author: JAMES EDWARD WELSH, Presiding Judge.

text:
    OVERLAP, INC., Respondent-Appellant, v. A.G. EDWARDS & SONS, INC., Appellant-Respondent.
    Nos. WD 69700, WD 69734.
    Missouri Court of Appeals, Western District.
    June 15, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 27, 2010.
    Application for Transfer Denied Sept. 21, 2010.

      Jeffrey J. Kalinowski, Carrie J. Bech-told, St. Louis, Lori J. Sellers, Kansas City, for Appellant-Respondent.
    Patrick J. Stueve, Eric L. Dricks, Kansas City, MO, for Respondent-Appellant.
    Before JAMES EDWARD WELSH, P.J., VICTOR C. HOWARD, and ALOK AHUJA, JJ.
   JAMES EDWARD WELSH, Presiding Judge.

A.G. Edwards & Sons, Inc., appeals the circuit court’s judgment awarding Overlap, Inc., compensatory and punitive damages in the amount of $4.1 million on Overlap’s claims for breach of a mutual fund analysis software license agreements, fraud, and negligent misrepresentation. This Court issued an opinion in this case on June 23, 2009. The Supreme Court of Missouri issued an order sustaining an application for transfer to that Court on October 6, 2009, and, on April 20, 2010, the Supreme Court issued an order retransferring the case to this court for reconsideration in light of Johnson v. McCullough, 306 S.W.3d 551 (Mo. banc 2010), which was decided by the Supreme Court on March 9, 2010. Thus, the original opinion of this court, which follows, is now readopted and reissued with attribution to the Supreme Court’s Johnson opinion.

On appeal, A.G. Edwards & Sons raises eleven points: three of those points concern alleged error by the circuit court regarding the statutes of limitations; four of the points concern alleged error by the circuit court in submitting and in denying A.G. Edwards & Sons’ motion for directed verdict or judgment notwithstanding the verdict on Overlap’s claims for fraud and negligent misrepresentation, fraudulent concealment, punitive damages, and breach of the revised license agreement; one point concerns alleged instructional error; one point concerns alleged error by the circuit court in excluding parol evidence as to the meaning of the revised license agreement; and two of the points concern the circuit court’s denial of A.G. Edwards & Sons’ motion for new trial. In response to A.G. Edwards & Sons’ appeal, Overlap filed a contingent cross-appeal asserting three issues. Overlap asks us to address its cross-appeal only if we reverse the circuit court’s order and remand for a new trial in response to A.G. Edwards & Sons’ appeal.

A.G. Edwards & Sons’ eleventh point on appeal is dispositive. Because a juror intentionally failed to disclose that he had been a party to a lawsuit, the circuit court erred in denying A.G. Edwards & Sons’ motion for new trial. We, therefore, reverse the circuit court’s judgment and remand for a new trial. Because the statutes of limitation issue will continue to be an issue on retrial, we also address A.G. Edwards & Sons’ contention that all of Overlap’s claims are barred by five-year statutes of limitation. Overlap’s amendment naming A.G. Edwards & Sons as a defendant related back to the original filing of Overlap’s petition and, therefore, was filed within the applicable statutes of limitation.

FACTUAL BACKGROUND

Overlap is a computer software developer that developed a software program that compares the stock holdings of two or more mutual funds and, to the extent that the funds hold the same stocks, calculates the degree of overlap. In using the software, the user inputs the names of the mutual funds to be compared, and the software generates a report that lists the percentage of overlap between the funds. This report allows a licensed user to quickly and easily determine whether the mutual funds being compared are truly diversified one from the other. The Overlap analysis provides a tool for a financial consultant to use to explain to a client or a prospective client why they should buy or sell mutual funds and thereby maximize diversification within a portfolio.

In 1997, an employee in the A.G. Edwards & Sons’ Managed Products department purchased four single user licenses of the Overlap software on behalf of A.G. Edwards & Sons. A.G. Edwards & Sons continued to purchase four copies of the updated software on a quarterly basis through the fall of 2001. A.G. Edwards & Sons installed the software on fifty-one computers. A.G. Edwards & Sons’ employees used the Overlap software to answer questions and advise A.G. Edwards & Sons’ 7,000 financial consultants regarding the mutual funds holdings of clients.

On August 9, 2000, Overlap’s chief executive officer, Kevin Fryer, received an electronic mail from Ann Rauch, an employee of A.G. Edwards & Sons’ Managed Products department, seeking guidance about the future usage of the Overlap software. The electronic mail said:

We ... would like to be able to provide an overlap analysis for our Financial Consultant’s [sic] to use in conjunction with a Mutual Fund Portfolio Analysis we already provide. This is a formal personalized presentation for clients/prospects. I was not sure if your licensing agreement allows this or not.... Please let me know what we need to do.

After receiving the electronic mail, Fryer telephoned Rauch and informed her that such usage was not permitted under the single user license but that he was willing to negotiate a multi-user license.

Thereafter, on September 13, 2000, Fryer attended a meeting in St. Louis with representatives of A.G. Edwards & Sons, where they discussed different options for providing Overlap analyses to A.G. Edwards & Sons’ financial consultants. According to Fryer, someone at that meeting represented that A.G. Edwards & Sons was using the Overlap software for internal research purposes but that A.G. Edwards & Sons wanted in the future to make the Overlap software available to all of its financial consultants. When asked whether anyone at A.G. Edwards & Sons told him that it was already sharing the Overlap reports with financial consultants, Fryer testified: “No, absolutely not. In fact, they told me the opposite. They told me it was something they wanted to do in the future.” Fryer said that, during all of his contacts with A.G. Edwards & Sons, no one ever disclosed that A.G. Edwards & Sons was already providing Overlap analy-ses to its financial consultants throughout the country.

After the September meeting, Fryer sent several proposals to A.G. Edwards & Sons, including a proposal that would permit each financial consultant to run the Overlap software on his or her own computer at an annual cost of $80 per consultant — approximately $560,000 per year. Alternatively, Fryer proposed to permit A.G. Edwards & Sons’ Managed Products department to run reports for financial consultants at an annual cost of $40 per financial consultant — approximately $272,000 per year. A.G. Edwards & Sons did not agree to any of these proposals.

In August 2001, nearly one year after the multi-user license negotiations began between Fryer and A.G. Edwards & Sons, Jose Lavato, an A.G. Edwards & Sons information technology technician, contacted Fryer. During this conversation, Lava-to informed Fryer that A.G. Edwards & Sons was having a technical problem between the Overlap software and another software program, both of which were installed on forty computers. When Fryer learned that A.G. Edwards & Sons had installed the Overlap software on forty of its computers, Fryer contacted Overlap’s attorney.

On November 19, 2001, Overlap’s attorney sent a cease and desist letter to John Meiners, Vice President of A.G. Edwards & Sons. The letter noted that Lavato had advised Fryer that forty separate users were using Overlap’s software, notwithstanding the fact that Overlap’s records showed that only four licenses of the software were held by A.G. Edwards & Sons. The letter demanded that A.G. Edwards & Sons “cease and desist from any use of Overlap’s software product other than the use pursuant to which it is specifically authorized under the license agreement.” The letter also requested that A.G. Edwards & Sons compensate Overlap for the past use of its software product in violation of the license agreement.

In response to the cease-and-desist letter, Meiners contacted Overlap’s counsel and denied that A.G. Edwards & Sons was using the Overlap software beyond the licenses it had and denied that it had loaded the Overlap software on computers for which it did not have licenses. On November 29, 2001, A.G. Edwards & Sons informed the Managed Products Department: “Do not create an overlap analysis for anyone. There are no exceptions!!!”

On January 21, 2008, Overlap filed its petition against A.G. Edwards Capital, Inc., and several others claiming a breach of license agreement and unfair competition. On October 8, 2003, A.G. Edwards Capital filed a motion to sever the claims against A.G. Edwards. In that motion, A.G. Edwards Capital informed Overlap that it had sued the wrong A.G. Edwards corporate entity. According to A.G. Edwards Capital, “The entity that should have been named as a defendant is A.G. Edwards & Sons, Inc.” The circuit court granted A.G. Edwards Capital’s motion to sever. On November 20, 2006, Overlap filed its first amended petition against A.G. Edwards Capital and A.G. Edwards & Sons. In that amended petition, Overlap asserted four counts against A.G. Edwards Capital and A.G. Edwards & Sons: breach of license agreement, unfair competition, fraud, and negligent misrepresentation. On May 31, 2007, Overlap voluntarily dismissed with prejudice A.G. Edwards Capital as a party.

After an eight day trial, the jury returned verdicts in favor of Overlap as follows: for breach of the original license agreement $22,278; for breach of the revised license agreement $1,217,370; for fraud $1,800,000 plus $2,300,000 in punitive damages; and for negligent misrepresentation $1,800,000. The circuit court merged the compensatory damages into a single compensatory damages award of $1,800,000, which when combined with the punitive damages award of $2,300,000, resulted in a total damage award of $4,100,000 in favor of Overlap and against A.G. Edwards & Sons. A.G. Edwards & Sons appeals, and Overlap cross-appeals.

ANALYSIS

Juror Nondisclosure

A.G. Edwards & Sons’ eleventh point on appeal is dispositive of A.G. Edwards & Sons’ appeal and Overlap’s contingent cross-appeal. In that point, A.G. Edwards & Sons contends that the circuit court erred in denying its motion for new trial because a juror intentionally failed to disclose during voir dire that he had been a party to a prior lawsuit. We agree.

During voir dire, the jury panel was asked: “What I’d like to know now is, anyone that’s on this panel has ever been a party to a lawsuit, either a plaintiff or a defendant in a lawsuit?” Juror Number Eight, Brian Hillerman, did not respond. After the trial concluded, defense counsel conducted an investigation, which ultimately revealed that Hillerman had failed to disclose that he had been sued in 2001. In 2001, Karol Turner sued Hillerman and Pavestone Company, L.P., for damages she sustained as a result of an automobile crash. A jury returned a verdict in Turner’s favor and awarded $25,106.51 in damages.

In denying A.G. Edwards & Sons’ motion for new trial, the circuit court found that Hillerman’s failure to disclose that he had been a party to a lawsuit was intentional. Neither party contests the circuit court’s finding that Hillerman’s nondisclosure was intentional. A juror during voir dire has a duty to fully, fairly, and truthfully answer all questions so that his qualifications may be determined and so that the attorneys may intelligently exercise any challenges. Williams by Wilford, v. Barnes Hosp., 736 S.W.2d 33, 36 (Mo. banc 1987). “Both parties are entitled to unbiased jurors whose experiences, even innocently and reasonably undisclosed, will not prejudice the resolution of the cause.” Id.

