author: DON E. BURRELL, Judge.

text:
    Kathleen Marie MARTZ, Petitioner-Appellant, v. Robert Dingel MARTZ, Respondent-Respondent.
    No. SD 29838.
    Missouri Court of Appeals, Southern District, Division One.
    Sept. 3, 2010.
    Motion for Rehearing and Denied Sept. 27, 2010.
    Application for Transfer Denied Nov. 16, 2010.

      William J. Fleischaker, Joplin, MO, for Appellant.
    Walter E. Williams, Joplin, MO, for Respondent.
   DON E. BURRELL, Judge.

Kathleen Marie Martz (“Mother”) timely appeals from the circuit court’s “Order and Judgment Adopting Commissioner’s Findings and Recommendations” entered April 14, 2009, which awarded Mother a monetary judgment against Robert Dingle Martz (“Father”) of $938.25 plus $1,091.75 in attorney fees. The judgment found that additional alleged expenses related to the parties’ son that Mother sought were not shown to be “reasonable” or “envisioned by the separate order in the judgment of dissolution.”

Mother’s sole point on appeal asserts “that the Court’s finding that Mother failed to meet her burden of proof to establish that said expenses were medical expenses because she produced no expert testimony that the expenses were reasonable and necessary erroneously declared the law in that by establishing that the expenses were deductable [sic] under [Internal Revenue Code] Section 213 Mother met her burden of establishing that said expenses were [decretory medical expenses] as contemplated by the judgment of dissolution of marriage.” Finding no such erroneous declaration of the law by the trial court, we affirm its judgment.

Factual and Procedural Background

In this court-tried ease we view the facts in the light most favorable to the judgment. Wightman v. Wightman, 295 S.W.3d 183, 187 (Mo.App. E.D.2009). Our summary of the facts is set forth in accordance with that standard. The parties’ marriage was dissolved on April 12, 2001. The dissolution judgment awarded the parties joint legal and physical custody of their three children. The parties were ordered to share equally all decretory medical expenses. Mother testified that in 2004, their youngest child (“Son”) began experimenting with drugs, exhibited behavioral problems, became violent, had an encounter with the police, and was involved in two car accidents. Mother took Son to two local facilities for drug-abuse treatment, but Son did not participate.

Father had stopped exercising his weekend visits with Son and was out of the country when Mother decided to send Son out-of-state for treatment at Northwest Academy in Idaho. Mother testified that she had had difficulty in reaching Father and neither sought his input nor informed him of her decision to do so. Mother testified that she relied on a local facility’s recommendation that Son needed inpatient medical treatment when she decided to contact Northwest Academy, but no documentation of that recommendation was offered into evidence.

In August 2004, Son was taken against his wishes to Idaho to participate in a month-long wilderness program called “Ascent,” followed by an additional program for troubled teens at Northwest Academy’s campus. Mother traveled from Missouri to Idaho on four separate occasions to visit Son and participate in his treatment. Father also went to Idaho to visit Son on one occasion. Mother testified that when Son returned home to Missouri in March 2005, he was much better and went on to graduate from high school.

The evidence presented at trial consisted of Mother’s testimony and testimony from her accountant. Father’s attorney cross-examined Mother and the accountant, but Father did not attend the trial and no witnesses were presented on his behalf. Exhibits introduced into evidence by Mother included her tax returns and various spreadsheets containing amounts Mother said represented expenses she incurred in connection with Son’s time in Idaho, including payments made to Ascent, Northwest Academy, and the service that transported Son to Idaho. No original receipts or bills for any of these claimed expenses were offered at trial.

Exhibit 1 listed expenses totaling $1,876.50. Mother testified that she paid these amounts in 2004 and 2005 on medical bills for Son that were not associated with Ascent or Northwest Academy. Exhibit 2 listed two 2004 payments and two 2005 payments to Northwest Academy, and one payment each to Ascent and “CEDU Education(escorts) [sic]” in 2004. These payments totaled $57,613.30. Exhibit 3 listed expenses totaling $2,539.27 that Mother said were for Son’s clothing and supplies while attending the programs in Idaho. This exhibit listed payments for clothing and supplies by payee, such as “Express” and “Wal-Mart,” but did not indicate the items actually purchased.

Exhibit 4 showed a total of $5,028.85 in expenses Mother said she and other family members incurred in visiting Son in Idaho. This exhibit listed the travel expenses by payee, but did not associate the expenses with any particular person or persons. Exhibits 6 and 7 were Mother’s tax returns for the years 2004 and 2005. Exhibit 8 was a summary exhibit representing 50% of the expenses listed in exhibits 1 through 4 (plus an additional travel expense) and interest on those amounts calculated at 9% per year. It also included a request for attorney fees of $1,091.75. The total amount Mother asked the trial court to order Father to pay, as reflected in Exhibit 8, was $46,022.31.

Mother’s accountant testified that he relied on a packet of information from Northwest Academy indicating that the expenses associated with the school were tax deductible as “medical expenses related to mental, physical, as well as emotional expenses” under “IRS Code, Section 213[.]” That packet was not introduced as evidence. Mother claimed all of the expenses set forth in her exhibits as medical expenses on her taxes, and as a result, achieved some tax savings. Mother claimed Father should share these expenses equally as they all constituted de-cretory medical expenses. After the attorneys presented closing arguments, the commissioner asked counsel to provide him with relevant case law and took the matter under submission.

Just over a month later, the court issued its judgment. The commissioner’s written findings (adopted by the court) were that “[t]he credible evidence does not allow the Court to make the findings that the expenses claimed in Exhibits 2 [payments to Ascent, Northwest Academy and the transportation service], 3 [clothing and supplies] and 4 [travel expenses for Mother and other family members] were reasonable or were expenses envisioned by the separate order in the judgment of dissolution.” Additional findings in the judgment were:

The record is absent of any materials from Northwest Academy including course of treatment, goals of treatment, admission records, discharge records, nursing notes, doctor’s notes or narratives from any mental health professionals-materials which might have helped the Court in its determination of reasonableness. Lastly, there was no expert testimony from a professional in the field of drug treatment that might have been able to shed light on this child’s needs and what treatment or programs were available to address those needs. The Court is unable to conclude what part of the amount claimed was related to psychological or psychiatric care for [Son]. The Court is unable to conclude the amount claimed for “[Son’s] School Expenses” is reasonable.

As to the expenses set forth in Exhibit 1, the trial court found that they did “appear to be the types of services envisioned by the Judgment of Dissolution, page 12, requiring each party to pay 50% of all medical, psychiatric, psychological optometrist, dental and orthodontic bills incurred by children!,]” and Father was ordered to pay $938.25 — half of the expenses set forth in Exhibit 1. The trial court also ordered Father to pay $1,091.75 in legal fees Mother had incurred in prosecuting her amended motion to modify. All other relief Mother requested was denied.

Analysis

‘We will not disturb an order modifying a child support obligation 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.” Wightman, 295 S.W.3d at 189 (internal citations omitted). In her point relied on, Mother asserts that the trial court “erroneously declared the law” in “finding that Mother failed to meet her burden of proof ... because she produced no expert testimony that the expenses were reasonable and necessary....” Father counters that the judgment should not be set aside unless it is against the weight of the evidence. Schriner v. Edwards, 69 S.W.3d 89, 92 (Mo.App. W.D.2002). He rightly points out that the trial court is entitled to deference in its determination of witness credibility and “that the [trial] court is free to accept or reject all, part or none of the testimony presented.” Christian Health Care of Springfield West Park, Inc. v. Little, 145 S.W.3d 44, 48 (Mo.App. S.D.2004).

When the trial court’s judgment is viewed in its entirety, we believe it is clear that Mother is misinterpreting the trial court’s references to the fact that she presented no expert testimony that the expenses set forth in her spreadsheets were “reasonable and necessary.” If Mother’s interpretation of the trial court’s basis for its decision were correct, the result would have been a finding that she failed as a matter of law to meet her burden of producing competent evidence. What we have instead is a judgment that indicates the court considered Mother’s evidence and simply found it insufficiently persuasive.

In the absence of a specific statute or rule that provides otherwise, “[t]he party asserting the positive of a proposition bears the burden of proving that proposition.” Dycus v. Cross, 869 S.W.2d 745, 749 (Mo. banc 1994); see also Crews v. Crews, 949 S.W.2d 659, 668 (Mo.App. W.D.1997). Mother has not pointed us to any authority that would exempt her from her obligation to persuade the trial court that Father should be ordered under the terms of the dissolution decree to reimburse her for half of all of the expenditures she said were necessary to treat Son’s drug addiction.

“[W]here a party has the burden of proof on an issue and where the evidence presented thereon is not conclusive, a judgment in favor of the opposing party requires no evidentiary support because the trier of fact may disbelieve the proponent’s uncontradicted or uncontroverted evidence.” Stiff v. Stiff 989 S.W.2d 623, 628 (Mo.App. S.D.1999) (citing Bakelite Co. v. Miller, 372 S.W.2d 867, 871 (Mo. banc 1963)). Mother has not cited any authority that would remove her from the application of this general rule. Nor has she cited any authority that would prevent Father from falling under the general rule that “the party not having the burden of proof on an issue need not offer any evidence concerning it.” Brown v. Mustion, 884 S.W.2d 365, 369 (Mo.App. S.D.1994).

A party’s own testimony is sufficient to sustain an award on matters like child support and past necessary expenses — no expert testimony is required. DeCapo v. DeCapo, 915 S.W.2d 343, 350 (Mo.App. W.D.1996). But simply producing evidence that, if believed, would be sufficient to support an award is not the same thing as convincing the fact-finder that the proposition is more likely true than not true. Even though testimony unsupported by documentation is admissible, it may not be persuasive. “The trial court may, at its option, accept or reject such evidence.” Blair v. Blair, 571 S.W.2d 480, 482 (Mo.App.St.L.D.1978). The trial court is in a superior position to assess credibility, Mayben v. Garren, 286 S.W.3d 854, 858 (Mo.App. S.D.2009), and may accept or reject all, part, or none of a witness’s testimony. Crews, 949 S.W.2d at 665.

