text:
    April ICE, Appellant, v. Tony HARRIS, and Personnel Advisory Board, Respondents.
    No. SD 29973.
    Missouri Court of Appeals, Southern District, Division One.
    April 29, 2010.

      John M. Albright, Poplar Bluff, for appellant.
    Chris Koster, Atty. Gen. and Michael R. Cherba, Asst. Atty. Gen., Jefferson City, for respondent, Tony Harris.
    Sarah Ledgerwood, Jefferson City, for respondent, Personnel Advisory Board.
   ROBERT S. BARNEY, Judge.

April Ice (“Appellant”) appeals the trial court’s dismissal of her petition for review which requested the trial court review the decision of Respondent Personnel Advisory Board (“the PAB”) and its ruling against her which found she was rightfully terminated by her employer, Southeast Missouri Residential Services (“SE-MORS”), through her supervisor, Respondent Tony Harris (“Mr. Harris”). In two points relied on, Appellant challenges the trial court’s dismissal of her request for judicial review and the dismissal of the PAB from the lawsuit because she maintains it was the PAB’s responsibility to “perfect the record on appeal” and with the PAB removed from the lawsuit she can no longer “demand that ‘the agency’ file with the circuit clerk the record on appeal .... ” We affirm the judgment of the trial court.

The record reveals that on August 17, 2007, Appellant was terminated from her position with SEMORS based on allegations she “failed a random drug test” by utilizing marijuana while on vacation. On September 6, 2007, Appellant appealed her termination to the PAB and sought a contested administrative hearing. The PAB conducted a hearing on February 26, 2008, and on May 13, 2008, it issued its “Findings of Fact, Conclusions of Law, Decision and Order” in which it affirmed Appellant’s termination.

On May 22, 2008, Appellant filed her “Petition for Judicial Review” with the circuit court of Butler County, Missouri, pursuant to section 536.110, RSMo Cum.Supp. 2004. On this same date, Appellant also filed a “Notice of Appeal and Request for Transmittal of Record” in which she requested the PAB “transmit the complete record, including a complete transcript of the hearing ...” to the trial court. On June 13, 2008, the PAB filed a motion to dismiss Appellant’s petition for judicial review arguing that “[t]he PAB and its members are not proper parties to an appeal of one of their decisions.... ”

Appellant answered by filing her “Answer to [the PAB’s] Motion to Dismiss, Motion to Compel, and Notice of Intent to Challenge Constitutionality.” In this motion, she asserted that section 536.130, RSMo 2000, required “the agency” involved in the judicial review to produce and transmit the record on appeal to the circuit court at the insistence of the appellant; that section 536.070, RSMo 2000, required the agency to record the proceedings and “to provide a transcript at a reasonable cost” to the appellant; that she could not afford to prepare such a transcript on her own; that it would be unconstitutional to allow only those who can afford to have a transcript prepared to proceed through the judicial review process; and that the PAB should be compelled by the trial court to produce a copy of the transcript. The following day she filed a “Motion for Extension of Time to File Record on Appeal” “until July 30, 2008[,] to file the [rjecord on [ajppeal in the above cause of action.”

On June 30, 2008, the PAB filed certain certified records from the underlying action with the trial court, but as best we discern, it did not file a copy of the transcript from the February 26, 2008, hearing. The PAB then sent “[t]he digital audio recording” from the February 26, 2008, hearing to Appellant’s attorney “for transcription.”

On July 28, 2008, the trial court granted the PAB’s motion to dismiss and ruled “Defendant [SEMORS through its representative, Mr. Harris] [is] to file [the] transcript of proceeding^ with [this] court.” On August 24, 2008, during a telephone conference, counsel for Mr. Harris sought clarification on this ruling from the trial court and the trial court “instructed [Mr. Harris’s counsel] to inform [Appellant’s] [c]ounsel that whichever party wanted a transcript [they] could use an audio recording to obtain and pay for it themselves.” Mr. Harris’s counsel then phoned Appellant’s counsel about the conversation with the trial court and Appellant’s counsel informed him “that either the PAB or [Mr. Harris] were going to have to pay for preparation of the transcript of the February 26 hearing.”

On August 25, 2008, Mr. Harris filed an audio recording of the February 26, 2008, hearing with the trial court, and on August 28, 2008, Appellant filed a Motion for Contempt against both Mr. Harris and the PAB, although the PAB had already been dismissed from the lawsuit. In this motion, Appellant argued she needed “the transcript to prosecute this appeal” and the PAB and/or Mr. Harris were statutorily required to prepare the transcript on her behalf. A hearing was held on Appellant’s motion on October 27, 2008, and on November 19, 2008, the trial court overruled Appellant’s motion for contempt.

On April 6, 2009, Appellant filed a “Motion for Leave to Proceed In Forma Pau-peris.” Mr. Harris responded to this motion by contending that based on the trial court’s prior rulings Appellant was herself “obligated to pay for and file the transcript of the February 26[, 2008,] hearing if she wished to proceed with this matter,” she failed to do so, and she was continuing to attempt “to force Missouri taxpayers to underwrite the cost of her appeal.... ” Mr. Harris also asked the trial court to dismiss Appellant’s petition for failure to prosecute her appeal by failing to perfect the record. A hearing was held on May 11, 2009, and on May 26, 2009, the trial court denied Appellant’s motion to proceed in forma pauperis. Appellant then filed a “Motion to Reconsider” this ruling whereupon the trial court held a hearing on this motion on June 29, 2009. On July 27, 2009, the trial court entered its judgment overruling Appellant’s motion to reconsider and granting Mr. Harris’s motion to dismiss Appellant’s petition for failure to prosecute. This appeal followed.

In her first point relied on, Appellant maintains the trial court erred in dismissing her petition for review

for failing to perfect the record on appeal in that, upon a proper request, the law requires that the agency prepare and file the transcript on appeal and requires that the agency produce for any other person a transcript upon payment of reasonable costs, but, despite ... Appellant’s request and motion to compel and motion for contempt, the trial court refused to compel the agency to file the transcript and instead dismissed the petition for review.[]

This Court reviews an action for failure to prosecute under an abuse of discretion standard of review. Dickens v. Missouri Dept. of Health and Senior Srvs., 208 S.W.3d 281, 282 (Mo.App.2006). “An abuse of discretion occurs when the ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” Id.

First, Appellant cites this Court to section 536.070(4), RSMo 2000, which provides:

[ejach agency shall cause all proceedings in hearings before it to be suitably recorded and preserved. A copy of the transcript of such a proceeding shall be made available to any interested person upon the payment of afee which shall in no case exceed the reasonable cost of preparation and supply.

(Emphasis added). There is nothing in the record before this Court which shows that Appellant ever volunteered to pay the PAB a “reasonable” fee to transcribe the audio recording of the February 26, 2008, hearing. In fact, all of Appellant’s requests for the transcript asserted she was unable to pay anything for the transcript at issue and that she believed she was entitled to a free transcript under Missouri law. This Court does not interpret section 536.070(4), RSMo 2000, as requiring the PAB to transcribe the proceedings for free.

Second, Appellant points this Court to section 536.130.4, RSMo 2000:

[t]he record to be filed in the reviewing court shall be filed by the plaintiff, or at the request of the plaintiff shall be transmitted by the agency directly to the clerk of the reviewing court and by him filed; provided, that when original documents are to be sent to the reviewing court they shall be transmitted by the agency directly, as aforesaid.

Here, the PAB transmitted the record on appeal, sans the transcript, to the trial court upon Appellant’s request and it did so early in the litigation. Section 536.130.1, RSMo 2000, sets out that the record on appeal “shall consist of any one of the following:”

(1) Such parts of the record, proceedings and evidence before the agency as the parties by written stipulation may agree upon;
(2) An agreed statement of the case, agreed to by all parties and approved as correct by the agency;
(3) A complete transcript[] of the entire record, proceedings and evidence before the agency. Evidence may be stated in either question and answer or narrative form. Documents may be abridged by omitting irrelevant and formal parts thereof. Any matter not essential to the decision of the questions presented by the petition may be omitted. The decision, order and findings of fact and conclusions of law shall in every case be included.

Read in conjunction with section 536.130.4, RSMo 2000, it is clear that this section provides that the agency is to provide the physical copy of its records to the trial court only in the event that the plaintiff requests that it do so. “Thus, under the plain language of the statute, it [remains] the plaintiffs responsibility to ensure the record is filed, either by filing it personally or requesting that the agency file it.” Vette v. Dir. of Revenue, 99 S.W.3d 563, 567 (Mo.App.2003). “This is consistent with cases that have interpreted the filing requirement under section 536.130, [RSMo 2000,] as these cases concerned plaintiffs who failed to timely file the record.” Id. There is nothing in this section which contradicts the requirement of section 536.070(4), RSMo 2000, that plaintiff or any interested party is to pay a reasonable cost to have a written transcript of the proceedings created from an audio recording. The fact remains that “[i]t is the plaintiff]⅛ duty to file th[e] record.” Dickens, 208 S.W.3d at 283 (holding that dismissal of a petition for review was proper where the appellant only filed an audio recording with the trial court instead of a written transcript).