“Intentional nondisclosure occurs: 1) where there exists no reasonable inability to comprehend the information solicited by the question asked of the prospective juror, and 2) where it develops that the prospective juror actually remembers the experience or that it was of such significance that his purported forgetfulness is unreasonable.” Id. If a venire person’s nondisclosure during voir dire is intentional, we infer bias and prejudice. Id. at 37. Thus, “[a] finding of intentional concealment has ‘become tantamount to a per se rule mandating a new trial.’ ” Id. (citations omitted).

Despite finding that the nondisclosure was intentional, the circuit court denied A.G. Edwards & Sons’ motion for new trial and found that A.G. Edwards & Sons should have conducted an investigation during trial and raised its juror nondisclosure concerns before the case was submitted to the jury. This ruling was directly contrary to existing Missouri Supreme Court precedent. Brines by Harlan v. Cibis, 882 S.W.2d 138 (Mo. banc 1994).

In Brines, the appellant argued that the circuit court erred in not granting a new trial based on a juror’s intentional failure to disclose that he had been a defendant in a lawsuit. Id. at 139. On appeal, the respondents argued that the appellant “did not exercise ‘due diligence’ in discovering the nondisclosure.” Id. at 140. Specifically, the respondents asserted that “ ‘by using due diligence, [the appellant] could have learned well before the jury began its deliberations that [the juror] had been sued.’ ” Id. The Missouri Supreme Court rejected this argument and explicitly found that a litigant has no duty to conduct an investigation concerning a juror’s nondisclosure before jury deliberations. Id. The Brines court noted that a litigant is not required to “investigate whether the prospective jurors have answered the questions truthfully unless the litigant had some indication that the answer was false.” Id. Only when a litigant is privy to information regarding a prospective juror’s false answer or nondisclosure and fails to challenge the juror when the information is obtained, does the litigant waive the right to complain about the nondisclosure after trial. Id.

Here, A.G. Edwards & Sons did not learn of Hillerman’s nondisclosure until it conducted a post-trial investigation. Thus, under Brines, A.G. Edwards & Sons had no obligation to investigate Hillerman’s nondisclosure prior to the jury’s deliberations. Indeed, the circuit court found that, “under the Brines standard!, Hillerman] would have qualified for juror nondisclosure and we would be back for a new trial.”

The circuit court, however, chose not to follow Brines but instead relied on dictum of this court in McBurney v. Cameron, 248 S.W.3d 36 (Mo.App.2008) (en banc). In McBumey, this court held that the circuit court did not err in denying a motion for new trial based upon a juror’s failure to disclose during voir dire that he had prior litigation experience. Id. at 46-47. The McBumey court found that the juror’s failure to disclose during voir dire that he had prior litigation experience did not amount to intentional nondisclosure because the voir dire question asked of the juror was unclear and ambiguous. Id. at 42-47.

Prior to reaching the operative basis of the ruling, the McBumey opinion explicitly noted that “the issue of the timeliness of the appellants’ efforts in researching the litigation history of those chosen to serve on the jury” was not raised in the appeal. Id. at 41-42. The court opined, however, in obiter dictum, that the issue of “timeliness in a juror challenge is important in view of the expense and burden to parties and taxpayers of conducting another jury trial.” Id. at 41. According to the McBumey dictum, it is “realistic for an attorney to send a member of his or her clerical staff to any computer, at any time of day or night, to research the civil litigation records before submission of the case, rather than waiting until after an adverse verdict to do so.” Id. The McBumey court, therefore, “commend[ed] consideration of this matter to the attention of counsel trying future cases,” id. at 42, and encouraged “counsel to make such challenges before submission of the case whenever practicable.” Id. at 41.

In making these recommendations, the McBumey court acknowledged that the issue of “timeliness” was raised in the Missouri Supreme Court’s decision in Brines. Id. The MeBumey court also recognized that the Brines court declined to adopt defendant’s argument that the juror nondisclosure “claim was untimely, amounting to waiver, because the plaintiff could have researched the jurors’ experience, through the use of ‘due diligence,’ well before the jury began its deliberations.” Id. The MeBumey court merely speculated, however, that “the issue may not necessarily be settled forever in view of the technological advances in the thirteen years since Brines.” Id. The McBur-ney court noted: “The Missouri court system now has an automated case record service, CaseNet, by which civil litigation history can be readily accessed by any computer at any time. This was not true at the time the Court considered the issue in Brines.” Id.

In raising the issue of timeliness sua sponte and offering its recommendations, the MeBumey court did not, and further could not, change the rule articulated in Brines. The MeBumey court was merely encouraging attorneys to make juror nondisclosure challenges before submission of the case to the jury whenever practicable and was noting that the issue may need to be revisited by the Missouri Supreme Court at some point. Id. And, that is just what the Missouri Supreme recently did in Johnson v. McCullough, 306 S.W.3d 551 (Mo. banc 2010).

In Johnson, the defendant claimed that the circuit court erred in granting a new trial because Johnson’s juror nondisclosure argument was untimely because it was raised after Johnson had received an adverse verdict following a six-day jury trial. Id. at 558. In support of his argument, Johnson relied on the dictum in McBur-ney, which the Supreme Court acknowledged. Id. The Johnson court, however, noted the holding in Brines and said:

This Court cannot convict the trial court of error in following the law in existence at the time of trial. Further, there was no evidence that it was practicable for the attorneys in this case to have investigated the litigation history of all of the selected jurors prior to the jury being empanelled.

Id. (citation omitted). The Supreme Court held that the circuit court did not err in finding that Johnson’s juror intentional nondisclosure claim was timely. Id. The Court concluded that “[ujnder the case law at the time of trial, it was timely raised.” Id. at 554.

In so concluding, however, the Court noted that, in the future, “in light of advances in technology allowing greater access to information that can inform a trial court about the past litigation history of venire members, it is appropriate to place a greater burden on the parties to bring such matters to the court’s attention at an earlier stage.” Id. at 558-59. The Court said:

Litigants should not be allowed to wait until a verdict has been rendered to perform a Case.net search for jurors’ prior litigation history when, in many instances, the search also could have been done in the final stages of jury selection or after the jury was selected but prior to the jury being empanelled. Litigants should endeavor to prevent retrials by completing an early investigation. Until a Supreme Court rule can be promulgated to provide specific direction, to preserve the issue of a juror’s nondisclosure, a party must use reasonable efforts to examine the litigation history on Case.net of those jurors selected but not empanelled and present to the trial court any relevant information prior to trial. To facilitate this search, the trial courts are directed to ensure the parties have an opportunity to make a timely search prior to the jury being empanelled and shall provide the means to do so, if counsel indicates that such means are not reasonably otherwise available.

Id. at 559.

This shift in the law, however, does not aid Overlap in this appeal. In Sumners v. Sumners, 701 S.W.2d 720, 723 (Mo. banc 1985), the Missouri Supreme Court recognized the general rule that a change in the law by judicial decision is to be given retroactive effect. The Court, however, also acknowledged its authority “to declare whether such decisions are retroactive or prospective ‘based on the merits of each individual case.’ ” Id. (citation omitted). The Court noted that two exceptions exist to the general rule of retro-activity. Id. “The first exception is found when the change pertains to procedural as opposed to substantive law.” Id. Such procedural decisions are to be given prospective effect only. State v. Shafer, 609 S.W.2d 153, 157 (Mo. banc 1980). The second exception turns not on whether the change in the law is procedural or substantive but on the issue of fundamental fairness. Sumners, 701 S.W.2d at 723. “If the parties have relied on the state of the decisional law as it existed prior to the change, courts may apply the law prospectively-only in order to avoid injustice and unfairness.” Id. Both of these exceptions apply in this case: the timing for a challenge to juror nondisclosure is obviously procedural, and A.G. Edwards & Sons relied on the state of the decisional law as it existed prior to Johnson in making its investigation about potential juror nondisclosure issues after the trial. Therefore, Johnson should apply prospectively only in these circumstances. This is just what the Supreme Court did in Johnson itself: it refused to apply its new rule to the case before it and, instead, applied “the law in existence at the time of trial.” Johnson, 306 S.W.3d at 558, see also id. at 554 (concluding juror nondisclosure claim timely raised “[u]nder the case law at the time of trial”).

Under the case law at the time of trial, A.G. Edwards & Son’s intentional juror nondisclosure claim was timely raised. Just as was the case in Johnson, at the time of the trial in this case, Brines was the law in Missouri. As such, the circuit court was constitutionally bound to follow it, no matter how laudable and omnipotent its recommendations may have been concerning the timeliness of juror nondisclosure claims. Mo. Const, art. V, § 2. Because Juror Hillerman’s failure to disclose that he had been a party to a lawsuit was intentional, the circuit court erred in denying A.G. Edwards & Sons’ motion for new trial. We, therefore, reverse the circuit court’s judgment and remand for a new trial.

Statute of Limitations

Because the statutes of limitation issue will continue to be an issue on retrial, we also address A.G. Edwards & Sons’ contention that all of Overlap’s claims are barred by the five-year statutes of limitation. A.G. Edwards & Sons contends that Overlap’s claims for breach of the license agreements, negligent misrepresentation, and unfair competition are time barred because the damages were capable of ascertainment more than five years before Overlap sought leave to file its amended petition and that Overlap’s fraud claim is time barred because Overlap discovered the alleged fraud more than five years before it sought leave to file its amended petition. According to A.G. Edwards & Sons, Overlap knew about its claims by at least November 19, 2001, when it sent the cease and desist letter to A.G. Edwards & Sons, but Overlap did not add A.G. Edwards & Sons as a defendant until November 20, 2006. A.G. Edwards & Sons also asserts that, because Overlap’s amended petition did not change defendants but added one and because Overlap was aware that it sued the wrong party before the statute of limitations had run, Rule 55.33(c)’s relation back doctrine does not apply. We disagree.

“Normally, the running of the statute [of limitations] is a question of law for the trial court to decide.” Straub v. Tull, 128 S.W.3d 157, 159 (Mo.App.2004). “Such questions of law are granted de novo appellate review with no deference being paid to the trial court’s determination of law.” Id.

No dispute exists in this case that, when Overlap filed its original petition in this case on January 21, 2003, it named A.G. Edwards Capital, Inc., as a defendant and not A.G. Edwards & Sons. No dispute also exists that Overlap sent the cease and desist letter to A.G. Edwards & Sons on November 19, 2001. Overlap, therefore, knew about its claims against A.G. Edwards & Sons sometime before November 19, 2001. Further, the parties acknowledge that Overlap did not file an amended petition naming A.G. Edwards & Sons as a party until November 20, 2006. The dispute about the statute of limitations issue concerns the application of the relation back doctrine, which is set forth in Rule 55.33(c).

