author: PATRICIA L. COHEN, Judge.

text:
    STATE of Missouri, Respondent, v. Gerrek FRENCH, Appellant.
    No. ED 92992.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 13, 2010.

      N. Scott Rosenblum, Clayton, MO, for appellant.
    Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.
   PATRICIA L. COHEN, Judge.

Introduction

Gerrek French (Defendant) appeals the judgment of conviction entered after a jury found him guilty of two counts of forcible sodomy, one count of forcible rape, and one count of kidnapping. Defendant claims the trial court erred in: (1) denying his motion to sever the offenses, and (2) denying his motion for judgment of acquittal as to the forcible sodomy of S.P. We affirm.

Factual and Procedural Background

On May 6, 2008, a grand jury indicted Defendant on fourteen charges stemming from the allegations of three women who claimed Defendant sexually assaulted them in August and September 2006. Counts 1 through 8 pertained to the alleged assault of C.K. on August 22, 2006 and charged Defendant with one count of forcible rape (Count 1), one count of forcible sodomy (Count 3), four counts of armed criminal action (Counts 2, 4, 6, and 8), one count of first-degree robbery (Count 5), and one count of kidnapping (Count 7). The next three counts, pertaining to S.P. and an incident on September 9, 2006, charged Defendant with one count of forcible rape (Count 9), one count of forcible sodomy (Count 10), and one count of kidnapping (Count 11). The remaining three counts, pertaining to A.C. and an incident on September 21, 2006, charged Defendant with one count of forcible rape (Count 12), one count of forcible sodomy (Count 13), and one count of kidnapping (Count 14).

Prior to his trial, Defendant filed a motion to sever the fourteen counts into three separate cases. Defendant claimed that the offenses were not part of the same scheme or transaction and that trying all the charges together would result in substantial prejudice to him. The trial court denied Defendant’s motion to sever.

The trial court conducted a four-day jury trial in January 2009. At the close of the State’s evidence, Defendant moved for judgment of acquittal. The trial court granted the motion as to Count 4, but denied the motion as to the remaining counts.

Following the trial, the jury found Defendant guilty on all three counts involving A.C. (Counts 12, 13, and 14) and one count involving S.P. (Count 10). The jury acquitted Defendant of forcible rape and kidnapping with regard to S.P. (Counts 9 and 11) and of armed robbery and armed criminal action with regard to C.K. (Counts 2, 5, 6, and 8). The trial court sentenced Defendant to concurrent twenty-year sentences for Counts 10,12, and 13, and a ten-year sentence for Count 14 to run consecutively, for a total sentence of thirty years in the Missouri Department of Corrections.

The evidence relevant to each count is presented below. Although the trial court did not convict Defendant on the counts relating to C.K. or the forcible rape and kidnapping of S.P., we examine the evidence relating to those counts because Defendant claims the counts were improperly joined.

On August 22, 2006, C.K. was addicted to drugs and working as a prostitute. After having lunch with a friend, she accepted a ride from Defendant in an area known for prostitution. Defendant was driving a maroon Ford F-150 truck with a distinctive-looking camper shell. After picking up C.K., Defendant stopped at a convenience store to purchase alcohol and a condom and told C.K. he was taking her to his friend’s house. Defendant drove C.K. to a carport behind a vacant building where he parked the truck and locked the doors. Defendant told C.K. she “had a smart mouth” and “was going to suck his dick.” When C.K. refused, he pulled her head down and forced her to perform oral sex. C.K. tried to grab a knife that she kept in her pocket, but Defendant took the knife from her and ordered her to empty her pockets and remove her pants. While holding the knife, Defendant made C.K. “bend over the back of the [passenger] seat” and vaginally penetrated C.K. from behind.

After the alleged rape, C.K. wiped herself off with tissue, which police later found at the scene along with a used condom and a condom wrapper. C.K. then ran to a neighboring house, whose owner allowed her to use the telephone to call the police. The police took C.K. to the hospital, where hospital personnel performed a rape kit.

On the evening of September 9, 2006, Defendant picked up S.P. in a high-prostitution area in the same maroon truck. S.P. was addicted to drugs and working as a prostitute. S.P. agreed to perform sexual services for Defendant at her house in exchange for money. When Defendant refused to take S.P. to her house, she told Defendant she was no longer willing to have sex with him. Defendant parked the truck in a lot behind a vacant building, told S.P. she had “a smart mouth,” pushed her head down, and made her perform oral sex. Defendant then directed S.P. to turn around in the passenger seat, and had vaginal intercourse with her from behind. When he was finished, Defendant drove S.P. back to her neighborhood and gave her $5. Later that night, S.P. led the police to the building where the incident occurred, and there the police collected a condom wrapper that had Defendant’s fingerprint.

On the evening of September 21, 2009, A.C. was walking home from a QuickTrip near her home in a high-prostitution area. A.C. was approximately eight months pregnant and addicted to drugs. Defendant pulled his maroon truck up to A.C. and opened the passenger door to talk to her. Defendant then grabbed A.C.’s arm, pulled her into the truck, and drove away. Defendant parked the truck behind a vacant building and forced A.C. to perform oral sex “[b]y grabbing [her] head and pushing it down in his lap.” A.C. testified that she was frightened “for [her] life and the life of [her] child.” Defendant ordered A.C. to remove her pants, and he climbed over to the passenger seat. Defendant attempted but failed vaginal penetration while positioned in front of A.C. Defendant told A.C. to turn around and proceeded to vaginally and anally rape her from behind.

After raping A.C., Defendant returned to the driver seat, threw the used condom out the window, and put on another condom. A.C. tried to get out of the truck, but Defendant stopped her by threatening her with a car charger and forced her to perform oral sex again. Defendant then told A.C. to get out of the truck, and A.C. ran home “screaming and crying.” A.C. told her mother that she had been raped, and A.C.’s mother called the police. That night, A.C. directed the police to the lot where Defendant raped her, and the police collected a used condom and two condom wrappers. From there, the police took A.C. to the hospital where hospital personnel completed a rape kit.

C.K., S.P., and A.C. testified at trial. The State’s evidence also included: testimony from the neighbor who lent C.K. her telephone to call the police; A.C.’s mother; police officers and detectives involved in the three cases; the emergency room nurses who examined C.K., S.P., and A.C.; and a latent fingerprint examiner, three forensic biologists, and a DNA analyst from the St. Louis Metropolitan Police Department Crime Lab. Defendant testified in his own defense and denied all of the allegations.

The jury found Defendant guilty of forcibly sodomizing S.P. and forcibly raping, forcibly sodomizing, and kidnapping A.C., and the trial court sentenced Defendant to a total of thirty years’ imprisonment. Defendant appeals.

Discussion

In his first point on appeal, Defendant claims that joinder of the offenses was improper and the trial court abused its discretion in denying his motion to sever. Our review of claims for improper joinder and failure to sever charges involves a two-step analysis. State v. Love, 293 S.W.3d 471, 475 (Mo.App. E.D.2009). We first determine whether joinder of the charges was proper as a matter of law. Id. If joinder was not proper, then prejudice is presumed and severance of the charges is mandatory. Id. If, on the other hand, we find that joinder was proper, we must determine whether the trial court abused its discretion in denying the defendant’s motion to sever. Id. “The issue of whether joinder is proper is a question of law, while severance is within the trial court’s discretion.” Id.

We first consider whether joinder of Defendant’s offenses was proper as a matter of law. Under Missouri law, joinder is proper where the charged offenses are of the same or similar character, are based on two or more connected acts or transactions, or are part of a common scheme or plan. Mo.Rev.Stat. § 545.140.2; Mo. Sup. Court Rule 23.05; Love, 293 S.W.3d at 475. In the interest of judicial economy, Missouri courts favor liberal joinder of offenses. State v. Dizer, 119 S.W.3d 156, 161 (Mo.App. E.D.2003).

“The use of similar tactics in the commission of multiple crimes is sufficient to show that the offenses are of the same or similar character.” State v. Spencer, 62 S.W.3d 623, 625 (Mo.App. E.D.2001). “Some of the factors courts consider to determine if a defendant’s tactics are similar in character include: (1) similarity in the type of offenses; (2) similarity in the victims’ sex and age group; (3) commonality of the location where the offenses took place; and (4) closeness in time between the crimes.” State v. Chambers, 234 S.W.3d 501, 508-09 (Mo.App. E.D.2007). In the instant case, joinder of the offenses was proper because Defendant used similar tactics. Specifically, Defendant approached all three victims in the same truck in high-prostitution areas. Defendant then drove each victim to parking pads behind vacant buildings, where he pushed the victims’ heads into his lap while he was seated in the driver’s seat of his truck. In two of the three incidents, Defendant used similar language in telling the victim she had “a smart mouth.” Defendant forced the three victims to perform oral sex and then raped each woman from behind in the passenger seat of his truck. Additionally, the three incidents occurred within the same one-month period.

Defendant argues that the “evidence fails to evince a similar character among the offenses or a common scheme or plan” because the three victims entered Defendant’s truck under different circumstances and only one victim alleged that Defendant used a knife. “The mere existence of differences among the counts does not defeat joinder.” Love, 293 S.W.3d at 476 (quotation omitted). We find the victims, the offenses, and the locations of the offenses were sufficiently similar to render joinder proper.

In support of his argument that joinder was improper, Defendant relies upon State v. Kelly, 956 S.W.2d 922 (Mo.App. W.D.1997). In Kelly, the Western District held that joinder of charges arising from four armed robberies was improper because the crimes were not related in time and the tactics used were not the same or similar in character. Id. at 925. The Kelly court explained:

The only real similarity between the first crime and the later three crimes is that in all four instances [the defendant] was accompanied by another man and committed armed robberies. However, there was nothing distinctive about the tactics used which made it likely that the same person was involved in each robbery.

Id. at 926. Kelly does not support Defendant’s argument because the differences he lists in his brief are not equivalent to the differences that rendered joinder improper in Kelly. See State v. Holliday, 231 S.W.3d 287 (Mo.App. W.D.2007) (rejecting the defendant’s reliance on Kelly for support of his argument that joinder of his statutory sodomy and statutory rape charges was improper). Unlike the crimes in Kelly, Defendant’s crimes involved similar victims, similar tactics, and similar locations, and they were proximate in time.