Third, Appellant points this Court to Supreme Court Operating Rules 5.04 and 5.06 and argues that these provisions “covert] all requests for transcripts that are recorded.” We disagree. Supreme Court Operating Rule 5.04 states:

(a) All requests for the preparation of a transcript shall be filed within the time prescribed by Supreme Court Rule 81.12.[]
* * *
(d) The responsible clerk shall collect a deposit for the cost of preparation of a transcript plus copies plus postage, where applicable, based upon the current contract rate established by the Office of State Courts Administrator.
State agencies shall pay the costs of preparing transcripts unless otherwise provided by law. State agencies are not required to make an advance deposit.

There is nothing in Supreme Court Operating Rule 5.04 which leads this Court to believe it is applicable to matters brought pursuant to Chapter 536 given that the legislature has “otherwise provided]” that sections 536.130 and 536.070, RSMo 2000, govern matters dealing with transcripts in a petition for review in an administrative case such as in the instant matter. Further, Supreme Court Operating Rule 5.06(b) sets out that

[i]n civil cases, pursuant to section 514.040 ..., the transcript shall be prepared by the Office of State Courts Administrator or an approved contractor upon receipt of a copy of the order of indigency. The cost shall be waived unless costs are recovered pursuant to section 514.040.... The clerk shall notify the Court of Appeals of the outstanding costs of any transcripts prepared by the Office of State Courts Administrator. The portion of the costs recovered that are associated with preparing the transcript shall be forwarded to the Office of State Courts Administrator.

It is clear that this rule applies only in the event that a civil litigant has been declared to be indigent. That is not the situation in this case. Accordingly, the Supreme Court Operating Rules advanced by Appellant are inapplicable.

Fourth, at the time the trial court dismissed Appellant’s petition for review for failure to prosecute, the only person still a party to the lawsuit was Mr. Harris. The PAB, the agency at issue, had been out of the lawsuit for approximately a year. Pri- or to its judicially-determined dismissal from this lawsuit, the PAB provided the written record to the trial court as requested, and provided an audio copy of the transcript to Appellant so that she could have it transcribed as she wished. The PAB met its obligations to Appellant well before the conclusion of this lawsuit and its action or inaction had no bearing on the trial court’s ruling to dismiss Appellant’s petition for review at Mr. Harris’s request nearly a year after the PAB had exited the lawsuit. Appellant’s arguments fail. The trial court did not abuse its discretion in dismissing Appellant’s petition for failure to prosecute. Point I is denied.

[B — 5] In her second point relied on, Appellant asserts the trial court erred in granting the PAB’s motion to dismiss

in that the law allows the petitioner seeking judicial review of a contested agency case to demand that ‘the agency’ file with the circuit clerk the record on appeal, but, in this case, the trial court dismissed the PAB, the agency that heard the contested administrative action, before the record on appeal was perfected and, by doing so, relinquished authority over ‘the agency.’ []

As stated in Lebedun v. Robinson, 768 S.W.2d 219, 223-224 (Mo.App.1989):

[pjursuant to Section 36.390.5 ... the [PAB] conducts hearings in cases where a merit system agency of the State of Missouri dismisses, involuntarily demotes or suspends an employee for more than five working days. The Board hears the case to determine whether or not the employee is correct in his assertion that the action taken against him was for political, religious or racial reasons or was not for the good of the service. The Board does not have an independent role in these proceedings but acts only as an impartial hearing officer to conduct and decide the contested case between the agency and the employee. The Board, as an agency, has no interest in the outcome of the case before it. In a similar manner, except where the Board’s procedures or rules are directly attacked, the Board has no true interest in protecting its decision on appeal.
In this regard, the Board’s role is very similar to that of the Administrative Hearing Commission. The Administrative Hearing Commission is not a proper party to an appeal from one of its decision[s].

See Geriatric Nursing Facility, Inc. v. Dept. of Social Srvs., 693 S.W.2d 206, 209 (Mo.App.1985); Baer v. Civilian Personnel Div., St. Louis Police Officers Ass’n, 714 S.W.2d 536, 538 (Mo.App.1986).

This Court is persuaded by the reasoning in Lebedun, 768 S.W.2d at 223-224. Here, the PAB was the agency which heard Appellant’s complaint, acted as an impartial hearing officer, and then issued a ruling on the merits. Appellant then appealed that decision to the trial court. As in Lebedun, the PAB is not a proper party to an appeal because it “does not have an independent role in these proceedings,” only acts “as an impartial hearing officer to conduct and decide the contested case between the agency and the employee,” “has no interest in the outcome of the case before it,” and “has no true interest in protecting its decision on appeal.” Id. at 223. The trial court did not err in dismissing the PAB from the lawsuit. Point II is denied.

The judgment of the trial court is affirmed.

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

      . SEMORS is “a facility within the Division of Mental Retardation and Developmental Disabilities and the Department of Mental Health” such that its employees fall under the purview of Section 36.030.1, Cum.Supp.2007. "Those agencies listed in [section] 36.030.1 are designated ‘merit’ agencies, which means, inter alia, that regular employees of those agencies have a right of appeal to the [PAB] if they are dismissed, suspended for more than five days, or involuntarily demoted.” Snyder v. Dept. of Elementary and Secondary Educ., 952 S.W.2d 764, 767 (Mo.App.1997); see § 36.390.5, Cum.Supp.2006.

      . As best we discern, Appellant does not directly challenge the trial court’s ruling on her motion to compel or its denial of her motions for contempt and to proceed in forma pauper-is.

      . As stated in Dickens, 208 S.W.3d at 283 (internal citations omitted):
      [c]hapter 536 does not define ‘transcript.’ Therefore, we give the word 'transcript' its plain and ordinary meaning. In the context of a hearing, a transcript is defined as 'a handwritten, printed, or typed copy of testimony given orally; esp., the official record of proceedings in a trial or hearing as taken down by a court reporter.’ An audio recording is not a handwritten, printed or typed copy, and, thus, is not a transcript.

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

      . Rule 81.12 is entitled "Contents of the Record on Appeal — Designation of the Record on Appeal — Compiling, Ordering, Filing and Service of Record on Appeal — Errors, Omissions and Supplemental Record on Appeal” and applies to transcripts filed with this Court.

        . It was not until the last few months of this lawsuit that Appellant filed a motion to proceed in forma pauperis and this motion was denied by the trial court. Appellant has not expressly appealed this ruling.

      . Appellant does not cite authority for her argument advanced under this point relied on nor explains the absence of such authority. "An appellant has an obligation to cite appropriate and available precedent if he expects to prevail, and, if no authority is available to cite, he should explain the reason for the absence of citations.” Brown v. Ameristar Casino Kansas City, Inc., 211 S.W.3d 145, 148 (Mo.App.2007). "When 'the appellant neither cites relevant authority nor explains why such authority is not available, the appellate court is justified in considering the points abandoned and dismissing the appeal.’ ” Id. (quoting In re Marriage of Spears, 995 S.W.2d 500, 503 (Mo.App.1999)). We review this point ex gratia.


source: Caselaw Access Project

author: DON E. BURRELL, Judge.

license: Public Domain

text:
    Larry ATKINS, et al., Plaintiffs-Appellants, v. William JESTER, et al., Defendants-Respondents.
    No. SD 29922.
    Missouri Court of Appeals, Southern District, Division One.
    April 30, 2010.

      Michael W. Blanton, Leawood, KS, for Appellant.
    Jim J. Shoemake, St. Louis, MO, for Respondent Windermere Baptist Conference Center.
    Burton H. Shostak, St. Louis, MO, for Respondent William Jester, et al.
    Corinne E. Muller, Jefferson City, MO, for Respondents Jim Hill and RDI, LLC.
    James W. Gallaher, Jefferson City, MO, for Respondent Reliable Trust Company, et al.
    Matthew R. Hubbard, Kansas City, MO, for Respondent National City Bank, et al.
   DON E. BURRELL, Judge.

The Missouri Baptist Convention (“the Convention”), an unincorporated association of representatives from affiliated Southern Baptist churches in the State of Missouri known as “messengers,” Executive Bd. of the Mo. Baptist Convention v. Windermere Baptist Conference Ctr., 280 S.W.3d 678, 684 n. 1 (Mo.App. W.D.2009), appeals the trial court’s dismissal of its action to quiet title to certain parcels of real property (“the real estate”) located in Camden County, Missouri. Because the dismissal purported to rely on matters extrinsic to the petition and did not explicitly state that it was being granted “with prejudice” or otherwise indicate that the Convention was effectively precluded from refiling the same cause of action regardless of how it might draft its pleadings, we dismiss the appeal for lack of a final, appealable judgment.

Procedural History and Facts

The dispute in this case revolves around Windermere Baptist Conference Center (“Windermere”), a public benefit corporation created by the Convention. The stated purpose for Windermere was to establish and maintain conference and recreational facilities to facilitate Christian renewal and commitment. Id. at 684. Upon the incorporation of Windermere and the election of its initial board of directors, the Convention transferred ownership of the real estate to Windermere. Id. at 685. When the Convention drafted and approved Windermere’s articles of incorporation, those articles granted the Convention the right to nominate and elect the members of Windermere’s board of directors. Id. at 685. Those articles also unambiguously stated that Winderm-ere “shall have no members.” Id. at 686-87.

