Inexplicably, Defendants make no mention of this presumption in their brief. Defendants' reliance on Lape v. Oberman, 284 S.W.2d 538 (Mo.1955), is misplaced because our Supreme Court found that no confidential or fiduciary relationship existed and, thus, the presumption failed. Lape, 284 S.W.2d at 542. Likewise, Wingate v. Griffin, 610 S.W.2d 417 (Mo.App.1980), also relied upon by Defendants, is distinguishable in that the trial court in that case found no undue influence, which, unlike the situation presented here, resulted in the evidence on appeal being viewed in the light favorable to that finding. Wingate, 610 S.W.2d at 418. The evidence in Wingate, viewed in that light, supported a finding that the grantor “freely executed the deed in question.” Id. at 420.


source: Caselaw Access Project

author: LAWRENCE E. MOONEY, Judge.

license: Public Domain

text:
    PEACHTREE APARTMENTS, Respondent, v. Norman PALLO, Appellant.
    No. ED 93824.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 20, 2010.

      William C. Dunning, St. Louis, MO, for appellant.
    Randall J. Reinker, St. Louis, MO, for respondent.
   LAWRENCE E. MOONEY, Judge.

The defendant, Norman Pallo (“the tenant”), and his counsel appeal from the judgment entered by the Circuit Court of St. Louis County purporting to award attorney’s fees to counsel for the plaintiff, Peachtree Apartments (“the landlord”), as a sanction because the tenant filed a motion to quash execution. We conclude that the trial court was without jurisdiction to enter its judgment sanctioning the tenant’s counsel because the tenant withdrew his motion as moot before the motion for sanctions was even filed. Thus, the trial court lost jurisdiction to enter any order. Therefore, we remand and order the trial court to vacate its judgment sanctioning the tenant’s counsel.

In the principal case, the landlord sued the tenant for rent due and possession of an apartment, which the tenant leased from the landlord. The parties entered a consent judgment on July 28, 2009, whereby they agreed to suspend execution for possession of the apartment so long as the tenant paid the rent awarded the landlord. The tenant failed to pay the first installment on the agreed date. The parties disputed whether the landlord nonetheless accepted the tenant’s first payment two days late, and the effect on the consent judgment. In any event, the landlord sought to execute on the judgment and gain possession of the apartment. The tenant responded by filing a motion to quash execution. On September 1, 2009, apparently having decided to immediately vacate the apartment, the tenant withdrew his motion to quash as moot. The landlord acknowledged the tenant’s withdrawal of the motion to quash for mootness, and the trial court ordered the motion withdrawn as moot on that date.

The next day, September 2, 2009, the landlord filed a motion for sanctions with the court, citing Missouri Supreme Court Rule 55.0S. The landlord’s motion for sanctions alleged that the tenant failed to make timely payment under the terms of the consent judgment, and that he filed a frivolous motion to quash in an attempt to delay execution, thus causing the landlord to incur additional attorney’s fees. On October 9, 2009, the trial court found that the tenant’s counsel violated Rule 55.03(c) by filing a frivolous motion in an attempt to harass the landlord and to cause unnecessary delay in evicting the tenant. The trial court ordered the tenant’s counsel to individually pay the landlord’s counsel $1,000 toward the reasonable attorney’s fees incurred by the landlord’s counsel in defending against the tenant’s motion to quash. This appeal follows.

A motion to quash execution constitutes a special proceeding attacking enforcement of the judgment, and it is independent of the principal cause of action— here, the landlord’s suit for rent and possession of the apartment. Carrow v. Carrow, 294 S.W.2d 595, 597 (Mo.App.St.L.Dist.1956). In this case, the tenant voluntarily withdrew his motion to quash execution on September 1, 2009. The tenant’s withdrawal of his motion to quash is analogous to the voluntary dismissal of a case. Generally, dismissal disposes of the entire case. State ex rel. McMullin v. Satz, 759 S.W.2d 839, 840 (Mo. banc 1988). A voluntary dismissal becomes effective on the date it is filed with the court, and once a case is dismissed, it is as if the suit were never brought. State ex rel. Frets v. Moore, 291 S.W.3d 805, 812 (Mo.App. S.D.2009). And once a case is dismissed, the court loses all jurisdiction over it, and may take no further action. McMullin, 759 S.W.2d at 840; Frets, 291 S.W.3d at 812. Any attempted action on a dismissed case is a nullity. Id.

The tenant’s withdrawal of his motion to quash execution terminated the special proceedings attacking enforcement of the judgment, just as voluntary dismissal terminates any case. Consequently, the trial court lost jurisdiction over the case once the tenant withdrew his motion to quash. Thus, the trial court had no jurisdiction thereafter to sanction the tenant’s counsel. The trial court’s purported judgment, entered 39 days after the case terminated, is a nullity. Id.

Even if the plaintiffs withdrawal of his motion to quash had not immediately terminated the trial court’s jurisdiction, the trial court nonetheless lost jurisdiction because the controversy became moot before the landlord filed its motion for sanctions. The Missouri Constitution confers jurisdiction upon the circuit courts over “cases and matters.” Mo. Const. art. V, sec. 14(a). Article V of the Missouri Constitution governs subject-matter jurisdiction, which is the court’s authority to render a judgment in a particular category of case. J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249, 252-53 (Mo. banc 2009). Our Constitution, however, requires a case to be justiciable in order for the circuit court to have subject-matter jurisdiction over it. B.S. v. State, 966 S.W.2d 343, 344 (Mo.App. E.D.1998). A circuit court does not have subject-matter jurisdiction under Article Y, section 14(a) to adjudicate a case that is not justiciable because it has become moot. Id.

The term “moot” means “[hjaving no practical significance; hypothetical or academic.” Black’s Law Dictionary 1024 (7th ed.1999). When an event occurs that renders a court’s decision unnecessary or a grant of effectual relief impossible, the action becomes moot, and the court should generally dismiss it. Kinsky v. Steiger, 109 S.W.3d 194, 195 (Mo.App. E.D.2003). Here, the tenant apparently decided to vacate the apartment, and so voluntarily withdrew his motion to quash execution as moot. The landlord acknowledged withdrawal on this basis, and the trial court so ordered. The action became moot because it became unnecessary for the trial court to render a decision on the tenant’s motion to quash when the tenant decided to surrender possession of the apartment to the landlord and withdrew his motion. Likewise, a grant of effectual relief on the motion became impossible at that point. Because the motion to quash execution became moot, the case was not justiciable, and the trial court lacked subject-matter jurisdiction over it. B.S., 966 S.W.2d at 344-45.

The trial court purported to enter judgment when it no longer had jurisdiction to do so, and consequently the judgment is a nullity. Accordingly, we remand with directions to the trial court to vacate its October 9, 2009 judgment sanctioning the tenant’s counsel in the amount of $1,000.

GLENN A. NORTON, P.J., and MARY K. HOFF, J., concur.

      . All rule references are to Missouri Supreme Court Rules (2009). We consider only sanctions pursuant to Rule 55.03 because the record makes clear that the landlord moved for sanctions and the trial court awarded them under this provision.

      . By presenting and maintaining a claim, defense, request, demand, objection, contention, or argument to the court, an attorney or party certifies that to the best of his or her knowledge, information, and belief, formed after a reasonable inquiry, that the claim or other matter is not presented or maintained for any improper purpose; the legal contentions therein are warranted; the allegations and factual contentions have evidentiary support, or if specifically so identified are likely to have such support after a reasonable opportunity for investigation; and the denials of factual contentions are warranted, or if specifically so identified are reasonably based on a lack of information or belief. Rule 55.03(c).