Mother argues that because her accountant testified that the expenses shown in Exhibits 1-4 were deductible as medical expenses for federal income tax purposes, the trial court erred in not finding that the expenses should be shared by Father. In Lay v. Lay, 912 S.W.2d 466, 470 (Mo. banc 1995), our Supreme Court held “that the term ‘medical expenses’ provides limiting criteria sufficient for the trial court to determine the parties’ obligations, such that [a provision for “medical expenses” in] the decree is valid and enforceable.” In doing so, it also stated “that everyday usage of the term, supplemented by the Internal Revenue Code’s definitions, will sufficiently guide parties on this issue in the future[ ]” and that “parties are free to define further their medical expense provisions in order to fit more precisely their situations.” Id. Thus, under Lay, federal tax definitions may guide, but do not exclusively control, the definition of “medical expenses” in the family law context.

In the case at bar, the trial court noted that no expert testimony was offered concerning Son’s needs and treatment options or comparing the Idaho program to others that might have been more economical. The judgment also stated that the evidence offered by Mother did not indicate what expenditures were for education and room and board as opposed to drug treatment. These statements are not the equivalent of a pronouncement by the trial court that Mother could not prevail without such expert testimony; rather, the trial court found that it was not persuaded by the evidence Mother had produced and discussed likely sources of evidence, including experts, admission records, narratives from mental health professionals, and other supporting documentation that “might have helped the Court in its determination of reasonableness.” (Emphasis added). We believe the judgment indicates that the testimony given by Mother and her accountant simply did not convince the trial court that the expenses set forth in exhibits 2 through 4 were “medical expenses as envisioned by Lay, supra, and they are not expenses listed in [the dissolution] judgment.”

Mother argues that the trial court erroneously required proof that the expenses were “reasonable and necessary” and cites Krane v. Krane, 912 S.W.2d 473 (Mo. banc 1995). Krane was published immediately after Lay and similarly focused on the enforcement of various expenses described in a modification agreement. Krane held that the medical expenses provision in a particular modification agreement was not unclear and could be enforced. 912 S.W.2d at 475-76. The court stated that the mother “adduced sufficient, uncontro-verted evidence relating to medical expenses ...” and noted that “in order to make the medical expense provision certain, [the mother] needed only to adduce evidence regarding the specific amount of the bills [the father] had not paid, which was, in fact, what [the mother] did.” Id. at 475 & 475 n. 1. But Krane also held that while the father’s obligation to pay summer camp expenses was enforceable, if the mother selected an expensive or distant new camp, the court could fashion relief by considering what the former camp cost and “give father relief from any excess.” Id. at 476. Neither Lay nor Krane support Mother’s argument that deductibility under the Internal Revenue Code is conclusive proof that such expenditures are reimbursable medical expenses under a particular dissolution decree and deprives a trial court of the ability to give that evidence the weight it believes appropriate.

Mother argues that “[t]his is not a personal injury case where a party is normally required to present expert evidence as to whether or not medical expenses were necessary and reasonable.” But the very case Mother relies on uses the phrase “reasonable and necessary” when it states, “This Court would construe the term ‘medical expenses’ to carry with it the implied qualification that the term covers only that conduct that is reasonable and necessary to diagnose, treat, or prevent any ailment or disease that affects the body or a function of the body.” Lay, 912 S.W.2d at 470 (emphasis added). Krane also quotes this passage from Lay when it discusses the fact that the term “medical expenses” is not too ambiguous or uncertain to be enforceable. 912 S.W.2d at 475.

In discussing the evidence presented in the instant case, the trial court asked itself the following question: “are the charges the mother seeks reimbursement for reasonable and necessary?” It then discussed payments to the schools, stating: “There was no supporting documentation introduced to show what the expenditures were for and what the cost of treatment was versus the cost of education, room, board, meals and books. In fact, there is no reference to psychiatric or psychological treatment at all.” The court then discussed payments for clothing and supplies to attend the programs, along with travel expenses, stating:

No supporting documentation was submitted other than the [Mother’s] testimony and her demonstrative evidence represented by Exhibit 3_ No supporting documentation was submitted other than the [Mother’s] testimony and her demonstrative evidence represented by Exhibit 4. No authority has been cited that these are medical expenses as envisioned by Lay, supra, and they are not expenses listed in [the dissolution judgment].

Although the trial court also used the term “necessary” in its judgment when discussing the legal issues it was called upon to resolve, it did not base its decision on any finding that Mother had failed to prove that the charges were for medically necessary treatment. Its conclusion was that Mother had failed to persuade it that the expenses contained in exhibits 2, 3, and 4 “were reasonable or were expenses envisioned by the separate order in the judgment of dissolution.” As a result, we do not have to determine whether Lay established any burden to prove medical necessity by expert testimony.

Mother also asserts that Father did not file an answer to Mother’s motion to modify, and “[i]n the absence of any responsive pleading or evidence from [Father,] Mother believes that [the court] should accept as fact that because the itemized expenses were legitimate medical expenses under the Internal Revenue Code Section 213 that her evidence is therefore sufficient to meet her burden to establish that [Father] is liable for one half of these expenses.” This argument fails because there is no duty to file a responsive pleading when a motion to modify is filed. See In re Aired, 291 S.W.3d 328, 331 (Mo.App. S.D.2009). And while Father did not put on his own evidence, his attorney did challenge Mother’s proof by the cross-examination of her witnesses.

The programs Son attended in Idaho may very well have been good for him; nothing in the trial court’s judgment suggests they were not. But the trial court did not have to accept the unsupported testimony of Mother and her accountant as proof that the expenses she sought reimbursement for were all reimbursable de-cretory medical expenses. See Blair, 571 S.W.2d at 482. Further, even if the court believed that Mother had relied on a recommendation that Son receive inpatient treatment, it did not have to conclude that every expense incurred at Northwest Academy was thereby reasonable.

As the party asserting the proposition, it was up to Mother to prove to the trial court by a preponderance of the evidence her claim that each of the expenses she listed in her exhibits constituted reimbursable decretory medical expenses. When she decided to present her proof in the form of lump sums unsupported by any documentation and did not itemize the expenses she claimed in a manner that would allow the court to easily identify and weed-out any non-qualifying ones, she bore the risk that her proof would, in like manner, be wholly rejected. We should also point out that the court was free to reject the accountant’s testimony that all of the expenses Mother was claiming were deductible under federal tax rules based upon an undisclosed packet of information he had received from Northwest Academy.

The trial court did not rule that Mother’s claim failed as a matter of law because she did not produce an expert to testify that the expenses she asked the court to order Father to pay were both reasonable and medically necessary. Mother’s point is denied; and the court’s judgment is affirmed.

BARNEY, J., and BATES, P.J., concur.

      . Although the pleading that began the process that resulted in this judgment was Mother’s amended motion to modify the parties' dissolution decree, the parties eventually stipulated that their son had become emancipated, and the only issue actually litigated was Mother's motion to enforce a portion of the dissolution decree that ordered Father to reimburse Mother for one-half of their children's medical expenses.

      . The "separate order in the judgment of dissolution” directed the parties to share equally "all medical, psychiatric, psychological, optometrist, dental and orthodontic bills incurred by children” (hereafter referred to as "decretory medical expenses”). During trial, the claimed expenses were generally referred to as "medical expenses,” although the trial court addressed the need to "unravel” what was education, psychiatric, and psychological expenses. In her amended motion to modify, Mother sought both medical and educational expenses. At trial, Mother sought only medical expenses, arguing that the education, room, board, and other expenses she sought were included as medical expenses. In her proposed findings of fact and conclusions of law, Mother characterized the claim as expenses for "medical, psychiatric, psychological, optometrist, dental or orthodontic bills incurred by one of the parties' minor children which are not covered by insurance.” The trial court concluded that the claim was to enforce the clause in the dissolution decree directing the parties "to pay 50% of all medical, psychiatric, psychological, optometrist, dental and orthodontic bills incurred by children.”

      . The trial court’s findings on this matter were that "[Mother] acknowledged she did not notify [Father] or his attorney in advance of [Son]'s placement at Northwest Academy. She did not seek court permission in advance of the placement.” While the court acknowledged Mother’s "testimony [that] she sent [Father] an e-mail to give him a head start on the — or a heads up on the school,” it noted that "she doesn’t have the e-mail.” After Son was taken to Idaho, Mother did obtain a temporary order that prohibited Father from removing Son from Northwest Academy.


source: Caselaw Access Project

author: KATHIANNE KNAUP CRANE, Judge.

license: Public Domain

text:
    Randall Craig SWOFFORD, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 93661.
    Missouri Court of Appeals, Eastern District, Division Two.
    Sept. 7, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 13, 2010.
    Application for Transfer Denied Nov. 16, 2010.

      Maleaner Harvey, Assistant Public Defender, St. Louis, MO, for appellant.
    Chris Koster, Mary H. Moore, Attorney General, Jefferson City, MO, for respondent.
   KATHIANNE KNAUP CRANE, Judge.

Movant, Randall Craig Swofford, appeals from a judgment denying on the merits his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. We vacate the judgment and remand the cause with directions to dismiss the motion because movant failed to timely file his pro se motion as required by Rule 29.15(b).

A jury found movant guilty of four counts of criminal nonsupport, in violation of section 568.040 RSMo (2000), arising out of his failure to provide support to his two minor children. The trial court sentenced movant to four days in jail on one conviction and fined him $2,500 on each of the three other convictions. We affirmed movant’s convictions and sentences on direct appeal. State v. Swofford, 263 S.W.3d 810 (Mo.App.2008). We issued our mandate on October 16, 2008.

Ninety-two days later, on January 16, 2009, movant filed a pro se motion to vacate, set aside, or correct the judgment or sentence. Appointed counsel subsequently filed an amended motion and request for evidentiary hearing, alleging ineffective assistance of trial counsel. The motion court denied movant’s request for an evidentiary hearing and entered a judgment denying the motion on the merits.

Rule 29.15(b) provides that if an appeal of the judgment or sentence sought to be vacated, set aside, or corrected was taken, the motion for post-conviction relief must be filed “within 90 days after the date the mandate of the appellate court is issued affirming such judgment or sentence.” The time limits of Rule 29.15 are valid and mandatory. Day v. State, 770 S.W.2d 692, 695 (Mo. banc 1989); see also Bullard v. State, 853 S.W.2d 921, 923 (Mo. banc 1993). Courts are without authority to extend time limits beyond those set forth in the rule. State v. Brooks, 960 S.W.2d 479, 499 (Mo. banc 1997). A court may not consider a Rule 29.15 motion filed more than ninety days after the appellate court issues its mandate because to do so conflicts with the express limits provided for the remedy under Rule 29.15. Belfield v. State, 307 S.W.3d 680, 682 (Mo.App.2010).