Windermere’s board of directors subsequently voted (without the Convention’s participation or approval) to amend the corporation’s articles and bylaws to, among other things, no longer require that upon any dissolution of Windermere its assets were to be given to organizations affiliated with the Convention. Id. at 686. The Convention filed suit in Cole County, alleging the Convention was a “member” of Windermere, pursuant to section 355.066(21), RSMo Cum.Supp.2007 (a portion of the Missouri Nonprofit Corporation Act) and thereby had the right to vote on any attempt to amend Windermere’s articles of incorporation. Id. at 686. In the Cole County suit, the Convention asserted various legal theories in an attempt to invalidate the amended articles and thereby allow it to ultimately re-acquire the assets (including the real estate) it had transferred to Windermere. Id. at 686-98.

After the circuit court granted summary judgment in favor of Windermere in the Cole County case, the Western District held that the Convention could not have been a “member” of a corporation whose articles unequivocally stated that it “shall have no members.” Id. at 687. The Western District also found that the Convention lacked the standing necessary to challenge the unilateral amendment of Windermere’s articles, because “only members, directors or the Attorney General have standing to challenge ultra vires acts of a not-for-profit corporation.” Id. at 693 (quoting Blue Cross & Blue Shield of Mo. v. Nixon, 81 S.W.3d 546, 552 (Mo.App. W.D.2002)). The Western District further found that the Convention was not a third party beneficiary of Windermere’s articles of incorporation, that Windermere was not liable in rescission, and that the circuit court did not err in dismissing the Convention’s claim of civil conspiracy for failure to state a claim. Windermere, 280 S.W.3d at 694-99. For a complete discussion of the issues involved and resolved by the Cole County lawsuit, see Executive Bd. of the Mo. Baptist Convention v. Windermere Baptist Conference Ctr., supra.

In the instant case, the Convention tried a different tack, fifing a quiet title claim in Camden County, the county in which the real estate is located. The Convention’s petition to quiet title named multiple defendants (collectively, “Defendants”), and based its claim for relief on allegations of fraud and other wrongful conduct purportedly relating to the Convention’s transfer of the real estate to Windermere. Various similarly situated defendants (“the dismissed defendants”) joined together in various combinations and filed a total of four separate motions to dismiss the quiet title action. None of these motions specifically requested that any resulting judgment of dismissal be entered with prejudice.

The trial court incorporated into one “Judgment Entry and Order” (“the dismissal order”) its rulings on the four separate motions to dismiss filed by the dismissed defendants. The dismissal order directed that all claims brought by the Convention were dismissed except those brought against defendants James L. Hill and RDI, LLC. The dismissal order stated that the dismissed defendants were entitled to prevail on them motions based on grounds of: 1) abatement; 2) collateral estoppel; and/or 3) failure to state a claim. The dismissal order did not indicate whether the dismissals were granted with or without prejudice. The order did, however, state that “[tjhere being no just reason for delay, this Judgment is designated final for purposes of appeal pursuant to Missouri Supreme Court Rule 74.01(b).”

Standard of Review

Our review of a trial court’s decision to grant a motion to dismiss is de novo. Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008). “In ruling on a motion to dismiss, the trial court can only consider the pleadings, and appellate review is also limited to the pleadings.” L.C. Dev. Co. v. Lincoln County, 26 S.W.3d 336, 339 (Mo.App. E.D.2000).

Analysis

The first question to be determined is whether the dismissal order is a final judgment from which the Convention may appeal. We are required to, sua sponte, “determine whether a judgment is final for purposes of appeal, and if the appeal is found to be premature, it must be dismissed.” Blechle v. Goodyear Tire & Rubber Co., 28 S.W.3d 484, 486 (Mo.App. E.D.2000). Although the Convention is the party pursuing this appeal, it is in the somewhat unusual position of asserting that the dismissal order is not an appeal-able judgment. The dismissed defendants — who argue that the dismissal order was a final, appealable judgment — also claim this appeal should be dismissed, but for a different reason. The position of the dismissed defendants is that the appeal should be dismissed as time-barred because the Convention did not timely file its notice of appeal. We agree with the position asserted by the Convention.

The Convention did not voluntarily dismiss the claims at issue; they were dismissed by the court after Defendants filed motions requesting that relief. Involuntary dismissals are governed by Rule 67.03, which states, in pertinent part, that “[a]ny involuntary dismissal shall be without prejudice unless the court in its order for dismissal shall otherwise specify.” Rule 67.03. The order in the instant case did not indicate whether the dismissal was with or without prejudice.

To qualify as a final, appealable judgment, the dismissal order must fall within a limited exception to the general rule governing dismissals. The applicable general rule is that “[a] dismissal failing to indicate that it is with prejudice is deemed to be without prejudice.” Jeffrey v. Cathers, 104 S.W.3d 424, 428 (Mo.App. E.D.2003) (citing Rule 67.03; Balke v. Ream, 983 S.W.2d 579, 580 (Mo.App. W.D.1998)). The usual means of specifying that a dismissal is being made “with prejudice” is to use those words. Under this bright-line interpretation of Rule 67.03, the dismissal order would be deemed a dismissal without prejudice. “In a case of a dismissal without prejudice, a plaintiff typically can cure the dismissal by filing another suit in the same court; hence, a dismissal without prejudice is not a final judgment for purposes of appeal.” Ampleman v. Schweiss, 969 S.W.2d 862, 863-64 (Mo.App. E.D.1998) (quoting Vernor v. Missouri Bd. of Prob. & Parole, 934 S.W.2d 13, 14 (Mo.App. W.D.1996)); Finerson v. Roper, 161 S.W.3d 902, 904 (Mo.App. E.D.2005) (citing Nolan v. State, 959 S.W.2d 939, 940 (Mo.App. E.D.1998) (“Generally, a dismissal without prejudice is not an order from which appeal can be taken”)).

The dismissed defendants assert that a trial court may effectively indicate a dismissal was granted with prejudice by certifying that a matter is final for purposes of appeal pursuant to Rule 74.01(b). Rule 74.01(b) is itself an exception to the general rule that “[i]n order for a judgment to be final and appealable[,] it must dispose of all parties and all issues and leave nothing for the court’s later determination.” Crow v. Bertram, 681 S.W.2d 6, 7 (Mo.App. E.D.1984) (citing Gaa v. Edwards, 626 S.W.2d 685, 686 (Mo.App. W.D.1981)). We must therefore first determine whether the trial court’s Rule 74.01(b) certification was proper and, if not, whether it was nonetheless sufficient to indicate that the dismissal order was granted with prejudice under Rule 67.03.

Certifying Less than an Entire Case as Final for Purposes of Appeal

The dismissal order did not dispose of all parties and all issues — the Convention’s claims against James L. Hill and RDI, LLC remained pending. Under the general rule governing the finality of judgments, it would thereby fail to qualify as a final judgment for purposes of appeal. “Where, however, a case involves multiple claims and multiple parties, Rule 74.01 provides an exception to the general rule by allowing a trial court to designate as final a judgment ‘as to one or more claims but fewer than all claims.’ ” Masonic Temple Ass’n v. Compass Square & Star, Inc., 229 S.W.3d 134, 137 (Mo.App. E.D.2007); Rule 74.01. That rule provides, in pertinent part:

When more than one claim for relief is presented in an action ... or when multiple parties are involved, the court may enter a judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay. In the absence of such determination, any order or other form of decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

Rule 74.01(b).

“A trial court’s certification under Rule 74.01 [... ] is not conclusive.” Id. Rather, “[i]t is the content, substance, and effect of the order that determines finality and appealability.” Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997). Further, “[w]hen [as here] a court does not explain its decision, an appellate court should be skeptical.” Columbia Mut. Ins. Co. v. Epstein, 200 S.W.3d 547, 550 (Mo.App. E.D.2006) (citing Horn v. Transcon Lines, Inc., 898 F.2d 589, 592 (7th Cir.1990)).

“[T]he trial court cannot make a judgment final which is not, in fact, final.” Crow, 681 S.W.2d at 8 (citing Daniels v. Richardson, 665 S.W.2d 76, 77 (Mo.App. W.D.1984)). “In order for the designation to be effective, the order or judgment must dispose of ‘a distinct judicial unit,’ that is at least one claim for relief. ‘A claim for relief is the aggregate of operative facts giving rise to a right enforceable by a court.’ ” Masonic Temple Ass’n, 229 S.W.3d at 137 (citing and quoting Maloney v. Thurman, 157 S.W.3d 337, 340 (Mo.App. E.D.2005)). A judicial unit that may be appealed is “the final judgment on a claim, and not a ruling on some of several issues arising out of the same transaction or occurrence which does not dispose of the claim.” State ex rel. State Hwy. Comm’n v. Smith, 303 S.W.2d 120, 123 (Mo. banc 1957). “It is ‘differing,’ ‘separate,’ ‘distinct’ transactions or occurrences that permit a separately appealable judgment, not differing legal theories or issues presented for recovery on the same claim.” Gibson, 952 S.W.2d at 244. Such “claims are separate if they require proof of different facts and application of distinguishable law, subject to the limitation that severing claims does not run afoul of the doctrine forbidding splitting a cause of action.” Epstein, 200 S.W.3d at 550.

“A judgment that resolves fewer than all legal issues as to any single claim is not final despite the trial court’s designation under Rule 74.01(b).” State ex rel. Bannister v. Goldman, 265 S.W.3d 280, 285 (Mo.App. E.D.2008). “Missouri Courts apply a four-factor test in deciding whether Rule 74.01(b) certification is proper and whether there is, in fact, no just reason for delay.” Id. at 286 n. 1.