Having determined that joinder of the counts was proper, we next consider whether the trial court’s denial of severance constituted an abuse of discretion and manifested substantial prejudice. Love, 293 S.W.3d at 476. The trial court is afforded broad discretion as to severance. Spencer, 62 S.W.3d at 625. The trial court’s decision will not be reversed absent a showing of an abuse of discretion and “a particularized showing of substantial prejudice.” Mo. Sup. Court Rule 24.07; see also Mo.Rev:Stat. § 545.885; Love, 293 S.W.3d at 475. In determining whether the trial court abused its discretion, we consider the number of offenses joined, the complexity of the evidence, and the likelihood that the jury could distinguish the evidence and apply it, without confusion, to each offense. Dizer, 119 S.W.3d at 162.

Our review of the record reveals no abuse of discretion in the trial court’s denial of Defendant’s motion to sever the offenses. The record - shows that the facts relevant to each offense' were not complex and the proof the State offered as to each charge was distinct and uncomplicated. Nothing in the record indicates that the jury could not distinguish between the evidence and legal principles applicable to each crime and each victim. See Conley, 873 S.W.2d at 238. Indeed, the fact that the jury found Defendant guilty of only four of the thirteen counts before it indicates that the jury was able to distinguish the evidence and intelligently apply the law to each offense. See State v. Davis, 860 S.W.2d 369, 373 (Mo.App. E.D.1993) (holding that joinder of thirty-nine counts stemming from sexual assaults of fourteen women did not prejudice the defendant where he was convicted of only twelve counts relating to five of the women). Furthermore, “clear instructions can help a jury competently distinguish between offenses.” State v. Howton, 890 S.W.2d 740, 745 (Mo.App. W.D.1995). Here, each offense was set forth in a separate jury instruction, and the trial court specifically instructed the jury that “[e]ach count must be considered separately.”

Defendant claims that he suffered substantial prejudice as a result of the trial court’s refusal to sever the offenses because the jury heard evidence of other crimes charged that would not have been before the jury had the trial court granted Defendant’s motion to sever. “Severance of jointly charged offenses is not mandated merely because evidence relating to one count would not be admissible in the trial of a second count if the two were tried separately.” Conley, 873 S.W.2d at 238. Defendant failed to carry his burden of establishing a particularized showing of substantial prejudice. Point denied.

In his second and final point on appeal, Defendant claims that the trial court erred in denying his motion for judgment of acquittal as to the forcible sodomy of S.P. because the evidence “was insufficient to establish forcible compulsion as required to sustain a conviction of forcible sodomy.” Specifically, Defendant argues that the State failed to carry its burden to prove forcible compulsion because it presented no evidence of either resistance on the part of S.P. or a threat that would cause a reasonable person to fear serious injury.

“In reviewing the sufficiency of the evidence to support a criminal conviction, we view the evidence, together with all reasonable inferences drawn therefrom, in the light most favorable to the State and disregard all evidence and inferences to the contrary.” State v. Silvey, 894 S.W.2d 662, 673 (Mo. banc 1995). Our review is limited to a determination of whether there is sufficient evidence from which a reasonable fact-finder could find the defendant guilty beyond a reasonable doubt. Id.

“A person commits the crime of forcible sodomy if such person has deviate sexual intercourse with another person by the use of forcible compulsion.” Mo.Rev. Stat. § 566.060.1. Section 556.061.12 defines the term “forcible compulsion” to mean either: “(a) Physical force that overcomes reasonable resistance; or (b) A threat, express or implied, that places a person in reasonable fear of death, serious physical injury or kidnapping of such person or another person.” Mo.Rev.Stat. § 556.061.12. “Physical force is simply force applied to the body.” State v. Vandevere, 175 S.W.3d 107, 108 (Mo. banc 2005) (quotation omitted). “The force involved need not come after the victim has physically resisted. Rather, the force used must be calculated to overcome the victim’s resistance.” Id. (quotations omitted).

At trial, S.P. testified that she willingly entered Defendant’s truck and agreed to perform sexual services for Defendant in exchange for money, but she changed her mind when he refused to drive her to her house, the location she specified for performing the acts, and instead drove her down “a vacant alley.” Although S.P. informed Defendant that she did not want to go there with him, Defendant parked the car behind a vacant building. S.P. testified: “I told him that I didn’t want to do nothing and he said something about I got a smart mouth and he took my head and did it like that and made me give him oral sex.” The record reflects that S.P. “made a motion with her hand pushing her head down.” When the prosecutor asked S.P., “Did he force your mouth onto his penis?,” she replied “Uh-huh.” The trial court asked S.P., “Is that a yes, ma’am?,” and S.P. answered, ‘Tes.” S.P. also explained: “he pushed my head down and he’s a — I’m little. He’s bigger than me and I was scared. I was terrified. So I did whatever he told me to do.” When the prosecutor asked S.P. on redirect examination why she did not attempt to jump out of the truck and run away, S.P. answered, “Because he is bigger than me and I’m a little bitty person. I didn’t know if he was going to run me over or I just didn’t know.”

In determining whether the force used was sufficient to overcome reasonable resistance, we look to the totality of the circumstances. Vandevere, 175 S.W.3d at 109. At the time of the incident, S.P. was 4' 11" and weighed approximately 140 pounds, whereas Defendant was 5' 9" and weighed approximately 250 pounds. Defendant drove S.P. to an isolated parking pad after she refused to engage in sexual activity with Defendant. S.P. testified that she was considerably smaller than Defendant, she felt “terrified,” and Defendant ignored S.P.’s protests and physically pushed her head into his lap. We find there was sufficient evidence from which a reasonable fact-finder could find that Defendant’s actions constituted the use of forcible compulsion against S.P.

Defendant argues that the State failed to prove forcible compulsion because it presented no evidence that S.P. resisted Defendant’s use of physical force and, therefore, “one cannot determine if the force used when her head was ‘pushed’ was significant enough to overcome reasonable resistance.” Missouri law does not require a sexual assault victim to offer physical resistance if she submits through fear of personal violence. Spencer, 50 S.W.3d at 874. Nor does Missouri law “require or expect the utmost resistance to sexual assault when it appears that such resistance would be futile or would provoke more serious injury.” Vandevere, 175 S.W.3d at 109. Thus, the State need not demonstrate that S.P. physically resisted Defendant’s physical force in order to show that he used forcible compulsion. Point denied.

Conclusion

The judgment of the trial court is affirmed.

SHERRI B. SULLIVAN, P.J., and ROBERT G. DOWD, JR., J., Concur.

      . The jury hung on the remaining counts involving C.K., namely forcible rape, forcible sodomy, and kidnapping (Counts 1, 3, and 7). The State entered a memorandum of nolle prosequi on those counts.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Plaintiff/Respondent, v. Richard C. SIMMONS, Defendant/Appellant.
    No. ED 92822.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 13, 2010.

      Shaun J. Mackelprang, Jefferson City, MO, for PlaintiffiRespondent.
    Maleaner Harvey, St. Louis, MO, for Defendant/Appellant.
    Before SHERRI B. SULLIVAN, P.J., ROBERT G. DOWD, JR., J., and PATRICIA COHEN, J.
   ORDER

PER CURIAM.

Richard C. Simmons (Appellant) appeals from the trial court’s judgment and sentence entered upon a jury verdict finding Appellant guilty of one count of first-degree murder in violation of Section 565.020 and one count of armed criminal action in violation of Section 571.015. We have reviewed the briefs of the parties and the record on appeal and conclude that the trial court did not err in denying Appellant’s motion for acquittal, State v. Sanchez, 186 S.W.3d 260, 266 (Mo.banc 2006), or abuse its discretion in admitting evidence of Appellant’s prior bad act. State v. Tolliver, 101 S.W.3d 313, 315 (Mo.App. E.D.2003). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Criminal Procedure 30.25(b).

      . All statutory references are to RSMo 2006, unless otherwise indicated.


text:
    STATE of Missouri, Respondent, v. Kevin T. HARRISON, Appellant.
    No. ED 92795.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 13, 2010.
    Lisa M. Stroup, Saint Louis, MO, for Appellant.
    Chris Koster, Attorney General, Robert J. (Jeff) Bartholomew, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before GLENN NORTON, P.J., MARY K. HOFF, J. and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Kevin T. Harrison appeals the judgment entered upon a jury’s verdict convicting him of first-degree murder and armed criminal action. We find that the trial court did not err in denying Harrison’s motion for judgment of acquittal. An extended opinion would have no precedential value. We have, however, provided the parties a memorandum setting forth the reasons for our decision. The judgment of the trial court is affirmed under Rule 30.25(b).


author: ROBERT S. BARNEY, Judge.

text:
    MORELOCK-ROSS PROPERTIES, INC., Appellant, v. ENGLISH VILLAGE NOT-FOR-PROFIT SEWER CORPORATION, Respondent.
    No. SD 29868.
    Missouri Court of Appeals, Southern District, Division One.
    April 14, 2010.

      Bryan 0. Wade and Ginger K. Gooch, Husch, Blackwell, Sanders, L.L.P., Springfield, for Appellant.
    Brian D. Malkmus and Jessica L. Kruse, Malkmus Law Firm L.L.C., Springfield, for Respondent.
   ROBERT S. BARNEY, Judge.

Morelock-Ross Properties, Inc. (“Appellant”) appeals the judgment and findings of fact of the trial court which found in favor of English Village Not-For-Profit Sewer Corporation (“Respondent”) following a bench trial held on stipulated facts. In two points relied on, Appellant challenges the trial court’s ruling that allowed Respondent to collect from Appellant a sewer hook-up fee and an impact fee as well as the trial court’s determination as to the amount of the fees which could be collected because the amount set by the trial court was in contravention of certain limits set up by section 393.849. We affirm the judgment and findings of the trial court.