Rule 55.33(c) allows an amended petition filed out of time to relate back to the original petition under certain circumstances. When the claim in the amended petition arose out of the conduct, transaction, or occurrence set forth in the original pleading, the amended petition relates back to the date of the original pleading. Rule 55.33(c). Further, an amendment changing the party against whom a claim is asserted relates back if the party to be brought in: (1) has received adequate notice so that the party will not be prejudiced in maintaining the party’s defense on the merits; and (2) “knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.” Id. “In other words, for Rule 55.33(c) to allow amended pleadings filed out of time to relate back, the plaintiff must have sued the wrong party.” Mallek v. First Banc Insurors Agency, 220 S.W.3d 324, 331 (Mo.App.2007). Moreover, Rule 55.33(c) is “to be liberally applied, and is based on the concept of whether a defendant has been given notice sufficient to defend against claims relating to a particular transaction or occurrence.” Thompson v. Brown & Williamson Tobacco Corp., 207 S.W.3d 76, 116 (Mo.App.2006).

In Watson v. E.W. Bliss Co., 704 S.W.2d 667, 670 (Mo. banc 1986), the Missouri Supreme Court considered and reaffirmed the rule that correction of a misnomer relates back to the original petition as long as the correct defendant had notice of the original lawsuit. In Watson, like here, the plaintiff mistakenly identified the corporate entity in the original complaint (“E.W. Bliss Company, Gulf & Western Heavy Duty Division”) and then, as in this case, sought to add the correct defendant (“E. W. Bliss Division of the Gulf Western Manufacturing Company”). Id. at 666-69. The Watson court said:

Using an objective standard, it is reasonable to conclude plaintiff sought to sue the corporate entity liable for his injuries — the company which manufactured the punch press, or the successor to its business. He did designate the defendant in his initial pleading as “E.W. Bliss Company.” But, he used a name which Gulf & Western Manufacturing Company now uses to describe a portion of its business. There is a striking similarity between plaintiffs originally described defendant: “E.W. Bliss Company, Gulf & Western Heavy-Duty Division” and defendant’s designation of the proper defendant: E.W. Bliss Division, Gulf <⅞ Western Manufacturing Company. Plaintiffs description of the defendant never centered or focused solely on the corporate name of Old Bliss or New Bliss. Viewed in the light of the corporate history of the Old Bliss punch press manufacturing business, plaintiffs misdescription was understandable. Gulf & Western Manufacturing Company uses the name of E.W. Bliss for its own purposes. It should not be heard to object when sued in that name. Plaintiff simply was mistaken in describing defendant.

Id. at 669. As in this case, there was no credible dispute that the correctly named defendant received notice of the timely filed original petition. Id. Accordingly, the Missouri Supreme Court held that the relation back doctrine applied and found the correction related back to the original petition. Id. at 670.

In Watson, the Missouri Supreme Court made clear that where a petition is filed mistakenly against the wrong corporate entity, but the correct party is named in an amended petition, there is no “change” in party under Rule 55.33(c). Id. at 669-70. If the correct party received notice, the correction relates back to the filing of the original petition. Id. at 670. Indeed, the Watson court emphatically stated that the correction of a misnomer or misdescription of a party has nothing to do with Rule 55.33(c)’s requirements concerning a change in party. Id. The court stated: “The misnomer theory existed long before ... our present Rule 55.33(c). The theory is still conceptually sound and, on balance, not difficult to apply. Its vitality and effectiveness have served us well in the past, and we see no reason to change or discard it.” Id. at 671. Thus, Overlap’s amendment naming A.G. Edwards & Sons as a defendant relates back to the original filing of Overlap’s petition because A.G. Edwards & Sons was indisputably on notice of the original petition. Id. at 670-71.

“ ‘Statutes of limitation were never intended to be used as swords. Rather, they are shields, primarily designed to assure fairness to defendants by prohibiting stale claims’ which tend ‘to undermine the truth finding process.’ ” Thorson v. Connelly, 248 S.W.3d 592, 596 (Mo. banc 2008) (citation omitted). The truth-finding process is not undermined by allowing the process to proceed against A.G. Edwards & Sons. A.G. Edwards & Sons suffers no prejudice or unfair surprise as it knew from the beginning what Overlap’s claims were, and it was not deprived of the opportunity to investigate and prepare its defenses. Id.

The circuit court did not err in submitting Overlap’s claims to the jury. Overlap’s claims are not barred by the five-year statutes of limitation. Overlap’s amendment naming A.G. Edwards & Sons as a defendant related back to the original filing of Overlap’s petition, and, therefore, was filed within the applicable statutes of limitation.

CONCLUSION

We conclude that Overlap’s claims are not barred by the five-year statutes of limitation. Because, however, a juror intentionally failed to disclose that he had been a party to a lawsuit, the circuit court erred in denying A.G. Edwards & Sons’ motion for new trial. We, therefore, reverse the circuit court’s judgment as to all claims, including Overlap’s unfair competition claim on which the circuit court directed a verdict, and remand for a new trial on all claims.

All concur.

      . See section 516.120, RSMo 2000.

      . Although A.G. Edwards & Sons initially disputed that the software had not been installed on fifty-one of its computers, A.G. Edwards & Sons conceded during closing argument at trial that damages could be awarded based on the fifty-one computer number advanced by Overlap.

      . The circuit court sustained A.G. Edwards & Sons’ motion for directed verdict as to the unfair competition claim.

      . "Nondisclosure, whether intentional or unintentional, can occur only after a clear question is asked on voir dire.” Brines by Harlan v. Cibis, 882 S.W.2d 138, 139 (Mo. banc 1994). Neither party contends the question asked was not sufficiently clear to trigger Hillerman's obligation to disclose the information requested. Indeed, from an objective standard of clarity, the question asked was a general question, and the surrounding context did not render it confusing or ambiguous. See Johnson, 306 S.W.3d at 557.

      . The failure to answer a clear question is considered a nondisclosure. Massey v. Carter, 238 S.W.3d 198, 201 (Mo.App.2007).

      . The circuit court held an evidentiary hearing upon the nondisclosure issue, and Hiller-man testified at that evidentiary hearing. Based upon Hillerman’s testimony, the circuit court found that the nondisclosure was intentional:
      [0]ne juror, Juror Hillerman, was a defendant in Karol J. Turner v. Brian S. Hiller-man and Pavestone Company, L.P., ... out of the Circuit Court of Jackson County Missouri. Hillerman knew that case went to jury trial, remembered the case at the time of voir dire, recalled being asked about litigation and stated that he "might” have raised his hand to answer the pertinent question when asked (the juror did not recall raising his hand to answer the pertinent question and the Court notes that it did not observe Hillerman’s hand raised during these questions). Hillerman also indicated that he did not respond because of embarrassment. This failure to respond constituted intentional failure to disclose prior involvement in litigation.
      "The determination of whether concealment is intentional or unintentional is left to the sound discretion of the trial court.” Wilford, 736 S.W.2d at 36. The circuit court's determination that Hillerman’s nondisclosure was intentional is not an abuse of discretion.

      .Overlap contends that we should affirm the circuit court's denial of the motion for new trial based on juror nondisclosure because nothing exists in the record to suggest that the juror nondisclosure in this case prejudiced or tainted the verdict in any way or that it biased the jury against A.G. Edwards & Sons. The Missouri Supreme Court, however, has explicitly held that we infer bias and prejudice if a juror’s nondisclosure is intentional. Williams, 736 S.W.2d at 37. We are constitutionally bound to follow the Missouri Supreme Court's decision. Mo. Const, art. V, § 2.

      . We acknowledge that the Brines court said that a party should raise any information regarding a juror's nondisclosure to which it is privy or the party waives its ability to challenge the juror's nondisclosure. Brines, 882 S.W.2d at 140. We do not believe that, just because A.G. Edwards & Sons had the ability to conduct a Case.net search before the case was submitted to the jury, such ability made it "privy” to Hillerman’s prior litigation history. Indeed, in performing a Case.net search to discover a juror’s prior litigation history, a party is attempting to "to investigate whether the prospective juror [has] answered the questions truthfully," and the Brines court said that such investigation was unnecessary "unless the litigant had some indication that the [juror's] answer was false.” Id. There was no indication in the record that A.G. Edwards & Sons knew that Hillerman had been a party to a lawsuit prior to the case being submitted to the jury.

      . In so ruling, the Johnson court recognized that Case.net is not an official record and that it has its limitations: "First, Case.net may contain inaccurate and incomplete information. Second, Case.net may have limited usefulness in searches involving common names or when a person's name has changed.” Johnson, 306 S.W.3d at 559 n. 4. The Court said that ”[u]ntil a more specific rule is promulgated, the trial court must determine whether a party has made a reasonable effort in determining a juror’s prior litigation history by searching Case.net.” Id. The Court also said that "[sjearches of other computerized record systems, such as PACER, are not required.” Id.

      . We note that, in its brief, A.G. Edwards & Sons states that it is not requesting a new trial on Overlap's claim for breach of the original software license agreement, which the jury assessed damages of $22,278. Because the juror nondisclosure occurred from the inception of the proceeding, it tainted the entire proceeding. Moreover, Overlap's claims are all intertwined and resulted in the circuit court merging the compensatory damages into a single compensatory damage award during the first trial. We, therefore, reverse the circuit court's judgment as to all claims, including Overlap's unfair competition claim on which the circuit court directed a verdict, and remand for a new trial on all claims.

      . See section 516.120, RSMo 2000.

      . In support of its contention that the amended petition does not relate back to the date of the filing of the original petition, A.G. Edwards & Sons relies on Tyson v. Dixon, 859 S.W.2d 758 (Mo.App.1993). In Tyson, this court ruled that an amendment of a petition does not relate back to the date of the original filing in a case where the plaintiff had notice before the running of the statute that the party in question was a potential defendant. Id. at 762. In so ruling, the Tyson court relied on Rule 55.33(c) and said: "Rule 55.33(c) was not designed to afford protection to a plaintiff who had notice of the identity and potential liability of the proper party defendant before the statute of limitations expired, yet failed to timely bring the party into the action. The amendment attempting to add Defendant Dixon to the suit was not a correction of a 'mistake' as to the identity of the proper party defendant as contemplated by Rule 55.33(c).” Id. at 763. Tyson is not a misnomer case and did not involve a mistake of identity of a closely related corporate entity. Tyson, therefore, is not instructive to this case.