      . As we have held, the trial court lost jurisdiction to enter its judgment of sanction for two distinct, albeit related, reasons. But even if the trial court had jurisdiction to render a valid judgment, the court erred as a matter of law in imposing its sanction under Rule 55.03 for at least two additional reasons.
      First, the tenant did not receive notice as commanded by the Rule. Rule 55.03(d) provides that ‘‘[i]f after notice and a reasonable opportunity to respond the court finds that Rule 55.03(c) has been violated, the court, subject to the conditions below, may impose an appropriate sanction....” The tenant asserts that he was not served with the landlord's motion thirty days before its filing with the court as required by Rule 55.03(d)(1)(A), and the landlord does not dispute this. Rule 55.03(d)(1)(A) provides that a motion for sanctions shall be served on the opposing party, and that "[t]he motion shall not be filed with or presented to the court unless, within 30 days after service of the motion, the challenged claim, defense, request, demand, objection, contention, or argument is not withdrawn or appropriately corrected.” "Filing a motion for sanctions with the court prior to the expiration of the 30-day period leaves the court without authority to rule on the motion.” Bothe v. Bothe, 266 S.W.3d 321, 327 (Mo.App. E.D.2008). Furthermore, Rule 55.03(d)(2)(B) provides that the court shall not award monetary sanctions on its own initiative unless it has issued an order to show cause before a voluntary dismissal or settlement of the claims in question occurs. The court issued no order to show cause in this case.
      Second, the tenant withdrew his motion to quash, which cured any purported violation of the Rule by its own terms. Pursuant to the unambiguous language of Rule 55.03(d)(1)(A) recited above, the motion for sanctions should never have been presented to the court. Indeed, here, where the tenant had withdrawn the allegedly frivolous motion to quash before the landlord even filed its motion for sanctions, the landlord should never have filed its motion for sanctions, much less presented it to the court.
      Given these multiple grounds for vacating or reversing the judgment of sanction, we need not and do not further consider whether the trial court abused its discretion in imposing its sanction.


author: ROBERT S. BARNEY, Judge.

text:
    FOUR SEASONS LAKESITES, INC. and Four Seasons Group, Inc., Appellants, v. HRS PROPERTIES, INC., Respondent.
    No. SD 30110.
    Missouri Court of Appeals, Southern District, Division One.
    July 23, 2010.

      Lewis Z. Bridges & John E. Curran, Osage Beach, for Appellant.
    James B. Deutsch, Thomas W. Rynard & Marc H. Ellinger, Blitz, Bardgett & Deutsch, LLC, Jefferson City, for Respondent.
   ROBERT S. BARNEY, Judge.

Appellants Four Seasons Lakesites, Inc. and Four Seasons Group, Inc. (“Four Seasons”) appeal the trial court’s grant of partial summary judgment in favor of Respondent HRS Properties, Inc. (“HRS”) as to Count I of HRS’ counterclaim seeking specific performance of an “Option to Sell” contained in an “Option Agreement.” Four Seasons asserts thirteen points relied on.

The record reveals that on December 28, 1995, Four Seasons and HRS entered into an “Asset Purchase Agreement” whereby HRS agreed to pay to Four Seasons $2,030,000.00 for its “Racquet Club Business” which consisted of real estate; a spa; and personal property including facilities for indoor and outdoor tennis, racquetball, swimming, and other fitness related endeavors. During the negotiations for the sale of the property, HRS was concerned with several amenities agreements Four Seasons had signed with various third parties relating to the facilities and services available at the Racquet Club and the Racquet Club’s continued operation per those agreements. HRS felt that the Racquet Club “was encumbered with the continuing obligation that [it] ... always be available to other ... [pjroperty [ojwners in neighboring subdivisions” regardless of the profitability of the facility and that “it was farther encumbered by the obligation not to terminate an amenity located thereon without substituting an amenity of comparable value.”

As a compromise, the parties entered into the Option Agreement which granted HRS an Option to Sell the property and facilities back to Four Seasons on the occurrence of what was termed the “Option Event” and it likewise granted Four Seasons the “Option to Buy” the property from HRS. Further, the Option Agreement, inter alia, provided for the extin-guishment of the Option to Sell:

in the event that the Property is not encumbered by the continuing obligation to make the Property and the Racquet Club’s tennis and fitness facilities available for the use of other property owners and is not encumbered by the obligation not to terminate an amenity currently provided by the Racquet Club without substituting an amenity of comparable value, then the grant of the Option to Sell shall be extinguished and of no more force or effect.

The Option Agreement went on to provide that for HRS to exercise its Option to Sell, it was required to notify Four Seasons in writing and such notification would take effect two days after the notice was mailed. As best we discern the record, the purchase price would be either $2,000,-00.00 if the Option to Sell was exercised prior to the construction of a hotel or, if HRS exercised the Option to Sell after the hotel was constructed, the purchase price was to be a price agreed upon by HRS and Four Seasons within 60 days of the notice to sell. Additionally, if the parties were unable to agree on a price then the price would be based on the fair market value of the property as determined by “three qualified independent certified MAI general real property and business appraisers with experience in resort properties ...” following presentations and argument to the appraisers by the parties. In the event that the price determined by the appraisers was “unacceptable” to HRS, then HRS would not “be obligated to sell pursuant to an exercise of the Option to Sell....” If this event were to occur, then the “Option to Sell shall terminate.”

Following the sale of the property to HRS, on July 19, 1996, HRS entered into the 1996 Amenities Agreement with the CCPOA a/k/a the Racquet Club Association; the FSLPOA; Four Seasons; Chase Resorts; and the Robert Trent Golf Course. The 1996 Amenities Agreement provided that in the event that HRS discontinued certain Racquet Club amenities or ceased to operate the Racquet Club altogether, then it would transfer six outdoor tennis courts to the Racquet Club Association. Further, it provided for the cancellation of the 1988 Amenities Agreement and the 1992 Declaration such that “HRS shall be entitled to use the Racquet Club Property free and clear of the terms and provisions of the 1988 [Amenities] Agreement and the 1992 Declaration and without restriction or encumbrance of any kind pursuant to this Agreement except as specifically provided herein.” Additionally, an “Election to Terminate Agreement and Election to Terminate Declaration of Restrictive Covenant (Amenities) ...” was entered into by Four Seasons and the CCPOA. This document also specifically revoked the 1988 Amenities Agreement and the 1992 Declaration as between those parties.

On February 14, 1997, Four Seasons advised HRS that it believed the Option to Sell was extinguished by the 1996 Amenities Agreement which removed any prior encumbrances on the properties arising from earlier amenities agreements. HRS disagreed with this assertion.

HRS presented evidence that it invested $6,943,823.30 for construction of a hotel on the property and also continued to operate the Racquet Club. As best we discern, from 1997 to 2003, both of these facilities operated at a substantial deficit such that on April 12, 2002, HRS and Four Seasons entered into a “Continuation Agreement” which extended the date for exercising the Option Agreement to May 31, 2004. Prior to the expiration of this time period, HRS notified Four Seasons on March 8, 2004, that it desired to exercise its Option to Sell. Negotiations began between the parties at that time and they were ultimately unable to resolve their differences in interpreting the various contracts and agreements in a timely matter such that a “Second Continuation Agreement” was executed. Negotiations continued thereafter and ultimately failed.