“This case does not involve any issues of fact.” City of Kansas City v. Dudley, 244 S.W.3d 762, 763 (Mo.App.2008). “[Wjhen a case is submitted on stipulated facts, as here, this Court must determine ‘whether the trial court drew the proper legal conclusions from the facts stipulated.’ ” Eisel v. Midwest BankCentre, 230 S.W.3d 335, 337 (Mo. banc 2007) (quoting Junior College Dist. of St. Louis v. City of St. Louis, 149 S.W.3d 442, 446 (Mo. banc 2004)). We review questions of law de novo. Eisel, 230 S.W.3d at 338.

With the aforementioned standard of review in mind, the record reveals Appellant is a commercial and residential developer in Southwest Missouri and is the developer of Tuckaway Subdivision (“the Subdivision”) which is located in Christian County, Missouri, near Nixa. Respondent is a nonprofit sewer company that provides sewage collection services to customers within a specific geographic area.

In January of 2003, following a dispute between the City of Springfield, Missouri, (“the City”), the Missouri Department of Natural Resources, and the Missouri Attorney General, the City “agreed to extend its wastewater pipeline from the Southwest Wastewater Treatment Plant to serve ...” Respondent’s geographic area. This “Settlement Agreement” (“the Settlement Agreement”) was entered into on January 13, 2003, and required, in part, that Respondent pay to the City a “customary impact fee” of $97,400.00 for the existing users within Respondent’s area. It further provided that Respondent would then collect “all fees and charges for sewer services charged by [the City] to its customers and [the City] shall provide [Respondent’s users] with the same sewer services as all other customers of [the City].”

Thereafter, on August 28, 2003, the City and Respondent entered into a “Wastewa-ter Contract” (“the Wastewater Contract”) which provided that the parties would “cooperate” in providing sewer services to Respondent’s area. In Article IV, Section 401, the Wastewater Contract required that Respondent “shall, at its own expense and cost, maintain any and all improvements to [Respondent’s system] necessary to continue the delivery of sewage to the Connection Point ...” with the City’s Publicly Owned Treatment Works (“POTW”). Additionally, it provided at Section 403:

(a) [Respondent] shall adopt and maintain at all times while this contract is in effect, Regulations governing usage and connection to such sewers at least as restrictive as [the City] may require and apply from time to time within [the City], and shall amend such Regulations as needed which shall at all times conform to [the City’s] ordinances as amended.
(b) [Respondent] shall be responsible for collection of fees and charges for use of the [sewer system] and shall include in the billing to Users a component for the fees and charges set in Section 501 [of the Wastewater Contract], as they may be increased, or decreased by [the City] .... The fees and charges billed by the City ... per Section 501 shall be deemed to be expenses of operating the system.

(Emphasis added). Article V, Section 501, dealing with “User Charges” set out that the City

will charge [Respondent] a fee for the treatment and use of the [sewer system] based upon rates and charges, including sewer connection fees established by [the City] from time to time for the use of [the City’s] sewer lines and the treatment of wastewater, which rates and charges shall be equal to' and be the same as apply to users within [the City], except for authorized deductions or exceptions as set forth herein. Such fees and charges shall include, but not be limited to, all user fees and connection fees charged by [the City] to its residents for the use of the [City’s sewer system].... Failure by [Respondent] to pay [the City] a sum of money equal to rates and charges made by [the City] to its residents for use of the [City’s sewer system], and connection fees less authorized deductions, is a breach of this agreement entitling [the City] to discontinue treatment of sewage from [Respondent] and seek appropriate judicial relief.
a. [Respondent] may deduct and retain a 4 1/2 [percent] fee from the amount due to defer its administrative costs; plus
b. [Respondent] may deduct and retain a percentage of the amount due for the operation, maintenance, rehabilitation and repair of its collector sewer system calculated to the nearest one-tenth of one percent according to [a set formula]....
c. [Respondent] may deduct and retain a percentage of the amount due, which represents the portion of [the City’s] fees charged from time to time, to protect for bad debts, calculated to the nearest one-tenth of one percent, being a percentage equal to the percentage of bad debts experienced by [the City] in collecting sewer use charges in the previous fiscal year.

(Emphasis added). In Article II, Section 201 the Wastewater Contract provided that Respondent

shall pay [the City’s] customary impact fee, which is calculated to be the sum of $97,400[.00].... [Respondent] represents to [the City] that it has obtained or it has reasonable assurances that it can obtain a loan from the Rural Development Office, which will be used by [Respondent] to pay [the City’s] customary impact fee.
Proceeds from the loan shall be used to pay [the City’s] customary impact fee. [Respondent] shall also pay the then customary impact fee being assessed by [the City] for any User connecting to [Respondent’s] [s]ewer [s]ystem after November 1, 2001.... Any User who connects to [Respondent’s] [sjewer [s]ys-tem after the above fee has been paid shall pay at the time of connection the impact fee in force and effect for the [City’s] customers.

(Emphasis added).

On January 30, 2004, the City and Appellant’s predecessor-in-interest entered into a “Sewer and Land Use Prohibitions and Irrevocable Petition for Annexation” (“Sewer Line Extension Agreement”) which provided that the City agreed to supply “sanitary sewer service to [the property at issue] until such time as the City of Nixa, Missouri, chooses to annex this area and assume responsibility for operation of the sanitary sewer system.” Due to the property’s location, it would not be served directly by the City, but, instead, through Respondent.

In May of 2004, Appellant purchased “the property at issue in the Sewer Line Extension Agreement” and platted the property to include 107 lots. Eleven residences had already been constructed at the time of trial.

Since August of 2005, for each home hooked up to its system Respondent required a hook-up fee of $600 from 15 separate users in the Subdivision, and since December of 2006 Respondent required an impact fee of $1,500.00 from 3 separate users.

In February of 2007 Respondent notified Appellant that Appellant would need to pay an impact fee of $1,400.00 per constructed residence and a hookup fee of $600.00 per constructed residence for each of the eleven residences which had been constructed in the Subdivision and which had all been hooked up to Respondent’s sewer system. Appellant responded by refusing to pay the amounts charged by Respondent and, instead, offered to pay a hook-up fee of $300.00 contending that the hook-up fee was in conformity with the amount typically charged by the City for such a connection.

Appellant filed its “First Amended Petition” against Respondent on March 27, 2007, in which it sought a declaratory judgment determining that Respondent had no right “to collect an impact fee from [Appellant] under the terms of ...” the Settlement Agreement and the Wastewa-ter Contract; that under the terms of the Settlement Agreement and the Wastewa-ter Contract Respondent had no right to “collect a hook-up fee from [Appellant] ... beyond the hook-up fee charged by the City ..., which is presently $300[.00] per hook-up;” that “any charges exceeding the City[’s] ... charges are per se unreasonable;” that Respondent’s actions in charging more than the City exceeded its “authority” under the laws of the State of Missouri; that, alternatively, the charges asserted by Respondent were “unreasonable whether or not the provisions of ...” the Settlement Agreement and the Waste-water Contract applied; and it requested “reasonable attorneys [fees] and costs incurred in bringing [its] action.” Appellant additionally asserted that “[t]here is an actual controversy between [Appellant] and [Respondent] regarding the fees and amounts ... [Respondent] is authorized to charge ...” under the various agreements at issue and that Respondent “has threatened to withhold sewer services from [Appellant] if [it] does not pay [Respondent] the excessive fees demanded” such that Appellant has no “adequate remedy at law.” Accordingly, Appellant prayed that the trial court would “enjoin [Respondent] from withholding provision of sewer services ... pending the resolution ...” of the parties’ issues.

On July 27, 2007, Respondent filed its “Answer to [Appellant’s] Petition and [Respondent’s] Counterclaim against [Appellant]” in which it also sought relief in two counts. First, Respondent asserted a breach of contract claim against Appellant due to its refusal to pay the required fees in contravention of the Sewer Line Extension Agreement signed by Appellant’s predecessor-in-interest and Respondent which Respondent contended Appellant had assumed. Respondent urged it was damaged in an amount “totaling $1,400.00 times the number of total lots as an impact fee and $600.00 times the number of connected lots as a hook-up fee, in addition to [nine percent] interest from the date of connection.... ” Second, Respondent requested “a preliminary injunction restraining [Appellant] from connecting additional units to [Respondent’s system] until all required fees for each unit connected are paid into the Court....”

A trial on the above stipulated facts was held on February 9, 2009. Following its review of the documents submitted by the parties, the trial court found the issues in favor of Respondent. The Court found that Respondent was not prohibited from charging an impact fee or a hook-up fee that exceeded the fee it was required to pay to the City. Thereafter, on May 4, 2009, the trial court adopted the proposed findings of fact and conclusions of law and judgment offered by Respondent. In its conclusions of law, the trial court determined that “the contracts and Missouri statute at issue in this litigation do not prohibit [Respondent] from charging an impact fee or a hook-up fee that exceeds the fee [Respondent] pays to the City....” The trial court further determined the Settlement Agreement did “not address the amount that [Respondent] can or must charge its customers ...” and that the Wastewater Contract was “not ambiguous and addresse[d] only the minimum amount [Respondent] can charge for its ... collection and distribution services ...” because the Wastewater Contract set out that “the regulations adopted by [Respondent] must be at least as restrictive as [the City] may require and that [Respondent] must include simply as a component within the charges it passes on to its users the fees established by [the City].... ” It also determined the Sewer Line Extension Agreement between Appellant’s predecessor-in-interest and the City “only addressed] the fact that the owners of the property within [Respondent’s] Service Area pay the required fees ..., but [did] not address the amounts [Respondent] must charge for the required fees;” that Respondent did not violate section 393.849, because that provision “only addresse[d] the mechanism by which profits in excess of what is spent on the items listed in the statute be distributed proportionately among [Respondent’s members] at the end of the fiscal year;” and that section 393.849 also “does not address the reasonableness of fees charged by a nonprofit sewer company nor does the statute address the amount of fees a nonprofit sewer company can charge its members or customers.” As a result, the trial court adjudged, inter alia, that Appellant was required to pay the amount requested by Respondent for impact and hook-up fees such that it owed Respondent $48,000.00 for the 24 lots in the Subdivision which had been hooked up to Respondent’s system. This appeal followed.