      . In several of A.G. Edwards & Sons’ Points Relied On, A.G. Edwards & Sons argues that it was entitled to a directed verdict or judgment notwithstanding the verdict on Overlap's claims. Contrary to A.G. Edwards’ arguments, Overlap proved a submissible fraud claim, which is sufficient to sustain both the compensatory and punitive damages awards. Accordingly, A.G. Edwards is not presently entitled to the entry of judgment in its favor. Because we are remanding for a new trial and submissibility issues may arise on a different factual record in the event of a verdict for Overlap on retrial, an extended discussion of these issues is not warranted here. As to the remaining issues, because we are remanding for a new trial, we need not address those issues.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Russell BRYANT, Appellant.
    No. ED 92476.
    Missouri Court of Appeals, Eastern District.
    June 15, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 11, 2010.
    Application for Transfer Denied Sept. 21, 2010.
    Amy Meyers, Brentwood, MO, for Appellant.
    Christopher A. Koster, Attorney General, Terrence M. Messonnier, Asst. Attorney General, Jefferson City, MO, for Respondent.
    Before SHERRI B. SULLIVAN, P.J. and ROBERT G. DOWD, JR. and PATRICIA L. COHEN, JJ.
   ORDER

PER CURIAM.

Russell Bryant (“Defendant”) appeals from the judgment upon his conviction by a jury of murder in the second degree, Section, 565.021, RSMo 2000, armed criminal action, Section 571.015, RSMo 2000, and attempted stealing, Section 570.030, RSMo 2000. Defendant contends the trial court erred in (1) overruling his motions for judgment of acquittal at the close of the State’s evidence and at the close of all the evidence because the State failed to meet its burden of proving beyond a reasonable doubt that the person named in the information as having been murdered was the same person the State proved was murdered at trial, and (2) overruling Defendant’s motion to suppress the out-of-court identifications and in admitting the out-of-court identifications into evidence because both the photo array and the physical lineup were the result of procedures that were so suggestive as to create a substantial likelihood of misidentification, were inherently unreliable, and rendered the in-court identification unreliable.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion reciting the detailed facts and restating principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 30.25(b).


text:
    Thurston MITCHELL, Appellant, v. UNION PACIFIC RAILROAD COMPANY, Respondent.
    No. ED 94003.
    Missouri Court of Appeals, Eastern District, Division Four.
    June 15, 2010.
    Application for Transfer to Supreme Court Denied Aug. 3, 2010.
    Application for Transfer Denied Sept. 21, 2010.
    Drew C. Baebler, James E. Hopkins, Jr., Bauer & Baebler, P.C., St. Louis, MO, for appellant.
    James W. Erwin, Nicholas J. Lamb, Booker T. Shaw, Thompson Coburn LLP, St. Louis, MO, for respondent.
    Before: KURT S. ODENWALD, P.J., GEORGE W. DRAPER, III, J., and GARY M. GAERTNER, JR., J.
   Order

PER CURIAM.

Plaintiff Thurston Mitchell (Plaintiff) appeals from the judgment of the Circuit Court for the City of St. Louis dismissing his suit under the Federal Employers’ Liability Act (FELA) against the defendant, Union Pacific Railroad Company (Railroad), based on forum non conveniens. The trial court granted Railroad’s motion to dismiss, finding that under all the facts, it would be too burdensome to require Railroad to defend the suit in that court. Within thirty days after entering judgment, the trial court entered a supplemental order, to which the parties agreed, ruling that once Plaintiff filed suit in a forum outside Missouri, Railroad was not to include the time the lawsuit was pending in Missouri in any time-limitations defense. If Railroad violates such condition, then the trial court will accept jurisdiction upon Plaintiffs re-filing the action within sixty days of Railroad’s violation. We affirm.

We have reviewed the briefs of the parties, the legal file, and the record on appeal, and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).


author: PER CURIAM:

text:
    Raymond SALES, Appellant, v. Stanley BANK, Respondent.
    No. WD 71208.
    Missouri Court of Appeals, Western District.
    June 22, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 27, 2010.
    Application for Transfer Denied Sept. 21, 2010.
    Lynn K. Ballew, Harrisonville, MO, for Appellant.

      Rebecca J. King, Melissa A. Hoag Sherman, Overland Park, KS, for Respondent.
    Before THOMAS H. NEWTON, C.J., JAMES EDWARD WELSH, and GARY D. WITT, JJ.
   ORDER

PER CURIAM:

Mr. Raymond Sales appeals the trial court’s judgment denying his motion for a preliminary injunction, dissolving a temporary restraining order, and dismissing the case with prejudice.

For reasons stated in the memorandum provided to the parties, we affirm. Rule 84.16(b).


text:
    Amanj Raza ARIF, Appellant, v. Pershing Hamaraim SHKUR, Respondent.
    No. WD 71289.
    Missouri Court of Appeals, Western District.
    June 22, 2010.
    Larry D. Wright, for Appellant.
    Gary Steinman, for Respondent.
    Before Division Three: JAMES M. SMART, JR., Presiding Judge, JOSEPH M. ELLIS, Judge and GARY D. WITT, Judge.
   ORDER

PER CURIAM:

Amanj Arif appeals from the trial court’s judgment of dissolution of marriage and contends that the trial court erred in ordering him to pay $854 per month in child support. After a thorough review of the record, we find there was sufficient evidence to support the award, it was not against the clear weight of the evidence, and no error of law appears. An extended opinion would have no precedential value but a memorandum explaining our reasoning has been provided to the parties.

Judgment affirmed. Rule 84.16(b).


author: JOSEPH M. ELLIS, Judge.

text:
    Philip M. KOPPE, Appellant, v. John R. CAMPBELL, Jr., et al., Respondents.
    No. WD 70716.
    Missouri Court of Appeals, Western District.
    June 22, 2010.
    Application for Transfer to Supreme Court Denied July 27, 2010.
    Application for Transfer Denied Sept. 21, 2010.

      George A. Barton, Robert G. Harken, The Law Offices of George A. Barton, P.C., Kansas City, for appellant.
    Nathan C. Harbur, Nathan C. Harbur, Chartered, Michael W. Blanton, Leawood, KS, for respondents.
    Before Division Two: JOSEPH M. ELLIS, Presiding Judge, VICTOR C. HOWARD, Judge and CYNTHIA A. MARTIN, Judge.
   JOSEPH M. ELLIS, Judge.

Philip M. Koppe appeals from a judgment of the circuit court of Jackson County granting the Respondents’ motion for judgment notwithstanding the verdict (JNOV) and alternatively granting the Respondents’ motion for a new trial. For the following reasons, we reverse the trial court’s judgment.

This case involves a claim under quantum meruit for legal services Koppe provided to the Respondents, John R. Campbell, Jr., Leon A. Howell, and Grand Avenue Developers, L.L.C. Campbell and Howell, as the sole owners, investors, and shareholders of K.J.C. Development Corporation (K.J.C.), purchased land on the corner of 10th Street and Grand Avenue in Kansas City at a tax foreclosure sale. At the time of the sale, a seventeen-story office was located on the land and Campbell and Howell became involved in a long legal battle with the Land Trust of Jackson County (Land Trust) over ownership of the building. Both K.J.C. and Land Trust contended they were the fee simple owners of the building.

After an unfavorable ruling was issued against Campbell and Howell in trial court, they sought the services of Koppe. Campbell, who was an attorney with his own practice and who acted as general counsel for K.J.C., knew Koppe, was familiar with his extensive appellate experience, and had previously retained Koppe’s services on appellate work. Koppe was an attorney with the Missouri Attorney General’s office at the time, who had worked on approximately 1,500 criminal appeals. Koppe agreed to help Campbell with the appeal and ultimately assisted Campbell in all phases of the appeal, including drafting the following: (1) the brief for the Missouri Court of Appeals, (2) a response to the Land Trust’s motion to dismiss, (3) two amended briefs for the Missouri Court of Appeals, (4) a motion for rehearing, (5) suggestions in opposition to Land Trust’s request to clarify issues on rehearing, (6) a second motion for rehearing, (7) an application for transfer to the Missouri Supreme Court, and (8) the substitute brief for the Missouri Supreme Court. Although Koppe’s name did not appear on the briefs or motions and Koppe did not present oral arguments, Koppe estimated that he spent a total of 640 hours on the appeal. The ultimate result was a favorable judgment by the Missouri Supreme Court awarding fee simple title of the building to K.J.C. K.J.C. Dev. Corp. v. Land, Trust of Jackson County, 6 S.W.3d 894, 897 (Mo. banc 1999).

K.J.C., Campbell, Howell, and Koppe did not enter into any written agreement regarding Koppe’s legal services. Nonetheless, the parties agreed that Koppe would only be paid in the event that the appeal was successful and only after the building was sold. Following the Supreme Court ruling in 1999, Campbell and Howell undertook to sell the building. However, due to non-interest in the area and the dilapidated condition of the building, it took five years and additional investments by Campbell and Howell for the building to sell.

Ultimately, in November 2004, the building sold for $8.8 million. Prior to the sale, K.J.C. had transferred the building to a new entity, Grand Avenue Developers, which Campbell and Howell created for tax purposes. Following the sale of the building, Campbell and Howell disbursed earnings to themselves, leaving $32,000 in Grand Avenue Developers. Campbell believed this amount would be sufficient to provide Koppe with payment for his services.

On November 17, 2004, Koppe wrote to Campbell, congratulating him on the sale of the building, and requesting that they determine an amount of payment. Campbell and Howell offered Koppe $15,000 but Koppe told them that the offer was not sufficient and he believed he was due $625,000, plus interest. Finally, on January 31, 2007, Koppe filed a petition for damages against Campbell and Howell. On October 31, 2008, a jury in Jackson County returned a verdict in favor of Koppe for $150,000.

The Respondents filed a motion for JNOV and alternative motions to amend the judgment or for a new trial. After a hearing, the trial court granted Respondents’ motion for JNOV on the ground that Koppe’s claim was time barred. In the alternative, the trial court granted Respondents’ motion for a new trial on the grounds that Koppe was unable to establish the fair and reasonable value of his legal services and the court committed error in submitting an instruction which allowed the jury to award Koppe prejudgment interest. This appeal follows.