On August 15, 2006, Four Seasons filed its “First Amended Petition for Declaratory Judgment” in which it sought a declaratory judgment from the trial court to “adjudicate the rights of the parties pursuant to the Option Agreement in light of the 1996 Amenities Agreement....” Specifically, Four Seasons requested the trial court to declare one of the following: that “[t]he Option Agreement ... is extinguished, null, void and of no effect between the parties ...;” that “[t]he Option Agreement between the parties be declared extinguished, null and void upon the substitution of amenities found by the [trial cjourt to be required to be provided to other property owners ...;” that “the Option Agreement ... be declared null, void and unenforceable as being inequitable as between the parties ...;” and for “such other and further orders [the trial court deems] appropriate.... ”

HRS then filed its “Answer and Counterclaim” on August 31, 2006, in which it asserted its affirmative defenses that Four Seasons had “failed to join indispensable parties” and failed “to state a claim upon which relief may be granted.” It then asserted a two-count counterclaim. In Count I, HRS sought specific performance of the Option to Sell and maintained that the Option to Sell was not extinguished by the 1996 Amenities Agreement because “[a]t all times ... the property was and remains encumbered by the continuing obligation to make the property and [the] Racquet Club’s ... facilities available for the use of the other property owners.... ” In Count II, HRS alleged fraudulent misrepresentation on the part of Four Seasons related to the title insurance commitment provided by Four Seasons during the property transaction.

On March 12, 2008, HRS filed a “Motion for Partial Summary Judgment” on Count I of its counterclaim for specific performance. In this motion it asserted that it had constructed a hotel on the property at issue, it had been operating at a loss since it purchased the property, it had given Four Seasons notice that it intended to exercise its Option to Sell, and it stood ready to go forward with the valuation process in relation to the Option to Sell. Thereafter, Four Seasons filed a motion to dismiss Count I of HRS’ counterclaim.

However, while this lawsuit was pending, on February 15, 2008, HRS and Global Investors, L.L.C. (“Global Investors”) entered into a “Purchase and Sale Agreement” where HRS as “Seller” agreed to sell the property at issue, including the Racquet Club and other personal property, to Global Investors. In conjunction with this conveyance, HRS, Global Investors, and First National Bank of Camdenton (“Bank”) entered into an “Indemnity Agreement” because of Global Investors’ “reluctance” to purchase the property without further assurances. The “Agreement” portion of the Indemnity Agreement also contained a recital, inter alia, that “[u]pon the closing of the sale of the Property by HRS ... HRS ... shall indemnify and hold Global Investors and Bank harmless against any settlement, court order, injunction or specific performance enforcing the Option to Buy and the Option to Sell.” Furthermore, it set out that “if the outcome of the Litigation requires the sale of the Property, HRS ... shall indemnify and hold Global Investors and Bank harmless against any loss resulting from such outcome.” It also set out that the “Option to Sell is not part of the Purchase Agreement, is not intended to [be] conveyed to Global Investors as part of the Purchase Agreement and this Agreement and its indemnities do not apply to any attempt by Global Investors to exercise the Option to Sell.” Likewise, the Indemnity Agreement set out that “[i]n return for the consideration above, Global Investors agrees to purchase the Property subject to the litigation and Option Agreement ... [and] agrees to reasonably cooperate with the HRS Properties in the litigation ...” as well as agrees that HRS “shall control the [l]itigation in its sole discretion....”

Additionally, in apparent contradiction to the foregoing instruments, on this same date of April 18, 2008, HRS and Global Investors also executed an “Assignment and Assumption Agreement.” It recited that HRS was assigning to Global Investors “all its interest[ ] in certain documents and agreements ...” which were set out in an attached exhibit. The attached exhibit then referred to numerous documents and agreements including the Option Agreement. In the “Agreement” portion of the Assignment and Assumption Agreement, there is a recital that HRS “hereby transfers, assigns and conveys to [Global Investors], and its successors and assigns, all of [HRS’] right, title and interest in, to and under the Assigned Agreements.” Furthermore, Global Investors agreed to accept the assignment of HRS’ interest in the “Assigned Agreements” and assumed all the obligations and liabilities of HRS under those agreements. Paragraph 6 of this portion of the Assignment and Assumption Agreement also set out the following language:

[ejxcept as may be otherwise provided for in the Purchase Agreement [Global Investors] shall and does hereby agree to indemnify and hold harmless [HRS] from any and all liability, loss or damage, which [HRS] may or might occur by reason of [Global Investor’s] breach of any obligation or duty arising from the Assigned Agreements on or after the date ... of closing.

(Emphasis added).

On July 18, 2008, the trial court issued its “Order and Judgment.” The trial court ruled in favor of HRS on its motion for partial summary judgment relating to Count I of its counterclaim and against Four Seasons on its motion to dismiss Count I of HRS’ counterclaim. Four Seasons then timely filed its notice of appeal; however, its appeal was dismissed by this Court on November 5, 2008, due to the lack of a final judgment. A judgment was then entered by the trial court on December 15, 2008. That judgment was again timely appealed to this Court and was again dismissed for lack of a final judgment.

The trial court then issued a third order and judgment in this matter on August 31, 2009. It is this judgment which is the subject of this appeal. In granting HRS’ motion for partial summary judgment as to its Count I for specific performance, the trial court decreed that “the Option Agreement is valid and enforceable and has not terminated by operation of the terms of the Option Agreement, by any conduct of HRS ... or by the sale of the Racquet Club to a third party in April of 2008; ” that Four Seasons “is in breach of its obligations under the Option Agreement;” that the Option Agreement was to be

specifically performed and carried into execution as it pertains to the exercise of the Option to Sell by HRS ... and [that HRS is entitled] to interest from March 10, 2004[, the effective date of its notice to exercise the Option to Sell,] under paragraph 7 of the Option Agreement, which provides that [Four Seasons] pay to HRS a sum equal to the interest accruing at 1 [percent] over the Prime Rate ... per annum, but no event more than 11 [percent] per annum;”

and that HRS is entitled to its attorney fees and costs per the Option Agreement in the amount of $192,559.94 plus interest. (Emphasis added). The trial court also dismissed Count II of HRS’ counterclaim as moot and denied Four Seasons’ request to dismiss HRS’ Count I. This appeal followed.

Four Seasons asserts thirteen points relied on. For ease of analysis, we shall first address Four Seasons’ fourth point relied on as we find it dispositive of the bulk of the issues raised in this appeal.

In its fourth point relied on, Four Seasons maintains the trial court erred in overruling its motion to dismiss Count I of HRS’ counterclaim, erred in granting HRS’ motion for partial summary judgment, and erred in ordering specific performance of the Option to Sell. Specifically, Four Seasons asserts the trial court was in error in making the aforementioned rulings because HRS was no longer the real party in interest in that it had “assigned all of its right, title and interest in and to the Option Agreement and sold the property to [Global Investors] and had retained no reversionary interest in the property and no means to compel a conveyance of the property.”