The four factors are: 1) whether the action remains pending in the trial court as to all parties; 2) whether similar relief can be awarded in each separate count; 3) whether determination of the claims pending in the trial court would moot the claim being appealed; and 4) whether the factual underpinning of all the claims are intertwined.

Id.; see Saganis-Noonan v. Koenig, 857 S.W.2d 499, 501 (Mo.App. E.D.1993).

When these factors are applied to the case at bar, it is apparent that the dismissal order was not properly certified for an immediate appeal. As earlier indicated, the trial court identified three legal grounds for its dismissal order. The first two stated grounds, abatement and collateral estoppel, were not appropriate for immediate appeal because they were defenses to the Convention’s claims that required proof of extrinsic facts — they did not constitute a challenge to the face of the petition. Until those extrinsic facts were properly presented to the trial court, either by trial or in a properly supported motion for summary judgment, no judgment purportedly based on those facts could possibly be ripe for appeal.

In addition, though not very artfully worded, the remaining defendants had also filed a motion to dismiss that claimed all of the Convention’s claims were barred by collateral estoppel because they had already been litigated in the Cole County lawsuit. If James L. Hill had ultimately prevailed by means of that defense, the dismissed defendants would likewise have been entitled to the same relief and the issues currently certified for immediate appeal would be moot. Finally, the extrinsic facts related to the Cole County litigation allegedly supporting the dismissed defendants’ abatement and collateral estoppel defenses are inextricably intertwined with the facts relating to the Convention’s claims against the remaining defendant. Therefore, we find that certifying the dismissed claims as appropriate for an immediate appeal pursuant to Rule 74.01(b) based on the principles of abatement and/or collateral estoppel was inappropriate.

That leaves us with the third ground cited by the trial court — the failure to state a claim upon which relief could be granted. “When reviewing the dismissal of a petition for failure to state a claim, appellate courts treat the facts contained in the petition as true and construe them liberally in favor of the plaintiffs.” Ste. Genevieve Sch. Dist. R-II v. Board of Alderman of Ste. Genevieve, 66 S.W.3d 6, 11 (Mo. banc 2002). Many of the Defendants’ arguments that the Convention failed to state a claim improperly relied on assertions that the actual facts were different than those averred in the Convention’s petition. Arguments that did not improperly challenge the facts as pleaded were that the Convention’s petition failed to set forth all of the elements necessary to state a particular cause of action. If those assertions were correct, the defects could be corrected by the filing of a properly amended petition.

Rule 55.33 states that leave to file an amended pleading “shall be freely given when justice so requires.” Rule 55.33(a); Asmus v. Capital Region Family Practice, 115 S.W.3d 427, 433 (Mo.App. W.D.2003). Rule 67.06 states, in pertinent part: “[o]n sustaining a motion to dismiss a claim ... the court shall freely grant leave to amend and shall specify the time within which the amendment shall be made or amended pleading filed. If the amended pleading is not filed within the time allowed, final judgment of dismissal with prejudice shall be entered on motion except in cases of excusable neglect; in which cases amendment shall be made promptly by the party in default.” Although leave to amend should be freely granted, a court rightly refuses such a request if the requested amendment would not cure the deficiency. Asmus, 115 S.W.3d at 433. Whether a requested amendment would be effective to cure a deficiency depends on the nature of the deficiency.

Assuming for the moment that the certification of a judgment as final for purposes of appeal pursuant to Rule 74.01(b) does not overcome the presumption that a dismissal otherwise silent on the issue is deemed a dismissal without prejudice, “a dismissal without prejudice for failure to state a claim upon which relief can be granted can be tantamount to a determination that the plaintiff has no cause of action and can result in a final, appealable judgment.” Ampleman, 969 S.W.2d at 864 (citing Meadows v. Jeffreys, 929 S.W.2d 746, 748 (Mo.App. S.D.1996)); State ex rel. Hazelwood Yellow Ribbon Comm. v. Klos, 35 S.W.3d 457, 464 (Mo.App. E.D.2000) (“[A] dismissal ‘without prejudice’ for failure to state a claim may be appealed if it effectively precludes the plaintiff from re-filing the same cause of action.”) (citing WEA Crestwood Plaza v. Flamers Charburgers, Inc., 24 S.W.3d 1, 5 (Mo.App. E.D.2000)).

A dismissal without prejudice may nevertheless operate to preclude the party from bringing another action for the same cause, and may nevertheless be res judicata of what the judgment actually decided. Douglas v. Thompson, 286 S.W.2d 833, 834 (Mo.1956). When the effect of the order is to dismiss the plaintiffs action and not the pleading merely, then the judgment entered is final and appealable. White v. Sievers, 359 Mo. 145, 221 S.W.2d 118, 122 (banc 1949). The dismissal without prejudice for failure of the petition to state a claim, when the party elects not to plead further, amounts to a determination that the plaintiff has no action. In such a case, the judgment of dismissal — albeit without prejudice — amounts to an adjudication on the merits and may be appealed. Hasemeier v. Smith, 361 S.W.2d 697, 699 (Mo. banc 1962); Nicholson v. Nicholson, 685 S.W.2d 588, 589 (Mo.App.1985). This train of exceptions serves to preserve to a plaintiff rights that otherwise would be lost from a dismissal, which, although without prejudice, becomes res judicata, of what that judgment actually decides. Healy v. Atchison, Topeka & Santa Fe R.R. Co., 287 S.W.2d 813, 815 (Mo.1956); Douglas v. Thompson, 286 S.W.2d [833,] 834 [ (Mo.1956) ].

Mahoney v. Doerhoff Surgical Servs., Inc., 807 S.W.2d 503, 506 (Mo. banc 1991).

Here, the Convention did request leave to file an amended petition, but the court denied that request as to the claims brought against the dismissed defendants. The fact that the trial court later granted the Convention leave to amend its petition in regard to its claims against James L. Hill indicates that it was still willing to allow the Convention to correct defective attempts to seek relief which would be available under Missouri law if properly pleaded.

The ability to bring a cause of action in Missouri to quiet title to real property is provided by statute.

1. Any person claiming any title, estate or interest in real property, whether the same be legal or equitable, certain or contingent, present or in reversion, or remainder, whether in possession or not, may institute an action against any person or persons having or claiming to have any title, estate or interest in such property, whether in possession or not, to ascertain and determine the estate, title and interest of said parties, respectively, in such real estate, and to define and adjudge by its judgment or decree the title, estate and interest of the parties severally in and to such real property.
2. And upon the trial of such cause, if same be asked for in the pleadings of either party, the court may hear and finally determine any and all rights, claims, interest, liens and demands, whatsoever of the parties, or of any one of them, concerning or affecting said real property, and may award full and complete relief, whether legal or equitable, to the several parties, and to each of them, as fully and with the same force and effect as the court might or could in any other or different action brought by the parties, or any one of them, to enforce any such right, claim, interest, lien or demand, and the judgment or decree of the court when so rendered shall be as effectual between the parties thereto as if rendered in any other, different or separate action prosecuted therefor.

Section 527.150.

The motions to dismiss filed by the various defendants asserted that the Convention’s claims against them should be dismissed based on extrinsic matters related to the Cole County lawsuit (abatement and collateral estoppel) or attacked the sufficiency of the Convention’s Second Amended Petition to assert each of the factual averments necessary to support its various claims for relief. In other words, setting aside the Defendants’ references to matters requiring extrinsic proof, the remaining alleged defects could have been cured by the filing of a properly amended petition.

As a result, the trial court’s dismissals based on the failure to state a claim for which relief could be granted did not implicitly constitute “a judgment on the merits, ‘such that a refiling of the petition at that time would be a futile act.’ ” Jones v. Jackson County Circuit Court, 162 S.W.3d 53, 58 (Mo.App. W.D.2005) (quoting State ex rel. Dos Hombres-Independence, Inc. v. Nixon, 48 S.W.3d 76, 79 (Mo.App. W.D.2001)). Therefore, the dismissal order did not implicate that limited category in which a dismissal deemed to be without prejudice may still constitute a final, ap-pealable judgment, and the trial court’s certification of the dismissal order as final for purposes of appeal pursuant to Rule 74.01(b) was improper.

As earlier indicated, our analysis does not end here. The dismissed defendants argue that even if the trial court’s certification under Rule 74.01(b) was improper, it was nonetheless an effective means of transforming what would otherwise have been deemed a non-appealable dismissal without prejudice into an appealable dismissal with prejudice under Rule 67.03.

Does Rule 74.01(b) Certification Language “Otherwise Indicate” a Dismissal Was Entered With Prejudice Under Rule 67.03?

Again, under the usual interpretation of Rule 67.03, the dismissal order would be deemed a dismissal without prejudice and thereby not constitute a final, appealable judgment. The dismissed defendants argue that the use of the word “deemed” in the applicable cases should not be read as creating an irrebuttable presumption. Instead, it argues that the language a court uses to certify a distinct judicial unit as final for purposes of appeal under Rule 74.01(b) may also be a means of “otherwise specifying]” under Rule 67.03 that a dismissal was made with prejudice. This position is not completely without support. The Western District, without so holding, has at least hinted that such a certification might be a means of specifying that a dismissal was granted with prejudice. See Pruitt v. Missouri Dept. of Corr., 224 S.W.3d 630, 631-32 (Mo.App. W.D.2007).

Under the specific circumstances present in the case at bar, this district is not prepared to hold that the trial court’s Rule 74.01(b) certification language indicated that its dismissal order was granted with prejudice. If we have misread the court’s intent, it may easily rectify the situation by entering a judgment of dismissal that unambiguously dismisses the Convention’s claims “with prejudice.”