We review the granting of the alternative motions for JNOV and for a new trial applying different standards of review. “Essentially, a JNOV motion is a challenge to the submissibility of the case.” Kinetic Energy Dev. Corp. v. Trigen Energy Corp., 22 S.W.3d 691, 697 (Mo.App. W.D.1999). We review a trial court’s grant of a motion for JNOV de novo and must determine whether the plaintiff made a submissible ease. Jones v. Sherman, 857 S.W.2d 468, 471 (Mo.App. E.D.1993). “To make a submissible case, a plaintiff must present substantial evidence that tends to prove the facts essential to plaintiffs recovery.” Ryan v. Maddox, 112 S.W.3d 476, 480 (Mo.App. W.D.2003) (internal quotation omitted). We view the evidence in the light most favorable to the jury’s verdict, and give the prevailing party all reasonable inferences from the verdict while disregarding the unfavorable evidence. Hodges v. City of St. Louis, 217 S.W.3d 278, 280 (Mo. banc 2007). “A presumption exists favoring the reversal of a JNOV.” Kinetic Energy, 22 S.W.3d at 697. Nonetheless, we will affirm the trial court’s ruling if the trial court’s ruling was “proper for any reason, even if its assigned grounds were wrong.” Lindquist v. Scott Radiological Group, Inc., 168 S.W.3d 635, 644 (Mo.App. E.D.2005).

Regarding motions for new trials, the trial court is vested with broad discretion when ruling on these motions. Steele v. Evenflo Co., 147 S.W.3d 781, 786 (Mo.App. E.D.2004). However, the trial court’s power is discretionary only regarding fact questions, not questions of law, and the burden is on the appellant to prove that the trial court abused its discretion when it granted the motion for a new trial for the stated reasons. Id. Further, “[w]hen reviewing the grant of a new trial following a verdict in favor of plaintiff, we view the evidence and all inferences in the light most favorable to plaintiff.” Id. “When a trial court grants a new trial on a specified basis, that ruling constitutes an overruling of all other grounds asserted by the movant in its motion for a new trial.” Andersen v. Osmon, 217 S.W.3d 375, 378 (Mo.App. W.D.2007) (internal quotation omitted). “On appeal from an order granting a new trial for a specific reason the burden is on appellant to show that the court erred in sustaining the motion upon the ground specified.” Id. (internal quotation omitted). “The respondent has the burden to show if other grounds in the motion are sufficient to grant a new trial.” Id.

Thus, we must consider all grounds raised by the Respondents in their JNOV motion, but are only required to consider the grounds raised in the Respondents’ motion for a new trial if the Respondents demonstrated those grounds are sufficient to grant a new trial. Accordingly, we start our inquiry examining the trial court’s judgment and the reasons provided therein for granting the Respondents’ motions.

Statute of Limitations

In their motion for JNOV, the Respondents asserted that Koppe’s action was time barred because Koppe last performed services for the Respondents in October 1999 but did not file suit until January 2007, more than seven years after the date he last provided services. The trial court agreed with Respondents’ contention and granted JNOV on that basis.

Section 516.120 limits “[a]ll actions [except those specified in § 516.110] upon contracts, obligations or liabilities, express or implied” to five years. While the parties agree that the five-year statute of limitations applies, they disagree as to when the statute of limitations begins to run.

The general rule is that the statute of limitations will accrue “when the damage resulting therefrom is sustained and is capable of ascertainment.” § 516.100. “[T]he capable of ascertainment test is an objective one.” Powel v. Chaminade Coll. Preparatory, Inc., 197 S.W.3d 576, 584 (Mo. banc 2006). Damage may be ascertained “when a reasonable person would have been put on notice that an injury and substantial damages may have occurred and would have undertaken to ascertain the extent of the damages.” State ex rel. Marianist Province of U.S. v. Ross, 258 S.W.3d 809, 811 (Mo. banc 2008) (internal quotation omitted). Thus, “the statute of limitations begins to run when the ‘evidence was such to place a reasonably prudent person on notice of a potentially actionable injury.’ ” Id. (quoting Powel, 197 S.W.3d at 584).

The Respondents cite Coburn v. Leon Industries, Inc., 764 S.W.2d 510 (Mo.App. E.D.1989) and Estate of Cates v. Brown, 973 S.W.2d 909 (Mo.App. W.D. 1998), as support for the general proposition that a five-year statute of limitations applies to quantum meruit claims and argue that Koppe’s claim is time barred because it was filed more than five years after he finished providing legal services. The Respondents also rely on E.J. Vitello Plumbing, Inc. v. Wayne M. Roberts, Inc., 955 S.W.2d 222, 223 (Mo.App. E.D.1997), in which the Eastern District of this Court held that the damages were capable of ascertainment when the client was billed with an invoice. However, none of these cases provide any guidance on how to determine when the statute begins running when parties have agreed to postpone payment until certain conditions are met. Here, the parties agreed payment would not be due until a favorable ruling was entered on appeal and the building sold. None of the cases cited by the Respondents address when the statute of limitations accrues under these conditions.

Viewing the evidence in the light most favorable to Koppe, it was not reasonably possible that Koppe was put on notice of a potentially actionable injury until after the building sold and he was not paid. Since the accrual of the statute of limitations commences on the date the damages were sustained and capable of ascertainment, the statute could not have began to run on the date that services were last rendered by Koppe due to the specific agreement between the parties. Although the Respondents contend that Koppe could have valued his services prior to the sale of the building, Koppe could not have known there would be an injury resulting in damages until after the building sold and he was not paid. Any action by Koppe prior to the sale of the building would have been premature and prior to any injury Koppe suffered. Therefore, the trial court erred in finding Koppe’s claim time barred and granting Respondents’ motion for JNOV on that basis because the statute of limitations did not begin to accrue until after the building was sold in 2004. As noted supra, Koppe filed his suit on January 31, 2007, well within the five year statute of limitations.

Reasonable Value of Services

We next address Koppe’s claim that the trial court erred in its alternative ruling granting the Respondents’ motion for a new trial on the basis that Koppe failed to establish the reasonable value of his services.

In order to make a submissible case in quantum meruit, Koppe was required to present substantial evidence proving the following: that he provided the Respondents with services at the request of the Respondents or with their acquiescence; that those services had a certain reasonable value; and that the Respondents, despite demands by Koppe, have failed and refused to pay the reasonable value of those services. Moran v. Hubbartt, 178 S.W.3d 604, 609 (Mo.App. W.D.2005). “Recovery in quantum meruit for services performed is limited to the reasonable value of the services.” Id. at 609-10 (internal quotation omitted). “The reasonable value of services is the price usually and customarily paid for such services or like services at the time and in the locality where the services were rendered.” Id. at 610 (internal quotation omitted). However, a community standard is not an essential aspect of reasonableness, and, in some cases, the plaintiffs testimony alone is sufficient to establish the reasonable value of the plaintiffs services. Richard B. Curnow, M.D., Inc. v. Sloan, 625 S.W.2d 605, 607 (Mo. banc 1981). “Failure to prove reasonable value is fatal to a quantum meruit claim.” Moran, 178 S.W.3d at 610 (internal quotation omitted).

Koppe’s testimony was sufficient to make a submissible case of quantum meruit. “In Missouri, a plaintiff seeking payment for services under quantum meruit can testify as an expert in his own behalf as to reasonable value of those services.” /¿(internal quotation omitted). “The plaintiffs own testimony, considering his first hand knowledge of this case as well as his professional opinion, establishes the reasonableness of the fee in question.” Curnow, 625 S.W.2d at 607. The Respondents made numerous objections to Koppe’s testimony, which were overruled by the trial court. However, in making its decision on the motion for new trial, the key issue for the trial court, in deciding whether Koppe made a submissible case, was whether the amount Koppe claimed was owed to him was objectively reasonable.

On appeal, we must determine whether there was sufficient evidence of: (1) Koppe’s qualifications as an expert; (2) the services Koppe provided to the Respondents; (3) the price Koppe charged for those services; and (4) the worth of those services. Moran, 178 S.W.3d at 610. Again, following a verdict in favor of plaintiff, we view the evidence on appeal from the grant of a new trial in the light most favorable to the plaintiff. Steele, 147 S.W.3d at 786.

Koppe testified regarding his expertise as an attorney with twenty-five years’ appellate experience, working primarily in criminal appellate work, and who had handled up to 1,500 appeals at the time he provided services to the Respondents. Koppe also provided testimony that he performed services of value to Campbell, Howell, and Grand Avenue Developers. He testified in detail as to the work he provided to the Respondents, including the hours spent on each step of the appeal and the contributions made by Campbell. Finally, Koppe explained how he calculated an amount due to him and that it was his opinion that the amount was a reasonable value based on the work he provided. In making an assessment of the value of his services, Koppe testified that he relied on various factors. “The factors to be considered in determining reasonable value of attorneys’ fees in Missouri are time, nature, character and amount of services rendered, nature and importance of the litigation, degree of responsibility imposed on or incurred by the attorney, the amount of money or property involved, the degree of professional ability, skill and experience called for and used, and the result achieved.” Reid v. Reid, 906 S.W.2d 740, 743 (Mo.App. E.D.1995). In Koppe’s testimony, he touched on each of the factors set forth in Reid. After taking all of those factors into account, Koppe testified that he calculated the fair and reasonable value for his services to be $448,000. In arriving at this number, Koppe explained that he doubled the hourly rate of $350 to account for the risk he took in case the appeal was unsuccessful or if the building did not sell. Koppe testified that, in his opinion, the value of his services was reasonable and fair. “Each case is different, and plaintiffs testimony alone can establish the reasonable value of his charge, considering the professional base fee upon which it was founded.” Curnow, 625 S.W.2d at 607. Under Missouri law, Koppe’s testimony was sufficient to make a submissible case of quantum meruit.

Although the Respondents offered their own experts to testify regarding the reasonable value of Koppe’s services, “[o]pinions of experts, when in conflict, must be weighed by the trier of fact and considered in light of such matters as experience, knowledge, attention given to the case, and the interest of each.” Id. Moreover, “[although evidence of what is charged by others in the community can be considered, it is not dispositive.” Id. The jury was free to weigh the testimony of Koppe against the testimony of the Respondents’ experts and make their determination as to a reasonable award of damages.

Prejudgment Interest

Koppe also argues that the trial court erred in granting Respondents’ motion for new trial on the second ground stated by the trial court, namely that the trial court erroneously submitted “Instruction No. 10, which allowed the jury to award Plaintiff prejudgment interest from January 31, 2007.”