A movant’s failure to file a motion within the time provided by Rule 29.15(b) constitutes a complete waiver of any right to proceed under Rule 29.15. Rule 29.15(b); Malone v. State, 798 S.W.2d 149, 151 (Mo. banc 1990). When a motion is filed outside the time limits, the motion court has no option but to dismiss it. Gehrke v. State, 280 S.W.3d 54, 57 (Mo. banc 2009). Further, an untimely pro se motion for post-conviction relief is a fatal defect that cannot be cured by filing a timely amended motion. Matchett v. State, 119 S.W.3d 558, 559 (Mo.App.2003); Shields v. State, 87 S.W.3d 355, 357 (Mo.App.2002).

Movant did not file his pro se motion for post-conviction relief until ninety-two days after the mandate, and he concedes that his motion was untimely. However, he argues that the untimeliness of his pro se motion was waived because the motion court reviewed his claims on the merits and the state did not raise untimeliness in the motion court. Movant recognizes that courts have allowed untimeliness to be raised for the first time on appeal, but he argues that the rationale for those holdings, which, he argues, is that the time constraints are jurisdictional and jurisdictional questions can be raised at any time, is no longer valid after J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009). Movant argues that after Webb, untimeliness does not deprive the court of jurisdiction, citing Andrews v. State, 282 S.W.3d 372, 375 n. 3 (Mo.App.2009). See also Belfield, 307 S.W.3d at 682 n. 3. Mov-ant concludes that if untimeliness does not create a jurisdictional issue, then the rationale for allowing the untimeliness of a motion to be addressed for the first time on appeal is no longer valid.

We disagree with movant’s argument because the “lack of jurisdiction” rationale is not the exclusive reason an appellate court may consider and act on a previously unraised claim of failure to timely file a motion for post-conviction relief. A more fundamental reason for this ability to act is that an appellate court has the power and duty to enforce Missouri Supreme Court rules. Pursuant to this power, we are authorized to consider and act on the untimeliness of a post-conviction motion whether or not the state raised the issue in the motion court or on appeal because the state cannot, by failing to object, waive a movant’s noncompliance with the time constraints of the post-conviction relief rules. Likewise, the issue is not waived by the motion court’s consideration of the motion on the merits.

The Missouri Supreme Court “ ‘has the power to make procedural rules governing all legal matters subject only to the limitations of federal law and the Missouri Constitution.’ ” State v. Reese, 920 S.W.2d 94, 95 (Mo. banc 1996) (quoting Berdella v. Pender, 821 S.W.2d 846, 850 (Mo. banc 1991)). The Constitution grants the court the power to “establish rules relating to practice, procedure and pleading for all courts ... which shall have the force and effect of law.” Mo. Const., art. V, § 5; see Reese, 920 S.W.2d at 95. “The rules of civil procedure are ‘rules of practice and procedure to promote the orderly administration of justice.’ ” Sitelines, L.L.C. v. Pentstar Corp., 213 S.W.3d 703, 707 (Mo.App.2007) (quoting Mello v. Williams, 73 S.W.3d 681, 685 (Mo.App.2002)). Court rules serve the purpose of implementing a remedy for a violation of a right and to “provide a pattern of regularity of procedure within the court, to facilitate the effective flow of information, and to enable the court to rule on the merits of the case, in a speedy and inexpensive manner.” 21 C.J.S. Courts § 179 (2006) (footnotes omitted). “When properly adopted, the rules of court are binding on courts, litigants, and counsel, and it is the court’s duty to enforce them.” Sitelines, 213 S.W.3d at 707 (citing Bank v. Pfeil, 537 S.W.2d 680, 681 (Mo.App.1976)).

We can take action to enforce a Missouri Supreme Court rule even if no party objects, because parties cannot waive compliance with court rules. A century ago, the Missouri Supreme Court explained:

If counsel by expressed agreement, or even a tacit agreement, can obviate our rules, the efficacy thereof would be destroyed. It is not within the power of counsel by agreement, either expressed or implied, to obviate the provisions of the rules of this court. Those rules were established with the purpose of facilitating the business of the court, and to permit counsel to obviate the effect thereof by either a tacit or expressed agreement would leave the court powerless.

Hays v. Foos, 223 Mo. 421, 122 S.W. 1038, 1038 (1909). In Miller v. Ernst & Young, 892 S.W.2d 387, 389 (Mo.App.1995), an appeal from summary judgment, the appellant attacked the failure of the motion to comply with Rule 74.04, but then sought to abandon that point in order to obtain a ruling on the substantive issues. We refused that request, and held: “Because the purpose underlying the requirements of the [Summary Judgment] Rule is directed toward benefiting trial and appellate courts to expedite the disposition of cases, noncompliance with these requirements is not a matter subject to waiver by a party.” Miller, 892 S.W.2d at 389.

Without explicitly referring to our authority to enforce supreme court rules, we have used that authority to enforce the waiver language of Rules 24.035 and 29.15 and order a post-conviction motion dismissed for untimeliness even though the issue was not raised or addressed in the motion court, and we have done so without relying on a “lack of jurisdiction” rationale. See Butler v. State, 841 S.W.2d 192, 193 (Mo.App.1992); Murphy v. State, 796 S.W.2d 673, 674 (Mo.App.1990); Suman v. State, 783 S.W.2d 525, 526 (Mo.App.1990); see also Washington v. State, 972 S.W.2d 347, 348 (Mo.App.1998); State v. Bradshaw, 867 S.W.2d 309, 311 (Mo.App.1993). These cases reason that by failing to timely comply with the post-conviction rule, the movant waived his or her right to proceed as set out in the rule; because of the waiver, the motion court improvidently entertained the merits of the motion when it should have been dismissed; and therefore, the appellate court was required to vacate and remand the motion for dismissal. In Butler, we held that it is of “no consequence” that the state did not request and the court did not grant dismissal on the ground that the motion was not timely filed. 841 S.W.2d at 193. Further, Murphy and Suman both explicitly rejected the argument that the state’s failure to object to the untimeliness of the motion in the motion court waived the noncompliance. Murphy, 796 S.W.2d at 674; Suman, 783 S.W.2d at 525-26.

The valid and mandatory time limits in Rules 24.035 and 29.15 “serve the legitimate end of avoiding delay in the processing of prisoners[’] claims and prevent the litigation of stale claims.” Day, 770 S.W.2d at 695. In this case, movant waived his right to proceed with his post-conviction motion because he did not timely file his pro se motion. See Rule 29.15(b). The state could not waive mov-ant’s noncompliance by failing to object in the motion court. We have the authority to enforce the valid and mandatory time limits in Rule 29.15 by vacating the judgment and ordering the motion dismissed.

Conclusion

The judgment is vacated and the cause is remanded with directions to dismiss movant’s Rule 29.15 motion.

GLENN A. NORTON, P.J. and GEORGE W. DRAPER III, J., concur.

      . See, e.g., State v. Myers, 997 S.W.2d 26, 36 (Mo.App.1999); Lawrence v. State, 980 S.W.2d 135, 135 (Mo.App.1998); Marschke v. State, 946 S.W.2d 10, 11-12 (Mo.App.1997).


author: PER CURIAM.

text:
    CITY OF DARDENNE PRAIRIE, Plaintiff/Respondent, v. CORA BOPP LIMITED PARTNERSHIP et al., Defendants/Appellants.
    No. ED 93590.
    Missouri Court of Appeals, Eastern District, Division Five.
    Sept. 7, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 13, 2010.
    Application for Transfer Denied Nov. 16, 2010.
    Patricia Harrison, Kevin M. O’Keefe, Stephanie E. Karr, Co-Counsel, Clayton, MO, for Appellant.
    David Taylor Hamilton, Nicholas Komo-roski, Hazelwood & Weber, St. Charles, MO, for Respondent.
    Before GARY M. GAERTNER, JR., P.J., MARY K. HOFF, J. and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

The City of O’Fallon appeals from the trial court’s judgment entered upon a consent judgment between the City of Dard-enne Prairie and the Cora Bopp Limited Partnership (the Partnership) involving the determination of competing annexation claims over property owned by the Partnership.

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. An extended opinion would have no precedential value or serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order pursuant to Rule 84.16(b).


author: NANCY STEFFEN RAHMEYER, Presiding Judge. DANIEL E. SCOTT, Chief Judge,

text:
    STATE of Missouri, Plaintiff-Respondent, v. Ben C. SITTON, Jr., Defendant-Appellant.
    No. SD 30237.
    Missouri Court of Appeals, Southern District, Division Two.
    Sept. 13, 2010.
    Motion for Rehearing or Transfer Denied Oct. 6, 2010.
    Application for Transfer Denied Nov. 16, 2010.

      Nancy A. McKerrow, Columbia, for Appellant.
    Chris Koster, Atty. General, Terrence M. Messonnier, Jefferson City, for Respondent.
   NANCY STEFFEN RAHMEYER, Presiding Judge.

Ben C. Sitton, Jr. (“Appellant”) was charged with and, following a bench trial, convicted of resisting or interfering with arrest in violation of section 575.150. The charges stemmed from a chase by the police when Appellant was on a dirt bike. Appellant brings two points on appeal: (1) he claims prejudice when the trial court amended the Information after the trial but before the court entered judgment, and (2) he claims there is insufficient evidence to support the finding that his actions created a substantial risk of serious physical injury to any person. We find no error and affirm the judgment of the trial court.

In reviewing a claim of insufficient evidence, we consider the record in the light most favorable to the judgment, taking as true the evidence and all logical inferences that support a finding of guilt, and ignoring the evidence and inferences that do not support a finding of guilt. State v. Niederstadt, 66 S.W.3d 12, 14 (Mo. banc 2002). The evidence, viewed in the light most favorable to the judgment, shows that on August 18, 2007, a police officer observed Appellant driving a dirt bike at what he estimated to be forty to forty-five miles per hour in a residential neighborhood. The police officer activated emergency lights and sirens and signaled Appellant to stop the dirt bike, but Appellant did not do so. Instead, Appellant fled, driving “probably above sixty miles an hour” at one point in the residential neighborhood. Along the way, Appellant ran through a stop sign without decelerating his motor and lost control of the dirt bike twice. When Appellant was ejected from the dirt bike the second time he lost control, he narrowly missed, by inches, careening into a street sign, and a utility pole, by three or four feet. The bike was so damaged that it was leaking fluids.