The appeal is dismissed.

BATES, P.J., and RAHMEYER, J., Concur.

      . The Convention acts through its Executive Board and messengers. Id.

      . The Western District issued its opinion after the instant case was filed but before the trial court entered its order of dismissal.

      . This group included all of the named defendants except James L. Hill and RDI, LLC. These two defendants had also filed a joint motion to dismiss, but that motion was denied by the trial court and the Convention's claims against them remained pending.

      . Unless otherwise noted, all rule references are to Missouri Court Rules (2009).

      . To determine "whether or not a cause of action is single and cannot be split ...” this court examines: "1) whether the actions brought arise out of the same act, contract, or transaction; or 2) whether the parties, subject matter, and evidence necessary to sustain the claim are the same in both actions.” Id. at 550-51.

      . "Although a pending action does not ‘bar’ a later action between the same parties, it is a defense which may be pled only as a ground for abatement of the later action.” In re Marriage of Gormley, 813 S.W.2d 108, 111-12 (Mo.App. S.D.1991). Abatement can be pled as a defense when "there is another action pending between the same parties for the same cause in this state." Id. at 112. "[Pjen-dency of a prior action is not ground for dismissal with prejudice, but ground only to stay or abate the later action.” Id.

      . The Convention’s claim against the other remaining defendant, RDI, LLC, was dismissed when the trial court allowed the Convention to file a Third Amended Petition against James L. Hill ("the remaining defendant”) only.

      . Emphasis added. The provisions of Rule 67.03 that allow a trial court to dismiss a petition with prejudice without freely allowing amendment as a sanction for the petitioner’s failure to comply with its previous orders are not at issue here, in that the Convention was not found to have failed to comply with any court order. A trial court is also excused from complying with the provisions of Rule 67.06 if the petitioner does not request leave to amend. Sisco v. James, 820 S.W.2d 348, 351 (Mo.App. S.D.1991). Here, the Executive Board did request leave to file an amended petition in response to the dismissal order — a request denied by the trial court as to all claims brought against the dismissed defendants but granted as to those claims brought against defendants James L. Hill and RDI, LLC.

        . Unless otherwise noted, all statutory refer-enees are to RSMo 2000.


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

text:
    Jerry Joe MILLER, Appellant, v. Laverda Kim MILLER, Respondent.
    Nos. SD 28960, SD 29159.
    Missouri Court of Appeals, Southern District, Division Two.
    April 30, 2010.

      Christina L. Kime, Piedmont, for Appellant.
    Steven Privette, Willow Springs, for Respondent.
   DANIEL E. SCOTT, Chief Judge.

Appellant (Husband) challenges the judgment dissolving his marriage with Respondent (Wife). His six points involve property division, maintenance, and attorney fees.

Our standard of review is the same as in any court-tried action. Souci v. Souci, 284 S.W.3d 749, 752 (Mo.App.2009).

The decree must be affirmed unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. We do not retry the case, rather we accept as true the evidence and reasonable inferences therefrom in a light most favorable to the prevailing party and disregard contradictory evidence. The trial court is free to accept or reject all, part, or none of the testimony of a witness. We defer to the trial court’s determinations of credibility in making our review.

Id. at 752-53 (citations, footnotes, and quotation marks omitted). We will affirm if the judgment is correct on any tenable basis. Owens v. Owens, 219 S.W.3d 867, 871 (Mo.App.2007); Koon v. Koon, 969 S.W.2d 828, 831 (Mo.App.1998). Being so guided, we reject all but one of Husband’s complaints. The trial court erred in not designating its maintenance award as either modifiable or nonmodifiable. We remand for correction of that oversight, and otherwise affirm the judgment.

Facts and Background

Husband and Wife were married in 1970 and separated in December 2004. Shortly thereafter, Husband was ordered to pay Wife temporary maintenance of $1,000 per month. Evidence in this “long and hard-fought” case, as the trial court described it, was taken over four separate days in 2007.

Husband was in the Navy when the parties married. He retired in 1990 and started work for what now is DRS Technologies, where the trial court found he earned over $70,000 per year, in addition to military benefits of $2,757 per month and income as a firefighting instructor. Just before the dissolution trial started in 2007, DRS eliminated Husband’s job and offered 16 weeks’ severance ($19,702). His vested DRS pension had a present value of $119,174.

Wife suffered significant medical problems, including cancer and a chronic back condition that had required two surgeries. Primarily a homemaker, she became a school secretary after separation. At the time of trial, she grossed $1,890 and netted $1,281 monthly, and her retirement benefit had a present value of $8,962.

Property Division

The court awarded Wife marital property valued at $294,000, consisting of the unencumbered marital home ($200,000), Wife’s $8,962 pension, an $8,000 bank account, a car, household and miscellaneous items, and a $59,875 judgment against Husband representing 50% of his DRS pension’s value.

The court awarded Husband 100% of his military pension and $192,653 in other marital property. The latter included half the value of the DRS pension ($59,875), “Cashed Investments after Separation” totaling $116,900, a vehicle, two investment accounts, and various tools and personal items.

Maintenance

Wife sought $1,500 monthly maintenance. The court found that her medical expenses were “significant,” her medical problems may soon end her ability to work, and that dissolution would cut off her military dependent coverage. The court found she lacked sufficient property to provide for her reasonable needs, could not support herself through appropriate employment, and thus needed maintenance.

As to the amount of maintenance, the court found Husband’s economic circumstances superior to Wife’s, and that Husband (age 57) was capable of working and earning a substantial wage, but chose not to do so after DRS eliminated his job. The court found Husband capable of earning, including his various retirement benefits, at least $4,500 per month, and that his relationship with another woman was a precipitating factor in the dissolution. After considering all factors, the court ordered Husband to pay Wife $1,000 monthly maintenance, but did not state whether it was modifiable or nonmodifiable.

Attorney Fees

Wife requested $16,000 in attorney fees for the trial court proceedings. The court allowed $10,000, noting that Husband was not forthcoming before or during trial about his financial assets, retirement benefits, or romantic relationship, and Wife incurred additional attorney fees to ferret out information on these significant issues.

Wife also sought $10,000, but the trial court granted only $3,500, for her attorney fees on appeal.

Property Division (Point IV)

We address Husband’s claims out of order. He challenges the property division as disproportionate because he was charged with the value of investment accounts that he liquidated, while Wife received the marital home and a $59,875 judgment representing half of Husband’s DRS pension.

The simplest reason to deny Point IV is that it ignores Husband’s military pension, which the trial court could not value, although Husband’s DRS pension may provide a rough guide. The latter, with a monthly payout of $814 at age 65, had a present value of $119,174. By contrast, Husband’s military retirement, even after he waived part of it, pays $2,256 per month now.

A property division need only be fair and equitable under the circumstances. Souci, 284 S.W.3d at 754. We disturb a trial court’s broad discretion only if a division is so disproportionate as to show abuse of discretion. Id. We presume the division is correct, and Husband had the burden to prove otherwise. Id. He did not do so. We deny Point IV and affirm the property division.

Maintenance (Points I — III)

Husband’s first three points challenge the $1,000 monthly maintenance award, which was aimed at closing the gap between Wife’s income and monthly expenses and involved a two-step analysis. Souci, 284 S.W.3d at 757; § 452.335. First, § 452.335.1 required the court to determine that Wife lacked sufficient property to provide for her reasonable needs and could not support herself through appropriate employment. Souci, 284 S.W.3d at 757. If the court so found, the second step was to consider § 452.335.2’s ten factors in fashioning an appropriate award. Id. The trial court enjoyed broad discretion as to maintenance; we will reverse only if its discretion was abused. Workman v. Workman, 293 S.W.3d 89, 98 (Mo.App.2009).

Need for Maintenance

Point I challenges the step-one finding that Wife needs maintenance, particularly that she cannot support herself through employment. Husband claims the court erred in calculating Wife’s salary, which he argues is sufficient for her reasonable needs since she was awarded her car and the marital home free of debt.

Even if we accept Husband’s arguments for modestly adjusting Wife’s income and expenses, her need for maintenance still is supported by the record as we must view it. The trial court deemed Wife’s medical expenses “significant” and likely to increase. Wife has undergone two back surgeries, cannot walk more than 50 feet without pain, and cannot lift more than ten pounds. She is in remission for thyroid cancer and requires regular ultrasounds to check her status. Suffice it to say there was substantial evidence that even without mortgage or car payments, Wife’s net income would not meet her medical expenses. We deny Point I.

Maintenance Amount

Point II claims the trial court failed, in step two of the maintenance analysis, to properly consider factors (1), (3), and (8) of § 452.335.2. He argues that the parties’ incomes were comparable; Wife had a paid-for home and automobile; Husband lost his job through no fault of his own and there was no evidence that he could replace it or earn $4,500 per month; and Husband suffered from disabilities that limited his ability to work. We accept some of his assertions, but they do not prove error.

Husband’s arguments principally address factor (3), comparative earning capacities. Wife has a high school education, modest job skills, significant physical limitations, chronic medical problems, and spent most of the marriage as a homemaker. By contrast, Husband always worked outside the home, first in the military, then for DRS.