We review, de novo, whether a jury was properly instructed. Harvey v. Washington, 95 S.W.3d 93, 97 (Mo. banc 2003). “In order to preserve claims of instructional error for review, counsel is required to make specific objections to the instruction at trial and again raise the error in the motion for new trial.” State v. Richards, 300 S.W.3d 279, 281 (Mo.App. W.D.2009) (internal quotation omitted). “A point on appeal may not enlarge or change the objection made at trial.” Berra v. Banter, 299 S.W.3d 690, 703 (Mo.App. E.D.2009) (internal quotation omitted). “When the point on appeal contends that an instruction is erroneous on a different ground than was asserted in the objection made at trial, we may not review that error on appeal.” Id.

During the instruction conference, the court asked the Respondents if they had any objection to “the damages instruction patterned after 4.04 and Twrpin vs. Anderson, 957 S.W.2d 421.” Respondents’ counsel first stated that “[d]efendant would object to the — any allowance of interest to be determined, based upon the fact that a specific demand was not made, even in the plaintiff’s initial petition.” After Koppe’s attorney made a brief response, Respondents’ counsel added “[j]ust one other thing, Judge. In terms of — in determining the reasonable value, again, we object to that, based upon it’s not in MAI instruction or part of the 4.04.” The court overruled the objections and directed that Instruction No. 10 be given.

In their motion for a new trial, Respondents asserted the following:

a.) There was no evidence Plaintiff made a specific monetary demand on Defendants either prior to the lawsuit or in his Petition and, therefore was not entitled to prejudgment interest; and/or
b.) There was no legal basis or authority for Plaintiff to submit a damage instruction which substantially deviated from MAI 4.04;

“The often stated general rule is that interest is not recoverable on an un-liquidated demand. The courts, however, have subjected the general rule to various interpretations and exceptions.” Catron v. Columbia Mut. Ins. Co., 723 S.W.2d 5, 6 (Mo. banc 1987) (citations omitted). One such exception was recognized in Laughlin v. Boatmen’s National Bank, 354 Mo. 467, 189 S.W.2d 974 (1945). In Laughlin, the Court held that prejudgment interest could be awarded in an action “in quantum meruit for the reasonable value of legal services.” Id. at 978. In analyzing the issue, the Court stated:

An action in quantum meruit, for the reasonable value of services, is one of the forms of an action in assumpsit. Assumpsit is the remedy for the enforcement of quasi-contractual obligations and included in it and concurrent with it ... are the common law actions of debt, by which the customary duty or obligation for the payment of money was enforced, and of account. On principle there is no reason for denying interest when the action is in quantum meruit and the claim is unliquidated in the sense that the amount due is to be measured and determined by the standard of the reasonable value of the services. The theory of interest in any case is compensation for the use of or loss of the use of money to the person entitled to it. If the defendant is liable for the reasonable value of services he is under a legal duty to liquidate the sum due and interest should be allowed from the time when he should have paid. For benefits conferred upon request, or enjoyed under various circumstances which are tantamount to a request, there is a legal duty to make compensation; this is measured by the standard of reciprocal justice. The party in whose favor such duty is implied is legally entitled to recover so much as he reasonably deserves. Interest is in many cases allowed upon this principle. It is almost an axiom in American jurisprudence that' he who has the use of another’s money, or money he ought to pay, should pay interest on it. This principle has been applied often in actions for the reasonable value of work and labor and to claims for legal services generally.

Id. at 979 (internal citations and quotations omitted). The Court’s decision in Laugh-lin was consistent with and followed prior decisions, such as Trimble v. Kansas City, Pittsburg & Gulf Railroad Co., 180 Mo. 574, 79 S.W. 678, 681 (1904), Mecartney v. Guardian Trust Co., 274 Mo. 224, 202 S.W. 1131, 1141 (1918), Sherman v. International Life Insurance Co., 291 Mo. 189, 236 S.W. 634, 642 (1921).

Laughlin has since been followed or cited with approval in numerous cases, including Mid-West Engineering & Construction Co. v. Campagna, 421 S.W.2d 229, 234 (Mo.1967), General Aggregate Carp. v. LaBrayere, 666 S.W.2d 901, 909-10 (Mo.App. E.D.1984), and Catron, 723 S.W.2d at 6-7, to name a few. Thus, “[a] claim in quantum meruit for the reasonable value of services is not unliquidat-ed within the contemplation of the general rule.” Whalen, Murphy, Reid, Danis, Garvin & Tobben v. Estate of Roberts, 711 S.W.2d 587, 590 (Mo.App. E.D.1986). “A plaintiff is allowed pre-judgment interest even if he is not entitled to the full amount of his demand,” and “[a]n award of prejudgment interest is proper in the case of attorney’s fees.” Id.

Accordingly, an award of prejudgment interest is proper in Koppe’s action in quantum meruit. Nonetheless, Respondents assert that the trial court was correct in granting the motion for new trial because Koppe made no demand for payment of a specific amount, either prior to trial or in his petition. While Respondents are correct that Koppe made no specific demand, their conclusion that this failure precludes prejudgment interest in this case is erroneous. This is so because “[a]s to the requirement that a party make a demand for payment, even if a demand for payment was not made prior to filing a lawsuit, the filing itself constitutes a demand.” Hawk Isolutions Group, Inc. v. Morris, 288 S.W.3d 758, 762 (Mo.App. E.D.2009). Moreover, even though Koppe’s petition only generally averred in the prayer that Koppe was seeking “an amount that is fair and reasonable, inclusive of prejudgment interest,” this was adequate because “[a]n express allegation in the petition seeking prejudgment interest is not a prerequisite to an award of such interest.” Watters v. Travel Guard Int’l, 136 S.W.3d 100, 111 (Mo.App. E.D.2004). Missouri cases consistently hold that general requests for relief in the petition’s prayer are sufficient. See, e.g., Hawk Isolutions, 288 S.W.3d at 763 (“Plaintiff specifically requested prejudgment interest in its prayer for relief.”); Watters, 136 S.W.3d at 111-12 (stating prayer for money judgment “plus interest” was sufficient demand); Gen. Aggregate, 666 S.W.2d at 910 (stating plaintiffs prayer for “such other relief as may be proper under the premises” was adequate demand); Haynes v. Allen, 482 S.W.2d 85, 89 (Mo.App. E.D.1972) (holding that petition’s prayer “to grant such other and further relief as the court may deem meet and proper in the premises” was sufficient demand).

In light of the foregoing, it is apparent that the trial court erred in granting a new trial on the grounds that Koppe was not entitled to prejudgment interest or failed to make demand therefor. But there is still the issue regarding Instruction No. 10 deviating from the Missouri Approved Instructions (MAI). MAI 4.04, last revised in 1981, is the approved damages instruction for quantum meruit. It provides: “If you find in favor of plaintiff, then you must award plaintiff the reasonable value of the goods furnished [with _% interest thereon from _].” Instruction No. 10, given at trial, provided:

If you find in favor of plaintiff, then you must award plaintiff the reasonable value of the legal services furnished by plaintiff, with nine percent interest thereon from January 31, 2007. In determining the reasonable value of ‘plaintiffs legal services, you may consider: the time, nature, character, and amount of legal services furnished by the plaintiff; the nature and importance of the appeal for which plaintiff provided the legal services; the degree of responsibility imposed on or incurred by the plaintiff; the amount of money or property involved in the appeal; the degree of professional ability, skill, and experience called for and used by the plaintiff; and the results achieved because of the plaintiff’s work on appeal.

Although the first portion of the instruction contains the MAI 4.04 language verbatim, the italicized language is a deviation from MAI 4.04.

We conduct a four-step inquiry when an instruction deviates from MAI. Syn, Inc. v. Beebe, 200 S.W.3d 122, 128 (Mo.App. W.D.2006). “First, if the MAI prescribes a particular form of instruction, submission of that instruction is mandatory.” Id. Failure to use the MAI instruction mandates that we presume prejudicial error. Id. at 128-29. “Second, the proponent of the instruction bears the burden of demonstrating nonprejudice.” Id. at 129. In doing so, the proponent must make it “perfectly clear” that no prejudice occurred, otherwise the presumed prejudice prevails. Id. “Third, the appellate court determines if any prejudicial effect is created.” Id. “Finally, to be reversible, the error must materially affect the merits of the case.” Id. A new trial is required “only if the offending instruction misdirected, misled, or confused the jury, resulting in prejudicial error.” Rinehart v. Shelter Gen. Ins. Co., 261 S.W.3d 583, 593 (Mo.App. W.D.2008) (internal quotation omitted).

It is undisputed that Instruction No. 10 deviated from MAI 4.04. Accordingly, we presume prejudice. In his reply brief, Koppe claims there was no prejudice resulting from the additional language because the language merely referenced the six factors used to determine the reasonable value of legal services as outlined in Missouri cases. In particular, he notes that MAI 4.04 was last revised in 1981, and the additional language added to Instruction No. 10 is an accurate statement of the law, coming almost verbatim from a 1997 decision of this Court, Turpin v. Anderson, 957 S.W.2d 421 (Mo.App. W.D.1997).

Turpin involved an attorney’s attempt to collect on a contingent fee. Id. at 424-25. A jury returned a verdict for $46,000 in favor of the attorney, and the Andersons, the clients, appealed. Id. at 425. The case was submitted on quantum meruit and on appeal, the Andersons argued, inter alia, that the award exceeded “all bounds of reasonableness.” Id. at 427. In rejecting the contention, the Court explained the considerations that go into determining a reasonable attorney’s fee. Id. The Court stated:

In order to sustain a claim for quantum meruit, the plaintiff must shoulder the burden of proving the reasonable value of services performed. In making the determination of what constitutes a reasonable attorneys’ fee, consideration is given to (1) the time, nature, character and amount of services rendered; (2) the nature and importance of the litigation; (3) the degree of responsibility imposed on or incurred by the attorney; (4) the amount of property or money involved; (5) the degree of professional ability, skill and experience that was called for and used; and (6) the result that was achieved.

Id. (internal citations omitted).

In the trial court, both at the instruction conference and in their suggestions in support of their motion for JNOV or new trial, Respondents made little mention of Instruction No. 10’s deviation from MAI 4.04. They similarly pay little heed to the issue on this appeal, devoting approximately one page of their forty-one page brief to essentially stating that the instruction was a deviation from MAI 4.04 and that three cases Koppe relied on (not including or even mentioning Turpin) were distinguishable. Not only do they fail to tell us how they were prejudiced, they do not even mention that we must presume prejudice, nor do they identify the analysis, outlined supra, that we must use in evaluating the prejudicial effect.