In its first point relied on, Appellant maintains the trial court erred in holding that Respondent is

entitled to collect from [Appellant] a sewer hook-up fee and impact fee exceeding the fees currently charged by the City ... because the Settlement Agreement and Wastewater Contract limit the amount [Respondent] may charge and collect to fees currently charged by the City ..., in that the City ... currently charges a hook-up or connection fee of $300[.00] per user and does not charge an impact fee.

The interpretation of an unambiguous contract is a question of law. City of St. Joseph v. Lake Contrary Sewer Dist., 251 S.W.3d 362, 367 (Mo.App.2008). ‘“The cardinal principle of contract interpretation is to ascertain the intention of the parties and to give effect to that intent.’ ” Pepsi Midamerica v. Harris, 232 S.W.3d 648, 655 (Mo.App.2007) (quoting Butler v. Mitchell-Hugeback, Inc., 895 S.W.2d 15, 21 (Mo. banc 1995)). “The terms of a contract are read as a whole to determine the intention of the parties and are given their plain, ordinary, and usual meaning.” Id.

Appellant argues the Wastewater Contract does not expressly permit Respondent to charge and collect fees beyond those charged by the City and, therefore, the trial court erred when it determined the Wastewater Contract was unambiguous and erred when it permitted Respondent to charge and collect fees beyond those charged by the City. As Appellant maintains, “[s]imply put, the Wastewater Contract cannot unambiguously address the issue of additional fees when the Wastewater Contract is silent on the issue. Rules of contractual interpretation must be applied.” We disagree.

Here, the parties have stipulated to all pertinent facts. It has long been held that “an ambiguity cannot be created by silence, especially when both parties are sophisticated bargainers.” Halls Ferry Investments, Inc. v. Smith, 985 S.W.2d 848, 853 (Mo.App.1998). This Court can glean the “intent of the parties ... from the contract alone and the court is bound to enforce the contract as written.” Robbins v. McDonnell Douglas Corp., 27 S.W.3d 491, 496 (Mo.App.2000). Considering the entire contract, along with its object, nature and purpose, id., this Court agrees with the trial court that the Waste-water Contract does not control how much Respondent charges its customers such as Appellant.

Looking at the plain and ordinary meaning of the language in the contracts at issue, it is this Court’s view that none of the contracts address the m,axivmm amount Respondent can charge its own customers for hook-ups nor do they address whether Respondent can charge its customers an impact fee. The Wastewater Contract entered into between the City and Respondent, covers the terms and conditions of the City’s providing sewage treatment services to Respondent, the obligations of both parties, details regarding the responsibilities for “Improvements to the System,” various “Liabilities and Indemnification [s],” details relating to the operation and maintenance of the “English Village connector” pipe which attaches to the City’s sewage treatment plant as well as miscellaneous, standard contract provisions. In Article V of the Wastewater Contract, entitled “User Charges,” there are several paragraphs, set out above in this opinion, regarding the fees Respondent is required to pay to the City, but there are no provisions setting out what amounts Respondent may charge its users, provided these charges are not less than those the City imposes on its customers. Further, Article II of the Wastewater Contract, entitled “Improvements to the System,” contains a provision in section 201, which relates to “Costs and Process,” and sets out at subsection (b) that Respondent is required to pay to the City the “customary impact fee” of $97,400.00 for the users already connected to Respondent’s sewer system as of November 1, 2001, and required that Respondent “shall pay the then customary impact fee being assessed by [the City] for any User connecting to [Respondent] after November 1, 2001, pri- or to the connection of such User to [Respondent’s] system.”

In this connection, we note that one of the primary themes running throughout the Wastewater Contract is that the City is making certain that Respondent pays for the City’s services and that Respondent be prohibited from imposing “rates and charges” to its users for less than those that apply to the City’s own customers. For example, Article V, Section 501, sets out, in part, that

[the City] will charge [Respondent] a fee for the treatment and use of the [sewer system] ... which rates and charges shall be equal to and be the same as apply to users within [the City].... Such fees and charges shall include, but not be limited to, all user fees and connection fees charged by [the City] to its resident for the use of [the City’s sewer system].... Failure by [Respondent] to pay [the City] a sum of money equal to rates and charges made by [the City] to its residents for use of the [City’s sewer system] and connection fees ... is a breach of this agreement entitling [the City] to discontinue treatment of sewage from [Respondent] and seek appropriate judicial relief.

(Emphasis added). Furthermore, the italicized portion of Section 201, supra, reinforces this same theme with the provision that “[a]ny User who connects to [Respondent’s] [s]ewer [s]ystem after the above fee has been paid shall pay at the time of connection the impact fee in force and effect for the [City’s] customers.” In short, when read together, the paragraphs do not limit Respondent’s ability to impose rates and charges, but provide that at a minimum Respondent may not charge less than what the City charges its own customers.

Likewise, the Settlement Agreement between the City, Respondent, and other entities only provides that Respondent is to pay to the City a “customary impact fee” of $97,400.00 for the existing users within Respondent’s area, and that Respondent would then collect “all fees and charges for sewer services charged by [the City] to its customers and [the City] shall provide [Respondent’s users] with the same sewer services as all other customers of [the City].” In the Settlement Agreement, there is no mention of the rate Respondent can charge its customers and the Settlement Agreement, as with the Wastewater Contract, is not made ambiguous by its silence on that issue. There are simply no provisions in the contracts at issue which preclude Respondent from charging a $600.00 hook-up fee and a $1,400.00 impact fee on the lots owned by Appellant or on any other lots within its geographic area. The trial court did not err in determining Respondent could charge its requested fees, and in adjudging Appellant liable for payment of the fees charged by Respondent. Point I is denied.

In its second point relied on, Appellant asserts the trial court erred in finding Respondent was entitled to collect from Appellant a $600.00 hook-up fee and a $1,400.00 impact fee in that “[sjection 393.849 ... limits the fees [Respondent] may charge and collect to those fees reasonably necessary for its operations, in that there is no evidence in the record regarding the reasonable necessity of the fees.”

Section 393.849, pertaining to refunds of excess revenues by a nonprofit sewer company, provides that:

[r]evenues of a nonprofit sewer company for any fiscal year in excess of the amount thereof necessary:
(1) To defray expenses of the company and of the operation and maintenance of its facilities during such fiscal year;
(2) To pay interest and principal obligations of the company coming due in such fiscal year;
(3) To finance, or to provide a reserve for the financing of, the construction or acquisition by the company of additional facilities to the extent determined by the board of directors;
(4) To provide a reasonable reserve for working capital;
(5) To provide a reserve for the payment of indebtedness of the company maturing more than one year after the date of the incurrence of such indebtedness in an amount not less than the total of the interest and principal payments in respect thereof required to be made during the next following fiscal year; and
(6) To provide a fund for education in the effective use of services made available by the company;
shall, unless otherwise determined by a vote of the members, be distributed by the company to its members as patronage refunds prorated in accordance with the patronage of the company by the respective members paid for during such fiscal year.

While Appellant argues this statute “creates a complete defense where [a] sewer service charges in excess of the amount allowed by statute ...,” this Court fails to see how section 393.849 relating to the disposition of excess funds by nonprofit sewer companies applies to the present situation, i.e., how much Respondent is allowed to charge its customers. Further, this Court was unable to locate any statute which addresses the amount a nonprofit sewer company may charge its customers. Additionally, this Court finds no requirement that Respondent had any duty to prove at trial that its stated fees were “reasonably necessary for its operations” as urged by Appellant, and Appellant does not point this Court to any such requirement outside of its appellate argument. The trial court did not err in finding that section 393.849 was inapplicable to the present matter. Point II is denied.

The judgment of the trial court is affirmed.

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

      . All statutory references are to RSMo 2000.

      . Respondent was organized as a "nonprofit sewer company” pursuant to sections 393.825 to 393.861.

      .Section 393.847 provides that in conjunction with the "construction, maintenance and operation" of its wastewater lines and treatment facilities, "every nonprofit sewer company shall be supervised and regulated by the department of natural resources.... ”

      . It is undisputed that the City required of its users a hook-up or connection fee of only $300.00 with no impact fee being charged.

      . The stipulated facts make it clear that Respondent
      has never remitted a hook[-]up fee of more than $300[.00j per user to the City ... for each property hooked up to [Respondent's system], including the new users in [the] Subdivision. [Respondent] has never remitted an impact fee to the City ... and contends it is not required to remit an impact fee in any dollar amount to the City ... for the services it provides in [its specific geographical] area.
      The record shows that prior to trial Respondent had only remitted one payment to the City of $300.00 for one of the eleven residences in the Subdivision; Respondent indicated that once it confirmed occupancy of the remaining ten residences, it would remit $300.00 payments to the City for those hookups.

      .Appellant asserted that it was a third party beneficiary to the various agreements existing between the City and Respondent and between the City and Appellant’s predecessor-in-interest. For purposes of this opinion, this Court assumes without so holding that Appellant was a third parly beneficiary herein.

      . Section 393.847.2 sets out that:
      [t]he public service commission shall not have jurisdiction over the construction, maintenance or operation of the wastewa-ter facilities, service, rates, financing, accounting or management of any nonprofit sewer company.

      . In the argument portion of its brief, Appellant cites this Court to section 393.280 and asserts it is “a complete defense where sewer service charges in excess of the amount allowed by statute are demanded....” This argument fails for two reasons. First, section 393.280 clearly applies only to municipalities and Respondent is not a municipality. Second, section 393.280 is an affirmative defense and the burden of pleading and proving it falls on Appellant not on Respondent. As such, section 393.280 does not aid Appellant.


text:
    David WALLACE, Appellant, v. STATE of Missouri, Respondent.
    No. SD 30040.
    Missouri Court of Appeals, Southern District, Division One.
    April 14, 2010.

      Kent Denzel, Columbia, for Appellant.
    Chris Koster, Atty. Gen. and Mary H. Moore, Asst. Atty. Gen., Jefferson City, for Respondent.
   ROBERT S. BARNEY, Judge.