After being thrown off the bike, Appellant fled the officer on foot, running into a female acquaintance’s apartment. The officer followed, with his gun drawn but held low at his side. The acquaintance, a female who was holding a baby, then stood outside the apartment’s entrance and questioned the officer as to why the officer was chasing Appellant, which impeded the officer momentarily. Once the officer gained access to the apartment, Appellant was nowhere to be found as he had escaped out a back door. Appellant was charged by Information with the “felony of resisting arrest” for fleeing in “a manner that created a substantial risk of serious physical injury or death to any persons[.]” Appellant’s identity as the individual who fled from the officer was stipulated to at trial. The officer who arrested Appellant testified at the trial that his initial intent was to stop Appellant to talk to him about speeding in a residential neighborhood.

The parties discussed a possible amendment to the Information in a post-trial discussion. Defense counsel suggested to the court that he expected the prosecution “to actually catch [any defect with the wording of the Information] and correct it. But it is their choice and it was their — you know, the State — that is the State’s burden to get their [I]nformation correct.” The State responded that “it’s well within the Court’s power to amend to the-[Information]-by interlineation to the evidence.” The next mention of any amendment is from the docket sheet where, one week after trial, an entry reads: “The Court grants leave to the State to amend [Ijnformation changing ‘arrest’ to ‘stop’ to conform with the evidence.” Immediately after that entry is: “The court finds defendant guilty of the class D felony of resisting arrest beyond reasonable doubt.”

Appellant concedes that the court amended the Information and, in his first point on appeal, contends the amendment prejudiced him by depriving him of a defense. In Appellant’s view, a defendant could only be found guilty of resisting arrest if he resisted an actual arrest. Because the officer in this case stated he initially intended only to stop Appellant and discuss his driving speed with him, Appellant was not resisting an arrest. Appellant claims the amendment to the Information that changed the word “arrest” to “stop” deprived him of the defense that he was not resisting an arrest.

“The purpose of an information is to inform an accused of the charges against him so that he may prepare an adequate defense and to prevent retrial on the same charges in case of acquittal.” State v. Sanders, 871 S.W.2d 454, 459 (Mo.App. W.D.1993). The State may file an amended charge “at any time before [the] verdict” as long as “[n]o additional or different offense is charged” and the amendment does not prejudice a “defendant’s substantial rights[.]” Rule 23.08. A decision permitting the State to file an amended charging document is reviewed for abuse of discretion. State v. Smith, 242 S.W.3d 735, 742 (Mo.App. S.D.2007). A trial court abuses its discretion when it hands down a ruling so arbitrary and unreasonable that it shocks the sense of justice and indicates a lack of careful consideration.

It is not an abuse of discretion for a trial court to permit an amendment that simply sets forth a different way of committing the same offense. When a statute provides alternative methods for committing the same offense, an amendment that changes the method by which the offense was committed does not charge a different offense. State v. Folson, 197 S.W.3d 658, 661 (MoApp. W.D.2006). The test for prejudice when an amendment is permitted is whether or not a planned defense or defense evidence is still applicable before and after the amendment. State v. McGinness, 215 S.W.3d 322, 324 (Mo.App. E.D.2007).

Section 575.150 creates the “crime of resisting or interfering with arrest, detention, or stop[.]” Section 575.150.1 (emphasis added). The crime of felony “resisting or interfering with arrest” consists of the following elements:

1) a law enforcement officer is making or attempting to make a lawful arrest or stop, 2) the defendant knew or reasonably should have known of the law enforcement officer’s attempt to arrest or stop, 3) the defendant resists arrest by fleeing; 4) the defendant resisted for the purpose of thwarting the law enforcement officer’s attempt to arrest or stop by using or threatening the use of violence or physical force or by fleeing, and 5) the defendant fled in a manner that created a substantial risk of serious physical injury or death to another.

State v. Daws, 311 S.W.3d 806, 808-09 (Mo. banc 2010).

Appellant’s argument that one must be resisting a valid arrest, not merely a citation for a minor traffic violation, to be found guilty of resisting arrest was a valid defense under a previous version of section 575.150. The version of section 575.150 applicable to Appellant’s violation, however, creates multiple ways of committing the same statutory offense. The offense of resisting arrest now includes “resisting a stop” as a method of committing the same offense. Therefore, Appellant was not prejudiced since his defense, that he was not resisting an arrest, is not a defense to the crime section 575.150 creates: resisting or interfering with a lawful arrest or stop. Both Appellant’s defenses and evidence were as available and applicable after the amendment as they were before. Point I is denied.

In Appellant’s second point on appeal, he argues that the trial court erred in finding him guilty of the class D felony of resisting arrest because the State failed to introduce sufficient evidence to support a finding that he put anyone in substantial risk of serious physical injury. The import of such arguments is that if Appellant’s resistance by flight did not create a substantial risk of serious physical injury or death, he would be guilty of only misdemeanor, not felony, resisting or interfering with arrest. Section 575.150.5.

When considering sufficiency of evidence claims, our review is limited to determining whether the evidence is sufficient for a reasonable trier of fact to find each element of the crime beyond a reasonable doubt. Niederstadt, 66 S.W.3d at 14. In a court-tried criminal case, the findings of the court shall have the force and effect of a jury verdict. Rule 27.01(b). We consider the record in the light most favorable to the judgment, taking as true the evidence and all logical inferences that support a finding of guilt, and ignoring the evidence and inferences that do not support a finding of guilt. Niederstadt, 66 S.W.3d at 14. ‘“Where different inferences are reasonably deducible from the facts and circumstances of the case, it is for the triers of fact to determine which inference shall be drawn and [this court] may not cast aside their inferences for another of its own choice.’ ” State v. Simpson, 315 S.W.3d 779, 783 (Mo.App. W.D.2010) (quoting State v. Butler, 24 S.W.3d 21, 27 (Mo.App. W.D.2000)).

“Serious physical injury” is legislatively defined as a “physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body[.]” Section 556.061(28), RSMo Cum.Supp.2006. We disagree that Appellant did not create a substantial risk of serious physical injury to any person. During a hearing on Appellant’s Amended Motion for New Trial, the trial court, in overruling the motion, found that:

[T]here was evidence beyond a reasonable doubt of a serious risk of injury to a person or persons by the defendant’s actions. It was a long, drawn-out chase. Losing control of his motorcycle. Going on to a public street from an alley— blind alley out of control. There were people in the area. Crashing the motorcycle ultimately. Others in the line of an officer’s gun barrel impeding the officer. It was a very dangerous situation.

Under our standard of review we give great deference to the trial court’s findings and disregard any inferences that are contrary to those findings. The trial court found that Appellant’s actions created multiple situations where people were put at substantial risk of serious physical injury. Taking as true all evidence and logical inferences that support the finding of guilt, and ignoring all other evidence and inferences, we cannot say the judgment was based on insufficient evidence. Appellant fled from a police officer first on a dirt bike, then on foot, where he was chased by the officer as he ran into the apartment of an acquaintance who impeded the officer’s progress while holding a baby when the officer’s gun was drawn. The trial court could have found beyond a reasonable doubt that under section 575.150, Appellant’s acts created “a substantial risk of serious physical injury or death to any persons,” including a substantial risk to the police officer, Appellant’s female acquaintance, and the baby she was holding when she impeded the officer’s progress while he had his gun drawn. Point II is denied.

The judgment of the trial court is affirmed.

SCOTT, C.J., concurs in separate opinion.

BATES, J., concurs.

DANIEL E. SCOTT, Chief Judge,

concurring.

I concur, perhaps for a slightly different reason as to Count I. Appellant could not have been prejudiced by an amendment which defense counsel stated at trial that he had expected the State to make.

      . All references to statutes are to RSMo Cum. Supp.2005, and all rule references are to Missouri Court Rules (2010), unless otherwise specified. Amendments to section 575.150 were made in 2009. Appellant violated section 575.150 in 2007, when the 2005 version of section 575.150 was in place. The 2009 version adds provisions relating to the penalties for violating the section that are not applicable in this case.

      . The use of an oral motion to amend is permissible. State v. Armstrong, 968 S.W.2d 154, 157 (Mo.App. S.D.1998).

      . See State v. Wanner, 751 S.W.2d 789, 791 (Mo.App. E.D.1988) (“The officer testified that he initially sought to stop appellant only to warn him about his driving habits. When [the officer] first observed the appellant, he never intended to effectuate an arrest. Therefore, the appellant could not have resisted an arrest when he fled from the officer.”) (emphasis in original); State v. Long, 802 S.W.2d 573, 575-76 (Mo.App. S.D.1991) ("The gravaman of the offense [in section 575.150] is resisting an arrest, not flight from a law enforcement officer. ... [T]he offense of resisting arrest cannot occur unless a law enforcement officer actually contemplates an arrest.”). Both cases were applying the 1979 version of section 575.150.

      . Appellant actually argued at trial that he was only guilty of a misdemeanor because his conduct created no risk of serious physical injury to any person.


author: DANIEL E. SCOTT, Chief Judge.

text:
    Hugh BRYAN, Appellant, v. Joseph PEPPERS, Defendant, and State Farm Mutual Automobile Insurance Company, Respondent.
    No. SD 30068.
    Missouri Court of Appeals, Southern District, Division Two.
    Sept. 28, 2010.
    Motion for Rehearing or Transfer to Supreme Court Denied Oct. 20, 2010.
    Application for Transfer Denied Nov. 16, 2010.

      Steven E. Marsh, Hulston, Jones & Marsh, Springfield, for Appellant.
    Monte P. Clithero, Kevin M. FitzGerald, Taylor, Stafford, Clithero, Fitzgerald & Harris, Springfield, for Respondent.
   DANIEL E. SCOTT, Chief Judge.

This is the second appeal of this case. See Bryan v. Peppers, 175 S.W.3d 714 (Mo.App.2005)(Bryan I), from which we freely borrow without further attribution.