We initially note that a summary judgment can only be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Hitchcock v. New Prime, Inc., 202 S.W.3d 697, 699 (Mo.App.2006); Simul Vision Cable Sys. P’ship v. Cont. Cablevision of St. Louis Cty., Inc., 983 S.W.2d 600, 602-03 (Mo.App.1999); Rule 74.04(c)(6). Appellate review is de novo. Wilson v. Rhodes, 258 S.W.3d 873, 875 (Mo.App.2008). This Court uses the same criteria the trial court should have used in initially deciding whether to grant the motion filed by HRS. Harris v. Smith, 250 S.W.3d 804, 806 (Mo.App.2008). Appellate review is based upon the record submitted to the trial court. Sexton v. Omaha Prop. and Cas. Ins. Co., 231 S.W.3d 844, 845 (Mo.App.2007). That record is viewed in the light most favorable to the party against whom judgment was entered, and the nonmoving party is accorded the benefit of all inferences which may reasonably be drawn from the record. ITT Comm’l Finance Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).

The crux of the present matter centers on the interpretation of various contracts. “The interpretation of a contract is a question of law.” Dean Machinery Co. v. Union Bank, 106 S.W.3d 510, 520 (Mo.App.2003). “The cardinal principle of contract interpretation is to ascertain the intention of the parties and to give effect to that intent.” Dunn Indus. Group, Inc. v. City of Sugar Creek, 112 S.W.3d 421, 428 (Mo. banc 2003). To determine the intent of the parties, the terms of a contract are read as a whole and given their plain, ordinary, and usual meaning. State ex rel. Vincent v. Schneider, 194 S.W.3d 853, 859 (Mo. banc 2006).

“Specific performance [of a contract] is a purely equitable remedy, governed by equitable principles, invoked where necessary ...” to do complete justice between the parties. Asbury v. Crawford Elec. Co-op., Inc., 51 S.W.3d 152, 158 (Mo.App.2001). Further, “as with any action for specific performance, ‘the right to sue is triggered by the failure of a party to do that which is contracted for, in accordance with the procedure established by the contract.’ ” Stiff v. Stiff, 989 S.W.2d 623, 628 (Mo.App.1999) (quoting Carondelet Health Sys. v. Royal Gardens, 943 S.W.2d 669, 672 (Mo.App.1997)). “A party seeking specific performance must have tendered everything that was due on his part, unless the tender was excused or waived by the seller’s conduct.” Wintermute v. Delgado, 919 S.W.2d 248, 250 (Mo.App.1996).

Here, during the time period that Four Seasons and HRS were at an impasse regarding the Option to Sell, HRS sold the properties at issue to Global Investors. As previously recited, there were numerous documents comprising this transaction between Global Investors and HRS including the Purchase and Sale Agreement; the Amendment to Purchase and Sale Agreement; at least four warranty deeds relating to the subject real properties; the Indemnity Agreement; and the Assignment and Assumption Agreement. Looking at the plain meaning of all these documents, it is clear that during the course of this litigation HRS conveyed away its interests in the real properties at issue as well as its interest in the Option Agreement.

In our reading of these documents, there is essentially nothing which mandates that Global Investors re-convey the properties at issue to either HMS or Four Seasons; nor is there a right given to HRS to repurchase the properties in question from Global Investors. In the event that Global Investors should choose not to re-convey the properties, additional litigation would be necessary to carry out any terms of the Option Agreement as HRS is no longer the title holder to these properties and Global Investors was not a party to this litigation. Contrary to the assertions of HRS, there is no probative showing of a requirement that “Global Investors is obligated to transfer the property to Four Seasons if the Option to Sell is fully exercised.”

Furthermore, it is our view that the Indemnity Agreement relates solely to monetary remuneration by HRS to Global Investors in relation to the lawsuit at issue. There appears to be nothing in this document concerning transferring title to the property from Global Investors back to HRS if necessary; indeed, under the terms of the Indemnity Agreement, it was expressly understood that “the Option to Sell is not part of the Purchase Agreement, [and it] is not intended to [be] conveyed to Global Investors.... ”

On the other hand, while HRS had specifically assigned all its interest in the Option Agreement to Global Investors in paragraph 6 of the Assignment and Assumption Agreement, HRS and Global Investors expressly excepted out of the agreement what was “otherwise provided for in the Purchase Agreement ...,” i.e., the conveyance of the real properties in question. Accordingly, in the midst of its litigation with Four Seasons, HRS conveyed away its interest in the involved real estate to Global Investors, a non-party to this litigation, and, as best we discern, Global Investors now has fee simple title to the real estate in question.

‘The specific performance of a contract for the purchase of real estate may be decreed only where it is possible for the defendant to convey the land. If he has no title, or has parted with the title after the execution of the contract, the court will not grant a vain judgment.’

Tinnon v. Tanksley, 408 S.W.2d 98, 102 (Mo. banc 1966) (quoting Saperstein v. Mechanics’ & Farmers’ Savings Bank of Albany, 228 N.Y. 257, 260, 126 N.E. 708 (N.Y.1920)). Additionally, “specific performance cannot be decreed of a defendant who does not have title to the property to be conveyed or the means of compelling a conveyance of title, i.e., where performance is impossible, the remedy will be denied.” Gulf Oil Corp. v. Ferguson, 509 S.W.2d 1, 6 (Mo. banc 1974). Indeed, “an equity court should not grant a decree purporting to affect rights of persons not parties to the suit.” Id.; see H.B. Deal & Co. v. Kuhlmann, 244 S.W.2d 390, 394 (Mo.App.1951). “It is impossible for an equity court to make a decree in the absence of an indispensable party, that is, in the absence of a party whose rights must necessarily be affected by such decree.” Kuhlmann, 244 S.W.2d at 394 (quoting Seeley v. Cornell, 6 F.Supp. 241, 243 (TX 1934)). Here, Global Investors became a real party in interest in this lawsuit when the properties in question were conveyed to it. Accordingly, the judgment “is not effective because it leaves the performance of the mandate to the wish or will of persons not parties to the suit.” Id.; see also Rule 52.01.

In that HRS sold to Global Investors the real and personal properties which were the subject of the Option Agreement, HRS lacks the legal ability to convey the properties to Four Seasons under the terms of the Option Agreement and there is nothing upon which to base the trial court’s grant of summary judgment, because the Option Agreement cannot be specifically performed by HRS. Thus, Count I of HRS’ counterclaim is rendered moot because there is no effectual relief which can be granted by the trial court. “When an event occurs that makes a court’s decision unnecessary or makes it impossible for the court to grant effectual relief, the case is moot and generally should be dismissed.’ ” Jackson Cty. Bd. of Election Comm’rs ex rel. Brown v. City of Lee’s Summit, 277 S.W.3d 740, 744 (Mo.App.2008) (quoting State ex rel. Ag Processing, Inc. v. Public Serv. Comm’n, 276 S.W.3d 303, 306 (Mo.App.2008)). “‘The doctrine is triggered when some event so alters the position of the parties that any judgment rendered merely becomes a hypothetical opinion.’ ” Id. (quoting Thruston v. Jefferson City Sch. Dist., 95 S.W.3d 131, 134 (Mo.App.2003)). The trial court erred in denying Four Seasons’ motion to dismiss HRS’ first counterclaim and in granting HRS’ motion for partial summary judgment as to its first counterclaim for specific performance. Point IV is granted.

Point IV is dispositive of Four Seasons’ Points I, II, III, V, VI, VII, VIII, and X. Those points are hereby denied. Additionally, also denied, in part, is that portion of Point IX, discussed more fully below, which also attacks the trial court’s grant of partial summary judgment. Further, the trial court’s ruling that Count II of HRS’ counterclaim was moot was based on the trial court’s determination that Count I warranted a grant of partial summary judgment. However, because this Court has determined the trial court erred in granting partial summary judgment as to Count I, the trial court’s ruling as to Count II also cannot stand and it remains a viable counterclaim.