David Wallace (“Movant”) appeals the motion court’s “Findings of Fact and Conclusions of Law” which denied his Rule 24.035 motion. In his sole point relied on, Movant maintains the motion court clearly erred in denying his Rule 24.035 motion “because the plea court lacked a factual basis to accept his guilty plea ...” when the State “stated in the plea hearing that the item [Movant] was charged with stealing was an ATM card, not a credit card, which would make the offense a class A misdemeanor.” Accordingly, he asserts his guilty plea was unknowingly and unin-telligently entered. We affirm the findings and conclusions of the motion court.

Movant was charged via “Information” with the class C felony of stealing, a violation of section 570.030. The Information charged that “on or about the 11th day of April, 2007, ... [Movant] appropriated a U.S. Bank ATM Credit Card, which was property owned by [the victim], and [Mov-ant] appropriated such property without the consent of [the victim] and with the purpose to deprive [the victim] thereof.”

A guilty plea hearing on this charge was held on June 3, 2008. At the hearing, Movant announced he wanted to withdraw his not guilty plea and enter a guilty plea pursuant to a plea agreement negotiated with the State. Movant informed the plea court he understood the terms of the plea agreement to be that the State would recommend a five year sentence with 120-day shock incarceration and he was aware that the range of punishment for the offense was up to seven years imprisonment. He related he understood the charges against him and had discussed the matter at length with his counsel; he stated he understood he had a right to proceed to trial and that by pleading guilty he was giving up that right; he related he was aware that by pleading guilty he was giving up numerous other rights; he relayed he had no complaints about his counsel’s representation; and he stated he had not been intimidated or coerced into pleading guilty.

The State then recited the factual basis of the plea. The State informed the plea court that Movant was charged with “appropriating] a U.S. Bank ATM Credit card.” The State then related the following:

[t]he City of Poplar Bluff Police Department investigated a theft .... It concerned the ATM card mentioned in the ... information.
During the investigation it was determined that [Movant] attempted to use that ATM card ... to obtain cash from an ATM machine.
There was a video surveillance done. [The victim] knew [Movant] ... they were acquaintances, and [the victim] would positively identify [Movant] as the individual who attempted to use that card. Would further testify that [Mov-ant] had been in his home and had access to that card.
And while he could not testify directly that [Movant] stole the card, there’s more than enough circumstantial evidence to indicate that, when [Movant] was in [the victim’s] home, that he did appropriate that card, attempt to use it, did use that card, and he did that with the purpose to deprive [the victim] of that.

Movant then agreed with the facts as set out by the State and indicated the State’s assertions were “true.” He further informed the plea court he was pleading guilty because he had, in fact, “used the ATM card” which belonged to the victim. The plea court found his “plea of guilty has been freely and voluntarily entered with an understanding of the nature of the charge, the range of punishment, and the consequences of a plea of guilty.” The plea court then sentenced Movant according to the terms of the plea agreement to five years imprisonment as well as 120-day shock incarceration pursuant to section 559.115. However, following completion of Movant’s 120-day shock incarceration, the plea court found “it would be an abuse of discretion to release [Movant] and ordered] the execution of the sentence of 5 years.”

Movant filed a timely pro se Rule 24.035 motion on September 22, 2008. He was thereafter appointed counsel and his appointed counsel filed a timely “Amended Motion to Vacate, Set Aside or Correct the Judgment and Sentence” which asserted in part that the “State failed to allege facts sufficient to support the offense as charged.” The State and Movant’s counsel stipulated that an evidentiary hearing would not be necessary and agreed “that the plea transcript taken on June 3, 2008[,] in the underlying criminal case is the only evidence for the record in this matter.” On July 14, 2009, the motion court entered its “Findings of Facts and Conclusions of Law” which denied Movant relief due to his failure “to sustain his burden [of proving] that the plea hearing was inadequate” on the issue of the factual basis for the plea. This appeal by Movant followed.

Our review of a motion court’s decision on a Rule 24.035 motion for post-conviction relief is limited to a determination of whether the motion court’s findings of fact and conclusions of law are clearly erroneous. Rule 24.035(k); Johnson v. State, 210 S.W.3d 427, 431 (Mo.App.2006). Findings of fact and conclusions of law are clearly erroneous only when, after reviewing the entire record, this Court is left with the definite and firm impression that a mistake has been made. Morehead v. State, 145 S.W.3d 922, 927 (Mo.App.2004). The motion court’s findings are presumptively correct. Butts v. State, 85 S.W.3d 132, 134 (Mo.App.2002). “ ‘Movant bears the burden of proving, by a preponderance of the evidence, that the motion court erred.’ ” Stuart, 263 S.W.3d at 757 (Mo.App.2008) (quoting Huth v. State, 976 S.W.2d 514, 516 (Mo.App.1998)).

Rule 24.02(e) provides that “[t]he court shall not enter a judgment upon a plea of guilty unless it determines that there is a factual basis for the plea.” The recital of a factual basis for the charge helps to ensure the guilty plea is knowing and voluntary. Carmons v. State, 26 S.W.3d 382, 384 (Mo.App.2000). A factual basis for a guilty plea exists if the defendant understands the facts recited at the plea hearing, those facts establish the commission of the charged crime, and the defendant is aware of the nature of the charges. Calvin v. State, 204 S.W.3d 220, 225 (Mo.App.2006); Lawrence v. State, 209 S.W.3d 515, 520 (Mo.App.2006). “A defendant is not required to admit or to recite the facts constituting the offense in a guilty plea proceeding, so long as a factual basis for the plea exists.” Brown v. State, 45 S.W.3d 506, 508 (Mo.App.2001). Further, “ ‘[a plea] court is not required to explain every element of a crime to which a person pleads guilty so long as the defendant understands the nature of the charge.’ ” Daniels v. State, 70 S.W.3d 457, 461 (Mo.App.2002) (quoting State v. Taylor, 929 S.W.2d 209, 217 (Mo. banc 1996)). The factual basis need not be established from the defendant’s own words or by his admission of the facts recited by the State as long as a factual basis exists on the record as a whole. Kennell v. State, 209 S.W.3d 504, 506 (Mo.App.2006). “ ‘If the facts presented to the court during the guilty plea hearing do not establish the commission of the offense, the court should reject the guilty plea.’” Smith v. State, 141 S.W.3d 108, 111 (Mo.App.2004) (quoting Brown, 45 S.W.3d at 508). “Our focus is on whether the plea was made intelligently and voluntarily [and not on] whether a particular ritual is followed or every detail explained.” Daniels, 70 S.W.3d at 461 (citation omitted).

“A person commits the crime of stealing if he or she appropriates property or services of another with the purpose to deprive him or her thereof, either without his or her consent or by means of deceit or coercion.” § 570.030.1. The term “ ‘[appropriate’ means to take, obtain, use, transfer, conceal or retain possession of .... ” § 570.010(2), RSMo 2000. Movant admits the facts set out by the State at the plea hearing proved that he appropriated the ATM card in that the State had evidence he stole the card and Movant admitted to stealing the card.

What Movant takes issue with in this case is the fact that, according to Movant, “there is nothing in the record stating that the ATM [card] was a ‘credit card,’ as used in [section] 570.030.3(3)(c).” Accordingly, he argues “[t]he facts stated ... do not fit under any of the categories [set out in section 570.030.3]; nothing established the charged class C felony offense.” Section 570.030.3 states in part:

[n]otwithstanding any other provision of law, any offense in which the value of property or services is an element is a class C felony if:
(3) The property appropriated consists of:
(c) Any credit card or letter of credit....

Here, the Information clearly charged Movant with stealing an “ATM Credit Card” and the State read the language of the Information into the record including the statement that he stole the “ATM credit card.” Additionally, the State even referenced the fact that the charge against Movant “concerned the ATM card mentioned in the [I]nformation.” Movant then pled guilty based on the facts set out by the State. “ ‘A plea of guilty is an admission as to the facts alleged in the information.’ ” Felton v. State, 103 S.W.3d 367, 371 (Mo.App.2003) (quoting Milligan v. State, 772 S.W.2d 736, 739 (Mo.App.1989)). The requirements for a factual basis require only that the defendant “has been made aware of the nature of the charges at some time prior to the [plea] court’s acceptance of his plea.” Id. at 370. Further, in the present matter Movant confirmed to the trial court on more than one occasion that he understood the charge against him. He then admitted the facts set out by the State were true and that he was pleading guilty to stealing because he stole the victim’s ATM credit card. It is clear that Movant understood the facts as outlined by the State in the Information and at the plea hearing. The Information and the facts set out by the State alleged every element of felony stealing and the record supports the motion court’s finding that Movant understood those elements. Movant’s plea was knowingly, intelligently, and voluntarily entered. The motion court’s findings of fact and conclusions of law were not clearly erroneous. Point denied.

The findings of fact and conclusions of law of the motion court are affirmed.

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

      . All rule references are to Missouri Court Rules (2008).

      . All statutory references are to RSMo Cum. Supp.2005, except as otherwise stated.


author: NANCY STEFFEN RAHMEYER, Judge.

text:
    In re: The CLIFTON E. MORTON REVOCABLE TRUST DATED SEPTEMBER 12, 2003, Jason Shane Morton As Trustee under The Clifton E. Morton Revocable Trust Dated September 12, 2003, Plaintiff-Appellant, v. Regina D. Morton, et al., Defendants-Respondents.
    No. SD 29620.
    Missouri Court of Appeals, Southern District, Division Two.
    April 15, 2010.

      Michael Fitzgerald, Kansas City, Jeffrey W. Heil, Joplin, for Appellant.
    Eric M. Landoll, Nevada, for Respondents.
   NANCY STEFFEN RAHMEYER, Judge.

Clifton E. Morton and Regina D. Morton (now Regina McMillan) created the Clifton & Regina Morton Revocable Trust (“the Joint Trust”), from which Clifton E. Morton (“Cliff’) later removed property in order to fund the Clifton E. Morton Revocable Trust (“the Cliff Morton Trust”). Jason Shane Morton, as Trustee of the Cliff Morton Trust, petitioned for a declaratory judgment that the steps Cliff took to fund the Cliff Morton Trust were effective and that the Trustee of that trust owned the subject property. Jason Shane Morton, Jesse Craig Morton, and Gina Marie Morton (collectively, “Appellants”) were beneficiaries of the Cliff Morton Trust and denominated as co-plaintiffs pri- or to trial. The Circuit Court of Jasper County found in favor of defendants, including Regina, and denied declaratory relief, from which Appellants brought this appeal. We affirm the judgment.