Koppe is correct that the additional language in Instruction No. 10 is an accurate statement of the law. As noted, it comes almost verbatim from Turpin, a case decided long after MAI 4.04 was last revised. Both parties referenced the factors listed in Instruction No. 10 in their closing arguments. And had the language not been added to the instruction, it would have been entirely appropriate for either or both parties to argue that the jury should consider those factors in determining the reasonable value of Koppe’s legal services. Similarly, because it is an accurate statement of the law, the jury could properly consider the factors listed and whether there was evidence regarding any or all of those factors in deciding the reasonable value of Koppe’s legal services. Therefore, it is clear that no actual prejudice resulted from inclusion of the additional language in Instruction No. 10. Since there was no prejudicial effect, the error did not materially affect the merits of the case in that the Instruction No. 10 did not misdirect, mislead, or confuse the jury. Syn, Inc., 200 S.W.3d at 128. Indeed, if anything, the additional language imposed a greater burden on Koppe than he otherwise had because the jury no doubt considered the evidence on each and every one of those factors in reaching its verdict.

While we do not approve of adding the additional language to MAI 4.04, and would not recommend that it be done in other cases, no prejudice resulted in this case. Since the jury was not misdirected, misled, or confused by the instruction, a new trial is not required. Id.

Personal Liability of Campbell and Howell

In addition to the grounds specified by the trial court, the Respondents contend that the trial court correctly granted their motion for a new trial on the basis that Campbell and Howell were not personally liable for the work Koppe performed for K.J.C., as asserted in their motions for directed verdict and motion for JNOV or new trial. As support for this contention, the Respondents cite numerous cases holding that corporate officers and shareholders are not liable for the debts of the corporation. See, e.g., Benson Optical Co. v. Floerchinger, 810 S.W.2d 531, 534 (Mo.App. E.D.1991), Ingram v. Lupo, 726 S.W.2d 791, 795 (Mo.App. E.D.1987); Golf Digest/Tennis, Inc. v. Diode, Inc., 849 S.W.2d 617, 618 (Mo.App. E.D.1993). However, none of these cases hold that the jury was unable to determine that Koppe provided work for Campbell and Howell personally as well as for the corporation.

The evidence presented to the jury demonstrated two conflicting versions of the business relationship between the parties: one, that Koppe provided services to Campbell, Howell, and K.J.C.; the other, that Koppe provided services solely to K.J.C. On one hand, the evidence included testimony from both Campbell and Koppe that Campbell had requested Koppe’s services in the appeal, just as Campbell had in previous appeals. Koppe also testified that Howell had agreed to pay Koppe upon the sale of the building. Further, the briefs and motions showed Campbell filed the work by Koppe under his name and the name of his firm, with no mention of K.J.C. Moreover, letters from Campbell to Koppe, discussing his payment, contained the letterhead of Campbell’s firm, with no mention of K.J.C. On the other hand, Koppe and Campbell both testified that the only named defendant in the litigation was K.J.C. Both also testified that there was never a statement that Koppe’s services were being performed on Campbell and Howell’s personal behalf.

In addition to the conflicting evidence, there were also two instructions presented to the jury mirroring these two versions of the business relationship. First, instruction 7 read:

Your verdict must be for plaintiff if you believe:
First, plaintiff furnished legal services to defendants John Campbell and Leon Howell regarding an appeal by K.J.C. Development Corporation, and
Second, defendants John Campbell and Leon Howell accepted such services, unless you believe that plaintiff is not entitled to recover by reason of Instruction 9.

The Respondents objected on the basis that “there was no evidence that tends to prove that either Mr. Campbell or Mr. Howell personally benefited or agreed to be personally responsible for any services provided by Mr. Koppe, but it was all through K.J.C. Development Corporation.” The trial court overruled the objection and the Respondents again raised the issue in their motion for new trial.

Instruction 9, which was also presented to the jury read:

Your verdict must be for defendants Leon Howell and John R. Campbell, Jr., under Instruction 7, if you believe:
First, all legal services which plaintiff provided were performed only on behalf of K.J.C. Development Corporation, and
Second, plaintiff knew that the legal services he was providing were performed only on behalf of K.J.C. Development Corporation.

Thus, the jury was presented with two alternative instructions of how the business relationship was formed and for whom Koppe provided services.

The jury was free to consider all of the evidence and make a determination regarding this issue. “The jury, as the trier of fact, was free to believe or disbelieve all, part or none of the testimony, even if it was unimpeached or uncontradicted.” Smith v. Brown & Williamson Tobacco Corp., 275 S.W.3d 748, 795 (Mo.App. W.D.2008) (internal quotation and emphasis omitted). Here, although there was evidence that contradicted Koppe’s testimony, the jury was entitled to make its own credibility determination. Giddens v. Kansas City S. Ry. Co., 29 S.W.3d 813, 819 (Mo. banc 2000). On appeal from the grant of a new trial after a verdict in favor of plaintiff, we are required to view the evidence and inferences in the light most favorable to plaintiff. Steele, 147 S.W.3d at 786. Accordingly, we find that there was sufficient evidence to support the jury’s finding that Koppe provided services to Campbell and Howell personally.

Amount of Verdict Not Supported by the Verdict

Finally, the additional claim raised in the Respondents’ motion for JNOV was that the jury’s verdict was not supported by the evidence. The Respondents claimed that the expert testimony presented only supported a range of compensation between $8,750 and $13,650.

“In determining whether the evidence was sufficient to support the jury’s verdict, the evidence is viewed in the light most favorable to the result reached by the jury, giving the plaintiff the benefit of all reasonable inferences and disregarding evidence and inferences that conflict with that verdict.” Giddens, 29 S.W.3d at 818. “This Court will reverse the jury’s verdict for insufficient evidence only where there is a complete absence of probative fact to support the jury’s conclusion.” Id. “The jury is the sole judge of the credibility of witnesses and the weight and value of their testimony and may believe or disbelieve any portion of that testimony.” Moran, 178 S.W.3d at 609 (internal quotation omitted).

Respondents’ argument on this point is devoid of merit. Respondents ignore a significant amount of testimony provided at trial. As discussed supra, Koppe testified as to his fee and contended that he should be paid $448,000. Koppe’s expert also testified and said he received $300 per hour in compensation for his testimony at trial. Additionally, Campbell testified that he was billing $180 per hour in the 1990’s and was billing $250 per hour at the time of the trial. Moreover, the Respondents’ expert witness testified that he charged between $95 and $125 per hour in 2000, while charging $225 for his services in the instant case. Finally, the Respondents’ expert witness contended that the amount of time Koppe could have spent on the appeal was between 87.5 and 136.5 hours. Therefore, the lowest range of compensation was valued at $8,312, while the highest range of compensation was valued at $448,000. The jury ultimately returned a verdict for $150,000. Accordingly, we do not find that this point in the Respondents’ motion for JNOV could support the trial court’s ruling.

The trial court’s judgment granting Respondents’ motion for judgment notwithstanding the verdict, and the alternative ruling granting Respondents’ motion for new trial, is reversed, and the cause is remanded with directions to reinstate the jury’s verdict in favor of Mr. Koppe.

All concur.

      . Although there was contrasting evidence presented regarding who Koppe provided services to, as well as other issues at trial, we view the evidence in the light most favorable to the jury’s verdict and give the prevailing party all reasonable inferences from the ver-diet while disregarding the unfavorable evidence. Hodges v. City of St. Louis, 217 S.W.3d 278, 280 (Mo. banc 2007). Accordingly, we summarize the facts herein in the light most favorable to Koppe.

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

      . The motion further claimed that "Instruction number 10 is argumentative.” Respondents made no such claim during the instruction conference, nor did they argue it, either in their suggestions supporting their motion in the trial court, or in their brief on appeal. Accordingly, we do not consider it. Berra, 299 S.W.3d at 703.

      . All references to MAI are to the 1981 revision, unless otherwise indicated.


text:
    STATE of Missouri, Respondent, v. Willie L. GIBBS, Appellant.
    No. ED 93716.
    Missouri Court of Appeals, Eastern District, Division One.
    June 22, 2010.
    Application for Transfer to Supreme Court Denied July 28, 2010.
    Application for Transfer Denied Sept. 21, 2010.
    Brocea Smith, MO Public Defender Office, St. Louis, MO, for Appellant.
    Shaun Mackelprang, John Reeves, Co-Counsel, Jefferson City, for Respondent.
    Before KATHIANNE KNAUP CRANE, P.J., CLIFFORD H. AHRENS, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Willie Gibbs (“Defendant”) appeals from the judgment and sentence imposed by the Circuit Court of the City of St. Louis after a jury found him guilty of one count of forcible rape in violation of Section 566.030, one count of robbery in the first degree in violation of Section 569.020 and two counts of armed criminal action in violation of Section 571.015. The trial court sentenced Defendant as a prior and persistent offender and a persistent sexual offender to sixty years’ imprisonment.

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

We affirm the judgment pursuant to Rule 30.25(b).

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


text:
    STATE of Missouri, Respondent, v. Orlan R. HELT, Appellant.
    No. ED 93166.
    Missouri Court of Appeals, Eastern District, Division One.
    June 22, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 28, 2010.
    Application for Transfer Denied Sept. 21, 2010.

      Kent Denzel, Columbia, MO, for appellant.
    Shaun Mackelprang, Jamie Rasmussen, Co-Counsel, Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., CLIFFORD H. AHRENS, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Orlan Helt (“Defendant”) was convicted by a jury of one count of possession of methamphetamine, one count of possession of drug paraphernalia and two counts of possession of a chemical with the intent to create a controlled substance in violation of Section 195.400 et seq. Defendant claims two points on appeal. First, he claims that the trial court plainly erred in failing to sua sponte intervene when the prosecutor improperly cross-examined Defendant. Second, Defendant claims that the trial court erred in overruling his motion for acquittal at the close of all the evidence and in entering a conviction on the jury’s verdict of guilty of possession of lithium because the evidence was insufficient to prove beyond a reasonable doubt that lithium is a proscribed substance under Section 195.420.

We have reviewed the briefs of the parties and the record on appeal and find the claim of error to be without merit. No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

We affirm the judgment pursuant to Rule 30.25(b).

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


author: MARY K. HOFF, Judge.

text:
    CORNERSTONE MORTGAGE, INC., Plaintiff/Respondent/Cross-Appellant, v. Kurt W. PONZAR, Defendant/Appellant, and Sandra L. Ponzar, Defendant/Appellant/Cross-Respondent.
    No. ED 93337.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 22, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 3, 2010.
    Application for Transfer Denied Sept. 21, 2010.