Factual and Procedural Background

On April 13, 1997, Hugh Bryan was driving his truck on Highway 65 south of Branson. The road was straight and flat ■with clear visibility ahead. Bryan brought his truck to a stop because the cars in front of him were not moving. Bryan heard something behind him and looked into his rear-view mirror. He saw Joseph Peppers’ truck, which had a U-Haul trailer attached to it, approaching “too fast and smoke coming out from underneath the tires where they were obviously trying to stop.” Peppers’ truck struck the rear of Bryan’s truck at approximately 8 to 10 miles per hour. Bryan was jolted by the impact, but he did not believe he had been hurt' very badly at that time. Bryan got out of his truck and came back to check on the condition of Peppers and his two children, who were passengers in Peppers’ vehicle. None of them was injured. After Bryan and Peppers talked for a few minutes and exchanged information, they both left the scene of the collision.

Bryan soon began to experience right elbow pain and tingling and numbness in his right hand. A neurosurgeon diagnosed a collision-related spinal cord contusion and recommended neck surgery, which Bryan underwent in June 2000, curing his symptoms. His post-accident medical bills totaled some $33,000.

Bryan sued Peppers and State Farm, which was Bryan’s insurer, asserting a tort claim and a contract claim respectively. In Bryan’s tort claim, he alleged that he sustained personal injuries and property damage when Peppers negligently collided with the rear of Bryan’s truck. In Bryan’s contract claim, he sought to recover uninsured motorist (UM) benefits from State Farm. Bryan alleged that State Farm provided UM coverage because an unknown motorist, meeting the policy’s definition of a “phantom” driver, negligently made a sudden and unexpected stop or turn on Highway 65 and thereby caused or contributed to the collision.

Peppers successfully moved to sever the claim against him for a separate trial, and it was tried first. The jury found for Bryan and awarded him $1,720.32 for personal injuries and $1,250 for property damage. Finding error in the severance/separate trial ruling and in other respects, this court reversed and remanded for a new trial on all issues. Bryan I, 175 S.W.3d at 718-23.

The new trial began on April 13, 2009. State Farm moved for a directed verdict after Bryan’s opening statement. State Farm argued from Wilkerson v. Williams, 141 S.W.3d 530 (Mo.App.2004) and cases cited therein that since Bryan and all drivers ahead of him stopped without mishap, the lead driver’s conduct could not, as a matter of law, have been the proximate cause of Peppers rear-ending Bryan. The court heard argument and took the issue under advisement overnight to review the transcript and cases cited by each party. After further argument the next morning, the court sustained the motion and granted State Farm “a directed verdict on the issue of causation,” and the trial proceeded against Peppers alone. The jury again found for Bryan, this time awarding him $36,000 for personal injuries and $2,000 for property damage. The trial court entered judgment accordingly.

Peppers satisfied the judgment. Bryan acknowledged the satisfaction, and on the following day, filed this appeal of State Farm’s directed verdict.

Claim on Appeal

Bryan’s sole point on appeal challenges the trial court’s ruling that the lead driver’s alleged negligence was not proximately causal as a matter of law since the whole line of vehicles, until Peppers, stopped without collision. Bryan claims the trial court misinterpreted his opening statement about what the lead driver did; improperly construed the opening statement and inferences most favorably to State Farm, rather than to Bryan; and misapplied the law regarding rear-end collision causation and intervening cause. Bryan argues that the trial court erred in basing its proximate cause ruling on this court’s opinion in Wilkerson and cases cited therein, and that a recent Western District case shows that the trial court’s proximate cause decision was wrong.

Standard of Review

When a directed verdict is granted at the close of the plaintiffs opening statement, we review and broadly construe the petition and opening statement to determine if the plaintiff made a submissible case. Intertel, Inc. v. Sedgwick Claims Mgmt. Services, Inc., 204 S.W.3d 183, 199-200 (Mo.App.2006).

Analysis

In directing a verdict for State Farm, the trial court understandably cited Wilkerson (then the most recent appellate decision on this subject) and three Missouri Supreme Court cases considered therein. All four of these cases involved a line-of-cars scenario like this one, in which some or all of the “middle” vehicles stopped without collision. All four cases held that the lead driver’s conduct was too remote to be the proximate cause of a rear-end collision between vehicles at the end of the line. All four cases strongly support the trial court’s ruling.

Bryan’s arguments for reversal hinge primarily on two cases: English v. Empire Dist. Elec. Co., 220 S.W.3d 849 (Mo.App.2007) and Kasper v. Welhoff, 298 S.W.3d 59 (Mo.App.2009). English involved a construction site electrocution, not a car wreck. It is far less relevant, and Bryan’s arguments therefrom are much less persuasive, than his reference to Kasper, which arose from this type of accident and merits closer consideration.

In Kasper, the last driver in a line of five cars rear-ended the fourth car and sued everyone ahead of him for stopping too quickly. The trial court entered summary judgment against him, finding (in part) the first three drivers’ conduct too remote to have proximately caused the plaintiffs injuries. On appeal, the Western District distinguished Wilkerson and its cited cases in favor of Foley v. Hudson, 432 S.W.2d 205 (Mo.1968), and specifically quoted Foley’s, description of the failure of a tractor-trailer, jackknifed on a snowy road at night, to “turn on his lights until the tractor-trailer unit driven by [Driver #2] was within 20 or 30 feet of him.” Kasper, 298 S.W.3d at 66 (quoting Foley, 432 S.W.2d at 208).

If the lights on [Truck # 1] had been burning, [Driver # 2] might have seen his truck from the crest of the hill and applied his brakes sooner, giving earlier warning to [Driver # 3] and possibly to [Driver # 4].... Earlier notice to [Driver #3] could have permitted him to slacken his speed without stopping.
Thus, the jury could have found that absence of [Driver # l]’s lights contributed to cause the collision between [Truck # 3 and Truck # 4].

Id. (quoting Foley, 432 S.W.2d at 208). The Western District cited Wilkerson’s detailed discussions of Branstetter, King, and Butcher, but said “Wilkerson does not suggest that a trailing driver may never establish proximate causation as to drivers ahead, based simply on the fact that some of the forward drivers were able to successfully stop their vehicles before hitting each other.” Id. at 68. At least implicitly finding Kasper’s facts closer to those in Foley than in Wilkerson, Branstetter, King, or Butcher, the Western District set aside the summary judgment and remanded for further proceedings. Id. at 69.

We have no quarrel with Kasper, its description of Wilkerson, or the differing results in Foley on one hand and Branstet-ter, King, and Butcher on the other, because what our supreme court said long ago still holds true: “Cases might be cited pro and con ad infinitum on this subject but, after all, each case depends upon its own particular facts and it is seldom that one decision really controls another.” Price v. Seidler, 408 S.W.2d 815, 820 (Mo.1966). We need not dwell on the “particular facts” of this case, however, because Bryan has collected the full measure of his damages.

Subject to exceptions inapplicable here, Bryan cannot prevail on his UM claim against State Farm unless he is legally entitled to recover damages from the lead driver. See Edwards v. Shelter Mut. Ins. Co., 280 S.W.3d 159, 162 (Mo.App.2009). We observed in Bryan I, 175 S.W.3d at 720 n. 7, that if Bryan proved his allegations, the lead driver and Peppers “would be joint tort-feasors because their independent acts coalesced to cause a single, indivisible injury to Bryan.” Bryan is limited to one satisfaction of judgment as to such tortfeasors. Gaunt v. State Farm Mut. Auto. Ins. Co., 24 S.W.3d 130, 138 (Mo.App.2000). Peppers’ satisfaction of that judgment, which Bryan acknowledged before filing this appeal, precludes Bryan from recovering any such damages from the lead driver. Id.; Slankard v. Thomas, 912 S.W.2d 619, 624 (Mo.App.1995); Walihan v. St. Louis-Clayton Orthopedic Group, Inc., 849 S.W.2d 177, 180 (Mo.App.1993).

Conclusion

We will not reverse a judgment absent a showing of prejudice. See Rule 84.13(b). Having accepted a jury’s determination of his damages without appeal, and having fully collected that sum, Bryan fails to show why further proceedings are either necessary or appropriate. Judgment affirmed.

RAHMEYER, P.J., and LYNCH, J., concur.

      . Butcher v. Main, 371 S.W.2d 203 (Mo.1963); King v. Ellis, 359 S.W.2d 685 (Mo.1962); and
        Branstetter v. Gerdeman, 364 Mo. 1230, 274 S.W.2d 240 (1955), cited and analyzed in Wilkerson, 141 S.W.3d at 533-36.

      . Bryan's argument that he sued State Farm in contract, not as a joint tortfeasor, misses the point. UM cases combine tort and contract liability. The uninsured motorist’s liability for money damages is determined under tort rules, while that of the insurer is governed by contract. Gaunt, 24 S.W.3d at 136. State Farm may be contractually bound to pay damages that Bryan could legally recover from the lead driver, but Biyan extinguished that liability by collecting full damages from Peppers.

      . In his reply brief, Bryan asserts for the first time that he also pleaded a vexatious refusal claim. If we are to infer that such claim is not barred by Peppers' satisfaction or could exist in the absence of a principal claim, Bryan could and should have raised this in his first brief, since he knew the judgment was satisfied before he filed this appeal. Points and arguments omitted from an appellant's initial brief may not be supplied by a reply brief. McCoy v. Scavuzzo, 250 S.W.3d 1, 7 n. 3 (Mo.App.2008). Moreover, arguments in a brief’s argument section, but not included in a point relied on, are not preserved for appeal. Id. The entire thrust of Bryan's sole point and initial brief, which he continued to urge at oral argument, was his alleged right to fully and separately try a UM claim against State Farm, including relitigation of the amount of damages that he sustained in the accident (in seeming opposition to his successful claim of prejudicial error in Bryan I). At any rate, on this record, the vexatious refusal claim fails as a matter of law.


author: ROBERT S. BARNEY, Presiding Judge.

text:
    Nicholas Ray COBLE, Respondent, v. DIRECTOR OF REVENUE, Appellant.
    No. SD 30360.
    Missouri Court of Appeals, Southern District, Division One.
    Oct. 7, 2010.

      Chris Koster, Atty. Gen. & Jonathan H. Hale, for Appellant.
    No brief filed by Respondent.
   ROBERT S. BARNEY, Presiding Judge.