In our review of the remainder of Four Season’s ninth point relied on, Four Seasons asserts the trial court erred in overruling its motion for reassignment of the case to a different judge pursuant to Rule 11.09(c). Four Seasons asserts that “the trial judge was without authority to act and abused his discretion ...” in overruling its motions in that the “trial judge failed to file mandatory disclosures pursuant to Rule 11.09 and refused to reassign the case upon timely motion.”

“In reviewing the trial court’s denial of a motion for change of judge, the appellate court presumes that a trial judge will not preside over a proceeding in which the judge cannot be impartial.” Williams v. Reed, 6 S.W.3d 916, 920 (Mo.App.1999). “A judge’s impartiality might reasonably be questioned if a reasonable person would have a factual basis to doubt the judge’s impartiality.” McPherson v. U.S. Physicians Mut. Risk Retention Group, 99 S.W.3d 462, 488 (Mo.App.2003). “Therefore, this [Cjourt will affirm the trial court’s denial of a motion for change of judge unless the denial constitutes an abuse of discretion.” Williams, 6 S.W.3d at 920.

Here, Four Seasons argues that the trial court erred in denying its “Request for Reassignment ...” of Senior Judge Theodore B. Scott (“Judge Scott”) because Judge Scott failed to abide by Rule 11.09(c). Four Seasons argues that “the record does not indicate ...” if Judge Scott filed such a list, thus, he should have been disqualified from hearing the present matter. It appears from the docket sheets in this matter that HRS filed a response to this motion in which it challenged Four Seasons’ arguments and that a hearing was held on this motion shortly thereafter. Yet, Four Seasons has not provided a copy of the transcript from that hearing to this Court in support of its argument. As the appellant, it was Four Seasons’ duty to order any transcripts that would be necessary to support its points relied on. Rule 81.12(c). Absent evidence to the contrary, we presume that “a trial judge will not preside over a proceeding in which the judge cannot be impartial,” Williams, 6 S.W.3d at 920, and that Judge Scott was in compliance with Rule 11.09(c). Point IX is denied.

In its eleventh point relied on, Four Seasons challenges the trial court’s judgment awarding interest to HRS per paragraph 7 of the Option Agreement and in its twelfth point Four Seasons challenges the award of interest to HRS under the Option Agreement because the purchase price had yet to be determined as required by paragraph 7 of the Option Agreement. Based on our determination that partial summary judgment was improperly granted, we find the foregoing points have merit. As previously related, HRS could not make a demand on Four Seasons to purchase the properties in question because it could not convey those properties to Four Seasons. Hence, it was not entitled to an award of interest under the provisions of paragraph 7 of the Option Agreement. Points XI and XII are granted.

As best we discern Four Seasons’ thirteenth point relied on, it challenges the award of attorney’s fees and costs granted to HRS by the trial court. Four Seasons maintains that at trial HRS did not distinguish between the attorney’s fees it had expended in pursuing its claim under Count I for specific performance and those expended in pursuing its claim under Count II for misrepresentation, which the trial court specifically found to be moot. Having already determined that the trial court erred in entering its partial summary judgment in favor of HRS for specific performance, HRS was not entitled to attorney’s fees and costs pursuant to paragraph 19 of the Option Agreement. The trial court erred in its award of attorney’s fees and costs to HRS. Point XIII has merit.

That part of the Order and Judgment of the trial court granting HRS’ Motion for Partial Summary Judgment is reversed, together with any declarations and affirmative relief, including attorney’s fees, costs, and interest, arising from the grant of partial summary judgment. Also reversed is the trial court’s determination that Count II of the counterclaim of HRS is moot. Count II of the counterclaim of HRS remains viable. In all other respects the Order and Judgment of the trial court is affirmed.

BATES, P.J., and BURRELL, J., concur.

      . Four Seasons Group is the parent company of Four Seasons Lakesites; however, we shall refer to them in this opinion as a single entity.

      . The Racquet Club was apparently surrounded by a condominium project as well as several residential developments. Many of the residents of these communities were members of the Racquet Club and had entered into different agreements with Four Seasons about their club membership and Four Seasons’ continued responsibility to maintain the club amenities. In 1988 ("the 1988 Amenities Agreement”), Four Seasons agreed with the Country Club Property Owners Association ("the CCPOA”) to maintain certain facilities and privileges at the Racquet Club to benefit its members. In 1992, Four Seasons, the CCPOA, and the Four Seasons Lakesites Property Owners Association, Inc. ("the FSLPOA”) entered into an agreement (“the 1992 Declaration”) that provided Four Seasons "covenants and agrees that it will not withdraw any of the Club facilities which have been made available for the use of the Owners without substituting new Club Facilities ... of comparable value.” Additionally, in 1994, Cecil Van Tuyl ("Mr. Van Tuyl”), a property developer, and Four Seasons entered into an agreement ("the 1994 Van Tuyl Agreement”) to protect the rights of property owners in his development and to require Four Seasons to continue to provide the amenities they desired. There were also "Sports Package Agreements” sold to several different property owners which granted use of the amenities to those individuals who had purchased the packages.

      .The Option to Sell provided:
      [a]s additional consideration for closing pursuant to the Purchase Agreement, [Four Seasons] hereby grants HRS the right and option (but no obligation) upon the occurrence of the Option Event to sell the real property ... with all improvements and fixtures thereon, ... to [Four Seasons] upon terms and conditions set forth herein.... For purposes of this Agreement 'Option Event' shall mean the occurrence of HRS or its permitted assignee having paid a total of Three Million Dollars ... or Three Million Five Hundred Thousand Dollars ... in the event that a hotel opens for business on the Property....

      . The only portion of the Option Agreement at issue in this appeal is the Option to Sell granted to HRS; the Option to Buy is essentially not challenged.

      . While the 1996 Amenities Agreement did not reference the 1994 Van Tuyl Agreement, on December 28, 1996, HRS and Mr. Van Tuyl entered into an "Amended and Restated Agreement for Amenities” which incorporated by reference the 1996 Amenities Agreement and stated it was to be considered a supplemental indenture to that agreement.

      . No specific parties were named in the motion as being indispensable parties.

      . An "Amendment to Purchase and Sale Agreement" was also entered into by the same parties on April 18, 2008.

      . As best we discern First National Bank of Camdenton lent Global Investors $2,800,000.00 for the project.

      .There was also a provision in the Indemnity Agreement that if HRS were to prevail in the litigation or recover monies in a settlement then HRS agreed to give Global Investors twenty-five percent of the net proceeds it received.

      . All rule references are to Missouri Court Rules (2009).

      . Rule 52.01 provides that "[e]very civil action shall be prosecuted in the name of the real party in interest....” "Real parties in interest are those who are directly interested in a lawsuit’s subject matter. The purpose of the Rule is to enable those who are interested in the subject matter of the action and entitled to the benefits of the litigation to be those who maintain the action.” Herky, LLC. v. Holman, 277 S.W.3d 702, 704 (Mo.App.2008) (internal citations omitted). " ‘In order to determine the real party in interest in this case, we look to the facts as they appear on the record.' ” Id. (quoting Carolan v. Nelson, 226 S.W.3d 923, 926 (Mo.App.2007)). "The party with the bare legal title to a claim is the real party in interest.” Prot. Sprinkler Co. v. Lou Charno Studio, Inc., 888 S.W.2d 422, 424 (Mo.App.1994); see Klein v. Gen. Electric Co., 714 S.W.2d 896, 902 (Mo.App.1986).