The court found Husband capable of earning $4,500 per month, including his various retirement benefits. Citing his monthly military benefits totaling $2,756.57, Husband essentially claims there was no basis to impute to him another $1,743.43. He argues against imputing income due to his DRS pension, since those benefits would be severely limited if he had to start drawing them now. We tend to agree with Husband on that, but not with his challenge to the finding that he makes money as a firefighting instructor. The court did not have to believe Husband’s testimony that he spent more than he earned for such work.

Husband quotes Buchholz v. Buchholz, 166 S.W.3d 146, 153 (Mo.App.2005), for the proposition that his pay at DRS “is not alone a sufficient basis upon which to impute income at those levels.” The $1,743.43 at issue, however, is far less than Husband’s DRS salary.

Husband also argues that even in cases where imputation of income is warranted, there must be a showing that it could be earned. He cites Garrison v. Garrison, 846 S.W.2d 771, 774-77 (Mo.App.1993), in which this court reversed imputation of $7,132 per month to an unemployed spouse. It was proper to impute income since the spouse was not seeking appropriate employment. Id. at 776. However, $7,132 was more than the record supported, so we reversed and remanded to reconsider that amount. Id. at 776-77.

In this case, the trial court could find from the record that Husband was able to work, yet chose to stay unemployed:

[Counsel]: What effort have you made to look for a new job?
[Husband]: I haven’t made any effort yet.
[Counsel]: You haven’t prepared a resume?
[Husband]: No.
[Counsel]: When are you going to do that?
[Husband]: I’m going to the VA January 24th to increase my disability, and I don’t think I’ll be looking for a new job.
[Counsel]: You’re not going to work? Is that right?
[Husband]: Right.

As in Garrison, the issue here is not imputation of income per se, but whether Husband could earn at least $1,743.43 monthly. The record, reasonable inferences, and common sense indicate he could do so; there was no abuse of discretion in so finding.

Husband also asserts that the court did not consider § 452.335.2’s factor (8), which is Husband’s ability to meet both his needs and Wife’s need for maintenance. Husband estimated that his monthly expenses exceeded $5,000, but the court did not have to accept that figure, just as it did not fully accept Wife’s expense estimate.

Finally, the trial court’s consideration of Wife’s medical expenses, which we summarized under Point I, refutes Husband’s claim that the court failed to consider § 452.335.2’s factor (1), Wife’s financial resources and ability to independently meet her needs.

Unless the amount of maintenance is patently unwarranted and wholly beyond Husband’s means, we should not disturb it. Souci, 284 S.W.3d at 758. It was Husband’s burden, as appellant, to prove the maintenance award shocks our sense of justice. Id. He failed to do so. Point denied.

Point III

Point III — that the maintenance should have been designated either modifiable or nonmodifiable per § 452.335.3 — is well taken. We remand with directions to enter an amended judgment correcting this oversight.

Attorney Fees (Points Y & VI)

Husband attacks both attorney fee awards as based “at least in part” on the trial court’s (1) imputation of $4,500 monthly income to Husband without evi-dentiary support, and (2) failure to consider other relevant circumstances including that Wife was awarded the marital home and an automobile free of debt. The latter claim is ipse dixit — there is no showing or reason to think the trial court did not consider “all relevant factors” under § 452.355.1, including its division of marital property, in making these awards.

Husband’s imputed income complaint was considered and rejected above. Moreover, what the judgment says is that “Husband is in a superior financial position considering the comparative income and financial resources of the parties.” This appropriate finding (§ 452.355) is supported by the record, notwithstanding Husband’s income argument, since he had adequate property from which to pay such awards.

Husband also claims the evidence was insufficient to support a $3,500 award for attorney fees on appeal. When Husband made this argument in the trial court, Wife’s counsel replied that the court was an expert on attorney fees, but offered to reopen the case and testify on the issue. The court’s response was that it had heard the trial evidence and:

I certainly have enough evidence to know there is some work involved in an appeal, including reviewing transcripts, and preparing motions, and briefs for the appellate court, and oral argument if that’s authorized. And I know the value charged. I don’t have it on the tip of my tongue, but I can go back and look at the record and find that in the fee that is charged.
So, I do believe I have to overrule a motion to dismiss or to rule for [Wife] and will do so at this time. Could I have more evidence? Yes. Do I have all the evidence? Probably not, but I believe I have sufficient evidence certainly under the case that you submitted to me, which is basically what they had there, enough to make an award if I so find.

“Because the trial court is an expert on attorney fees, and familiar with the issues involved, it can fix the amount of attorney fees without the aid of evidence if necessary.” In re Kreutzer, 50 S.W.3d 334, 341 (Mo.App.2001). See also Souci, 284 S.W.3d at 760; Vanderpool v. Vanderpool, 250 S.W.3d 791, 797 (Mo.App.2008).

The trial court had broad discretion to grant attorney fees. Its awards are presumed correct on appeal and we will reverse only for abuse of discretion. Souci, 284 S.W.3d at 760. Finding none here, we deny Husband’s points and affirm the attorney fee awards.

Conclusion

The result here is dictated by the standard of review. Husband’s complaints, Point III excepted, involve areas of broad trial court discretion. We do not consider them de novo, reweigh the evidence, or speculate on how we might have ruled. Rather, it was Husband’s difficult burden to show the subject rulings were so illogical, arbitrary, and unreasonable “as to shock one’s sense of justice and indicate a lack of careful consideration.” Souci, 284 S.W.3d at 754.

This judgment and record reflect careful consideration of the issues. The property division, attorney fee awards, and findings that Wife needs maintenance and the amount thereof do not shock us or offend our sense of justice. The standard of review thus directs us to deny Points I, II, IV, V, and VI, and to affirm the judgment with respect to those claims of error.

Accordingly, we grant Point III and remand for entry of an amended judgment stating whether the maintenance award is modifiable or nonmodifiable as required by § 452.335.3. We affirm the judgment in all other respects and deny all motions taken with the case.

LYNCH, P.J., concurs.

RAHMEYER, J., concurs in result in separate opinion.

NANCY STEFFEN RAHMEYER, Judge,

concurring.

I concur in the result but write separately to note that this decision was driven by the facts of this case, particularly the evidence before the trial court that Husband secreted money and was not forthcoming with the financial information necessary for the court to make its decision. I am concerned with several aspects of the trial court’s decision being used as precedent in a later case. My first concern is the interplay between the property award and maintenance: Husband was awarded his military pension of $2,757 per month; that pension was never valued at trial. The only other major items of marital property awarded to Husband were the investments that had been cashed after the separation (which Husband claimed were no longer in existence but the trial court could have found to be hidden in various accounts) and one-half of the DRS pension, which I will discuss in the next paragraph. The trial court specifically noted the monthly retirement benefits when discussing Husband’s ability to pay maintenance and imputed $4,500 per month in income to him despite the fact that Husband lost his job through no fault of his own, was fifty-seven years old, was working minimally as a firefighting instructor, and had his own health issues. I am troubled by the assumption that Husband must continue to work at his age at the same level and income despite the fact that he has already retired from two different jobs. Neither the courts nor the legislature have addressed the issue of when the person paying maintenance should be allowed to retire, and this may not be the appropriate case in which to do so, but at some point that issue simply must be addressed. Equally troubling is the fact that the asset that Husband was awarded is also considered as income in determining maintenance. If more than one-third of awarded pension is awarded to Wife as maintenance, then Husband’s property award is considerably less. As I noted earlier, the only reason I concur in this is because no value was given to the pension at trial and the trial court could have found that even two-thirds of the pension to Husband amounted to an equitable distribution of property.

My second concern is the DRS pension. Husband and Wife were each awarded one-half of the pension from DRS Technologies; however, there was absolutely no evidence of how the present value of the pension was determined. There was evidence that if Husband tried to collect the pension benefits during the year of the divorce, he would receive $447.32 per month; if he waited until he was sixty-five years of age, he would collect $813.31 per month. Furthermore, he was only guaranteed five years of benefits should he die prior to the initial five-year period. In this case, he would be paid a minimum of $26,839.20 if he collected at age fifty-six and $48,798.60 if he started collecting benefits at age sixty-five. Despite the drastic difference in the pension benefit analysis, the trial court valued the pension at $119,174 and awarded wife a judgment of $59,875 for those benefits. Also troubling is that there is no such liquidated asset for the DRS pension account in the amount of $59,875; that judgment will bear a nine percent interest rate. I am mindful that when our Supreme Court held that pension plans may often be the most valuable asset belonging to a married couple, it also noted that it is not mandatory that pension benefits be divided between spouses, whether they be fixed or otherwise, where other assets are available. Kuchta v. Kuchta, 636 S.W.2d 663, 664, 666 (Mo. banc 1982). In this case, it will take Husband over twenty-two years to pay the judgment of $59,875 plus interest from the pension benefits if he takes the benefit at the earlier age and has his entire DRS monthly pension benefit as the sole asset from which to pay the judgment. If he defers payment until age sixty-five, why should Wife benefit in those interim years? In most cases, that is not an equitable division of the pension benefits. The only reason I concur in this result is the specific finding by the trial court that there may be other assets hidden by Husband available to pay that judgment. For these reasons, I concur in the result of affirming the trial court ruling but note caution in doing so.

      . Husband's Navy retirement was $2,550 per month when the parties separated. He later waived part of his retirement pay to increase his non-taxable disability benefit. See Morgan v. Morgan, 249 S.W.3d 226, 230 (Mo.App.2008). At time of trial, his monthly benefits were split $501 disability and $2,256 retirement.