This appeal involves the judicial review of the revocation of Nicholas R. Coble’s (“Driver”) driving privileges by the Director of Revenue (“the Director”) pursuant to section 577.041 for refusing to submit to a breath analysis test to determine whether he was legally intoxicated. Subsequent to Driver’s filing of his petition for review and after a hearing, the trial court ordered reinstatement of Driver’s driving privileges and the Director appealed. The judgment is reversed.

The record reveals that on the evening of March 6, 2009, in Greene County, Missouri, Driver was involved in a one-vehicle automobile accident. He had been operating the motor vehicle at the time of the accident. Two City of Strafford police officers, Jay Munhollen (“Officer Munhol-len”) and Jeffrey Ford (“Officer Ford”), who had been called to the scene by the Sheriffs dispatcher, responded to the scene.

Officer Munhollen testified he was dispatched around 8:15 p.m. to the scene of the accident and he arrived around 8:28 p.m. He related that upon arrival he noticed an “automobile in the ditch” and observed Driver being evaluated by emergency medical personnel. He stated he then interacted with Driver and observed that Driver “was sweaty. His eyes were glassy, bloodshot ... [and he] could smell a strong odor of intoxieant[s] coming from [Driver’s] breath.” Officer Munhollen also related that when Driver handed over his driver’s license “he was trembling, kind of hesitant to talk to [him], avoiding [his] questions.” During the course of their discussion, Driver told Officer Munhollen he had been fishing all day and denied imbibing any intoxicating beverages. Officer Munhollen then performed several field sobriety tests on Driver. He testified that while administering the horizontal gaze nystagmus test on Driver he observed indications of nystagmus and also noted that Driver was unable to complete the one leg stand test and the walk and turn test without “us[ing] his arms for balance.” After performing the field sobriety tests and observing other indicia of intoxication, Officer Munhollen concluded that Driver had been driving while intoxicated, arrested him, and transported him to the police department. At the police department, Officer Munhollen informed Driver of his Miranda rights and read Driver the requirements of the implied consent law. As previously related, Driver then refused to submit to a chemical test of his breath.

In his testimony, Officer Ford acknowledged that he was “a commissioned officer for Greene County as well as for [the City of] Strafford.” He related he had been called to the scene of the accident, he made contact with Driver after Driver had been evaluated by the emergency medical personnel, and he observed that Driver’s “eyes were bloodshot and watery. His speech was slurred. He was swaying from side to side. His hands were shaking as if he was really nervous.” Driver indicated to him that he had been driving the vehicle and “he was going too quickly, was new to the area, didn’t know the roads.” Officer Ford also related that Officer Munhollen then took charge of Driver to perform field sobriety tests on him while Officer Ford investigated the scene of the accident and interviewed several witnesses.

In addition to the testimony of both Officers Munhollen and Ford, the Director, over Driver’s objection, was permitted to introduce copies of the officers’ police reports which were received into evidence by the trial court as Exhibit A. Driver offered no evidence.

At the conclusion of the hearing and arguments, the trial court took the matter under advisement. On January 4, 2010, the trial court entered its, “Judgment” finding that the “Director ... failed to establish by a preponderance of the evidence that [Driver] was lawfully arrested and therefore [Driver’s] Petition should be and hereby is sustained.” Accordingly, the trial court ordered Driver’s driving privileges reinstated. This appeal by the Director followed.

In her sole point relied on, the Director maintains the trial court erred in reinstating Driver’s driving privileges because such a determination “erroneously declared and applied the law, in that the [trial] court improperly considered the lawfulness of [Driver’s] arrest when determining whether the Director properly imposed the ... revocation of [Driver’s] license.”

In an appeal from a judgment reinstating driving privileges under section 577.041, we will affirm the trial court’s judgment unless it is unsupported by substantial evidence, it is against the weight of • the evidence, or it erroneously declares or applies the law. Wagner v. Dir. of Revenue, 134 S.W.3d 827, 828 (Mo.App.2004); see Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). “This Court must uphold the revocation of [a] driver’s license if the revocation statute’s requirements under section 577.041.4 were satisfied.” Ross v. Dir. of Revenue, 311 S.W.3d 732, 735 (Mo. banc 2010).

Tn a proceeding in which a person’s driver’s license is revoked for refusing to submit to a chemical test, the trial court shall determine only whether: (1) the person was arrested; (2) the arresting officer had reasonable grounds to believe that the person was driving while intoxicated; and (3) the person refused to submit to the test.’

Id. at 736 (quoting Fick v. Dir. of Revenue, 240 S.W.3d 688, 690-91 (Mo. banc 2007)); see also § 577.041.4. “A finding that any one of these criteria has not been met requires reinstatement of driving privileges.” Sullins v. Dir. of Revenue, 893 S.W.2d 848, 849 (Mo.App.1995).

A hearing held in relation to the revocation of a driver’s driving privileges for refusal to take a chemical breath test is a civil proceeding. Id. at 850. It is well-established that the exclusionary rule does not apply to civil proceedings. Murphy v. Dir. of Revenue, 170 S.W.3d 507, 510 (Mo.App.2005); Garriott v. Dir. of Revenue, 130 S.W.3d 613, 616 (Mo.App.2004).

As previously recited, at the hearing the officers opined that Driver was intoxicated on the evening in question; that he was arrested based on reasonable grounds to believe he was driving in an intoxicated condition; and he refused to submit to a chemical test of his breath for alcohol content after being made aware of the provisions of section 577.020, RSMo Cum.Supp. 2007.

Driver’s objections at trial chiefly centered on the Director’s attempts to bring out evidence regarding the specifics of the accident, including what witnesses had observed and the time of the accident. Here, the trial court made no findings of facts or conclusions of law nor was it asked to. Further, the trial court made no announced credibility determinations. We do note that in closing remarks before the trial court, Driver made no complaints regarding the lack of probable cause for his arrest for driving while intoxicated or the lack of evidence showing Driver had refused the breath analysis test: Rather, Driver maintained “the State has failed in its burden to show a lawful arrest....” Driver clearly explained that his arrest was invalid because the Director had shown “no evidence as to time of accident,” and that “we have an officer without jurisdiction attempting to make arrest, which is not a valid arrest.” The issue to be resolved in the present matter, then, is whether Driver’s “arrest” or “stop” satisfied the requirements of section 577.041.4. See Ross, 311 S.W.3d at 736.

Turning to his argument positing the illegality of his arrest because insufficient evidence of his time of arrest was shown at trial, Driver cited at trial to Reed v. Dir. of Revenue, 184 S.W.3d 564 (Mo. banc 2006), for the proposition that an arrest that violated section 577.039, RSMo 2000, rendered a blood alcohol content test result inadmissible in license revocation and suspension proceedings. Id. at 568. Driver also referred to an unpublished opinion by the Western District of this Court which extended the Reed decision to invalidate a revocation due to a refusal to submit to a chemical test.

Recently in Ross, 311 S.W.3d at 733, the issue was “whether the [Director] had properly revoked the driver’s license of a driver who [had] refused to submit to a breathalyzer test offered more than 90 minutes after a police officer encountered her at the scene 0f an accident.” The Supreme Court of Missouri observed that “nothing in Reed compels its application to [the driver’s case in Ross ].” Id. at 736. It determined that “[c]ivil license-revocation proceedings under the revocation statute [were] unrelated to the criminal provisions of the warrantless DWI arrest statute” and that “nothing in the plain language of ... section 577.039, [RSMo 2000,] compels application of its 90-minute time limitation to the revocation statute, section 577.041.” Id. Furthermore, our high court set out that “[n]othing in section 577.041.4(1) ... requires the court to find that a person was arrested for DWI,” because “the implied consent law applies to any motor vehicle operator ‘arrested for any offense arising out of acts which the arresting officer had reasonable grounds to believe were committed while the person was driving a motor vehicle while in an intoxicated or drugged condition.’ ” Id. at 737 (quoting § 577.020.1(1), RSMo Cum.Supp.2007) (emphasis in original). Based on the teachings of Ross, the implication by Driv- * er that his arrest had to have been shown to have taken place within 90 minutes of his accident has no merit in the context of a civil revocation proceeding pursuant to section 577.041.

Turning now to Driver’s second argument at trial, that his arrest was unlawful because the police officers had no authority to arrest him outside of the City of Strafford, we note that in Garriott, 130 S.W.3d at 614, the Director revoked the driver’s driving privileges pursuant to section 577.041 for refusal to submit to a breath analysis test. The trial court found, however, that the initial stop leading to the driver’s arrest was invalid; hence, the trial court invoked the exclusionary rule to exclude all evidence collected after the driver’s initial stop. Id. On appeal, observing that the Supreme Court of Missouri in Riche v. Dir. of Revenue, 987 S.W.2d 331, 334-35 (Mo. banc 1999), had reaffirmed that the exclusionary rule did not apply to civil license revocation proceedings, the Western District of this Court noted that “even if the stop was illegal, the evidence obtained would not be inadmissible in this civil case,” and determined the trial court misapplied the law in reinstating the driver’s driving privileges. Garriott, 130 S.W.3d at 616-17. The Court observed that section 577.041.4 “does not require a showing that the initial stop was valid, or even that the arrest was lawful.” Id. at 617 n. 3.

Likewise, in Arch v. Dir. of Revenue, 186 S.W.3d at 478, the Director revoked the driver’s driving privileges for refusing to take a breath analysis test. The trial court found that he was not “lawfully” arrested because the arresting officer did not have reasonable grounds to believe the driver was driving while intoxicated. Id. However, the Eastern District of this Court cited Garriott, 130 S.W.3d at 616 n. 3, for the proposition that section 577.041 “does not require a showing that the arrest made was lawful.” Arch, 186 S.W.3d at 479. It then observed that there were reasonable grounds shown for the arrest of driver for driving while intoxicated and reinstated the revocation of the driver’s driving privileges. Id. at 481.