      . Rule 11.09(c), pertaining to "Senior Judge Limitations,” provides that

        [a] senior judge shall file in each court in which he or she serves a list of the parties, lawyers, and law firms that have retained the senior judge for compensation within the preceding 36 months. The senior judge shall review the list every calendar quarter and file any necessary changes on or before the last day of the quarter. If any counsel of record requests reassignment in writing within ten days of the judge being assigned or before any appearance before the judge, whichever is earlier, the senior judge shall:
      (1) If assigned as a senior judge in a circuit court, return the file to the presiding judge for reassignment; or
      (2) If assigned as a senior judge in an appellate court, recuse from the case.


author: KAREN KING MITCHELL, Judge.

text:
    In re the Matter of C.W. Sherrie Walker, Respondent, v. Marilyn Frazier, Appellant. Sherrie Walker, Respondent, v. Marilyn Frazier, Appellant.
    Nos. WD 71662, WD 71663.
    Missouri Court of Appeals, Western District.
    Aug. 3, 2010.
    Sherrie Walker, Grandview, MO, pro se.
    Marilyn Frazier, Grandview, MO, pro se.
    Before Division II: JOSEPH M. ELLIS, Presiding Judge, and ALOK AHUJA and KAREN KING MITCHELL, Judges.
   KAREN KING MITCHELL, Judge.

Marilyn Frazier appeals the judgment orders of protection entered by the Circuit Court of Jackson County against Frazier in favor of Sherrie Walker and Walker’s minor daughter, C.W. We dismiss Frazier’s appeals.

Factual and Procedural Background

On or about May 9, 2009, two groups of teenage girls were involved in a verbal altercation at a Kansas City amusement park. On May 13, 2009, the two groups of girls met at a 7-11 Convenience Store in South Kansas City, Missouri, to fight. One of the groups of girls included Walker’s daughter, C.W. Frazier claims that Walker chauffeured her daughter’s group to the site of the second altercation, encouraged the fight, and then told her daughter’s group to run before the police arrived. The other group of girls involved in the two altercations included Frazier’s niece, who was pregnant. There is no evidence that Frazier was present for either of these altercations.

On the evening of May 13, 2009, Frazier, Frazier’s niece, and Frazier’s sister, Janice Kerns, went to Walker’s residence to talk about the incidents. The two groups of adults apparently communicated no more productively than did the teens, and another fight ensued. Someone from Walker’s residence called the police, who broke up the fight, handcuffed Walker and her husband, and issued a citation to Frazier.

On September 24, 2009, Walker and her daughter came into contact with Frazier’s niece again, as the girls’ high schools were playing against each other in a volleyball match. Walker and her daughter appear to have made comments to Frazier’s niece, which caused the niece to react, but there was apparently no physical altercation at that time. Later, in the parking lot, Walker’s car apparently approached Frazier’s niece and then sped off. Frazier then arrived to pick her niece up from the school.

On September 80, 2009, Walker and her daughter filed petitions for orders of protection against Frazier in the Circuit Court of Jackson County. Ex parte orders of protection were entered by the court, and a hearing was set for October 26, 2009. Frazier received notice of the hearing, but apparently presented to the municipal court instead of the circuit court and missed the hearing. The circuit court entered, by default, full judgment orders of protection against Frazier in favor of both Walker and her daughter. Frazier did not file any motions to set aside the judgments with the circuit court pursuant to Rule 74.05(d). Instead, she filed her notices of appeal with this court on October 28, 2009.

Setting Aside a Default Judgment

In order to have a default judgment set aside, a person must ordinarily: (1) file, within a reasonable time, not to exceed one year, a motion with the circuit court to have the default judgment set aside; (2) state facts constituting a meritorious defense to the underlying action; and (3) state good cause for failing to timely defend the action in court. Rule 74.05(d); Sastry v. Sastry, 302 S.W.3d 264, 266 (Mo.App. E.D.2010). Frazier has satisfied none of these three requirements with respect to the judgment orders of protection entered against her.

Frazier filed no motions with the circuit court to have the default judgments against her set aside. “ ‘A default judgment is not appealable in the absence of a motion to set aside or vacate.’ ” Leonard v. Leonard, 112 S.W.3d 30, 37 (Mo.App. W.D.2003) (quoting Niemann v. Kasch, 740 S.W.2d 706, 707 (Mo.App. E.D.1987)). “The direct appeal of a default judgment is not permitted.” Id. (citing Vonsmith v. Vonsmith, 666 S.W.2d 426 (Mo. banc 1984)). Therefore, Frazier has not preserved her claims for appellate review.

Because Frazier has failed to preserve her claims of error as to the circuit court’s issuance of the judgments of protection against her, we need not address her failure to satisfy the other two requirements for having her default judgments set aside, and we hereby dismiss her appeals.

JOSEPH M. ELLIS, Presiding Judge, and ALOK AHUJA, Judge, concur.

      . The facts of this case are not entirely clear. The facts are set forth in this opinion based upon the court's own review of the record presented on appeal and Frazier’s pro se brief. Respondents did not favor this court with a brief.

      . The circuit court record reflects that the hearing was initially scheduled for October 13, 2009, and continued until October 26.

      . There are exceptions to this rule that are not relevant here. See § 210.854; Shapiro v. Brown, 979 S.W.2d 526, 528 (Mo.App. E.D.1998) (noting that a judgment entered without jurisdiction may be set aside at any time).


text:
    Nicholas Michael WILSON, Appellant, v. Jennifer L. CRAMER and James R. Stowe, Respondents.
    No. WD 71313.
    Missouri Court of Appeals, Western District.
    Aug. 10, 2010.

      Michaela Shelton, Overland Park, KS, for Appellant.
    Jennifer L. Cramer and James R. Stowe, Blue Springs, MO, Respondents, pro se.
    Before Division II: JOSEPH M. ELLIS, Presiding Judge, and ALOK AHUJA and KAREN KING MITCHELL, Judges.
   KAREN KING MITCHELL, Judge.

This is a paternity case. Appellant Nicholas Wilson filed a petition in the Circuit Court of Jackson County, praying for a finding of paternity, a custody determination, an order of child support, and a change of Wilson’s alleged son’s name (“Son”). Respondents Jennifer Cramer, Son’s Mother (“Mother”), and James Stowe filed answers, denying that Wilson was Son’s father and pleading that Wilson had failed to state a claim upon which relief could be granted. Respondents pled that Stowe was Son’s father. Mother and Stowe also filed a motion to dismiss the petition. Mother and Stowe argued that Wilson lacked standing because Stowe had signed an affidavit acknowledging that he was Son’s father (“Acknowledgment of Paternity”), see section 210.823, and because the Director of the Division of Child Support Enforcement, Department of Social Services (“Division”) had entered an order finding that Stowe was Son’s father and entering a child support decree. The circuit court, the Honorable William S. Richards presiding, granted the motion to dismiss, finding that section 210.823 barred Wilson’s claims. We reverse.

Facts and Procedural Background

On February 9, 2003, Mother gave birth to Son. Two days later, Mother and Stowe signed the Acknowledgment of Paternity, acknowledging that Stowe was Son’s father.