      . The judgment shows Wife's monthly net income as $1,181. As shown infra, this appears to be an error, but not one that changes the result.

      . Husband and Wife were wed for 20 of his 22 years in the service, so most of his Navy pension accrued during marriage. The judgment lists that pension's value as “Unknown” because it was not established, but no part of it was included in the $192,653 figure allocated to Husband.

      . The court found that Husband received more than $116,900 after separation by closing eight investment accounts.

      . Wife relied on Husband's medical coverage during the marriage. She first had military medical benefits, then primary coverage through Husband’s employer DRS, with military coverage as secondary. She lost her primary coverage after separation when Husband did not re-enroll her despite a court order to do so. She had coverage through her employer at time of trial, but there was evidence that she needed a supplemental policy ($1,025 per month) for expenses not covered thereby.

      . We reject Husband’s complaint about the DRS memo that established this present value. Husband did not object when the memo was offered or admitted into evidence, or to the same testimony by DRS's human resources director.

      . The evidence, including Wife’s testimony, showed that her “pay-stub” net income was $1,281 monthly, not $1,181 as the trial court found. Wife's employer also was paying for her health insurance at the time of trial, although this arrangement was not guaranteed to continue.

      . Husband also claims a pay deduction for Wife’s retirement plan ($123.34) should be counted toward her net income. Adding this sum would not change our analysis. Forcing Wife to forego modest retirement contributions to meet current expenses also is likely to make her needier in retirement, and in that respect, Husband's argument undercuts itself.

      .These are, respectively:
      (1) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
      (3) The comparative earning capacity of each spouse; and
      (8) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.

      . The judgment indicates that Mr. Barton, DRS's human resources director, "testified that Husband would be eligible for other employment should he choose to apply, but he has not.” Husband claims there was no such testimony, only Wife’s counsel’s argument that "Garland Barton told me he would be eligible to come back to work. All he had to do was apply.” As our opinion shows, whether or not Mr. Barton so testified, the record and reasonable inferences support a finding that Husband was capable of earning $4,500 monthly, including military benefits.

      . Husband's Buchholz and Garrison references involved child support, but similar principles apply regarding maintenance. See Ramsey v. Ramsey, 965 S.W.2d 365, 372 (Mo.App.1998).

      .Although Husband cites his "service-connected disabilities,” he also stresses that he left DRS only because his job was eliminated and through no fault of his own. A reasonable inference is that he would still be working at DRS, despite any disabilities, but for elimination of his position. Also, Husband testified that he still planned to train firefighters all over Missouri. If he is ready, willing, and able to travel around the state and train firefighters, it is reasonable to infer that he is physically able to work for wages. Wife works and earns nearly what Husband would need to reach $4,500 per month, although the evidence suggests she is at least as disabled as he.

      . The trial court found that Husband would be eligible for other employment at DRS, should he choose to apply, but that finding is unsupported in the record.

      . That rate was mandated by the legislature in 1979, and while it no doubt acts as an incentive to pay the judgment, it no longer represents a reasonable return on investment in the today’s economic climate. Although the question of post-judgment interest is best left for the legislature, in a case such as this when there is no liquidated debt, trial judges should be aware of the issue.


author: MARK D. PFEIFFER, Presiding Judge.

text:
    Michael G. BECK, Appellant, v. Steven Lee PATTON, Respondent.
    No. WD 71377.
    Missouri Court of Appeals, Western District.
    May 4, 2010.

      Michael G. Beck, Brentwood, MO, pro se.
    Robert Herman, St. Louis, MO, Philip E. Prewitt and Zachary H. Armfield, Macon, MO, for Respondent.
    Before Division II: MARK D. PFEIFFER, Presiding Judge, and VICTOR C. HOWARD and ALOK AHUJA, Judges.
   MARK D. PFEIFFER, Presiding Judge.

Michael G. Beck (“Beck”) appeals the grant of summary judgment entered by the Circuit Court of Livingston County (“trial court”) against him and in favor of Steven Lee Patton (“Patton”) on an Inter-pleader action relating to a dispute between attorneys Beck and Patton over entitlement to attorney’s fees earned in a personal injury lawsuit. On July 14, 2009, the trial court entered Judgment granting Patton’s Motion for Summary Judgment, ordering payment of the interpleaded funds in the amount of $11,111.00 to Patton, and assessing court costs against Beck. We reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

Procedural History and Statement of Facts

Rondi Poppe (“Poppe”), as next friend of Eden Ralston, a minor, signed a contingency fee contract with the law firm of S. Lee Patton, Attorney at Law. Beck, who claims to have a fee-splitting agreement with Patton through their partnership or other ad hoc relationship, presented the fee contract to Poppe at her home and served as the witness to her signing of the contingency fee agreement. Poppe filed suit against James A. Green (“Green”), as the result of injuries to Eden Ralston that were claimed to have been negligently caused by Green in a car accident. Poppe later entered into a settlement agreement with Green, which was approved by the trial court in a Judgment and Order Approving Settlement whereby $33,856.97 was designated by the trial court to cover attorney’s fees and reimbursement of litigation expenses. The trial court ordered $22,745.97 to be paid to Patton as his uncontested share of attorney’s fees and expense reimbursement. The trial court ordered $11,111.00 of contested attorney’s fees to be paid into the court registry with Green being granted leave to interplead the contested funds and then to be dismissed from the interpleader proceedings. The interpleader proceeding was necessary due to a dispute between Patton and Beck as to who was entitled to the contested funds in light of an alleged fee-splitting agreement resulting from Beck’s claim of a law firm partnership or other ad hoc relationship with Patton.

Beck filed an Answer and Cross-Claim to Interpleader, followed by an affidavit and other supporting documentation in which Beck claimed he and Patton had a fee-splitting arrangement through their partnership or other ad hoc relationship whereby they agreed to split fees on cases they had worked on together, including the Poppe case. Patton filed Objections and a Motion to Dismiss Beck’s Cross-Claim to Interpleader. The trial court overruled Patton’s Motion to Dismiss, after which Patton then subsequently filed a Motion for Summary Judgment. In his Motion for Summary Judgment, Patton attached an affidavit and documents in support of the motion, alleging that Beck and Patton were not members in the same law firm and that no written contingency fee agreement had ever been entered into between a client and both Beck and Patton. Beck filed his Answer to Motion for Summary Judgment with an affidavit alleging that he and Patton were, indeed, law partners and that they had worked on approximately 250 cases since 2004 under this partnership or other ad hoc relationship and fee-splitting arrangement.

Following a hearing, the trial court issued its Judgment granting Patton’s Motion for Summary Judgment, ordering payment of the interpleaded funds to Patton, and assessing costs against Beck. It is from this Judgment that Beck timely appeals.

Standard of Review

Our review of a grant of summary judgment is “essentially de novo.” ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). “The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially.” Id. “The propriety of summary judgment is purely an issue of law.” Id. “As the trial court’s judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court’s order granting summary judgment.” Id. When considering an appeal from summary judgment, we review the record in the light most favorable to the party against whom judgment was entered. Id. “We accord the non-movant the benefit of all reasonable inferences from the record.” Id. Summary judgment will only be upheld on appeal if: (1) there is no genuine dispute of material fact, and (2) the movant is entitled to judgment as a matter of law. Brock v. Blackwood, 143 S.W.3d 47, 61 (Mo.App. W.D.2004); see also Rule 74.04(c).

Discussion

Regardless of any other point presented by the parties on appeal, it is incumbent upon Patton, as the summary judgment movant, to demonstrate that there is “no genuine issue as to any material fact and that [he is] entitled to judgment as a matter of law.” Rule 74.04(c)(6); see also ITT Comm. Fin. Corp., 854 S.W.2d at 381. Beck’s Fifth Point on appeal goes to the heart of this question by asserting that when summary judgment was granted, there remained material issues of fact regarding the relationship between attorneys Beck and Patton as partners or ad hoc partners and whether they jointly agreed to represent Poppe under a fee-splitting agreement between the attorneys. Because this issue is dispositive of Beck’s appeal, we begin our discussion with this Point.

Patton relies upon Rule 4-1.5(e) to assert that under no circumstance could Beck be legally entitled to any portion of attorney’s fees received by the law firm of S. Lee Patton, Attorney at Law, because Beck’s name was not on the firm’s letterhead nor otherwise referenced in client contracts. To the contrary, however, after evidence regarding the alleged relationship between Patton and Beck and their corresponding individual work on the Poppe case is received in the record at a subsequent trial of this matter, if Patton’s law firm is determined to consist of some sort of contractual partnership agreement or ad hoc partnership arrangement between Patton and Beck, then Rule 4-1.5(e) may be inapplicable to this interpleader action. Rule 4-1.5(e), as it relates to the ethical practice of law, applies only to attorney fee agreements made between associated, yet distinct, attorneys (or law firms) and the client. The rule in no way passes judgment on the legal validity of a law partner’s entitlement to a portion of fees received incident to a long-standing or case-by-case partnership agreement between attorneys, particularly if and when both attorneys have expended time and resources on behalf of the particular client.