Also, in Sullins v. Dir. of Revenue, 893 S.W.2d at 849, the driver sought judicial review of the revocation of his driver’s license by the Director for refusing a chemical test of his blood alcohol content. The driver challenged the validity of his arrest, inter alia, asserting the arresting officers were “municipal officers of the municipality of Houston ...,” but that he had been arrested outside of the city limits of the municipality of Houston. Id. “Implicitly, the trial court determined that evidence of [the driver’s] refusal could not be considered because his arrest was invalid. Consequently, the [trial] court ruled that the revocation of [the driver’s] driving privileges be reversed.” Id. The reviewing court, however, agreed with the Director’s contention of trial court error: that the “validity of the arrest was irrelevant in this civil proceeding because the exclusionary rule does not apply in civil proceedings.” Id. at 850. This Court observed the limited applicability of the exclusionary rule to criminal proceedings, and determined that “[e]ven if the stop ... was illegal, the evidence of [the driver’s] arrest and refusal may be considered in this case.” Id. In the present matter, as in the cases cited above, the trial court’s application of the law was in error. The Director’s point has merit.

It has long been held that we may enter the judgment the trial court should have entered. Rule 84.14, Missouri Court Rules 2010; see Garriott, 130 S.W.3d at 617. The judgment of the trial court is reversed and the Director’s revocation of Driver’s driving privileges is reinstated.

LYNCH, J. and BURRELL, J., concur.

      . Unless otherwise stated, all statutory references are to RSMo Cum.Supp.2009.

      . Driver did not file a responsive brief in this matter but made his position known in the trial court.

      . When asked why a Strafford police officer would respond to an accident located in Greene County, Officer Munhollen explained that "[t]he sheriff's department, all the officers were on calls, and they requested us to go-”

      . Driver ultimately refused medical assistance.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      .Among other things, the police report went into detail about the field sobriety tests conducted on Driver prior to his arrest, to-wit: the horizontal gaze nystagmus test, the leg stand test and the walk and turn test. Additionally, it replicated the observations made in Officer Munhollen's testimony that Driver's breath smelled of intoxicants as well as observations that Driver had "bloodshot” and "glassy eyes.” The police report also set out that Officer Munhollen had read Driver the “Implied Consent” law and that Driver had "refused the test."

      . "The terms 'reasonable grounds’ and 'probable cause’ are basically synonymous terms.” Arch v. Dir. of Revenue, 186 S.W.3d 477, 480 (Mo.App.2006). Here, the officers observed Driver’s eyes were glassy, bloodshot and they could smell a strong odor of intoxicants coming from Driver. Further, he failed at least two field sobriety tests. Probable cause to arrest was based on similar observations in Norris v. Dir. of Revenue, 156 S.W.3d 786, 788 (Mo.App.2005).

      . Section 577.039, RSMo 2000, states that [a]n arrest without a warrant by a law enforcement officer ... for a violation of section 577.010 or 577.012 is lawful whenever the arresting officer has reasonable grounds to believe that the person to be arrested has violated the section, whether or not the violation occurred in the presence of the arresting officer and when such arrest without warrant is made within one and one-half hours after such claimed violation occurred, unless the person to be arrested has left the scene of an accident or has been removed from the scene to receive medical treatment, in which case such arrest without warrant may be made more than one and one-half hours after such violation occurred.


text:
    Maureen MATTHEWS, Appellant, v. Barbara GRAHAM, et al., Respondents.
    No. ED 94156.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 12, 2010.
    Edward F. (Ted) Luby, Saint Louis, MO, for Appellant.
    Richard C. Wuestling, IV, M. Adina Johnson, Saint Louis, MO, for Respondents.
    Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J. and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Maureen Matthews appeals the grant of summary judgment in favor of Barbara Graham and Eastman, Dillon, Graham, and Goldfarb, LLP (“Counsel”) on her petition for legal malpractice, breach of contract, unjust enrichment, negligent misrepresentation, and breach of fiduciary duty. We find that the trial court did not err in granting summary judgment in favor of Counsel.

An extended opinion would have no precedential value. We have, however, provided the parties a memorandum setting forth the reasons for our decision. The judgment of the trial court is affirmed under Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Jessica L. VORCE, Appellant.
    No. ED 94092.
    Missouri Court of Appeals, Eastern District, Division Five.
    Oct. 12, 2010.
    John T. Bruere, Troy, MO, for appellant.
    Rebecca Burkemper, Assistant Prosecuting Attorney, Troy, MO, for respondent.
    Before GARY M. GAERTNER, JR., P.J., MARY K HOFF, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Jessica Vorce (Defendant) appeals the judgment of conviction in a court-tried case of possession of intoxicating liquor by a minor. Defendant claims the trial court erred in finding her guilty because the State failed to provide sufficient and competent evidence to prove that: (1) she was in possession of intoxicating liquor; and (2) she was a minor.

We have reviewed the briefs of the parties and the record on appeal and no error of law appears. An extended opinion would have no precedential value. We have, however, prepared a memorandum opinion for the use of the parties only setting forth the reasons for our decision.

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


text:
    Korey CUMMINGS, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93990.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 12, 2010.
    Jessica M. Hathaway, Missouri Public Defender Office, Assistant Public Defender, St. Louis, MO, for Appellant.
    Chris Koster, Attorney General, Robert J. Bartholomew, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before: KURT S. ODENWALD, P.J., ROBERT G. DOWD, Jr., J. and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Korey Cummings (Cummings) appeals from the motion court’s judgment denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. Cummings argues that the guilty pleas he entered lacked a sufficient factual basis, and, therefore, his pleas were not given knowingly and voluntarily. We affirm the motion court’s judgment.

We have reviewed the briefs of the parties and the record on appeal and find Cummings is entitled to no relief on appeal. An extended opinion would have no precedential value. We have, however, provided a memorandum opinion for the use of the parties setting forth the reasons for our decision.

We affirm the motion court’s judgment pursuant to Rule 84.16(b).


text:
    Percy D. WINSTON, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 94224.
    Missouri Court of Appeals, Eastern District, Division Five.
    Oct. 12, 2010.
    Maleaner Harvey, Assistant Public Defender, St. Louis, MO, for Appellant.
    Chris Koster, Attorney General, Karen L. Kramer, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before GARY M. GAERTNER, P.J., MARY K. HOFF, and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Percy D. Winston (Movant) appeals from the motion court’s judgment denying his amended Rule 24.035 motion for post-conviction relief without an evidentiary hearing. On appeal, Movant argues that the motion court erred because his plea counsel provided him ineffective assistance that impinged on the voluntariness and understanding of his guilty pleas. We affirm the motion court’s judgment.

We have reviewed the briefs of the parties and the record on appeal and find Movant is entitled to no relief on appeal. An extended opinion would have no prece-dential value. We have, however, provided a memorandum opinion for the use of the parties setting forth the reasons for our decision.

We affirm the motion court’s judgment pursuant to Rule 84.16(b).


text:
    Leroy SIMMONS, Appellant, v. STATE of Missouri, Respondent.
    No. ED 94210.
    Missouri Court of Appeals, Eastern District, Division Five.
    Oct. 12, 2010.
    Gwenda Renee’ Robinson, St. Louis, MO, for appellant.
    Chris Koster, Richard A. Starnes, Jefferson City, MO, for respondent.
    Before: GARY M. GAERTNER, JR., P.J., MARY K. HOFF, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Movant, Leroy Simmons, appeals from the judgment denying his Rule 29.15 motion after an evidentiary hearing. The motion court’s findings and conclusions are not clearly erroneous. Rule 29.15(k). An opinion would have no precedential value. The parties have been provided with a memorandum for their information only, setting forth the reasons for this decision. We affirm the judgment in accordance with Rule 84.16(b).


text:
    George E. RULO, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 94563.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 12, 2010.

      Brocea Smith, Assistant Public Defender, St. Louis, MO, for appellant.
    Chris Koster, Dora A. Fichter, Attorney-General, Jefferson City, MO, for respondent.
    Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J., and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Movant, George E. Rulo, appeals from the judgment denying on the merits his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. The findings and conclusions of the motion court are not clearly erroneous. No error of law appears. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order affirming the judgment pursuant to Rule 84.16(b).


text:
    James R. DAVIS, Appellant, v. Vickie J. WEIBLE, et al., Respondents.
    No. ED 94536.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 12, 2010.
    James R. Davis, Farmington, MO, Appellant Acting Pro se.
    Chris Koster, Attorney General, Barbara Ann Crancer, Assistant Attorney General, Jefferson City, MO, for Respondents.
    Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J. and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

James R. Davis appeals the judgment dismissing his declaratory judgment action against Vickie J. Weible, et al. No error of law appears. An extended opinion would have no precedential value. We affirm the judgment of the trial court under Rule 84.16(b).


text:
    Caroline BOGARD, Respondent, v. Jesse HOSKINS d/b/a Jesse’s Automotive, Appellant.
    No. ED 94232.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 19, 2010.

      Charles R. Willis, St. Louis, for appellant.
    Caroline Bogard, St. Louis, pro se.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Jesse Hoskins d/b/a Jesse’s Automotive appeals the trial court judgment in favor of Caroline Bogard on Hoskin’s counterclaim for damages for breach of contract for services rendered.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion.

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


text:
    Roger R. ALLEN, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93399.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 19, 2010.
    Scott Thompson, St. Louis, MO, for appellant.
    Chris Foster, Atty. Gen., Dora A. Fiehter, Asst. Atty. Gen., for respondent.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

The movant, Roger Allen, appeals the motion court’s order denying his Rule 29.15 motion for post-conviction relief following an evidentiary hearing. We have reviewed the parties’ briefs and the record on appeal and find no clear error. Rule 29.15(k). An opinion would have no prece-dential value. The parties have been provided with a memorandum, for their information only, setting forth the reasons for this decision.

The motion court’s order denying the movant’s Rule 29.15 motion for post-conviction relief is affirmed. Rule 84.16(b)(2).


text:
    STATE of Missouri, Respondent, v. Antwone S. FRANK, Appellant.
    No. ED 93492.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 19, 2010.

      Jo Ann Rotermund, St. Louis, MO, for Appellant.
    Shaun J. Mackelprang, John M. Reeves, Jefferson City, MO, for Respondent.
    Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J., and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Antwone Frank (hereinafter, “Appellant”) appeals from the trial court’s judgment after a bench trial where he was convicted of one count of unlawful possession of a firearm, Section 571.070 RSMo (2000), and one count of unlawful use of a weapon, Section 571.030 RSMo (2000). Appellant was sentenced to two years’ imprisonment on each count, to run concurrently. Appellant raises two points on appeal, challenging the denial of his motions to suppress evidence and statements because he believes these items were obtained pursuant to an illegal search and-seizure.