Mother also filled out various forms seeking temporary assistance from the Division. On one of these forms, Mother stated that Wilson was Son’s father. On another, Mother stated that Stowe was the father. On a third, Mother named Stowe as the father and Wilson as a man who might be the father. On June 16, 2003, Stowe filled out the Division’s form for his financial information. Wilson never submitted his financial information to the Division.

On August 8, 2003, the Division sent a Notice and Finding of Financial Responsibility to Stowe concerning support enforcement services.

On October 8, 2003, the Director of the Division filed an Order with the Department of Civil Records, Court Administrator’s Office in Jackson County, Missouri, finding Stowe to be the legal father of Son, with a support obligation of $228 per month (“Division’s order”). Stowe has made child support payments regularly and otherwise has acted as Son’s father for over six years. He has visitation every Wednesday and every other weekend, and he attends Son’s sporting events and school functions.

On January 7, 2009, Wilson filed his petition in the Circuit Court of Jackson County, seeking, among other things, a declaration that he was Son’s biological father. Wilson alleged that he had DNA test results that proved that he was Son’s biological father.

Mother and Stowe filed a motion to dismiss the petition. Mother and Stowe argued that Wilson lacked standing because the Acknowledgment of Paternity and the Division’s order barred his claims.

On June 22, 2009, the circuit court held a hearing on Mother and Stowe’s motion to dismiss. The administrative file and the Division’s records were admitted into evidence. The court considered Wilson’s alleged DNA test results for purposes of standing only.

On July 1, 2009, the circuit court granted the motion to dismiss, finding that, under section 210.823, the Acknowledgement of Paternity was conclusive and barred Wilson’s claims.

This appeal follows.

Standard of Review

The standard of review for an appeal of a motion to dismiss for lack of standing is de novo. White v. White, 293 S.W.3d 1, 8 (Mo.App. W.D.2009). Here, the trial court conducted a hearing on Mother and Stowe’s ihotion to dismiss and considered matters outside the pleadings in making its judgment. Under these circumstances, the motion to dismiss was converted into a motion for summary judgment, and we will review it as such. Rule 55.27(a), (b); Deeken v. City of St. Louis, 27 S.W.3d 868, 870 (Mo.App. E.D.2000). Ordinarily, when the trial court converts a matter into a motion for summary judgment, the court must place the parties on notice, and the parties must comply with the procedural requirements of Rule 74.04. Mitchell v. McEvoy, 237 S.W.3d 257, 259 (Mo.App. E.D.2007). However, when the parties both submit matters outside the pleadings for the court’s consideration, the parties waive notice of the court’s conversion of the matter into a motion for summary judgment, and they likewise waive compliance with Rule 74.04’s procedural requirements. Id. Here, the parties both submitted matters outside the pleadings for the court’s consideration, and therefore they acquiesced in treating this matter as a motion for summary judgment. See id.

A party is entitled to summary judgment when there is no dispute of material fact and the moving party is entitled to judgment as a matter of law. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 382 (Mo. banc 1993). If the defendants can show that the undisputed material facts reveal that the plaintiff lacks standing, then they are entitled to judgment as a matter of law. Hinton v. City of St. Joseph, 889 S.W.2d 854, 857 (Mo.App. W.D.1994). We make all reasonable inferences in favor on the non-moving party. Mitchell, 237 S.W.3d at 260.

Legal Analysis

In his only point on appeal, Wilson argues that the motion court erred in dismissing his petition in that he had standing to bring a paternity action and because neither section 210.823 nor the Division’s order barred his claims. We agree.

I. Standing to bring a paternity action

“Standing requires that the party seeking relief has a legally cognizable interest in the subject matter and that the party has a threatened or actual injury.” Shannon v. Hines, 21 S.W.3d 839, 841 (Mo.App. E.D.1999). Section 210.826 governs who has standing to bring a paternity action. Jefferson v. Jefferson, 137 S.W.3d 510, 517 (Mo.App. E.D.2004).

In determining standing under section 210.826, we must first decide whether Son has a presumed father. See § 210.826.1 and .2. A child has a presumed father if he was born to a married couple (or the couple married within three hundred days of the child’s birth) or if an expert, as defined by section 210.834.7, conducts a blood test and concludes that “the alleged parent is not excluded and that the probability of paternity is ninety-eight percent or higher, using a prior probability of 0.5.” § 210.822.1(4). A child also has a presumed father if the mother attempted to marry, but the marriage was invalidated, and various other circumstances apply. See § 210.822.1(2), (3). Here, Son has no presumed father because Mother has neither married nor attempted to marry, and no blood test has been performed that would meet the statutory guidelines for such tests.

Given that Son has no presumed father, section 210.826.2 applies in determining who has standing to bring a paternity action. It provides as follows: “[a]n action to determine the existence of the father and child relationship with respect to a child who has no presumed father ... may be brought by ... a man alleging himself to be the father.” Here, Wilson alleges that he is Son’s father. Therefore, he has standing to bring a paternity action under section 210.826.2.

II. Section 210.823

Mother and Stowe argue that section 210.823 bars Wilson’s action. We disagree.

Section 210.828 provides as follows:

1. A signed acknowledgment of paternity form pursuant to section 193.215, RSMo, shall be considered a legal finding of paternity subject to the right of either signatory to rescind the acknowledgment, in writing, by filing such rescission with the bureau within the earlier of:
(1) Sixty days from the date of the last signature; or
(2) The date of an administrative or judicial proceeding to establish a support order in which the signatory is a party. The acknowledgment may thereafter only be challenged in court on the basis of fraud, duress or material mistake of fact with the burden of proof upon the challenger. No judicial or administrative proceeding shall be required or permitted to ratify an unchallenged acknowledgment of paternity.

Here, there is no dispute that Mother and Stowe signed the Acknowledgment of Paternity pursuant to section 193.215. Moreover, there is also no dispute that sixty days have passed from the earlier of the date of last signature or the date of the administrative proceeding to establish support. From these undisputed facts, two consequences follow: (1) the Acknowledgment of Paternity shall be considered a legal finding of paternity, and (2) Mother and/or Stowe may only challenge the Acknowledgment of Paternity in court on the basis of fraud, duress, or material mistake of fact. § 210.823. By its terms, section 210.823does not touch upon a third party’s standing to bring a paternity action under section 210.826, and thus it does not deprive Wilson of the standing conferred by that section.

The trial court, however, apparently concluded that these undisputed facts rendered Wilson’s petition defective as a matter of law. The court apparently agreed with Mother and Stowe that section 210.823should be construed to prohibit anyone, apart from the signatories of the acknowledgment, from challenging the legal finding that results from an acknowledgment of paternity. We disagree.