      Kurt W. Ponzar, Weldon Spring, acting pro se, Defendant/Appellant.
    Sandra L. Ponzar, Weldon Spring, MO, acting pro se, Defendant/Appellant/Cross-Respondent.
    Polsinellie Shugart, P.C., Ryan J. Mason, St. Louis, MO, attorney for Cornerstone Mortgage, Inc., Resp/Cross-Appellant.
   OPINION

MARY K. HOFF, Judge.

Kurt W. Ponzar (Mr. Ponzar) and Sandra L. Ponzar (Mrs. Ponzar) (collectively the Ponzars) appeal from the judgment entered in favor of Cornerstone Mortgage, Inc. (Cornerstone). The Ponzars raise nine points on appeal. We summarily deny these points finding that an opinion reciting the detailed facts and restating the principles of law would have no prece-dential value. Rule 84.16(b). The parties have been provided with a memorandum, for their information, setting forth the reasons for this decision. On cross-appeal, Cornerstone argues the trial court erred in failing to enter judgment against Mrs. Ponzar based on the verdict against her on unjust enrichment. • We agree with Cornerstone and set out our reasons in this separate, published opinion.

Factual and Procedural History

This case involves a mortgage-refinance transaction between Cornerstone and the Ponzars. On July 24, 2006, Cornerstone filed a four-count petition against the Pon-zars alleging declaratory judgment (Count I); unjust enrichment (Count II); imposition of an equitable lien (Count III) and; judicial foreclosure (Count IV).

On December 21, 2006, the trial court entered summary judgment in favor of Cornerstone and against the Ponzars. On January 8, 2007, the Ponzars filed a document entitled “Motion for Leave to File Ommitted (sic) Counterclaim.”

On January 18, 2007, the trial court entered an amended summary judgment in favor of Cornerstone and against the Pon-zars for $491,894.96, among other damages. The amended summary judgment also granted Cornerstone a lien on the property and provided that Cornerstone could have execution on that lien within thirty days. In its findings of fact and conclusions of law, entered on March 2, 2007, in support of its amended summary judgment, the trial court also denied the Ponzars leave to file their counterclaims, which were first raised after the entry of summary judgment. Following the denial of their motion for new trial, the Ponzars filed their first notice of appeal on March 14, 2007.

On May 27, 2008, this court entered Cornerstone I, which found that Mrs. Pon-zar was not liable for damages under the Note, the Ponzars were not liable for interest under TILA, the Ponzars were not liable for attorneys’ fees under TILA, the trial court was correct in denying the Pon-zars leave to assert their counterclaims, and the Ponzars’ offer to obtain a new loan from Cornerstone did not constitute a valid tender under TILA. Cornerstone Mortg., Inc., 254 S.W.3d 221, 225-33 (Mo.App. E.D.2008). The court in Cornerstone I also “determined that the Ponzars had met the conditions for rescission,” it “remanded [the case] to the trial court to enforce the Ponzars’ obligation to tender pursuant to Section 1635(b),” and “[i]n all other respects, the judgment [was] affirmed.” Id. at 234.

On July 2, 2008, Cornerstone filed its motion and application for enforcement of judgment and writ of execution to encourage the trial court to comply with the rulings of Cornerstone I. The Ponzars filed their suggestions in opposition to Cornerstone’s motion and, subsequently, the case, upon Mr. Ponzar’s request, proceeded to a jury trial. The jury returned a unanimous verdict in favor of Cornerstone and against the Ponzars.

On June 11, 2009, the trial court entered its judgment as follows: as to Count I, in favor of Cornerstone and against Mr. Pon-zar in the amount of $491,894.96, as well as a lien in favor of Cornerstone on both Mr. Ponzar’s interest and Mrs. Ponzar’s interest in the property; as to Count II, in favor of Cornerstone and against Mr. Pon-zar in the amount of $491,894.96; and, as to Count III, a lien in favor of Cornerstone on Mr. Ponzar’s interest in the property.

Following the denial of after-trial motions, the Ponzars filed their notice of appeal on July 17, 2009. On July 22, 2009, Cornerstone filed its notice of appeal. On July 31, 2009, the two appeals were consolidated. The Ponzars did not post an appeal bond staying execution during the pendency of appeal.

Meanwhile, Cornerstone filed an execution and the sheriff immediately levied on the property and began advertising a sheriffs sale. The Ponzars filed a petition for writ of prohibition to stop the sheriffs sale. On August 6, 2009, a preliminary writ of prohibition was entered precluding Cornerstone from taking any further action in this matter until further order. On August 7, 2009, the Sheriff of St. Charles County was ordered to refrain from all action with regard to this case. On September 21, 2009, this court consolidated the petition for writ of prohibition into this appeal.

Standard of Review

The standard of review of a judge-tried case is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Missouri Land Dev. Specialties, LLC v. Concord Excavating Co., L.L.C., 269 S.W.3d 489, 496 (Mo.App. E.D.2008). We will affirm the trial court’s judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. In reviewing the sufficiency of the evidence to support the judgment, we view the evidence in the light most favorable to the judgment disregarding all evidence and inferences to the contrary. Id. We defer to the trial court’s findings of facts because of its superior ability to assess the credibility of witnesses. Id. We review questions of law de novo. Id.

Cross-Appeal: Unjust Enrichment Against Mrs. Ponzar

On cross-appeal, Cornerstone argues the trial court erred in failing to enter judgment on the verdict against Mrs. Ponzar on Count II for unjust enrichment and in denying Cornerstone’s motion to vacate, reopen, correct, amend, or modify, the judgment on Count II because the count was properly before the trial court and because the jury’s verdict was based on substantial evidence. We agree.

Prior to trial, the trial court requested that the parties brief the issue of which counts remained to be tried after the remand from Cornerstone I. After reviewing the briefs of the parties, the trial court issued its pre-trial order indicating that “Counts I & II remain as to both defendants.” The trial court allowed Cornerstone’s Count II for unjust enrichment to be tried by the jury as to both Mr. Ponzar and Mrs. Ponzar.

After deliberating for less than an hour, the jury reached a unanimous verdict against both of the Ponzars in the amount of $491,894.96. However, the trial court entered its judgment on Count II against only Mr. Ponzar. The court declined to enter a judgment on the verdict against Mrs. Ponzar stating, “upon further consideration the Court finds that a money judgment against [Mrs. Ponzar] would be inconsistent with [Cornerstone I ].”

Cornerstone’s point on appeal involves the doctrine of “law of the case” and how it was applied by the trial court with respect to the verdict against Mrs. Ponzar on Count II.

The doctrine of law of the case provides that a previous holding in a case constitutes the law of the case and precludes relitigation of the issue on remand and subsequent appeal. Walton, 223 S.W.3d at 128-29. The doctrine governs successive adjudications involving the same issues and facts. Id. at 129. Generally, the decision of a court is the law of the case for all points presented and decided, as well as for matters that arose prior to the first adjudication and might have been raised but were not. Id. The doctrine insures uniformity of decisions, protects the parties’ expectations, and promotes judicial economy. Id.

Here, a judgment on Count II is consistent with Cornerstone I because Mrs. Pon-zar’s liability would not be liability on the Note; rather, it would result from the unjust enrichment action because Mrs. Ponzar knowingly, willingly and unjustly realized a substantial benefit when Cornerstone paid off the Countrywide Loan on which she was an obligor. Accordingly, the trial court erred in denying Cornerstone’s motion to vacate, reopen, correct, amend, or modify the judgment on Count II and in failing to enter a judgment on the verdict against Mrs. Ponzar. Point granted.

Conclusion

Since no issues on appeal were raised regarding the consolidated writ of prohibition, the preliminary order of prohibition is hereby quashed. Pursuant to Rule 84.14, we modify the judgment of $491,894.96 to be entered against Mr. and Mrs. Ponzar jointly and severally. The trial court’s judgment is affirmed in all other respects.

GLENN A. NORTON, Presiding Judge and LAWRENCE E. MOONEY, Judge, Concur.

      . Count IV for judicial foreclosure was abandoned by Cornerstone prior to trial and was dismissed by the trial court.

      . Despite the Ponzars' argument to the contrary, we note that because Count II was not previously appealed, it was never before this court or ruled on by this court and, thus, remained before the trial court.


text:
    STATE of Missouri, Respondent, v. David STUERMAN, Appellant.
    No. ED 93209.
    Missouri Court of Appeals, Eastern District, Division One.
    June 22, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 11, 2010.
    Application for Transfer Denied Sept. 21, 2010.
    Jessica Hathaway, St. Louis, MO, for appellant.
    Chris Koster, Daniel N. McPherson, Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., CLIFFORD H. AHRENS, J., and NANNETTE A. BAKER, J.
   PER CURIAM.

David Stuerman (Defendant) appeals the trial court’s judgment and sentence after a jury convicted him of first-degree statutory rape, three counts of first-degree statutory sodomy, three counts of child molestation, and two counts of incest. The trial court sentenced Defendant to two life terms in prison plus 30 years, each to run consecutively, and lesser concurrent terms.

Defendant claims that the trial court erred by entering a written sentence that did not conform to the court’s oral pronouncement of sentence. The State agrees that a clerical error resulted in a discrepancy between the oral and written sentence. Specifically, the court stated that Defendant’s 5-year sentence on count III (child molestation) runs concurrent with his sentences of life plus 30 years on counts I and II (statutory rape and sodomy). However, the written judgment contains an internal inconsistency. Though the entry for count III correctly indicates concurrence, the entries for counts I and II incorrectly state that they run consecutive to count III. Point granted.

We have reviewed Defendant’s remaining points on appeal. Because a written opinion would serve no jurisprudential purpose, those points are discussed in an unpublished memorandum, provided only to the parties, and denied pursuant to Rule 30.25(b).

The judgment of conviction is affirmed. We remand for correction of the written sentence pursuant to Rule 29.12(c).


text:
    STATE of Missouri, Respondent, v. Henry B. TATUM, Appellant.
    No. WD 71610.
    Missouri Court of Appeals, Western District.
    June 29, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 31, 2010.
    Henry B. Tatum, Pro Se, Cameron, MO, for appellant.
    Shaun J. Mackelprang, Esq., Jayne T. Woods, Esq., Jefferson City, MO, for respondent.
    Before Division One: KAREN KING MITCHELL, P.J., LISA WHITE HARDWICK and CYNTHIA L. MARTIN, JJ.
   ORDER

PER CURIAM.

Henry Tatum appeals the denial of his post-conviction “Motion to Correct Mistake in Judgment, Sentence and Commitment.” For reasons explained in a Memorandum provided to the parties, we find no error and affirm the judgment denying post-conviction relief.

AFFIRMED. Rule 84.16(b).