We have reviewed the briefs of the parties, the legal file, and the transcript on appeal. We find no error of law. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. We have, however, provided a memorandum opinion, only for the use of the parties, setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 30.25(b).


text:
    STATE of Missouri, Plaintiff/Respondent, v. Melvin L. FORD, Defendant/Appellant.
    No. ED 93493.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 19, 2010.
    Lisa M. Stroup, St. Louis, MO, for Defendant/Appellant.
    Shaun J. Mackelprang, John W. Grant-ham, Jefferson City, MO, for Plaintiff/Respondent.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Melvin L. Ford appeals from the trial court’s judgment entered upon a jury verdict convicting him of second-degree domestic assault, third-degree domestic assault, and violation of an order of protection. We have reviewed the briefs of the parties and the record on appeal and conclude that the trial court committed no plain error. Rule 30.20; State v. Washington, 260 S.W.3d 875, 879 (Mo.App. E.D.2008). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Rule 30.25(b).

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


text:
    James J. BRISCOE, Appellant, v. STATE of Missouri, Respondent.
    No. ED 94510.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 19, 2010.
    Adam D. Fein, Rosenblum, Schwartz, Rogers & Glass, P.C., Clayton, MO, for Appellant.
    Chris Koster, Attorney General, Terrence M. Messonnier, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before: KURT S. ODENWALD, P.J., ROBERT G. DOWD, JR., J. and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

James J. Briscoe (Movant) appeals from the motion court’s judgment denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. Movant was previously convicted of multiple counts of first-degree statutory sodomy and first-degree child molestation. This Court affirmed Movant’s convictions, following a jury trial, in Movant’s direct appeal. State v. Briscoe, 258 S.W.3d 826 (Mo.App. E.D.2008). In his motion for post-conviction relief, Movant alleges four separate claims of ineffective assistance of counsel. Finding no error in the trial court’s judgment, we affirm.

We have reviewed the briefs of the parties 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 prece-dential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order affirming the judgment pursuant to Rule 84.16(b).


text:
    Martin E. TRIBL & Michelle A., Tribl, Appellants, v. Barbara J. RISTVEDT & Stephen L. Ristvedt, Respondents.
    No. ED 94077.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 19, 2010.
    Stephen H. Gilmore, St. Louis, MO, for Appellants.

      Roger W. Pecha, Clayton, MO, for Respondents.
    Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J., and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Martin E. Tribl and Michelle A. Tribl (hereinafter, “Appellants”) appeal from the trial court’s grant of summary judgment in favor of Barbara J. Ristvedt and Stephen L. Ristvedt (hereinafter, “Respondents”). The trial court found Respondents were not liable to Appellants for malicious prosecution. Appellants raise one point on appeal asserting two claims of error. Appellants claim the trial court erred in sustaining Respondents’ motion for summary judgment because: (1) there were genuine issues of material fact, and (2) Respondents’ affirmative defense of advice of counsel “could not be sustained as the affidavits in support of [Respondents’] motion did not counter necessary elements of [Appellants’] case.”

We have reviewed the briefs of the parties and the legal file submitted on appeal. The trial court did not err in granting summary judgment in favor of Respondents as there are no genuine issues of material fact. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Co., 854 S.W.2d 371, 376 (Mo. banc 1993). An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. We have, however, provided a memorandum opinion, for the use of the parties only, setting forth the reasons for our decision. The trial court’s judgment is affirmed pursuant to Rule 84.16(b).


text:
    Danny E. JOHNS, Respondent, v. Carol A. KUEBRICH-JOHNS, Appellant.
    No. ED 94076.
    Missouri Court of Appeals, Eastern District, Division One.
    Oct. 19, 2010.
    Alan E. Freed, Bruce E. Friedman, St. Louis, MO, for Appellant.
    Myia McKenna, St. Louis, MO, for Respondent.
    Before ROY L. RICHTER, C.J., KENNETH M. ROMINES, J., and STEPHEN K. WILLCOX, Sp.J.
   ORDER

PER CURIAM.

Carol Kuebrich-Johns appeals the trial court’s decision denying her motion to amend the judgment in the dissolution of her marriage to Danny Johns. We presume the parties’ familiarity with the facts and therefore need not recite them. We have reviewed the parties’ briefs and the record on appeal and find no error.

An opinion would have no precedential value. The trial court’s judgment is affirmed pursuant to Rule 84.16(b).


text:
    Michael LYNN, Appellant, v. STATE of Missouri, Respondent.
    No. ED 94041.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 19, 2010.
    Gwenda Renee Robinson, St. Louis, MO, for appellant.
    Chris Koster, Jayne T. Woods, Jefferson City, MO, for respondent.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Michael Lynn (Movant) appeals from the judgment of the circuit court of the City of St. Louis denying, without an evi-dentiary hearing, his Rule 29.15 motion for postconviction relief.

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

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


text:
    STATE of Missouri, Respondent, v. Patricia A. MUELLER, Appellant.
    No. ED 94031.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 19, 2010.
    Craig A. Johnston, Columbia, MO, for appellant.
    Kathryn A. Busch, Warrenton, MO, for respondent.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

The defendant, Patricia Mueller, appeals the judgment entered by the Circuit Court of Warren County following a trial in which the court convicted her of animal abuse, in violation of section 578.012 RSMo. (Supp.2009). The trial court sentenced the defendant to six months’ incarceration, suspending execution of the sentence and placing the defendant on two years of probation. Finding no error, we affirm.

We have reviewed the parties’ briefs and the record on appeal. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been provided with a memorandum, for their information only, setting forth the reasons for this order.

We affirm the trial court’s judgment pursuant to Rule 30.25(b).


text:
    Larry D. FURNACE, Appellant, v. STATE of Missouri, Respondent.
    No. ED 94024.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 19, 2010.
    Edward S. Thompson, St. Louis, MO, for Appellant.
    Shaun J. Mackelprang, Robert J. Bartholomew, Jr., Jefferson City, MO, for Respondent.
    Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J., and GEORGE W. DRAPER, III, J.
   ORDER

PER CURIAM.

Larry Furnace (hereinafter, “Movant”) pleaded guilty to assault in the first degree, Section 565.050 RSMo (2000), two counts of robbery in the first degree, Section 569.020, misdemeanor resisting arrest, Section 575.150, and three counts of armed criminal action, Section 571.015. Movant now appeals from the judgment denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. Movant raises one point on appeal, alleging the motion court erred in denying his post-conviction motion because his plea counsel failed to investigate a material witness.

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

The judgment of the trial court is affirmed pursuant to Rule 84.16(b).

      . All further statutory references herein are to RSMo (2000) unless otherwise indicated.


text:
    STATE of Missouri, Respondent, v. Kenneth W. BAUBLITZ, Defendant/Appellant.
    No. ED 94349.
    Missouri Court of Appeals, Eastern District, Division Five.
    Oct. 19, 2010.

      Allen E. Moss, Jr., Moss & Stillwell Law Firm, Cape Girardeau, MO, for Appellant.
    H. Morley Swingle, Prosecuting Attorney, Prosecuting Attorney Office Cape Girardeau, Jackson, MO, for Respondent.
    Before GARY M. GAERTNER, JR., P.J., MARY K. HOFF, J. and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Kenneth W. Baublitz (Defendant) appeals from the trial court’s judgment and sentence imposed after a bench trial in which the trial court found him guilty of one count of misdemeanor stalking, in violation of Section 565.225.2. The trial court sentenced Defendant to six months’ imprisonment but suspended execution of the sentence and ordered Defendant to serve two years’ probation with additional conditions.

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 applicable to this case would serve no jurisprudential purpose. We affirm the judgment pursuant to Rule 30.25(b).

      . All statutory citations are to RSMo Cum. Supp.2008, unless otherwise indicated.


text:
    Elma L. DAVIS, Appellant, v. STATE of Missouri, Respondent.
    No. ED 94301.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 19, 2010.
    Alexandra Johnson, Mo. Public Defender Office, St. Louis, MO, for Appellant.
    Chris Koster, Attorney General, Dora A. Fichter, Asst. Attorney General, Jefferson City, MO, for Respondent.
    Before KURT S. ODENWALD, P.J. and ROBERT G. DOWD, JR. and NANNETTE A. BAKER, JJ.
   ORDER

PER CURIAM.

Elma Davis (“Movant”) appeals the denial of his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. Movant’s sole argument is that the motion court clearly erred in denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing because his guilty plea was entered in an unknowing, involuntary, and unintelligent manner in that his plea counsel was ineffective for incorrectly assuring him he would receive an allowance for jail-time served on the sentence to which he pleaded guilty.

We have reviewed the briefs of the parties and the record on appeal and find the motion court’s findings of fact and conclusions of law are not clearly erroneous. An opinion would have no precedential value nor serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order pursuant to Rule 84.16(b).


text:
    Lonnell L. JOHNSON, Appellant, v. STATE of Missouri, Respondent.
    No. ED 94212.
    Missouri Court of Appeals, Eastern District, Division Five.
    Oct. 19, 2010.
    Brocea Smith, St. Louis, MO, for appellant.
    Chris Koster, Dora A. Fichter, Jefferson City, MO, for respondent.
    Before: GARY M. GAERTNER, JR., P.J., MARY K. HOFF, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Lonnell L. Johnson appeals from the motion court’s judgment denying his Rule 29.15 motion. We have reviewed the briefs of the parties and the record on appeal, and we conclude the motion court’s denial of post-conviction relief was not clearly erroneous. Rule 29.15(k). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties, for their use only. We affirm the judgment pursuant to Rule 84.16(b).

      . All rule references are to Mo. R.Crim. P.2010, unless otherwise indicated.


text:
    Oscar MURPHY, Appellant, v. STATE of Missouri, Respondent.
    No. ED 94206.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 19, 2010.
    Jessica M. Hathaway, St. Louis, MO, for appellant.
    Chris Koster, Terrence M. Messonnier, Jefferson City, MO, for respondent.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Oscar Murphy (“Movant”) appeals from the judgment of the motion court denying his amended motion for post-conviction relief pursuant to Rule 29.15 without an evi-dentiary hearing. Movant contends that appellate counsel was ineffective for failing to assert on appeal his claims that the trial court erred in failing to strike two members of the venire for cause.

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

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

SULLIVAN, P.J., AHRENS J., and MOONEY, J. concur.