FACTS

Cliff and Regina married on December 7, 1985. Cliff had three children from a prior marriage, all of whom are Appellants, and Regina had two children from a prior marriage. Shortly before they married, Cliff and Regina formed what would ultimately become Joplin Pipe & Steel Supply, Inc. (“Joplin Pipe & Steel”) and Chetopa Pipe & Steel, Inc. (“Chetopa Pipe & Steel”), with Regina and her mother initially funding the venture, and Cliff providing capital shortly thereafter. As the business became successful, Cliff and Regina both took on full-time roles managing its daily operations.

Cliff was diagnosed with prostate cancer in 1998, and initial treatments slowed the progression of the cancer. By 2002, however, the cancer had spread throughout his body. In May of 2002, Cliff and Regina contacted an attorney for assistance in creating an estate plan. The attorney who drafted the Joint Trust testified that the parties’ concerns were probate avoidance, potential tax consequences upon the death of either party, the desire to provide for the surviving spouse during his or her lifetime, and ultimately to divide their jointly owned assets in a fair manner upon the death of the latter to die. After several meetings with the attorney, the parties executed the Joint Trust on June 19, 2003, but did not fund it with anything other than a general assignment of household goods and personal effects at that time. Their attorney did not review the specific provisions of the Joint Trust or the legal consequences of it.

In August, the day before the parties were preparing to fly to Houston for further cancer treatment, Cliff arranged for their attorney to draft documents to fund the Joint Trust with assets, including the jointly-owned residence and ten acres, all the horses, and stock certificates for all the shares of the two closely held companies. In a meeting that lasted 30-45 minutes after Regina returned from work at 5:30 p.m., and with no further discussion of the trust provisions, specifically the ability of either Cliff or Regina to transfer trust assets without the consent or knowledge of the other, Regina signed the asset-transferring documents. Regina testified that the reason she was given for the documents needing to be signed immediately was in case “something happens to both you and Cliff.”

Cliff was informed in Houston that he appeared to have a tumor on his spine and that the cancer had possibly spread to his brain; he experienced debilitating pain and delusional thoughts that the hospital staff was beating him with sticks and attempting to kill him. Shortly after returning from Houston, Cliff filed an ex parte against Regina as he believed that she too had attempted to kill him when she administered morphine to him at his request after he fell in the hotel room in Houston.

Also upon his return from Houston, Cliff contacted the parties’ estate attorney and asked if he could withdraw assets from the Joint Trust. The attorney reviewed the Joint Trust and advised Cliff that a provision of the Joint Trust possibly authorized him to convey up to one-half of the Joint Trust assets without the consent or knowledge of Regina. Cliff requested that a separate trust be set up, which the attorney began drafting; however, the attorney expressed being uncomfortable doing it and they arranged for a different attorney to formalize the document. The Cliff Morton Trust was signed on September 12, 2003, and made no provisions for Regina. Regina was not informed of the new trust. Cliff then transferred from the Joint Trust an undivided half tenant-in-eommon interest in the residence and ten acres, a half interest in the tangible personal property, and stock certificates representing 50 percent of the outstanding shares of the two closely held companies. After the transfer, Regina was requested to re-issue the stock shares to the Cliff Morton Trust; she refused. After Cliffs death, Jason Shane Morton brought this action as Trustee of the Cliff Morton Trust seeking a declaratory judgment that the steps Cliff took to fund the second trust were effective and that the Trustee of the second trust owned the subject property. It is the denial of these requests by the trial court that Appellants now appeal.

Points Relied On

Appellants contend: (1) that the court erred in declaring the transfer of property “null and void” because, if it was a transfer in fraud of Regina’s marital rights, only one-third of the transferred property was needed to fund Regina’s elective share; (2) the court’s finding that the transfers were in fraud of marital rights was unsupported by substantial evidence and against the weight of the evidence because there was no evidence that Cliff acted with the intent and purpose to deprive Regina of her marital rights; and (3) that the finding of the trial court that the transfers were in fraud of Regina’s marital rights was in error because the court lacked jurisdiction to decide that issue in that it constituted a counterclaim that had not been pled as required under Rule 55.32. For ease of discussion, we shall address Appellants’ third point first.

Sufficiency of the Pleading

Appellants claim that the court had no jurisdiction to determine whether Cliff’s transfers to the Cliff Morton Trust were in fraud of Regina’s marital rights because Regina did not plead that in an affirmative defense or counterclaim, and further, the pleading was not amended by implied consent. Respondents’ filed their “Answer to Amended Petition” on October 13, 2005; however, the answer did not contain any affirmative defenses and/or a counterclaim. Subsequently, the cross-claims of Gina Marie Morton and Jesse Craig Morton were filed. Respondents did not file a responsive pleading until the court trial of September 2, 2008, which we found in a docket sheet entry that noted, “Defendants/Respondents Joplin Pipe & Steel, Inc. and Chetopa Pipe & Steel, Inc. filed in open court: Answer to Cross Claim of Gina Marie Morton and Answer to Cross Claim of Jessie Morton.” That answer was not provided to this Court in the legal file on appeal.

Although Appellants argue that the pleadings were not amended by implied consent, even though there was no objection to any evidence, Appellants contend “evidence must bear only on that issue and not be relevant to an issue already in the case,” citing McDonald v. McDonald, 814 S.W.2d 939, 947-48 (Mo.App. S.D.1991). Our problem with this contention is that Appellants’ argument gives us no insight into what action was actually pled, how the elements necessaiy to prove fraud of marital rights differed from the pleading, and, more importantly, what evidence was presented in this trial that was relevant on the pled action but not relevant for a claim of fraud of marital rights. Without the pleadings or alleged facts that demonstrate the issue already in the case, it is impossible to determine whether evidence admitted without objection was relevant solely to that issue. Appellants have the duty of providing a record complete with all materials necessaiy to decide the point in question. Hedrick v. Dir. of Revenue, 207 S.W.3d 675, 677 (Mo.App. S.D.2006). Absent the necessary materials, this Court has nothing do decide. Id. Point III is denied.

Error in Finding Fraud of Marital Rights

We shall next address Appellants’ first and second points, which claim both a failure of proof on fraud of marital rights and the wrong remedy for that claim. Appellants requested findings of fact and conclusions of law. The trial court found that Appellants failed to present any controverted factual issues and thus waived any findings of fact or conclusions of law, and that all its findings were gratuitous and in accordance with the result. That finding has not been questioned in this appeal.

In its judgment, the trial court found that evidence was presented at trial without objection that raised issues beyond the pleadings. The court specifically found that to the extent the issues were presented to the court without objection, they were tried by implied consent of the parties and treated as if they were pled. The court further found that at the time of the execution of the Joint Trust and of the funding of the Joint Trust, Cliff and Regina shared a confidential relationship; the parties intent was to provide for both Cliff and Regina during their lifetimes and to avoid probate. Subsequent to the execution of the Joint Trust, but prior to the funding of the Joint Trust, Cliff engaged in a course of conduct designed to deprive Regina of marital and individual assets. The actions of Cliff were made without adequate consideration and without Regina’s consent. The court concluded Cliffs actions violated section 474.150, in fraud of marital rights.

For guidance we look to a recent decision by our Supreme Court, where the court noted:

Any person who is interested as or through a trustee or other fiduciary in the administration of a trust or of the estate of a decedent may have a declaration of rights or legal relations with respect to: (1) ascertaining any class of legatees or heirs; (2) directing the trustee to do or abstain from doing any particular act in their fiduciary capacity; or (3) determining any questions arising in the administration of the trust. See Rule 87.02(b); section 527.040.

Lynch v. Lynch, 260 S.W.3d 834, 837 n. 8 (Mo. banc 2008).

In Lynch, the plaintiffs contended that certain portions of a trust were void and unenforceable. Id. at 836. Their petition alleged that the wife “placed her confidence in her husband in the belief that he would act and respect her wishes to provide for [Plaintiffs] in the manor (sic) he promised he would and having failed in said promise the [Defendants] are unjustly enriched.” Id. at 837. The thrust of plaintiffs’ argument was that the husband took advantage of this confidential relationship with the wife by excluding them as beneficiaries of the trust and they asserted that, if they were successful in proving those allegations in their petition, a constructive trust on the trust assets should be imposed in their favor against defendants. Id.

Our Supreme Court set out the requirements for a constructive trust:

A constructive trust is an equitable device employed by “courts of equity to remedy a situation where a party has been wrongfully deprived of some right, title or interest in property as a result of fraud or violation of confidence or faith reposed in another.” Kohm v. Kohm (In re Estate of Davis), 954 S.W.2d 374, 379 (Mo.App.1997). The touchstone for imposition of a constructive trust is injustice or unfairness, which may be the product of undue influence or abuse of a confidential relationship. Brown v. Brown, 152 S.W.3d 911, 918 (Mo.App.2005). It is “imposed where a person who holds title to property is under a duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it.” Matlock v. Matlock, 815 S.W.2d 110, 114 (Mo.App.1991). A constructive trust arises without regard to the parties’ intention. Id.

Id. at 837-38. The Supreme Court concluded that

Plaintiffs seek to have a trust provision voided for alleged undue influence or violation of confidence, not for the failure of the trust. By requesting the imposition of a constructive trust on assets that Defendants are to receive, Plaintiffs pled an appropriate remedy. The dismissal of their cause of action was error. If Plaintiffs can prove the necessary facts to show that they are entitled to share in the trust’s assets, the imposition of a constructive trust is a proper remedy. Because the trial court dismissed Plaintiffs’ suit, they did not have the opportunity to engage in discovery and attempt to demonstrate that they are entitled to a constructive trust. Plaintiffs should have been given this opportunity.

Id. at 838.

In this case, it is clear that the court imposed a constructive trust on the property that was transferred from the Joint Trust to the Cliff Morton Trust. In doing so, the court declared the transfer null and void, which left the property in the marital trust. On review, we are primarily concerned with the correctness of the result, not the route taken by the trial court to reach it. Basham v. City of Cuba, 257 S.W.3d 650, 653 (Mo.App. S.D.2008). Though the court found fraud of marital rights, substantial evidence supports the trial court’s judgment regarding the imposition of a constructive trust.