The record reflects a genuine issue of fact as to the nature of the attorneys’ relationship, with Beck asserting that a valid partnership existed between the parties and Patton asserting that the two were never partners or attorneys in the same firm. On appeal from summary judgment, we accord the non-movant the benefit of all reasonable inferences from the record in determining whether a genuine issue of fact remains. ITT Comm. Fin. Corp., 854 S.W.2d at 376. Therefore, we accord Beck the benefit of all reasonable inferences from the record and assume, as Beck has averred in his affidavit filed with the trial court, that the attorneys did have a partnership in the firm of S. Lee Patton, Attorney at Law. This necessary assumption renders Patton’s Rule 4 argument null or, at minimum, premature as Rule 4-1.5(e) does not apply to the partnership relationship which Beck claims existed at the time the Poppe fee was earned. See Welch v. Davis, 114 S.W.3d 285, 290 (Mo.App. W.D.2003) (holding that Rule 4-1.5(e) did not impose qualifications on the right to divide a legal fee between attorneys who “held themselves out to their clients and practiced together as a single, collective business entity”).

Beck asserts, and Patton denies, that the attorneys had a partnership in which they agreed to split all fees from cases handled jointly by Beck and Patton under the umbrella of the law firm of S. Lee Patton, Attorney at Law, on a two-thirds to one-third ratio, with Patton receiving the larger amount. This arrangement, Beck claims, specifically relates to the Poppe case and resulting attorney’s fee. In short, the nature, scope, and validity of the partnership or fee-splitting agreement between the parties, if any existed, is left entirely unsettled. If Beck’s claim of the existence of a law partnership or other ad hoc relationship and a corresponding attorney fee-sharing agreement with Patton is true, then Beck may have a contractual claim of entitlement to the interpleaded funds to the exclusion of Patton. So long as there exists a potentially valid entitlement to the attorney’s fee by Beck, summary judgment by the trial court was improper.

There is nothing in the record before this Court which settles the issue of Beck’s or Patton’s entitlement to the interpleaded funds in anything approaching a conclusive way. Whether or not Beck and Patton had an enforceable fee-splitting agreement with regard to the Poppe attorney’s fee remains a disputed question of fact. There are allegations and documents, including email exchanges, pictures, and advertisements, in the record which, when viewed in the light most favorable to Beck, indicate that Beck and Patton were both holding themselves out to their clients and actually practicing as a single, collective legal business entity, partnership, or other ad hoc relationship and that there was some sort of fee-sharing agreement or relationship between these attorneys in their past dealings and which may have been applicable to the Poppe case. However, the extent of this relationship, including any agreement as to the division of fees is simply unascertainable from the record as it currently stands. As this genuine issue of material fact exists in the present state of the record and carries with it legally probative force as to the just and proper release of the interpleaded funds, the trial court erred in granting summary judgment in favor of Patton.

Conclusion

The Judgment is reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion.

VICTOR C. HOWARD, and ALOK AHUJA, JJ., concur.

      . We express no opinion as to the status, existence, or validity of any partnership or other ad hoc relationship between Patton and Beck for division of attorney fees, other than that this remains a genuine issue of fact on the present state of the record before this Court.

        . One of the supporting documents is a letter addressed to the parents of the injured minor soliciting a phone call from the parents to discuss the minor’s injuries, including the comment, “Unlike many law firms, you will always talk to Mike [Beck] or me [PattonJ, not a secretary or paralegal.” Another document was a photograph advertisement of "S. Lee Patton — Attorney At Law” in which there were two lawyers pictured — Beck and Patton. Another document was an e-mail dated October 30, 2007, in which Patton, in response to an inquiry as to who Beck was, responded: "Mike is my partner.”

      .Upon remand, any evidence presented to the trial court relating to whether or not Patton had shared fees with Beck in other
        past contingency fee cases where Beck was not listed as a fee-sharing attorney on the fee contract would certainly be relevant to the conflicting claims of Beck and Patton as to what sort of partnership or other ad hoc relationship they may have had or operated under leading up to the present contingency fee case.

      . We note that both parties are licensed and practicing attorneys in the State of Missouri and are certainly expected to adhere to Missouri’s pleading requirements as it relates to responsive pleadings, motions, and responses to motions. Neither party has proven to serve as a model of technical motion practice or responsive pleading. Patton asserts that an overruled motion to dismiss that he claims was verbally “renewed” relieved him of a responsibility to respond to Beck’s cross-claim, and instead, his verbally “renewed” motion to dismiss and written motion for summary judgment served as Patton's "response.” Our review of the transcript contained within the Legal File reveals no verbal “renewal” of the motion to dismiss, and were that the case, the "renewed” motion to dismiss would be nothing more than the equivalent of a motion for the trial court to reconsider its prior denial of Patton's first motion to dismiss, a motion that generally has no legal effect since the Missouri Rules of Civil Procedure do not recognize such a motion for reconsideration. Agnello v. Walker, 306 S.W.3d 666, 678-79 (Mo.App. W.D.2010); Hinton v. Proctor & Schwartz, Inc., 99 S.W.3d 454, 459 (Mo.App. E.D.2003). Further, Patton's alleged verbal "renewed” motion to dismiss may also violate Rules 55.25(c) and 55.26. At bare minimum, we refer Patton to Rule 55.27(a) ("Motions and pleadings may be filed simultaneously without waiver of the matters contained in either.”). Alternatively, Patton argues that the trial court was simply wrong in its ruling on his first motion to dismiss and that this relieved him of a responsibility to respond to Beck's cross-claim, a position that is clearly not supported by the Rules of Civil Procedure. Likewise, Beck erroneously argues that Rule 74.04(c)(2) only requires a response to the motion for summary judgment and not to the attachment of Patton's statement of undisputed facts required by Rule 74.04(c)(1). Thus, both parties necessarily rely upon a liberal construction of their pleadings and responsive pleadings to approach procedural pleading compliance. Liberally speaking, both parties have filed pleadings and responsive pleadings challenging each other's factual and legal conclusions with filings of affidavits, documents, and arguments that, at minimum, place the issue of their law firm partnership or ad hoc fee-sharing relationship in dispute. Accordingly, we choose to exercise our discretion to examine the merits of this central dispute between the parties and the impact of that dispute upon today's ruling. Upon remand, we expect that the parties will want to review their technical compliance with the Missouri Rules of Civil Procedure in the continuing litigation.

      . Patton erroneously argues in his brief to this Court that the trial court "is entitled to allocate as much or as little weight to any evidence it chooses" and goes on to claim that, with regard to the affidavits and documents provided to the trial court, the documentation "was considered and weighed as evidence, along with other evidence in the trial court's consideration of the relevant facts.” Had the trial court been sitting as a trier of fact in a bench trial, this argument would be relevant. This appeal, however, relates to the trial court's proper examination of the record in determining the propriety of summary judgment. Hence, Patton's arguments are misplaced.

      . All rule references are to Missouri Rules of Civil Procedure 2009, unless otherwise indicated.

      . All references to Rule 4 are to Missouri Rules of Professional Conduct 2009. Rule 4— 1.5(e) states: "A division of a fee between lawyers who are not in the same firm may be made only if: (1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation; (2) the client agrees to the association and the agreement is confirmed in writing; and (3) the total fee is reasonable."

      . Patton refers us to a simultaneous proceeding pending before the Circuit Court of St. Louis County, which involves a suit for accounting between Beck and Patton and in which preliminary discovery rulings as to Beck's membership status in Patton's law firm have been issued for the protection of confidential client information, pursuant to Rule 4-1.6. Presumably, Patton raised this topic to the trial court and to this Court in an attempt to invoke the doctrine of collateral estoppel. The trial court appears to have been persuaded by this argument because immediately before ruling the motion in Patton’s favor at the hearing, the trial court stated: "[T]he St. Louis County court made a determination that Mr. Beck was not a member of the firm.” However, a party attempting to invoke the doctrine of collateral estoppel is required to show that (1) the issue decided in the prior adjudication mirrors that in the present action; (2) the prior adjudication resulted in a final decision on the merits; (3) the party against whom collateral estoppel may apply participated as a party or in privity with a party to the prior adjudication; and (4) the party against whom the doctrine may apply has had a full and fair opportunity to litigate the issue. Miller v. Pool & Canfield, Inc., 800 S.W.2d 120, 124 (Mo.App. W.D.1990). Applied to the present case, aside from a question as to whether the issues presented in the two proceedings mirror each other as they stem from rules promulgated for very different purposes, it is undisputed that a discovery order is an interlocutory order and is not a final adjudication, as it leaves further questions for future determination in that proceeding. See State ex rel. Great Am. Ins. Co. v. Jones, 396 S.W.2d 601, 603 (Mo. banc 1965). A judgment is final only when it disposes of all issues for all parties in the case and leaves nothing for future determination. Norwine v. Norwine, 75 S.W.3d 340, 343-44 (Mo.App. S.D.2002). Accordingly, any reliance upon the doctrine of collateral estoppel as it relates to an interlocutory discovery order in a simultaneous legal proceeding between the parties is misplaced.

      . We offer no opinion today as to whether Beck and Patton had any sort of enforceable fee-splitting agreement between each other or had otherwise made promises to one another regarding a fee-splitting arrangement on the Poppe case. We do note that in the event of any substantive, procedural, informal, or formal promises that may have been made between the two party attorneys below, "in commerce between attorneys, attorneys must rely on the integrity of one another, and that promises made are to be promises kept.’’ Neilson v. McCloskey, 186 S.W.3d 285, 287-88 (Mo.App. E.D.2005). We trust that both party attorneys below are making every effort to comply with their legal and ethical responsibilities to the profession and to each other.