We must give the statute its plain and ordinary meaning, and we must read the statute in pari materia, that is, in conjunction with the similar provisions of chapter 210. See, e.g., Cline v. Teasdale, 142 S.W.3d 215, 223 (Mo.App. W.D.2004). As noted, by its plain terms, section 210.823 does not deprive anyone of standing to bring a paternity action under section 210.826. Moreover, reading section 210.823in conjunction with section 210.826, it becomes clear that an acknowledgment of paternity, without more, cannot deprive a party of standing to bring a paternity action. Section 210.826.3 provides that “[rjegardless of its terms, an agreement, other than an agreement approved by the court in accordance with subsection 2 of section 210.838, between an alleged or presumed father and the mother or child, does not bar an action under this section.” Thus, under section 210.826.3, the Ac-knowledgement of Paternity, which, in effect, is an agreement between Mother and Stowe that Stowe would assume the legal obligations of Son’s father, cannot deprive Wilson of standing to establish his paternity-

Because section 210.823 did not bar Wilson’s claims, the circuit court erred in dismissing the petition on that basis. It was an undisputed fact that Mother and Stowe complied with section 210.823, but that fact does not bar Wilson’s claim under section 210.826 as a matter of law. The Acknowl-edgement of Paternity is, in fact, immaterial to the question of whether Wilson has standing to establish paternity under section 210.826. Accordingly, Mother and Stowe were not entitled to summary judgment. ITT Commercial Fin. Corp., 854 S.W.2d at 382 (holding that, in order for summary judgment to be proper for the defending party, the undisputed material facts must show that the defending party is entitled to judgment as a matter of law).

III. The Division’s order

Mother and Stowe argue that the Division’s administrative order, which found Stowe to be Son’s father, bars Wilson’s action. We disagree.

“The director [of the Division] may enter an order establishing paternity of a child in the course of a support proceeding ... when both parents sign” an acknowledgment of paternity. § 454.485.1. “[T]he order shall have all the force, effect, and attributes of a docketed order or decree of the circuit court_” § 454.490.1. “The docketing, pursuant to section 454.490, of an order establishing paternity pursuant to this section shall establish legal paternity for all purposes.” § 454.485.3.

An administrative order may have preclusive effect on a subsequent proceeding if the following conditions are met: (1) the administrative hearing resulted in a judgment on the merits; (2) the issue to be litigated is identical to the issue addressed by the administrative order; and (3) the party to be estopped from litigating the issue was a party to (or was in privity with a party to) the administrative hearing. State ex rel. Div. of Family Servs. v. White, 952 S.W.2d 716, 718 (Mo.App. E.D.1997). In addition, the party to be es-topped must have had a full and fair opportunity to litigate the issue decided in the prior proceeding. Smith v. Smith, 985 S.W.2d 829, 835 (Mo.App. W.D.1998).

The Division’s order does not have pre-clusive effect on Wilson’s action because the elements of issue preclusion are not met.

First, Wilson was not a party to the administrative proceeding that resulted in the order finding Stowe to be Son’s father, and Respondents do not claim that Wilson was in privity with either of the parties to that proceeding. Since he was not a party to, or in privity with a party to, the prior proceeding, Wilson is not precluded from litigating an issue decided therein. See White, 952 S.W.2d at 718. In addition, his absence from the prior proceeding necessarily means that Wilson did not have a full and fair opportunity to litigate the issue of Son’s paternity. See Smith, 985 S.W.2d at 835.

Second, the Division’s order was not a judgment on the merits on the issue of paternity. Our Supreme Court has held that, although an order of the Division has the “ ‘force, effect and attributes’ of a circuit court order,” such an order does not become a final judgment, and, therefore, it is not entitled to preclusive effect on the issue of paternity. State v. Salazar, 236 S.W.3d 644, 647 (Mo. banc 2007). Indeed, section 454.485 expressly contemplates a circuit court’s review of an order docketed by the Division. § 454.485.4 (recognizing that an acknowledgment of paternity may be voided by the circuit court). Thus, although an order of the Division may be enforced to the same extent as a circuit court judgment, section 454.490.1, an order from the Division has no preclusive effect on subsequent litigation on the issue of paternity. Salazar, 236 S.W.3d at 647; see Smith, 985 S.W.2d at 835 (noting that an order entered pursuant to section 454.470 has no preclusive effect on the issue of paternity but holding that the appellant was time-barred from raising that issue).

Since the Division’s order had no preclu-sive effect on the issue of Wilson’s paternity, the circuit court erred in dismissing the petition to the extent it did so on that basis.

Conclusion

Pursuant to section 210.826, Wilson had standing to bring a paternity action. Neither section 210.823 nor the Division’s order pursuant to section 454.485 bars Wilson’s claims. Accordingly, we reverse the circuit court’s judgment of dismissal and remand for proceedings consistent with this opinion.

Joseph M. Ellis, Presiding Judge, and Alok Ahuja, Judge, concur.

      . Statutory citations are to RSMo 2000.

      . As noted below, in this case, the motion to dismiss was converted into a motion for summary judgment. On appeal from the grant of a motion for summary judgment, we view the evidence and inferences therefrom in the light most favorable to the party against whom judgment is entered. Mitchell v. McEvoy, 237 S.W.3d 257, 260 (Mo.App. E.D.2007).

      . Wilson filed the petition on behalf of himself and, purportedly, on behalf of Son as Son's next friend. However, Wilson is not Son's guardian, nor has the circuit court appointed him as Son's next friend. See Rule 52.02. Accordingly, Wilson brought no proper action in his capacity as Son's next friend, and, as the circuit court did, we will consider Wilson's claims only as they apply to Wilson individually. Id.

      . The petition alleges that a blood test shows Wilson to be Son’s father; however, the test results themselves, which Wilson submitted to the circuit court for the purposes of determining standing, state that the collection of DNA from Son was not witnessed and that therefore the results "cannot be used as legal evidence of parentage.” As such, the alleged test results cannot be used to establish Wilson as the presumed father because they do not comply with section 210.834 in that they contain no certification of the chain of custody of the blood or tissue specimens used. See § 210.834.5. Therefore, at the time the circuit court granted Respondents' motion to dismiss, it was undisputed that Wilson's alleged DNA evidence was insufficient to establish Wilson as the presumed father.

      . We note that, prior to the 1993 amendments to chapter 210, an action to declare the nonexistence of a father-child relationship could only be brought within five years of the child’s birth; further, "a man alleging himself to be the father” was not included among the persons who could bring such an action. See W.B. ex rel. M.E.R. v. M.G.R., 955 S.W.2d 935, 937 (Mo. banc 1997); Courtney ex rel. Courtney v. Roggy, 302 S.W.3d 141, 149 (Mo.App. W.D.2009). Thus, Wilson, as a man merely alleging himself to be the father and filing six years after the birth of the child, would have had no standing to bring his action under the former statute, or, in the alternative, he would have been barred by the statute of limitations. However, given that the legislature specifically removed the five-year statute of limitations and added “a man alleging himself to be the father” to the list of persons who may bring an action, Wilson clearly has standing under the statute as amended and is not barred by the statute of limitations, which is now eighteen years. § 210.828.

      . This subsection relates to agreements made and approved at a pre-trial conference in a section 210.826 action to declare the existence or nonexistence of a father and child relationship, and, as such, it is not relevant here, where no such conference was held.

      . Wilson’s claims for custody, child support, and for a change of Son's name are derivative of his paternity action. We stress that this opinion addresses only whether Wilson has standing to establish paternity. Assuming for the sake of argument that Wilson can prove that he is Son's father, whether he will be entitled to any additional relief will be left to the sound discretion of the trial court. Russell v. Russell, 210 S.W.3d 191, 198 (Mo. banc 2007) (child support); R.W.B. v. T.W., 23 S.W.3d 266, 268 (Mo.App. S.D.2000) (name change); Wells v. Wells, 623 S.W.2d 19, 22 (Mo.App. E.D.1981) (custody modification).

      . We are cognizant of the potential disruptive effect on the child and on the existing father-child relationship of a putative father coming forward at a late date. However, regarding the issue of standing, we are bound by the terms of the relevant statutes.