Cliff and Regina were married at the time that all of the assets at issue in this appeal were created; the Joint Trust which Regina signed clearly indicates that the entire trust was drafted with a concern for each other’s care. Almost every provision of the trust indicates that the decisions were to be made by the both of them jointly. The document that Regina signed contained a provision that

[o]n the death of one of the Grantors, the survivor shall have the right alone to amend, revoke, or terminate this Trust or portion thereof as hereinafter specified in Section 3, or to withdraw any or all the property from this Trust at any time. It is not intended that this Trust be contractual, and the survivor shall be the complete and absolute owner of all property in the Trust on the first death, ■with no restrictions on how he or she disposes of the property on his or her death.

There were further provisions that any amendment or revocation of the Joint Trust must have been signed by the “Grantors,” in the plural. This is particularly significant because every asset placed in the Joint Trust that is at issue in this appeal was owned by the parties by the entirety prior to the funding of the Joint Trust. Regina gave up significant rights by agreeing to fund the Joint Trust with joint assets.

Although Appellants relied upon the provision,

however, one of us alone has the right to withdraw the property of this Trust at any time, from time to time, but not to exceed any aggregate of one-half of the total property of the Trust, except a necessary or desirable pursuant to the second paragraph of Item 2A,

to support Cliffs withdrawal of one-half of the trust funds, an overall reading of the document indicates that any withdrawal was to benefit both of them.

It is clear the parties had a confidential relationship with each other concerning the disposition of their assets. Cliff and Regina created a Joint Trust, not two separate trusts, that was for both of their benefit. In addition to being the Grantor, Cliff was a Trustee for Regina’s benefit; his conduct in the creation and transfer of assets to a separate trust without her knowledge and with no benefit to her breached that duty to Regina.

Because of that confidential relationship between Cliff and Regina, sufficient evidence supports a conclusion that Cliffs actions in changing the beneficiary designation of his life insurance policy prior to funding the Joint Trust and without notice to Regina, as well as creating a new trust with joint assets which excluded any benefit to Regina, wrongfully deprived Regina of her right, title, and interest in property, and that deprivation was as a result of Cliffs fraud or violation of confidence. The fact that Regina was handed documents to fund the Joint Trust under the circumstances of preparing for a trip to a cancer center with no independent legal advice further supports a finding of a breach of the confidential relationship between Cliff and Regina.

Although the trial court may not have articulated a specific finding of a constructive trust in its judgment, it is clear that the evidence and the court’s conclusions support the finding of a constructive trust. A correct decision will not be disturbed because the court gave a wrong or insufficient reason. Mann v. Dir. of Revenue, 140 S.W.3d 106, 109 (Mo.App. S.D.2004). Points I and II are denied.

The judgment is affirmed.

LYNCH, P.J., QUITNO, SP.J., concur.

      . When we refer to the parties by first names it is for ease of discussion only and no disrespect is intended by using this convention.

      . The petition alleged additional counts, but we mention only those relevant to this appeal.

      .Regina was a defendant in her individual capacity and as representative for the remaining two defendants, corporations formed during the marriage. The parties will collectively be referred to as Respondents where necessary.

      . Jesse Craig Morton was required to prove through DNA evidence that he was Cliff's son before having the right to any proceeds from either trust.

      . All rule references are to Missouri Court Rules (2009), and all references to statutes are to RSMo 2000, unless otherwise specified.

      . We read Appellants’ use of the word "jurisdiction" in light of J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009), to be that the court has exceeded its statutory authority. Id. at 253 (making clear that prior cases labeling mere error to be "jurisdictional” no longer should be followed as there are only two types of jurisdiction in Missouri state courts: personal and subject matter.) The trial court in this case had both. Appellants' claim is that the court exceeded statutory authority.

      . Appellants also failed to include their request for findings of fact and conclusions of law in the record before us on appeal.

      . This case differs from Riggio v. Southwest Bank of St. Louis, 815 S.W.2d 51 (Mo.App. E.D.1991), cited by Appellants, in the crucial fact that Riggio involved a suit where the property was held individually by a person who died intestate. These parties had transferred the property to a trust that has not been challenged. Additionally, Appellants rely on section 474.150 to argue that upon a finding of fraud of marital rights, the proper remedy is a recovery of property transferred in fraud of marital rights and distribution to the surviving spouse according to the share she would have received had she elected to take against the will. We note that Chapter 474 is entitled "Probate Code — Intestate Succession and Wills,” and decline to apply its provisions to the facts of this case.


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

text:
    Matthew AHEARN, Claimant/Appellant, v. LEWIS CAFÉ, INC. and Division of Employment Security, Respondents.
    No. ED 93235.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 20, 2010.

      Matthew Ahearn, St. Clair, MO, pro se.
    Christopher S. Short, St. Clair, MO, pro se.
    Rachel M. Lewis, (Div. of Employment Security), Jefferson City, MO, for respondents.
   GARY M. GAERTNER, JR., Judge.

Introduction

Matthew Ahearn (Claimant) appeals from the judgment of the Labor & Industrial Relations Commission (Commission) denying him benefits. The Commission adopted the decision of the Appeals Tribunal, which affirmed a determination by the deputy of the Division of Employment Security that Claimant was discharged from his job for misconduct and therefore was disqualified for waiting week credit and benefits for a period of time. We reverse the Commission’s decision and remand the case to the Commission for further findings of fact and conclusions of law.

Factual and, Procedural Background

Claimant was employed by Lewis Cafe (Employer) in St. Clair, Missouri from September 2007 until December 6, 2008. When his employment ended, he was the kitchen manager for the night shift. Chris Short, president for Employer, testified that on Claimant’s last day of work, Claimant demanded a cook redo an order, saying; “[Q]uit giving me this [shit]. I’m not going to serve it.” Short further testified that on the same day, Claimant yelled at a dishwasher who was using a food-safe de-greaser to clean shelves, demanding that she rewash every pan on the shelf that came into contact with the chemical, which required the dishwasher to work an hour and a half overtime.

Claimant testified to the following. He agreed that when the cook produced a sub-par product, he called it “shit” and made the cook redo it. He admitted that calling the food “shit” in a public area where he could have been overheard by customers was a “bad decision.” Claimant also agreed that when he saw the dishwasher using the degreaser, he instructed her to follow the product instructions, which required gloves and a well-ventilated area. As she was cleaning, he noticed that chemicals had splashed on the dishes, so he asked her to run them through the dishwasher. He denied, however, that he yelled at her or asked her to stay past the end of her shift. Claimant specifically denied that he had received any prior warnings about his attitude or being rude to employees.

Short testified that he and Employer’s manager had a meeting with Claimant on November 29, 2008, where Short warned Claimant about being rude to the waitresses. Several had complained about him and were refusing to work with him. Short acknowledged that he did not give Claimant any written warnings or have him sign a statement summarizing the meeting. Claimant agreed he had attended a meeting on November 29, but he denied any discussion at that meeting of his yelling at or speaking rudely to other employees. Upon questioning from Short, Claimant denied allegations that he told two waitresses to shut up on or about November 10 and 19, but he agreed he did on two occasions tell waitresses to get out of the kitchen when the cooks were busy or running behind.

Short terminated Claimant on December 6, citing his rudeness to employees. Claimant submitted a claim for unemployment benefits on December 7. Employer protested his claim, stating that Claimant was rude and degrading toward the other employees where customers could overhear him, despite having received two previous warnings. A deputy for the Division of Employment Security determined that Claimant was disqualified from receiving benefits because he was discharged for misconduct connected with work. Claimant appealed to the Appeals Tribunal.

On February 27, 2009, the Appeals Tribunal held a telephone conference on the appeal, at which time Claimant and Short relayed the above sequence of events. On March 4, the Appeals Tribunal affirmed the deputy’s determination and found that Claimant was disqualified for waiting week credit and benefits until Claimant had earned wages for insured work equal to six times his weekly benefit amount. The Appeals Tribunal found that Claimant spoke inappropriately towards subordinates and said “shit” in a public area, more than once, where customers might overhear.

Claimant timely appealed to the Commission, contending that he had received no warnings prior to his termination, that he did not say “shit” more than once, that all employees used profane language, and that he did not receive an employee handbook stating a policy on language expectations for the workplace. On June 4, the Commission affirmed and adopted the determination of the Appeals Tribunal stating that it was “fully supported by the competent and substantial evidence on the whole record and it [was] in accordance with the relevant provisions of the Missouri Employment Security Law.” One of the three commissioners filed a dissenting opinion, stating that Claimant’s use of a profane word and rudeness to other employees did not rise to the level of misconduct as defined by Section 288.030.1(23). Rather, the dissent noted that the evidence demonstrated Claimant’s intentions were to improve the quality and/or service at the restaurant. Further, the dissent noted that profanity was not prohibited by Employer, nor had Claimant been warned about his use of profanity.

This appeal follows.

Standard of Review

We review the Commission’s decision in an unemployment compensation case pursuant to Section 288.210 to determine whether the Commission, based upon the whole record, could have reasonably made its findings and reached its result. Partee v. Winco Mfg., Inc., 141 S.W.3d 34, 37 (Mo.App. E.D.2004). We may modify, reverse, remand for rehearing, or set aside the Commission’s decision only where: 1) the Commission acted without or in excess of its powers; 2) the decision was procured by fraud; 3) the award is unsupported by the facts found by the Commission; or 4) the record lacks sufficient competent evidence to warrant the making of the award. Id.

Absent fraud, the Commission’s factual findings are conclusive and binding if supported by competent and substantial evidence. Id. We defer to the Commission’s credibility determinations. Id. However, this Court is not bound by the Commission’s conclusions of law or its application of the law to the facts, and reviews issues of law de novo. Guccione v. Ray’s Tree Service, 302 S.W.3d 252, 255-56 (Mo.App. E.D.2010). Whether an employee’s actions constitute misconduct related to work is a question of law. Id.

Discussion

Claimant’s sole point on appeal alleges that the Commission erred in denying employment benefits because there was insufficient evidence to support the decision, the facts did not support the award, and Employer failed to meet its burden of proof that Claimant committed misconduct connected with work.

Misconduct is defined as:

[A]n act of wanton or willful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of his or her employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer.

Section 288.030.1(23). Where an employer alleges the employee was fired for misconduct, the employer bears the burden of demonstrating misconduct by a preponderance of the evidence. Dobberstein v. Charter Commc’ns, Inc., 241 S.W.3d 849, 852 (Mo.App. E.D.2007). Specifically, the employer must show that the employee willfully disregarded the employer’s interest or that he knowingly acted against the employer’s interests. Id. Accidents or negligence without a showing of willful intent cannot rise to the level of misconduct under Section 288.030.1(23). Id. at 853.

Here, the Appeals Tribunal’s factual findings stated only:

The claimant last worked for the employer on December 5, 2008, and was discharged on December 6, 2008. The final incident was the claimant speaking inappropriately towards subordinates and saying “shit” in a public area, more than once, where customers might overhear.

The Appeals Tribunal did not make any findings of credibility regarding contested facts, or of any incidents prior to the “final incident.” Further, in its Conclusions of Law, the Appeals Tribunal stated merely:

The claimant was discharged on December 6, 2008. The issue on appeal is whether the claimant was discharged for “misconduct” as defined by law.
In cases involving a discharge from work, the employer has the burden of proving misconduct by competent and substantial evidence. The claimant does not have the burden of proving the absence of misconduct. Business Centers of Missouri, Inc. v. Labor and Industrial Relations Commission, 743 S.W.2d 588, 589-90 (Mo.App. E.D.1988).

The Appeals Tribunal did not then conclude that Claimant had been discharged for misconduct connected with work.

With such a paucity of findings, we cannot say that the denial of benefits is supported by “the facts found by the Commission” or that there is sufficient competent evidence to warrant the denial. Partee, 141 S.W.3d at 37. Without more detailed factual or credibility findings, the record is insufficient to establish the requisite “wanton or willful disregard” or such “recurrence as to manifest culpability” to justify disqualification for unemployment benefits on the basis of misconduct. Section 288.030.1(23); see also Guccione, 302 S.W.3d at 256-57 (“Absent any findings of credibility by the Commission, and without further detailed findings of fact, we are unable to conclude that Claimant’s conduct justified dismissal on the basis of misconduct”).

While the facts show that Claimant used profane language and spoke inappropriately, there is a difference between grounds for termination and grounds for disqualification from unemployment benefits. White v. Wackenhut Corp., 208 S.W.3d 916, 918-19 (Mo.App. E.D.2006); see also Frisella v. Deuster Elec., Inc., 269 S.W.3d 895, 899 (Mo.App. E.D.2008) (poor judgment and irresponsible actions are generally not grounds for denying unemployment compensation). Here, Claimant’s actions might well have been proper grounds for both termination and a denial of benefits, but the Commission’s insufficient findings and unsupported decision prevent meaningful review of the ultimate issue of whether Claimant committed misconduct connected with work. Cf. Berwin v. Lindenwood Female College, 205 S.W.3d 291, 296 (Mo.App. E.D.2006).

Point granted.

Conclusion

We reverse the judgment of the Commission, and we remand the case to the Commission for further findings of fact and conclusions of law.

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

      . All subsequent statutory references are to RSMo Cum.Supp.2010, unless otherwise indicated.


text:
    Armando GAMBOA-TAPIA, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 93358.
    Missouri Court of Appeals, Eastern District, Division One.
    April 20, 2010.
    Jessica M. Hathaway, Office of the State Public Defender, St. Louis, MO, for appellant.
    John M. Reeves, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., CLIFFORD H. AHRENS, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Movant, Armando Gamboa-Tapia, appeals from the judgment denying on the merits his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. The findings and conclusions of the motion court are not clearly erroneous, and an extended opinion would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order affirming the judgment pursuant to Rule 84.16(b).


text:
    James CHAPMAN, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93431.
    Missouri Court of Appeals, Eastern District, Division One.
    April 20, 2010.
    Margaret Johnston, Columbia, MO, for appellant.
    Shaun Mackelprang, Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., CLIFFORD H. AHRENS, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

James Chapman appeals from the motion court’s Findings of Fact, Conclusions of Law and Order denying his Rule 29.15 Motion to Vacate, Set Aside, or Correct the Judgment and Sentence.

We have reviewed the briefs of the parties and the record on appeal. The findings and conclusions of the motion court are based on findings of fact that are not clearly erroneous. No error of law appears. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

We affirm the judgment pursuant to Rule 84.16(b).

      . All rule references are to Mo. Sup.Ct. R. (2009), unless otherwise indicated.


text:
    Richard HOLLORAN, Respondent, v. ST. LOUIS INVESTIGATIONS AGENCY INC., and Kenneth Nowling, Appellants, and Dennis Ward and Dennis Grubbs, Defendants.
    No. ED 93799.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 20, 2010.

      Michael P. Shea, St. Charles, MO, for appellants and defendants.
    Mitchell D. Johnson, St. Ann, MO, for respondent.
   PATRICIA L. COHEN, Judge.

Introduction

St. Louis Investigation Agency, Inc. and Kenneth Nowling (collectively Defendants) appeal from the judgment of the Circuit Court of the City of St. Louis denying Defendants’ Rule 74.06 motion to set aside a default judgment entered in favor of Richard Holloran (Plaintiff). On appeal, Defendants contend that because the underlying default judgment was void for lack of personal jurisdiction, the trial court erred in failing to set it aside. We reverse and remand.

Background

On March 12, 2002, Plaintiff filed suit against Defendants alleging assault and battery, conversion, negligence, and negligence per se in connection with Defendants’ repossession of Plaintiffs automobile. On March 23, 2004, upon request by Plaintiff, the trial court entered a default judgment against Defendants and awarded Plaintiff $300,000 in damages. On August 20, 2009, Defendants filed a motion to quash service of summons and to set aside the default judgment pursuant to Rule 74.06. Defendants argued, inter alia, that the judgment was void for lack of personal jurisdiction. The trial court denied the motion on the grounds that “the court is without jurisdiction to set aside a default judgment for any reason more than one year after entry of judgment.”

Standard of Review

Generally, we will not reverse the denial of a Rule 74.06 motion unless the trial court abused its discretion. In re Marriage of Hendrix, 183 S.W.3d 582, 587 (Mo. banc 2006). However, we review de novo questions of law. Allison v. Allison, 253 S.W.3d 91, 93 (Mo.App. S.D.2008); O’Hare v. Permenter, 113 S.W.3d 287, 289 (Mo.App. E.D.2003).

Discussion

In their first point, Defendants claim the trial court erred in denying the motion to set aside the default judgment on the grounds that the one-year limitation imposed by Rule 74.06(c) prohibited the trial court from setting aside the default judgment for “any reason.”

Rule 74.06(b) provides in pertinent part: On motion and upon such terms as are just, the court may relieve a party ... from a final judgment or order for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) fraud ..., misrepresentation, or other misconduct of an adverse party; (3) the judgment is irregular; (4) the judgment is void....

Mo. Sup.Ct. R. 74.06(b) (2009).

Rule 74.06(c), however, requires that a motion filed under Rule 74.06(b) “shall be made within a reasonable time and for reasons (1) and (2) and (3) of subdivision (b) not more than one year after the judgment or order was entered.” Mo. Sup.Ct. R. 74.06(c) (2009). The one-year limitation of Rule 74.06(c) does not prevent the trial court from setting aside a void judgment. Rather, as Plaintiff concedes, a void judgment can be challenged at any time. Franken v. Franken, 191 S.W.3d 700, 702 (Mo.App. W.D.2006). Therefore, the trial court erroneously stated it was “without jurisdiction to set aside a default judgment for any reason more than one year after entry of judgment.” (emphasis added).

Because the trial court was under the mistaken impression that it lacked authority to set aside the default judgment for any reason, we remand the ease to the trial court to address the merits of Defendants’ motion. If the trial court determines the default judgment was void, it has the authority to set it aside.

Conclusion

We reverse the judgment of the trial court and remand the case to the trial court for further proceedings consistent with this opinion.

SHERRI B. SULLIVAN, P.J., and ROBERT G. DOWD, JR., concur.

      . All rule references are to Mo. Sup.Ct. R. (2009), unless otherwise indicated.

      . Plaintiff also named another defendant, but he is not relevant to our resolution of Defendants’ points on appeal.

      . Defendants also contend that the trial court lacked personal jurisdiction over Defendants because the subsequent issuance of pluries summonses resulted in abandonment of Plaintiff’s earlier purported service on Defendants. Given our resolution of the first point, we decline to address the merits of the second point.


text:
    Sean M. LIKE, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93660.
    Missouri Court of Appeals, Eastern District, Division One.
    April 20, 2010.
    Kevin L. Schriener, Clayton, MO, for appellant.
    Chris Koster, Terrence M. Messonnier, Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., CLIFFORD H. AHRENS, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Sean Like (Movant) appeals from the judgment of the Circuit Court of St. Louis County denying, without a hearing, his Rule 24.035 motion for post-conviction relief.

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

The judgment of the trial court is affirmed in accordance with Rule 84.16(b).


text:
    Charlene HEMPHILL, Employee/Appellant, v. GATEWAY REGIONAL CREDIT UNION, Employer/Respondent, and Division of Employment Security, Respondent.
    No. ED 93574.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 20, 2010.
    Charlene Hemphill, St. Louis, MO, Acting pro se.
    Michael E. Kaemmerer, Chesterfield, MO, for Employer/Respondent.
    Shelly A. Kintzel, Division of Employment Security, Jefferson City, MO, for Respondent.
    Before SHERRI B. SULLIVAN, P.J., ROBERT G. DOWD, JR., J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Charlene Hemphill appeals from the Labor and Industrial Relations Commission’s (Commission) decision finding that she was disqualified for unemployment benefits. We have reviewed the briefs of the parties and the record on appeal and conclude the Commission’s decision is supported by competent and substantial evidence. Section 288.210 RSMo 2006. An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).